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https://www.courtlistener.com/api/rest/v3/opinions/8483518/ | Opinion issued November 8, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00667-CR
———————————
VINCENT TROY MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1607699
MEMORANDUM OPINION
Appellant Vincent Troy Malone, acting pro se, attempts to appeal the January
19, 2022 judgment in which he was convicted of attempted assault of a public
servant. We previously dismissed an appeal by Malone from the same judgment of
conviction in Malone v. State, No. 01-22-00308-CR, 2022 WL 1572274, at *1 (Tex.
App.—Houston [1st Dist.] May 19, 2022, no pet.) (mem. op., not designated for
publication). Like the first appeal, we dismiss this appeal.
Appellant Vincent Troy Malone pleaded guilty to the felony offense of
attempted assault of a public servant in exchange for the State’s agreement to
abandon enhancements and to reduce the charge from assault to attempted assault of
a public servant. See TEX. PENAL CODE §§ 15.01, 22.01. On January 19, 2022, in
accordance with the terms of the plea-bargain agreement, the trial court signed a
judgment of conviction for the offense of attempted assault on a public servant and
sentenced Malone to two years in state jail. Proceeding pro se, Malone appealed the
judgment.
In the first appeal, we explained that “[i]n a plea bargain case, a defendant
may only appeal those matters that were raised by written motion filed and ruled on
before trial or after getting the trial court’s permission to appeal.” Malone, 2022 WL
1572274, at *1 (citing TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2)).
We noted that “[t]he trial court’s certification state[d] that this is a plea-bargain case
and that [Malone had] no right of appeal.” Id. The record supported the trial court’s
statement in the certification. Id. Because he had no right of appeal, we dismissed
Malone’s appeal. Id. (citing Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.
2006) (“A court of appeals, while having jurisdiction to ascertain whether an
2
appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss
a prohibited appeal without further action, regardless of the basis for the appeal.”)).
Malone filed no motion for rehearing, and we lost plenary power over our
May 19, 2022 judgment dismissing the appeal on July 18, 2022. See TEX. R. APP. P.
19.1(a) (providing that courts of appeals’ plenary power over judgments expires 60
days after judgment). On August 22, 2022, Malone, again acting pro se, filed a notice
of appeal, initiating the instant, second appeal of the January 19, 2022 judgment.
The record reflects that, as in the first appeal, the trial court signed a
certification for this appeal stating that this was a plea-bargain case and that Malone
has no right of appeal.1 And, as we explained in the first appeal, because this is a
plea-bargain case from which Malone has no right of appeal, we must dismiss this
appeal. See Chavez, 183 S.W.3d at 680.
We also recognize that there is another basis to dismiss the appeal. A timely
notice of appeal is required to invoke our appellate jurisdiction. Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Here, the record reflects that Malone was
sentenced on January 19, 2022. Because the record does not reflect that he filed a
1
The plea papers reflecting Malone’s plea agreement with the State do not appear in
the clerk’s record for this appeal, but they do appear in the clerk’s record from
Malone’s first appeal. For this reason, we take judicial notice of the clerk’s record
from the first appeal, appellate cause number 01-22-00308-CR. See Fletcher v.
State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007) (recognizing that appellate court
may take judicial notice of own records in same or related proceedings involving
same or nearly same parties).
3
motion for new trial, Malone’s notice of appeal was due within 30 days after his
sentence was imposed, that is, by February 18, 2022. See TEX. R. APP. P. 26.2(a), (b)
(providing that notice of appeal must be filed within 30 days after sentence is
imposed or within 90 days after that date if motion for new trial is timely filed). A
court of appeals may grant an extension of time if, within 15 days after the deadline
for filing the notice of appeal, the party files (a) the notice of appeal in the trial court,
and (b) a motion for extension of time in the court of appeals. See TEX. R. APP. P.
26.3. Fifteen days after February 19, 2022, was March 5, 2022. Malone did not file
the notice of appeal for the instant appeal until August 22, 2022. Thus, Malone’s
notice of appeal was untimely. If a notice of appeal is untimely, we can take no
action other than to dismiss for lack of jurisdiction. See Olivo, 918 S.W.2d at 523.
For the above reasons, we dismiss the appeal for lack of jurisdiction. Any
pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Goodman, Hightower, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
4 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483547/ | J-A21005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
IAN SAMUEL LAKE : No. 441 EDA 2022
Appeal from the Order Entered January 12, 2022
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000419-2020
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 14, 2022
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Pike County, granting Ian Samuel Lake’s motion
to suppress.1 After our review, we affirm.
The suppression court summarized the factual history as follows:
At approximately 12:05 p.m. on June 10, 2020, Pennsylvania
State Trooper William Golden (“[“Trooper] Golden”) was on patrol
in a marked vehicle when he noticed a vehicle traveling westbound
on Interstate 84 in Pike County, Pennsylvania, with heavy tint on
____________________________________________
1 The Commonwealth included in its notice of appeal a certification that
suppression would substantially hinder its prosecution of the case. See Notice
of Appeal, 2/9/22. See also Pa.R.A.P. 311(d) (“In a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as of
right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”); Commonwealth v. James, 69
A.3d 180, 185 (Pa. 2013) (Commonwealth’s appeal of suppression order is
proper when Commonwealth certifies in good faith that suppression order
substantially handicaps prosecution).
J-A21005-22
its windows. After initiating a traffic stop and speaking with the
driver of the vehicle, Ian Samuel Lake (“[Lake]”), [Lake] granted
consent for [Trooper] Golden to search the vehicle.[2] When
[Trooper] Golden activated the trunk release, however, [Lake]
revoked his consent to search.[3] [Trooper] Golden then
requested the assistance of a canine unit, which was dispatched
and arrived sixty (60) to ninety (90) minutes after the traffic stop
was initiated. The canine then inspected the vehicle, giving a
positive indication for the presence of narcotics. [Trooper] Golden
then continued his search of the vehicle, eventually discovering a
locked black bag in the trunk[,] which emanated an odor of
marijuana. After [Lake] indicated he was unable to open the bag
and did not have a key, [Trooper] Golden opened the bag and
discovered both marijuana and THC oils used for vaping. [Lake]
was then taken into custody and charged with one (1) count of
each of Possession with Intent to Manufacture or Deliver a
Controlled or Counterfeit Substance,[4] Possession of a Small
Amount of Marijuana,[5] and Possession of Drug Paraphernalia.[6]
Suppression Court Opinion, 1/12/22, at 2-4.
On October 29, 2020, Lake filed a motion to suppress. On October 8,
2021, following a series of continuances, the court held a suppression hearing.
After the hearing, on January 12, 2022, the suppression court granted Lake’s
motion to suppress, finding that Trooper Golden’s search of the trunk of Lake’s
vehicle, after Lake withdrew his consent, was unlawful. The court, therefore,
suppressed any items seized pursuant to that unlawful search.
____________________________________________
2 See N.T. Suppression Hearing, 10/8/21, at 14.
3 See id. at 15.
4 35 P.S. § 780-113(a)(30).
5 Id. at § 780-113(a)(31)(i).
6 Id. at § 780-113(a)(32).
-2-
J-A21005-22
On February 2, 2022, the Commonwealth filed this timely appeal. The
Commonwealth raises the following issues for our review:
1. Whether, under the totality of the circumstances, exigent
circumstances exist where, during a routine traffic stop,
police develop probable cause to believe a vehicle contains
evidence of a crime and the driver is not in custody,
justifying a warrantless search of the vehicle?
2. Whether the trial court committed an error of law when it
granted in part the defendant’s motion for writ of habeas
corpus based upon its granting of the defendant’s
suppression motion of physical evidence?
Commonwealth’s Brief, at 4 (rephrased for clarity).
Our review of an order granting a motion to suppress evidence is well-
established:
When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the
suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. [Where the defendant] prevailed in the
suppression court, we may consider only the evidence of the
defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the factual findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s conclusions of law are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.
Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (citation
omitted). Further, this Court is not at liberty to reject a finding of fact that is
-3-
J-A21005-22
based on credibility. Commonwealth v. Goldsborough, 31 A.3d 299, 305
(Pa. Super. 2011).
The Commonwealth argues that the evidence presented at the
suppression hearing was sufficient to support a finding that Trooper Golden
executed a lawful, warrantless search of Lake’s vehicle. The Commonwealth
contends Trooper Golden possessed probable cause to believe evidence of a
crime may be located in the vehicle, and there were exigent circumstances
justifying a warrantless search. Commonwealth’s Brief, at 9. We disagree.
Although the routine traffic stop was lawful—Trooper Golden possessed
probable cause to stop based on the illegal window tint—once Lake withdrew
his consent to search the vehicle, Trooper Golden was required to either (1)
possess both probable cause that a crime was being committed and exigent
circumstances; or (2) obtain a search warrant for the vehicle. See
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). Having failed to
do either, we agree with the suppression court that the continued search of
the trunk of Lake’s vehicle following the withdrawal of his consent was
unlawful.
“The Fourth Amendment, by its text, has a strong preference for
searches conducted pursuant to warrants.” Commonwealth v. Leed, 186
A.3d 405, 413 (Pa. 2018) (citation omitted). In Commonwealth v. Gary,
91 A.3d 103 (Pa. 2014), the Pennsylvania Supreme Court, in a plurality
decision, adopted the federal automobile exception to the warrant
requirement, holding: “The prerequisite for a warrantless search of a motor
-4-
J-A21005-22
vehicle is probable cause to search; no exigency beyond the inherent
mobility of a motor vehicle is required.” Id. at 138 (emphasis added).
The Opinion Announcing the Judgment of the Court explicitly stated that there
was “no compelling reason to interpret Article I, Section 8 of the Pennsylvania
Constitution as providing greater protection with regard to warrantless
searches of motor vehicles than does the Fourth Amendment.” Id. However,
in Alexander, supra, our Supreme Court overruled Gary, and held that
warrantless vehicle searches require both probable cause and exigent
circumstances under the state constitution. Alexander, 243 A.3d at 207.
The Court stated:
As a result of today’s decision, we return to the pre-Gary
application of our limited automobile exception under Article I,
Section 8 of our Constitution, pursuant to which warrantless
vehicle searches require both probable cause and exigent
circumstances; “one without the other is insufficient.”
Id., quoting Commonwealth v. Luv, 735 A.2d 87, 93 (Pa. 1999).
Instantly, Trooper Golden acknowledged at the suppression hearing
that, at the time of the stop, he was operating under Gary case law, “which
allowed me [to conduct] a warrantless search of the vehicle.” N.T.
Suppression Hearing, 10/8/21, at 23. Nonetheless, this Court has recently
held that Alexander, in overruling Gary, announced a new criminal rule that
applies to all criminal cases still pending on direct review, provided that the
issue has been preserved at all stages of the adjudication up to and including
direct appeal. See Commonwealth v. Heidelberg, 267 A.3d 492, 503 (Pa.
-5-
J-A21005-22
Super. 2021) (citing Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
Super. 2014) (en banc) (“To be entitled to retroactive application of a new
constitutional rule, a defendant must have raised and preserved the issue in
the court below.”). See also Commonwealth v. Cabeza, 469 A.2d 146,
148 (Pa. 1983) (“where an appellate decision overrules prior law and
announces a new principle, unless the decision specifically declares the ruling
to be prospective only, the new rule is to be applied retroactively to cases
where the issue in question is properly preserved at all stages of adjudication
up to and including any direct appeal.”).
Here, Lake raised the warrantless search issue in his motion to suppress,
challenging the search under both state and federal constitutional law. See
Omnibus Pretrial Motion, 10/29/20, at 2-3. We find, therefore, that Lake has
preserved this issue for our review.
Obtaining a warrant is the default rule. If an officer proceeds to
conduct a warrantless search, a reviewing court will be required
to determine whether exigent circumstances existed to justify the
officer’s judgment that obtaining a warrant was not reasonably
practicable. . . . Courts will have to decide, just as they did pre-
Gary, whether exigent circumstances justified warrantless
searches in discrete scenarios, with a focus on the particular facts.
Alexander, supra at 208. Instantly, the suppression court determined there
were no exigent circumstances. We agree.
-6-
J-A21005-22
At the hearing, Trooper Golden7 testified that he was in a marked police
vehicle, in uniform, and that he stopped Lake’s vehicle due to the “heavy
window tint.” N.T. Suppression Hearing, supra at 10-11. Trooper Golden
continued:
I spoke with Mr. Lake about his travels, about his window tint. He
informed me he recently put the window tint on and he knows it
to be about thirty percent[,] which is illegal and over the
maximum amount[,] which is seventy percent allowed by law.
Mr. Lake stated he was on his way back to Pocono Summit[;] he
was coming from a girlfriend’s house in New York. I asked him
what was the location in New York? He was unable to tell me
where in New York, which struck me.
Id. at 11. Trooper Golden testified that he observed Lake was “very nervous,
very deceptive, nervous to the point where he was actually shaking while
speaking with me.” Id. at 12. When Trooper Golden returned to his police
vehicle with the documents he had requested from Lake, he viewed Lake
through Lake’s side-view mirror “making furtive movements.” Id. At this
point, Trooper Golden’s suspicions were aroused, and he asked Lake to step
____________________________________________
7 Trooper Golden was a member of the Scranton Police Department from 2008
to 2017, at which time he joined the Pennsylvania State Police. N.T.
Suppression Hearing, supra at 6. Trooper Golden participated in narcotics
interdiction training at the local, state, and federal levels, including “Advanced
Narcotics Interdiction, Advanced Vehicle Hides, S.H.I.E.L.D. [Safe Highway
Initiative through Effective Law Enforcement Detection] training through the
Pennsylvania State Police, how to determine truth and deceptive behavior,
[and] 4:20 Interdiction.” Id. at 7-8. Trooper Golden also stated that he has
participated in over “a thousand drug arrests, investigations[,] and
convictions.” Id. at 9.
-7-
J-A21005-22
out of the vehicle and asked for Lake’s consent to search the vehicle. Lake
consented to the search. Id. at 14. Trooper Golden testified:
I began to search the vehicle[.] . . . So, within the vehicle on the
passenger seat I located a small black bag. Within that black bag
was a large amount of money mostly in the denomination of
twenties. It appeared to me at the time it was going to be well
over a couple of thousand dollars[.] I continued to search
throughout the vehicle finding nothing else of indication. I then
asked Mr. Lake about the money[,] and he again paused and
distanced himself from the money stating it was his mother’s
birthday, which seemed like an odd answer to me when I asked
whose money is it. . . . It wasn’t until the third or fourth time he
was asked where he reversed himself and then said that it was his
and his father or stepfather’s money. . . . [W]hen I got to the point
of the trunk, once the trunk was popped from the interior of the
of the vehicle, Mr. Lake [] withdrew his consent.
Id. at 14-15. After Lake withdrew his consent to the search, Trooper Golden
testified that he requested a canine unit come to the scene of the traffic stop;
the canine unit arrived approximately one hour later, performed “an exterior
sniff around the vehicle[,]” and made a “positive indication for the odor of a
narcotic.” Id. at 16. Trooper Golden stated that he then conducted “a
probable cause search [of] the rest of the vehicle[,]” id. at 17, and uncovered
a locked bag, which Trooper Golden opened with a knife, and which contained
“large amounts of leafy marijuana, as well as THC oils.” Id. at 17, 52.
Regarding the substantive requirements of Alexander, we agree with
the suppression court that the Commonwealth failed to establish that the
warrantless search of the trunk of the vehicle and the locked bag was
supported by both probable cause and exigent circumstances. The
Commonwealth maintains that the facts, in totality, demonstrate exigent
-8-
J-A21005-22
circumstances. Commonwealth’s Brief, at 11. This argument is meritless. As
the suppression court noted, Trooper Golden testified credibly that Lake did
not present a threat to himself or the officers, that no weapons were found,
and that Lake was the only occupant of the vehicle. Trooper Golden testified:
Q: You searched him and found that he didn’t have any weapons
on him, correct?
A: No weapons.
Q: Because you had two state troopers there in full view of him
he couldn’t go run back to the car[,] get in the car[,] and destroy
any evidence without you seeing and stopping him, correct?
A: Correct.
* * *
Q: So, not only he withdrew his consent to search the car, you
didn’t get a warrant for the car, but you also didn’t get a warrant
for that locked bag, did you?
A: No. . . . I did not get a search warrant for the bag.
Q: Nothing would have stopped you from seizing that bag and
going to get a search warrant for that bag like you have done
hundreds of times before even in Pike County, even as a state
trooper, correct?
A: Other than the lengthy detention of Mr. Lake seizing his vehicle,
impounding it in holding, contacting the District Attorney,
contacting a Magistrate, authoring the search warrant, taking the
search warrant to the Magistrate[,] having it approved or denied
then returning back to search the vehicle, no.
N.T. Suppression Hearing, supra at 46-50. See Commonwealth v. Trahey,
228 A.3d 520, 530 (Pa. 2020) (exigent circumstances will excuse warrantless
search or seizure where Commonwealth establishes “compelling need [by
officers] for official action and no time to secure a warrant.”);
-9-
J-A21005-22
Commonwealth v. Steward, 740 A.2d 712, 717 (Pa. Super. 1999)
(compelling need usually exists “either because evidence is likely to be
destroyed, or because there exists a threat of physical harm to police officers
or other innocent individuals”); see also Goldsborough, supra (this Court
may not reject finding of fact that is based on credibility).
Essentially, Trooper Golden proceeded as he did in order to avoid the
inconvenience and delay in obtaining a warrant in rural Pike County. Id. at
19-21. However, under these facts, those concerns do not support a finding
of exigent circumstances. There was no indication that the officers were in
danger at any time,8 or that potential evidence was in danger of being
tampered with or destroyed. Trahey, supra; Steward, supra. Like the
suppression court, we are unpersuaded by the Commonwealth’s attempt to
characterize the totality of the circumstances here as exigent.
After our review, we conclude the record supports the suppression
court’s factual findings, and the court’s inferences and legal conclusions are
correct. Tillery, supra; Goldsborough, supra. Accordingly, we affirm the
order granting Lake’s motion for suppression.9
____________________________________________
8 In fact, during the approximately two hours of the stop, including the time
that elapsed while waiting for the canine unit, Trooper Golden and Lake had a
friendly conversation about Lake’s schooling, that he had recently gotten his
master’s degree, and that he had been a scholarship soccer player. Id. at 53-
54.
9Because the Commonwealth’s second claim pertaining to the partial grant of
Lake’s writ of habeas corpus is based on the argument that the suppression
order was legal error, we need not address that issue.
- 10 -
J-A21005-22
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 11 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483546/ | J-S32004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID LAUSELL, JR. :
:
Appellant : No. 825 MDA 2022
Appeal from the PCRA Order Entered May 20, 2022
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003033-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID LAUSELL, JR. :
:
Appellant : No. 826 MDA 2022
Appeal from the PCRA Order Entered May 20, 2022
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003034-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 14, 2022
David Lausell, Jr., filed separate appeals from the orders1 denying his
first petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9545. Additionally, Lausell’s counsel, Daniel C.
Bardo, has filed an application to withdraw representation and a brief in
____________________________________________
1 This Court consolidated Lausell’s appeals sua sponte on July 13, 2022.
J-S32004-22
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).2 We
grant Attorney Bardo’s application to withdraw and affirm the orders denying
Lausell’s PCRA petition.
On June 3, 2016, a confidential informant made a controlled purchase
of 20 grams of heroin from Lausell with money provided by the Lancaster
County Drug Task Force. The task force then obtained a sealed warrant,
supported by an affidavit of probable cause, to place a GPS tracking device on
Lausell’s vehicle. Subsequently, the task force secured a search warrant for
Lausell’s residence that he shared with his girlfriend, Jaelle Ndamage. While
executing the warrant, the police arrested Lausell outside of the residence.
Thereafter, the police seized property in Lausell’s possession, including a car
key belonging to a 2006 Ford Taurus, which was parked at Lausell’s residence.
After obtaining a search warrant for the Taurus, the police discovered a 9-
millimeter Glock semi-automatic pistol and a Ruger .357 revolver in the trunk.
____________________________________________
2 We note that Attorney Bardo has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). When counsel seeks to withdraw from
representation on collateral appeal, as here, Turner and Finley apply. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). On its
own, counsel’s mistake is not fatal to his application to withdraw, though, as
we have held that “[b]ecause an Anders brief provides greater protection to
a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Id. (citation omitted). Therefore, our practice in these situations is to
accept counsel’s Anders brief and evaluate whether it substantially satisfies
Turner/Finley criteria. See id. at 819.
-2-
J-S32004-22
The police also found approximately 540 grams of suspected heroin, $4,703
in cash, a digital scale, and drug paraphernalia in Lausell’s residence.
At trial court docket 3033-2016, the Commonwealth charged Lausell
with two counts each of persons not to possess, use or control firearms and
firearms not to be carried without a license, and at docket 3034-2016, the
Commonwealth charged Lausell with possession with intent to deliver a
controlled substance, criminal conspiracy, and possession of drug
paraphernalia.
Lausell filed a motion to suppress physical evidence and statements,
claiming the searches of him and his property were illegal. The trial court
denied the motion. Directly thereafter, the trial court held a bench trial on the
drug charges and found Lausell guilty of those charges. Subsequently, a jury
trial was held on the gun charges, and the jury found Lausell guilty on two
counts of persons not to possess firearms. The trial court sentenced Lausell to
an aggregate sentence of 25 to 50 years in prison. This Court affirmed the
judgments of sentence, and the Supreme Court of Pennsylvania denied
allowance of appeal. See Commonwealth v. Lausell, 408 MDA 2018 (Pa.
Super. filed Nov. 15, 2018) (unpublished memorandum), appeal denied, 208
A.3d 459 (Pa. 2019).
On May 29, 2020, Lausell filed a timely pro se PCRA petition at the two
docket numbers, raising various ineffective assistance of trial counsel claims.
The PCRA court appointed Attorney Bardo as counsel. Attorney Bardo initially
-3-
J-S32004-22
filed a no-merit letter and an application to withdraw with the PCRA court.
Following its independent review, the PCRA court issued a Pa.R.Crim.P. 907
notice and gave Lausell 30 days to respond. In his response, Lausell, for the
first time, argued that his trial counsel was ineffective for failing to obtain the
sealed warrant allowing for the placement of GPS monitoring on his vehicle
and that if he had the warrant, the outcome of the proceeding would have
been different. As a result, the PCRA court directed Attorney Bardo to review
this new issue. Subsequently, Attorney Bardo filed an amended PCRA petition.
On August 4, 2021, the PCRA court held an evidentiary hearing, at which trial
counsel and Lausell testified.
Following the hearing, on December 16, 2021, despite being counseled,
Lausell, pro se, filed a motion seeking leave to amend his PCRA petition.
Specifically, Lausell sought to raise an after-discovered evidence claim,
arguing that a police officer for the Lancaster Police, who was not involved the
instant case, committed various acts of misconduct and that such acts cast
doubts on the conduct of the task force’s detective in this case. However, the
Clerk of Courts neglected to docket the motion for three months, and it failed
to send a copy of the motion to Attorney Bardo pursuant to Pa.R.Crim.P. 576.
Subsequently, the PCRA court entered separate orders denying Lausell’s
petition. Notably, in its opinion in support of the orders, the PCRA court
addressed the after-discovered evidence claim Lausell raised in his motion to
amend his PCRA petition. These timely appeals followed.
-4-
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On appeal, Attorney Bardo filed a Turner/Finley brief, which raises the
following questions for our review:
I. Is [Lausell’s] claim that the PCRA court erroneously denied
relief frivolous?
II. Is [Lausell’s] claim that he is entitled to remand because the
clerk of courts violated Pa.R.Crim.P. 576(a)(4) frivolous?
Turner/Finley Brief at 4. Additionally, Attorney Bardo filed an application to
withdraw on August 5, 2022. Lausell did not retain alternate counsel or file
any response to Attorney Bardo’s application to withdraw.
As an initial matter, we must consider the adequacy of Attorney Bardo’s
Turner/Finley filings. Independent approval by competent counsel requires
proof of the following:
1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of
why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
Widgins, 29 A.3d at 818 (citation and brackets omitted). Further, counsel
seeking to withdraw must
forward to the petitioner a copy of the application to withdraw that
includes (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the trial
-5-
J-S32004-22
court grants the application of counsel to withdraw, the petitioner
has the right to proceed pro se, or with the assistance of privately
retained counsel.
Id. (citation omitted).
Here, in his Turner/Finley brief, Attorney Bardo described the extent
of his review, identified the issues that Lausell sought to raise, and explained
why the issues lack merit. In addition, Attorney Bardo provided Lausell with
notice of his intention to seek permission to withdraw from representation, a
copy of the “no-merit” brief and application to withdraw as counsel and
advised Lausell of his rights in lieu of representation. Thus, we conclude that
Attorney Bardo has complied with the requirements necessary to withdraw as
counsel. We now independently review Lausell’s claims to ascertain whether
they lack merit.
Our standard of review regarding a PCRA court’s order “is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super.
2017). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Commonwealth v. Garcia,
23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted).
In his first claim, Lausell contends that his trial counsel was ineffective
for failing to secure a copy of the sealed warrant that placed GPS monitoring
on his vehicle. See Turner/Finley Brief at 9-17.
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J-S32004-22
To succeed on an ineffectiveness claim, Lausell must demonstrate by a
preponderance of evidence that “(1) the underlying claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or inaction; and (3)
the petitioner suffered prejudice as a result of counsel’s action or inaction.”
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted).
Counsel is presumed to be effective, and the burden is on Lausell to prove
otherwise. See Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). A
failure to satisfy any prong of the test for ineffectiveness will require rejection
of the claim. See Commonwealth v. Montalvo, 244 A.3d 359, 368 (Pa.
2021).
Here, at the evidentiary hearing, Lausell’s trial counsel testified that he
first learned about the GPS tracker at the suppression hearing. See N.T.,
8/4/21, at 24. Lausell’s trial counsel indicated that he did not receive the
warrant through the discovery process and did not follow up with the
prosecutor but admits that he should have obtained the warrant. See id. Trial
counsel further explained that the affidavit of probable cause that authorized
the search warrants had independent evidence sufficient to authorize the
warrant. See id. at 26. Trial counsel noted that Lausell’s goal in proceeding
to an immediate bench trial was to save suppression issues for appeal and to
avoid a joint trial with his girlfriend, Ndamage, because she faced deportation
if convicted. See id. at 26-27, 29, 31, 33, 36-38, 48-49; see also id. at 33
(stating that Lausell’s primary goal was to get Ndamage’s charges dismissed).
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J-S32004-22
Conversely, Lausell testified that he would have gone to a jury trial if he
had the sealed GPS monitoring warrant. See id. at 13-15, 19-20. Lausell
noted that he asked trial counsel about the GPS warrant at his suppression
hearing, but that trial counsel indicated that there was no such warrant. See
id. at 11. Lausell further explained that the foundation of the warrant was
false. See id. at 19-20. Lausell also testified that his strategy involved getting
Ndamage’s charges dismissed. See id. at 21-23.
Here, Attorney Bardo acknowledges that there was arguable merit to
Lausell’s underlying ineffectiveness claim, highlighting that the Rules of
Criminal Procedure require disclosure of sealed warrants. See Turner/Finley
Brief at 9, 10-11 (citing Pa.R.Crim.P. 573(B)(1)(f) (requiring disclosure of all
documents); Pa.R.Crim.P. 211(H) (stating that “[w]hen criminal proceedings
are instituted as a result of the search … [a] copy of the sealed affidavit(s)
shall be given to the defendant” prior to his arraignment)). Likewise, Attorney
Bardo concedes that trial counsel did not have a reasonable basis for failing
to obtain the sealed warrant. See id. at 11-14; see also N.T., 8/4/21, at 24
(wherein Lausell’s trial counsel admitted that he should have obtained the
sealed warrant seeking GPS monitoring). Upon our review, we agree with
Attorney Bardo’s analysis of the first two prongs of the ineffectiveness test.
Nevertheless, we conclude that Lausell was not prejudiced by trial
counsel’s failure to obtain the sealed warrant. Notably, to prove prejudice
when claiming that the jury waiver was not knowing and voluntary due to
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J-S32004-22
counsel’s ineffectiveness, “the defendant must demonstrate a reasonable
probability that the result of the waiver proceeding would have been different
absent counsel’s ineffectiveness; he does not have to demonstrate that the
outcome of a jury trial would have been more favorable than the bench trial.”
Commonwealth v. Mallory, 941 A.2d 686, 702-03 (Pa. 2008).
Here, the PCRA court addressed Lausell’s claim as follows:
The fact that trial counsel did not obtain the GPS warrant …
could not have caused prejudice to Lausell; the GPS warrant itself
as well as the two search warrants were indisputably supported
by probable cause. In fact, with regard to the search warrants,
testimony at both the suppression hearing and the PCRA hearing
showed that even if data from the GPS tracking device had been
excluded from the suppression court’s analysis, the suppression
motion would still have been denied because the two search
warrants at issue were supported by adequate independent
probable cause. … Thus, even if trial counsel had obtained the GPS
warrant and successfully challenged its validity at the suppression
hearing, its invalidation would have had no effect on the
suppression court’s ultimate finding that the search warrants were
valid. The suppression motion would still have been denied.
Based on the foregoing analysis, this Court finds it
implausible that Lausell would have made a different decision
regarding the type of trial he chose based solely on possession of
the GPS warrant, and his testimony to the contrary lacks any
credibility. Even if he had chosen a jury trial, the existence of the
valid GPS warrant would have had zero effect on the outcome of
Lausell’s case. Lausell labors under the mistaken belief that had
he chosen a jury trial, he would have been permitted to challenge
the validity of the GPS warrant a second time, before his jury. As
the Court explained during the PCRA Hearing, this [] simply could
not and would not have occurred. Any use of the GPS warrant
and/or data at trial would only have weakened Lausell’s defense
while bolstering the Commonwealth’s case against him. In short,
Lausell’s ineffective assistance of counsel claim on the issue of the
GPS warrant fails for lack of prejudice.
PCRA Court Opinion, 5/20/22, at 10-11 (citations and footnote omitted).
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J-S32004-22
We agree with the PCRA court’s reasoning. Indeed, Lausell’s only proof
that he was prejudiced by counsel’s ineffectiveness in proceeding with a bench
trial is his own self-serving testimony that he would not have waived his right
to jury trial, which the PCRA court found to be incredible. See id. at 11;
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (concluding that
we are bound by the PCRA court’s credibility determinations where they are
supported by the record). Instead, the PCRA court found credible counsel’s
testimony that Lausell wanted to take responsibility for the drugs in order to
save his girlfriend from deportation. Accordingly, Lausell fails to meet the
prejudice prong of the ineffectiveness test and his first claim is without merit.
In his next claim, Lausell argues that the Lancaster County Clerk of
Courts’ office violated Pa.R.Crim.P. 576(a)(4) by failing to docket his motion
to amend the PCRA petition or forward it to Attorney Bardo. See
Turner/Finley Brief at 17-18. Lausell further argues that he sought to raise
an after-discovered evidence claim regarding a Lancaster Police Officer’s
misconduct. See id. at 18.
Initially, Attorney Bardo notes that he failed to raise this claim in the
court-ordered Rule 1925(b) concise statement, rendering it waived on appeal.
See id. at 17. However, waiver is not the appropriate consequence where
counsel has filed a Turner/Finley brief on appeal. See Pa.R.A.P. 1925(c)(4).
Further, the PCRA court’s opinion and Attorney Bardo’s Turner/Finley brief
on appeal both address Lausell’s underlying after-discovered evidence claim,
- 10 -
J-S32004-22
and we have an adequate record to review the appeal. Accordingly, as we
must determine whether the claim is without merit due to Attorney Bardo’s
filing of a Turner/Finley brief, we decline to find waiver of this issue.
Criminal Rule of Procedure 576(a)(4) states the following:
In any case in which a defendant is represented by an attorney, if
the defendant submits for filing a written motion, notice, or
document that has not been signed by the defendant’s attorney,
the clerk of courts shall accept it for filing, time stamp it with the
date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy
of the time stamped document shall be forwarded to the
defendant’s attorney and the attorney for the Commonwealth
within 10 days of receipt.
Pa.R.Crim.P. 576(a)(4). The comment to Rule 576 provides that such a filing
does not “trigger any deadline nor require any response.” Pa.R.Crim.P. 576,
cmt. Indeed, because defendants have no constitutional right to hybrid
representation, see Staton, 184 A.3d at 957, where counsel receives a copy
of the motion, he or she may present the motion to the trial court for resolution
or, if appropriate, take no action. See Commonwealth v. Cooper, 27 A.3d
994, 1007-08 (Pa. 2011); see also Pa.R.Crim.P. 121(g).
Here, both Attorney Bardo and the PCRA court agree that the Clerk of
Courts failed to docket the motion to amend in a timely manner or forward
the motion to Attorney Bardo. Nevertheless, despite this error, the PCRA court
addressed the after-discovered evidence claim in Lausell’s motion to amend.
Accordingly, we do not find the Clerk of Courts’ error requires a remand. See
Pa.R.Crim.P. 576, cmt.
- 11 -
J-S32004-22
Regarding Lausell’s underlying after-discovered evidence claim, he must
satisfy a four-part test, which requires him to demonstrate the after-
discovered evidence
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (quotation
omitted). “The test is conjunctive; the [petitioner] must show by a
preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.” Commonwealth v. Padillas, 997 A.2d
356, 363 (Pa. Super. 2010) (citations omitted). In addition, the after-
discovered “evidence must be producible and admissible.” Small, 189 A.3d at
972.
Here, the PCRA court addressed Lausell’s underlying claim as follows:
After careful review, the [PCRA c]ourt finds that Lausell
cannot meet this burden on the content of Lausell’s motion, the
alleged “after-discovered evidence” he wishes to explore is
irrelevant to his guilt or innocence. Lausell wishes to gain access
to documents pertaining to the investigation of a Lancaster police
officer who, based on the established record, had no involvement
in the investigation, arrest, prosecution, or trial of Lausell on
either docket[.] [I]t appears that Lausell hopes to find within the
requested materials some indications or evidence he might use to
impugn the character and good name of … the lead law
enforcement officer who actually did participate in the
investigation and prosecution of Lausell’s criminal endeavors.
Given the total lack of a connection between [the officer in
question] and Lausell’s case, along with the purely speculative
nature of Lausell's allegations regarding [the detective’s]
- 12 -
J-S32004-22
supposed misconduct, the [PCRA c]ourt cannot and will not grant
discovery.
Even assuming, based on the limited information Lausell has
provided, that there may be statements about [the detective]
somewhere in the files relating to [the officer], the only possible
use of the type of evidence Lausell seeks would be impeachment
of [the detective’s] credibility. This type of evidence fails to satisfy
the standard for granting PCRA relief or a new trial. Therefore,
Lausell’s motion to amend his PCRA will be denied.
PCRA Court Opinion, 5/20/22, at 14 (citation omitted).
We agree with the PCRA court’s analysis and conclude that Lausell’s
underlying claim in his motion to amend the PCRA petition is without merit.
See id.; see also Small, 189 A.3d at 972. Accordingly, the PCRA court did
not err in denying relief on Lausell’s PCRA petition.
Upon our independent review of the record, we conclude that the PCRA
petition is without merit, and that Attorney Bardo is entitled to withdraw under
the precepts of Turner/Finley.
Application to Withdraw as Counsel granted. Orders 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/8483545/ | J-S25036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT LELLOCK :
:
Appellant : No. 657 WDA 2021
Appeal from the PCRA Order Entered May 7, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013778-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT LELLOCK :
:
Appellant : No. 659 WDA 2021
Appeal from the PCRA Order Entered May 7, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003936-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: NOVEMBER 14, 2022
Appellant, Robert Lellock, appeals from the order entered in the
Allegheny County Court of Common Pleas, which dismissed in part his petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S25036-22
Appellant worked as a school police officer in Pittsburgh. During the
course of his employment, he sexually abused multiple boys. The PCRA court
opinion set forth the remaining procedural history of this appeal as follows:
On July 29, 2013, a jury found [Appellant] guilty [of
involuntary deviate sexual intercourse (“IDSI”) and multiple
counts of endangering the welfare of a child (“EWOC”),
corruption of minors, and indecent assault at two different
docket numbers]. The [court] sentenced Appellant to an
aggregate term of incarceration of 32-64 years and found
him to be a sexually violent predator. Judgment of sentence
was affirmed on appeal, but the Superior Court of
Pennsylvania remanded the case for resentencing, finding
that the imposition of a mandatory sentence was illegal.
[The trial court] resentenced [Appellant] to the same
sentence, without the mandatory sentence, on July 21,
2016. This sentence was affirmed on August 16, 2017.
In 2017, appointed counsel filed an amended PCRA petition
and in 2018 the Commonwealth conceded a sentencing
issue on two counts of [EWOC]. On January 2[8], 2019,
just before retiring, [the trial jurist] granted a resentencing
hearing on the EWOC [convictions] and denied the rest of
the PCRA. The case was reassigned to [the current jurist].
Next, counsel for Appellant filed a motion to reconsider, and
Appellant filed a pro se motion for a Grazier[2] hearing.
[The PCRA court] granted both motions and ordered
Appellant to refile a PCRA [petition] and raise all issues
therein. Appellant complied and the Commonwealth
answered. [The PCRA court] reviewed the record, issued a
notice of intent to dismiss the non-sentencing related
issues, and scheduled a resentence[ing] hearing. Appellant
filed motions to amend and to stay, which [the PCRA court]
granted. On [August 26], 2020, Appellant filed an amended
PCRA [petition]. The Commonwealth responded that claims
of ineffective assistance of counsel at claims 1-8 and 10-12
were without merit, and claim 13 of cumulative prejudice
was also meritless. Claim 9 is a time credit issue wherein
____________________________________________
2 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
-2-
J-S25036-22
the Commonwealth believes [Appellant] is entitled to three
additional days. Appellant had been given credit from
9/12/12-12/18/12, but had not been released from custody
until 12/21/12.
[On May 4, 2021, the court resentenced Appellant on some
of the counts pursuant to the original trial jurist’s 2019
order.] On May 7, 2021, [the PCRA court] dismissed claims
1-8 and 10-13 [and] granted the three-day time credit….
(PCRA Court Opinion, filed 7/28/21, at 2-3) (some capitalization omitted).
On June 1, 2021, Appellant timely filed a pro se notice of appeal from
the order denying PCRA relief.3 Appellant voluntarily filed a pro se Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal on June 28,
2021.
Appellant now raises seven issues for our review:
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that trial counsel
gave ineffective assistance of counsel when he failed to fully
develop and argue that the amendments that extended the
criminal statute of limitations were illegal and the holding
that allowed them [was] erroneously decided.
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that trial counsel and
appellate [counsel] gave ineffective assistance of counsel
when they failed to properly raise, argue, and brief that the
prosecution on twelve of the counts that Appellant was
facing at trial [was] time-barred by the criminal statute of
____________________________________________
3 More specifically, Appellant filed separate pro se notices of appeal at each
underlying docket number from the order denying PCRA relief. Appellant also
filed separate pro se notices of appeal at each underlying docket number from
the new judgment of sentence imposed following the resentencing hearing.
This Court docketed the appeals related to the resentencing hearing at 658
and 660 WDA 2021. This Court subsequently consolidated each set of appeals
sua sponte.
-3-
J-S25036-22
limitations.
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that trial counsel
gave ineffective assistance of counsel when he failed to
raise, argue, and brief this claim of pre-arrest delay.
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that trial counsel
gave ineffective assistance of counsel when he failed to
properly object, raise, argue, and litigate that several jury
instructions were legally deficient when charged to the jury.
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that trial counsel and
appellate counsel #2 gave ineffective assistance of counsel
when they failed to properly object, raise, argue, litigate,
and brief that Appellant was illegally labeled as a sexually
violent predator.
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that appellate
counsel #3 gave ineffective assistance of counsel when she
failed to raise that Appellant being sentenced under [the Sex
Offender Registration and Notification Act (“SORNA”)] was
illegal and that SORNA II cannot apply to Appellant’s case.
The PCRA court abused its discretion when it dismissed
without a hearing on Appellant’s claim that all [counsel]
gave ineffective assistance of counsel throughout all phases
of Appellant’s case.
(Appellant’s Brief at 4-5).
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218
A.3d 850 (2019). “[W]e review the court’s legal conclusions de novo.”
-4-
J-S25036-22
Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal
denied, ___ Pa. ___, 268 A.3d 386 (2021).
Appellant’s first two issues are related, and we address them together.
Appellant argues that a two-year statute of limitations applied for twelve of
the offenses at issue, the statute of limitations had expired by the time that
the Commonwealth brought the charges, and that the trial court should have
dismissed the relevant counts. Appellant acknowledges that trial counsel
raised the statute of limitations issue in a pretrial motion. Appellant insists,
however, that the pretrial motion was inadequate. Additionally, Appellant
notes that our legislature amended the relevant statutes of limitations after
Appellant’s offenses but before the Commonwealth brought the charges.
Appellant asserts that the amended version of the statutes should not have
applied to his case.
Appellant acknowledges Commonwealth v. Johnson, 520 Pa. 165,
553 A.2d 897 (1989) and Commonwealth v. Harvey, 542 A.2d 1027
(Pa.Super. 1988), holding that when a new limitations period is enacted and
the prior period has not yet expired, the longer statute will apply to an action.
Nevertheless, Appellant maintains these cases were erroneously decided and
“his argument proves that his Fourteenth Amendment and Article 1, Section
9 constitutional rights were violated by the government’s arbitrary actions
against him and others like him.” (Appellant’s Brief at 19). Appellant
concludes trial counsel was ineffective for filing an inadequate pretrial motion
-5-
J-S25036-22
and failing to challenge the amendment of the statute of limitations. We
disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
-6-
J-S25036-22
to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
-7-
J-S25036-22
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
Regarding the effect of amendments on statutes of limitations,
Pennsylvania law states:
§ 1975. Effect of repeal on limitations
Whenever a limitation or period of time, prescribed in any
statute for acquiring a right or barring a remedy, or for any
other purpose, has begun to run before a statute repealing
such statute takes effect, and the same or any other
limitation is prescribed in any other statute passed by the
same General Assembly, the time which has already run
shall be deemed part of the time prescribed as such
limitation in such statute passed by the General Assembly.
1 Pa.C.S.A. § 1975.
In interpreting this statute, this Court noted that, “when a new period
of limitations is enacted, and the prior period of limitations has not yet expired,
in the absence of language in the statute to the contrary, the period of time
accruing under the prior statute of limitations shall be applied to calculation
of the new period of limitations.” Harvey, supra at 1029-30. Our Supreme
Court has also explained that “[t]here is nothing retroactive about the
application of an extension of a statute of limitations, so long as the original
statutory period has not yet expired.” Johnson, supra at 170, 553 A.2d at
900 (internal citation and quotation marks omitted).
Instantly, trial counsel raised the statute of limitations issue in omnibus
pretrial motions. At docket No. 3936 of 2012, trial counsel argued that three
of the criminal counts expired in 2008 and four counts expired in 2011. (See
-8-
J-S25036-22
Omnibus Pretrial Motion, filed 5/1/13, at ¶¶15, 18, 23). At docket No. 13778
of 2012, trial counsel argued that six of the criminal counts expired in 2008
and ten counts expired in 2011. (See Omnibus Pretrial Motion, filed 1/3/13,
at ¶¶15, 18, 23). The court evaluated the pretrial motions and denied relief.
On direct appeal, this Court also considered Appellant’s statute of limitations
claims and determined that the Commonwealth timely filed the charges. See
Commonwealth v. Lellock, No. 2021 WDA 2013, unpublished memorandum
at 4, n. 2 (Pa.Super. filed Apr. 23, 2015).
Considering this procedural history, the PCRA court found that Appellant
could not satisfy the arguable merit prong of the test for ineffectiveness
because trial counsel raised the issue in a pretrial motion, argued it at a
hearing, and the trial court did not grant relief. (See PCRA Court Opinion at
5). We discern no legal error in the PCRA court’s conclusion, and we reiterate
that it would be improper to relitigate this issue in hindsight where the record
supports the conclusion that trial counsel adequately raised a statute of
limitations defense. See Beatty, supra; King, supra. Moreover, Appellant
offers no relevant authority to support his own self-serving conclusion that
Harvey and Johnson were erroneously decided. In light of this relevant case
law, the amendment of the statutes of limitations at issue did not prevent the
Commonwealth from bringing the charges in this case. Based upon the
foregoing, Appellant is not entitled to relief on his first two claims.
In his third issue, Appellant argues that there was an impermissible
-9-
J-S25036-22
period of pre-arrest delay after the commission of the offenses. Appellant
claims that the pre-arrest delay left him unable to obtain critical evidence that
would have helped him to establish an alibi. Although the PCRA court
determined that this claim lacked arguable merit, Appellant maintains that the
PCRA court improperly relied on a plurality decision of the Pennsylvania
Supreme Court. To the extent that the court also found that the pre-arrest
delay was due to delayed reporting by the victims, Appellant contends that
the record does not support this finding. Appellant concludes that trial counsel
was ineffective for failing to challenge the pre-arrest delay. We disagree.
“The constitutional right to due process … protects defendants from
having to defend stale charges, and criminal charges should be dismissed if
improper pre-arrest delay causes prejudice to the defendant’s right to a fair
trial.” Commonwealth v. Snyder, 552 Pa. 44, 51-52, 713 A.2d 596, 599-
600 (1998). In Snyder, our Supreme Court determined that “our due process
inquiry must consider the reasons for the delay and whether it resulted in
actual prejudice to the accused.” Id. at 60, 713 A.2d at 604. The Court also
noted:
This Court recognizes that murder prosecutions often come
to fruition after many years of investigation. We do not
intend to limit the power of the Commonwealth to prosecute
a murderer if and when an investigation yields new evidence
after many years of inactivity. However, if no additional
evidence appears, the delay results in actual prejudice to
the defendant, and there are no proper reasons for
postponing the defendant’s arrest, the due process clauses
of the Constitutions of the United States and Pennsylvania
require that the charges be dismissed.
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Id. at 62, 713 A.2d at 605.
The Court later attempted to elaborate on this standard in a plurality
opinion.4 See Commonwealth v. Scher, 569 Pa. 284, 803 A.2d 1204 (2002)
(plurality). In Scher, the lead opinion stated:
“[T]he defendant must first show that the delay caused him
actual prejudice, that is, substantially impaired his or her
ability to defend against the charges. The court must then
examine all of the circumstances to determine the validity
of the Commonwealth’s reasons for the delay. Only in
situations where the evidence shows that the delay
was the product of intentional, bad faith, or reckless
conduct by the prosecution, however, will we find a
violation of due process.”
Id. at 313, 803 A.2d at 1221 (emphasis added) (internal footnote omitted).
Nevertheless, the concurring opinions presented divergent views on the
standard applicable to the Commonwealth’s actions.
This Court subsequently evaluated the divergent views set forth in
Scher. See Commonwealth v. Wright, 865 A.2d 894, 900-01 (Pa.Super.
2004). Consequently, we utilized the standard set forth in Snyder, supra,
which established that a pre-arrest delay constitutes a due process violation
“where there has occurred ‘actual prejudice to the defendant’ and there
____________________________________________
4 “In cases where a concurring opinion enumerates the portions of the
plurality’s opinion in which the author joins or disagrees, those portions of the
agreement gain precedential value.” Commonwealth v. Brown, 23 A.3d
544, 556 (Pa.Super. 2011). “Where, … however, the concurrence does not
explicitly state its agreement or disagreement with the plurality, we must look
to the substance of the concurrence to determine the extent to which it
provides precedential value to points of agreement.” Id.
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existed ‘no proper reasons for postponing the defendant’s arrest.’” Wright,
supra at 901 (quoting Snyder, supra at 62, 713 A.2d at 605).
Instantly, Appellant’s PCRA petition included an exhibit to demonstrate
that the Commonwealth could have brought its charges against Appellant
sooner. Specifically, Appellant submitted a supplemental police report from
the City of Pittsburgh Bureau of Police, dated August 28, 2012. (See Amended
PCRA Petition, filed 8/26/20, at Ex. C-11).5 The report stated that law
enforcement received an email from a counselor at a youth development
center, which indicated that one victim, S.L., made a disclosure about
Appellant’s sexual abuse in 2005. The supplemental police report quoted a
portion of the youth counselor’s intake report summarizing the victim’s
disclosure. The report also stated that the counselor contacted the state police
in 2005, and a trooper subsequently took a statement from the victim.
Here, the supplemental report does not provide any information about
the victim’s statement to the trooper, and it does not indicate whether the
trooper ever contacted Pittsburgh police about the disclosure. The
supplemental report also fails to mention the other victims at issue in this case
and the respective dates of their disclosures. On this record, we cannot accept
Appellant’s conclusion that the Commonwealth lacked any proper reason for
the pre-arrest delay. Instead, we note that the PCRA court properly evaluated
____________________________________________
5Although the report stated that it is four pages long, Appellant included only
one page with his petition.
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the record and determined that the victims’ delay in pursuing their disclosures
excused the pre-arrest delay. See Snyder, supra; Wright, supra. This
analysis is free of legal error, and it supports the court’s determination that
Appellant’s claim lacked arguable merit. See Beatty, supra. Therefore,
Appellant is not entitled to relief on his third claim.
In his fourth issue, Appellant raises various challenges to the trial court’s
jury instructions. Specifically, Appellant questions the accuracy of the
instructions regarding: 1) reasonable doubt; 2) evaluation of a defendant’s
character; 3) proof of date of the crimes; and 4) impeachment of witnesses
with prior convictions. Appellant complains that the court provided legally
deficient jury instructions that did not adequately present the law to the jury.
With respect to the reasonable doubt instruction, Appellant asserts that
the court incorrectly stated, “[t]o summarize, you find the defendant guilty on
mere suspicion.” (Appellant’s Brief at 31). Appellant indicates that the court
should have stated, “you may not find the defendant guilty on mere
suspicion.” (Id.) For these reasons, Appellant maintains that the court
provided the jury with the incorrect standard of proof.
For the jury instruction regarding evaluation of a defendant’s character,
Appellant asserts that the court failed to provide the correct standard of proof
and omitted an unspecified portion of the jury instruction. Appellant also
believes that the instruction should have stated that Appellant is a nonviolent
individual. For the date of crime instruction, Appellant again asserts that the
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court failed to provide the correct standard of proof. Regarding the instruction
on the impeachment of a witness with a prior conviction, Appellant claims that
the jury did not have information regarding which witnesses had prior
convictions, when the convictions occurred, and the offenses at issue.
Appellant maintains that trial counsel had no reasonable basis for failing
to object to these instructions. Appellant also argues that counsel’s inaction
caused him to suffer prejudice because he was “convicted on all counts and
the record does not show that [the convictions were] beyond a reasonable
doubt as required by the constitution.” (Id. at 34). Based upon the foregoing,
Appellant concludes that trial counsel was ineffective for failing to object to
the jury instructions at issue. We disagree.
This Court has set forth the relevant standard for jury instructions as
follows:
A trial court has wide discretion in phrasing jury instructions.
When reviewing an allegation of an incorrect jury
instruction, the appellate court must view the entire charge
to determine whether the trial court clearly and accurately
presented the concepts of the legal issue to the jury and
should not reverse, as a result of the instruction, unless the
trial court committed an abuse of its discretion. We will not
examine a phrase or sentence of an instruction in a vacuum.
Rather, when we evaluate a challenge to a charge, we must
consider how each part fits together to convey a complete
legal principle.
Geathers, supra at 733 (quoting Commonwealth v. Ragan, 560 Pa. 106,
743 A.2d 390, 397-98 (1999)). See also Commonwealth v. Lesko, 609
Pa. 128, 216, 15 A.3d 345, 397 (2008) (reiterating that charge, “as a whole,”
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must be considered; court has broad discretion in phrasing instructions, so
long as directions given “clearly, adequately, and accurately” reflect law).
Regarding reasonable doubt, Pennsylvania’s Suggested Standard
Criminal Jury Instructions provide as follows:
A fundamental principle of our system of criminal law is that
the defendant is presumed to be innocent. The mere fact
that [he] [she] was arrested and is accused of a crime is not
any evidence against [him] [her]. Furthermore, the
defendant is presumed innocent throughout the trial and
unless and until you conclude, based on careful and
impartial consideration of the evidence, that the
Commonwealth has proven [him] [her] guilty beyond a
reasonable doubt.
It is not the defendant’s burden to prove that [he] [she] is
not guilty. Instead, it is the Commonwealth that always has
the burden of proving each and every element of the crime
charged and that the defendant is guilty of that crime
beyond a reasonable doubt. The person accused of a crime
is not required to present evidence or prove anything in his
or her own defense [except with respect to the defense of
[type of defense], which I will discuss later]. If the
Commonwealth’s evidence fails to meet its burden, then
your verdict must be not guilty. On the other hand, if the
Commonwealth’s evidence does prove beyond a reasonable
doubt that the defendant is guilty, then your verdict should
be guilty.
Although the Commonwealth has the burden of proving that
the defendant is guilty, this does not mean that the
Commonwealth must prove its case beyond all doubt and to
a mathematical certainty, nor must it demonstrate the
complete impossibility of innocence. A reasonable doubt is
a doubt that would cause a reasonably careful and sensible
person to hesitate before acting upon a matter of
importance in his or her own affairs. A reasonable doubt
must fairly arise out of the evidence that was presented or
out of the lack of evidence presented with respect to some
element of the crime. A reasonable doubt must be a real
doubt; it may not be an imagined one, nor may it be a doubt
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manufactured to avoid carrying out an unpleasant duty.
So, to summarize, you may not find the defendant guilty
based on a mere suspicion of guilt. The Commonwealth has
the burden of proving the defendant guilty beyond a
reasonable doubt. If it meets that burden, then the
defendant is no longer presumed innocent and you should
find [him] [her] guilty. On the other hand, if the
Commonwealth does not meet its burden, then you must
find [him] [her] not guilty.
Pa.SSJI (Crim) 7.01 (internal numbering omitted).
In Commonwealth v. Reid, ___ Pa. ___, 259 A.3d 395 (2021), our
Supreme Court addressed a similar issue regarding a reasonable doubt
instruction. Specifically, the appellant complained that the trial court
inaccurately informed the jury that “the Commonwealth is not bound to prove
the case beyond a reasonable doubt, a shadow of a doubt or to a mathematical
certainty.” Id. at ___, 259 A.3d at 430. The Court subsequently evaluated
the reasonable doubt instruction in its entirety and concluded that the trial
court provided an accurate description of the law prior to the complained-of
statement. The remainder of the instruction “included multiple references to
the Commonwealth’s duty to prove [the a]ppellant guilty beyond a reasonable
doubt.” Id. at 434.
“[O]ther than the [trial] court’s passing and obviously inadvertent,
misstatement regarding the Commonwealth’s burden of proof, the court
clearly, adequately, and accurately instructed the jury regarding the
Commonwealth’s duty to prove Appellant guilty beyond a reasonable doubt.”
Id. Thus, the Supreme Court held “that the trial court’s instruction did not
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lessen the Commonwealth’s burden of proof below the standard of beyond a
reasonable doubt,” and “the PCRA court did not err in finding a lack of arguable
merit in [the a]ppellant’s claim that trial counsel were ineffective for failing to
object to the trial court’s jury instruction[.]” Id. Compare Commonwealth
v. Montalvo, ___ Pa. ___, 244 A.3d 359 (2021) (holding appellant
established ineffective assistance of counsel for failing to object to erroneous
jury instruction; contrary to Commonwealth’s argument, court did more than
make one inaccurate statement; shortly after court gave erroneous instruction
to which counsel failed to object, court gave second erroneous instruction;
trial judge’s purported correction of misstatement could only have served to
prejudice appellant further).
Pennsylvania’s Suggested Standard Criminal Jury Instruction as to the
defendant’s character in a criminal matter is as follows:
The defense offered evidence tending to prove that the
defendant is a person of good character. I am speaking of
the defense witnesses who testified [that the defendant has
a good reputation for being a law-abiding, peaceable,
nonviolent individual] [that [proof of good character]].
[The district attorney called witnesses who in effect denied
that the defendant has a good reputation for [character
trait]. You may use the Commonwealth’s testimony for one
purpose only. That is to help you judge whether the
defense’s character witnesses are really familiar with the
defendant’s reputation and whether in their testimony they
gave you an accurate description of [his] [her] reputation.]
The law recognizes that a person of good character is not
likely to commit a crime that is contrary to that person’s
nature. Evidence of good character may by itself raise a
reasonable doubt of guilt and require a verdict of not guilty.
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You must weigh and consider the evidence of good character
along with the other evidence in the case. If, on all the
evidence, you have a reasonable doubt of the defendant’s
guilt, you must find [him] [her] not guilty. However, if, on
all the evidence, you are satisfied beyond a reasonable
doubt that the defendant is guilty, you should find [him]
[her] guilty.
Pa.SSJI (Crim) 3.06 (internal numbering omitted).
Pennsylvania’s Suggested Standard Criminal Jury Instructions for “date
of crime: proof of date alleged not essential” is as follows:
[The indictment alleges that the crime was committed on
[date].]
You are not bound by the date alleged in the [indictment]
[information]. It is not an essential element of the crime
charged. You may find the defendant guilty if you are
satisfied beyond a reasonable doubt that [he] [she]
committed the crime charged [in and around] [on or about]
the date charged in the [indictment] [information] even
though you are not satisfied that [he] [she] committed it on
the particular date alleged in the [indictment] [information].
Pa.SSJI (Crim) 3.19.
The suggested jury instruction for impeachment with prior conviction of
a witness is as follows:
You have heard evidence that one of the witnesses, [name
of witness], has been convicted of the crime of [crime].
The only purpose for which you may consider this evidence
of prior conviction is in deciding whether or not to believe
all or part of [name of witness]’s testimony. In doing so,
you may consider the type of crime committed, how long
ago it was committed, and how it may affect the likelihood
that [name of witness] has testified truthfully in this case.
Pa.SSJI (Crim) 4.08D (internal numbering omitted).
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Instantly, the court instructed the jury on the concept of reasonable
doubt as follows:
The fundamental principle of our criminal justice system is
that a person accused of a crime, the Defendant, is
presumed to be innocent. The mere fact that he was
arrested and accused of a crime is not any evidence against
him. In addition, there is no inference of guilt created by
the fact that there is an information or even a trial.
Furthermore, the Defendant is presumed innocent
throughout the trial unless and until you conclude, based on
careful and impartial consideration of the evidence, that the
Commonwealth has proved him guilty beyond a reasonable
doubt.
It is not the Defendant’s burden of proof to prove that he is
not guilty. Instead, it is the Commonwealth that always has
the burden to prove each and every one of the crimes
charged. A person accused of a crime is not required to
present evidence or to prove anything in his own defense.
If the Commonwealth fails to meet his burden, then your
verdict must be “not guilty.” On the other hand, if the
Commonwealth does not prove beyond a reasonable doubt
that the Defendant is guilty, then your verdict—I’m sorry; if
the Commonwealth does prove beyond a reasonable doubt
that the Defendant is guilty, then your verdict should be
“guilty.”
Although the Commonwealth has the burden of proving the
Defendant guilty beyond a reasonable doubt, this does not
mean that the Commonwealth must prove its case beyond
all doubt or to a mathematical certainty, nor must it
demonstrate the complete impossibility of innocence. A
reasonable doubt is a doubt that would cause a reasonably
carefully and sensible person to pause or hesitate before
acting in a matter of importance in his or her own affairs. A
reasonable doubt must fairly arise out of the evidence that
was presented or the lack of evidence presented with
respect to some element of the crime charged.
A reasonable doubt must be a real doubt. It may not be an
imagined one, nor may it be a doubt merely manufactured
to avoid carrying out an unpleasant duty. To summarize,
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you may find the Defendant guilty based on the mere
suspicion of guilt. The Commonwealth has the burden of
proving the Defendant guilty beyond a reasonable doubt. If
it meets that burden, the Defendant is no longer presumed
to be innocent, and you should find him guilty. On the other
hand, if the Commonwealth does not meet its burden, then
you must find him not guilty.
(N.T. Trial, 7/29/13—Volume 5, at 425-27) (emphasis added).
The record confirms Appellant’s assertion that the court stated, “you
may find the Defendant guilty based on the mere suspicion of guilt.” (Id. at
427). Although the court deviated from the suggested instruction by omitting
the word “not,” the instruction as given must be considered as a whole to
determine whether it fairly conveyed the legal principles at issue. See Reid,
supra. Despite the omission of “not,” the court accurately described the
concept of reasonable doubt prior to the complained-of statement. (See N.T.
Trial at 425-27). The court described reasonable doubt as something that
“would cause a … sensible person to pause or hesitate before acting in a matter
of importance in his or her own affairs.” (Id. at 427). The court elaborated
by explaining that a reasonable doubt is a “real doubt,” and that it cannot be
“imagined” or “manufactured.” (Id.)
The court ended the reasonable doubt instruction by succinctly stating,
“[o]n the other hand, if the Commonwealth does not meet its burden, then
you must find him not guilty.” (Id.) Considering the court’s accurate
descriptions of the law both before and after the omission of the word “not,”
the court “accurately instructed the jury regarding the Commonwealth’s duty
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to prove Appellant guilty beyond a reasonable doubt” despite the “obviously
inadvertent, misstatement.” See Reid, supra at 434.
Regarding the jury instruction as to a defendant’s character, the court
instructed the jury as follows:
The defense offered evidence tending to prove that the
Defendant is a person of good character. I am speaking of
the Defense witnesses who testified that the Defendant has
a good reputation for being law-abiding. The law recognizes
that a person of good character is not likely to commit a
crime which is contrary to that person’s nature. Evidence
of good character may by itself raise a reasonable doubt of
guilt and require a verdict of not guilty. You must weigh
and consider the evidence of good character along with all
of the other evidence in the case.
(N.T. Trial, 7/29/13—Volume 5, at 430-31).
Contrary to Appellant’s assertion, the court provided the correct
standard of proof when it said that evidence of good character may raise a
reasonable doubt as to guilt. See Pa.SSJI (Crim) 3.06. Additionally, the
transcript does not reveal that the instruction deviated from the suggested
standard instruction. Finally, the court echoed the suggested instruction when
it stated, “I am speaking of the Defense witnesses who testified that the
Defendant has a good reputation for being law-abiding.” (Id. at 430). Thus,
this instruction clearly, adequately, and accurately reflected the law. See
Lesko, supra. See also Smith, supra.
Regarding the instruction for the date of the crime, the court stated, in
relevant part, “[y]ou may find that the Defendant is guilty if you are satisfied
that he committed the crimes charged in the indictment even though you are
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not satisfied that he committed them on the particular date alleged in the
indictment.” (N.T. Trial, 7/29/13—Volume 5, at 431-32). Although the court
used its own wording, the instruction accurately conveyed that a defendant
may be found guilty of the crimes charged even if the jury is uncertain about
whether the crimes were committed on the date alleged in the charging
instrument. See Pa.SSJI (Crim) 3.19.
Contrary to Appellant’s final assertion regarding a lack of information
about the witnesses’ prior convictions, one of the victims, S.L., testified that
he had a four-year-old prior conviction for felony burglary. (See N.T. Trial,
7/23/13—Volume 2, at 79). Another victim, D.J., testified that he had multiple
prior convictions, including criminal trespass in 2004, theft in 2006, and bad
checks in 2011. (See N.T. Trial, 7/24/13—Volume 3, at 186). Additionally,
the subsequent instruction for impeachment with prior convictions was nearly
verbatim to the suggested standard instruction. See Pa.SSJI (Crim) 4.08D.
Based upon the foregoing, we agree with the PCRA court’s conclusion
that the entire charge clearly and accurately represented the relevant legal
concepts to the jury. See Geathers, supra. Consequently, there is no
arguable merit to Appellant’s challenge to the jury instructions, and he is not
entitled to relief on his fourth claim. See Smith, supra.
In the fifth claim, Appellant argues that he was illegally designated as a
sexually violent predator (“SVP”). Appellant asserts that the record lacks clear
and convincing evidence that Appellant is likely to reoffend. Appellant insists
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that he has not had any accusations of sexual abuse or criminal activity lodged
against him since the original sentencing hearing in this case, which indicates
that he is not likely to reoffend. Appellant concludes that prior counsel were
ineffective for failing to litigate or object to Appellant’s SVP designation. We
disagree.
Challenges to the sufficiency of the evidence supporting a trial court’s
SVP designation are governed by the following principles:
In order to affirm an SVP designation, we, as a reviewing
court, must be able to conclude that the fact-finder found
clear and convincing evidence that the individual is a[n
SVP]. As with any sufficiency of the evidence claim, we view
all evidence and reasonable inferences therefrom in the light
most favorable to the Commonwealth. We will reverse a
trial court’s determination of SVP status only if the
Commonwealth has not presented clear and convincing
evidence that each element of the statute has been
satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa.Super. 2015),
appeal denied, 633 Pa. 763, 125 A.3d 1199 (2015) (quoting Commonwealth
v. Baker, 24 A.3d 1006, 1033 (Pa.Super. 2011)). “SVP” is defined as:
A person who has been convicted of a sexually violent
offense … and who is determined to be a sexually violent
predator … due to a mental abnormality or personality
disorder that makes the person likely to engage in predatory
sexually violent offenses. In order to show that the offender
suffers from a mental abnormality or personality disorder,
the evidence must show that the defendant suffers from
congenital or acquired condition … that affects the emotional
or volitional capacity of the person in a manner that
predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to
the health and safety of other persons. Moreover, there
must be a showing that the defendant’s conduct was
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predatory. Predatory conduct is defined as an act directed
at a stranger or at a person with whom a relationship has
been instituted, established, maintained, or promoted, in
whole or in part, in order to facilitate or support
victimization. Furthermore, in reaching a determination, we
must examine the driving force behind the commission of
these acts, as well as looking at the offender’s propensity to
re-offend, an opinion about which the Commonwealth’s
expert is required to opine. However, the risk of re-
offending is but one factor to be considered when making
an assessment; it is not an “independent element.”
Commonwealth v. Leatherby, 116 A.3d 73, 84-85 (Pa.Super. 2015)
(quoting Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa.Super.
2013)).
Pennsylvania’s Sexual Offenders Assessment Board (“SOAB”) evaluators
must consider the following factors when performing SVP assessments:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple
victims.
(ii) Whether the individual exceeded the means
necessary to achieve the offense.
(iii) The nature of the sexual contact with the
victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of
unusual cruelty by the individual during the commission
of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
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(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in
available programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) A mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to
the individual’s conduct.
(4) Factors that are supported in sexual offender
assessment field as criteria reasonably related to the risk of
reoffense.
42 Pa.C.S.A. § 9799.58(b).
Instantly, Appellant was found guilty of IDSI, which is a sexually violent
offense. See 42 Pa.C.S.A. §§ 9799.12, 9799.14. In his testimony during the
SVP hearing, Dr. Allan Pass, a SOAB examiner, addressed the factors set forth
in Section 9799.58(b). (See N.T. SVP Hearing, 10/22/13, at 5-12).
Regarding Appellant’s mental abnormality, Dr. Pass testified that Appellant’s
“behavior in the commission of these offenses, the presence of mental
abnormality or personality disorder as defined by the statute specifically
identified as paraphilia not otherwise specified.” (Id. at 9). Dr. Pass noted
that this diagnosis means that an individual engaged in “sexual misconduct
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behavior over a period of time of at least six months which has created
concerns and conflict, social conflict, personal conflict, for himself.” (Id. at
10). Specific to Appellant, Dr. Pass stated that “we have an adult who is
engaged in sexual misconduct with juvenile males over the course of
approximately one year and six months.” (Id.)
Dr. Pass observed that paraphilia is “chronic in nature, so, as a result,
the likelihood of re-offending would be high.” (Id.) Dr. Pass elaborated on
Appellant’s case as follows: “[Appellant] utilized his position of authority as a
police officer over children at school to intimidate, control and sexually exploit
them for his own personal sexually deviant gratification.” (Id. at 11).
Appellant “did engage in acts with the victims with whom a relationship has
been initiated … in order to support or facilitate the victimization.” (Id.) Dr.
Pass opined that “[Appellant] met the classification criteria as outlined within
the statute for predatory conduct,” and he reached this opinion to a reasonable
degree of certainty within the accepted values in his field. (Id. at 11-12).
Relying on Dr. Pass’s opinion, the trial court found that Appellant met the
statutory definition of sexually violent predator. (Id. at 23).
Here, Dr. Pass’s testimony confirmed that Appellant suffers from a
mental abnormality that makes him likely to re-offend. See Leatherby,
supra. Viewing this evidence in the light most favorable to the
Commonwealth, the record reveals that there was clear and convincing
evidence to support Appellant’s classification as an SVP. See Hollingshead,
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supra. Therefore, the PCRA court correctly concluded that this issue was
without arguable merit, and Appellant is not entitled to relief on this claim.
See Smith, supra.
In Appellant’s sixth claim, Appellant argues he was illegally sentenced
under SORNA II. Appellant asserts that his sentencing resulted in a violation
of his due process rights and an ex post facto violation. Appellant insists that
SORNA II was applied retroactively and that it increased the authorized
punitive measures, thereby creating an ex post facto violation. For these
reasons, Appellant concludes all prior counsel were ineffective for failing to
challenge the legality of the sentence under SORNA II.6 We disagree.
In Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017)
(plurality), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 313 (2018),
our Supreme Court held that the registration provisions of SORNA I were
punitive, such that application of those provisions to offenders who committed
their crimes prior to SORNA I’s effective date violated ex post facto principles.
Following Muniz and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.
____________________________________________
6 Appellant baldly asserts a separate claim when he states, “Section 9799.63
violates his constitutional right to reputation protected under Article I, Section
11 of the Pennsylvania Constitution.” (Appellant’s Brief at 40). This single
sentence, however, does not adequately develop an argument advancing
Appellant’s “right to reputation” claim.
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2017) (“Butler I”), rev’d, ___ Pa. ___, 226 A.3d 972 (2020) (“Butler II”),7
the Pennsylvania General Assembly enacted legislation to amend SORNA I.
See Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several
provisions of SORNA I and added several new sections found at 42 Pa.C.S.A.
§§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania
signed new legislation striking the Act 10 amendments and reenacting several
SORNA I provisions, effective June 12, 2018. See Act of June 12, 2018, P.L.
1952, No. 29 (“Act 29”). Through Act 10, as amended in Act 29 (collectively,
“SORNA II”), the General Assembly split SORNA I’s former Subchapter H into
a Revised Subchapter H and Subchapter I.
Subchapter I addresses sexual offenders who committed an offense on
____________________________________________
7 In Butler I, this Court held that the provision of SORNA I requiring a court
to designate a defendant a SVP by clear and convincing evidence violates the
federal and state constitutions because it increases a defendant’s criminal
penalty without the factfinder making necessary factual findings beyond a
reasonable doubt. See Butler I, supra. However, the Pennsylvania Supreme
Court reversed Butler I. See Butler II, supra (holding SVPs are different
from non-SVP SORNA registrants at issue in Muniz due to heightened public
safety concerns based on determination that SVPs have mental abnormality
or personality disorder that makes individual likely to engage in predatory
sexual violent offenses; procedure for designating individuals as SVPs is not
subject to requirements of Apprendi and Alleyne and remains
constitutionally permissible). See also Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding any facts, other than
fact of prior conviction, that subject defendant to additional penalty beyond
statutory maximum must be submitted to jury and proven beyond reasonable
doubt) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013) (holding any fact that increases mandatory minimum
sentence for crime is fact that must be submitted to jury and found beyond
reasonable doubt).
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or after April 22, 1996, but before December 20, 2012; or those who were
required to register under a former sexual offender registration law of this
Commonwealth on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired. See 42 Pa.C.S.A. § 9799.52.
Subchapter I contains less stringent reporting requirements than Revised
Subchapter H, which applies to offenders who committed an offense on or
after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42.
In Commonwealth v. Lacombe, 660 Pa. 568, 234 A.3d 602 (2020),
the Pennsylvania Supreme Court held that Subchapter I of SORNA II is
nonpunitive and does not violate the constitutional prohibition against ex post
facto laws. See id. at 609, 234 A.3d at 626-27. See also Commonwealth
v. Elliott, 249 A.3d 1190, 1194 (Pa.Super. 2021), appeal denied, ___ Pa.
___, 263 A.3d 241 (2021) (rejecting ex post facto challenge to lifetime
registration for rape conviction where appellant was subject to Subchapter I
reporting requirements).
Instantly, Appellant committed his sex offenses between 1998 and
1999, and he is subject to registration and reporting requirements under
Subchapter I. See 42 Pa.C.S.A. § 9799.52. Subchapter I requires Appellant
to report for life based on his IDSI conviction. See 42 Pa.C.S.A. §
9799.55(b)(2)(i)(A). Under Lacombe and its progeny, Appellant’s ex post
facto challenge fails. See Lacombe, supra; Elliott, supra. Based upon the
foregoing, this claim is without arguable merit, and the PCRA court properly
- 29 -
J-S25036-22
denied relief. See Smith, supra.
In his final issue, Appellant references his previous arguments and
insists that the PCRA court should have granted relief under a theory of
“cumulative ineffective assistance.” Appellant also raises several “sub-
claims,” ostensibly to support his argument that all prior counsel were
ineffective on multiple bases, thereby permitting this Court to assess the
cumulative impact. Based upon this cumulative impact, Appellant concludes
that this Court must vacate all of his sentences and order a new trial. We
disagree.
Preliminarily, matters that are not raised in the Rule 1925(b) concise
statement of errors complained of are waived on appeal. Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa.Super. 2001). Moreover, “[t]he failure to
develop an adequate argument in an appellate brief may result in waiver of
the claim under Pa.R.A.P. 2119.” Commonwealth v. Freeman, 128 A.3d
1231, 1249 (Pa.Super. 2015). Finally, “no number of failed ineffectiveness
claims may collectively warrant relief if they fail to do so individually. When
the failure of individual claims is based upon a lack of prejudice, however,
then the cumulative prejudice from those claims may properly be assessed.”
Commonwealth v. Elliott, 622 Pa. 236, 294, 80 A.3d 415, 450 (2013), cert.
denied, 574 U.S. 828, 135 S.Ct. 50, 190 L.Ed.2d 54 (2014) (internal citations
omitted).
Here, Appellant failed to raise his “sub-claims” in his Rule 1925(b)
- 30 -
J-S25036-22
statement, and those arguments can be waived on this basis alone. See
Dowling, supra. Further, with respect to these “sub-claims,” the argument
section of Appellant’s brief focuses on the arguable merit prong of the test for
ineffective assistance while providing mere cursory analysis of the rational
basis and prejudice prongs. Thus, the failure of the “sub-claims” to develop
a meaningful argument for all three parts of the test for ineffectiveness
provides an additional basis for waiver. See Freeman, supra. To the extent
Appellant also seeks to assert a claim of cumulative prejudice, here, we have
not rejected the aforementioned claims of ineffectiveness based upon the
prejudice prong of the test for ineffectiveness. Thus, there can be no
aggregation of prejudice from multiple ineffectiveness claims, and Appellant’s
claim fails. See Elliott, supra. Accordingly, we affirm the PCRA court’s
decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 31 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483498/ | [Cite as Disciplinary Counsel v. Hoover, ___ Ohio St.3d ___, 2022-Ohio-4026.]
DISCIPLINARY COUNSEL v. HOOVER.
[Cite as Disciplinary Counsel v. Hoover, ___ Ohio St.3d ___, 2022-Ohio-4026.]
(No. 2021-1517—Submitted November 10, 2022—Decided November 14, 2022.)
ON APPLICATION FOR REINSTATEMENT.
____________________
{¶ 1} This cause came on for further consideration upon the filing of an
application for reinstatement by respondent, Robert T. Hoover, Attorney
Registration No. 0039610, last known address in Portsmouth, Ohio.
{¶ 2} The court coming now to consider its order of March 17, 2022,
wherein the court, pursuant to Gov.Bar R. V(12)(A)(3), suspended respondent from
the practice of law for a period of two years with credit for the time served under
his October 5, 2020 interim felony suspension and with conditions for
reinstatement, finds that respondent has complied with that order and with the
provisions of Gov.Bar R. V(24).
{¶ 3} Therefore, it is ordered by this court that respondent is reinstated to
the practice of law in the state of Ohio.
{¶ 4} It is further ordered that the clerk of this court issue certified copies
of this order as provided for in Gov.Bar R. V(17)(E)(1) and that publication be
made as provided for in Gov.Bar R. V(17)(E)(2).
{¶ 5} For earlier case, see Disciplinary Counsel v. Hoover, 167 Ohio St.3d
69, 2022-Ohio-769, 188 N.E.3d. 1076.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________ | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483510/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
A.C., the mother,
Appellant,
v.
DEPARTMENT OF CHILDREN & FAMILIES,
Appellee.
No. 4D22-1310
[November 14, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Kathleen J. Kroll, Judge; L.T. Case No. 50-2020-DP-
000123-XXXX-MB.
A.C., the mother, West Palm Beach, pro se.
Andrew Feigenbaum of Children’s Legal Services, West Palm Beach, for
appellee.
PER CURIAM.
Affirmed.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483507/ | Case: 22-1909 Document: 21 Page: 1 Filed: 11/14/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYNTHIA A. TORREZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1909
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7646, Judge Scott Laurer.
______________________
Decided: November 14, 2022
______________________
CYNTHIA A. TORREZ, San Antonio, TX, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Case: 22-1909 Document: 21 Page: 2 Filed: 11/14/2022
2 TORREZ v. MCDONOUGH
Before REYNA, SCHALL, and CHEN, Circuit Judges.
PER CURIAM.
Mrs. Torrez appeals a decision of the U.S. Court of Ap-
peals for Veterans Claims that affirmed in part and va-
cated in part the Board of Veterans Appeals’ October 6,
2020 determination on her late husband’s claims for cer-
tain veteran’s disability benefits. For the following reasons,
we affirm the judgment of the U.S. Court of Appeals for
Veterans Claims that affirms in part the Board’s determi-
nation and we decline to review the court’s non-final order
to vacate in part and remand.
BACKGROUND
Mr. Torrez served on active duty in the Air Force from
June 1979 to May 1995. GApp’x 16. 1 One month after his
separation from the Air Force, he sought service connection
claims for various disabilities—including right and left an-
kle disabilities, bilateral hearing loss, a heart condition, a
knee condition, tonsillitis, and seborrheic dermatitis.
Resp. Br. 2–3. In September 1995, the Veterans Affairs
(“VA”) regional office (“RO”) granted service connection
claims with a non-compensable rating for a right ankle con-
dition and bilateral knee tendinitis. Id.; GApp’x 24–26.
The RO, however, denied service connection claims for: bi-
lateral hearing loss for not being a present disability, tin-
nitus for missing an in-service connection, and a heart
condition for being congenital. Id. at 3; GApp’x 18–19. The
RO also denied service connection claims for an abnormal
EKG, left ankle injury, tonsillitis, and seborrheic dermati-
tis as lacking evidence of current disability. Resp. Br. 3.
Mr. Torrez did not appeal the decision and it became final.
1 “GApp’x” refers to the appendix attached to the
Government’s Response Brief.
Case: 22-1909 Document: 21 Page: 3 Filed: 11/14/2022
TORREZ v. MCDONOUGH 3
In January 2011, Mr. Torrez sought service connection
claims for lung cancer, lumbar spine disability, hyperten-
sion, liver disability, peripheral neuropathy, gastrointesti-
nal disability, mediastinal lymphadenopathy, disability of
the blood-forming organs, reticuloendothelial disability,
agranulocytosis, nasal disability, epistaxis, and hyper-
lipidemia (the “2011 claims”). Resp. Br. 3; GApp’x 20–21.
He also attempted to reopen the denied claims and increase
the disability rating for the granted service-connection con-
ditions. Resp. Br. 3; GApp’x 18–19, 24. In April 2011, the
RO requested additional information from Mr. Torrez.
Resp. Br. 4. Mr. Torrez then underwent a knee and ankle
examination and hearing loss examination by the VA
where the examiner reported service-connected bilateral
tinnitus. Resp. Br. 4; GApp’x 19, 29.
Mr. Torrez died in July 2011 from Stage 4 metastatic
lung cancer with acute hypoxic respiratory failure. GApp’x
30. Mrs. Torrez sought accrued benefits and became the
substitute appellant. Resp. Br. 4; GApp’x 16–17. Shortly
thereafter, the RO had granted service connection claims
for tinnitus with a 10% rating and a right ankle scar with
a non-compensable rating; retained the non-compensable
ratings for right ankle arthritis, hearing loss, and bilateral
knee tendinitis (collectively, the “granted claims”); denied
reopening previously denied claims; denied over a dozen
other claims; and denied service connection claims for Mr.
Torrez’s death. Resp. Br. 4–5; GApp’x 16–17, 24–26.
Mrs. Torrez filed a notice of disagreement with the
April 2013 rating decision, alleging clear and unmistakable
error (“CUE”). Resp. Br. at 5. In June 2015, the Board of
Veterans Appeals (“Board”) found CUE in the September
1995 rating decision and granted service connection claims
for left ear hearing loss but found no CUE in the decision
for the right ear hearing loss, tinnitus, left ankle injury,
tonsillitis, seborrheic dermatitis, systolic heart murmur,
and sinus bradycardia with primacy AV block. Resp. Br. 5;
Case: 22-1909 Document: 21 Page: 4 Filed: 11/14/2022
4 TORREZ v. MCDONOUGH
GApp’x 17–19. The Board remanded the remaining claims
on appeal for further development of the record. Id.
The case returned to the Board and, in May 2018, the
Board again remanded the claims on appeal because the
agency of original jurisdiction (“AOJ”) failed to comply with
the Board’s June 2015 instructions. Resp. Br. 5; GApp’x 8.
The Board’s 2018 decision, however, omitted the allergic
rhinitis claim without explanation. GApp’x 8. The AOJ
then issued a supplemental statement of the case (“SSOC”)
in March 2020 that, too, failed to address the allergic rhi-
nitis claim. Id. That month, a VA medical expert offered
several opinions on Mr. Torrez’s conditions, ultimately
finding that the diagnoses were “less likely than not” re-
lated to any in-service illness and that his service-con-
nected conditions of the 2011 claims and psoriasis,
seborrheic dermatitis, liver condition did not substantially
contribute to his death. Resp. Br. 6; GApp’x 22, 30.
The Board then issued a decision on October 6, 2020,
denying Mrs. Torrez’s service connection claims for: heart
disability, a left ankle disability, tonsillitis, seborrheic der-
matitis, right ear hearing loss, lung cancer, a lumbar spine
disability, peripheral neuropathy, hypertension, “a liver
disability, to include lesions,” a gastrointestinal disability,
mediastinal lymphadenopathy, a “blood forming organ”
disability, a reticuloendothelial disability, agranulocytosis,
a nasal disability, to include epistaxis, a disability mani-
fested by hyperlipidemia, allergic rhinitis, and the cause of
the veteran’s death. GApp’x 1. Finally, the Board denied
Mrs. Torrez’s request to increase rating claims for the
granted claims. Id.
Mrs. Torrez appealed the Board’s decision to the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”).
Before the Veterans Court, the Secretary made several con-
cessions. The Secretary conceded that the Board did not
address materially favorable evidence and failed to support
both its refusal to open the heart disability claim and its
Case: 22-1909 Document: 21 Page: 5 Filed: 11/14/2022
TORREZ v. MCDONOUGH 5
denial of service connection claims for the 2011 claims and
allergic rhinitis. Resp. Br. 7; GApp’x 2.
The court accepted these concessions and remanded
those claims to the Board, noting that the Board should
consider whether the other disabilities were compensable
medically unexplained chronic illnesses under 38 C.F.R. §
3.317. GApp’x 2. The court also found that the AOJ failed
to issue a SSOC with respect to allergic rhinitis and or-
dered the Board to “remand that claim before readjudicat-
ing it.” Id. Finally, because Mrs. Torrez’s service
connection claim for Mr. Torrez’s cause of death is inextri-
cably intertwined with the other claims, that was re-
manded as well. Id. The court affirmed the remainder of
the Board’s decision—the denial of the request to reopen
service connection claims for a left ankle injury, tonsillitis,
seborrheic dermatitis, and right ear hearing loss, and in-
creased rating claims for the granted claims. Id. at 2–3.
Mrs. Torrez filed this appeal. We have jurisdiction under
38 U.S.C. § 7292.
STANDARD OF REVIEW
Our authority over Veterans Court decisions is limited.
We review the Veterans Court’s legal determinations de
novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed.
Cir. 2014). We do not have authority to engage in fact find-
ing. 38 U.S.C. § 7292(d)(1). We must affirm the Veterans
Court unless the decision is “(A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (B) contrary to constitutional right, power, privilege,
or immunity; (C) in excess of statutory jurisdiction, author-
ity, or limitations, or in violation of a statutory right; or (D)
without observance of procedure required by law.” Id.
DISCUSSION
On appeal, Mrs. Torrez argues for a higher disability
rating for several conditions and asserts that the “VA will
pay 100% compensation.” Reply Br. 10–11. Mrs. Torrez
Case: 22-1909 Document: 21 Page: 6 Filed: 11/14/2022
6 TORREZ v. MCDONOUGH
next contends that because she is “unrepresented,” she did
not receive impartial review. Id. at 15. Finally, she argues
that the RO’s September 1995 rating decision did not com-
ply with 38 C.F.R. §§ 3.159(a)(1), 3.309(a), 3.317, “relevant
38 CFR Part 4 Rating Schedule,” and “Presumptive Service
Connection.” 2 Id. at 2–5, 14.
We begin with several portions of Mrs. Torrez’s appeal
that pertain to the assigned disability rating and to the de-
nial to reopen several claims. Mrs. Torrez only challenges
the factual findings in these issues. This court, however,
does not have jurisdiction over such factual findings or ap-
plications of law to fact. 38 U.S.C. § 7292(d)(2); see also
Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004)
(“[W]hile [this Court] can review questions of law, [it] can-
not review applications of law to fact.”); Beasley v. Shinseki,
709 F.3d 1154, 1158 (Fed. Cir. 2013); McLean v. Wilkie, 780
F. App’x 892, 895 (Fed. Cir. 2019).
Accordingly, we affirm the Veterans Court’s decision to
affirm the Board’s denial of Mrs. Torrez’s request for in-
creased rating claims for service connection claims for bi-
lateral knee tendinitis, right ankle arthritis, right ankle
scar, and tinnitus. Similarly, we affirm the Veterans
Court’s affirmance of the Board’s decision to deny Mrs. Tor-
rez’s request to reopen service connection claims for left an-
kle disability, tonsillitis, seborrheic dermatitis, right ear
2 38 C.F.R. § 3.159(a)(1) relates to the definition of
competent medical evidence; § 3.309(a) lists a series of
chronic diseases subject to the rebuttable presumption of
service connection “although not otherwise established as
incurred in or aggravated by service”; and § 3.317 relates
to compensation for certain disabilities such as undiag-
nosed or unexplained illnesses occurring in Persian Gulf
veterans.
Case: 22-1909 Document: 21 Page: 7 Filed: 11/14/2022
TORREZ v. MCDONOUGH 7
hearing loss, and the court’s decision to deny increased rat-
ing claims for the granted claims.
Mrs. Torrez argues, for the first time on appeal, that
the Veterans Court did not provide impartial review of her
claims. As a general rule, this court will not consider an
argument raised for the first time on appeal. See Boggs v.
West, 188 F.3d 1335, 1337–38 (Fed. Cir. 1999). This rule
ensures that the parties and tribunal have an opportunity
to provide or respond to all the evidence and relevant is-
sues, as well as avoid unfair surprise on appeal. Id. This
court has held that it has discretion to entertain arguments
for the first time on appeal, and we do so in this case. See
Mobility Workx, LLC v. Unified Patents, LLC, 15 F.4th
1146, 1151 (Fed. Cir. 2021) (citing Singleton v. Wulff, 428
U.S. 106, 121 (1976) (“The matter of what questions may
be taken up and resolved for the first time on appeal is one
left primarily to the discretion of the courts of appeals, to
be exercised on the facts of individual cases.”). We conclude
this argument lacks merit. The Veterans Court’s opinion
specifically acknowledged that self-represented appellant
arguments are to be construed liberally. It found, however,
that Mrs. Torrez’s evidence neither sufficiently supported
her claim for several disabilities for VA purposes nor satis-
fied her burden to prove prejudicial error. GApp’x 5 (citing
De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992)). As we
understand Mrs. Torrez’s informal brief, she argues a due
process violation. Mrs. Torrez provides no further detail or
support for her claim other than restating her disagree-
ment with the Board’s decision. Our court lacks jurisdic-
tion over assertions that are “constitutional in name only.”
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). Ac-
cordingly, we dismiss this portion of Mrs. Torrez’s appeal.
Finally, Mrs. Torrez argues that the Secretary and
Board erred by failing to comply with various VA regula-
tions, including 38 C.F.R. §§ 3.309(a), 3.159(a)(1), 3.317,
the Part 4 Rating Schedule, and “presumptive service con-
nection.” This argument is similar to one she made to the
Case: 22-1909 Document: 21 Page: 8 Filed: 11/14/2022
8 TORREZ v. MCDONOUGH
Board, where she contended that she was entitled to a pre-
sumptive service connection under §§ 3.307 and 3.309. The
Board, however, found no evidence to support diagnosis or
treatment for the conditions within a year of active duty
service. GApp’x 21. The Board also reviewed her claims
for increased disability rating under 38 C.F.R. Part 4 before
denying the claims. Id. at 23–29. After reviewing the
Board’s decision, the Veterans Court vacated and re-
manded several Board conclusions. The Veterans Court re-
manded Mr. Torrez’s heart disability claim and potentially
medically unexplained illness because the Board failed to
comply with § 3.317. GApp’x 2. The Veterans Court va-
cated in part the Board’s October 2020 decision that denied
service connection claims for thirteen conditions and de-
nied a request to reopen service connection claims for a
heart disability, remanding for further development and
re-adjudication. GApp’x 10–11. The Veterans Court also
remanded the claim for allergic rhinitis, ordering the AOJ
to issue a SSOC. Id.
This court generally does not review non-final orders of
the Veterans Court, including remand orders. Williams v.
Principi, 275 F.3d 1361, 1364–65 (Fed. Cir. 2002); Winn v.
Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Here, there is in-
sufficient finality for purposes of our review over the Vet-
erans Court’s decision to remand several service-
connection claims for further adjudication and develop-
ment. The Veterans Court has the authority to remand for
clarification of the facts. Id. Accordingly, we decline to re-
view the remanded service connection claims that already
address any potential error of law.
CONCLUSION
We affirm the Veterans Court’s affirmance of the
Board’s decision to deny appellant’s request to reopen ser-
vice connection claims for left ankle disability, tonsillitis,
seborrheic dermatitis, right ear hearing loss, and deny the
increased rating claims for bilateral knee tendinitis, right
Case: 22-1909 Document: 21 Page: 9 Filed: 11/14/2022
TORREZ v. MCDONOUGH 9
ankle arthritis, right ankle scar, and tinnitus. For the re-
maining arguments, we lack jurisdiction.
AFFIRMED
COSTS
No costs. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483508/ | Case: 21-1321 Document: 88 Page: 1 Filed: 11/14/2022
United States Court of Appeals
for the Federal Circuit
______________________
AMERICAN NATIONAL MANUFACTURING INC.,
Appellant
v.
SLEEP NUMBER CORPORATION, FKA SELECT
COMFORT CORPORATION,
Cross-Appellant
KATHERINE K. VIDAL, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2021-1321, 2021-1323, 2021-1379, 2021-1382
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2019-
00497, IPR2019-00500.
______________________
Decided: November 14, 2022
______________________
KYLE L. ELLIOTT, Spencer Fane, LLP, Kansas City,
MO, argued for appellant. Also represented by BRIAN T.
BEAR, KEVIN S. TUTTLE; ANDY LESTER, Oklahoma City, OK.
RUFFIN B. CORDELL, Fish & Richardson PC,
Case: 21-1321 Document: 88 Page: 2 Filed: 11/14/2022
2 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
Washington, DC, argued for cross-appellant. Also repre-
sented by ROBERT COURTNEY, MATHIAS WETZSTEIN
SAMUEL, Minneapolis, MN; ANDREW S. HANSEN, ELIZABETH
A. PATTON, LUKAS D. TOFT, Fox Rothschild LLP, Minneap-
olis, MN; STEVEN A. MOORE, Moore IP Law PC, San Diego,
CA; KECIA JANNELL REYNOLDS, Paul Hastings LLP, Wash-
ington, DC.
SARAH E. CRAVEN, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
intervenor. Also represented by THOMAS W. KRAUSE,
FARHEENA YASMEEN RASHEED; MEREDITH HOPE
SCHOENFELD.
______________________
Before STOLL, SCHALL, and CUNNINGHAM, Circuit Judges.
STOLL, Circuit Judge.
American National Manufacturing Inc. and Sleep
Number Corp. each appeals the Patent Trial and Appeal
Board’s final written decisions in two inter partes reviews.
The Board issued mixed decisions in those proceedings, de-
termining that some, but not all, of the challenged claims
were not unpatentable. These appeals and cross-appeals
involve two patents and numerous issues, including two on
which the U.S. Patent and Trademark Office has inter-
vened.
Our opinion focuses on four of these is-
sues: (1) whether the Board erred in permitting the patent
owner to present proposed amended claims that both re-
sponded to a ground of unpatentability and made other
wording changes unrelated to the IPR proceedings;
(2) whether those proposed amended claims were not ena-
bled because of an alleged error in the specification;
(3) whether those proposed amended claims should have
been rejected for allegedly raising an inventorship issue;
and (4) whether the Board inappropriately considered the
Case: 21-1321 Document: 88 Page: 3 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 3
petitioner’s sales data in its secondary considerations anal-
ysis. For the below reasons, we affirm. Although we have
thoroughly considered the other issues raised by both par-
ties, we affirm the Board’s determinations regarding those
issues without significant discussion.
BACKGROUND
I
Sleep Number owns U.S. Patent Nos. 8,769,747 and
9,737,154. Both patents describe systems and methods
that purport to adjust the pressure in an air mattress “in
less time and with greater accuracy” than previously
known. ’747 patent col. 1 ll. 6–10. 1 Conventional air bed
systems have a control panel that allows a user to select a
desired inflation setting for each air chamber in the air bed
for optimal comfort and to change the inflation setting at
any time, allowing for changes in the firmness of the bed.
Id. at col. 1 ll. 13–25. The air chambers are in fluid com-
munication with an air pump manifold. Id. at col. 3
ll. 10–19, 46–51. The patents disclose adjusting pressure
in an air bed “in less time and with greater accuracy” by
measuring the air pressure inside the valve enclosure as-
sembly instead of in the air chambers themselves, thus
“eliminating the need to turn off the pump in order to ob-
tain a substantially accurate approximation of the chamber
pressure.” Id. at col. 1 ll. 6–10, col. 4 ll. 53–59.
As the patents’ shared specification explains, the pres-
sure control system computes and iteratively refines what
the patents call “pressure adjustment factors” or “offsets”—
the difference between the pressure in the valve enclosure
assembly and the pressure in the bed’s air chambers. Id. at
1 The ’154 patent is a continuation of the application
that matured into the ’747 patent. Because the patents
share a common specification, we refer only to the ’747 pa-
tent specification unless otherwise specified.
Case: 21-1321 Document: 88 Page: 4 Filed: 11/14/2022
4 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
col. 2 ll. 26–31, col. 5 l. 9–col. 6 l. 7. The system then uses
the pressure adjustment factor to determine what the “tar-
get pressure” in the valve enclosure assembly must be for
the air chamber to reach the user’s desired pressure set-
point. Id. at col. 7 l. 51–col. 8 l. 59. The system adjusts the
valve enclosure assembly pressure until it meets the target
pressure, then re-tests the pressure in the air chamber.
Id. at col. 8 l. 63–col. 9 l. 43. If the air chamber has still not
reached the desired pressure setpoint, the system revises
its pressure adjustment factor, using what the patents call
an “adjustment factor error,” and tries again. Id. at col. 2
ll. 28–31, col. 9 l. 44–col. 10 l. 51; see also id. Fig. 6 (de-
scribing the process in flow diagram form). This process
repeats until the air chamber reaches the desired pressure.
The specification further explains that the process for
determining the pressure adjustment factor varies depend-
ing on whether the system is inflating or deflating the air
chamber. To differentiate between the two processes, the
patents describe using an additive offset (i.e., an offset that
is added to the measured valve enclosure pressure) for in-
flation and a multiplicative offset (i.e., an offset by which
the measured valve enclosure pressure is multiplied) for
deflation. Id. at col. 8 ll. 14–59, col. 9 ll. 51–61.
Claim 1 of the ’747 patent recites:
1. A method for adjusting pressure within an air
bed comprising:
providing or receiving an air bed, the air bed in-
cluding an air chamber and a pump having a pump
housing;
selecting a desired pressure setpoint for the air
chamber;
determining an initial pressure within the pump
housing;
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AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 5
calculating a pressure target based upon the de-
sired pressure setpoint and a pressure adjustment
factor, wherein an inflate pressure adjustment fac-
tor is used to calculate the pressure target when
the initial pressure within the pump housing is less
than the desired pressure setpoint, and wherein a
deflate pressure adjustment factor is used to calcu-
late the pressure target when the initial pressure
within the pump housing is greater than the de-
sired pressure setpoint;
adjusting pressure within the air chamber until a
sensed pressure within the pump housing is sub-
stantially equal to the calculated pressure target;
determining an actual chamber pressure within
the air chamber;
comparing the actual chamber pressure to the de-
sired pressure setpoint to determine the adjust-
ment factor error; and
modifying the pressure adjustment factor based
upon the adjustment factor error.
Id. at col. 12 ll. 43–67. Claim 1 of the ’154 patent is similar.
See ’154 patent col. 13 ll. 11–29. Certain dependent claims
of both patents require that the pressure adjustment factor
be a multiplicative pressure adjustment factor. See
’747 patent col. 13 ll. 8–13, col. 14 ll. 1–3 (claims 5, 6,
and 13); ’154 patent col. 13 ll. 39–44, col. 14 ll. 46–49
(claims 5, 6, and 15). Both patents also contain an inde-
pendent claim requiring, among other things, a “pressure
adjustment system for an air bed comprising . . . a pressure
sensing means adapted to monitor pressure within the
pump manifold.” ’747 patent col. 14 ll. 9–43 (claim 16);
’154 patent col. 15 l. 16–col. 16 l. 18 (claim 20).
Case: 21-1321 Document: 88 Page: 6 Filed: 11/14/2022
6 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
II
American National filed petitions for inter partes re-
view challenging many claims of the ’747 and ’154 patents.
In its petitions, American National asserted that most of
the challenged claims would have been obvious over Gifft 2
in view of Mittal 3 and Pillsbury, 4 and that six of the de-
pendent claims would have been obvious in further view of
Ebel. 5
Gifft is owned by Sleep Number and incorporated by
reference in the patents-in-suit. Gifft discloses an air bed
system including a sealed valve enclosure assembly with
an air pump for inflating and deflating air chambers to a
desired pressure. Gifft col. 2 l. 56–col. 3 l. 2. Similar to the
patents-in-suit, Gifft discloses monitoring the pressure
within the valve enclosure instead of the air chamber itself
while the air pump is in operation, which the system
equates as being the actual pressure in the air chamber.
Id. at col. 9 ll. 57–67 (claim 9); ’747 patent col. 1 ll. 48–64
(describing prior art).
Mittal describes a system for quickly reaching a de-
sired air pressure in vehicle tires. Mittal Abstract, col. 8
l. 65–col. 9 l. 9. Mittal discloses that there is often a lag
between the time tire pressure is monitored and the time
the pressure adjustment cycle ends; that is, the tire may
reach the desired pressure before the pressure adjustment
system detects it has done so. Id. at col. 2 ll. 32–47. To
resolve this problem, Mittal’s system adjusts the desired
pressure with additive offsets to compensate for these lags
and to avoid “wasteful repeated pressure adjustment cy-
cles.” Id. at col. 2 ll. 3–9, 16–26, col. 4 ll. 44–49.
2 U.S. Patent No. 5,904,172.
3 U.S. Patent No. 5,629,873.
4 U.S. Patent No. 5,277,187.
5 U.S. Patent Application Pub. No. 2007/0000559.
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AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 7
Pillsbury is directed to an automatic blood pressure
cuff that measures a user’s blood pressure and employs a
filter to “prevent dust, dirt, and other debris from clogging”
the cuff’s air exit valve. Pillsbury Abstract, col. 8 ll. 25–63.
The system detects and records the pressure in the cuff
along with other data (including “oscillometric pulse am-
plitudes” recorded at each cuff pressure as the cuff pressure
reduces to zero) to “determine relatively accurately the
user’s blood pressure.” Id. at col. 1 ll. 39–48. A data pro-
cessor adjusts the cuff pressure measurement to compen-
sate for any resistance added by the filter. Specifically, by
using an additive offset, Pillsbury explains, its blood pres-
sure cuff can provide an accurate measure of the air pres-
sure inside the cuff while compensating for the added air
resistance caused by build-up on the filter. Id. at col. 2
ll. 40–54, col. 8 ll. 25–63.
Ebel discloses a method for measuring the pressure in-
side an air bag while filling or emptying the air bag. Ebel
¶¶ 1, 7. Ebel explains that, because of what it calls “con-
duit effects,” a pressure sensor cannot accurately measure
the actual pressure in the air bag during inflation or defla-
tion. Id. ¶ 3. Ebel explains that it is “only in the idle state,
i.e., after a certain slow-down period[,] that the actual bag
pressure can be determined by the pressure sensor.” Id.
To compensate for these effects during inflation and defla-
tion, Ebel proposes mathematical equations for calculating
the actual pressure inside the air bag. Those equations use
the air bag pressure measured by the pressure sensor as
one input parameter and include both additive and multi-
plicative components. Id. ¶¶ 4–7, 28–32.
Before the Board, American National asserted that
most of the challenged claims would have been obvious to
the ordinarily skilled artisan over a combination of Gifft’s
air bed system, with its measurement of the valve assem-
bly pressure to approximate the air chamber pressure, and
Mittal’s and Pillsbury’s use of additive offsets, or pressure
adjustment factors. For the six dependent claims requiring
Case: 21-1321 Document: 88 Page: 8 Filed: 11/14/2022
8 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
a multiplicative pressure adjustment factor, American Na-
tional argued these would have been obvious over a combi-
nation of those three references as well as Ebel’s use of
multiplicative offsets.
In opposition, Sleep Number argued that: (1) evidence
of industry praise and commercial success strongly sup-
ported that the claims would not have been obvious;
(2) American National had not adequately explained how
and why the skilled artisan would have combined the as-
serted references to meet the claim limitations; and
(3) American National had not proposed a construction for
the means-plus-function term “pressure sensing means” in
violation of the Board’s rules.
For industry praise, Sleep Number relied on two Amer-
ican National internal business documents that Sleep
Number asserted praised Sleep Number’s patents. The
Board determined that one of these documents weighed
“slightly in favor” of industry praise but that the other did
not.
For commercial success, Sleep Number relied on the
commercial success not of its own products, but of Ameri-
can National’s products—specifically, the products that
Sleep Number had accused of infringement in a parallel
district court proceeding. See J.A. 3647–49; see also First
Am. Compl., Sleep No. Corp. v. Am. Nat’l Mfg., Inc.,
No. 5:18-cv-00357 (C.D. Cal. Mar. 23, 2018). To support its
arguments, Sleep Number sought discovery before the
Board on American National’s sales of products sold with
and without certain versions of source code that allegedly
infringed claim 1. See J.A. 3004–05, 3050–55. The Board
granted this motion, explaining that the evidence could
help illuminate issues of nonobviousness, assuming Sleep
Number could show a nexus between the relevant Ameri-
can National products and the challenged patents.
J.A. 3356–59. In its order, the Board noted that Sleep
Number was not “seeking any admission of infringement,”
Case: 21-1321 Document: 88 Page: 9 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 9
because its request simply sought a list of “products that
include the allegedly infringing source code[] and those
that do not.” J.A. 3359.
In its Patent Owner Response, Sleep Number asserted
American National products were coextensive with the
challenged claims based in part on the testimony of Sleep
Number’s experts, Drs. John Abraham and George Ed-
wards. J.A. 3648; see also J.A. 4634–35 ¶ 29 (Dr. Abraham
testifying that American National’s products “read on” the
challenged claims); J.A. 4725–26 ¶ 41 (Dr. Edwards testi-
fying the same).
Based in part on this expert testimony, the Board
found that Sleep Number had demonstrated a nexus be-
tween American National’s increased sales numbers and
its adoption of technology that “reads on” the challenged
patents. 6 See Am. Nat’l Mfg. Inc. v. Sleep No. Corp.,
No. IPR2019-00497, Paper 114, at 91–92 (P.T.A.B.
Sept. 30, 2020) (’747 Decision); Am. Nat’l Mfg. Inc. v. Sleep
No. Corp., No. IPR2019-00500, Paper 114, at 92–93
(P.T.A.B. Sept. 30, 2020) (’154 Decision). 7 Nevertheless,
the Board determined that the evidence did not show that
6 The Board’s original final written decisions stated
that American National “does not refute the testimonies of
Dr. Abraham and Dr. Edwards that” certain versions of the
source code “fall within the claims of the [challenged] pa-
tent[s] such that [American National]’s products using
these versions infringe the claims.” ’747 Decision at 91
(emphasis added); ’154 Decision at 92. After American Na-
tional sought rehearing, the Board modified its final writ-
ten decisions, changing the word “infringe” to “read on.”
J.A. 143–44, 294–95.
7 Although the Board issued separate final written
decisions in these proceedings, the decisions are largely
identical for many of the issues on appeal. In this opinion,
we cite primarily to the ’747 Decision.
Case: 21-1321 Document: 88 Page: 10 Filed: 11/14/2022
10 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
American National’s products “were commercially success-
ful because of the merits of the claimed invention,” and not,
for example, because of increased advertising, consumer
recognition, or lowered price. ’747 Decision at 94. Thus,
the Board gave Sleep Number’s evidence of commercial
success “minimal probative weight.” Id.
The Board ultimately resolved the proceedings with
split decisions. For the six dependent claims requiring a
multiplicative pressure adjustment offset, the Board deter-
mined that American National had failed to establish un-
patentability. See ’747 Decision at 139–40; ’154 Decision at
145–50. Although the Board found that Ebel taught the
use of multiplicative offsets, it also found that American
National had not adequately shown why the skilled artisan
would have applied Ebel’s multiplicative factors to the
pressure targeting methods disclosed in Gifft as modified
by Mittal and Pillsbury. See ’747 Decision at 81–84. Be-
cause American National had not sufficiently articulated
why the skilled artisan would have combined Ebel with the
remaining references, the Board found American National
had not established that the claims requiring multiplica-
tive pressure adjustment factors were unpatentable as ob-
vious.
For the remaining claims, the Board found that Amer-
ican National had proven they were unpatentable as obvi-
ous. See id. at 140. For these claims, the Board credited
American National’s expert, who testified that the ordinar-
ily skilled artisan, presented with Gifft’s air bed pressure
adjustment system, would have understood that by “im-
proving the accuracy of [Gifft’s] pressure adjust cycles on
an ongoing basis, the number of pressure adjustments nec-
essary to reach a target pressure could be reduced.” See
id. at 45 (citing J.A. 1148 ¶ 101). The Board rejected Sleep
Number’s assertion that American National had failed to
explain how or why a skilled artisan would combine the as-
serted references and instead found that the skilled artisan
would have a motivation to increase both speed and
Case: 21-1321 Document: 88 Page: 11 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 11
accuracy in Gifft’s system—and would have looked to tech-
niques disclosed in other pneumatic systems references,
such as Mittal and Pillsbury, to achieve these goals. See
id. at 50–51. The Board therefore found that all claims not
requiring a multiplicative pressure adjustment offset were
unpatentable as obvious. See id. at 140.
Finally, the Board rejected Sleep Number’s assertion
that American National violated 37 C.F.R. § 42.104(b)(3),
governing the contents of petitions, because American Na-
tional’s petitions did not provide a sufficient construction
for the means-plus-function term “pressure sensing
means.” Although the Board acknowledged in both pro-
ceedings that American National’s petitions did not “explic-
itly state” how the means-plus-function term should be
construed, it nonetheless determined that the petitions
“fairly me[t] the requirements of” the regulation. ’747 De-
cision at 24–25; ’154 Decision at 23–25.
In each proceeding, Sleep Number filed a motion to
amend contingent on a finding that the challenged claims
were unpatentable. ’747 Decision at 104. Each of the pro-
posed claims added the requirement of a multiplicative
pressure adjustment factor, id. at 105–07, matching the
claims that the Board had determined were not proven un-
patentable. The proposed amended claims also included
other non-substantive amendments, described by Sleep
Number as made “for consistency with terms used in the
industry and in related patents.” J.A. 3470; see also
J.A. 3473–77. These non-substantive amendments in-
cluded, for example, changing the term “pump housing” to
“valve enclosure” and the term “chamber” to “bladder.”
J.A. 3474, 3504–05.
American National challenged the proposed amended
claims. Among other things, it argued that: the proposed
amendments did not respond to a ground of unpatentabil-
ity and thus were legally inappropriate; the relevant spec-
ification contained an error that rendered the claims
Case: 21-1321 Document: 88 Page: 12 Filed: 11/14/2022
12 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
nonenabled; and the proposed amended claims lacked writ-
ten description support and were indefinite.
The Board rejected American National’s challenges to
the proposed amended claims, finding that the amend-
ments—which added the substantive limitation requiring
a multiplicative pressure adjustment factor—responded to
a ground of unpatentability in the proceedings. ’747 Deci-
sion at 107–10. The Board also determined that the pro-
posed amended claims were not unpatentable under
35 U.S.C. § 112. Id. at 110–16. The Board thus granted
Sleep Number’s contingent motions to amend. Id. at 120.
American National appeals, and Sleep Number cross-
appeals, from both final written decisions. We have juris-
diction under 35 U.S.C. § 1295(a)(4)(A).
DISCUSSION
We review the Board’s legal conclusions de novo and its
factual findings for substantial evidence. Univ. of Strath-
clyde v. Clear-Vu Lighting LLC, 17 F.4th 155, 160
(Fed. Cir. 2021). Obviousness is a legal question based on
underlying findings of fact, including the existence of and
weight assigned to any objective indicia of nonobviousness.
Adapt Pharma Operations Ltd. v. Teva Pharms. USA, Inc.,
25 F.4th 1354, 1364 (Fed. Cir. 2022). “The substantial ev-
idence standard asks ‘whether a reasonable fact finder
could have arrived at the agency’s decision,’ and ‘involves
examination of the record as a whole, taking into account
evidence that both justifies and detracts from the agency’s
decision.’” OSI Pharms., LLC v. Apotex, Inc., 939
F.3d 1375, 1381–82 (Fed. Cir. 2019) (quoting In re Gart-
side, 203 F.3d 1305, 1312 (Fed. Cir. 2000)). We review stat-
utory and constitutional issues de novo. MCM Portfolio
LLC v. Hewlett-Packard Co., 812 F.3d 1284, 1287 (Fed. Cir.
2015). But “[d]ecisions related to compliance with the
Board’s procedures are reviewed for an abuse of discre-
tion.” Ericsson Inc. v. Intell. Ventures I LLC, 901 F.3d
1374, 1379 (Fed. Cir. 2018).
Case: 21-1321 Document: 88 Page: 13 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 13
I
We turn first to American National’s argument that
the Board erred in permitting Sleep Number to present
proposed amended claims that both responded to a ground
of unpatentability involved in the proceedings and made
other changes not responsive to an unpatentability ground.
In its motion to amend, Sleep Number stated that some of
its proposed amendments (like changing the phrase “pump
housing” to “valve enclosure”) were made “to achieve con-
sistency and accuracy in terminology and phrasing”
throughout the patent family. J.A. 3474, 3504–05. Be-
cause this purpose was not directly “aimed at responding
to a ground of unpatentability at issue in” the IPR proceed-
ing, as required by 37 C.F.R. § 42.121, American National
argues on appeal, as it did below, that these proposed
amendments were improper.
In considering this issue, the Board has previously de-
termined that § 42.121 “does not require . . . that every
word added to or removed from a claim in a motion to
amend be solely for the purpose of overcoming an instituted
ground.” Lectrosonics, Inc. v. Zaxcom, Inc., No. IPR2018-
01129, 2019 WL 1118864, at *2 (P.T.A.B. Feb. 25, 2019)
(precedential). Instead, “once a proposed claim includes
amendments to address a prior art ground in the trial, a
patent owner also may include additional limitations to ad-
dress potential § 101 or § 112 issues, if necessary.” Id. Al-
lowing these amendments, the Board has explained,
“serves the public interest by helping to ensure the patent-
ability of amended claims” and “helps ensure a ‘just’ reso-
lution of the proceedings and fairness to all parties.”
Id. (quoting 37 C.F.R. § 42.1(b)).
We agree with the Board’s thoughtful analysis of this
issue in Lectrosonics. Indeed, nothing in the America In-
vents Act (AIA) or the Board’s regulations precludes a pa-
tent owner from amending a claim to both overcome an
instituted ground and correct other perceived issues in the
Case: 21-1321 Document: 88 Page: 14 Filed: 11/14/2022
14 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
claim. The AIA explicitly restricts patent owner amend-
ments in only two ways: amendments may not enlarge the
scope of the claims or introduce new matter. 35 U.S.C.
§ 316(d)(3). The Board’s regulations add another re-
striction: amendments must respond to a ground of un-
patentability involved in the proceeding. 37 C.F.R.
§ 42.121(a)(2)(i). As we have previously explained, the Di-
rector introduced this regulation “merely to ensure that the
proposed amendment had a minimal level of relevancy to
the IPR.” Aqua Prods., Inc. v. Matal, 872 F.3d 1290, 1317
(Fed. Cir. 2017) (en banc) (plurality opinion) (citing
Changes to Implement Inter Partes Review Proceedings,
77 Fed. Reg. 48,680, 48,705 (Aug. 14, 2012)). Thus, so long
as a proposed claim amendment does not enlarge the scope
of the claims, does not add new matter, and responds to a
ground of unpatentability in the proceeding, the patent
owner may also make additional amendments to a claim
without running afoul of the relevant statutes and regula-
tion.
American National argues that allowing a patent
owner to refine claims or correct potential § 112 errors “in-
vites a violation of due process and the Administrative Pro-
cedure Act, by allowing the patent owner and the Board to
address concerns that may be proper for [an] examination
or reexamination proceeding, but that were never germane
to an IPR process.” Appellant’s Br. 69–70. Specifically, ac-
cording to American National, because a petition cannot
challenge claims under § 112, it would be “asymmetr[ical]”
and “unfair” to allow the patent owner to amend its claims
to address § 112 concerns. We are not convinced. As we
have previously explained, the petitioner can challenge the
proposed amended claims on grounds beyond §§ 102 and
103, including under § 112. See Uniloc 2017 LLC v. Hulu,
Inc., 966 F.3d 1295, 1305–07 (Fed. Cir. 2020) (holding that
petitioners may challenge proposed substitute claims out-
side of §§ 102 and 103); Samsung Elecs. Am. v. Prisua
Eng’g Corp., 948 F.3d 1342, 1352 (Fed. Cir. 2020) (“[T]he
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AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 15
Board’s authority with respect to new and amended claims
necessarily extends to other possible grounds of unpatent-
ability, in particular, a failure to comply with section
112.”). Indeed, American National did so in its oppositions
to Sleep Number’s motions to amend in these IPRs. Ac-
cordingly, we discern no unfairness or asymmetry in the
Board’s granting of the motion to amend.
In this case, each of Sleep Number’s proposed substi-
tute claims included an amendment responsive to a ground
of unpatentability raised in the proceedings. Specifically,
each proposed substitute claim added a limitation requir-
ing a multiplicative pressure adjustment factor—mirroring
the claims that the Board had determined were not un-
patentable. ’747 Decision at 105–07 (proposed substitute
claims); see also J.A. 3474–77, 3504–08. Because each pro-
posed substitute claim included at least one responsive
narrowing limitation, Sleep Number was free to include
other amendments, including any addressing perceived
§§ 101 and 112 issues. American National was free to chal-
lenge these proposed claims, as it did in both proceedings.
And the Board was free to determine whether the proposed
claims were unpatentable under §§ 101, 102, 103, and 112.
We thus see no error in the Board’s decision to consider
Sleep Number’s proposed substitute claims.
II
We turn next to American National’s enablement argu-
ment. Section 112(a) requires, among other things, that
the specification enable a skilled artisan to make and use
the claimed invention. In re Wands, 858 F.2d 731, 735
(Fed. Cir. 1988). “Whether a claim satisfies the enable-
ment requirement of 35 U.S.C. § 112 is a question of law
that we review without deference, although the determina-
tion may be based on underlying factual findings, which we
review for clear error.” Amgen Inc. v. Sanofi, Aventisub
LLC, 987 F.3d 1080, 1084 (Fed. Cir. 2021) (citing Alcon
Rsch. Ltd. v. Barr Lab’ys Inc., 745 F.3d 1180, 1188
Case: 21-1321 Document: 88 Page: 16 Filed: 11/14/2022
16 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
(Fed. Cir. 2014)). American National argues that an ad-
mitted error in the specification of the application to which
the ’747 and ’154 patents claim priority necessarily means
that the proposed amended claims are not enabled. Appel-
lant’s Br. 70–71. We disagree.
There is undisputedly an error in the specification of
the challenged patents. ’747 Decision at 113–14. The spec-
ification states:
Updated Inflate Adjustment Factor = (Manifold
Pressure from Step 168) – (Pressure Setpoint
from Step 106)
Id. at 114 (citing J.A. 10163 ¶ 67) (emphasis added to erro-
neous portion). Both parties agree this equation should in-
stead read:
Updated Inflate Adjustment Factor = (Manifold
Pressure from Step 168 176) – (Pressure Set-
point from Step 106)
Id. (citing J.A. 10085 ¶ 20) (emphasis added to corrected
portion). Sleep Number’s expert testified that the skilled
artisan would understand that this “is a typographical er-
ror inconsistent with the remainder of the disclosure” in
the specification. Id. (citing J.A. 10085 ¶ 20). This testi-
mony is supported by the specification. For example, im-
mediately before the equation, the specification correctly
explains that the “manifold pressure sampled in step 176”
is compared to the “setpoint pressure” of step 106.
J.A. 10162 ¶ 63; see also, e.g., ’747 patent col. 9 ll. 33–38
(discussing the “manifold pressure sampled in step 176”).
On this record, the Board reasonably found that the error
was a “mistake or typographical error,” ’747 Decision
at 114, and thus that American National had not shown
the proposed claims were unpatentable for lack of enable-
ment, id. at 115.
In an analogous case, we affirmed a district court’s
finding that a patent was enabled, despite a calculation
Case: 21-1321 Document: 88 Page: 17 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 17
error in the specification. PPG Indus. v. Guardian Indus.
Corp., 75 F.3d 1558 (Fed. Cir. 1996). In PPG Industries,
the specification described how to make the patented “solar
control” glass composition but included test results and cal-
culations rendered “artificially high” by a software error.
Id. at 1563–64. The district court had found that the error
was “easily detectable by anyone who was skilled in the
art.” Id. at 1564. And, we explained, the remainder of the
specification described the process with sufficient detail to
“indicate[] to one skilled in the art how” to make such a
glass composition. Id. at 1565. We affirmed the district
court’s finding that the patent was enabled, despite the er-
ror, because the skilled artisan would, “[i]n light of the
guidance provided by the specification” as a whole, be ena-
bled to make and use the claimed invention. Id. at 1564–
65. The same rationale and conclusion apply here.
American National nonetheless argues that this error
was not obvious because it was not noted during the origi-
nal examination process. And because the equation in the
specification, as erroneously written, would not work,
American National argues that the proposed amended
claims are not enabled. Appellant’s Br. 70 (citing In re
Wands, 858 F.2d at 737). We are not persuaded.
In this case, regardless of whether the error was first
discovered during examination or afterward, the specifica-
tion itself makes clear that the reference to step 168 in-
stead of step 176 is an obvious error. Indeed, the
remainder of the specification consistently and correctly
describes that the “manifold pressure [is] sampled in
step 176.” J.A. 10162 ¶ 63; see also J.A. 10177, Fig. 6
(showing step 176 as “Sample Manifold Pressure”);
J.A. 10178, Fig. 7 (showing same). This conclusion is fur-
ther supported by Sleep Number’s expert, who opined that
a skilled artisan, reading the specification in its entirety,
would view the reference to step 168 as an obvious typo-
graphical error and substitute the correct step—step 176—
in its place. J.A. 10085 ¶ 20. We thus conclude that the
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18 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
Board did not err in determining that the proposed
amended claims were enabled, despite an admitted error
in the specification, because that error and its correction
would have been obvious to a person of ordinary skill in the
art.
III
We now turn to American National’s argument that the
Board should have denied the motion to amend because
adding the term “valve enclosure” injected an inventorship
issue into the patents. We review the Board’s decision to
grant a motion to amend under the Administrative Proce-
dure Act, and we may set aside the Board’s action if it is
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Bosch
Auto. Serv. Sols., LLC v. Matal, 878 F.3d 1027, 1039
(Fed. Cir. 2017). Inventorship is a question of law based on
underlying findings of fact. Duncan Parking Techs., Inc.
v. IPS Grp., Inc., 914 F.3d 1347, 1357 (Fed. Cir. 2019) (cit-
ing Gen. Elec. Co. v. Wilkins, 750 F.3d 1324, 1329 (Fed. Cir.
2014)).
According to American National, the term “valve enclo-
sure” is used in related patents owned by Sleep Number,
including the Gifft patent, which name different inventors
than the ’747 and ’154 patents. For example, the Gifft pa-
tent lists James Gifft as an inventor while the ’747 and ’154
patents do not. American National argues that amending
the claims to use the term “valve enclosure” without adding
James Gifft as an inventor renders the amendments “fa-
cially invalid.” Appellant’s Br. 72–73. We disagree.
The ’747 and ’154 patents incorporate the prior art
Gifft patent by reference. ’747 patent, col. 1 ll. 18–25;
’154 patent, col. 1 ll. 28–35. That is, the patents them-
selves make clear that valve enclosures were well known
in the art and incorporated into the patent specification.
Sleep Number’s choice to recite these well-known struc-
tures in its amended claims does not make James Gifft an
Case: 21-1321 Document: 88 Page: 19 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 19
inventor of the ’747 and ’154 patents. See Trovan, Ltd.
v. Sokymat SA, 299 F.3d 1292, 1302 (Fed. Cir. 2002)
(“[T]he basic exercise of ordinary skill in the art . . . does
not make one a joint inventor.”); see also Fina Oil & Chem.
Co. v. Ewen, 123 F.3d 1466, 1473 (Fed. Cir. 1997) (“[A] per-
son will not be a co-inventor if he or she does no more than
explain to the real inventors concepts that are well known
and the current state of the art.”). Accordingly, for at least
this reason, 8 we reject American National’s argument that
the Board should have rejected Sleep Number’s motion to
amend because of an alleged inventorship issue.
IV
Next, we address American National’s argument that
the Board violated due process and the APA when analyz-
ing Sleep Number’s evidence of commercial success. Ad-
dressing nexus, the Board stated that American National
“does not refute the testimonies of Dr. Abraham and
Dr. Edwards that these versions of the source code fall
within the claims of the ’747 patent such that ANM’s prod-
ucts using these versions read on the claims.” Based on
this sentence, American National argues that the Board in-
appropriately resolved infringement in violation of either
8 There may well be additional reasons why this ar-
gument fails. For example, it is unclear whether the Board
is authorized to address inventorship in the context of a
motion to amend. Cf. 35 U.S.C. § 116(c) (providing that,
outside the IPR context, “the Director may permit the ap-
plication to be amended” to fix inventorship errors). Fur-
ther, even if the proposed amended claims in this case did
inject an inventorship issue, American National identifies
no statutory or regulatory prohibition on patent owners
making such amendments. See 35 U.S.C. § 316(d)(3);
37 C.F.R. § 42.121. In any event, because American Na-
tional has not shown that James Gifft is an inventor of the
patents-in-suit, we do not address this issue further.
Case: 21-1321 Document: 88 Page: 20 Filed: 11/14/2022
20 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
or both of the Constitution or the APA. Appellant’s
Br. 55–61. We disagree and note that the Board itself
made clear that it was not resolving infringement issues
by, among other things, changing the wording from “in-
fringe” to “read on” in its final written decisions.
We decline to address this argument further because
American National does not challenge the Board’s finding
that Sleep Number’s evidence of commercial success “has
minimal probative weight.” ’747 Decision at 94. Accord-
ingly, American National’s argument would not change the
Board’s patentability determination on appeal. Indeed,
American National concedes that its challenge to the
Board’s “read on” finding “would not change the patenta-
bility determinations.” Appellant’s Br. 59.
In SkyHawke Technologies, LLC v. DECA Interna-
tional Corp., we dismissed the appeal of a patent owner in
an analogous situation. 828 F.3d 1373, 1375 (Fed. Cir.
2016). There, the patent owner sought only to “correct” the
Board’s claim construction underlying its patentability de-
termination, not to alter the Board’s patentability determi-
nation itself. Id. We reasoned that SkyHawke was merely
trying to preempt the possibility that the district court
would adopt the Board’s construction. Id. at 1375–78; see
also, e.g., Pirlott v. NLRB, 522 F.3d 423, 433 (D.C. Cir.
2008) (“Where . . . a judgment gives a party all the relief
requested, an appeal may not be taken simply to challenge
the Board’s reasoning.”). Here, American National con-
cedes that its challenge to the Board’s “read on” decision
“would not change the patentability determinations.” Ap-
pellant’s Br. 59. Like the appellant in SkyHawke, Ameri-
can National will have the opportunity to argue
infringement in the district court (and, if necessary, on ap-
peal from the district court’s judgment).
V
The parties’ additional arguments on appeal are unper-
suasive. We have considered American National’s
Case: 21-1321 Document: 88 Page: 21 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 21
challenges to the Board’s conclusion that the six dependent
claims requiring multiplicative pressure adjustment fac-
tors (claims 5, 6, and 13 of the ’747 patent and claims 5, 6,
and 15 of the ’154 patent) would not have been obvious at
the time of the invention. We conclude that substantial ev-
idence supports the Board’s finding that American Na-
tional did not meet its burden to show that a skilled artisan
would have been motivated to combine Ebel with Gifft in
view of Mittal and Pillsbury to satisfy the elements of these
claims.
Turning to Sleep Number’s cross-appeal, we likewise
conclude that substantial evidence supports the Board’s
finding that a skilled artisan would have been motivated to
combine Gifft, Mittal, and Pillsbury. The Board reasonably
found that a person of ordinary skill (1) would have been
motivated to improve the accuracy and speed of Gifft’s
pressure adjust cycles; and (2) would have understood from
Mittal that dynamic inflation/deflation offset values can be
used to achieve that goal. Expert testimony and the refer-
ences themselves support these findings. While the partic-
ular equations in Mittal and Pillsbury might not fit directly
into Gifft, the Board’s findings are consistent with the Su-
preme Court’s guidance that the “person of ordinary skill
is also a person of ordinary creativity, not an automaton.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007); see
also Fleming v. Cirrus Design Corp., 28 F.4th 1214, 1223
(Fed. Cir. 2022) (affirming the Board’s obviousness deter-
mination which was “the result of a faithful application of
our law on obviousness, including KSR’s directive to con-
sider the creativity of the ordinarily skilled artisan”).
Similarly, we are not persuaded to reweigh the Board’s
assessment of the strength of Sleep Number’s evidence of
commercial success and industry praise. The Board thor-
oughly analyzed and considered the parties’ evidence, and
we cannot say that its findings were unreasonable.
Case: 21-1321 Document: 88 Page: 22 Filed: 11/14/2022
22 AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION
We next consider Sleep Number’s argument that the
Board misallocated the burden of persuasion. Contrary to
Sleep Number’s assertion, we do not read the Board’s deci-
sions as improperly placing the burden on Sleep Number
to prove non-obviousness of its claims. See Cross-Appel-
lant’s Principal & Resp. Br. 57–64. After reading the deci-
sions as a whole, we are convinced that the Board properly
analyzed the obviousness issue, first setting forth its fact
findings and reasoning for why it concluded that the claims
would have been obvious and then responding to Sleep
Number’s specific contrary arguments. See ’747 Decision
at 48–68. The portions of the opinion that Sleep Number
quotes as allegedly improperly shifting the burden are
largely taken from the later sections in the opinion where
the Board affirmatively responded to Sleep Number’s argu-
ments regarding the proposed combinations. See
id. at 53–68. Overall, we conclude that the Board’s opinion
is most fairly read as properly allocating the burden of per-
suasion.
Finally, we see no abuse of discretion in the Board’s
conclusion that American National satisfied the require-
ments of 37 C.F.R. § 42.104. That regulation requires pe-
titioners to, for each means-plus-function term in the
challenged claims, “identify the specific portions of the
specification that describe the structure . . . corresponding
to each claimed function.” Id. § 42.104(b)(3). Sleep Num-
ber argues that American National did not expressly pro-
vide a construction for the claim term “pressure sensing
means” and thus did not comport with the Board’s rules for
petitioners. In both decisions, however, the Board deter-
mined that American National sufficiently identified the
structure and function of the “pressure sensing means”
term. In other words, the Board found that American Na-
tional had done enough to meet the requirements of this
rule. We give deference to the Board’s application of its
own rules. See Ericsson, 901 F.3d at 1379 (citing Bilstad
Case: 21-1321 Document: 88 Page: 23 Filed: 11/14/2022
AMERICAN NATIONAL v. SLEEP NUMBER CORPORATION 23
v. Wakalopoulos, 386 F.3d 1116, 1121 (Fed. Cir. 2004)). Ac-
cordingly, we affirm on this issue.
CONCLUSION
For the reasons stated above, we affirm the Board’s fi-
nal written decisions in both proceedings.
AFFIRMED
COSTS
No costs. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483515/ | Opinion issued November 8, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00654-CV
———————————
IN THE INTEREST OF H.L.W. AND S.K.W., Children
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 91619-F
MEMORANDUM OPINION
In this accelerated appeal, Father challenges the trial court’s order, entered
after a bench trial, terminating his parental rights to his minor children, H.L.W. and
S.K.W. In his first seven issues, Father contends that the evidence is legally and
factually insufficient to support the trial court’s predicate findings for termination
under Family Code Section 161.001(b)(1) and that termination of his parental rights
are in his children’s best interest. In his eighth issue, Father contends that the trial
court abused its discretion by denying him his right to counsel.
We affirm.
Background
The two children in this case, H.L.W. and S.K.W., were 13 and 12 years old,
respectively, at the time of trial and the two children of Father and Mother. The
children resided with Mother and her boyfriend, E.Z., before the Texas Department
of Family and Protective Services (DFPS or the Department) removed them in May
2017. DFPS removed the children from Mother’s home after receiving and
investigating a report of neglectful supervision and sexual abuse. The affidavit
attached to the petition indicated that there were concerns that H.L.W. and S.K.W.
stated that E.Z. had sexually abused them and that Mother knew of the sexual abuse
but did not want to contact police.1 The affidavit also detailed Father’s prior Child
Protective Services (CPS) history from Texas and New Jersey, which included prior
allegations of domestic violence between Father and Mother, and sexual abuse of
the children by Father when the family lived in New Jersey. Although the allegations
of sexual abuse were investigated and determined to be not “founded,” Father’s
1
E.Z. and Mother also had two children, A.Z. and J.Z., who were removed from the
home by DFPS and were initially included in the underlying lawsuit. E.Z.
voluntarily relinquished his rights to A.Z. and J.Z., and the termination proceedings
against Mother related to A.Z. and J.Z. were severed from the underlying
termination suit related to H.L.W. and S.K.W.
2
visitations with the children were suspended by a court order and a CPS case in New
Jersey remained open. The family then moved back to Texas from New Jersey in
2016. Because DFPS could not locate a suitable placement for the children, DFPS
sought temporary managing conservatorship of the children.
The trial court entered a temporary order, dated May 3, 2017, which named
DFPS as the temporary conservator of H.L.W. and S.K.W., following a hearing
conducted pursuant to Texas Family Code Section 262.201. A week later, the trial
court appointed counsel, Papa Dieye, to represent Father in these proceedings. On
June 21, 2017, DFPS filed a status report with the trial court, recommending that
Father “participate and successfully complete the family plan of service.” Service
plan goals for father included that he: (1) “demonstrate the willingness and ability
to protect the child from harm,” (2) “demonstrate an ability to provide basic
necessities such as food, clothing, shelter, medical care, and supervision for the
child,” (3) “demonstrate the ability to protect child[ren] from future abuse or neglect,
and will show concern for future safety of the child[ren],” and (4) “demonstrate an
ability to change the pattern of behaving that resulted in abuse/neglect.”
A Status Hearing was held on June 22, 2017, and an order entered on June 23,
2017. The trial court found that “the goal of the service plan is to return the children
to the parents, and the plans adequately ensure that reasonable efforts are being made
3
to enable the parents to provide a safe environment for the children.” The order made
the family service plan for Father an order of the court.
On July 24, 2017, Dieye, Father’s first court-appointed counsel, filed a motion
to withdraw, citing an inability “to effectively communicate with [Father] in a
manner consistent with a good attorney-client relationship. [Father] agrees to the
withdrawal.” Dieye explained at a hearing on his motion to withdraw that Father had
“fired” him from the case and that he no longer wanted Dieye to represent him. The
trial court granted the motion to withdraw and appointed Cortez Pouncil as Father’s
counsel.
On February 22, 2018, the trial court conducted a subsequent permanency
hearing. At the hearing, Samantha Fernandez, CPS caseworker assigned to Mother,
testified that Father had not started any services required under his family service
plan. The trial court entered a subsequent permanency hearing order before final
order on February 26, 2018, and found that Father had not demonstrated “adequate
and appropriate compliance with the service plan.” The trial court ordered that
Father was to have no visitation with the children.
On July 26, 2018, the trial court conducted a permanency hearing and special
review, at which Stephanie Sammons, a CPS supervisor, testified that Father was
not engaged in his family plan. She testified that when she initially met with Father
regarding setting up services, he “stormed out of the meeting” and said he was “not
4
going to participate in services.” Sammons testified that CPS’s later attempts to
contact Father had not been successful and that they did not know if he was “clean
and sober” or if “he has a safe and stable home.” Sammons also testified that CPS’s
concerns about placing the children with Father stemmed from the no-contact order
from New Jersey.
On October 15, 2018, at a hearing on the merits, the trial court heard testimony
related to an agreement reached between DFPS and Father. Father testified that he
agreed that there was clear and convincing evidence that he had engaged in conduct
supporting termination under subsection (O), but that there was not clear and
convincing evidence that termination was in the best interest of the children. Father
also testified that they agreed he would not be named as possessory conservator, but
that he would have the right to be informed of medical and educational information,
that he would be entitled to at least two monthly telephone calls with the children,
as well as the potential for in-person visitation, if agreed, and he would continue
engaging in the services required by the family service plan. At the conclusion of
the hearing, the trial court permitted Father to have three CPS-supervised visits with
the children at the courthouse. A final order was signed by the trial court reflecting
these findings.
On November 9, 2018, DFPS filed an emergency application for writ of
attachment stating that Mother and Father were in violation of the trial court’s
5
October 15th judgment because they took possession of the children and hid them
from DFPS. In the affidavit attached to the emergency application, DFPS
caseworker, Chevelle Bosier, stated that she received a phone call from the
children’s foster parent who stated that the children did not return home after school,
but instead went to a friend’s house. When Bosier and the children’s attorney ad
litem arrived at the friend’s house, the friend’s mother told them that H.L.W. said
her mother was coming to pick up the children, and that the children left in a gray-
colored SUV. Ultimately, Bosier was informed that Father had possession of the
children, and he told Bosier that Mother had kidnapped their children and brought
them to him in Surfside. Father refused to return the children to CPS because the
children indicated they were unhappy in the foster home.
The parties entered into a Rule 11 Agreement on November 19, 2018, in
which they agreed to temporary orders that neither Mother nor Father would have
any contact with the children until further order from the court. The trial court
entered a temporary modification order on December 2, 2018, in light of the parties’
agreement.
On January 10, 2019, DFPS submitted a Permanency Report to the trial court,
which included updates on the progress of the case and a recommendation that DFPS
continue as permanent managing conservator and that H.L.W.’s and S.K.W.’s
6
placements in foster care be continued. The trial court entered a placement review
order on January 14, 2019, approving of the children’s placement in foster care.
On May 16, 2019, Father’s second court-appointed counsel, Cortez Pouncil,
filed a motion for withdrawal of counsel, stating that Father no longer wished to
retain Pouncil as his counsel and he wished to represent himself. The motion stated
that good cause existed for Pouncil’s withdrawal because he was unable to
“effectively communicate with [Father] in a manner consistent with good attorney-
client relations.”
The trial court held a hearing on Pouncil’s motion to withdraw on June 6,
2019. Pouncil stated at the hearing that he was not able to effectively represent
Father, and that Father agreed to the withdrawal and requested that the trial court
appoint him another attorney. The trial court granted the motion to withdraw but did
not appoint another attorney as there was not a pending case at that time.
On June 19, 2019, DFPS submitted a Permanency Report to the trial court,
which included updates on the progress of the case and included a note that, although
the caseworker had set up a drug test for Father on three separate occasions, he only
appeared for one and left the drug-testing site before submitting to the test.
On September 29, 2019, DFPS filed an original petition to modify the trial
court’s November 19, 2018 prior final order. With respect to Father, DFPS sought
7
to terminate his parental rights under subsections (D), (E), (N), and (O) of Section
161.001(b)(1) of the Texas Family Code.
On December 4, 2019, DFPS submitted another Permanency Report to the
trial court, which included updates on the progress of the case as well as a
recommendation that DFPS continue as permanent managing conservator and that
H.L.W.’s and S.K.W.’s placements in foster care be continued. The primary
permanency goal was listed as unrelated adoption; the concurrent permanency goal
was listed as family reunification. Specifically, with respect to Father, the
Permanency Report included the following notes and recommendations:
• “Caseworker requested [Father] to submit to a drug test on 6/19/19 and
he was a no show. On October 31, 2019 [Father] demanded caseworker
to send him for a drug test and caseworker explained to [Father] that
drug test are random. [Father] took upon himself to go the drug testing
site. [Father] admitted that he will test positive for alcohol, but nothing
else. On November 12, 2019[,] [caseworker] requested [Father] submit
to a drug test by 11/13/19 before 4pm. [Father] replied ‘No! I’ve tried
to get a hold of you. You want to base this on your grounds. I am
properly represented by counsel.’”
• “Father continues to be rude to caseworker by using profanity and
calling her names. . . . On November 16, 2019 [Father] informed
caseworker that he currently [is] not being represented but will be. He
also stated that he is was [sic] not able to conversate regarding his
upcoming case.”
On December 19, 2019, Father informed the trial court that he did not want
an appointed attorney and that he wanted time to hire his own counsel. As a result,
the trial court reset the final hearing on the merits to provide Father time to either
8
hire an attorney to represent him, or to request that the trial court appoint an attorney
for him.
On May 26, 2020, DFPS submitted a Permanency Report to the trial court,
which included specific recommendations and notes as to Father:
• “At this time [Father] has not provided the Department with contact
information of his attorney. [Father] refused to initiate or complete
services until he has proper representation. . . . Caseworker informed
[Father] of the upcoming court hearing and requested for an address to
send him his Family Plan of Service. [Father] replied ‘but you can stick
that family plan up your f****** fat black ass.’”
• “[Father] continues to call caseworker . . . name[s], being rude and
disrespectful.”
• “The recommendation[] of the Department is move forward to
terminate parental rights of [Father] and [mother] . . . . The Department
has given the parents an extended amount of time to complete services
so the children . . . can be reunified. [Father] and [mother] are not
compliant with their family plan of services.”
On September 16, 2020, DFPS moved for injunctions to prevent Father from
contacting the caseworker, Bosier, based on threatening voicemails, emails, and text
messages Father sent Bosier, including threats to Bosier’s children. DFPS also
sought an injunction to prevent Father from contacting any DFPS employee in a
threatening manner. DFPS also sought a protective order preventing Father from
removing the children, communicating with any member of the children’s household
in a threatening manner, and going to or near the residence, school, or childcare
9
facility of the children. After a hearing on September 24, 2020, the trial court entered
a protective order and order granting injunctions.
On March 19, 2021, DFPS filed a first amended petition to modify prior order,
seeking to terminate Father’s parental rights under Section 161.001(b)(1)(D), (E),
(F), (N), and (O). On April 6, 2021, Father filed a motion to withdraw as pro se
counsel and sought the representation of a court-appointed attorney. The trial court
found Father to be indigent and appointed Ricardo Contreras as counsel for Father.
On April 27, 2021, DFPS submitted a Permanency Report to the trial court,
which included the following notes with respect to Father:
• “[Father] was arrested on March 1, 2021 for DWI; he is currently incarcerated
at Brazoria County Jail.”
• “Caseworker will communicate with his attorney regarding [Father’s]
services. Caseworker [will] continue to communicate with [Father] through
CPS attorney. On January 27, 2021 caseworker sent a letter through CPS
attorney asking to take a drug test. [Father] on January 29, 2021 and this was
[Father’s] response[:] ‘What is wrong with your brain Lauren [DFPS counsel]
I mean you are so adamant about me taking the drug test I’m going to pass
you know I have a certification from the state of which I have a life legal
resident of Colorado I have certification that says that I am allowed to get to
Oz from every dispensary everyday a call I mean I get 50 pounds a day okay.
I’ll take another fish [sic] test Saturday if I get a visit but I am not going to
just I mean you’re going to have to give up something you’re going to have
to give up something. UA you get me visitation with my girls and I will get
visitation before I take the UA so I mean you’re not running s*** no more
Lauren you’re not running s***.”
• “[Father] continue[s] to communicate his hatred toward caseworker, [stating]
you can tell that n***** b**** that I am not cooperating with anything until
I see my girls. I get a visit with my girls I get the restraining order off I go in
front of guns pack and get that restraining I don’t even want to talk to that
10
Niger [sic] I hate her f****** got some more and I hate you you know I don’t
care I’m not I’m not pulling any punches I do not like you I do not like her.
everyday think about how much I would love to hear that your children got
killed in the car accident that you got killed in the car accident but that Niger
[sic] got killed in a car accident’”
This case was set for trial on May 26, 2021. The same date, Father’s third
court-appointed counsel, Contreras, moved for a continuance, citing his recent
appointment and personal tragedy, and filed a request for a jury trial. The trial court
denied the motion for continuance and denied the jury request as untimely, began
trial briefly, but ultimately recessed for approximately 60 days (until July 19) to
allow Contreras additional time to review discovery that was produced by DFPS
shortly before trial.
Despite being represented by counsel, on July 12, 2021, Father filed a pro se
motion to recuse or disqualify the trial judge, the Honorable Randall Hufstetler.
Father also filed a pro se motion to dismiss the case alleging that his constitutional
rights to a trial by jury were being denied and that he needed adequate time to prepare
for trial. Although he did not file it with the trial court, Father also sent Contreras a
pro se motion for change of counsel, in which he alleged that Contreras was
“ineffective, mentally unfit, and highly suspected of coercion with the Court and
prosecution.”
11
At a hearing conducted on July 19, 2021, the trial court addressed Father’s pro
se filing of the motion to recuse, and explicitly asked Father whether he wanted to
represent himself or have Contreras continue in his representation:
THE COURT: My question was: What do you want to do?
Represent yourself or have Mr. Contreras represent
you? Because right now, you are filing motions as
if you’re representing yourself, but you have an
attorney.
FATHER: I am assisting my counsel.
THE COURT: Say that again.
FATHER: I am assisting my counsel in my defense.
THE COURT: No, sir. That’s not the way it goes. You represent
yourself, you can file anything you want to file. If
you have an attorney –
FATHER: I don’t –
THE COURT: I’m talking right now. So, you’re just going to wait.
If you have an attorney, that attorney is the one
that’s going to represent you. So, he’s not confused,
so I’m not confused, so no one is confused, which
one is it? Do you want to represent yourself or have
Mr. Contreras represent you?
FATHER: He’s representing me.
THE COURT: All right.
FATHER: He was appointed.
THE COURT: That’s what I knew. But yet, I still see that you are
filing motions on your own behalf.
FATHER: Yes, sir.
THE COURT: So, which is it?
12
FATHER: He’s representing me, and I’m assisting in my
defense.
THE COURT: Okay. So, you don’t want to represent yourself.
FATHER: No, sir.
Contreras then questioned Father about his allegations against Contreras in
the motion for change of counsel, during which Father confirmed that he wanted
Contreras to continue representing him.
CONTRERAS: Okay. Now, we’ve met, we’ve discussed the case,
and I – you’ve gone forward on the record here and
said that you do want me to continue representing
you now?
FATHER: Yes.
CONTRERAS: Are you sure of that?
FATHER: Yes.
CONTRERAS: Okay. Do you feel like we’re prepared to go forward
with trial today?
FATHER: Yes.
The trial court declined to recuse himself from the case and forwarded
Father’s motion to recuse to the Honorable Susan Brown, who denied the motion.
Trial was recessed until November 9, 2021. By the time this case proceeded
to a trial on the merits, Father had been appointed three separate counsel by the trial
court. Two of his previously appointed counsel filed motions to withdraw, which
were unopposed by Father and granted by the trial court, citing their inability to
effectively communicate with Father. The day before trial was set to resume, his
13
third-appointed counsel, Contreras, filed a motion for withdrawal of counsel stating
that good cause existed for his withdrawal because Father had filed a complaint
against him with the Chief Disciplinary Committee of the Texas State Bar and had
filed (or planned to file) a grievance. Contreras noted in the motion to withdraw that
Father did not consent to the motion. Contreras also sought a continuance so that
Father could obtain new counsel.
At the beginning of trial on November 9, 2021, Contreras presented his motion
to withdraw to the trial court. Contreras reminded the trial court that Father had
previously given him the motion for change of counsel, in which Father claimed
Contreras was ineffective, but ultimately chose to go forward with Contreras as his
counsel. As demonstrated by the following exchange, the trial court, after hearing
that Father had filed a grievance against Contreras, granted the motion to withdraw
and found that, by his actions, Father had waived his right to counsel and was
representing himself.
CONTRERAS: I visited [Father] last Friday, November 5th, 2021.
He brought to my attention he’s filed a grievance.
In that grievance he states that I have divulged
attorney/client privilege by using his motion for
change of counsel before we began that trial and I
questioned him about it. So that’s the basis of his
grievance. I thought we were past that and that he
trusted me but on Friday he made it clear to me he
doesn’t trust me. He thinks I’m working against him
and in conjunction with CPS and the DA’s office
and the Court to terminate his rights and being that
along with the grievance filed against me, I ask to
14
withdraw. I don’t think I can go forward with
representing him based on his claims effectively. I
can’t communicate with him effectively when I do
meet with him. He has communicated as recently as
of last Friday and yesterday that he doesn’t want me
to withdraw but he doesn’t trust me and he thinks
I’m working against him and his interest –
FATHER: That’s not what I said, Your Honor.
CONTRERAS: I can’t effectively represent him with the claims
he’s made, coupled with the fact he’s filed a
grievance against me with the state bar.
FATHER: That’s totally inaccurate, Your Honor.
THE COURT: Well, correct it, [Father].
FATHER: Excuse me. I never had that conversation with him.
THE COURT: So he’s lying?
FATHER: I told him I filed a grievance. He’s working for me.
He’s not done what I asked him to do. He divulged
attorney client information by taking my paper
work, copying it and highlighting it and depose me
in front of the Court regarding my personal
information. We already discussed I was not going
to replace him and he had no business discussing
that. He violated rule 105, you know. He just did.
Because of his conduct, yes I believe that he was
deficient in his representation. I did and we talked
about it. But the fact of the matter is, I am not going
to have my children taken because of my
representation of myself. I’m not an attorney. I’m a
layman. I need this attorney to represent me. He said
he has facts pertinent to the case that I can fight for.
So if he wants to do his job, he’s working for me,
you know, and I requested him to do certain things.
THE COURT: Did you inform Mr. Contreras that you have in fact
filed a grievance against him?
15
FATHER: I did file a grievance against him.
THE COURT: Motion to withdraw is --
FATHER: Because of his conduct.
THE COURT: Stop. Be quiet.
FATHER: Sir?
THE COURT: Be quiet.
FATHER: Yes, sir.
THE COURT: Motion to withdraw is granted. Mr. Contreras you
are released.
FATHER: I can’t hear you. Can you put the microphone on?
THE COURT: Stop talking.
FATHER: I can’t hear.
THE COURT: Stop talking. Did you hear that?
FATHER: Yes, sir.
THE COURT: I am granting the motion to withdraw. Mr.
Contreras is released immediately.
FATHER: I object.
THE COURT: You can object all day long. We will make a note of
it in the record. Based upon your continual delay
tactics and your filing of baseless motions to try to
continually delay this matter, I am making a finding
that you have effectively by your actions waived
counsel. Because everyone that has been appointed,
you have complained about. You have told Judge
Bradshaw that you have the funds to hire an attorney
but you didn’t. Mr. Contreras is the second or third
attorney, third attorney that’s represented you or
attempted to represent you and you continue to
complain about all of them. Some of the same
16
complaints, some are different but effectively you
have by your actions told this Court through your
actions, you don’t want any of these people
representing you because you keep complaining
about them. Here’s the deal. I am fine with you
representing yourself.
FATHER: I don’t want to.
THE COURT: Your actions say otherwise. Your words are
meaningless to me.
FATHER: I don’t want -- I want effective assistance of
counsel.
THE COURT: If you’re going -- I am talking right now. Right now
you’re representing yourself.
FATHER: I am not.
THE COURT: You are. I am going to let you. Did you hear what I
said? He’s done. So you don’t have anybody else
representing you because you keep complaining
about them. Effectively you by your actions I am
going to deem that you are now waiving your right
to counsel. We are going to proceed. Actions speak
louder than words.
FATHER: May I speak, sir?
THE COURT: No, sir, you can’t. We are going to proceed. Your
efforts to try to derail this case are done. They are
over and we are going to proceed.
The trial continued, with Father representing himself. During the direct
examination of DFPS’s first witness, Father announced that he was “done,” that he
wanted an attorney and did not want to represent himself, and that he was leaving
and would file a notice of appeal.
17
FATHER: Your Honor, I am done with these proceedings. I
file a notice of appeal. I am done.
THE COURT: I don’t know what you’re done with.
FATHER: I am done.
THE COURT: Are you –
FATHER: You can make a directed verdict.
THE COURT: You’re telling me you want to leave?
FATHER: I am done.
THE COURT: That is not what I asked you.
FATHER: I do want to leave. I am not representing myself to
lose my children. I am not doing it. You can’t force
me to do it. I want an attorney to represent me that’s
going to do what I ask him to do that.
THE COURT: [Father], I have.
FATHER: Two of them have withdrawn. I didn’t file –
THE COURT: You complain. Stop for just a second.
FATHER: You want to know why the other one quit? Because
I filed with the attorney client assistance program.
THE COURT: You keep complaining about the people that I hire
to represent you. And I don’t know who else you
want to represent you.
FATHER: I am not representing myself. I am a layman. I don’t
want to represent myself. I am not losing my
children because of my representation.
THE COURT: That’s why you had three attorneys.
FATHER: Two quit because they can’t take an ass chewing.
THE COURT: Well, maybe you shouldn’t chew their ass.
18
FATHER: They work for me.
THE COURT: All three were hired by the county to represent you.
You complained about all of them. You filed a
grievance.
FATHER: No, I am about –
THE COURT: Stop. I am talking right now. The last one, Mr.
Contreras, I’d be comfortable with Mr. Contreras
representing me because he is one of the best CPS
lawyers in the county. But you complained about
every one that’s been hired to represent you, you
complain about. I don’t know if you are chewing
their ass or not but they have the right to represent
who they want and if they don’t want to take an ass
chewing, they’re not going to take an ass chewing.
FATHER: Sir, is it appropriate –
THE COURT: Stop.
FATHER: -- for him to divulge my information to you?
THE COURT: Stop. You hire them with your money, you can
chew their ass. You hire them with the county’s
money, they decide whether they want to get out or
stay in. The last one that representing you 15
minutes ago was hired to represent you, you filed a
grievance against him.
FATHER: That’s my job. That’s my responsibility.
THE COURT: It’s his while you have a grievance pending. So he’s
not -- I am not about to put a man to trial who you
filed a grievance against –
FATHER: He told me he wanted to do it.
THE COURT: -- and put his license in jeopardy.
FATHER: He told me he wanted to represent you -- me.
19
THE COURT: He’s not going to represent you in any hearing
because you filed a grievance against him.
FATHER: I filed a grievance against you.
THE COURT: We already dealt with that one.
FATHER: No, you haven’t. Not yet you ain’t.
THE COURT: You have done nothing but try to delay this process.
If you want to leave, we are going to go on in the
trial.
FATHER: I object to this whole trial. I want an attorney
representing me.
THE COURT: You want to leave or stay? You want to leave or
stay?
FATHER: I am not waiving my right to. If you give me an
attorney, I will sit right here.
THE COURT: I am not giving you an attorney. You want to leave?
FATHER: I want an attorney to represent me.
THE COURT: You want to leave? For the record you’re walking
out?
FATHER: I want an attorney to represent me.
THE COURT: You’re not going to answer my question, are you?
FATHER: I am not going to represent myself.
THE COURT: Do you want to leave?
FATHER: Are you forcing me to represent myself?
THE COURT: I am asking you, do you want to leave?
FATHER: Give me an attorney and I will sit down.
THE COURT: Have a seat. We’re going to proceed.
20
FATHER: Give me an attorney. I am not representing myself.
THE COURT: I am not forcing you.
FATHER: I am not staying for the proceedings if you’re not
going to give me an attorney.
THE COURT: You can proceed or you can leave. It’s up to you.
We are going to proceed. I am done with him. Hook
him up and take him on.
FATHER: I want a notice of appeal.
THE COURT: That’s something you have to file yourself. We are
not done yet. Ms. Menia, we will proceed now
without [Father].
MS. MENIA: Can I note for the record [Father] did leave. He
voluntarily walked out with everything else trailing
him.
THE COURT: Absolutely.
The trial continued in Father’s absence, with Officer Paul Stackhouse
testifying first. Stackhouse, an officer with the Iowa County Police Department,
testified that he pulled Father over on Highway 288 around noon on March 1, 2021
for reckless driving. Stackhouse testified that he followed Father for a period of time,
during which Father failed to maintain a single lane of traffic and failed to indicate
a lane change. Stackhouse testified that when he stopped Father, he noticed that
Father had glassy eyes, slurred speech, red liquid, later identified as cherry
moonshine, in an open, unsealed container, dripping down his cheeks, and a large
wet spot in the crotch of his pants. Stackhouse testified that he was unable to conduct
a field sobriety test because Father refused. Stackhouse testified that Father appeared
21
extremely intoxicated, that Stackhouse had to assist Father into the backseat of his
patrol car, and that Father was so intoxicated that he urinated on himself twice more,
once in Stackhouse’s custody. Stackhouse also ran Father’s background, which came
back with a felony warrant for retaliation based on Father’s threatening assault on
Bosier.
Dr. Sharon Mock, the individual therapist for S.K.W., testified next that
S.K.W., who was 12 years old at the time of trial, first came to the Hill Country
Youth Ranch in March 2020. When S.K.W. first arrived, she was “very reserved and
shut down,” and would get aggressive with her peers. Dr. Mock testified that in the
year and a half that S.K.W. had been at the youth facility S.K.W. had “blossomed.”
S.K.W. has found ways to express herself, taken an interest in animals and dancing,
and has become a very happy child. S.K.W. has bonded with a pastor of the church
and the owners of the youth facility. Dr. Mock explained that S.K.W. had
experienced a lot of trauma, including physical and sexual abuse by E.Z., but has
worked through those experiences.
She also testified that S.K.W. had a history of lying about things so as not to
get into trouble and would take things that were not hers. But Dr. Mock testified that
S.K.W. has worked hard to change her behaviors. Dr. Mock testified that S.K.W.
wants to be put in a foster home. Dr. Mock recommended S.K.W. be placed in a
long-term foster care home, with the possibility of adoption.
22
Dr. Mock testified that S.K.W. felt abandoned by her parents and stated that
her parents did not take care of her and she had to take care of her siblings herself.
S.K.W. indicated to Dr. Mock that she did not want to go home with any of her
family.
Camille Coffey testified next that she was H.L.W.’s therapist at New Life, a
youth facility in Canyon Lake, Texas. Coffey testified H.L.W. had been at New Life
since February 2021, and when she first arrived H.L.W. was “very dis-regulated,
combative,” and that she “punched several staff.” H.L.W. regularly engaged in
verbal and physical arguments with peers and staff, did not follow directions, and
was “not happy to be there.” At one point, H.L.W. became such a risk to the safety
of others at the facility that they considered discharging her. However, Coffey
testified that H.L.W. has made tremendous changes in her behavior and was even
written up on the facility’s monthly newsletter for her success. Coffey explained that
H.L.W. has worked to be able to handle her verbal and physical aggression and has
stopped lashing out. H.L.W. “seeks help, uses coping skills, walks away from
stressful situations,” and has become a very happy child. H.L.W. participates in
individual and group therapy, sports, swimming, and other recreational activities,
and participates in school.
Coffey testified that H.L.W. will eventually transition out of New Life and,
when she does, H.L.W. has expressed that she “wants to go to a foster home” and to
23
be closer to her siblings. Coffey stated that H.L.W. has never mentioned wanting to
go home with Father. She testified that H.L.W. has difficulty talking about the past
and just wants to move on from it and feel better.
The children’s caseworker, Bosier, testified next that she had been the
children’s caseworker since April 2018. She explained that the trial court’s previous
order had found that there were grounds to terminate Father’s parental rights based
on his failure to complete services, but that the trial court found that termination at
that time was not in the children’s best interest. At that time, Bosier stated that DFPS
was trying to reunite the children with a family member or a friend, with plans to
likely remain in contact with their parents. Both Father and Mother were cooperating
and beginning to engage in services at that time. Bosier testified, however, that
things changed.
In November 2018, after the trial court entered its previous order, Bosier
testified that Mother kidnapped the children from their placement and gave them to
Father in Surfside. She testified that Father called Bosier and tried to “negotiate
about getting the girls back.” Bosier testified that Father did not have permission to
have the children and he did not give them up willingly. The children became very
upset when Bosier, who was accompanied by her supervisor and two police officers,
came to pick them up and return them to DFPS custody. When she went to pick up
the children, Bosier stated that she observed “two big empty jugs, bottles of
24
whiskey” in the trash at Father’s house and discovered that the children had not eaten
anything but cookies since they had been there. Bosier stated that she had concerns
about Father’s drug and alcohol use at the time, and in her opinion, it was not safe
for the children to be with him. Bosier testified that H.L.W. later told her that Father
“put[] a gun to her face” while she was there with him in Surfside. Bosier also stated
that H.L.W. had not indicated that she wanted to go home with Father.
DFPS also introduced Father’s family plan of service as evidence at trial.
According to the service plan, Father was required to complete a domestic violence
class based on his history of and previous conviction for family violence. Bosier
testified that, at the time of trial, Father had not completed this class. Bosier also
testified that Father was required to maintain a safe and stable home and environment
but failed to do so because he was incarcerated. She also testified that Father had
moved around a lot and had refused to provide the Department with an address.
Bosier testified that Father was required to submit to random drug testing but,
despite requests from Bosier, Father has adamantly refused to do so. Further, Bosier
testified that Father failed to complete individual and family therapy, as well as the
recommended parenting classes and outpatient drug and alcohol treatment. Bosier
testified that Father did not provide her with any information regarding employment
or receipt of any services such as Medicaid or food stamps. Bosier stated that Father
25
receives social security disability but does not have any other form of income that
would allow him to support the children.
Bosier further stated that Father has a history of alcohol and drug abuse, which
included a conviction for possession of marijuana. In medical intake records
introduced from the Brazoria County Sheriff’s Office, dated during the pendency of
the underlying case, Father stated that he drinks liquor three times a week, had a
history of alcohol abuse, was hospitalized for alcohol intoxication, and was alcohol
dependent. Likewise, medical records from the Brazoria County jail indicate that
Father had been diagnosed with cirrhosis of the liver due to alcohol abuse.
Bosier stated that both children were preparing for discharge from their
facilities. She explained that there are two foster home options for the children. First,
the children could be placed in a regular foster home where there are multiple
children in the home or, second, they could be placed in a foster-to-adopt home
where the family will be monitored to see if they are a good fit. Bosier testified that
DFPS was asking to terminate the parental rights to both Father and Mother so that
the children could be placed in a foster-to-adopt home and could obtain a sense of
permanency. Bosier stated this is in the best interest of the children. She explained
she had been their caseworker since 2018, that they had a previous CPS case, and
that they had not had a sense of normalcy. “They need permanency . . . to let them
move forward and be productive.”
26
Boiser testified that Mother told her there was a history of domestic violence
between Father and Mother and that the abuse occurred in front of the children.
Bosier testified that Father had called and left threatening recordings for Mother,
which Mother shared with Bosier. Bosier testified that Mother was concerned about
Father’s violent streak, that she was afraid he would hurt her, and that she believed
her children needed to be protected from Father. Bosier also testified that Father had
threatened her life and that the retaliation charge against Father was based on his
conduct directed at Bosier as the victim. She stated that she believed Father was
capable of and would act out in the manner in which he had threatened Bosier and
that she and her family had taken precautions based on the threats made against her
by Father.
At the conclusion of the trial, the trial court terminated Father’s parental rights
under Section 161.001(b)(1)(D), (E), (F), (N), and (O).
The trial court appointed counsel for Father on appeal. Father’s first court-
appointed appellate counsel filed an Anders brief stating her opinion that the appeal
was frivolous.2 After receiving a pro se brief from Father, this Court abated this
matter and instructed the trial court to appoint new counsel to submit a brief on the
merits addressing Father’s claim that his statutory right to an attorney was denied
and “any other grounds counsel deems appropriate.”
2
See Anders v. California, 386 U.S. 738, 744 (1967).
27
On August 5, 2022, Father’s second court-appointed appellate counsel filed a
final brief in which Father complains that the trial court denied him the statutory
right to be represented by counsel. Father also challenges the legal and factual
sufficiency of the evidence supporting the trial court’s predicate findings for
termination and the court’s finding that termination of his parental rights is in the
best interest of the children. We address those arguments in turn.
Right to Counsel
In his eighth issue, Father argues that the trial court violated his statutory right
to counsel when it permitted his attorney to withdraw and failed to appoint another
attorney in his place.
A. Standard of Review and Applicable Law
In termination suits filed by a governmental entity, the trial court “shall
appoint an attorney ad litem to represent the interests of: (1) an indigent parent of
the child who responds in opposition to the termination . . . .” TEX. FAM. CODE §
107.013(a)(1); see also In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010)
(recognizing indigent parents are entitled to appointed counsel in parental rights
termination cases); In re S.R., 452 S.W.3d 351, 371 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied) (same).
The Family Code provides that the attorney ad litem’s duties continue until
the termination proceedings are dismissed or finally concluded unless the attorney
28
is relieved or replaced “after a finding of good cause is rendered by the court on the
record.” TEX. FAM. CODE § 107.016(2). Section 107.016(2) provides:
(2) an attorney appointed under this subchapter to serve as an attorney
ad litem for a parent or an alleged father continues to serve in that
capacity until the earliest of:
(A) the date the suit affecting the parent-child relationship is
dismissed;
(B) the date all appeals in relation to any final order terminating
parental rights are exhausted or waived; or
(C) the date the attorney is relieved of the attorney’s duties or
replaced by another attorney after a finding of good cause is
rendered by the court on the record.
Id. Further, the statutory right to counsel in termination proceedings may be waived.
In re S.M.T., No. 13-17-00064-CV, 2017 WL 3084300, at *12 (Tex. App.—Corpus
Christi–Edinburg July 20, 2017, pet. denied) (mem. op.).
We review a trial court’s decision to grant an attorney’s motion to withdraw
for an abuse of discretion. See In re C.F., 565 S.W.3d 832, 843 (Tex. App.—Houston
[14th Dist.] 2018, pet. denied). We may not overrule the decision unless the trial
court acted unreasonably or in an arbitrary manner, without reference to guiding
principles. Id.
B. Analysis
Under these circumstances, we conclude that the trial court did not abuse its
discretion in permitting Father’s third appointed counsel to withdraw on the morning
of trial. We find the facts here to be analogous to a case considered by the Fourteenth
29
Court of Appeals. See id. at 843–44. In In re C.F., the Fourteenth Court considered
whether the trial court violated the mother’s right to counsel in termination
proceedings by granting her appointed lawyer’s motion to withdraw and denying her
request for a continuance, which resulted in her proceeding pro se at the trial on the
termination of her parental rights. See id. at 843. There, the trial court appointed an
attorney ad litem to represent the indigent mother on the day DFPS’s suit was filed.
Id. The same lawyer represented the mother for seventeen months. Id. The lawyer
then filed a motion to withdraw one week before trial based on a communication
from her client received on the previous night indicating that she wanted a different
attorney. Id. On the day before trial, the trial court granted counsel’s motion and told
the mother:
I expect you to be here tomorrow and if you don’t have counsel, then,
you’ll be pro se. I’m not saying that you purposely decided to have
problems or there were problems ongoing for the past month or two but
we’ve got a deadline and the deadline is the end of May. So, we’re
going to trial tomorrow with or without counsel from your perspective
....
Id. at 837–38. The next day, the trial court questioned mother about whether she
retained counsel:
The Court: And mom is here pro se. Did you get ahold of one of these
lawyers.
Mother: No, Your Honor. I want this case to go into continuance
because I need time to get counsel and if you can provide me with one.
The Court: Yeah. Well, I had one provided for you and you chose to
get rid of her.
30
Mother: I didn’t get rid of her. She quit.
The Court: Excuse me, I’m talking right now. We’re not going to delay
this case so that you can figure that you’re going to get some advantage.
I gave you ever[y] opportunity. . . . [Y]ou haven’t worked with Ms.
Johnson according to the testimony yesterday and you’ve talked to at
least two lawyers and neither one of them are here this morning. So,
you’re going to be here pro se.
Id. at 838. On appeal, the Fourteenth Court concluded that the trial court did not
abuse its discretion by allowing the mother’s court-appointed attorney to withdraw
the day before trial. Id. at 844. The court noted that the mother had been appointed
counsel on the day the suit was filed, had representation throughout the proceedings,
and the only reason counsel sought to withdraw on the eve of trial was because the
mother communicated that she desired new counsel. Id. at 843 (“The timing of
Johnson’s motion to withdraw was based entirely on Mother’s timing in telling
Johnson she wanted a new lawyer.”). The court explained that the trial court “was
uniquely familiar with the history and personalities in this case” and “was free to
consider both in deciding whether to permit [appointed counsel] to withdraw.” Id. at
844. Accordingly, the court held that the trial court did not abuse its discretion in
granting the motion to withdraw. Id.
Here, we are faced with similar, yet even more egregious facts. During the
proceedings, the trial court appointed counsel for Father on three occasions. The first
counsel was appointed a week after DFPS filed suit. Father’s first two counsel
withdrew because Father “fired” them or informed them he no longer wanted either
31
to represent him. After his second counsel withdrew in June 2019, Father proceeded
pro se for almost two years. In December 2019, Father informed the trial court that
he did not want an appointed attorney and that he wanted time to hire his own
counsel. As a result, the trial court reset trial to give Father an opportunity to retain
counsel. Father did not retain private counsel and, in April 2021, moved to withdraw
as pro se counsel and requested the trial court appoint him counsel.
After being appointed his third counsel, Father continued to file a number of
pro se motions, including a motion to recuse or disqualify the trial judge and a
motion to dismiss the case alleging that his constitutional rights to a jury trial had
been violated. Father also sent his appointed counsel a motion for change of counsel,
in which he alleged that Contreras was ineffective and mentally unfit. Even after
expressing his dissatisfaction with Contreras, in July 2019, Father informed the trial
court that he wanted Contreras to continue representing him. Yet only four months
later, four days before trial, Father informed Contreras that he had filed a grievance
against Contreras with the State Bar of Texas and that he did not trust Contreras. It
was only after Father continued to communicate his distrust in Contreras,
culminating in Father filing a grievance against him, that Contreras sought to
withdraw. Thus, as in C.F., Contreras sought to withdraw shortly before trial based
solely on Father’s communications that he did not trust Contreras and did not
consider Contreras to be effective. Moreover, just as the trial court in C.F. could
32
consider the “history and personalities” in the case, so too could the trial court here.
The trial court had presided over this case for multiple years, conducted numerous
hearings, and entertained a number of requests and motions filed by Father related
to his representation by counsel. Under the specific facts of this case, we hold that
there was good cause to allow Father’s counsel to withdraw on the day of trial and
the trial court did not abuse its discretion in doing so. See id. at 843–44; see also
TEX. FAM. CODE § 107.016(2).
Additionally, although Father challenges the trial court’s failure to appoint
new counsel and not specifically the trial court’s refusal to grant a continuance, we
find the Fourteenth Court’s analysis on that point to be instructive. There, the trial
court allowed appointed counsel to withdraw the day before trial and then on the day
of trial, denied the mother’s motion for continuance and declined to appoint the
mother new counsel, resulting in her representing herself at trial. As a basis for its
denial of the continuance, the trial court stated that it had appointed counsel for the
mother but she “chose to get rid of her,” and the trial court refused to “delay this
case so that [mother] . . . [could] get some advantage.” Id. at 838. In its analysis of
this issue, the Fourteenth Court noted that when the ground for a continuance is the
withdrawal of counsel, the movant must demonstrate the failure to be represented at
trial was not due to her own fault or negligence. Id. (citing Villegas v. Carter, 711
S.W.2d 624, 626 (Tex. 1986)). Because “[t]he only basis for withdrawal stated in
33
[appointed counsel’s] motion [wa]s that Mother wanted a new lawyer,” the court
held that the mother did not carry her burden to show that her failure to be
represented at trial was not due to her own fault or negligence, and thus, the trial
court did not abuse its discretion in denying the motion for continuance. Id.
The same is true here. Father’s failure to be represented at trial was due to his
own actions. He went through three court-appointed counsel throughout the duration
of these proceedings, each moving to withdraw based on Father’s abusive conduct.
As he stated in his own words at the trial—they quit because “they can’t take an ass
chewing.” The last counsel finally moved to withdraw after Father informed him—
four days before trial—that he filed a grievance against him. At that point, the trial
had been reset several times to either allow Father to find new counsel after he
claimed he wanted to hire his own or to allow Father’s newly appointed counsel to
get up to speed. Had the trial court appointed counsel for Father at this point in the
proceedings, it would have undoubtedly delayed the trial even further.
In the analogous criminal context, a defendant may not use his right to counsel
to manipulate the court or to delay his trial, see Culverhouse v. State, 755 S.W.2d
856, 861 (Tex. Crim. App. 1988), and a defendant “does not have the right to
repeatedly alternate his position on the right to counsel and thereby delay trial.”
Medley v. State, 47 S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d); see
Johnson v. State, 257 S.W.3d 778, 781 (Tex. App.—Texarkana 2008, pet. ref’d)
34
(“Constitutional protections connected with the right to counsel may not be so
manipulated as to delay or obstruct the trial process.”). So too should Father not be
permitted to use his right to counsel in termination proceedings to manipulate and
delay the trial. See In re S.M.T., 2017 WL 3084300, at *14 (citing analogous criminal
cases and holding trial court did not err in denying father’s request for appointment
of counsel and withdrawal of waiver of statutory right to counsel, made on third day
of trial, where father failed to show that appointment of counsel would not cause
delay or prejudice). Under these circumstances, we hold that the trial court did not
err in refusing to appoint Father counsel after allowing his third appointed counsel
to withdraw.
We overrule Father’s eighth issue.
Sufficiency of the Evidence
In his remaining points on appeal, Father challenges the sufficiency of the
evidence to support the trial court’s termination findings.
A. Standard of Review
A trial court may order termination of the parent-child relationship if DFPS
proves, by clear and convincing evidence, one of the statutorily enumerated
predicate findings for termination, and also proves that termination of parental rights
is in the best interest of the child. TEX. FAM. CODE § 161.001(b); see In re E.N.C.,
384 S.W.3d 796, 802 (Tex. 2012) (recognizing that federal due process clause and
35
Family Code both mandate “heightened” standard of review of clear and convincing
evidence in parental-rights termination cases). DFPS must prove both elements—a
statutorily prescribed predicate finding, and that termination is in the child’s best
interest—by clear and convincing evidence. See In re E.N.C., 384 S.W.3d at 803.
The Family Code defines “clear and convincing evidence” as “the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” TEX. FAM. CODE §
101.007.
To assess the legal sufficiency of the evidence in a termination proceeding,
we consider all evidence in the light most favorable to the trial court’s finding and
decide “whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002);
see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). We assume that any
disputed facts were resolved in favor of the finding if a reasonable factfinder could
have done so. In re J.F.C., 96 S.W.3d at 266. When “no reasonable factfinder could
form a firm belief or conviction” that the matter on which DFPS bears the burden of
proof is true, we “must conclude that the evidence is legally insufficient.” Id. In
reviewing the evidence’s factual sufficiency, we consider the entire record, including
disputed evidence. Id. The evidence is factually insufficient if, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have resolved in
36
favor of the finding is so significant that the factfinder could not reasonably have
formed a firm belief or conviction. Id.
We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. See In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. See id. at 109.
B. Applicable Law
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights to the “companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982);
see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly scrutinize
termination proceedings and strictly construe the involuntary termination statutes in
favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In a case to terminate parental rights under Texas Family Code Section
161.001, the Department must establish, by clear and convincing evidence, that (1)
the parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
§ 161.001(b). Clear and convincing evidence is “the measure or degree of proof that
37
will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” Id. § 101.007; In re J.F.C., 96 S.W.3d
at 264. Only one predicate finding under Section 161.001(b)(1) is necessary to
support a judgment of termination when there is also a finding that termination is in
the child’s best interest. A.V., 113 S.W.3d at 362.
Here, the trial court terminated Father’s rights under Family Code Section
161.001(b)(1)(D), (E), (F), (N), and (O). The Texas Supreme Court has held that
because subsection (M) provides a basis to terminate parental rights due to a prior
(D) or (E) finding, due process concerns, coupled with the requirement for a
meaningful appeal, require that if an appellate court affirms a termination order
based on a (D) or (E) finding, the court must provide the details of its analysis. See
In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019). Because Father challenges the trial
court’s findings under subsections (D) and (E) in his first and sixth issues, thus
implicating due process concerns, we begin our sufficiency of the evidence analysis
with these two subsections. See id.; In re Z.M.M., 577 S.W.3d 541, 542–43 (Tex.
2019).
C. Predicate Findings under Subsection 161.001(b)(1)(D) and (E)
Family Code Section 161.001(b)(1)(D) provides that the trial court may order
termination of the parent-child relationship if it finds by clear and convincing
evidence that the parent has “knowingly placed or knowingly allowed the child to
38
remain in conditions or surroundings which endanger the physical or emotional well-
being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). Section 161.001(b)(1)(E)
provides that the trial court may terminate a parent’s rights if the court finds by clear
and convincing evidence that the parent “engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” Id. § 161.001(b)(1)(E).
This Court has previously held that “[i]nappropriate, abusive, or unlawful
conduct by persons who live in the child’s home or with whom the child is compelled
to associate on a regular basis in the home is a part of the ‘conditions or
surroundings’ of the child’s home under section D.” Jordan v. Dossey, 325 S.W.3d
700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). An analysis of
endangerment under subsection (D) focuses on evidence of the child’s physical
environment, “although the environment produced by the conduct of the parents
bears on the determination of whether the child’s surroundings threaten his well-
being.” Id.; see In re S.R., 452 S.W.3d at 360 (“‘Environment’ refers to the
acceptability of living conditions, as well as a parent’s conduct in the home.”).
Termination is permissible under subsection (D) if the Department proves that the
parent’s conduct caused a child to be placed or remain in an endangering
environment, and, under subsection (D), termination may be based upon only a
single act or omission. Jordan, 325 S.W.3d at 721.
39
Subsection (E) focuses on the parent’s conduct and asks whether the parent
engaged in a voluntary, deliberate, and conscious course of conduct that endangered
the child. V.P. v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00531-CV,
2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.).
“Endanger” means more than a threat of metaphysical injury or the possible
ill effects of a less-than-ideal family environment. Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In this context, endanger means to expose
a child to loss or injury or to jeopardize a child’s emotional or physical well-being.
Id.; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). “Environment” refers to the
acceptability of living conditions, as well as a parent’s conduct in the home. In re
S.R., 452 S.W.3d at 360. A child is endangered when the environment creates a
potential for danger that the parent is aware of but consciously disregards. Id. Under
subsection (E), courts may consider conduct both before and after the Department
removed the child from the home. See Avery v. State, 963 S.W.2d 550, 553 (Tex.
App.—Houston [1st Dist.] 1997, no writ) (considering persistence of endangering
conduct up to time of trial).
Termination under subsection (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re S.R., 452 S.W.3d at 360. A court properly may consider
actions and inactions occurring both before and after a child’s birth to establish a
40
“course of conduct.” In re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—El Paso 2012,
no pet.). While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffers injury;
rather, the specific danger to the child’s well-being may be inferred from parents’
misconduct alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738–39
(Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that subjects a child
to a life of uncertainty and instability endangers the child’s physical and emotional
well-being. In re J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019,
no pet.). The Department does not need to establish that a parent intended to
endanger a child to support termination based on endangerment. See M.C., 917
S.W.2d at 270. Under subsection (E), the evidence must show that the endangerment
was the result of the parent’s conduct, including acts, omissions, or a failure to act.
In re K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
“Domestic violence, want of self-control, and propensity for violence may be
considered as evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); accord S.R., 452 S.W.3d at 361.
Violence does not have to be directed toward the child or result in a final
conviction—“Texas courts routinely consider evidence of parent-on-parent physical
abuse in termination cases without specifically requiring evidence that the conduct
resulted in a criminal conviction.” In re V.V., 349 S.W.3d 548, 556 (Tex. App.—
41
Houston [1st Dist.] 2010, pet. denied). Conduct of a parent in the home can create
an environment that endangers the physical and emotional well-being of a child. In
re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For example,
abusive or violent conduct by a parent or other resident of a child’s home may
produce an environment that endangers the physical or emotional well-being of a
child. See id. at 776–77. Evidence that a person has engaged in abusive and violent
conduct in the past permits an inference that the person will continue to engage in
violent behavior in the future. Jordan, 325 S.W.3d at 724. Courts may also consider
evidence of a parent’s abusive conduct toward others outside the home, including
DFPS employees and staff, as evidence supporting an endangerment finding. See
Interest of M.M.M., No. 01-21-00269-CV, 2021 WL 5365102, at *10 (Tex. App.—
Houston [1st Dist.] Nov. 18, 2021, pet. denied) (mem. op.) (considering mother’s
history of engaging in violent and abusive conduct toward others, both before and
after child’s birth, including hospital staff, Department staff, and service providers,
as evidence supporting endangerment finding); In re J.L.M., No. 01-16-00445-CV,
2016 WL 6754779, at *8 (Tex. App.—Houston [1st Dist.] Nov. 15, 2016, no pet.)
(mem. op.) (considering evidence of mother’s hostility toward Department
employees during case as evidence supporting endangerment finding); In re P.M.B.,
No. 01-17-00621-CV, 2017 WL 6459554, at *10 (Tex. App.—Houston [1st Dist.]
Dec. 19, 2017, pet. denied) (mem. op.) (same).
42
There is evidence of Father’s violent tendencies. Bosier testified that Father
had called and left threatening recordings for Mother, which Mother shared with
Bosier. Bosier testified that Mother was concerned about Father’s violent streak, that
she was afraid he would hurt her, and that she believed her children needed to be
protected from Father. As further evidence of Father’s violent behavior, the trial
court heard testimony from Bosier that Father threatened her life. DFPS also
introduced evidence of Father’s previous 2016 conviction for domestic violence
assault, to which he pled guilty and was sentenced to 150 days’ imprisonment.
In addition to evidence of Father’s violent behavior, DFPS introduced
evidence of Father’s criminal history. In re S.M., 389 S.W.3d at 492 (evidence of
criminal conduct, convictions, imprisonment, and their effects on parent’s life and
ability to parent, may also establish endangering course of conduct); Walker, 312
S.W.3d at 617 (routinely subjecting child to probability that he will be left alone
because his parent is in jail endangers child’s physical and emotional well-being).
At the time of trial, Father was incarcerated on charges for driving while intoxicated
and retaliation against Bosier. Both of these charges were filed against Father during
the pendency of these proceedings. With respect to Father’s DWI charge, Officer
Stackhouse testified that Father was so intoxicated at the time he pulled him over—
at noon—that he urinated on himself three times.
43
Additional evidence was introduced about Father’s continued alcohol abuse,
including medical records related to his diagnosis of cirrhosis of the liver due to
alcohol abuse and admissions on medical intake forms dated during the pendency of
the termination proceedings that he abused alcohol. See J.O.A., 283 S.W.3d at 345
(“A parent’s continuing substance abuse can qualify as a voluntary, deliberate, and
conscious course of conduct endangering the child’s well-being.”); In re L.G.R., 498
S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); S.R., 452
S.W.3d at 361–62. He also pleaded guilty to possession of marijuana and refused
throughout the proceedings to submit to court-ordered drug tests. See In re J.H.G.,
No. 01-16-01006-CV, 2017 WL 2378141, at *6 (Tex. App.—Houston [1st Dist.]
June 1, 2017, pet. denied) (mem. op.) (father’s failure to participate in court-ordered
drug test is equivalent to positive test result); In re I.W., No. 14-15-00910-CV, 2016
WL 1533972, at *6 (Tex. App.—Houston [14th Dist.] Apr. 14, 2016, no pet.) (mem.
op.) (stating that parent’s “refusal to submit to [a] drug test may be treated by the
trial court as if he had tested positive for drugs”).
Considering the evidence in the light most favorable to the trial court’s finding
under Section 161.001(b)(1)(D) and (E), we conclude that a reasonable trier of fact
could have formed a firm belief or conviction that Father endangered his children’s
physical or mental well-being. We further conclude that, viewed in light of the entire
record, any disputed evidence could have been reconciled in favor of a finding of
44
endangerment under Section 161.001(b)(1)(D) and (E) or was not so significant that
the factfinder could not reasonably have formed a firm belief or conviction regarding
endangerment. Accordingly, we hold that legally and factually sufficient evidence
supports the trial court’s findings under Section 161.001(b)(1)(D) and (E).
We overrule Father’s first and sixth issues. Because sufficient evidence of
only one predicate finding is necessary to support termination, we need not address
Father’s challenges to the trial court’s findings under Section 161.001(b)(1)(F), (N),
or (O). See A.V., 113 S.W.3d at 362.
D. Best Interest of the Child
In his seventh issue, Father contends there is legally and factually insufficient
evidence to support the trial court’s finding that termination of his parental rights
was in the children’s best interest.
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: (1) the desires of the
child; (2) the present and future physical and emotional needs of the child; (3) the
45
present and future emotional and physical danger to the child; (4) the parental
abilities of the persons seeking custody; (5) the programs available to assist those
persons seeking custody in promoting the best interest of the child; (6) the plans for
the child by the individuals or agency seeking custody; (7) the stability of the home
or proposed placement; (8) acts or omissions of the parent which may indicate the
existing parent-child relationship is not appropriate; and (9) any excuse for the
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
These factors are not exhaustive, and evidence is not required on all of them to
support a finding that terminating a parent’s rights is in the child’s best interest. Id.;
In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting
termination under one of the grounds listed in Section 161.001(b)(1) can also be
considered in support of a finding that termination is in the best interest of the child.
See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (holding same evidence may be
probative of both Section 161.001 grounds and best interest).
DFPS “need not prove all of the factors as a condition precedent to parental
termination, ‘particularly if the evidence were undisputed that the parental
relationship endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466
(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting C.H., 89 S.W.3d at 27).
But the burden is on DFPS to rebut the presumption that the best interest of the child
is served by keeping custody in the natural parents. Vasquez v. Tex. Dep’t of
46
Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.–Houston [1st
Dist.] 2005, pet. denied).
1. Children’s Desires
Bosier testified that H.L.W. “has no intention or desire to see her father[.]”
Coffey testified that H.L.W. has never mentioned wanting to go home with Father.
S.K.W. likewise indicated to Dr. Mock that she did not want to go home with any of
her family. And both children expressed a desire to be placed in foster care. This
factor weighs in favor of termination of Father’s parental rights.
2. Children’s Needs and Proposed Placement
As detailed above, when the children came into the care of the Department,
they each had significant behavioral issues. However, since being placed in the
respective facilities, each has made substantial improvements, were very happy, and
have “blossomed.” Further, each desired to be placed in a permanent foster home.
In contrast, Father had not demonstrated the ability to parent the children or
provide for their basic needs. Father was incarcerated, did not have a consistent
home, and did not have employment. Thus, there was no evidence that Father could
provide the children with a stable home, that he had adequate parenting skills, or that
he had the ability to provide minimally adequate care. See In re C.A.J., 122 S.W.3d
888, 893–94 (Tex. App.—Fort Worth 2003, no pet.) (stating that courts may
consider parent’s poor judgment and inability to provide adequate care when
47
determining best interest and that “[w]ithout stability, income, or a home,” parent
was unable to provide for child’s emotional and physical needs).
3. Present and Future Emotional and Physical Danger to Children
A parent’s past conduct is probative of his future conduct when evaluating the
child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San
Antonio 2013, no pet.). Thus, the evidence discussed in support of the trial court’s
findings under Section 161.001(b)(1)(D) and (E) is probative as to potential danger
in determining the children’s best interest. See Walker, 312 S.W.3d at 619. The trial
court heard testimony about Father’s aggressive and threatening communications
with DFPS caseworkers and staff during the pendency of this suit. Father’s behavior
during the pendency of this suit was so hostile that DFPS sought, and the trial court
granted, a protective order for Bosier against Father due to Father’s threatening
behavior. The trial court also had before it evidence of Father’s criminal history,
which included the domestic violence assault conviction and the pending DWI and
retaliation charges for which Father was incarcerated at the time of trial, and his
continued alcohol dependency and abuse. The evidence of Father’s continued
endangering conduct supports the trial court’s best interest finding. See In re A.K.T.,
No. 01-18-00647-CV, 2018 WL 6423381, at *16 (Tex. App.—Houston [1st Dist.]
Dec. 6, 2018, pet. denied) (mem. op.) (mother’s extensive history of violent abusive
conduct directed at child, father, and other individuals, including Department
48
employees and law enforcement officers, supported best interest finding); In re
P.M.B., 2017 WL 6459554, at *13 (parent’s aggressive and hostile behavior
throughout case supported best interest finding); see also In re M.S.L., No. 14-14-
00382-CV, 2014 WL 5148157, at *7 (Tex. App.—Houston [14th Dist.] Oct. 14,
2014, no pet.) (mem. op.) (concluding father’s series of crimes, including drug-
related offenses and domestic violence, supported trial court’s best interest finding);
In re J.I.T.P., 99 S.W.3d at 846 (domestic violence, even when child is not intended
victim, supports finding that termination is in child’s best interest); In re T.G.R.-M.,
404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (considering
dismissed criminal charges relevant because mother was absent from child’s life and
unable to provide for child’s physical and emotional needs each time she was jailed).
4. Stability, Compliance with Services, Programs Available to Assist
Evidence of a parent’s unstable lifestyle can support a factfinder’s conclusion
that termination is in the child’s best interest. In re M.S.L., 2014 WL 5148157, at *8;
In re S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of
stability, including a stable home and employment, supports a finding that the parent
is unable to provide for a child’s emotional and physical needs. See In re M.S.L.,
2014 WL 5148157, at *8; In re G.M.G., 444 S.W.3d 46, 60 (Tex. App.—Houston
[14th Dist.] 2014, no pet.).
49
Although Bosier testified that at one point during the proceedings Father was
cooperating and attempting to engage and complete services, that changed. The
family service plan required Father to complete a domestic violence class, based on
his history of domestic violence. However, at the time of trial, Bosier testified that
Father had not completed the required class. Nor had he maintained a safe and stable
home and environment, as required, due to the fact that he was incarcerated. She also
testified that, even before being incarcerated, Father had moved around a lot and had
refused to provide the Department with an address.
Bosier testified that Father was required to submit to random drug testing but,
despite requests from Bosier, Father has adamantly refused to do so. Father further
failed to complete individual and family therapy, parenting classes, and outpatient
drug and alcohol treatment. Bosier testified that Father did not provide her with any
information regarding employment or receipt of any services such as Medicaid or
food stamps. Bosier stated that Father receives social security disability but does not
have any other form of income that would allow him to support the children. These
factors weigh in favor of termination.
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude the trial court could have formed a firm belief or conviction that
termination of Father’s parental rights was in the children’s best interest. See In re
J.F.C., 96 S.W.3d at266. Further, in view of the entire record, we conclude that the
50
disputed evidence is not so significant as to prevent the trial court from forming a
firm belief or conviction that termination of Father’s parental rights was in the
children’s best interest. Id.
We overrule Father’s seventh issue.
Conclusion
We affirm the trial court’s order terminating Father’s parental rights to H.L.W.
and S.K.W.3
Amparo Guerra
Justice
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
3
During the pendency of this appeal, Father filed multiple pro se letters requesting
various forms of relief from this Court. All pending motions and requests for relief
are denied.
51 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483513/ | Opinion issued November 10, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00699-CV
———————————
HONG SHENG ZHU, Appellant
V.
XIN WEI ZHANG, Appellee
On Appeal from the 505th District Court
Fort Bend County, Texas
Trial Court Case No. 19-DCV-265034
MEMORANDUM OPINION
Appellant Hong Sheng Zhu appeals from the trial court’s Final Decree of
Divorce. In a single issue, Appellant argues the trial court abused its discretion in
dividing his and his spouse’s community estate. We affirm.
Background
Appellee Xin Wei Zhang (“Appellee”) filed an Original Petition for Divorce
seeking to divorce Appellant Hong Sheng Zhu (“Zhu”). Zhu filed a counterpetition
for divorce, seeking a “disproportionate share of the parties’ estate,” among other
things. Both parties were represented by counsel in the divorce proceedings.
Appellee and Zhu participated in mediation, but could not reach a settlement.
The case proceeded to trial. Following trial, the trial court entered a Final Decree of
Divorce dividing the parties’ community estate and setting forth child support
obligations, among other things. Zhu filed a Motion for New Trial asserting he was
not given access to a Mandarin Chinese interpreter. He further argued that the trial
court abused its discretion in making the property division and calculating child
support, “newly discovered” evidence of Zhu’s unemployment should have been
admitted at trial, and Zhu’s attorney was not prepared for trial because he was
attempting to withdraw. The trial court denied the motion.
Zhu filed a pro se Notice of Appeal, asserting he did “not have [a] fair trial”
because his lawyer “want[ed] to quit his duty and did not get any financial
documents” from Appellee or her attorney. Zhu stated that as a result, he “did not
prepare any proposal.”
2
Briefing Waiver
The final judgment from which Zhu appeals is the Final Divorce Decree. He
appears to challenge the trial court’s division of the parties’ community estate. In
his summary of the argument, Zhu states that the trial was “unfair,” that it was based
“on one side [of the] story only,” and that his lawyer “lied to the court and betrayed”
him. Zhu states that the judge “tried best to be fair” but had “incomplete”
information from both sides. He concludes by stating he “only want[s] to be trea[ted]
fair and 50 % of our asset[s]. No more[,] no less.”1 Zhu provides nothing further to
clarify his position, to explain what specific ruling he challenges, or to establish how
the trial court abused its discretion.
Zhu filed his appellate brief pro se. Although we liberally construe pro se
briefs, we require pro se litigants to comply with all applicable laws and procedural
rules. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating pro se
litigants are not exempt from rules of procedure and that “[h]aving two sets of
rules—a strict set for attorneys and a lenient set for pro se parties—might encourage
litigants to discard their valuable right to the advice and assistance of counsel”);
Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (stating pro se litigants must comply with rules of
1
Zhu does not complain of the trial court’s ruling regarding custody, child support,
or visitation rights.
3
procedure so as not to “benefit from an unfair advantage over those parties who are
represented by counsel”) (citing Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.
—El Paso 2007, no pet.)); see also In re N.E.B., 251 S.W.3d 211, 211 (Tex. App.—
Dallas 2008, no pet.) (stating appellate courts should construe pro se briefs liberally).
The Texas Rules of Appellate Procedure require an appellant’s brief to
contain, among other things, “a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.” See TEX. R. APP. P.
38.1(i). When an appellate issue lacks citation to the record or legal authority and is
not supported by argument, nothing is presented for review. See Fredonia State
Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing “long-
standing rule” that inadequate briefing waives issue on appeal); Abdelnour v. Mid
Nat’l Holdings, Inc., 190 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (holding appellant waived issue because his brief had no citations to relevant
or analogous authorities or to appellate record for that issue); Walker v. Eubanks,
___ S.W.3d ____, No. 01-21-00643-CV, 2022 WL 3722404, at *4 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2022, no pet. h.) (holding issue waived for review
because appellant’s brief lacked “substantive argument, record references, or
relevant citation to legal authority” with respect to that issue).
Appellate courts are not responsible “for identifying possible trial court error,
searching the record for facts favorable to [the appellant’s] position, or conducting
4
legal research to support [the appellant’s] contentions.” Walker, ___ S.W.3d ____,
2022 WL 3722404, at *4 (citing Fredonia State Bank, 881 S.W.2d at 283–
84; Canton-Carter, 271 S.W.3d at 931; Bolling v. Farmers Branch Indep. Sch. Dist.,
315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.)). Were they to do so, courts
would be abandoning their role as neutral adjudicators and taking on the role of
advocate for the appellant. Walker, ___ S.W.3d ____, 2022 WL 3722404, at *4
(citing Valadez, 238 S.W.3d at 845); see also Canton-Carter, 271 S.W.3d at 931 (“It
would be inappropriate for this court to speculate as to what appellant may have
intended to raise as an error by the trial court on appeal. To do so would force this
court to stray from our role as a neutral adjudicator and become an advocate for
appellant.”) (citing Valadez, 238 S.W.3d at 845).
In his brief, Zhu does not provide a clear and concise argument as to why the
trial court’s Final Decree of Divorce should be reversed. See Awad v. Rasmussen-
Awad, No. 14-02-01142-CV, 2004 WL 744234, at *5 (Tex. App.—Houston [14th
Dist.] Apr. 8, 2004, no pet.) (mem. op.) (holding appellant waived appellate issues
relating to trial court’s characterization of property as community property where
brief lacked legal authority to support his argument other than general definitions of
separate property, only evidence for review was deeds at issue, and appellant did not
discuss contrary testimony given at trial); see also Tesoro Petroleum Corp. v. Nabors
Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet.
5
denied) (stating Rule 38’s briefing requirement is not satisfied “by merely uttering
brief conclusory statements, unsupported by legal citations”). Although he appears
to be challenging the trial court’s division of community property, Zhu does not
identify the standard of review, apply the standard to this case, or cite to any relevant
legal authority.2 See Canton-Carter, 271 S.W.3d at 931 (“Failure to cite legal
authority or to provide substantive analysis of the legal issues presented results in
waiver of the complaint.”). Nor does Zhu cite to the clerk’s record or reporter’s
record in his brief. The only “evidence” on which Zhu relies are four documents
attached to his brief, two of which are not in the appellate record and thus not
properly before this Court. We cannot consider documents that are not in the
appellate record. Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572
(Tex. App.—Fort Worth 2003, pet. denied) (stating appellate court may only
determine case on record as filed and cannot look outside record); see also Robb v.
Horizon Communities Improvement Ass’n, Inc., 417 S.W.3d 585, 589 (Tex. App.—
El Paso 2013, no pet.) (“It is well established that documents attached to an appellate
brief which are not part of the record may generally not be considered by the
appellate court.”).
2
The trial court’s division of marital property is reviewed for an abuse of discretion.
Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex. Civ. App.—Houston [1st Dist.]
1981, writ dism’d); Colmenero v. Colmenero, No. 01-14-00071-CV, 2015 WL
1245849, at *2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (mem. op.).
As noted, Zhu said in his brief that the judge “tried best to be fair.”
6
Because he failed to comply with Texas Rule of Appellate Procedure 38.1 and
failed to file an adequate brief, Zhu waived his issues on appeal and presented
nothing for our review. See Walker, 2022 WL 3722404, at *4; Abdelnour, 190
S.W.3d at 241; see also TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain
“clear and concise argument for contentions made, with appropriate citations to
authorities and record”).
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
7 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491034/ | DECISION AND ORDER
BURTON PERLMAN, Chief Judge.
Debtor filed a Chapter 13 case. In her schedules, debtor listed the Fifth Third Bank (“Bank”) as a secured creditor, there saying that the amount claimed by the creditor was $43,000.00, and the security therefore was 400 shares of Procter and Gamble (“P & G”) stock. In the schedules, it is also stated that the consideration for this transaction was “contingent liability with Promethean Concepts, Inc.”
The Bank reacted first to debtor’s filing of a bankruptcy case by filing a motion to dismiss on grounds that the case was filed in bad faith. It subsequently filed a motion for relief from stay which at the present time is no longer pending.
The motion to dismiss was set for hearing, the agenda for the hearing extending also to confirmation of the plan. At the hearing, the evidence was largely stipulated, but the debtor offered testimony. In addition, her deposition was made of record.
We find the following to be the facts. Debtor’s son, Mark Brookbank, started a business enterprise called Promethean Concepts, Inc. In connection with that enterprise, on June 14, 1988, debtor executed a document entitled “Consent to Pledge” whereby debtor pledged 400 P & G shares as “collateral security for the payment of any and all indebtedness, liabilities or obligations,” which became due to the Bank from Promethean Concepts, Inc. Subsequently Promethean Concepts borrowed $45,000.00 from the Bank on March 9,1989, and a further $55,000.00 on May 17, 1989. In addition to debtor’s shares of stock, the Bank was secured by the assets of Promethean Concepts, Inc. On July 10, 1989, Promethean Concepts, Inc. filed a Chapter 11 bankruptcy case. On the same date, *632debtor filed the present Chapter 13 bankruptcy case.
Prior to these filings, the Bank filed suit against Promethean Concepts, Inc. and secured a judgment against that party in the amount of $95,000.00 which they have been unable to collect. The Bank wishes to look to debtor’s 400 shares of P & G stock in order to satisfy the debt of Promethean Concepts, Inc. In her Chapter 13 plan, however, debtor provides that:
The Fifth Third Bank will continue to hold the 400 shares of P & G stock owned by the debtor as collateral for the loan of Promethean Concepts, Inc. The stock will not be sold by the creditor unless there should not be a plan confirmed in the Chapter 11 of Promethean Concepts, Inc., or unless there should be a default on the plan of Promethean Concepts, Inc.
The present debtor says that her Chapter 13 plan was filed not merely to forestall the sale of the P & G stock, but it was filed because she is in a position where she cannot otherwise manage her debts given her present resources. If debtor’s P & G stock held by the Bank were sold, this would have the extremely prejudicial effect of making her liable to a capital gains tax in excess of $8,000.00 for the year of sale.
Debtor is employed at Promethean Concepts, Inc., where she takes home $230.00 twice a month. In addition to the 400 shares of P & G stock pledged to the Bank, debtor has assets consisting of additional shares of stock plus certificates of deposit totaling approximately $77,500.00. In addition, she owns her home valued in her schedules at $35,000.00 upon which there is a $3,000.00 mortgage (and as to which she can claim an exemption of $5,000.00). Debtor receives income on account of her various holdings totaling $4,800.00 per year.
It is debtor’s contention that the reason she filed the Chapter 13 case was because on her income she is unable to manage her unsecured debt totaling some $12,000.00, and certainly an additional expense for capital gains tax of $8,000.00 would be calamitous for her.
The Bank argues that clearly debtor filed her Chapter 13 case in bad faith because the total market value of her property, less exemptions, is $135,425.00, while her indebtedness, secured and unsecured, totals something less than $60,000.00. The Bank reasons that because debtor owned capital assets sufficient to pay all of her debts, the inference must be drawn that she filed the Chapter 13 case for the purpose of defeating the Bank’s right to liquidate her 400 shares of P & G stock and apply the proceeds to the indebtedness of Promethean Concepts, Inc. Debtor disputes the Bank’s contentions by saying that liquidating her capital assets would jeopardize her security in that she would not have resources with which to meet the perils which occur as one grows older. In addition, we accept her testimony that her resources were insufficient to pay her existing unsecured creditors on a current basis. Her marital situation is unsatisfactory, and does not provide her with a dependable and significant source of support.
Notwithstanding the hardship which may result to debtor, we hold that the Bank’s motion is well taken, particularly in view of the specific plan provision regarding the Bank’s collateral. The Bank advanced money to Promethean Concepts, Inc. on its promise to repay its debt, and secured itself by taking as collateral the assets of Promethean Concepts, Inc. Before it would advance money to that corporation, however, the Bank required further security. That was the collateral, the 400 shares of P & G stock, belonging to this debtor. This debtor now proposes to strip the Bank of the second assurance which it got as a pre-condition to advancing money to Promethean Concepts, Inc. What is here proposed is that the Bank be deprived of its right to look to its guarantor, and limited to recovery from its primary obligor. While debtor calls our attention to legislative history suggesting that it is an objective of Chapter 13 to help debtors preserve assets and cases suggesting that good faith is shown where a purpose helpful to the debtor is present, nowhere does debtor present authority supporting her effort to *633deprive the Bank of its right to look to debtor’s P & G stock.
The good faith required by 11 U.S.C. Section 1325(a)(3) does not require merely that a debtor not be motivated by a dishonest or malicious purpose. Good faith requires that a plan “conform with the provisions, purposes, and spirit of Chapter 13.” 15 Collier on Bankruptcy, Section 1325.-04[2] p. 1325-12 (1989 ed.). This plan does not meet that test. In In re Neal, 21 B.R. 712, 714 (Bankr.S.D.Ohio 1982), we said:
After careful consideration of the Code, we have concluded that the power of the debtor to modify the rights of a secured creditor holding collateral which is not residence real estate, is not unlimited. We come to this conclusion based upon the changes made in Chapter 13 by the Bankruptcy Code, by contrast to its predecessor in the Bankruptcy Act. A fundamental change was wrought, for under the Code a Chapter 13 plan may be confirmed without the affirmative vote or approval of creditors. In exchange for conferring upon the court the power to confirm without the consent of creditors, the Congress intended that there be limitations on how that power could be exercised. With respect to secured creditors these limitations are to be found basically but not entirely at 11 U.S.C. Section 1325(a)(5). Apart from the techniques provided in the several subparts of Section 1325(a)(5) the Code permits the curing of defaults pursuant either to 11 U.S.C. Section 1322(b)(3) or (5). By creating these ground rules, the Congress set up within the statute itself standards deemed fair to those creditors being deprived of the right to take normal enforcement action against a debtor.
Because there is not consent by the secured creditor in this case, debtors could resort to Section 1325(a)(5)(C), and surrender the collateral of the secured creditor to the creditor. This is not being proposed by the debtors. Debtors could utilize the technique provided by Section 1325(a)(5)(B)(ii), seek a valuation of the collateral and provide for a distribution to the secured creditor under the plan of the value. Debtors are not proposing this alternative.
Debtor has in her schedules classified the Fifth Third Bank as a secured creditor, so that the foregoing language is directly relevant here. As was true in Neal, the present debtor invokes none of the alternatives prescribed in Section 1325(a)(5).
Because debtor’s plan is outside the possibilities allowed a debtor in dealing with a secured creditor by Chapter 13, it does not conform to the provisions, purpose or spirit of Chapter 13 as contained in the Bankruptcy Code. We hold therefore that debtor’s plan is not proposed in good faith and the Bank’s motion must be granted. In reaching this conclusion, we reject the argument of debtor that the Bank is not prejudiced by preventing it from resorting to collateral for which it had bargained over the period which would be involved in confirming a Chapter 11 plan for Promethean Concepts, Inc. and seeing whether that entity could perform the plan. While P & G stock is excellent collateral, cyclic swings of the stock market are a matter of common knowledge and requiring that the Bank be exposed to the risk of such swings is clearly prejudicial. Further, while debtor has shown prejudice to herself if sale of the P & G stock takes place, an offsetting factor to that prejudice is that she, upon realization by the Bank of the proceeds of sale of its collateral, would be subrogated to the rights of the Bank against Promethean Concepts, Inc. There is an equitability to allowing her to bear the risk of the success or failure of that entity rather than the creditor. ■
Debtor shall have twenty (20) days from the date of entry of this Decision and Order to file an amended plan which is consistent with this Decision. If debtor fails to do so, the Bank may present a final order of dismissal.
So Ordered. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491035/ | MEMORANDUM OPINION
RONALD S. BARLIANT, Bankruptcy Judge.
The Debtor in this case is a limited partnership. Its general partner, TCLP, Inc., made a post-petition loan to the Debtor, evidenced by a note and a mortgage on the Debtor’s principal asset. TCLP, Inc. was represented in connection with that transaction and related matters by the law firm of Shefsky & Froelich, Ltd. TCLP, Inc. is now requesting reimbursement from the estate of its legal expenses, totalling $19,-435.18. That request will be denied.
The first basis upon which TCLP, Inc. claims a right to compensation to its lawyers from the assets of this estate is that, according to TCLP, Inc., the Debtor is obligated to pay those fees under the mortgage and partnership agreement. The mortgage secures “all ... indebtedness and liabilities, direct, indirect, absolute or contingent owing by the Mortgagor [i.e., the Debtor] to the Mortgagee [i.e., TCLP, Inc.] in any manner and at any time whether in the past or hereafter_” The partnership agreement provides:
The Partnership will reimburse the General Partner for any and all costs incurred by the General Partner on behalf of the Partnership, including costs related to legal, accounting, data processing, duplicating and other similar services.
TCLP, Inc. argues from these documents that the Debtor had a contractual obligation to pay these legal fees and that obligation is secured by the mortgage. Since the collateral was sold for more than the total amount of the secured debt, TCLP, Inc. argues, those fees should be paid from the remaining proceeds of that sale.
The principal defect in that argument is that the Debtor is not obligated to pay its general partner’s fees, except when those fees are incurred “on behalf of the Partnership.” Here, the fees were incurred in connection with transactions' between the general partner and the partnership, not a transaction TCLP, Inc. entered into on behalf of the Debtor. The general partner retained counsel to protect its own interests in connection with those transactions; the Debtor/partnership was separately represented by other counsel. TCLP, Inc. did not represent, or act “on behalf of” the Debtor with a third party, but on its own behalf with the partnership. The partnership agreement does not obligate the Debt- or to pay all the general partner’s expenses incurred in connection with the partnership, but only expenses incurred on “behalf of the Partnership”. The expenses claimed here do not fall within that category.
Since the Debtor is not obligated under the partnership agreement to pay these expenses, it follows that the mortgage does not secure that payment. Therefore, payment cannot be allowed from the proceeds of the sale of the encumbered asset, or from any other proceeds of this estate.
TCLP, Inc. also briefly argues that it should be entitled to these fees on “purely equitable grounds,” relying on the provisions of 11 U.S.C. § 503(b)(3) and (4) that *650permits the compensation of attorneys for certain entities who have made a substantial contribution to the estate. This claim, too, falls short.
“Applications’ filed under section 503(b)(3) must be scrutinized carefully for they are filed after the services are performed, yet without prior court approval and, sometimes, knowledge.” In re Food Workshop, Inc., 70 B.R. 962, 967-68 (Bankr.S.D.N.Y.1987). The principal contribution alleged here is the lending of money to the Debtor. There is no doubt that the loan benefitted the estate. Presumably every business transaction entered into by a debtor-in-possession is for the benefit of the estate. It does not follow, however, that every entity that enters into such a transaction with a Chapter 11. debtor is entitled to have its legal fees paid by the estate, in addition to whatever consideration it bargained for.1 TCLP, Inc. has cited no case, and this Court has found none, that has awarded fees under §§ 503(b)(3) and (4) incurred by entities in the course of loan or other business transaction with the Debtor. Nor is there any reason for a special rule simply because the lender here is the general partner of the Debtor.
There is another factor here that militates against allowance of these fees. The post-petition loan transaction and other transactions involving the general partner were approved by this Court after notice and hearings. Those hearings included a consideration of the costs to the estate of the transactions. At no time during those hearings did the Debtor or the general partner indicate that those costs would include the general 'partner’s separate attorneys fees. Once the parties have agreed to the terms of a contract and that contract has been approved by the Court, the allowance of additional consideration to one party, without any equivalent consideration to the other, is inappropriate.
For these reasons, the Motion of TCLP, Inc., for Allowance of Secured Claim is denied to the extent it seeks reimbursement of legal expenses.
An Order will be entered accordingly.
. It should be noted that this Court has previously allowed payment of the principal and interest due under the note to TCLP, Inc. That payment included about $19,000 in interest calculated at the rate of 3% over a defined prime rate. The interest under the note averaged about 14% per year. That is the consideration for which TCLP, Inc., openly bargained, which was approved by this Court, and which now has been paid. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491036/ | ORDER
JOHN L. PETERSON, Bankruptcy Judge.
In this Chapter 7 case, Yellowstone Valley Properties, a co-partnership, and Safeco Insurance Company of America have filed a complaint against the Debtor, Kenneth L. Eames, seeking a determination that the debt owed each creditor is non-dischargea-ble under Section 523(a)(4) and (6) of the Bankruptcy Code. The parties have submitted the matter on an agreed statement of facts which center around state court findings and judgment entered in favor of the objecting creditors.
The stipulated facts are identical to the findings of fact entered by the state district court described above and are as follows:
STIPULATED FACTS
1. That Defendant, Kenneth L. Eames (hereinafter referred to as “Eames”), was at the times and for the purposes pertinent herein a duly licensed real estate salesman pursuant to Title 37, Chapter 51, M.C.A.
2. That at all times pertinent herein, Eames was the managing partner and attorney-in-fact for the Plaintiff, Yellowstone Valley Properties, a Montana general part*744nership, (hereinafter referred to as “YVP”).
3. That YVP was formed to subdivide and sell single-family residential property located in Hypark Subdivision, such subdivision being in Yellowstone County, Montana.
4. That YVP entrusted Eames to advertise for, locate, negotiate with prospective purchasers, and to sell developed single-family residential lots on behalf of YVP, and YVP agreed to pay Eames a commission for such services.
5. That on or about August 11, 1981, Eames, on behalf of YVP, negotiated and ultimately executed a contract for YVP with Design Builders, Inc., for the purchase by Design Builders, Inc., of ten (10) YVP lots within Hypark Subdivision, First Filing, for the sum of $180,000.00.
6. That over the course of the next four years, Eames received from Design Builders, Inc., a total of $213,660.00 toward the purchase of the aforedescribed lots.
7. That with respect to such sale, Eames earned and collected the sum of $15,000.00 as a commission.
8. That of the total funds received, Eames applied $15,000.00 toward the payment of his commission, $160,200.00 was properly paid to YVP, and the remaining $37,800.00 was willfully and without justification or excuse converted by Eames for his own purposes.
9. That in the course of other dealings with Design Builders, Inc., Eames, on behalf of YVP, came into possession of moneys paid in consideration of a grant by YVP of certain purchase option rights to Design Builders, Inc.
10. That Eames willfully and without justification or excuse converted a portion of such funds paid by Design Builders, Inc., for his own purposes, even though rightfully belonging to YVP.
11. During the months of August and September, 1986, Eames, on behalf of YVP, negotiated and ultimately executed an agreement for the sale of a residential lot owned by YVP described as Future Lot 9, Block 1, Hypark Subdivision, Second Filing, before the final subdivision plat as to such land was approved.
12. That the purchaser of said lot paid Eames a total of $16,000.00 for the property, which amount was willfully and without justification or excuse converted by Eames for his own purposes.
13. That between July and November of 1985, Eames, on behalf of YVP negotiated and ultimately executed an agreement for the exchange and sale of a residential lot owned by YVP described as Future Lot 14, Block 1, Hypark Subdivision, Second Filing, before the final subdivision plat as to such land had been approved.
14. That the purchaser of said lot paid Eames a total of $27,000.00 for the property, which amount was willfully and without justification or excuse converted by Eames for his own purposes.
15. That during March of 1986, Eames, on behalf of YVP, negotiated and ultimately executed an agreement for the sale of a residential lot owned by YVP described as Future Lot 3, Block 2, Hypark Subdivision, Second Filing, before the Final subdivision plat as to such land had been approved.
16. That the purchaser of said lot paid Eames a total of $25,570.00 for the property, which amount was willfully and without, justification or excuse converted by Eames for his own purposes.
17. That the aforementioned acts of conversion and fraud were perpetrated by Eames by depositing certain receipts properly belonging to YVP into a bank account unknown to YVP (such account being an account at First Citizens Bank, Billings, Montana, maintained by Eames in the name of “First Realty Co. Operating Account”) and by failing to account to YVP for such receipts.
18. That in addition to the foregoing, Eames committed other acts of fraud, misrepresentation and conversion consisting of the conversion of other funds belonging to YVP for his personal use, the use of false pretenses to obtain funds from others for which YVP was ultimately responsible, misrepresentations to YVP to conceal his *745fraud and conversion, and the conspiring with others in order to conceal his fraud.
19. That as a result of the aforede-scribed acts of fraud, misrepresentation and conversion committed by Eames, YVP was damaged in a total amount which is not ascertainable with absolute certainty. However, to avoid costly and protracted litigation, YVP and Eames stipulated that the damages to YVP totalled $166,850.00.
20. YVP discovered the aforedescribed conversion some time in October, 1986, and on or about April 30, 1987, YVP brought suit against Eames in Yellowstone County Cause No. DV 87-728. By such suit, YVP sought in excess of $200,000.00 in damages plus punitive damages against Eames.
21. After discovery had been completed in Cause No. DV 87-728, Eames, and his then counsel of record, consented to entry of judgment in favor of YVP in the amount of $166,850.00, based on the aforementioned factual background.
22. On July 15, 1988, the State District Court entered its Findings of Fact, Conclusions of Law, and Order in Cause No. DV 87-728. Pursuant to the Conclusions of Law entered, it was determined by the State District Court that: Eames willfully and without justification or excuse converted funds rightfully belonging to YVP for his own purposes; that Eames committed fraud against YVP; and that as a result of Eames’ intentional acts of conversion and/or fraud, YVP was damaged in the amount of $166,850.00.
23. On July 15, 1988, judgment was entered by the State District Court in favor of YVP and against Eames in the amount of $166,850.00, together with interest at the rate of 10% per annum from the date of the judgment until paid.
DISCUSSION
Section 523(a)(4), provides that debts incurred by “fraud or defalcation while [the debtor was] acting in a fiduciary capacity, embezzlement or larceny” are non-dis-chargeable. The issue presented as to the case sub judice is whether the debtor, Eames, was “acting in a fiduciary capacity” when he committed the defalcation. Rocky Martin General Agency v. Rustad, 5 Mont.B.R. 44, 45 (Bankr.Mt.1987) adopted the holding of the decision of the Ninth Circuit Court of Appeals of Ragsdale v. Haller, 780 F.2d 794 (9th Cir.1986), which case is factually close to the present case. Ragsdale holds:
The meaning of “fiduciary” in § 523(a)(4) is an issue of federal law. See Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S.Ct. 151, 153-54, 79 L.Ed. 393 (1934); [ln re ] Pedrazzini, 644 F.2d [756] at 758 [9 Cir.1981]. The broad, general definition of fiduciary — a relationship involving confidence, trust and good faith — is inapplicable in the dischargeability context. See Angelle v. Reed (In re Angelle), 610 F.2d 1335, 1338-39 (5th Cir. 1980). The trust giving rise to the fiduciary relationship must be imposed prior to any wrongdoing; the Debtor must have been a “trustee” before the wrong and without reference to it. Davis, 293 U.S. at 333, 55 S.Ct. at 153-54; Pedrazzini, 644 F.2d at 758. These requirements eliminate constructive, resulting or implied trusts. Pedrazzini, 644 F.2d at 759.
Although the concept of fiduciary is to be narrowly defined as a matter of federal law, state law is to be consulted to determine when a trust in this strict sense exists. Id. at 758. Ragsdale asserts that all California partners are fiduciaries, pointing to Cal.Corp.Code § 15021 (West 1977) and to a string of court decisions. § 15021(1) provides:
Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.
He claims that the words “hold as trustee” establish an express trust, that all partners are trustees for the rest of the partnership, and that a partner is therefore a fiduciary within the meaning of the act. However, under this statute, the trust arises only when the partner *746derives profits without consent of the partnership; it is the sort of trust ex maleficio not included within the purview of § 523(a)(4). See Davis, 293 U.S. at 333, 55 S.Ct. at 153-54; Teichman v. Teichman (In re Teichman), 774 F.2d 1395, 1399 (9th Cir.1985). But see Holmes v. Kraus (In re Kraus), 37 B.R. 126, 130 (Bkcy E.D.Mich.1984) (holding that partners are fiduciaries for the purpose of § 523(a)(4) relying on Michigan statute with identical language).
Montana has an identical code section to Cal.Corp.Code § 15021(1). Section 35-10-405(1), M.C.A. states:
“Every partner must account to the partnership for any benefit and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.”
By reason of the holding in Ragsdale, without more than the statutory constructive trust imposed on each partner to the partnership, the fiduciary element is not satisfied under federal law.
Ragsdale, however, found that California law raised the duties of partners beyond that required by the California Code, and adopted an express trust duty that—
“partners are trustees for each other, and in all proceedings connected with the conduct of the partnership every partner is bound to act in the highest good faith to his co-partners, and may not obtain any advantage over him in the partnership affairs by the slightest misrepresentation, concealment, threat or adverse pressure of any kind,”
citing Leff v. Gunter, 33 Cal.3d 508, 514, 658 P.2d 740, 744, 189 Cal.Rptr. 377, 381 (1983). Id. at 796. By reason of such case authority, Ragsdale held that “California partners are fiduciaries within the meaning of Section 523(a)(4) * * *.” Id. 796-97. The only case authority in Montana regarding corresponding partner obligations is Hansen v. Hansen, 130 Mont. 175, 297 P.2d 879 (1956). A careful reading of the Hansen decision shows that Montana has, like California, adopted a rule of express trust between partners. Hansen holds:
“The general rule is, where, as here, a partner assumes the responsibility of management and operation of a partnership business, and takes over the accounts, books and bank accounts thereof, he acts as a trustee for the partnership * * * >>
Hansen cites with approval Hatten v. Interocean Oil Co., 182 Okl. 465, 78 P.2d 392, 116 A.L.R. 727 (1938), which holds:
“It is generally held that it is the duty of a partner who manages, conducts or operates the partnership business to render accounts of his management of the business and, acting as a trustee for the firm, he must render full, exact and true account of all transactions to his partner or partners. Each partner should be charged with everything which he should justly pay or account for to the firm, and credited with everything which the firm, as a distinct entity, should pay or account for to him.” 78 P.2d at 397.
It is clear the trustee obligation is thus independent of, and in addition to, the statutory duty. Hansen, 297 P.2d at 883, cited the predecessor to Section 35-10-405(1) in discussing the negligence of a managing partner in failing to keep accurate books. But the other trust duty imposed by common law doctrine was also adopted, and thus, like California as found in Ragsdale, supra, Montana partners are fiduciaries within the meaning of Section 523(a)(4).
In Ragsdale, as well as Leff v. Gunter, and Hansen v. Hansen, supra, partners were parties against partners, absent the separate legal entity of the partnership. Moreover, each case holds that the trust duty runs not to the partnership, for the Code covers that trust ex maleficio, but rather to each partner. In the present case, only the partnership, not the partners, are objecting to the discharge, and only the partnership, a distinct legal entity, has recovered the state court judgment. Under this posture of the case, Section 523(a)(4) offers no relief to the partnership, for the only trust imposed against a partner to partnership is a trust based on state *747law which, as Ragsdale holds, imposes a trust ex maleficio, because the “trust arises only when the partner derives profits without consent of the partnership * * * Ragsdale, supra, at 796. Further, as to the surety, Safeco, it cannot assert any rights under Section 523(a)(4) for it is not a partner. There was no fiduciary duty of any kind between the Debtor Eames, and Safeco. By the reason of the foregoing analysis, the partnership’s claim of non-dischargeability under Section 523(a)(4), and that of Safeco, fails. This holding is in accord with the rule that the concept of fiduciary under federal law is to be narrowly construed.
The other ground asserted for non-dischargeability by the partnership and Safeco is Section 523(a)(6), which provides that debts are non-dischargeable when incurred “for willful and malicious injury by the debtor to another”. In re Cecchini, 772 F.2d 1493 (9th Cir.1985) governs the result. Cecchini holds, in discussing the split of authority as to the term “willful and malicious injury”:
“Plaintiffs construction of ‘willful and malicious’ accords with that of other circuits which have recently addressed the matter. See e.g., In re Franklin, 726 F.2d 606, 610 (10th Cir.1984) (“‘willful and malicious” requires the intentional doing of an act which leads to injury’); In re Held, 734 F.2d 628, 629-30 (11th Cir.1984) (a finding of recklessness does not resolve the § 523(a)(6) inquiry); Matter of Quezada 718 F.2d 121, 123 (5th Cir.1983) (‘“willful” means deliberate, a-deliberate and intentional act which necessarily leads to injury’); Seven Elves, Inc. v. Eskenazi, 704 F.2d 241, 245 (5th Cir.1983) (without just cause or excuse).
This construction is also in accord with that set forth in the leading bankruptcy treatise:
In order to fall within the exception of Section 523(a)(6), the injury to an entity or property must have been willful and malicious. An injury to an entity or property may be a malicious injury within this provision if it was wrongful and without just cause or excessive, even in the absence of personal hatred, spite, or ill-will. The word “willful” means “deliberate or intentional,” a deliberate and intentional act which necessarily leads to injury. Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury.
3 Collier on Bankruptcy § 523.16 at 523-118 (15th ed. 1983). The ‘reckless disregard’ standard of Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1902) and its progeny has been explicitly overruled. See, id. at § 523.16(3) and 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6320-21.” Id. at 1495.
Thus, the test is whether the debt was created by a willful and malicious act by the Debtor, done intentionally, and without just cause. Specific intent to injure is not an element.
In the present case, the facts establish by clear and convincing evidence that this Debtor converted property and funds to his own use, without any just cause, and to the damage of the partnership in the sum of $166,850.00. Of that sum, Safeco has paid $10,000.00 to the partnership, thus reducing its loss to $156,850.00. Cecchini involved a conversion of funds, as does the present case and holds:
“With respect to the specific act of conversion, Collier states that ‘the conversion of another’s property without his knowledge or consent, done intentionally and without justification and excuse, to the other’s injury, is a willful and malicious injury within the meaning of the exception.’ 3 Collier on Bankruptcy, § 523.15[1] at 523-120 (citations omitted). This formulation accords with the Supreme Court’s holding in McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205 (1916), affirming a lower court’s determination that debts from conversion are willful and malicious, and therefore, nondischargeable. In so holding, the Court rejected the requirement that malice toward the individual need be shown, emphasizing that it is the ‘honest debtor, and not a malicious wrongdoer, *748that [is] to be discharged.’ Id. at 142, 37 S.Ct. at 40 (quoting Tinker v. Colwell, 193 U.S. 473, 488, 24 S.Ct. 505, 509, 48 L.Ed. 754 (1906).” Id. at 1496.
Based on the foregoing, I hold that the debt due the partnership in the sum of $156,850.00 is non-dischargeable under § 523(a)(6).
The sum paid by Safeco of $10,-000.00 is dischargeable since the actions of the debtor, albeit dishonest, were committed against the partnership, not Safeco. In other words, there was no intended wrongdoing against Safeco, who is a third party to the transaction only by reason of the surety bond in existence at the time of the defalcation. The act of defalcation is the very purpose for the bond, and Plaintiff has cited no authority by which Safeco can bootstrap the partnership’s right of action under § 523(a)(6) against the Debtor. Indeed, the stipulated facts wholly fail to disclose any dishonest activities by the Debtor against Safeco. While the facts are only disclosed in the Creditors’ brief, it is obvious the liability to Safeco arises from a breach of contract under the surety bond. As stated in In re Akridge, 71 B.R. 151, 154 (Bankr.S.D.Cal.1987):
“Debts which are excepted from discharge under Section 523(a)(6) relate solely to tortious liabilities and not to debts stemming from breach of contract, (citing cases)”
Since objections to discharge are to be strictly construed in favor of the Debtor, In re Boyer, 62 B.R. 648 (Bankr.Mont. 1986), and against the Creditor, the Creditor, Safeco, has failed to sustain its burden of proof.
IT IS ORDERED the clerk shall enter judgment in favor of Yellowstone Valley Properties, a Montana general partnership, and against the Defendant, Kenneth L. Eames, in the sum of $156,850.00. It is further ordered said judgment is non-dis-chargeable under 11 U.S.C. Section 523(a)(6).
It is further ordered the Complaint of Plaintiff Safeco Insurance Company of America against defendant, Kenneth L. Eames, is dismissed. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491037/ | ORDER ON MOTIONS FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 case and the matters under consideration are Motions for Summary Judgment filed by both One Fourth Street North, Ltd. (Debtor) and Florida Federal Savings and Loan Association (Florida Federal). The Motions are filed in adversary proceeding number 89-231, which was brought by the Debtor who seeks a determination by this Court that the certain lease entered into by the Debtor and Florida Federal has been effectively terminated prior to the commencement of this Chapter 11 case. Both the Debtor and Florida Federal contend that there are no genuine issues of material fact and each asserts that they are entitled to a favorable judgment in their respective favor as a matter of law.
It is the contention of the Debtor that based on the default by Florida Federal *789under its obligation to pay rent under the lease, the lease has been effectively terminated as of April 25,1989. In opposing the Debtor’s contention, Florida Federal not only filed an answer, which is basically a general denial coupled with some affirmative defenses, but also filed a counterclaim in which it seeks a determination by this Court for judgment in its favor based on equitable principles to avoid forfeiture of its leasehold interest (Count I of the Counterclaim). Florida Federal also seeks a declaration from this Court that under the terms of its note, mortgage, modifications and other instruments, it had a right to retain or setoff the rent payment due by it to the Debtor and, therefore, the lease is still in full force and effect and it is not in default (Count II of the Counterclaim), and, therefore, has not been terminated.
The facts which are relevant to a resolution of the claims asserted by the Debtor and by Florida Federal are indeed basically without dispute and as appear from the record and from the exhibits and affidavits on file can be summarized as follows:
On or about December 29, 1984, Florida Federal sold the Florida Federal Building located at One Fourth Street North to the Debtor. The transaction was financed by Florida Federal and the Debtor executed several Notes, Mortgages, Assignments of Rents, Security Agreement, Loan Agreements and other instruments of security as described in the Counterclaim in favor of Florida Federal to secure the advances by Florida Federal to the Debtor in the original amount of $6,800,000.00. In April of 1986, the Debtor obtained an additional advance in the amount of $1,455,000.00 bringing the principal sum advanced by Florida Federal to $8,245,000.00. In August of 1988, the parties executed a Second Modification of Note and Mortgage Agreement (Exhibit I to the Counterclaim). On the date of the original sale and purchase, the Debtor and Florida Federal also entered into a lease entitled “Memorandum of Lease Agreement” whereby Florida Federal agreed to lease the basement, ground floor, mezzanine, and second floor of the office building purchased by the Debtor from Florida Federal (Exhibit G-l of the Answer and Counterclaim of Florida Federal). On May 30, 1986, the parties also entered into a modification of the original lease entitled “Lease Agreement” which added 11,886 square feet of rentable space to the original lease referred to as Suite 350. This modification or addendum to the lease contained the covenant to the effect that the tenant, i.e., Florida Federal, will not have a right to use setoff against any of the rent due and owing to the Debtor under the lease. There is no such covenant included in the original lease.
The Debtor made payments under the terms of the Notes, Mortgages and Modifications, including the payment due October 1, 1988. At that time, there was a balance owing on the notes in the principal amount of $8,245,000.00. The Debtor has made no payment to Florida Federal since October 1, 1988.
Florida Federal, after receiving no payments on the Notes for the months of November and December of 1988 and January and February of 1989, gave notice of acceleration by letter of its attorney sent to the agent of the Debtor and withheld any further rent payment to the Debtor claiming that it was entitled to offset the monies due and owing to it under the note and mortgage against the rent which it was obligated to pay to the Debtor. Florida Federal ceased paying rent in February of 1989. Florida Federal claims that it had a right to withhold the rent payments by virtue of the terms of the provisions of the Mortgage regarding assignments of rents and by the separate assignments of rents provision under Florida Statutes § 697.07, the Security Agreement and Uniform Commercial Code, and the common law permitting the right of self help and setoff.
The Assignments of Rents provision of paragraph 15 of the Mortgage clearly indicates that upon default, Lender may exercise its appointment as attorney-in-fact to collect rents, issues, profits, income and accounts receivable, with and without suit, and apply the same, less expenses of collection, to the indebtedness. Paragraph 30 of the Mortgage further provides that rents collected be applied first toward interest *790and, if any remaining, toward principal (Affidavit of Michael Lyons).
Under the separate Assignments of Rents Agreement (Exhibit E to the Counterclaim), the Debtor assigned, as additional collateral and security for the payment of the indebtedness, all present and future rents, issues, profits and income from the property, and each and every part and parcel thereof, and also all present and future right, title and interest in any lease. Florida Federal, after default by the Debtor, noticed the Debtor of its exercise of its rights under the Assignments of Rents Agreement, and pursuant to Florida Statutes § 697.07 (Exhibit J to the Counterclaim). Additionally, the Security Agreement (Exhibit C to the Counterclaim) states in the recitals the collateral which is subject to the security interest. That paragraph indicates that all matters, including proceeds thereof described in Exhibit “B” attached to the Security Agreement are considered collateral. Exhibit “B” to the Security Agreement describes the collateral and includes in the Fifth unnumbered paragraph of page one of Exhibit “B” the following:
“All of the borrowers’ interest as Lessor in and to all leases or rental arrangements of the property, or any part thereof, heretofore made and entered into, and in and to all leases and rental arrangements hereafter made and entered into by Borrower during the life of the Security Agreements or by any extension or renewal thereof, together with all rents and payments in lieu of rents, together with any and all guarantees of such leases and rental arrangements including all present and future security deposits and advance rentals.” (Emphasis added)
The Security Agreement further adopts the remedies contained under the Uniform Commercial Code and under the laws of the State of Florida upon the default of the borrower. Florida Statutes § 679.502(1) permits the secured party to notify and collect from the Obligor that all payments are to be made directly to Florida Federal. Florida Federal informed the Debtor that it intended to exercise its rights under the Security Agreement (Exhibit J to the Counterclaim).
The interest due under the monthly payments of the Note, Mortgage and Modifications, excluding claims for late charges and claims for accelerated interest rates, ranged from approximately $70,000.00 to $90,000.00 (Bettie Van Tilburg’s Affidavit, paragraphs 8 through 12). The sums due Florida Federal from the Debtor exceeded only a monthly basis the sums owed by Florida Federal under Rental Agreements. Florida Federal applied the withheld rental sums to the indebtedness of the Debtor. On April 25, 1989, the Debtor caused a letter to be sent by certified mail pursuant to the notice requirements of Paragraph 17.1(b) notifying Florida Federal that due to the default in rent payments, the lease between the Debtor and Florida Federal was terminated pursuant to the default provisions of Paragraph 17 of the original lease.
In its counterclaim, Florida Federal intimates that the Debtor seeks double rent based on the default. This Court is satisfied, however, that inasmuch as no prayer for double rent can be found anywhere in the pleadings, it is unnecessary for this Court to consider anything relating to double rent.
Based on the foregoing, this Court is satisfied that there is a bona fide dispute between Florida Federal and the Debtor and that based upon this bona fide dispute, Florida Federal was entitled to withhold the rental payments from the Debtor, its Landlord. In addition, this Court is well aware that Florida law traditionally abhors the forfeiture of landlord-tenant leases. As Florida Federal has pointed out, forfeiture clauses as contained in the leases attached to the Complaint (Exhibits A and B), are not favored in law or in equity under the case law in the State of Florida. Rader v. Prather, 100 Fla. 591, 130 So. 15 (1930). The Florida Supreme Court has ruled that a court of equity has authority to relieve a tenant from forfeiture of his estate based upon his failure to pay rent as required by the lease. Id. Generally, equity will relieve against the forfeiture of a lease for *791the nonpayment of rent whenever it is just and equitable to do so. Of course, the condition precedent to such relief is the tender of payment of the arrears of the rent with accrued interest. Nevins Drug Co. v. Bunch, 63 So.2d 329 (Fla.1953); Rader v. Prather, supra; Brownlee v. Sussman, 238 So.2d 317 (Fla. 3d DCA 1970); Seidle v. Pan American World Airways, Inc., 5 B.R. 152 (Bankr.S.D.Fla.1980); Executive Square Office Building v. O’Connor and Associates, Inc., 19 B.R. 143 (Bankr.N.D.Fla.1981). This Court is satisfied that Florida Federal sufficiently met this condition by depositing into the registry of the court the tender of the rental payments with accrued interest when it filed its counterclaim.
Based on the foregoing, this Court is satisfied that there are no material facts in dispute which are relevant to the matter under consideration and that, therefore, this matter can be resolved by summary judgment. Inasmuch as there was a bona fide dispute between Florida Federal and the Debtor and Florida Federal was entitled to withhold rental payments, this Court is satisfied that as a matter of law, the lease was not terminated and still remains in full force and effect. Therefore, the Defendant's Motion for Summary Judgment should be granted, and the Debt- or/Plaintiff’s Motion for Summary Judgment should be denied.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Defendant’s Motion for Summary Judgment be, and the same is hereby, granted. It is further
ORDERED, ADJUDGED AND DECREED that the Plaintiffs Motion for Summary Judgment be, and the same is hereby, denied. It is further
ORDERED, ADJUDGED AND DECREED that a separate Final Judgment shall be entered in accordance with the foregoing.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491038/ | MEMORANDUM OF DECISION
ROBERT L. KRECHEVSKY, Chief Judge.
The ruling in this proceeding is governed by the decision rendered this date in the companion matter, Division of Special Revenue, State of Connecticut v. Allan and Joan Schusterman (In re Schusterman), 108 B.R. 893 (Bankr.D.Conn.1989) (Krechevsky, J.).
The debt of the debtors to the State is determined to be discharged. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491039/ | OPINION
DANIEL J. MOORE, Bankruptcy Judge.
The Court presently considers the Omnibus Motion of First Fidelity, N.A. (“First Fidelity” or “Bank”) which seeks the release of various Lots 1 of pepper located in warehouses throughout New Jersey and New York. The Lots, subject of this motion, are particularized on Schedule D of a report prepared by the accounting firm of Peterson & Co., Consulting (“Peterson & Co.”). Specifically, Schedule D reflects those Lots of pepper which are still in the possession of various warehouses. The Bank’s Omnibus Motion arises in an adversary proceeding instituted by the Debtor, Quality Spice Corporation (“Quality Spice” or “Debtor”), against certain public warehouses and spice processors who have possession of certain quantities of spice. Debtor asserts an interest in this spice as of the time it filed its petition. The Creditor’s Committee intervened in the action and, as a third party plaintiff, added more than 250 party defendants to the proceeding. The third party defendants are entities which either owned pepper or claimed Lots of pepper in which Debtor appeared in the chain of title. This is a proceeding arising under, arising in or related to Chapter 11 of Title 11 of the United States Code (“U.S.C.”). The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157 and the standing Order of Reference entered by the District Court of New Jersey on July 23, 1984. The following constitutes the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
* * * * * *
Some of the case history is set forth in an unrelated opinion rendered in connection with Debtor’s application to assume and/or assign certain executory contracts; nevertheless, a brief summary is provided here.
Before Debtor filed for bankruptcy protection, it was a major factor in the pepper trading market. Although pepper trading is not conducted on any recognized commodity exchange, those entities which trade and purchase pepper, as a matter of course, use a form contract established by the American Spice Trading Association (“ASTA”). Quality Spice used such a form contract.
. Although a major pepper trader, Quality Spice’s pre-petition business affairs were in total disarray. This was precipitated in part by the serious illness of the wife of Debtor’s president, Robert Newhouse. Internally, Debtor was having difficulties with its lender, its trading partners and its customers, some of whom were end-users of pepper. Before filing its Petition, Debt- or tried unsuccessfully to allay fears amongst its major customers with respect to open purchase orders at a January 1988 meeting. Debtor advised all in attendance that unless it received their cooperation and the cooperation of its lenders, it would be unable to fulfill its open contracts for the sale and purchase of pepper. Thereafter, Debtor’s worst fears became a reality, for when it filed its Petition, there exist*86ed open contracts to sell pepper in an amount in excess of $40 million. Buy contracts covered most of the contracts to sell.
During this bankruptcy proceeding it became clear that Debtor’s records alone were insufficient to untangle the web of competing claims to pepper, which was being stored in public warehouses or held in processing plants for compliance with Food and Drug Administration requirements.
The Court enjoined the commencement of any actions with respect to disputes over the ownership to pepper in which Debtor held or appeared in the chain of title. The Creditor’s Committee simultaneously filed an application to retain the accounting firm of Peterson & Co. to identify the location of and competing claimants to the spice. To this end, the accounting firm intensely reviewed the books, records and physical inventory of Debtor as well as the certifications submitted by claimants in this adversary proceeding. The firm reviewed the records of the public warehouses and processing plants and from all of this information, compiled a report (the “Peterson Report”) which identifies the physical location of the many Lots of pepper in which Debt- or held title or appeared in the chain of title. The Peterson Report also provides an analysis of the competing ownership claims to the spice.
The market price of pepper was approximately $2.20 per pound when Quality Spice filed in bankruptcy. A Lot of pepper generally consists of fifteen (15) metric tons, or approximately 33,000 pounds. The ultimate resolution and disposition of the competing claims and interests to the many Lots of pepper has a substantial impact upon the Estate that is not to be sneezed at. As such, the Court is compelled to make final determinations with respect to ownership claims to the spice. Since the Peterson Report was issued, various parties have moved to obtain delivery of certain Lots of pepper. First Fidelity is one such party.
First Fidelity is Quality Spice’s commercial loan lender and asserts that it has a perfected security interest in all of the Lots on Schedule D of the Peterson Report. In addition, the Bank asserts that it possesses delivery orders and/or warehouse receipts covering many of the Lots in question. The Bank filed its Omnibus Motion on September 12, 1988, to release the Lots of pepper enumerated on Schedule D. The following parties filed objections to the Bank’s Omnibus Motion, in most instances asserting competing ownership claims to certain Lots of pepper contained on Schedule D: Lonray, Inc. (“Lonray”), DMT New York, Inc. (“DMT”), McCormick & Co., Inc. (“McCormick”) and Ludwig Mueller Co. Inc. (“Ludwig Mueller”) on October 13, 17, 18 and 19, respectively. First Fidelity is also a third-party defendant to the Unsecured Creditor’s Committee’s Third Party Complaint. The Bank filed an Answer, Counterclaim and Crossclaim on August 31, 1988. The following parties filed answers and when indicated, Crossclaims against First Fidelity, asserting claims to certain but not all Lots of pepper, some of which are contained on Schedule D: Camerican, a Division of CTC, North America, Inc. (“Camerican”) filed an Answer and Crossclaim on September 23, 1988; DMT filed an Answer on October 5, 1988; Lon-ray filed an Answer on October 12, 1988; Ludwig Mueller filed an Answer on October 17, 1988; Mann Producten Rotterdam B.Y. (“Mann Producten”) filed an Answer on October 25, 1988; HCL Trading, Inc. (“HCL”) filed an Answer, Counterclaim and Crossclaim2 on April 13, 1988; and Jantzen & Deeke GmvH (“J & D”) who originally contested this Court’s jurisdiction and filed its answer in State Court, but who later withdrew its objection.3
To facilitate a ruling with respect to the ownership rights of the many competing claimants to the various Lots of pepper, the Court scheduled evidentiary hearings on a claimant-by-claimant basis. November 28, 1988 was the date set for the Camerican-*87First Fidelity Hearing. However, before the hearing, the parties consensually resolved their differences.
December 15-16, 1988, December 20, 1988 and December 21, 1988 were the dates fixed for the Ludwig Mueller, Lonray and Mann Producten Evidentiary Hearings, respectively. All parties consensually resolved their differences with the Bank on or before these dates.
Evidentiary hearings for the following parties: HCL, V. Berg & Sons, Inc., (“V. Berg”) DMT and J & D in December 1988 and January 1989. The Bank’s counsel appeared at the hearings as did counsel for all parties, except V. Berg. The following witnesses testified at the hearing: Heinz Levi, President of HCL; Mr. Rally, employee of J & D; and Mr. Pappenheimer, officer of Ludwig Mueller. DMT did not appear but notified the Court that it would rest on its papers4, which papers include the affidavit of Sharon Z. Dolev, officer of DMT (“Dolev Affidavit”). Additionally, the Court permitted claimant, Hiang Kie PTE Ltd. (“Hiang Kie”), whose interest had been represented by J & D to a late date in these proceedings, to seek independent legal representation because of a possible conflict in having J & D defend its position. Counsel for Hiang Kie appeared at and filed pleadings subsequent to the January 1989 hearing. The parties’ positions are as follows.5
HCL
HCL claims to be a buyer in the ordinary course of business, having purchased 1,500 bags of pepper (approximately 75 tons) indirectly from Quality Spice, through Ludwig Mueller, a broker. It claims to hold title to five (5) Lots of pepper. The Lot numbers are 34056, 68802, 68804, 68808 and 69152 also known as (“a/k/a”) Alioth B/L # 116.
DMT
DMT, the last buyer in the chain of title with respect to most Lots, claims to be a buyer in the ordinary course of business as to six (6) Lots of pepper; namely, Lot numbers 2385, 7027, 10968, 50729, 68129 and 68804. All of these Lots appear on Schedule D, save for the first Lot, 2385, which mistakenly appears on Schedule A as being in DMT’s possession. In fact, Lot 2385 was still in Pouch Terminal7.
J & D and LUDWIG MUELLER
J & D claims to be owner of approximately 150 tons of pepper presently impounded in warehouses in New Jersey and New York pursuant to prior orders of this Court. Of these 150 tons, J & D claims that no party asserts conflicting ownership claims with respect to at least 85 tons, comprised of the following Lot numbers: 2836, 2839, 11287 — 11, 52310, 1003, 89728. There exists, however, a conflicting claim to the other 65 tons of pepper identified on the Peterson Report as Lots 8068, (a/k/a 10069) 9045, 9075, 9434, 9435, 12428, 12857. Ludwig Mueller claims that it purchased these Lots from Quality Spice as a good faith purchase for value.
HIANG KIE
Hiang Kie’s claim relates only to Lot 69068.
*88FIRST FIDELITY
First Fidelity once argued that it had a security interest9 in, inter alia, Quality Spice’s pepper inventory. It claimed to have perfected this interest by filing U.C.C. 1 Financing Statements with the secretary of State of New Jersey and, in some instances, by serving notice on certain New York warehouses. However, since that time, the Bank has waived whatever rights it might have had respecting Lots subject of this opinion. See, SETTLEMENT AGREEMENT of January 18, 1989 and FIRST AMENDMENT TO SETTLEMENT AGREEMENT of April 1989.
Several issues require resolution in this matter and relate to provisions of both the New York Uniform Commercial Code § 1-101 et seq. (McKinney’s 1964 & Supp.1989) and New Jersey Statutes Annotated 12A:1-101 et seq. (West 1962 & Supp.1988), hereinafter collectively referred to as the “U.C.C.”.
Preliminarily, the Court finds that most contracts of sale involved in the pepper trade have their terms spelled out in a standard ASTA contract. While spice is not traded over an organized exchange, the ASTA contract has been accepted in the trade as the mechanism through which those involved in the trade buy and sell spice. Paragraph 10, entitled “Tenders”, provides in subsection (d) that “[tjender shall be made by delivery of seller’s delivery order addressed to the dock or warehouse where the merchandise is located.” However, this term as defined is insufficient to resolve the issue that has arisen concerning whether delivery to the dock or the warehouse of a “non-negotiable copy” of a negotiable delivery order is sufficient to consummate or effectuate the actual transfer of spice. The testimony received throughout these proceedings, although at times inconsistent, is instructive on this point. Heinz Levy of HCL, Kenneth Ralli of J & D, Theodore Dicker of McCormick and Mr. Pappenheimer of Ludwig Mueller provided considerable testimony with respect to delivery orders as they are defined and employed in the trade, as well as the parties’ course of performance and course of dealings. In addition, the Court has been benefited by the Dolev Affidavit, which addresses similar concerns. After reviewing the pleadings and affidavits, hearing the testimony of witnesses, considering their extensive experiences in the trade and examining their demeanor, the Court finds the following to be the custom and usage of delivery orders in the spice trading industry. See, U.C.C. §§ 1-102(2)(a), (b), 1-205(4) and 2-208(2).
1 — A delivery order is a set of four (4) pages. The first page is known as and is marked as “negotiable”. This first page is known in the industry as the “original” delivery order and is always negotiable. The next three (3) copies are known as and marked as “non-negotiable copy”. These three (3) copies are always non-negotiable.
2 — The negotiable delivery order is tendered and delivered to the buyer upon his tender and delivery of payment. As to the three (3) non-negotiable copies, the first copy is sent to the warehouse to inform it of the contemplated sale, the second is sent to the weigher and the third usually remains in the seller/transferror’s office.
3 — As regards the time of tender, a seller “shall tender on any business day during the month of delivery, but no later than 11:00 A.M. local time on the day preceding the last two business days of the month”, but “[a] delivery prescribed for a period of less than one month shall be tenderable on any business day during the entire period.” See, ASTA Contract, paragraph 10, subsections (a) and (b).
4 — Tender shall include the following documents: Salmonella Certificate, Certificate of Analysis and, sometimes, a Tare Certificate. See, ASTA Contract *89paragraph 10, subsections (f), (g) and (h).
5 — To withdraw spice from a warehouse, the buyer must present the bailee with the negotiable delivery order; only that negotiable delivery order enables the buyer to obtain physical possession of the spice. If the first buyer becomes a seller/transferror himself, then he issues to the second buyer/transferee his own negotiable delivery order. In addition, the first buyer turns over to the second buyer the original negotiable delivery order into himself from his immediate transfer-ror, so that the second buyer now possesses two negotiable delivery orders. This process can continue indefinitely until some buyer, usually an end-user, actually withdraws the spice from the bailee warehouse. The prudent warehouseman releases the spice if, and only if, that buyer makes presentment of the negotiable delivery order from his immediate transferror, the negotiable originals from each and every seller/transferror in the chain of title and the appropriate certificates, (collectively “the original backup documents”). This system serves a twofold purpose: first, it establishes a chain of title so to protect a warehouseman and second, it promotes the free flow of commerce by protecting the seller and buyer of spice. The prudent seller who does not release the negotiable delivery order until he is paid, yet otherwise is able to begin the process of weighing, etc., to timely consummate the sale; and the prudent buyer who does not tender payment and take delivery of non-authentic documents of title.
Based upon the foregoing considerations and all evidence submitted, the Court makes the following Conclusions of Law.
Lots 8068 (a/k/a 10069), 9045, 9075, 9m, 9435, 12428 and 12857
J & D v. LUDWIG MUELLER
Ludwig Mueller asserts that the J & D delivery orders issued concerning the 65 tons are negotiable documents of title; that J & D’s lodging of “non-negotiable” copies of its delivery orders to a warehouse to the order of Quality Spice transferred good title to Quality Spice on December 16, 1987; and that Ludwig Mueller obtained good title to the 65 tons as a holder of duly negotiated documents of title pursuant to its purchase of the 65 tons from Quality Spice on December 17, 1987. J & D claims Ludwig Mueller acted as a broker in a December 17, 1987 sale between Quality Spice and Catz and the fact that Ludwig Mueller’s covered the Catz contract for Quality Spice did not vest rights in Ludwig Mueller to the 65 tons. The Court need not reach J & D arguments because it finds that a sale never took place between J & D and Quality Spice.
Initially, the Court finds that the J & D delivery order Nos. 2227 through 2231A are negotiable in form since they are deliverable to Quality Spice’s order. U.C.C. § 7-104. However, the lodging of copies of “non-negotiable” delivery orders with Van Brunt Warehouse (“Van Brunt”) was not delivery that effected a sale which transferred title to Quality Spice.
Both J & D and Quality Spice had mutual rights and obligations under the governing J & D ASTA Contracts Nos. 2361/87-2363/87 and 2227/87-2232/87. J & D as seller, was obligated to transfer and deliver; Quality Spice, as buyer, was obligated to accept and pay. U.C.C. § 2-301. J & D satisfied its obligation, but Quality Spice did not.
Paragraph 10(d)10 of the J & D ASTA contract imposes upon J & D the obligation to make tender by offering its documents of title and a delivery order addressed to the warehouse in the buyer’s name. The delivery to the warehouse of a non-negotiable delivery order is not a tender under *90paragraph 10(d) of the ASTA contract nor under custom in the trade. As such, J & D’s obligation was to tender their documents in their correct form. U.C.C. § 2-503(5)(a). As established throughout these proceedings by the parties’ course of dealings and the custom and usage in the spice trade, the correct form is the negotiable delivery order, the first page of the four page set. See Supra, pp. 87-88.
Thus, J & D was obligated to tender the original delivery orders covering the 65 tons to Quality Spice on or before 11:00 A.M., local time, not later than the day preceding the last two (2) business days of December, 1987, the month of delivery under J & D ASTA Contract Nos. 2361/87-2363/87 and 2227/87-2232/87. On or around this time, J & D sent its messenger to the offices of Quality Spice with the negotiable delivery orders covering the 65 tons. Upon this tender, J & D was entitled to have Quality Spice accept tender of the documents of title and pay according to the contract price. U.C.C. § 2-507(1). The price under J & D ASTA Contract Nos. 2361/87-2362/87 is $2.39 per lb.
“NETT CASH AGAINST DELIVERY ORDER AND AGAINST PROVISIONAL INVOICE FOR 100% OF INVOICE AMOUNT ACCOMPANIED BY ANALYSIS AND TARE CERTIFICATES ...”.
The price under J & D ASTA Contract Nos. 2227/87-2232/87 is $2.07 per lb.
“NETT CASH AGAINST DELIVERY ORDER AND AGAINST PROVISIONAL INVOICE FOR 98% OF INVOICE AMOUNT ACCOMPANIED BY ANALYSIS AND TARE CERTIFICATES ...”.
At the time of tender, the Debtor’s president, Robert Newhouse informed J & D’s messenger that Quality Spice would be unable to pay the contract prices. When payment is due and payable upon delivery, a buyer’s right to retain or dispose of goods as against a seller is conditioned upon the buyer’s making payment. U.C.C. § 2-507(2). That payment is also a condition to a seller’s duty to tender and complete delivery. (Court’s own emphasis) U.C.C. § 2-511(1). Accordingly, since Quality Spice did not tender payment to J & D for the 65 tons, it had no right to retain or dispose of the 65 tons as against J & D, nor did J & D have the duty to complete delivery. In fact, J & D did not complete delivery because its messenger returned to J & D’s New York offices with the original delivery orders.
When a seller is required to deliver documents of title and when the goods which are the subject of that contract are not to be moved, title passes at the time when and place where he delivers such documents. U.C.C. § 2-401(3)(a). Those documents were never delivered and a sale was never consummated between J & D and Quality Spice. U.C.C. § 2-106(1).
Ludwig Mueller argues that when J & D noticed Van Brunt of its proposed sale to Quality Spice, by lodging with it “non-negotiable” copies of the negotiable delivery orders, it effectively tendered delivery to Quality Spice which effectuated the transfer of title and fixed its rights as against the bailee and all third parties. It cites U.C.C. § 2 — 503(4)(b) in relevant part:
Where goods are in the possession of a bailee and are to be delivered without being moved ... tender to the buyer of a non-negotiable document of title or of a written direction to the bailee to deliver is sufficient tender unless the buyer seasonably objects, and receipt by the bailee of notification of the buyer’s rights fixes those rights as against the bailee and all third persons ... (Court’s own emphasis).
Ludwig Mueller misreads this section and misapprehends its import. First, there was not a tender of non-negotiable delivery orders to Quality Spice, or alternatively, a written direction to Van Brunt to deliver. Quality Spice received nothing and as was the custom and practice in the spice trading industry Van Brunt received non-negotiable copies of negotiable delivery orders. Second, tender of non-negotiable delivery orders to Quality Spice or a written direction to Van Brunt would fix the rights of Quality Spice as against Van Brunt and third parties, it would not fix Quality rights *91against J & D. Quality Spice is subject to all real and personal defenses held by J & D against it. Breach of contract for failure of consideration is one such defense. Since Quality Spice never tendered payment to J & D, Quality had no right to retain or dispose of J & D’s goods. U.C.C. § 2-507(2). Third, U.C.C. § 2-503 is of little help to Ludwig Mueller since it concerns itself with the manner of a seller’s tender of delivery. That section defines tender but does not purport to affect tender, for U.C.C. § 2-503(4)(a) also provides that tender of a negotiable document of title is an acceptable manner of tender. In fact, this was the method required by the express terms of the governing ASTA contracts and was utilized by J & D. This is not a suit against J & D for its failure to tender negotiable documents of title. The facts are that J & D properly tendered the negotiable delivery orders to Quality Spice at the time and place provided for in the governing ASTA contracts. The manner of J & D’s tender is not here disputed so much as is Quality Spice’s tender of payment, which is the prerequisite to accepting goods. U.C.C. § 2-607.
Adopting Ludwig Mueller’s position would have this Court ignore the realities of the case. The parties’ course of dealings and the custom and usage in the spice trade clearly call for delivery to the warehouse of an negotiable delivery order, the first page of the four page set, as well as the original backup documents issued by all transferrors in the chain of title. The evidence is clear that a warehouse would not permit withdrawal of the physical commodity but upon presentment of all of these negotiable documents. The custom in the spice trade has a delivery order marked “non-negotiable copy” sent to a warehouse for information purposes only. Therefore, Van Brunt would not, and did not, accept the non-negotiable copy presented by Quality Spice or any other party so as to permit the withdrawal of the physical commodity. Finally, case law recognizes that the sending of a copy of a delivery order to a warehouse does not give title to the goods to the buyer. See Transmares Corporation v. George F. Smith, Inc. 76 N.Y.S.2d 737 (NY Cty., Part I, 1947) (sending copy of delivery order to warehouse issued to buyer’s order was insufficient to pass the risk of loss to buyer for fire damage to goods); and J.A. Kirsch & Co., Inc. v. Roulston, Beckert & Co., Inc., 178 N.Y.S. 246 (Sup. Ct., App. Term, 1919) (seller disposing of goods in possession of third-party bailee does not fulfill his obligation to deliver until third-party bailee acknowledges to buyer he holds the goods on the buyer’s behalf). Van Brunt did not issue notice to Quality advising Quality that pepper was held on its behalf. In sum, Quality Spice could deliver to Ludwig Mueller only as much title to the 65 tons as it had to convey and as to the 65 tons at issue here Quality Spice had no title.
Ludwig Mueller next posits the Doctrine of Voidable Title as a basis upon which it can acquire better title than its transferror had to convey. Ludwig Mueller’s reliance on this Doctrine is misplaced. The Doctrine of Voidable Title pertains to Article 2 and not Article 7. The provisions of the former relate to the purchase of the goods themselves, while the latter pertain to the purchase of the documents representing the goods. Compare U.C.C. §§ 2-403 and 7-504. See Good Faith Purchase and Warehouse Receipts: Thoughts on the Interplay of Articles 2, 7 and 9 of the U.C.C., 30 Hastings Law Journal 1, 21-23 (1978-1979). Thus, Ludwig Mueller, as a broker/trader, deals with and/or purchases the documents representing the goods, not the goods themselves. It is not an end-user of spice like McCormick and others. It therefore can acquire no greater title than Quality Spice had to transfer. U.C.C. § 7-504.
Ludwig Mueller argues further that it is a holder of a duly negotiated document of title and as such acquired title to the documents and title to the goods.
A document of title is duly negotiated when (a) negotiated (b) to a holder who takes (c) in good faith (d) without notice of any claim or defense against it and (e) gives value (f) in the regular course of business. U.C.C. § 7-501(4).
*92Ludwig Mueller is not a holder to whom a document has been duly negotiated because the original delivery orders covering Lots 9434, 9435, 9045, 9075, 23428, 23857 and 8068/10069 were never negotiated in the first instance to Quality Spice. Negotiation of order paper requires endorsement and delivery. U.C.C. § 7-501(1). J & D never delivered the negotiable delivery orders to Quality Spice, and Quality Spice could not deliver to Ludgwig Mueller documents to transfer title to Ludwig Mueller. Knowing as it did the custom and practice in the industry Mueller could and should have required that Quality furnish evidence of its title, i.e. a delivery order to Quality or even a non-negotiable warehouse receipt. Furthermore, the value Ludwig Mueller paid is predicated upon the debt Quality Spice incurred to Ludwig Mueller when the latter covered the Quality Spice sale to Catz. This being so, Ludwig Mueller is not a holder of duly negotiated documents since it did not give value. The concept of value in negotiation excludes receiving the document in settlement or payment of a money obligation. U.C.C. § 7-501(4).
Moreover, Ludwig Mueller has been a major figure in the pepper trade for an extensive period of time. It knew, or should have known, that the ability of Quality Spice to tender or make delivery hinged on whether it possessed either a negotiable delivery order from its transfer-ror or, alternatively, documentation that Van Brunt held the commodity for the account of Quality Spice. Ludwig Mueller cannot qualify as a buyer in the ordinary course.
Finally, the Court finds nothing regular about the business of Quality Spice supplying Ludwig Mueller with blank delivery orders for the purpose of having it complete the terms of transfer and negotiate to itself documents of title. It is also questionable whether Ludwig Mueller had notice of possible claims against these Quality Spice Lots. For one reason, it knew of Catz's difficulty in obtaining the Lots for which it covered and, for a second reason, it deviated from the course of dealings and custom and usage in the spice trade by not requiring of Quality Spice delivery of J & D’s original negotiable delivery order into Quality Spice. Ludwig Mueller would have easily discovered that title to the 65 tons remained vested in J & D, not Quality Spice. Even if Ludwig Mueller were buying goods rather than documents and entitled to Article 2 Protection, the same reasons disqualifying it from Article 7 protection would also disqualify it from Article 2 protection.
In conclusion, J & D is a holder of duly negotiated documents of title respecting the 65 tons (Lots 8068 [a/k/a 10069], 9045, 9075, 9434, 9435, 12428 and 12857) and is entitled to immediate turnover of that tonnage.
LOT 2385
J & D v. DMT
DMT and J & D are parties asserting competing ownership claims to Lot 238511. A review of DMT’s submissions finds that DMT contracted to purchase Lot 2385 from Yah Shen Chong, S.A. (“YSC”) on August 5, 1987 (Dolev Aff. Exh. A-1), received from International Brokers, Inc. (“International Brokers” for YSC) on January 4, 1988 an original delivery order covering Lot 2385 (Dolev Aff. Exh A-2-1), was invoiced for Lot 2385 on January 4, 1988 (Dolev Aff. Exh. A-3-1), paid this invoice on January 6, 1988 (Dolev Aff. Exh. A-3-2), requested of Pouch Terminal on January 12, 1988 that it issue a warehouse receipt for Lot 2385 (Dolev Aff. Exh. A-3-3) and was advised by International Brokers on January 19, 1988 of its refusal to issue a warehouse receipt due to the existence of conflicting delivery orders (Dolev. Aff. Exh. A-3-4). DMT has produced the following backup documents: Quality Spice delivery order into Ludwig Mueller (Dolev. Aff. A-2-6), Ludwig Mueller delivery order into Gel Spice (Dolev Aff. A-2-5), Gel Spice delivery order into Attari Bros. (Dolev Aff. A-2-4), Attari Bros. delivery order into In*93ternational Brokers (for YSC) (Dolev Aff. A-2-3), International Brokers (for YSC) delivery order into DMT (Dolev Aff. A-2-1), Certificates of Salmonella, Analysis, Weight and Tare (Dolev Aff. Exhs. A-2-7 2-9). Significantly, DMT has not produced all backup documents to establish and complete the chain of title. Absent from the Dolev Affidavit is the original negotiable delivery order from J & D into Quality Spice. A document was produced and introduced into evidence by Ludwig Mueller at the January 1989 trial. (See exhibit LM-8). The document is marked “non-negotiable copy” as were the delivery orders submitted in connection with the dispute concerning the 65 tons. A review of the evidence reveals that the facts surrounding the 65 ton transfer from J & D to Quality Spice surround the transfer of Lot 2385. Therefore, in adopting the same conclusions of law here, the Court finds that J & D is the owner of Lot 2385 and is entitled to turnover of that Lot forthwith.
LOT 69068
HIANG KIE v. THE ESTATE OF QUALITY SPICE AND/OR FIRST FIDELITY
The disputing parties to Lot 69068 are Hiang Kie and the Estate of Quality Spice and/or First Fidelity. A review of the relevant documents reflect that Quality Spice contracted to purchase Lot 69068 from Hiang Kie, through its agent J & D, (J & D Trial Exhibits “J & D T. Exh.” JD-1), that J & D noticed the warehouse of the proposed sale with a non-negotiable copy of J & D negotiable delivery order No. 2349 (Ludwig Mueller Trial Exhibit “LM T. Exh.” LM-1), that Quality Spice was invoiced for Lot 69068 (LM T. Exh JD-2) and that it never tendered payment for Lot 69068. Hiang Kie argues, inter alia, that Quality Spice failed to tender payment for pepper Lot No. 69068 and therefore, there was no sale. Ludwig Mueller advances the same arguments on the estate’s behalf as were set forth in the prior section in support of its ownership to the 65 tons. The thrust of its contentions is that the lodging of a non-negotiable copy of a negotiable delivery order with the warehouse effectively transferred good title to pepper Lot 69068 to Quality Spice. The rights and obligations of J & D, here, as selling agent for Hiang Kie, were the same as they were in connection with its contractual commitment to deliver the 65 tons. It was obligated to transfer and deliver documents of title pursuant to paragraph 10(d)12, which paragraph requires that the documents be addressed to the warehouse in the buyer’s name. U.C.C. § 2-301. J & D was obligated to deliver the documents in the correct form. U.C.C. § 2-503(5)(a). The correct form is a negotiable delivery order and not a non-negotiable copy of a negotiable delivery order. This fact is firmly established by the custom and usage in the trade as well as by the parties’ course of dealings. The ASTA Contract required “NETT CASH AGAINST DELIVERY ORDER AND AGAINST PROVISIONAL INVOICE ...” (J & D T. Exh. J/D-I). On December 31, 1987, the call month under the ASTA contract, J & D’s messenger arrived at Quality Spice’s office to tender and deliver the negotiable delivery order covering pepper Lot 69068. Quality Spice had the obligation under the ASTA contract and the U.C.C. to accept and pay “NETT CASH AGAINST DELIVERY ORDER ...”. U.C.C. § 2-301. This was a condition to J & D’s duty to complete delivery and a condition to Quality Spice’s right to retain or dispose of the goods as against J & D. (Court’s own emphasis.) U.C.C. §§ 2-511(1) and 2-507(2). J & D did not complete delivery as its messenger returned the negotiable delivery order pertaining to Lot 69068 to J & D’s office.
Because delivery is a pre-condition to the transfer of title with respect to goods not to be moved under a contract, a sale was not consummated between J & D (for Hiang Kie) and Quality Spice. Accordingly, Hiang Kie is the owner of pepper Lot 69068 and is entitled to its immediate turnover.
*94
LOTS 10968 and 68129
DMT v. FIRST FIDELITY
The dispute concerning these Lots originally centered on the rights of DMT as a good faith purchaser for value against those of First Fidelity as a secured party13. Inasmuch as First Fidelity has waived its rights to Lots 10968 and 68129, there exists no conflict and DMT has superior title to both Lots as a buyer in the ordinary course of business 14.
LOT 68804
DMT v. HCL
The conflict over Lot 68804 is between HCL and DMT15. Both DMT and HCL claim to have purchased and paid for this Lot as buyers in the ordinary course of business.
After reviewing all pleadings and testimony received at trial, the Court finds that HCL contracted to buy from Quality Spice Lot 68804 on November 11, 1987 (HCL Cert. Exh. B); that it received a Quality Spice delivery order for Lot 68804 on November 25, 1987 (HCL Cert. Exh. C); that it was billed for Lot 68804 on November 25, 1987 (HCL Cert. Exh. D) and that HCL paid for Lot 68804 on November 27, 1987 (HCL Cert. Exh. E). HCL notified Federation Warehouse of its interest in Lot 68804 and made written demand for its turnover (HCL Cert. Exhs. F & G). Exhibit F is a copy of a FAX transmission on January 19, 1988 advising Federation
“we wish to advise you that we must hold you responsible for any and all losses in the event there should be a delay or refusal to turn over to us these lots...”
Exhibit G is a copy of a FAX transmission dated January 28,1988 to Federation of the following message:
“In reference to our Fax message of January 19th, we urge you once more to make available to us 105 tons of Brazilian Pepper, covered by delivery orders Nos. 112587B, dated 11/25/87 — 75 tons (1500 bags) — and 12287-FF, dated 12/2/87 — 30 tons (600 bags) — and by your warehouse receipt No. 00818396, dated 12/7/87, for the 30 tons, all of which clearly show that this pepper belongs to HCL Trading Corporation. We repeat that we must hold you responsible for any and all losses which we may suffer because of your failure to make available to us the merchandise which belongs to this company, which has been paid for in full by this company, and which is the property of no one else but this company.”
The Court also finds that DMT contracted to purchase from Gel Spice Lot 68804 on November 16, 1987 (Dolev Aff. Exh. B — 1); *95that it received a Gel Spice delivery order for Lot 68804 on January 4, 1988 (Dolev Aff. Exh. B-2-1); and that it was billed and paid for Lot 68804 on January 5, 1988 (Dolev Aff. Exhs. B-3-1 to 3-2). DMT perfected its interest in Lot 68804 by causing Federation Warehouse to issue on March 10, 1988, a warehouse receipt (Dolev Aff. Exh. B-3-3 to 3-4).
Sharon Z. Dolev filed on behalf of DMT an affidavit setting forth, inter alia, that DMT purchased and paid for Lot 68804 from entities other than Quality Spice, all of whom are regularly involved in the pepper trading industry (Dolev Aff. p. 2). She possesses personal knowledge of the means by which DMT and others purchase and sell spice. To establish its superior ownership claim, DMT has submitted the negotiable delivery order from Gel Spice (Dolev Aff. Exh. B-2-1) as well as all backup documents issued in the chain of title: Ludwig Mueller delivery order into Gel Spice (Dolev Aff. Exh. B-2-2), Quality Spice delivery order into Ludwig Mueller (Dolev Aff. Exh. B-2-3), Certificate of Analysis (Dolev Aff. Exh. B-2-4) and Salmonella Analysis (Dolev Aff. B-2-5).
A buyer in the ordinary course of business “... means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buy in ordinary course from a person in the business of selling goods of that kind ...”. U.C.C. § 1-201(9). That DMT purchased from someone other than Quality Spice and that it holds all backup documents is significant with respect to its ownership claim to Lot 68804. It would not have reason to believe that there existed a cloud on title to Lot 68804 since it possessed all the proper documentation to establish the chain of title. Moreover, Federation Warehouse has a duty to deliver Lot 68804 to DMT pursuant to Federation Warehouse Receipt No. 00821379. See U.C.C. § 7-403.
Starkly contrasting these facts are those surrounding HCL’s purchase of Lot 68804.16 Heinz Levy testified at length at trial on December 22, 1988, that he has been engaged in the pepper trading business for approximately forty-five (45) years, of which approximately thirty-four (34) years have been on his own (HCL Trial Transcript “HCL TT” P. 23); that he has engaged in thousands upon thousands of transactions (HCL TT p. 24) and that Lot 68804 was acquired through five (5) or six (6) business transactions with Quality Spice, whereby Quality Spice would sell certain Lots of pepper to HCL who would, then, simultaneously contract to sell back the same spice for delivery 40 to 60 days later at a higher price (HCL TT p. 47). He testified further that these five (5) or six (6) transactions were not the normal way of dealing in commodities (Id.); that part of the reason he entered into these types of transactions was because of the reputation and integrity of the broker (HCL TT p. 48), but that in his estimation and the broker’s estimation, Quality Spice either wanted to show the bank a low inventory or a bigger turnover (HCL TT p. 50); that, beside these five (5) or six (6) transactions with Quality Spice, he could remember only one (1) or two (2) transactions of the same nature (HCL TT p. 51); and that this type of transaction occurred usually between friends (HCL TT p. 52).
These five (5) or six (6) business transactions with Quality Spice were anything but ordinary and regular when compared to the thousands upon thousands of transactions engaged in by HCL with others throughout its thirty-four (34) years of existence. The U.C.C. is not intended to protect parties who are friends and on that basis, transact business outside the ordinary and regular course of business. While in form the transactions resemble bona fide sales, in the Court’s opinion, they are secured loans with respect to which the security interest was not perfected. It is clear from the testimony that HCL is neither a buyer in the ordinary course of business nor one to *96whom a document has been duly negotiated, that is, a person who purchases in good faith in the ordinary and regular course of business. U.C.C. §§ 1-201(9) and 7-501(4).
On the other hand, DMT’s purchases were made according to ordinary business terms from entities regularly engaged in the trading and/or selling of spice. Accordingly, as a buyer in the ordinary course, DMT is entitled to turnover of Lot 6880417.
CONCLUSION
For the foregoing reasons, the Court concludes that J & D is the owner of and entitled to turnover of the 65 tons and Lot 2385, as there was no sale between J & D and Quality Spice. Hiang Kie is entitled to turnover of Lot 69068 for the same reasons and DMT, as a buyer in the ordinary course of business, is entitled to the immediate turnover of Lots 10968, 68129 and 68804, subject to the conditions set forth in footnote 14.
The prevailing parties should submit appropriate orders within two weeks from the date hereof.
. The capitalization of the letter “L” in the word Lot is to distinguish the word used to designate and identify quantities of pepper from the word Iot which has several meanings including many in number. A Lot contains approximately 33,-000 lbs of pepper which is a lot of pepper.
. HCL also filed on April 4, 1988 a Certification to Peterson & Co. identifying and documenting Lots to which it claimed title.
. Letter of Theodore S. Cunningham of January 19, 1989, advising the Court of withdrawal of J & D’s Motion.
. Letter of Barry W. Rashkover, counsel for DMT, dated on or about October 17, 1988.
. Subsequent to the hearings in this proceeding a "global” settlement among First Fidelity, the Debtor, the claimants in this case and other claimants was approved by this Court. The appeal of Camerican from the order of this Court approving the global settlement was denied by the United States District Court for New Jersey in November 1989. 107 B.R. 843.
. Lots 34056 and 68802 were both taken by McCormick after posting bond in a New York Replevin Action. Lot 68808 was conceded by the parties to this proceeding to Durkee-French Foods, Inc. who now has possession of the Lot. Likewise, Lot 69152 (a/k/a Alioth #11) was conceded to HCL. (See this Court’s order of July 25, 1988).
. Of these six (6) Lots, the focus of inquiry is on three (3) Lots: 2385, 110968 and 68129. Lots 50729 and 7027 were awarded respectively, to DMT and Camerican during the proceedings. (See this Court’s November 28, 1988 Order).
. The 85 tons were to be released to J & D pursuant to the Settlement Agreement.
. First Fidelity is assignee of a security agreement executed by and between Quality spice and the Bank Leumi as well as a holder of a security agreement executed directly with Quality Spice.
. Paragraph 10(d) of J & D ASTA Contract read in full:
[t]ender shall be made by delivery of seller’s delivery order addressed to the dock or warehouse where the merchandise is located.
. Ludwig Mueller originally asserted but waived any claim to Lot 2385. (Letter of Juliet Sarkessian, counsel to Ludwig Mueller, dated April 11, 1989).
. See Footnote 10, supra.
. Ludwig Mueller originally asserted claims on behalf of Gel Spice in Lots #2385 and # 68129; and on behalf of Gel Spice and Yang Sang Chong in Lot 10968. Ludwig Mueller supports DMT’s position as the last buyer in the chain of title. Lonray, in its objection to First Fidelity’s Omnibus Motion, does not assert rights as a good faith purchaser for value with respect to these Lots.
. The Court is aware that DMT is involved in arbitration proceedings concerning claims it might have as a result of its failure to obtain Federation Warehouse pepper Lots 68129 and 68804, Van Brunt Warehouse pepper Lot 10968 and Pouch Warehouse pepper Lot 2385. To the extend DMT is awarded possession of these Lots and prevails in its arbitrations, DMT has represented, and the Court so requires, that it "either (1) tender the Lots back to the appropriate respondents upon satisfaction of the arbitration awards, or apply the current market value of the pepper at the time it takes possession as an offset to the arbitration awards”. (February 17, 1989 letter of Barry W. Rashkover, Counsel to DMT, p. 2) See also (Mr. Rashkover's letter of April 22, 1989 concerning same).
.The Peterson Report indicates that Quality Spice (or First Fidelity as secured lender), Mann Producten and Ludwig Mueller are competing claimants to Lot 68804. However, First Fidelity conceded its interest in this Lot at the HCL/DMT evidentiary hearing on December 22, 1988. (Transcript, p. 15). Mann Producten initially claimed an interest in Lot 68804 in its April 6, 1988 Certification, filed with the Court on November 2, 1988. Since then, it has failed to object to First Fidelity's Omnibus Motion and otherwise press its claim with respect to this Lot. Ludwig Mueller supports DMT’s position since it claims on behalf of Gel Spice who is in the chain of title. See (Ludwig Mueller’s letter in support of DMT’s Ownership to Lots 2385, 10968, 68129 and 68129, dated to and filed with the Court on February 13, 1989 and February 14, 1989 respectively).
. There is also a contrast in the manner in which HCL handled the two transactions referred to in Exhibit F and G of the HCL certification. For the pepper covered by the second contract and delivery order HCL promptly obtained a warehouse receipt.
. Although this determination is based on the finding that HCL was not a buyer in the ordinary course of business it could also rest on the equitable principle that as between two "innocent parties, the party who conduct allowed the wrong to occur should bear the loss.” See UCC. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491040/ | MEMORANDUM OPINION AND ORDER ON MOTION FOR CONTEMPT OF COURT
BERNICE BOUIE DONALD, Bankruptcy Judge.
The above-styled core proceeding1 came on for hearing on debtor’s motion for contempt. No witnesses were called, and the matter was submitted on documentary evidence, written briefs and arguments. The court has jurisdiction pursuant to 28 U.S.C. § 1334, to enter a final judgment. The following shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
CASE SUMMARY
The debtor filed a petition under chapter 11 of the Bankruptcy Code seeking a breathing spell while attempting to reorganize its business operations. On the debt- or’s A-3 schedules, creditors with unsecured claims without priority, debtor listed respondent, Department of Labor (“Department”), or Secretary of Labor (“Secretary”) with a disputed claim in the amount of two hundred thousand dollars ($200,-000.00). The debtor operated a business known as DeSoto Builders, Inc.
On June 9, 1989 the United States District Court for the Western District of Tennessee entered judgment against Framing & Foundations, Inc., successor to DeSoto Builders, Inc., and Charles O. Morgan, Sr., jointly and severally, holding defendants in civil contempt for failure to comply with the terms of the court’s September 29,1980 judgment, in which plaintiff, Department prevailed as to certain violations of the Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 201 et seq. (1975).
The district court’s judgment ordered the payment of one hundred ninety-nine thousand one hundred four dollars and forty-three cents ($199,104.43) in overtime compensation for violation of the Act, liquidated damages, and interest, within sixty (60) days of the entry of the order. No portion of the judgment was satisfied. On *298August 7, 1989, Charles 0. Morgan filed a petition under chapter 11.
On September 18, 1989, the Secretary-filed a petition for Expansion of Injunctive Relief and for Enforcement of Judgment of Civil Contempt, seeking to have the court enforce compliance by Framing & Foundations, Inc., with the court’s earlier orders, and to expand its June 9, 1989 judgment to include within its scope, Memphis Slab Company, Inc., or Juanita LaSonya Morgan. The petition did not list Charles 0. Morgan.2 On September 18, 1989, the debtor filed its motion to hold the secretary in contempt for violation of the automatic stay.
A hearing was held in the United States District Court for the Western District of Tennessee on September 22, 1989. On that same date, Framing & Foundations, Inc. filed a petition under chapter 7 of the Bankruptcy Code. The district court took no action on the petition in light of the bankruptcy filings.
The movant argues that the filing for expansion of injunctive relief violated the automatic stay as to the chapter 11 debtor, in that it seeks to collect a monetary judgment, and seeks damages pursuant to 11 U.S.C. § 362(h). Contrarily, the respondent argues that the petition in district court was not an attempt to collect a debt against debtor in violation of the stay, but merely to uphold the dignity of the court’s orders. As further support for its position, respondent argues that the stay did not apply to its actions on grounds that they are exempted by 11 U.S.C. § 362(b)(4), and that the bankrupt was not a subject of the action.
The issue for judicial determination is whether the action of the Secretary in seeking expanded injunctive relief and contempt is a violation of the automatic stay. A necessary inquiry must be whether the petition constituted an attempt to collect a money judgment. Preliminarily, the court must examine the scope of the automatic stay.
DISCUSSION
The automatic stay prohibits any act of creditors to collect a prepetition debt without court permission. Section 362(a)(2) states:
§ 362. Automatic stay.
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 USC 78eee(a)(3)), operates as a stay, applicable to all entities, of—
(2) the enforcement, against the debt- or or against property of the estate, of a judgment obtained before the commencement of the case under this title.
By the Department’s petition to enforce the district court’s order of inter alia, contempt and damages, debtor avers that this act is simply a means to collect on a prepet-ition judgment.
Cases have addressed whether a bankrupt may be sentenced on a civil contempt citation after he has violated direct orders of the court, and have reached varying results. See, In re Guariglia v. Community National Bank and Trust Co., 382 F.Supp 758 (E.D.N.Y.1974), aff'd, 516 F.2d 896 (2d Cir.1975), In re Stewart, 571 F.2d 958 (5th Cir.1978), cf., U.S. Sprint Communications Co. v. Buscher, 89 B.R. 154 (D.Kan.1988). See, also, In re Dervaes, 81 B.R. 127 (Bankr.S.D.Fla.1987). In Guarig-lia, the debtor was cited for contempt for failure to pay a civil judgment, and the contempt judgment served to reimburse the creditor for the amount of the original judgment. The court saw this as a method of collecting a debt and found it violative of the automatic stay. 382 F.Supp. at 760. The instant case is easily distinguishable in that the Department sought no direct reimbursement for creditors, but instead sought compliance with a valid court judgment. This court has spoken to the issue and held that administrative proceedings by govern*299mental units for pecuniary purposes are automatically stayed. In re Mason, 18 B.R. 817 (Bankr.W.D.Tenn.1982), citing In re Thomassen, 15 B.R. 907 (Bankr. 9th Cir.1981). Although Mason involved a state administrative body, the governing principle is the same.
The court in In re Marini, 28 B.R. 262 (Bankr.E.D.N.H.1983), noted that a distinction should be made between a contempt citation intended to enforce payment of a judgment and one intended to uphold the dignity of the court. In In re Gedeon, 31 B.R. 942 (Bankr.D.Colo.1983), following the reasoning of Marini, the court held that a contempt citation issued to coerce a party to obey a court order is an order imposed to uphold the dignity of the court, recognizing that a court must have the power to enforce its orders. A contempt order issued to uphold the dignity of the court can withstand a bankruptcy filing and is not violative of the automatic stay. Guariglia, 382 F.Supp. at 759. The court in Dervaes, 81 B.R. at 129 further defines contempt:
Civil contempt is designed to coerce the contemnor to comply with a court order, and a civil contempt action is brought by a private party, not the court.... The contemnor always has the ability to purge himself of contempt by obeying the court order. Criminal contempt is punitive rather than remedial. It punishes disobedience of the court’s order as vindication of the court’s authority. The contemnor serves a fixed sentence and cannot gain release by complying with the order. The court in In re Cherry, 78 B.R. 65 (Bankr.E.D.Pa.1987), read the power of the automatic stay expansively, and found that the automatic stay applied to all civil contempt proceedings not exempted by some specific provision of 11 U.S.C. § 362(b). However, the court acknowledged that a balancing of the hardships might weigh in favor of granting relief from the stay where injunctive relief was sought. Id. at 70.
However, in Cherry the court found no exception for civil contempt proceedings brought by private parties. Id. In the instant case, while the government is the movant, arguably the rights being asserted are the private rights of individuals. See, EEOC v. McLean Trucking Co., 834 F.2d 398 (4th Cir.1987).
In NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934 (6th Cir.1986), individual members of a corporation filed bankruptcy after NLRB filed unfair labor practice charges against a corporation, which later did business as a partnership. The bankruptcy was filed before the decision of the NLRB was rendered. The court in Edward Cooper Painting, Inc., acknowledged that Section 362(a)(2) prohibited the enforcement of a judgment against a corporation which was obtained prior to the bankruptcy filing. Id. However, the court noted that § 362(b)(4) exempted actions or proceedings by a governmental unit to enforce such governmental unit’s police or regulatory powers. 11 U.S.C. § 362(b)(5) allows governmental units to enforce any judgment obtained in exercise of their police or regulatory power, with the exception of a money judgment. Id. at 938. Clearly, in the instant case, the Department is a governmental unit charged with the responsibility of monitoring compliance with FLSA.
Movant, in the instant case, argues that respondent’s actions are violative of the automatic stay. However, it is arguable whether respondent was affected by stay, thus imposing any requirement to seek a lifting of the stay. The court in Edward Cooper Painting, Inc., addresses this question and concludes that a governmental unit which determines that its police powers or regulatory proceedings are excepted from the automatic stay under § 362(b)(4) is not required to petition the bankruptcy court for relief from the stay prior to continuing its proceeding. Id. at 939. However, the court noted that while § 362(b)(4) clearly provides that the filing of a bankruptcy petition does not operate as a stay of actions or proceedings of a governmental unit, the governmental unit in making such a determination proceeds at its own risk. Id. Because of the inherent *300power of the automatic stay, prudence dictates that relief from the automatic stay should be sought.
In Edward Cooper Painting, Inc., the Sixth Circuit held that since “The NLRB was acting on belief that its proceedings were excepted from the stay, it was permissible to proceed without obtaining relief from the stay. Id. at 940. However, the court cautioned if it were later found that the stay applied, any action taken would have been void. Id.
When the Corporation filed for bankruptcy, § 362(a)(1) automatically stayed “the commencement or continuation ... of a judicial, administrative, or other proceeding against the debt-or_” In addition, § 362(a)(2) prohibited the enforcement of any judgment against the Corporation which was obtained prior to the filing of the petition in bankruptcy. However, § 362(b)(4) provides that the automatic stay does not affect “an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.... ” Finally, § 362(b)(5) allows governmental units to enforce any judgment obtained in the exercise of their police or other regulatory power, with the exception of a money judgment. (Emphasis added).
Id.
There is no consistent test for determining whether an action by a particular governmental unit falls within the ambit of the automatic stay. Id. at 942. Further, although several tests have been applied, such determinations are made on a case by case basis considering the Code requirements and the totality of the circumstances.
The court must determine whether the governmental unit’s efforts were an attempt to collect a money judgment, and therefore in violation of the stay.
The bankruptcy court in Mason, 18 B.R. at 817, held that “administrative proceedings by governmental units for a pecuniary purpose are automatically stayed. See, also, Thomassen, 15 B.R. at 907.
In McLean Trucking Co., 834 F.2d at 398, the court addressed the issue of whether a debtor’s bankruptcy precluded EEOC from instituting and continuing two (2) lawsuits against the debtor to redress alleged unlawful age and racial discrimination in employment, including recovery of back wages. The bankruptcy court and the district court held that the actions were stayed. The court of appeals held that § 362 exempts from the automatic stay a judicial proceeding by a governmental unit to “enforce such governmental units police or regulatory power”. Id. The court went on to say there can be no doubt that EEOC is a governmental unit. Likewise, there can be no doubt that the United States Department of Labor acting through its secretary and other agents and designees is a governmental entity, charged with the responsibility of monitoring compliance with the provisions of FLSA.
The legislative history of § 362(b)(4) contains the comments of Representative Don Edwards which are as follows:
“[t]his section is intended to be given a narrow construction in order to permit governmental units to pursue actions to protect the public health and safety and not to apply to actions by a governmental unit to protect a pecuniary interest in property of the debtor or property of the estate.”
124 Cong.Rec. H 11,089, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6436, 6444-45.
As to the applicability of the automatic stay, the court must chronicle the confusing series of events. First, the Bankruptcy Code follows the entity theory. In chapter 11 there is no co-debtor stay, therefore, the stay only applies to the filing entity. When Charles O. Morgan, individually filed, he received the benefit of the protection of the automatic stay. There was afforded no collateral protection to any corporate entity or entities. Inasmuch as the secretary’s petition, as to Charles O. Morgan, individually, was filed June 13, 1988, and judgment *301rendered June 9, 1989,3 and the debtor’s petition in bankruptcy was not filed until August 7, 1989, there was no automatic stay since the stay is not retroactive. Once debtor filed bankruptcy, the Department amended its petition for contempt to delete Charles 0. Morgan, individually, and on September 13, 1989, sought enforcement against DeSoto Builders, Inc. and Framing and Foundations, Inc., and their efforts. In its petition for relief, the Secretary acknowledged the bankruptcy filing of Charles 0. Morgan, individually.
The Department correctly asserts that its petition sought to enforce compliance against the corporation and its officers, and not against Charles 0. Morgan individually. Debtor argues that the petition sought to have the officer of the corporation jailed until the contempt was purged thus interfering with the debtor’s attempt to reorganize. Debtor points to the fact that the physical body of Charles 0. Morgan, individually, cannot be separated from the body of Charles O. Morgan, officer of the corporation. Notwithstanding debtor’s argument, the court must follow the entity theory, and recognize that the Secretary did not seek to proceed against the individual, nor the assets of the individual. The petition was limited to an effort to require a non-bankrupt corporation to comply with a lawful order of the court.
At the time of the Secretary’s petition, Framing and Foundations was not a debtor in bankruptcy. Thus, there was no automatic stay. There was no umbrella protection afforded the corporation as a result of the bankruptcy filing by the individual. Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir.1983). It must be noted that Framing and Foundations’ petition in bankruptcy was not filed until September 22, 1989, there was no automatic stay until that time. Since the district court properly took no action, in light of the filing, there was no harm to the debtor, and no conduct that could be construed as willful by the Department.
CONCLUSION
Based on the foregoing and the case record as a whole, the court finds that there was no willful violation of the automatic stay as to Charles 0. Morgan, and no basis for a finding of contempt. Therefore, debtor’s motion for contempt and damages is denied.
IT IS SO ORDERED.
. 28 U.S.C. 157(b)(2)(A).
. While the June 9, 1989 judgment included Charles 0. Morgan, the secretary, having knowledge of the bankruptcy petition, omitted Charles O. Morgan from its September 18, 1989 petition for expansion.
. The court’s judgment specifically provided: Should they fail to do so (pay the $199,104.43 within sixty (60) days of the court’s order), the clerk is hereby ordered to notify the United States Marshal or his representative who shall forthwith without further notice or order of the court, take Respondent Charles O. Morgan, Sr. into custody, there to hold him until such time as his contempt shall be purged by paying all amounts due. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491041/ | MEMORANDUM OPINION
JAMES G. MIXON, Bankruptcy Judge.
On February 25, 1987, Horton Vaults, Inc. filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. On April 13, 1987, Hon. Richard L. Ramsay was appointed trustee. On February 24, 1988, the case was converted to chapter 7 and Hon. Richard L. Ramsay was again appointed trustee. On November 10, 1988, the trustee filed a complaint against West-brook Construction Company, Inc. (West-brook), to avoid a claim for materialman’s lien against property of the estate.
The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) and (K), and this Court has jurisdiction to enter a final judgment in the case.
The facts are not in dispute and the sole issue to be determined is the sufficiency of the description of the property in which the defendant claims a lien. The description in the lien statement described the property as “Metal building constructed at Route 1, Box 55, Romance, Arkansas 72136 for Horton Vaults.”
Ark.Code Ann. § 18-44-101(a) provides as follows:
Every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work to or upon, or furnish any material ... for any building, erection, improvement to or upon land ... under or by virtue of any contract with the owner or proprietor thereof or his agent, trustee, contractor, or *357subcontractor, upon complying with the provisions of this subchapter, shall have, for his work or labor done, or materials ... furnished, a lien upon the building, erection, or improvement and upon the land belonging to the owner or proprietor on which they are situated to the extent of one (1) acre or to the extent of any number of acres of land upon which work has been done or improvements erected.
Ark.Code Ann. § 18-44-117 provides in pertinent part:
It shall be the duty of every person who wishes to avail himself of the provisions of this subchapter to file with the clerk of the circuit court of the county in which the building, section or other improvement to be charged with the lien is situated ... a just and true account_ This account shall contain a correct description of the property to be charged with the lien[.]
A party wishing to avail itself of the benefits conferred by Ark.Code Ann. § 18-44-101 must substantially comply with the requirements of Ark.Code Ann. § 18-44-117 to have a lien declared in its favor. Rust v. Kelley Bros. Lumber Co., 180 Ark. 517, 520, 21 S.W.2d 973, 974 (1929); Conway Lumber Co. v. Hardin, 119 Ark. 43, 47, 177 S.W. 408, 409-10 (1915). To constitute substantial compliance, a description of the property to be charged with the lien must describe a particular tract or a particular building. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 459, 252 S.W. 901, 905-06 (1923). The property must be described with sufficient definiteness to enable a party familiar with the locality to identify the premises with reasonable certainty, to the exclusion of others. In re Taylor Oak Flooring Co., 87 F.Supp. 6, 11-12 (W.D.Ark.1949); Arkansas Foundry Co. v. American Portland Cement Co., 189 Ark. 779, 784, 75 S.W.2d 387, 390 (1934); Barnett Bros. v. Wright, 116 Ark. 44, 46-47, 172 S.W. 254, 254 (1914). The description must enable a person of ordinary intelligence to find and recognize the premises intended by the description. Brown v. Turnage Hardware Co., Inc., 181 Ark. 606, 607, 26 S.W.2d 1114, 1115 (1930). If the description does not properly describe the property intended to be affected, the claimant is not entitled to a lien. Speights v. Ark. Savings & Loan Ass’n, 239 Ark. 587, 591, 393 S.W.2d 228, 231 (1965). Less certainty is required in the description in a notice or claim of lien than in a judgment, conveyance or deed. 53 Am.Jur.2d Mechanics’ Liens § 213 (1970).
According to the testimony, Floyd, Arkansas, is a community of less than forty residents and does not have its own post office. The location represented by the mailing address of Box 55, Route 1, Romance, Arkansas, is actually located at Floyd, five to six miles away. The mail box is physically located across the road from the building in question. The evidence indicated that the building was the only metal building of that size in Floyd or anywhere along Route 1, and that it was the only property owned by the debtor in Floyd. The president of Westbrook testified that the site of the improvement was the only business or industry in Floyd and that “anybody that knows where Floyd, Arkansas, is can find [the building] by this description.” The witness for the debtor testified that “anyone within 30 miles knew where Horton Vaults was.”
Extrinsic evidence is admissible to cure otherwise insufficient descriptions. Barnett Bros. v. Wright, 116 Ark. at 46, 172 S.W. at 254. A description of the improvement itself which is sufficient to provide a correct identification of the improvement can aid in curing a defective description of the land upon which the improvement is located. Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 351-53, 258 S.W. 353, 354-55 (1924); Arkmo Lumber Co. v. Cantrell, 159 Ark. at 459-60, 252 S.W. at 906. In determining that materialmen’s claims should be allowed over the bankruptcy trustee’s objection in In re Taylor Oak Flooring Co., 87 F.Supp. at 13, the district court stated:
It is not necessary to describe the land upon which the building or buildings are situated if the building or buildings are sufficiently described because the statute *358fixes the quantity of the land to be charged with the lien and, since this identical property was the only property that was owned by the bankrupt in Bradley County, Arkansas, any person of ordinary information would have been advised upon the most casual examination of the statements of the accounts and affidavits that liens were being claimed and asserted against the property of [the bankrupt].
In Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S.W. 353 (1924), the Arkansas Supreme Court found a description sufficient which referred to a barn on the north side of a lot when the barn was actually located on the south side of the lot. The court stated:
The barn was a large structure, and was the only building on the lot, and no one could have believed that the materialman was claiming a lien on the part of the lot only on which there was no building of any kind[.]
Id. at 353, 258 S.W. at 355.
Here, the description is sufficient to enable a person with a reasonable amount of extrinsic evidence to locate the improvement in question. The description directs the reader to a mailbox located within eyesight of the improvement, and a layperson undoubtedly would be able to locate Route 1, Box 55, Romance, Arkansas, more easily and with less reference to extrinsic evidence than if the correct legal description were used. The improvement is the largest metal building in the locality, and is the only property owned by the debtor in that area. The improvement is the only piece of property which will reasonably answer the description provided. In re Taylor Oak Flooring, 87 F.Supp. at 13; Barnett Bros. v. Wright, 116 Ark. at 47, 172 S.W. at 254-55. See Geisreiter v. Standard Lumber Co., 187 Ark. 893, 896, 63 S.W.2d 347, 348 (1933) (“leasehold and building situated on northeast corner of block 49, Dexter Harding’s Addition” was sufficient description because “no person could be mistaken about the identity of the property”); Georgia State Sav. Ass’n v. Marrs, 178 Ark. 18, 23-24, 9 S.W.2d 785, 787-88 (1928) (“Southwest corner lot 50' X 140' facing 50' on Haes Street, all in block 10, Braley’s addition to the town of DeQueen, Arkansas” held sufficient to describe tract on southwest corner of block 10); Whitener v. Purifoy, 177 Ark. 39, 40-41, 5 S.W.2d 724, 725-26 (1928) (although affidavit described house into which materials went as being in a different section from where it was actually located, description was sufficient because there was no uncertainty as to the house on which the lien was claimed); Arkmo Lumber Co. v. Cantrell, 159 Ark. at 459-60, 252 S.W. at 906 (“All that is essential is that the acre of land or the building be designated in such language as will afford information concerning the situation of the property to be charged with the lien”); Eddy v. Loyd, 90 Ark. 340, 342, 119 S.W. 264, 265 (1909) (description sufficient if it identified the property or furnished a means of identification). See also Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 106 Idaho 920, 684 P.2d 322 (Ct.App.1984) (description of silver mine sufficient since mine location was well known and could be easily identified by one familiar with locality); Sutherland Lumber Co. v. Due, 212 Kan. 658, 512 P.2d 525 (1973) (description insufficient which referred only to rural route number, with no specific box number, where owner owned four tracts along the route); Contract Steel Sales, Inc. v. Freedom Constr. Co., 84 N.C.App. 460, 353 S.E.2d 418, aff'd, 321 N.C. 215, 362 S.E.2d 547 (1987) (“DuPont Co. MMF process building, Fayetteville, N.C.” held sufficient to describe improvement located 16 miles away); Buckeye State Hauling, Inc. v. Troy, 43 Ohio Misc. 23, 332 N.E.2d 776 (C.P.1974) (description containing wrong street address was sufficient if not misleading and interested party could locate the property); Post-Tensioned Systems, Inc. v. Collins & Hobbs, Inc., 640 S.W.2d 576 (Tenn.Ct.App.1982) (street address sufficient without legal description if person of ordinary intelligence could locate the property); Fircrest Supply, Inc. v. Plummer, 30 Wash.App. 384, 634 P.2d 891 (1981) (legal description unnecessary if street address provided); Annotation, Sufficiency of Notice, Claim, or Statement of *359Mechanic’s Lien with respect to Description or Location of Real Property, 52 A.L.R.2d 12, at § 16 (1957).
Therefore, the trustee’s complaint is overruled and a separate judgment in favor of the defendant will be entered pursuant to Bankruptcy Rule 9021.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491042/ | ORDER
JAMES G. MIXON, Bankruptcy Judge.
On July 18, 1984, Herbert E. Russell filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. Hon. William R. Gibson was appointed trustee in the chapter 11 case on March 19, 1985. The trustee has objected to the claim filed by Arthur Furrow, Mary Furrow, Walter Furrow and Naomi Furrow (the Furrows).
This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B), and the Court has jurisdiction to enter a final judgment.
The Furrows and other family members sold approximately 832 acres of farmland to the debtor on June 19, 1981, for a purchase price of $790,400.00. The debtor made a $40,000.00 down payment and executed two promissory notes totaling $750,-400.00 for the balance of the purchase price. Payment of the notes was secured by a first deed of trust lien in the property. On the day the debtor filed his petition in bankruptcy, a balance of $598,691.72 remained unpaid on the note. The Furrows subsequently filed for relief from the stay and in February 1985 presented evidence at the hearing that the value of the 832 acres was between $624,000.00 and $707,200.00. By order of this Court entered February 26, 1985, relief from the stay was granted, although the property was not abandoned from the estate. On March 26, 1985, the Furrows filed a foreclosure suit in the Chancery Court of Monroe County, Arkansas, naming the debtor as a defendant. The trustee was never made a party to the suit. A foreclosure decree in favor of the Furrows was entered on January 30, 1986, and a foreclosure sale was conducted on February 27, 1986. The Furrows, as the sole bidder, purchased the property for $140,000.00 at the foreclosure sale. Their claim against the estate is for an alleged deficiency of $441,170.72.1
The trustee alleges that the price paid for the property at the foreclosure sale was unconscionably low and that the Furrows should not be entitled to a claim for the deficiency. The Furrows argue that the issue of unconscionability was determined in the state court proceeding and that the prior determination bars any reconsideration of the issue under the doctrine of res judicata.
[1-3] In allowing and disallowing claims of creditors, bankruptcy courts are generally precluded from reconsidering questions previously determined in a non-bankruptcy forum under principles of collateral estoppel and res judicata. Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946); Kapp v. Naturelle, Inc. (In re Kapp), 611 F.2d 703, 708 (8th Cir.1979). Collateral estoppel bars relitigation of issues which were directly and necessarily adjudicated in a prior proceeding; whereas, res judicata bars relit-igation of issues which were litigated or could have been litigated in the prior proceeding. Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.1983). However, both doctrines require that the same parties or their privies participate in the prior proceedings. *361Bailey v. Harris Brake Fire Protection District, 287 Ark. 268, 269-70, 697 S.W.2d 916, 917 (1985).
For a party to be precluded from relitigating an issue, he must have had a “full and fair opportunity” to litigate the issue in the prior proceeding. Id.; Lovell v. Mixon, 719 F.2d at 1376; Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 356 n. 12 (8th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985). If a nonparty could have intervened in a prior proceeding, but chose not to, he will not be bound by the prior judgment. Gratiot County State Bank v. Johnson, 249 U.S. 246, 249-50, 39 S.Ct. 263, 263-64, 63 L.Ed. 587 (1919). See Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431, 441, 54 S.Ct. 475, 479, 78 L.Ed. 894 (1934); Mixon v. Barton Lumber & Brick Co., 226 Ark. 809, 817, 295 S.W.2d 325, 329 (1956).
Here, the trustee was never made a party to a state court foreclosure proceeding involving estate property. Title to the property was vested in the estate, and the trustee was the only authorized individual through whom the estate could act. 2 Collier on Bankruptcy 11323.01 (15th ed. 1989); 11 U.S.C. § 323(a); 11 U.S.C. § 1107(a); Bankruptcy Rule 2012(a). Since the estate was the owner of the property and was not made a party in the foreclosure suit, the estate is not bound by the factual determination in the foreclosure decree.
A decree of foreclosure is a nullity as to the owner of the equity of redemption not made a party to the action; and as a general rule, a foreclosure decree does not conclude an interested person who is not made a party to the proceeding.... Generally, the mere fact that one has notice of the pendency of a foreclosure suit does not make him a party thereto, or make the decree binding on him.
55 Am.Jur.2d Mortgages § 570 (1971) (footnotes omitted). See Dickinson v. Duck-worth, 74 Ark. 138, 143, 85 S.W. 82, 84 (1905); Martin v. O’Bannon, 35 Ark. 62, 67 (1879); Tollett v. Titsworth, 12 Ark. App. 21, 23, 670 S.W.2d 467, 469 (1984). See also Arkansas Iron & Metal Co. v. First Nat’l Bank of Rogers, Arkansas, 16 Ark.App. 245, 251, 701 S.W.2d 380, 383-84 (1985) (corporation, which could act only through its representatives, held title to corporate property and was proper party to be sued in suit to foreclose corporate mortgage).
If the trustee had been made a party in the state court proceeding, he would have had an opportunity to challenge the deficiency resulting from the sale. Since no service was obtained on the trustee, the state court had no jurisdiction to adjudicate the trustee’s interest in property of the bankruptcy estate. See Ingram v. Luther, 244 Ark. 260, 267, 424 S.W.2d 546, 553 (1968). Therefore, the bankruptcy court is not precluded from examining the circumstances resulting in the claim against the estate. See Heiser v. Woodruff, 327 U.S. at 736, 66 S.Ct. at 857; Pepper v. Litton, 308 U.S. 295, 305-06, 60 S.Ct. 238, 244-45, 84 L.Ed. 281 (1939). The court has the power to disallow claims, in part or entirely, that would not be fair or equitable to other creditors. Pepper v. Litton, 308 U.S. at 308-09, 60 S.Ct. at 246; In re Distrigas Corp., 75 B.R. 770, 774 (Bankr.D.Mass. 1987).
In 1981, the debtor purchased the subject property for $790,400.00. On February 14, 1985, a real estate appraiser estimated the value of the property to be between $624,000.00 and $707,200.00.2 On October 1, 1985, after a complete appraisal of the property at the request of the Furrows, the same appraiser placed the market value of the property at $561,000.00. Five months later, the Furrows purchased the property at the foreclosure sale for a credit of $140,000.00 on the debt and received title to the property.
*362The testimony at the hearing on the objection to the claim indicated that the Furrows believed the amount paid at the foreclosure sale was reasonable because of the difficulty in selling land at that time and because the price approximated the amount of an investment which would produce the return the Furrows had been receiving on the property. The Furrows’ appraiser testified that since the October 1985 appraisal, the property had probably declined slightly in value because of the depressed market; however, other evidence indicated that since the appraisal the property had produced higher crop yields than it had in the preceding years. No evidence was presented of the fair market value on the date of the foreclosure sale.
11 U.S.C. § 501(a) allows a creditor to file a proof of claim in a case. 11 U.S.C. § 502(a) provides that a claim, proof of which is filed under § 501, is deemed allowed unless a party in interest objects. See 3 Collier on Bankruptcy ¶ 502.01[2] (15th ed. 1989). Bankruptcy Rule 3001(f) states the evidentiary effect of the filing of a proof of claim:
A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.
The procedures applicable in claims litigation were stated in California State Board of Equalization v. Official Unsecured Creditors’ Committee (In re Fidelity Holding Co., Ltd.), 837 F.2d 696, 698 (5th Cir.1988):
Under Bankruptcy Rule 301(b), [identical to current Bankruptcy Rule 3001(f)] a party correctly filing a proof of claim is deemed to have established a prima facie case against the debtor’s assets. In re WHET, Inc., 33 B.R. 424, 437 (Bkrtcy.D.Mass.1983). The objecting party must then produce evidence rebutting the claimant or else the claimant will prevail. Id. at 437. If, however, evidence rebutting the claim is brought forth, then the claimant must produce additional evidence to “prove the validity of the claim by a preponderance of the evidence.” The ultimate burden of proof always rests upon the claimant.
See Surf Walk Condominium Ass’n v. Wildman, 84 B.R. 511, 515 (N.D.Ill.1988); In re Koontz Aviation, Inc., 71 B.R. 608, 610 (Bankr.D.Kan.1987); In re Distrigas Corp., 75 B.R. 770, 772-73 (Bankr.D.Mass.1987); In re VTN, Inc., 69 B.R. 1005, 1008 (Bankr.S.D.Fla.1987); In re Fogelberg, 79 B.R. 368, 372 (Bankr.N.D.Ill.1986); In re Century Inns, Inc., 59 Bankr. 507, 522 (Bankr.S.D.Miss.1986); 3 Collier on Bankruptcy ¶ 502.01[3] (15th ed. 1989).
In this case, the objecting party established that the Furrows purchased the property for a credit of only $140,000.00 against their debt only a year after their expert witness testified that the property had a fair market value of $624,000.00 to $707,200.00. Although given a specific opportunity to establish that the land had significantly decreased in value between the date of the hearing for relief from the stay and the date of the foreclosure the claimant offered no persuasive evidence that the value had decreased. The evidence supports the conclusion that the deficiency claim is unconscionable because the Furrows have recovered their collateral which has a value equal to their claim.
Therefore, the objection to the Furrows’ claim is sustained.
IT IS SO ORDERED.
. Claim of $598,691.72 less $140,000.00 sale proceeds and less $17,521.00 received in rents.
. Although under 11 U.S.C. § 506(a) a previous determination of value by the court is not binding in a subsequent proceeding, the proof presented by the parties is persuasive evidence of what they consider the property to be worth. See In re Hemisphere International Center, Inc., 59 B.R. 289, 293 (Bankr.S.D.Fia.1986). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483512/ | Opinion issued November 10, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00813-CV
———————————
IN RE LAURA WALKER, PA-C, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Laura Walker, PA-C, has filed a petition for writ of mandamus,
requesting this Court to vacate the trial court’s order granting a motion to reinstate
and a motion for leave to file an untimely motion to reinstate.1
1
The underlying case is Brock Estes, as Heir of Melissa Estes, Deceased v. Laura
Walker, PA-C, Cause No. 2018-38478, pending in the 165th District Court of Harris
County, Texas, the Honorable Ursula Hall presiding.
We deny the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a). We
dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Countiss and Rivas-Molloy.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483527/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
QUAMAINE LEE MASSEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 22-3318 (UNA)
)
SCOTT S. HARRIS, et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
Plaintiff, proceeding pro se, brings this civil rights action against the Clerk and a Deputy
Clerk of the Supreme Court of the United States. See Compl. at 2-3. According to plaintiff,
defendants “literally ignored [his] petition” because of “racism.” Id. at 5. Neither defendant would
“fix” an unspecified defect in plaintiff’s submission to the Supreme Court, and instead “returned
[his] petition . . . in harsh condition.” Id. Consequently, plaintiff’s claim that the terms of his plea
bargain have been breach goes unheard, and plaintiff remains incarcerated when, in his view, he
is entitled to immediate release on parole. See id. at 5-7. He demands “[i]mmediat[e] release from
NC Correctional Institution and monetary damages.” Id. at 8. The Court will dismiss the
complaint for three reasons.
First, this Court has no authority to determine what action, if any, must be taken by the
Supreme Court and its Clerk. See In re Marin, 956 F.2d 339, 340 (D.C. Cir.) (per curiam), cert.
denied, 506 U.S. 844 (1992).
1
Second, absolute immunity protecting judges from liability for damages for acts taken in
their judicial capacities extends to Clerks of Court performing “tasks that are an integral part of
the judicial process.” Sindram v. Suda, 986 F.2d 1459, 1460 (D.C. Cir. 1993); Evans v. Suter, 260
F. App’x 726 (5th Cir. 2007) (per curiam), cert. denied, 552 U.S. 1282 (2008). The decision to
accept or reject a submission is integral to the judicial process, which renders defendants immune
from plaintiff’s suit for damages. See, e.g., Jones v. U.S. Supreme Court, No. 1:10-CV-0910, 2010
WL 2363678, at *1 (D.D.C. June 9, 2010) (concluding that court clerks are immune from suits for
damages arising from activities such as the “receipt and processing of a litigant’s filings”), aff’d
sub nom. Jones v. Supreme Court of the United States, 405 F. App’x 508 (D.C. Cir. 2010) (per
curiam), aff’d, 563 U.S. 914 (2011).
Third, to the extent plaintiff demands his immediate release from custody, his remedy
sounds in habeas, see Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges
to the validity of any confinement or to particulars affecting its duration are the province
of habeas corpus[.]”) (citation omitted), a matter over which this Court lacks jurisdiction. The
proper respondent in a habeas corpus action is plaintiff’s custodian, Rumsfeld v. Padilla, 542 U.S.
426, 434-35 (2004), and this Court may not entertain a habeas petition involving a prisoner’s
present physical custody because his custodian is outside of the Court’s territorial jurisdiction,
Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004).
An Order consistent with this Memorandum Opinion is issued separately.
DATE: November 14, 2022 /s/
AMY BERMAN JACKSON
United States District Judge
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483524/ | 21-1031-cv
Cottam v. 6D Global Technologies, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of November, two thousand twenty-two.
PRESENT:
JON O. NEWMAN,
WILLIAM J. NARDINI,
BETH ROBINSON,
Circuit Judges.
_____________________________________
JOHN COTTAM,
Plaintiff-Appellant,
v. 21-1031-CV
6D GLOBAL TECHNOLOGIES, INC., 6D
ACQUISITIONS, INC.,
Defendants-Appellees,
GLOBAL EMERGING CAPITAL GROUP, LLC,
ALEXANDER KIBRIK, ALEXANDER
UCHIMOTO, TEJUNE KANG,
Defendants.
_____________________________________
For Plaintiff-Appellant: JOHN COTTAM, pro se, Brandon, FL.
For Defendants-Appellees: TOM M. FINI (Adam Sherman, on the
brief) Catafago Fini LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Lorna G. Schofield, Judge) entered on March 31, 2021.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant John Cottam appeals from a judgment of the United States District Court for the
Southern District of New York (Lorna G. Schofield, Judge) entered on March 31, 2021, awarding
him only nominal damages of $1 in his suit against the defendants. Cottam sued 6D Global
Technologies, Inc. (“6D Global”) and others, alleging securities fraud and breach of contract
claims. Cottam alleged that the defendants breached a contract and committed securities fraud
when he did not receive the number of shares to which he was entitled under a subscription
agreement. The district court granted summary judgment to Cottam as to liability on the breach
of contract claim, and granted summary judgment in favor of the defendants as to the securities
fraud claim. The court further ruled that there was a genuine dispute of material fact regarding
the damages owed for the contract claim, and denied punitive damages because such damages
were unavailable for breach of contract. The primary question remaining on the contract claim
was the damages owed to Cottam given the illiquidity of the stock, the effect of the dilution that
would result from the issuance of the additional shares to Cottam and other subscribers, and sales
restrictions under the contract. After a bench trial, the district court ruled that Cottam had failed
to establish a stable foundation for the reasonable estimate of damages and therefore awarded him
2
only a nominal amount. Cottam appeals, proceeding pro se. We assume the parties’ familiarity
with the case.
In reviewing a judgment entered after a bench trial, we review the district court’s findings
of fact for clear error and its “conclusions of law, and its application of the law to the facts, de
novo.” Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012). Whether a district court
correctly calculated damages is a question of law that is reviewed de novo. Oscar Gruss & Son,
Inc. v. Hollander, 337 F.3d 186, 196 (2d Cir. 2003).
“Proof of damages is an essential element of a claim for breach of contract under New
York law.” Process Am., Inc. v. Cynergy Holdings, LLC, 839 F.3d 125, 141 (2d Cir. 2016). “A
non-breaching party is entitled, as a matter of law, to recover market value damages to the extent
that they can be proven with reasonable certainty.” Id. (internal quotation marks omitted). When
“the non-breaching party has proven the fact of damages by a preponderance of the evidence, the
burden of uncertainty as to the amount of damage is upon the wrongdoer.” Id. (internal quotation
marks omitted). Before the burden shifts, however, the non-breaching party must establish “a
‘stable foundation for a reasonable estimate’ of the damages incurred as a result of the breach.”
Id. (quoting Freund v. Washington Square Press, Inc., 34 N.Y.2d 379, 383 (1974)). “Such an
estimate necessarily requires some improvisation, and the party who has caused the loss may not
insist on theoretical perfection.” Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d
89, 111 (2d Cir. 2007) (internal quotation marks).
Although the shares at issue were trading for $8.30 per share at the time of breach, this
value does not reflect the impact of trading restrictions on Cottam’s shares, the dilution that would
be occasioned by the issuance of additional shares as Cottam seeks, and the uncertainties in the
3
market price on account of relatively light trading. District courts in this circuit have considered
the illiquidity of stock and the financial condition of the company as among the relevant
considerations in valuing stock. See, e.g., Davidowitz v. Patridge, No. 08 Civ. 6962, 2010 WL
5186803, at *11–12 (S.D.N.Y. Dec. 7, 2010) (considering the “thin” nature of the stock’s trading
performance); BrandAid Mktg. Corp. v. Biss, No. 03 Civ. 5088, 2008 WL 190494, at *6 (S.D.N.Y.
Jan. 22, 2008) (considering the fact that the corporation had been insolvent at the time of the
contract and ceased operations six months after the breach). Stock that was restricted, like the
shares at issue here, is additionally discounted because it was not freely sellable on the date of the
breach. See Simon v. Electrospace Corp., 28 N.Y.2d 136, 147 (1971) (“If restricted, then the
market value would have to be discounted in some way.”).
Cottam failed to provide a stable foundation for a reasonable estimate of damages. He
offered no expert testimony, and suggested only one method of assessing the value of the missing
shares: calculating the dilution of the value of the company’s shares by the amount of stock that
would have been issued had the defendants adhered to the subscription agreement. However, this
method failed to account for other factors that would significantly impact the value of the shares.
As the district court found, the shares were restricted, the stock was thinly traded on the date of
the breach, and 6D Global was in poor financial condition, all of which diminished the value of
the shares that Cottam should have received. See Davidowitz, 2010 WL 5186803, at *12;
BrandAid Marketing Corp., 2008 WL 190494, at *6; Simon, 28 N.Y.2d at 147. Given the
complexity involved in valuing shares, the district court correctly found that dilution alone could
not establish a stable foundation for calculating damages.
Cottam argues that the district court misapplied the “wrongdoer” rule by failing to account
4
for the defendants’ fraudulent acts. But the district court correctly ruled that Cottam was required
to first establish a stable foundation for damages before the burden of showing the amount of
damages would shift to the breaching party. Process Am., Inc., 839 F.3d at 141. Cottam also
contends that the district court should have measured damages from the date the stock became
unrestricted, not the date of the breach. But under New York law, “breach of contract damages
are to be measured from the date of the breach.” Lucente v. Int’l Bus. Machine Corp., 310 F.3d
243, 262 (2d Cir. 2002).
Cottam also asserts that the defendants’ expert should have been disqualified because his
methods could not be tested and were speculative. But even to the extent that Cottam’s objection
was properly preserved, we see no abuse of discretion in admitting the expert’s testimony. See
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (applying abuse of discretion
standard). What is more, even if we adopted Cottam’s argument regarding the defendant’s expert,
the expert’s admission was harmless error, because, as we have already observed, Cottam failed
to offer a stable foundation for calculating damages. This conclusion would be unaffected by the
exclusion of a defense expert’s testimony because it was based on Cottam’s failure to address
various valuation factors of clear import to his damages.
Cottam next contends that the district court was biased against him, citing the award of
nominal damages instead of a minimum of the price he had paid for the undelivered shares and the
district court’s reference to his pro se status. Neither argument has merit. The fact that the
district court did not rule in Cottam’s favor or adopt his theory of damages is not evidence of bias.
See Liteky v. United States, 510 U.S 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.”). Nor is the district court’s observation of
5
Cottam’s pro se status; the court fully analyzed Cottam’s theory of damages and explained why
Cottam’s demand for $19 million in damages was unwarranted.
Finally, Cottam argues that he was entitled to punitive damages. “[D]amages arising from
the breach of a contract will ordinarily be limited to the contract damages necessary to redress the
private wrong, but [] punitive damages may be recoverable if necessary to vindicate a public right.”
N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 315 (1995). “Punitive damages are available only
in those limited circumstances where it is necessary to deter defendant and others like it from
engaging in conduct that may be characterized as gross and morally reprehensible, and of such
wanton dishonesty as to imply a criminal indifference to civil obligations.” Id. at 315–16 (cleaned
up). To state a claim for punitive damages resulting from a breach of contract, the plaintiff must
allege that the defendant’s conduct was actionable as an independent tort. Id. at 316.
Although Cottam alleged an independent tort by asserting a securities fraud claim, the
district court granted summary judgment to the defendants on that claim, and Cottam has not
appealed that decision. He has therefore forfeited any argument on appeal that the defendants
committed an independent tort, and he does not otherwise contend that they acted in a “gross” or
“morally reprehensible” way. As a consequence, Cottam cannot establish entitlement to punitive
damages.
We have considered all of Cottam’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483530/ | [Cite as Mireles v. Veronie, 2022-Ohio-4038.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JOSEPH VAN BROCKLIN MIRELES C.A. No. 22CA0016-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TRISH VERONIE COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 16DR0512
DECISION AND JOURNAL ENTRY
Dated: November 14, 2022
HENSAL, Judge.
{¶1} Joseph Van Brocklin Mireles appeals a judgment entry of the Medina County Court
of Common Pleas, Domestic Relations Division. For the following reasons, this Court affirms.
I.
{¶2} The parties are the parents of a child who was born while they were married. A
Louisiana court presided over their divorce and awarded custody of the child to Mother. In January
2022, the child was visiting Father in Ohio when she reported that Mother’s boyfriend had struck
her on the leg. Father noticed bruising on the child’s thigh and sought medical treatment for her.
After a physician discovered evidence of likely sexual assault as well, Father filed a motion for
emergency custody in the trial court.
{¶3} Following an ex parte hearing, a magistrate issued an order designating Father as
the temporary legal custodian of the child. In its order, the magistrate wrote that the court would
immediately communicate with the Louisiana court to determine a period for the duration of the
2
order and would set a hearing on Father’s motion. Before holding the hearing, however, the trial
court vacated the magistrate’s order. In its judgment entry, the court wrote that it had spoken with
the Louisiana court and learned that the court had issued a temporary restraining order prohibiting
Mother’s boyfriend from having contact with the child. The Louisiana court had also set a hearing
to address Father’s concerns, had obtained the involvement of the Louisiana Department of
Children and Family Services (“DCFS”), and had or would involve local law enforcement. Father
has appealed the judgment entry vacating the magistrate’s order, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT VIOLATED THE APPELLANT’S RIGHT TO DUE
PROCESS PURSUANT TO THE UNIFORM CHILD CUSTODY AND
ENFORCEMENT ACT AS CODIFIED IN OHIO REVISED CODE 3107.18.
{¶4} In his first assignment of error, Father argues that the trial court violated his due
process rights when it vacated the magistrate’s order. He argues that the court did not hold a
hearing on his motion, give him an opportunity to present additional evidence before ruling on it,
or provide a record of its alleged communication with the Louisiana court.
{¶5} Revised Code Section 3127.18(A)(2) provides that an Ohio court has temporary
emergency jurisdiction if a child is present in this state and it is necessary to protect the child
because she is subject to mistreatment or abuse. If there is a prior child custody order from another
state, an order issued by a court in this state “remains in effect until an order is obtained from the
other state[.]” R.C. 3127.18(C). In addition, a court that has been asked to make an emergency
child custody determination under the statute, “shall immediately communicate with the other
court.” R.C. 3127.18(D); see State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, ¶
3
13-14 (explaining requirements for an Ohio court to exercise temporary emergency jurisdiction
under Section 3127.18).
{¶6} Father argues that the trial court failed to comply with Section 3127.09 when it
communicated with the Louisiana court. Section 3127.09(B) provides that a court may give the
parties the opportunity to participate in its communication with the court of another state. If the
parties are not able to participate in the communication, “they shall be given the opportunity to
present facts and legal arguments before a decision concerning jurisdiction is made.” R.C.
3127.09(B). Subsection (D) also provides that a record shall be made of the communication and
the parties “shall be informed promptly of * * * and granted access to the record.” According to
Father, the trial court did not give him an opportunity to present any facts or legal arguments before
it vacated the magistrate’s order and it failed to provide him access to the record of its
communication with the Louisiana court, if one even exists.
{¶7} Upon review of the record, it appears that the trial court did not comply with Section
3127.09 regarding its communication with the Louisiana court. Father, however, has not
established that he was prejudiced by the errors. Civ.R. 61. Under Section 3127.18(C), the
magistrate’s order could only remain in effect “until an order [was] obtained from the other
state[.]” The trial court attached an order by the Louisiana court to its judgment entry vacating the
magistrate’s order. According to the Louisiana order, the Louisiana court was ruling on an ex
parte petition for custody that Father had filed in that state. The order denied the relief Father
requested but imposed a temporary restraining order against Mother’s boyfriend, ordered the
Louisiana DCFS to immediately interview the child, and ordered the parties to follow any
recommendations from the agency for additional examinations or interviews by health care or
mental health care professionals.
4
{¶8} Because the trial court’s temporary emergency jurisdiction ended when it obtained
an order by the Louisiana court on the same issue, the court’s failure to comply with Section
3127.09 did not affect Father’s substantial rights. Civ. R. 61. Father’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT JUDGMENT ENTRY VACATING EMERGENCY
TEMPORARY JURISDICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶9} In his second assignment of error, Father argues that the trial court should not have
vacated the magistrate’s order because there were significant concerns about the Louisiana court’s
ability to protect the child. He appears to argue that the court should have determined that it
continued to be “necessary in an emergency to protect the child” despite the order of the Louisiana
court and, thus, retained jurisdiction over the issue. R.C. 3127.18(A)(2). According to Father, the
trial court’s determination that its emergency temporary jurisdiction had ended was against the
manifest weight of the evidence. When reviewing a manifest weight challenge,
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine whether,
in resolving conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the [judgment] must be reversed and a
new [hearing] ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). When conducting this review, an
appellate court “must always be mindful of the presumption in favor of the finder of fact.” Eastley
v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21.
{¶10} At the hearing before the magistrate, Father testified that the Louisiana court
awarded custody of the child to Mother, even though Mother’s boyfriend had an extensive criminal
history, because Mother alleged that she was no longer seeing him. Father, however, subsequently
5
hired a private investigator who observed that the boyfriend was still at Mother’s residence all the
time and was, presumably, living there. Father testified that he had even seen the boyfriend in the
background while videoconferencing with the child. Father said that he had filed a complaint with
Louisiana DCFS but it did not do anything. When he contacted the department about the bruising
on the child’s leg, it also told him not to do anything. Because an emergency room nurse advised
him to take the child for further evaluation, however, he did so and sent a copy of the report to
Louisiana DCFS. Father testified that he had not heard from the department since sending the
report.
{¶11} Father also testified that his attorney had filed an ex parte petition in Louisiana and
that the judge had said during a hearing that he was going to deny the petition. According to
Father, the Louisiana court did not see any issues despite reviewing the medical reports
documenting the indicia of sexual abuse. Father also alleged that the judge presiding over the
Louisiana court had a conflict of interest because of his ties to Mother.
{¶12} Father did not make a copy of the petition that he filed in Louisiana part of the
record and he did not indicate the extent of the relief he requested in it. The day after the hearing
before the magistrate, the Louisiana court entered an order that denied the relief Father requested.
The court did, however, issue a temporary restraining order against the boyfriend, ordered the child
to be interviewed by Louisiana DCFS and law enforcement, and ordered the parties to follow any
of their recommendations for further examinations or interviews of the child. Upon review of the
record, we conclude that the trial court’s determination that the Louisiana court order terminated
its limited jurisdiction under Section 3127.18 was not against the manifest weight of the evidence.
Father’s second assignment of error is overruled.
III
6
{¶13} Father’s assignments of error are overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
REBECCA A. CLARK, Attorney at Law, for Appellant.
7
THOMAS L. ERB, JR., Attorney at Law, for Appellee. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483526/ | Cite as: 598 U. S. ____ (2022) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
TIM SHOOP, WARDEN v. JERONIQUE D.
CUNNINGHAM
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 21–1587. Decided November 14, 2022
The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari is
denied.
JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, dissenting from denial of certiorari.
In 2002, respondent Jeronique Cunningham concluded
an armed robbery of his drug dealer with a spray of bullets
that killed a teenager and a toddler. An Ohio jury convicted
him of capital murder, and the trial court sentenced him to
death. Twenty years later, the Sixth Circuit ordered an ev-
identiary hearing to determine whether the foreperson’s
presence on the jury deprived Cunningham of due process—
either because the foreperson received prejudicial outside
information about Cunningham or because she was biased
by an undisclosed relationship with the victims’ families.
In analyzing the first claim, the Sixth Circuit once again
flouted the deferential standard of review demanded by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). In analyzing the second claim, the Sixth Circuit
applied an incorrect framework to justify a fishing expedi-
tion based on allegations with no admissible factual foun-
dation.
To correct these manifest abuses of the Sixth Circuit’s ha-
beas jurisdiction, I would grant Ohio’s petition and sum-
marily reverse the judgment below. Therefore, I respect-
fully dissent from denial of certiorari.
2 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
I
On January 3, 2002, Cunningham and his half-brother,
Cleveland Jackson, purchased crack cocaine from Shane
Liles in Lima, Ohio. That evening, Cunningham and Jack-
son returned to Liles’ apartment to rob him. Both were
armed with handguns. Liles was not home when the would-
be robbers arrived, so Liles’ girlfriend, Tomeaka Grant,
called him to let him know he had visitors. Cunningham
and Jackson waited for Liles in the living room, where three
teenagers—Leneshia Williams, Coron Liles, and Dwight
Goodloe, Jr.—were watching The Fast and the Furious. In
the meantime, Tomeaka Grant returned to the kitchen,
where she was playing cards with James Grant (her
brother) and Arnetta Robinson (a family friend). James
Grant’s 3-year-old daughter, Jala Grant, was also present.
When Liles got home, Jackson pretended to be interested
in another drug buy until Cunningham drew his gun. Cun-
ningham then herded the teens into the kitchen, where he
held everyone at gunpoint. Meanwhile, Jackson walked
Liles upstairs at gunpoint while demanding drugs and
money, tied his hands behind his back, and finally forced
him to join the group in the kitchen.
The two robbers ordered the assembled victims, now
eight in total, to place their valuables on the kitchen table.
When Liles said he had none left, Jackson shot him in the
back. Both robbers then fired into the huddled group until
their guns were empty. All eight victims were shot. Two
died: 17-year-old Leneshia and 3-year-old Jala, both killed
by bullets to the head. Jala’s father, James Grant, was shot
five times as he vainly attempted to shield his young daugh-
ter. Robinson was comatose for 47 days, and Tomeaka
Grant lost an eye.
In June 2002, a jury found Cunningham guilty of aggra-
vated murder, attempted murder, and aggravated robbery.
After a penalty hearing, the jury recommended and the trial
court imposed the death sentence for the murders. The
Cite as: 598 U. S. ____ (2022) 3
THOMAS, J., dissenting
Ohio Supreme Court affirmed Cunningham’s convictions
and sentence. State v. Cunningham, 105 Ohio St. 3d 197,
2004-Ohio-7007, 824 N. E. 2d 504.
Cunningham filed a state postconviction motion, assert-
ing (among other claims not relevant here) that the jury
foreperson’s presence on the jury had deprived him of a fair
trial. Cunningham based this claim on a postverdict inter-
view that the foreperson had given to a private investigator
working for Jackson’s defense team. The investigator’s
notes reflect that the foreperson discussed the evidence in
the case and what she and the other jurors had thought
about it in detail. Then, near the end of the interview, she
stated that “ ‘some social workers worked with Jeronique
[Cunningham] in the past and were afraid of him.’ ” State
v. Cunningham, 2004-Ohio-5892, ¶60 (App.). Latching onto
that statement, Cunngingham alleged that the foreperson,
who worked at Allen County Children Services, had re-
ceived extraneous prejudicial information about him from
her colleagues.
The trial court dismissed the claim without discovery or
an evidentiary hearing, and the Ohio Court of Appeals af-
firmed. See id., ¶¶67–71. The Ohio Court of Appeals ex-
plained that the investigator’s notes did not suggest that
the foreperson had obtained any information from her fel-
low social workers prior to Cunningham’s trial. After all,
the court noted, the record did not show when the investi-
gator had interviewed the foreperson, and the foreperson
had been thoroughly examined in voir dire with no indica-
tion that she could not be fair and impartial. Id., ¶61. The
court further reasoned that the foreperson’s negative “im-
pression of Cunningham’s character . . . was likely shaped
during the trial” and that the rest of the interview notes
showed that the foreperson “followed the law and carefully
considered the evidence in the case.” Id., ¶62.
In 2006, Cunningham filed a federal habeas corpus peti-
tion in the District Court for the Northern District of Ohio,
4 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
reasserting his outside-information claim. Although Cun-
ningham’s claim had been adjudicated on the merits in
state court, the District Court decided in 2008 that he was
entitled to discovery about “when [the foreperson] acquired
[the outside] information, who she learned it from, whether
she told any other jurors and whether this information in-
fluenced her or any other jurors to convict Cunningham
and/or vote for the death penalty.”1 Cunningham v. Hud-
son, 2008 WL 2390777, *7 (June 9, 2008). The District
Court thus authorized Cunningham to depose the foreper-
son, all seated and alternate jurors, Allen County Children
Services employees, and the investigator who had inter-
viewed the foreperson.
Cunningham obtained affidavits from two other jurors,
neither of whom recalled hearing the foreperson discuss
any outside information about Cunningham. The jurors
did, however, attest to a statement by the foreperson re-
garding the victims’ families during deliberations. Accord-
ing to one juror, the foreperson said, “I know the families of
the people that were shot in the kitchen. The families know
me and I am going to have to go back and see them. These
families are my clients.” App. to Pet. for Cert. 101a. Ac-
cording to the second juror, the foreperson “told the young
woman [the first juror] and the jury that the young woman
did not have to work in the local community.” Id., at 102a.
The foreperson was deposed in January 2009. She con-
firmed that she had not spoken to any of her colleagues
about Cunningham prior to his trial. Rather, she only
“looked through [his] files” after the trial and sentencing
——————
1 When a claim has been adjudicated on the merits in state court, re-
view under 28 U. S. C. §2254(d)(1) must be limited to the evidence in the
state-court record. Cullen v. Pinholster, 563 U. S. 170 (2011). Although
this Court had not yet decided Cullen when the District Court authorized
Cunningham to take discovery, the Sixth Circuit had already applied the
same rule in binding precedent. See Eady v. Morgan, 515 F. 3d 587, 601
(2008).
Cite as: 598 U. S. ____ (2022) 5
THOMAS, J., dissenting
were “completely over.” Cunningham v. Hudson, No. 3:06–
cv–00167 (ND Ohio, Feb. 15, 2009), ECF Doc. 107, p. 4.
Cunningham’s counsel also asked the foreperson if she
knew the victims, but the presiding Magistrate Judge sus-
tained the State’s objection that the question was beyond
the scope of Cunningham’s bias claim. Soon afterward, the
District Court allowed Cunningham to amend his juror-bias
claim to add an allegation that the foreperson was biased
by a relationship with the victims’ families.
The two other jurors were deposed in October 2009. The
first juror substantially repeated the statements in her af-
fidavit, while acknowledging that she was merely para-
phrasing the foreperson’s words and that her memory was
not very good. The second juror testified that the foreper-
son “stated she may in the future be working with the fam-
ilies,” but “not that she had been.” App. to Pet. for Cert.
103a. The District Court again permitted Cunningham to
amend his claim to include these statements as related in
the depositions.
The case was then assigned to a different District Judge,
who dismissed all of Cunningham’s claims as procedurally
defaulted, meritless, or both, and denied a certificate of ap-
pealability (COA) in 2010. But the Sixth Circuit granted a
COA on seven claims, including the claim that the foreper-
son’s presence on the jury had deprived Cunningham of a
fair trial. In 2014, three years after granting the COA, the
Sixth Circuit concluded that it was unclear whether Cun-
ningham’s family-relationship claim was exhausted, and it
remanded for the District Court to grant a stay and abey-
ance while Cunningham presented the claim to the state
courts. Cunningham v. Hudson, 756 F. 3d 477 (per cu-
riam). The Ohio courts ultimately confirmed that Cunning-
ham had no further state-law avenue for review. See State
v. Cunningham, 2016-Ohio-3106, ¶¶10–26, 65 N. E. 3d 307,
311–316 (App.). In 2019, the District Court (essentially re-
6 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
peating its analysis from nine years earlier) again dis-
missed Cunningham’s habeas claims as procedurally de-
faulted, meritless, or both.
Just over two years later, in the decision below, a divided
Sixth Circuit panel reversed and remanded, ordering the
District Court to “conduct an evidentiary hearing to inves-
tigate Cunningham’s two juror-bias claims.” 23 F. 4th 636,
678 (2022). First, the majority held that the Ohio postcon-
viction courts unreasonably applied Remmer v. United
States, 347 U. S. 227 (1954), by rejecting Cunningham’s
outside-information claim without conducting a hearing.
23 F. 4th, at 650. Drawing heavily on Circuit precedent,
the majority reasoned that any “colorable claim” of outside
influence entitles a defendant to a “Remmer hearing,” and
it held that Cunningham’s claim met that standard. Id., at
651 (citing Ewing v. Horton, 914 F. 3d 1027, 1030 (CA6
2019); Garcia v. Andrews, 488 F. 3d 370, 376 (CA6 2007);
United States v. Herndon, 156 F. 3d 629, 635 (CA6 1998)).
The panel majority also held that Cunningham was enti-
tled to a hearing on the family-relationship claim. Its anal-
ysis consisted of an elaborate comparison between Cun-
ningham’s claim and Williams v. Taylor, 529 U. S. 420
(2000) (Michael Williams), where we held that AEDPA did
not bar an evidentiary hearing because the petitioner had
been diligent in developing his claim’s factual basis. See 23
F. 4th, at 655–662. The majority concluded that “[t]his case
is Michael Williams, blow-for-blow,” and—on that basis—
ordered the District Court to conduct an evidentiary hear-
ing. Id., at 662. It was undeterred by the fact (which it did
not dispute) that Federal Rule of Evidence 606(b)2 barred
——————
2 Rule 606(b) provides:
“(1) Prohibited Testimony or Other Evidence. During an inquiry into
the validity of a verdict or indictment, a juror may not testify about any
statement made or incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment. The court may
Cite as: 598 U. S. ____ (2022) 7
THOMAS, J., dissenting
the jurors’ testimony about the foreperson’s jury-room com-
ments. The majority overcame that difficulty by simply im-
agining admissible evidence, such as “the testimony of a
victim’s family member,” that Cunningham could conceiva-
bly develop on remand. Id., at 661–662.3
Judge Kethledge dissented in part. Regarding Cunning-
ham’s outside-information claim, Judge Kethledge ex-
plained that AEPDA forbade the majority’s reliance on Cir-
cuit precedent and that Remmer would not compel all
fairminded jurists to agree that Cunningham was entitled
to an evidentiary hearing. 23 F. 4th, at 679–682. Regard-
ing the family-relationship claim, Judge Kethledge agreed
that Cunningham was diligent under Michael Williams but
concluded that this claim failed because its entire factual
basis was barred by Rule 606(b) and the time-honored pol-
icy against receiving juror testimony to undermine a ver-
dict. 23 F. 4th, at 682–685.
The State petitioned for a writ of certiorari, which the
Court now denies. I would instead grant the petition and
summarily reverse for the reasons that follow and those in
Judge Kethledge’s dissent below.
II
Although the procedural history of this case is compli-
cated, the Sixth Circuit’s errors were not. The panel major-
ity’s reasons for ordering an evidentiary hearing on either
——————
not receive a juror’s affidavit or evidence of a juror’s statement on these
matters.
“(2) Exceptions. A juror may testify about whether:
“(A) extraneous prejudicial information was improperly brought to the
jury’s attention;
“(B) an outside influence was improperly brought to bear on any juror;
or
“(C) a mistake was made in entering the verdict on the verdict form.”
3 The majority denied relief on Cunningham’s other claims, though it
lamented that “the harsh standards of AEDPA as elaborated by the [Su-
preme] Court” required it to do so. 23 F. 4th, at 671.
8 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
of Cunningham’s juror-bias claims are indefensible.4
A
Because the Ohio Court of Appeals rejected Cunning-
ham’s outside-information claim on the merits, the exacting
standard of 28 U. S. C. §2254(d), often called AEDPA defer-
ence, applied. That standard bars federal habeas relief for
any claim “adjudicated on the merits in State court proceed-
ings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme
Court of the United States; or
“(2) resulted in a decision that was based on an un-
reasonable determination of the facts in light of the ev-
idence presented in the State court proceeding.”
We have explained that “ ‘clearly established Federal law,’ ”
for purposes of §2254(d)(1), “refers to the holdings, as op-
posed to the dicta, of this Court’s decisions as of the time of
the relevant state-court decision.” Williams v. Taylor, 529
U. S. 362, 412 (2000). When assessing a state-court deci-
sion under §2254(d), federal habeas courts may not rely ei-
ther on lower court precedents, see, e.g., Parker v. Mat-
thews, 567 U. S. 37, 48–49 (2012) (per curiam), or on
decisions of this Court that postdate the relevant state-
court adjudication. See, e.g., Shoop v. Hill, 586 U. S. ___,
——————
4 For present purposes, and because no party argues otherwise, I accept
the characterization of Cunningham’s juror-bias allegations as present-
ing two distinct “claims,” only one of which is governed by §2254(d). I
note, however, the apparent tension between that characterization and
the District Court’s rationale for allowing the amendment that added
Cunningham’s second “claim” to relate back to the filing of his habeas
petition. See Cunningham v. Hudson, No. 3:06–cv–00167 (ND Ohio, July
21, 2009), ECF Doc. 120, p. 4 (construing the amendment as “con-
cern[ing] evidence of juror misconduct pled in the original Petition” and
as “tied to [the same] core of operative facts”).
Cite as: 598 U. S. ____ (2022) 9
THOMAS, J., dissenting
___–___ (2019) (per curiam) (slip op., at 5–7). Nor may a
federal habeas court extend the rationales of this Court’s
precedents. White v. Woodall, 572 U. S. 415, 426 (2014).
The bottom line: Where §2254(d) governs, habeas relief can
issue only if the relevant state-court decision—judged
solely by the four corners of this Court’s holdings—“was so
lacking in justification that there was an error well under-
stood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.” Harrington v. Richter,
562 U. S. 86, 103 (2011). “If this standard is difficult to
meet, that is because it was meant to be.” Id., at 102.
The Sixth Circuit flouted this standard when it held that
the Ohio postconviction courts unreasonably applied Rem-
mer in this case. In Remmer, during a trial for tax evasion,
an unknown person offered a juror a bribe to acquit the de-
fendant. 347 U. S., at 228. The juror reported the incident
to the court, the court reported the incident to the prosecu-
tors ex parte, and a Federal Bureau of Investigation agent
interviewed the juror—all while the trial was ongoing and
all without the defendant’s knowledge. Ibid. The defend-
ant first learned of these events after the verdict, and he
moved for a new trial. Ibid. The District Court denied the
motion without holding a hearing, and the Ninth Circuit af-
firmed. Id., at 229. In a 21/2-page opinion, this Court va-
cated and remanded for the District Court “to hold a hear-
ing to determine whether the incident complained of was
harmful to the petitioner, and if after hearing it is found to
have been harmful, to grant a new trial.” Id., at 230.
As Judge Kethledge observed, “a fairminded jurist could
easily conclude” that Remmer did not require a hearing on
Cunningham’s outside-information claim. 23 F. 4th, at 681.
Remmer ordered a hearing to weigh the impact of undis-
puted outside contacts with a juror. Here, by contrast, Cun-
ningham merely alleged that outside contact had occurred,
based on a speculative reading of an ambiguous postverdict
10 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
statement. And Remmer quite obviously did not clearly es-
tablish the Sixth Circuit’s rule that any “colorable claim of
extraneous influence” mandates “a Remmer hearing.” 23 F.
4th, at 651 (majority opinion). “ ‘[I]f a habeas court must
extend a rationale before it can apply to the facts at hand,’
then by definition the rationale was not ‘clearly established
at the time of the state-court decision.’ ” Woodall, 572 U. S.,
at 426 (quoting Yarborough v. Alvarado, 541 U. S. 652, 666
(2004)).
But the Sixth Circuit’s error went even deeper. Not only
did Remmer not clearly establish the Sixth Circuit’s “any
colorable claim” rule, it is not even clear that Remmer es-
tablished any constitutional rule. Words like “constitu-
tional” and “due process” are nowhere to be found in the
Court’s laconic opinion. One could just as naturally—per-
haps more naturally—read Remmer as a case about new-
trial motion practice under the Federal Rules of Criminal
Procedure than as one about the requirements of constitu-
tional due process. A rigorous §2254(d)(1) analysis, there-
fore, likely would take no account of Remmer at all.5
Here, the Sixth Circuit not only relied on Remmer, it
stretched it far beyond its four corners and used Circuit
——————
5 In its Remmer analysis, the Sixth Circuit cited three other decisions
of this Court, none of which provides clearly established federal law sup-
porting the decision below. Contrary to the panel majority’s apparent
understanding, Smith v. Phillips, 455 U. S. 209 (1982), did not hold that
Remmer was binding on state courts as a matter of constitutional due
process; rather, it held only that a state court did not violate due process
by responding to an allegation of juror impartiality with a hearing that
would have satisfied Remmer had it occurred in the federal system. 455
U. S., at 218. Dicta in United States v. Olano, 507 U. S. 725 (1993), ar-
guably characterize Remmer as a constitutional decision, see 507 U. S.,
at 738–739, but even that is doubtful and, regardless, dicta are not
“clearly established Federal law” under §2254(d)(1). See Williams v.
Taylor, 529 U. S. 362, 412 (2000). The actual holdings of Olano have
nothing to do with the Constitution, and the third case, Rushen v. Spain,
464 U. S. 114 (1983) (per curiam), also explicitly decided no constitu-
tional question. Id., at 117, n. 2.
Cite as: 598 U. S. ____ (2022) 11
THOMAS, J., dissenting
precedent to patch the seams. Such “plain and repetitive
error” deserves summary reversal. Parker, 567 U. S., at
49.6
B
The Sixth Circuit’s grant of an evidentiary hearing on
Cunningham’s family-relationship claim also merits sum-
mary reversal. To start, the panel majority’s reasoning
simply does not support the relief it ordered. Section
2254(e)(2) bars a federal evidentiary hearing in most cases
where the petitioner “has failed to develop the factual basis
of a claim in State court proceedings.” But even “where an
applicant . . . is not barred from obtaining an evidentiary
hearing by . . . §2254(e)(2), the decision to grant such a
hearing rests in the discretion of the district court.” Schriro
v. Landrigan, 550 U. S. 465, 468 (2007); see also Rule 6(a),
Rules Governing Section 2254 Cases. Here, the Sixth Cir-
cuit held (and the State does not now contest) that Cun-
ningham was diligent in developing his family-relationship
claim under Michael Williams. That case, however, ad-
dressed whether “§2254(e)(2) barred the petitioner’s re-
quest for a federal evidentiary hearing.” Cullen v. Pinhol-
ster, 563 U. S. 170, 183 (2011) (emphasis added); see
Michael Williams, 529 U. S., at 424. Thus, the most the
Sixth Circuit’s holding justified—as a matter of law—was a
remand for the District Court to determine, in its discre-
tion, whether to grant an evidentiary hearing. But the
——————
6 Fortunately, the Court’s failure to correct this error does not leave the
Sixth Circuit bound to follow it. In an earlier §2254(d)(1) case involving
a Remmer claim, the Sixth Circuit acknowledged that “how [it] would
apply [its] own Sixth Circuit precedents [did] not guide the analysis,” and
it denied relief because it found “no Supreme Court precedent that re-
quire[d] a Remmer hearing on the facts before [it].” Garcia v. Andrews,
488 F. 3d 370, 377 (2007). Thus, future Sixth Circuit panels are free to
disregard the Remmer analysis below as nonbinding. See Lakeside Sur-
faces, Inc. v. Cambria Co., 16 F. 4th 209, 218 (2021) (“In situations where
two of our published decisions are in tension, we follow the earlier one”).
12 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
Sixth Circuit usurped that discretion, mandating a hearing
simply because §2254(e)(2) did not forbid one.
Worse and more importantly, any evidentiary hearing on
Cunningham’s family-relationship claim would be an abuse
of discretion no matter what court ordered it. The entire
factual basis for this claim consists of the foreperson’s state-
ments in the jury room as recalled in two other jurors’
years-later testimony. See ECF Doc. 200, at 12–14. As
Judge Kethledge explained, those comments are unques-
tionably barred from judicial consideration “by the
longstanding ‘rule against admission of jury testimony to
impeach a verdict,’ ” a rule embodied in part by Federal
Rule of Evidence 606(b). 23 F. 4th, at 682 (quoting Tanner
v. United States, 483 U. S. 107, 121 (1987)). And, once those
comments are disregarded, Cunningham’s claim amounts
to no more than a bare, unspecified, and unsubstantiated
allegation that the foreperson had some sort of relationship
with some victims or their families and that it prejudiced
him in some way. Such “[t]hreadbare recitals” are not
enough to “unlock the doors of discovery” in ordinary civil
litigation. Ashcroft v. Iqbal, 556 U. S. 662, 678–679 (2009).
They are certainly not enough under the more rigorous
standards governing federal habeas cases. See Mayle v. Fe-
lix, 545 U. S. 644, 649 (2005); Bracy v. Gramley, 520 U. S.
899, 904 (1997).
The Sixth Circuit nonetheless awarded Cunningham a
hearing on the mere possibility that it might turn up some
kind of admissible evidence supporting some sort of cog-
nizable claim. See 23 F. 4th, at 661–662. On that basis
alone, the Sixth Circuit decreed that the jury foreperson
and even the family members of the victims must submit to
cross-examination about their memories of painful,
decades-old events. See ibid. Their every word will be
picked apart in the hunt for further excuses to drag out this
16-year-old federal habeas action. The Sixth Circuit’s deci-
Cite as: 598 U. S. ____ (2022) 13
THOMAS, J., dissenting
sion is more than an error—it is an injustice. It shows pro-
found disrespect, not merely to the State, but to citizens
who perform the difficult duty of serving on capital juries,
to the surviving victims of Cunningham’s atrocious crimes,
to the memories of the two young girls whose lives he
snuffed out, and to their families who still, two decades
later, have no assurance that justice will ever be done.
III
By denying certiorari, the Court once again permits the
nullification of its jurisprudence. Just a few months ago, I
dissented from the Court’s refusal to correct a flagrant mis-
application of AEDPA by the Sixth Circuit. See Shoop v.
Cassano, 596 U. S. ___ (2022) (opinion dissenting from de-
nial of certiorari). Today, the Court denies review of a case
just as flagrant, if not more so. We should not shirk our
responsibility to correct classic AEDPA abuses, especially
when a lower court brazenly commits errors for which we
have repeatedly reversed it. See Cassano v. Shoop, 10
F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from
denial of rehearing en banc) (collecting 22 cases in which
this Court reversed the Sixth Circuit “for not applying the
deference to state-court decisions mandated by AEDPA,”
including 12 summary reversals).
That said, while I disagree with the Court’s newfound tol-
erance for recidivism, primary responsibility for the Sixth
Circuit’s errors rests with the Sixth Circuit. That court’s
record of “plain and repetitive” AEDPA error, Parker, 567
U. S., at 49, is an insult to Congress and a disservice to the
people of Michigan, Ohio, Kentucky, and Tennessee. Fed-
eral habeas review imposes “profound societal costs,” “frus-
trat[ing] both the States’ sovereign power to punish offend-
ers and their good-faith attempts to honor constitutional
rights.” Calderon v. Thompson, 523 U. S. 538, 554, 555–
556 (1998) (internal quotation marks omitted). It also “dis-
turbs the State’s significant interest in repose for concluded
14 SHOOP v. CUNNINGHAM
THOMAS, J., dissenting
litigation, denies society the right to punish some admitted
offenders, and intrudes on state sovereignty to a degree
matched by few exercises of federal judicial authority.”
Richter, 562 U. S., at 103 (internal quotation marks omit-
ted). These problems are serious enough even when courts
carefully observe the limits that Congress and this Court
have laid down. When a lower court wields its habeas ju-
risdiction in overt defiance of those limits, the affront to fed-
eralism and the rule of law becomes intolerable.
The Sixth Circuit must do better, with or without this
Court’s help. Unfortunately, the Sixth Circuit’s habeas ju-
risprudence suggests that certain circuit judges’ “taste for
disregarding AEDPA,” Rapelje v. Blackston, 577 U. S. 1019,
1021 (2015) (Scalia, J., dissenting from denial of certiorari),
has found its natural complement in other judges’ distaste
for correcting errors en banc, no matter how blatant, repet-
itive, or corrosive of circuit law. See, e.g., Issa v. Bradshaw,
910 F. 3d 872 (CA6 2018) (denying rehearing en banc);
Mitts v. Bagley, 626 F. 3d 366 (CA6 2010) (same). Of course,
reluctance in deploying en banc review is understandable.
But only to a point. The Sixth Circuit’s habeas problems
are well past that point—as evidenced by the depressing
regularity with which petitions like this one reach us.
The Court should have delivered that message by sum-
marily reversing the judgment below. Accordingly, I re-
spectfully dissent from denial of certiorari. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483533/ | Case: 23-100 Document: 12 Page: 1 Filed: 11/14/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: APPLE INC.,
Petitioner
______________________
2023-100
______________________
On Petition for Writ of Mandamus to the United
States District Court for the Western District of Texas in
No. 6:21-cv-00984-ADA, Judge Alan D. Albright.
______________________
ON PETITION AND MOTION
______________________
ORDER
Upon consideration of Apple Inc.’s unopposed motion
to dismiss its petition for a writ of mandamus,
IT IS ORDERED THAT:
The motion is granted to the extent that the petition
is deemed withdrawn.
FOR THE COURT
November 14, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483556/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-3179
___________________________
State of Nebraska; State of Missouri; State of Arkansas;
State of Iowa; State of Kansas; State of South Carolina
Plaintiffs - Appellants
v.
Joseph R. Biden, Jr., in his official capacity as the President of the United States of
America; Miguel Cardona, in his official capacity as Secretary, United States
Department of Education; United States Department of Education
Defendants - Appellees
------------------------------
Hamilton Lincoln Law Institute; Americans for Prosperity Foundation; New Civil
Liberties Alliance
Amici on Behalf of Appellants
____________
Appeal from United States District Court
for the Eastern District of Missouri
____________
Submitted: October 24, 2022
Filed: November 14, 2022
[Published]
____________
Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Whatever the eventual outcome of this case, it will affect the finances of
millions of Americans with student loan debt as well as those Americans who pay
taxes to finance the government and indeed everyone who is affected by such far-
reaching fiscal decisions. As such, we approach the motion before us with great
care.
This case centers on the plaintiff States’ request to preliminarily enjoin the
United States Secretary of Education (“Secretary”) from implementing a plan to
discharge student loan debt under the Higher Education Relief Opportunities for
Students Act of 2003, Pub. L. No. 108-76, 117 Stat. 904 (codified at 20 U.S.C.
§§ 1098aa–1098ee) (“HEROES Act”). See Federal Student Aid Programs (Federal
Perkins Loan Program, Federal Family Education Loan Program, and William D.
Ford Federal Direct Loan Program), 87 Fed. Reg. 61,512, 61,514 (Oct. 12, 2022) (to
be codified at 34 C.F.R. pts. 674, 682, 685). The States contend the student loan
debt relief plan contravenes the separation of powers and violates the Administrative
Procedure Act because it exceeds the Secretary’s authority and is arbitrary and
capricious.
The district court denied the States’ motion for a preliminary injunction and
dismissed the case for lack of jurisdiction after determining none of the States had
standing to bring the lawsuit. Key to the district court’s rationale was its conclusion
that the State of Missouri could not rely on any harm the Missouri Higher Education
Loan Authority (“MOHELA”) might suffer on account of the Secretary’s
cancellation of debt. The States appealed and moved for a preliminary injunction
pending appeal. We grant the motion for the following reasons.
“In ruling on a request for an injunction pending appeal, the court must engage
in the same inquiry as when it reviews the grant or denial of a preliminary
injunction.” Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982). This inquiry
includes “balancing the equities between the parties.” Id. We ask “whether the
-2-
balance of equities so favors the movant that justice requires the court to intervene
to preserve the status quo until the merits are determined.” Glenwood Bridge, Inc.
v. City of Minneapolis, 940 F.2d 367, 370 (8th Cir. 1991) (quoting Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc)). In circumstances
“where the movant has raised a substantial question and the equities are otherwise
strongly in his favor, the showing of success on the merits can be less.” Dataphase,
640 F.3d at 113; see also Fennell v. Butler, 570 F.2d 263, 264 (8th Cir. 1978) (“If
the balance tips decidedly towards the plaintiffs and the plaintiffs have raised
questions serious enough to require litigation, ordinarily the injunction should
issue.”).
The district court’s analysis began and ended with standing. Standing is a
threshold issue since it is essential to our jurisdiction. United States v. One Lincoln
Navigator 1998, 328 F.3d 1011, 1013 (8th Cir. 2003). We begin by examining the
standing of the State of Missouri and, like the district court, focus on MOHELA.
MOHELA’s unique mix of legal attributes and authority have led to differing
opinions as to whether it is an “arm of the state” of Missouri for purposes of being
entitled to sovereign immunity. The core issue before this court, however, is whether
the alleged harm from the Secretary’s debt discharge plan, considering the role of
MOHELA, is sufficient to meet the requirements for Article III standing for
Missouri.
The relationship between MOHELA and the State of Missouri is relevant to
the standing analysis. MOHELA was created by the General Assembly of Missouri.
See Mo. Rev. Stat. § 173.360. It is governed by a seven-member board composed
of five members appointed by the Governor of Missouri, as well as the Missouri
State Commissioner of Higher Education and a member of the Missouri State
Coordinating Board of Higher Education. Id. After its creation, the Missouri
General Assembly expanded MOHELA’s purpose to include “support[ing] the
efforts of public colleges and universities to create and fund capital projects.”
Id. Relatedly, the General Assembly established the Lewis and Clark Discovery
Fund (“LCD Fund”) from which the General Assembly may annually appropriate
-3-
moneys for certain purposes, including “funding of capital projects at public colleges
and universities.” Id. § 173.392. Most significantly, Missouri law, id. § 173.385.2,
specifically directs MOHELA to distribute $350 million “into a fund in the State
Treasury” for this program. MOHELA FY 2022 Financial Statements, at 20,
available at https://tinyurl.com/4chp295x. MOHELA has met part of its obligation
to the State treasury, but the “remaining unfunded amount . . . was $105.1 million as
of June 30, 2022.” Id.
Given this statutory framework, MOHELA may well be an arm of the State
of Missouri under the reasoning of our precedent. See Pub. Sch. Ret. Sys. of Mo. v.
St. Bank & Trust Co., 640 F.3d 821, 826–27, 833 (8th Cir. 2011) (applying the test
to determine whether sovereign immunity applies and holding Missouri public
school employment retirement systems were arms of the state). In fact, a number of
district courts have concluded that MOHELA is an arm of the state. See, e.g., Good
v. U.S. Dep’t of Educ., No. 21-CV-2539-JAR-ADM, 2022 WL 2191758, at *4 (D.
Kan. June 16, 2022); Gowens v. Capella Univ., Inc., No. 4:19-CV-362-CLM, 2020
WL 10180669, at *4 (N.D. Ala. June 1, 2020); see also In re Stout, 231 B.R. 313,
316–17 (Bankr. W.D. Mo. 1999). But see Dykes v. Mo. Higher Educ. Loan Auth.,
No. 4:21-CV-00083-RWS, 2021 WL 3206691, at *4 (E.D. Mo. July 29, 2021);
Perkins v. Equifax Info. Servs., LLC, No. SA-19-CA-1281-FB (HJB), 2020 WL
13120600, at *5 (W.D. Tex. May 1, 2020).
But even if MOHELA is not an arm of the State of Missouri, the financial
impact on MOHELA due to the Secretary’s debt discharge threatens to
independently impact Missouri through the LCD Fund. It is alleged MOHELA
obtains revenue from the accounts it services, and the total revenue MOHELA
recovers will decrease if a substantial portion of its accounts are no longer active
under the Secretary’s plan. This unanticipated financial downturn will prevent or
delay Missouri from funding higher education at its public colleges and universities.
After all, MOHELA contributes to the LCD Fund but has not yet met its statutory
obligation.
-4-
Due to MOHELA’s financial obligations to the State treasury, the challenged
student loan debt cancellation presents a threatened financial harm to the State of
Missouri. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019); Czyzewski
v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017). Consequently, we conclude
Missouri has shown a likely injury in fact that is concrete and particularized, and
which is actual or imminent, traceable to the challenged action of the Secretary, and
redressable by a favorable decision. Missouri, therefore, likely has legal standing to
bring its claim. And since at least one party likely has standing, we need not address
the standing of the other States. See Nat’l Wildlife Fed’n v. Agric. Stabilization &
Conservation Serv., 955 F.2d 1199, 1203 (8th Cir. 1992). Likewise, we need not
decide whether the Secretary’s standing argument as to harm alleged to Arkansas
and Nebraska is actually better viewed as a mootness argument. See West Virginia
v. EPA, 142 S. Ct. 2587, 2607 (2022) (discussing the importance of the distinction
and the heavy burden of establishing mootness once a live case has allegedly become
moot due to voluntary cessation of conduct).
Having addressed the threshold standing issue, we turn to the balancing of the
equities and the probability of success on the merits. Not only do the “merits of the
appeal before this court involve substantial questions of law which remain to be
resolved,” Walker, 678 F.2d at 71, but the equities strongly favor an injunction
considering the irreversible impact the Secretary’s debt forgiveness action would
have as compared to the lack of harm an injunction would presently impose. Among
the considerations is the fact that collection of student loan payments as well as
accrual of interest on student loans have both been suspended. We conclude “the
equities of this case require the court to intervene to preserve the status quo pending
the outcome” of the States’ appeal, id., and that the States have satisfied the standard
for injunctive relief pending review, see D.M. by Bao Xiong v. Minn. State High Sch.
League, 917 F.3d 994, 999−1001 (8th Cir. 2019) (discussing the standard for
preliminary injunctive relief).
Finally, we have carefully considered the Secretary’s request that we limit the
scope of any temporary relief. “Crafting a preliminary injunction is an exercise of
-5-
discretion and judgment, often dependent as much on the equities of a given case as
the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance
Project, 137 S. Ct. 2080, 2087 (2017) (per curiam). As the Supreme Court has
explained, “one of the ‘principles of equity jurisprudence’ is that ‘the scope of
injunctive relief is dictated by the extent of the violation established, not by the
geographical extent of the plaintiff class.’” Rodgers v. Bryant, 942 F.3d 451, 458
(8th Cir. 2019) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Part of
our consideration is whether the injunctive relief is “no more burdensome to the
defendant than necessary to provide complete relief to the plaintiffs,” Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994), and “workable,” North
Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) (per curiam).
We conclude that, at this stage of the litigation, an injunction limited to the
plaintiff States, or even more broadly to student loans affecting the States, would be
impractical and would fail to provide complete relief to the plaintiffs. MOHELA is
purportedly one of the largest nonprofit student loan secondary markets in America.
It services accounts nationwide and had $168.1 billion in student loan assets serviced
as of June 30, 2022. See Rodgers, 942 F.3d at 458. Given MOHELA’s national role
in servicing accounts, we discern no workable path in this emergency posture for
narrowing the scope of relief. And beyond Missouri, tailoring an injunction to
address the alleged harms to the remaining States would entail delving into complex
issues and contested facts that would make any limits uncertain in their application
and effectiveness. Although such complexities may not counsel against limiting the
scope of an injunction in other contexts, here the Secretary’s universal suspension
of both loan payments and interest on student loans weighs against delving into such
uncertainty at this stage.
We GRANT the Emergency Motion for Injunction Pending Appeal. The
injunction will remain in effect until further order of this court or the Supreme Court
of the United States.
______________________________
-6- | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483539/ | J-A21004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOORFAR DENTAL GROUP - : IN THE SUPERIOR COURT OF
RICHBORO, LLC, MERSAD HOORFAR : PENNSYLVANIA
DMD :
:
:
v. :
:
:
ALEXANDRA GATSCH, TERRY : No. 2574 EDA 2021
RAKAWSKY, DMD, RG DENTAL :
GROUP OF RICHBORO, LLC :
:
Appellants :
Appeal from the Judgment Entered November 10, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2019-00657
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 14, 2022
Alexandra Gatsch, Terry Rakawsky, DMD, and RG Dental Group of
Richboro, LLC (collectively, Defendants/Buyers) appeal from the judgment
entered on a jury verdict in favor of Appellees’, Hoorfar Dental Group-
Richboro, LLC, and Mersad Hoorfar, DMD (collectively, Plaintiffs/Sellers), in
this breach of contract action. After careful, we affirm on the basis of the
trial court opinion.
On June 14, 2018, Defendants entered into a written Asset Purchase
Agreement (APA) to buy Plaintiffs’ dental practice (Practice), located in
Richboro, Bucks County, for a purchase price of $850,000.00. The APA
contained an integration clause memorializing that the “[APA] and the
existing exhibits hereto contain the entire agreement between the parties
J-A21004-22
. . . [and that the APA] may not be modified, amended, altered, supplemented,
or canceled[,] except pursuant to the terms of an instrument in writing signed
by the parties hereto.” APA Integration Clause, 6/14/18, at § 17.7 (emphasis
added); see also N.T. Jury Trial, 7/13/21, at 28 (Defendants’ attorney
agreeing contract was “[f]ully integrated”). Defendants also bought the
Practice’s accounts receivables (Accounts Receivables), as of July 30, 2018,
for an additional $78,080.001 (70% of the value of accounts less than 90 days
old). The parties executed an amendment to the APA and a Promissory Note
(Note) that documented the valuation of the Accounts Receivables. The
amendment to the APA and the Note delineated that Defendants were to pay
the $78,080.00 in twelve consecutive monthly installments of $6,506.66,
without interest, beginning on August 31, 2018. In addition, pursuant to a
Professional Services Agreement (PSA), Defendant, Mersad Hoorfar, DMD,
agreed to work as an independent contractor for Plaintiff RG Dental Group for
a minimum of three months following the sale of the Practice.
Defendants paid the purchase price, took over the Practice, including all
dental tools, equipment, and supplies,2 collected the Practice’s Accounts
____________________________________________
1 The $78,080.00 did not include interest as long as Defendants did not
default. In the event of a non-cured default, interest accrued on the Note at
the rate of 10% per annum.
2 The APA included the following provision regarding supplies:
SUPPLIES: Supplies will continue to be purchased by the Seller
and delivered to the Practice until the date of Closing at no cost
(Footnote Continued Next Page)
-2-
J-A21004-22
Receivables (that were billed prior to closing but not yet paid), and began
operating RG Dental with Dr. Hoorfar3 continuing to work for the agreed-upon
three-month-period post-sale. Section 9 of the APA designated that the dental
equipment was sold in “As-Is” condition. When Buyers found fault with the
condition of the equipment and alleged that there was a shortage in stocking
of supplies on hand prior to the time of the transfer of the Practice, Buyers
ceased paying the monthly $6,505.66 installment as per the APA and
Promissory Note and also deducted money owed under the PSA to make
alleged “repairs” to dental equipment. N.T. Jury Trial, 7/13/21, at 145. In
addition, Buyers failed to pay Dr. Hoorfar in full for his post-sale work and
services that totaled approximately $10,360.50.
On January 31, 2019, Plaintiffs filed a complaint against Defendants
alleging breach of contract-promissory note (Count I), breach of contract-
professional service agreement (Count II), and invasion of privacy-
appropriation of Plaintiff’s Identity (Count III). Complaint, 1/31/19, at 3-5.
Plaintiffs sought to enjoin Defendants from continuing to appropriate Plaintiff’s
identity or engage in any unfair or deceptive practices or fraudulent behavior,
compensatory damages, the rendering of an accounting of billing and
____________________________________________
to the [Buyer], such that the Seller shall maintain its normal
supply inventory as maintained during the course of Seller’s
general operations.
APA, 6/14/18, at ¶ 4.
3 RG Dental also hired Danielle Teitelman, DMD, who had worked for the
Practice prior to its sale.
-3-
J-A21004-22
collection of Plaintiffs’ professional services rendered, injunctive and equitable
relief, as deemed proper by the court, reasonable attorneys’ fees and costs,
and pre- and post-judgment interest. Id. at 5-6.
On March 5, 2019, Defendants filed an answer with new matter and
counterclaims for misrepresentation and breach of contract. Plaintiffs filed
preliminary objections to Defendants’ new matter and counterclaims, seeking
dismissal of Defendants’ pleading for lack of specificity and in the nature of a
demurrer. See Pa.R.C.P. 1028(a)(3), (4). In their preliminary objections,
Plaintiffs claimed that Defendants: (1) defaulted on the Note on November
30, 2019; (2) continue to be in default in the amount of $58,506.02, plus
interest, attorneys’ fees, and costs; and (3) only made partial payments under
the PSA causing Defendants to suffer damages in excess of $10,000.00.
On May 13, 2019, the trial court granted Plaintiffs’ preliminary
objections, in part, and dismissed Defendants’ counterclaim for
misrepresentation. On June 7, 2021, Plaintiffs filed a motion in limine to
preclude the admission of parol evidence to supplement the parties’ written
agreements. On July 13, 2021, the trial court held oral argument on Plaintiffs’
motion in limine at which Plaintiffs argued that the language in the APA was
not ambiguous and Defendants argued the APA’s language “aggregate
amount” with regard to the Accounts Receivable was susceptible of different,
-4-
J-A21004-22
but reasonable, interpretations.4 N.T. Jury Trial, 7/13/21, at 23, 32-33. The
court ultimately granted Plaintiffs’ motion, concluding that the APA was not
ambiguous and that the term “aggregate amount” means “total” amount.
A three-day jury trial was held before the Honorable Denise M. Bowman.
Prior to the start of trial, Plaintiffs withdrew their invasion of privacy claim.
N.T. Jury Trial, 7/13/21, at 5. At the conclusion of trial, Plaintiffs made a
motion to dismiss with regard to Accounts Receivable and any claim based on
actual damages regarding two pieces of dental equipment. N.T. Trial,
7/15/21, at 89-91. The court denied the motion to dismiss with regard to the
____________________________________________
4Exhibit B, attached to the APA, included the following provision regarding
Accounts Receivable, in relevant part:
ACCOUNTS RECEIVABLE. As of the Closing Date, Seller will
provide Purchaser with a written [A]ccounts [R]eceivable aging
report, in such detail as Purchaser may reasonably request,
relating to any services provided by Seller to any patient prior to
the Closing Date[.] Purchaser shall purchase the Practice
Accounts Receivable for a price equal to the aggregate
amount of such receivables that are no more than ninety
(90) days old multiplied by Seventy Cents ($.70). (By way
of example: if, as of the Closing Date, the aggregate amount of
the Practice Accounts Receivable no more than ninety (90) days
old is equal to One Hundred Thousand Dollars ($100,000.00),
then Purchaser shall purchase such receivables for the price of
$70,000 ($100,000 x $.70 = $70,000)).
APA, Exhibit B, 6/14/18, at 1. Plaintiffs’ counsel interpreted the term
“aggregate amount” to mean the total amount “regardless of what insurance
will actually pay,” N.T. Jury Trial, 7/13/21, at 33, while Defendants’ counsel
interpreted the term to mean that amount that is collectible (i.e., what
insurance pays).
-5-
J-A21004-22
equipment and granted the motion5 with regard to Defendants’ counterclaim
for breach of contract relating to Accounts Receivable. The jury rendered a
verdict in favor of Plaintiffs for $69,166.00—$58,806.00 (breach of Note) and
$10,360.00 (material breach of PSA). See N.T. Jury Trial, 7/15/21, at 218-
20.
On July 26, 2021, Defendants filed a post-trial motion seeking a new
trial, which the trial court denied on November 5, 2021. On October 21, 2021,
Plaintiffs filed a petition for interest, costs, and attorneys’ fees. On November
9, 2021, the court granted Plaintiffs’ petition awarding Plaintiffs $19,127.94
in pre-judgment interest ($17,302.14 for breach of Note and $1,825.80 for
breach of PSA), and $7,655.00 in attorneys’ fees and costs. On November
10, 2021, Plaintiffs filed a praecipe to enter judgment on the jury verdict; the
verdict was reduced to judgment.6
Defendants filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Defendants
raise the following issues for our consideration:
(1) Whether the trial court erred as a matter of law in sustaining
the Buyers’ preliminary objections in the nature of a
demurrer to Count I of the Buyers’ counterclaim for
misrepresentation by way of its interlocutory order entered
May 14, 2019.
____________________________________________
5 The court deemed this a “motion for directed verdict.” N.T. Jury Trial,
7/15/21, at 94.
6 The entire judgment totaled $95,948.94, representing the jury verdict, pre-
judgment interest, and attorneys’ fees and costs.
-6-
J-A21004-22
(2) Whether, especially in light of its order entered May 14,
2019, the trial court erred as a matter of law in granting the
Sellers’ motion in limine filed June 7, 2021[,] based upon
the parol evidence rule.[7]
(3) Whether, setting aside its granting of the Buyer’s motion in
limine, the trial court abused its discretion and/or clearly
erred as a matter of law in ruling that the accounts
receivable report delivered to the Buyer at the closing on
July 31, 2019[,] was not part of the parties’ contract and in
precluding the Buyer from introducing evidence and
testimony on the question of whether the Seller breached
the A[PA] in this regard.
(4) Whether the trial court should have entered judgment as a
matter of law for the Buyer on the Sellers’ claims for breach
of the professional services agreement and for $19,775.91
for the Buyer on its counterclaim against the Seller for
breach of the A[PA] with regard to the payment of Dr.
Teitelman’s bonus for services rendered prior to July 31,
2018.
(5) Whether, alternatively, the trial court should have granted
the Buyers’ request for a mistrial as to all issues when the
____________________________________________
7
It is well established that under the law of contracts, in
interpreting an agreement, the court must ascertain the intent of
the parties. In cases of a written contract, the intent of the parties
is the writing itself. If left undefined, the words of a contract are
to be given their ordinary meaning. When the terms of a contract
are clear and unambiguous, the intent of the parties is to be
ascertained from the document itself. When, however, an
ambiguity exists, parol evidence is admissible to explain or clarify
or resolve the ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument, or latent,
created by extrinsic or collateral circumstances. A contract is
ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense. While
unambiguous contracts are interpreted by the court as a matter
of law, ambiguous writings are interpreted by the finder of fact.
Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citations omitted).
-7-
J-A21004-22
Sellers’ counsel [] stood up in open court before the jury,
accused the undersigned of professional misconduct and
demanded a mistrial.
Defendants’ Brief, at 3.
After reviewing the parties’ briefs on appeal, the certified record, and
relevant case law, we rely upon Judge Bowman’s well-crafted opinion to affirm
the trial court’s judgment entered on the verdict in favor of Plaintiffs. See
Trial Court Opinion, 3/9/22, at 16-21 (court properly dismissed Defendants’
counterclaim for misrepresentation under “gist of action” doctrine where
contract claim cannot be recast as tort claim as Defendants failed to support
counterclaim with anything other than parties’ written agreements); id. at 21-
25 (court properly granted Plaintiff’s motion in limine based upon parol
evidence rule where Defendants admitted APA contained integration clause
regarding sale/purchase of Accounts Receivable, evidence did not
demonstrate ambiguity in APA, Defendants’ attorney admitted Defendants
were not alleging mistake or misrepresentation, and Defendants never
claimed APA ambiguous throughout discovery or sought additional information
on what “aggregate amount” meant); id. at 25-30 (court properly concluded
Accounts Receivable report not part of parties’ contract and precluded
Defendants from introducing evidence and testimony on whether Plaintiffs
breached APA where emails Defendants sought to introduce violated court’s
prior ruling on motion in limine determining term “aggregate amount” was not
ambiguous with regard to amount of “collectible” Accounts Receivable); id. at
59-62 (court properly ruled against Defendants on breach of contract claim
-8-
J-A21004-22
where there was “evidentiary discrepancy” regarding whether Dr. Hoorfar paid
Dr. Teitelman bonus for work performed prior to July 31, 2018; it was within
province of jury to credit Dr. Hoorfar’s testimony over that of Ms. Gatsch); id.
at 40-42 (court properly denied Defendants’ request for mistrial regarding
Plaintiffs’ counsel’s remarks where court immediately dismissed jury after
remarks made, Defendants’ counsel did not claim his clients were prejudiced
by the comments, and counsel’s remarks were ameliorated by court’s carefully
crafted curative jury instruction8).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
____________________________________________
8 See N.T. Jury Trial, 7/15/21, at 143-45.
-9-
Circulated 10/31/2022 02:15 PM
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OPINION
wa I. INTRODUCTION:
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Appellants, Alexandra Gatsch ("Ms. Gatsch"), Terry Rakawsky, DMD ("Dr. Rakawsky"),
and RG Dental Group of Richboro, LLC ("RG Dental") (collectively, "Appellants"), have
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PP this Court's Order entered November
• 5 2021, denying
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Trial Motion for Post-
Relief ("Motion for Post-Trial Relief'), and this Court's Order entered November 9, 2021, granting
aa Appellees' Petition for Interest, Costs and Fees ("Petition for Interest, Costs and Fees"). This
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set forth below, the undersigned respectfully submits that this appeal be DISMISSED.
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m II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND:
oQ This case arises from the purchase and sale of adental practice. On or about June 14, 2018,
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("Dr. Hoorfar") (collectively, "Appellees"), entered into awritten Asset Purchase Agreement with
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v Dr. Rakawsky and Ms. Gatsch for the sale of certain assets belonging to Hoorfar Dental to an
entity to be formed by Dr. Rakawsky and Ms. Gatsch ("APA"). 1 The parties to the APA agreed
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13 w THIS ORDER/JUDGMENT WAS DOCKETED AND SENT ON 03/10/2022 PURSUANT TO PA. R. C. P. 236.
APA at ¶ 11. With respect to the purchase price for the assets, the parties to the APA agreed as
follows.
Seller hereby sells and Purchaser hereby purchases the Assets of the Practice of the
Seller for a total consideration of Eight Hundred Fifty Thousand Dollars
($850,000.00) (referred to herein as the "Purchase Price") plus the value of the
Practice Accounts Receivable as set forth on the attached Exhibit B. Purchaser
shall assume none of the liabilities of the Practice, except as may be specifically
stated herein.
Id. at ¶ 2. 2 Exhibit B attached to the APA provides:
ACCOUNTS RECEIVABLE. As of the Closing Date, Seller will provide
Purchaser with a written accounts receivable aging report, in such detail as
Purchaser may reasonably request, relating to any services provided by Seller to
any patient prior to the Closing Date (the "Practice Accounts Receivable").
Purchaser shall purchase the Practice Accounts Receivable for aprice equal to the
aggregate amount of such receivables that are no more than ninety (90) days old
multiplied by Seventy Cents ($. 70). (By way of example: if, as of the Closing Date,
the aggregate amount of the Practice Accounts Receivable no more than ninety (90)
days old is equal to One Hundred Thousand Dollars ($ 100,000.00), then Purchaser
shall purchase such receivables for the price of $70,000 ($ 100,000 x $. 70 =
$70,000)). Seller shall grant to Purchaser alimited power of attorney to endorse
checks, in payment of such Practice Accounts Receivable, made out to Seller and
received by Purchaser after Closing. Seller covenants not to order forwarding of
Seller's office mail for aperiod of six (6) months after Closing, Purchaser agreeing
to be fully responsible to ensure that Seller's mail shall be forwarded to Seller at
the address of Seller's choosing. After Closing, Seller shall promptly remit to
Purchaser payment of any Practice Accounts Receivable received by Seller.
APA, Exhibit B.
Additionally, and with respect to any employees of Hoorfar Dental who became employees
of RG Dental, the parties agreed that Hoorfar Dental would be responsible to pay all employee
expenses, including wages or salaries, that accrued prior to the Closing Date. See id. at ¶ 16.1.
2 Subjectto certain warranties in the APA, the parties agreed that the "Assets of the Practice"
would be sold in an " as-is" condition. See id. at ¶ 9.
2
From and after, the Closing Date, RG Dental would be responsible for all such employee expenses.
See id. at ¶ 16.2.
On the Closing Date, and pursuant to Exhibit B attached to the APA, Dr. Hoorfar provided
Appellants awritten accounts receivable aging report identifying the aggregate amount of accounts
receivable no more than ninety (90) days. That figured totaled $ 111,543.00. N.T. 7/13/21, at 100-
01; N.T. 7/14/21, at 159. Although explicitly permitted to do so, Appellants did not request any
further detail. See APA, Exhibit B; see also N.T. 7/13/21, at 24-27, 38.
Also at closing, Hoorfar Dental, Dr. Rakawsky and Ms. Gatsch executed an Amendment
to Asset Purchase Agreement ("Amendment to APA") amending section 3(iv) of the APA in its
entirety to read as follows: "In addition to the Purchase Price, the value of the Practice Accounts
Receivable shall be paid by Purchaser to Seller in twelve equal monthly payments without interest
pursuant to the terms of aPromissory Note in the form attached hereto as Exhibit F." Amendment
to APA at 1. On that same date, RG Dental, through its members, Dr. Rakawsky and Ms. Gatsch,
executed aPromissory Note ("Promissory Note") which provided that RG Dental would pay
Hoorfar Dental the total sum of $78,080.00 in twelve equal monthly installments of $6,506.66,
without interest, beginning August 31, 2018. See id., Exhibit F. Dr. Rakawsky and Ms. Gatsch
both personally guaranteed the Promissory Note. See id.
The parties also executed an Assignment and Assumption of Employment Agreement
("Assignment of Employment Agreement") pursuant to which the Employment Agreement of one
of Hoorfar Dental's employees, Dr. Teitelman, was assigned to, and assumed by, RG Dental.
Additionally, the parties executed the Professional Services Agreement ("PSA"), that was attached
as Exhibit E to the APA. Pursuant to the PSA, the parties agreed that Dr. Hoorfar would provide
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dental services for aminimum of three months after the Closing Date. See id., Exhibit E. For
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those services, the parties agreed that Dr. Hoorfar would be paid as follows:
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w• INDEPENDENT CONTRACTOR shall receive a fee equal to 40% of gross
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See id., Exhibit E, ¶ 8.
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Lab: usually consist of but not limited to, all Lab charges from different labs for
Crown & Bridges, Dentures, its abutments, and related restorative lab works.
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wa Chemotherapeutic material cost such as ARRESTIN or PERIOCHIP. Cost of
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w• mouth guard fabrication charges, TMJ appliance, Orthodontic appliance charges,
implants, bone graft, membrane, botox, dysport, restylane, perlane, Invisalign and
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any other mutually agreed Specialty supply or arrangements.
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See id., Exhibit E, Exhibit E.
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Importantly, both the APA and the PSA contained integration clauses. Paragraph 17.7 of
II 01
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o• Entire Agreement. This Agreement and the exhibits hereto contain the final and
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conditions or representations not contained herein. Seller and Purchaser may take
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legal advice from their own attorney in connection with this transaction.
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APA at ¶ 17.7. Paragraph 12 of the PSA provides:
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This Agreement supersedes any and all other Agreements, oral or written,
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between the parties hereto with respect to the matter contained herein and it shall
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not be modified except in writing and executed by the parties hereto. However,
the liabilities, if any, of the INDEPENDENT CONTRACTOR under any earlier
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agreement shall continue to survive under this Agreement.
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On January 31, 2019, six months after the Closing Date, Appellees filed aVerified
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Complaint ("Complaint"). In that Complaint, Appellees included aclaim for breach of the
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Promissory Note (Count I), aclaim for breach of the PSA (Count II), and aclaim for Invasion of
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Privacy (Count III). See Complaint, Counts I-III. With respect to the two contract claims,
Appellees averred that Appellants breached the Promissory Note by failing to make payments to
Appellees for the Practice Accounts Receivable and also breached the PSA by failing to pay Dr.
Hoorfar for dental services provided subsequent to the Closing Date. See id., Counts Iand II. 3
On March 5, 2019, Appellants filed an Answer with New Matter and Counterclaim
("Answer, New Matter and Counterclaim") in which Appellants asserted a counterclaim for
Misrepresentation (Count I) and, in the alternative, acounterclaim for Breach of Contract (Count
II). See Answer, New Matter and Counterclaim, Counts Iand II. In their counterclaim for
Misrepresentation, Appellants averred that Appellees had fraudulently induced Appellants to enter
into the APA. See id., Count I. In Count II, Appellants averred, in the alternative, that based upon
the same conduct pleaded in support of the Misrepresentation counterclaim, Appellees committed
multiple breaches of the APA. See id., Count II. Specifically, Appellants averred that Appellees
had breached the APA as follows: 1) through apurported misrepresentation regarding the value of
the accounts receivable which Appellants had purchased for $ 78,080; 2) by failing to pay abonus
to one of Hoorfar Dental's former employees (Dr. Teitelman); and 3) violating provisions in the
APA regarding the condition of the equipment and supplies sold to Appellants. See id. at 5-8.
On March 25, 2019, Appellees filed Preliminary Objections seeking dismissal of
Appellants' pleading for lack of specificity and also dismissal of Count Ion the grounds of legal
insufficiency ("Preliminary Objections"). As to their demurrer to Count I, Appellees argued that
Appellants' counterclaim for Misrepresentation was barred by the Gist of the Action Doctrine as
well as on the grounds that any Fraud-in-the-Inducement claim would be barred by the Parol
3 Appellees withdrew their Invasion of Privacy claim prior to trial so it will not be discussed
herein.
5
Evidence Rule. See Preliminary Objections at 11-15. On May 3, 2019, Appellants filed aresponse
to the Preliminary Objections. On May 13, 2019, the Honorable Jeffrey G. Trauger entered an
Order overruling the preliminary objection pursuant to Pa. R.C.P. No. 1028(a)(3), and sustaining
the preliminary objection to Count Ipursuant to Pa. R.C.P. No. 1028(a)(4) ("May 2019 Order").
On June 4, 2019, Appellees filed a Reply to New Matter and Answer to Count Two of the
Counterclaim.
Thereafter, on October 5, 2020, an Agreed Case Management Order was entered by the
Honorable Robert O. Baldi ("Agreed Case Management Order") setting February 28, 2021 as the
deadline for the identification and exchange of all exhibits. On May 27, 2021, the Honorable
Wallace H. Bateman, Jr., entered an Order scheduling the matter for trial during the July 6, 2021
to July 16, 2021 trial term ("Pre-Trial Order"). Additionally, Judge Bateman directed the parties
to file Pre-Trial Memoranda within ten ( 10) days after entry of the Pre-Trial Order. See Pre-Trial
Order. Judge Bateman further directed that pre-trial memoranda include, inter alia, alist of all
exhibits which each party intended to introduce at trial. See id. Notably, the Pre-Trial Order also
stated as follows: "Failure to comply with these procedures may result in the exclusion from trial
evidence not disclosed at this time...." Id.
Appellees filed their Pre-Trial Memorandum on June 7, 2021. Appellants filed their Pre-
Trial Memorandum the next day.
On June 7, 2021, Appellees filed aMotion in Limine to Preclude Evidence That Varies
From the Terms of the Written Agreements Underlying the Sale of the Dental Practice ("Motion
in Limine"). Pursuant to their Motion in Limine, Appellees sought an Order precluding Appellants
from introducing any documents or testimony at trial that would vary, explain, or contradict the
terms of the parties' written agreements. Appellees argued that the written agreements are
6
integrated, and thus, the Parol Evidence Rule preludes the introduction of any such evidence. See
Motion in Limine at 1-4.
Appellants filed aresponse to the Motion in Limine on June 22, 2021 ("Response to Motion
in Limine"). In their Response to Motion in Limine, Appellants argued that an exception to the
Parol Evidence Rule applied because there is an ambiguity in the APA. See Response to Motion
in Limine at 1-4. Specifically, Appellants argued that the term "the value of the Practice Accounts
Receivable" in Exhibit B to the APA was susceptible to more than one reasonable interpretation
and, therefore, constituted an ambiguous term. See Response to Motion in Limine at 2-4.
Trial on this matter ultimately was scheduled to begin on July 13, 2021. On that date, and
prior to jury selection, the undersigned held oral argument on the Motion in Limine. Counsel for
Appellees, Michael Burns ("Mr. Burns"), argued that the language at issue is not ambiguous, and
further, that Appellants had conceded as much in discovery. In response, Counsel for Appellants,
William T. Dudeck ("Mr. Dudeck"), argued that an ambiguity did exist because the parties had
two different, but reasonable, interpretations of certain language in the APA. Mr. Dudeck
identified the phrase which Appellants contended was ambiguous as: "for aprice equal to the
aggregate amount of such receivables that are no more than 90 days old multiplied by 70 cents."
N.T. 7/13/21, at 23. A few minutes later, Mr. Dudeck advised the Court that it was the two words
"aggregate amount" together that constituted the purported ambiguity. N.T. 7/13/21, at 32-33.
During oral argument, Mr. Dudeck made various concessions. He conceded that it was not
Appellants' position that there was amistake or fraud but only that an ambiguity existed. N.T.
7/13/21, at 27-28. Additionally, he conceded that the APA is integrated. N.T. 7/13/21, at 27-28.
He also admitted that Ms. Gatsch knew, at the time she signed the APA, that the figure to be paid
for the aggregate amount of accounts receivable was $78,080.00. N.T. 7/13/21, at 31. He further
7
agreed that after this amount was calculated pursuant to the formula in Exhibit E to the APA, Ms.
Gatsch signed a Promissory Note in the amount of $78,080.00 for the "aggregate accounts
receivable." N.T. 7/13/21, at 31. He further conceded that Appellants had the right under the APA
to request additional detail after being provided acopy of the written accounts receivable aging
report and that they failed to request such information. N.T. 7/13/21, at 38. Mr. Dudeck also
conceded that he was not arguing any ambiguity in the Promissory Note itself. N.T. 7/13/21, at
31.
In support of his position, Mr. Dudeck argued that Ms. Gatsch and Appellees both had
reasonable interpretations of the language at issue and, therefore, the Court was required to find
an ambiguity.' Mr. Dudeck argued that Dr. Hoorfar interpreted "aggregate amount" to mean the
total amount, and Ms. Gatsch interpreted this same language to mean the "aggregate amount" that
is collectible. N.T. 7/13/21, at 23-24, 33-34. He claimed that "what happened was that she thought
she was getting $ 111,000.00 of collectible receivables 0-90 for $78,000.00 as part of the overall
receivables ...." N.T. 7/13/21, at 24. Mr. Dudeck argued that because both interpretations were
reasonable, an ambiguity existed, and the Court should permit the introduction of evidence to
support Ms. Gatsch's interpretation. N.T. 7/13/21, at 21-22, 32-33, 36.
The undersigned ultimately determined that the APA was not ambiguous and that the term
"aggregate amount," meant just that - "aggregate" or "total" amount. The Court granted the
Motion in Limine and directed that there would be no parol evidence introduced at trial. N.T.
7/13/21, at 40.
4 Notably, there was no offer of proof from Mr. Dudeck during oral argument as to Dr.
Rakawsky's interpretation of the language in the PSA. All of the representations being made
related specifically to Ms. Gatsch's purported interpretation. As aresult, there is no record as to
how Dr. Rakawsky, also amember of RG Dental, interpreted the language at issue.
8
Subsequent to that ruling, ajury was selected and empaneled. Thereafter, the Court gave
various additional instructions to the jury, including instructions regarding how the trial was
expected to proceed. With respect to the notion of objections, the undersigned instructed the jury
as follows: "The attorneys have the right and duty to make objections in order to make sure that
only legally sufficient and relevant evidence is considered by you. So you should not penalize any
of the litigating parties because their attorneys make objections." N.T. 7/13/21, at 76. The Court
further explained to the jury what evidence is, and what types of things are not evidence, such as
objections, statements, or arguments by counsel. N.T. 7/13/21, at 76-81.
Thereafter, Mr. Burns made his opening statement on behalf of the Appellees. Mr. Dudeck
then began his opening statement s Partway through that opening statement, Mr. Burns objected
and the Court heard Counsel at side bar. The objection by Mr. Burns was that Mr. Dudeck was in
violation of the Court's order granting the Motion in Limine by referencing in his opening
statement certain evidence that in fact constituted parol evidence. The Court excused the jury and
heard argument from both attorneys. Ultimately, the Court agreed that the evidence which Mr.
Dudeck sought to reference in his opening statement was parol evidence. The jury was brought
back into the courtroom. Mr. Dudeck then simply thanked the jury and sat down rather than
continuing further with an opening statement.
Appellees then called Dr. Hoorfar as their first witness. During that testimony, Mr. Burns
asked Dr. Hoorfar aquestion or two which raised aconcern with the Court that Mr. Burns may be
seeking to introduce evidence in violation of the Court's ruling on the Motion in Limine. The
undersigned brought both attorneys to side bar and raised its concern. Mr. Burns assured the Court
s Counsel for Appellants and Counsel for Appellees stipulated that opening statements would not
be taken down by the Court Reporter. N.T. 7/13/21, at 16.
9
he had no intention of violating the Court's ruling. After sidebar, Mr. Burns immediately moved
on to anew topic with Dr. Hoorfar. N.T. 7/13/21, at 128-29. Counsel for Appellants made no
comments during this sidebar exchange. N.T. 7/13/21, at 128-29. Thereafter, the testimony of Dr.
Hoorfar continued and concluded late in the afternoon on day one of the trial.
On day two, Mr. Dudeck started his cross-examination of Dr. Hoorfar. Early on during
that examination, Mr. Burns raised arelevance objection. The undersigned heard the attorneys at
side bar. During this side bar, Mr. Dudeck advised he would withdraw his question. N.T. 7/14/21,
at 31-32. Shortly thereafter, Mr. Burns raised another objection which the Court overruled.
Notwithstanding this, Mr. Dudeck felt it appropriate to make the following statement in front of
the jury: "Your Honor, I'd like to proceed without these constant stops with objections that are
clearly not relevant and that are just meant to interrupt my flow. Ithink they should be addressed
in re-direct." N.T. 7/14/21, at 34. The Court was once again required to take the attorneys to side
bar. After hearing Mr. Dudeck on the issue he raised, and also Mr. Burns on his concern as to the
impact that Mr. Dudeck's comments might have on the jury's perception of Mr. Burns, the Court
advised that it would be giving the jury afurther instruction. N.T. 7/14/21, at 36. The undersigned
then went back on the record and advised the jury as follows:
Ladies and gentlemen of the jury, as Iinstructed you yesterday, you are going to
hear the attorneys make objections. And the purpose of those objections from the
perspective of the attorney making the objection is to make sure that you only hear
evidence that's admissible and appropriate. You are not to hold it against the
attorneys who are making the objection. Both of them have the right to do that.
They are advocating for their clients, and they want to assure that only admissible
evidence is introduced. So Iwant to make you aware of that again. And by
agreement, that statement that was just made by Mr. Dudeck will be stricken. Well,
you are not to consider it. Okay? You are to disregard the last statement that he
made. It is not evidence, and it's not to be considered by you. Consistent with
what Itold you earlier that the statements of lawyers are not evidence. Okay? All
right. Mr. Dudeck? Go ahead.
N.T. 7/14/12, at 36-37.
10
Subsequent to the conclusion of the testimony of Dr. Hoorfar, Appellees rested their case.
The jury was then excused and Mr. Dudeck moved for acompulsory nonsuit as to Appellees' claim
for breach of the PSA. N.T. 7/14/21, at 79. The Court heard argument from both Counsel and
then denied the motion. N.T. 7/14/21, at 79-82.
Thereafter, Appellants presented their defense to Appellees' breach of contract claims and
also introduced evidence in support of their own breach of contract counterclaims. Appellants'
called Ms. Gatsch as their first witness.
During Ms. Gatsch's direct examination, Ms. Gatsch testified that she understood that RG
Dental was purchasing the accounts receivable for the formula set forth in Exhibit B to the APA.
N.T. 7/14/21, at 103. Ms. Gatsch also provided extensive testimony regarding equipment and
supplies that were purchased as part of the sale of the practice. See N.T. 7/14/21. Ms. Gatsch
testified that she had to replace some supplies and also repair certain equipment. See N.T. 7/14/21.
With respect to Dr. Hoorfar's ongoing work at RG Dental, Ms. Gatsch testified that Dr.
Hoorfar did provide services to patients for some days in September, all of October, all of
November and half of December 2018. N.T. 7/14/21, at 109-10. She testified that the formula for
his pay was 40 percent of his gross collections less 40 percent of lab. N.T. 7/14/21, at 109-10.
Throughout the direct examination of Ms. Gatsch, Mr. Dudeck asked questions which drew
objections from Mr. Burns on the grounds that such questions sought the introduction of parol
evidence. The Court entertained these objections at sidebar and repeatedly warned Mr. Dudeck of
the Court's ruling on the Motion in Limine. Thereafter, Mr. Dudeck asked Ms. Gatsch if she tried
to collect on the accounts receivable after the transaction had closed. N.T. 7/14/21, at 135. Mr.
Burns made an objection which the Court sustained. N.T. 7/14/21, at 135. Notwithstanding having
heard the Court's ruling on that objection, Mr. Dudeck then asked Ms. Gatsch whether she was
11
able to collect any amount near $78,080.00 on those receivables. N.T. 7/14/21, at 135-36. Once
again, Mr. Burns objected, and this time moved for amistrial. Specifically, Mr. Burns stated as
follows: "Objection, Your Honor. Move to strike any testimony of Ms. Gatsch as this officer of
the court is failing to follow the directives of this Court. And Iwould move for amistrial, and I
would move for adirected verdict in my client's favor." N.T. 7/14/21, at 136. The Court then
immediately dismissed the jury. Subsequent to the jury exiting the courtroom, Mr. Burns
immediately withdrew his request for amistrial. In response, Mr. Dudeck took the position that
the Court was now obligated to declare amistrial, and he moved for amistrial on behalf of the
Appellants. N.T. 7/14/21, at 136. The Court denied Appellants' motion and gave a detailed
curative instruction to the jury. N.T. 7/14/21, at 141, 143-147.
Ms. Gatsch's testimony continued, and upon its completion, Mr. Dudeck advised that
Appellants rested. The jury was excused and Mr. Burns moved for acompulsory nonsuit on both
of Appellants' breach of contract counterclaims. With respect to Appellants' counterclaim relating
to the value of the accounts receivable, Mr. Burns argued that Appellants had failed to adduce
sufficient evidence of abreach. N.T. 7/15/21, at 89-91. With respect to the counterclaim regarding
equipment and supplies, Mr. Burns argued that Appellants also had not adduced sufficient
evidence to make out a breach of contract claim. The Court granted the motion as to the
counterclaim regarding the accounts receivable and denied the motion regarding the counterclaim
relating to the equipment and supplies. N.T. 7/15/21, at 93-94.
Thereafter, the jury returned to the courtroom. Appellees then presented their defense to
Appellants' counterclaim that Appellees had breached the APA relating to the equipment and
supplies purchased by RG Dental and also Appellants' counterclaim relating to the bonus it paid
12
to Dr. Teitelman which Appellants claimed should have been paid by Hoorfar Dental. Thereafter,
the attorneys made closing arguments and the Court charged the jury. See N.T. 7/15/21.
While the jury was deliberating, Mr. Burns and Mr. Dudeck confirmed on the record an
agreement regarding the awarding of pre judgment interest and attorney's fees. N.T. 7/15/21, at
216-18. Specifically, they agreed that the Court would hold aseparate hearing to determine the
amount of pre judgment interest and/or attorney's fees to which any party was entitled based upon
the jury's verdict. The parties also stipulated that to the extent the Court awarded any pre judgment
interest, the proper date for that interest to begin to accrue would be December 1, 2018. N.T.
7/15/21, at 216-18.
After deliberations, the jury returned with averdict in favor of Appellees on their claim for
breach of the Promissory Note and awarded damages in the amount of $ 58,806.00. The jury also
entered averdict in favor of Dr. Hoorfar for his claim of breach of the PSA and awarded damages
of $ 10,360.00 on that claim. On Appellants' counterclaim for breach of contract relating to the
bonus paid to Dr. Teitelman, the jury found against Appellants. Similarly, the jury found against
the Appellants on their breach of contract counterclaim regarding monies expended to
repair/replace equipment and supplies.
Thereafter, on July 26, 2021, Appellants filed aMotion for Post-Trial Relief ("Post-Trial
Motion"). In that Post-Trial Motion, Appellants averred that the jury's verdict was against the
weight of the evidence with respect to Appellees' claim for breach of the PSA, Appellants'
counterclaim for breach of the APA regarding the equipment/supplies, and Appellants'
counterclaim for breach of the APA regarding Dr. Teitelman's bonus. See Post-Trial Motion at
3. Appellants also requested anew trial based upon various other purported errors on the part of
the Court. See id. at 4-5.
13
On October 21, 2021, Appellees filed their Petition for Interest, Costs and Fees pursuant to
the parties' agreement that the Court, rather than the jury, would decide whether any party should
be awarded interest, costs and/or attorneys' fees, and if applicable, the amount thereof. N.T.
7/13/21, at 62-65; see also N.T. 10/25/21, at 3-4. A hearing took place on October 25, 2021,
regarding the Petition for Interest, Costs and Fees. On November 5, 2021, the Court entered an
Order denying and dismissing Appellants' Post-Trial Motion. Furthermore, on November 9, 2021,
the Court granted Appellees' Petition for Interest, Costs and Fees and issued aDecision. The
Court awarded Appellees pre judgment interest and attorneys' fees for atotal molded award in
favor of Appellees in the amount of $95,948.94. On November 10, 2021, the prothonotary entered
judgment in favor of Appellees and against Appellants in the sum of $95, 948.94.
On December 10, 2021, aNotice of Appeal was filed by Appellants. On December 16,
2021, the Court entered an Order directing Appellants to file a Concise Statement of Errors
Complained of on Appeal within twenty-one (21) days from the filing date of this Order. On
January 7, 2022, Appellants filed [Appellants'] Concise Statement of Errors Complained of on
Appeal ("Concise Statement").
III. ISSUES RAISED ON APPEAL:
Appellants raise 13 issues on appeal. 6 Those issues are set forth below, verbatim:
1. Because the Jury's Verdict was against the weight of the evidence
on this issue, Defendants respectfully submit that Your Honorable
Court should have entered judgment notwithstanding the Verdict in
favor of RG Dental Group of Richboro, LLC and against Mersad
Hoorfar, DMD on his claim for breach of the Professional Services
Agreement.
2. Alternatively, because Mersad Hoorfar, DMD's evidence in regard
to his claim for breach of the Professional Services Agreement was
insufficient on this issue, Your Honorable Court should have
6 These issues will be discussed in adifferent order below.
14
granted RG Dental Group of Richboro, LLC's motion for
compulsory nonsuit on this claim at the close of Plaintiffs' case-in-
chief.
3. Because the Jury's Verdict was against the weight of the evidence
on this issue, Defendants respectfully submit that Your Honorable
Court should have entered judgment notwithstanding the Verdict in
favor of RG Dental Group of Richboro, LLC and Hoorfar Dental
Group, LLC and Mersad Hoorfar, DMD for $ 11,500.00 on the
Counterclaim claim for breach of the Asset Purchase Agreement
with regard to the sale of the office equipment and/or supplies.
4. Because the Jury's Verdict was against the weight of the evidence
on this issue, Defendants respectfully submit that Your Honorable
Court should have entered judgment notwithstanding the Verdict in
favor of RG Dental Group of Richboro, LLC and against Hoorfar
Dental Group, LLC and Mersad Hoorfar, DMD for $ 19,775.91 on
the Counterclaim for breach of the Asset Purchase Agreement with
regard to the payment of Dr. Teitelman's bonus for services
rendered prior to July 31, 2018.
5. Your Honorable Court should not have sustained Plaintiffs'
Preliminary Objections to Count Iof Defendants' Counterclaim by
way of its interlocutory Order entered May 14, 2019.
6. Your Honorable Court should not have granted Plaintiffs' Motion in
Limine filed June 7, 2021.
7. Your Honorable Court should not have admitted, over Defendants'
objection, Exhibit P11 and any testimony thereon.
8. Setting aside the reversible error committed by Your Honorable
Court in re Plaintiff's Motion in Limine as set forth in paragraph 5
of this Statement, supra, Your Honorable Court should not have
barred Defendants from proffering evidence to demonstrate
Plaintiffs' breach of the Asset Purchase Agreement with respect to
the sale of the accounts receivable.
9. Your Honorable Court committed reversible error in ruling that the
accounts receivable report delivered to RG Dental Group of
Richboro, LLC at the closing on July 31, 2019 was not part of the
parties' contract.
10. Your Honorable Court should have admitted Exhibit D16 and any
testimony thereon.
15
11. Your Honorable Court should not have granted, and should have
removed, the compulsory nonsuit as to Defendants' claim for
Plaintiffs' breach of the Asset Purchase Agreement.
12. Your Honorable Court should not have denied Defendants' motion
for amistrial after opposing counsel's antics before the Jury in open
court.
13. Your Honorable Court should have instructed the Jury on
Defendants' requested points for charge numbers 1and 3.
IV. DISCUSSION:
A. The Trial Court Did Not Err or Abuse its Discretion When it Sustained
Appellees' Preliminary Obiection to Count Iof Appellants' Counterclaim
Appellants claim that Judge Trauger erred when he sustained Appellees' preliminary
objection to Appellants' counterclaim for Misrepresentation and dismissed that counterclaim as
legally insufficient. Judge Trauger, however, properly dismissed Appellants' Misrepresentation
counterclaim based upon the Gist of the Action Doctrine. The Gist of the Action Doctrine prevents
an ordinary contract claim from being recast as atort claim. See Bruno v. Erie Ins. Co., 106 A.3d.
48, 68-69 (Pa. 2014) (explaining that the Gist of the Action Doctrine is concerned with whether
the essential foundation for alawsuit is based in tort or contract). In general terms, tort actions
are based upon breaches of duties imposed by law as amatter of social policy, while contract
actions are based on breaches of duties imposed by "mutual consensus agreements between
particular individuals." Bash v. Bell TeL Co., 601 A.2d 825, 829 (Pa. Super. 1992). Pennsylvania
Courts have previously recognized four circumstances where the Gist of the Action Doctrine will
properly bar aputative tort claim:
1. The Tort Claim arises solely from acontract between the parties;
2. The duties allegedly breached were created and grounded in the contract
itself;
3. The liability stems from acontract; or
16
4. The tort claim essentially duplicates abreach of contract claim or the
success of the tort claim is wholly dependent on the terms of acontract.
See eToll Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 19-21 (Pa. Super. 2002) (holding that
plaintiff's claims of fraudulent practices against the defendant were barred by the Gist of the
Action Doctrine since they either arose from the performance of the contractual relationship, or
were grounded therein, and, thus, "not so tangential to the parties' relationship so as to make fraud
the gist of the action," but rather, "inextricably intertwined with the contract claims").
In this case, Appellants failed to plead any averments in support of their Misrepresentation
counterclaim referencing aduty imposed upon Appellees as amatter of social policy. See Answer,
New Matter and Counterclaim. The only source of the parties' relationship is the written contract
between them. And in fact, all of the duties and obligations which Appellants pleaded in their
Answer, New Matter and Counterclaim were owed to Appellants are based upon and grounded in
those written agreements. See id.
For example, in Appellants' Answer, New Matter and Counterclaims, Appellants pleaded
that "[a]s consideration in, of and for the Purchase Price paid for the Practice, Defendants have
recently learned that prior to closing Plaintiffs misrepresented or failed to disclose ... [t]he true
nature of the accounts receivable upon which Plaintiffs make their claims for payment ...." Id.
at 5-6. With respect to their counterclaim for Misrepresentation specifically, Appellants
incorporated by reference the prior averments of their pleading and then pleaded as follows:
• Plaintiffs' above-stated pre-closing representations and/or non-disclosures were
material to the sale of the accounts receivables.
• These representations were intentionally false, made with indifference as to
whether they were true or false and/or should have been known to be false when
made, was material in nature, and made with the intent to deceive and defraud the
Defendants and to induce them to purchase the Practice's accounts receivable.
17
Defendants justifiably relied upon Plaintiffs' misrepresentations and were induced
thereby to purchase the accounts receivable at the price stated in the Agreement.
Id. at 7-8.
Given the absence of any averments by Appellants that Appellees breached aduty that is
imposed as amatter of social policy and/or which falls outside the scope of the APA, the Gist of
the Action Doctrine properly applied to bar Appellants' Misrepresentation counterclaim.
Accordingly, Judge Trauger did not err in dismissing that claim as legally insufficient.
Additionally, this Misrepresentation counterclaim would properly be barred by the Parol
Evidence Rule insofar as it constitutes afraud-in-the-inducement claim relating to an integrated
contract.
Our Pennsylvania Supreme Court has explained the parol evidence rule as follows:
Where the parties, without any fraud or mistake, have deliberately put their
engagements in writing, the law declares the writing to be not only the best, but the
only, evidence of their agreement. All preliminary negotiations, conversations and
verbal agreements are merged in and superseded by the subsequent written contract
... and unless fraud, accident or mistake be averred, the writing constitutes the
agreement between the parties, and its terms and agreements cannot be added to
nor subtracted from by parol evidence.
Yocca v. Pittsburg Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004) (citing to Gianni v. Russell
& Co., 126 A. 791, 792 (Pa. 1924)); see also Scott v. Bryn Mawr Arms, Inc., 312 A.2d 592, 594
(Pa. 1973). Once awriting is determined to be the parties' entire contract, the parol evidence rule
applies and evidence of any previous oral or written negotiations or agreements involving the same
subject matter as the contract is almost always inadmissible to explain or vary the terms of the
contract. See Robert T. Felte, Inc. v. White, 302 A.2d 347, 351 (Pa. 1973) (explaining that when
awritten contract is clear and unequivocal, its meaning must be determined by its contents alone).
18
Therefore, for the parol evidence rule to apply, there must be awriting that represents the
"entire contract between the parties." Gianni, 126 A. at 792. An integration clause which states
that awriting is meant to represent the parties' entire agreement is aclear sign that the writing is
meant to be just that and thereby expresses all of the parties' negotiations, conversations, and
agreements made prior to its execution. See HCB Contractors v. Liberty Place Hotel Assoc., 652
A.2d 1278, 1280 (Pa. 1995); see also Lenzi v. Hahnemann Univ., 664 A.2d 1375, 1379 (Pa. Super.
Ct. 1995); see also McGuire v. Schneider, 534 A.2d 115, 117 (Pa. Super. 1987), affd, 534 A.2d
115 (Pa. 1988) (explaining that a contract is integrated if it represents a final and complete
expression of the parties' agreement). "The effect of an integration clause is to make the parol
evidence rule particularly applicable. Thus, the written contract, if unambiguous, must be held to
express all of the negotiations, conversations, and agreements made prior to its execution, and
neither oral testimony, nor prior written agreements, or other writings, are admissible to explain
or vary the terms of the contract." 1726 Cherry St. Partnership v. Bell Atlantic Properties, Inc.,
653 A.2d 663, 665 (Pa. Super. 1995), appeal denied, 664 A.2d 976 (Pa. 1995).
It is well-settled that fraud-in-the-inducement claims may be barred if the contract at issue
is fully integrated. See Blumenstock v. Gibson, 811 A.2d 1029, 1035 (Pa. Super. 2002) ("[F]raud
-in-the-inducement claims are commonly barred if the contract at issue is fully litigated"); see e.g.
Hart v. Arnold, 884 A.2d 316, 340 (Pa. Super 2005) (holding that appellant's fraud-in-the
inducement claim was barred where appellant signed an integrated contract containing terms
arguably conflicting with the alleged fraudulent misrepresentation). The rationale for this rule of
law is that aparty cannot justifiably rely upon prior oral representations and then sign acontract
containing terms that refute the alleged prior oral representations. See Blumenstock, 811 A.2d at
1036. Thus, when "prior fraudulent oral misrepresentations are alleged regarding asubject that
19
was specifically dealt with in awritten contract, the party alleging such representations must, under
the parol evidence rule, also aver that the representations were fraudulently or by accident or
mistake omitted from the integrated written contact." HCB Contractors, 652 A.2d at 1279; see
also Yocca, 854 A.2d at 437 n.26 (holding that where acontract is integrated, "parol evidence may
not be admitted based on aclaim that there was fraud in the inducement of the contract, i.e., that
an opposing party made false representations that induced the complaining party to agree to the
contract"). "To require less would make amockery of the parol evidence rule because all aparty
would have to do to avoid, modify or nullify [acontract] would be to aver that false representations
were ` fraudulently' made." Nicolella v. Palmer, 248 A.2d 20, 23 ( 1968).
In this case, it is undisputed that the APA has an integration clause. See Complaint, Exhibit
A, 117.7. Notably, Appellants did not deny in their Answer, New Matter and Counterclaim that
Exhibit A attached to the Complaint is an integrated contract between them. See Answer, New
Matter and Counterclaim at 2. Rather, in responding to that particular averment in the Complaint,
Appellants merely clarify, consistent with the language in the APA, that Ms. Gatsch and Dr.
Rakawsky entered into the APA as agents for "an entity to be formed and owned by [them]." See
id. Additionally, Appellants themselves specifically make reference to the APA and provisions
thereof in support of their own counterclaims. See id. at 5-8.
Further, as discussed above, the alleged misrepresentations on the part of Appellees which
form the basis for Appellants' Misrepresentation counterclaim relate to a subject that was
specifically addressed in the APA (sale/purchase of Hoorfar Dental's accounts receivable).
Importantly, Appellants did not plead that specific language was omitted from the parties'
integrated contract by mistake or through fraud. See Answer, New Matter and Counterclaim.
Rather, Appellants only pleaded that they relied upon prior representations that they later claimed
20
Vj
O N
U O
U
as
turned out to be false. See id., at 7-8. This is exactly the scenario contemplated by the Parol
U =
Q O
ao
U l0
Evidence Rule. See Blumenstock, 811 A.2d at 1036 (explaining aparty cannot justifiably rely
o t• upon prior oral representations and then sign acontract containing terms that refute the alleged
•a
o prior oral representations). Accordingly, Appellants' fraud-in-the-inducement counterclaim also
Qg
w would have been properly dismissed by Judge Trauger.
3 ='
T ` B. The Trial Court Did Not Err or Abuse its Discretion When it Granted
o a Appellees 'Motion in Limine and Barred the Introduction of Parol Evidence
ti Next, Appellants contend that the Court erred and/or abused its discretion by granting
wa
w Appellees' Motion in Limine because there was an ambiguity in the APA. One exception to the
general rule is that parol evidence may be introduced to explain or clarify or resolve the
0 ambiguity. See Estate of Herr, 161 A.2d 32, 34 (Pa. 1960); see also Waldman v. Shoemaker, 80
oa
g A.2d 776, 778 (Pa. 1951). There are two types of ambiguities which may permit the introduction
LZ of parol evidence - patent ambiguity and latent ambiguity. See In re Estate ofSchultheis, 747
a a
N A.2d 918, 923 (Pa. Super. Ct. 2000). A patent ambiguity appears on the face of the document
N _
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and is aresult of defective or obscure language. Id. A latent ambiguity arises from collateral
V
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T clear on the face of the contract. Id. To determine the existence of ambiguity, acourt may
o Q
Y consider "the words of the contract, the alternative meaning suggested by counsel, and the nature
g•
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oa of the objective evidence to be offered in support of that meaning." Mellon Bank N.A. v. Aetna
O •
Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir. 1980). The disagreement of the parties
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regarding the proper construction of an agreement, however, does not alone render an agreement
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Cq = ambiguous. Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 93 (3d Cir.
•a
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0 2001) (summarizing Pennsylvania contract law on latent ambiguity).
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Additionally, Pennsylvania law makes clear that "aclaim of latent ambiguity must be based
on a ` contractual hook;' the proffered extrinsic evidence must support an alternative meaning of a
specific term or terms contained in the contract, rather than simply support ageneral claim that the
parties meant something other than what the contract says on its face." Id. at 96. "Furthermore, a
proffered alternative meaning for the contractual hook must be reasonable; that is, it must be
supported by contractual evidence that goes beyond the party's claim that the contractual hook has
acertain meaning, and the interpretation cannot contradict the standard meaning of aterm when
the parties could have easily used another term to convey this contradictory meaning." Id. "A
party may use extrinsic evidence to support its claim of latent ambiguity, but this evidence must
show that some specific term or terms in the contract are ambiguous; it cannot simply show that
the parties intended something different that was not incorporated into the contract." Id. at 93.
Here, there is no dispute that the APA is an integrated contract and was to represent the
parties' entire agreement including as relating to the sale/purchase of the accounts receivable.
Indeed, Appellants admitted this in their Response to Motion in Limine and Mr. Dudeck
conceded this during oral argument. See Response to Motion in Limine at 19; see also N.T.
7/13/21, at 27-28. There also was no dispute that the only basis on which Appellants argued that
the Parol Evidence Rule did not apply was apurported ambiguity in the APA. N.T. 7/13/21, at
28-33. In fact, Mr. Dudeck clarified on the record during oral argument that his client was not
averring any type of mistake or misrepresentation.' N.T. 7/13/21, at 28-33.
Specifically, Mr. Dudeck argued that the following language in Exhibit B to the APA is
ambiguous: "for aprice equal to the aggregate amount of such receivables that are no more than
7 Although notably, Appellants later sought to pursue abreach of contract counterclaim at trial
based upon apurported misrepresentation relating to this same subject area of the APA (i.e.,
valuation of the accounts receivable). See Section IV(C), infra.
22
ninety (90) days old multiplied by seventy cents ($.70)." N.T. 7/13/21, at 23. He explained that
after the Closing Date, Ms. Gatsch came to learn that the aggregate amount of accounts
receivable "didn't account for all the insurance write offs." N.T. 7/13/21, at 24. In other words,
her interpretation was that the "aggregate amount" meant "aggregate amount of what you can
collect." N.T. 7/13/21, at 26. He argued that this was areasonable interpretation as was Dr.
Hoorfar's interpretation that "aggregate amount" simply meant the amount owed "regardless of
what insurance would actually pay on it under the contract with the dental practice." N.T.
7/13/21, at 33. Mr. Dudeck reasoned that because both interpretations were reasonable, an
ambiguity existed, and thus parol evidence could not be barred. This Court disagrees.
First, the Court notes Mr. Dudeck's representation that his client realized there were two
different interpretations when she began to collect on the accounts receivable. Obviously, she
was then aware of this purported difference when she filed her Answer, New Matter and
Counterclaim. And yet, during discovery, she did not take the position that the APA was
ambiguous. For example, as Mr. Burns pointed out during oral argument, in response to
Appellees' Interrogatory No. 19, Appellants objected but also responded as follows: "By way of
further response, Defendants do not claim that any material term of the parties' asset purchase
agreement is ambiguous." N.T. 7/13/21, at 20 (emphasis added). Similarly, when asked at her
deposition if there was any portion of any of the agreements that she believed was ambiguous,
Ms. Gatsch testified as follows: "No." N.T. 7/13/21, at 20. In this regard, Ms. Gatsch has
conceded that there is no ambiguity.
Additionally, Appellants failed to offer any objective evidence to support Ms. Gatsch's
interpretation. Instead, all that was offered was her self-serving subjective interpretation of the
23
APA. Indeed, Appellants did not even provide an offer of proof as to Dr. Rakawsky's
interpretation.
Furthermore, the interpretation offered by Ms. Gatsch is completely at odds with the plain
meaning of the language at issue. Mr. Dudeck identified the purportedly ambiguous term to be
"aggregate amount." N.T. 7/13/21, at 32-33. Webster's Dictionary defines aggregate as: "formed
by adding to or more amount together: total." See Webster's Dictionary. Black's Law Dictionary
defines the term aggregate as "composed of several." See Aggregate, BLACK'S LAW DICTIONARY
65 (6th ed. 1990). According to Mr. Dudeck, however, Ms. Gatsch interpreted this term, to mean
essentially "aggregate amount that is collectible" or "aggregate amount taking into account that
insurance companies were paying." N.T. 7/13/21, at 23-35. To accept such interpretations would
require this Court to ignore the plain language of the APA and to add language that either party
could have requested and included if they wanted to do so. Indeed, Dr. Hoorfar and Ms. Gatsch
are sophisticated individuals. Ms. Gatsch and Dr. Hoorfar both testified at trial about their prior
experiences with sales of dental practices. See N.T. 7/13/21, at 112-124; see also N.T. 7/14/21, at
93-97. And, in fact, Ms. Gatsch testified to her extensive experience in the dental field, including
working for many years with alarge DSO. N.T. 7/14/21, at 93-97; see also N.T. 7/15/21, at 32-
33. Additionally, both Appellants and Appellees were represented by counsel during the
negotiations and sale of this dental practice.
Moreover, Exhibit B to the PSA itself explicitly provided Appellants the opportunity to
seek more detail upon receipt of the written accounts receivable aging report. See APA, Exhibit
B. Mr. Dudeck conceded during oral argument, however, that his clients simply did not take
advantage of this opportunity. N.T. 7/13/21, at 22-27.
24
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pursuant to which they agreed that the debt owed to Hoorfar Dental for the Practice Accounts
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calculated the Practice Accounts Receivable pursuant to the agreed upon formula in Exhibit B to
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the APA based upon the information contained in the written accounts receivable aging report
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provided by Appellees to Appellants on the Closing Date, they came up with afigure of
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$78,080.00. That figure was then transferred to the Promissory Note which Appellants signed.
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that was ambiguous.
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For all the forgoing reasons, Appellants did not demonstrate any ambiguity, patent or
latent, in the APA (including Exhibit B attached thereto), regarding the calculation of the value
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of the Practice Accounts Receivable. Accordingly, the Court properly granted the Motion in
II
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a a Limine,
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C\1 I? C. The Trial Court Did Not Err or Abuse its Discretion When it Barred
Appellants From Proffering Evidence Relating to Their Counterclaim for
No V 00
Breach of the Asset Purchase Agreement With Respect to the Sale of the
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Appellants also complain that the Court erred or abused its discretion when it precluded
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73o them from introducing certain documents and testimony at trial which they proffered as evidence
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of their breach of contract counterclaim relating to the accounts receivable. With respect to that
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a particular counterclaim, Appellants sought to prove that Appellees had made amisrepresentation
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regarding the value of the Practice Accounts Receivable thereby breaching the APA.' During
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'Interestingly, during oral argument on the Motion in Limine, Mr. Dudeck represented to the
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a Court that there was neither amistake nor fraud involved. N.T. 7/13/21, at 27-28.
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Mr. Dudeck's opening statement, however, it became apparent that Appellants intended to prove
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this purported breach through the introduction of evidence that would vary, explain or contradict
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o the terms of this integrated agreement. When Mr. Burns objected to Mr. Dudeck's reference to
•a
: such evidence during his opening statement, the following exchange occurred at sidebar:
00
w MR. DUDECK: Iam trying to tell the jury what the evidence will present in terms
3 of the breach after the contract. Iam not talking about any parol
02) evidence in terms of any prior contemporaneous negotiations about
oa what she thought the $ 78,000.00 represented. She paid $ 78,000.00
for accounts receivable that were supposed to be worth 111. And
y when she goes to collect on them, they are worth about 10
wa thousand. That's abreach, Your Honor.
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COURT: Hold on asecond. What evidence do you intend to introduce to
support that breach, that alleged breach?
MR. DUDECK: Your Honor, Ms. Gatsch is going to testify. And she's going to
o
a authenticate emails to Dr. Hoorfar showing how many of those
g accounts receivable 0-90 days had to be written off, each one of
those, because of the insurance contracts. That's the evidence of
the breach.
a a
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introduce evidence to attempt this is aquestion — to attempt to
show the jury that the value that she got was something other than
78 thousand?
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o being asked to pay $ 78,000.00 for something that was only worth
Q 10 because of the representations regarding it, and that has nothing
y to do with parol evidence. That's abreach.
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0 0 COURT: How are you going to introduce evidence regarding value if Ihave
ruled that no parol evidence is coming in?
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the contract based upon prior or contemporaneous written or oral
h outside of the contract. We are not doing that. We are going to
Z show that he said that the value was 111 but that when she actually
0 o went to collect on these, the value was far less because it included
all of these. He didn't include all the insurance write-offs. So
that's the breach, Your Honor, and that's after. That's not trying to
change the contract.
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26
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COURT: Hold on asecond. Does the contract say that the value is 111 or
does the contract say that's the calculation of the aggregate
accounts receivable?
MR. DUDECK: It says it's the aggregate amount of the accounts receivable.
COURT: So you are going to introduce evidence that that's not the
aggregate amount?
MR. DUDECK: Exactly, Your Honor.
N.T. 7/13/21, at 92-94. Thereafter, the Court dismissed the jury and took ashort break. After
the break and before the jury returned to the courtroom, the Court asked Mr. Dudeck to identify
the specific evidence he sought to introduce at trial in support of this particular breach of contract
theory. Mr. Dudeck identified various emails between the parties — some exchanged prior to the
Closing Date and some exchanged after the Closing Date. All of the emails related to the
accounts receivable. N.T. 7/13/21, at 105-10.
Mr. Burns objected to the introduction of such evidence on the grounds that it constituted
parol evidence and the Court had already ruled that all parol evidence was barred. Mr. Dudeck
again argued that he was not introducing the evidence to vary or alter the terms of the APA but
in support of his breach of contract counterclaim regarding the accounts receivable, and
specifically to prove abreach and damages flowing from that breach. N.T. 7/13/21, at 105-10.
It is well settled that in order to prove aclaim for breach of contract, aplaintiff must
adduce evidence sufficient to establish, by apreponderance of the evidence, the following
elements: ( 1) the existence of acontract, including its essential terms; (2) abreach of the
contract; and, (3) resultant damages. See Kelly v. Carman Corp., 229 A.3d 634, 653 (Pa. Super.
2020). It is also well settled that before acontract can be found, all of the essential elements of
27
the contract must exist. See Cardinale v. R. E. Gas Dev. LLC, 74 A.3d 136, 140 (Pa. Super.
2013) (citations omitted).
In this case, Mr. Dudeck sought to introduce evidence that would vary, explain and/or
contradict the parties' integrated agreement under the guise of pursuing abreach of contract
claim. Specifically, Appellants sought to prove that Appellees breached the PSA when they sold
approximately $ 111,000.00 of accounts receivable for $78,080.00 and Ms. Gatsch was not able
to collect on all of the accounts receivable and had to write off some amounts. In order for
Appellants to establish abreach, however, they first needed to demonstrate to the jury that the
parties actually had come to ameeting of the minds that Appellants would be sold approximately
$111,000.00 worth of "collectible" accounts receivable for $78,080.00. The Court's ruling on
the Motion in Limine, however, precluded the jury from being able to find such breach. In ruling
on the Motion in Limine, the Court determined that the term "aggregate amount" was not
ambiguous, meant that which is reflected by its plain language, and did not mean the aggregate
amount of "collectible" accounts receivable. N.T. 7/13/21, at 38-40. Consequently, the evidence
Appellants sought to introduce was not probative of any breach on the part of Appellees, and,
thus irrelevant. See Pa.R.E. 401. Accordingly, the Court properly precluded Appellants from
introducing it.
Furthermore, Appellants waived this claim of amisrepresentation as the basis for a
breach during oral argument on the Motion in Limine. A review of the Answer, New Matter and
Counterclaim reveals that this particular counterclaim is premised on apurported
misrepresentation on the part of the Appellants regarding the value of the Practice Accounts
Receivable. See Answer, New Matter and Counterclaim. Indeed, subsequent to pleading aclaim
for Misrepresentation (Count I), Appellants pleaded aBreach of Contract claim (in the
28
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as
alternative), and in support of that claim, incorporated their prior averments and set forth only
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the following three additional averments:
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are subsumed by the Agreement, Defendants plead this claim for breach of contract
A0 in the alternative to the claim for misrepresentation.
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0 • Plaintiffs' conduct as aforesaid constituted material breaches of the Agreement.
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Z • As a direct and proximate result of these material breaches, Defendants have
g suffered and, upon information and belief, will continue to suffer damages in excess
of $ 50,000.00.
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w Id., Count 1I. At trial, Mr. Dudeck represented that the breach was based upon apurported
misrepresentation. First, in responding to the objection to comments made during Mr. Dudeck's
opening statement, Mr. Dudeck at one point stated as follows: "This aggregate amount was a
da
C breach because it misrepresented the aggregate amount." N.T. 7/13/21, at 94. Mr. Dudeck
L confirmed this position during another sidebar which occurred during the direct testimony of Ms.
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misrepresentation?
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a` Q he gave her was inaccurate? Right?
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COURT: Okay. But that's amisrepresentation.
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MR. DUDECK: Well, it could be that he was, yes, it's amisrepresentation. But it's
h abreach based on the misrepresentation.
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co
6 and the Court to hold asidebar was as follows: "What were you being represented in terms of the
to accounts receivables that you were purchasing? N.T. 7/14/21, at 117.
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N.T. 7/14/21, at 120.
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Importantly, however, earlier during oral argument on the Motion in Limine, Appellants,
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evidence regarding the accounts receivables based upon any fraud, but rather, based solely upon
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waived this argument that the evidence should come in to prove a "breach based on the
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misrepresentation." N.T. 7/14/21, at 120.
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Appellants further complain that the Court erred and/or abused its discretion when it
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admitted Exhibit P-11 into evidence. During the testimony of Dr. Hoorfar, Mr. Burns marked
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Exhibit P-11 for identification purposes and presented it to Dr. Hoorfar. Dr. Hoorfar identified
II 01
L Exhibit P-11 as an aging report he ran for the dental services that he had provided to RG Dental
a a
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o • after the Closing Date. N.T. 7/13/21, at 148-49. Mr. Burns then moved Exhibit P-11 into evidence
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to During oral argument, the following exchange occurred:
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o =• COURT: Is it your position that parol evidence should come in because
there's aterm in this contract that's ambiguous?
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COURT: Is that the only basis or is it also your position that there was either
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amistake and/or fraud involved?
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COURT: So we are just talking about ambiguity?
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MR. DUDECK: Yes, Your Honor.
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N.T. 7/13/21, at 27-28.
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30
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and Mr. Dudeck objected. When asked for the basis of the objection, Mr. Dudeck advised that he
had "several" objections. As aresult, the Court asked the attorneys to come to sidebar. At sidebar,
Mr. Dudeck advised that he objected on the grounds of relevance because the end date of the date
range identified on the report (8/1/2018 — 6/3/2021) was several months after everyone agreed Dr.
Hoorfar had stopped providing dental services to the patients of RG Dental. As of that time,
however, Dr. Hoorfar had already testified as to the time period when he provided dental services.
N.T. 7/13/21, at 129-31, 140-44. Further, Mr. Burns responded that the end date identified on the
report was the date the report was generated and otherwise the report was the same as that which
existed on the date Dr. Hoorfar left the office. N.T. 7/13/21, at 149. He further confirmed that his
client would be testifying as to the period of time to which Exhibit P-11 applied as relating to the
dates when he actually performed the services. 7/13/21, at 150.
Mr. Dudeck then identified his second relevance objection arguing that the document does
not have any reference to labs and the agreement between the parties was that Dr. Hoorfar would
be paid 40 gross collection receipts less 40 percent of labs. Mr. Dudeck also made aBest Evidence
objection on the same grounds.
Relevance is athreshold consideration in determining the admissibility of evidence. See
Pa.R.E. 401 (evidence is relevant if: a) it has any tendency to make afact more or less probable
than it would be without the evidence; and b) the fact is of consequence in determining the action).
A trial court may, however, properly exclude evidence if its probative value is outweighed by the
danger of unfair prejudice or confusion of or misleading the jury. See Pa.R.E. 403 (the court may
exclude relevant evidence if its probative value is outweighed by adanger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence); see also Vetter v. Miller, 157 A.3d 943, 949 (Pa.
31
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Super. 2018) (explaining that generally, for the purposes of this evidentiary rule, "prejudice" means
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an undue tendency to suggest adecision on an improper basis).
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counterclaim being asserted by Dr. Hoorfar against Appellants for their breach of the APA, and
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specifically, probative of their obligations to pay him for dental services to be provided to him
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Q• consistent with ¶ 14 (Professional Service Agreement), and Exhibit E. The undersigned did not
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find that this probative value was outweighed by any risk of danger of unfair prejudice, or
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document did not mean that there were any labs actually associated with these particular services.
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In fact, at no point in time did any party introduce any evidence of any particular labs that would
oa properly have been deducted from the 40 percent of gross collection receipts attributed to Dr.
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Hoorfar's dental services for which he was not paid. • •
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0• Furthermore, Dr. Hoorfar testified both before and after the admission of Exhibit P-11 that
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o the document did not reference any labs or any deduction from the 40 percent of gross collection
.
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0
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o receipts attributed to the dental services he provided after the Closing Date. N.T. 7/14/21, at 69-
G
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m 71. Thus, the jury not only heard during the trial what the formula was that applied to calculate
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o¢ amounts to be paid to Dr. Hoorfar for dental services provided by him under the PSA, which
a•
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73o document itself was admitted into evidence, but also heard from Dr. Hoorfar that Exhibit P-11 did
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not reference any labs or deduction of any amounts for labs. N.T. 7/14/21, at 69-71.
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• • o ' As discussed, infra, Ms. Gatsch testified that she reduced her calculation of what was owed to
O
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m Dr. Hoorfar for dental services provided by him by $ 1,961.20 in "lab fees." N.T. 7/15/21, at 28.
However, Ms. Gatsch offered no evidence of the labs for which she calculated this figure (e.g.,
a
(mouth guard fabrication for patient X, implants for patient Y).
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Moreover, to the extent that Appellants still believed there was any possible confusion on
the part of the jury as to how the compensation for Dr. Hoorfar was to be calculated given the
absence of any labs referenced on Exhibit P-11, this was something that Mr. Dudeck could easily
address through the testimony of his client and/or on cross-examination of Dr. Hoorfar.
The admission of Exhibit P-11 also did not violate the Best Evidence Rule.
[The Best Evidence] rule requires a party who seeks to prove a
writing for the purpose of establishing its terms to produce the
writing unless the nonfeasability of production is satisfactorily
established. Warren v. Mosites Construction Co., 253 Pa.Super.
395, 385 A.2d 397 ( 1978). Application of the rule is limited to those
situations where the contents of the document are at issue and must
be proved to make acase or provide adefense. Mars v. Meadville
Telephone Co., 344 Pa. 29, 23 A.2d 856 ( 1942); Perry v. Ryback,
302 Pa. 559, 153 A. 770 ( 1931); Ragnar Benson, Inc. v. Bethel Mart
Associates, 308 Pa.Super. 405, 454 A.2d 599 ( 1982); Warren v.
Mosites Construction Co., supra. Where the contents of adocument
are merely evidence of, rather than material to, issues in the case the
rule is inapplicable. Durkin v. Equine Clinics, Inc., 313 Pa.Super.
75, 459 A.2d 417 ( 1983).
Hamill-Quinlan, Inc. v. Fisher, 591 A.2d 309, 310 (Pa. Super. 199 1)
Here, the document which is the Best Evidence of the agreement between Appellants and
Dr. Hoorfar regarding the dental services he was to provide after the Closing Date and the formula
by which his compensation was to be calculated is the APA and Exhibit E (the PSA). Prior to
Exhibit P-11 being marked for identification, the APA, including Exhibit E, had already been
marked and moved into evidence. See Exhibits P-2 and P-6. Thus, the Best Evidence Rule would
not be implicated in this case insofar as the Best Evidence already had been admitted, and further,
Exhibit P-11 was merely evidence of Dr. Hoorfar's claim for breach of the Professional Services
Agreement. See Hamill-Quinlan, 591 A.3d at 310.
For all of the foregoing reasons, the Court properly overruled Appellants' objections and
admitted Exhibit P-11.
33
E. The Trial Court Did Not Err or Abuse its Discretion When it Denied
Appellants 'Motion for Compulsory Nonsuit as to Appellees' Claim for Breach
of the Professional Services Agreement
Appellants also take issue with the Court's decision to deny their motion for compulsory
nonsuit as to Appellees' claim for breach of the PSA. A motion for compulsory nonsuit allows a
defendant to test the sufficiency of aplaintiffs evidence and may be entered only in cases where
it is clear that the plaintiff has not adduced sufficient evidence to establish all of the elements
necessary to maintain acause of action. See Pa.R.C.P. No. 230.1. In deciding the motion, acourt
may consider only evidence introduced by the plaintiff and any evidence favorable to the plaintiff
that has been introduced by any defendant prior to the close of the plaintiff's case. Additionally,
atrial court must give the plaintiff the benefit of all reasonable inferences arising from the evidence
presented and must resolve any conflict in favor of the plaintiff. See id.; see also Bugosh v. Allen
Refractories Co., 932 A.2d 901, 913 (Pa. Super. 2007) (citing Rachlin v. Edmison, 813 A.2d 862,
868 (Pa. Super. 2002) (
en banc) (
quoting Parker v. Freilich, 803 A.2d 738, 744 (Pa. Super. 2002),
appeal denied, 573 Pa. 659, 820 A.2d 162 (Pa. 2003)). Importantly, "if the trial court denies the
motion for compulsory nonsuit and the moving defendant proceeds with his/her defense, then the
court's ruling is not appealable, and the issue must be renewed during the post-trial phase as a
request for judgment n.o.v." Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., 933
A.2d 664, 668 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008).
In this case, at the close of Appellees' case-in- chief, Mr. Dudeck moved for acompulsory
nonsuit on Dr. Hoorfar's claim that Appellants had breached the PSA when they failed to pay him
for dental services provided after the Closing Date. N.T. 7/14/21, at 79. Both attorneys made
argument and the undersigned denied the motion finding that there was sufficient evidence
introduced for the claim to go to the jury.
34
Thereafter, Mr. Dudeck introduced evidence in defense of this and Appellees' other breach
of contract claims and in support of Appellants' own breach of contract counterclaims. For
example, in defense of Appellees' claim for breach of the PSA, Mr. Dudeck marked acopy of the
PSA as Exhibit D-3, moved that document into evidence, and then proceeded to question Ms.
Gatsch about its terms. N.T. 7/14/21, at 107. Mr. Dudeck also questioned Ms. Gatsch about how
compensation for Dr. Hoorfar was to be calculated under the PSA. N.T. 7/14/21, at 109-10. Mr.
Dudeck also marked areport showing the total collections brought in for Dr. Hoorfar's services
after the Closing Date as Exhibit D-12, moved Exhibit D-12 into evidence, and after it was
admitted, questioned Ms. Gatsch on that document. N.T. 7/15/21, at 25-26. Ms. Gatsch testified
that she ran the report to "calculate Dr. Hoorfar's payroll." N.T. 7/15/21, at 27. She also testified
as to how she came to the figure she agrees is owed to Dr. Hoorfar for his services under the PSA.
N.T. 7/15/21, at 27-28.
Once Appellants decided to move forward with adefense on Dr. Hoorfar's claim for breach
of the PSA, the Court's decision on Appellees' motion for compulsory nonsuit became moot.
Therefore, it is not properly the subject of this appeal. See Northeast Fence, 933 A.2d at 668; see
also F. W. Wise Gas Co. v. Beech C.R. Co., 263 A.2d 313, 315 (Pa. 1970) (holding that where
defendant chose to present a defense after court denied defendant's motion for nonsuit, the
correctness of the court's ruling on the nonsuit became moot and the issue of whether the claim
was properly submitted to the jury was not properly before the appellate court).
Also, even if Appellants had not presented adefense and this issue was properly before the
Superior Court, it still lacks merit insofar as Appellees introduced sufficient evidence in their case-
in-chief for this claim to go to the jury. For example, Dr. Hoorfar introduced evidence of the PSA
between him and Appellees. See Exhibit P-2. He also testified to the following:
35
• He provided services under the PSA after the Closing Date.
• He provided those services for approximately three months until sometime in
December 2018.
• At some point Appellees stopped paying him for those services.
• He was entitled to 40 percent of net collections and that he was able to access
information to show him what that figure would be for which he was not paid.
• Exhibit P-11 was an aging report that he ran for the work he had done after the
Closing Date.
• He calculated the amount owed to him for the services for which he was not paid
under the PSA as $ 10,360.50.
N.T. 7/13/21, at 142, 145-48, 152.
Based upon the foregoing, Appellants made out aprimafacie claim for breach of the PSA.
Accordingly, the Court properly denied Appellants' motion for a compulsory nonsuit and
permitted the claim to go to the jury.
F. The Trial Court Did Not Err or Abuse its Discretion When it Ruled that the
Written Accounts Receivable Aging Report was Not Part of the Parties'
Contract
Appellants also complain that the Court committed error and/or abused its discretion
when it ruled that the written accounts receivable aging report provided to Appellants on the
Closing Date was not part of the parties' integrated contract. At the beginning of day two, in the
context of discussing Appellees' proposed point for charge No. 2, Appellants took the position
that the written accounts receivable aging report which was provided to Appellants at closing and
used to calculate the $78,080.00 figure in the Promissory Note was actually part of the parties'
contract. N.T. 7/14/21, at 4-10. Mr. Burns opposed this position and argued that it was another
attempt by Appellants to introduce parol evidence. N.T. 7/14/21, at 8-10. Mr. Burns represented
to the Court that the contract between the parties included only the APA, Amendment to APA,
Promissory Note and the exhibits attached to those documents (including the signed PSA). N.T.
7/14/21, 90-91. The Court took the issue under advisement and gave Mr. Dudeck an opportunity
36
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to present legal authority in support of his position that the document, which was not attached as
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an exhibit to any of the agreements signed by the parties, constituted part of the parties' contract.
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N.T. 7/14/21, at 9-10. In response to that offer, Mr. Dudeck later provided the Court with the
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case of Estate ofSinclar v. Levin, 38 Pa. D & C. 5th 319 (Phila. Ct. Com. Pl. 2014), affd, 122
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A.3d 1127 (Pa. Super. 2015) and pointed the Court to the following language contained therein:
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signed and: 1) the signed writing is physically attached to the unsigned writing; 2) the signed
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writing refers explicitly to impliedly to the unsigned writing; or 3) based on examination of all
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the writings, the signed writing was signed with reference to the unsigned writings." Estate of
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Sinclar, 38 Pa. D. & C. 5th at 324 (emphasis added). While the authority provided by Mr.
oa Dudeck is an accurate statement of the law, the Court found it did not apply in this case.
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First, it is undisputed that the written accounts receivable aging report was not physically
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m to any unsigned writing between the parties. Although Exhibit B to the APA does reference that
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o¢ Hoorfar Dental would provide Appellants with "awritten accounts receivable aging report," that
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document at issue is not an unsigned promissory note. Indeed, it was not an agreement,
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a instrument, or for that matter, even an email between the parties. Rather, Exhibit B to the APA
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receivables were for aparticular period of time. Furthermore, this particular document could not
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and did not exist until July 31, 2018. Thus, it could not be referred to, explicitly or implicitly, in
the APA.
Third, the APA was not signed with reference to an unsigned writing. Again, the
document at issue was not a "writing" between the parties but merely acomputer printout. And,
again, it did not and could not exist until July 31, 2018. Consequently, the parties could not have
relied upon or considered its contents when they signed the APA on June 14, 2018.
Moreover, accepting Appellants' position that the July 31, 2018 written accounts
receivable aging report was part of the parties' contract would have required the Court to ignore
the clear intent of the parties as evidenced by the written agreements between them. It is firmly
settled that the intent of the parties to awritten contract is contained in the writing itself.
Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993), appeal denied, 637 A.2d 287
(1993). "It is the intention of the parties which is the ultimate guide, and, in order to ascertain
that intention, the Court may take into consideration the surrounding circumstances, the situation
of the parties, the objects they apparently have in view, and the nature of the subject-matter of
the agreement." In re Estate of Quick, 905 A.2d 471, 474-475 (2006) (quoting Hindman v.
Farren, 44 A.2d 241, 242 ( 1994)) (emphasis omitted).
Here, the parties entered into the APA on June 14, 2018. The APA included an
integration clause which states as follows: "This Agreement and the exhibits hereto contain the
final and entire agreement between the parties and shall not be bound by any terms, conditions or
representations not contained herein." See APA at ¶ 17.7. The APA also provided that the
"Agreement may not be modified, amended, altered, supplemented, or canceled except pursuant
to the terms of an instrument in writing signed by the parties hereto." Id. at 117.9.
38
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Pursuant to ¶ 17.9, the parties did enter into and signed an Amendment to APA on July
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31, 2018. That document made reference to the manner and method by which RG Dental was to
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also explicitly referenced aPromissory Note to be signed by Appellants and stated that the form
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of that Promissory Note to be signed was attached as Exhibit F. See id. at ¶ 1. Notably, and
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provided to Appellants on that date, and the Amendment to the APA was not signed until that
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date, the Amendment to APA makes no reference whatsoever to the written accounts receivable
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aging report. Certainly, if the parties wanted to include that document as part of the contract
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after it was generated on July 31, 2018, they could have referred to it in the Amendment to the
oa APA and/or even just attached acopy of it to the Amendment to APA as an exhibit. They chose
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not to do so. See Exhibit P-4.
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a part of the parties' contract. See id. Similarly, this position was not referenced anywhere in the
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Response to the Motion in Limine. It also was not raised during oral argument as areason why
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this particular document should be permitted to be introduced at trial.
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the Court did not err or abuse its discretion when it determined that the contract did not include
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G. The Trial Court Did Not Err or Abuse its Discretion when it Denied
Aonellants 'Motion for Mistrial
Appellants next contend that the Court erred or abused its discretion when it did not grant
Mr. Dudeck's motion for amistrial. A mistrial may be required where counsel makes "irrelevant
remarks ... which are reasonably likely to have adirect and prejudicial effect on the award of
damages." Narciso v. Mauch Chunk Twp. 87 A.2d 233, 235 (Pa. 1952); Buttaccio v. American
Premier Underwriters, Inc., 175 A.3d 311, 321-22 (Pa. Super. 2017). However, to warrant a
mistrial, such remarks must be beyond correction by any admonition which the court may give the
jury. See Tedesco v. Mun. Auth. ofHazle Twp., 799 A.2d 931 (Pa. Commw. Ct. 2002) (explaining
that mistrial is required where remarks are beyond correction by an admonition which the Court
may give the jury); see also Ferguson v. Morton, 84 A.3d 715, 724-26 (Pa. Super. 2013) (reversing
grant of new trial where trial court had taken prompt curative action with respect to counsel's
improper statements and jury verdict was supported by the evidence and not excessive).
In this case, the remarks made by Mr. Burns which Appellants now contend required the
undersigned to declare amistrial occurred during the direct examination of Ms. Gatsch, and after
Mr. Dudeck asked aseries of questions to which Mr. Burns objected based upon the Court's ruling
on the Motion in Limine. N.T. 7/14/21, at 136. As referenced above, the Court immediately
dismissed the jury before Mr. Burns could say anything further or Mr. Dudeck could respond to
Mr. Burns' remarks. As soon as the jury was out of the courtroom, Mr. Burns immediately
withdrew his request. Mr. Dudeck, however, argued that the trial had to stop. Specifically, he
stated:
He made that motion. It's now told to the jury. We don't have —
we are not here in atrial that is basically being done in amanner
that's supposed to be done. They have that in their head now. You
can't unring that bell. We are done. I'm sorry. It stinks that he said
that, but that's where we are.
40
N.T. 7/14/21, at 136. Notably, Mr. Dudeck did not raise any specific argument that his clients
were prejudiced or could be prejudiced by Mr. Burns' comments or his request for amistrial.
Rather, he argued only that it was the fact of Mr. Burns having requested amistrial in the presence
of the jury as the basis for his request. N.T. 7/14/21, at 136.
Furthermore, in light of the circumstances and the record which existed up until that point
in time, a mistrial was not necessary insofar as the remarks were not beyond correction by a
curative instruction to the jury. Also, the Court carefully considered the circumstances in crafting
its curative instruction. The undersigned considered, inter alia, how the trial had proceeded up
until that point in time, the frequency and nature of the comments made by each of the attorneys,
and the prior instructions that had been given to the jury.
For example, in this case, although Mr. Burns objected on several occasions, he had not
previously made any comments similar to these in front of the jury. Additionally, the Court already
had instructed the jury multiple times that comments made by lawyers are not evidence and not
something to be considered when coming to averdict. The Court considered that both attorneys
had regularly and repeatedly asserted objections throughout the trial and also that Mr. Burns'
comments were made out of frustration with Mr. Dudeck's repeated attempts to introduce parol
evidence. Based upon all of these considerations, the Court gave the following instruction
immediately upon the jury's return to the courtroom:
Before Idismissed you, Mr. Burns made some statements and a
request. And Iwant to direct you that you are to disregard them in
their entirety. You are not to consider them at all. Just like anything
else that an attorney says, like an objection or an argument or an
opening statement, that is not evidence. So you are not to take into
consideration anything that was said by him before you were
immediately dismissed. It has nothing to do with whether one party
or the other breached acontract. And in this case, both parties are
41
alleging that the other breached acontract. So Iwant to make very
clear my directive to you. You are to disregard those statements in
their entirety. For a few reasons. The first is because it's not
evidence. It shouldn't be considered by you in considering the
parties' claims. Secondly, Iwant to make clear that Mr. Burns
immediately withdrew those requests and statements after you left
the room. That's on the record. You just weren't here.
Additionally, and as you probably already observed, litigation can
be stressful and emotions can run high at times. And sometimes
emotions can make the attorneys act like they are under stress. And
Ithink you have seen that from both sides today. Now, Ialso want
to make sure that you recall my earlier instructions about objections.
Again, objections are not evidence. Questions that's asked itself.
Those are not evidence. It's the answer to the question. And, of
course, when there is an answer to aquestion, then you have to take
the question into consideration in determining how to evaluate the
answer, obviously. You have to put it into context. But when
questions are asked and there's an objection and Isustain that
objection, then you are not to consider the question either. And if
someone started to answer that question, you are to disregard the
answer because Isustained the objection. Both attorneys have made
objections throughout this trial. And as Iexplained earlier, they
have jobs to do. They are advocates for their clients. They also have
the job of making sure, from their perspective, only appropriate
admissible evidence is presented to you. And the way for them to
prevent evidence they don't believe is admissible to be presented to
you is to make an objection. So you are not to hold against either
party or their lawyers the fact that they are making objections.
N.T. 7/14/21, at 143-45. The Court also then went on to give the jury adetailed instruction on the
Parol Evidence Rule.
Based upon the record before it, the immediate action taken by the Court was appropriate
and sufficient to address the situation. Accordingly, the Court did not err or abuse its discretion in
denying Mr. Dudeck's motion for amistrial.
H. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Admit
Exhibit D-16
Appellants also take issue with the Court's decision not to admit Exhibit D-16 into evidence.
During the direct testimony of Ms. Gatsch on day two of the trial, Mr. Dudeck identified as Exhibit
42
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estimate to replace apanoramic x-ray machine for $23,000.00. N.T. 7/14/21, at 211. Mr. Burns
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o= immediately objected. N.T. 7/14/21, at 208. Given that it was late in the afternoon, the
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undersigned chose to dismiss the jury for the day and then address the objection with counsel
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outside its presence. N.T. 7/14/21, at 208-09. After the jury was excused, the Court heard Mr.
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Burns on his objection to Exhibit D-16. Mr. Burns argued that the document was not admissible
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because it was merely an estimate (as compared to an invoice), was dated July 4, 2021, just
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also objected on the grounds of relevance arguing that replacement of the equipment was not an
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appropriate remedy under the parties' contract. N.T. 7/14/21, at 210-11.
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In response, Mr. Dudeck argued that he only just received the document on July 4, 2021. Mr.
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Dudeck agreed that it was only an estimate and also that the piece of equipment which it referenced
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it was appropriate for the jury to consider for purposes of calculating damages. N.T. 7/14/21, at
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211-13. 12
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The Court took the matter under advisement and offered Mr. Dudeck an opportunity to
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provide the Court with legal authority which substantiated his position that the estimate could be
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properly considered for purposes of calculating damages even though it did not evidence any actual
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costs incurred. N.T. 7/14/21, at 213. The next day, the Court heard further argument. Mr. Burns
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estimate and not an actual invoice. N.T. 7/14/21, at 190-208.
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and also that because it was not exchanged in discovery, his clients were denied the opportunity to
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evaluate it or obtain an expert to rebut it. He also raised that it was not certified by arecords
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o= custodian and also that it purported to be evidence of damages for acircumstance allegedly existing
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three years after this transaction occurred. N.T. 7/15/21, at 4. In response, Mr. Dudeck argued
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admissible, and reiterated that he gave Mr. Burns the document on the same date that he received
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it. N.T. 7/15/21, at 5-6. 13
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The undersigned reasoned that insofar as the document is an estimate and not apaid invoice, its
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probative value would be outweighed by prejudice and also arisk of confusing/misleading the
jury. Furthermore, the Court also noted that it was hearsay insofar as its contents were being
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offered for the truth of the matter asserted.
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Exhibit D-16 based upon its untimely identification in violation of both the Agreed Case
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Management Order and the Pre-Trial Order. Mr. Dudeck stated during argument on this issue that
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"[e]veryone knew this panoramic was not working," and yet, his client did not obtain an estimate
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for its repair until July 4, 2021— nine days before the start of trial. N.T. 7/15/21, at 5. The Agreed
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Case Management Order, however, required the identification and exchange of all exhibits no later
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than February 28, 2021. Mr. Dudeck offered no argument as to why his client was unable to obtain
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m statement that the parties did agree to the authentication of Exhibit D-16 but does note that on
day one of the trial, in the context of discussing agreements to exhibits, Mr. Burns did
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specifically mention that he objected to this document. N.T. 7/13/21, at 13.
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to obtain an estimate prior to June 8, 2021, when Appellants filed their Pre-Trial Memorandum,
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which also required the parties to identify all exhibits to be introduced at trial or risk preclusion of
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Based upon the foregoing, the undersigned was well within her discretion to preclude
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admission of Exhibit D-16 and/or any testimony thereon. Accordingly, the Court did not err in
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doing so.
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I. The Trial Court Did Not Err or Abuse its Discretion When it Granted and Did
Not Remove Appellees' Motion for Compulsory Nonsuit as to Appellants'
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Next, Appellants complain that the Court erred when it granted and did not remove
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Appellees' request for a compulsory nonsuit on Appellants' breach of contract counterclaim
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where the factfinder, viewing all the evidence in favor of the plaintiff, could not reasonably
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In this case, Appellants' breach of contract counterclaim relating to the accounts receivable
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was based upon the premise that the parties' agreed that the term "aggregate amount" of accounts
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a• receivable meant the aggregate amount that is collectable. N.T. 7/13/21, at 33-34. Consequently,
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in order for the jury to find abreach, it first would have to find that the parties agreed that the term
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"aggregate amount" meant "aggregate amount that is collectable." As discussed above, however,
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in ruling on the Motion in Limine the Court concluded that the term "aggregate amount" was not
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ambiguous, meant that which is reflected by its plain language, and did not mean the aggregate
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amount that is collectible. N.T. 7/13/21, at 39-40. Additionally, based upon these findings, the
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Court ruled that Appellants were barred from introducing any evidence that would vary or explain
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the parties' contract. Insofar as Appellants were barred from introducing any evidence that would
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s'breac h ofcontract counterc l
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the Jury on Appellants 'Requested Points for Charge 1and 3
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when it refrained from instructing the jury on two of Appellants' requested points for charge.
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First, Appellants contend that the undersigned should have instructed the jury as follows:
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A material breach of a contract relieves the non-breaching party from any
continuing duty of performance thereunder. A party also may not insist upon
L performance of the contract when he himself is guilty of amaterial breach of the
aa contract. LJL Transportation, Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962
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A.2d 639 (2007).
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Defendants' Requested Point for Charge No. 1— First Material Breach. Appellants also contend
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follows:
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The duty of good faith and fair dealing is implied in every contract. This implied
mh duty ofgoodfaith andfair dealing applies only to discretionary obligations under
the contract. It does not create new obligations or obligations inconsistent with
o specific terms of the contract. Duties or obligations are discretionary when aparty
m• has some degree of choice in how to perform its obligations under the contract. A
party should not do anything to destroy or injure the other party's right to receive
the benefits of the contract. Therefore, even discretionary duties and obligations
Ch must be performed in areasonable manner consistent with the contract's purposes.
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Defendants' Requested Point for Charge No. 3 — Implied Duty of Good Faith and Fair Dealing
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(emphasis added).
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It is well settled in Pennsylvania that atrial court is to charge only on the law for which
there is some factual support in the record. See e.g., Potochnick v. Perry, 861 A.2d 277, 283
(Pa. Super. 2004) (holding that trial court's refusal to read certain proposed charges was proper
and not abasis to grant anew trial). It is equally well established that atrial court may properly
refuse to give arequested instruction containing even acorrect statement of law where the
court's charge "accurately reflects the law and is sufficient to guide the jury in its deliberations."
See id. (
citing Cruz v. Northeastern Hosp., 801 A.2d 602, 611 (Pa. Super. 2002) (citation
omitted)). In other words, arefusal to give an instruction containing acorrect statement of the
law will not be grounds for anew trial where the substance of that requested charge has
otherwise been covered in the court's jury instructions. See id. (
citation omitted).
With respect to Defendants' Requested Point for Charge No. 1, the record reflects that
Appellants sought to have it read to the jury in the hopes that the jury would conclude that
Appellees first materially breached the APA thereby relieving Appellants of their contractual
obligations to make payments to Dr. Hoorfar under the APA and the Promissory Note. The
timing element of this jury instruction, however, only is relevant if aparty is seeking rescission
of acontract as its remedy. Importantly, the law is clear that in abreach of contract action, the
plaintiff either may rescind the contract and seek restitution or enforce the contract and recover
damages based on expectation. See Smith v. Brink, 561 A.2d 1253, 1255 (Pa. Super. 1989)
(emphasis in original). In this regard, the Doctrine of Election of Remedies prohibits aparty
from seeking inconsistent relief. See Umbelina v. Adams, 34 A.3d 151 (Pa. Super. 2011)
(explaining that aparty cannot maintain at one time in separate counts of one action or in two
separate suits, claims for rescission/restitution on one hand and damages for breach of contract
on the same contract, as these remedies are essentially inconsistent). In other words, one may
47
not terminate contractual obligations and seek the return of his or her consideration based upon
the other party's promise through an action for rescission and restitution and at the same time
seek the full benefits of that promise through an action for breach. See id.
In this case, it was clear from the parties' pleadings and the evidence introduced at trial
that neither Appellants nor Appellees sought rescission of any of the agreements, but instead,
sought monetary damages on their respective breach of contract claims. Thus, there was no
factual support in the record to require the undersigned to charge the jury with Defendants'
Requested Point for Charge No. 1. Accordingly, the Court did not err or abuse its discretion in
refraining from doing so.
Similarly, there was no evidence introduced by either Appellants or Appellees of any
discretionary obligation within the APA, Amendment to APA and/or Promissory Note and/or
that any party had breached adiscretionary obligation under any of those written agreements.
Indeed, even with respect to the Appellants' counterclaim for breach of the APA regarding the
accounts receivable, Ms. Gatsch conceded that the obligation on the part of Dr. Hoorfar was to
produce awritten accounts receivable aging report to her on the Closing Date and that he did in
fact do so. N.T. 7/14/21, at 133-34. Thus, there was no factual support in the record to support
Defendants' Requested Point for Charge No. 3. Accordingly, the Court did not err or abuse its
discretion in declining to instruct the jury thereon. See Potochnick, 861 A.2d at 283.
K. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Enter
Judgment Notwithstanding the Verdict in Favor of Appellants on Appellees'
Claim for Breach of the Professional Services Agreement
Appellants next contend that the Court abused its discretion when it did not enter JNOV on
Appellees' claim that Appellants breached the PSA. Appellants contend that the Court erred when
48
Vj
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U O
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evidence.
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o= With respect to claims implicating the weight of the evidence, there are two bases upon which
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ajudgment n.o.v. can be entered: 1) the movant is entitled to judgment as amatter of law, and 2)
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the evidence was such that no two reasonable minds could disagree that the outcome should have
3 ='
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been rendered in favor of the movant. See Rohm & Haas Co. v. Continental Cas. Co., 781 A.2d
Q•
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1172, 1176 (Pa. 2001) (citations omitted); see also Haan v. Wells, 103 A.3d 60, 69 (Pa. Super.
N U
wa 2014). It is equally well settled that atrial court may award ajudgment notwithstanding the verdict
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"only when the jury's verdict is so contrary to the evidence that it shocks one's sense of justice."
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Haan, 103 A.3d at 70; see also Green v. Johnson, 227 A.2d 644, 644-45 (Pa. 1967) (explaining
that afact finder's verdict is shocking when it is so opposed to the demonstrative facts that looking
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at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason
L
a a rebels against the bizarre and erratic conclusion). It is also well established that aJNOV should
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not be entered where the evidence is conflicting on amaterial fact. See id.; see also Rohm, 781
ol?
.
C_
11
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o A.2d at 1176 (explaining that when the jury is presented with conflicting evidence, JNOV should
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be denied). Instead, the grant of ajudgment notwithstanding the verdict should only be entered in
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aclear case. See e.g., Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932 (Pa.
o¢
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4-
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73
Super. 2013) (holding that trial court did not err in denying JNOV where sufficient evidence
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existed to support jury's verdict).
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a In this case, the jury's verdict was not shocking because there was more than sufficient
13)
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evidence to support it. Indeed, much of the evidence introduced by Appellees in support of this
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claim was not even disputed. For example, both parties introduced evidence of the existence the
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contract between them which is the subject of this claim. Indeed, Appellants and Appellees each
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49
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separately marked and moved the PSA into evidence. See Exhibit P-6 and Exhibit D-3. Similarly,
both Appellants and Appellees introduced evidence that Dr. Hoorfar was to be compensated for
providing dental services to RG Dental after the Closing Date and that he did in fact provide such
services until mid-December 2018. See N.T. 7/15/21, at 25-30; see also N.T. 7/13/21, at 142-143.
Dr. Hoorfar and Ms. Gatsch also both testified as to the formula to be used to calculate the
compensation to be paid to Dr. Hoorfar under the PSA. See N.T. 7/14/21, at 68-70; see also N.T.
7/15/21, at 25-28, 67-68. In fact, it was undisputed at trial that Dr. Hoorfar's compensation for
such dental services was to be calculated consistent with the formula set forth in Exhibit E attached
to Exhibit P-6 and Exhibit D-3; that is, "40 percent of gross collection receipts less 40 percent of
lab." Exhibit Ealso defined the term "lab." That definition set forth various lab charges that might
apply to certain dental work including but not limited to, dentures, implants, mouth guard
fabrications, TMJ appliance. The parties also did not dispute that at some point Appellants stopped
paying Dr. Hoorfar for the work performed by him. Dr. Hoorfar testified that they stopped paying
him under the PSA and that he has not been paid since some time in November 2018. N.T. 7/13/21,
at 145-46. Ms. Gatsch conceded that at some point she applied what she identified as "credits"
and "adjustments" and also withheld monies from his payroll. N.T. 7/15/21, at 27-29.
Indeed, the only real dispute at trial on this particular breach of contract claim related to
the amount of compensation still owed to Dr. Hoorfar. N.T. 7/14/21, at 78-80. Dr. Hoorfar
testified he calculated that amount to be $ 10,360.50 and Ms. Gatsch testified that after various
adjustments and reductions were made by her as set offs, this figure came to $763.89. N.T.
7/15/21, at 29-30.
In support of his claim for an award of damages in the amount of $ 10,360.50, Dr. Hoorfar
testified that he was entitled to 40 percent of net collections and that he was able to access
50
information using his software to show him what that figure would be for which he was not paid.
N.T. 7/13/21, at 147. After Exhibit P-11 was marked for identification, Dr. Hoorfar testified that
Exhibit P- I1was an aging report that he ran for the work he had done after the Closing Date. N.T.
7/13/21, at 148-49. Exhibit P-11 was then moved and admitted into evidence. Dr. Hoorfar was
then asked to review Exhibit P-11 and tell the jury the amount he claimed was still owed to him
under the PSA. Notably, on both direct examination and on cross-examination, Dr. Hoorfar made
clear that the formula gross collection less 40 percent of labs as set forth in Exhibit E is the same
as 40 percent of net collections. Indeed, on cross-examination Dr. Hoorfar explained the formula
as follows: "Essentially it's 40 percent of your net collection. So whatever your collection is, say
you collect $20,000, you are entitled to 40 percent of that. And the net collection meaning is that
if you incurred any lab bills during the time while the work was done, that labs would also be
figured at 40 percent so you are getting anet collection." N.T. 7/14/21, at 68. When Mr. Dudeck
then identified the formula in terms of gross collection less 40 percent of labs as set forth in Exhibit
E, Dr. Hoorfar stated as follows: "Ithink that's what Ijust said." N.T. 7/14/21, at 69 (emphasis
added). 14 Dr. Hoorfar identified the figure owed to him under this formula as $ 10, 360.50. N.T.
7/13/21, at 152.
During her direct examination, Ms. Gatsch presented her own report on which she made
handwritten calculations of what she contended remained due and owing to Dr. Hoorfar under the
PSA. N.T. 7/15/21, at 25-28. That "day sheet report," as she referred to it, was marked for
identification purposes as Exhibit D-12 and moved into evidence without objection. See Exhibit
D-12. Ms. Gatsch testified that Exhibit D-12 showed the total collections that were brought in for
14 Ms. Gatsch also explained in her testimony that another way of saying gross collections less
40 percent of labs is to say net collections — meaning the labs were already taken into
consideration. N.T. 7/14/21, at 109-10.
51
Dr. Hoorfar's services for the period July 31, 2018, to December 18, 2018. N.T. 7/15/21, at 26.
Ms. Gatsch then testified as to her calculations of what she contended remain due and owing to
Dr. Hoorfar for services provided by him under the PSA. Dr. Gatsch made reference to "applied
credits" and "adjustments" but gave no clear explanation as to what those terms referred to, the
source thereof, and/or how they related to Ms. Gatsch's calculation that 40 percent of the gross
collections for work done by Dr. Hoorfar. She testified only that she took the category identified
on the report as "Applied Payments," which itself is not completely readable, and multiplied it by
40 percent to come to $ 11,520.64. She then testified that she reduced that number by $ 1,961.20
which she identified as "40 percent lab fee" and came to afigure of $ 8,355.80. N.T. 7/15/21, at
28; see also Exhibit D-12. Again, however, Ms. Gatsch did not identify the source of information
for this $ 1,961.20 in lab fees. Ms. Gatsch then took the $ 8,355.80 she came to and identified as
the "net pay" and further reduced it by amounts she testified she believed she had a right to
withhold based upon Appellants' claims against Appellees. N.T. 7/15/21, at 28-29; see also
Exhibit D-11. Ultimately, she came to afigure of $763.89. N.T. 7/15/21, at 29.
Based upon the foregoing, there was nothing about the jury's verdict that was so opposed
to the demonstrative facts to baffle the mind. See Green, 227 A.2d at 644-45. Indeed, Appellants
and Appellees agreed there was acontract, abreach thereof, and also that Dr. Hoorfar was entitled
to some amount in damages. Based upon Dr. Hoorfar's testimony, there was nothing shocking
about the jury's verdict and award of $ 10,360.00 in damages. This is the figure he testified he
calculated based upon the software available to him and the formula to which the parties agreed.
While it is true that Ms. Gatsch offered conflicting evidence, the jury had every right to disregard
it as not credible and to credit Dr. Hoorfar's testimony. Accordingly, the Court did not err or abuse
its discretion when it chose not to grant Appellants' request for JNOV.
52
L. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Enter
Judgment Notwithstanding the Verdict on Appellants ' Counterclaim
Rmardine the Sale of the Office Eduipment
Next, Appellants complain that the Court erred and/or committed an abuse of discretion
when it did not enter judgment NOV on Appellants' counterclaim regarding the sale of Hoorfar
Dental's office equipment and supplies. Specifically, Appellants contend that the jury's verdict
on this counterclaim was against the weight of the evidence and the undersigned should have
entered judgment in favor of Appellants and against Appellees in the amount of $ 11,500.00.
Concise Statement at 2.
At trial, Appellants sought to prove that Appellees breached 117.13 and 7.20 of the APA
with respect to the supplies and equipment purchased by Appellants. In support of this claim,
Appellants moved the APA into evidence as Exhibit D-1 and Exhibit D-1 was admitted without
objection. Ms. Gatsch testified that Exhibit A to Exhibit D-1 was an inventory list of all the assets
included in the sale of the dental practice other than the Practice Accounts Receivable. N.T.
7/14/21, at 101; see also Exhibit D-1, Exhibit B. Ms. Gatsch testified that pursuant to the APA,
Appellants were purchasing "all of the assets of the practice including the furniture, the equipment,
the patients, the computers, the x-ray unit. And from my understanding the account receivables
over 90 days." N.T. 7/14/21, at 103.
Ms. Gatsch further testified on direct examination that as to the warranties set forth in ¶¶
7.13 and 7.20 of the APA which state as follows:
The Practice Assets, whether owned or leased by Seller, (i) are in
good operating condition and repair, subject to normal wear and
maintenance, (ii) are useable in the regular and ordinary course of
business, (iii) conform to all applicable laws, ordinances, codes,
rules and regulations, and (iv) are in compliance with all required
consents, approvals and authorizations ("Authorizations") relating
to their use and operation, including, but not limited to any
environmental regulations ....
53
APA, 17.13.
No representation or warranty by Seller in this Agreement nor any
certificate, schedule, statement, exhibit, agreement, document or
instrument furnished or to be furnished to Purchaser pursuant
thereto, or in connection with the negotiation, execution or
performance of this Agreement, contains or will contain any untrue
statement of amaterial fact or omits or will omit to state amaterial
fact required to be stated herein or therein or necessary to make any
statement herein or therein not misleading.
APA, ¶ 7.20. Ms. Gatsch then testified as to certain "issues" she had with pieces of equipment
after the Closing Date. First, Ms. Gatsch testified that they had issues with the panoramic x-ray.
N.T. 7/14/21, at 183. She explained that there are three motors that operate the machine and she
learned that two of the motors needed to be replaced. N.T. 7/14/21, at 183-84. She testified that
one of the motors was replaced and Dr. Hoorfar did pay for that motor. She further testified that
the second motor is no longer available as the unit is so old and they don't make parts for it
anymore. N.T. 7/14/21, at 184. She testified that in order to have aworking panoramic x-ray
machine, she would need to replace the existing one. N.T. 7/14/21, at 184-85.
With respect to other equipment, Ms. Gatsch testified that there also were issues with an
x-ray machine in treatment room 3. N.T. 7/14/21, at 185. She testified that "[t]he unit itself was
old but there were issues initially with the trigger or the button to be able to capture the image
outside of the room." N.T. 7/14/21, at 185. She testified that because the unit was "so old" it was
not easily repairable and "not easy to get parts," so she replaced it with aportable x-ray camera
"rather than replacing the antiquated x-ray units." N.T. 7/14/21, at 184-86. Ms. Gatsch also
testified that she started having problems with the handpieces (high speed drills) soon after the
Closing Date. N.T. 7/14/21, at 187.
54
Thereafter, Mr. Dudeck marked a series of invoices from Henry Schein collectively as
Exhibit D-15. Ultimately, D-15 was admitted for the limited purpose of permitting Appellants to
attempt to prove damages. 15
Ms. Gatsch then testified that she had to pay $459.76 to fix adental chair she had purchased
from RG Dental. Ms. Gatsch conceded that the chair was still under warranty so the $459.76.
represented labor only. N.T. 7/14/21, at 195-96. Ms. Gatsch then testified to an invoice for
$2,177.18 which she explained was for handpieces. N.T. 7/14/21, at 198. Ms. Gatsch did not
testify as to when she purchased these handpieces but the invoice reflects adate of December 17,
2018. See Exhibit D-15.
Ms. Gatsch then testified regarding the topic of supplies. She testified that the supplies in
the office did not meet her expectations represented in the APA. N.T. 7/14/21, at 201-02. She
testified that she had to purchase dental supplies on August 3and August 6, 2018 which cost her
$2,131.93. Ms. Gatsch testified that she purchased dental materials for $ 155.00 on or about August
3, 2018. She further stated that she purchased additional dental supplies for $54.00 and paid $27.00
for needles for the syringes. N.T. 7/14/21, at 204-06. Ms. Gatsch testified that she ordered more
dental supplies on August 27, 2018, and paid $314.26 for those supplies. Ms. Gatsch also testified
that she had to pay $599.99 for an emergency kit that she contended was required by law because
the kit she purchased as part of the sale had expired. N.T. 7/14/21, at 206-07. Finally, Ms. Gatsch
15Mr. Burns did not object to the authenticity of Exhibit D-15 but did object to its admission. Mr.
Bums first objected to the admission of any invoices to the extent that the repairs referenced therein
had not been made but agreed to the admission of the documents for the limited purpose of proving
damages. N.T. 7/14/21, at 192. The Court then admitted Exhibit D-15 but only for the limited
purpose of calculating damages, if in fact, the jury found abreach and damages. N.T. 7/14/21, at
193. After Mr. Dudeck began questioning Ms. Gatsch on Exhibit D-15, he realized that one of the
"invoices" was actually aquote for work that was never performed. The parties agreed that Exhibit
D-15 would be modified such that that estimate would be removed. The parties similarly agreed
that astatement (not invoice) was also be removed from Exhibit D-15. N.T. 7/14/21, at 196-98.
55
testified that she paid $ 588.91 in labor to replace amotor for the panoramic. She testified that this
was not the motor purchased by Dr. Hoorfar and that she had purchased this motor from adifferent
representative. The $ 588.91 represented the labor for this motor. N.T. 7/14/21, at 207-08.
Ms. Gatsch also testified as to an invoice she paid for installation of an amalgam separator,
arepair kit for the vacuum pump, arepair kit for the air compressor and five handpieces. The
invoice was marked as Exhibit D-17 and admitted into evidence. Ms. Gatsch testified that she
paid $ 1,543.00 for the items referenced in Exhibit D-17. Ms. Gatsch did not testify as to when
these repairs were made, and Exhibit D-17 does not have adate on it. Ms. Gatsch testified to
another invoice from Dental Fix which was marked as Exhibit D-18 and admitted into evidence.
Ms. Gatsch testified that Exhibit D-18 related to repairs that were made in March of 2019. She
testified that the invoice is for $290.76, and she paid that amount to Dental Fix. N.T. 7/15/21, at
23-24.
On direct and cross-examination, Ms. Gatsch conceded that the equipment was sold in "as
is" condition. N.T. 7/14/21, at 114; N.T. 7/15/21, at 47. Ms. Gatsch also testified that attached to
the APA was an exhibit setting forth alist of the equipment to be sold and she would have been
able to inspect the equipment prior to the Closing Date. N.T. 7/15/21, at 70. Ms. Gatsch further
conceded that the dental chair that had to be fixed was relatively new and still under warranty.
N.T. 7/15/21, at 64. Ms. Gatsch also admitted that the first time she raised any issues with Dr.
Hoorfar about the equipment (other than the panoramic x-ray for which she agrees he covered the
new motor) was in November 2018, months after the Closing Date. N.T. 7/15/21, at 64-65. Ms.
Gatsch also conceded that she sought to recover for some repairs that were not required until many
months after the Closing Date. N.T. 7/15/21, at 72-75. She further acknowledged that some of
56
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the equipment she bought was old and would eventually need to be replaced. N.T. 7/15/21, at 77-
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78.
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:0 going to be based upon the normal inventory of the seller. N.T. 7/15/21, at 68. Ms. Gatsch
00
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edDr.Hoorf
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s " normali
nventory. " N.T. 7/15/21,
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02) at 68-69.
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g During his testimony on this topic of equipment and supplies, Dr. Hoorfar testified that he
wa sold the equipment on as "as is" basis and understood the "As-Is" paragraph of the APA to mean
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"whatever you get that day is what you get that day" subject to the representations that the
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equipment was in good working order. N.T. 7/15/21, at 107-08. He further testified that he
oa believed the equipment he sold was in good working order as of the Closing Date with the
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exception of the panoramic. He testified that the panoramic was an old piece of equipment and he
aa believed Ms. Gatsch's expectations about it were unreasonabl e. 16 He testified, however, that he
0•
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there was an issue with the trigger on the x-ray arm and he paid to fix that as well. N.T. 7/15/21,
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m at 108-10. Dr. Hoorfar also testified that otherwise, "[n]obody was telling me things weren't
oQ working." He was providing dental services at the new practice and "everything was working."
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N.T. 7/15/21, at 108. According to Dr. Hoorfar, these issues with the equipment were only brought
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to his attention around the same time he was going to discontinue providing dental services. N.T.
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v 7/15/21, at 110-11.
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16Notably, she described this equipment on direct examination as "antiquated." N.T. 7/14/21, at
a 186.
NR• 57
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With respect to handpieces specifically, Dr. Hoorfar testified that rather than spend
$1,000.00 on asingle German handpiece, it was his practice to purchase ten "decent" handpieces
and replace them after three months. N.T. 7/15/21, at 111. He also testified that when he was
advised that RG Dental had some issues with handpieces, he did purchase ten handpieces for them.
N.T. 7/15/21, at 111-12.
As to supplies, Dr. Hoorfar was asked about his understanding of the provision relating
thereto in the APA. Dr. Hoorfar testified that he understood his obligation to mean "whatever the
office operations manager was doing which is keep the office supplied as they needed it." N.T.
7/15/21, at 112-13. He also testified that as of the Closing Date he was not aware of any supply
shortages, and no one raised any issue of shortages with him. N.T. 7/15/21, at 113.
Again, in light of the foregoing evidence, there was nothing shocking or inherently
unreasonable about the jury's verdict in favor of Appellees on this counterclaim. There was more
than sufficient evidence introduced demonstrating that Dr. Hoorfar sold the equipment in agood
working condition, and, to the extent he did not, he paid for those repairs. There was also more
than sufficient evidence for ajury to reasonably conclude that Appellants' complaints of additional
problems were not timely raised and/or were the result of abreakdown in the relationship and not
the equipment itself.
As for the supplies, Ms. Gatsch could not even testify as to what the normal inventory of
Hoorfar Dental looked like, and again, Dr. Hoorfar testified that up until the Closing Date he
maintained operations and supplies in the same manner as he normally would in operating the
practice himself. The jury had the right to credit his testimony over that of Ms. Gatsch. See Haan,
103 A.3d at 72 (explaining that "a fact-finder is permitted to accept all, part, or none of the
testimony, and it is within the fact-finder's exclusive province to resolve conflicts in that
58
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as
testimony"). In light of the record, the jury's verdict on this particular claim cannot be said to be
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o shocking. Accordingly, the Court did not err or abuse its discretion when it chose not to grant
o Appellants' request for JNOV and enter aspecific award in their favor for $ 11,500.00.
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Q M. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Enter
w Judgment Notwithstanding the Verdict on Appellants ' Counterclaim
3 Regarding Dr. Teitelman '
sBonus
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denied Appellants' request for judgment NOV on Appellants' breach of contract counterclaim
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w relating to Dr. Teitelman's bonus. Appellants contend that the jury's verdict with respect to that
0)U counterclaim also was against the weight of the evidence.
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PP sought
g to Prove that Appellees
PP breached
¶¶ 7.19 and 16.1 of the APA
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by failing to pay RG Dental's former employee, Dr. Teitelman, abonus for services Appellants
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contended were provided to Hoorfar Dental prior to the Closing Date. In support of this claim,
a a
o Appellants introduced into evidence two documents relating to the employment of Dr. Teitelman.
N
No The first, marked as Exhibit D-4, was the As si
gnmentf
or Emp l
oyment Agreement ("Ass i
gnment
oV
oa Agreement") and the second, marked Exhibit D-5, was the Employment Agreement for Dr.
Teitelman ("Employment Agreement"). Both Exhibits D-4 and D-5 were admitted into evidence
oa
y without objection. The PSA had already been admitted into evidence. See Exhibits P-2 and D-11.
U y..
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oa In addition, Ms. Gatsch explained that aft er th e Cl os i
ng Dat
e, Dr. Tei
te l
man, a f
ormer
employee of Hoorfar Dental, began to work for RG Dental pursuant to the Assignment Agreement
m 2
`° and the Employment Agreement. Ms. Gatsch testified that in August 2018, Dr. Teitelman came
"t Z to her and asked for abonus payment. N.T. 7/14/21, at 164-65. Ms. Gatsch did not specify when
•a
o in August Dr. Teitelman made this req ues t. M s. Gat
sc h testified that under the Employment
co
r'L
o m
•0) Agreement, Dr. Teitelman was to receive 30 percent of her net collections and that was the bonus
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NR= 59
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she sought from Ms. Gatsch. N.T. 7/14/21, at 165. Ms. Gatsch testified that she believed that RG
Dental was only responsible to pay Dr. Teitelman for services rendered after July 31, 2018, the
Closing Date. N.T. 7/14/21, at 167. Ms. Gatsch testified that Dr. Teitelman was seeking abonus
for services provided by her prior to the Closing Date. Ms. Gatsch testified that she believed
Hoorfar Dental was responsible for such bonus based upon 17.19 of the APA. N.T. 7/14/21, at
167-68. 17 Ms. Gatsch testified that she told Dr. Teitelman to take up her request for abonus with
Dr. Hoorfar, but eventually decided to pay her "as she was my employee and Ididn't want a
disgruntled employee thinking Iowed her money." N.T. 7/14/21, at 168.
Subsequent to this testimony, Mr. Dudeck marked adocument as Exhibit D-11 and asked
Ms. Gatsch to identify the document. Ms. Gatsch identified Exhibit D-11 as documents generated
from her ADP payroll software which she used to calculate the bonus which she testified she paid
Ms. Gatsch. Exhibit D-11 was admitted into evidence without objection. Ms. Gatsch then testified
to the amount of the total bonuses she paid Dr. Teitelman including for services rendered after
July 31, 2018. N.T. 7/14/21, at 172-74. Ms. Gatsch calculated that amount to be $28,214.97.
N.T. 7/14/21, at 173. Notably, Ms. Gatsch was unable to identify the amount of the bonus that
was paid to Ms. Teitelman for services provided before July 31, 2018 until after counsel for
Appellants refreshed Ms. Gatsch's recollection. Upon having her recollection refreshed with
17 Paragraph 7.19 of the APA states as follows:
Seller shall have sole and exclusive responsibility for any duties and
obligations owed to its employees, including any and all vacations,
bonus, and other benefits which have accrued prior the Closing
Date. Purchaser is not assuming any such obligations.
APA, 17.19.
60
Exhibit D-10 (not admitted), Ms. Gatsch testified that the bonus she paid for work performed by
Dr. Teitelman prior to July 31, 2018 was $ 19,775.91. N.T. 7/14/21, at 180-81.
On cross-examination, Mr. Burns reviewed the Assignment Agreement with Ms. Gatsch
and Ms. Gatsch conceded that the Employment Agreement was assigned to RG Dental and Dr.
Teitelman became an employee of RG Dental Group as of July 31, 2018. N.T. 7/15/21, at 51-52.
Ms. Gatsch agreed on cross-examination that she understood the Employment Agreement to mean
that after the Closing Date, RG Dental was responsible to pay Ms. Teitelman her salary,
commission, and bonus. N.T. 7/15/21, at 55, 58-59. She also conceded that any receivables that
came in for work performed by Dr. Teitelman before July 31, 2018 were being collected by RG
Dental. N.T. 7/15/21, at 56.
In defense of this claim, Dr. Hoorfar also testified. Notably, he testified that he did, in fact,
pay abonus owed to Dr. Teitelman. N.T. 7/15/21, at 102. Dr. Hoorfar testified that the calculation
of the bonus is done on a monthly basis, and he explained how Dr. Teitelman's bonus was
calculated each month under the Employment Agreement. N.T. 7/15/21, at 100-03. He further
testified that such bonus is then typically paid in the next paycheck. N.T. 7/15/21, at 101-03. Dr.
Hoorfar acknowledged that Hoorfar Dental had an obligation to pay Dr. Teitelman's bonus for
July 2018. He testified that he waited until all the July 2018 money was in, did the calculation of
her bonus, and then paid her. N.T. 7/15/21, at 102. He testified that he paid her in full for his
obligations to her including any bonus. N.T. 7/15/21, at 102-04.
Based upon this evidentiary record, the jury's verdict in favor of Dr. Hoorfar on this
counterclaim cannot be said to be shocking. There was clearly an evidentiary discrepancy as to
whether Dr. Hoorfar paid to Dr. Teitelman abonus for work performed prior to July 31, 2018. As
factfinder, however, it was within the province of the jury to decide whether to credit Ms. Gatsch's
61
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Teitelman her bonus for work performed prior to July 2018. There was certainly sufficient
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a Rakawsky did not testify or, for that matter, even attend the trial.
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U W | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483561/ | 11/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 8, 2022 Session
STATE OF TENNESSEE v. JEREMY LYNN THORNTON
Appeal from the Circuit Court for Benton County
No. 2019-CR-86 Charles C. McGinley, Judge
___________________________________
No. W2021-01127-CCA-R3-CD
___________________________________
The Defendant, Jeremy Lynn Thornton, was convicted in the Benton County Circuit Court
of possession of methamphetamine with intent to sell or deliver, possession of heroin with
intent to sell or deliver, simple possession of alprazolam, simple possession of marijuana,
possession of drug paraphernalia, and simple possession of diazepam and received an
effective ten-year sentence to be served as one year in confinement followed by nine years
on community corrections. The State appealed the Defendant’s community corrections
sentence, and this court reversed the decision of the trial court and remanded the case for a
new sentencing hearing. On remand, the trial court again imposed an effective ten-year
sentence to be served as one year in confinement followed by community corrections. The
State appeals, claiming that the Defendant is not eligible for community corrections due to
his past pattern of behavior indicating violence and pattern of committing violent offenses.
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which J. ROSS DYER and
JILL BARTEE AYERS, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Michelle Morris-
Deloach, Assistant District Attorney General, for the appellant, State of Tennessee.
Kendall Stivers Jones (on appeal), Assistant Public Defender - Appellate Division,
Franklin, Tennessee, and Paul D. Hessing (at trial), Camden, Tennessee, for the appellee,
Jeremy Lynn Thornton.
OPINION
FACTS
In June 2019, the Benton County Grand Jury returned a six-count indictment,
charging the Defendant with possession of 1.35 grams of methamphetamine with intent to
sell or deliver, a Class B felony; possession of .93 grams of heroin with intent to sell or
deliver, a Class B felony; possession of alprazolam, a Class A misdemeanor; possession of
2.6 grams of marijuana, a Class A misdemeanor; possession of drug paraphernalia, a Class
A misdemeanor; and possession of diazepam, a Class A misdemeanor. The Defendant
went to trial in September 2019, and the jury convicted him as charged in the indictment.1
The trial court held a sentencing hearing on November 19, 2019. No witnesses
testified at the hearing, but the State introduced the Defendant’s presentence report into
evidence.2 According to the report, the then forty-two-year-old Defendant was a high
school graduate and attended Jackson State Community College but dropped out before he
completed his associate’s degree. The Defendant stated in the report that he had been
married to his wife for twenty-two years and that they had three children: eighteen-year-
old twin sons and an eight-year-old son. The Defendant reported that he had health issues,
including high blood pressure and diabetes; that he received outpatient counseling “many
years ago” for depression and anxiety; and that he had been taking medications for anxiety
and depression during the past three years. The Defendant also reported prior use of
marijuana, heroin, methamphetamine, oxycontin, oxycodone, and cocaine and said he had
“a problem” with methamphetamine. He stated that he “stayed clean from meth” for seven
years but that he last used the drug just nine months prior to the presentence report. The
Defendant said he completed thirty days of court-ordered drug treatment at New Life
Lodge in 2005 and eight months of court-ordered drug treatment at Hope Ministries Center
in 2012. The Defendant said he was self-employed in the construction business.
The report showed the following prior misdemeanor convictions for the Defendant:
two 2019 convictions of violating an order of protection, a 2012 conviction of domestic
assault, a 2011 conviction of simple assault, a 2010 conviction of theft, a 2010 conviction
of marijuana possession, and a 2007 conviction of speeding. In 2012, he violated the
1
The trial transcript is not in the appellate record and was not included in the record for
the State’s previous appeal of this case. Therefore, we do not know what evidence was presented
to the jury.
2
This court may take judicial notice of its own records. State v. Lawson, 291 S.W.3d 864,
869 (Tenn. 2009). Due to the nature of this case, we have taken judicial notice of the record from
State v. Jeremy Lynn Thornton, W2020-00159-CCA-R3-CD, 2021 WL 142171 (Tenn. Crim. App.
Jan. 15, 2021).
-2-
probation sentence he was serving for the 2011 assault conviction. The Defendant’s
Strong-R assessment classified his overall risk to reoffend as moderate and concluded that
he had high needs relevant to “Mental Health,” “Alcohol/Drug Use,” “Aggression,” and
“Education” and low needs relevant to “Friends,” “Attitudes/Behaviors,” “Residential,”
“Family,” and “Employment.”
The State argued that the trial court should enhance the Defendant’s sentences based
on his history of criminal convictions or criminal behavior and noted that while he was on
bond for the offenses in this case, he twice violated a protective order that had been
obtained by his wife. State v. Jeremy Lynn Thornton, No. W2020-00159-CCA-R3-CD,
2021 WL 142171, at *1 (Tenn. Crim. App. Jan. 15, 2021). The State also argued that the
Defendant should serve his sentences in confinement. See id. At the conclusion of the
hearing, the trial court sentenced the Defendant to concurrent sentences of ten years for
each felony conviction and eleven months, twenty-nine days for each misdemeanor
conviction and ordered that he serve the effective ten-year sentence as one year in
confinement followed by nine years on community corrections. Id. at *2. The State
asserted that the Defendant was ineligible for community corrections because his prior
convictions of assault, domestic assault, and violating the order of protection established a
past pattern of behavior indicating violence. Id. at *3. The trial court did not address the
prior assault convictions but said the violations of the order of protection were
“‘collateral’” to his case. Id. The trial court affirmed its decision to place the Defendant
on community corrections after serving one year in confinement. Id.
The State appealed to this court, arguing, in pertinent part, that the Defendant was
ineligible for community corrections due to his having “‘a present or past pattern of
behavior indicating violence’ and ‘a pattern of committing violent offenses.’” Id. (quoting
Tenn. Code Ann. § 40-36-106(a)(1)(E)-(F)). A panel of this court reversed the judgment
of the trial court and remanded the case for a new sentencing hearing, explaining,
While great deference is given to the trial court in sentencing matters,
the trial court is required to make minimal findings at best. Here, however,
our review of the record reveals the trial court simply placed the defendant
on community corrections once the State pointed out that the defendant was
not eligible for probation. Contrary to the defendant’s claim that the trial
court found his criminal history did not amount to a pattern of violence, no
such finding was made. Rather, the trial court simply stated that two
violations of a protective order were “collateral” issues. Again, we note that
the trial court made this finding without any proof presented. Additionally,
we are perplexed by the trial court’s finding that these violations, which
occurred while the defendant was released on bond after his conviction in the
instant matter, were “collateral” and not relevant to the defendant’s
-3-
suitability for alternative sentencing, especially one involving release into the
community. Not only did the trial court fail to hear any evidence on the
nature of the defendant’s violations or make a finding as to whether these
violations were violent in nature, but it also failed to make any finding
relating to the defendant’s convictions for assault and domestic violence.
Moreover, the trial court failed to make any findings pursuant to Tennessee
Code Annotated § 40-36-106 as to how the defendant qualified for
community corrections. Based on our review of the record, the trial court
abused its discretion by imposing a sentence of community corrections
without making any findings concerning the defendant’s violations of a
protective order, whether he has a history of violence, and his overall
suitability for community corrections. Therefore, we reverse the finding of
the trial court and remand the matter for a new sentencing hearing consistent
with this opinion.
Id. at *4.
The trial court held the new sentencing hearing on July 13, 2021. The State did not
call any witnesses to testify but introduced into evidence certified judgments from the
general sessions court for the Defendant’s 2011 conviction of assault and his 2012
conviction of domestic assault. According to the affidavit of complaint attached to the
judgment for assault, the Defendant physically assaulted his wife, leaving marks on her
forehead and causing her to be in fear of further bodily harm. The judgment showed he
was charged with domestic assault but pled guilty to simple assault. According to the
affidavit of complaint attached to the judgment for domestic assault, the Defendant
intentionally hit his wife on her head several times, pushed her down, broke her cellular
telephone, and chased her as she was fleeing their residence. The State also introduced
into evidence a copy of a 2012 judgment, showing that due to the Defendant’s arrest for
domestic assault, he was found to have violated the probation sentence he received for his
2011 assault conviction.
The State then introduced into evidence the order of protection form that was filed
by the Defendant’s wife on March 6, 2019. On the part of the form that asked for the
Defendant’s wife to describe the abuse, she wrote:
Physical, verbal, emotional & financial abuse. Respondent is on drugs and
has threatened me and our children repeatedly. He has currently changed
locks on our house and has refused to let us in and threatens us if we try to
get in. He follows & stalks me at work and sends threatening text messages
& phone calls.
-4-
Finally, the State introduced two certified judgments from the general sessions court,
showing that the Defendant pled guilty to violating the order of protection on April 25,
2019, and May 13, 2019.
Elizabeth Winston testified for the Defendant that she worked for community
corrections. The Defendant began serving his community corrections sentence on January
11, 2020, and Ms. Winston began supervising him in September 2020. When the
Defendant entered the program in January 2020, he was required to report to his community
corrections officer twice per week and was drug tested every week. The Defendant
complied with those rules for at least ninety days; therefore, the rules were eased so that he
had to report one time per week and be drug tested every fourteen to fifteen days. During
the Covid-19 pandemic, the Defendant had to report by telephone and was drug tested “as
required.” The Defendant did not have any violations or positive drug tests while he was
in the community corrections program.
Ms. Winston acknowledged that the Defendant was required to be employed. She
said she thought he was self-employed in “maintenance,” and she described him as “a jack
of all trades.” The Defendant had a stable residence and lived with his wife and minor son.
Ms. Winston acknowledged that the trial court allowed the Defendant to go to Florida on
vacation with his family. She said that he “seems happy” and that that he was “very nice.”
On cross-examination, Ms. Winston acknowledged that because the Defendant was self-
employed, she had to rely on his claims about his employment.
At the conclusion of Ms. Winston’s testimony, the trial court called a recess so that
the Defendant could be drug tested. The Defendant’s test was negative for illegal or
nonprescribed drugs.
The Defendant testified that he was forty-four years old and that he did not have any
felony convictions until 2019. He acknowledged having a problem with substance abuse
and said the problem began in his “mid-twenties.” He also acknowledged that his prior
acts of violence involved his wife and said that the incidents occurred because he was “on
drugs.” The Defendant and his wife would argue and fight because she wanted him to be
sober. In 2012, the Defendant violated probation and went to Hope Center for one year.
He stayed sober for three or four years. In 2019, he “started abusing drugs really[] bad.”
The Defendant’s wife and children left home because the Defendant’s wife did not want
their children to be around the Defendant. The Defendant ended up overdosing on drugs
on the side of the road and was “Narcan’d” to save his life. That incident resulted in his
convictions in the present case, and he spent one year in jail. He said that he weighed one
hundred sixty pounds at the time of his overdose but that he weighed two hundred forty-
five pounds at the time of the new sentencing hearing.
-5-
The Defendant testified that in April 2019, he violated an order of protection that
his wife had obtained. The violation occurred because a neighbor saw the Defendant on
the property the Defendant shared with his wife. The Defendant unloaded some materials
from his truck, put them into a shed on the property, and left. Although the Defendant did
not see or talk to his wife during the incident, he was not supposed to be on the property.
In May 2019, the Defendant telephoned the electric company and had the electricity to his
marital home turned off. He said he did so because “I didn’t want it in my name, cause I
wasn’t being able to live there.” The police arrested the Defendant and informed him that
turning off the electricity violated the order of protection. The electricity to the home was
never actually turned off, and the Defendant’s wife never knew the incident occurred.
The Defendant testified that he went to trial in this case, was convicted, and spent
one year in jail. He was released from jail in January 2020 and reconciled with his wife.
He had been living with her since his release from confinement. The Defendant said that
he was no longer using drugs, that he had not made any threats of violence, and that he was
working as a home builder. Two people worked with him, and all three of his sons lived
with him and his wife. The Defendant stated,
I’m much better, much better. I mean I was a disaster, just waiting to happen,
you know, and it happened, and I didn’t expect -- expect all this to come of
it, but it did, and I guess it, you know, it humbled me a little bit, and made
me realize, you know, what all I was doing wrong.
He acknowledged that he did not have any anger issues or violent tendencies when he was
not using drugs.
On cross-examination, the Defendant testified that he had been using drugs “[o]n
and off” for twenty years. His drug use sometimes caused him to be violent toward his
wife. The Defendant’s children may have been present during some of those incidents, but
the Defendant never was violent toward his children. The Defendant stated that he did not
remember pleading guilty to assault in 2011 or domestic assault in 2012 and said that “I’ve
never put my hands on my wife.” The Defendant said he also did not remember violating
his probation sentence for the 2011 assault conviction. The Defendant was convicted of
theft and marijuana possession in 2010, went to drug rehabilitation in 2011, and remained
sober until 2015.
The Defendant acknowledged that in March 2019, his wife obtained an order of
protection against him. According to the order, the Defendant was threatening her,
following her to her place of employment, and sending her threatening text messages. He
stated, “I don’t remember doing all that, but if it was said, I guess it was said.” He
acknowledged that despite the order of protection, he went onto the property he shared with
-6-
his wife. He also telephoned the electric company to have the residential electricity turned
off. The electricity was never actually turned off, and the Defendant’s wife and children
were not living in the residence at the time.
The trial court addressed the sentencing factors listed in Tennessee Code Annotated
section 40-35-210(b). The trial court also addressed the Defendant’s violations of the order
of protection and found that turning off the electricity to the marital residence and being in
a shed on the marital property were not acts of violence. The trial court then addressed the
Defendant’s prior convictions of assault and domestic assault and stated as follows:
Alright. He’s got two Misdemeanor convictions for Simple Assault,
which occurred nearly eight (8) years prior to the situation here. Probation
and rehab in 2012; No new criminal convictions until 2019, when he began
using drugs again.
The Court finds that two Assault convictions, that occurred almost ten
(10) years ago, or eight (8) years before the instant conviction is no indication
of violent behavior or convictions at set [sic] time. There is no pattern there
that would show the Misdemeanors demonstrate a pattern of violence that
would disqualify him.
Accordingly, the trial court found that the Defendant was eligible for community
corrections.
The trial court commended the Defendant for staying “clean,” noting that he passed
his drug test and that he “looks like he’s healthy” and “looks like he’s drug free.” The trial
court again sentenced the Defendant to an effective sentence of ten years to be served as
one year in confinement followed by nine years on community corrections. The following
colloquy then occurred:
[The State]: And for clarification, Your Honor, if I may, while, Your
Honor, referenced not considering the violations of the Order of Protection
violent, the Order of Protection itself indicated violence, which was in March
of ’19. Is, Your Honor considering that in the pattern?
THE COURT: I considered that, and the Court finds that it’s not
prima facie evidence of violence.
[The State]: Thank you, Your Honor.
-7-
[Defense counsel]: We’re looking for the pattern of violence. Not
necessarily the violence.
THE COURT: The pattern of violence, I do not find in this case.
ANALYSIS
On appeal, the State claims that the trial court abused its discretion by sentencing
the Defendant to community corrections because his prior convictions of assault, domestic
assault, and violating the order of protection “clearly demonstrate a past pattern of violent
behavior and of committing violent offenses, which made [him] statutorily ineligible for
community corrections.” The State also claims that the trial court ignored the Defendant’s
previous assault and domestic assault convictions on the basis that they were “somewhat
remote.” The Defendant argues that the trial court did not abuse its discretion because
while his prior convictions of assault and domestic assault may have been violent, the trial
court correctly determined that they did not show a pattern of violence. We agree with the
Defendant that the trial court did not abuse its discretion.
This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388
S.W.3d 273, 79 (Tenn. 2012) (applying the standard to alternative sentencing). In
determining a defendant’s sentence, including the manner of service, the trial court
considers the following factors: (1) the evidence, if any, received at the trial and the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the Administrative Office of
the Courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the Defendant in his own behalf; and (8) the result of the validated risk and needs
assessment conducted by the department and contained in the presentence report. See
Tenn. Code Ann. § 40-35-210(b); see also Bise, 380 S.W.3d at 697-98. The State may
appeal a defendant’s community correction’s sentence pursuant to Tennessee Code
Annotated section 40-35-402. State v. Jeremy Mulkey, No. E2012-02337-CCA-R3CD,
2013 WL 5026912, at *2 (Tenn. Crim. App. Sept. 12, 2013). When the State appeals a
defendant’s sentence, the same standard of review applies, but the burden is on the State to
establish that the sentence is improper. Tenn. Code Ann. § 40-35-402, Sentencing Comm’n
Cmts.
A defendant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The Defendant’s sentences meet
-8-
this requirement. Moreover, a defendant who is an especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered a favorable candidate
for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6). Because the Defendant was convicted of two Class B felonies, he is not presumed
to be a favorable candidate for alternative sentencing. Tennessee Code Annotated section
40-35-103(1) sets forth the following sentencing considerations, which are utilized in
determining the appropriateness of alternative sentencing:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
Moreover, the sentence imposed should be (1) “no greater than that deserved for the offense
committed” and (2) “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).
The Community Corrections Act of 1985 was enacted to provide an alternative
means of punishment for “selected, nonviolent felony offenders in front-end community
based alternatives to incarceration.” Tenn. Code Ann. § 40-36-103(1). Tennessee Code
Annotated section 40-36-106(a)(1) provides that an offender who meets all of the following
minimum criteria shall be considered eligible for community corrections:
(A) Persons who, without this option, would be incarcerated in a
correctional institution;
(B) Persons who are convicted of property-related, or drug- or
alcohol-related felony offenses or other felony offenses not involving crimes
against the person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
-9-
(E) Persons who do not demonstrate a present or past pattern of
behavior indicating violence;
(F) Persons who do not demonstrate a pattern of committing violent
offenses.
As noted by the State, Black’s Law Dictionary defines “pattern” as “[a] mode of behavior
or series of acts that are recognizably consistent.” Black’s Law Dictionary (11th Ed. 2019
Westlaw). An offender is not automatically entitled to community corrections upon
meeting the minimum requirements for eligibility. State v. Ball, 973 S.W.2d 288, 294
(Tenn. Crim. App. 1998).
The State claims that the Defendant was statutorily ineligible for community
corrections under Tennessee Code Annotated section 40-36-106(a)(1)(E) and (F). In
support of its argument, the State relies on several cases in which this court has determined
that a defendant was ineligible for community corrections due to prior convictions. For
example, in State v. Jeffery Russell Utley, No. 02C01-9812-CC-00385, 1999 WL 685672,
at *3 (Tenn. Crim. App. Sept. 3, 1999), this court found that the defendant was ineligible
for community corrections because his two prior convictions of assault and aggravated
assault indicated a past pattern of violent behavior. In State v. Demetria J. Kemp, No.
E2007-02603-CCA-R3-CD, 2008 WL 4790607, at *3 (Tenn. Crim. App. Oct. 31, 2008),
this court agreed with the trial court that the defendant’s two previous convictions of simple
assault demonstrated a present or past pattern of behavior indicating violence and
demonstrated a pattern of committing violent offenses. Finally, in State v. Richard W.
Shelton, No. M2017-00240-CCA-R3-CD, 2017 WL 4004257, at *9 (Tenn. Crim. App.
Sept. 11, 2017), this court stated that the defendant had a past pattern of behavior indicating
violence and that he had demonstrated a pattern of committing violent offenses due to his
two assault convictions and six domestic violence convictions.
All of those cases, though, are distinguishable from the instant case. This court’s
opinions in Jeffery Russell Utley and Demetria J. Kemp do not indicate how recently or
remotely the prior assault and aggravated assault convictions occurred, whereas the prior
assault and domestic assault convictions in this case occurred about eight years prior to the
new convictions. Additionally, the defendant in Richard W. Shelton had two prior assault
convictions and six prior domestic assault convictions. We note that he also had violated
orders of protection nine times. See Richard W. Shelton, 2017 WL 4004257, at *9. The
Defendant in this case had one assault conviction and one domestic assault conviction and
had violated an order of protection two times, both of which were not violent.
The Defendant argues that his case is more akin to State v. Artez L. Moreis, No.
W2002-00474-CCA-R3-CD, 2003 WL 1860537 (Tenn. Crim. App. Apr. 2, 2003), and
- 10 -
State v. David G. White, No. 01-C-019008CC00189, 1991 WL 8521 (Tenn. Crim. App.
Jan. 31, 1991). In Artez L. Moreis, 2003 WL 1860537, at *15, this court stated that the
defendant’s three convictions of simple assault, which occurred seven years prior to the
drug offenses at issue, did not “represent a pattern of violence that would make him
ineligible for community corrections.” In David G. White, 1991 WL 8521, at *2, this court
found that the defendant’s two acts of violence, which occurred “over a period of several
years” prior to his arson conviction, did not establish a present or past pattern of behavior
indicating violence or a pattern of committing violent offenses.
Here, the record reflects that the trial court considered the principles and purposes
of sentencing. Furthermore, in determining whether the Defendant was eligible for
community corrections, the trial court considered his prior convictions of assault, domestic
assault, and violating the order of protection. The trial court found that the 2011 assault
and 2012 domestic assault convictions, both of which occurred eight years prior to the drug
offenses at issue, were too remote to establish a past pattern of violence and that the
violations of the order of protection were nonviolent. Accordingly, the trial court
determined that the Defendant was eligible for community corrections. The trial court
commended the Defendant for not using drugs, noting that he tested negative for drugs and
appeared to be healthy, and ordered that he serve nine years of his effective ten-year
sentence in the community corrections program. Under the circumstances, we cannot say
that the trial court abused its discretion by sentencing the Defendant to community
corrections.
CONCLUSION
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
sentencing decision of the trial court.
_________________________________
JOHN W. CAMPBELL, SR., JUDGE
- 11 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483555/ | DLD-022 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2210
___________
JOSHUA PAYNE,
Appellant
v.
CHARLES BUTTS, Religious Accommodation Review Committee;
CRIG COPPER, Religious Accommodation Review Committee;
MARGARET GORDON, Religious Accommodation Review Committee;
FATIH AKDEMIR, Religious Accommodation Review Committee;
ELISHA FRIENDMAN, Religious Accommodation Review Committee;
MARYANN ROBBINS, Religious Accommodation Review Committee;
TRACY SMITH, Bureau of Treatment Services;
JODY SMITH, Bureau of Treatment Services;
ROSS MILLER, Bureau of Treatment Services;
ULLI KLEMM, Bureau of Treatment Services;
TAMI HOOKER, Bureau of Treatment Services;
JOHN WETZEL, Secretary of Pennsylvania Department of Correction
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3:21-cv-01305)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 3, 2022
Before: JORDAN, SHWARTZ, and SCIRICA, Circuit Judges
(Opinion filed: November 14, 2022)
_________
OPINION*
_________
PER CURIAM
Joshua Payne, proceeding pro se, appeals an order of the United States District
Court for the Middle District of Pennsylvania dismissing his civil rights action. For the
following reasons, we will affirm the judgment of the District Court.
Payne is incarcerated at SCI Mahanoy. He brought this action pursuant to 42
U.S.C. § 1983 against numerous officials of the Department of Corrections, alleging that
they violated his constitutional and statutory rights to religious freedom by refusing to
provide him with meals that are both certified Halal and contain meat. He sought
injunctive relief to address this purported burden on his religious practice, as well as
compensatory and punitive damages. The District Court granted Defendants’ motion to
dismiss Payne’s complaint, concluding that Payne had not sufficiently pleaded the
personal involvement of the Defendants in the alleged harm and that, in any event, he had
failed to state a plausible claim for relief. Payne timely filed a notice of appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
the order granting defendants’ motion to dismiss is plenary. Chavarriaga v. N.J. Dep’t of
Corr., 806 F.3d 210, 218 (3d Cir. 2015). To avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
2
face.” Talley v. Wetzel, 15 F.4th 275, 286 n. 7 (3d Cir. 2021) (cleaned up). We construe
Payne’s pro se filings liberally. Id. When reviewing a complaint challenged by a motion
to dismiss, we disregard formulaic recitation of the elements of a claim, legal
conclusions, and threadbare or speculative assertions; then we evaluate the plausibility of
the remaining allegations. See Lutz v. Portfolio Recovery Assocs., 49 F.4th 323, 327–28
(3d Cir. 2022) (citations omitted). We may summarily affirm if the appeal fails to present
a substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
We agree with the District Court that Payne failed to allege with particularity the
personal involvement of the named Defendants.1 A plaintiff seeking to impose liability
under § 1983 must state with particularity each defendant’s participation in—or actual
knowledge of and acquiescence to—the alleged wrongs. See Rode v. Dellarciprete, 845
F.2d 1195, 1207–08 (3rd Cir. 1988). The complaint must contain a description of “the
conduct, time, place, and persons responsible” for the alleged harm. Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005). A mere hypothesis about a defendant’s knowledge will
not suffice. See Rode, 845 F.2d at 1208.
constitute binding precedent.
1
The District Court dismissed Defendants Smith, Friendman, and Robbins from the
action because they had not been properly served with the complaint, after Payne did not
respond to an order to show cause for his failure to effect service. See Dkt. No. 23 (citing
Fed. R. Civ. P. 4(m)); No. 24 at 15–17. We review that dismissal for abuse of discretion.
See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir. 1996). To the extent
that Payne challenges that ruling on appeal, we conclude that the District Court’s
dismissal was appropriate.
3
Payne’s amended complaint asserted generally that the Defendants are members of
either the Bureau of Treatment Services or the Religious Accommodation Review
Committee, that they “meet monthly,” that “[e]ach defendant plays a role in deny[ing] or
approving non-grooming religious accommodation requests made by the inmate
population,” and that some combination of these groups denied his request for religious
accommodation and his subsequent grievance. Am. Compl. 1–2, ¶¶ 3–5, ECF No. 18; see
also ECF No. 18-1 at 4, ¶ 23 (“Each defendant plays a role in granting and denying
inmate requests for religious diets.”). Although he provides the dates on which his
requests were denied, his broad statement that “[e]ach defendant plays a role” in the
general decision-making process on religious accommodations falls short of the
particularity required and is purely hypothetical as to Payne’s specific request for
accommodation.2 And, as the District Court also noted, liability may not be imposed
solely as a function of respondeat superior or because of a defendant’s role in the
administrative grievance system. See Rode, 845 F.2d at 1207–08.
Finally, because the District Court already received one amended complaint from
Payne and reasonably determined that further amendment would be futile, declining to
grant further leave to amend was proper. See Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002).
2
Furthermore, as the District Court explained, Payne failed to state a claim for relief even
had he alleged personal involvement of any named defendant. See generally Mem. Op.
7–15, ECF No. 24 (citing, inter alia, Williams v. Morton, 343 F.3d 212, 217–19 (3d Cir.
2003) (rejecting inmates’ claim that failure to provide halal meat in lieu of vegetarian
4
Accordingly, we will affirm the judgment of the District Court.
meals violated their First Amendment rights)).
5 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483558/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 19, 2022
*************************
ROBERT INTROINI, * PUBLISHED
*
Petitioner, * No. 20-176V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Entitlement; Tetanus-Diphtheria-Acellular
AND HUMAN SERVICES, * Pertussis (“Tdap”) Vaccine; Transverse
* Myelitis (“TM”).
Respondent. *
*
*************************
Ronald Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
I. INTRODUCTION
On February 20, 2020, Robert Introini (“Petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42
U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleges that he developed transverse myelitis
(“TM”) as the result of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination administered
on February 24, 2017. Amended (“Am.”) Petition at 1 (ECF No. 42). Respondent argued
1 Because this Ruling contains a reasoned explanation for the action in this case, the undersigned
is required to post it on the United States Court of Federal Claims’ website in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). This means the Ruling will be available to
anyone with access to the Internet. In accordance with Vaccine Rule 18(b), Petitioner has 14
days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
2The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
against compensation, stating that “this case is not appropriate for compensation under the terms
of the Vaccine Act.” Respondent’s Report (“Resp. Rept.”) at 2 (ECF No. 33).
After carefully analyzing and weighing the evidence presented in this case in accordance
with the applicable legal standards, the undersigned finds that Petitioner has provided
preponderant evidence that his Tdap vaccine caused his TM, satisfying Petitioner’s burden of
proof under Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1280 (Fed. Cir.
2005). Accordingly, Petitioner is entitled to compensation.
II. ISSUES TO BE DECIDED
Diagnosis and causation are in dispute. Joint Submission, filed Feb. 15, 2022, at 1-2
(ECF No. 60). Petitioner argues his proper diagnosis is TM, while Respondent argues Petitioner
has not provided preponderant evidence that he developed TM. Petitioner’s Motion for a Ruling
on the Record (“Pet. Mot.”), filed Mar. 16, 2022, at 19-25 (ECF No. 65); Resp. Response to Pet.
Mot. (“Resp. Response”), filed Apr. 14, 2022, at 15-21 (ECF No. 70). “Although both parties
agree that [P]etitioner had cervical disc disease, [R]espondent also argues that [P]etitioner’s
neurological condition can be explained by his cervical disc disease.” Resp. Response at 28; see
also Resp. Response at 21-26; Pet. Mot. at 20-21. However, Petitioner maintains he “suffered
both a vaccine-induced demyelinating disease and cervical disc disease,” and “the two diagnoses
. . . are not competing.” 3 Pet. Mot. at 20 (emphasis omitted).
With regard to causation, Petitioner contends he has provided preponderant evidence that
his Tdap vaccine caused his TM, satisfying all three Althen prongs. Pet. Mot. at 25-39.
Assuming Petitioner is able to prove by preponderant evidence that he developed TM,
Respondent argues Petitioner “failed to meet his burden of proof under each of the Althen
prongs.” Resp. Response at 29-36.
III. BACKGROUND
A. Medical Terminology
Transverse myelitis (“TM”) is generally defined as “a neurological disorder causing acute
spinal cord injury as a result of acute inflammation.” Resp. Exhibit (“Ex.”) A, Tab 1 at 1. 4
“[TM] can be acute or a slow subacute process,” with symptoms “develop[ing] over several
hours and then worsen[ing] over one to several days” or “over several weeks.” Id. at 2. TM can
“result[] in motor, sensory, and autonomic dysfunction.” Resp. Ex. A, Tab 3 at 1. 5 Typically,
3Petitioner does not allege that his cervical disc disease is vaccine-related. See Pet. Mot.; Pet.
Reply to Resp. Response (“Pet. Reply”), filed May 2, 2022 (ECF No. 71).
4 Anupama Bhat et al., The Epidemiology of Transverse Myelitis, 9 Autoimmunity Revs. A395
(2010).
5Transverse Myelitis Consortium Working Grp., Proposed Diagnostic Criteria and Nosology of
Acute Transverse Myelitis, 59 Neurology 499 (2002).
2
patients have bilateral weakness and sensory disturbance below the level of the lesion, but
unilateral symptoms have also been described. Resp. Ex. A, Tab 1 at 2. “[Eighty] to 94% of
patients have numbness, paresthesias, or band-like dysesthesias.” 6 Resp. Ex. A, Tab 3 at 1.
“Autonomic symptoms consist variably of increased urinary urgency, bowel or bladder
incontinence, difficulty or inability to void, incomplete evacuation, or bowel constipation.” Id.;
see also Resp. Ex. A, Tab 1 at 2.
“TM is usually accompanied by [magnetic resonance imaging (“MRI”)] signal
abnormality in the spinal cord, [cerebral spinal fluid (“CSF”)] pleocytosis,[7] or both.” Resp. Ex.
C, Tab 4 at 1. 8 The TM Consortium Working Group proposed uniform diagnostic criteria for
idiopathic acute TM:
Resp. Ex. A, Tab 3 at 2 tbl.1. “A diagnosis of idiopathic [acute TM] should require that all of
the inclusion criteria and none of the exclusion criteria are fulfilled.” Id. at 2.
“The pathogenesis of TM is probably of an autoimmune nature, whether TM presents as
an isolated disorder or as part of a systemic disease.” Pet. Ex. 18 at 2. 9 TM has been associated
6Dysesthesia is “an unpleasant abnormal sensation produced by normal stimuli.” Dysesthesias,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=
15186 (last visited Sept. 29, 2022).
7 Pleocytosis is the “presence of a greater than normal number of cells in the cerebrospinal
fluid.” Pleocytosis, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=39556 (last visited Sept. 29, 2022).
8T.F. Scott et al., Evidence-Based Guideline: Clinical Evaluation and Treatment of Transverse
Myelitis, 77 Neurology 2128 (2011).
9 N. Agmon-Levin et al., Transverse Myelitis and Vaccines: A Multi-Analysis, 18 Lupus 1198
(2009).
3
with viral infections, autoimmune disorders, and vaccinations. Id. at 2-3; Resp. Ex. A, Tab 1 at
2-4; Resp. Ex. A, Tab 2 at 3. 10
B. Procedural History
On February 20, 2020, Petitioner filed his petition. 11 Petition (ECF No. 1). Petitioner
filed medical records and an affidavit in June, August, and September 2020. Pet. Exs. 1-12.
Respondent filed his Rule 4(c) Report, arguing against compensation, on December 14, 2020.
Resp. Rept. at 2.
Petitioner filed an expert report from Dr. Salvatore Napoli on April 12, 2021. Pet. Ex.
13. The following day, on April 13, 2021, Petitioner filed an amended petition. Am. Petition.
On July 26, 2021, Respondent filed expert reports from Dr. Olajumoke Fadugba and Dr. Eric
Lancaster. Resp. Exs. A, C.
Thereafter, the undersigned held a Rule 5 status conference on October 26, 2021. Rule 5
Order dated Oct. 29, 2021 (ECF No. 51). The undersigned preliminarily “found that there was
preponderant evidence that [P]etitioner’s diagnosis was a demyelinating illness consistent with
myelitis.” Id. at 2. Additionally, the undersigned preliminarily found Petitioner’s theory sound
and that Petitioner’s onset was appropriate given Petitioner’s theory. Id. at 2-3. The undersigned
ordered that the parties consider settlement negotiations, but by November 2021, Respondent
indicated he was not interested in settlement. Id. at 3; Resp. Status Rept., filed Nov. 23, 2021
(ECF No. 54).
At a status conference on December 21, 2021, Petitioner indicated that he preferred to
resolve this matter through a ruling on the record. Order dated Dec. 21, 2021 (ECF No. 55). On
January 12, 2022, Respondent indicated that he was amenable to resolving this case through a
ruling on the record. Resp. Status Rept., filed Jan. 12, 2022 (ECF No. 56).
Petitioner filed a motion for a ruling on the record on March 16, 2022. Pet. Mot.
Respondent filed a response on April 14, 2022, and Petitioner filed a reply on May 2, 2022.
Resp. Response; Pet. Reply to Resp. Response (“Pet. Reply”), filed May 2, 2022 (ECF No. 71).
This matter is now ripe for adjudication.
Roger Baxter et al., Acute Demyelinating Events Following Vaccines: A Case-Centered
10
Analysis, 63 Clinical Infectious Diseases 1456 (2016).
11 Petitioner appeared pro se until March 23, 2020, when a consented motion to substitute
attorney was filed.
4
C. Factual History
1. Medical History
On February 24, 2017, at 63 years of age, Petitioner presented to his primary care
physician, Dr. James Hedde, for an annual physical. Pet. Ex. 2 at 18-20. Under review of
systems, Dr. Hedde documented that Petitioner did not complain of weakness or numbness. Id.
at 20. Physical examination was normal. Id. at 20-21. At this visit, Petitioner received a Tdap
vaccine in his right deltoid. Id. at 21; Pet. Ex. 1 at 1. Prior to vaccination, Petitioner had no
history of neurological issues. See Pet. Exs. 2-11; Resp. Rept. at 2; see also Pet. Ex. 13 at 1;
Resp. Ex. A at 2.
Petitioner returned to Dr. Hedde on April 7, 2017. Pet. Ex. 2 at 16. Under chief
complaint, Dr. Hedde wrote Petitioner was “having a lot of issues with right arm lately.” Id.
History of present illness documented Petitioner was experiencing numbness and tingling in his
right arm and into the thumb that began on Thursday 12 while Petitioner was in Aruba. Id. Since
then, he has had “trouble with moving [his] arm” with “shots down both sides,” and “now
starting to have weakness in right leg.” Id. Dr. Hedde documented Petitioner received a Tdap
vaccine one month prior. Id. Physical examination revealed Petitioner’s Spurling’s test 13 was
positive. Id. at 18. Dr. Hedde ordered X-rays of Petitioner’s thoracic and cervical spine. Id.
Both X-rays showed “[e]xtensive degenerative changes” and no “signs of a post-traumatic
spondylolisthesis[14] or spondylolysis.”15 Id. at 43-44. Assessment was displacement of cervical
intervertebral disc without myelopathy. Id. at 18. He prescribed a Medrol dose pack and Valium
and referred Petitioner to physical therapy for his neck. Id.
Petitioner returned to Dr. Hedde on July 20, 2017, complaining of continued neurological
symptoms. Pet. Ex. 2 at 13-14. Petitioner reported that he continued to feel pins and needles in
12Thursday was March 30, 2017. In Petitioner’s declaration, he stated he “woke up with
numbness and tingling in [his] right arm” on March 31, 2017. Pet. Ex. 11 at ¶ 3.
13A Spurling test indicates cervical radiculopathy when a patient exhibits “pain radiating into the
upper limp ipsilateral to a rotation position of the head.” Spurling Test, Dorland’s Med.
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=112983 (last visited
Sept. 29, 2022).
14Spondylolisthesis is the “forward displacement (olisthy) of one vertebra over another, usually
of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually
due to a developmental defect in the pars interarticularis.” Spondylolisthesis, Dorland’s Med.
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=46742 (last visited
Sept. 29, 2022).
15Spondylolysis is the “dissolution of a vertebra; a condition marked by platyspondylia, aplasia
of the vertebral arch, and separation of the pars interarticularis.” Spondylolysis, Dorland’s Med.
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=46743 (last visited
Sept. 29, 2022).
5
both his arms with the sensation extending to his thumbs and night spasms in his arms and legs.
Id. at 14. Petitioner reported that the weakness in his arm had subsided; however, when
extending his arm, he would experience a burning sensation. Id. Physical examination noted
Petitioner had positive Spurling’s bilaterally and full strength in his upper extremities. Id. at 15.
Dr. Hedde noted Petitioner continued to have “persistent numbness” and that Petitioner
completed over six weeks of physical therapy.16 Id. Assessment was neuropathy and
displacement of cervical intervertebral disc without myelopathy. Id. Dr. Hedde ordered an MRI
of Petitioner’s cervical spine and lab work and prescribed gabapentin. 17 Id.
The July 26, 2017 MRI revealed
C4/5 mild anterolisthesis, spondylosis, and congenital spinal stenosis
causes severe central canal stenosis, severe right foraminal stenosis, and moderate
left foraminal stenosis. There is abnormal bilateral cervical hemicord signal at
this level, likely due to gliosis.[18] Additional punctate T2 hyperintense signal of
the left cervical hemicord at the C6/7 level is also likely due to gliosis.
Additional levels of spondylosis and congenital spinal stenosis of the
cervical spine cause moderate central stenosis at the C5/6 level, mild central
stenosis at the C3/4 level, and multiple levels of significant foraminal stenosis as
described.
C3/C4 disc shows severe loss of height but with increased T2 weighted
signal within the disc. This is likely due to degenerative disc signal rather than
discitis. If there is any clinical concern for discitis, recommend repeat MRI
imaging of the cervical spine, and possibly with IV contrast to evaluate for
additional spinal infection.
Mild levoscoliosis of the cervicothoracic spine.
Pet. Ex. 2 at 38 (emphasis omitted).
16 “[P]etitioner [] confirm[ed] that he did not participate in formal physical therapy, rather, he did
at-home physical therapy exercises between his April 7, 2017 and July 26, 2017 visits with Dr.
Hedde.” Pet. Response to Resp. Medical Records Requests, filed Dec. 20, 2020, at 1-2 (ECF No.
35).
17Gabapentin is a medication given for “the management of postherpetic neuralgia” and other
nerve pain. Gabapentin, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=19523 (last visited Sept. 29, 2022).
18Gliosis is “an excess of astroglia in damaged areas of the central nervous system.” Gliosis,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=
20342 (last visited Sept. 29, 2022).
6
On August 31, 2017, Petitioner visited orthopedist Dr. Simon Chao, complaining of
“several months of worsening neck pain” and “bilateral arm numbness.” Pet. Ex. 10 at 3.
Petitioner “describe[d] neck pain extending across middle portion of his neck as sharp, aching,
[and] throbbing.” Id. He also complained of “[n]umbness extend[ing] down both arms, into the
hands,” and “problems with balance, coordination, [and] dexterity.” Id. He “denie[d]
bowel/bladder dysfunction.” Id. Physical examination revealed “limited range of motion to
flexion, extension, rotation, and lateral side bends” in cervical spine; brisk deep tendon reflexes
in the bilateral upper and lower extremities; positive Spurling’s bilaterally; positive Hoffman’s19
bilaterally; and motor strength of 4/5 from C5-T1. Id. Petitioner also had good range of motion
in his lumbar spine. Id. Dr. Chao agreed with the MRI findings. Id. Assessment was cervical
myeloradiculopathy in the context of cord signal change and stenosis at C4-5. Id. Dr. Chao
recommended anterior cervical discectomy and fusion (“ACDF”) surgery at C4-5. Id. at 4.
On September 8, 2017, Petitioner saw Dr. Michael Geiger, a neurosurgeon, for a
consultation. Pet. Ex. 9 at 16. Dr. Geiger noted that the onset of symptoms appeared in April
2017 after Petitioner received a “[Tdap] injection in [his] right arm in February.” Id. Petitioner
was not in pain but reported right arm muscle spasms, difficulty walking, numbness, and tingling
or “pins and needles.” Id. Physical examination revealed light touch symmetrical paresthesias in
a C6 distribution in the upper extremities; brisk deep tendon reflexes (3+) in biceps, triceps,
knees, and ankles; positive Hoffman’s bilaterally; and positive Babinski bilaterally.20 Id. at 18-
19. Dr. Geiger diagnosed Petitioner with acute TM and a cervical disc disorder. Id. at 19. After
reviewing the MRI, Dr. Geiger noted that Petitioner’s injury appeared “consistent with a
demyelination pattern or myelitis.” Id. Dr. Geiger recommended ACDF surgery only if other
neurological issues were ruled out. Id. He referred Petitioner for a neurological consultation.
Id.
Petitioner presented to Dr. Salvatore Napoli, a neurologist, on September 20, 2017, for a
consultation. Pet. Ex. 3 at 23. Dr. Napoli noted that after Petitioner’s Tdap vaccine, “his right
arm went dead” while in Aruba. Id. Petitioner “started getting weakness of the right leg” and
night spasms in the right arm. Id. He complained of constant tingling in both arms and thumbs,
but reported his strength returned. Id. Dr. Napoli mentioned Dr. Geiger attributed Petitioner’s
condition to three possible reasons: vaccination-induced myelitis, multiple sclerosis, or stenotic
lesion. 21 Id. Dr. Napoli’s physical examination revealed reflexes were 3 and symmetric,
bilateral Babinski and Hoffman’s, and plantar reflexes downgoing bilaterally. Id. at 24.
19For more information on Hoffman’s sign and central nervous system lesions, specifically
lesions on the spinal cord, see Principles of Neurology 53-55 (Allan H. Ropper eds., 10th ed.
2014).
20 The Babinski reflex is “dorsiflexion of the big toe on stimulating the sole of the foot” that is “a
sign of a lesion in the central nervous system.” Babinski Reflex, Dorland’s Med. Dictionary
Online, https://www.dorlandsonline.com/dorland/definition?id=102809 (last visited Sept. 29,
2022).
Although Dr. Napoli’s medical records reference Dr. Geiger’s three possible causes, Dr.
21
Geiger’s records do not include this information.
7
Dr. Napoli assessed Petitioner with myelitis, demyelinating disease of the central nervous
system, and cervical disc disease. Pet. Ex. 3 at 25. Dr. Napoli noted “[t]here was some evidence
of stenosis around the level of C4 but in discussion with Dr. Geiger he does not believe this is a
compressive lesion and is wondering about possible vaccine and is [sic] myelitis.” 22 Id. Dr.
Napoli also wondered whether there was a downstream lesion as well, at the level of C6. Id. He
ordered additional MRI scans “to assess for any lesions suggestive of demyelination or multiple
sclerosis,” and noted a possibility for spinal tap after assessment of the MRIs. Id. Dr. Napoli
prescribed gabapentin and ordered Petitioner to follow up in 2-3 weeks. Id.
On October 10, 2017, Petitioner underwent brain and cervical spine MRIs. Pet. Ex. 3 at
38-43. Petitioner’s brain MRI findings were interpreted by Dr. Brian Park as “represent[ing] the
sequela of small vessel ischemic disease or demyelinating disease.” Id. at 41 (emphasis
omitted). Dr. Park, in an addendum, wrote “[t]here is no evidence of enhancing mass lesion or
foci to indicate active disease.” 23 Id. at 40. Petitioner’s cervical spine MRI was interpreted by
Dr. Samir Semine, who noted
[c]ord signal abnormality most apparent at the C4-5 level where there is severe
central stenosis. The smaller T2 hyperintense foci inferior to this are not
associated with central stenosis and may be a reflection of primary demyelinating
disease. When compared to the July 2017 study[,] the left C6-7 cord
hyperintensity is unchanged. The right-sided lesion at the same level may be new
or may be better seen due to slice selection. Right C7-T1 cord lesion is not
visualized on the prior study, likely for the same reasons.
Id. at 39 (emphasis omitted). Petitioner’s October 12, 2017 thoracic spine MRI, also interpreted
by Dr. Semine, showed signs of “mild degenerative disc disease,” but “no sign[s] of thoracic
cord demyelination.” Id. at 37 (emphasis omitted).
Petitioner followed-up with Dr. Napoli on October 13, 2017. Pet. Ex. 3 at 21-22. Dr.
Napoli “suspect[ed] that [Petitioner] may have sustained a vaccine induced myelitis. [Petitioner]
does have demyelinating lesion at C4-C5 as well as lesion at a level lower than that around C6-
C7. Temporally it appears to be consistent with a vaccine induced issue.” Id. at 22. He noted
Petitioner’s clinical symptoms appear to be “unchanged with the exception of bilateral hand
tingling and spasticity particularly of the right upper extremity. Id. Dr. Napoli spoke “with
[Petitioner’s] neurosurgeon at previous visit [and] do[es] not suspect that this was a compressive
disc.” Id. Dr. Napoli increased Petitioner’s gabapentin dose and prescribed Petitioner three days
of IV Solumedrol, a steroid, which Petitioner received from October 17 to October 19. Id. at 16,
19-20, 22.
22The “and is” of this quote appears to be a typographical error. In the context of Dr. Napoli’s
records, he may have meant “induced.”
23Dr. Napoli agreed with Dr. Park’s addendum. Pet. Ex. 13 at 4. Likewise, Dr. Lancaster
agreed “there was no evidence of any involvement of the brain.” Resp. Ex. C at 2.
8
Petitioner had another follow-up visit with Dr. Napoli on October 19, 2017. Pet. Ex. 3 at
17. Petitioner “state[d] that the steroids have helped the tingling[] [s]ensation and gabapentin
has helped spasms as well.” Id. Dr. Napoli again noted “[Petitioner] does appear to have
vaccine induced myelitis . . . . [H]is symptoms appear to be consistent with a vaccine induced
demyelination and he also had improvement.” Id. He encouraged Petitioner to undergo further
evaluation regarding Petitioner’s cervical disc disease causing stenosis. Id. Petitioner was
directed to follow up in one month. Id.
At a follow-up visit with Dr. Napoli on November 29, 2017, Petitioner reported “he is no
better.” Pet. Ex. 3 at 14. Petitioner reported “no problems with weakness,” but continued to
experience numbness in both hands and thumbs. Id. Dr. Napoli indicated “[Petitioner’s] main
issue at the current time involves bilateral numbness of the tips of the thumbs along with pain in
the thumb area.” Id. at 15. Dr. Napoli ordered a nerve conduction study (“NCS”) to rule out
carpal tunnel syndrome.24 Id. He also considered referring Petitioner for a hand evaluation to
rule out tenosynovitis.25 Id. Dr. Napoli again noted Petitioner should see a neurosurgeon for
evaluation of his disc, “which was considered severe radiologically.” Id.
On November 30, 2017, Dr. Napoli performed an electromyography (“EMG”)/NCS,
which revealed “electrodiagnostic evidence suggestive of a mild right ulnar mononeuropathy
possibly localized to the elbow based on slight reduction of velocity at the elbow segment” and
“[s]igns of chronic reinnervation were seen in the right bicep and triceps which could be
suggestive of a chronic right C6 radiculopathy.” Pet. Ex. 3 at 12, 28-30.
Petitioner saw Dr. Geiger on December 14, 2017. Pet. Ex. 9 at 14-16. Dr. Geiger noted
the EMG did not show significant carpal tunnel syndrome or radiculopathy. Id. at 14. He
recorded Petitioner’s TM diagnosis. Id. Petitioner continued to have “[p]ersistent thumb
symptoms after steroid infusion. Id. Physical examination remained unchanged since his last
examination. Id. at 15. Dr. Geiger’s assessment was “[a]cute [TM] in demyelinating disease of
central nervous system” and “[c]ervical disc disorder with myelopathy, mid-cervical region.” Id.
at 16. Dr. Geiger and Petitioner discussed ACDF surgery for decompression. Id. Petitioner was
directed to follow up in two weeks. Id.
On December 22, 2017, Petitioner returned to Dr. Geiger. Pet. Ex. 9 at 11. Petitioner
indicated he would like to proceed with decompression surgery. Id. Dr. Geiger indicated Dr.
Napoli agreed after discussion. Id. Petitioner underwent ACDF surgery at the C4-C5 level on
January 3, 2018. Pet. Ex. 5 at 90-91.
24 Carpal tunnel syndrome is “an entrapment neuropathy characterized by pain and burning or
tingling paresthesias in the fingers and hand, sometimes extending to the elbow. Symptoms
result from compression of the median nerve in the carpal tunnel.” Carpal Tunnel Syndrome,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=
110370 (last visited Sept. 29, 2022).
25Tenosynovitis is “inflammation of a tendon sheath.” Tenosynovitis, Dorland’s Med.
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=42914 (last visited
Sept. 29, 2022).
9
Thereafter, he followed up with Dr. Geiger on January 12, 2018, February 2, 2018, and
February 16, 2018. Pet. Ex. 9 at 4-11. At these visits, Petitioner continued to complain of
“persistent hand symptoms of numbness, tingling, [and] pain,” arm numbness, and mild neck
pain (2/10). Id. at 5, 7, 9. Petitioner underwent an MRI of his cervical spine on February 14,
2018, which indicated cord decompression, cord hyperintense signals that remained, and several
areas of stenosis. Id. at 6; Pet. Ex. 5 at 9-10.
At a fourth follow-up visit on April 12, 2018, Petitioner reported “everything [was] the
same,” with “[h]ands feel[ing] alternately hot and cold.” Pet. Ex. 9 at 3. Dr. Geiger noted that
Petitioner’s condition was “likely due to the inciting post-injection reaction since both the area of
the compression and the non-compressed area below are involved.” Id. Petitioner also reported
weakness in his right leg, muscle spasms in his right arm, difficulty walking, numbness, and
tingling. Id. Neurologic examination revealed brisk bilateral deep tendon reflexes in biceps (3+,
4+), knees (3+), and ankles (3+), and positive Hoffman’s and Babinski bilaterally. Id. at 4.
Impression remained acute TM. Id. Dr. Geiger noted Petitioner was “[s]till symptomatic and
myelopathic from the [TM] type syndrome following the injection. Cord compression [was]
resolved.” Id. He referred Petitioner to Dr. Napoli for “treatment of the nerve injury
symptoms.” Id.
On April 13, 2018, Petitioner presented to Dr. Hedde for an annual physical examination.
Pet. Ex. 2 at 8-11. Dr. Hedde listed Tdap as an allergy, writing “? adverse reaction given [TM].”
Id. at 9. Under history of present illness, Dr. Hedde noted Petitioner “[s]till [had] thumbs that
are tingling and at times . . . painful,” felt sensation of “hot and cold in his arms and sometimes
in his back,” had freezing hands, and “fe[lt] like his balance [was] off” when standing. Id. at 10.
Petitioner reported weakness and numbness. Id. Physical examination was normal. Id. Dr.
Hedde’s assessment was neuropathy. Id. at 11. He noted Petitioner has “[TM] which is believed
to be secondary to [the Tdap] vaccine but could be secondary to numerous etiologies.” Id.
Petitioner indicated he would forego future vaccinations. Id.
Petitioner returned to Dr. Napoli on May 9, 2018. Pet. Ex. 3 at 10-11. Petitioner found
gabapentin was helping with his arm spasms, but reported continued hand and arm symptoms,
including a “burning and cold sensation.” Id. at 10 (emphasis omitted). Assessments were
myelitis and demyelinating disease of the central nervous system. Id. at 11. Dr. Napoli stated
“[Petitioner] has what we presume to be a post vaccine myelitis. [Petitioner] has residual
symptoms of bilateral upper extremity spasticity as well as sensory symptoms of the hands.” Id.
Dr. Napoli reviewed Petitioner’s February MRI and considered it unchanged. Id.
Petitioner followed up with Dr. Napoli on November 7, 2018. Pet. Ex. 3 at 8-9. Dr.
Napoli noted Petitioner continued to have pain in his thumbs. Id. at 8. Assessments were
myelitis and cervical disc disease. Id. at 9. Petitioner reported he felt “relatively stable with no
new change.” Id. Dr. Napoli again stated he believed that Petitioner’s issue was “a post vaccine
10
issue.” Id. Dr. Napoli referred Petitioner to a hand specialist 26 for his bilateral thumb symptoms.
Id.
Petitioner saw Dr. Hedde next on July 18, 2019 for an annual wellness examination. Pet.
Ex. 2 at 4-8. Dr. Hedde again noted that Petitioner believed the Tdap vaccine caused his TM.
Id. at 6. Dr. Hedde indicated Petitioner was suffering from cervical radiculopathy for which he
was to continue taking gabapentin as it was “providing benefit.” Id. at 7.
On February 26, 2020, Petitioner followed up with Dr. Napoli. Pet. Ex. 3 at 5-6.
Petitioner reported “that the pain that radiates through his thumbs [was] getting worse. Right
thumb ha[d] started ‘cracking.’” Id. at 5. His thumbs and fingertips were still numb, with sharp
pains intensifying. Id. Dr. Napoli indicated that Petitioner had no improvement following
ACDF surgery. Id. Assessments were demyelinating disease of central nervous system, cervical
disc disease, myelitis, and tenosynovitis. Id. at 6. Dr. Napoli “suspect[ed] previous vaccine
induced myelitis” and indicated Petitioner was now suffering from residual thumb numbness as a
result. Id. He considered tenosynovitis, for which he referred Petitioner to Dr. Tracy Webber,
and repeat brain and cervical MRIs to ensure there were no changes. Id.
On March 11, 2020, Petitioner presented to Dr. Webber for an evaluation of his hands,
specifically “bilateral carpometacarpal (“CMC”) arthritis, left worse than right[,] as well as
numbness and tingling in the thumb and index finger of his bilateral hands consistent with carpal
tunnel syndrome.” Pet. Ex. 8 at 5-6. Dr. Webber wrote, “[Petitioner] has an interesting history
where he had a Tdap vaccination performed around 3 years ago where he unfortunately
developed a [TM] with significant weakness and numbness in his bilateral upper extremities.”
Id. at 6. Petitioner reported “he has had [an] incomplete return of the sensation in his fingertips
as well as pain in the base of his bilateral thumbs.” Id. “He state[d] his left thumb is more
symptomatic than the right. It bothers him with pinching and twisting activities such as opening
a jar or turning [a] key.” Id. He reported no clicking or locking. Id. Dr. Webber also noted that
Petitioner had been a United Postal Service (“UPS”) driver for many years and was constantly
utilizing his thumbs to make deliveries. Id. at 7.
Physical examination revealed Petitioner was tender to palpation over both CMC joints,
had pain with axial load of the CMC but no pain with thumb extension or flexion, had decreased
sensation in the thumbs and index fingers, and had positive Tinel’s 27 of the bilateral wrists but
negative Tinel’s of the bilateral elbows. Pet. Ex. 8 at 7. Dr. Webber obtained X-rays of
Petitioner’s hands and found “Petitioner ha[d] moderate severe left-sided CMC arthritis as well
as some early [scaphotrapeziotrapezoidal (“STT”)] arthritis” and “mild right CMC arthritis.” Id.
26Petitioner confirmed he did not seek care from this hand specialist; rather, he ultimately sought
care from hand specialist, Dr. Tracy Webber, in 2020. Pet. Response to Resp. Medical Records
Requests at 2; see also Pet. Ex. 8.
27 Tinel sign is “a tingling sensation in the distal end of a limb when percussion is made over the
site of a divided nerve. It indicates a partial lesion or the beginning regeneration of the nerve.”
Tinel Sign, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/
definition?id=106510 (last visited Sept. 29, 2022).
11
Assessment was osteoarthrosis of the CMC joint of the thumb and bilateral carpal tunnel
syndrome. Id. Petitioner received a left thumb CMC injection. Id. Dr. Webber noted that with
regard to Petitioner’s bilateral carpal tunnel syndrome, Petitioner’s “picture is somewhat
confusing as he just ha[d] numbness and tingling in the tips of his thumb and index finger,”
which she noted Petitioner believed was related to TM “as sometimes his symptoms do begin
more proximally.” Id. at 8. Petitioner’s examination, however, showed “provocative symptoms
consistent with carpal tunnel syndrome.” Id. Dr. Webber ordered an EMG. 28 Id.
No additional medical records were provided.
2. Petitioner’s Declaration 29
In his declaration, Petitioner indicated that prior to his Tdap vaccination, “[he] was
generally healthy and only sought care for annual physicals.” Pet. Ex. 11 at ¶ 1. He was also
fairly active, participating in a corn hole league in his free time. Id. In retirement, he worked for
Boston College at sporting events and participated in local club activities. Id.
Petitioner received a Tdap vaccination in his right arm on February 24, 2017. Pet. Ex. 11
at ¶ 2. On March 31, 2017, Petitioner “woke up with numbness and tingling in [his] right arm.”
Id. at ¶ 3. Because he was on vacation in Aruba, he was not sure how to seek care for these
symptoms. Id. He “remember[ed] having to eat with [his] left hand,” which he found
“particularly difficult.” Id. After about three days, he was able to get some movement back in
his right arm, but the numbness and tingling continued and went down to his thumb. Id. At this
time, he also experienced weakness in his right leg. Id.
On April 5, 2017, Petitioner returned home from Aruba and made an appointment to see
a physician. Pet. Ex. 11 at ¶ 4. Petitioner saw Dr. Hedde on April 7, and received X-rays that
showed degenerative changes. Id. Petitioner was referred to an orthopedic surgeon, who wanted
to operate immediately. Id. Petitioner requested a second opinion, and Dr. Hedde referred him
to neurosurgeon, Dr. Geiger. Id. at ¶ 5. Dr. Geiger ordered a full body MRI. Id. “After
examining the results, [Dr. Geiger] believed that [Petitioner] had [TM], which [Dr. Geiger] said
can be caused by a Tdap vaccination.” Id. Dr. Geiger referred Petitioner to a neurologist to
confirm Petitioner’s diagnosis. Id. Throughout this time, Petitioner “continued to experience
numbness and tingling, as well as pain and muscle spasms.” Id.
Petitioner saw neurologist, Dr. Napoli, “who agreed that [Petitioner] had a vaccine-
induced myelitis.” Pet. Ex. 11 at ¶ 6. Petitioner received two steroid infusions. Id. Petitioner
“continued to experience pain running down [his] arms and pins and needles in both of [his]
thumbs, as well as spasms in [his] arms and legs.” Id. Nr. Napoli prescribed 300 mg of
gabapentin, which Petitioner felt helped with spasms at night and aided in sleep. Id.
28 From the medical records provided, it is unclear if Petitioner ever underwent this EMG.
29This exhibit is titled “Affidavit” but it is not notarized, and therefore, the undersigned
references it as a declaration.
12
As of August 24, 2020, the day in which Petitioner executed his declaration, he
“continue[d] to experience residual symptoms, including muscle spasms, pain, and right leg
drag.” Pet. Ex. 11 at ¶ 7. Petitioner indicated that these symptoms have affected his ability to
work, hold a glass, and have even prevented him from picking up his grandson for fear of losing
his balance. Id. Petitioner averred that “[p]rior to [his] Tdap vaccination, [he] was in good
health, only [went] to [his] doctor for annual physicals, and rarely [missed] a day of work.” Id.
at ¶ 8. He concluded that “[t]his entire experience has negatively impacted every aspect of [his]
life.” Id.
D. Expert Reports
1. Petitioner’s Expert, Dr. Salvatore Napoli 30
a. Background and Qualifications
Dr. Napoli is a board-certified neurologist. Pet. Ex. 13 at 1; Pet. Ex. 14 at 1. Dr. Napoli
received his M.D. from Albany Medical College, after which he completed an internship and
neurology residency at Albany Medical Center Hospital, followed by multiple fellowships. Pet.
Ex. 14 at 1. He is currently the Medical Director and President of the Neurology Center of New
England. Id. Dr. Napoli has written numerous publications in the field of neurology and
demyelinating diseases specifically, including articles relating to patients with TM. Pet. Ex. 13
at 1; Pet. Ex. 14 at 5. Furthermore, Dr. Napoli is Petitioner’s treating neurologist and is well-
acquainted with Petitioner’s medical history and clinical course. Pet. Ex. 13 at 1.
b. Opinion
Dr. Napoli opined that more likely than not, Petitioner’s February 24, 2017 Tdap vaccine
caused him to develop TM through the mechanism of molecular mimicry. Pet. Ex. 13 at 4-6.
i. Diagnosis
Dr. Napoli opined Petitioner’s injury “is consistent with a vaccine induced [TM].” Pet.
Ex. 13 at 4. He added that Petitioner’s “timeline and onset of his symptoms as well as the
abruptness of his symptoms appear to be most consistent with a vaccine-induced myelitis,”
which is further supported by his imaging findings. Id. He considered Petitioner’s diagnosis to
be “a partial [TM], which can cause unilateral or asymmetric bilateral sensory and motor
dysfunction.” Id. Dr. Napoli noted Petitioner had hyperintense lesions on both the left and right
30 Petitioner submitted one expert report from Dr. Napoli. Pet. Ex. 13.
13
C7-T1 distribution. Id. Dr. Napoli specifically ruled out multiple sclerosis, neuromyelitis optica
(“NMO”), 31 and myelin oligodendrocyte glycoprotein (“MOG”) antibody syndrome.32 Id.
In addition to TM, Dr. Napoli agreed that Petitioner had degenerative disc disease. Pet.
Ex. 13 at 4. He believed “[Petitioner] may have had [] severe stenotic lesion on a chronic basis
and the time course [relevant to that condition] is usually progressive and non-inflammatory in
nature. This can be seen as a natural process of aging as well.” Id. Dr. Napoli found not all of
Petitioner’s symptoms could be explained by degenerative disease. Id. He noted the ACDF
surgery was a preventative measure that was recommended to Petitioner, and he agreed with the
recommendation. Id. at 4-5.
ii. Althen Prong One
Dr. Napoli posited that demyelinating diseases, such as NMO, Guillain-Barré Syndrome
(“GBS”), and TM specifically, can be triggered by vaccination through molecular mimicry. Pet.
Ex. 13 at 5-6; see, e.g., Pet. Ex. 23 at 3, 3 tbl.2 (noting antecedent flu vaccination in two of 23
(9%) monophasic cases of NMO); 33 Pet. Ex. 13 at 5 (opining that “[t]here is a proven model of
molecular mimicry in human neurologic disease,” specifically with “acute motor axonal
neuropathy (AMAN), a form of [GBS] that can occur following infection with the bacterium
Campylobacter jejuni,” which he argued demonstrates that “molecular mimicry is a valid
scientific method” (emphasis added)).
He further explained that the Tdap vaccine specifically can cause TM through molecular
mimicry. Pet. Ex. 13 at 5. “If the antigen present on the vaccine shares any homologies with
host antigen, then immune response will be directed at both the injected antigens and host
antigen leading to an autoimmune response.” Id. Additionally, Dr. Napoli asserted molecular
mimicry “is a well-known response in immunology,” and “[t]he theory of molecular mimicry
relating to autoimmune diseases such as [TM] is well-published and supported in the medical
community.” Id. at 5-6. He cited studies that have linked autoimmune neurologic conditions,
31Neuromyelitis optica is the “combined, but not usually clinically simultaneous, demyelination
of the optic nerve and the spinal cord; it is marked by diminution of vision and possibly
blindness, flaccid paralysis of the extremities, and sensory and genitourinary disturbances.”
Neuromyelitis Optica, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=92610 (last visited Sept. 29, 2022).
32“Myelin oligodendrocyte glycoprotein (MOG)-associated disease (MOGAD) is a rare,
antibody-mediated inflammatory demyelinating disorder of the central nervous system (CNS)
with various phenotypes starting from optic neuritis, via [TM] to acute demyelinating
encephalomyelitis (ADEM) and cortical encephalitis.” Wojciech Ambrosius et al., Myelin
Oligodendrocyte Glycoprotein Antibody-Associated Disease: Current Insights into the Disease
Pathophysiology, Diagnosis and Management, 22 Int’l J. Molecular Scis. 100 (2021),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7795410/.
33Dean M. Wingerchuk et al., The Clinical Course of Neuromyelitis Optica (Devic’s Syndrome),
53 Neurology 1107 (1999).
14
including TM, to vaccinations through the mechanism of molecular mimicry. Id. at 5 (citing,
e.g., Pet. Ex. 16; 34 Pet. Ex. 17; 35 Pet. Ex. 18).
For additional support of his posited theory, he cited Olsen et al. 36 and Agmon-Levin et
al. Pet. Ex. 13 at 5-6. Olsen et al. described a virus-induced molecular mimicry model of
multiple sclerosis in mice. Pet. Ex. 22 at 1. The authors stated “[m]olecular mimicry remains
the major postulated mechanism by which infections may trigger autoimmune tissue damage.”
Id. They explained molecular mimicry occurs when there is “activation of autoreactive T cells
secondary to an encounter with a pathogen by epitopes shared or cross-reactive with self
antigens.” Id.
Specific to TM, Agmon-Levin et al. noted “[t]he pathogenesis of [TM] is mostly of an
autoimmune nature, triggered by various environmental factors, including vaccination.” Pet. Ex.
18 at 1. Agmon-Levin et al. conducted a systematic review of journals published between 1970
and 2009 to analyze cases of TM following vaccination. Id. at 1-2. Their initial search revealed
43 cases, but six were excluded due to insufficient data. Id. at 2. Of the remaining 37 cases, four
were reported after diphtheria-tetanus-pertussis (“DTP”) or diphtheria and tetanus (“DT”)
vaccines, and one was reported after a multiple vaccine regimen that included DT. Id. at 2, 3
tbl.1. “In most of these cases[,] the temporal association was between several days and 3 months
. . . .” Id. at 5. Twenty-seven of the 37 cases (73%) developed symptoms of TM within the first
month after vaccination, three developed symptoms between one and two months after
vaccination, and seven developed symptoms more than two months after vaccination. Id. at 2, 3
tbl.1. For the cases of TM after DTP and DT, onset was between three and 17 days. Id. at 3
tbl.1.
The authors discussed mechanisms by which vaccines may induce TM, and noted
“molecular mimicry between infectious antigens and self antigens is the most common
mechanism.” Pet. Ex. 18 at 4 (emphasis omitted). They added that a “host’s response to a
vaccine, originally generated to produce protective immunity, is similar to its response to an
infectious invasion.” Id. The authors concluded that “the temporal association between []
vaccines and TM, and the possible mechanism associating these phenomena cannot be ignored.
The rarity of TM makes it a difficult disease to study.” Id. at 5.
34R. Lahesmaa et al., Molecular Mimickry Between HLA B27 and Yersinia, Salmonella,
Shigella and Klebsiella Within the Same Region of HLA α1-Helix, 86 Clinical & Experimental
Immunology 399 (1991).
35Kai W. Wucherpfannig & Jack L. Strominger, Molecular Mimicry in T Cell-Mediated
Autoimmunity: Viral Peptides Activate Human T Cell Clones Specific for Myelin Basic Protein,
80 Cell 695 (1995).
36Julie K. Olson et al., A Virus-Induced Molecular Mimicry Model of Multiple Sclerosis, 108 J.
Clinical Investigation 311 (2001).
15
With the goal of examining the relationship between clinical characteristics and outcomes
in patients with acute TM, Pidcock et al. 37 evaluated a cohort of acute TM patients under the age
of 18 who were treated at Johns Hopkins TM Center over an interval of four years. Pet. Ex. 19
at 1-2. The authors identified 47 patients with acute onset TM, and 13 of the 47 cases (28%) had
a confirmed immunization, including DTP, or allergy shot within 30 days of onset. Id. at 2-3.
Even though the authors did not conduct this study to determine causality, the authors found “a
potential causal link between vaccination and [acute TM].” Id. at 7. However, they noted that
this association was “undermined” by “the large fraction of younger children affected, the
current recommended vaccination schedule for children, and the lack of any single vaccine
association within this group.” Id.
Dr. Napoli also cited several case reports of individuals developing TM following
vaccinations similar to Tdap. Pet. Ex. 13 at 5 (citing Pet. Ex. 27; 38 Pet. Ex. 28; 39 Pet. Ex. 29). 40
Read et al. discussed a case of a 50-year-old man received a tetanus toxoid booster vaccination
after suffering a penetrating foot wound. Pet. Ex. 27 at 1. The patient was diagnosed with a
viral illness about ten days later after complaining of myalgia, lethargy, fatigue, and mild
bifrontal headache. Id. Twelve days after initial presentation, he was admitted to the hospital
with “flaccid, areflexic paralysis of the legs, associated with sensory loss to T6, moderately
severe midthoracic back pain, and urinary retention.” Id. After diagnostic testing, he was
diagnosed with acute TM. Id. at 2. The authors concluded that “[a]lthough it is possible that the
myelopathy in [their] patient occurred independently of vaccination, the timing and absence of
an alternative explanation may implicate tetanus toxoid.” Id.
The second case report, authored by Whittle and Robertson, described the case of a
seven-month-old girl who presented to the hospital with inability to move her legs. Pet. Ex. 28 at
1. Physical examination revealed complete flaccid paralysis of her legs and lower trunk, as well
as absent abdominal reflexes. Id. The child received her first vaccination against DT, as well as
her first oral polio immunization six days before onset. Id. She spent ten days in the hospital
where some symptoms, such as use of her bladder, improved; however, the paraplegia did not
improve with steroid treatment. Id. The child’s condition was consistent with TM. Id. The
authors noted that although her condition “may have occurred by chance,” her onset occurred at
the time when reactions to vaccines “are most frequently found.” Id. Without other evidence,
the authors were unable to determine which vaccine was “the most likely to have been
responsible.” Id.
37F.S. Pidcock et al., Acute Transverse Myelitis in Childhood: Center-Based Analysis of 47
Cases, 68 Neurology 1474 (2007).
38Stephen J. Read et al., Acute Transverse Myelitis After Tetanus Toxoid Vaccination, 339
Lancet 1111 (1992).
39Eileen Whittle & N. R. C. Robertson, Transverse Myelitis After Diphtheria, Tetanus, and Polio
Immunisation, 1 British Med. J. 1450 (1977).
40RMS Riel-Romero, Acute Transverse Myelitis in a 7-Month-Old Boy After Diphtheria-
Tetanus-Pertussis Immunization, 44 Spinal Cord 688 (2006).
16
The third case report Dr. Napoli cited is from Riel-Romero. Pet. Ex. 29. Riel-Romero
examined a seven-month-old boy who developed acute TM 17 days after a diphtheria-tetanus-
acellular pertussis (“DTaP”) vaccination. Id. at 1-2. The child received two prior doses of DTaP
that were tolerated without adverse effect. Id. at 1. He had an upper respiratory tract infection
two weeks prior to admission. Id. He developed flaccid paraplegia, urinary issues, and
constipation. Id. at 1-2. “MRI of the spinal cord showed diffuse edema of and increased T2
signal within the spinal cord from the level of C3-T6.” Id. at 2. “A repeat MRI of the spine done
3 months later showed resolution of cord edema and signal abnormality but reduction in cord
caliber. At 10 months from initial presentation, he continued to have paraplegia and spasticity of
the lower extremities.” Id.
The authors hypothesized that (1) “[i]t is possible that [their] patient had a postinfectious
or a postvaccination acute [TM] as his symptoms occurred about 2 weeks after an upper
respiratory infection and 17 days after a DTaP vaccination,” (2) “[i]t is [] possible that the
concomitant exposure to these two antigens may have increased the risk of an abnormal
immunologic response in a genetically susceptible individual,” or (3) the occurrence was “simply
coincidental.” Pet. Ex. 29 at 3. The authors briefly discussed other reports 41 of acute TM after
vaccination, including after DTP and DT vaccinations, and found “[r]eports of postvaccination
acute [TM] suggest [] an immune-mediated process” to be at play. Id. Specifically, “the concept
of molecular mimicry has been postulated whereby the offending agent triggers an autoimmune
response to the myelin sheath of the central tracts of the spinal cord.” Id.
iii. Althen Prong Two
Dr. Napoli opined that “more likely than not, [] [Petitioner] suffered TM, and that his
Tdap vaccination had a causal role in the development of his TM via the mechanism[] outlined
above.” Pet. Ex. 13 at 6.
As Petitioner’s treating physician, Dr. Napoli specifically and contemporaneously
described Petitioner’s clinical course and identified Petitioner’s injury as a myelitis as a result of
his Tdap vaccination. Pet. Ex. 13 at 1-4. Dr. Napoli also indicated that some of Petitioner’s
other treating physicians also believed Petitioner’s TM was caused by his Tdap vaccination. Id.
For example, Dr. Hedde noted Petitioner’s symptom onset began after Petitioner received a Tdap
vaccine. Id. at 2 (citing Pet. Ex. 2 at 16). Dr. Geiger also noted Petitioner’s condition was
“likely due to the inciting post-injection reaction.” Id. at 4 (quoting Pet. Ex. 9 at 3).
iv. Althen Prong Three
Dr. Napoli opined Petitioner received a Tdap vaccine on February 24, 2017, and almost
five weeks later (34 days), on or around March 30, 2017, Petitioner “developed symptoms
41The reports specific to DTP and DT vaccines include the Whittle and Robertson case report
and an article authored by Kulenkampff et al. on a six-month-old who developed TM 17 days
after a DTP vaccine. Pet. Ex. 29 at 3. This article was not filed in this case. See M.
Kulenkampff et al., Neurological Complications of Pertussis Inoculation, 49 Archives Disease
Childhood 46 (1974).
17
related to his [central nervous system] disorder.” Pet. Ex. 13 at 6. He found this timing
consistent with the medical literature. Id.
Dr. Napoli, relying on a 1994 Institute of Medicine (“IOM”) (now the National Academy
of Medicine) book,42 opined “[t]here is an increased risk of autoimmunity primarily concentrated
within the first six weeks after vaccination.” Pet. Ex. 13 at 6 (citing Pet. Ex. 21 at 5). Dr. Napoli
also cited Schonberger et al., 43 who found an increased risk of GBS within the five weeks
following flu vaccination. Id. (citing Pet. Ex. 20 at 1). Dr. Napoli noted an “increased incidence
of demyelinating injury was seen up to 9 or 10 weeks following vaccination” in Schonberger et
al. Id. (citing Pet. Ex. 20 at 1).
With regard to TM cases specifically, Agmon-Levin et al. noted that in “most of [their]
cases[,] the temporal association was between several days and 3 months” Pet. Ex. 18 at 5. For
the cases of TM after DTP and DT vaccines specifically, onset was between three to 17 days. Id.
at 3 tbl.1. Likewise, Pidcock et al. analyzed 47 cases of acute TM and found 13 (28%) received
a vaccine, including DTP, or allergy shot within 30 days of onset. Pet. Ex. 19 at 1, 3. Read et al.
discussed a case of a 50-year-old man who received a tetanus toxoid booster vaccination three
weeks prior to developing TM. Pet. Ex. 27 at 1. Whittle and Robertson described the case of a
seven-month-old girl who developed TM six days after DT and oral polio vaccines. Pet. Ex. 28
at 1. And Riel-Romero examined a seven-month-old boy who developed acute TM 17 days after
DTaP vaccination. Pet. Ex. 29 at 1-2.
2. Respondent’s Expert, Dr. Olajumoke Fadugba 44
a. Background and Qualifications
Dr. Fadugba is board certified in allergy and immunology and internal medicine. Resp.
Ex. B at 1-2. She obtained her B.Sc. in Biochemistry from the University of Delaware in 2005
and her M.D. from Vanderbilt University School of Medicine in 2009. Id. at 1. Thereafter, she
completed an internal medicine internship and residency at Washington University School of
Medicine and an allergy and immunology fellowship at Vanderbilt University. Id. Dr. Fadugba
is an Attending Clinic Allergist and Immunologist with the Allergy and Immunology Section at
the University of Pennsylvania, “where [she] evaluate[s] and treat[s] vaccine response[s] from
both the clinical and immunologic perspectives in addition to the spectrum of possible vaccine
reactions that may be reported.” Resp. Ex. A at 1. She also works as an Associate Professor of
Clinical Medicine in the Allergy and Immunology Section at the University of Pennsylvania. Id.
42Inst. of Med., Neurologic Disorders, in Adverse Events Associated with Childhood Vaccines:
Evidence Bearing on Causality 34, 46-47 (Kathleen Stratton et al. eds., 1994). Petitioner filed
only two pages of this chapter; however, this text is well known to the undersigned.
43Lawrence B. Schonberger et al., Guillain-Barre Syndrome Following Vaccination in the
National Influenza Immunization Program, United States, 1976-1977, 110 Am. J. Epidemiology
105 (1979).
44 Respondent submitted one expert report from Dr. Fadugba. Resp. Ex. A.
18
She “ha[s] extensive experience in caring for adults with a variety of immunologic diseases
including reactions to vaccines” and “ha[s] published, as first author, a study investigating the
immune responses to pertussis antigens in infants and toddlers after immunization with
multicomponent acellular pertussis vaccine.” Id. Dr. Fadugba has also previously opined before
this Court. Id. at 2. Although Dr. Fadugba notes allergy and immunology “involves assessment
of complex dysregulated immune responses, [and thus] reaches into the field[] of neurology,”
she is not certified in neurology and her CV does not indicate any specialized training in
neurology. Id. at 1; see Resp. Ex. B at 1-9.
b. Opinion
i. Diagnosis
Dr. Fadugba opined Petitioner did not suffer from TM due to confounding findings on
testing and potential alternative causes. Resp. Ex. A at 9.
Dr. Fadugba defined acute TM as “a rare demyelinating condition that presents with
acute onset of neurologic deficits due to spinal cord lesions. Patients typically develop bilateral
weakness and sensory deficits below the level of the lesion over a period of several hours, and
worsen over one to several days.” Resp. Ex. A at 6 (citing Resp. Ex. A, Tab 1 at 2; Resp. Ex. A,
Tab 2 at 2). Additionally, she listed conditions TM has been associated with, including
infection, spinal cord infarction, autoimmune processes, and others. Id. She also noted 10-45%
of TM cases are idiopathic. Id. (citing Resp. Ex. A, Tab 1 at 4).
Dr. Fadugba opined that to make a definite diagnosis of acute TM, the TM Consortium
Working Group
requires both the presence of spinal cord inflammation, as defined by CSF
pleocytosis, elevated CSF [Immunoglobulin G (“IgG”)] index, or gadolinium
enhancement on a spinal MRI, and the absence of an identified [central nervous
system] infection. The diagnosis also requires exclusion of acute myelopathy
secondary to a known underlying disease and from compressive myelopathies
(such as cervical stenosis).
Resp. Ex. A at 9 (emphasis omitted). Dr. Fadugba noted Petitioner’s July 2017 cervical spine
MRI revealed significant cervical spine stenosis at multiple levels. Id.
Next, Dr. Fadugba opined that Petitioner’s treating physicians did not exhaust all
diagnostic testing. Resp. Ex. A at 9. “Given that the patient had such significant compressive
myelopathy on imaging (a potential confounder), it may have been prudent to obtain a lumbar
puncture[45] in order to more definitely make a diagnosis of TM.” Id. Additionally, she asserted
that even though “up to 50% of patients have a preceding infection,” Petitioner’s medical records
45Petitioner’s medical records indicate that a lumbar puncture for CSF analysis was considered,
but ultimately never ordered by Dr. Napoli. Pet. Ex. 3 at 25.
19
do not indicate potential infectious causes were investigated via past medical history or
laboratory testing. Id. at 6, 9.
Lastly, she opined Petitioner’s medical records and imaging findings show Petitioner had
findings that confound his diagnosis and provide alternative causes of his residual symptoms,
which Dr. Fadugba believed Dr. Napoli did not address. Resp. Ex. A at 9. In August 2017, for
example, orthopedist Dr. Chao assessed Petitioner with cervical myeloradiculopathy in the
context of cord signal change and stenosis at C4-5 and recommended ACDF surgery at C4-C5.
Id. (citing Pet. Ex. 10 at 3-4). Petitioner continued to have persistent symptoms in his thumbs
even after receiving steroids and visited Dr. Webber in March 2020. Id. (citing Pet. Ex. 8). Dr.
Webber’s assessment was CMC arthritis and carpal tunnel syndrome, which Dr. Fadugba opined
explains Petitioner’s symptoms. Id. Lastly, due to his job at UPS for 27 years, she noted
Petitioner would have been constantly using his thumbs. Id.
ii. Althen Prong One
Dr. Fadugba challenged Dr. Napoli’s theory, opining “[t]here is no reliable evidence that
the Tdap vaccine causes acute [TM] via molecular mimicry.” Resp. Ex. A at 6-11.
First, Dr. Fadugba asserted that Dr. Napoli’s literature on molecular mimicry relates to
viral and bacterial infections, rather than vaccinations. Resp. Ex. A at 8. Dr. Fadugba argued
“[i]nfection and vaccination are not analogous—the form, the route, and antigen quantity are
fundamentally different. There is no evidence to support Dr. Napoli’s inherent assumption that
the vaccine and the live infection elicit [t]he same immunogenicity.” Id. Dr. Fadugba, however,
does not cite any literature or other evidence to show that antigens formed by infection and those
formed after vaccination are different.
Next, Dr. Fadugba took issue with the fact that Dr. Napoli relied upon animal studies in
support of his molecular mimicry mechanism. Resp. Ex. A at 8. Dr. Fadugba posited that such
studies are “genetically restricted (and different from humans).” Id.
Dr. Fadugba, citing Peterson and Fujinami, 46 listed criteria that must be fulfilled to
conclude molecular mimicry causes an autoimmune disease:
(1) similarity between a host epitope and an epitope in a microorganism or
environmental agent (Tdap vaccine in this case), (2) antibodies or T cells cross-
reactive with both epitopes detected in patients with the autoimmune disease, (3)
an epidemiological link between exposure to the environmental agent or microbe
and the development of autoimmune disease[,] and (4) reproducibility of
autoimmunity in an animal model following sensitization with the epitopes,
infection with the microbe[,] or exposure to the environmental agent.
46Lisa K. Peterson & Robert S. Fujinami, Molecular Mimicry, in Autoantibodies 13 (Yehuda
Shoenfeld et al. eds., 2nd ed. 2007).
20
Resp. Ex. A at 8 (citing Resp. Ex. A, Tab 8 at 1). She opined none of these criteria have been
met to link Tdap with TM. Id. Additionally, she opined that given the high frequency of Tdap
vaccinations administered 47 “and the supposed existence of purported cross-reactive peptides,
one would expect a higher frequency of autoimmunity (and specifically TM) in populations that
receive [] Tdap, if molecular mimicry were a plausible mechanism for development of TM.” Id.
at 9.
Dr. Fadugba next criticized Dr. Napoli’s medical literature. Resp. Ex. A at 7. First, Dr.
Fadugba noted that Pidcock et al. focused on children with TM rather than adults, and thus, the
findings “cannot necessarily be translated into risk seen in adults.” Id. Additionally, Dr.
Fadugba maintained there would be a higher likelihood of occurrence of TM post-vaccination in
young children due to the higher rates of vaccination in children. Id. The authors noted several
different vaccines that were administered in their patients, which “suggests that a correlation
between vaccine and TM is tenuous and not explained/linked by a single factor.” Id. Lastly,
eight of the 13 patients in Pidcock et al. had co-occurring illnesses that Dr. Fadugba found to be
“critical confounder[s] since viral illness is well-known to be associated with onset of TM. Id.
Next, regarding Agmon-Levin et al., Dr. Fadugba argued there are limitations in the
study preventing any conclusions to be reached about an association between vaccination and
TM. Resp. Ex. A at 7. She indicated that of the 37 cases identified, many were associated with
live vaccines, which Tdap is not. Id. “The risk of adverse immune activation is fundamentally
different between live and inactivated vaccines,” argued Dr. Fadugba. Id. However, she
acknowledged other vaccines48 have been found to be potential causes of TM. Id. (citing Resp.
Ex. A, Tab 6). 49 Dr. Fadugba indicated that Agmon-Levin et al. identified four cases of TM
following DTP or DT vaccination, which she believed was small given the rate of administration
worldwide. Id. at 8. Also, three of the four cases occurred in children under the age of one. Id.
She opined this finding cannot be generalized to adults. Id.
Lastly, Dr. Fadugba opined there is a lack of epidemiologic evidence to support an
association between the Tdap vaccine and TM. Resp. Ex. A at 10. She argued Dr. Napoli relied
on case reports and passive surveillance systems to support his opinions, both of which “are
47 For support, Dr. Fadugba provided documentation from the Centers for Disease Control and
Prevention (“CDC”) summarizing DTaP and Tdap vaccine recommendations across one’s
lifespan. See Resp. Ex. A, Tab 9 (Ctrs. for Disease Control & Prevention, Pertussis: Summary of
Vaccine Recommendations, https://www.cdc.gov/vaccines/vpd/pertussis/recs-summary.html
(last reviewed Jan. 22, 2020)). There is no evidence in this record as to how often the Tdap
vaccine is actually given, particularly in adults.
48Dr. Fadugba stated, “[f]or example, poliovirus infection is a known cause of acute [] TM, and
the oral polio virus vaccine was declared as a potential cause of TM.” Resp. Ex. A at 7.
49Ctrs. for Disease Control & Prevention, Poliomyelitis Prevention in the United States:
Introduction of a Sequential Vaccination Schedule of Inactivated Poliovirus Vaccine Followed
by Oral Poliovirus Vaccine; Recommendations of the Advisory Committee on Immunization
Practices (ACIP) (1997).
21
inherently flawed and cannot be used to draw conclusions about causality due to high potential
for reporting bias, and causality cannot be inferred from an uncontrolled observation.” Id. She
added that “[a]n association does not equal cause-effect relationship, and an observation could be
coincidence.” Id. She argued that a case-series, risk-interval, or case-centered analysis would be
more useful here, where the adverse event (TM) is “abrupt in onset, clearly defined, occur[s]
relatively soon after vaccination, ha[s] a limited period of risk . . . , and [is] serious enough that
people seek medical care.” Id.
Relying on Baxter et al., Dr. Fadugba opined that the IOM has found evidence of a causal
association between specific acute demyelinating events, including TM, and any vaccine to be
“inconclusive.” Resp. Ex. A at 10 (quoting Resp. Ex. A, Tab 2 at 1). The case-centered analysis
conducted by Baxter et al. analyzed the association of vaccination and the subsequent
development of TM or acute disseminated encephalomyelitis (“ADEM”). Resp. Ex. A, Tab 2 at
1. The study population included those who were enrolled in the Vaccine Safety Datalink and
received one or more vaccines from 2007 through 2012. 50 Id. at 2. They identified 545 potential
cases of TM; 184 were rejected for various reasons, 193 did not meet inclusion criteria according
to a neurologist, and 87 had alternative diagnoses. Id. at 4. Eighty-one were accepted as new,
acute-onset idiopathic TM cases according to the TM Consortium Working Group definition,
and 67 of these cases received a vaccine within the nine months prior to onset. 51 Id. at 4-5. For
TM, the authors found “no statistically significant increased risk of immunization in either the 5-
to 28-day or the 2- to 42-day risk interval prior to onset.”52 Id. at 5.
iii. Althen Prong Two
Dr. Fadugba opined Petitioner’s Tdap vaccination did not cause his symptoms and that
Petitioner did not suffer from TM. Resp. Ex. A at 8-11. Relying on the four criteria from
Peterson and Fujinami, she opined there was (1) “no investigation or discovery of cross-reactive
proteins in the administered vaccine and [P]etitioner’s proteins;” (2) “no discovery of antibodies
or T-cells in [P]etitioner’s serum;” (3) “no epidemiological link between Tdap and TM;” and (4)
“no evidence that vaccinating an animal with this specific Tdap vaccine induced TM in an
animal.” Id. at 8 (citing Resp. Ex. A, Tab 8 at 1).
Dr. Fadugba believed there were better explanations for Petitioner’s symptoms. Resp.
Ex. A at 9. As for alternative causes, Dr. Fadugba noted Dr. Chao diagnosed Petitioner with
cervical myeloradiculopathy in the context of cord signal change and stenosis at C4-5 and
recommended Petitioner undergo ACDF surgery at C4-C5. Id. (citing Pet. Ex. 10 at 3-4). Dr.
Fadugba asserted that Petitioner’s symptoms of bilateral thumb discomfort could be explained by
50 The authors “did not analyze combinations of vaccines.” Resp. Ex. A, Tab 2 at 6.
51The timing of these vaccines within the nine-month interval is unclear, as the authors did not
provide this data.
52For Tdap and ADEM (another central nervous system demyelinating illness), the authors
found “a statistically significant increase in risk in the 5- to 28-day exposure interval,” but not in
the 2- to 42-day interval. Resp. Ex. A, Tab 2 at 5.
22
his diagnosis of CMC arthritis and carpal tunnel syndrome by Dr. Webber in 2020. Id. (citing
Pet. Ex. 8). Lastly, she opined that Petitioner’s 27 years at UPS likely required the extensive use
of his thumbs, which could explain Petitioner’s symptoms. Id.
iv. Althen Prong Three
Dr. Fadugba did not rebut Petitioner’s expert’s opinion that the temporal association
between Petitioner’s Tdap vaccine and the onset of his symptoms was appropriate. In her
summary of Petitioner’s medical history, she noted Petitioner’s numbness and tingling of the
right arm began the morning of March 31, 2017. Resp. Ex. A at 2.
3. Respondent’s Expert, Dr. Eric Lancaster 53
a. Background & Qualifications
Dr. Eric Lancaster received his M.D. and Ph.D. from the University of Maryland School
of Medicine. Resp. Ex. C at 1. Thereafter, he completed his internship, neurology residency,
neuromuscular fellowship, and neuromuscular research fellowship at the University of
Pennsylvania. Resp. Ex. D at 1. Dr. Lancaster is board certified in neurology, neuromuscular
medicine, and electrodiagnostic medicine. Id. at 2. Since 2013, he has been an Assistant
Professor of Neurology at the University of Pennsylvania. Id. at 1. He has written over 30 peer-
reviewed publications, with most of his recent publications focusing on autoimmune
neurological disorders and their mechanisms. Resp. Ex. C at 1. He has also written about
autoimmune encephalitis, paraneoplastic disorders, and neuronal autoantibodies. Id. “[His] lab
is focused on detection of neuronal autoantibodies, particularly in the context of autoimmune
encephalitis and paraneoplastic disorders,” and “[his] clinic is currently focused on autoimmune
neurological diseases.” Id.
b. Opinion
i. Diagnosis
Dr. Lancaster opined Petitioner did not suffer from TM, but instead “most likely had [a]
cervical spinal cord compression” that explains his symptoms. Resp. Ex. C at 2-4.
First, Dr. Lancaster opined Petitioner’s “primary symptoms . . . are most likely due to
cervical radiculopathies and compression of the cervical spinal cord at C4/5.” Resp. Ex. C at 2.
Dr. Lancaster believed Petitioner’s “numbness, paresthesias[,] and pain extending from the neck
down to the hands (especially the thumbs) are most likely due to involvement of the cervical
nerve roots and cervical spinal cord.” Id. Dr. Lancaster also believed Petitioner’s “hyper-
reflexia in the hands and lower extremities are most likely due to injury to the spinal cord at [the
C4-C5] level.” Id.
53 Respondent submitted one expert report from Dr. Lancaster. Resp. Ex. C.
23
Dr. Lancaster next opined that the cord signal abnormality at C4/5 shown on MRI “is
almost certainly due to cervical spinal stenosis” because it would be an “improbable
coincidence” for Petitioner to have “severe cervical stenosis at this level and cord inflammation
from another cause.” Resp. Ex. C at 2. He believed that the spinal decompression surgery
Petitioner received helped prevent future nerve damage. Id. He acknowledged the surgery did
not resolve the abnormal spinal cord signal seen on MRI or the associated symptoms, but
explained that this is a frequent outcome with this type of surgery. Id.; see Resp. Ex. C, Tab 5 at
4 (“The presence of an abnormal signal within the cervical cord or adjacent to the level of
compression by spondylosis is considered a serious finding, which may signify a less satisfactory
outcome with surgical decompression than would otherwise be expected.”). 54 Additionally, he
found the fact that both Petitioner’s neurosurgeon and neurologist agreed to perform this surgery
evidence of “the seriousness of [Petitioner’s] stenosis.” Id.
With regard to the signal abnormality seen on MRI at C6/7, Dr. Lancaster opined it “is of
uncertain cause and it is also unclear how long this signal change may have been present.” Resp.
Ex. C at 2. Without further explanation or support, Dr. Lancaster opined the signal abnormality
at C6/7 “is not . . . clear evidence of an inflammatory spinal cord process.” Id.
Next, Dr. Lancaster opined Petitioner’s thumb paresthesias “most likely reflect[s]
involvement of the C6 nerve roots and associated areas of spinal cord from spinal stenosis and
foraminal stenosis.” Resp. Ex. C at 2. In support of his opinion, he relied upon Petitioner’s
EMG, 55 and found evidence of a C6 radiculopathy and “did not find evidence of the most likely
alternative cause of hand numbness (carpal tunnel syndrome).” Id. at 2-3. Notably, Dr.
Lancaster, unlike Dr. Fadugba, did not opine that Petitioner’s carpel tunnel syndrome caused his
thumb paresthesias.
Dr. Lancaster questioned the diagnosis of TM because Dr. Napoli treated Petitioner with
steroids in October 2017, several months after Petitioner’s symptom onset around March 30,
2017. Resp. Ex. C at 3. Dr. Lancaster explained, “[TM] should be a self-limited inflammatory
process that terminates within several weeks (although damage may persist afterwards).
Treating with high dose steroids many months later is therefore not logical if Petitioner had
inflammatory [TM] in March 2017.” Id. Dr. Lancaster did not provide literature or other
evidence to support his opinion that treatment with steroids “many months” after onset of TM is
“not logical.” In fact, Scott et al., 56 who provided recommendations for diagnostic testing and
therapies for TM, found steroids are “typically the first treatment offered” to TM patients. Resp.
Ex. C, Tab 4 at 4-5. They explained that despite the “insufficient evidence to determine the
54Nicholas Theodore, Degenerative Cervical Spondylosis, 383 New Eng. J. Med. 159 (2020).
Although Respondent filed this article, Dr. Lancaster did not discuss or reference this article in
his report.
The November 2017 EMG revealed findings suggestive of “a mild right ulnar
55
mononeuropathy” and “a chronic right C6 radiculopathy.” Pet. Ex. 3 at 12, 28-30.
56Although Respondent filed this article, Dr. Lancaster did not discuss or reference this article in
his report.
24
utility of corticosteroids in alleviating TM attacks[,] . . . administration of high-dose IV
methylprednisolone (1 g[ram] daily for 3 to 7 days) is typically the first treatment offered to
hasten recovery, reduce disease activity, and restore neurologic function.” Id. The authors did
not note whether there is a timeline during which steroids should be administered after onset, nor
did they opine on an outside time frame after which administration of steroids would be too late.
Additionally, he argued that simply because Dr. Napoli found Petitioner benefitted from
treatment with steroids, does not mean Petitioner had TM. Resp. Ex. C at 3. Dr. Lancaster noted
“cord inflammation from compression can also get better with steroids, or with conservative
treatment.” Id.
Lastly, he found no “convincing data to support an inflammatory cause of [Petitioner’s]
symptoms.” Resp. Ex. C at 3. Although “[m]any of these tests were not done,” he opined no test
showed “inflammation in the spinal fluid, oligoclonal bands, or specific antibodies associated
with autoimmune myelitis.” Id. He concluded an “[i]nflammatory [TM] is unlikely to have
occurred.” Id. at 4.
ii. Althen Prong One
Dr. Lancaster opined that there is no evidence to support Dr. Napoli’s theory that the
Tdap vaccine can cause TM via molecular mimicry. Resp. Ex. C at 3-4.
With regard to the mechanism of molecular mimicry posited by Dr. Napoli, Dr. Lancaster
opined Dr. Napoli’s argument is too broad and arbitrary, stating that “Dr. Napoli’s standard
could be applied [] to any autoimmune condition and any vaccine.” Resp. Ex. C at 3. He added
“there is no specific mimic proposed in the vaccine and no specific target antigen proposed in the
human nervous system,” and thus, this is not a reasonable standard for a theory of causation. Id.
He found it would be unreasonable to accept Dr. Napoli’s theory because “then we have to
accept any vaccine—to a more likely than not standard—causes every autoimmune disease that
occurs afterwards.” Id. Instead, Dr. Lancaster opined specific antigens from the vaccine and
specific antigens within the human body must be identified to substantiate the mechanism of
molecular mimicry in this case. Id.
Dr. Lancaster opined that any discussion of different vaccines and disorders are not
relevant to this case. Resp. Ex. C at 3. He found only the discussions pertaining to Tdap and
TM to be relevant. Id.
Citing Baxter et al., an article also cited by Dr. Fadugba, Dr. Lancaster opined “it is not
clear that there is any actual increased risk of [TM] after vaccination with [Tdap].” Resp. Ex. C
at 3 (citing Resp. Ex. A, Tab 2). Dr. Lancaster opined Baxter et al. “found no correlation
between [TM] and vaccination.” Id. (citing Resp. Ex. A, Tab 2 at 1). But, as Baxter et al. and
25
Dr. Lancaster noted, in 2012, the IOM 57 found “[t]he evidence is inadequate to accept or reject a
causal relationship between diphtheria toxoid–, tetanus toxoid–, or acellular pertussis–containing
vaccine and [TM].” Id. (quoting Resp. Ex. C, Tab 2 at 3); see also Resp. Ex. A, Tab 2 at 1.
Dr. Lancaster concluded “[t]here is no reliable evidence that [Tdap] vaccination causes
[TM]” and “[t]here is no evidence that molecular mimicry actually occurs between [Tdap]
vaccination and any antigen relevant to [TM].” Resp. Ex. C at 4.
iii. Althen Prong Two
Dr. Lancaster opined there is no evidence that via molecular mimicry, Petitioner’s Tdap
vaccine caused him to develop TM. Resp. Ex. C at 3-4. He also opined that an “[i]nflammatory
[TM] is unlikely to have occurred” here and that the Tdap vaccine is “unlikely to be the cause of
Petitioner’s injury.” Id. at 4.
Dr. Lancaster maintained that Petitioner’s symptoms are a result of Petitioner’s cervical
spinal stenosis for the reasons stated above in his diagnosis section. Resp. Ex. C at 3-4.
iv. Althen Prong Three
Dr. Lancaster agreed that on approximately March 30, 2017, Petitioner developed new
symptoms of neck pain, pain and parethesias radiating down both arms, and weakness of the
right arm and leg. Resp. Ex. C at 2. Dr. Lancaster opined this onset is outside a reasonable time
period for both cervical spinal cord stenosis and TM. Id. at 2-4.
For cervical spinal cord stenosis, Dr. Lancaster did not provide support or additional
explanation to support his statement.
For TM, he noted Baxter et al. used a four-week onset as their “upper limit,” which he
found more reasonable than Dr. Napoli’s up to nine- to ten-week window. Resp. Ex. C at 3
(citing Resp. Ex. A, Tab 2 at 1-2). Therefore, he opined Petitioner’s onset does not fall within a
reasonable time period based on Baxter et al. Id. However, Baxter et al. used two exposure
windows: (1) 5-28 days and (2) 2-42 days. Resp. Ex. A, Tab 2 at 1-2. Thus, the authors
examined cases of TM up to six weeks, or 42 days, post-vaccination. Id. As Dr. Lancaster
explained, Petitioner’s symptom onset was on or around March 30, 2017, which is five weeks
post-vaccination, and within the six-week, or 42-day, exposure window used by Baxter et al.
See Resp. Ex. C at 2; Resp. Ex. A, Tab 2 at 1-2.
57Inst. of Med., Diphtheria Toxoid-, Tetanus Toxoid-, and Acellular Pertussis-Containing
Vaccines, in Adverse Effects of Vaccines: Evidence and Causality 525, 547-48 (Kathleen
Stratton et al. eds., 2012). Respondent filed only two pages of this chapter; however, this text is
well known to the undersigned.
26
IV. DISCUSSION
A. Standards for Adjudication
The Vaccine Act was established to compensate vaccine-related injuries and deaths. §
10(a). “Congress designed the Vaccine Program to supplement the state law civil tort system as
a simple, fair and expeditious means for compensating vaccine-related injured persons. The
Program was established to award ‘vaccine-injured persons quickly, easily, and with certainty
and generosity.’” Rooks v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 1, 7 (1996) (quoting
H.R. Rep. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344).
Petitioner’s burden of proof is by a preponderance of the evidence. § 13(a)(1). The
preponderance standard requires a petitioner to demonstrate that it is more likely than not that the
vaccine at issue caused the injury. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315,
1322 n.2 (Fed. Cir. 2010). Proof of medical certainty is not required. Bunting v. Sec’y of Health
& Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). Petitioner need not make a specific type of
evidentiary showing, i.e., “epidemiologic studies, rechallenge, the presence of pathological
markers or genetic predisposition, or general acceptance in the scientific or medical communities
to establish a logical sequence of cause and effect.” Capizzano v. Sec’y of Health & Hum.
Servs., 440 F.3d 1317, 1325 (Fed. Cir. 2006). Instead, Petitioner may satisfy his burden by
presenting circumstantial evidence and reliable medical opinions. Id. at 1325-26.
In particular, Petitioner must prove that the vaccine was “not only [the] but-for cause of
the injury but also a substantial factor in bringing about the injury.” Moberly, 592 F.3d at 1321
(quoting Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999));
see also Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). The
received vaccine, however, need not be the predominant cause of the injury. Shyface, 165 F.3d
at 1351. A petitioner who satisfies this burden is entitled to compensation unless Respondent
can prove, by a preponderance of the evidence, that the vaccinee’s injury is “due to factors
unrelated to the administration of the vaccine.” § 13(a)(1)(B). However, if a petitioner fails to
establish a prima facie case, the burden does not shift. Bradley v. Sec’y of Health & Hum.
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
“Regardless of whether the burden ever shifts to the [R]espondent, the special master
may consider the evidence presented by the [R]espondent in determining whether the [P]etitioner
has established a prima facie case.” Flores v. Sec’y of Health & Hum. Servs., 115 Fed. Cl. 157,
162-63 (2014); see also Stone v. Sec’y of Health & Hum. Servs., 676 F.3d 1373, 1379 (Fed. Cir.
2012) (“[E]vidence of other possible sources of injury can be relevant not only to the ‘factors
unrelated’ defense, but also to whether a prima facie showing has been made that the vaccine
was a substantial factor in causing the injury in question.”); de Bazan v. Sec’y of Health & Hum.
Servs., 539 F.3d 1347, 1353 (Fed. Cir. 2008) (“The government, like any defendant, is permitted
to offer evidence to demonstrate the inadequacy of the [P]etitioner’s evidence on a requisite
element of the [P]etitioner’s case-in-chief.”); Pafford, 451 F.3d at 1358-59 (“[T]he presence of
multiple potential causative agents makes it difficult to attribute ‘but for’ causation to the
vaccination. . . . [T]he Special Master properly introduced the presence of the other unrelated
contemporaneous events as just as likely to have been the triggering event as the vaccinations.”).
27
B. Factual Issues
A petitioner must prove, by a preponderance of the evidence, the factual circumstances
surrounding his claim. § 13(a)(1)(A). To resolve factual issues, the special master must weigh
the evidence presented, which may include contemporaneous medical records and testimony.
See Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a
special master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Contemporaneous medical records, “in general, warrant
consideration as trustworthy evidence.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d
1525, 1528 (Fed. Cir. 1993). But see Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1382 (Fed. Cir. 2021) (rejecting the presumption that “medical records are accurate and complete
as to all the patient’s physical conditions”); Shapiro v. Sec’y of Health & Hum. Servs., 101 Fed.
Cl. 532, 538 (2011) (“[T]he absence of a reference to a condition or circumstance is much less
significant than a reference which negates the existence of the condition or circumstance.”
(quoting Murphy v. Sec’y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff’d per curiam,
968 F.2d 1226 (Fed. Cir. 1992))), recons. den’d after remand, 105 Fed. Cl. 353 (2012), aff’d
mem., 503 F. App’x 952 (Fed. Cir. 2013).
There are situations in which compelling testimony may be more persuasive than written
records, such as where records are deemed to be incomplete or inaccurate. Campbell v. Sec’y of
Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“[L]ike any norm based upon common
sense and experience, this rule should not be treated as an absolute and must yield where the
factual predicates for its application are weak or lacking.”); Lowrie v. Sec’y of Health & Hum.
Servs., No. 03-1585V, 2005 WL 6117475, at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005)
(“[W]ritten records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent.” (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a
determination regarding a witness’s credibility is needed when determining the weight that such
testimony should be afforded. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley, 991 F.2d at 1575.
Despite the weight afforded to medical records, special masters are not rigidly bound by
those records in determining onset of a petitioner’s symptoms. Valenzuela v. Sec’y of Health &
Hum. Servs., No. 90-1002V, 1991 WL 182241, at *3 (Fed. Cl. Spec. Mstr. Aug. 30, 1991); see
also Eng v. Sec’y of Health & Hum. Servs., No. 90-1754V, 1994 WL 67704, at *3 (Fed. Cl.
Spec. Mstr. Feb. 18, 1994) (Section 13(b)(2) “must be construed so as to give effect also to §
13(b)(1) which directs the special master or court to consider the medical records (reports,
diagnosis, conclusions, medical judgment, test reports, etc.), but does not require the special
master or court to be bound by them”).
C. Causation
To receive compensation through the Program, a petitioner must prove either (1) that he
suffered a “Table Injury”—i.e., an injury listed on the Vaccine Injury Table—corresponding to a
vaccine that he received, or (2) that he suffered an injury that was actually caused by a
vaccination. See §§ 11(c)(1), 13(a)(1)(A); Capizzano, 440 F.3d at 1319-20. Petitioner must
28
show that the vaccine was “not only a but-for cause of the injury but also a substantial factor in
bringing about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface, 165 F.3d at 1352-53).
Because Petitioner does not allege he suffered a Table Injury, he must prove a vaccine he
received caused his injury. To do so, Petitioner must establish, by preponderant evidence: “(1) a
medical theory causally connecting the vaccination and the injury; (2) a logical sequence of
cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of
a proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278.
The causation theory must relate to the injury alleged. Petitioner must provide a sound
and reliable medical or scientific explanation that pertains specifically to this case, although the
explanation need only be “legally probable, not medically or scientifically certain.” Knudsen v.
Sec’y of Health & Hum. Servs., 35 F.3d. 543, 548-49 (Fed. Cir. 1994). Petitioner cannot
establish entitlement to compensation based solely on his assertions; rather, a vaccine claim must
be supported either by medical records or by the opinion of a medical doctor. § 13(a)(1). In
determining whether a petitioner is entitled to compensation, the special master shall consider all
material in the record, including “any . . . conclusion, [or] medical judgment . . . which is
contained in the record regarding . . . causation.” § 13(b)(1)(A). The undersigned must weigh
the submitted evidence and the testimony of the parties’ proffered experts and rule in Petitioner’s
favor when the evidence weighs in his favor. See Moberly, 592 F.3d at 1325-26 (“Finders of
fact are entitled—indeed, expected—to make determinations as to the reliability of the evidence
presented to them and, if appropriate, as to the credibility of the persons presenting that
evidence.”); Althen, 418 F.3d at 1280 (noting that “close calls” are resolved in Petitioner’s
favor).
“Expert medical testimony which merely expresses the possibility—not the probability—
of the occurrence of a compensable injury is insufficient, by itself, to substantiate the claim that
such an injury occurred.” LaCour v. Sec’y of Health & Hum. Servs., No. 90-316V, 1991 WL
66579, at *5 (Fed. Cl. Spec. Mstr. Apr. 15, 1991); accord Burns v. Sec’y of Health & Hum.
Servs., No. 90-953V, 1992 WL 365410, at *6 (Fed. Cl. Spec. Mstr. Nov. 6, 1992), aff’d, 3 F.3d
415. The Federal Circuit has likewise made clear that the mere possibility of a link between a
vaccination and a petitioner’s injury is not sufficient to satisfy the preponderance standard.
Moberly, 592 F.3d at 1322 (emphasizing that “proof of a ‘plausible’ or ‘possible’ causal link
between the vaccine and the injury” does not equate to proof of causation by a preponderance of
the evidence); Waterman v. Sec’y of Health & Hum. Servs., 123 Fed. Cl. 564, 573-74 (2015)
(denying Petitioner’s motion for review and noting that a possible causal link was not sufficient
to meet the preponderance standard); Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d
1351, 1359-60 (Fed. Cir. 2019). While certainty is by no means required, a possible mechanism
does not rise to the level of preponderance. Moberly, 592 F.3d at 1322; see also de Bazan, 539
F.3d at 1351.
V. DIAGNOSIS ANALYSIS
As Federal Circuit precedent establishes, in certain cases it is appropriate to determine the
nature of an injury before engaging in the Althen analysis. Broekelschen v. Sec’y of Health &
Hum. Servs., 618 F.3d 1339, 1346 (Fed. Cir. 2010). Since “each prong of the Althen test is
29
decided relative to the injury[,]” determining facts relating to the claimed injury can be
significant in a case like this, where Petitioner’s diagnosis is at issue. Id. Thus, before
determining if Petitioner has met each prong of Althen, the undersigned addresses whether
Petitioner has established, by a preponderance of the evidence, that Petitioner suffers from TM.
The undersigned finds Petitioner suffers from TM. First, a brief review of Petitioner’s
medical records show Petitioner’s treating physicians diagnosed him with TM, a demyelinating
disease of the central nervous system.58 On February 24, 2017, Petitioner received a Tdap
vaccination. Petitioner first reported neurologic symptoms that began on March 30, 2017 to his
primary care physician, Dr. Hedde, on April 7, 2017. The experts agree Petitioner had no
neurologic symptoms prior to March 30, 2017.
Petitioner’s July 2017 MRI revealed increased T2 weighted signal at C3/4, abnormal
bilateral cervical hemicord signal at C4/5, and punctate T2 hyperintense signal of the left
cervical hemicord at the C6/7.
On September 8, 2017, Petitioner saw neurosurgeon, Dr. Geiger. His physical
examination found light touch symmetrical paresthesias in a C6 distribution in the upper
extremities, positive Hoffman’s bilaterally, and positive Babinski bilaterally. After reviewing
the July 2017 MRI, Dr. Geiger opined that Petitioner’s condition appeared “consistent with a
demyelination pattern or myelitis.” Pet. Ex. 9 at 19. Dr. Geiger assessed Petitioner with acute
TM and a cervical disc disorder.
Petitioner then presented to neurologist Dr. Napoli on September 20, 2017. Dr. Napoli’s
physical examination revealed bilateral Babinski and Hoffman’s and plantar reflexes downgoing
bilaterally. Dr. Napoli diagnosed Petitioner with myelitis, demyelinating disease of the central
nervous system, and cervical disc disease.
Additional MRIs were ordered. Dr. Samir Semine, a radiologist, interpreted Petitioner’s
October 10, 2017 cervical spine MRI as showing hyperintense foci, that “are not associated with
central stenosis and may be a reflection of primary demyelinating disease.” Pet. Ex. 3 at 39.
Thereafter, since October 2017, Petitioner’s treating physicians’ diagnosis remained TM,
a demyelinating disease of the central nervous system, or myelitis. See Pet. Ex. 3 at 17, 22
(myelitis); Pet. Ex. 9 at 16 (acute TM in demyelinating disease of central nervous system); Pet.
Ex. 9 at 3 (“[TM] type syndrome”); Pet. Ex. 2 at 11 (TM); Pet. Ex. 3 at 11 (myelitis and
demyelinating disease of the central nervous system); Pet. Ex. 3 at 9 (myelitis); Pet. Ex. 3 at 6
(demyelinating disease of central nervous system and myelitis). Thus, three different
specialists—Dr. Napoli (neurologist), Dr. Geiger (neurosurgeon), and Dr. Semine (radiologist)—
all agreed that Petitioner had a demyelinating disease, myelitis, or TM. And Petitioner’s medical
records consistently reflect a diagnosis of TM.
58Petitioner’s treating physicians also used “myelitis” at times. Myelitis is the “inflammation of
the spinal cord, often part of a more specifically defined disease process.” Myelitis, Dorland’s
Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=32680 (last
visited Sept. 29, 2022).
30
Although Petitioner’s treating physicians also agreed Petitioner had degenerative cervical
disc disease, the undersigned finds that diagnosis does not negate their opinions regarding TM.
When assessing Petitioner, Petitioner’s treating physicians considered whether Petitioner had a
demyelinating myelitis and/or a degenerative cervical disc disease. Petitioner’s treating
physicians did not believe Petitioner’s neurologic symptoms could be attributed solely to his
cervical disc disease.
For example, on September 20, 2017, Dr. Napoli acknowledged “[t]here was some
evidence of stenosis around the level of C4,” but after discussion with Dr. Geiger, “he [did] not
believe this [was] a compressive lesion and [] wonder[ed] about possible vaccine [induced]
myelitis.” Pet. Ex. 3 at 25. After reviewing additional MRIs done in October 2017, Dr. Napoli
continued to suspect a “vaccine induced myelitis” due to “demyelinating lesion at C4-C5 as well
as lesion at a level lower than that around C6-C7.” Id. at 22. He spoke “with [Petitioner’s]
neurosurgeon at previous visit [and] d[id] not suspect that this was a compressive disc.” Id. At a
follow up on October 19, 2017, Dr. Napoli continued to attribute Petitioner’s symptoms to “a
vaccine induced demyelination,” but also encouraged Petitioner to undergo further evaluation
regarding Petitioner’s cervical disc disease causing stenosis. Id. at 17. After Petitioner
underwent ACDF surgery in January 2018, Dr. Geiger, in April 2018, noted that Petitioner’s
condition was “likely due to the inciting post-injection reaction since both the area of the
compression and the non-compressed area below are involved.” Pet. Ex. 9 at 3. He also stated
Petitioner was “[s]till symptomatic and myelopathic from the [TM] type syndrome following the
injection” and that the “[c]ord compression [was] resolved.” Pet. Ex. 9 at 4.
Respondent’s expert, Dr. Fadugba, opined Petitioner did not meet the TM Consortium
Working Group’s TM diagnosis because of his cervical stenosis. Additionally, Respondent’s
expert, Dr. Lancaster, attributed Petitioner’s primary neurologic symptoms to his cervical disc
compression. However, Dr. Fadugba and Dr. Lancaster failed to acknowledge that Petitioner’s
treating physicians understood that Petitioner had two distinct conditions: cervical disc disease
and TM. Additionally they failed to acknowledge that after Petitioner underwent spinal surgery,
his neurosurgeon, Dr. Geiger, opined Petitioner’s cord compression was resolved. Petitioner,
however, continued to suffer neurologic symptoms.
Further, the undersigned finds Dr. Fadugba’s opinions less persuasive here, as she is not a
neurologist or a neurosurgeon and has no neurology experience. In contrast, Dr. Geiger and Dr.
Napoli were Petitioner’s treating physicians and a neurosurgeon and neurologist, respectively.
Although Dr. Lancaster opined the cord signal abnormality at C4/5 shown on MRI “is
almost certainly due to cervical spinal stenosis” because it would be an “improbable
coincidence” for Petitioner to have “severe cervical stenosis at this level and cord inflammation
from another cause,” he did not provide evidence or other support as to why an adult with
degenerative disc disease could not also have TM. Resp. Ex. C at 2. Nor did he explain the
signal abnormality at C6/7. The undersigned does not find Dr. Lancaster’s conclusory
statements, without more, persuasive.
31
Even though Dr. Lancaster believes it “improbable” that Petitioner could have two
illnesses, cervical disc disease (cervical stenosis) and a demyelinating myelitis, it also seems
improbable that three different specialists (a neurosurgeon, a neurologist, and a radiologist)
would review Petitioner’s MRI studies and all conclude that he had a demyelinating lesion if the
Petitioner’s clinical course and images were not consistent with such findings.
Respondent’s expert, Dr. Fadugba, opined TM is not the correct diagnosis because
Petitioner’s treating physicians did not exhaust all diagnostic testing. Again, Dr. Fadugba’s
opinion on this point is not persuasive as she is not a neurologist or neurosurgeon. The fact that
a lumbar puncture for CSF analysis was not done does not negate the findings seen on MRI and
the clinical course consistent with those findings.
Dr. Fadugba also opined Petitioner did not have TM because he exhibited confounding
factors, such as persistent hand symptoms, leading to an ultimate diagnosis of carpal tunnel
syndrome. Petitioner underwent an EMG/NCS in November 2017 that did not show significant
carpal tunnel syndrome or radiculopathy. Petitioner was not diagnosed with carpal tunnel
syndrome until 2020, after seeing hand specialist Dr. Webber, 59 almost three years after onset of
his neurologic symptoms.
Moreover, in Theodore, an article filed by Respondent, the author noted that with a
cervical degenerative myelopathy, inflammation and edema of the spinal cord “lead to slow,
progressive deterioration of neurologic function” due to compression. Resp. Ex. C, Tab 5 at 3-4.
By contrast, TM is an acute condition. Petitioner’s clinical course was characterized by an acute
onset. It is important to distinguish between a “slow, progressive deterioration of neurologic
function” versus the sudden, acute onset of neurologic symptoms in this case.
For the reasons described above, the undersigned finds by preponderant evidence that
Petitioner’s diagnosis after vaccination was TM. He also had degenerative disc disease, but
Petitioner is not claiming that condition is vaccine-related.
VI. CAUSATION ANALYSIS
A. Althen Prong One
Under Althen Prong One, Petitioner must set forth a medical theory explaining how the
received vaccine could have caused the sustained injury. Andreu, 569 F.3d at 1375; Pafford, 451
F.3d at 1355-56. Petitioner’s theory of causation need not be medically or scientifically certain,
but it must be informed by a “sound and reliable” medical or scientific explanation. Boatmon,
941 F.3d at 1359; see also Knudsen, 35 F.3d at 548; Veryzer v. Sec’y of Health & Hum. Servs.,
98 Fed. Cl. 214, 223 (2011) (noting that special masters are bound by both § 13(b)(1) and
Vaccine Rule 8(b)(1) to consider only evidence that is both “relevant” and “reliable”). If
Petitioner relies upon a medical opinion to support her theory, the basis for the opinion and the
reliability of that basis must be considered in the determination of how much weight to afford the
59An additional EMG was ordered in March 2020, but it is not clear whether Petitioner
underwent this EMG.
32
offered opinion. See Broekelschen, 618 F.3d at 1347 (“The special master’s decision often times
is based on the credibility of the experts and the relative persuasiveness of their competing
theories.”); Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 n.6 (Fed. Cir. 1994)
(stating that an “expert opinion is no better than the soundness of the reasons supporting it”
(citing Fehrs v. United States, 620 F.2d 255, 265 (Ct. Cl. 1980))).
Regarding Althen prong one, the undersigned finds Petitioner has provided preponderant
evidence that the Tdap vaccine can cause TM and that molecular mimicry is a sound and reliable
causal theory. There are several reasons for this finding, including expert opinions, medical
literature, and other reasoned decisions in the Program.
Petitioner’s expert, Dr. Napoli, opined the Tdap vaccine can cause TM via molecular
mimicry. Dr. Napoli asserted molecular mimicry “is a well-known response in immunology,”
and “[t]he theory of molecular mimicry relating to autoimmune diseases such as [TM] is well-
published and supported in the medical community.” Pet. Ex. 13 at 5-6. He explained, “If the
antigen present on the vaccine shares any homologies with host antigen, then immune response
will be directed at both the injected antigens and host antigen leading to an autoimmune
response.” Id. at 5. For additional support, he cited Olsen et al. and Agmon-Levin et al., who
both described the mechanism of molecular mimicry and found it to be the “most common” or
“postulated” mechanism by which infectious agents or vaccinations cause autoimmune diseases
like TM. Pet. Ex. 18 at 4; Pet. Ex. 22 at 1.
Dr. Fadugba challenged Dr. Napoli’s theory, asserting that “[i]nfection and vaccination
are not analogous.” Resp. Ex. A at 8. However, Dr. Fadugba provided no literature or other
evidence to refute the Petitioner’s proposition that antigens formed by infection and those
formed by vaccination are similar with regard to the mechanism at play. As explained in
Agmon-Levin et al., a “host’s response to a vaccine, originally generated to produce protective
immunity, is similar to its response to an infectious invasion.” Pet. Ex. 18 at 4.
Additionally, Dr. Fadugba asserts that four criteria must be fulfilled in order to find
molecular mimicry is the mechanism at play. The criteria include supportive epidemiology,
identification of antibodies directed against human antigens, identification of the mimics of the
target antigen, and reproduction in an animal model. Dr. Lancaster also opined that specific
antigens from the vaccine and specific antigens within the human body must be identified to
substantiate the mechanism of molecular mimicry in this case. However, Petitioner need not
make a specific type of evidentiary showing with epidemiology. Capizzano, 440 F.3d at 1325.
Given the state of current scientific knowledge, there is no way that a petitioner could satisfy
these criteria. Further, fulfilment of these criteria would require scientific certainty, which is a
bar too high. See Knudsen, 35 F.3d at 549 (explaining that “to require identification and proof of
specific biological mechanisms would be inconsistent with the purpose and nature of the vaccine
compensation program”).
Studies cited by Petitioner acknowledge that TM has been associated with vaccination.
See, e.g., Pet. Ex. 18 at 1 (“The pathogenesis of [TM] is mostly of an autoimmune nature,
triggered by various environmental factors, including vaccination.”). Pidcock et al. examined 47
cases of acute TM and found 13 of the 47 cases received a vaccine, including the DTP vaccine,
33
or allergy shot within 30 days of onset. Similarly, Agmon-Levin et al. reviewed 37 cases of TM
post-vaccination, including post-DTP and post-DT vaccination, and found 30 of the 37 cases
developed symptoms of TM within two months after vaccination. Agmon-Levin et al. discussed
mechanisms by which vaccines may induce TM, and noted molecular mimicry to be “the most
common mechanism.” Pet. Ex. 18 at 4.
Dr. Napoli cited case reports of TM associated with tetanus toxoid booster, DT, and
DTaP. In Read et al., the patient received a tetanus toxoid booster. Ten days later, he was
diagnosed with a viral illness, and 12 days after, he presented with neurologic symptoms and was
diagnosed with TM. The authors concluded that the temporal association and lack of any other
cause implicated the tetanus vaccination. Another case report, by Whittle and Robertson,
described the case of patient who received DT and oral polio vaccines prior to TM onset.
And Riel-Romero described a case of a patient who developed TM 17 days after DTaP
vaccination. The authors hypothesized that their patient’s TM was caused by vaccination. They
found an immune-mediated process to be at play, specifically noting molecular mimicry as a
postulated mechanism.
Generally, case reports and literature reviews citing cases are insufficient to prove
causation. However, in the context of rare conditions, where robust epidemiology studies are not
available, they provide some evidence of causation. And here, where the medical literature
reported TM cases associated with vaccines containing tetanus and/or diphtheria components,
this evidence weighs in favor of causation.
Lastly, molecular mimicry has been accepted as a sound and reliable theory for many
demyelinating conditions, including TM, in the Vaccine Program. See, e.g., Palattao v. Sec’y of
Health & Hum. Servs., No. 13-591V, 2019 WL 989380, at *35-37 (Fed. Cl. Spec. Mstr. Feb. 4,
2019) (noting “many of the existing Program decisions in which TM has been found to be caused
by a vaccine rely on a mechanism [of] []molecular mimicry”); Raymo v. Sec’y of Health &
Hum. Servs., No. 11-0654V, 2014 WL 1092274, at *21 (Fed. Cl. Spec. Mstr. Feb. 24, 2014)
(former Chief Special Master Denise Vowell concluding molecular mimicry explained how the
tetanus vaccine can cause TM); Roberts v. Sec’y of Health & Hum. Servs., No. 09-427V, 2013
WL 5314698, at *6-7 (Fed. Cl. Spec. Mstr. Aug. 29, 2013) (finding the Petitioner entitled to
compensation in a Tdap/TM case with the theory of molecular mimicry); see also Bowes v.
Sec’y of Health & Hum. Servs., No. 01-481V, 2006 WL 2849816 (Fed. Cl. Spec. Mstr. Sept. 8,
2006). Compare Palattao, 2019 WL 989380, at *35-37 (Chief Special Master Corcoran denying
entitlement in a TM case where the facts did not support application of molecular mimicry), with
I.J. v. Sec’y of Health & Hum. Servs., No. 16-864V, 2022 WL 277555, at *4-7 (Fed. Cl. Spec.
Mstr. Jan. 4, 2022) (Chief Special Master Corcoran finding Petitioner entitled to compensation
on remand in a Tdap/TM case that relied upon the theory of molecular mimicry).
While the above cases are not binding here, the undersigned agrees with the reasoning of
other special masters who have found molecular mimicry to be a sound and reliable mechanism
to explain how the Tdap vaccine can cause TM.
34
Accordingly, for all of the reasons discussed above, the undersigned finds that Petitioner
has satisfied his burden under Althen prong one.
B. Althen Prong Two
Under Althen Prong Two, Petitioner must prove by a preponderance of the evidence that
there is a “logical sequence of cause and effect showing that the vaccination was the reason for
the injury.” Capizzano, 440 F.3d at 1324 (quoting Althen, 418 F.3d at 1278). “Petitioner must
show that the vaccine was the ‘but for’ cause of the harm . . . or in other words, that the vaccine
was the ‘reason for the injury.’” Pafford, 451 F.3d at 1356 (internal citations omitted).
In evaluating whether this prong is satisfied, the opinions and views of the vaccinee’s
treating physicians are entitled to some weight. Andreu, 569 F.3d at 1367; Capizzano, 440 F.3d
at 1326 (“[M]edical records and medical opinion testimony are favored in vaccine cases, as
treating physicians are likely to be in the best position to determine whether a ‘logical sequence
of cause and effect show[s] that the vaccination was the reason for the injury.’” (quoting Althen,
418 F.3d at 1280)). Medical records are generally viewed as trustworthy evidence, since they are
created contemporaneously with the treatment of the vaccinee. Cucuras, 993 F.2d at 1528.
Petitioner need not make a specific type of evidentiary showing, i.e., “epidemiologic studies,
rechallenge, the presence of pathological markers or genetic predisposition, or general
acceptance in the scientific or medical communities to establish a logical sequence of cause and
effect.” Capizzano, 440 F.3d at 1325. Instead, Petitioner may satisfy his burden by presenting
circumstantial evidence and reliable medical opinions. Id. at 1325-26.
With regard to the second Althen prong, the undersigned finds there is preponderant
evidence in the record to support a logical sequence of cause-and-effect showing the February
24, 2017 Tdap vaccine to be the cause of Petitioner’s TM. See Althen, 418 F.3d at 1278.
Here, the records show a clinical course consistent with the mechanism and time frame
within which TM can occur following vaccination. To summarize, Petitioner received a Tdap
vaccine on February 24, 2017 and reported to his primary care physician, Dr. Hedde, that he
developed neurological symptoms on March 30, 2017. Dr. Hedde’s assessment in July 2017
included neuropathy. On September 8, 2017, Petitioner first presented to neurosurgeon, Dr.
Geiger, whose assessment was acute TM. Petitioner then presented to neurologist Dr. Napoli on
September 20, 2017, where Petitioner was diagnosed with myelitis and demyelinating disease of
the central nervous system. Petitioner’s cervical spine MRI, conducted in October 2017,
revealed abnormalities consistent with demyelinating disease.
Additionally, Petitioner’s treating physicians related Petitioner’s TM to his Tdap vaccine.
For example, Dr. Napoli, as Petitioner’s treating neurologist, found Petitioner “sustained a
vaccine induced myelitis.” Pet. Ex. 3 at 22; see also Pet. Ex. 3 at 25 (writing he “wonder[ed]
about possible vaccine [induced] myelitis”); Pet. Ex. 3 at 17 (“[Petitioner] does appear to have
vaccine induced myelitis . . . . [H]is symptoms appear to be consistent with a vaccine induced
demyelination . . . .”); Pet. Ex. 3 at 11 (“[Petitioner] has what we presume to be a post vaccine
myelitis.”); Pet. Ex. 3 at 9 (stating he believed that Petitioner’s issue was “a post vaccine issue”);
Pet. Ex. 3 at 6 (indicating he “suspect[ed] previous vaccine induced myelitis”). Dr. Geiger, as
35
Petitioner’s treating neurosurgeon, also related Petitioner’s condition to vaccination. See Pet.
Ex. 9 at 3-4 (noting Petitioner’s “[TM] type syndrome” was “likely due to the inciting post-
injection reaction”). Lastly, Dr. Hedde, Petitioner’s primary care physician listed Tdap as an
allergy, writing “? adverse reaction given [TM].” Pet. Ex. 2 at 9.
Petitioner’s sudden and acute onset of symptoms is also consistent with the case reports
cited by Dr. Napoli. In all three case reports, Read et al., Whittle and Robertson, and Riel-
Romero, the patients developed symptoms of TM within two to three weeks of vaccination and
the symptoms were consistent with sudden onset paralysis. While onset in these cases was closer
in time to vaccination, the rate at which symptoms appeared is similar to Petitioner’s
presentation.
Lastly, there is no evidence of an alternative cause. Petitioner did not have any signs or
symptoms of an infection around the time of onset. Nor was he diagnosed with any infection or
any other autoimmune condition. There is evidence that Petitioner has degenerative disc disease.
However, as described above in the diagnosis section, these diagnoses are two separate
conditions. Dr. Geiger found his cord compression resolved, while Petitioner’s neurological
symptoms continued. Thus, Petitioner’s cervical disc disease cannot explain his continued
neurologic symptoms. Nor can a 2020 diagnosis of carpal tunnel syndrome explain Petitioner’s
neurologic symptoms that began in 2017.
Accordingly, the undersigned finds that Petitioner has satisfied his burden under Althen
prong two.
C. Althen Prong Three
Althen Prong Three requires Petitioner to establish a “proximate temporal relationship”
between the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been
defined as a “medically acceptable temporal relationship.” Id. The Petitioner must offer
“preponderant proof that the onset of symptoms occurred within a time frame for which, given
the medical understanding of the disorder’s etiology, it is medically acceptable to infer
causation-in-fact.” de Bazan, 539 F.3d at 1352. The explanation for what is a medically
acceptable time frame must also coincide with the theory of how the relevant vaccine can cause
the injury alleged (under Althen Prong One). Id.; Koehn v. Sec’y of Health & Hum. Servs., 773
F.3d 1239, 1243 (Fed. Cir. 2014); Shapiro, 101 Fed. Cl. at 542; see Pafford, 451 F.3d at 1358.
Petitioner received his Tdap vaccination on February 24, 2017. In his declaration,
Petitioner reported his neurological symptoms began the morning of March 31, 2017. The
experts agree Petitioner’s symptoms began on March 30 or March 31, 2017. Based on the most
contemporaneous-in-time medical records, and consistent with the experts’ opinions, the
undersigned finds Petitioner’s onset of TM to be on March 31, 2017, which is 35 days, or five
weeks, post-vaccination.
This timing is within Dr. Napoli’s six-week period, consistent with molecular mimicry.
Dr. Napoli opined the IOM found “an increased risk of autoimmunity primarily concentrated
within the first six weeks after vaccination.” Pet. Ex. 13 at 6 (citing Pet. Ex. 21 at 5).
36
Schonberger et al. found an increased risk of GBS within five weeks following flu vaccination,
and noted an “increased incidence of demyelinating injury was seen up to 9 or 10 weeks
following vaccination.” Id. (citing Pet. Ex. 20 at 1).
In Agmon-Levin et al., the authors found 30 of the 37 TM cases reported onset within the
first two months after vaccination. And Pidcock et al. found 13 of the 47 acute TM cases
received a vaccine or allergy shot within 30 days of onset.
Additionally, this timing is within the 42-day risk interval used in Baxter et al. Although
the authors found “no statistically significant increased risk” of TM post-vaccination within the
2- to 42-day risk interval, the authors did find cases of TM that occurred within and outside of
this interval.
While 35 days is five days outside the time frame of 30 days in Pidcock et al., it is
exceedingly close, and within the two-month period in Agmon-Levin et al. and the 42-day
interval in Baxter et al. See Paluck v. Sec’y of Health & Hum. Servs., 786 F.3d 1373, 1383-84
(Fed. Cir. 2015) (finding the “special master [] erred in setting a hard and fast deadline . . .
between vaccination and [] onset”). Therefore, it reasonable and appropriate to find that the
onset of Petitioner’s TM is within the appropriate time frame given the mechanism of molecular
mimicry.
Therefore, the undersigned finds the temporal association is appropriate given the
mechanism of injury and Petitioner has satisfied the third Althen prong.
D. Alternative Causation
Because the undersigned concludes that Petitioner has established a prima facie case,
Petitioner is entitled to compensation unless Respondent can put forth preponderant evidence
“that [Petitioner’s] injury was in fact caused by factors unrelated to the vaccine.” Whitecotton v.
Sec’y of Health & Hum. Servs., 17 F.3d 374, 376 (Fed. Cir. 1994), rev’d on other grounds sub
nom., Shalala v. Whitecotton, 514 U.S. 268 (1995); see also Walther v. Sec’y of Health & Hum.
Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007). As discussed above in the analysis related to
Althen Prong Two, the undersigned found Respondent failed to show that Petitioner’s TM was
caused by a source other than vaccination. Specifically, the undersigned does not find that
Petitioner’s cervical disc disease was the cause of his TM. Thus, Respondent did not prove by a
preponderance of evidence that Petitioner’s injury is “due to factors unrelated to the
administration of the vaccine.” § 13(a)(1)(B).
VII. CONCLUSION
For the reasons discussed above, the undersigned finds that Petitioner has established, by
preponderant evidence, that his Tdap vaccine caused his TM. Therefore, Petitioner is entitled to
compensation. A separate damages order will issue.
IT IS SO ORDERED.
37
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
38 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483554/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-1031
________________
WILLIAM A. BAUM,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action Nos. 2-19-cv-00421)
District Judge: Honorable Cathy Bissoon
Submitted under Third Circuit LAR 34.1(a)
On September 24, 2021
Before: MCKEE*, RESTREPO, and ROTH, Circuit Judges
(Opinion filed: November 14, 2022)
________________
OPINION *
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
*Judge McKee assumed senior status on October 21, 2022.
ROTH, Circuit Judge
William Baum alleges that his employer, the Social Security Administration
(SSA), subjected him to discrimination and retaliation because of his sex and disabilities
(ulcerative colitis and liver disease), about which he had previously filed EEOC
complaints. The District Court granted the SSA’s motion for summary judgment,
finding that Baum presented no evidence that the SSA denied him promotions because of
his disability or in retaliation for filing EEOC charges. The District Court also held that
Baum had not meaningfully refuted any of the SSA’s stated non-discriminatory bases for
its decisions. We will affirm.
I.
Baum’s claims pertain to his non-selection for two promotions. Baum applied for
and was denied a promotion to district manager in his office in Butler, PA. He also
applied for and was denied a promotion to assistant district manager in Ambridge, PA. In
addition, Baum argued that his subsequent demotion from operations supervisor to claims
representative was discriminatory and retaliatory. 1
1
Baum additionally argued that a 2017 performance review by Amber Mundis was an
adverse employment action. Although the SSA argued that any claim based on the
performance review was waived, we do not conclude that waiver or forfeiture took place.
Nonetheless, we hold that the 2017 review was not an adverse employment action as it
was not “serious and tangible enough to alter [Baum’s] compensation, terms, conditions,
or privileges of employment.” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d
Cir. 2004). In fact, Baum’s score of a 4.0 out of 5.0 was by no means a bad score, as it
meant that he was eligible for a bonus. It also did not result in loss of pay or a demotion.
See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (holding written
reprimands were not adverse employment actions because they had not caused a
“material change in the terms or conditions of his employment”).
2
The Butler position became available when Baum’s former supervisor, George
Ziecina, retired. Baum served as Ziecina’s right-hand man. Baum, and at least eight
other employees, applied to replace Ziecina. Ziecina’s immediate supervisor, Amber
Mundis, recommended against Baum’s selection. She noted that Baum had difficulties
providing honest and timely feedback, collaborating with coworkers, engaging
employees, demonstrating leadership, and communicating appropriately and sufficiently.
The position ultimately went to a different candidate who outranked Baum in the SSA,
had previously served as a district manager, and had received praise for his
communication skills. Baum later applied for an assistant district manager position in the
Ambridge office. The position again went to someone who had experience in the
position and office. Baum was then demoted for sending unprofessional text messages to
a coworker.
Baum was upset by his non-promotions and made several inappropriate and
potentially threatening remarks in response. The District Court discussed these after-the-
fact comments, which Baum now argues amounted to making an improper credibility
determination at the summary-judgment stage. In granting summary judgment, the
District Court held that Baum had not identified any evidence showing that he was denied
promotion in retaliation for filing an EEOC charge. Indeed, Baum failed to show that his
supervisor knew he had filed an EEOC charge before passing him over for the first
promotion. Baum also failed to cast doubt on the SSA’s evidence that he was not
promoted because he was less qualified for the position than other candidates.
3
II. 2
We review a district court’s grant of summary judgment de novo, applying the
same standard the district court would use. 3 Summary judgment is appropriate only if the
movant shows that there is no genuine dispute about any material fact and the movant is
entitled to judgment as a matter of law. 4
III.
Title VII prohibits an employer from discriminating against an employee on the
basis of race, color, religion, sex, or national origin. 5 Courts have also determined that
Title VII’s anti-retaliation protections extend to the federal government. 6 7
To state a prima facie case of retaliation, Baum must show that (1) he engaged in
a protected activity, (2) he suffered an adverse employment action, and (3) there was a
causal connection between the participation in the protected activity and the adverse
action. 8 A plaintiff seeking to prove his case through indirect evidence, as Baum seeks to
2
The District Court had jurisdiction under 28 U.S.C. § 1331, and we exercise appellate
jurisdiction under 28 U.S.C. § 1291.
3
Matheis v. CSL Plasma, Inc., 936 F.3d 171, 176 (3d Cir. 2019).
4
FED. R. CIV. P. 56(a).
5
42 U.S.C. § 2000e–16(a).
6
See id. § 2000e–3(a); Komis v. Sec’y of United States Dep’t of Lab., 918 F.3d 289, 294
(3d Cir. 2019) (“[F]ederal employees may bring claims of retaliation under Title VII.”)
7
Title VII does not protect against discrimination or retaliation based on disability. On
appeal, the SSA maintains that Baum failed to assert a disability-based retaliation claim
under the Americans with Disabilities Act, as applied to the federal government through
the Rehabilitation Act. Baum, however, maintains that the SSA understood him to be
asserting a claim for retaliation in addition to discrimination under the Rehabilitation Act,
as evidenced by their failure to challenge this until appeal. We need not decide this issue
because we will affirm the District Court’s order on alternative grounds.
8
Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006)
4
do here, may do so under the familiar McDonnell Douglas burden-shifting
framework. 9 After establishing a prima facie case, the burden shifts to the employer to
provide a legitimate non-retaliatory reason for its conduct. 10 If it does, the burden shifts
back to the plaintiff “to convince the factfinder both that the employer’s proffered
explanation was false [that is, a pretext], and that retaliation was the real reason for the
adverse employment action.” 11
Baum does not establish causation at either stage because he failed to present
evidence that his non-selections and demotions were because of any prior, protected
EEOC activity. Although Baum maintains that it is possible that Mundis was aware that
he had engaged in protected activity by filing an EEOC complaint against her in
December 2016, Baum’s mere speculation that Area Director Greg Roy told her of the
claim or that she found out through other means is insufficient to show causation. 12
Baum also failed to establish a causal link because he did not show “unusually
suggestive” timing, as around ten months had passed between Baum’s initial EEOC
contact and his Butler non-selection, and another three months between Baum’s second
9
McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973).
10
Moore, 461 F.3d at 342.
11
Id.
12
See Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 197 (3d Cir. 2015) (“Daniels
cannot justifiably rely on mere speculation that these adverse actors learned of her
complaints from other employees in the school district.”); Halsey v. Pfeiffer, 750 F.3d
273, 287 (3d Cir. 2014) (holding that an inference based on speculation or conjecture
does not create an issue of material fact sufficient to survive summary judgment).
5
round of EEOC activity (after the Butler non-selection) and the Ambridge non-selection.
Without more, these gaps are too long to support a causal link. 13
Given that the timing is not “unusually suggestive,” we consider whether the
proffered evidence as a whole is sufficient to raise the inference of retaliation. “Among
the kinds of evidence that a plaintiff can proffer are intervening antagonism or retaliatory
animus, inconsistencies in the employer’s articulated reasons for terminating the
employee, or any other evidence in the record sufficient to support the inference of
retaliatory animus.” 14 Baum did not provide any such evidence, nor did he show that the
SSA’s reasons for its actions were pretextual. .
The District Court’s consideration of Baum’s inappropriate comments made after
his rejections was also proper. Rather than being used for credibility and intent
purposes, which would best be left to a jury, the District Court clearly referred to these
comments to underscore the non-discriminatory reasons why Baum was not promoted.
Finally, Baum argues that the District Court’s grant of summary judgment on his
Rehabilitation Act claim was improper as the District Court did not decide whether the
SSA failed to accommodate his disabilities or state any reasons for granting summary
judgment with respect to this claim. However, the District Court thoroughly and
thoughtfully canvassed the relevant record, referred to the Rehabilitation Act claim, and
13
See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007)
(“Although there is no bright line rule as to what constitutes unduly suggestive temporal
proximity, a gap of three months between the protected activity and the adverse action,
without more, cannot create an inference of causation and defeat summary judgment.”).
14
LeBoon, 503 F.3d at 232–33.
6
correctly concluded that “[t]here is not one whiff of evidence that Plaintiff was passed
over, or demoted, because of a disability or in retaliation for having filed EEO charges.” 15
Baum’s Rehabilitation Act argument focused entirely on his non-selections for the
promotions, which the District Court adequately addressed.
IV.
For these reasons, we will affirm the judgment of the District Court.
15
Appx. 7.
7 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483564/ | Case: 20-61193 Document: 00516543208 Page: 1 Date Filed: 11/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-61193 FILED
Summary Calendar November 14, 2022
Lyle W. Cayce
Clerk
Mari Sonia Portillo-Aceituno,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A078 959 625
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Mari Sonia Portillo-Aceituno, a native and citizen of Honduras,
petitions for review of an order by the Board of Immigration Appeals (BIA)
dismissing her appeal from the Immigration Judge’s (IJ) denial of her motion
to reopen proceedings. On September 21, 2002, the U.S. Department of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-61193 Document: 00516543208 Page: 2 Date Filed: 11/14/2022
No. 20-61193
Justice (DOJ) Immigration and Naturalization Service personally served
Portillo-Aceituno with a Notice to Appear (NTA) that contained the place,
but not the date or time of her hearing. A Form I-830, dated September 24,
2002, noted that Portillo-Aceituno reported her address would be “c/o
Gloria Argentina PORTILLO-Aceituno; aka: Maria Vitalina PORTILLO-
Melendez (Cousin) 2434 Prospect Ave. Bronx, NY 10458” upon her release
from custody. A notice of hearing was mailed to this address. The notice
was returned to the DOJ Executive Office for Immigration Review as
“attempted not known[.]” On February 25, 2003, Portillo-Aceituno failed to
appear and the IJ entered an in absentia order of removal against her.
This court reviews “the BIA’s denial of a motion to reopen or to
reconsider under a highly deferential abuse-of-discretion standard.” Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA “abuses its discretion
when it issues a decision that is capricious, irrational, utterly without
foundation in the evidence, based on legally erroneous interpretations of
statutes or regulations, or based on unexplained departures from regulations
or established policies.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021
(5th Cir. 2014). We review the BIA’s rulings of law de novo and its findings
of fact for substantial evidence. Id. Under the substantial evidence standard,
we “may not overturn the BIA’s factual findings unless the evidence compels
a contrary conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009).
Portillo-Aceituno argues that the BIA abused its discretion in
affirming the IJ’s denial of her motion to reopen on the basis that she was
properly served with her NTA. 1 She asserts that her older cousin, who
1
On September 27, 2021, after the parties submitted briefing in this case, this court
issued Rodriguez v. Garland, 15 F.4th 351, 354-56 (5th Cir. 2021), which held that an initial
NTA lacking a date, time, and place of a removal hearing does not meet the relevant
2
Case: 20-61193 Document: 00516543208 Page: 3 Date Filed: 11/14/2022
No. 20-61193
traveled to the United States with her, was served with her NTA and her
cousin provided the inaccurate address without her knowledge. She
highlights that she was 16 at the time, did not speak English, and could not
write or read Spanish. As a result of the inaccurate address, she maintains
that she could not have received proper notice of her removal proceedings
and the IJ should not have ordered her removed in absentia.
Here, the BIA did not abuse its discretion in concluding that Portillo-
Aceituno was personally and properly served with her NTA. See Barrios-
Cantarero, 772 F.3d at 1021. First, this court cannot overturn the BIA’s
factual finding that Portillo-Aceituno was personally served with the NTA
because the evidence does not compel a contrary conclusion. See Gomez-
Palacios, 560 F.3d at 358. The NTA bears Portillo-Aceituno’s signature and
fingerprint; she was provided oral notice in Spanish of the time (to be set)
and place of her hearing and the consequences of her failure to appear; and
she acknowledges that she did sign the NTA. There is nothing in the record
to suggest that Portillo-Aceituno’s cousin was served with the NTA instead.
Furthermore, the BIA has interpreted its regulations to permit NTA service
on minors 14 years old or older, and we have approved that interpretation.
See Lopez-Dubon v. Holder, 609 F.3d 642, 645-46 (5th Cir. 2010); 8 C.F.R. §
103.8(c)(2)(ii).
Similarly, the BIA did not abuse its discretion in concluding that
notice was proper where the hearing notice was sent to Portillo-Aceituno’s
address of record and the NTA informed her of the consequences of failing
to notify the immigration court of any change of address. See Barrios-
statutory requirements and such defects cannot be cured by subsequent written notice of
the hearing. Portillo-Aceituno did not raise this case or suggest relevancy to her case via a
Federal Rule of Appellate Procedure 28(j) letter. We will treat any such argument as
abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
3
Case: 20-61193 Document: 00516543208 Page: 4 Date Filed: 11/14/2022
No. 20-61193
Cantarero, 772 F.3d at 1021; see also Lopez-Dubon, 609 F.3d at 646-47. An
alien is required to provide the immigration court with an address and take
affirmative steps to ensure the accuracy of the address. Mauricio-Benitez v.
Sessions, 908 F.3d 144, 148-49 (5th Cir. 2018). This obligation exists
“[r]egardless of how [any] error in [the alien’s] address was introduced.” Id.
at 149. Thus, even if Portillo-Aceituno’s cousin was the party to provide an
inaccurate address on the Form I-830, resulting in Portillo-Aceituno’s failure
to receive her notice of hearing by mail, Portillo-Aceituno’s affirmative
address reporting obligations remained. See id. Accordingly, the BIA did not
abuse its discretion in upholding the denial of Portillo-Aceituno’s motion to
reopen removal proceedings. See Barrios-Cantarero, 772 F.3d at 1021.
Finally, Portillo-Aceituno contends that the BIA committed legal
error in finding that the facts and circumstances of her case failed to
demonstrate the BIA’s exercise of its sua sponte authority was warranted.
We lack jurisdiction to consider the BIA’s refusal to reopen Portillo-
Aceituno’s removal proceedings sua sponte. See Gonzalez-Cantu v. Sessions,
866 F.3d 302, 306 (5th Cir. 2017).
Accordingly, the petition for review is DENIED in part and
DISMISSED in part.
4 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491043/ | MEMORANDUM DECISION
JOHN J. HARGROVE, Bankruptcy Judge.
At issue is whether petitioning unsecured creditors in an involuntary Chapter 7 case impliedly consent to the payment of reasonable trustee’s fees where there are no unencumbered assets available for distribution.
The issue arises on the motion of plaintiff Philip J. Giacinti Jr., trustee (“trustee”) for summary judgment. Trustee contends that petitioning creditors in an involuntary petition for relief under Chapter 7 impliedly consent to the payment of trustee’s fees, and therefore are personally liable for the payment of trustee fees if the estate is insolvent.
This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157(b)(1) and General Order No. 312-D of the United States District Court, Southern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A).
FACTS
This court finds that the following facts are undisputed by the evidence presented.
On November 17, 1980, an involuntary petition was filed against Coast Packing *411Material Company (“Coast”) by unsecured creditors Harold Nelson, Nelson Enterprises, and Harold Nelson as trustee and administrator of the Coast Packing Material Corporation Pension Plan Trust (“Nelson”). On November 18, 1980, Nelson filed a second involuntary petition against First Container Corporation of America (“First Container”), which was joined by unsecured creditors D.M. Oliver dba Warrens Industrial Sheet Metal, and Mesa Services. Philip J. Giacinti Jr., Esq., accepted appointment as trustee in both of the cases.
The assets of the estates were fully encumbered by secured creditors Westinghouse Credit Corporation (“Westinghouse”), John Ingram, and Ingram and Company (“Ingram”).
With the consent of Westinghouse and Ingram, the trustee liquidated the debtor companies. Sale proceeds were insufficient to pay Westinghouse and Ingram in full.
After making disbursement to the secured creditors, the trustee applied to this court for his statutory fees and costs. Trustee also filed a motion to dismiss the involuntary Chapter 7 cases. On July 11, 1988, this court issued its order which 1) dismissed the involuntary petition; 2) found the trustee’s services reasonable; 3) awarded the trustee $8,730 in fees; and 4) reserved jurisdiction regarding the trustee’s request to surcharge the secured creditors, and petitioning creditor Nelson.
The trustee filed this adversary proceeding for payment of trustee’s fees, amounting to $8,730 against petitioning creditor Nelson, and secured creditors Westinghouse and Ingram. Westinghouse and Ingram ultimately compromised the trustee’s claim for $4,000.
The trustee now seeks payment of $4,730, the unpaid balance of his allowed fees, from petitioning creditor Nelson, on the basis of implied consent.
DISCUSSION
The trustee contends that petitioning unsecured creditor Nelson impliedly consented to the payment of trustee’s fees by requesting the trustee’s appointment. The trustee alleges that the equitable principles of bankruptcy demand payment when a petitioning creditor commences an involuntary case, asks for the appointment of a trustee, obtains the valuable service from a trustee, and is aware that there are no unencumbered assets of the estate.
This court disagrees and concludes that Nelson did no more than exercise a statutory right available under 11 U.S.C. § 303. There is no statutory authority requiring that the trustee be reimbursed for his services by the petitioning unsecured creditors. The 1980 statutory fee of $20.00 compensates the trustee in an involuntary Chapter 7 proceeding just as it does in a voluntary case. 11 U.S.C. § 330(b).
The trustee’s reliance on In re Hotel Associates, Inc., 6 B.R. 108 (Bankr.E.D.Pa. 1980) is misplaced. That case involved secured creditors and a reorganization under Chapter 11. There, the trustee applied to the court for an assurance that regardless of the outcome of the debtor’s proposed reorganization, the trustee’s costs and expenses would be reimbursed. The court noted that the secured party moving for the appointment of a trustee clearly knew or should have known from the outset that the debtor’s estate was insubstantial, apart from the secured assets, and granted the assurance, relying on 11 U.S.C. § 506(c) which provides that:
[t]he trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.
However, § 506(c) is inapplicable to an unsecured creditor. The trustee in the present case unfortunately did not seek prior court assurance of the payment of trustee’s fees, despite the strong probability that the end result would be a no-asset estate.
The trustee’s further contention that the court may condition the dismissal of a case upon the payment of reasonable fees and costs is also without merit under the particular circumstances of this case. The trustee’s reliance on In re Flying S Land & Cattle Co., Inc., 23 B.R. 56 (Bankr.C.D.Cal.1982) for this proposition is *412also misplaced. In Flying S, a surplus estate was generated by the efforts of the trustee, and exempt proceeds were returned to the debtor. The bankruptcy court authorized payment to the trustee to prevent unjust enrichment of the debtor. In the present case there has been no unjust enrichment of the debtor, or Nelson.
CONCLUSION
No equitable interests are served by requiring an unsecured creditor, who received no benefit nor unjust enrichment from the trustee’s efforts, to pay trustee’s fees in an involuntary Chapter 7 proceeding solely on the basis of his status as a petitioning creditor. Trustee’s motion for summary judgment is denied, and judgment is entered in favor of defendant Nelson. The request of Nelson for payment of reasonable attorney’s fees pursuant to Bankruptcy Rules 7008(b) and 7054(b) is misplaced and accordingly denied.
This Memorandum Decision constitutes findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. Counsel for Nelson is directed to file with this court an Order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491044/ | ORDER DENYING OBJECTION OF UNITED STATES TRUSTEE TO FINAL ACCOUNT
MICKEY DAN WILSON, Bankruptcy Judge.
This matter comes on for hearing this 8th day of November, 1989 pursuant to regular assignment; Successor Trustee, J. Scott McWilliams, appears in person and acting as his own attorney and the United *446States Trustee appears by its attorney, Lorraine Echols. The United States Trustee objects to the final account of the Successor Trustee alleging unauthorized disbursements to Michael H. Freeman in the amount of $19,662.04 and an unauthorized disbursement to Talbot, Bird and Company in the sum of $3,948.31.
The Successor Trustee proceeded to present his accounting; whereupon, the United States Trustee stated it was unable to find proper authorization for the disbursements and that the case pleadings, being complicated and voluminous, did not reveal orders of the Court authorizing said disbursements. The Successor Trustee’s response, filed November 8, 1989, discloses the whereabouts of the particular orders authorizing the disbursements.
It is noteworthy to mention that the Successor Trustee’s final account was filed on September 26, 1989 and the objection to the final account was filed one day before this hearing, on November 7, 1989, and the Successor Trustee’s response to said objection was filed immediately before the hearing. Statements of counsel and pleadings reveal that the Successor Trustee’s final account was signed on August 16, 1989 and about that time submitted to the office of the United States Trustee for their approval. The submission of a Trustee’s proposed final account is required to be submitted to the United States Trustee before a Trustee is allowed to file the same under penalty of breach of the United States Trustee's internal regulations. If this procedure were not followed appropriate sanction may be levied by the United States Trustee against the offending party (the panel Trustee) as deemed necessary by the United States Trustee and as allowed by internal regulations, in the event the final account of the Trustee is not submitted to the United States Trustee’s Office for their approval before filing. The obvious sanction against the panel Trustee would be that the United States Trustee would not appoint that individual as Trustee in future cases, thereby terminating the individual’s employment as a Trustee.
The effect of this procedure is to prohibit Trustees from access to the Courts; for if the Trustee files its final account without approval of the United States Trustee’s Office then the Trustee subjects itself to sanctions which may or might deprive the Trustee of its livelihood as Trustee. The internal regulation or procedure of the United States Trustee in preventing an individual access to the courts is repugnant to this Court and violates the most fundamental right of any individual to seek access to the Courts. In addition, this procedure or regulation transcends and supersedes the statutory duties of a Trustee as set forth in Congressional Acts and Bankruptcy Rules having the force and effect of statutes. The Trustee is not an employee of the United States Trustee’s Office but is an officer of the court, an independent entity with responsibilities to creditors and equity security holders.
Upon receipt of the Successor Trustee’s response to the objection of the United States Trustee, the United States Trustee then stated that in the event the orders do exist as set forth by the Successor Trustee then the United States Trustee would withdraw its objection to the final account. The United States Trustee then stated that it is incumbent upon the Successor Trustee to provide for them the specific information requested and that the United States Trustee is not required to discover the appropriate pleadings authorizing payments. The Successor Trustee states that it is not the job of the Successor Trustee to do the job and the work of the United States Trustee and it is incumbent upon the United States Trustee to determine the basis for their objections.
The United States Trustee is subject to the laws of the United States of America like any other entity. Bankruptcy Rule 9011 applies to attorneys representing entities including attorneys representing the United States Trustee’s Office, and the signature of an attorney, including attorneys representing the United States Trustee, constitute a certificate by that individual that that individual has read the pleading and that the contents thereof, upon the best knowledge of the attorney is well grounded in fact and is warranted after reasonable inquiry.
There is obviously a lack of communication and/or consideration for the *447other party in this matter for the objection accuses the Former Trustee either as Trustee or when acting as his own attorney of improper payments totaling $19,662.04. Such a serious allegation affirms the necessity of a reasonable inquiry by the person making the allegation that facts exist which support the allegation. Being unable to find the orders authorizing the disbursements because of the pleadings being voluminous is a poor, unacceptable reason for such an allegation. It is not the duty of the Trustee to do the work of the Office of the United States Trustee1 such as providing to the United States Trustee specific copies of pleadings which are a part of the court record. All parties should treat the other with the respect to which each would like to be treated, each assisting the other in the performance of their statutory duties and, of course, all attorneys should be aware of their ethical duties as set forth in part in Bankruptcy Rule 9011.
For the above reasons, the United States Trustee’s objection to the final account is hereby denied.
AND IT IS SO ORDERED.
. The Court is well aware of the substantial workload of the Office of the United States Trustee and of their lack of ability to discharge their statutory duties. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491045/ | AMENDED MEMORANDUM DECISION AND ORDER
STEPHEN J. COVEY, Bankruptcy Judge.
Debtor, Sally E. Pfingsten, filed a motion to avoid a lien under § 522(f) of the Bankruptcy Code on September 28, 1989. Marvin Pfingsten, holder of the lien, objects to this motion.
The issue is whether a lien created in the divorce decree against the Debtor’s homestead property constitutes an avoidable judicial lien under 11 U.S.C. § 522(f).
The real property at issue, which is currently occupied as homestead by the Debt- or, was acquired during the marriage between Debtor and Marvin Pfingsten and held in joint tenancy with a right of surviv-orship during that time. However, upon divorce of the parties in November of 1980, the decree set forth the following requirements in an effort to equitably divide the property. The Debtor was awarded the homestead “free and clear of any claims, rights or interests whatsoever of the Defendant [Marvin Pfingsten].” However, in contrast, Marvin Pfingsten was granted a lien for his share of the equity of the homestead property which was foreclosable under specified conditions. On one hand, the decree purports to give the Debtor the homestead “free and clear”, but it clearly grants Marvin Pfingsten a lien to secure his equity in the homestead, while allowing *455the Debtor to occupy the premises subject to the lien.
Section 522(f) requires the Debtor-mov-ant seeking to avoid a lien to prove three elements:
(1) The lien must be fixed on an interest of the debtor in property;
(2) The lien must impair an exemption to which the debtor would have been entitled;
(3) The lien must be a “judicial lien”.
The Debtor fails to meet the requirements under the first element. Here, the lien on the homestead was not fixed “after” the Debtor acquired the interest in the property, but was fixed simultaneously when both the lien and the property interest were created. The Debtor received the homestead property “subject to” the lien, thus in an encumbered state. See In re Williams, 38 B.R. 224 (Bkrtcy.N.D.Okla. 1984).
Moreover, the question arises whether the lien at issue can be considered a “judicial lien.” 1 This Court has previously held that a divorce decree lien securing a spouse’s equity in the property was in the nature of a security interest and, therefore, did not constitute a “judicial lien.” In re Conway, 93 B.R. 731 (Bkrtcy.N.D.Okla. 1988).
We hold that the lien on the Debtor’s homestead is not avoidable because “§ 522(f) and its avoidance rights are not to be construed to be so broad as to play havoc with divorce decrees and equitable division of property involved in domestic matters.” Conway at 734 (citing In re Hinson, 85-00218-W (Bankr.N.D.Okla. 1986) (slip opinion)).
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the motion to avoid the lien on Debtor’s homestead property under § 522(f) will be denied.
. While the Court need not reach the issue of whether the second requirement is met, there is authority in the case of In re Scott, 12 B.R. 613 (Bkrtcy.W.D.Okla.1981), that a lien created on property via a divorce decree such as the one in this case, does not constitute an exemption to which the Debtor would be entitled under Oklahoma law. In discussing Oklahoma divorce law, the court noted that property settlements specifically contemplated establishment of liens on property in an effort to equitably divide it among the separating parties. The Court stated, "it is clear that under State law, the Oklahoma homestead exemption cannot be used to defeat property rights and interests awarded in divorce proceedings to accomplish fair property divisions between the parties.” Id. at 616. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491046/ | ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS is a Chapter 11 case and the matter under consideration is an Objection by Ui-terwyk Corporation (Debtor) to the claims of Francis Joseph Monaghan and his wife, Andrea Monaghan (Claimants). The matter is raised by cross-Motions for Summary Judgment filed both by the claimants and the Debtor. The parties agree there are no material issues of fact which are in dispute, and, therefore, each claim that they are entitled to a judgment as a matter of law. The following undisputed facts were established at the duly scheduled final evidentia-ry hearing.
The record in this case reveals that on January 27, 1983, the Debtor filed its Voluntary Petition for Relief under Chapter 11 of the Bankruptcy Code. On or about March 11, 1983, the Debtor filed its Statement of Affairs and Schedules with the Court. Claimants were not listed as creditors by the Debtor. On May 31, 1988, Francis Joseph Monaghan (Monaghan) filed a proof of claim in the amount of $840,-698.00. Andrea Monaghan, his wife, filed a proof of claim in the amount of $28,000.00. These claims arise from an injury allegedly sustained by Monaghan on board a vessel owned by the Debtor known as the “Johanna U”. At the time of the incident, the ship was under time charter from Uiterwyk Lines, Ltd., to Uiterwyk Lines West Africa. Monaghan was employed by an independent stevedoring company, Northern Shipping Co., Inc. In January of 1982, claimants filed an action styled, “Francis Joseph Monaghan, Jr., and Andrea Marian Mona-ghan v. Uiterwyk Lines, Ltd., and Uiter-wyk Corporation” in the United States District Court for the Eastern District of Pennsylvania, Civil Action No. 82-168. The lawsuit was still pending when the Chapter 11 case was filed.
On or about November 9, 1984, Mona-ghan filed a Motion for Relief from Stay in this Court. Attached to the Debtor’s Motion for Summary Judgment is an affidavit by Robert Uiterwyk, which states that the Debtor did not oppose limited relief from the automatic stay based upon its understanding that the estate was to incur no liability and that Monaghan’s recourse was to be limited to insurance proceeds only.
*477On December 21, 1984, this Court entered an Order permitting Monaghan to proceed with his personal injury action that had been pending in the United States District Court for the Eastern District of Pennsylvania on the condition that (a) Mon-aghan was to seek recovery only from the proceeds of any valid insurance policy; (b) the Debtor was to be only a nominal party in the District Court suit; and (c) the Debt- or was not to be obligated for any cost of defending the suit. Notwithstanding, on January 29, 1985, an amended Order on Motion for Relief from Stay was entered by this Court without further notice of hearing or further hearing. This Order contained an additional paragraph from the original Order apparently allowing Mona-ghan to file a general unsecured claim in the bankruptcy case for any deficiency. Ultimately, the insurance company declined to defend the lawsuits and the law firm that had been engaged to represent the insurance company withdrew from the case. Consequently, Monaghan obtained a judgment by default against the Debtor as to liability and the court received Mona-ghan’s evidence and testimony on the issue of damages.
On April 10, 1985, the District Court’s Memorandum and Order were issued. This Order recited the following language:
The bankruptcy court subsequently permitted plaintiffs to proceed with this action so long as the debtor incurred no expense and recovery was sought only under available insurance coverage.
Attached to the Monaghan’s Motion for Summary Judgment is an Affidavit of Herbert M. Berkowitz dated September 26, 1989 (Exh. B), as well as a letter of Herbert Berkowitz dated January 8, 1985 (Exh. C), whereby Mr. Berkowitz states that the bankruptcy court ruled that the Mona-ghans would be allowed to file a general unsecured claim on liquidation of their claims in the Pennsylvania action and that the original Order for Relief, as entered, erroneously provided that the claimants were not entitled to satisfy the judgment from property of the Debtor’s estate, and that it was due to this error that resulted in a letter being sent dated January 14, 1985, requesting that an amended order be entered. The amended order which is attached to the Monaghan’s Motion for Summary Judgment as Exhibit E was entered by this Court on or about January 29,1985, and states in Paragraph 2(a)
Francis J. Monaghan, Jr., shall be permitted to seek recovery only from the proceeds of any valid insurance policy, and shall not be entitled to satisfy any judgment obtained from property of the estate, except as creditor of the estate. (Emphasis added)
Monaghan alleges that the Amended Order authorizes him to assert an unsecured claim against the Debtor in its Chapter 11 case. Basically, these are the facts upon which the Debtor seeks summary judgment in his favor that his objection to the claim should be sustained and the claim of both Mr. and Mrs. Monaghan should be disallowed. It should be noted that Monaghan’s wife, Andrea Monaghan, who filed a claim which the Debtor has objected to, never obtained any relief from the automatic stay and, therefore, her claim, Claim No. 1006, should be disallowed at the outset.
The question before this Court is really one of whether or not the Debtor was misled in believing that Monaghan would have no recourse against it and, therefore, failed to defend the lawsuit in District Court. Monaghan asserts that the doctrine of collateral estoppel should apply to preclude this Court from considering the matter under consideration. However, this Court is satisfied that in order for collateral estoppel to apply, the issue must have been actually litigated in a prior proceeding. In re Daniels, 91 B.R. 981 (Bkrtcy.M. D.Fla.1988). Where judgments are procured by default and the issues were not actually litigated, the court is not bound by the prior decision. In re Goodman, 25 B.R. 932 (Bkrtcy.N.D.Ill.1982). It is especially appropriate that default judgments do not give rise to any collateral estoppel effect where the debtor had no incentive to litigate. In re Dinoto, 46 B.R. 489 (9th Cir.BAP 1984). Therefore, collateral estop-*478pel does not bar this Court from determining the matter under consideration.
This Court is satisfied after a review of the transcript of the hearing on December 3, 1984, on the Motion for Relief from Stay that this Court never intended that the Claimants would be entitled to assert any claim against this Debtor in this Chapter 11 case. Although the last few sentences at the hearing could have been clearer, the Court emphasized throughout the hearing that recovery would be limited to the available insurance proceeds only.
Based on the foregoing, this Court is satisfied that the Debtor’s Motion for Summary Judgment should be granted and the Objection to Claim Nos. 1006 and 1007 filed by Andrea Monaghan and Francis Joseph Monaghan, respectively, should be sustained, and the claims should be disallowed.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Debtor's Motion for Summary Judgment be, and the same is hereby, granted, and the Objection to Claim Nos. 1006 and 1007 filed by Andrea Monaghan and Francis Joseph Monaghan, respectively, be, and the same is hereby, sustained, and the claims be, and the same are hereby, disallowed. It is further
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by the Claimants be, and the same is hereby, denied.
A separate Final Judgment will be entered in accordance with the foregoing.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491047/ | ORDER ON JOINT MOTION AND STIPULATION FOR ORDER ALLOWING CHARGING LIEN CLAIM
ALEXANDER L. PASKAY, Chief Judge.
THIS CAUSE came on for consideration upon a Joint Motion and Stipulation for Order Allowing Charging Lien Claim filed by Uiterwyk Corporation (Debtor) and Manufacturers Hanover Trust Company (MHT) in the above-captioned Chapter 11 case. The Court has considered the Motion and Stipulation, together with the record, and has heard argument of counsel and finds the following facts relevant to the disposition of this matter:
Prior to the commencement of this bankruptcy case, the law firm of Palmer Biezup and Henderson was purportedly owed the sum of $129,020.58 on account of prepetition legal services rendered to the Debtor in connection with prosecution of the Debt- or’s claim against the Government of Iran in the Iran-United States Claims Tribunal (Tribunal). Following the commencement of this Chapter 11 case, it appears that Palmer Biezup and Henderson declined to perform additional legal services in connection with the prosecution of the claim against the Iranian government unless its prepetition bills were paid. In an effort to bring about the successful recovery of assets for the benefit of the bank and the estate, MHT, Grindlay Brandts, and NCNB National Bank of Florida agreed to pay Palmer Biezup and Henderson’s charges. In exchange for payment of the law firm’s bills, Palmer Biezup and Henderson assigned its entire claim for prepetition legal services to MHT, as agent for itself, Grind-lay Brandts Limited, and NCNB National Bank of Florida.
On June 8, 1983, this Court entered an Order granting an Application to Approve Assignment of the claim to MHT. At that time, MHT also sought an order confirming the validity of Palmer Biezup and Henderson’s charging lien. However, this Court determined that the question of the validity vel non of the attorney’s charging lien was premature and, therefore, declined to answer the validity question as there was no res to which the charging lien claimed by Palmer Biezup and Henderson could have attached at that time.
On October 25, 1984, the official Creditors’ Committee commenced an adversary proceeding against MHT in which the Committee challenged the validity, priority and extent of the bank’s alleged lien upon the anticipated award to be received by the Debtor in the Tribunal. During the pend-ency of the adversary proceeding, the Court entered an Order confirming the Debtor's Plan of Reorganization. The finality of the. confirmation order was conditioned upon a subsequent order to be entered by the Court approving a settlement of the adversary proceeding. A Stipulation was then entered into which appeared to resolve the respective rights of unsecured creditors and the banks, including MHT, with respect to the award to be received by the Debtor in the Tribunal. This Court subsequently entered an Order Approving Stipulation between Debtor, Creditors’ Committee and Bank Creditors dated April 1, 1985. Accordingly, an Order of Dismissal of the adversary proceeding has been entered with prejudice. Neither the Stipulation, the Order Approving the Stipulation nor the Plan made any provision for the treatment of a charging lien claimed upon the Tribunal award by Palmer Biezup and Henderson.
On April 28, 1989, this Court entered an Order authorizing disbursement of proceeds from the Tribunal award. Disbursements have been made to creditors, including the banks on account of their secured claims and unsecured claims as contemplated by the Stipulation, Order Approving Stipulation, Order Confirming Plan and this Court’s Order Authorizing Disbursements dated April 28, 1989.
*480On July 14, 1989, the Debtor and MHT filed a Joint Motion and Stipulation for Order Allowing Charging Lien Claim. The Creditors’ Committee argues that MHT has waived its secured claim or, alternatively, that MHT is now estopped from asserting its charging lien against the award in the Iran-United States Claims Tribunal. Notwithstanding that the Committee’s reliance upon waiver and estoppel is misplaced, this Court is satisfied that MHT’s alleged secured claim based on the charging lien cannot be recognized for the following reasons:
The only proof of claim which was ever filed in this case was an unsecured claim filed by Palmer Biezup and Henderson. Each of the assignments received by MHT did specifically make reference to the assignment of an unsecured claim. MHT gave no notice of its intent to establish the validity of its alleged secured status prior to signing the Stipulation which settled an adversary proceeding against it. The Stipulation called for a division of the proceeds of the Tribunal award in accordance with a specific formula. If the secured claim based on the charging lien is recognized, this would alter, modify, and adversely affect the class of unsecured creditors firmly established by the stipulation of all parties of interest, including MHT. In addition, MHT failed to give any notice of an intent to establish its secured status prior to the entry of the Order approving the Stipulation, the Order confirming the Plan, or the Order authorizing distribution to creditors in accordance with the Plan entered on April 28, 1989. Neither MHT nor Palmer Biezup and Henderson has ever filed a proof of claim asserting any purported secured status. In addition, the charging lien claim was not scheduled by the Debtor as a secured claim. The only proof of claim ever filed was an unsecured proof of claim filed by Palmer Biezup and Henderson. Thus, MHT gave no notice of its intent to force a charging lien prior to the expiration of the bar date for the filing of proofs of claim.
MHT benefited from the confirmed Plan which made no provision for the claim which is now being asserted by receiving distributions both as a secured creditor and as an unsecured creditor as contemplated by the Plan and the Stipulation. It should not now be allowed to assert a claim which is in degradation of the rights of the unsecured creditors as established by the confirmed Plan and the Stipulation. Section 1141 of the Bankruptcy Code freezes the rights of the respective parties upon confirmation of the plan. The rights of MHT were firmly established by the Plan and no additional claim can be asserted at this late date. The position now being considered by MHT would effectively alter the distribution scheme contemplated by the Stipulation and Confirmation Order to the detriment of the unsecured creditors. Therefore, pursuant to § 1141 of the Bankruptcy Code, MHT will not be allowed to assert an additional secured claim which would alter and disturb the very formula of distribution to which it has previously agreed.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the creditors committee’s objection to the Joint Motion and Stipulation for Order Allowing Charging Lien be, and the same is hereby, sustained. It is further
ORDERED, ADJUDGED AND DECREED that the Joint Motion and Stipulation for Order Allowing Charging Lien Claimed filed by the Debtor and Manufacturer’s Hanover Trust Company, as agent, be, and the same is hereby, denied.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491048/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. JAY CRISTOL, Bankruptcy Judge.
This cause came on before the Court on May 17, 1989, upon the complaint of Gui L.P. Govaert, Trustee, for damages for Wrongful Dishonor, pursuant to F.S. 674.-402, Interference with Advantageous Business Relationship, and Common Law Fraud. The Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the argument of counsel, and being otherwise fully advised in the premises, makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. During the months of June, July, August, September and October, 1985, George Jordan, chief loan officer of the Southern Division of First American Bank, and Thomas Abrams, Manager of First American Bank and Trust’s Bay Harbor Island branch bank and a Vice-President of said Bank, conducted a sales campaign directed at Plaintiff’s debtor to persuade its principals, Geri Zahn and Jason Zahn, to transfer all of their banking business from Barnett Bank to Defendant Bank.
2. In the course of the abovementioned meetings, Jason Zahn, President of Plaintiff’s debtor, told Abrams what the debt- or’s requirements for financing were and what arrangements he had with Barnett Bank where the debtor was then doing its banking. Jason Zahn gave financial information from Barnett Bank to Defendant, First American, for its review.
3. The financial information from Barnett Bank and the discussions between Jason Zahn and Abrams, established that the Debtor had a loan from Barnett Bank consisting of a $100,000.00 note and a $50,-000.00 revolving line of credit (hereinafter the Barnett loan). Said loan was amortized at two points over the Prime rate. Further, the financial information and discussions established that the Debtor had only a $25,000.00 Certificate of Deposit as collateral with Barnett Bank, and no other substantial liquid assets were available as collateral to secure the Barnett loan.
4. George Jordan was aware of the terms and conditions of the Barnett Bank loan to the Debtor.
5. First American represented to the Debtor that because it wanted the Debtor’s banking business, the Defendant, First American would offer the Debtor better terms than the Debtor was then receiving from Barnett Bank.
6. The loan committee of Defendant, First American, met on October 10, 1985 and October 24, 1985 to consider a loan to the Debtor.
7. Subsequent to both loan committee meetings with regard to the subject loan, Jordan discussed the actions of the loan committee with Abrams. Jordan had no direct communication with the Zahns after the loan committee meetings of October 10, 1985, and October 24, 1985.
8. On October 29, 1985, after the loan committee meeting on October 24, 1985, Abrams sent Jason Zahn and Geri Zahn a letter which spelled out the terms of the banking relationship that had been orally agreed upon between First American and the Debtor (hereinafter referred to as Banking Agreement). Said letter stated that the amount of the loan was $150,-000.00. Said letter further stated that $100,000.00 was to be applied as a capital loan to repay Barnett Bank for a loan in the corresponding amount, and further that $50,000.00 was to be used as a revolving line of credit and deposited in Defendant’s bank in an interest bearing account. The *499October 29, 1985 letter indicated that the $150,000.00 loan was to- earn interest at 1V2% over the prime lending rate, that the capital loan, $100,000 was to have a five year, and that the revolving line of credit was to be repaid on an ongoing basis from receipts of the debtor’s business. In addition, the abovementioned letter stated that the $25,000.00 Certificate of Deposit then held by Barnett Bank would have to be assigned from Barnett Bank to the Defendant, First American, as further collateral. Furthermore, the letter stated that the Debtor was to place its business checking account with the Defendant, First American, assign key man life insurance, inventory, and receivables to the Defendant. Said letter also stated that the Debtor’s principals were to place their personal accounts with the Defendant Bank.
9. The October 29, 1985 letter from Defendant, First American, to Jason Zahn and Geri Zahn did not state that Defendant, First American, could not meet the above-mentioned terms and conditions.
10. On November 26, 1985, Abrams and George Jordan, the chief loan officer of the Southern Division of the Defendant, First American, went to the Debtor’s place of business to execute documents prepared by the Defendant for the purpose of formally memorializing the loan previously agreed to by the parties.
11. Jordan presented Jason Zahn and Geri Zahn with a group of documents for them to sign in order to put the agreed loan into effect: a loan document and promissory note, a personal guaranty, a UCC financing statement, an assignment of lease, and a security agreement. Both Mr. Abrams and Mr. Jordan referred to the signing on November 26, 1985 as a “closing.” Neither the Debtor nor the Debtor’s principals received copies of said loan documents at this time although said copies were requested.
12. It is conceded that the Defendant did not sign any of these instruments at said time and place, but rather Mr. Jordan testified that he affixed his signature on these loan documents forty-four days later on January 8, 1986, in his Coral Gables office.
13. Defendant, First American admits that the Debtor’s principals, Jason Zahn and Geri Zahn, relying upon both oral and written representations by representatives of First American relating to the loan conditions, and believing that the original Loan Documents presented to them on November 26, 1985, were consistent with the terms of the October 29, 1985 letter from Defendant, First American, executed the abovementioned documents.
14. In accordance with the Banking Agreement letter of October 29, 1985, the Defendant, First American funded $100,-000.00 of the $150,000.00 loan on December 19, 1985, which was used to repay the capital loan at Barnett Bank in full.
15. The Debtor’s principals went to New York on a buying trip in December 3, 1985 to make use of the new revolving credit in the amount of $50,000.00. This buying trip was essential to the Debtor’s ability to obtain merchandise necessary for the upcoming sales season. Said merchandise was paid for with checks drawn on the Debtor’s account in Defendant Bank.
16. Defendant, First American, was aware of the Debtor’s immediate need of the revolving line of credit for the buying trip. Said revolving line of credit, which the Debtor had with Barnett Bank, and which Debtor was assured by Defendant, First American, was necessary to sustain the viability and purchasing power of its business.
17. First American did not honor the Debtor’s checks used to purchase merchandise on the New York trip. Furthermore, many of said dishonored checks were returned by the Defendant, First American, marked “insufficient funds.” The Debtor’s account was charged $15.00 for each check returned, for a total of $2,800.00 in such fees.
18. Jason Zahn, the Debtor’s President, first learned of the returned checks in late December, 1985. Zahn called Abrams at Defendant, First American, who assured him that all checks would be paid.
*50019. On January 8, 1986, First American credited the account of the Plaintiffs Debt- or in the amount of $49,703.50, representing the balance of the subject $150,000.00 loan less State of Florida documentary stamps.
20. Several of the Debtor's “prime” vendors who previously received checks from the Debtor which were dishonored by the Defendant, First American, for insufficient funds, refused to sell to the Debtor merchandise on terms which would allow the Debtor to stay in business.
21. The resulting loss of business caused the filing of an involuntary bankruptcy against the Debtor by its merchandise creditors.
22. In the summer of 1986, the Debtor finally received copies of the purported original loan documents executed on November 26, 1985. Said copies included the Note, UCC Filing Statement, the Security Agreement, the Guaranty, the Assignment of Lease, the Consent to the Assignment of Lease and the Landlord’s Waiver. Although some of these documents such as the Assignment of Lease, Consent to the Assignment of Lease, Assignment of Life Insurance Policy, and Landlord’s Waiver are dated, Jason Zahn, President of the Debtor company, discovered that all the other documents, including the Note, were dated January 8, 1986 by the Defendant, First American. January 8, 1986 was not the date on which the Debtor executed these documents. January 8, 1986, was twenty days subsequent to the funding of $100,000.00 of the total loan.
23. Mr. Jordan testified that it would not be unusual bank practice of Defendant, First American, to have borrowers sign undated notes. Jordan further testified that upon execution of all the necessary documents, that the $150,000.00 loan would be funded immediately.
24. Jason Zahn testified that in addition to the added execution dates, said copy of the purported Note, did not correctly reflect the terms previously agreed upon in the Banking Agreement by the Debtor and First American. Among the altered terms were:
(a) a floor was placed on the interest rate at 11%;
(b) the term of the loan was one year instead of five years; and
(c) there was an additional collateral listed for the loan.
25. Mr. Zahn further testified that had these additional security items and loan terms been included in the original loan documents, he would not have signed the subject note.
26. As a result of First American’s banking practices, Mr. Zahn testified as to the Debtors damages:
(a) investment $100,000.00
(b) retained earnings $ 72,000.00
(c) loans to the business $ 32,000.00
(d) Certificate of Deposit $ 25,000.00
(e) Prime Resource Profits $100,000.00
(f) Insurance Policy $100,000.00
($100,000.00 Cash value)
CONCLUSIONS OF LAW
1. A Fraud may consist of a knowing or a reckless misrepresentation. Guerra v. Fischer In and For Broward County, 463 So.2d 535 (4th DCA 1985); First National Bank of Stuart v. Jackson, 267 So.2d 697 (4th DCA 1972).
2. For a misrepresentation to support an action for damages, it must be a misrepresentation of material fact. Guerra, supra; Finney v. Frost, 228 So.2d 617 (Fla.App.1969).
3. The individual charged with the misrepresentation must be shown to have had actual knowledge of the falsity of the statement at the time it was made or the evidence must show the equivalent of such knowledge as to its truth or falsity or was made under circumstances in which the truth should have been known to the person making the statement. Guerra, supra; Nantell v. Lim-Wick Construction Co., 228 So.2d 634 (Fla.1969); Joiner v. McCullers, 158 Fla. 562, 28 So.2d 823 (Fla.1947).
4. Additionally, in order to prevail on a theory of fraud, the party asserting fraud must prove that the misrepresentation was intended to and does induce another to act to his detriment in reliance on the *501representation. In re Matter of Interair Services, Inc., 44 B.R. 899 (Bankr.M.D.Fla. 1984); Rudy’s Glass Construction Co. v. Robins, 427 So.2d 1051 (3rd DCA 1983).
5. Defendant, First American, misrepresented material facts to the Debtor. Guerra, supra; Finney, supra. Defendant misrepresented the terms and conditions of the loan and promissory note including the interest rate floor of 11%, the term of the loan and the additional required collateral.
6. Defendant contends that the loan documents placed in evidence properly reflect the loan committee’s decision and requirements regarding the subject loan. However, the original oral Banking Agreement as spelled out in the letter dated October 29, 1985, reflects a totally different outcome by the loan committee. This letter, sent to Jason Zahn and Geri Zahn is a knowing and reckless misrepresentation. Guerra, supra; Jackson, supra.
7. Mr. Jordan specifically told Mr. Abrams about the loan committee meeting wherein the Debtor’s loan was discussed. Yet Mr. Abrams communicated different terms and conditions to the Debtor. Assuming Mr. Jordan is “of clean hands” and properly communicated the committee meeting to Mr. Abrams, Mr. Abrams had actual knowledge of the falsity of the statements made to the Debtor’s principals in his letter dated October 29, 1985. Guerra, supra.
8. Additionally, if Mr. Jordan had not properly communicated the decision of the loan committee meeting to Mr. Abrams, then the Defendant recklessly misrepresented material facts to the Debtor under circumstances in which the truth should have been known to the Defendant. Guerra, supra; Nantell, supra; Joiner, supra.
9. The misrepresentation by the Defendant, as described above, induced the Debt- or to execute loan documents on November 26, 1985. In re Interair Services, Inc., supra. Robins, supra. The loan agreement and promissory note, on November 26, 1985, were lacking material terms, the interest rate floor, the term of the loan, and the additional collateral. The Debtor detrimentally relied on the Defendant, First American s material misrepresentations in the letter of October 29, 1984 and therefore executed the loan documents believing that the missing terms and conditions were consistent with said letter.
10.Further, in reliance on the Defendant’s misrepresentations as described above, the Debtor purchased merchandise in New York on December 1985 with checks drawn on the account Debtor had opened in Defendant, First American’s, bank. Said checks were ultimately dishonored by the Defendant for insufficient funds.
11. Under Florida Law, “a payor bank is liable to its customers for damages proximately caused by the wrongful dishonor of an item.” Fla.Stat. § 674.4-402.
12. Defendant bank dishonored checks drawn by Plaintiff’s Debtor because it unjustifiably failed to timely provide and fund the revolving line of credit which it had agreed to do.
13. Dishonoring of checks issued by the Debtor directly caused a loss of income which inescapably resulted in involuntary bankruptcy, and monetary loss to Plaintiff’s Debtor in the amount of $349,000.00.
14. Additionally, under Florida Law, any alteration of an instrument is material which changes the contract of any party thereto in any respect, including but not limited to the writing as signed by adding to it. Fla.Stat. § 673.407 (1985). While the Court is authorized to discharge the loan and promissory note under § 673.407; Peacock v. Farmers and Merchants Bank, 454 So.2d 730 (1st DCA 1984); to do so would be inequitable in the instant case. Rather, the Court finds that the instrument should be enforced according to its original provisions as set forth by the original oral Banking Agreement and spelled out in the letter dated October 29, 1985.
15. A Final Judgment in accordance with these findings and conclusions will be entered separately by the Court.
*502FINAL JUDGMENT
In conformity with the Findings of Fact and Conclusions of Law of even date, it is
ORDERED
Defendant, First American Bank and Trust, shall pay the Plaintiffs Debtor’s damages in the amount of $349,000.00. Additionally, the Court declines to void the Debtor’s $150,000.00 obligation to the Defendant. To that extent, the original oral Banking Agreement as set forth in the letter dated October 26, 1985 shall be enforced and the Promisory Note dated January 8, 1986 shall not be enforced.
DONE and ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491050/ | ORDER AUTHORIZING EMPLOYMENT OF LOCAL COUNSEL NUNC PRO TUNC
A. JAY CRISTOL, Bankruptcy Judge.
This cause came before the Court on November 15, 1989 upon the motion of the Debtors, Beam Communications Corporation; Beam Broadcasters, Ltd.; and WPBN-TV & WTOM-TV, Inc. (the “Debtors”) seeking authority to employ, Hogan & Hartson (“Hogan & Hartson”) as the Debtors’ FCC counsel in this case. One creditor, Equity Investment International Corp. (“EIIC”), objected to the application. After hearing argument of counsel, and being duly advised in the premises it is hereby
ORDERED AND ADJUDGED that the Debtors’ motion is granted. The Debtors are hereby authorized to employ Hogan & Hartson as FCC counsel, nunc pro tunc to June 7, 1989. Fees may be awarded upon application and hearing, subject to the applicable provisions of the Bankruptcy Code covering compensation of professionals.
The Court specifically rejects the reasoning of In re Mork, 19 B.R. 947 (Bankr.D.Minn.1982), and similar cases which hold that nunc pro tunc approval of a debtor’s employment of professional is per se prohibited. This Court holds that, in appropriate cases, a debtor’s employment of professionals may be approved on a nunc pro tunc basis. See, e.g., Matter of Triangle Chemicals, Inc., 697 F.2d 1280 (5th Cir.1983); In re Interstate Restaurant Systems, Inc., 61 B.R. 945 (S.D.Fla. 1986).
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491367/ | *439MEMORANDUM OPINION
JOHN D. SCHWARTZ, Chief Judge.
This matter is before the court on the motion of Daniel R. Murray, Trustee of the Chicago, Missouri & Western Railway Company (“Trustee”) for summary judgment on his objection to a claim filed by Bancmidwest as special administrator of the estate of Roger Stahly (“Bancmid-west”) and disallowance of Bancmidwest’s claim. For the reasons stated herein, the court, after considering the pleadings, exhibits, affidavits, and memoranda filed, grants the Trustee’s motion and disallows Bancmidwest’s claim.
JURISDICTION AND PROCEDURE
This matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(B). Accordingly, the court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334. This motion is before the court pursuant to Local Rule 2.33 of the Northern District of Illinois referring bankruptcy cases and proceedings to this court for hearing and determination.
FACTS AND BACKGROUND
On March 30, 1987, Roger Stahly (“Stahly”) died while training to become a train dispatcher for the Chicago, Missouri & Western Railway Company (“CMW”). (Trustee’s Memorandum In Support Of His Motion For Summary Judgment As To His Objection To Claim Of Bancmidwest at 4). At the time of Stahly’s death, CMW was a shell corporation that owned no rail lines, real property, railroad cars, or any other assets or equipment. (Trustee’s Statement Of Uncontested Facts at 111; Nash Affidavit, 112; Darling Affidavit, 113). Furthermore, CMW conducted no rail operations, did not engage in carriage or transport and had no employees. (Trustee’s Statement Of Uncontested Facts at 112; Nash Affidavit, ¶ 3; Darling Affidavit, ¶ 3). CMW did not begin rail operations until April 28, 1987 when it purchased rail assets from the Illinois Central Gulf Railroad Company. (Trustee’s Statement of Uncontested Facts at ¶ 2; Nash Affidavit, 113).
Bancmidwest, as special administrator of Stahly’s estate, has filed a claim based on the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq.) (“FELA”) against CMW’s bankruptcy estate seeking damages for Stahly’s death. (Trustee’s Motion For Summary Judgment As To His Objection To Claim Of Bancmidwest at 111). On February 15, 1991, the Trustee objected to Bancmidwest’s claim. (Trustee’s Motion For Summary Judgment at 112). This court denied the Trustee’s objection without prejudice on June 20, 1991, and set a date by which the parties could file motions for summary judgment. (Trustee’s Motion For Summary Judgment at ¶ 2). The Trustee filed a motion for summary judgment claiming CMW is not liable to Bancmidwest under FELA as a matter of law because CMW was not a “common carrier by railroad” at the time of Stahly’s death.
DISCUSSION
The Trustee seeks an order for summary judgment on its objection to Bancmidwest’s claim against CMW’s estate and a disallowance of Bancmidwest’s claim. In order to prevail on a motion for summary judgment, the movant must meet the statutory requirements as set forth in Rule 56 of the Federal Rules of Civil Procedure, made applicable here by Rule 70561 of the Federal Rules of Bankruptcy Procedure. Rule 56(c) provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admis*440sions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). Summary judgment is appropriate only if there remains no genuine issue of material fact for trial and the movant is entitled to judgment as a matter of law. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 (7th Cir.1985). If a non-moving party fails to establish an element essential to the case on which the non-moving party has the burden of proof, summary judgment is appropriate. Samuels v. Wilder, 871 F.2d 1346, 1349 (7th Cir.1989). The facts alleged by the movant must be such that the court can. reasonably conclude by a preponderance of the evidence that the movant is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); In re Calisoff, 92 B.R. 346, 350-51 (Bankr.N.D.Ill.1988).
Bancmidwest bases its claim against CMW’s estate on § 1 of FELA. Section 51 provides in relevant part that:
Every common carrier by railroad while engaging in commerce between any of the several States or Territories, ... shall be liable in. damages to any person suffering injury while he is employed by such carrier in such commerce or, in the case of the death of such employee, to his or her personal representative, ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ...
(Emphasis supplied); 45 U.S.C. § 51. As an initial matter, § 1 of FELA requires Bancmidwest to prove that CMW was a “common carrier by railroad” that was engaging in commerce at the time of Stahly’s death. The Trustee asserts that he is entitled to summary judgment because CMW was not a common carrier by railroad engaging in commerce when Stahly died on March 30, 1987 and, therefore, Bancmid-west has failed to prove the initial element of § 1 of FELA.
According to the Supreme Court, a “common carrier by railroad” under FELA is:
... one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company operating as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad ...
(Emphasis supplied) Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187-88, 41 S.Ct. 93, 98, 65 L.Ed. 205 (1920). The Wells Fargo definition of a “common carrier by railroad” was elaborated on in Lone Star Steel Co. v. McGee where the Fifth Circuit required that the following four factors be met before an entity can be considered a “common carrier by railroad”:
First — actual performance of rail service, second — the service being performed is part of the total rail service contracted for by a member of the public, third — the entity is performing as part of a system of interstate rail transportation by virtue of common ownership between itself and a railroad, and hence such entity is deemed to be holding itself out to the public, and forth — remuneration for the services performed is received in some manner, such as a fixed charge from a railroad or by a percentage of the profits from a railroad.
Lone Star Steel Co. v. McGee, 380 F.2d 640, 647 (5th Cir.1967), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967).
The undisputed facts in this case are that as of March 30, 1987, the date of Stahly’s death, CMW owned no assets, conducted no rail operations and employed no personnel.2 Given these facts, CMW can not be con*441sidered a “common carrier by railroad” engaging in interstate commerce under any definition. Under the Wells Fargo definition CMW is not a “common carrier by railroad” because it did not operate “... a railroad as a means of carrying for the public....” As of March 30, 1987, operating as a railroad was a physical impossibility for CMW because it owned no assets and employed no personnel.
Bancmidwest’s contention that CMW is a “common carrier by railroad” fairs no better under the Fifth Circuit’s more detailed test. To pass the Fifth Circuit’s test of a “common carrier by railroad,” Banemid-west must prove that CMW met each of the test’s four elements as of March 30, 1987. Mahfood v. Continental Grain Co., 718 F.2d 779, 782 (5th Cir.1983). Each of the test’s four elements, however, depend to some extent on a showing that the entity in question performed rail services. Here, because it is undisputed that CMW performed no rail services as of March 30,1987, Banc-midwest can not prove any of the test’s four elements. ' Therefore, CMW was not a “common carrier by railroad” when Stahly died and it can not be held liable for Stahly’s death under FELA.
In opposition, Banemidwest argues that CMW is liable for Stahly’s death under FELA because the statute defines “common carrier” as including “receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.” 45 U.S.C. § 57. In support of this position, Banemidwest cites Eddings v. Collins Pine Co., 140 F.Supp. 622 (N.D.Cal.1956) in which a lumber company, operated a railroad owned by its subsidiary. Eddings at 624-25. The court cited § 7 of FELA in holding that liability under FELA can not be avoided by splitting ownership of assets and operation of the railroad between a parent and its subsidiary. Eddings at 627-29.
Eddings is distinguishable from the present case, however. Section 7 of FELA exists so that railroad companies can not transfer their assets to holding companies or other entities in an attempt to avoid liability under FELA as occurred in Ed-dings. CMW’s situation is different because there was no split of assets and operation between CMW and any parent, subsidiary or related company as of March 30,1987. Such a split to avoid FELA liability was a physical impossibility at the time of Stahly’s death because CMW did not own assets or carry on any operations that it could split among entities. Thus, even under the Eddings interpretation of a “common carrier,” CMW was not subject to FELA on March 30, 1987.
As of Stahly’s death on March 30, 1987, CMW was merely a shell corporation. CMW can not be held liable under FELA as of March 30, 1987 on the basis that it planned to acquire assets and begin rail operations at some time in the future. CMW’s subsequent status as a railroad has no bearing on its status as of March 30, 1987. This court finds that CMW was not a “common carrier by railroad” as of March 30, 1987 when Stahly died and CMW’s bankruptcy estate is not liable to Banemidwest under FELA.
CONCLUSION
For the reasons stated above, the Trustee’s motion for summary judgment on his objection to Bancmidwest’s claim is granted and Bancmidwest’s claim is disallowed with each of the parties bearing their own costs.
. In addition, a motion for summary judgment must comply with the applicable provisions of Local Rule 12. Rule 12(m) of the General Rules of the United States District Court for the Northern District of Illinois requires a party moving for summary judgment to file a detailed statement of material facts as to which there is no genuine issue. Rule 12(n) in turn requires the party opposing the motion to file a response to the movant’s statement and to state any facts the opponent feels require a denial of summary judgment. Failure to file a response to the movant’s statement constitutes an admission of all reasonable facts set forth in the movant’s statement. Deberry v. Sherman Hospital Ass'n, 769 F.Supp. 1030 (N.D.Ill.1991); Pasant v. Jackson National Life Ins. Co., 768 F.Supp. 661 (N.D.Ill.1991).
. The Trustee’s Statement of Uncontested Facts is deemed admitted by Bancmidwest because it failed to file a response to the Trustee’s statement as required by Local Rule 12. Even if this court were to overlook the requirements of Local Rule 12, none of Bancmidwest’s pleadings allege that CMW owned any assets or carried on any operations as of March 30, 1987. Bancmid-west argues that despite CMW’s lack of assets or operations, CMW is liable under FELA because it falls within the definition of a common carrier as defined by FELA. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491368/ | *558DECISION ON DEBTORS’ “MOTION FOR JUDICIAL NOTICE OF TRESPASS ON THE CASE AND MOTION FOR ORDER TO SHOW CAUSE”
C. TIMOTHY CORCORAN, III, Bankruptcy Judge.
This case came on for hearing on August 15, 1991, on the “motion for judicial notice of trespass on the case and motion for order to show cause” filed by the debtors, William and Anna Jean Millsaps (“Mill-saps”) (Document No. 20). This contested matter involves the scope of the Section 524(a)(2) permanent injunction in the context of the debtors’ dispute with state officials over entitlement to a Florida ad valo-rem tax homestead exemption. The court concludes that the debtors are not entitled to relief.
Undisputed Material Facts
At the hearing, it appeared that the following facts were not in serious dispute:
1. William David Millsaps and Anna Jean Millsaps filed their joint petition under Chapter 7 of the Bankruptcy Code on March 12, 1986.
2. The Millsaps’ claimed their real property located at 528 Morocco Avenue, Orlando, Florida, as exempt from administration under the Florida constitutional homestead exemption. There were no objections made as to this claim of exemption.
3. The court entered the debtors’ discharge on September 15, 1986.
4. On January 21, 1987, the Internal Revenue Service (“Service”) sold the Mill-saps’ Morocco Avenue residence to enforce claimed perfected tax liens securing the Millsaps’ personal income tax liabilities for 1979, 1980, and 1981. The Service applied the proceeds from the sale of the residence to these unpaid federal income tax liabilities.
5. On July 31, 1987, the Service completed the sale by conveying the Morocco Avenue residence to Marija Arnjas. The deed constituting the conveyance was executed by James Ryan, the district director of the Service, and was recorded at Book 3965, Page 4869, of the public records of Orange County, Florida. (At the hearing, a certified copy of this deed was admitted into evidence as respondents’ Exhibit 1.) The Millsaps, however, have apparently continued in possession of the home.
6. On February 25, 1991, the Millsaps applied to Ford S. Hausman, the Orange County property appraiser, for an ad valo-rem tax homestead exemption on the Morocco Avenue residence.
7. On May 21, 1991, the property appraiser denied the Millsaps’ application for a homestead tax exemption on the grounds that, because of the recording of the Service’s deed to Marija Arnjas, the Millsaps did not have legal or beneficial title to the property claimed as homestead and were therefore not entitled to the exemption under Florida law.
8. On July 17, 1991, Martha 0. Haynie, the clerk to the Board of County Commissioners, sent the Millsaps notice that a special master had been appointed by the Value Adjustment Board to take testimony and make a recommendation to the board regarding the Millsaps’ petition for a homestead tax exemption. (The special master appointed by the Value Adjustment Board was later identified as Paul M. Roper.)
9. On July 25, 1991, the Millsaps filed their motion in this court for judicial notice and for an order to show cause (Document No. 20). In addition to Mr. Hausman, Ms. Haynie, and Mr. Roper, the Millsaps also named as a respondent Earl K. Wood, the Orange County tax collector. In this motion the Millsaps’ request:
(a) that the court take judicial notice that Ford S. Hausman, Earl K. Wood, Martha 0. Haynie, and Paul M. Roper have violated this court’s order dated September 15, 1986, discharging the debtors (Document No. 15); and
(b) an order to show cause directed at these respondents as to why they should not be held in contempt of court for violating the discharge.
Conclusions of Law
After considering the evidence in the record and the undisputed facts in this *559case, the court makes the following conclusions of law:
1. Jurisdiction.
This court has jurisdiction of the parties and the subject matter pursuant to 28 U.S.C. § 1334, 28 U.S.C. § 157(a), and the standing order of reference entered by the district court. This is a core proceeding within the meaning of 28 U.S.C. § 157(b).
2. The Florida Homestead Tax Exemption.
Section 6 of Article 7 of the Florida Constitution provides that “every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner ... shall be exempt from taxation thereon ... up to the assessed valuation of five thousand dollars, upon establishment of right thereto in the manner prescribed by law.” The amount of this exemption was increased to $25,000 for years after 1982. Fla. Const, art. 7 § 6(d).
To receive the homestead tax exemption, an owner must apply to the county property appraiser, describing the property and certifying its ownership and use. Fla.Stat. Ann. § 196.011(1) (1991). The appraiser examines each application and allows the exemption if the statutory requisites are met. Fla.Stat.Ann. § 196.141 (1991). If the appraiser determines that the applicant is not entitled to the exemption, then a notice, giving reasons for disapproval, is served upon the applicant. Fla.Stat.Ann. § 196.-151 (1991). The appraiser files this notice with the clerk of the property appraisal adjustment board,1 and this notice constitutes an appeal by the applicant to the board. Id.
The adjustment board may appoint a special master to take testimony and make recommendations to the board. Fla.Stat. Ann. § 194.035 (1991). The board may act upon this recommendation without further hearing. Id. The ultimate decision by the board may only be challenged if the applicant files a proceeding in the circuit court for the county where the property in question is located within 15 days of the board’s decision. Fla.Stat.Ann. § 196.151 (1991).
In this case, the property appraiser and the board appear to have followed all applicable procedural provisions of the Florida Statutes in processing the Millsaps’ application. Prior to the completion of that process, however, the Millsaps filed their motion in this court.
3.The actions by the Orange County property appraiser, tax collector, and valuation adjustment board.
For purposes of this contested matter, the court considers the conveyance of the property by the Service to the purchaser at the sale to be facially valid. In adversary proceeding No. 86-0154, the Millsaps attacked the validity of the Service’s action as to the Morocco Avenue residence. They sought a declaration that the assessment, lien, levy, seizure, and sale of the property was invalid and improper. In deciding the merits of that adversary proceeding on cross motions for summary judgment, this court held that the Millsaps cannot make such an attack and recommended to the district court that their requested relief be denied. Millsaps v. United States (In re Millsaps), 133 B.R. 547 (Bankr.M.D.Fla.1991). The court also held that the sale of the property by the Service did not violate the automatic stay of Section 362 of the Bankruptcy Code or the permanent injunction of Section 524(a)(2) of the Bankruptcy Code and entered judgment accordingly. Id. Because a portion of this court’s decision in the adversary proceeding constitutes proposed findings of fact and conclusions of law under F.R.B.P. 9033 rather than a final decision, the doctrine of collateral estoppel may not yet technically bar the Millsaps from relitigating those issues in this context as against these respondents. See Halpem v. First Georgia Bank (In re Halpern), 810 F.2d 1061, 1064 (11th Cir.1987), and Deweese v. Town of *560Palm Beach, 688 F.2d 731 (11th Cir.1982). Nevertheless, this court will treat that ruling as the law of this case.
The Florida Constitution allows the homestead tax exemption for legal or equitable title holders only. Fla. Const, art. 7 § 6. The Florida Statutes provide a scheme by which the property appraiser makes his determination and by which an aggrieved homeowner can pursue administrative and judicial review of that determination. At first blush, it seems that the appraiser’s decision, made in reliance on the Service’s recorded deed conveying the property, was proper. In any event, those battle lines have been drawn at the state courthouse.
Even if, contrary to this court’s decision, the actions of the Service in selling the home were unlawful and legally ineffective, and even if the actions by the Orange County officials in reliance on the Service’s deed are somehow violative of Florida law, the Orange County officials’ actions do not violate any provisions of the Bankruptcy Code. Although the permanent injunction of Section 524(a)(2) of the Bankruptcy Code enjoins efforts to collect personal liabilities that have been discharged, it does not prevent the county authorities from assessing new real estate taxes or from denying homestead tax exemptions. There is no basis, therefore, to require the respondents to show cause why they should not be held in contempt.
If the court were to construe the Millsaps’ motion as a request for this court to determine the validity under Florida law of the appraiser’s decision to deny the exemption, the court would deny that request, as well. This court is without subject matter jurisdiction to adjudicate that dispute. 28 U.S.C. § 1334(a) and (b). The matter at issue does not involve a claim created by any provision of the Bankruptcy Code, nor is it a proceeding that, by its nature, could only arise in a bankruptcy case. Thus, the matter is not one “arising under” or “arising in” a bankruptcy case. Michigan Employment Security Commission v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1144 (6th Cir.1991). In fact, this matter is not one that can conceivably have any effect on the administration of the bankruptcy estate. As stated in Millsaps v. United States (In re Millsaps), supra, this is a no asset case, creditors have not filed claims, and the property at issue has been claimed as exempt. This matter, therefore, has nothing whatsoever to do with this bankruptcy case. It is simply a civil dispute involving the persons of the debtors unrelated to their bankruptcy case that arose well after the entry of their discharge. As a result, the matter at issue here is not even a proceeding “related to” a bankruptcy case. Wolverine Radio, 930 F.2d at 1142. As explained in Section 2 above, Florida law provides ample opportunity for the Millsaps to litigate their dispute administratively and judicially.2
Conclusion
The actions of respondents, Ford S. Hausman, Earl K. Wood, Martha 0. Hay-nie, and Paul M. Roper, do not violate any provision of the Bankruptcy Code; therefore, the Millsaps’ motion for judicial notice and motion for an order to show cause should be denied. The court is contemporaneously entering a separate judgment.
DONE and ORDERED.
. In Orange County, the property appraisal adjustment board is called the Value Adjustment Board.
. The Millsaps argue that the deed from the Service to the buyer at the sale (respondents’ Exhibit 1) is defective because it contains a misspelling of their last name and an incorrect middle initial of Mrs. Millsap’s name. The legal effect of any such errors is purely a question of Florida law to be determined, if at all, in that litigation. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491369/ | DECISION ON ORDER PARTIALLY GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
WILLIAM A. CLARK, Bankruptcy Judge.
Before the court are motions for summary judgment filed by the plaintiff and the defendants. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This court may determine this adversary proceeding and enter appropriate orders and judgments pursuant to 28 U.S.C. § 157(c)(2).1
UNDISPUTED FACTS
On October 22, 1990, Doug Smith, Inc. (Plaintiff/Debtor) filed a petition in bankruptcy pursuant to chapter 11 of the Bankruptcy Code. Subsequently, the plaintiff filed this adversary proceeding against defendants Freedom Electrical Contractors, Inc. (“Freedom”), and Tom Ratliff, alleging a breach of contract by Freedom and fraud by Tom Ratliff. The following allegations of the plaintiff's complaint have been admitted to by the defendants in their answer as well as in the “Pretrial Order”:
1. On or about July 18, 1990 at Plaintiff’s place of business in Springboro, *619Ohio, an auction was conducted by Plaintiffs agent, Karl Wise and Associates Auctioneers, in order to liquidate Plaintiffs business assets including, but not limited to restaurant equipment and supplies.
2. At said time and date, Tom Ratliff, president of Freedom Electrical Contractors, Inc. placed a bid with Karl Wise and Associates Auctioneers in order to purchase certain office equipment and restaurant equipment. A true and accurate copy of the invoice listing the items bid upon and purchased by Defendant, Freedom Electrical Contractors, Inc. is attached hereto and marked Exhibit “1”.
3. Defendants’ offer to purchase the equipment listed in Exhibit “1” for the total price of $2,773.50, was the highest and best bid for said merchandise and was accepted by Plaintiffs agent, Karl Wise and Associates Auctioneers.
4. Thereafter, Defendant’s agent, Tom Ratliff, did execute and deliver to Plaintiff’s agent, Karl Wise and Associates Auctioneers, a check written on the Freedom Electrical Contractors, Inc. account with the Huntington National Bank made payable to Karl Wise Trust in the total amount of $2,773.50. A true and accurate copy of said check is attached hereto and marked as Exhibit “2”.
5. Defendant did remove the merchandise listed in Exhibit “1” and has continued to retain possession and control of said merchandise.
6. Defendant then intentionally and deliberately stopped payment on the check previously issued to Karl Wise and Associates Auctioneers and attached hereto as Exhibit “2”.
In addition to denying the remaining allegations of the plaintiff’s complaint, the defendants set forth the affirmative defenses of setoff and payment:
3. Defendants affirmatively state that Freedom Electrical Contractors, Inc., is entitled to a set-off in the amount of $3,000.00 plus interest from December 12, 1989 for money owed it from plaintiff. ...
4. Defendants assert the affirmative defense of payment.
Defendants have filed a motion for summary judgment accompanied by the following affidavit of Thomas Ratliff, President of Freedom Electrical Contractors, Inc.:
Thomas Ratliff, President of Freedom Electrical Contractors, Inc., being first duly cautioned and sworn, deposes and says that on September 12, 1989, on behalf of Freedom Electrical Contractors, Inc., he did invoice Doug Smith, Inc. for the sum of $3,000.00 for electrical work performed at Sinclair College on a dishwasher. This work was performed pursuant to a verbal order from Doug Smith, Inc. with the terms of the electrical work being payment in full within 30 days, with a 2% service charge on accounts not paid within 30 days. A copy of the invoice sent to Doug Smith, Inc. on September 12, 1989 is attached hereto.
Affiant further states that the sum of $2,773.50 was credited to that invoice on or about July 18, 1990.
Doc. # 11.
Plaintiff has also filed a motion for summary judgment, accompanied by a copy of a bank notice, dated July 24, 1990, to Karl Wise that payment was stopped on the check issued by Freedom.
CONCLUSIONS OF LAW
Although § 553 of the Bankruptcy Code generally preserves a creditor’s right of setoff, it also imposes limitations upon the exercise of that right:
(a) Except as otherwise provided in this section and in sections 362 and 363 of this title, this title 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 against a claim of such creditor against the debtor that arose before the commencement of the case, except to the extent that—
(b)(1) Except with respect to a setoff of a kind described in sections 362(b)(6), 362(b)(7), 362(b)(14), 365(h)(2) or 365(i)(2), of this title, if a creditor offsets a mutual *620debt owing to the debtor against a claim against the debtor on or within 90 days before the date of the filing of the petition, then the trustee may recover from such creditor the amount so offset to the extent that any insufficiency on the date of such setoff is less than the insufficiency on the later of—
(A) 90 days before the date of the filing of the petition; and
(B) the first date during the 90 days immediately preceding the date of the filing of the petition on which there is an insufficiency.
(2) In this subsection, “insufficiency” means amount, if any, by which a claim against the debtor exceeds a mutual debt owing to the debtor by the holder of such claim.
The effect of § 553(b)(1) “is to allow the trustee to recover setoffs which advance the position of one creditor at the expense of all other creditors during the 90 day period before bankruptcy.” Pfau v. First National Bank (In re Schmidt), 26 B.R. 89, 92 (Bankr.Minn.1982). In essence, § 553(b) is a miniature preference provision. Eckles v. Petco, Inc. (In re Balducci Oil Co., Inc.), 33 B.R. 847, 852 (Bankr.Colo.1983). The critical inquiry, here, is whether the “alleged” setoff2 by Freedom took place within the 90-day period prior to the filing of the plaintiff’s petition in bankruptcy or outside of that period. Under Ohio law,
[sjetoff, both at law and in equity, is that right which exists between two parties, each of whom under an independent contract owes a definite amount to the other, to set off their respective debts by way of mutual deduction. Walter v. National City Bank of Cleveland, 42 Ohio St.2d 524, 525, 330 N.E.2d 425, 427 (Ohio 1975) (Emphasis Supplied).
The question, therefore, is when is the first date that Freedom could have legally performed a setoff, i.e., when did Freedom owe a definite amount to the plaintiff?
On July 18, 1990, as a result of bidding at an auction, Freedom became obligated to pay the sum of $2,773.50 to the plaintiff for the items sold. The effect upon this obligation by the issuance of Freedom’s check to pay for the goods is governed by Ohio Rev.Code § 1303.75 [U.C.C. § 3-802]:
Effect of instrument on obligation for which it is given.
(A) Unless otherwise agreed where an instrument is taken for an underlying obligation:
(1) the obligation is pro tanto discharged if a bank is drawer, maker, or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; and
(2) in any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; ....
The Official Comment to the U.C.C. explains this section as follows:
3. It is commonly said that a check or other negotiable instrument is “conditional payment.” By this it is normally meant that taking the instrument is a surrender of the right to sue on the obligation until the instrument is due, but if the instrument is not paid on due presentment the right to sue on the obligation is “revived.” Division (A)(2) states the result in terms of suspension *621of the obligation, which is intended to include suspension of the running of the statute of limitations. On dishonor of the instrument the holder is given his option to sue either on the instrument or on the underlying obligation.
Therefore, until the check was dishonored by Freedom’s bank, the plaintiff could not sue on Freedom’s obligation to purchase the goods, nor could it bring an action upon the check itself. Although Freedom had not yet “paid” the underlying obligation, nothing was “due” from Freedom to the plaintiff until the check was dishonored. Canal-Randolph Anaheim, Inc. v. Moore, 78 Cal.App.3d 477, 143 Cal.Rptr. 789, 23 U.C.C.Rep.Serv. 685, 690 (1978).3
On July 24, 1990, Freedom’s bank sent a notice of dishonor to the plaintiff’s agent, at which time Freedom’s underlying obligation was revived pursuant to Ohio Rev.Code § 1303.75(A)(2), and the plaintiff had the option of suing on either the underlying obligation or the check. Not until July 24, 1990, did Freedom have a fixed, noncontingent liability to the plaintiff, and therefore Freedom could not effect a setoff against the plaintiff until this date. Because this date falls on the 90th day prior to the filing of the plaintiff’s bankruptcy petition, and Freedom could not, as a matter of law, have performed a valid setoff prior to this date, the court finds that any attempted setoff by Freedom fell within the 90-day period of § 553(b)(1) of the Bankruptcy Code, entitling the plaintiff to recovery in this proceeding.4
Because of the stipulation that Tom Ratliff acted as the agent of Freedom and the lack of sufficient evidence at this stage of the proceedings to support a finding of fraud on the part of Tom Ratliff, the court is only ruling on Plaintiff’s first cause of action, i.e., the claim against Freedom. Neither the plaintiff nor Tom Ratliff has sufficiently pierced the pleadings in their motions for summary judgment to permit the court to resolve the matter of fraud, and Plaintiff’s second cause of action will be set for trial.
For the foregoing reasons the motion of the plaintiff for summary judgment against Freedom will be granted, and the motion against Tom Ratliff will be denied. The motion of the defendants for summary judgment will also be denied.
. All parties have signed a “Pretrial Order" (Doc. # 10) which states that “[tjhe jurisdiction of the court is not disputed.” Although this proceeding appears to be a non-core proceeding, it is clearly “related" to the debtor’s bankruptcy case. In this circuit, the rule is that absence of a timely objection to the bankruptcy court's jurisdiction constitutes implied consent to resolution of the controversy. Where no party, as here, timely objects, the bankruptcy court may entertain jurisdiction over the matter and enter a final judgment, order, or decree. DuVoisin v. Foster (In re Southern Industrial Banking Corp.), 809 F.2d 329 (6th Cir.1987).
. Setoff is an affirmative defense which must be proven by the party asserting it. First National Bank of Louisville v. Hurricane Elkhom Coal Corp. II, 763 F.2d 188, 190 (6th Cir.1985). In his affidavit, Mr. Ratliff merely states that “the sum of $2,773.50 was credited to [an] invoice on or about July 18, 1990." Typically, a setoff occurs when a creditor:
i) decides to exercise the right to setoff;
ii) takes some action to accomplish the setoff, and
iii)prepares some record, usually in the creditor’s financial books, which evidences the setoff.
Charter Crude Oil Co. v. Enron Oil Trading & Transportation Co., 86 B.R. 280, 281 n. 2 (Bankr.M.D.Fla.1988). Here, there is merely the con-clusory statement that Freedom performed a setoff, but there is no written evidence that the setoff was in fact performed. "A mere declaration of an intent to setoff retrospectively does not establish a setoff.” Belfance v. Banc-Ohio/National Bank (In re McCormick), 5 B.R. 726, 730 (Bankr.N.D.Ohio 1980).
. In addition, it seems to this court that the logical and equitable corollary to suspension of the plaintiffs right to sue on the underlying obligation until the check was dishonored is a contemporaneous suspension of the right of Freedom to exercise a setoff against the underlying obligation.
. Because of the date that Freedom 'became eligible to perform a setoff, the court does not reach the issue of the appropriateness of otherwise recognizing a setoff under the facts of this case. Setoff lies within the equitable discretion of a court, In re Southern Industrial Banking Corp., supra, 809 F.2d at 332, and will not be permitted when it is inequitable or contrary to public policy. Federal Deposit Insurance Corp. v. Bank of America National Trust, 701 F.2d 831, 836 (9th Cir.1983). Clearly, to reward wrongful conduct with a setoff would be contrary to public policy. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491370/ | MEMORANDUM OPINION
ERWIN I. KATZ, Bankruptcy Judge.
This matter comes before the Court on the Trustee’s Cross-Claim to avoid the statutory lien of co-defendant F.D. Masonry, Inc. The co-defendant F.D. Masonry filed an Answer and affirmative defenses to the cross-claim and subsequently presented a motion for judgment on the pleadings before the Court. The motion for judgment on the pleadings asserts that (1) the Trustee’s cross-claim for avoidance is barred by the doctrine of res judicata and (2) the Trustee’s cross-claim is barred because it was not timely filed as a compulsory counterclaim. This matter was taken under advisement by the Court on July 1, 1991.
This is a core proceeding over which the Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(K) and 28 U.S.C. § 1334. The Court, having reviewed the submissions of the parties and the applicable law, hereby finds that neither the doctrine of res judi-cata nor the mandatory counterclaims provision of F.R.C.P. 13 and B.R. 7013 operate to bar the Trustee’s cross-claim seeking avoidance of F.D. Masonry’s unperfected statutory lien pursuant to § 545(2) of the Bankruptcy Code. The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
FACTS:
The debtor, Cutty’s-Gurnee, Inc., filed its Chapter 11 petition in bankruptcy on September 23, 1988. Emmanuel Katten was appointed as Chapter 11 trustee on June 27, 1989. The bankruptcy case was subsequently converted to a Chapter 7 proceeding on August 3, 1989, and Emmanuel Katten was then appointed as the Chapter 7 trustee in this matter.
On December 17, 1989, Great American Insurance Company (herein after Great *971American), a secured creditor in the bankruptcy proceeding, filed an adversary complaint naming multiple defendants which sought to determine the validity, priority and extent of the liens asserted by the various defendants against the Spruce Lake Resort property. The Trustee was named as a party-defendant in the adversary complaint. F.D. Masonry, Inc., although not named as a party defendant in the complaint, thereafter obtained leave from the Court to intervene and was added as a party-defendant on March 7, 1990. The Trustee was notified of the intervention and addition of F.D. Masonry as a co-defendant in the adversary proceeding. Great American later amended its adversary complaint, naming the same defendants, including F.D. Masonry. Pursuant to these complaints and with the knowledge of the Trustee, various agreed orders and judgment orders were entered by this Court recognizing or invalidating the liens of certain defendants.
Great American and F.D. Masonry agreed in lieu of an evidentiary hearing to submit the Great American complaint against F.D. Masonry for ruling on the basis of a joint stipulation of facts. Pursuant to that stipulation, this Court found that F.D. Masonry held a valid and enforceable statutory lien securing its claim but that such lien was unperfected and was therefore junior to all other properly perfected secured claims against the Spruce Lake property. A judgment order to this effect was entered on March 14, 1991. In its memorandum opinion accompanying the judgment order, the Court set forth the basis for its ruling. Rejecting Great American’s arguments, this Court held that a secured creditor cannot assert the trustee’s avoidance powers under § 545(2) to avoid an unperfected statutory lien. “The Bankruptcy Code does not give avoidance powers to creditor nor have the Courts generally allowed creditors to invoke such power. Case law supports the conclusion that is only the trustee or the debtor-in-possession who may exercise this power.” Judgment Order p. 6 dated 3/14/91. Since the Trustee had not filed an avoidance action, the Court did not rule on the merits of the avoidability of the F.D. Masonry lien and held only that the unperfected lien secured a claim with last priority.
The Trustee thereafter filed’ his cross-claim seeking to avoid the statutory mechanics lien of F.D. Masonry pursuant to the avoidance powers in § 545(2). F.D. Masonry has raised two affirmative defenses to the cross claim and moved for judgment on the pleadings on the following grounds: 1) the Trustee’s cross-claim is barred by the doctrine of res judicata and 2) the cross-claim is barred because it was not timely filed as a compulsory counterclaim. DISCUSSION:
F.D. Masonry argues that (1) the Trustee’s avoidance action against it constitutes a compulsory counterclaim, arising out of the same transaction or subject matter as the Great American complaint, which was not timely filed and cannot now be brought as a cross-claim and (2) since the compulsory counterclaim was not asserted in the Great American litigation the Court’s prior judgment order is res judicata as to the issue of avoidance by the Trustee. The Court rejects this position. The avoidance action of the Trustee against co-defendant F.D. Masonry constitutes a cross-claim governed by Fed.R.Civ.Pro. 13(g) and Bankr.R. 7013, and the Trustee’s decision not to pursue the cross-claim in connection with the Great American adversary proceeding in which it was a co-defendant does not provide a basis for invoking the doctrine of res judicata.
A. The Trustee’s Avoidance Action Against Co-defendant F.D. Masonry Constitutes a Permissive Cross-claim Pursuant to F.R.C.P. 13(g) and B.R. 7013.
Federal Rule of Civil Procedure 13 governs counterclaims and cross-claims and Bankruptcy Rule 7013 makes such rules applicable to adversary proceedings with one modification. Rule 13(a), entitled “Compulsory Counterclaims,” provides that a party shall include in its pleadings any claim which exists against any opposing party at the time the pleading is served if it arises out of the transaction or occurrence *972which is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties outside the jurisdiction of the court. Such counterclaims are compulsory and must be timely filed or the counterclaim will be barred. In contrast, a counterclaim not arising out of the same transaction or occurrence is a permissive counterclaim governed by Rule 13(b) which may be filed against an- opposing party, in the responsive pleadings, but it is not mandatory to do so. Although the treatment of compulsory and permissive counterclaims is markedly different, both provisions involve counterclaims against an opposing party.
Claims against a co-party rather than an opposing party constitute cross-claims governed by Rule 13(g). Rule 13(g) states
A pleading may state as a cross-claim any claim by one party against a co-party arising out of the same transaction or occurrence that is the subject matter either of the original action or the counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
This provision clearly establishes that claims against co-parties may be filed as a cross-claim but that such filing is not compulsory.
Applying F.R.C.P. 13 to these proceedings, it is clear that the Trustee’s avoidance action against co-defendant F.D. Masonry constitutes a permissive cross-claim against a co-party which relates to the property that was the subject of the original action. It is not a claim against an opposing party since the Trustee and F.D. Masonry are named as co-defendants in the Great American adversary complaint. The avoidance action therefore falls within the scope of Rule (g) and is a permissive cross-claim, not a compulsory counterclaim under subsection (a). The Trustee was under no obligation to assert his avoidance powers in responding to the Great American complaint and the decision not to seek avoidance earlier cannot bar the Trustee’s claim at this time. “[A] party to an action having a claim in the nature of a cross-claim has an option to pursue it in an independent action.” Augustin v. Mughal, 521 F.2d 1215, 1216 (8th Cir.1975).
Furthermore, even assuming that the avoidance action constitutes a compulsory counterclaim, Bankruptcy Rule 7013 provides that the Court may in its discretion, allow the late filing of such a counterclaim. Rule 7013 states “A trustee or debt- or-in-possession who fails to plead a counterclaim through oversight, inadvertence, or excusable neglect, or when justice so requires, may by leave of court amend the pleading, or commence a new adversary proceeding or separate action.” The Court finds that, for whatever reason the Trustee chose to delay the assertion of his avoidance action, justice requires that it be allowed at this point to protect the interests of unsecured creditors and the bankruptcy estate. The Trustee was given leave by the Court to file the cross-claim in this Court’s Order of April 25, 1991 and the avoidance action is therefore not barred by the late filing.
2. The Court’s Ruling That a Secured Creditor Lacks Standing to Assert the Trustee’s Avoidance Powers Does Not Adjudicate the Merits of the Trustee’s Action to Avoid An Un-perfected Statutory Lien and is Therefore Not Res Judicata on This Issue.
F.D. Masonry argues that Great American acted as the agent of the Trustee in prosecuting its adversary complaint, creating privity of the parties, and that the avoidance claim of the Trustee, which could have been asserted but was not, is therefore barred by the doctrine of res judicata. This argument ignores the Court’s prior ruling that a secured creditor cannot assert the avoidance powers of the trustee. Because the Court found that Great American lacked standing to raise the issue it did not reach the merits of the avoidance action and the issue was not litigated. Further*973more, since the Trustee’s avoidance action constitutes a permissive cross-claim, the Trustee is not barred by principles of res judicata, waiver or estoppel from asserting it now.
Contrary to F.D. Masonry’s argument, a creditor may not act as the Trustee’s agent for avoidance purposes since creditors lack standing to assert the avoidance powers of the Bankruptcy Code. The avoidance action could not have been litigated by Great American, and although it could have been presented as a permissive cross-claim, the Trustee is not now barred from raising the issue due to Great American’s prior complaint seeking a determination of the validity of the F.D. Masonry lien. Great American was not acting as the Trustee’s agent in litigating that complaint since it legally could not exercise the Trustee’s avoidance powers in that proceeding.
The doctrine of res judicata operates to ensure judicial economy and finality in resolving disputes by barring the parties to a judgment and their privies from relitigating the identical cause of action. Durban v. Neapolitan, 875 F.2d 91, 93-94 (7th Cir.1989). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action and prevents litigation of all grounds for recovery or defenses thereto which were previously available to the parties even if not actually raised in the prior proceeding. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The preclusive effect of res judicata applies where there has been (1) a final judgment on the merits in a prior action, (2) an identity of the cause of action in the prior and subsequent suits, and (3) an identity of parties or privies in these suits. Shaver v. F. W. Woolworth, 840 F.2d 1361 (7th Cir.1988).
Applying these principles here, the Court finds that there is no such identity since Great American lacked standing to litigate the Trustee’s avoidance claim as his agent and this Court expressly held in the prior proceeding that it could not decide the avoidance issue on the merits absent some action by the Trustee. This Court did not and could not reach this issue in the prior proceeding. Res judicata therefore is not applicable to bar the issue now.
F.D. Masonry argues that the Trustee, however, could have asserted his avoidance powers in the Great American litigation and the issue is therefore precluded by res judicata principles. This argument again mistakenly characterizes the Trustee’s avoidance action as a compulsory counterclaim which must be asserted or be barred thereafter. A party who elects not to bring a permissive cross-claim under Rule 13(g) will not be barred by res judicata, waiver, or estoppel from asserting in a later action. 6 C. Wright & A. Miller Federal Practice & Proc. § 1431 at 236; 3 Moore’s Federal Practice, 1113 — 34[1] at 13-203 (citing numerous decisions supporting this rule).
The Court finds that the merits of the Trustee’s avoidance action were not previously litigated, Great American could not act as the Trustee’s agent exercising his avoidance powers in the prior litigation, and the Trustee was under no obligation to assert the cross-claim in the prior litigation. The judgment in the prior litigation, therefore, in no way bars the assertion of avoidance powers by the Trustee at this time. The Motion of the Co-Defendant, F.D. Masonry, for judgment on the pleadings is hereby denied. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483566/ | Case: 22-30265 Document: 00516543333 Page: 1 Date Filed: 11/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 14, 2022
No. 22-30265 Lyle W. Cayce
Clerk
Colby Dranoel Leonard,
Plaintiff—Appellant,
versus
James M. LeBlanc, Secretary, Department of Public
Safety and Corrections; Cranford Jordan, Louisiana
Sheriff Association; James Keith Deville, Warden,
Winn Correctional Center; David Yount, Education
Director,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:22-CV-369
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Colby Leonard, Louisiana inmate # 536844, appeals the dismissal of
his 42 U.S.C. § 1983 complaint for failure to state a claim. Leonard alleges
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-30265 Document: 00516543333 Page: 2 Date Filed: 11/14/2022
No. 22-30265
that the defendants deprived him of his constitutional right to pursue
educational and vocational opportunities while incarcerated. The magistrate
judge’s report rightly concluded that “a state has no constitutional obligation
to provide basic educational or vocational training to prisoners.” Beck v.
Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
Leonard’s appeal is without arguable merit and, therefore, is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th
Cir.1983); 5TH CIR. R. 42.2. The dismissal counts as a “strike” under
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387–88 (5th
Cir.1996). Leonard is cautioned that if he accumulates three strikes he may
not proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483585/ | Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
14-NOV-2022
07:57 AM
Dkt. 9 ODAC
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
AB, Petitioner/Petitioner-Appellant,
vs.
MF, Respondent/Respondent-Appellee.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-P NO. 18-1-0175)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
The application for writ of certiorari filed on
October 11, 2022, deemed filed on October 10, 2022 by order of
this court, by Petitioner/Petitioner-Appellant AB is hereby
rejected.
DATED: Honolulu, Hawaiʻi, November 14, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483560/ | 11/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 7, 2022 Session
STATE OF TENNESSEE v. MARCUS DAVIS
Appeal from the Criminal Court for Shelby County
No. 20-1242 J. Robert Carter, Jr., Judge
___________________________________
No. W2021-01147-CCA-R3-CD
___________________________________
The Defendant, Marcus Davis, was convicted by a Shelby County Criminal Court jury of
attempted first degree premeditated murder, a Class A felony, and employing a firearm
during the attempt to commit a dangerous felony, a Class C felony, and was sentenced by
the trial court to an effective term of twenty-one years in the Department of Correction.
On appeal, he argues that the evidence is insufficient to show premeditation and that the
trial court erred by denying his request for a jury instruction on self-defense. Based on our
review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which J. ROSS DYER and
JILL BARTEE AYERS, JJ., joined.
Michael E. Scholl, Memphis, Tennessee (on appeal) and Terrance Rand, Nashville,
Tennessee, and Larry Sims and Kim Sims, Memphis, Tennessee (at trial), for the appellant,
Marcus Davis.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Brad Reasoner and Neil
Umsted, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
This case arises out of the Defendant’s October 18, 2019, shooting of his Memphis
“Bimbo Bakeries” co-worker, Cordell Jeffries, during an altercation in the warehouse of
the business. According to the State’s proof at trial, the Defendant shot the unarmed victim
in the chest as the victim was backing away from the Defendant during a fist fight. As the
victim was fleeing, the Defendant shot him a second time in the arm. Afterwards, the
Defendant calmly exited the warehouse, never again to return to work. Approximately ten
days later, the Defendant turned himself into the police. The Shelby County Grand Jury
subsequently indicted the Defendant with attempted first degree premeditated murder and
employing a firearm during the commission of or attempt to commit a dangerous felony.
At the July 12-14, 2021 trial, Memphis Police Department (“MPD”) Officer
Jazmine Tolbert testified that at approximately 2:00 or 2:30 p.m. on October 18, 2019, she
responded to a report of a shooting at the Bimbo Bakeries. When she arrived, she saw a
blood trail leading to the break room in which the victim was sitting. The victim had been
shot twice - - once in the chest and once in the arm. After talking to the victim, she went
to the warehouse, where she found a shell casing. Although she and fellow officers
canvassed the area, they were unable to locate any additional shell casings. On cross-
examination, she agreed that there would be two shell casings if the victim had been shot
twice.
The victim testified that he had been employed with Bimbo Bakeries for nine or ten
years and had worked his way up to “team lead,” a job in which he was required “to direct
and distribute bread around Memphis and to direct the guys on what to do.” He had worked
for approximately eight months with the Defendant, whose job was “to load bread into
baskets and distribute amongst the route.” He and the Defendant originally had a good
working relationship but began having work-related conflicts after he corrected the
Defendant about the Defendant’s work not “being done properly[.]” Although he and the
Defendant had work-related conflicts, they never had any personal conflict and, prior to
the day of the shooting, had never been in a physical altercation.
The victim testified that, up until two days before the shooting, he had been off work
for two weeks following the death of this mother. During the time he was off work, the
Defendant brought flowers to his mother’s wake. When he arrived at work on the day of
the shooting, the Defendant told him that he wanted to talk to him about something, so the
victim followed the Defendant into an area of the warehouse behind some trays of cakes.
The victim identified the surveillance tape of the shooting, which was published to the jury
and subsequently admitted as an exhibit. He said the location of the warehouse’s
surveillance cameras was common knowledge among the employees of the bakery. He
stated that during the portion of the surveillance tape in which he followed the Defendant
out of camera view, the Defendant struck him with his fist. The victim said he began
backing away, as reflected on the surveillance tape. The Defendant charged him, and the
victim reacted by striking the Defendant twice with his fist. The Defendant then pulled out
a gun and shot the victim in the chest.
-2-
The victim testified that he tried to escape and that the Defendant attempted to shoot
him again. The victim agreed that the surveillance tape reflected that the Defendant
dropped his gun, that the victim ran from the Defendant, that the Defendant picked the gun
up and aimed it at him as he was fleeing, and that the Defendant then calmly walked out of
the warehouse. The victim stated that the Defendant fired a total of two or three shots at
him. At the request of the prosecutor, the victim displayed the scars on his chest and arm
from his gunshot wounds. The victim said the bullet that struck his chest remained lodged
in his body, and that the bullet that struck his arm passed all the way through, leaving scars
on both sides of his arm from the entrance and exit wounds. The victim stated that he never
had a gun or any other kind of weapon and that he hit the Defendant only with his fist. The
victim also stated that it was against company policy to bring a gun to the facility and that
there were signs in the workplace reflecting that policy.
On cross-examination, the victim testified that it was his employer who purchased
the flowers for his mother’s wake; the Defendant merely delivered the flowers on behalf
of the employer. The victim said that the Defendant had threatened him in the past at work,
that they had work meetings to address those threats, and that his employer responded by
scheduling the Defendant to work a different shift. Later in his cross-examination
testimony, the victim testified that the Defendant had threatened to kill him, both before
and after he brought flowers to the victim’s mother’s wake. The victim said that he and
the Defendant did not discuss anything before the Defendant initiated the fist fight. The
Defendant told him only that he wanted to discuss something with him. When he followed
the Defendant into the warehouse behind the cake trays, the Defendant turned around and
“sucker punched” him.
The victim insisted that he had no idea why the Defendant sucker punched him. He
repeated that his only prior conflict with the Defendant had been work-related, caused by
his having complained about the Defendant’s leaving early for his break and not
completing his work assignments. The victim denied that his separate injuries could have
been caused by a single bullet that passed through his arm into his chest, testifying that he
felt the impact of a bullet in his chest before he felt the impact to his arm. He stated that
he had never before seen the Defendant with a gun and that the first time he saw the gun
that day was when the Defendant pulled it out of his pocket and shot him.
MPD Detective Alfreda Harper testified on direct and redirect examination that
police officers discovered one shell casing “over in the bread in the racks.” She said they
canvassed the area but never found any additional casings. She stated that it was possible
there were other casings that were not recovered because if a shell casing hit the concrete
warehouse floor it could have gone “anywhere[.]” She said an employee named Cedric
Duckett was at the scene when the altercation started but did not provide any useful
-3-
information. She stated that she swore out a warrant for the Defendant’s arrest on October
21, 2019.
On cross-examination, Detective Harper testified that she based the charges against
the Defendant on the victim’s statement and her viewing of the surveillance tape, which
appeared to her to show that the Defendant fired at the victim twice -- first after holding
his gun up to the victim’s face, and then again as the victim was fleeing. She acknowledged
that she did not know which man initiated the confrontation. In response to a question
from the trial court, she testified that she and other officers moved what they could in their
search for shell casings but that the warehouse was very cluttered.
As its final proof, the State introduced the parties’ stipulation that the Defendant
turned himself into the Shelby County Sheriff’s Office Fugitive Division on October 30,
2019.
The Defendant testified that the victim was a long-time employee of Bimbo
Bakeries who helped train new employees, but that he was never the Defendant’s
supervisor and never held the title of “team lead.” He said the victim became jealous of
him after “a . . . new big boss . . . grew [a] liking to [the Defendant]” and the Defendant
was made a permanent employee. He testified that the victim was constantly grumbling
about him and continually “throwing his signs” at him. He denied that he ever threatened
to kill the victim.
The Defendant testified that on the day before the shooting, he and Mr. Duckett had
completed their work and were outside when the victim, who worked the second shift,
arrived at the bakery. The Defendant explained that he had been forced to work later that
day because the delivery truck arrived late. He stated that when he attempted to clock out
at 9:00 p.m., he learned that the victim had clocked him out early. The Defendant said that
he reported the victim’s actions to his supervisor, but he did not know what steps, if any,
the supervisor took to address his complaint.
The next day, the victim arrived early before the victim’s shift was scheduled to
start. The victim was in an “uprage, hollering what he gone [sic] do, people got him effed
up, all of this, and all of that.” The Defendant stated that he was walking away from the
victim and did not know that the victim was following him. He then noticed Mr. Duckett
“looking like someone would hide,” so he started to turn around. Before he could turn, the
victim hit him “[a]nd that’s when the altercation started.” The Defendant stated that he
responded to the victim’s blows by reaching for his gun, which he regularly carried, and
firing one shot. He denied that it was against company policy to have a gun at the
workplace or that there were any signs prohibiting guns. He did not recall firing more than
one shot and said that he discharged his weapon because he felt threatened when the victim
-4-
struck him a hard blow with what felt like an object. He denied that he had any intent to
kill the victim and said that his only intention was to get the victim off of him.
On cross-examination, the Defendant acknowledged that the surveillance video
showed that he turned around at one point to look at the victim as the victim was following
him into the warehouse. He said, however, that he did not know that the victim was
continuing to follow him. He acknowledged that the video showed that the victim was
backing away from him before he fired his gun. He admitted that the victim never pulled
a gun on him and that he never saw an object in the victim’s hands. He conceded that the
victim was “off of [him]” before he fired his gun, that the victim ran toward the door, that
he pursued the victim, that he dropped his gun, and that he picked the gun back up. He
denied that he fired a second shot at the victim, despite the surveillance video’s appearing
to show him aiming the weapon at the fleeing victim. Finally, he acknowledged that he
calmly walked out of the warehouse, that he never returned to work, and that he did not
contact the police, go to the hospital for treatment of any injury, or turn himself in until
October 30.
The jury convicted the Defendant of the indicted offenses, and the trial court
sentenced him to an effective term of twenty-one years in the Department of Correction.
Following the denial of his motion for new trial, the Defendant filed an appeal to this court
in which he challenges the sufficiency of the evidence in support of his conviction for
attempted first degree premeditated murder and argues that the trial court erred by not
instructing the jury on self-defense.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant first contends that the evidence is insufficient to sustain his
conviction for attempted first degree murder because there was insufficient proof that he
acted with premeditation. He asserts that the evidence showed that the victim aggressively
followed him while armed with a blunt object, that he did not draw his gun until after the
victim punched him at least twice, that he made no declarations of an intent to kill the
victim and no attempts to conceal the crime, and that he did not procure his weapon for the
sole reason of killing the victim. The State responds that the evidence, viewed in the light
most favorable to the State, was more than sufficient to show that the Defendant acted with
premeditation. We agree with the State.
When the sufficiency of the evidence is challenged on appeal, the relevant question
of the reviewing court is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
-5-
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
Therefore, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn from it. See State v. Williams,
657 S.W.2d 405, 410 (Tenn. 1983). All questions involving the credibility of witnesses,
the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “A jury conviction
removes the presumption of innocence with which a defendant is initially cloaked and
replaces it with one of guilt, so that on appeal a convicted defendant has the burden of
demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).
The guilt of a defendant, including any fact required to be proven, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). The standard of review for the sufficiency of the evidence is the same whether
the conviction is based on direct or circumstantial evidence or a combination of the two.
See State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
For the purposes of this case, first degree premeditated murder is defined as “[a]
premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202 (2018).
Criminal Attempt occurs when a person who, “acting with the kind of culpability otherwise
required for the offense . . . [a]cts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without further conduct on the
person’s part[.]” Id. at § 39-12-101(a).
Premeditation requires that the act be “done after the exercise of reflection and
judgment” and committed when the accused “was sufficiently free from excitement and
passion as to be capable of premeditation.” Id. at § 39-13-202(d). Whether premeditation
exists is a factual question for the jury to determine from all the evidence, including the
circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.
2003). Our supreme court has provided a non-exclusive list of factors from which a jury
may infer premeditation, including the defendant’s declarations of an intent to kill,
evidence of the procurement of a weapon, the defendant’s use of a weapon on an unarmed
victim, the particular cruelty of the killing, evidence of the infliction of multiple wounds,
the defendant’s preparation before the killing to conceal the crime, destruction or secretion
of evidence after the killing, and the defendant’s calmness immediately after the killing.
-6-
State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional evidence from which a jury
may infer premeditation is establishment of a motive for the killing. State v. Leach, 148
S.W.3d 42, 54 (Tenn. 2004).
Viewed in the light most favorable to the State, the evidence established that the
Defendant and the victim had work-related conflicts, that the two men did not get along,
and that the Defendant had threatened in the past to kill the victim. The evidence further
established that on the day of the shooting, the Defendant, who was angry at the victim’s
having clocked him out early the previous day, asked the victim to follow him into the
warehouse and then “sucker-punched” him when the two were out of camera view behind
the tray of cakes. When the victim fought back, the Defendant pulled out his gun and shot
the victim in the chest as the victim was backing away. The Defendant dropped the gun,
but retrieved it and shot the victim again as the victim was fleeing from the warehouse.
The Defendant then calmly exited the warehouse.
The Defendant asserts that the surveillance tape shows that the victim was carrying
an object in his hand as he followed the Defendant into the warehouse. He further asserts
that the single shell casing demonstrates that the Defendant fired only one shot at the victim
in an effort to get the victim off him during the course of their fist fight. We have reviewed
the surveillance tape and cannot discern whether there is any object in the victim’s hand.
What is clearly visible on the tape, however, is the Defendant’s actions in picking up the
dropped gun and aiming it at the fleeing victim. The surveillance tape has no sound, but
the Defendant’s stance with his gun arm extended toward the fleeing victim is consistent
with the victim’s account of having been shot first in the chest and a second time in the
arm as he attempted to run away. Moreover, although only a single shell casing was
recovered from the scene, the police detective explained that the warehouse was very
cluttered and that a shell casing could have gone anywhere. From all the evidence, a
rational jury could have reasonably found that the Defendant acted with premeditation in
his shooting of the victim. We, therefore, conclude that the evidence is sufficient to sustain
the Defendant’s conviction for attempted first degree premeditated murder.
II. Self-Defense Instruction
The Defendant next contends that the trial court erred by not instructing the jury on
self-defense, arguing that self-defense was fairly raised by his testimony that the victim
struck him in the back with a blunt object. The State argues that the trial court properly
found that the proof did not warrant an instruction on self-defense. We, again, agree with
the State.
It is well-settled in Tennessee that a defendant has a right to a correct and complete
charge of the law so that each issue of fact raised by the evidence will be submitted to the
-7-
jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citations
omitted). Accordingly, trial courts have the duty to give “a complete charge of the law
applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim.
App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). Because the
propriety of jury instructions is a mixed question of law and fact, the standard of review is
de novo with no presumption of correctness. State v. Benson, 600 S.W.3d 902 (Tenn.
2020) (citations omitted).
Self-defense “need not be submitted to the jury unless it is ‘fairly raised by the
proof.’” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (quoting Tenn. Code Ann.
§ 39-11-203(c) (2010)). “The quantum of proof necessary to fairly raise a general defense
is less than that required to establish a proposition by a preponderance of the evidence.”
Id. In order “[t]o determine whether a general defense has been fairly raised by the proof,
a court must consider the evidence in the light most favorable to the defendant and draw
all reasonable inferences in the defendant’s favor.” Id. “If a general defense is found to
be fairly raised by the proof, the trial court must submit the defense to the jury and the
burden shifts to the prosecution to prove beyond a reasonable doubt that the defense does
not apply. Benson, 600 S.W.3d at 903 (citing State v. Perrier, 536 S.W.3d 388, 401
(Tenn.2017)).
Under our self-defense statute, the following conditions must be met for a person to
be justified in using deadly force in Tennessee:
(A) The person has a reasonable belief that there is an imminent danger of
death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious bodily injury
is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
Tenn. Code Ann. § 39-11-611(b)(1), (2).
The trial court denied the Defendant’s request for a self-defense instruction on the
basis that self-defense was not fairly raised by the proof at trial. We find no error in the
trial court’s ruling. Even if the victim was armed with a blunt object and was the one who
struck the first blow, the proof showed that the Defendant did not fire his first shot until
the victim was backing away from him. The proof further showed that the Defendant
picked up his dropped gun and fired his second shot as the victim was fleeing out of the
warehouse. There was no evidence that the victim ever had a weapon of any type or that
-8-
the Defendant sustained any injury, much less serious bodily injury, from the victim’s
blows.
The Defendant attempts to distinguish his case from Benson, which the trial court
cited in its ruling, by pointing out that, unlike the defendant in Benson, he offered testimony
that he felt threatened with serious bodily injury when he shot the victim. However, as in
Benson, “[a]t most, the defense proof fairly raised the issue of whether the defendant was
justified in using non-lethal force to protect himself from the victim.” 600 S.W.3d at 907.
Although the Defendant testified that it felt as if the Defendant hit him with an object, he
acknowledged that he never saw an object in the victim’s hands. Moreover, as discussed
above, the evidence was that the Defendant fired his gun after the victim was already
backing away from him. We, therefore, conclude that the trial court did not err in refusing
the Defendant’s requested instruction on self-defense.
CONCLUSION
Based on our review of the record and analysis of the applicable law, we affirm the
judgments of the trial court.
_________________________________
JOHN W. CAMPBELL, SR., JUDGE
-9- | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483562/ | Case: 22-50051 Document: 00516543522 Page: 1 Date Filed: 11/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50051
Summary Calendar FILED
November 14, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ismael Lira,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-722-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Ismael Lira, federal prisoner #45946-180, appeals the denial of his
motion for compassionate release per to 18 U.S.C. § 3582(c)(1)(A)(i) and his
motion for reconsideration of the denial. He avers that he has demonstrated
extraordinary and compelling reasons for relief and that the factors in
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 22-50051 Document: 00516543522 Page: 2 Date Filed: 11/14/2022
No. 22-50051
18 U.S.C. § 3553(a) favor a reduction in sentence.
The district court’s contrary assessment of the § 3553(a) factors is a
sufficient basis for its denial of the motions, and this court owes deference to
that assessment. See United States v. Chambliss, 948 F.3d 691, 693 (5th Cir.
2020). Lira shows only that he disagrees with how the court weighed the
§ 3553(a) factors, which is not a sufficient basis for reversal. See id. at 694.
AFFIRMED.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483592/ | SUPERIOR COURT
OF THE
STATE OF DELAWARE
Sussex County Courthouse
ROBERT H. ROBINSON, JR. 1 The Circle, Suite 2
JUDGE Georgetown, DE 19947
Telephone: (302) 856-5264
Submitted: August 11, 2022
Decided: November 14, 2022
Sean A. Meluney, Esquire Periann Doko, Esquire
William M. Alleman, Jr., Esquire Kent & McBride, P.C.
Meluney Alleman & Spence, LLC 405 Silverside Road, Suite 202
1143 Savannah Road, Suite 3-A Wilmington, DE 19809
Lewes, DE 19958 Attorney for Defendant
Attorneys for Plaintiff
Joshua G. Ferguson, Esquire
Freeman Mathis & Gary, LLP
1600 Market Street, Suite 1210
Philadelphia, PA 19103
Attorney pro hac vice for Defendant
Re: Aspira Health, LLC v. Virtual OfficeWare (DE), LLC; d/b/a Virtual
OfficeWare Healthcare Solutions
C.A. No.: S22C-05-015 RHR
Dear Counsel:
Defendant, Virtual OfficeWare (DE), LLC’s (“VOW”), filed a Motion to
Dismiss for Lack of Venue pursuant to Superior Court Civil Rule 12(b)(3) (the
“Motion”) arguing that a forum selection clause allegedly incorporated into an
agreement between the parties requires that any litigation be conducted in a
Massachusetts court. For the following reasons, VOW’s Motion is DENIED.
A. Background
VOW is a Delaware limited liability company based in Pittsburgh,
Pennsylvania that provides medical billing and revenue cycle management services
to its clients.1 Plaintiff, Aspira Health, LLC (“Aspira”), is a Delaware limited
liability company that provides healthcare services to its patients and is
headquartered in Lewes, Delaware.2 Relevant to this litigation is a non-party
software provider located in Watertown, Massachusetts, Athenahealth, Inc.
(“Athena”).3 Athena authorized VOW to utilize its software platform, athenaNet, in
its ordinary course of business to provide services to its clients.4
VOW entered into four contracts, titled “service proposals,” with Aspira
between September 10, 2020 and October 5, 2021.5 The service proposals define the
work that VOW would complete for Aspira and the fee obligations.6 Unfortunately,
the four service proposals are very brief and do not contain many terms and
conditions that one would expect to find in business contracts.
The first service proposal, dated September 10, 2020 (the “First Contract”),
consists of four pages, and is signed by representatives of VOW and Aspira. The
1
Pl. Compl. ¶ 14 (D.I. 1) (hereinafter “Compl.”).
2
Compl. ¶¶ 2, 13.
3
Opp’n to Def.’s Mot. to Dismiss ¶¶ 4-5 (D.I. 15) (hereinafter “Pl.’s Opp’n”); Compl. Ex. 1.
4
Pl.’s Opp’n ¶¶ 4-5; Compl. Ex. 1.
5
Compl. ¶¶ 22-33.
6
Id.
2
title page includes the following statement: “This proposal upon acceptance by
Aspira Health LLC will become effective as a binding agreement and form part of
the Athena Services Agreement.” However, the First Contract does not define what
constitutes the “Athena Services Agreement” and there are no references to any other
documents in the First Contract.
Notwithstanding, several documents are apparently attached to the First
Contract. First, there is an Addendum A titled “Athena Services Agreement—
Managed Entity” that is executed by VOW and Aspira, but not Athena, even though
there is a signature block for Athena.7 Addendum A does not explicitly reference the
First Contract, although there are references to a “Master Agreement” dated March
25, 2020 between VOW and Athena and an “Athena ‘Proposal’ #Q-69930-1.”
Neither of these referenced documents have been provided and it is not clear how
they relate to the First Contract, if at all. Second, there is an Addendum B titled
“Terms and Conditions of Athena Services.” Addendum B defines the parties
(Aspira, VOW, and Athena) and includes fourteen sections of terms and conditions,
and an Exhibit A.8 Section 12 of Addendum B (“Section 12”) contains the forum
selection language that is the basis of VOW’s Motion. 9
7
The document explicitly states the agreement will become binding upon the countersignature by
Athena. It is not clear at this point in the proceedings whether Athena signed this document.
8
Compl. Ex. 1.
9
See id. Section 12 reads as follows:
Choice of Law; Forum.
3
In early 2022, Aspira suspected that VOW was mismanaging Aspira’s
accounts by failing to collect revenues, improperly coding claims, and erroneously
credentialing or completely failing to credential Aspira’s doctors.10 According to the
Complaint, Aspira’s investigation revealed that VOW had failed to collect hundreds
of thousands of dollars from Aspira patients, unilaterally wrote-off outstanding
accounts receivable claims, and did not provide any coding audits as required under
the First Contract.11
On March 15, 2022, Aspira alerted VOW that it was terminating the parties’
contracts. Significantly, the termination letter from Aspira referenced Section 3 of
the Addendum B.12 Aspira later filed its Complaint with this court on May 9, 2022.13
The Complaint alleges that VOW breached each of the four contracts and was
negligent by failing to properly work and collect on Aspira’s accounts.14
Additionally, Aspira claims VOW made material misrepresentations and omissions
to induce Aspira into entering subsequent service contracts.15 VOW filed this Motion
This Services Agreement and any Dispute, including any conduct related to this Services
Agreement following termination hereof will be governed exclusively by the laws of the
Commonwealth of Massachusetts, without regard to its conflicts with law principles. The
Federal District Court for the District of Massachusetts will be the exclusive venue for any
resolution of any Dispute. The Parties hereby submit to and consent irrevocably to the
jurisdiction of such courts for these purposes. The Parties hereby irrevocably waive any
and all right to trial by jury in any legal proceeding arising out of any Dispute.
10
Compl. ¶ 4.
11
Compl. ¶ 6.
12
Def.’s Mot. to Dismiss for Lack of Venue Ex. 1.
13
See Compl.
14
Id. ¶ 1.
15
Id. ¶ 62.
4
on July 8, 2022.16
B. The Parties’ Contentions
VOW contends that all the terms and conditions found in Addendum B,
including Section 12, are incorporated by reference into the First Contract and are
enforceable against the parties.17 VOW asserts that Section 12 is a binding forum
selection clause for any disputes between the parties.18 Additionally, VOW claims
that Aspira acknowledged that all of the terms and conditions in Addendum B were
binding on the parties because it referenced Section 3 of Addendum B in its notice
to terminate services on March 15, 2022.19
Aspira contends Section 12 applies only to disputes that arise between Aspira
and Athena.20 Aspira maintains that Addendum B governs Aspira’s use of Athena’s
software platform and that VOW is an agent of Aspira.21 Aspira argues that Athena
is not a party to the instant dispute and, therefore, the forum selection clause does
not apply to the claims in its Complaint.22 Also, Aspira points out that even if the
venue provision is found to be part of the First Contract, the second, third, and fourth
16
See Def.’s Mot. to Dismiss for Lack of Venue (hereinafter “Def.’s MTD”).
17
Id. at 4-5.
18
Def.’s MTD at 2.
19
Id. at 5.
20
Pl.’s Opp’n ¶¶ 1-2.
21
Id. ¶ 4.
22
Id. ¶¶ 1,4.
5
service proposals (the bases of the breach of contract claims in counts II through IV
of the Complaint) between VOW and Aspira are silent as to venue.
C. Standard of Review
Superior Court Civil Rule 12(b)(3) governs a motion to dismiss for improper
venue.23 When ruling on a motion to dismiss, the court is not to resolve issues of
material fact or decide the merits of the case but should rather test the sufficiency of
the complaint.24 In its review, the court is to assume as true all the well-pleaded facts
in the complaint and view those facts and all inferences drawn from them in the light
most favorable to the plaintiff.25 The court should “give effect to the terms of private
agreements to resolve disputes in a designated judicial forum out of respect for the
parties’ contractual designation.”26 The court can “grant a dismissal motion before
commencement of discovery on the basis of affidavits and documentary evidence if
the plaintiff cannot make out a prima facie case in support of its position.”27 In doing
so, the court “is not shackled to the plaintiff’s complaint and is permitted to consider
extrinsic evidence.”28
23
Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. Ct. Mar. 31, 2009).
24
Id. (citing Belfint, Lyons, and Shuman v. Potts Welding & Boiler Repair, Co., Inc., 2006 WL
2788188, at *2 (Del. Super. Ct. Aug. 28, 2006)).
25
Id. (citing Anglo American Sec. Fund, L.P. v. S.R. Global Intern. Fund, L.P., 829 A.2d 143, 148-
49 (Del. Ch. Aug. 4, 2003)).
26
Id. (quoting Halpern Eye Assoc., P.A. v. E.A. Crowell & Assoc., Inc., 2007 WL 3231617, at *1
(Del. Com. Pl. Sept. 18, 2007) (citation omitted)).
27
Id. (citing Simon v. Navellier Series Fund, 2000 WL 1597890, at *4 (Del. Ch. Oct. 19, 2000)).
28
Id. (quoting Halpern Eye Assoc., 2007 WL 3231617, at *1 (Del. Com. Pl. Sept. 18, 2007)
(citation and internal quotations omitted)).
6
D. Discussion
I note at the outset that the service proposals and the various attachments are
confusing and poorly drafted. Considering the amount of money that is covered by
the service proposals, one would think that the parties would have created clearer
and more comprehensive contracts. The four service proposals are not much more
than a sales pitch with only cursory terms. To further complicate matters, the four
service proposals and the attachments to them have different headings, contain
conflicting language, and reference or incorporate documents that either do not exist
or are not attached.
Delaware courts typically “give effect to the terms of private agreements to
resolve disputes in a designated judicial forum out of respect for the parties’
contractual designation.”29 Notwithstanding, this court has also held “absent clear
language, a court will not interpret a forum selection clause to indicate the parties
intended to make jurisdiction exclusive.”30 In other words, where a forum selection
clause is not clear in its attempt to establish an exclusive jurisdiction, the court will
not attempt to surmise terms in the contract by reading them any way other than
29
Loveman, 2009 WL 847655 at *3 (Del. Super. Ct. Mar. 31, 2009) (quoting Prestancia Mgmt.
Grp., Inc. v. Virginia Heritage Found., II LLC, 2005 WL 1364616, at *7 (Del. Ch. May 27, 2005)).
30
Eisenbud v. Omintech Corp. Sol., Inc., 1996 WL 162245, at *1 (Del. Ch. Mar. 21, 1996)
(citations omitted).
7
through the court’s objective lens.31 The various proposals, contracts, and
addendums in the present matter are more confusing than clear.
VOW asks me to dismiss the Complaint based on language in an addendum
that is not explicitly referenced in the First Contract, or any of the other service
proposals. While it is “axiomatic that a contract may incorporate by reference
provisions contained in some other instrument,” that incorporation will only be
recognized if the parties “expressed an ‘explicit manifestation of intent’ to
incorporate one document into another.”32 Here, I can find no such explicit intent.
Section 12 is contained in Addendum B, which in turn is attached to the first of four
service proposals between Aspira and VOW. None of the four service proposals
mention venue, and there is only a passing reference on the title page of the First
Contract that it is part of a general “Athena Services Agreement,” without any
further explanation or clarification.
Other aspects of the documents add to the uncertainty of what the parties
intended. For example, it does not appear that Athena executed any of the
documents, even though several of the documents contain signature lines for Athena.
It is not clear what the relationship is between Athena and VOW. Addendum B that
31
See id. (illustrating where this court held that the plain language in the forum selection clause
did not exclusively restrict the forum to a single jurisdiction for the parties to resolve their
disputes).
32
McDonald’s Corp. v. Easterbrook, 2021 WL 351967, at *4 (Del. Ch. Feb. 2, 2021) (citations
omitted).
8
contains the venue provision appears to govern the relationship between VOW, who
uses Athena software, and Athena. Athena is located in Massachusetts, so the venue
clause would appear to be for the benefit of Athena, a non-party to this litigation.
Also, the various exhibits to the Complaint reference other documents and
attachments that have not been submitted to this court and may not exist.
Again, the function of the court at this stage is to determine whether Aspira
has established a prima facie case in support of its position. Drawing all reasonable
inferences in favor of Aspira through the well-pleaded facts in its Complaint, I find
it has done so. Aspira asserts—and VOW does not dispute—that the four service
proposals have been fully executed. Aspira pleads facts that VOW—not Athena—
was in breach of those contracts, was negligent in performing its obligations under
the contracts, and misrepresented and fraudulently induced Aspira into assenting to
subsequent service contracts. Aspira claims it was injured by VOW’s alleged breach,
negligence, misrepresentation, and fraudulent concealment. Taking all of this into
consideration, I find that VOW has not met its burden to warrant dismissal of this
action for lack of venue. Therefore, VOW’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Sincerely,
/s/ Robert H. Robinson, Jr.
Judge
cc: All counsel of record (by File & ServeXpress)
9 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483587/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANIMAL LEGAL DEFENSE FUND,
Plaintiff,
v. Civil Action No. 1:21-cv-01539 (CJN)
THOMAS J. VILSACK, Secretary, United
States Department of Agriculture, et al.,
Defendants.
MEMORANDUM OPINION
Under the Poultry Products Inspection Act, 21 U.S.C. §§ 451 et seq., the Department of
Agriculture must prevent sellers of certain poultry products from misleading customers. The
Animal Legal Defense Fund asserts that the packaging of certain poultry products is misleading,
and therefore claims that the Department is violating both the Inspection Act and the
Administrative Procedure Act. See generally Am. Compl. (“Compl.”), ECF No. 12. But ALDF
lacks Article III standing, and the Court therefore grants the government’s Motion to Dismiss. See
Mot. to Dismiss (“Mot.”), ECF No. 15, at 7–24.
BACKGROUND
A. Regulatory Background
The Poultry Products Inspection Act prohibits the sale or transportation of “misbranded”
poultry products. 21 U.S.C. § 458(a)(2). The Inspection Act was enacted upon Congress’s
determination that “[i]t is essential . . . that the health and welfare of consumers be protected by
assuring that poultry products distributed to them are wholesome, not adulterated, and properly
marked, labeled, and packaged.” Id. §451. A poultry product is “misbranded” within the meaning
1
of the Act if its label is “false or misleading.” Id. § 453(h). And the term “label” includes
“display[s] of written, printed, or graphic matter.” Id. § 453(s).
The Inspection Act gives the Department of Agriculture various tools to ensure that poultry
products comply with the statutory requirements. For example, the Department has the authority
to cooperate with and review the operations of the States, conduct inspections, promulgate
regulations for the operations of facilities and equipment involved in poultry products, and
determine certain labeling requirements. Id. §§454–57. And relevant to this case, “[i]f the
[Department] has reason to believe” that a poultry-product label “is false or misleading,” the
Department “may direct that such use be withheld unless the marking, labeling, or container is
modified in such manner as [it] may prescribe so that it will not be false or misleading.” Id.
§ 457(d).
The Department has implemented § 457(d) by requiring all final labels to be “submitted
for approval” to the Department’s Food Safety and Inspection Service (FSIS). See 9 C.F.R.
§ 412.1(a). The submission to FSIS must include any “[s]pecial statements and claims” that will
appear on the final label, such as “claims, logos, trademarks, and other symbols on labels that are
not defined in the Federal meat and poultry products inspection regulations or the Food Standards
and Labelling Policy Book, . . . health claims, ingredient and processing method claims[,] . . .
structure-function claims, claims regarding the raising of animals, organic claims, and instructional
or disclaimer statements concerning pathogens . . . .” Id. § 412.1(c)(3), (e). Only “generically
approved labels” are exempt from this pre-market review requirement. See id. §§ 412.1(a), 412.2.
“Generically approved labels are labels that bear all applicable mandatory labeling features (i.e.,
product name, safe handling statement, ingredients statement, the name and place of business of
2
the manufacturer, packer or distributor, net weight, legend, safe handling instructions, and nutrition
labeling) in accordance with Federal regulations.” Id. § 412.2(b).
B. Perdue’s Fresh Line Label
Perdue is a nationwide poultry-production company. Compl. ¶ 56. It is vertically
integrated, meaning it controls the production of chickens and turkey at every stage of their birth,
growth, slaughter, and processing. See id. ¶ 57. ALDF alleges that most of these chickens and
turkeys, including those raised for the Perdue Fresh Line, have little-to-no access to outside spaces
during their lives. See id. ¶¶ 58–64.
On May 24, 2018, Perdue submitted its first label application to FSIS for “Whole Chicken
and Chicken Parts Blanket” in its Fresh Line. Id. ¶ 65. The Court includes one of the sketches
included in this application below:
3
Id. at 14. FSIS approved the application on July 9, 2018. Id. ¶ 70. Its approval required the
removal of the word “healthy” from one sentence, but otherwise demanded no other edits. Id.
¶ 71. FSIS did not require any changes to the picture occupying the bottom-quarter of the package.
Id. ¶ 72. A nearly identical application for the Fresh “Cuts” Line, submitted on November 29,
2018, was approved shortly thereafter. See id. ¶¶ 73–78. Again, FSIS did not require any edits to
the graphic imagery included on the label. Id. ¶ 78.
“Perdue submitted a ‘blanket’ application for Fresh Line turkey products label that
contained nearly identical imagery to the Fresh Line chicken products label.” Id. ¶ 85. FSIS also
approved that application. Id. ¶ 86. The label looks something like this:
Id. at 19.
C. The Animal Legal Defense Fund and Marie Mastracco
The Animal Legal Defense Fund, or “ALDF,” is a nationwide animal-advocacy nonprofit
based in California. Id. ¶ 15. It counts “over 300,000 members and supporters” among its ranks.
4
Id. The organization’s mission is “to protect the lives and advance the interests of animals through
the legal system.” Id. ¶ 16. It does so “by advocating against cruelty to animals and for the
protection of animals in commercial enterprises, including animal agriculture.” Id. Specifically,
ALDF “focus[es] significant organizational resources on educating the public . . . and advocating
for greater legal protections for animals in agriculture.” Id.; see also id. ¶ 17. The organization
identifies a number of ways in which it accomplishes these goals. See id. ¶ 18 (listing, for example,
“conducting and publicizing undercover investigations of industrial farms and slaughterhouses,”
as well as “conducting webinars, educational events, and social media campaigns on matters
related to industrial farming”).
A “signature focus area[ ]” of ALDF’s work “is curbing the misleading labeling and
advertising of animal products.” Id. ¶ 19. ALDF explains that it achieves this goal “through public
education initiatives, media campaigns, legal resources and webinars, consumer protection
litigation, and legislative and regulatory advocacy.” Id. “ALDF has long engaged federal
regulators—including the USDA and the Federal Trade Commission—to advocate for the robust
enforcement of federal labeling and consumer protection laws” to eliminate such abuses. Id. ¶ 20
(parenthetical omitted).
One of ALDF’s “members” is Marie Mastracco. See id. ¶¶ 30–37. For the several months
preceding the filing of the Amended Complaint, Mastracco “regularly purchased Perdue’s Fresh
Line chicken breasts for her sick and elderly dog, Ozzie.” Id. ¶ 31. She “was influenced to
purchase” those products because the labels state that the chicken does not include any antibiotics.
Id. ¶ 32. “And seeing the graphic imagery, coupled with Perdue’s use of the term ‘cage free,’ Ms.
Mastracco interpreted the label to mean that the chickens raised for the products roamed freely on
pasture, under a shining sun. She was surprised and upset to learn that the Perdue Fresh Line
5
label’s representation about the chickens’ living environment is false, and that the birds are raised
entirely indoors.” Id.
“Because of her dog’s health condition, Ms. Mastracco feels compelled to continue
purchasing whole chicken breasts.” Id. ¶ 34. So long as the Department does not review the
graphic images on the meat labels to evaluate if they are false or misleading, however, “Mastracco
will continue to suffer a lack of confidence in whether any chicken labels convey accurate
descriptions of the product’s animal raising conditions.” Id.
D. ALDF’s Response to the Perdue Fresh Line Label
“On January 3, 2020, ALDF submitted a package of information to FSIS, explaining that
label imagery like Perdue’s, showing chickens and turkeys outside of a barn, under the sun, and
surrounded by vegetation . . . is misleading and contrary to how the animals were raised.” Id. ¶ 88.
Part of this package was a consumer survey of the Perdue Fresh Line labels, which ALDF
commissioned. Id. ¶ 89. The results of the survey showed that, of the about one thousand adults
polled, 29 percent thought the chicken labels meant that the chickens were “given access to a
barnyard/pasture,” while 19 percent thought that the turkey label meant that the turkeys “were
given access to a barnyard/pasture.” Id.
ALDF thus requested that FSIS “decline to approve any Perdue label applications that
contain the same or similar imagery.” Id. ¶ 90. To do otherwise, ALDF stated, “would allow
highly misleading product claims into the market.” Id.
FSIS disagreed. See id. ¶¶ 91–93. In a March 2020 letter, FSIS stated that “the images [at
issue] are not in violation [of] FSIS labeling requirements and can be used on product.” Id. ¶¶ 91–
92. This is because, FSIS explained, “[t]he photos, colors, and graphics used on the packaging are
not considered labeling claims and do not make the product label false or misleading.” Id. ¶ 93.
6
Thus, when in September 2020, Perdue again applied for sketch label approval of some
different Fresh Line products, FSIS approved them. See id. ¶¶ 95–98. The graphics were
“identical to the graphics in FSIS’s 2018 and 2019 approvals.” Id. ¶ 95.
E. ALDF’s Allegations
ALDF alleges here that the approval of the Perdue Fresh Line label applications violated
both the Administrative Procedure Act and the Poultry Products Inspection Act. See id. ¶¶ 100–
08. As ALDF puts it, “[c]ontrary to the bucolic scene of chickens on a pasture outside of a barn,
surrounded by verdant plants and sunshine, the chickens who are made into Perdue’s Fresh Line
of chicken products never have access to the outdoors in their short lives—let alone the freedom
to roam and forage on a pasture.” Id. at ¶ 79. And, it alleges, the Department knew this imagery
was misleading, since it had certified the complexes where Perdue raises its chickens. Id. ¶ 82.
ALDF claims that the Department has a pattern and practice of insufficiently reviewing
premarket labels, again in violation of the Administrative Procedure Act and the Inspection Act.
See id. ¶¶ 109–18. And it seeks declaratory and injunctive relief. See id. at 24.
As for its injury, ALDF asserts that the Department’s “decision to approve Perdue’s Fresh
Line Label, specifically, without reviewing its graphic matter to ensure that it was not misleading[,]
frustrates ALDF’s mission and impedes its work to empower consumers with truthful information
about animal products.” Id. ¶ 24. It alleges that it “has been and is compelled to spend more
resources uncovering, detecting, educating the public about, and bringing to [the Department’s]
attention the discrepancy in the graphics on Perdue’s Fresh Line labels and the ongoing harms
suffered by the animals Perdue raises and uses in those products.” Id. ¶ 25. Specifically, ALDF
alleges that is “has been forced to devote organizational time and resources to”:
• “[I]nvestigating the treatment of the chickens and turkeys raised for Perdue products”;
7
• “[C]onducting consumer surveys and research concerning the messages the Fresh Line
labels are conveying”;
• “[A]lerting FSIS to the facts of Perdue’s production methods and the results of the
consumer surveys, and urging the agency to enforce the [Inspection Act’s] requirements to
prevent such deceptive labeling”; and
• “[D]rafting outreach and educational pieces to alert the public to how animals are raised
for Perdue’s products.”
Id.
ALDF further alleges that its “campaign to end intensive confinement of animals used for
food and increase transparency in the labeling of animal products is also hindered by [the
Department’s] arbitrary and capricious and unlawful decision-making.” Id. ¶ 26. ALDF alleges
that by approving the Perdue labels in particular, the Department “ignore[d] the deceptive portrayal
of factory farmed birds as raised on open, grassy pasture.” Id. Thus, “[t]hrough this failure,”
ALDF alleges, the Department “acted unlawfully and limited the effectiveness of ALDF’s
advocacy to educate consumers about—and end—the intensive confinement of farmed chickens
and turkeys.” Id.
All of this, ALDF claims, has “impede[d] and frustrate[d] ALDF’s mission-driven
activities to curtail the inhumane, large-scale confinement of these birds.” Id. ¶ 27. The
organization notes that it has worked hard to pass and defend numerous statutes in various states
to end the use of cramped living quarters for chickens and turkeys. Id. So too with a proposed
bill in Congress, “which would place a moratorium on construction of factory farms like those
Perdue sources its birds from.” Id. But all these efforts, ALDF notes, “are dependent on public
awareness of, and energy to reform, the conditions these animals endure.” Id. Approving packages
like Perdue’s, it alleges, undermines those efforts. Id.
ALDF also alleges that “[a]s a result of [the Department’s] unlawful decision to ignore
graphic matter in reviewing and approving poultry product labeling applications, ALDF must
8
divert resources away from other projects to protect animals . . . in order to combat [the
Department’s] misunderstanding and misapplication of the [Inspection Act].” Id. ¶ 28. Should it
succeed here, “it can stop diverting resources to address [the Department’s] unlawful approval of
labels without any review of their graphic matter’s misleading messaging.” Id. ¶ 29.
LEGAL STANDARDS
A. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges this Court’s
subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), including whether the plaintiff has standing.
See, e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1101 (D.C. Cir. 2005). Federal courts
have limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013). And a court presumes it
lacks jurisdiction “unless the contrary appears affirmatively from the record.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)).
Thus, when a defendant contends that a plaintiff lacks standing, the plaintiff bears the burden of
demonstrating that it does. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When assessing
such a motion, “the court assumes the truth of all material factual allegations in the complaint and
construes the complaint liberally, granting plaintiff the benefit of all inferences that can be derived
from the facts alleged and upon such facts determines jurisdictional questions.” Kangarloo v.
Pompeo, 480 F. Supp. 3d 134, 137 (D.D.C. 2020) (quoting Am. Nat’l Ins. Co. v. FDIC, 642 F.3d
1137, 1139 (D.C. Cir. 2011)) (quotation omitted) (alterations adopted).
The government moves to dismiss all of ALDF’s claims for lack of subject-matter
jurisdiction. See Mot. at 7–24.
9
B. Motion to Dismiss under Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss alleges a failure to state a claim. Fed. R. Civ. P.
12(b)(6). When assessing this type of motion, the Court must “treat the complaint’s factual
allegations as true . . . and must grant plaintiff the benefit of all inferences that can be derived from
the facts alleged.” Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.
2003) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)) (quotation
omitted). “[A] formulaic recitation of the elements of a cause of action,” however, “will not do”;
a complaint must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Put differently, a claim to relief must be “plausible on its face,” and the
pleadings must “nudge[ the] claims across the line from conceivable to plausible.” Id. at 570.
The government moves to dismiss only Count II of the Amended Complaint—the “pattern
and practice” claim—for failure to state a claim. See Mot. at 24–28.
I. ALDF LACKS STANDING
A plaintiff must demonstrate that it has Article III standing. See, e.g., Public Citizen, Inc.
v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007). That requires, of
course, that the plaintiff must “show injury in fact that was caused by the conduct of the defendants
and that can be redressed by judicial relief.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992)). When, as here, “the parties invoking federal jurisdiction are not ‘the object of the
government action or inaction’ they challenge,” “standing is ‘substantially more difficult to
establish.’ ” Id. (quoting Lujan, 504 U.S. at 562).
ALDF advances two standing theories. It argues first that it has organizational standing.
See Pl.’s Resp. at 4–15, ECF No. 17. Second, and independently, it argues that it has associational
standing through Mastracco. See id. at 15–32. The Court disagrees on both counts.
10
A. ALDF Lacks Organizational Standing
For an organization or association to have standing, it must show that, like an individual
plaintiff, it suffered an injury in fact that was caused by the defendant and can be redressed by a
favorable court decision. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015)
(quoting Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011)). The injury-
in-fact requirement is perhaps the most difficult to show. It is not enough for an organization to
allege frustration of its purpose, for example; mere “frustration of an organization’s objectives ‘is
the type of abstract concern that does not impart standing.’ ” Id. (quoting Nat’l Taxpayers Union,
Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir 1995)). Rather, the Court of Appeals “has
distinguished between organizations that allege that their activities have been impeded from those
that merely allege that their mission has been comprised.” Abigail All. For Better Access to
Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (emphases added).
Thus, in order to establish standing as an organization, ALDF “must have ‘suffered a concrete and
demonstrable injury to [its] activities.’ ” Food & Water Watch, 808 F.3d at 919 (quoting People
for Ethical Treatment of Animals, Inc. v. U.S. Dep’t of Agriculture, 797 F.3d 1087, 1093 (D.C.
Cir. 2015) (“PETA”)) (alteration in original).
To determine if ALDF has organizational standing, the Court must engage in a two-part
inquiry. See id. First, the Court must ask whether the Department’s action (or failure to act)
injured ALDF’s interests. Id. (quoting PETA, 797 F.3d at 1094). Second, the Court must
determine whether ALDF used its resources to counteract that harm. Id. (quoting PETA, 797 F.3d
at 1094).
But lurking in the caselaw behind this seemingly straightforward test lies some nuance,
particularly at the first prong. For example, to allege an injury to its interest, an organization like
11
ALDF “must allege that the defendant’s conduct perceptibly impaired the organization’s ability to
provide services in order to establish injury in fact.” Turlock Irrigation Dist. v. Fed. Energy Regul.
Comm’n, 786 F.3d 18, 24 (D.C. Cir. 2015) (quotations omitted) (emphasis added). That would
occur, for example, “when the defendant’s conduct causes an ‘inhibition of [the organization’s]
daily operations.’ ” Food & Water Watch, 808 F.3d at 919 (quoting PETA, 797 F.3d at 1094)
(alteration in original). But “an organization’s use of resources for litigation, investigation in
anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.” Id.
(emphasis added). Similarly, “an organization does not suffer an injury in fact where it ‘expend[s]
resources to educate its members and others’ unless doing so subjects the organization to
‘operational costs beyond those normally expended.’ ” Id. at 920 (quoting Nat’l Taxpayers Union,
Inc., 68 F.3d at 1434) (alteration in original) (emphasis added); accord Nat’l Taxpayers Union, 68
F.3d at 1434 (explaining that an organization’s “self-serving observation that it has expended
resources to educate its members and others regarding [the contested government action] does not
present an injury in fact”). All of this makes good sense: If an organization cannot provide its
services because of some action—if its day-to-day operations are severely impacted—then it has
suffered an injury in fact. But if an action merely goes against an organization’s values—thus
leading the organization to engage in investigation, litigation, or other advocacy—that is not by
itself sufficient. In those circumstances, the organization itself has not been harmed, at least not
in the sense required by Article III.
ALDF argues that the Department’s actions and inaction have “perceptibly impair[ed]” its
“consumer education services and other mission-driven activities.” See Pl.’s Resp. at 5–9. As
ALDF puts it, “among the core activities it engages in on a day-to-day basis are various efforts to
educate consumers about the manner in which animals are raised for food, increase transparency
12
into the animal agriculture industry, and build public support for curbing cruel and unsustainable
animal raising practices.” Id. at 6 (citing Compl. ¶¶ 17–18).1 And the Amended Complaint details
how ALDF reaches out to other organizations, publishes consumer resources, and hosts
educational activities to further these goals. See Compl. ¶¶ 18–23. ALDF thus alleges that the
Department’s “failure to properly regulate poultry product labels impairs the organization’s ability
to provide effective consumer education and empowerment services” because “it allows
companies like Perdue to mislead consumers and hide the inhumane indoor confinement the
chickens and turkeys raised for the products endure.” Pl.’s Resp. at 6–7 (citing Compl. ¶¶ 23–24).
It further claims that the Department’s “challenged conduct also impedes ALDF’s legislative
efforts aimed at ending the inhumane, large-scale confinement of birds, because such initiatives
are dependent upon the public being aware of the conditions these animals suffer inside factory
farms and being motivated to advocate against them.” Id. at 7 (citing Compl. ¶¶ 26–27). Finally,
ALDF alleges that the Department’s “actions also preclude ALDF from preventing harms to
animals through its regularly used process of submitting agency complaints.” Id. (citing Compl.
¶ 26).
These allegations fall short of establishing that ALDF’s organizational interests were
harmed by the Department’s actions. Take ALDF’s first argument—that its ability to provide
“effective consumer education and empowerment services” has been impaired because the
Department “allows companies like Perdue to mislead consumers and hide the inhumane indoor
1
ALDF relies on a declaration from its Chief Programs Officer. See Decl. of Mark Walden, ECF
No. 17-1. “In determining standing [on a motion to dismiss], we may consider materials outside
of the complaint.” See Food & Water Watch, 808 F.3d at 913 (citing Coal. for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)). But the Court finds it unnecessary to
rely on the Walden declaration because it repeats the same theories of injury as the allegations in
Amended Complaint and does not affect the Court’s analysis.
13
confinement the chickens and turkeys raised for the products endure.” Id. at 6–7 (citing Compl.
¶¶ 23–24). This is not an allegation that the Department’s actions have “impaired the
organization’s ability to provide services.” Turlock Irrigation Dist., 786 F.3d at 24 (emphasis
added). Nor is it an allegation that the Department’s conduct inhibits ALDF’s daily operations.
See Food & Water Watch, 808 F.3d at 919. Rather, ALDF’s day-to-day activities can continue
unabated; nothing the Department has done impairs its ability to engage in the education and
empowerment services themselves. Instead, this is an allegation that the Department has taken
steps inconsistent with ALDF’s mission—which is insufficient for Article III standing. See id.
(“An organization must allege more than a frustration of its purpose because frustration of an
organization’s objectives ‘is the type of abstract concern that does not impart standing.’ ” (quoting
Nat’l Taxpayers Union, 68 F.3d at 1433)).
ALDF relies on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), in which an
organization called HOME challenged the alleged racial steering of Havens Realty Corp., the
owner of two apartment complexes in Virginia. See id. at 366–68. HOME’s stated purpose was
“to make equal opportunity in housing a reality in the Richmond Metropolitan Area,” and it
provided housing-counseling services to local residents and engaged in the investigation and
referral of complaints concerning housing discrimination. See id. at 368. HOME alleged that “the
steering practices of Havens had frustrated the organization’s counseling and referral services,
with a consequent drain on resources.” Id. at 369. Conducting “the same inquiry as in the case of
an individual,” the Supreme Court determined that HOME had organizational standing. Id. at
378–79. It explained that, as alleged, “petitioners’ steering practices have perceptibly impaired
HOME’s ability to provide counseling and referral services for low- and moderate-income
homeseekers,” thus establishing injury in fact. Id. at 379. As the Court explained, “[s]uch concrete
14
and demonstrable injury to the organization’s activities—with the consequent drain on the
organization’s resources—constitutes far more than simply a setback to the organization’s abstract
social interests.” Id.
ALDF’s claimed injury falls short of HOME’s. ALDF alleges that the Department’s
“decision to approve Perdue’s Fresh Line Label . . . without reviewing its graphic matter to ensure
it was not misleading frustrates ALDF’s mission and impedes its work to empower consumers
with truthful information about animal products.” Compl. ¶ 24. But this is a “setback to the
organization’s abstract social interests,” Havens Realty Corp., 455 U.S. at 379, not a claim that the
Department’s actions perceptibly impaired ALDF’s “ability to provide” its services, id.2
So too with ALDF’s second claim of injury in fact: that the Department’s “challenged
conduct also impedes ALDF’s legislative efforts aimed at ending the inhumane, large-scale
confinement of birds, because such initiatives are dependent upon the public being aware of the
conditions these animals suffer inside factory farms and being motivated to advocate against
them.” Pl.’s Resp. at 7 (citing Compl. ¶¶ 26–27). As alleged in the Amended Complaint, the
complained-of decisions “hindered” ALDF’s campaigns, Compl. ¶ 26, “limited the effectiveness
of ALDF’s advocacy to educate consumers,” id., and “impede[d] and frustrate[d] ALDF’s mission-
driven activities,” id. ¶ 27. But the Court of Appeals has held that Article III standing does not
exist “when the only ‘injury’ arises from the effect of the regulations on the organizations’
lobbying activities.” Ctr. For Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir.
2
To be sure, the allegations in Havens Realty were far from specific. See Havens Realty Corp.,
455 U.S. at 379 (block quoting the relevant portion of the complaint). But Havens Realty was
decided in 1982, decades before Twombly and Iqbal. The relevant lessons to draw from Havens
Realty thus come from the Court’s discussion of an adequate injury in fact—in that case, that
“petitioners’ steering practices have perceptibly impaired HOME’s ability to provide counseling
and referral services for low- and moderate-income homeseekers.” Id. (emphasis added).
15
2005). And it does not exist when, as here, the “ ‘service’ impaired is pure issue-advocacy.” Id.
at 1162.
ALDF’s third alleged injury—that the Department’s actions “preclude ALDF from
preventing harms to animals through its regularly used process of submitting agency complaints,”
Pl.’s Resp. at 7 (citing Compl. ¶ 26)—is also inadequate. ALDF does not allege that it has been
prevented from complaining to the Department about Perdue’s labels, only that its complaint was
unsuccessful. ALDF has not been “deni[ed] . . . access to an avenue for redress” in a way that
“‘perceptibly impaired [ALDF’s] ability to . . . bring [regulatory] violations to the attention of the
agency.’ ” See Food & Water Watch, 808 F.3d at 920–21 (quoting PETA, 797 F.3d at 1095)
(explaining the difference between government action that leads an organization to expend more
resources educating the public, which is “an abstract injury to [an organization’s] interests,” and
government action that foreclosed an avenue of redress or restricted the flow of information that
an organization used to educate its members, which were injuries in fact). Instead, ALDF “has
alleged no more than an abstract injury to its interests,” id. at 920, which is insufficient for Article
III standing.3
3
To the extent that ALDF seeks to argue this case is like PETA, the Court also disagrees. To be
sure, in PETA, one of the alleged harms was that PETA was precluded “from preventing cruelty
to and inhumane treatment of [birds] through its normal process of submitting USDA complaints.”
PETA, 797 F.3d at 1094. But that was because the USDA’s procedural decision there “deprived
PETA of key information that it relies on to educate the public.” Id. (quotation omitted). The
Court of Appeals thus concluded that “PETA’s alleged injuries—denial of access to bird-related
AWA information including, in particular, investigatory information, and a means by which to
seek redress for bird abuse”—were sufficient injuries. Id. at 1095. In so holding, it drew parallels
to Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931 (D.C. Cir.
1986), a case in which the Court of Appeals found a concrete injury stemming from a restriction
of information that a group used in their everyday activities. See PETA, 797 F.3d at 1094. ALDF
has alleged no such restriction to information here, let alone one that impacts its everyday
activities.
16
In sum, “conflict between a defendant’s conduct and an organization’s mission is alone
insufficient to establish Article III standing. Frustration of an organization’s objectives ‘is the type
of abstract concern that does not impart standing.’ ” Nat’l Treasury Emps. Union v. United States,
101 F.3d 1423, 1429 (D.C. Cir. 1996) (quoting Nat’l Taxpayers Union, 68 F.3d at 1433).4 That
this standard is difficult for lobbying or advocacy organizations to meet, see, e.g., Pl.’s Resp. at
14–15, is not an argument against the standard, but rather a recognition that lobbying organizations
are rarely injured by government action in a way that imparts Article III standing.
B. ALDF Lacks Associational Standing
An organization can also assert standing on behalf of one of its members. See Equal Rights
Ctr., 633 F.3d at 1138. To have associational standing, an organization must show that it has a
member who would otherwise have standing to sue in his or her own right; that the interests the
organization seeks to protect are germane to its purpose; and that neither the claim asserted nor the
relief requested requires the participation of the individual member in the lawsuit. WildEarth
Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013) (quoting Hunt v. Wash. State Apple
Advert. Comm’n, 432 U.S. 333, 343 (1977)). The dispute here focuses on the first prong alone.
The government begins by arguing that ALDF has failed to adequately plead that it is a
membership organization at all. See Mot. at 15–19. The Court disagrees. ALDF alleges that it is
a “national animal advocacy non-profit headquartered in Cotati, California, with over 300,000
members and supporters.” Compl. ¶ 15; accord Decl. of Mark Walden at ¶ 2. Without any
4
ALDF’s final argument on this point is that their allegations are “virtually identical” to those
determined to be sufficient in PETA’s in People for Ethical Treatment of Animals, Inc. v. Perdue,
464 F. Supp. 3d 300 (D.D.C. 2020)). See Pl.’s Resp. at 7–9. That decision is not binding on the
Court, and Court of Appeals precedent requires the conclusion that ALDF lacks standing here.
17
countervailing evidence, the Court must treat that factual allegation, supported by the declaration
of Mark Walden, as true at this stage.
In any event, as the Court of Appeals has explained, “an organization that has no members
in the traditional sense may nonetheless assert associational standing” if the organization “is the
functional equivalent of a traditional membership organization.” Fund Democracy, LLC v. Sec. &
Exch. Comm’n, 278 F.3d 21, 25 (D.C. Cir. 2002) (citing Hunt, 432 U.S. at 333, 342–45). Hunt
had looked to three “indicia of membership”: “whether the individuals played a role in selecting
the organization’s leadership, in guiding the organization’s activities, and in financing the
organization’s activities.” Flyers Rights Educ. Fund, Inc. v. U.S. Dep’t of Transp., 957 F.3d 1359,
1361 (D.C. Cir. 2020) (citing Hunt, 432 U.S. at 344–45). Thus, readers of a magazine are not
members of the magazine for associational-standing purposes, news watchers are not members of
a media watchdog group, and individual investors who had done some past work with Fund
Democracy were not members of that organization. See id. at 1361–62 (citing Fund Democracy,
278 F.3d at 25-26).
ALDF is nothing like these examples. As the government itself notes, “membership” in
ALDF requires a payment, which at least helps finance the organization’s activities. See Mot. at
19 n.4; see also Pl.’s Resp. at 16 (ALDF’s membership consists of individuals . . . who have
donated within the past five years.”; id. at 17 (Individual member financial contributions annually
account for around 80 percent of ALDF’s income stream.”). Additionally, ALDF’s members “play
a role in driving organizational activities and policies” through its National Leadership Counsel,
solicitation of membership input, and participating in ALDF’s activities of submitting complaints
and signing petitions. See Pl.’s Resp. at 17 (quoting Walden Decl. at ¶¶26-27). The Court finds
these allegations sufficient to establish this threshold requirement of associational standing.
18
The government’s second argument focuses on whether Mastracco has standing. ALDF
must, of course, allege sufficient facts to show that Mastracco herself suffered an injury in fact,
that there is a causal connection between the injury and the conduct complained of, and that it is
likely—not merely speculative—that the injury could be redressed by a favorable decision. Lujan,
504 U.S. at 560–61; see also The Wilderness Soc’y v. Norton, 434 F.3d 584, 589 (D.C. Cir. 2006)
(“In order to establish standing, [an organization] must demonstrate, as to each of its claims, that
at least one member meets the requirements of Lujan.”). It has failed to do so.
To recap the Amended Complaint, ALDF alleges that Mastracco has regularly purchased
Perdue’s Fresh Line chicken breasts for the last several months to feed “her sick and elderly dog,
Ozzie.” Compl. ¶ 31. “In deciding which chicken breasts to purchase, Ms. Mastracco considered
factors such as whether the chickens raised for the meat were healthy, given any chemical
hormones, and treated humanely. She relied on the products’ labels to provide information about
these factors.” Id. But what ultimately led her to purchase these particular chicken breasts was
her concern about antibiotics. On this, the Amended Complaint could not be clearer: “Ms.
Mastracco was influenced to purchase Perdue’s Fresh Line chicken products by label claims about
no antibiotics.” Id. ¶ 32.
To be sure, ALDF does allege that Mastracco considered the imagery on the package.
“[S]eeing the graphic imagery, coupled with Perdue’s use of the term ‘cage free,’ ” ALDF alleges,
“Ms. Mastracco interpreted the label to mean that the chickens raised for the products roamed
freely on pasture, under a shining sun.” Id. She was not pleased to learn this georgic scene had
no basis in reality: “She was surprised and upset to learn that the Perdue Fresh Line’s label’s
representations about the chickens’ living environment is false, and that the birds are raised entirely
indoors.” Id. Despite this newfound knowledge, though, Mastracco still “feels compelled to
19
continue purchasing whole chicken breasts.” Id. ¶ 34. She thus “continue[s] to suffer a lack of
confidence in whether any chicken labels convey accurate descriptions of the product’s animal
raising conditions.” Id. (emphasis in original). ALDF also alleges that the Department’s “unlawful
approvals of Perdue’s Fresh Line labels caused Ms. Mastracco’s consumer harm.” Id. ¶ 33.
ALDF has failed to allege sufficient facts showing that Mastracco is suffering an injury in
fact. “A concrete injury is direct, real, and palpable—not abstract.” Food & Water Watch, Inc.,
808 F.3d at 914 (quotations omitted). Mere disappointment that a cartoon depiction of chickens
in the field does not match reality, without more, is insufficient. See Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1548 (2016) (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”).
This might, perhaps, be a different case if purchasing free-roaming chicken was Mastracco’s aim—
if that was the factor that drew her to purchase Perdue’s Fresh Line products in the first place—
and she was now paralyzed from purchasing future poultry products through lack of faith in the
accuracy of their labels. But that is not this case. “Ms. Mastracco was influenced to purchase
Perdue’s Fresh Line chicken products by label claims about no antibiotics.” Compl. ¶ 32.
Nor is it enough to allege that Mastracco has continued (and presumably will continue) to
purchase Perdue Fresh Line chicken. As the Amended Complaint makes clear, Mastracco has
been disabused altogether of any notion that the cartoon chickens represent reality. See id.
(Mastracco “learn[ed] that the Perdue Fresh Line label’s representation about the chickens’ living
environment is false, and that the birds are raised entirely indoors”). She thus cannot rely on that
imagery—and be harmed by such reliance—since she is now equipped with this knowledge. Cf.
Nat’l Family Planning & Reprod. Health Ass’n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006)
(“We have consistently held that self-inflicted harm doesn’t satisfy the basic requirements for
standing. Such harm does not amount to an ‘injury’ cognizable under Article III.”). Since she
20
never relied on the label’s imagery to make her purchasing decision in the first place, she certainly
cannot be harmed by relying on it in the future, given the knowledge she now has.
ALDF does allege that Mastracco now lacks confidence in the accuracy of all chicken
labels. And “concrete” is not necessarily synonymous with “tangible,” as the Supreme Court has
explained, which gives some background appeal to this observation. Spokeo, 136 S. Ct. at 1549.
But none of the allegations suffices to show a concrete harm to Mastracco. As the Eleventh Circuit
has recently explained, “while a concrete injury needn’t necessarily be ‘tangible,’ the Court has
consistently held that purely psychic injuries arising from disagreement with government action—
for example ‘conscientious objection’ and ‘fear’—do not qualify.” Gardner v. Mutz, 962 F.3d
1329, 1341 (11th Cir. 2020) (citations omitted). Equipped with the knowledge of how the
Department allegedly reviews and approves poultry labels, and disagreeing with how it is done, is
that kind of injury.
ALDF primarily relies on two cases to argue to the contrary: Davidson v. Kimberly-Clark
Corp., 889 F.3d 956 (9th Cir. 2018) and Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181
(D.D.C. 2013). See Pl.’s Resp. at 22–32.
Davidson, of course, is not binding here. In any event, and whether or not it correctly
interprets Article III’s demands, its holding is inapplicable. Davidson held that a consumer had
standing because she “will be unable to rely on the product’s advertising or labeling in the future,
and so will not purchase the product although she would like to”; and “she might purchase the
product in the future, despite the fact it was once marred by false advertising or labeling, as she
may reasonably, but incorrectly, assume the product was improved.” Davidson, 889 F.3d at 969–
21
70. Here, in contrast, ALDF alleges that Mastracco will likely purchase chicken in the future, and
does not allege that that she will do so under the assumption that the product has improved.5
As for Richardson, which is also not binding, that decision dealt with a proposed class-
action settlement regarding the allegedly misleading nature of certain L’Oréal products, which said
“salon-only” although they were not only sold in salons. Richardson, 991 F. Supp. 2d at 187–188.
The court “conclude[d] that plaintiffs have standing despite their knowledge of the ‘salon-only’
misrepresentation because of the likelihood of future harm,” as even consumers with such
knowledge “will be harmed—without an injunction—by not being able to rely on the ‘salon-only’
label with any confidence.” Id. at 194. Again, this case is distinguishable. Unlike in Richardson,
where the “salon-only” label had “deceived and misled” the plaintiffs, see id. at 191 (quotation
omitted), Mastracco was never misled in the first place. Not once did she purchase the poultry
products at issue because she relied on the cartoon chickens or turkeys on the package. And now
that she knows they are not accurate, she will not rely on them going forward.
* * *
Access to federal courts is limited to parties who were actually injured by the challenged
government action. Neither ALDF nor Mastracco have shown that to be the case. The Court will
thus grant the government’s Motion to Dismiss the Amended Complaint, ECF No. 15, and deny
as moot the government’s original Motion to Dismiss the Complaint, ECF No. 10. And because
5
Davidson also acknowledged that the question of standing was “a close question.” Davidson,
889 F.3d at 971. And subsequent Ninth Circuit decisions have treated Davidson’s categories as
essentially exclusive. See, e.g., In re Coca-Cola Prod. Mktg. & Sales Practice Litig., No. 20-
15742, 2021 WL 3878654, at *2 (9th Cir. Aug. 31, 2021) (“None of the plaintiffs in this case allege
a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors
or preservatives, nor do they allege in any other fashion a concrete, imminent injury. . . . Under
governing law, such an abstract interest in compliance with labeling requirements is insufficient,
standing alone, to establish Article III standing.”).
22
ALDF lacks standing, the Court need not address the argument that Count II of the Amended
Complaint fails to state a claim. An appropriate Order will follow.
DATE: November 14, 2022
CARL J. NICHOLS
United States District Judge
23 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483593/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
PEARCE & MORETTO, INC., )
)
Plaintiff, )
)
v. ) C.A. No. N19L-06-090 WCC
)
HYETT’S CORNER, LLC, )
)
Defendant. )
)
Submitted: October 5, 2022
Decided: November 10, 2022
Plaintiff’s Motion to Re-Open Discovery –
GRANTED in part, DENIED in part.
MEMORANDUM OPINION
G. Kevin Fasic, Esquire; Offit Kurman, P.A., 222 Delaware Avenue, Suite 1105
Wilmington, DE 19801. Attorney for Plaintiff.
Richard L. Abbott, Esquire; Abbott Law Firm, 724 Yorklyn Road, Suite 240
Hockessin, DE 19707. Attorney for Defendant.
CARPENTER, J.
Before this Court is Plaintiff Pearce & Moretto, Inc. (hereinafter “P&M” or
“Plaintiff”)’s Motion to Re-Open Discovery. P&M asserts it will suffer manifest
injustice if prevented from admitting two sets of documents and conducting two
depositions.1 For the reasons set forth in this Opinion, Plaintiff’s Motion is
GRANTED in part and DENIED in part.
I. Facts & Procedural Background
This action arises out of a construction dispute between Plaintiff P&M and
Defendant Hyett’s Corner, LLC (“Hyett” or “Defendant”).2 In April 2013, Hyett
hired P&M to perform construction services for two housing developments: (1)
Windsor Commons and (2) the Enclave at Hyetts Crossing, (“Enclave”).3 P&M
asserts Hyett owes it $38,870.00 for work performed at the Enclave.4
On June 26, 2019, P&M filed a Complaint for mechanic’s lien, breach of
contract, unjust enrichment, and Payments Act violations.5 In response, Hyett
countersued, alleging the work was unsatisfactory and no additional payments are
due.6 In addition, Hyett claims P&M owes it $1.292 million for the misapplication
1
Compl. at 1.
2
Id. ¶ 3.
3
Id.
4
Id. P&M says it is not owed anything for services to the Windsor Commons development.
5
Id. at ¶¶ 5-7.
6
Def.’s Answer and Counterclaims. D.I. 12 (Aug. 8, 2019).
1
of about 70,000+/- cubic yards of excess topsoil.7 Hyett’s claims are for breach of
contract, negligence, breach of implied warranty, conversion, and trover.8
On May 18, 2021, the Court entered a Trial Scheduling Order setting a 2-day
trial to commence on February 28, 2022.9 Discovery ensued from September
through December 2021.10 The parties filed Motions in Limine on January 4, 202211
which were responded to soon after.12 At the pretrial conference on February 21,
2022, the Court granted a continuance based upon the parties’ request for additional
time to discuss settlement which had been delayed by the inaction of New Castle
County to conduct a site visit.13 On March 24, 2022, the Court entered a Second
Trial Scheduling Order, setting: (1) a 3-day Bench Trial scheduled to commence
November 29, 2022; and (2) a pretrial conference scheduled to commence
November 10, 2022.14 From April 5, 2022 until September 26, 2022 no additional
filings, discovery requests, or amendments were made by either party.15
On September 27, 2022, P&M filed its Motion to Re-Open Discovery to: (1)
produce aerial photographs of the site; (2) add New Castle County’s March 4, 2022
7
Def.’s Answer and Counterclaims. D.I. 12 ¶¶ 115-16, 135-38 (Aug. 8, 2019).
8
Id.
9
Trial Scheduling Order, D.I. 28 (May 18, 2021).
10
See D.I. 31 – D.I. 51.
11
Def.’s Mot. in Limine, D.I. 56 (Jan 4. 2022); Plt.’s Mot. in Limine, D.I. 57 (Jan. 4, 2022).
12
Plt.’s Resp. to Def.’s Mot. in Limine, D.I. 60 (Jan. 13, 2022); Def.’s Resp. in Opp. to Plt.’s Mot.
in Limine D.I. 69 (Feb. 14, 2022).
13
Judicial Action Form, D.I. 73 (Feb. 21, 2022).
14
Second Trial Scheduling Order, D.I. 75 (Mar. 24, 2022).
15
Def.’s Response in Opposition to Plf.’s Motion. ¶ 10. See D.I. 78-79. (“Hyett’s Response”).
2
site visit report into evidence;16 and (3) allow P&M to conduct depositions of two
principal Hyett members17 (hereinafter, “new evidence”). P&M requests it be
permitted to use the University of Delaware website containing the aerial
photographs as well as the New Castle County report at trial.18 Plaintiff argues it is
manifestly unjust to prevent P&M from using public photographic evidence at trial
to defeat a “mystery pit” theory heavily relied upon by Hyett.19
In response, Hyett asserts P&M fails to meet the presumed “good cause”
standard under Superior Court Rule 16(b)(5)20 as well as the manifest injustice
standard under 16(e) and therefore the photographs and report should be excluded.21
II. Discussion
A. Superior Court Civil Rule 16 governs whether to amend the Trial
Scheduling Order to admit new evidence.
Delaware’s standard for manifest injustice has been adopted from federal case
law.22 The U.S. Court of Appeals for the Third Circuit created a set of factors which
16
Plt.’s Mot. to Reopen Discovery ¶¶ 2, 5. D.I. 79 (Sept. 27, 2022) (“P&M’s Motion.”).
17
Id. at 1.
18
Id. ¶ 11.
19
Id. ¶ 11. P&M asserts that the tens of thousands of cubic yards of topsoil which are missing from
the site are buried in a pit in a 9-acre open space area on the site. P&M has not offered any evidence
of the pit; however, P&M concedes that it converted all excess topsoil that Hyett legally owned.
This situation has led Hyett to refer to the pit as a “mystery pit.”
20
Hyett’s Response ¶ 23.
21
Id. ¶¶ 24-25.
22
Meck v. Christiana Care Health Servs., Inc., 2011 WL 1226456, n. 4 (Del. Super. Mar. 29,
2011).
3
must be considered when evaluating whether the trial court properly exercised its
discretion in an exclusion analysis.23 These are known as the Pennypack24 factors:
(1) the prejudice or surprise in fact of the party against whom the proffered
documents would have been submitted;
(2) the ability of the party to cure the prejudice;
(3) the extent to which waiver of the rule against admission of unlisted
documents would disrupt the orderly and efficient trial of the case or of other
cases in the court; and
(4) bad faith and willfulness in failing to comply with the court's order.25
Delaware courts have implemented the Pennypack factors through Superior
Court Rule of Civil Procedure 16(e).26 The Supreme Court of Delaware explained,
the four factors are persuasive authority under a Rule 16(e) analysis and could satisfy
the manifest injustice standard.27 Pursuant to Rule 16, the trial judge should consider
the four factors when a party argues modification of a final pretrial order is necessary
to prevent manifest injustice.28
Procedurally, this case is unique for several reasons. First, when the initial
pretrial conference was held on February 21, 2022, the Court did not approve or sign
the pretrial stipulation. Technically, this would provide either party an opportunity
to modify the previously filed pretrial stipulation. However, the Court did note that
23
In re TMI Litigation, 193 F.3d 613, 721 (3d Cir. 2000).
24
Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894 (3d Cir. 1977)
25
Ness v. Graybeal, 2009 WL 147021, at *3 (Del. Super. Jan. 16, 2009) (citing Cuonzo v. Shore,
958 A.2d 840, 845-46 (Del. 2008)) (quoting Green v. Alfred A.I. DuPont Institute of Nemours
Foundation, 759 A. 2d 1060, 1063-64 (Del. 2000)).
26
Green v. Alfred A.I. duPont Inst. of Nemours Found., 759 A.2d 1060, 1064 (Del. 2000).
27
Id.
28
Id.
4
all discovery deadlines from the scheduling order had passed and no additional
discovery was to be undertaken without consent of the Court. This has now led to
Plaintiff’s Motion to Re-Open Discovery. Under these circumstances, the report
from New Castle County as well as the photographs could be added by Plaintiff since
the pretrial stipulation has not been Court ordered. However, even if they are added
to the pretrial stipulation now, Defendant has indicated that it would object, thus
making the Motion to Re-Open Discovery ripe for consideration.
Since the addition of these items would not be a violation of the orders
previously issued, the manifest injustice standard would not apply and the Court
would simply consider the relevance of the photographs and report and whether a
proper foundation had been established for their admissibility. Under this standard,
the Court finds that the photographs of the site at the time of construction are relevant
and would be admitted if Plaintiff establishes a proper foundation at trial or the
parties agree to their admissibility. The aerial photographs will assist the factfinder
in determining the condition of Hyett’s site during construction and the existence of
borrow pits on site. It appears that counsel for Hyett was aware of the availability of
the photographs and thus cannot claim surprise nor prejudice to their admission. The
Court also finds that Defendant’s assertion that the photographs would require expert
testimony to rebut the borrow pit assertion is suspect at best. It would seem to the
Court that those individuals who were actually on site would have the more relevant
5
testimony and would be able to describe what is occurring in the photographs. The
Court is not sure what value an expert would bring to this situation. That said, if
Defendant wants to have an expert, it is free to do so recognizing it will push the
trial into 2023.
The same is not true as to the New Castle County report. This document was
created after the discovery deadline and was requested by the parties to assist in
determining what each should be responsible for resolving. It has demands from
New Castle County beyond the issues of this litigation and the parties previously
represented to the Court that it was to be used to settle the litigation. Therefore, the
Court finds the New Castle County report is not relevant as to what work occurred
when Plaintiff was on site and is not admissible.
That leaves the request to take the deposition of Ramesh Batta and Kurt
Schultz regarding the photographs of the borrow pits. The deadline for discovery set
forth in the scheduling order in this case passed months ago, and it appears these
individuals were not deposed during the discovery period. The issue regarding these
pits has been at the core of this litigation since the counterclaim was filed. It appears
these individuals would have been available for deposition during the discovery
period and Plaintiff has provided no reasonable explanation as to why the discovery
of the photographs would suddenly make their testimony more critical or relevant.
6
While the Court finds this request is clearly not made in bad faith, to allow
these depositions now, after the discovery deadline, would likely cause a delay in
the trial and would be disruptive to the orderly and efficient progress of this case that
has already been delayed once. As a result, the Court finds as to these depositions
that (a) Defendant would be prejudiced by a further delay due to outstanding
financial concerns; (b) a delay of trial is unavoidable if the depositions are allowed
and (c) the Court process would be disrupted. Therefore, the Motion to Re-Open
Discovery to take these depositions is hereby denied.
IV. Conclusion
In sum, the Court finds:
(a) The photographs/website photographs are admissible if a proper
foundation is established at trial
(b) The New Castle County report is ruled inadmissible; and
(c) The request to take depositions of Ramesh Batta and Kurt Schultz
is denied.
IT IS SO ORDERED.
/s/ William C. Carpenter, Jr.
Judge William C. Carpenter, Jr.
7 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483589/ | Filed 11/14/22 Smith v. Asterlin CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
SHAUN SMITH,
Plaintiff and Appellant, C093683
v. (Super. Ct. No. 34-2019-
00259680-CU-FR-GDS)
ALEXANDER ASTERLIN,
Defendant and Respondent.
Representing himself, Shaun Smith sued his former criminal defense attorney
Alexander Asterlin for breach of fiduciary duty, negligence, fraud, breach of contract,
and breach of the covenant of good faith and fair dealing, in relation to Asterlin’s
representation of Smith in People v. Halo, Sacramento County Superior Court Case No.
17FE006817. (We will refer to People v. Halo as the underlying criminal action.)1 The
trial court sustained Asterlin’s demurrer to the first amended complaint without leave to
amend.
1 On August 9, 2022, this court affirmed Smith’s convictions for grand theft and offering
false documents for recording following his appeal of the underlying criminal action.
(People v. Halo (Aug. 9, 2022, C092509) [nonpub. opn.].) The California Supreme
Court denied the petitions for review filed by Smith and his codefendant. (Ibid., petitions
for review denied Oct. 26, 2022, S276384)
1
Smith now contends: (1) because an appeal is only properly taken from a
judgment or order of dismissal, and the trial court’s judgment did not reference a
dismissal, we should amend the judgment to include a dismissal and deem Smith’s appeal
as from a judgment of dismissal; (2) the trial court erred in sustaining the demurrer
because although proof of innocence is an element of a criminal malpractice cause of
action, Smith’s causes of action were not for malpractice; and (3) the trial court should
have granted leave to amend.
We will modify the judgment to include a dismissal and deem Smith’s appeal as
from a judgment of dismissal. On the merits, the demurrer was properly sustained
because a criminal defendant suing an attorney must prove actual innocence and
postconviction exoneration where the primary right asserted is the right to competent
representation, and here, all of Smith’s claims asserted that primary right, but Smith was
convicted in the underlying criminal action, his convictions were affirmed on appeal, and
hence he did not establish innocence and postconviction exoneration. Under the
circumstances, he has not established prejudice in the trial court’s denial of leave to
amend.
We will affirm the judgment as modified.
BACKGROUND
Because this case comes to us on a demurrer, we accept as true the properly
pleaded material facts alleged in the challenged pleading. (Evans v. City of Berkeley
(2006) 38 Cal.4th 1, 6.) We draw the following facts from the allegations in Smith’s first
amended complaint.
During the relevant time period, the Sacramento County Conflict Criminal
Defender Program (CCD) provided legal services to individuals that the Sacramento
County Public Defender could not represent. Asterlin, an independent contractor,
provided legal services to criminal defendants under the program. Under Asterlin’s
2
agreement with the CCD, expenses for investigation, experts, and other ancillary services
had to be preauthorized by the CCD.
Smith was a defendant entitled to court-appointed counsel in the underlying
criminal action, and CCD assigned Asterlin to represent Smith. The action was a
complex matter consisting of over 14,000 pages of discovery, hundreds of recorded
telephone calls, and novel legal issues.
Smith asked Asterlin to obtain a real estate expert for his defense. Asterlin agreed
such an expert would help in Smith’s defense but said CCD would not pay an expert
more than $100 to $150 an hour. Asterlin tasked Smith with locating a real estate expert.
Smith found an expert who agreed to waive his travel fees and charge a reduced hourly
rate of $250, but Asterlin told Smith CCD would not approve or pay for an expert at that
rate. When Smith suggested filing a motion to have the trial court approve the
appointment of the expert, Asterlin responded that the appointment of experts in
Sacramento County did not work that way and they had no choice but to find an expert
who would accept CCD’s approved hourly rate if they wanted CCD to pay for the expert.
Asterlin knew he could file a motion seeking court approval for the appointment of and
funding for a real estate expert but chose not to do so because of his agreement with CCD
and in order to receive future appointments from CCD. Asterlin did not advise Smith of
the possibility of a motion seeking the appointment of a real estate expert by the trial
court. He also did not advise Smith that pursuant to certain statutes, the County was
required to pay for certain expenses in the underlying criminal action. Asterlin labored
under a conflict of interest in representing Smith and working under his agreement with
CCD.
Asterlin was appointed as Deputy Director of CCD on or around June 19, 2018.
He filed a motion to be relieved as Smith’s counsel in the underlying criminal action on
June 26, 2018. Asterlin did not disclose to Smith that he had accepted a position with
CCD in which he would be responsible for CCD’s budget. Instead, Asterlin encouraged
3
Smith to represent himself in the underlying criminal action “to lessen the monetary
impact to the CCD budget.” He advised Smith that any attorney CCD would assign in
the underlying criminal action would not have any experience in real estate, would not
know or be willing to file controversial motions necessary to Smith’s defense, and would
not be as smart as Smith. Asterlin said Smith would do better representing himself
through trial and did not advise Smith that he had a constitutional right to effective
assistance of counsel and that appointed counsel would have a duty to investigate the
facts and laws.
Smith sought $639,000 in compensatory damages, $639,000 in punitive damages,
interest, costs, and attorney’s fees. Asterlin demurred to the first amended complaint on
grounds including that Smith failed to allege actual innocence. The trial court took
judicial notice of the abstract of judgment in the underlying criminal action, which
showed that a jury convicted Smith of grand theft and recording false documents. The
trial court sustained Asterlin’s demurrer without leave to amend because unless the
conviction was overturned, it prevented Smith from satisfying the actual innocence
element of a legal malpractice claim in a criminal defense matter. The trial court entered
judgment but did not reference a dismissal.
DISCUSSION
I
According to Smith, because an appeal is only properly taken from a judgment or
order of dismissal, and the trial court’s judgment did not reference a dismissal, we should
modify the judgment to include a dismissal and deem Smith’s appeal as from a judgment
of dismissal. Asterlin does not oppose the contention.
An order sustaining a demurrer without leave to amend is not an appealable order.
(Estate of Dito (2011) 198 Cal.App.4th 791, 799.) Instead, an appeal is properly taken
from a judgment or order of dismissal. (Ibid.) However, where the trial court’s ruling
effectively ended the litigation, the respondent does not challenge the appealability of the
4
order, and the appeal has been fully briefed, we may, in the interests of judicial economy,
deem the trial court’s judgment as including a dismissal and treat the appeal as taken
from a judgment of dismissal. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571
(Hedwall); Estate of Dito, at pp. 799-800.)
Here, the trial court sustained Asterlin’s demurrer to all causes of action without
leave to amend, Asterlin does not oppose treating this appeal as from a judgment of
dismissal, and the appeal has been fully briefed. We will modify the judgment to include
dismissal and treat Smith’s appeal as from the judgment of dismissal. (Hedwall, supra,
22 Cal.App.5th at p. 571; Estate of Dito, supra, 198 Cal.App.4th at pp. 799-800.)
II
Smith next contends the trial court erred in sustaining the demurrer because
although proof of innocence is an element of a criminal malpractice cause of action,
Smith’s causes of action were not for malpractice.
A
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v.
Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) We
independently evaluate the pleading, construing it liberally, giving it a reasonable
interpretation, reading it as a whole, and viewing its parts in context. (Id. at pp. 5-6.) We
assume the truth of all material facts properly pleaded or implied and consider judicially
noticed matter, but do not assume the truth of contentions, deductions or conclusions of
law. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) Viewing matters through this prism, we
determine de novo whether the factual allegations of the challenged pleading are
adequate to state a cause of action under any legal theory. (Milligan, at p. 6.) The
appellant bears the burden of showing that the facts pleaded are sufficient to establish
every element of the cause of action. (Rossberg v. Bank of America, N.A. (2013)
219 Cal.App.4th 1481, 1490.)
5
B
When a criminal defendant sues an attorney for legal malpractice, a necessary
element is the defendant’s actual innocence, which must be proven by a preponderance of
the evidence. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 534, 545 (Wiley).)
Criminal malpractice is legal malpractice in the course of defending a client accused of a
crime, and its counterpart is civil malpractice. (Id. at p. 536, fn. 1.) Among other things,
proof of innocence is required because a convicted criminal should not profit from a
crime (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200 (Coscia)), any
subsequent negligent conduct by an attorney is superseded by the greater culpability of
the defendant’s criminal conduct (id. at p. 1200), the criminal justice system safeguards
against conviction of the wrongly accused and provides redress for any error (Wiley, at
pp. 541-543), and criminal malpractice actions present pragmatic difficulties, such as the
difficulty in calculating damages (id. at p. 543).
In addition, a criminal defendant suing for legal malpractice must also show
exoneration by postconviction relief, such as acquittal after retrial, reversal on appeal
with directions to dismiss the charges, reversal followed by the People’s refusal to
continue the prosecution, or a grant of habeas corpus relief. (Coscia, supra, 25 Cal.4th at
pp. 1198, 1201, 1205; see Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 47 [exoneration
by postconviction relief is a separate requirement from that of establishing factual
innocence].) Only an innocent person wrongly convicted may be deemed to have a
legally compensable harm. (Coscia, at p. 1201.) Relief is otherwise denied because the
convicted criminal’s conduct is deemed to be the sole cause of the conviction. (Id. at
p. 1203.)
A plaintiff must prove actual innocence and postconviction exoneration where the
primary right asserted is the right to competent representation. (Genis v. Schainbaum
(2021) 66 Cal.App.5th 1007, 1015-1019.) “ ‘[T]he nature of a cause of action does not
depend on the label the plaintiff gives it or the relief the plaintiff seeks but on the primary
6
right involved.’ ” (Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1190
(Khodayari); accord Lynch v. Warwick (2002) 95 Cal.App.4th 267, 273.) “ ‘ “Even
where there are multiple legal theories upon which recovery might be predicated, one
injury gives rise to only one claim for relief.” [Citation.] “The violation of one primary
right constitutes a single cause of action, though it may entitle the injured party to many
forms of relief, and the relief is not to be confounded with the cause of action, one not
being determinative of the other.” ’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28
Cal.4th 888, 904.)
In Khodayari, the plaintiff sued his attorney for, among other things, professional
negligence, fraud, breach of fiduciary duty, breach of contract and breach of the implied
covenant of good faith and fair dealing. (Khodayari, supra, 200 Cal.App.4th at p. 1187.)
The appellate court held that although the plaintiff attached different labels to his claims,
the actual innocence requirement applied to all of his causes of action because the
primary right involved in all of his claims was the right to competent legal representation.
(Id. at pp. 1190-1192, 1196.)
The same is true in this case. Although Smith attaches different labels to his
claims -- breach of fiduciary duty, negligence, fraud, breach of contract, and breach of
covenant of good faith and fair dealing -- they all assert the right to competent legal
representation. The first amended complaint alleged that Asterlin rendered ineffective
assistance by failing to secure a real estate expert necessary to the defense, seeking to be
relieved as Smith’s attorney, and advising Smith to represent himself in the case.
Smith nevertheless argues his causes of action relate to unlawful billing practices
and Asterlin’s violation of specific duties unrelated to the outcome of the underlying
criminal action or Asterlin’s competency as an attorney, citing Bird, Marella, Boxer &
Wolpert v. Superior Court (2003) 106 Cal.App.4th 419 and Brooks v. Shemaria (2006)
144 Cal.App.4th 434. The appellate court in Bird held that a criminal defendant need not
prove innocence or postconviction exoneration where the primary rights asserted were
7
the rights to be billed in accordance with the parties’ retainer agreement and to be free
from unethical or fraudulent billing practices by the defense counsel. (Bird, at pp. 421,
427, 432.) Applying the policy considerations in Wiley and reasoning that the complaint
was directed at the quantity and not the quality of the attorney’s work, the appellate court
concluded the innocence requirement did not apply to fee disputes. (Id. at pp. 428-431.)
The court in Brooks held the same, and also held that the innocence requirement did not
apply to a claim related to the destruction of property. (Brooks, at p. 436, 439-441, 443.)
The plaintiff’s criminal conduct was not the cause of the property’s destruction, and there
was no other postconviction redress for the wrong alleged. (Id. at p. 443.)
Here, however, Smith asserts he “had a constitutionally protected right to prepare
his defense, including the right to investigative and ancillary defense services” and seeks
damages for Asterlin’s “abandonment of professional duties and fraudulent conduct.”
Unlike in Bird and Brooks, the causes of action in Smith’s first amended complaint are
not based on a breach of a retainer agreement, Asterlin’s improper billing for legal
services or costs, or the destruction of Smith’s property. Smith does not identify duties
allegedly owed by Asterlin that do not relate to adequate representation in the underlying
criminal action.
Because all of Smith’s claims against Asterlin involve the right to competent
representation in the underlying criminal action, Smith was required to plead and prove
his actual innocence and show postconviction exoneration. But a jury found him guilty
of grand theft and recording false documents in the underlying criminal action, and the
convictions were affirmed on appeal (People v. Halo, supra, C092509). Thus, Smith’s
criminal conduct remains the ultimate cause of his convictions even if his counsel was
deficient. (Wiley, supra, 19 Cal.4th at p. 540.) He cannot shift responsibility for his
crimes by obtaining civil recovery from Asterlin. (Id. at p. 537.) The trial court properly
sustained the demurrer to the first amended complaint.
8
III
In addition, Smith claims the trial court should have granted leave to amend.
We review a trial court’s decision to deny leave to amend for abuse of discretion.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the challenged pleading could be
amended to state a cause of action, the trial court abused its discretion in denying leave to
amend and we will reverse; if not, there has been no abuse of discretion and we will
affirm. (Ibid.)
We grant Smith’s request for judicial notice of the appeal filed in the underlying
criminal action. (Evid. Code, §§ 452, subd. (d), 453.) On August 9, 2022, this court
affirmed Smith’s convictions for grand theft and offering false documents for recording
following his appeal of the underlying criminal action. (People v. Halo, supra,
C092509.) The California Supreme Court denied Smith’s petition for review. Smith
does not state how he can amend the challenged pleading to allege actual innocence and
postconviction exoneration.
DISPOSITION
The judgment is modified to include dismissal, and the judgment is affirmed
as modified. The parties shall bear their own costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(5).)
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
DUARTE, J.
9 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483588/ | Filed 11/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079269
v. (Super.Ct.No. RIF112804)
RAYMOND GRIFFIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Louis R. Hanoian (retired
judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of
the Cal. Const.). Affirmed.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Eight years after defendant and appellant Raymond Griffin was convicted of two
counts of murder, he petitioned the trial court for resentencing pursuant to Penal Code
section 1172.6.1 That court summarily denied his petition, and defendant appealed.
Defendant’s appointed appellate counsel filed an opening brief that does not raise
any issues. Therein, counsel acknowledges this is not defendant’s first appeal of right so
we are not required to conduct an independent review of the record to determine if it
contains any arguable issues, but he requests we exercise our discretion to do so. We
granted that request and found no issue. Accordingly, we affirm the trial court’s denial of
defendant’s petition.
BACKGROUND
In 2014, a jury found defendant guilty of various offenses, including two counts of
first-degree murder (§ 187, subd. (a)) with gang and multiple-murder special
circumstances (§ 190.2, subds. (a)(3), (a)(22)), and with enhancements for causing death
by personally and intentionally discharging a firearm (§ 12022.53(d)). The trial court
sentenced defendant to four consecutive life terms (two without possibility of parole and
two with 25-year minimum parole periods) plus seven years. In his appeal from the
judgment, defendant raised several issues, including a claim that the evidence was
insufficient to support the jury’s finding that he was the shooter. We affirmed. (People
v. Griffin (July 19, 2016, E062831) [nonpub. opn.].)
1 Section 1170.95 was renumbered as section 1172.6 without change in the text,
effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to
the section by its new numbering. All further statutory references are to the Penal Code.
2
In 2018, the Legislature enacted Senate Bill 1437, which amended sections 188
and 189 to eliminate criminal liability for murder under the natural and probable
consequences doctrine and to limit application of the felony murder rule to those persons
who were either the actual killer, or acted with the intent to kill, or was a major
participant in the underlying felony who acted with reckless indifference to human life.
(Stats. 2018, ch. 1015, § 1, subd. (f), eff. Jan. 1, 2019.) The Legislature also added
section 1172.6, which established the procedure for defendants convicted of murder prior
to the amendments to petition the trial court to vacate their sentence and to be
resentenced if they met the following conditions: (i) they were charged in a manner that
allowed the People to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; (ii) they were convicted of first or second
degree murder under one of those theories; and, (iii) they could not now be convicted of
first or second degree murder because of the amendments to sections 188 and 189 that
became effective on January 1, 2019.2 (§ 1172.6, subd. (a).)
In February 2022, defendant filed a petition for resentencing pursuant to section
1172.6. Upon receipt of the petition, the trial court set the matter for a status conference
and appointed counsel for defendant. Defendant was not present but was represented by
counsel at the June 24, 2022 conference. The court found defendant was ineligible for
2 In 2021, the Senate amended section 1172.6 to make clear that defendants
convicted of attempted murder under the natural and probable consequences doctrine or
manslaughter are entitled to seek resentencing relief. (Senate Bill No. 775; Stats. 2021,
ch. 551, §§ 1-2, eff. Jan. 1, 2022.)
3
relief because he was the actual shooter, and denied the petition. Defendant noticed this
appeal.
DISCUSSION
Defendant’s appointed appellate counsel has filed an opening brief that sets forth
statements of the case and facts but does not present any issues for adjudication. He asks
this court to exercise its discretion to independently review the record on appeal pursuant
to People v. Wende (1979) 25 Cal.3d 436.
1. Availability of Wende procedures in appeals from denials of
postconviction resentencing petitions
When appointed appellate counsel files a no-issues brief in a criminal defendant’s
appeal from the judgment of conviction, the Courts of Appeal are required (i) to offer the
defendant an opportunity to submit a personal supplemental brief, (ii) to review the entire
record whether or not the defendant files a brief, and (iii) to issue a written opinion.
(People v. Kelly (2006) 40 Cal.4th 106, 118-120 (Kelly); Wende, supra, 25 Cal.3d at
pp. 441-442.) Those procedures were adopted to ensure the protection of indigent
criminal defendants’ constitutional right to effective assistance of appellate counsel, a
right that extends only to a direct appeal of the final judgment (the first appeal of right) in
a criminal case. (Kelly, supra, 40 Cal.4th at pp. 118-119.)
Although the Courts of Appeal are not required to provide Wende protections in a
postconviction appeal taken by an indigent criminal defendant from denial of a
resentencing petition, they have exercised their inherent supervisory powers to decide
4
whether and to what extent Wende procedures should be employed in those cases.
(People v. Cole (2020) 52 Cal.App.5th 1023, 1034 (Cole), review granted Oct. 14, 2020,
S264278.) Accordingly, in an effort to give defendants an opportunity to be heard and to
avoid potential claims of ineffective assistance of counsel, courts have invited defendants
to submit a supplemental brief if their appointed appellate counsel files a no-issues brief.
(People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review granted Mar. 17, 2021,
S266853.) If a defendant files a brief, the court is required to evaluate any arguments
presented and to adjudicate the appeal in a written opinion. (Kelly, supra, 40 Cal.4th at
pp. 119-120, 124; Cole, supra, 52 Cal.App.5th at p. 1040.)
Appellate courts are divided, however, with respect to how a court should exercise
its discretion where, as here, the defendant did not respond to the court’s invitation to
submit a supplemental brief. Several cases considering the issue adopted three criteria set
forth in Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, to calibrate
what procedures are appropriate. (E.g., Cole, supra, 52 Cal.App.5th at p. 1037; People v.
Flores (2020) 54 Cal.App.5th 266, 273-274 (Flores).) Those criteria are (i) the private
interests at stake (the liberty interests of the defendant), (ii) the government’s interests
(the appellate court’s interests in making sure the trial court ruled correctly while
balancing fiscal and administrative concerns), and (iii) the risk the procedures used will
lead to erroneous decisions. (Flores, supra, at p. 274.)
Some courts weighing those criteria conclude the state’s interest in conserving
scarce judicial resources outweighs the defendants’ interest in postconviction proceedings
5
when (i) they have already been afforded all the constitutional protections in their first
appeal of right, and (ii) are represented by appointed appellate counsel who are duty-
bound to carefully review the record for error. (Cole, supra, 52 Cal.App.5th at p. 1037
[section 1172.6 resentencing petition]; People v. Figueras (2021) 61 Cal.App.5th 108,
112 [section 1172.6 resentencing petition], review granted May 12, 2021, S267870
(Figueras); People v. Serrano (2012) 211 Cal.App.4th 496, 502-503 (Serrano) [motion to
vacate conviction on grounds of no or inadequate advisement of immigrations
consequences].) They opine that, in those circumstances, there is little risk of an
erroneous appellate decision. (Ibid.)
Based on their evaluation of the criteria, those courts exercised their discretion to
adopt procedures applicable to postjudgment no-issues cases in which defendant’s first
appeal of right has already been adjudicated. They require counsel to file a brief setting
out the applicable facts and law, and to inform the court that no arguable issues were
found. (Cole, supra, 52 Cal.App.5th at p. 1038; Figueras, supra, 61 Cal.App.5th at
p. 112; Serrano, supra, 211 Cal.App.4th at p. 503.) Defendant must then be informed of
the right to file a supplemental brief either by counsel (Cole, at p. 1028 and Figueras, at
p. 112) or by the court (Serrano, at p. 503). If defendant does not submit a brief, the
court will not conduct an independent review of the record, but will simply dismiss the
appeal as abandoned without notice to defendant or his counsel alerting them of the
court’s intention to dismiss if it does not receive a supplemental brief. (Cole, at pp. 1039-
1040; Figueras, at pp. 112-113; Serrano, at pp. 503-504.)
6
In Scott, a panel of this court generally agreed with the approach adopted by
Serrano and Cole. (Scott, supra, 58 Cal.App.5th at pp. 1130-1131.) Unlike the courts in
those cases, however, Scott explained that it does not dismiss the appeals without looking
at them. (Id., at pp. 1131, 1135.) It also acknowledged that justices have discretion to
take on a case for full review and issue a written opinion (although it suggests they
should not exercise that discretion as a routine matter). (Ibid.)
Other courts have considered the three Lassiter criteria and concluded the
defendant’s liberty interests are paramount and outweigh the fiscal and administrative
burden on the state of providing Wende protections in view of the risk (even a
presumably low one) that a defendant may be unlawfully incarcerated on account of an
unreviewed meritorious issue that was overlooked by appointed appellate counsel.
(People v. Flores (2020) 54 Cal.App.5th 266, 273-274 (Flores); People v. Gallo (2020)
57 Cal.App.5th 594, 598-599 (Gallo); see, People v. Allison (2020) 55 Cal.App.5th 449,
456 (Allison) [court of appeal has the discretion to review the record in the interests of
justice], disapproved on another ground in People v. Strong (2022) 13 Cal.5th 698, 718.)
Those courts held that, although not required by law, appellate courts can and should
independently review the record on appeal when appointed appellate counsel has filed a
no-issues brief in appeals from denial of a resentencing petition regardless of whether
defendant files a supplemental brief. (Flores, at p. 274; Gallo, at p. 599; Allison, at p.
456.)
7
The issues of (i) what procedures appointed counsel and the Courts of Appeal are
to follow when counsel determines that an appeal from an order denying postconviction
relief lacks arguable merit, and (ii) whether defendants are entitled to notice of those
procedures are pending in our Supreme Court in People v. Delgadillo (Nov. 18, 2020,
B304441) [nonpub. opn], review granted, Feb. 17, 2021, S266305. Unless and until that
Court instructs us to take a different approach, we will employ the one set forth in Flores
and Gallo. That is, we will invite the defendant to file a supplemental brief and conduct
an independent review of the record. In cases in which defendant does not file a brief and
our review does not reveal an arguable issue, we will issue a short concise unpublished
opinion affirming the trial court’s decision and explaining the reason for our decision for
the benefit of defendant and counsel.
We do so because we agree the interests of justice call for exercise of caution in
adjudicating denials of resentencing petitions even if defendants’ convictions have
already been adjudicated in their first appeal of right. The amendments to sections 188
and 189 rendered illegal all convictions for murder obtained by either imputing malice to
defendants based solely on their participation in a crime or by application of the natural
and probable consequences doctrine, convictions for attempted murder obtained under
the natural and probable consequences doctrine, and convictions for manslaughter.
(§ 1172.6; Gallo, supra, 57 Cal.App.5th at pp. 598-599.)
Contrary to the suggestion in Cole, those amendments and the enactment of the
petitioning provisions in section 1172.6 are not mere ameliorative changes applicable to
8
defendants by legislative grace permitting them to undo convictions and reduce sentences
that have been already adjudicated as valid. (Cole, supra, 52 Cal.App.5th at p. 1036.)
Rather, those changes undermine adjudicated convictions as to defendants who come
within section 1172.6 as the result of the Legislature’s determination that the convictions
violated the bedrock principle of law and equity that persons should be punished for their
actions according to their level of individual culpability. (Stats. 2018, ch. 1015, § 1(d).)
Accordingly, we find the interests of justice call for an independent review of the record
as an additional layer of protection from the risk of a defendant remaining unlawfully
incarcerated because of a failure to discover a meritorious issue in his or her appeal from
the denial of their section 1172.6 resentencing petition.
No doubt the risk of an erroneous decision is reduced by appointed appellate
counsel’s review of the record. The fact remains, however, that even very dedicated and
highly skilled counsel overlook potentially meritorious issues and errors. For example,
we regularly request parties to brief an issue not addressed in their briefs and it is
commonplace to find counsel have overlooked errors in abstracts of judgments. The risk
of not identifying an issue is increased where, as here, amendments to existing provisions
and enactment of a new statute give rise to novel and often complex issues unfamiliar to
counsel. (E.g., Allison, supra, 55 Cal.App.5th at p. 456 [independent review in interests
of justice revealed arguable issue].)
While we recognize that providing a Wende-like review in appeals from denials of
section 1172.6 petitions is not without expense, we agree with the observation in Flores
9
that the fiscal and administrative burdens on the courts are modest. (Flores, 54
Cal.App.5th at p. 274; accord, Gallo, supra, 57 Cal.App.5th at pp. 598-599.) Unlike a
Wende review in a criminal defendant’s first appeal of right, which requires an extensive
search for a wide range of potential errors, our independent review of the record in an
appeal from denial of a resentencing petition is focused on whether a defendant whose
appeal from the judgment was previously adjudicated could presently be convicted of
murder or attempted murder under the amendments to sections 188 and 189.
Our approach also furthers the interests of justice and protects the liberty interests
of criminal defendants by not deeming their appeal abandoned when they do not file a
supplemental brief. When appointed appellate counsel file no-issue briefs in appeals
from criminal proceedings, we issue a “Wende order” to defendants alerting them that (i)
their counsel has filed a brief stating no arguable issues can be found, and (ii) they are
granted 30 days to file any supplemental brief they deem necessary.
We recognize there are any number of reasons why a defendant may not respond
to that order. For example, they may not have received it (or not received it in time to
respond) because they have been relocated or they were not receiving mail due to
disruptions within the prison. It may be the defendant cannot read and comprehend the
import of the notice because of language barriers, illiteracy or cognitive difficulties.
Some defendants may simply not have the confidence or competence to fashion a
response. And, even if defendants receive the order and understand it, they may see no
10
need to respond because they anticipate the independent review by the court requested by
counsel will reveal any potentially meritorious issue that counsel may have overlooked.
2. Our independent review of the record
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of Kelly, supra, 40 Cal.4th 106, and in
keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently reviewed the
record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
11 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491094/ | MEMORANDUM OPINION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
This cause comes before the Court after Hearing on Plaintiff’s Motion to Alter or Amend Judgments Entered on January 19, 1990. At the Hearing, Attorneys for J. Robert Jesionowski, John E. Thompson, and George M. Todd appeared and presented Objections to the Motion of the Plaintiff Trustee. Written arguments in support of the Motion were filed by the Trustee and the Securities Investor Protection Corporation. No request for leave to file post-Hearing Briefs was made by the Defendants who appeared. The Court has reviewed the arguments of counsel, as well as the entire record in this case. Based on *873that review, and for the following reasons, the Court finds that the Plaintiff’s Motion to Alter or Amend Judgments Entered on January 19, 1990 should be granted.
FACTS
The facts relevant to the determination of this issue are not in dispute. The Court issued Two (2) Memorandum Opinions and Orders on January 19, 1990. In the first decision, the Court struck the Seventh Defense of John E. Thompson, and granted Summary Judgment in favor of the Trustee on his Counterclaim. 112 B.R. 858. The Opinion held that Mr. Thompson could not avoid liability for the Bell & Beckwith deficiency by attempting to rescind the partnership agreement. In the second decision, the Court granted the Plaintiff’s Motion for Summary Judgment on the first count of the Complaint, holding that Edward P. Wolfram, Jr., Robert R. Coon, II, J. Robert Jesionowski, Donald C. Henninger, Thomas L. McGhee, John E. Thompson, and George M. Todd were liable for the partnership debts and granting judgment against them, jointly and severally, for Twenty-nine Million Dollars ($29,000,000.00). 112 B.R. 863. Both decisions of the Court deal with only the first count of the Trustee’s Complaint, and fully resolve the issues raised in that count against the above Defendants.
The Trustee’s Complaint in Adversary Case 85-0024 contains Thirteen (13) counts. The Complaint contains the following allegations and parties:
1) The first count deals with the liability of the general partners, and the former general partners, for the debts of the partnership under Ohio partnership law and 11 U.S.C. § 723(a). Summary Judgment was entered against all of the general partners except Roscoe R. Betz, who had a pending settlement agreement filed with the Court.
2) The second count alleges that the general partners, and former general partners, are liable for Wolfram’s breach of trust under Ohio partnership law.
3) The third count seeks to avoid transfers made to general partners while the brokerage was insolvent in the year prior to Bell & Beckwith’s bankruptcy. The Trustee’s theory of recovery is based upon § 548(b).
4) The fourth count asserts that the transfers in the third count were also fraudulent conveyances under § 548(a)(2) of the Bankruptcy Code, and Ohio fraudulent conveyance statutes.
5) The fifth count claims that certain transfers from Bell & Beckwith to the general partners were preferences under § 547(b).
6) The sixth count is similar to the fourth count, except it involves transfers to the former general partners.
7) The seventh count parallels the fifth count, but seeks to recover transfers made to the former general partners.
8) The eighth count is a state law fraud action for the return of certain transfers which were allegedly made by J. Robert Jesionowski to Marilyn Jesionowski. The Trustee also asks for Ten Thousand Dollars ($10,000.00) in punitive damages, and an accounting.
9) The ninth count involves a promissory note which evidences a loan from Zula Wolfram to Roscoe Betz. The assignment of all Zula Wolfram’s property to the Trustee included this demand note, which was originally for Sixty Thousand Dollars ($60,-000.00).
10) The tenth count deals with a loan made by Edward P. Wolfram, Jr. to Roscoe Betz for Two Hundred Thousand Dollars ($200,000.00). Mr. Wolfram also assigned all of his property, including the promissory note, to the Trustee.
11) The eleventh count alleges that transfers made by Roscoe Betz to Beverly Betz were in violation of this Court’s injunction issued under § 723(b). Orders for a “separation agreement”, “property settlement” and “alimony only” were entered in the Fulton County Court of Common Pleas on September 15, 1983, based upon an agreement between the Betz’s. The Trustee requests that the transfers be held null and void, and that the property be made part of Roscoe Betz’s Chapter 11 estate.
*87412) The twelfth count involves a loan from Edward P. Wolfram, Jr. to Donald C. Henninger. The loan was for Thirty Thousand Dollars ($30,000.00) and the Trustee alleges that there remains a balance due of Eleven Thousand Dollars ($11,000.00).
13) The thirteenth count seeks to have the general partners amend their tax returns to take a “net operating loss” carry back for federal, state, and local tax purposes, and pay any refunds over to the Trustee.
The record reflects that all of the former general partners, except Louis Haubner, Jr., have been dismissed from this action. All matters involving Roscoe R. Betz, Jr. and Beverly Betz have been resolved in the Order entered by this Court on February 14,1990 approving the proposed settlement with the Trustee. At the Hearing, counsel for the Trustee stated that with the possible exception of the tax return issue, the remaining counts against the general partners would not be pursued if the judgment based on § 723(a) was upheld on appeal. Essentially, the size of the judgment against the general partners, in relation to their assets, makes most of the remaining counts superfluous. At this time, the only count which the Trustee has indicated he does intend to pursue is count Eight (8), which alleges that certain fraudulent transfers were made from J. Robert Jesionowski to Marilyn J. Jesionowski.
LAW
Initially, the Court notes that even if the January 19, 1990 decisions were found to be interlocutory, the District Court could hear an appeal under 28 U.S.C. § 158(a). See, In re Durability, Inc., 893 F.2d 264 (10th Cir.1990); In re Cottrell, 876 F.2d 540 (6th Cir.1989).
In his Motion, the Trustee seeks to have the Court alter or amend the Judgments issued on January 19, 1990 pursuant to Federal Rule of Civil Procedure 54(b), which states:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. *875(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Depending upon the facts of the particular case, all or some of the above factors may bear upon the propriety of the trial court’s discretion in certifying a judgment as final under Rule 54(b).
*874For Rule 54(b) to be applicable, three conditions must be met. First, there must be multiple claims for relief or multiple parties. 10 C. Wright & A. Miller, Federal Practice and Procedure § 2656 at 41 (1973). In the case at bar, there are both multiple claims and multiple parties. Second, at least one claim or the rights and liabilities of at least one party must be finally decided. Id., at 42. In this case, the claim in the first count of the Trustee’s Complaint has been finally decided as to all of the general partners, except Roscoe Betz. The claim which was based upon § 723(a), and related state law provisions, is separate and logically distinct from the other allegations in the Complaint. Third, the Court must find that there is no just reason for delaying an appeal. Id., at 44. While the first two conditions are fairly mechanical in their application, the third prerequisite is addressed to Court’s discretion.
In the Sixth Circuit, the determination of whether there is “no just reason for delay” is guided by Solomon v. Aetna Life Insurance Co., 782 F.2d 58 (6th Cir.1986). In Solomon, the Court of Appeals cites a summary of relevant factors listed in Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir.1975). Those factors are:
*875Solomon v. Aetna Life Insurance Co., 782 F.2d at 61 n. 2.
In the present case, the adjudicated claim is for Twenty-nine Million Dollars ($29,000,000.00). While the other claims are logically separate from the adjudicated claim, and perhaps should have been brought as separate adversary cases, it is the size of the judgment that renders the other claims superfluous should this Court’s Memorandum Opinion and Order withstand appeal. It would be a waste of the assets of the estate of Bell & Beckwith for the Trustee to continue to pursue additional claims against the general partners. The instant judgment already far exceeds their apparent ability to pay. Thus, this practical consideration weighs heavily in the Court’s decision to certify that there is no just cause for delay in entering the judgment as final.
It does not appear that the need for review might be mooted by further developments in the case. The Court rejected the only counterclaim which was filed in response to the first count of the Trustee’s Complaint.
At the Hearing on the Trustee’s Motion to Alter or Amend, counsel for Mr. Jesionowski argued that if the pending settlement with Roscoe Betz were to fall through, a second appeal of the same issues might be necessary. As previously stated, the Court has signed an Order approving the Betz settlement. While the scenario envisioned by Mr. Jesionowski may remain possible, it does not appear likely. In balancing the competing factors involved in the Motion before the Court, the bare possibility of a second appeal is not pursuasive.
Counsel for Mr. Jesionowski also argues that certain matters which are pending either in the main case, or in a separate adversary, should prevent certification because of the possibility of a set-off. There are two considerations which cause the Court to reject this argument. First, the claims asserted by Mr. Jesionowski are not filed in this adversary. Second, any possible set-off will not be of sufficient size to moot the judgment against the general partners.
It was also asserted that certification would result in a deluge of appeals from this adversary case. By adding number of Defendants in each count, Mr. Jesionow-ski’s attorney argued that between Forty (40) and Seventy (70) appeals could be lodged. Thus, based upon considerations of judicial economy, there should be no certification. This argument fails to take into account the status of this adversary case, and the reality of the appellate process. If this Court’s judgments are appealed by all of the Defendants, there will not be seven separate appeals. The initial appeal and the cross appeals will be joined and heard together. That is basic appellate, procedure. In addition, as previously noted, the liability of the general partners for the debts of the partnership is the critical claim in the Trustee’s Complaint, and one of the last major issues in the liquidation of Bell & Beckwith.
In reaching these conclusions, the Court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion.
Accordingly, there being no just reason for delay, it is
*876ORDERED that the Trustee’s Motion to Alter or Amend Judgments entered on January 19, 1990 be, and is hereby, Granted.
It is FURTHER ORDERED that both Memorandum Opinions and Orders filed in Adversary Case No. 85-0024 on January 19, 1990 be, and are hereby, Certified as final under Federal Rule of Civil Procedure 54(b). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491095/ | MEMORANDUM OPINION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
This cause comes before the Court on J. Robert Jesionowski’s Motion for New Trial and/or To Alter or Amend Judgment. In the Motion, Mr. Jesionowski sets forth several reasons why the Court should grant a new trial or alter or amend its January 19, 1990 decision holding the general partners liable for the sum of Twenty-nine Million Dollars ($29,000,000.00). The Trustee and Securities Investor Protection Corporation (hereinafter “SIPC”) have filed Memoranda in Opposition to Mr. Jesionowski’s Motion. The Court has reviewed the written arguments of counsel, as well as the entire record in this case. Based on that review, and for the following reasons, the Court finds that the Motion for New Trial and/or To Alter or Amend Judgment should be denied.
FACTS
The facts necessary for the Court’s decision are not in dispute. On January 19, 1990, this Court entered Summary Judgment against J. Robert Jesionowski, and Six (6) other general partners, for Twenty-nine Million Dollars ($29,000,000.00). 112 B.R. 863. It was the Court’s determination that this was the figure that should be awarded, even though it represents One Million Dollars ($1,000,000.00) less than the minimum deficiency in the estate of Bell & Beckwith. Mr. Jesionowski filed the instant Motion on January 29, 1990.
Mr. Jesionowski’s Motion asserts that the Court should enter an Order granting him a new trial because no hearing was held on the Trustee’s Motion for Summary Judgment nor on Mr. Jesionowski’s various Motions filed in opposition thereto. Specifically, Mr. Jesionowski argues that he would have raised the amount of accrued, but not allowed, legal and professional fees of the Trustee as a defense to the Complaint.
LAW
There is no dispute that no request for Hearing on the Motion for Summary Judgment was ever made by J. Robert Je-sionowski. Nevertheless, his counsel asserts that the Court erred in granting the Trustee’s Motion for Summary Judgment without a Hearing. However, the majority of cases hold that the absence of a Hearing does not prevent the entry of Summary Judgment when no Hearing has been requested. Kendall v. Hoover Co., 751 F.2d 171, 172-173 (6th Cir.1984); Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (5th Cir.1983); Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 391-392 (6th Cir.1975); Travelers Ins. Co. v. Young, 580 F.Supp. 421, 425 (E.D.Mich.1984); In re Earl Roggenbuck Farms, Inc., 51 B.R. 913, 919 (Bankr.E.D.Mich.1985).
In upholding the current version of Rule 3.01(1) of the Local Civil Rules of the United States District Court for the Northern District of Ohio, the Sixth Circuit Court of Appeals has stated:
... In the Northern District of Ohio, Rule 3.01 provides in part: “Motions, in general, shall be submitted and determined upon the motion papers hereafter referred to. Oral arguments of motions will be permitted on application and proper showing.” Notwithstanding plaintiff’s contention at oral argument that there were informal communications with the court, from the record it is indisputable that a hearing on the motion for summary judgment was never requested. Accordingly, plaintiff was not entitled to a hearing, and we find plaintiff’s argument in this regard without merit. See, Dayco Corporation v. Goodyear Tire & Rubber Company, 523 *878F.2d 389, 391-92 (6th Cir.1975) (upholding an earlier version of Rule 3.01).
Kendall v. Hoover Co., 751 F.2d at 172-173.
Counsel for Mr. Jesionowski has also argued that the Court failed to consider the presence of legal and professional fees which are being held back until the conclusion of this liquidation proceeding. Mr. Jesionowski asserts that because the fees are accrued, but not allowed, a genuine issue of material fact is created as to the amount of the Bell & Beckwith deficiency because the Court might disallow the entire amount which has been escrowed.
The position advanced on behalf of Mr. Jesionowski might have merit if this case were one governed solely by the provisions of the Bankruptcy Code. However, in the present case, the Securities Investor Protection Act (hereinafter “SIPA”) controls when there is a conflict with an otherwise applicable portion of the Bankruptcy Code. See, 15 U.S.C. § 78fff(b); In re First State Securities Corp., 39 B.R. 26, 27 (Bankr.S.D.Fla.1984). The statutory language governing the allowance of fees in a SIPA liquidation is very different from that employed in the Bankruptcy Code. Section 78eee(b)(5)(C) states:
(C) Recommendations of SIPC and awarding of allowances
Whenever an application for allowances is filed pursuant to subparagraph (B), SIPC shall file its recommendation with respect to such allowances with the court prior to the hearing on such application and shall, if it so requests, be allowed a reasonable time after such hearing within which to file a further recommendation. In any case in which such allowances are to be paid by SIPC without reasonable expectation of re-coupment thereof as provided in this chapter and there is no difference between the amounts requested and the amounts recommended by SIPC, the court shall award the amounts recommended by SIPC. In determining the amount of allowances in all other cases, the court shall give due consideration to the nature, extent, and value of the services rendered, and shall place considerable reliance on the recommendation of
SIPC. (emphasis added.)
In the case at bar, SIPC has always recommended the allowance of all fees and expenses requested by the Trustee and his counsel. Absent a “reasonable expectation of recoupment”, the Court’s hands are tied. Congress has mandated that when SIPC’s recommendation is the same as the amount requested, no reduction in the Trustee’s fees, or the attorneys’ fees, is permitted. See, In re First State Securities Corp., 48 B.R. 45 (Bankr.S.D.Fla.1985). (In his Opinion, the late Judge Thomas C. Britton offers observations and criticism of this particular provision of the Securities Investor Protection Act.)
Finally, the Court notes that the term “reasonable expectation of recoupment” remains undefined in SIPA and reported case law. At some time in the future, a Hearing will be held on that issue. However, the amounts withheld have been “awarded” under § 78eee(b)(5)(C). The deficiency in the estate of Bell & Beckwith, even when viewed in the optimistic fashion required for purposes of Summary Judgment, exceeds Twenty-nine Million Dollars ($29,000,000.00). Ultimately, it may be that a cogent argument cannot be mustered in support of finding that a “reasonable expectation of recoupment” exists.
In reaching these conclusions, the court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion.
Accordingly, it is
ORDERED that J. Robert Jesionowski’s Motion for New Trial and/or To Alter or Amend Judgment be, and is hereby, Denied. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491096/ | MEMORANDUM OPINION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on Thomas L. McGhee’s Motion for Extension of Time to File Notice of Appeal and Memorandum in support of the Motion. The Court has reviewed the Motion, and the Memorandum, as well as the entire record in this adversary case. Based on that review, and for the following reasons, the Court finds that the Motion for Extension of Time should be denied as there still remains time in which Defendant McGhee can file his appeal.
FACTS
The facts necessary for this decision are not in dispute. On January 19, 1990, this Court issued a Judgment against Mr. McGhee and six (6) other Defendants. 112 B.R. 863. A Motion was subsequently filed by the Trustee seeking to have the Judgment certified as final under Federal Rule of Civil Procedure 54(b). This Court issued a Memorandum Opinion and Order certifying the Judgment as final and appealable on February 15, 1990. 112 B.R. 871.
Under Bankruptcy Rule 8002(a), the Defendants had ten (10) days to file their *880Notices of Appeal. Because the tenth day fell on Sunday, February 25, 1990, Bankruptcy Rule 9006(a) extended the time to the next day that did not fall on a weekend or a holiday. See, Bankruptcy Rule 9006(a). Thus, the ten (10) day period expired on Monday, February 26,1990. Four (4) Defendants timely filed Notices of Appeal on the February 26th deadline.
Counsel for Thomas L. McGhee has filed for an extension of time to file his Notice of Appeal under Bankruptcy Rule 8002(c). Mr. McGhee requests that the time for appeal be extended until Thursday, March 8, 1990.
LAW
Thomas L. McGhee’s Motion requests an extension of time under Bankruptcy Rule 8002(c), which states:
(c) Extension of Time for Appeal. The bankruptcy judge may extend the time for filing the notice of appeal by any party for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule. A request to extend the time for filing a notice of appeal must be made before the time for filing a notice of appeal has expired, except that a request made no more than 20 days after the expiration of the time for filing a notice of appeal may be granted upon a showing of excusable neglect if the judgment or order appealed from does not authorize the sale of any property or the obtaining of credit or the incurring of debt under § 364 of the Code, or is not a judgment or order approving a disclosure statement, confirming a plan, dismissing a case, or converting the case to a case under another chapter of the Code.
Counsel for Mr. McGhee states in his Memorandum that he was out of town, and has not had adequate time to review and evaluate the issue of appeal. The Court notes that Mr. McGhee’s attorney is not a sole practitioner, and that additional time for preparation has been afforded Mr. McGhee’s counsel due to the litigation of the finality issue prior to the start of the ten (10) day time period. Moreover, Bankruptcy Rule 8002(c) requires a showing of “excusable neglect” by the party moving for the proposed extension of time. The burden of proof is on the movant, and an examination of the Motion and Memorandum do not reflect an affidavit stating the circumstances which would allow a finding that any neglect was “excusable” under the Bankruptcy Rules. Thus, under Bankruptcy Rule 8002(c), the Motion should be denied. See, e.g., In re Culmtech, Ltd., 89 B.R. 418 (Bankr.M.D.Pa.1988); In re O’Connor, 85 B.R. 590 (W.D.Okla.1987); Matter of Dayton Circuit Courts No. 2, 85 B.R. 51 (Bankr.S.D.Ohio 1988); In re Tinnell Traffic Services, Inc., 43 B.R. 280 (Bankr.M.D.Tenn.1984); In re Zeller, 38 B.R. 739 (Bankr. 9th Cir.BAP 1984).
However, a review of Bankruptcy Rule 8002(a) indicates that the Notices of Appeal filed by J. Robert Jesionowski, John E. Thompson, George M. Todd, and Donald Henniger, provide an automatic extension to Mr. McGhee. Bankruptcy Rule 8002(a) states:
(a) TEN-DAY PERIOD. The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 10 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires. If a notice of appeal is mistakenly filed with the district court or the bankruptcy appellate panel, the clerk of the district court or the clerk of the bankruptcy appellate panel shall note thereon the date on which it was received and transmit it to the clerk and it shall be deemed filed with the clerk on the date so noted, (emphasis added)
Pursuant to this provision, Mr. McGhee is accorded an additional ten (10) day period from the date of the first appeal, as is “any other party”. Since all appeals were filed on the same day, Monday, February 26, 1990, Mr. McGhee’s appeal may be timely filed during that additional period. See In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982) (construing former Bank*881ruptcy Rule 802(a) and applying it to co-defendants); 9 Collier on Bankruptcy 8002.-05 at 8002-11 (15th ed. 1988); also cf., Kurdziel v. Pittsburgh Tube Co., 416 F.2d 882, 883-885 (6th Cir.1969) (Construing former Federal Rule of Civil Procedure 78(a) which is now Federal Rule of Appellate Procedure 4(a). Except for the number of days allowed, the language of Rule 4(a) F.R.App.P. was copied in the relevant portion of Bankruptcy Rule 8002(a).); Jackson Jordan, Inc. v. Plasser American Corp., 725 F.2d 1373 (Fed.Cir.1984) (F.R.App.P. 4(a)(3) held broadly applicable); Meza v. Washington State Department of Social and Health Services, 683 F.2d 314, 316 (9th Cir.1982) (discussing F.R.App.P. 4(a)(3)); 16 C. Wright, A. Miller, E. Cooper & E. Gress-man, Federal Practice and Procedure § 3950 at 36a (1977).
In reaching these conclusions, the Court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion.
Accordingly, it is
ORDERED that Thomas L. McGhee’s Motion for Extension of Time be, and is hereby, Denied.
It is FURTHER ORDERED that the Court finds that Thomas L. McGhee’s time to file a Notice of Appeal has not yet expired under Bankruptcy Rule 8002(a). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491097/ | MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Bankruptcy Judge.
The matter before the Court is the application of Rosen & Co. (Rosen) auctioneers, for allowance and payment of fees and expenses incurred in the sale of assets of the above-captioned estate.
Rosen was appointed by Court order dated August 11,1988, to conduct a public sale of Debtor’s assets. The sale was duly conducted on August 23, 1988 on the premises of the Debtor and was subsequently confirmed by the Court. The sale grossed $128,606.75.
In accordance with Local Bankruptcy Rule 5, Rosen is allowed a maximum commission as follows:
10% on the first $5,000.00 . .$500.00
8% on the next $15,000.00 . .1,200.00
5% on the balance of $108,606.75 . . 5,430.33
Total $7,130.33
*887L.B.R. 5 also provides that “Auctioneers may be allowed reasonable expenses for labor cataloging, advertising, printing, postage, and all other actual and necessary disbursements pertaining to the sale.”1
Rosen documents the following expenses:
Labor.$ 8,589.00
Cataloging.100.00
Advertising.2,321.06
Printing.1,205.34
Postage. 875.00
Addressing Notices. 297.50
Locksmith. 81.43
Total Additional Expenses.$13,469.33
It is clear that all of the costs described by the auctioneer are encompassed within the compensation schedule. They are all documented. The issue is whether the expenses were reasonable. The Court is particularly concerned with the labor costs. The sale consumed one work day, with inspection permitted on the previous day. Sixteen workers were employed, working from two to ten days on the sale. Their activities included set-up, labor to clean, segregate, tag and catalog, labor during auction sale for deposit taking and security, and labor after the auction sale to supervise checkout procedures. See Ex. A.
While the activities are clearly indicated, without a fuller explanation the Court cannot determine who performed which activities, whether the services rendered by one worker could have been performed by someone else at a lower cost to the estate, and whether the time spent in a specific task was reasonable. The burden is on the applicant to demonstrate the reasonableness of the expenses requested. In re Lindberg Products, Inc., 50 B.R. 220, 221 (Bankr.N.D.Ill.1985); In re Liberal Market, Inc., 24 B.R. 653, 657 (Bankr.S.D. Ohio 1982). Here, that burden has not been met. Most cases dealing with the reasonableness of compensation under §§ 330 and 331 of the Code involve attorneys’ fees, but the same principles are applicable to fees and expenses paid to other professionals.
Without a more detailed explanation of the necessity for $8,589.00 to be expended for labor in addition to the maximum allowable commission, the Court finds this amount is not reasonable. Accordingly, Rosen is awarded $6,000.00 in labor expenses for a total allowance in fees and expenses of $18,010.66, subject to the availability of net disposable funds upon closing of this estate.
The Court’s previous order granting fees and expenses to the auctioneer is hereby vacated.
IT IS SO ORDERED.
. L.B.R. 5, Bankr., N.D.Ohio. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491098/ | MEMORANDUM
JOHN C. COOK, Bankruptcy Judge.
The chapter 7 trustee has brought an action seeking to avoid as preferential transfers the security interests held by defendant Ford Motor Credit Company (“Ford Motor”) on two automobiles. Having considered the evidence introduced at the trial of this case, together with the briefs filed by the parties, the court now submits its findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
I.
Prior to September 2, 1988, the debtors, Darrell McFarland and Brenda McFarland, owned a 1987 Nissan 300ZX. As of September 2, 1988, Home Federal Savings & Loan of Knoxville (“Home Federal”) held a lien on the Nissan securing a loan in excess of $19,000.
Due to a change in the work schedule of Darrell McFarland, the debtors found they needed two cars. They decided to trade the Nissan automobile and obtain two new automobiles provided they could arrange for the combined monthly payments on the two new vehicles to approximate the payments on the Nissan. Consequently, the debtors went to Gary Yeomans Ford (“Gary Yeomans”) and discussed their proposal with salesman Mark Cohen. The discussion eventually led to an agreement whereby the debtors agreed to purchase a 1988 Ford Escort and a 1988 Ford Bronco II upon the condition that the debtors could obtain approved financing through Ford Motor. To effectuate the agreement, the debtors on September 2, 1988, executed “Car Buyer’s Offer and Purchase Option Contract” (“purchase option contracts”) for both new automobiles. These agreements stated the price the debtors would pay for the new vehicles if they exercised their options to purchase. To exercise their options, the debtors could pay in cash the agreed sums or, in the words of the option agreements, they could execute “a retail installment sales contract subject to acceptance of such contract by a lending institution acceptable to Seller and payment in cash or equivalent....”1 The debtors were unable to pay cash, so before leaving Gary. Yeomans on September 2, 1988, they executed “Tennessee Vehicle Retail Installment Contract[s]” (“installment contracts”) for each new vehicle.
Both installment contracts, dated September 2, 1988, expressly advised the debtors in bold print that “[b]y signing this contract you choose to buy the vehicle on credit under the agreements on the front and back of this contract.” The contracts also recited “[b]y signing below, the seller accepts this contract.” The contracts were signed by an agent of Gary Yeomans.
Aside from the representations contained in the two purchase option contracts, the debtors and representatives of Gary Yeo-mans orally agreed that the installment contracts were subject to Ford Motor’s financing both vehicles. The debtors were not interested or able to complete the sale if financing were approved for only one vehicle.2 The retail installment contracts *908expressly provided the purchasers were giving security interests in the vehicles.
After the debtors had executed the purchase options and installment contracts, Gary Yeomans retained the debtors’ Nissan and the debtors were given the new automobiles to take home. No mileage restrictions or driving limitations were placed upon the debtors’ use of the new automobiles.
On or about September 6, 1988, Ford Motor received from Gary Yeomans via computer the request for financing the new automobiles. After financial and credit evaluations, Ford Motor agreed to finance the purchase of the Escort. Ford Motor did not agree, however, to finance the purchase of the Bronco. Through further negotiations with Gary Yeomans and after Gary Yeomans agreed to guarantee $2,500 of the purchase price, Ford Motor finally agreed on September 15, 1988, to finance the Bronco. The installment contracts executed by the debtors were then assigned from Gary Yeomans to Ford Motor.
During the period of time between September 2 and September 15, 1988, while financing was still pending, Darrell McFarland temporarily ceased using the Bronco fearing he would be unable to obtain financing. It appears that on September 15, 1988, the day Ford Motor agreed to finance the purchase of the Bronco, the debtors and Gary Yeomans were preparing to reex-change vehicles believing that financing on the Bronco would not be obtained.
On September 16, 1988, Gary Yeomans issued a check for $19,326.63 to Home Federal to pay the outstanding balance on the lien on the Nissan.
With financing approved on both vehicles, Gary Yeomans submitted applications for Tennessee certificates of title on the vehicles. The application for title on the Bronco was submitted September 19, 1988. The application for the Escort was submitted September 21, 1988. Both applications listed Ford Motor as the first lien-holder.
On October 28, 1988, certificates of title were issued for both vehicles. Ford Motor is listed as first lienholder on both titles and the certificates each list September 2, 1988, as the lien date.
On September 28, 1988, the debtors filed a joint petition in bankruptcy under chapter 7 of the Bankruptcy Code. The plaintiff was appointed trustee in the debtors’ chapter 7 case. The plaintiff estimated that unsecured creditors would be paid approximately 33-36% of the value of their claims after administrative expenses were deducted. From the uncontroverted testimony of Brenda McFarland, it appears at all relevant times the total of the debtors’ debts exceeded the total value of the debtors’ assets. Schedules A and B filed with the debtors’ chapter 7 petition show debts of $38,690.43 and assets of $23,920.
The plaintiff contends that Ford Motor received preferential transfers of security interests in the debtors’ automobiles. According to plaintiff’s argument, the debtors acquired rights in the two Ford vehicles on September 2, 1988, and granted security interests in the vehicles at that time. Because perfection of the security interests in the two vehicles did not occur until September 19 and 21, when the applications for title were submitted, the transfers of security interests are deemed to have taken place at that time pursuant to the provisions of 11 U.S.C.A. § 547(e)(2). Thus, plaintiff contends the debt incurred by the debtors was antecedent to the transfer of the security interests, creating preferences which are avoidable by the plaintiff.
Ford Motor maintains it received no preferential transfer in this case. Ford Motor asserts that the debtors and personnel at *909Gary Yeomans agreed that a condition precedent to the sale of the two vehicles was that Ford Motor would finance the purchase of both vehicles. Ford Motor argues until September 15, 1988, the date financing was approved for both vehicles, the debtors only had possession of the two Ford vehicles and that their mere possesso-ry interest in the vehicles was insufficient to convey a valid security interest. Ford Motor contends that perfection of its security interests took place within ten days of September 15, 1988, and that under § 547(e)(2)(A), the transfers of the security interests would be deemed to have occurred on September 15, 1988, contemporaneously with the date the debtors incurred the debt.
II.
The elements of a preferential transfer are set forth in 11 U.S.C.A. § 547(b) (West 1979 & Supp.1989).3 The primary issue in this proceeding is whether Ford Motor received a transfer of an interest of the debt- or in property (the security interests) “for or on account of an antecedent debt owed by the debtor before such transfer was made.” See 11 U.S.C.A. § 547(b)(2) (West 1979).
To solve the legal issue presented, the court must first discover the date of the transfer for purposes of § 547. Once that date has been determined, the court can then ascertain whether the transfer was on account of an antecedent debt owed by the debtors.
The two installments contracts signed by the debtors and Gary Yeomans purport to transfer security interests in the two new automobiles to Gary Yeomans on September 2, 1988. For purposes of § 547, however, the timing of a transfer is governed by § 547(e). Section 547(e) provides in relevant part as follows:
(2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made—
(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time;
(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days; or
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(3) For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred.
11 U.S.C.A. § 547(e)(2), (3) (West 1979).
A proper application of § 547(e) to the facts of this case requires an initial determination of whether a transfer was effectively made on September 2, 1988. Or, to pose the question more specifically, did the debtors actually convey attachable security interests as of that date? Legislative history makes clear the drafters intended the phrase “takes effect between the transfer- or and the transferee” to be synonymous with the term “attachment” as used in the context of security interests under article 9 of the Uniform Commercial Code. See H.R.Rep. No. 595, 95th Cong. 1st Sess. 213 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6173.
The attachability of security interests is governed by Tennessee Code Annotated § 47-9-203(1) (Supp.1989). That statute reads as follows:
*910[A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless:
(a) the collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral and in addition,, when the security interest covers crops growing or to be grown or timber to be cut, a description of the land concerned; and
(b) the value has been given; and
(c) the debtor has rights in the collateral.
Id. Notably, the requirement that the debtor have rights in the collateral as set out in subsection (c) above is similar to the requirement in § 547(e)(3) mandating that before there can be a transfer for purposes of § 547, the debtor must have acquired rights in the property transferred. See 11 U.S.C.A. § 547(e)(3) (West 1979).
Clearly, the first two requirements necessary for the security interests to attach and become enforceable were present as of September 2, 1988. First, the debtors signed a proper security agreement on September 2,1988. Second, on that same date, Gary Yeomans gave value by promising to sell the vehicles to the debtors at a specified price and by delivering the vehicles into debtors’ possession. See Tenn.Code Ann. § 47-1-201(44) (Supp.1989) (value means inter alia, any consideration sufficient to support a simple contract). The remaining question is whether on September 2, 1988, the debtors had rights in the collateral.
The phrase “rights in the collateral” is not defined in the Uniform Commercial Code (codified at title 47 of the Tennessee Code) or in the Bankruptcy Code. Most courts construing the phrase have recognized that “rights in the collateral” encompass almost any rights in the collateral that a debtor may have. See 2 J. White & R. Summers, Uniform Commercial Code § 24-6, at 322-23 (3d ed. 1988). Although mere acquisition of possession of property entirely owned by a third party will not be enough, courts have held that “rights in the collateral” can be property rights which are less than full ownership rights. When a debtor has rights in the collateral, he may convey a security interest which attaches to the extent of those rights. See, e.g., See Kinetics Technology Int’l Corp. v. Fourth Nat’l Bank, 705 F.2d 396 (10th Cir.1983) (attachment when debtor has possession and degree of control or authority over collateral); Goldberg Co. v. County Green Ltd. Partnership (In re County Green Ltd. Partnership), 438 F.Supp. 693 (W.D. Va.1977) (security interest attaches with possession and contingent rights of ownership); Amfac Mortgage Corp. v. Arizona Mall, 127 Ariz. 70, 618 P.2d 240 (Ariz.Ct. App.1980) (possession with contingent rights of ownership was sufficient for attachment); Rex Financial Corp. v. Mobile America Corp., 119 Ariz. 176, 580 P.2d 8 (Ariz.Ct.App.1978) (attachment when good-faith purchaser executed installment purchase agreement and security agreement); Thrift, Inc. v. A.D.E., Inc., 454 N.E.2d 878 (Ind.Ct.App.1983) (rights in collateral where debtor acquires possession pursuant to a contract); Uniroyal v. Michigan Bank, 12 U.C.C.Rep.Serv. (Callahan) 745 (Mich.Cir.Ct.1972) (rights of exclusive use, control, and possession sufficient to constitute rights in collateral); Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140 (Tex.Ct.App.), reh’g denied (1984) (buyer had rights in collateral where temporary possession was taken under a conditional sales contract); 2 J. White & R. Summers, supra, p. 10, § 24-6, at 322-23.
The agreements entered into by the debtors and Gary Yeomans on September 2, 1988, were valid contracts that came into existence on that date. Gary Yeomans agreed to sell the Escort and Bronco to the debtors for a certain price and the debtors obligated themselves to buy the automobiles provided the financing was approved. The obligations of the parties were created and arose on September 2, 1988; the performance of the obligations under the contracts was conditional upon financing. The obligations were subject to a condition, or what some have called a condition precedent.
*911The Restatement (Second) definition of conditions, quoted with approval in Covington v. Robinson, 723 S.W.2d 643, 645 (Tenn.Ct.App.1986), recites that a condition is:
[A]n event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.
Restatement (Second) of Contracts § 224 (1981). Corbin defines conditions precedent as follows:
Conditions precedent, for our present purposes, are those facts and events, occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available.
A. Corbin, Corbin on Contracts § 628, at 587 (one vol. ed. 1952).
In both the Restatement (Second) definition of conditions and Corbin’s definition of conditions precedent, the existence of a valid contract is presupposed. As Farnsworth explains in his treatise on contracts:
The Restatement Second uses condition in the context of an existing contract. It excludes events, such as the acceptance of an offer, that must occur before a contract is made. For example, if an offeror makes a promise in the form of an offer “to sell this cotton to you on condition that you pay me $1,000,” the payment is regarded as acceptance of the offer but not as a condition of the promise. Although formation of the contract could be said to be conditional on payment of the $1,000, no contract exists until payment is made. Under the Restatement Second definition, the making of the contract marks the border between the law of offer and acceptance, which relates to the formation stage, and the law of conditions, which relates to the performance stage. The line is a fine one, however. If parties make a contract under which neither has a duty to perform until the occurrence of some event, such as the raising of a stated amount of capital or the approval of a third person, that event is a condition of the duty of each party. Both parties are bound, although neither will have to perform if the event does not occur. Similarly, if an offer has become an option contract by, for example, the payment of a dollar or the use of a signed writing, acceptance of that offer is a condition of the offeror’s duty. The grantor of the option is bound although he will not have to perform if the option is not exercised.
E. Farnsworth, Contracts § 8.2, at 540-41 (1982) (emphasis in original) (footnotes omitted).
The contracts entered into between the debtors and Gary Yeomans on September 2, 1988, were binding, valid contracts. If, for instance, the debtors had attempted to return the vehicles the day after executing the contracts before the application for financing could be acted upon, Gary Yeo-mans would have had an action for breach of contract against the debtors. Similarly, if a day after the contracts were executed Gary Yeomans had repossessed the vehicles and sold them to another party prior to the time the application for financing could be acted upon, Gary Yeomans would have been liable for breach of contract.
The contracts entered into between Gary Yeomans and the debtors on September 2, 1988, provided the debtors sufficient “rights in the collateral” to enable them to transfer attached security interests to the extent of the value of those rights. The nature of those rights are set forth in chapter 2 of the Uniform Commercial Code enacted in Tennessee. The particular Code section of chapter 2 applicable here is found at Tennessee Code Annotated § 47-2-501 (1979). It reads as follows:
(1) The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers even though the goods so identified are nonconforming and he has an option to return or reject them. Such identification can be made at any time and in any manner explicitly agreed to by the parties. In *912the absence of explicit agreement identification occurs:
(a) when the contract is made if it is for the sale of goods already existing and identified.
Id. Other property rights in the collateral flowing from the execution of the sales contracts which existed even prior to the delivery of the vehicles include the debtors’ right, upon tender of the balance of the purchase price, to obtain the vehicles in the event of the seller’s insolvency, Tenn.Code Ann. § 47-2-502 (1979); the debtors’ ability, under certain circumstances, to recover the vehicles, obtain specific performance, or replevy the vehicles, id. §§ 47-2-711(2)(a), (b), 47-2-716; and debtors’ right of action against a third party for injury to the vehicles, id. § 47-2-722. See In re Pelletier, 5 U.C.C.Rep.Serv. (Callaghan) 327 (D.Me.1968).
Although the special property and insurable interest given to the debtors by Tennessee Code Annotated § 47-2-501 was very limited, the rights are nonetheless rights in the collateral. Moreover, § 47-2-401(1) addresses the interest a seller retains upon delivery of possession of goods to a buyer pursuant to a contract for sale. It reads:
Each provision of this chapter with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as ■ situations are not covered by the other provisions of this chapter and matters concerning title become material the following rules apply:
(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (§ 47-2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by chapters 1 through 9 of this title. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the chapter on Secured Transactions (chapter 9 of this title), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
Tenn.Code Ann. § 47-2-401(1) (1979). Regardless of the agreement between the buyer and seller concerning title and ownership of the goods, under § 47-2-401 once those goods have been delivered into the possession of the buyer under a sales contract, the most the seller can retain is a security interest. See, e.g., Jahn v. Quintrell (In re Tom Woods Used Cars), 21 B.R. 560 (Bankr.E.D.Tenn.1982); see also In re Phillips, 77 B.R. 648 (Bankr.E.D.Tenn. 1987).
In summary, on September 2, 1988, the debtors had rights in the new automobiles pursuant to the installment contracts executed by Gary Yeomans and the debtors. The debtors’ rights in the two vehicles constituted more than mere possession and were sufficient to permit attachment and the conveyance of security interests as of September 2, 1988. Additionally, pursuant to the terms of Tennessee Code Annotated § 47-2-401(1), because the vehicles were delivered into the debtors’ possession under sales contracts, Gary Yeomans could only retain security interests in the vehicles. Since the security interests were not perfected within ten days of their attachment, § 547(e)(2)(B) applies and deems the transfer of the security interests as taking place on September 19 and 21, respectively. See Tenn.Code Ann. § 55-3-126(a) (1988) (date of perfection relates back to date application for title is filed). The performance of the installment contract obligations, including payment of the debt, did not arise until September 15, 1988, the date financing was approved on the second vehicle. Even if this date were held to be the date the debt was incurred, the transfer of the security interests were still on account of an antecedent debt. As all other elements of § 547(b) preferential transfers are present, the court determines that the security interests held by Ford Motor in the debtors’ vehicles are preferential transfers and are *913avoidable by the trustee.4 Judgment will enter in favor of the plaintiff.
. Although the purchase option contract covering the Bronco was not executed by a representative of Gary Yeomans, this fact is not significant in the resolution of this case.
. Evidence of the oral agreement between the debtors and Ford Motor is not precluded by the parol evidence rule in this case. See Tenn.Code Ann. § 47-2-202 (1979) (if writings not intended as complete and exclusive statement of *908terms, consistent supplementary oral term may be proven); see also Hamilton Bank v. Bank of Commerce (In re Morristown Lincoln-Mercury), 25 B.R. 377, 383-384 & n. 9 (Bankr.E.D.Tenn. 1982) (citing Hull-Dobbs, Inc. v. Mallicoat, 57 Tenn.App. 100, 415 S.W.2d 344 (Tenn.Ct.App. 1966)) (contemporaneous oral inducements to contract not contradicting written agreement not precluded by parol evidence rule); McCloud v. Woods (In re Tom Woods Used Cars), 23 B.R. 563, 568 (Bankr.E.D.Tenn.1982) (oral agreement of condition to contract may be proven notwithstanding parol evidence rule); Strickland v. City of Lawrenceburg, 611 S.W.2d 832, 838 (Tenn.Ct. App.1980) (parol evidence may be admitted to show a condition precedent).
. (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property'—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition if such creditor at the time of such transfer was an insider; and
(5)that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C.A. § 547(b) (West 1979 & Supp.1989).
. The enabling loan exception set forth in § 547(c)(3) of the Bankruptcy Code is not helpful to the defendant. See 11 U.S.C.A. § 547(c)(3) (West 1979 & Supp.1989). First, it is doubtful the exception was meant to apply to sellers such as Gary Yéomans who retain a purchase-money security interest to secure the purchase price of goods sold. See Countryman, The Concept of a Voidable Preference in Bankruptcy, 38 Vand.L.Rev. 713, 776-81 (1985). But see Gower v. Ford Motor Credit Co. (In re Davis), 734 F.2d 604 (11th Cir.1984); Waldschmidt v. Ford Motor Credit Co. (In re Murray), 27 B.R. 445, 448 (Bankr.M.D.Tenn.1983); General Motors Acceptance Corp. v. Martella (In re Martellta), 22 B.R. 649, 651 (Bankr.D.Col.1982). Secondly, the exception requires that the creditor perfect its security interest within ten days of the time the debtor receives possession of the property. See 11 U.S.C.A. § 547(c)(3)(B) (West Supp.1989). Perfection did not occur within that ten-day period in this case. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483594/ | Electronically Filed
Supreme Court
SCEC-XX-XXXXXXX
14-NOV-2022
08:44 AM
Dkt. 8 ORD
SCEC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________
JAMES RYAN MALISH and KARL O. DICKS, Plaintiffs,
vs.
SCOTT NAGO, acting in official capacity of Chief Election
Officer, STATE OF HAWAIʻI OFFICE OF ELECTIONS,
and ELECTIONS COMMISSION, Defendants.
________________________________________________________________
ORIGINAL PROCEEDING
ORDER DISMISSING COMPLAINT IN PART
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
On November 4, 2022, Plaintiffs filed an election
complaint that appears to seek relief under the primary election
contest statute, HRS § 11-173.5. It is beyond the allowable
time to seek relief under HRS § 11-173.5. See HRS § 11-173.5(a)
(“In a primary . . . election contest, . . . the complaint shall
be filed in the office of the clerk of the supreme court no
later than 4:30 p.m. on the thirteenth day after a primary . . .
election[.]”). To the extent Plaintiffs’ arguments seek relief
under HRS § 11-173.5, these claims are untimely. Accordingly,
It is ordered that the complaint is dismissed in part,
or to the extent relief is sought under HRS § 11-173.5. The
court will instead construe the complaint as a general election
contest.
DATED: Honolulu, Hawaii, November 14, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483599/ | 2022 IL App (1st) 210506-U
No. 1-21-0506
Order filed November 14, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 15 CR 8790
)
HERBERT GREGORY BOOKER, ) Honorable
) James M. Obbish,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: Summary dismissal of defendant’s postconviction petition is affirmed where the
petition and attachments made conclusory allegations rather than facts.
¶2 Gregory Booker appeals from the summary dismissal of his petition under the Post-
Conviction Hearing Act. He contends that his petition stated an arguable claim of ineffective
assistance of trial counsel based on counsel’s failure to have a brother of his impeach the testimony
of the victim and another critical witness at trial. We affirm because Booker’s petition fails to state
No. 1-21-0506
an arguable claim of ineffective assistance for not investigating or calling the brother as a witness.
Nor can the brother corroborate Booker’s alibi.
¶3 Factual Background
¶4 Booker was charged with multiple counts of aggravated criminal sexual assault and
criminal sexual assault, all allegedly committed against K.M. on March 9, 2013. At a 2017 bench
trial, Booker was convicted of aggravated criminal sexual assault and criminal sexual assault and
sentenced to consecutive prison terms of nine years and four years, respectively. We affirmed on
direct appeal. People v. Booker, 2020 IL App (1st) 172696-U (unpublished order under Supreme
Court Rule 23).
¶5 We recount the relevant evidence and details from Booker's trial as set forth by this court
on direct appeal.
¶6 Forensic evidence showed that Booker had sex with K.M. on March 9, 2013. Booker’s
DNA matched semen from swabs to her vaginal and anal areas.
¶7 K.M. testified that, in 2013, she would occasionally visit her girlfriend Kristina at the home
of Kristina’s aunt. At the time, both K.M. and Kristina were minors. Kristina’s aunt shared the
house with Booker and Mario Booker, who lived in basement bedrooms. On the night of March 8,
2013, K.M. was in the basement socializing, drinking, and smoking marijuana with Kristina and
others, but not Booker. At some point, K.M. felt “tipsy” and slept in Mario’s bedroom, as she had
on prior overnight visits.
¶8 K.M. awoke to find Booker inside her underwear with his mouth on her vagina. She kicked
and pushed him, but he overpowered her, held her down by her upper arms, and “stuck his penis
inside” her vagina. After Booker left, K.M.’s vagina and arms hurt. Out of fear, K.M. stayed in the
room until Kristina came in about a half-hour later. K.M. told her what Booker had done. Kristina
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No. 1-21-0506
confronted Booker in his bedroom, and Mario came in and suggested leaving the matter until the
morning. K.M. did not leave that night because she had nowhere to go, and Kristina stayed with
her in Mario’s bedroom. In the morning, Booker’s daughter attacked K.M., dragging her from bed
and trying to hit her. K.M. and Kristina went to the home of Kristina’s grandmother, who urged
her to contact the police. K.M. spoke with police and underwent a sexual assault examination at a
hospital.
¶9 Kristina, Booker’s cousin, testified that she and others, including Mario, left the home to
buy food after K.M. passed out on Mario’s bed. When they left, Booker was awake in his bedroom
while Booker’s brother and his cousin, Jermeisha Booker, were also in the basement. When
Kristina, Mario, and the others returned after about 45 minutes, K.M. seemed scared, shaky, and
disheveled. Kristina asked K.M. what was wrong; K.M. said that Booker “tried to have sex with
her.” Kristina went to Booker’s bedroom to confront him.
¶ 10 Mario came in and told everyone to calm down. He suggested they discuss the matter in
the morning. Noting that they were all intoxicated, Mario suggested that it would not “look right”
to call the police at that point. Kristina returned to Mario’s room, and she and K.M. went to sleep.
In the morning, Booker’s daughter tried to drag K.M. from Mario’s bedroom and fought with
Kristina.
¶ 11 Nurse Kindra Nelson testified to examining K.M. Nelson found bruises on K.M.’s thigh
and upper arms, a hand abrasion, and redness, tenderness, and lacerations on her vagina. Nelson
swabbed K.M., including her vaginal and anal areas. As Nelson recounted from her notes, K.M.
said, “I woke up with him on top of me. He was rubbing me and stuff then he pulled my panties
off one leg. I was pushing him off *** but he took control over me.” K.M. also told Nelson that
her hand abrasion may have resulted from an altercation with Booker’s daughter that morning.
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No. 1-21-0506
¶ 12 Detective Dwayne Davis testified to multiple interviews with Booker. In March 2013,
Booker denied sexual contact with K.M., claiming he was in his bedroom most of the night and
did not see anybody in Mario’s bedroom when he went looking for a lighter. Brooker
acknowledged that Kristina accused him of “touching” K.M. After receiving the forensic testing
results in May 2015, Detective Davis again interviewed Booker and confronted him with the
forensic evidence. Brooker professed no recollection of sexual contact with K.M. and claimed to
have been “out of his mind” from marijuana when he went to Mario’s bedroom to get a lighter.
When an assistant state’s attorney interviewed Booker, he claimed K.M. asked him to have sex
after he entered Mario’s bedroom.
¶ 13 Booker testified that he smoked marijuana with K.M. and Kristina on the afternoon of
March 8 before going to his bedroom. Later, he went to the basement bathroom, and found K.M.
and Kristina talking with the lights off. They asked if they could perform oral sex on him, but he
declined and returned to his bedroom after using the bathroom. Brooker drifted in and out of sleep
for several hours while others came to the home to drink and socialize. At some point, he went to
Mario’s room searching for a lighter, and noticed K.M. in bed. There was no lighter in Mario’s
room, so he went to find one. After smoking, he returned to Mario’s room, and asked K.M. if she
would perform oral sex on him. She refused but then agreed for him to perform oral sex on her.
She removed her underwear and let him perform oral sex. Brooker then “start[ed] having sex with
her” before realizing he was not wearing a condom. He left to find a condom but after being unable
to locate one, did not return to Mario’s room.
¶ 14 On cross-examination, Booker testified that he removed K.M.’s underwear.
¶ 15 Jermeisha, Booker’s niece, testified that she stayed behind when a group went out for food.
She sat on the couch in the basement with Booker’s brother, Donnie, while K.M. was in Mario’s
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No. 1-21-0506
room, and Booker was awake in his own bedroom. While lying on the couch, she did not see
anyone enter Mario’s room, hear anything unusual, or see Booker during the about15 minutes the
group was gone. After the group returned, “Kristina and Mario were in the room. And Kristina
came back out and tapped me and said that your uncle raped my girlfriend.”
¶ 16 Ashley Booker, Booker’s daughter, testified that she was in the basement back room in the
Booker home. “[E]veryone” including herself, Jermeisha, Mario, Kristina, and K.M., were
smoking marijuana and drinking. Ashley left the house around midnight. When she returned in the
morning, she learned of K.M.’s accusation. She found K.M. in Mario’s bedroom and asked why
she was still there. K.M. kicked Ashley, who then dragged K.M. from the bed by the ankles.
Ashley, K.M., and Kristina fought, with Ashley grabbing K.M.’s wrists and shoving her.
¶ 17 In finding Booker guilty, the trial court found K.M. credible and found Booker and
Jermeisha not credible. The court also relied on Detective Davis’s testimony that Booker initially
denied having sexual contact with K.M.
¶ 18 On direct appeal, Booker contended error in allowing Nelson to quote K.M. from her notes,
to which counsel objected at trial but not in the posttrial motion. Booker, 2020 IL App (1st)
172696-U, ¶ 2. We found error in allowing some of Nelson’s testimony to K.M.’s statements, and
we have related here only those portions we found admissible. Id. ¶¶ 21-23. But, we found no plain
error because the trial evidence was not closely balanced. Id. ¶ 24. Specifically, we found that there
was not a credibility contest between two equally plausible versions of events. Id. ¶¶ 24-27.
Booker’s accounts “shifted dramatically over time,” and a “stark difference exists between no sex,
forgotten sex, and consensual sex.” Id. ¶ 26. Moreover, defense witnesses contradicted Booker. Id.
¶ 27. Jermeisha testified that nobody entered Mario’s bedroom, but Booker was consistent across
his otherwise conflicting accounts that he entered Mario’s bedroom that night. Id. Ashley was
-5-
No. 1-21-0506
absent during the incident “and so could corroborate neither account.” Id. Thus, K.M. and Booker’s
versions were not equally plausible and uncontradicted. Id.
¶ 19 In October 2020, Booker filed his pro se postconviction petition. 725 ILCS 5/122-1 et seq.
(West 2020). He claimed that ineffective assistance of trial counsel for not investigating or calling
as witnesses Mario and Donnie, who could have “corroborated [Booker’s] alibi” and testified K.M.
and Kristina “gave false trial testimony.” He claimed to have given trial counsel their contact
information and argued that counsel’s explanation that he could not contact them was unbelievable
because counsel subpoenaed Jermeisha, who lived at the same address as Donnie.
¶ 20 Booker’s petition attached an affidavit attesting to the truth of the allegations. He also
attached Mario’s affidavit, which states that trial counsel neither interviewed, subpoenaed, or
called him as a witness, despite attending Booker’s trial and telling counsel he wanted to testify
that K.M. and Kristina “falsely testified.” Another attached affidavit, this one from Donni, stated
trial counsel neither interviewed nor called him as a trial witness without indicating what his
testimony would be.
¶ 21 The trial court summarily dismissed Booker’s petition, finding the affidavits “clearly
deficient because they do not state the witnesses’ potential testimony.” Only Mario’s affidavit gave
a sense of his potential testimony: K.M. and Kristina lied at trial. Nevertheless, Booker did “not
state what they allegedly lied about, or what Mario’s testimony would be in relation to that topic.”
And Booker failed to explain why he could not provide sufficient affidavits.
¶ 22 Analysis
¶ 23 Booker contends that he made an arguable claim of ineffective assistance of trial counsel
for not calling Mario as a trial witness to impeach the testimony of K.M. and Kristina “in a case
that boiled down to a credibility determination.”
-6-
No. 1-21-0506
¶ 24 The Act provides a three-stage process for postconviction petitions. People v. House, 2021
IL 125124, ¶ 16. The trial court summarily dismissed Booker’s petition at the first stage. We
review the summary dismissal of a postconviction petition at the first stage de novo. People v.
Knapp, 2020 IL 124992, ¶ 39.
¶ 25 A petition may be summarily dismissed as frivolous or patently without merit only if it has
no arguable basis in law or fact, or relies on an indisputably meritless legal theory or a fanciful
factual allegation. Id. ¶ 45. Though the court generally accepts a petition’s allegations as true and
construes them liberally, dismissal is appropriate when the record positively rebuts the allegations.
Id. ¶¶ 50, 54. While we do not expect a pro se petition to set forth a complete and detailed factual
recital at the first stage, we need not accept broad nonspecific or conclusory allegations. People v.
Delton, 227 Ill. 2d 247, 254-55, 258 (2008). Furthermore, an affidavit or statement attached to a
petition must at all stages show “the petition’s allegations are capable of corroboration and
identify[] the sources, character, and availability of evidence alleged to support the petition’s
allegations.” Id. 725 ILCS 5/122-2 (West 2020).
¶ 26 Here, the issue involves whether Booker’s petition stated an arguable claim of ineffective
assistance of trial counsel for not investigating or calling Mario as a witness. A postconviction
petition alleging ineffective assistance may not be summarily dismissed when a defendant shows
(i) it is arguable that counsel’s performance fell below an objective standard of reasonableness;
and (ii) it is arguable that the petitioner was prejudiced, that is, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. Knapp, 2020 IL 124992,
¶ 46; People v. Cathey, 2012 IL 111746, ¶ 23. Both prongs must be satisfied.
¶ 27 We find the summary dismissal proper.
-7-
No. 1-21-0506
¶ 28 Regarding Mario’s affidavit, it asserts trial counsel did not interview or call him as a
witness despite his telling counsel he wanted to testify that K.M. and Kristina “falsely testified.”
Yet, the affidavit states nothing in support of Booker’s allegation that Mario would have
“corroborated [his] alibi” or identifies any facts indicating K.M. and Kristina “gave false trial
testimony.”
¶ 29 Indeed, Mario cannot corroborate Booker’s alibi. First, Booker asserted consent rather than
alibi at trial, testifying to sexual contact with K.M. in Mario’s bedroom, albeit under different
circumstances than K.M. described. Second, the forensic evidence belies the alibi. Finally,
Kristina’s testimony for the State and Jermeisha’s testimony for the defense established that Mario
was not present at the time of the incident.
¶ 30 Thus, to have an effect, Mario would have to testify about what K.M. and Kristina said or
did after the incident. But, beyond the nonspecific and conclusory assertion that K.M. and Kristina
lied, the affidavit contains nothing in terms of the nature or content of that evidence. Absent some
specificity about K.M.’s and Kristina’s alleged lies, we cannot determine whether, had counsel
presented Mario as a witness, his testimony arguably would change the outcome. “[T]he affidavits
and exhibits which accompany a petition must identify with reasonable certainty the sources,
character, and availability of the alleged evidence supporting the petition’s allegations.” People v.
Delton, 227 Ill. 2d 247, 254 (2008). Booker’s and Mario’s affidavit fails to do so.
¶ 31 Further, Booker failed to explain why he or Mario could not have provided more than a
terse and conclusory characterization of Mario’s potential testimony. In sum, the petition lacks an
arguable claim that counsel’s allegedly deficient performance prejudiced Booker.
¶ 32 In addition, Booker contends Mario’s testimony would at least arguably affect the outcome
since credibility was at issue. Brooker ignores, however, that on direct appeal, we held his trial
-8-
No. 1-21-0506
was not a credibility contest between two plausible versions because Booker’s and his witnesses’
accounts contradicted each other. Booker had claimed (i) he never had sexual contact with K.M.
but later asserted she consented, and (ii) he had sexual contact with K.M. in Mario’s bedroom, but
Jermeisha testified Booker never entered Mario’s bedroom and Ashley was not present during the
incident.
¶ 33 Moreover, false testimony does not per se render a witness incredible but is weighed
against the entirety of their testimony and the evidence. See People v. Cunningham, 212 Ill. 2d
274, 283 (2004); People v. Wilkinson, 2018 IL App (3d) 160173, ¶ 40. None of the affidavits
suggest that K.M. and Kristina’s lies were substantial or material, much less that Mario’s testimony
would arguably change the outcome.
¶ 34 Affirmed.
-9- | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483596/ | 2022 IL App (1st) 210692-U
No. 1-21-0692
Order filed November 14, 2022.
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 97 CR 12507
)
WILLIAM SUTHERLAND III, ) The Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE LAVIN delivered the judgment of the court.
Justices Pucinski and Hyman concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order dismissing defendant’s petition for relief from judgment
is affirmed where the issue that defendant claims the circuit court did not consider
was barred by res judicata.
¶2 Defendant William Sutherland III appeals from the dismissal of his petition for relief from
judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
1401 (West 2020)). On appeal, defendant contends that the circuit court only reviewed his
supplemental petition, and not his original petition, and, therefore, violated due process. As the
No. 1-21-0692
record establishes that the original petition and supplemental petition were both before the circuit
court and the issue that defendant claims the circuit court did not consider was barred by res
judicata, we affirm.
¶3 Following a 1998 jury trial, defendant was found guilty of attempted first degree murder
of his then-wife Elaine Sutherland and minor stepdaughter E.E., two counts of aggravated battery
with a firearm, and two counts of home invasion. Defendant received consecutive terms of 30
years’ imprisonment on each attempted murder count and one home invasion count.
¶4 During trial, the court held a hearing where it determined that E.E., then age six, was
competent to testify. E.E. testified that on April 11, 1997, she saw defendant shoot Sutherland;
then, he shot E.E. on the left side of her face, above her lip. The jury was instructed under Illinois
Pattern Jury Instruction 3.15 (Illinois Pattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992)
(hereinafter IPI 3.15)) to evaluate identification testimony based on:
“[t]he opportunity the witness had to view the offender at the time of the offense;
or [t]he witness’s degree of attention at the time of the offense; or [t]he witness’s earlier
description of the offender; or [t]he level of certainty shown by the witness when
confronting the defendant; or [t]he length of time between the offense and the identification
confrontation.”
¶5 On direct appeal, defendant argued that the trial court abused its discretion in finding that
E.E. was competent to testify and erred in incarcerating defense counsel for contempt overnight
during the trial. Defendant also claimed the prosecution made improper statements in closing
argument, the State failed to prove him guilty beyond a reasonable doubt, the court abused its
discretion in sentencing him and trial counsel was ineffective for not preserving the issue, and the
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No. 1-21-0692
statute governing concurrent and consecutive sentencing violated due process. We affirmed.
People v. Sutherland, 317 Ill. App. 3d 1117 (2000). In relevant part, we found that the trial court
did not abuse its discretion in determining that E.E. was competent because she asserted that she
knew the difference between telling the truth and lying, and between fantasy and reality. Id. at
1125.
¶6 Defendant then filed a series of unsuccessful collateral challenges; this court affirmed on
appeal. See People v. Sutherland, Nos. 1-01-3770 (2005), 1-12-1629 (2014), 1-14-3455 and 1-15-
2795 (cons.) (2016) (unpublished summary orders under Supreme Court Rule 23(c)); People v.
Sutherland, 2013 IL App (1st) 113072. In several of the proceedings, defendant challenged the
trial court’s use of the conjunction “or” between the factors in IPI 3.15. 1
¶7 On November 18, 2020, defendant filed a motion for substitution of judge, which asserted
that on November 5, 2020, he had mailed a pro se section 2-1401 petition to the Circuit Court of
Cook County and the Cook County State’s Attorney’s Office by certified mail. The motion for
substitution of judge did not specifically address the contents of the section 2-1401 petition, but
generally alleged that “the matter presented within said petition is such that even laypersons have
agreed that the error is egregious and that the cited statute is applicable.” The record on appeal
does not contain a copy of the section 2-1401 petition, which is not mentioned in the electronic
case summary, handwritten record of orders, or half-sheet entries from November and December
2020. The State did not file a response to the petition.
1
Additionally, in People v. Sutherland, 1-10-2466 (2011) (disposition order), we granted
defendant’s motion to dismiss his appeal from the circuit court’s order dismissing a petition for relief from
judgment arguing, inter alia, that his convictions were void due to the trial court’s use of IPI 3.15.
-3-
No. 1-21-0692
¶8 During proceedings on December 8, 2020, the circuit court struck the motion for
substitution of judge and added, “[i]f there’s nothing else before this Court, this matter will be
taken off call.”
¶9 On February 9, 2021, defendant filed a pro se motion for leave to supplement his petition
for relief from judgment. Specifically, defendant sought to supplement the “original claim” with
the “excerpt from [the] direct appeal *** where error occurred at the competency hearing of trial,”
and to include another claim “pertaining to the trial court’s issuing of a wrongful Illinois Pattern
Jury Instruction regarding the weighing of the credibility of identification testimony.” Defendant
argued that his conviction was void where E.E.’s “dubious” identification testimony was the only
non-circumstantial evidence used to convict him and the trial court erred by instructing the jury
using the disjunctive “or” rather than “and” in enumerating the factors in IPI 3.15.
¶ 10 Defendant attached pages from his brief on direct appeal, which contended that the trial
court abused its discretion in finding that E.E. was competent as a witness because she “lacked an
appreciation of right and wrong and *** was unable to distinguish between fantasy and reality.”
The State did not file a response to the supplemental petition.
¶ 11 On May 11, 2021, the circuit court dismissed defendant’s petition in a written order. The
court noted that defendant “submitted” his section 2-1401 petition on November 5, 2020, and
“filed” a motion for leave to supplement the petition on February 9, 2021. The court stated that it
“conducted an ex parte review of [defendant’s] filings,” and found that defendant’s convictions
were not void because the trial court possessed jurisdiction over defendant’s case. Further, IPI 3.15
was modified in 2003 to remove the “or” conjunction between the factors, the modification did
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No. 1-21-0692
not apply retroactively on collateral review, and in any event, the trial evidence was not closely
balanced. The written order did not address any other issues.
¶ 12 During video conference proceedings that day, the circuit court informed defendant that it
“did receive your 2-1401 petition that you filed in November of last year and then your motion
seeking leave to supplement your 2-1401 petition that you filed in February of this year.” The court
stated that it “reviewed your filing” and “your 2-1401 petition is going to be dismissed.” The court
summarized its holdings regarding the jury instruction issue and asked defendant whether
“anything else” needed to be addressed. Defendant responded, “[t]he competency hearing issue,
the second issue.” The following colloquy occurred:
“THE COURT: The only thing you have filed that I saw in the 2-1401 was your
eyewitness identification instruction. You filed all sorts of different things throughout the
years. I know there was a direct appeal that was affirmed. I know you filed an initial post-
conviction which was denied. ***
You already had another 2-1401 petition which was denied. Leave to file a
successive post-conviction petition was denied. Today what you had before me was this
instruction issue which I have ruled upon. ***
There is nothing pending before this Court now. ***
THE DEFENDANT: Okay. Take care.”
¶ 13 The half-sheet entry for May 11, 2021, contains a handwritten entry stating “2-1401
denied.” The electronic case summary and handwritten record of orders for May 11, 2021, each
reflect that a section 2-1401 petition was denied; neither distinguishes between the petition of
November 5, 2020, and the supplemental petition of February 9, 2021.
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No. 1-21-0692
¶ 14 On appeal, defendant argues that the circuit court denied him procedural due process and
did not comply with the rules of civil procedure where it dismissed his section 2-1401 petition
after reviewing only the supplement filed on February 9, 2021. Defendant contends that the court’s
failure to address his claim regarding the competency hearing, which he maintains was in his
original petition, supports his assertion that the court did not review the original petition of
November 5, 2020. Defendant does not challenge the judgment as to the jury instruction issue.
¶ 15 The State responds that the record does not affirmatively show that the circuit court did not
review the original petition, despite the court’s failure to explicitly mention the competency
hearing claim in its order or during proceedings on May 11, 2021. The State also comments that
the competency hearing issue is barred as res judicata. Further, the State argues that defendant
bears the burden to present a sufficiently complete record, and any doubts that arise from the
incomplete record, namely, the missing petition, should be held against him.
¶ 16 Section 2-1401 of the Code is a civil remedy that extends to criminal cases and provides a
statutory mechanism for vacating final judgments more than 30 days from their entry. 735 ILCS
5/2-1401 (West 2020); People v. Stoecker, 2020 IL 124807, ¶ 18. “A section 2-1401 petition for
relief from a final judgment is the forum in a criminal case in which to correct all errors of fact
occurring in the prosecution of a cause, unknown to the petitioner and court at the time judgment
was entered, which, if then known, would have prevented its rendition.” People v. Haynes, 192 Ill.
2d 437, 461 (2000).
¶ 17 “Relief under section 2-1401 is predicated upon proof, by a preponderance of evidence, of
a defense or claim that would have precluded entry of the judgment in the original action and
diligence in both discovering the defense or claim and presenting the petition.” People v. Vincent,
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No. 1-21-0692
226 Ill. 2d 1, 7-8 (2007). A section 2-1401 petition is “not designed to provide a general review of
all trial errors nor to substitute for direct appeal.” (Internal quotation marks omitted.) Haynes, 192
Ill. 2d at 461. A trial court may sua sponte dispose of a 2-1401 petition when it is clear on its face
that the defendant is not entitled to relief as a matter of law. Vincent, 226 Ill. 2d at 12. Where a
section 2-1401 petition was decided without an evidentiary hearing, we review de novo the circuit
court’s judgment. Id. at 18.
¶ 18 As a preliminary matter, defendant’s section 2-1401 petition of November 5, 2020, is not
included in the record on appeal.
¶ 19 Normally, a defendant’s failure to present a complete record for review “will trigger a
presumption favorable to the judgment from which the appeal is taken.” People v. Smith, 2021 IL
App (1st) 190421, ¶ 56. However, this rule is relaxed where the defendant is not at fault for the
incomplete record and establishes a colorable need for the missing portion of the record for
appellate review. Id.
¶ 20 Here, the record does not show that the section 2-1401 petition of November 5, 2020, was
docketed by the clerk of the circuit court. Although the court commented on May 11, 2021, that
“[t]he only thing *** that I saw in the 2-1401 was [the] eyewitness identification instruction,”
which was the issue raised in the supplemental petition, the court’s written order and verbal
comments that day indicate that copies of both the November 5, 2020, petition, and the February
9, 2021, supplemental petition, were before the court. It is unclear how the circuit court obtained
a copy of the petition or why it is not included in the record on appeal.
¶ 21 In defendant’s opening brief, counsel asserts that in November 2021, she unsuccessfully
attempted to locate the November 2020 petition in the Cook County Court Clerk’s file and obtain
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No. 1-21-0692
it from defendant. Counsel contends that the usual presumption against defendant should not apply
because defendant is not at fault for the incomplete record.
¶ 22 Even accepting counsel’s representations, however, defendant would not be entitled to
relief in this appeal. This court may affirm on any basis in the record (see People v. Nitz, 2012 IL
App (2d) 091165, ¶ 13), and it is clear from defendant’s supplemental petition of February 9, 2021,
and his comments during proceedings on May 11, 2021, that the November 5, 2020, petition
challenged the trial court’s ruling regarding E.E.’s competence. Defendant previously raised this
issue on direct appeal and, therefore, it is barred as res judicata. See, e.g., People v. Stolfo, 2016
IL App (1st) 142396, ¶ 29 (“ ‘a section 2-1401 petition is not to be used as a device to relitigate
issues already decided or to put in issue matters which have previously been or could have been
adjudicated.’ ” (quoting Hirsch v. Optima, Inc., 397 Ill. App. 3d 102, 110 (2009))).
¶ 23 Moreover, “the purpose of a section 2-1401 petition is to bring facts to the attention of the
circuit court which, if known at the time of judgment, would have precluded its entry.” Haynes,
192 Ill. 2d at 463. Here, neither the record on appeal nor defendant’s brief on appeal contains any
indication that the section 2-1401 petition of November 5, 2020, alleged new facts. Rather,
defendant’s supplemental petition included pages from his brief on direct appeal addressing the
trial court’s ruling on E.E.’s competency. See Stolfo, 2016 IL App (1st) 142396, ¶ 29 (using a
section 2-1401 petition “as a second opportunity to raise arguments that were, or could have been,
made in a direct appeal” would “conflict with our precedent *** favoring finality of judgments”
(internal quotation marks omitted)). As defendant’s claim regarding E.E.’s competency is barred
by res judicata, and defendant does not challenge the circuit court’s ruling regarding the jury
instruction issue, defendant is not entitled to relief in this appeal.
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¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 25 Affirmed.
-9- | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483595/ | 2021 IL App (1st) 200497-U
No. 1-20-0497
Order filed November 14, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
MARK SANDRZYK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 20 M1 040008
)
M&M LIMOUSINE SERVICES, ) Honorable
) Patricia M. Fallon,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Hyman and Coghlan concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment is affirmed where the appellant’s opening brief fails to
comply with Illinois Supreme Court Rule 341(h) and the record on appeal is
insufficient to resolve the issue on appeal.
¶2 Defendant M&M Limousine Services appeals a judgment entered by the circuit court in
favor of plaintiff Mark Sandrzyk and against defendant in the amount of $989. On appeal,
defendant alleges the trial court miscalculated the damages to which plaintiff was entitled. We
affirm.
No. 1-20-0497
¶3 The record on appeal does not contain a report of the trial court proceedings. The following
facts are gleaned from the 13-page common law record, which includes plaintiff’s pro se complaint
and the trial court’s order entered after trial.
¶4 On January 6, 2020, plaintiff filed a pro se complaint alleging that he paid defendant $1728
for a 36-passenger limousine bus service, but defendant only provided a 29-passenger limousine
bus that cost $702. Plaintiff requested $1026 in damages, the price difference between the service
for which he paid and the service he received. On February 18, 2020, following a trial at which
both parties were present, the circuit court entered judgment in favor of plaintiff and against
defendant in the amount of $989.
¶5 Defendant filed a timely pro se notice of appeal. No response brief having been filed, this
court entered an order taking the case on plaintiff’s brief only. See First Capitol Mortgage Corp.
v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶6 On appeal, defendant contends the price difference between the two services was $112.50,
not $1026. It argues the trial court “[f]ailed to notice the date differance [sic] and price differance
[sic].”
¶7 Our review of defendant’s appeal is hindered by its failure to fully comply with Illinois
Supreme Court Rule 341 (eff. May 25, 2018), which “governs the form and content of appellate
briefs.” McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. Defendant’s pro se opening brief fails
to conform with Illinois Supreme Court Rule 341(h) (eff. May 25, 2018), as the brief does not
contain a table of contents, a statement regarding the applicable standard of review or this court’s
jurisdiction, a statement of facts containing “the facts necessary to an understanding of the case,”
or an argument containing “citation of the authorities and the pages of the record relied on.” Rather,
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No. 1-20-0497
defendant’s brief consists only of a few lines arguing the trial court erred and the following
allegations:
“The Difference is 112.50. Not 1026.00 he came up with the 1026.00 [b]y asking
for an other [sic] quote in December. The Prices in December are lower then [sic]
September because there is more demand of service in September then [sic] December.
The Judge failed to see how the prices are different between the 2 months so did
Mark.”
¶8 Compliance with the procedural rules of Rule 341(h) is mandatory. McCann, 2015 IL App
(1st) 141291, ¶ 12. This court will not impose a more lenient standard for pro se litigants.
Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 528 (2001) (“Pro se litigants are presumed to have
full knowledge of applicable court rules and procedures.”); see also People v. Fowler, 222 Ill. App.
3d 157, 165 (1991) (“[A] pro se litigant must comply with the rules of procedure required of
attorneys, and a court will not apply a more lenient standard to pro se litigants.”). “This court has
the discretion to strike an appellant’s brief and dismiss an appeal for failure to comply with Rule
341.” Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77. However, because defendant made
an effort to present its appeal by use of the approved form brief and the issue in this case is simple,
we choose not to dismiss the appeal on that ground. See Harvey v. Carponelli, 117 Ill. App. 3d
448, 451 (1983).
¶9 Nevertheless, deficiencies in the record still prevent us from reaching the merits of this
appeal. “Where it is alleged that the evidence presented was actually insufficient to support the
court’s finding, the burden of preserving said evidence rests with the party who appeals from said
order.” Foutch v. O’Bryant, 99 Ill. 2d 389, 394 (1984). Thus, as the appellant, it is defendant’s
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No. 1-20-0497
burden to provide a complete record for review in the appellate court to support a claim of error.
Id at 391. If no such record is provided, “it will be presumed that the order entered by the trial
court was in conformity with law and had a sufficient factual basis.” Id. at 392. This is because, in
order to determine whether there was actually an error, a reviewing court must have a record before
it to review. Id.
¶ 10 The common law record shows the trial court held a trial on February 18, 2020. Defendant
has not filed a report of proceedings, bystander’s report, or agreed statement of facts reflecting the
facts asserted at the trial, the arguments the court heard, and the basis for the court’s decision. See
Ill. S. Ct. R. 323(c), (d) (eff. July 1, 2017). We therefore must presume that the court acted in
conformity with the law and ruled properly after considering the evidence before it at trial (Corral
v. Mervis Industries, Inc., 217 Ill. 2d 144, 156-57 (2005)), and have no basis for disturbing the trial
court’s judgment. Foutch, 99 Ill. 2d at 391-92.
¶ 11 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 12 Affirmed.
-4- | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483597/ | 2022 IL App (1st) 210590-U
No. 1-21-0590
Order filed November 14, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 DV 61746
)
KENNETH COPELAND, ) Honorable
) Tommy Brewer,
Defendant-Appellant. ) Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Hyman and Coghlan concurred in the judgment.
ORDER
¶1 Held: The trial court’s denial of defendant’s posttrial motion claiming ineffective
assistance of counsel is affirmed where counsel’s decision not to raise self-defense,
but instead, rely on the State’s inability to prove its case, was reasonable trial
strategy.
¶2 Following a bench trial, defendant Kenneth Copeland was convicted of domestic battery
(720 ILCS 5/12-3.2(a)(1) (West 2018)) and sentenced to six months of conditional discharge and
an anger management program. On appeal, defendant contends that his trial counsel was
No. 1-21-0590
ineffective for failing to raise a self-defense argument, call three witnesses and introduce medical
records and a police report in support of such an argument, and use medical records and social
media posts to impeach the victim. For the reasons that follow, we affirm.
¶3 Defendant’s conviction arose from a physical altercation with his sister, Katrina Copeland,
on August 14, 2019, during a family gathering at their mother’s house in Matteson, Illinois. 1
Following arrest, defendant was charged with domestic battery. The misdemeanor complaint
alleged that defendant knowingly caused bodily harm to Katrina in that he threw her to the ground
and punched her twice in the head.
¶4 Defendant was represented at trial by Ronald Draper. On the morning of trial, the State
tendered Draper a compact disc containing Katrina’s medical records. The trial court asked Draper
whether he would be able to view the records in the court library. Draper said he did not know, but
that he did not think the medical records were “that germane to the case anyway.”
¶5 At trial, Katrina testified that on the day in question, numerous members of her family
gathered at her mother’s house. By the time of the events at issue, the only family members still at
the house were Katrina; defendant; their mother, Barbara Copeland; their sister, Kimberly
Copeland; defendant’s wife, Rosio Copeland; and defendant’s two small children.
¶6 Around 6:45 p.m., Katrina and defendant were “having a back and forth verbal argument”
while she looked for her shoes under the dining room table. Defendant started to take a glass of
water to Barbara, who was in her bedroom “down the steps,” but then ran back up the stairs with
the glass of water. As Katrina was “coming up from looking under the table,” he threw water in
1
Because many of the members of defendant’s family share last names, we will refer to them by
their first names if referenced more than once.
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No. 1-21-0590
her face. He then grabbed her arms, threw her onto the floor, and repeatedly hit the back of her
head and neck with the glass. When Katrina tried to stop him, she “got a cut in [her] hand.” She
also suffered two large lacerations on her neck and multiple lacerations throughout her scalp and
behind her ear. Defendant stopped striking Katrina when Kimberly pulled him off her. Eventually,
Katrina went to the police station and then the emergency room, where she received a total of 32
stitches to her head, neck, and hand.
¶7 On cross-examination, Katrina acknowledged that she had used the name “Katrina Shakur”
on her Facebook page. She clarified that at some point while defendant was hitting her with the
glass, the glass broke. When asked to “identify the injury in the back of your head,” Katrina
answered that Draper should ask the emergency room doctor. The court interjected, asking Draper
whether he had reviewed the medical records. Draper answered, “No, Judge. That’s not my
question. My question is, can you identify the lacerations that you say you have in the back of the
head?” Katrina answered, “There are all lacerations all through my scalp. You should look at the
medical report.” The court interjected again, stating, “Counsel, I think you should review the
medical reports.” Draper answered, “Okay, Judge. I’ll move on.” Thereafter, Katrina denied
threatening, striking, or touching defendant.
¶8 Kimberly testified that around 6:45 p.m., defendant and Katrina were “going back and forth
with words” regarding how to lay their other sister to rest, as she had passed away that morning.
Katrina called defendant “a name” as he was walking downstairs with a glass of water. He ran
back up the stairs, charged at Katrina, and threw water in her face. Katrina bent down “like this
trying to get the water out of her face.” Defendant swung with the hand holding the glass and hit
Katrina. He then threw Katrina to the floor and “proceeded to hit her again with his fist on the side
-3-
No. 1-21-0590
of her face, on the side of her neck like this to her head.” Defendant punched Katrina three or four
times before Kimberly pulled him off her. Katrina did not strike defendant at any time or make
any prior physical contact with him.
¶9 According to Kimberly, Rosio and defendant’s two young children were present for the
physical altercation. Kimberly had “screamed” to Rosio to help her get defendant off Katrina, but
Rosio did not help. Barbara took Kimberly’s phone and told Kimberly she “was not going to call
the f***ing police on her son.” Defendant, Rosio, and the children left shortly thereafter. Kimberly
used towels to try to stop the bleeding from the wounds on Katrina’s neck. She then accompanied
Katrina to the police station and the emergency room.
¶ 10 On cross-examination, Kimberly stated that she saw cuts or bruises on the back of Katrina’s
head. She acknowledged that earlier on the day in question, she had argued with another sister,
Joyce Keith. Family members, including defendant, interceded and “pushed [them] apart before it
could be physical.” Kimberly denied having had a physical confrontation with Joyce’s daughter,
Lauren Stewart, that afternoon. However, she admitted having been arrested that day for battering
Stewart. She stated that the case against her was dismissed due to insufficient evidence, but
acknowledged that an order of protection was put in place.
¶ 11 Matteson police officer Jill Flores testified that she spoke with Katrina and Kimberly at the
police station. She learned that the family had gathered to make plans for a service for a sister who
had recently passed away, and “that there was an altercation between some family members mainly
with her brother, [defendant].” Flores observed that Katrina was bleeding and had some cuts on
the left side of her neck and behind her left ear.
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No. 1-21-0590
¶ 12 On cross-examination, Flores stated that Katrina reported she had been punched in her head
by her brother. She did not recall whether Katrina reported any cuts on her body, the back of her
head, or the top of her head. Katrina did not say she struck her brother. Rather, she said she fought
back and “the initial was him throwing water in her face.” Katrina also reported that defendant
pushed her to the ground and started striking her while she was on the ground. She further stated
she was not sure whether his cutting her was intentional or not.
¶ 13 On redirect, Flores clarified that Katrina reported that when defendant threw her to the
floor, the glass broke in his hand. He struck her twice in the head with his closed fist and, when
she got up off the floor, she realized she was bleeding. Katrina told Flores she “did not know if it
was intentionally that he cut her or if it was in the tussle that she received the cut.”
¶ 14 Defendant made a motion for a directed finding, which the trial court denied.
¶ 15 Joyce testified for the defense that around 5:30 p.m. on the day in question, she went to
Barbara’s house to discuss locations for her sister’s memorial service with various family
members. She and Katrina were “arguing going back and forth.” Kimberly called Joyce a name
and she and Joyce were “in each other’s face.” Defendant started pushing Kimberly out of the
room. When Stewart told everyone to stop, Kimberly swung at Stewart and hit her in the lip. Joyce
“started going ballistic towards Kimberly” but no one touched anyone. Joyce’s husband, Dexter
Keith, grabbed Joyce and Stewart and took them outside. Joyce did not go back inside Barbara’s
house that day.
¶ 16 Stewart testified that she witnessed a verbal altercation between Joyce and Katrina. When
she tried to break up the argument, Kimberly punched her in the lip. Stewart left Barbara’s house
five minutes later.
-5-
No. 1-21-0590
¶ 17 Barbara testified that on the day in question, Kimberly “had harsh words directed towards
Joyce,” Kimberly hit Stewart, and there was a “struggle” between defendant and Katrina. When
asked whether she was present for the struggle between defendant and Katrina, Barbara answered,
“I was coming up the stairs as they were getting ready to hit the floor.” She specified that she saw
defendant tossing water on Katrina, after which Katrina “ran into him” or “barrel[ed] into him”
and “they hit the floor.” Barbara did not see defendant “slam” Katrina to the floor. Rather, Katrina
“got on the floor” due to the water, which had caused the floor to be slippery. Defendant and
Katrina “were struggling back and forth” and seemed to be rolling or struggling to get up. Barbara
did not see defendant punch Katrina at any time and did not see a glass in his hand.
¶ 18 Barbara saw Kimberly jump on defendant’s back. However, when asked whether anyone
separated defendant and Katrina, she said “it was more so of them getting up on their own.”
Barbara heard Katrina tell defendant, “I’m going to kill you. You’re going to die. You’re going to
pay for this.”
¶ 19 On cross-examination, Barbara stated that although she had not made it all the way up the
stairs, she could see “that whole area.” She clarified that she saw defendant toss water on Katrina,
Katrina “barreling into” defendant, and the two making physical contact as they “slipped and hit
the floor.” She did not know where the glass was at the time, but did not see it in defendant’s hand.
Barbara agreed that she did not attempt to separate defendant and Katrina. When asked whether
Rosio was present, Barbara answered, “[Rosio] was there, yes, but I can’t recall if she was still in
the room because I know she had gotten the babies and taken them outside.” Barbara stated that
after defendant and Katrina got up from the floor, she saw that Katrina’s neck and defendant’s
hand were cut. She attempted to help Katrina. No one attempted to call the police.
-6-
No. 1-21-0590
¶ 20 In closing, Draper argued that the court should find Barbara’s testimony credible, as she
was not involved in any arguments with any of her family members. He characterized Katrina and
Kimberly as “evasive” and asserted that the credible evidence at trial did not establish defendant
“ever attempted to create bodily harm toward Katrina.” Further, highlighting Kimberly’s and
Joyce’s testimony that defendant separated them earlier in the day, thereby preventing a physical
confrontation, Draper argued that such action showed defendant was not “an individual who would
choose to batter any of his sisters.” Draper concluded that the evidence left more than a reasonable
doubt of defendant’s guilt.
¶ 21 The State countered that Katrina and Kimberly were credible and, in contrast, Barbara
“didn’t see much of what happened” and was not credible.
¶ 22 The court found defendant guilty of domestic battery. In announcing its judgment, the court
stated it found Katrina and Kimberly credible and Barbara incredible. It further noted that Katrina
suffered some severe injuries and stated, “I don’t think she suffered them from just merely falling.”
¶ 23 Following trial, two attorneys from the Blake Horwitz Law Firm requested leave to file an
appearance in place of Draper. The trial court denied the request but allowed the new attorneys to
appear as co-counsel.
¶ 24 The new attorneys filed a timely motion for a new trial, arguing that Draper provided
ineffective assistance of counsel. Factually, the motion alleged that Katrina charged at defendant,
he threw water in her face to defend himself and dropped the glass, and then, while he struggled
to defend himself from Katrina, they both slipped and fell onto the wet floor, cutting themselves
on the broken glass. The motion further alleged that defendant and Rosio “both wanted to testify,
-7-
No. 1-21-0590
but Mr. Draper convinced them not to as he was confident that Barbara’s testimony would be
enough.”
¶ 25 The motion asserted that Draper was ineffective for failing to present self-defense as an
affirmative defense, for convincing defendant and Rosio not to testify despite their desire to do so,
and for failing to call Dexter to testify, even though he was present at court and waiting to be
called. The motion further alleged Draper was ineffective for failing to review Katrina’s medical
records to determine the nature of her injuries and the comments she made to medical personnel,
and for failing to impeach her with threatening posts she made on social media. Finally, the motion
contained an allegation that Draper had a history of disciplinary action. The motion asserted that
Draper’s actions could not be justified as trial strategy and that his failures prejudiced the defense.
¶ 26 Defendant’s new attorneys thereafter filed an amended motion for a new trial, adding
details of defendant’s and Rosio’s proposed testimony, including that they would have testified
that less than ten minutes prior to defendant throwing the water, Katrina had attacked him,
repeatedly punching him in the head and back. The amended motion also included details of
Dexter’s proposed testimony that Katrina had attacked and repeatedly punched defendant earlier
in the evening. The motion added an allegation that Draper had failed to call defendant’s sister,
Elaine Barnes, to testify that Katrina called her after the incident and stated she did not need an
ambulance, and failed to introduce defendant’s medical records, which revealed he was diagnosed
with a concussion one week after the incident. The motion further alleged that Katrina’s medical
records revealed she told medical personnel that she suffered her injuries during a fight with her
boyfriend. Attached to the motion were excerpts of defendant’s medical records, an excerpt of
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No. 1-21-0590
Katrina’s medical records, screenshots of two social media posts, and affidavits from Rosio and
Dexter.
¶ 27 When the case was called on August 19, 2020, Draper was not present. The trial court
indicated it was “not going to hear witnesses in support of [the] motion,” as the motion was
“extensive” in describing what the witnesses’ testimony would have been had they been called at
trial. Defense counsel argued that Draper’s representation of defendant was “substantially
inadequate,” as he had not presented evidence from three witnesses that Katrina punched defendant
four times in the head and face ten minutes before the battery at issue, and then threatened to kill
defendant just before charging him with fists raised and hitting him in the head and face. Counsel
noted that the defense had medical records to corroborate the claim that defendant was punched in
the head, as well as impeaching evidence of Kimberly in that three witnesses were available to
testify that Katrina refused an ambulance when asked if she wanted one.
¶ 28 The State countered that two of the new proposed witnesses were not present during the
incident and that defendant chose to exercise his right to remain silent at trial. The State argued
that the attached medical records pertaining to defendant did not include an actual diagnosis of
concussion and those pertaining to Katrina contained a scrivener’s error in referring to a
“boyfriend.” The State also argued that not calling 911 was not the same as calling an ambulance
and that Draper’s 12-year-old attorney disciplinary matters did not have any bearing on the instant
case. The State concluded that Draper had called three credible witnesses, that none of the
proposed witnesses would “bear any significant weight,” and that Draper was not ineffective.
¶ 29 In rebuttal, defense counsel argued that there would be new testimony showing that
Kimberly struck defendant in the head and face 10 minutes before the alleged battery, and that
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No. 1-21-0590
such testimony would both show defendant’s state of mind and speak to Kimberly’s credibility.
Counsel asserted that the defense had shown the existence of errors made by trial counsel that
would undermine confidence in the outcome of the trial.
¶ 30 The trial court continued the case for a written ruling.
¶ 31 On August 28, 2020, defense counsel filed a motion to supplement the amended motion
for a new trial. The motion included an allegation that Katrina made a specific threat to kill
defendant immediately before she charged at him with clenched fists, and then hit him in the head
and face. The motion also asserted that, had they been called as witnesses, defendant, Rosio,
Dexter, and Elaine would have testified that Katrina had an aggressive and violent character, and
detailed several incidents as examples. According to the motion, the testimony would have
supported a finding that Katrina was the initial aggressor and would have severely impeached her
credibility. Counsel also attached a supplemental police report noting that defendant had “some
bruising under his right eye,” and asserted that although the report would have supported testimony
that Katrina punched defendant, Draper did not call the authoring officer to testify.
¶ 32 When the case was called on October 14, 2020, Draper was present. The trial court
reconsidered its position about not hearing live testimony from witnesses. The State pointed out
that the motion was before the court for ruling, but the court indicated it “would like to make that
ruling after attorney Draper has testified in this matter” and that the defense “may call four
witnesses, maybe one.” With Draper present, the court set a date and time for a hearing.
¶ 33 On November 24, 2020, new defense counsel filed a motion to hold Draper in contempt of
court. According to the motion, Draper had not appeared for the scheduled hearing or for a
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No. 1-21-0590
rescheduled hearing, and subsequent attempts to subpoena him were unsuccessful. The trial court
issued, but later withdrew, a rule to show cause against Draper for his failure to appear.
¶ 34 When the case was ultimately called for hearing on the motion for a new trial on March 9,
2021, Draper was not present.
¶ 35 At the hearing, Rosio testified that around 6 p.m. on the day in question, she was at
Barbara’s house with her two small children. Barbara, defendant, Joyce, Dexter, Stewart,
Kimberly, and Katrina were also at the house. Kimberly and Joyce had an argument. When
defendant moved to stand between them, Katrina got up from where she had been sitting on the
couch and punched him in the head four times. Joyce and Stewart announced they were leaving.
Defendant briefly went into Kimberly’s room and then, a minute or two later, went down the stairs
to the basement. Another minute or two later, defendant came back upstairs and asked where Joyce
and Dexter were. Rosio told him they had left. Defendant went into the kitchen.
¶ 36 When defendant came out of the kitchen, he said to Katrina, “[W]e weren’t raised like this,
you could have helped me deescalate the whole situation.” Katrina responded, “[N]o one’s gonna
tell me what to do. No M-fer is going to tell me what to do.” She also said, “[M]y mom’s gonna
have two funerals today,” and “I’ll kill you.” Rosio described Katrina as “extremely mad” and said
that her hands were “wailing in the air.” Katrina then jumped off the couch and “went towards”
defendant, yelling, screaming, cursing, and saying “I’m going to kill you.” Defendant, who had a
glass of water in his hand, threw the water at Katrina. Katrina stopped for a moment and then “just
started swinging at him, throwing punches at him.” According to Rosio, Katrina punched
defendant’s face and head.
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No. 1-21-0590
¶ 37 At this point in the hearing, the trial court indicated that it would not consider Rosio’s
testimony and would not allow the State to cross-examine her. With regard to Dexter, the court
stated that the “thing that’s wrong with his [proposed] testimony” was that he was not present at
the moment where self-defense would have been at issue. As such, the court did not see “how he
could make the case.”
¶ 38 The court denied the defense request to call other witnesses who would “give a different
account of what happened.” The court explained that it had judged the credibility of the witnesses
at trial, and stated, “But, counsel, I don’t see how calling witnesses to contradict the facts as I have
found them to be is helpful to your motion.” Reiterating that Rosio’s testimony was “just a
contradiction” of the trial testimony and that it had “made [its] findings,” the court stated that the
defense’s best witness would have been Draper. Given Draper’s absence at the hearing, the court
indicated it would hear testimony from defendant regarding his conversations with Draper and
what his expectations were of his attorney.
¶ 39 Defendant testified that he had spent at least 10 hours with Draper preparing for trial. Prior
to trial, he had told Draper that Katrina punched him on two occasions on the day in question: first,
she punched him four times when he was trying to break up a fight; and second, she punched him
after she threatened and charged him. With regard to the threats, defendant told Draper that Katrina
said she “was going to shoot my a*** and also that my mother will have two funerals.” According
to defendant, Draper said, “[O]kay, great, we’re going to use self-defense.” Draper also wrote
down Katrina’s threats and said the defense “would use it.” However, no testimony was elicited at
trial regarding Katrina threatening or punching him.
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No. 1-21-0590
¶ 40 Defendant further testified that he saw a doctor the day after the incident and again the
following week. He gave medical records he received from those visits to Draper. The records
were not introduced at trial and no medical professionals were called to testify at trial.
¶ 41 On several occasions prior to trial, defendant discussed raising self-defense with Draper,
and Draper had defendant and Rosio describe the incident to him several times. It was defendant’s
understanding that the affirmative defense would be utilized at trial, and that he, Rosio, Joyce,
Dexter, and Barbara would all testify. Draper told defendant that he would subpoena Dexter.
However, Draper did not do so, and, as a result, Dexter had to leave the courthouse to go to work
and was unable to testify at trial. Finally, defendant stated that he and Draper prepped for him to
testify, and that he found out he would not be testifying at trial “[r]ight before it ended.”
¶ 42 On cross-examination, defendant clarified that most of the 10 hours he spent with Draper
preparing for trial included Rosio. He acknowledged that he was present for trial, that Rosio was
in the courthouse, and that Dexter was in the courthouse at least for the morning.
¶ 43 Defendant’s new attorneys argued that Draper was ineffective for failing to raise a self-
defense argument and failing to present evidence to support such an argument in the form of
medical records and testimony from defendant, Rosio, and Dexter. The attorneys asserted that had
Draper presented this evidence, it would have undermined confidence in the outcome of the trial.
They argued that self-defense was “really the only defense [defendant] had” because multiple
witnesses testified he threw water in Katrina’s face, which “in and of itself could be considered a
battery,” but no evidence was presented showing he had done so because Katrina punched him
twice earlier in the day and threatened him. They further argued that Dexter’s testimony would
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No. 1-21-0590
have been relevant to a claim of self-defense because it would have spoken to the identity of the
initial aggressor and to defendant’s state of mind.
¶ 44 The State argued that where defendant testified he and Draper spent at least 10 hours
together, Rosio was present for most of that time, and they discussed self-defense, the conclusion
to be drawn was that Draper did not feel raising self-defense was appropriate. The State noted that
Draper was attentive at trial, made objections, asked for clarification regarding questions that were
asked, and called three witnesses to testify. Asserting that “attorneys are given a pretty tremendous
amount of latitude when it comes to trial strategy,” the State maintained that Draper was not
ineffective.
¶ 45 The trial court denied defendant’s motion. In doing so, the court stated it had observed the
witnesses at trial, found Katrina’s and Kimberly’s testimony “to be extremely credible,” found
Stewart’s testimony not relevant to the issue of whether defendant committed battery, and found
Barbara’s testimony incredible. The court also stated that it had observed Draper at trial, and noted
he had called witnesses and cross-examined the State’s witnesses “in a very professional manner
in a high degree of preparedness.” The court then stated as follows:
“Now, if they discussed self-defense, maybe it was the trial strategy. I can’t rule it
out. I can’t rule out the fact that he didn’t find merit to their notion. I cannot think of a
reason why an attorney would have testimony about striking but none about the
complainant against the defendant, but allowed the testimony, and just say, well, we got
self-defense but we’re just not using it. I just don’t believe that.
I think what we have here is a contradiction in what after the fact the defendant
thought that the evidence would show. But I found nothing in counsel’s action during the
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No. 1-21-0590
pendency of the case or the trial that said his action prejudiced the defendant to the extent
that it denied him a fair trial. On the basis of that, I’m denying the motion for a new trial.”
¶ 46 On April 13, 2021, the trial court sentenced defendant to six months of conditional
discharge and an anger management program. Defendant filed a timely notice of appeal, specifying
that he was appealing from the denial of his “motion for a new trial *** and conviction.”
¶ 47 On appeal, defendant contends that he received ineffective assistance of trial counsel.
¶ 48 Every defendant has a constitutional right to the effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8. Claims of ineffectiveness are governed by the
standard set forth in Strickland v. Washington, 466 U.S. 668, (1984). See People v. Albanese, 104
Ill. 2d 504 (1984). To establish a claim of ineffective assistance of counsel, a defendant must show
that his counsel’s performance was deficient and that the deficient performance prejudiced him.
Strickland, 466 U.S. at 687.
¶ 49 More specifically, a defendant must demonstrate that his counsel’s performance was
objectively unreasonable under prevailing professional norms (id. at 694), overcome a “strong
presumption” that counsel’s alleged error was part of a “sound trial strategy” (People v. Houston,
226 Ill. 2d 135, 144 (2007)), and establish that there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different”
(Strickland, 466 U.S. at 694). In reviewing a trial court’s denial of a defendant’s posttrial motion
claiming ineffective assistance of counsel, we will reverse only if the trial court’s decision was
manifestly erroneous. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25. “Manifest error” has
been defined as error that is clearly plain, evident, and indisputable. Id.
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No. 1-21-0590
¶ 50 In this court, defendant contends that Draper was ineffective for failing to raising a self-
defense argument at trial, and argues that his decision not to do so cannot be justified as trial
strategy that is immune from a claim of ineffectiveness. Defendant denies hitting Katrina or
causing the injuries to her head and neck. Nevertheless, he asserts that Draper had no strategic
reason for not raising self-defense as an affirmative defense, as it was “undisputed that [he] threw
water in Katrina’s face” and this “mere act ***, without justification, could constitute a battery.”
He argues that Draper should have, but failed to, supported a self-defense argument by: (1) calling
him, Rosio, and Dexter to testify; (2) introducing his medical records; (3) introducing a police
report documenting his injuries; (4) reviewing and introducing Katrina’s medical records; and (5)
introducing Katrina’s threatening Facebook posts.
¶ 51 Whether to present a particular theory of defense is a decision made by trial counsel that
constitutes a matter of trial strategy. People v. Little, 2021 IL App (1st) 181984, ¶ 52. Specifically,
“it is counsel’s decision, as a matter of trial strategy, whether to assert an affirmative defense of
self-defense.” People v. Edmondson, 2018 IL App (1st) 151381, ¶ 40. Typically, a decision that
involves a matter of trial strategy will not sustain a claim of ineffective assistance of counsel.
People v. Sanchez, 2014 IL App (1st) 120514, ¶ 30. Because counsel’s strategic choices are
“virtually unchallengeable,” the fact that another attorney may have chosen a different strategy, or
that the strategy employed by counsel was ultimately unsuccessful, does not establish
ineffectiveness. People v. Fuller, 205 Ill. 2d 308, 331 (2002). Errors in trial strategy constitute
ineffective assistance only if counsel entirely fails to conduct any meaningful adversarial testing.
People v. Custer, 2019 IL 123339, ¶ 39.
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No. 1-21-0590
¶ 52 In this case, the record demonstrates that Draper’s strategy was to rely on the State’s
inability to prove defendant committed the charged offense, that is, that he knowingly caused
bodily harm to Katrina by throwing her to the ground and punching her in the head. To this end,
Draper called Barbara as a witness to testify that defendant did neither of these things, and, in
closing arguments, asserted Barbara was credible and suggested Katrina and Kimberly were not.
Moreover, according to the initial posttrial motion, Draper discussed this defense strategy with
defendant and Rosio, as he “convinced them not to [testify] because he was confident that
Barbara’s testimony would be enough.” Relying on the State’s inability to prove its case is a
reasonable trial strategy. See People v. Gillespie, 276 Ill. App. 3d 495, 503 (1995).
¶ 53 A theory of self-defense would have been inconsistent with the theory put forth at trial that
defendant merely threw water at Katrina, who ran into him, they both slipped on the water and fell
to the floor, and any injuries that resulted were incurred accidentally during their ensuing struggle
to regain their footing. Defendant’s current argument for self-defense is premised on his act of
throwing water in Katrina’s face, rather than on the charged conduct of throwing Katrina to the
ground and punching her. However, the affirmative defense of self-defense has the legal effect of
admitting that the acts occurred, but denying legal responsibility for them. People v. Freneey, 2016
IL App (1st) 140328, ¶ 32. The raising of self-defense “ ‘necessarily constitutes an admission by
the defendant that he committed the crime for which he is being prosecuted.’ ” People v. Cacini,
2015 IL App (1st) 130135, ¶ 44 (quoting People v. Raess, 146 Ill. App. 3d 384, 391 (1986)). Thus,
in order to invoke self-defense, defendant would have had to admit to committing the battery as
charged.
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No. 1-21-0590
¶ 54 Here, the conduct alleged in the criminal complaint was that defendant threw Katrina to
the ground and punched her. A claim of self-defense would have been inconsistent with the theory
put forth at trial that he did not take either of these actions and Katrina’s injuries were accidental.
See Freneey, 2016 IL App (1st) 140328, ¶ 32 (a defendant “cannot on one hand argue that he only
accidentally struck [the victim] but on the other argue that he intentionally and justifiably struck
[the victim] in self-defense”); People v. Jones, 234 Ill. App. 3d 1082, 1098 (1992) (a theory of
self-defense is inconsistent with a theory that the defendant was not involved in the charged crime).
An attorney’s choice of trial strategy “is virtually unchallengeable if such choice was made after a
thorough investigation of the law and facts relevant to plausible options.” Jones, 234 Ill. App. 3d
at 1098. The record in this case shows that Draper investigated and prepared defendant’s case and
reasonably chose to argue his innocence of the charged battery, rather than a justification for it.
See id.
¶ 55 We cannot say that Draper entirely failed to conduct any meaningful adversarial testing of
the State’s case (see Custer, 2019 IL 123339, ¶ 39), or, in turn, that the trial court’s decision to
deny defendant’s posttrial claim of ineffective assistance of counsel was manifestly erroneous
(Tolefree, 2011 IL App (1st) 100689, ¶ 25). Given our determination that Draper’s decision not to
pursue a self-defense argument at trial was not objectively unreasonable under prevailing
professional norms, we need not address defendant’s arguments regarding the specific actions he
faults Draper for not taking in support of such a theory of defense.
¶ 56 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 57 Affirmed.
- 18 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483591/ | Filed 11/14/22 P. v. Snow CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079776
Plaintiff and Respondent,
v. (Super. Ct. No. SCS205658)
EDWARD LEROY SNOW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
David M. Rubin, Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Lise
Jacobson and Daniel Rogers, Deputy Attorneys General for Plaintiff and
Respondent.
In 2006, Edward Leroy Snow worked as a tow truck driver for Paxton’s
Towing (Paxton’s).1 While on leave to purportedly care for an ill relative, he
stole $80,000 from Paxton’s during a robbery in which the night dispatcher,
David S., was shot and killed. A few days later Snow told an accomplice, “Old
Dave never seen it coming.” A jury convicted Snow of first degree murder,
and this court affirmed the judgment. (People v. Snow (Sept. 19, 2012,
D058200) [nonpub. opn] (Snow I).)
Now a decade later, Snow appeals from an order denying his petition
for resentencing under former Penal Code2 section 1170.95 (now § 1172.6).
He contends that applying independent review, we should reverse because
there was insufficient evidence to support the court’s finding that he acted
with reckless indifference to human life. We reject his claims and affirm the
order.
FACTUAL AND PROCEDURAL BACKGROUND3
A. The Robbery and Murder
Paxton’s is owned by Larry L., who in addition to that business also
operated food stands at home improvement stores. The concession stands
generated a sizeable cash flow, mostly in small bills. About twice a week,
Larry collected that money and stored it in bags under his desk at Paxton’s.
Typically near the end of each month, he would dump the accumulated cash
on his desk and count it.
1 Dates are in 2006 unless otherwise specified.
2 Undesignated statutory references are to the Penal Code.
3 The factual background is based exclusively on the reporter’s transcript
from Snow’s murder trial. We have not considered the Attorney General’s
statement of facts in his brief, which is instead (and improperly) based on
facts recited in Snow I. (See § 1172.6, subd. (d)(3).)
2
Paxton’s employees knew large sums of cash were kept under Larry’s
desk. In August, Snow told a fellow tow truck driver, James Myers, “how
easy it would be to rob Paxton’s.” Elaborating, Snow said that the night
dispatcher, David S., could be “bopp[ed]” on the head and locked in a toilet
during a robbery. He promised Myers a share of the proceeds if he and
another tow truck driver, Terry Taylor, stayed away from Paxton’s on the
night he planned to commit the robbery.
About the same time, Snow took a leave of absence from Paxton’s,
purportedly to care for an ill relative in Kansas. On September 18, he
returned to San Diego in a Dodge van and met with Taylor to discuss the
robbery. Snow said he was “going to have two other people come in, grab
[David S.], [and] put him in the port-a-potty.” Snow explained he was
“thinking about” shutting off the power to Paxton’s and asked Taylor for the
location of the main power switch.
Paxton’s premises was secured by a barbed wire fence, two gates with
remote controlled electric locks (one for pedestrians, the other for vehicles),
and 16 surveillance cameras. There was even a hidden camera in the clock in
Larry’s office. To enter the facility, a person had to first identify themselves
to the dispatcher (e.g., as the registered owner of a towed car). If the person
belonged in the yard, the dispatcher would “buzz” them in, unlocking the
pedestrian gate. Video from the surveillance cameras was recorded by
equipment on the premises 24 hours/day, seven days a week.
On September 20—the day of the planned robbery—Snow again met
with Taylor, this time to buy methamphetamine. As the conversation turned
to the robbery, Snow showed Taylor a handgun and reminded him to keep
quiet about it.
3
David S. was working alone in dispatch that night. Myers and Taylor
were the only tow truck drivers on duty. Sticking to plan, they stayed away
from the yard.
A surveillance camera at a neighboring business recorded a vehicle
approach the locked Paxton’s gate at 9:13 p.m. Notably, its third brake light
(in the rear window) was not working. It stopped for about 15 seconds and
then entered the yard. Seven minutes later, all the lights at Paxton’s went
off. At 9:21 p.m., the vehicle exited.4
At about 9:30 p.m., Taylor called David S. by telephone and when
there was no answer, by two-way radio. But again, there was no response.
He and Myers returned to Paxton’s about 20 minutes later. The vehicle gate,
ordinary locked closed, was wide open. The door to Larry’s office had been
forced open. About $80,000 in cash was missing. So was the video recorder.
Taylor and Myers found David S. on the ground near the dispatch
office, dead. He had two gunshot wounds, one to the neck and the other in
the head, about five inches above the right ear. Soot found near the neck
wound indicated the shot was fired from close range. The neck wound may
have been survivable, but the head shot was not. Bullet fragments were
found in the brain. The next day Taylor confronted Snow about David’s
death. Snow replied, “We had to do it.”
Snow fled to Kansas after robbery. He bragged about living like a
“king,” watching his new 52-inch television.
In October, police executed a search warrant at Snow’s home in
Kansas. They found a bag in his bedroom with $25,000 in small bills.
4 The same vehicle returned at 9:25 p.m., drove through the still open
gate, and then exited one minute later. At trial, the prosecutor theorized
that Snow and his accomplices had first shot David S. in the neck and
returned to make sure he was dead by shooting him again in the head.
4
Another $8,400 was found in his pants pockets. Some of the bills had
distinctive pencil marks, which Larry identified as marks he made while
counting the money. Police also seized Snow’s Dodge van. Its rear window
brake light was inoperable.
B. Snow’s Petition for Resentencing
At Snow’s trial the court instructed the jury on malice aforethought
murder as well as felony murder (CALCRIM Nos. 520, 540A, 540B). After a
nine-day trial, the jury found Snow guilty of first degree murder. Under the
Three Strikes law, the court sentenced him to prison for 50 years to life.
In 2019, Snow filed a petition for resentencing under what is now
section 1172.6. The matter was assigned to judge David M. Rubin, who had
presided over Snow’s trial. After issuing an order to show cause, the court
conducted an evidentiary hearing. Neither side offered new evidence. The
court read the reporter’s transcript from the murder trial, the appellate
opinion in Snow I, and the parties’ points and authorities.
In a detailed 17-page decision, the court denied the petition. Although
the court was not persuaded that Snow was the “actual killer,” it found
beyond a reasonable doubt that he “acted as a major participant committing
the robbery while acting with reckless indifference to human life . . . .”
Focusing on the “reckless indifference” element, the court elaborated:
“Here, [Snow] acted with reckless indifference to human
life. [Snow’s] statements that ‘old Dave never saw it
coming’ and ‘I had to shoot him’ show he did not care about
[David S.’s] safety during the crime. The speed with which
the crime occurred . . . shows the decision to kill [David S.]
was quick, and little to no effort was made to stop it.
[Snow] used his familiarity with [David S.] to gain [his]
trust to let [Snow] into the tow yard. [Snow] was present at
the crime scene and the architect of the burglary and
5
robbery plan. The scheme included no effort to minimize
the violence to [David S.] . . . .”
DISCUSSION
A. Section 1172.6 Framework
Effective January 1, 2019, Senate Bill No. 1437 amended the felony-
murder rule by adding section 189, subdivision (e). It provides that a
participant in the qualifying felony can be convicted of felony murder only if
the person: (1) was the actual killer; (2) was not the actual killer but, with
the intent to kill, acted as a direct aider and abettor; or (3) was a major
participant in the underlying felony and acted with reckless indifference to
human life. (See People v. Gentile (2020) 10 Cal.5th 830, 842.) The
Legislature also amended the natural and probable consequences doctrine by
adding subdivision (a)(3) to section 188, which states that “[m]alice shall not
be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)
Under section 1172.6, persons convicted of felony murder or murder
based on the natural and probable consequences doctrine may petition the
sentencing court to vacate their convictions and be resentenced on any
remaining counts if they could not have been convicted of murder because of
these statutory changes. (See People v. Lewis (2021) 11 Cal.5th 952, 959–960
(Lewis).)
Where, as here, the petition states a prima facie case for relief, the
superior court is required to conduct an evidentiary hearing. At that hearing,
the prosecution must prove beyond a reasonable doubt that the petitioner is
guilty of murder, attempted murder, or manslaughter under amended
sections 188 and 189. (§ 1172.6, subd. (d)(3).) The trial court acts as
factfinder and determines whether the prosecution has met its burden.
6
(People v. Ramirez (2021) 71 Cal.App.5th 970, 984 (Ramirez).) “If the
prosecution fails to sustain its burden of proof, the prior conviction . . . shall
be vacated and the petitioner shall be resentenced on the remaining charges.”
(§ 1172.6, subd. (d)(3); see People v. Lamoureux (2019) 42 Cal.App.5th 241,
249.)
B. The Substantial Evidence Standard of Review Applies to Trial Court
Findings Under Section 1172.6, Subdivision (d)(3)
In reviewing trial court findings under section 1172.6, an unbroken line
of authority has applied the substantial evidence standard of review. (See,
e.g., People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements); People v.
Garrison (2021) 73 Cal.App.5th 735, 747; Ramirez, supra, 71 Cal.App.5th at
p. 985; People v. Williams (2020) 57 Cal.App.5th 652, 663; People v. Bascomb
(2020) 55 Cal.App.5th 1077, 1087.) Snow nevertheless maintains that we
should review the evidence independently. Citing primarily People v. Vivar
(2021) 11 Cal.5th 510 (Vivar), he contends that deference to a trial court’s
findings is inappropriate when those findings are “based on a cold record.”
Snow’s argument is undermined by Clements, which rejected an
identical claim. (Clements, supra, 75 Cal.App.5th at p. 301.) The Clements
court noted that in the analogous context of a Proposition 36 petition for
resentencing, “ ‘[E]ven if the trial court is bound by and relies solely on the
record of conviction to determine eligibility, [where] the question . . . remains
a question of fact . . . we see no reason to withhold the deference generally
afforded to such factual findings.’ ” (Ibid.) Similarly here, the trial court’s
ruling turns on a question of fact—whether Snow acted with reckless
indifference to human life.
Contrary to Snow’s assertions, Vivar does not change this analysis.
That case involved a motion to vacate a conviction under section 1473.7.
7
Under that statute, a person is entitled to relief if the trial court finds there
was prejudicial error affecting the person's ability to meaningfully
understand the immigration consequences of a criminal plea. (Vivar, supra,
11 Cal.5th at pp. 527–528.) The court in Vivar concluded that independent
review was appropriate, in part because (1) the issues involved in a section
1473.7 motion “are predominantly questions of law”; and (2) “the judge
adjudicating the resulting motion may never have participated in any of the
underlying proceedings and must rely entirely on a cold record.” (Vivar, at
pp. 524, 526–527.)
But here, and unlike in Vivar, whether Snow acted with reckless
indifference to human life is a quintessential question of fact. (See People v.
Clark (2016) 63 Cal.4th 522, 618 (Clark).) Moreover, Vivar is expressly
limited to section 1473.7 motions, and did not “disturb[ ] [the] familiar
postulate” that “ ‘an appellate court should defer to the factual
determinations made by the trial court’ ” regardless of whether such findings
were based on oral testimony or declarations. (Vivar, supra, 11 Cal.5th at
p. 528, fn. 7.) Indeed, Snow’s case is also materially distinguishable from
Vivar because the trial judge deciding his 1172.6 petition also presided at his
trial. Thus, unlike Vivar, factual determinations made in his petition for
resentencing cannot be said to have been made on a “cold record.”5
Accordingly, the substantial evidence standard of review applies in this
case. We review the entire record in the light most favorable to the order to
determine whether it contains evidence that is reasonable, credible, and of
5 Cases cited by Snow involving the standard of review in original
proceedings for habeas corpus are also inapposite. (Vivar, supra, 11 Cal.5th
at p. 537 (conc. & dis. opn. of Corrigan, J.) [“[w]e should be hesitant here to
uncritically apply a habeas corpus standard of review to appellate review of
statutory claims”].)
8
solid value from which a reasonable trier of fact could find beyond a
reasonable doubt that in committing the robbery, Snow acted with reckless
indifference to human life. (See People v. Elliott (2013) 53 Cal.4th 535, 585.)6
C. Substantial Evidence Supports the Finding of Reckless Indifference to
Human Life
Snow is not entitled to resentencing under section 1172.6 if he was “a
major participant” in the robbery and acted with “reckless indifference to
human life, as described in subdivision (d) of [Penal Code] Section 190.2.”
(Pen. Code, § 189, subd. (e)(3); see § 1172.6, subd. (a).) Snow’s brief
challenges only the “reckless indifference” prong. He concedes there was
evidence that he “helped plan” the robbery, was present during it, and that
his familiarity with David S. allowed the robbers “to gain entry to Paxton’s.”
But he maintains there was insufficient evidence to support a finding of
reckless indifference because there was “no evidence” that he was armed,
used a gun, or that the fatal shot came from a handgun “rather than a rifle or
shotgun.” He further maintains that the plan was not to kill, but only to lock
David S. in the bathroom, indicating that he was “unaware of the gun and
potential for risk to [David S.’s] life.”
“ ‘[R]eckless indifference to human life’ is commonly understood to
mean that the defendant was subjectively aware that his or her participation
in the felony involved a grave risk of death.” (People v. Estrada (1995) 11
Cal.4th 568, 577.) “[I]t encompasses a willingness to kill (or to assist another
in killing) to achieve a distinct aim, even if the defendant does not specifically
6 The Attorney General’s brief does not address Snow’s argument that an
independent standard of review applies. In light of Vivar, it is not a frivolous
argument and a response from counsel for the People would have been
prudent.
9
desire that death as the outcome of his actions.” (In re Bennett (2018) 26
Cal.App.5th 1002, 1021.) There is both a subjective and objective component.
(Clark, supra, 63 Cal.4th at p. 617.) Subjectively, “[t]he defendant must be
aware of and willingly involved in the violent manner in which the particular
offense is committed,” and he or she must consciously disregard “the
significant risk of death his or her actions create.” (People v. Banks (2015)
61 Cal.4th 788, 801.) As to the objective element, “ ‘[t]he risk [of death] must
be of such a nature and degree that, considering the nature and purpose of
the actor’s conduct and the circumstances known to him [or her], its
disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor’s situation.’ ” (Clark, supra, 63
Cal.4th at p. 617.) “Awareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient” to establish reckless
indifference to human life; “only knowingly creating a ‘grave risk of death’ ”
satisfies the statutory requirement. (Banks, at p. 808.) That a participant or
planner of an armed robbery could reasonably anticipate lethal force might
be used is not sufficient to establish reckless indifference to human life.
(Ibid.)
Contrary to Snow’s assertions, substantial evidence supports the
court’s finding that he acted with reckless indifference to human life.
Initially, the record belies his claim that there was “no evidence” he was
armed. On the day of the robbery, Snow showed his handgun to Taylor.
Snow is also incorrect in claiming there is no evidence that the wounds were
“consistent with the use of a handgun rather than a rifle or shotgun.” The
medical examiner testified that the fatal bullet was “certainly consistent with
a handgun. It does not look like a shotgun and does not look like a rifle.”
10
As to the subjective element of reckless indifference, Snow’s remark,
“Old Dave never saw it coming” and “[w]e had to do it” suggest an intent to
kill. At a bare minimum, they betray a calculated and callous disregard for
life, the very hallmark of reckless indifference.
Objectively too, there is ample evidence to support the court’s finding.
The crucial issue is the degree of risk to human life. (In re Scoggins (2020)
9 Cal.5th 667, 682 (Scoggins).) The day before the robbery, Snow was armed
with a handgun. Anticipating that robbing Paxton’s would be met with
resistance from David S., the supposed plan—to hit him on the head with
sufficient force to cause a loss of consciousness—posed a serious risk of
violent confrontation from the very outset. Indeed, a reasonable if not
inescapable inference is that the real plan was always to kill. The robbery’s
success depended first and foremost on getting into the locked tow yard after
regular business hours. And that meant David S. had to recognize Snow and
based on that familiarity open the locked security gate. Thus, Snow could not
disguise his appearance, and surely he did not want to be identified and
caught. The theft of the surveillance video and recording equipment can only
be explained as Snow’s appreciation of the risk of identification.
It would have been pointless to, in effect, silence the electronic witness
but not David S. This is likely what Snow meant when he told Taylor the
next day, “We had to do it.” Or perhaps more to the point given the
applicable standard of review, that the plan involved an extremely high risk
that the night dispatcher would be killed is a more-than-reasonable inference
from the evidence. (See Scoggins, supra, 9 Cal.5th at p. 676 [reckless
indifference to human life where, for example, “ ‘the robber . . . shoots
someone in the course of the robbery, utterly indifferent to the fact that the
11
desire to rob may have the unintended consequence of killing the victim as
well as taking the victim’s property”].)
DISPOSITION
The order is affirmed.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DO, J.
12 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483602/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0513
No. DA 21-0513
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TERRANCE ANTHONY ROBERTS,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including January 20, 2023, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483603/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0649
No. DA 21-0649
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TYLER FREDERICK ERICKSON,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 21, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483604/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0048
No. DA 22-0048
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SKY M. LITTLECOYOTE,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 21, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483606/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0132
No. DA 22-0132
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MATTHEW ROBERT ALLEN,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 21, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483607/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0644
No. DA 21-0644
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KAITLYN DAWN POLICH,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 21, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483609/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0082
No. DA 22-0082
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSHUA JAMES HOWELL,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time, and
good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 21, 2022, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483610/ | 11/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0148
No. DA 22-0148
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHRISTOPHER MICHAEL QUERFURTH,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 21, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483611/ | 11/14/2022
Case Number: DA 22-0362
IN THE SUPREME COURT OF THE STATE OF MONTANA
Supreme Court Cause No.DA 22-0362
CHRISTINA SCHMID and JENNIFER
POWERS,
Plaintiffs/Appellants, GRANT OF ADDITIONAL
EXTENSION OF TIME TO
-VS- FILE APPELLEES' ANSWER
BRIEF
JAE NOTTI, SUSIE NOTTI, and ET
CATTLE COMPANY,LLC,
Defendants/Appellees.
Pursuant to Jae Notti's, Susie Notti's, and ET Cattle Company,LLC's Motion
and Montana Rule of Appellate Procedure 26, for good cause appearing and noting
that Appellant does not object, Appellees are granted a twenty-eight-day extension
to file their Answer Brief. Appellees' Answer Brief shall be due December 7,2022.
DATED this day of November,2022.
4812-6457-6739, v. 1
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 14 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483613/ | [Cite as State v. Rose, 2022-Ohio-4041.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2022-A-0040
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
JOHN R. ROSE,
Trial Court No. 2020 CR 00226
Defendant-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Jessica Fross, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Wesley A. Johnston, P.O. Box 6041, Youngstown, OH 44501 (For Defendant-
Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, John Rose, appeals the denial of his request for a new trial and
for postconviction relief from the Ashtabula County Court of Common Pleas. Appellant
was convicted of Aggravated Murder, in violation of R.C. 2903.01(A).
{¶2} Appellant raises a single assignment of error asserting that the trial court
erred in denying his request for a new trial without holding a hearing after appellant had
presented evidence to support his claims.
{¶3} After review of the record and the applicable caselaw, we find appellant’s
assignment of error to be without merit. The trial court appropriately exercised its
discretion to not hold a hearing for postconviction relief when it determined that appellant
failed to present substantive grounds for relief.
{¶4} Therefore, we affirm the judgment of the Ashtabula County Court of
Common Pleas.
Substantive and Procedural History
{¶5} In June 2020, appellant was indicted by the Ashtabula County Grand Jury.
He was charged with: Count One: Aggravated Murder in violation of R.C. 2903.01(A), an
unclassified felony; Count Two: Murder in violation of R.C. 2903.02(A), an unclassified
felony; Count Three: Murder in violation of R.C. 2903.02(B), an unclassified felony; and
Count Four: Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the second
degree.
{¶6} Appellant pled not guilty and a jury trial was held. At trial, the State
presented ten witnesses, including that of appellant’s wife, Marie Rose. Appellant testified
on his own behalf.
{¶7} When the State called Marie Rose, the prosecutor stated on the record, “I
would bring to your attention that – and we discussed this briefly yesterday – I have
spoken to Marie Rose. There were people present when some statements were made to
her by the Defendant, and I will lay a foundation to that before I ask what was said.”
{¶8} Marie Rose testified that appellant lived with her in the same residence. She
said that on the date of Paul Ruffo’s death, she lived at her house with appellant, her
children, her ex-boyfriend Edward Becker, Jerry McRoberts, Gabby Reo, and Rachael
Clevenger.
2
Case No. 2022-A-0040
{¶9} The prosecutor asked if appellant had ever talked to Marie Rose about
Ruffo. She answered that he did. The prosecutor asked if anybody else was present
during those conversations. She said that Becker was present for one of those
conversations in late May or early June of 2020. The prosecutor asked what was said
and Marie Rose said that appellant did not like Ruffo because Clevenger “was always
going to his house.” According to Marie Rose, appellant said that if Ruffo keeps giving
Clevenger heroin, “that he’s going to harm him in a way, hmm basically, just not if
Rachael’s over there. And he, ah, he kept saying that he was going to hurt him if he kept
giving her drugs, giving her H, heroin.” Marie Rose testified that appellant said he was
going to kill Ruffo. The prosecutor asked again, “were there other people around when
[appellant] said that?” Marie Rose said, “my ex-boyfriend, Edward [Becker].”
{¶10} Marie Rose said that appellant left the house on June 2 and later returned
around 2:00 am on June 3. She said that when appellant returned home, Becker was in
the room with her as well. She said that appellant came into the bedroom and said “I think
I screwed up this time. Um, I think I -- I might have killed him. I’m pretty sure that what he
said.” Trial counsel objected to this line of questioning and the trial court overruled the
objection. In closing arguments, the State characterized Marie Rose’s testimony as “very
powerful.”
{¶11} The State introduced evidence of the 911 call that Rachael Clevenger made
calling for an ambulance. In the call, Clevenger is distraught and unable to state the nature
of the emergency.
{¶12} The State called Deputy James Lewis from the Ashtabula County Sheriff’s
Office. The State also admitted body camera footage from Lewis while he was at the
3
Case No. 2022-A-0040
scene. Lewis testified that on June 2, 2020, he arrived at the crime scene and saw
Clevenger screaming for help. Lewis saw blood at the scene outside and found Ruffo
laying in the bathtub with blood on his left side. He said Clevenger was “panicky and
shaken up” and stated that Ruffo had been stabbed.
{¶13} Clevenger told Lewis that appellant stabbed Ruffo and that he was wearing
camouflage shorts with construction boots and a green t-shirt. She said that she did not
see appellant stab Ruffo, but that Ruffo and appellant stepped outside to talk and that
Ruffo came back inside after being stabbed.
{¶14} Lewis took a series of photographs of the scene depicting the location of
blood in the front yard, on the sidewalk and stairway to the porch, on the front porch, and
the doorway. A drink lid and a green t-shirt were also found outside with blood on them.
Finally, Lewis testified that Clevenger had died of a drug overdose prior to trial.
{¶15} The State next called Thomas Ricker, who responded as a paramedic to
the scene. He said that when he arrived, he evaluated Ruffo, removed him from the home
and determined that he had no heartbeat, was no longer bleeding from his wound, and
had fixed pupils. After consulting with Dr. Kehrer from the Geneva Emergency Room, it
was determined that Ruffo was deceased.
{¶16} The next witness was Dr. Evan Howe, a deputy coroner from the Ashtabula
County Coroner’s Office. Howe determined that Ruffo’s cause of death was a stab wound
to the chest and the manner of death was homicide.
{¶17} The State called Dr. Joseph Felo, a forensic pathologist from the Cuyahoga
County Medical Examiner’s Office. Felo said that one of his subordinates, Dr. Elizabeth
Mooney conducted Ruffo’s autopsy. Felo testified as to Mooney’s findings in her autopsy
4
Case No. 2022-A-0040
report. He said that Ruffo had four sharp injuries caused by a knife on his body. One stab
wound into his chest, which was fatal, and three other sharp injuries on his left upper arm.
He also had fresh scattered blunt trauma on his body including abrasions and contusions.
{¶18} Next, the State called Deputy Leonard Emch of the Ashtabula County
Sheriff’s Office. Emch stated that he went to appellant’s residence after the stabbing.
Emch encountered Marie Rose. Emch found appellant in a locked bedroom and arrested
him. Appellant admitted to being at Ruffo’s residence and said that Ruffo “clotheslined”
him off the porch after an altercation. He said that he went home after this and denied
having any weapons at the time. When Emch arrested appellant, he was wearing a white
t-shirt, camouflage pants, and a brown belt. He admitted that he left a green shirt and hat
at Ruffo’s residence. Deputies recovered a number of knives and sharpening stones in
appellant’s room.
{¶19} Lieutenant Bryan Rose testified that he knew Ruffo through prior contact
with him and that Ruffo did not have a reputation for violence. Lieutenant Rose was
present when deputies arrested appellant. He said that appellant admitted that he always
carried a pocketknife but that he did not know where it was at the time of his arrest.
{¶20} Detective Sean Ward testified he investigated Ruffo’s murder. He said that
based on the condition of the scene, that he believed Ruffo was stabbed in the yard and
that he walked up the porch steps to the house while projecting blood on the siding. He
said that the majority of the blood was on the left side of the steps, indicating that Ruffo
walked up the steps while bleeding.
{¶21} Ward interviewed appellant on June 3. Appellant told Ward that Ruffo was
the aggressor in the situation. Appellant did not admit to having a knife and denied
5
Case No. 2022-A-0040
causing harm to Ruffo. Appellant told Ward that Ruffo clotheslined him over the porch.
Ward said that he observed no disturbances on the ground that would indicate Ruffo
clotheslined appellant over the railing of the porch. In the interview, appellant denied
knowing how Ruffo was stabbed but suggested that Ruffo injured himself falling over the
railing of the porch or that Clevenger stabbed him.
{¶22} On June 4, Ward executed a search warrant to obtain appellant’s DNA.
During that process, appellant asked to speak with Ward again. Ward conducted a
second interview with appellant.
{¶23} In the second interview, appellant said that he was concerned about drug
activity at Ruffo’s house and was concerned about Clevenger’s involvement with Ruffo.
Appellant said that he went to the house and talked to Clevenger on the front porch.
Clevenger went inside and Ruffo came out. Appellant admitted that he did have a knife
on him. He said that Ruffo rushed him and the two went over the porch railing. He told
Ward that he could show him where he discarded the knife. He did not say whether Ruffo
was armed. He told Ward that he “wasn’t trying to defend anybody.”
{¶24} Ward then transported appellant to the location where he discarded the
knife. On the way to recover the knife, appellant again changed his story and said that he
had discarded two knives. One, a green handled knife that belonged to him, and the
second was a knife that belonged to Ruffo, which appellant had taken before leaving the
scene. Appellant indicated the location where he had thrown the knives and deputies
were able to recover appellant’s green handled pocketknife. The following day, a
concerned citizen reported that they had found a knife in the area where appellant’s green
handled knife was recovered. Ward stated that the two knives were similar style knives.
6
Case No. 2022-A-0040
{¶25} Ward also obtained appellant’s Facebook records which contained
messages from appellant to Clevenger. In a message sent June 1, the day before Ruffo
was stabbed, appellant told Clevenger that “Ahhh, Mr. racoon eyes something coming
and it looks like it’s going to happen at his work, how long did u think it was gonna be be4
I found out? I also have his address! May as well tell him goodbye.” In another message
he said “I love u rachael don’t make me see that something happens to Mr. Racoon eyes
u know it won’t take much! U need to stop your nonsense.” On June 2, the day of Ruffo’s
death, appellant told Clevenger that “Raccoon eyes is a dead motherf*****!” Appellant
also told Clevenger that “Im getting pissed who you f***** with cuz if I catch you with
some1 else u know what’s going to happen.” In another message mere hours before
Ruffo was stabbed, appellant sent a message that said, “I don’t care who the f***’s there,
Ill waste everybody.”
{¶26} Ward also reviewed Ruffo’s personal cell phone and found messages
between Ruffo and appellant. In one message four days prior to the stabbing, appellant
sent Ruffo a message that said “Ill be over in a few then ill be back every hour on the hour
hope I’m not met with resistance. Like I said kill or die for her.” In another message sent
three days before Ruffo died, appellant said “We’ll be back over with a few more cats to
party on your porch you don’t mind do you…… Didn’t think so …. Maybe you shouldn’t
lie to people and feed heroin to rachael just because it’s the only possibility of having your
way with her. When we get back we’re walking right in and if Im satisfied she’s not there
Ill apologize and walk away but it she is there Im gonna be pissed but I already know.”
On June 2, the day of Ruffo’s death, appellant sent Ruffo a message that said “U sorry
son of a b**** i can’t even tell you how f****** up sh*** about to be. If I were u I wouldn’t
7
Case No. 2022-A-0040
even want to be in that f****** house. * * * Watch out mother***** your f****** through pimp
daddy.” Appellant sent other similar threatening messages directly to Ruffo in the days
leading up to the stabbing. Ruffo did not reply to these messages.
{¶27} The State next called Julie Altizer, a forensic scientist at the forensic and
biology section of the Bureau of Criminal Investigation (BCI). She testified that she
analyzed the DNA evidence in this case, including samples from a green t-shirt,
camouflage pants, and a green knife. Altizer said that she found blood belonging to Ruffo
on each of these items.
{¶28} The State rested and appellant testified on his own behalf. He admitted that
he sent the Facebook and text messages about Ruffo but said that he was intoxicated
when he sent the messages and often said things while intoxicated that he did not mean.
He said that his true intention was to threaten to call the police and report that Ruffo was
operating a drug house.
{¶29} Appellant testified that he and Clevenger had a feud two days prior to
Ruffo’s death and that Clevenger left to stay at Ruffo’s house. Appellant said that
Clevenger would often go to Ruffo’s house to get heroin. Appellant said that Clevenger's
heroin use bothered him and that he did not like when she obtained heroin from Ruffo.
He said that on June 2, Clevenger messaged appellant and he went to Ruffo’s house to
pick her up.
{¶30} Appellant said that he talked to Clevenger on the porch and that she went
inside to gather her belongings. Appellant said that Ruffo came out to the porch with a
knife in his hand. The two exchanged words and Ruffo ran at appellant and the two went
over the porch railing and started wrestling. Appellant said he had no idea that he stabbed
8
Case No. 2022-A-0040
Ruffo during the encounter. He said that “I shoved and kicked him off -- my knife was
open, but I shoved and kicked him off, and I grabbed his knife because I didn’t want
another chance to get skinned. You know? I was scared.” He said he fled the scene
because he did not want to be labeled as a snitch. Initially, appellant did not believe that
he had seriously harmed Ruffo. He said that all he tried to do was shove Ruffo off him,
which was “the only way he could have got stuck.” He said that he at first refused to
believe that he could have stabbed Ruffo in self-defense and did not want to believe he
was responsible. He said that he came to believe that he “must have” stabbed Ruffo
during their scuffle on the ground because “there’s no other possibility.” Appellant
acknowledged that he lied to Detective Ward in his first interview with him by saying that
he did not have a knife.
{¶31} The trial court instructed the jury on self-defense and the jury found
appellant guilty on all counts. The trial court found that Counts Two, Three, and Four
merged with Count One for purposes of sentencing. The court sentenced appellant to life
in prison without the possibility of parole.
{¶32} Appellant timely filed an appeal in State v. Rose, 11th Dist. Ashtabula, 2021-
A-0015, 2022-Ohio-3197. We affirmed appellant’s conviction in that case and found that
the trial court committed plain error by allowing Marie Rose to testify without first making
an affirmative determination on the record that Marie Rose had elected to testify.
However, we also concluded that this error was harmless and that the outcome of the trial
would not have been different without Marie Rose’s testimony.
9
Case No. 2022-A-0040
{¶33} On March 11, 2022, during the pendency of his direct appeal, appellant filed
a pro se motion for leave to file for a new trial. On March 21, 2022, appellant filed a motion
in limine for a new trial. On April 7, 2022, appellant filed a petition for postconviction relief.
{¶34} In his motion, Appellant argued that he had obtained newly discovered
evidence from his children, Brian Rose and Sharon Rose. Appellant attached affidavits
from the two which stated that Detective Ward and Marie Rose had colluded to present
false evidence implicating appellant. Brian Rose’s affidavit stated that Marie Rose had
lied in her testimony about appellant and that he did not share this information sooner
because he feared his mother. Sharon Rose’s affidavit similarly stated that appellant did
not talk to Marie Rose on the night of the murder. Sharon Rose also stated that she “never
heard my dad make statements to my mother or anyone else that he wanted to kill Paul
Ruffo or anyone else.”
{¶35} In addition, appellant submitted his own affidavit stating that he had recently
discovered that Brian Rose had evidence that his mother had lied. Appellant also said
that “Rachel Clevenger stabbed and killed Paul Ruffo and although I may have been
tempted to take the blame, that was because, at the time, Rachel was the love of my life
and I wanted to protect her from harm. I was denied my right to testify at trial substantively
as to what actually occurred by repeated sustained objections as to that testimony. Had I
testified fully, it would have been as above.”
{¶36} On April 14, the trial court overruled appellant’s motions without a hearing.
In its judgment entry, the trial court noted that it treated appellant’s motions as motions
for postconviction relief because appellant had filed the motions while he had a direct
appeal pending. The court said that appellant’s
10
Case No. 2022-A-0040
argument is spurious. In this case, the Defendant took the stand in
his own defense. He testified about the fight between himself and
Ruffo. His testimony did not include anything about Clevenger
stabbing Ruffo to death. Therefore, it is the Defendant’s argument
that he either committed perjury at trial, or he plans to commit perjury
at a new trial based upon this dubious affidavit. Further, the
Defendant could have learned of the existence of Brian’s testimony
prior to trial. Brian is his son, and Marie Rose was cross-examined
at trial.
{¶37} Appellant timely appealed the trial court’s denial of his motion for post-
conviction relief.
Assignment of Error and Analysis
{¶38} Appellant’s first assignment of error states:
{¶39} “[1.] THE TRIAL COURT ERRED WHEN IT OVERRULED ROSE’S
PETITITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING.”
{¶40} Appellant argues that the trial court abused its discretion by denying his
motion for postconviction relief without a hearing. He believes that his motion raised
constitutional violations warranting relief, that he presented sufficient operative facts and
evidence from outside the record that merit a hearing, and that he was unavoidably
prevented from discovering or raising these claims sooner. Appellant says that had he
been able to present these claims sooner, no reasonable fact-finder would have convicted
him of murder.
{¶41} We review a trial court’s decision on a petition for postconviction relief under
R.C. 2953.02 for an abuse of discretion. State v. Hobbs, 11th Dist. Lake No. 2010-L-139,
2011-Ohio-5106, ¶ 14.
{¶42} “‘The term “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record.’ State v. Underwood, 11th
11
Case No. 2022-A-0040
Dist. Lake No. 2008-L-113, 2009-Ohio-208 [2009 WL 1177050], ¶ 30, citing State v.
Ferranto, 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v. Raia, 11th Dist.
Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9. Stated differently, an abuse of discretion
is “the trial court’s ‘failure to exercise sound, reasonable, and legal decision-making.’” Id.,
quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting
Black’s Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is reviewing a
pure issue of law, ‘the mere fact that the reviewing court would decide the issue differently
is enough to find error[.] * * * By contrast, where the issue on review has been confined
to the discretion of the trial court, the mere fact that the reviewing court would have
reached a different result is not enough, without more, to find error.’” Id., quoting Beechler
at ¶ 67.
{¶43} R.C. 2953.21 provides, in relevant part:
(A)(1)(a) Any person who has been convicted of a criminal offense *
* * and who claims that there was such a denial or infringement of
the person's rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States, * * *
may file a petition in the court that imposed sentence, stating the
grounds for relief relied upon, and asking the court to vacate or set
aside the judgment or sentence or to grant other appropriate relief.
The petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.
***
(D) The court shall consider a petition that is timely filed within the
period specified in division (A)(2) of this section even if a direct
appeal of the judgment is pending. Before granting a hearing on a
petition filed under division (A)(1)(a)(i), (ii), (iii), or (iv) of this section,
the court shall determine whether there are substantive grounds for
relief. In making such a determination, the court shall consider, in
addition to the petition, the supporting affidavits, and the
documentary evidence, all the files and records pertaining to the
proceedings against the petitioner, including, but not limited to, the
indictment, the court's journal entries, the journalized records of the
12
Case No. 2022-A-0040
clerk of the court, and the court reporter's transcript. The court
reporter's transcript, if ordered and certified by the court, shall be
taxed as court costs. If the court dismisses the petition, it shall make
and file findings of fact and conclusions of law with respect to such
dismissal. If the petition was filed by a person who has been
sentenced to death, the findings of fact and conclusions of law shall
state specifically the reasons for the dismissal of the petition and of
each claim it contains.
***
(F) Unless the petition and the files and records of the case show the
petitioner is not entitled to relief, the court shall proceed to a prompt
hearing on the issues even if a direct appeal of the case is pending.
If the court notifies the parties that it has found grounds for granting
relief, either party may request an appellate court in which a direct
appeal of the judgment is pending to remand the pending case to the
court.
{¶44} When a trial court dismisses a petition for postconviction relief, it is
mandatory for the court to issue findings of fact and conclusions of law. R.C. 2953.21(D);
State v. Calhoun, 86 Ohio St.3d 279, 291, 714 N.E.2d 905 (1999). The findings of fact
and conclusions of law “need not discuss every issue raised by appellant or engage in an
elaborate and lengthy discussion in its findings of fact and conclusions of law.” Id. The
findings need only be comprehensive and pertinent to the issues presented in the petition
and provide a basis of support for the court’s conclusion. Id. at 291-292.
{¶45} “A petition for postconviction relief does not provide a petitioner a second
opportunity to litigate his or her conviction.” State v. Hobbs, 11th Dist. Lake No. 2010-L-
139, 2011-Ohio-5106, ¶ 17, citing State v. Hessler, 10th Dist. Franklin No. 01AP-1011,
2002-Ohio-3321, ¶ 23. “The doctrine of res judicata establishes that ‘a final judgment of
conviction bars the convicted defendant from raising and litigating in any proceeding,
except an appeal from that judgment, any defense or any claimed lack of due process
13
Case No. 2022-A-0040
{¶46} that was raised or could have been raised by the defendant at the trial which
resulted in that judgment of conviction or on an appeal from that judgment.’” State v.
D'Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995) (emphasis sic), quoting State
v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
{¶47} Appellant must provide competent, relevant, and material evidence outside
of the trial court record in support of a postconviction petition to prevent the claim from
being dismissed on res judicata grounds. State v. Lacy, 11th Dist. Ashtabula No. 2019-
A-0058, 2020-Ohio-1556, ¶ 26, citing Hobbs at ¶ 18.
{¶48} Next, “postconviction relief petitions are subject to dismissal without a
hearing if the petition and the supporting evidentiary documents do not contain sufficient
operative facts which, if true, would establish substantive grounds for relief.” State v. Hull,
11th Dist. Lake No. 2018-L-050, 2019-Ohio-23, ¶ 31, quoting State v. Apanovitch, 113
Ohio App.3d 591, 597, 681 N.E.2d 961 (8th Dist.1996), citing State v. Sowell, 73 Ohio
App.3d 672, 682, 598 N.E.2d 136 (1991); State v. Calhoun, 86 Ohio St.3d 279, 714
N.E.2d 905 (1999). “The trial court has a duty to ensure that the petitioner adduces
sufficient evidence to warrant a hearing.” State v. Vinson, 11th Dist. Lake No. 2007-L-
088, 2008-Ohio-3059, ¶ 30, quoting State v. Delmonico, 11th Dist. Ashtabula No. 2004-
A-0033, 2005-Ohio-2882, ¶ 13.
{¶49} Although a trial court should give deference to sworn affidavits filed in
support of the petition, the court may nevertheless exercise its sound discretion by
“determining whether to accept the affidavits as true statements of fact.” Calhoun, supra,
at 284. This is because R.C. 2953.21 “clearly calls for discretion in determining whether
14
Case No. 2022-A-0040
to grant a hearing, accepting all supporting affidavits as true is certainly not what the
statute intended.” Id.
{¶50} In determining the credibility of supporting affidavits in postconviction relief
proceedings, the trial court should consider the following factors:
(1) whether the judge reviewing the postconviction relief petition also
presided at the trial, (2) whether multiple affidavits contain nearly
identical language, or otherwise appear to have been drafted by the
same person, (3) whether the affidavits contain or rely on hearsay,
(4) whether the affiants are relatives of the petitioner, or otherwise
interested in the success of the petitioner's efforts, and (5) whether
the affidavits contradict evidence proffered by the defense at trial.
Moreover, a trial court may find sworn testimony in an affidavit to be
contradicted by evidence in the record by the same witness, or to be
internally inconsistent, thereby weakening the credibility of that
testimony.
Id. at 286.
{¶51} “Depending on the entire record, one or more of these or other factors may
be sufficient to justify the conclusion that an affidavit asserting information outside the
record lacks credibility.” Id.
{¶52} Here, the trial court’s judgment entry sufficiently set forth its basis for
dismissing appellant’s petition without a hearing. The court characterized appellant’s
arguments as “spurious.” The judge reviewing the petition was the same judge that
presided over the trial. The trial court noted that two of the affiants were appellant’s
children and that the defenses presented through their testimony could have been raised
at appellant’s trial.
{¶53} The trial court also concluded that appellant’s affidavit claiming that
Clevenger stabbed Ruffo is in direct contradiction to his trial testimony. At trial, appellant
testified that Clevenger was inside the house when Ruffo lunged at him with a knife.
15
Case No. 2022-A-0040
Appellant testified that Ruffo clotheslined him and that the two scuffled on the ground.
Appellant said that he acted in self-defense and, based on that testimony, the trial court
gave the jury a self-defense instruction.
{¶54} Appellant asserts that his substantive right to testify was impaired because
he was unable to raise his defense in his jury trial. This argument is not convincing.
Appellant’s trial testimony was sufficiently free for him to present a competent defense
and to convince the trial court to give a self-defense jury instruction.
{¶55} Moreover, appellant’s affidavit insinuates that he did not wish to implicate
Clevenger in the murder because, “at the time, Rachel was the love of my life and I wanted
to protect her from harm.” While this could explain why appellant would not be truthful
during the investigation, it does not similarly explain why appellant would not reveal this
during his testimony at trial. Clevenger was deceased by the time of appellant’s trial.
Therefore, there was no “harm” that appellant could protect her from by withholding her
involvement.
{¶56} We agree with the trial court that appellant either perjured himself during his
trial or that his intent is to perjure himself at a new trial based on the information he
provided in his affidavit. Appellant failed to present competent, reliable, and material
evidence that appellant could not have presented at his murder trial. Therefore, the trial
court properly exercised its discretion to dismiss appellant’s petition for postconviction
relief without a hearing.
{¶57} Accordingly, appellant’s sole assignment of error is without merit.
16
Case No. 2022-A-0040
{¶58} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.
concur.
17
Case No. 2022-A-0040 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483619/ | FILED
November 14, 2022
released at 3:00 p.m.
No. 21-0396 – State of West Virginia v. Tracy Renee Pennington EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WOOTON, Justice, dissenting:
In this case, the petitioner Tracy Renee Pennington challenged the legality of
a search of her private home by a law enforcement officer executing a juvenile pick-up
order (arrest warrant) for the petitioner’s daughter. Law enforcement had neither consent
to enter the home nor a search warrant, and the petitioner argued that the officer lacked the
requisite “reason to believe” that the juvenile was in the home. See Payton v. New York,
445 U.S. 573 (1980). The determinative issue in this case is what legal standard controls
law enforcement’s right to enter a private residence without a search warrant in order to
execute a juvenile pick up order. The petitioner argued that probable cause was the
standard; conversely, the respondent, State of West Virginia (“the State”), argued 1 for the
adoption of either a “reasonable suspicion” 2 standard or simply a standard that was
1
The State also argued that this Court’s prior decision in State v. Slaman, 189 W.
Va. 297, 431 S.E.2d 91 (1993) (per curiam), is controlling. However, in Slaman this Court
did not even mention Payton or the United States Supreme Court’s subsequent holding in
Steagald v. U. S., 451 U.S. 204 (1981), both decisions discussed infra in greater detail, and
the case was devoid of any analysis in regard to the quantum of proof needed to support a
warrantless entry into a home. Thus, the case has very little, if any, precedential value.
2
See Terry v. Ohio, 392 U.S. 1, 27 (1968) (finding “authority to permit a reasonable
search for weapons for the protection of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime. The officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was in
danger.”) (emphasis added); see also Maryland v. Buie, 494 U.S. 325, 336-37 (1990) (A
limited protective sweep is permitted when an officer has “reasonable belief” that a
dangerous individual is in the area.).
1
something less than probable cause. 3 The majority establishes a new standard – one with
the vaguest of factors, holding in syllabus point three that “[l]aw enforcement executing
a valid arrest warrant may lawfully enter a residence if they have reason to believe that the
subject of the warrant lives there and is presently within. Reason to believe requires less
proof than probable cause and is established by evaluating the totality of the
circumstances.” (Emphasis added). Insofar as this new standard allows law enforcement
officers to make a warrantless entry into a private home to execute a juvenile pick-up order
without probable cause, it diminishes the protections afforded by the Fourth Amendment.
Even assuming, arguendo, that this new standard is constitutionally sound, the petitioner’s
motion to suppress should have been granted under the facts and circumstances of this case.
Accordingly, I respectfully dissent.
The Fourth Amendment of the United States Constitution protects citizens
from unreasonable intrusions into their homes:
3
See U.S. v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (“As explicated by five
other circuits, the ‘reason to believe’ standard is satisfied by something less than would be
required for a finding of ‘probable cause.’ See Valdez v. McPheters, 172 F.3d 1220, 1225-
26 (10th Cir.1999); United States v. Route, 104 F.3d 59, 62 (5th Cir.1997); United States
v. Risse, 83 F.3d 212, 216 (8th Cir.1996); United States v. Lauter, 57 F.3d 212, 215 (2d
Cir.1995); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995). That is consistent
with our decision in United States v. May, 68 F.3d 515 (1995) (Fourth Amendment permits
search of suspect’s dwelling if officers have ‘reason to believe the suspect is there’), where
we upheld entry into a dwelling based upon an address found in police records and upon
testimony that the suspect had slept there on the night of the murder, some two days before
the search. Id. at 516.”).
2
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.; accord W. Va. Const., art. III, § 6 (providing nearly identical
protections as afforded in the federal constitution). The United States Supreme Court has
recognized that
the “physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.” United
States v. United States District Court, 407 U.S. 297, 313, 92
S.Ct. 2125, 2134, 32 L.Ed.2d 752. And we have long adhered
to the view that the warrant procedure minimizes the danger of
needless intrusions of that sort.
Payton, 445 U.S. at 585-86. In no uncertain terms, the Supreme Court explained in Payton
that “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside
a home without a warrant are presumptively unreasonable.” Id. at 586 (emphasis added).
The Supreme Court has adhered to its keen focus on protecting the sanctity
of the home first enunciated decades ago:
“[W]hen it comes to the Fourth Amendment, the home is first
among equals.” Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct.
1409, 185 L.Ed.2d 495 (2013). At the Amendment’s “very
core,” we have said, “stands the right of a man to retreat into
his own home and there be free from unreasonable government
intrusion.” Collins v. Virginia, 584 U. S. ––––, ––––, 138 S.Ct.
1663, 1670, 201 L.Ed.2d 9 (2018) (internal quotation marks
3
omitted). Or again: “Freedom” in one’s own “dwelling is the
archetype of the privacy protection secured by the Fourth
Amendment”; conversely, “physical entry of the home is the
chief evil against which [it] is directed.” Payton v. New York,
445 U.S. 573, 585, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)
(internal quotation marks omitted). The Amendment thus
“draw[s] a firm line at the entrance to the house.” Id., at 590,
100 S.Ct. 1371. What lies behind that line is of course not
inviolable. An officer may always enter a home with a proper
warrant. And as just described, exigent circumstances allow
even warrantless intrusions. See ibid.; supra, at 2017-2018. But
the contours of that or any other warrant exception permitting
home entry are “jealously and carefully drawn,” in keeping
with the “centuries-old principle” that the “home is entitled to
special protection.” Georgia v. Randolph, 547 U.S. 103, 109,
115, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (internal
quotation marks omitted); see Caniglia v. Strom, 593 U. S. ––
––, ––––, 141 S.Ct. 1596, 1600, ––– L.Ed.2d –––– (2021)
(“[T]his Court has repeatedly declined to expand the scope” of
“exceptions to the warrant requirement to permit warrantless
entry into the home”). So we are not eager—more the
reverse—to print a new permission slip for entering the home
without a warrant.
Lange v. California, 141 S.Ct. 2011, 2018-19 (2021) (emphasis added). Yet, “a new
permission slip for entering the home without a warrant” is exactly what the State sought
and received from the majority in the instant case. See id.
To fully explain my misgivings with the standard adopted by the majority, I
begin with an examination of Payton, where the Supreme Court considered “the
constitutionality of New York statutes that authorize police officers to enter a private
residence without a warrant and with force, if necessary, to make a routine felony arrest.”
Id. at 574. The Supreme Court found that
4
[i]f there is sufficient evidence of a citizen’s participation in a
felony 4 to persuade a judicial officer that his arrest is justified,
it is constitutionally reasonable to require him to open his doors
to the officers of the law. Thus, for Fourth Amendment
purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to
believe the suspect is within.
Id. at 602-03 (footnote and emphasis added). Notably, the Payton court was discussing
felonies, not juvenile status offenses. Further, the Supreme Court failed to define or
otherwise give any guidance to what is meant by “reason to believe” – whether that concept
is tantamount to probable cause, reasonable suspicion, or something else. Finally, in
Payton, while the police had probable cause to arrest each of the suspects for their
respective crimes (murder and armed robbery), they had not obtained either arrest warrants
or search warrants at the time they entered the suspect’s respective apartments. Id. at 577-
78. Based on the officers’ failure to obtain an arrest warrant, the Supreme Court reversed
the cases and remanded for further proceedings. Id. at 603.
4
Federal courts have determined that the Payton “reason to believe” standard
applies equally to the execution of a misdemeanor arrest warrant. See U. S. v. Gooch, 506
F.3d 1156, 1159 (9th Cir. 2007) (“We hold that a valid arrest warrant issued by a neutral
magistrate judge, including a properly issued bench warrant for failure to appear, carries
with it the limited authority to enter a residence in order to effectuate the arrest as provided
for under Payton.”); U.S. v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982) (rejecting the
defendant’s request that Payton should be confined to a felony and finding that the issuance
of a warrant for a felony, misdemeanor, or a bench warrant by a neutral magistrate or court
controls a warrantless entry into the suspect’s residence to effect the arrest warrant).
5
Following Payton, the Supreme Court addressed the issue of whether officers
who had obtained a felony arrest warrant for an individual could enter the home of a third
party to execute that warrant. See Steagald, 451 U.S. 204. In Steagald, the officers had an
arrest warrant for Ricky Lyons. An informant called a Drug Enforcement Administration
(“DEA”) agent and gave the agent a telephone number where Mr. Lyons could be reached.
The agent traced the number to an address in Atlanta, Georgia. Law enforcement officers
went to that address and approached two men standing outside the house, one of whom
was Gary Steagald. Id. at 206. The officers proceeded to enter the house without a search
warrant and discovered what they believed to be cocaine. At that point they sent another
officer to obtain a search warrant, but before it was secured they conducted a second search
of the home, yielding additional incriminating evidence. During a third search of the home
– this time with a search warrant – the officers found forty-three pounds of cocaine. Id. at
206-07. The petitioner, Mr. Steagald, was arrested and indicted on federal drug charges.
Id. at 207.
Mr. Steagald moved to suppress all the evidence found in the house due to
the officers’ failure to secure a search warrant before entering the residence. The
government argued that the arrest warrant for Mr. Lyons authorized the officers’ entry into
Mr. Steagald’s home. The Supreme Court framed the issue before it as “whether an arrest
warrant – as opposed to a search warrant – is adequate to protect the Fourth Amendment
6
interests of persons not named in the warrant, when their homes are searched without their
consent and in the absence of exigent circumstances.” 5 Id. at 212.
The Steagald court found the warrantless entry into the petitioner’s home to
be unreasonable. Id. at 222. It emphasized the need for a warrant absent consent or exigent
circumstances as follows:
The purpose of a warrant is to allow a neutral judicial
officer to assess whether the police have probable cause to
make an arrest or conduct a search. As we have often
explained, the placement of this checkpoint between the
Government and the citizen implicitly acknowledges that an
“officer engaged in the often competitive enterprise of
ferreting out crime,” Johnson v. United States, supra, 333 U.S.
at 14, 68 S.Ct., at 369, may lack sufficient objectivity to weigh
correctly the strength of the evidence supporting the
contemplated action against the individual’s interests in
protecting his own liberty and the privacy of his home.
Coolidge v. New Hampshire, supra, 403 U.S., at 449-451, 91
S.Ct., at 2029-2030; McDonald v. United States, 335 U.S. 451,
455-456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). However,
while an arrest warrant and a search warrant both serve to
subject the probable-cause determination of the police to
judicial review, the interests protected by the two warrants
differ. An arrest warrant is issued by a magistrate upon a
showing that probable cause exists to believe that the subject
of the warrant has committed an offense and thus the warrant
primarily serves to protect an individual from an unreasonable
seizure. A search warrant, in contrast is issued upon a showing
of probable cause to believe that the legitimate object of a
5
The Supreme Court mentioned a split in the federal circuits in regard to whether
both an arrest warrant and a search warrant are required before law enforcement may enter
a third party’s residence, or whether an arrest warrant is sufficient if the officers have
“reason to believe” the person to be arrested is within the home to be searched. Steagald,
451 U.S. at 207 n.3.
7
search is located in a particular place, and therefore safeguards
an individual’s interest in the privacy of his home and
possessions against the unjustified intrusion of the police.
Steagald, 451 U.S. at 212-13. The Court acknowledged that while the arrest warrant
protected Mr. Lyons from an unreasonable seizure, it did nothing to protect the petitioner’s
privacy and his Fourth Amendment right to be free from an unreasonable search of his
home. Id. at 213.
Moreover, the Steagald court warned against the dangers of foregoing the
warrant requirement where a third-party’s home was to be searched in order to execute an
arrest warrant, noting that
the police, acting alone and in the absence of exigent
circumstances, may decide when there is sufficient
justification for searching the home of a third party for the
subject of an arrest warrant—would create a significant
potential for abuse. Armed solely with an arrest warrant for a
single person, the police could search all the homes of that
individual’s friends and acquaintances. See, e. g., Lankford v.
Gelston, 364 F.2d 197 (CA4 1966) (enjoining police practice
under which 300 homes were searched pursuant to arrest
warrants for two fugitives). Moreover, an arrest warrant may
serve as the pretext for entering a home in which the police
have a suspicion, but not probable cause to believe, that illegal
activity is taking place. Cf. Chimel v. California, 395 U.S. 752,
767, 89 S.Ct. 2034, 2042, 23 L.Ed.2d 685 (1969).
Steagald, 461 U.S. at 215.
8
The Supreme Court has determined that the Payton “reason to believe”
standard governs the execution of an arrest warrant at a suspect’s residence and eliminates
the need for law enforcement officials to obtain a search warrant to enter that residence so
long as the officer has “reason to believe” the suspect is inside. See Payton, 445 U.S. at
602-03. However, where law enforcement officials seek to enter a third-party’s home to
execute a warrant on a suspect who is not a resident, then absent consent or exigent
circumstances they must obtain a search warrant based on probable cause to enter the third-
party’s home to execute the arrest warrant. Steagald, 451 U.S. at 222.
Recently, the United States Court of Appeals for the Fourth Circuit addressed
the very issue now before us: the quantum of proof that the “reasonable belief” standard
requires. U.S. v. Brinkley, 980 F.3d 377, 385 (2020). The Fourth Circuit first recognized
that
[t]he courts of appeals have unanimously interpreted
Payton’s standard — “reason to believe the suspect is within,”
445 U.S. at 603, 100 S.Ct. 1371 — to require a two-prong test:
the officers must have reason to believe both (1) “that the
location is the defendant’s residence” and (2) “that he [will] be
home” when they enter. United States v. Hill, 649 F.3d 258,
262 (4th Cir. 2011). But the quantum of proof necessary to
satisfy Payton has divided the circuits, with some construing
“reason to believe” to demand less than probable cause and
others equating the two standards. 6 See United States v.
6
The dissenter in Brinkley noted the continuing split in federal circuits as to what
standard controls:
9
Vasquez-Algarin, 821 F.3d 467, 474–77 (3d Cir. 2016)
(collecting cases).
Brinkley, 980 F.3d at 384 (footnoted added). The court also observed that
Steagald sheds particular light on how Payton must be
interpreted to respect the home’s privileged status under the
Fourth Amendment. As noted above, when officers armed with
an arrest warrant seek to apprehend the suspect in a third
party’s home, Steagald, not Payton, controls, and requires
police to obtain a search warrant founded on probable cause in
order to enter the home. But Payton controls when officers
believe that the suspect resides in a certain home, even if they
are mistaken. See Vasquez-Algarin, 821 F.3d at 472. Under
these circumstances, the home’s actual residents are no longer
entitled to the judicial authorization founded on probable cause
that Steagald guarantees; Payton’s “reason to believe”
standard is all that protects their weighty Fourth Amendment
privacy interests. Thus, when police seek to enter a home and
are uncertain whether the suspect resides there, interpreting
reasonable belief to require less than probable cause “would
[s]ome circuits have equated “reason to believe” and
“probable cause.” See United States v. Vasquez-Algarin, 821
F.3d 467, 480 (3d Cir. 2016); United States v. Gorman, 314
F.3d 1105, 1111 (9th Cir. 2002). Others have suggested the
same in dicta. See United States v. Jackson, 576 F.3d 465, 469
(7th Cir. 2009); United States v. Hardin, 539 F.3d 404, 416 n.6
(6th Cir. 2008). On the other hand, some circuits have found
that the “reason to believe” standard is less stringent than the
“probable cause” standard. See United States v. Thomas, 429
F.3d 282, 286 (D.C. Cir. 2005); Valdez v. McPheters, 172 F.3d
1220, 1225 n.5 (10th Cir. 1999); United States v. Lauter, 57
F.3d 212, 215 (2d Cir. 1995); United States v. Werra, 638 F.3d
326, 337 (1st Cir. 2011). And still others have side-stepped the
problem. See United States v. Barrera, 464 F.3d 496, 501 n.5
(5th Cir. 2006); United States v. Risse, 83 F.3d 212, 216 (8th
Cir. 1996); United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir. 1995).
Brinkley, 980 F.3d at 395 n.2 (dissenting opinion).
10
effect an end-run around . . . Steagald and render all private
homes . . . susceptible to search by dint of mere suspicion or
uncorroborated information and without the benefit of any
judicial determination.” Id. at 480.
It seems to us that interpreting reasonable belief to
require probable cause hews most closely to Supreme Court
precedent and most faithfully implements the special
protections that the Fourth Amendment affords the home. For
these reasons, we join those courts “that have held that
reasonable belief in the Payton context ‘embodies the same
standard of reasonableness inherent in probable cause.’” Id.
(quoting United States v. Gorman, 314 F.3d 1105, 1111 (9th
Cir. 2002)).
Brinkley, 980 F.3d at 385-86.
I believe that the quantum of proof standard adopted by the Fourth Circuit –
reason to believe is tantamount to probable cause – should have controlled the resolution
of this case. The probable cause standard is the surest way to protect the Fourth
Amendment rights of private homeowners to be secure in their homes, free from
unreasonable searches and seizures, as required by both the State and federal constitutions.
The lesser standard adopted by the majority weakens citizens’ Fourth Amendment rights
by allowing as a matter of routine the type a search that occurred herein – one in which
police can enter a private home and search without a warrant based solely on a “‘dint of
mere suspicion or uncorroborated information and without the benefit of any judicial
determination.’” Brinkley, 980 F.3d at 386 (quoting Vasquez-Algarin, 821 F.3d at 480).
11
Significantly, the State conceded that probable cause did not exist in this
case, and that it could not prevail under that standard because the only basis for searching
the petitioner’s home was an anonymous tip, which is insufficient to support a probable
cause determination. See Florida v. J.L., 529 U.S. 266, 270 (2000) (“‘an anonymous tip
alone seldom demonstrates the informant’s basis of knowledge or veracity,’ Alabama v.
White, 496 U.S., at 329, 110 S.Ct. 2412. As we have recognized, there are situations in
which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to
provide reasonable suspicion to make the investigatory stop.’ Id., at 327, 110 S.Ct. 2412.”).
However, in this case the deputy did not even try to verify or corroborate the anonymous
tip before acting upon it. Thus, the petitioner’s motion to suppress should have been
granted as the search was unreasonable under the Fourth Amendment.
Even with the majority’s adoption of a weaker “reason to believe” quantum
of proof, I would find that the State failed to carry its burden. The facts of this case
established that by order entered on November 5, 2018, 7 the Circuit Court of Jackson
County placed the juvenile in a temporary guardianship with her grandparents in Kanawha
7
While the order was entered was November 5, 2018, the order states that a hearing
was held in the matter on November 29, 2018. It is unclear exactly when the parties agreed
that the juvenile would live with her grandparents or when she was actually placed in her
grandparents’ custody. Suffice it to say that the transfer of custody occurred in November
of 2018.
12
County because of continuing issues with unexcused absences from school. 8 It is clear that
from and after November, 2018, the juvenile’s legal residence was at her grandparents’
home in Kanawha County until such time as the temporary guardianship ceased.
On January 11, 2019, the prosecutor in Jackson County filed an emergency
motion for the juvenile to be taken into custody and placed in a staff-secured facility. It
was alleged that the juvenile had left her grandparents’ residence in Kanawha County on
December 7, 2018, without permission, and had not returned to their home. By order
entered January 11, 2019, the circuit court directed that the juvenile be taken into custody
and placed with the Department of Health and Human Resources (“DHHR”) for placement
in a staff-secured facility pending further hearings.
The evidence established that the DHHR and local law enforcement made
several trips to the petitioner’s home trying, unsuccessfully, to locate the juvenile. There
was also evidence that other “sporadic tips regarding her whereabouts” were investigated,
but she was not found. On May 16, 2019, some five months after the juvenile pick-up
order had been issued, Chief Deputy R. H. Mellinger of the Jackson County Sheriff’s
Department relayed an anonymous tip he had received to Deputy Ben DeWees, also with
the department, which tip indicated that the juvenile was seen at the petitioner’s apartment
8
The juvenile previously had been adjudicated as a status offender in July of 2018
due to truancy issues.
13
and that the petitioner planned to hide her until she turned eighteen. Deputy DeWees
testified that he proceeded to the petitioner’s apartment because “we had credible
information that she was there, and we had a pickup order.” However, he admitted that he
knew nothing about the so-called “credible source” of the tip, or whether the information
indeed was credible.
Deputy DeWees arrived at the petitioner’s home. He knocked on the door
and no one answered, although the deputy stated that heard movement inside the apartment.
He testified that he entered the apartment without obtaining a search warrant after speaking
with the prosecutor, who said it was okay. He initially found both the petitioner and her
co-defendant, G.W., inside. The juvenile was located “inside a hollowed-out chest of
drawers inside the Apartment” and was taken into custody. Significantly, the deputy stated
that he never saw the juvenile around or near the petitioner’s residence before he entered;
that the petitioner never consented to his entry; that he had no knowledge of any evidence
that was going to be destroyed if he did not enter the home; that he had no knowledge that
the juvenile was actually in harm’s way; and that the only reason the authorities wanted to
find her was because they didn’t know where she was.
Additionally, a youth service worker (“worker”) for the DHHR testified that
at the time the pick-up order was issued, the juvenile resided with her grandparents. The
worker stated that although she had been to the petitioner’s home several times after the
14
juvenile ran away from her grandparents’ home, she never entered the residence and had
never found the juvenile at the residence. The worker also testified that there had been tips
where “people would say they had seen [the juvenile]” at the grandparents’ house or at the
petitioner’s home, but these “tips” never prompted law enforcement or the worker to enter
either home.
Given this evidence, it is incomprehensible that the majority has upheld the
circuit court’s determination that the deputy had reason to believe that the juvenile was at
the petitioner’s home. The deputy’s entrance into the petitioner’s home was based
exclusively on an anonymous tip, unsupported by any evidence as to credibility of either
the tipster or the information. An anonymous, unverified tip is insufficient to support
reasonable suspicion, let alone reason to believe that the juvenile was inside the petitioner’s
home. It is undisputed that the petitioner’s home was not the juvenile’s legal residence and
had not been for more than five months; further, the testimony about the various “tips”
received during this period demonstrated that the juvenile was, at minimum, bouncing
around perhaps to avoid being found. With so much uncertainty as to where the juvenile
was, a single anonymous, unsubstantiated tip relayed to a deputy is wholly insufficient to
justify a law enforcement officer’s entry into, and search of, a private residence.
Consequently, the motion to suppress should have been granted because the search
conducted violated the petitioner’s Fourth Amendment rights.
15
For all the foregoing reasons, I respectfully dissent.
16 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483612/ | [Cite as Ziegler v. Tameris, 2022-Ohio-4044.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
MARY B. ZIEGLER, CASE NO. 2022-L-042
Petitioner-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
EVE TAMERIS,
Trial Court No. 2021 CS 000628
Respondent-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
Leslie S. Johns, Ashley Jones Law, 1220 West 6th Street, Cleveland, OH 44113 (For
Petitioner-Appellee).
James W. Reardon, Carrabine & Reardon, Co., LPA, 7445 Center Street, Mentor, OH
44060 (For Respondent-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Eve Tameris, appeals the trial court’s judgment overruling her
objections to the magistrate’s decision and granting appellee, Mary B. Ziegler, a civil
stalking protection order (“CSPO”). We affirm.
{¶2} On May 25, 2021, Ziegler filed a petition for a CSPO against Tameris
pursuant to R.C. 2903.214. Ziegler filed the petition on behalf of herself, her husband,
and her nonresident grandchildren. The magistrate granted an ex parte CSPO on the
following business day.
{¶3} Ziegler made the following allegations in her petition:
Over the past two weeks (May 10th & 12th), Eve Tameris has
ranted at me in my backyard several times calling me a
f@#king [sic] bitch, making strange noises. This started last
summer when she dug up our landscape stones twice in the
middle of the night and stole them. She and Robert have
taunted me from their property with provocative behavior.
They intentionally play loud music directed at our home and
have placed a spot light [sic] that shines into our window. They
work in their yard at night and have placed yard debris and
logs along our property to create an eyesore. They have
harassed our lawncare people several times and most
recently on May 19, 2021, (almost) getting to the point of a
physical alter[c]ation. They burn yard waste excessively to
annoy us. When I’m home alone I’m fearful and scared. I’m
afraid to go into my own yard.
{¶4} A full hearing on the matter was held before the magistrate on November 9,
2021. Ziegler and Tameris both appeared and testified, as did Ziegler’s husband and
adult daughter and Deputy Steven Ross of the Lake County Sheriff’s Office. The
magistrate issued his decision on December 22, 2021, recommending the court grant
Ziegler a CSPO against Tameris until January 1, 2024. Included in the decision are the
following findings of fact:
The petitioner and the respondent are next-door neighbors.
Their homes are separated by less than 100 feet. Since
August 2020, the respondent has waged a war of torment
against the petitioner.
The petitioner and her husband testified to several examples.
For starters, the respondent continually blasted a local radio
station’s broadcast with a boombox left outdoors from dawn
to dusk, pointing its loudspeakers at the petitioner’s home for
maximum misery. The respondent also repeatedly stood and
scowled directly at the petitioner so often that she and [her
husband] dubbed it the “Eve pose.” Several times, too, the
respondent shrieked obscenities and targeted insults at the
petitioner. The petitioner also described how, unlike their prior
neighbors, the respondent often slammed doors and windows
in a manner meant to upset the petitioner. Multiple times, the
respondent stood and appeared to film the petitioner with her
phone for no apparent reason other than to harass her.
2
Case No. 2022-L-042
Many of the instances, if viewed alone, are not the type of
items to trigger the issuance of a CSPO. When considering
everything together with the high frequency of such, though,
the respondent’s actions and conduct show that she engaged
in menacing by stalking against the petitioner in violation of
R.C. 2903.211(A).
Credibility played a key role in determining these facts. The
magistrate found the petitioner credible and very sincere.
There is no doubt that she suffered, and continues to suffer
mental distress because of the respondent’s conduct. The
petitioner, for example, actively continues to take steps to
avoid the respondent. The petitioner has also had to install
security cameras at her home.
[The petitioner’s husband and adult daughter] and Deputy
Ross appeared credible and sincere to the magistrate as well.
The same cannot be said for the respondent. Repeatedly,
while the petitioner struggled to speak through her tear-filled
testimony, the respondent disrespectfully laughed in an
unashamed display of schadenfreude. The magistrate
ultimately considered her insincere and not credible.
{¶5} Applying the law to these facts, the magistrate found that Ziegler proved by
a preponderance of the evidence that Tameris engaged in menacing by stalking, to wit:
“The pattern, rampant frequency, and tormenting nature of the conduct is more than
enough to conclude the respondent did such for the purpose of harassing and intimidating
petitioner in violation of R.C. 2903.211(A)(1).”
{¶6} The trial court adopted the magistrate’s decision that same day. The order
of protection was only granted as to Ziegler and only against Tameris; it does not pertain
to the husband of either party. The order generally provides that Tameris shall not enter
or interfere with Ziegler’s residence, school, business, place of employment, daycare
centers, or childcare providers, including the buildings, grounds, and parking lots at those
locations; shall not remove, damage, hide, or dispose of any property, companion
3
Case No. 2022-L-042
animals, or pets owned by Ziegler; shall stay away from Ziegler; shall not initiate or have
any contact with Ziegler; shall not use any form of electronic surveillance on Ziegler; shall
not cause or encourage any person to do any act prohibited by the order; shall not
possess, use, carry, or obtain any deadly weapon; and shall turn over all deadly weapons.
More specifically, the order provides as follows:
Distance restrictions * * * herein temporarily decreased to 25
feet while Respondent going to/from or upon the property
known as [address redacted]; and, unless Respondent is
doing yardwork, Respondent shall not remain stationary or
loiter outside the residence thereupon said property; and,
Respondent shall turn off all rear-house outdoor lighting
between 10PM – 6AM; and, no audio speakers are permitted
outside on said property unless Respondent is also outside
and within 10 feet of said devices.
{¶7} Tameris filed timely objections and supplemental objections to the
magistrate’s decision, which the trial court overruled on April 21, 2022. From this
judgment, Tameris filed a notice of appeal. She asserts one assignment of error,
challenging the sufficiency of the evidence on which the CSPO against her is based:
The trial court erred and abused its discretion when it granted
petitioner/appellee a civil stalking and protection order [sic]
pursuant to R.C. §2903.214, when there did not exist legally
sufficient evidence to support the finding.
{¶8} “[S]ufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support the [judgment] as a matter of law[.]” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v.
Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “Under the sufficiency
standard, appellate courts review the evidence presented in the light most favorable to
the [petitioner] to determine whether the [petitioner] presented some evidence going to
4
Case No. 2022-L-042
all elements of the claim or offense.” (Citation omitted.) L.M.W. v. B.A., 2022-Ohio-2416,
191 N.E.3d 1240, ¶ 18 (8th Dist.).
{¶9} Issuance of a CSPO pursuant to R.C. 2903.214 requires the petitioner to
establish, by a preponderance of the evidence, that the respondent engaged in conduct
constituting menacing by stalking. R.C. 2903.214(C)(1); Lloyd v. Thornsbery, 11th Dist.
Portage No. 2017-P-0029, 2018-Ohio-2893, ¶ 9; Lane v. Brewster, 12th Dist. Clermont
No. CA2011-08-060, 2012-Ohio-1290, ¶ 18. Menacing by stalking is defined, in relevant
part, as “engaging in a pattern of conduct” which “knowingly cause[s] another to believe
that the offender will * * * cause mental distress to the other person or a family or
household member of the other person.” R.C. 2903.211(A)(1). Importantly, “in
determining whether or not to grant a stalking civil protection order, the trial court needs
to view the actions with respect to their effect on the petitioner.” Tuuri v. Snyder, 11th
Dist. Geauga No. 2000-G-2325, 2002 WL 818427, *3 (Apr. 30, 2002); accord Cooper v.
Manta, 11th Dist. Lake No. 2011-L-035, 2012-Ohio-867, ¶ 33.
{¶10} A “pattern of conduct” is defined as “two or more actions or incidents closely
related in time.” R.C. 2903.211(D)(1). “[W]hether the incidents are ‘closely related in
time’ is to be resolved by the trier of fact, ‘considering the evidence in the context of all
the circumstances in the case.’” Cooper at ¶ 39, quoting State v. Bone, 10th Dist. Franklin
No. 05AP-565, 2006-Ohio-3809, ¶ 24.
{¶11} “Mental distress” is defined as including “any mental illness or condition that
involves some temporary substantial incapacity” or “any mental illness or condition that
would normally require * * * mental health services.” R.C. 2903.211(D)(2). A petitioner
only has to show that the respondent knowingly committed certain acts, and that from
5
Case No. 2022-L-042
those actions, she believed the respondent was going to cause her mental distress. Tuuri
at *3; Cooper at ¶ 33; see also McKinley v. Kuhn, 4th Dist. Hocking No. 10CA5, 2011-
Ohio-134, ¶ 17 (the petitioner need not show that the respondent made an explicit or
direct threat). “Furthermore, ‘the testimony of the victim herself as to her fear is sufficient
to establish mental distress.’” L.M.W., 2022-Ohio-2416, at ¶ 27, quoting R.R. v. J.H., 8th
Dist. Cuyahoga No. 109465, 2021-Ohio-706, ¶ 29, citing State v. Horsley, 10th Dist.
Franklin No. 05AP-350, 2006-Ohio-1208, ¶ 48.
{¶12} On appeal, Tameris characterizes the dispute between the parties as
merely unfriendly and untenable, rather than harassing or distressing. Tameris cites to
case law for the proposition that “‘R.C. 2903.211 was “not enacted for the purpose of
alleviating uncomfortable situations, but to prevent the type of persistent and threatening
harassment that leaves victims in constant fear of physical danger [or mental distress].”’”
J.A.C. v. A.L., 8th Dist. Cuyahoga No. 110999, 2022-Ohio-2275, ¶ 18, quoting McKinley
at ¶ 14, quoting Kramer v. Kramer, 3d Dist. Seneca No. 13-02-03, 2002-Ohio-4383, ¶ 17.
{¶13} Based on the testimony, however, the trier of fact could reasonably have
inferred that Tameris engaged in a pattern of conduct directed at Ziegler, which was
intimidating, harassing, and menacing, and that Tameris knew she was causing Ziegler
to believe that she would suffer mental distress. Ziegler, her husband, and her adult
daughter all testified to the specific events that caused her to suffer from anxiety,
sleeplessness, nightmares, fear, and the like on a daily basis for over a year. This
conduct included shining a spotlight into the Zieglers’ kitchen window at all hours of the
day and night; digging up stones from the Zieglers’ landscaping during the night; leaving
a radio on during the day at the loudest volume faced directly at the Zieglers’ residence;
6
Case No. 2022-L-042
slamming doors and windows; banging on patio furniture; making howling and barking
noises directed at the Zieglers’ residence, including when grandchildren were visiting
outside; walking and pacing the property line while Zeigler was outside; taking
photographs and video recordings with her phone; burning yard waste and depositing it
in piles along the property line; and shouting verbal insults and attacks. The sheriff’s
deputy also testified about his response to Ziegler’s complaint about Tameris’s loud radio
and his subsequent conversation with Tameris and her husband, which he described was
confrontational and provided him with an unreasonable explanation. Few questions were
asked of Tameris at the hearing, which resulted merely in her denying the allegations of
verbal insults and attacks; she presented no additional evidence.
{¶14} Accordingly, we conclude that the magistrate’s findings, adopted by the trial
court and recited above, are fully supported by the transcript of the hearing. And despite
Tameris’s assertions to the contrary, upon construing the evidence in a light most
favorable to Ziegler as we must in a sufficiency analysis, we conclude that the evidence
was legally sufficient to support a decision that Tameris has committed acts against
Ziegler that constitute menacing by stalking under R.C. 2903.211(A)(1).
{¶15} The sole assigned error is without merit.
{¶16} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
7
Case No. 2022-L-042 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483614/ | [Cite as State v. Puleo, 2022-Ohio-4040.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-131
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Willoughby Municipal Court
ALBERTA J. PULEO,
Trial Court No. 2021 CRB 00731
Defendant-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
Richard J. Perez, City of Willoughby Prosecutor, and Leslie S. Johns, Assistant
Prosecutor, 4230 State Route 306, Suite 240, Willoughby, OH 44094 (For Plaintiff-
Appellee).
Robert T. McDowall, Jr., Robert T. McDowall Co., LLC, 415 Wyndclift Place,
Youngstown, OH 44515 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Alberta J. Puleo appeals the judgment sentencing her for disorderly conduct
and contempt following a bench trial. We affirm.
{¶2} In 2021, Puleo was charged with disorderly conduct based on allegations
that she repeatedly threatened to kill a neighbor who resides in a lot diagonally across
from her in a mobile home park. Puleo entered a not guilty plea, and the case proceeded
to bench trial.
{¶3} At trial, Puleo several times interrupted proceedings by speaking out of turn.
The trial court ultimately found Puleo guilty of disorderly conduct and found her in
contempt of court due to her disruptions of the proceedings. The trial court deferred
sentencing and ordered a victim impact statement, pre-sentence report, and mental
health assessment. At sentencing, the court imposed a $75.00 fine, a 30-day period of
confinement, suspended, and 18 months of probation with conditions on the disorderly
conduct charge and issued a post-conviction no contact order. The court imposed a
$150.00 fine and a 30-day period of confinement, suspended, on the contempt charge.
{¶4} In her sole assigned error, Puleo argues:
{¶5} “Defendant’s conviction for direct contempt of court is unsupported by the
record as none of her conduct demonstrates a wil[l]ful intent to defy the authority of the
court or constituted an imminent threat to the administration of justice.”
{¶6} “Contempt of court has been defined as ‘conduct which brings the
administration of justice into disrespect, or which tends to embarrass, impede or obstruct
a court in the performance of its functions.’” North Kingsville v. Maddox, 11th Dist.
Ashtabula No. 2001-A-0052, 2002-Ohio-7122, ¶ 14, quoting Denovchek v. Bd. of
Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988).
{¶7} Contempt is divided into categories of civil/criminal contempt and
direct/indirect contempt. Maddox at ¶ 14. There is no dispute that the present case
involves direct criminal contempt because the purpose of the sanction was to punish the
offender, and the conduct at issue occurred in the presence of the court. See id. “A
court, or judge at chambers, may summarily punish a person guilty of misbehavior in the
2
Case No. 2021-L-131
presence of or so near the court or judge as to obstruct the administration of justice.”
R.C. 2705.01.
{¶8} “Because the purpose of contempt proceedings is to uphold the dignity and
authority of the courts, great deference is given to the judgment of the trial judge.”
Maddox at ¶ 15, citing Denovchek at 15. “The determination of what constitutes contempt
of court is within the sound discretion of the trial court, and will not be reversed absent an
abuse of the court’s discretion.” Maddox at ¶ 15, citing Quirke v. Quirke, 11th Dist.
Ashtabula No. 92-A-1755, 1996 WL 586425, *3 (Sept. 20, 1996). “[A]n abuse of discretion
is the trial court’s ‘“failure to exercise sound, reasonable, and legal decision-making.”’”
Ivancic v. Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70 (11th Dist.), quoting State v.
Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law
Dictionary 11 (8 Ed.2004).
{¶9} Here, the transcript contains several instances of Puleo interjecting
indecipherable comments during the proceedings out of turn, and several instances of
the trial court admonishing Puleo to refrain from further interruptions.
{¶10} With regard to the court’s warnings directed at Puleo, during cross-
examination of Puleo’s neighbor, the following exchange occurred:
[THE STATE]: Yeah, I’m objecting to the form of the question
and her appreciation of the (inaudible).
[PULEO]: Oh.
THE COURT: All right. Okay. The objection is sustained.
[Defense counsel’s] going to ask a new question. And, Ms.
Puleo, I’m only going to say this one time. Can you hear me
clearly?
[PULEO]: Yes, Your Honor.
3
Case No. 2021-L-131
THE COURT: Okay. Please do not –
[PULEO]: I know, I’m so sorry.
THE COURT: – show your –
[PULEO]: Emotions.
THE COURT: – displeasure, happiness, or any thoughts
whatsoever about what the witness says or does. Okay. I’ve
been listening to it since she got up here. I’ve not said
anything. I’m only going to give you one time where I am
letting you know.
[PULEO]: Yes, Your Honor.
THE COURT: If I have to say it a second time, that’s going to
be an issue. Do you understand?
[PULEO]: Yes, I do, Your Honor.
THE COURT: Excellent. Thank you.
{¶11} Subsequently, during the direct testimony of the officer who responded to
the neighbor’s home, the following exchange occurred after the officer indicated that he
was unsure if there had been other complaints filed by the neighbor alleging that Puleo
had harassed or threatened her:
[THE PROSECUTOR]: Okay. You have not been out there
on any of them?
[THE OFFICER]: No.
[THE PROSECUTOR]: None at all?
[THE OFFICER]: No.
[PULEO]: (Inaudible).
[THE OFFICER]: On what type of call?
THE COURT: Hang on.
4
Case No. 2021-L-131
[DEFENSE COUNSEL]: I’m sorry. She was speaking to me,
Your Honor.
[PULEO]: I was speaking to him, sir – ma’am.
[DEFENSE COUNSEL]: Hold on. Hold on. Your Honor, she
was speaking to me.
THE COURT: It’s not the first time since I gave her the
warning that I’m hearing things over here. I have been –
[DEFENSE COUNSEL]: I understand.
THE COURT: – trying to ignore them.
[DEFENSE COUNSEL]: Your Honor, I apologize, but
understand. She’s trying to communicate with me and it’s
certainly difficult to do that, but she’s assisting me in my – in
the defense of the case by trying to communicate with me.
[PULEO]: I would communicate with him.
THE COURT: You can communicate with your lawyer. It’s
the communication relative to the answer of and/or response
of a witness that is troublesome.
[PULEO]: Okay.
THE COURT: Don’t do it again or I will hold you in contempt.
Do you understand?
[PULEO]: Yes, ma’am, I understand.
{¶12} After the prosecution finished its closing rebuttal argument, the following
exchange occurred:
THE COURT: All right. Thank you.
[PULEO]: (Inaudible).
THE COURT: I’ll get to the contempt situation when we’re
finished here.
5
Case No. 2021-L-131
You’ve been repeatedly asked by me to stop, Ms. Puleo, and
you’ve not followed my order. We’ll deal with that when we’re
done here.
My question, [Prosecutor], under the –
[PULEO]: (Inaudible).
[DEFENSE COUNSEL]: Just stop.
[THE COURT]: – statute, the charging document alleges
2917. * * *
{¶13} After the court stated its findings that Puleo engaged in behavior constituting
disorderly conduct, the following exchange occurred:
[PULEO]: You know, I –
THE COURT: Ms. Puleo, I’m not going to ask you again. If
you don’t stop talking, I’m going to have to take you down to
a cell, ma’am. Please. All right. You’re going to have a
chance to speak.
[PULEO]: I have a chance to speak?
THE COURT: Ms. Puleo, at the appropriate time, yes, you will.
***
{¶14} Thereafter, the court and counsel discussed Puleo frequently contacting the
police department:
THE COURT: I mean, she’s calling the police department.
[THE PROSECUTOR]: Ridiculous.
THE COURT: With nonemergencies?
[THE PROSECUTOR]: All the time and she just yells and
screams to the dispatcher. I mean, I have – I could email you
all her calls. I can email it to probation. I’ll send you a copy.
It’s ridiculous.
[PULEO]: You son of a bitch.
6
Case No. 2021-L-131
[THE PROSECUTOR]: They’re saying Alberta –
THE BAILIFF: Oh, Ms. Puleo, I’m sorry. You’re cussing now
in the courtroom and that’s un—
[PULEO]: You heard that?
THE BAILIFF: Yes.
THE COURT: I heard that, Ms. Puleo.
[PULEO]: I was talking under my breath.
THE COURT: Ms. Puleo, I can hear what you’re saying.
[PULEO]: I apologize. I didn’t know that. I just want to speak.
THE COURT: Ms. (Inaudible) is putting her in a cell and
sending her for the night.
[DEFENSE COUNSEL]: I get it. She’s obviously emotional.
THE COURT: There's something wrong. I mean –
[THE PROSECUTOR]: No, she’s mean. She’s very – you
can be fooling. I mean, I’ve dealt with her for, what, 12 years
or something like that?
[DEFENSE COUNSEL]: But as to this issue right here right
here today with her cussing.
[THE PROSECUTOR]: Yeah, but she’s just – can be so mean
and nasty and she doesn’t (inaudible).
[DEFENSE COUNSEL]: She’s emotional. She’s obviously
has [sic] some issues going on. She’s extremely emotional. I
don’t think she can – she believes that you can’t hear what
she’s saying to herself or whatever. She was talking to me
many times and it’s just loud. I get that, but she’s also an
emotional person.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: And she’s also in a tough position.
7
Case No. 2021-L-131
THE COURT: [Defense counsel], it just so happened to
coincide with anything that a witness said that was not
favorable when the – you know, I mean, look, it’s – this is very
– all right. I’m going to hear from you and then I’m going to
address her.
[DEFENSE COUNSEL]: Yeah.
THE COURT: Okay. All right.
{¶15} Thereafter, Puleo addressed the court, and the following exchange
occurred:
THE COURT: Ms. Puleo – Ms. Puleo, this is not an
opportunity to just talk about –
[PULEO]: Well, [Puleo’s neighbor] talked about all that other
stuff that –
THE COURT: Ms. Puleo, is there anything that you want me
to know before I impose sentence? You understand I’m going
to sentence you now –
[PULEO]: Yes.
THE COURT: – for a criminal offense, and, Ms. Puleo, I am
also going to address the contempt of court issue for ignoring
my court order.
[PULEO]: Oh, my God. You really don’t like me. I can’t
believe this.
THE COURT: Do you want to say anything –
[PULEO]: Okay. She’s (inaudible).
[DEFENSE COUNSEL]: Alberta, you’re going to make this
worse.
THE COURT: – about –
[PULEO]: Okay.
THE COURT: – yourself that I should know before –
8
Case No. 2021-L-131
[PULEO]: Yes, you should know – okay. You want to know?
[DEFENSE COUNSEL]: About going to jail or not going to jail.
That’s what we’re talking about.
{¶16} Thereafter, the court directed Puleo to have no contact with her neighbor
while bond was continued, and the following exchange occurred:
THE COURT: If there wasn’t [a no-contact order in place as
a condition of bond], you are not to have any contact, Ms.
Puleo, with [the neighbor]. Do not address her at all in any
way whatsoever. Do not speak to her. Do not shout. Do not
– nothing. There should be no communication.
[PULEO]: I never did.
[DEFENSE COUNSEL]: Just listen.
[PULEO]: It’s like –
[DEFENSE COUNSEL]: Okay. Just listen.
[PULEO]: This is so unfair. She is a psychopath.
[DEFENSE COUNSEL]: Stop. Stop. Stop. Stop right now.
Stop.
[PULEO]: I have suffered –
[DEFENSE COUNSEL]: Stop. Stop. Stop.
THE COURT: Okay.
[DEFENSE COUNSEL]: Stop.
THE COURT: So there’s no contact. If I have to put you on
a monitor to stay at your place, I’ll do that.
[PULEO]: I know you will. Judge Corchion [sic] –
THE COURT: Okay. Now –
[DEFENSE COUNSEL]: Just stop.
9
Case No. 2021-L-131
THE COURT: – the issue on the no contact is the distance,
the proximity of where the housing is here. So I’ll say it again,
if I told you the last time, if she’s outside, you don’t get to go
outside. Go out in the back area. Stay away.
[PULEO]: No. No. Why?
THE COURT: That’s how this works. That is –
[PULEO]: I didn’t do anything. She comes in any yard. She
comes in my home. She makes false allegations. I’ve lived
there 41 years and now I got to go in the backyard because
you believe [the neighbor]?
THE COURT: Ms. Puleo –
[PULEO]: That’s not fair. It’s not fair.
THE COURT: Ms. Puleo, we had a --
[PULEO]: I can’t sit in my backyard?
[DEFENSE COUNSEL]: We’re going to address it again.
THE COURT: We’ve had a trial here. I heard a lot of what’s
going on.
[PULEO]: And I haven't told you everything. I haven’t told you
everything.
THE COURT: Ms. Puleo, this is my decision.
[PULEO]: It’s not – it’s not fair.
THE COURT: Well, that’s how you feel and you’re entitled to
that.
[PULEO]: That’s my home. That’s my home.
THE COURT: Ms. Puleo, stop –
[PULEO]: I can’t sit in the front yard?
THE COURT: – now you’re going to stop talking.
[PULEO]: I can’t cut my shrubs?
10
Case No. 2021-L-131
[DEFENSE COUNSEL]: Stop. Stop.
[PULEO]: She is always outside.
THE COURT: That’s it. Take her. You’re going to go sit now.
I’m holding you in contempt of court. I’ve told to you stop
talking over me. I have told to you stop with the witnesses.
You refused to listen. You are in contempt of court. Have a
seat.
[PULEO]: How do I cut my shrubs. Fine. I don’t –
THE BAILIFF: (Inaudible).
THE COURT: Okay. I will –
(Audio recording file ended.)
THE BAILIFF: It just turned it off.
THE COURT: I will write up the what I’ve just said here. We
will set for sentencing, okay, when the reports are back. This
is a whole other problem. You can go down –
[DEFENSE COUNSEL]: Judge –
THE COURT: – you can go down and talk to her if you want
– right. I mean, I don’t know. I can’t even get out what I need
to say to make a record of what’s going on here. There is
clearly an issue, all right, and I’m aware of that, but I can’t
have this. It’s – it’s disruptive of the entire proceeding. I’m
thinking about holding her overnight.
[DEFENSE COUNSEL]: Well, Your Honor, look, I appreciate
–
THE COURT: Go ahead.
[DEFENSE COUNSEL]: I appreciate. It’s clearly disruptive.
[THE PROSECUTOR]: (Inaudible) jail, Judge.
THE COURT: No.
11
Case No. 2021-L-131
[DEFENSE COUNSEL]: Which jail? I appreciate it’s
disruptive. I understand that. I saw it. I tried to address her.
THE COURT: Yes, I did.
***
{¶17} Defense counsel and the prosecutor then discussed with the court whether
Puleo’s behavior both in and out of court may be rooted in mental health issues.
Thereafter a recess was held, and when the court came back on the record, it stated the
following:
All right. It’s a direct contempt. I’m making the finding. It was
done in my presence, presence of others, disruptive, showing
disregard, disrespect for the authority, (inaudible) law,
embarrasses, impedes, and obstructs the Court in performing
its functions and it was a total disregard for my order. In fact,
she said she wasn’t going to do that. I mean; right? That’s
literally what was said. So she wasn’t going to follow my bond
condition because we were going to delay this in the no
contact. So we have that problem, we have the contempt
throughout the course of the trial, which I had to tell her
multiple times. Luckily there’s no jury here. It’s a bench. So
I can easily sift through that distraction when needed, but I’m
finding that she is in contempt of court and now the question
is should she be given a bond or should she remain in the jail
so the evaluation can be done and handled that way.
{¶18} In a judgment entry setting forth its guilty verdict, the trial court noted:
Throughout the course of the bench trial, the Court had to
admonish and instruct the Defendant regarding her conduct
and statements through the Court proceedings. The Court
ultimately found Defendant in direct contempt of Court, as her
conduct was an impediment and obstruction to the Court in
performing its function and was a disregard of judicial orders.
{¶19} On appeal, Puleo maintains that the contempt finding was improper
because her behavior did not amount to an “imminent threat to the administration of
12
Case No. 2021-L-131
justice.” In support, Puleo relies on State v. Conliff, 61 Ohio App.2d 185, 401 N.E.2d 469
(10th Dist.1978) and In re Brannon, 2d Dist. Montgomery No. 19619, 2003-Ohio-4423.
{¶20} In Conliff, the defendant was charged with assault and disorderly conduct
following allegations that he threw a banana cream pie at the governor. Conliff at 186.
The defendant was acquitted of the assault charge but found guilty of disorderly conduct
and criminal contempt of court. Id. at 185. The contempt charge arose from the
defendant’s remarks after the jury was excused, as explained in the record:
“The Court: Let the record show that Mr. Conliff has just asked
me if I was going to sentence him on the charge that was
before me for consideration, and I told him that, yes, I was, as
soon as we had some order in the courtroom. And Mr. Conliff
asked me if I wanted my ounce of flesh or blood, I forget now
which one it was.
“Mr. Conliff: It was flesh.
“The Court: If I wanted my ounce of flesh.
“Mr. Conliff: I thought we were adjourned. I was bringing it to
your attention.
“The Court: No, I had not forgotten. But, Mr. Conliff, it makes
no difference what you think of me or my decision or my
conduct of the trial. As a judge, as long as I am here in this
courtroom, I am entitled to the respect of a judge. And your
last statement is one of contempt, and I find you in contempt
of this Court. And having found you in contempt, I sentence
you to ten days in the county jail.”
Conliff at 187-88. On appeal, the Tenth District explained:
The record supplied this court shows no other indications of
contemptuous behavior on the part of the defendant during
the three[-]day trial. Moreover, the record does not disclose
that defendant’s question to the court was uttered in a loud or
boisterous tone or that it actually disrupted the court
proceeding, which as a matter of fact, had been concluded
with the exception of sentencing the defendant on the
disorderly conduct charge.
13
Case No. 2021-L-131
Id. at 188.
{¶21} The Tenth District reversed, noting that “[b]ecause of the summary nature
of a direct contempt conviction, the court must be careful to guard against confusing
actions or words which are contemptuous to the judge’s personal feelings or sensibilities
and actions or words which constitute punishable, criminal contempt of a summary nature
because of posing an actual or imminent threat to the administration of justice.”
Id. at 189. The Conliff court held that “[w]hile displays of ill-mannered conduct are not
condoned by this court, neither are they punishable under the law of direct contempt
unless they pose an imminent threat to the administration of justice.” Id. at 190. The
Tenth District limited its decision to the facts of that case, which involved a “single
comment that only tend[ed] to indicate a personal, although not disruptive, feeling of
contempt by the defendant towards the court and the system of justice” where the trial
“proceeding had ended, with the exception of imposing the sentence for the disorderly
conduct conviction.” Id. at 191.
{¶22} In re Brannon, 2003-Ohio-4423, involved a trial court’s finding that defense
counsel was guilty of contempt where counsel requested the trial court judge keep her
voice down when the judge instructed the attorneys to not argue during a suppression
hearing. On appeal, the Second District determined that record failed to support the trial
court’s findings that defense counsel had “repeatedly” interrupted opposing counsel and
that defense counsel’s request of the judge that she keep her voice down, while perhaps
offensive, did not present an imminent threat to the administration of justice. Id. at ¶ 95-
98.
14
Case No. 2021-L-131
{¶23} Conliff and In re Brannon are distinguishable from the instant case in that,
here, Puleo repeatedly interrupted the proceedings despite warnings from the trial court.
See Warren v. Satterlee, 11th Dist. Trumbull No. 2005-T-0010, 2006-Ohio-1460, ¶ 20
(O’Toole, J., with two judges concurring in judgment only), citing Maddox, 2002-Ohio-
7122, at ¶ 5-6 (“Contempt may be derived from the offender’s disruptive act of persistently
interrupting the court in disregard of the court’s warning to stop.”); see also Brannon at ¶
101-103 (Fain, J. concurring) (if defense counsel had continued to speak after the trial
judge had ordered him to be quiet, it could have formed a basis for contempt). Given the
several interruptions and repeated warnings, we cannot say that the trial court abused its
discretion in finding Puleo guilty of contempt.
{¶24} Accordingly, Puleo’s sole assigned error lacks merit. The judgment is
affirmed.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.
15
Case No. 2021-L-131 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483618/ | [Cite as Briggs v. Turoczi, 2022-Ohio-4042.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
MARY BRIGGS, CASE NO. 2022-G-0005
Plaintiff-Appellant,
Civil Appeal from the
- vs - Chardon Municipal Court
TIMEA F. TUROCZI, et al.,
Trial Court No. 2021 CVH 00421
Defendants-Appellees.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
Mary Briggs, pro se, 8318 Music Street, Chagrin Falls, OH 44022 (Plaintiff-Appellant).
David J. Hudak and Brian D. Sullivan, Reminger Co., LPA, 101 West Prospect Avenue,
Suite 1400, Cleveland, OH 44115 (For Defendant-Appellee, Timea F. Turoczi).
Christine Santoni and Brianna M. Prislipsky, Reminger Co., LPA, 101 West Prospect
Avenue, Suite 1400, Cleveland, OH 44115 (For Defendants-Appellees, William P. Fikter,
MD and Genesis Counseling Center, Inc.).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant Mary Briggs, pro se, appeals the trial court’s judgment granting
the supplemental motions for judgment on the pleadings filed by appellees, Timea F.
Turoczi, William P. Fikter, MD, and Genesis Counseling Center, Inc., and dismissing the
complaint for failure to state a claim upon which relief can be granted. We affirm.
{¶2} In May 2021, appellant filed a pro se complaint against appellees alleging
one count, which she captioned, “Breach of safety and Failure to communicate accurately
with a client, failure to follow Mandatory Reporting Procedures of Elder Abuse.”
Appellant’s claim arises out of the psychiatric care and treatment received by an
acquaintance of hers (herein referred to as “Patient”) at Genesis Counseling Center from
Dr. William P. Fikter, a psychiatrist, and Timea F. Turoczi, a nurse practitioner.
{¶3} According to the complaint, appellant lived with Patient for a period of time
in 2020. Appellant describes herself as Patient’s caregiver. Appellant’s allegation is that
appellees failed to properly manage Patient’s care, that she was subjected to elder abuse
by Patient as a result, and that appellees failed to report said abuse. Specifically,
appellant alleges that Nurse Turoczi failed to properly manage Patient’s prescription
drugs, which caused a change in Patient’s behavior, including abusing her; that Genesis
failed to have proper reporting protocols in place for elder abuse; and that Dr. Fikter may
be liable due to his position and lack of supervision of Nurse Turoczi.
{¶4} Appellees answered the complaint and filed motions for judgment on the
pleadings, arguing that (1) appellant failed to attach an affidavit of merit to her complaint;
(2) appellant did not have standing to bring suit arising out of medical care that she did
not personally receive; and (3) appellant failed to state a claim upon which relief could be
granted. Appellant responded in opposition, and the trial court granted appellant 45 days
to file an affidavit of merit in support of her complaint.
{¶5} On December 2, 2021, appellant filed an “affidavit of merit” from Walter P.
Knake Jr., Ph.D., a clinical psychologist. Appellees filed supplemental motions for
judgment on the pleadings, arguing again that (1) appellant does not have standing to
bring medical claims against them; and that (2) the affidavit of merit does not comply with
Civ.R. 10(D)(2). Specifically, they contend the affidavit of merit is insufficient because
2
Case No. 2022-G-0005
Walter P. Knake Jr., Ph.D., is not a psychiatrist and does not practice in the same or a
substantially similar practice; it does not certify that he spent more than one half of his
professional time in active clinical practice; it does not address all defendants; and it does
not demonstrate that any particular defendant breached the standard of care. For these
reasons, appellees requested that the complaint be dismissed for failure to state a claim
upon which relief can be granted.
{¶6} On January 11, 2022, the trial court summarily granted appellees’
supplemental motions for judgment on the pleadings and dismissed appellant’s complaint
“for failure to state a claim upon which relief can be granted.”
{¶7} Appellant appeals and raises two assignments of error, which we
consolidate for review:
[1.] The trial court dismissed this case in error as the
Mandatory Reporting of Elder Abuse has nothing to do with a
medical claim, has nothing to do with an Affidavit of Merit and
was part of the claim for relief and everything to do with the
laws of this State of Ohio. As ORC 5101.63 and ORC 5101.99
establishes.
[2.] Ohio Administrative Code Rules 4723-8-04, 4723-9-10,
and 4723-9-12 were breached by defendants directly resulting
in harm done to Plaintiff, Mary Briggs, by Mr. Link.
{¶8} Civ.R. 12(C) motions are specifically for resolving questions of law, and
determination of the motion is strictly based on the allegations in the pleadings. Peterson
v. Teodosio, 34 Ohio St.2d 161, 166, 297 N.E.2d 113 (1973). Accordingly, appellate
review is de novo. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565,
570, 664 N.E.2d 931 (1996).
{¶9} Civ.R. 12(C) provides that “[a]fter the pleadings are closed but within such
time as not to delay the trial, any party may move for judgment on the pleadings.” “‘[A]
3
Case No. 2022-G-0005
motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6)
motion for failure to state a claim upon which relief can be granted.’” Orwell Nat. Gas Co.
v. Fredon Corp., 2015-Ohio-1212, 30 N.E.3d 977, ¶ 18 (11th Dist.), quoting Gawloski v.
Miller Brewing Co., 96 Ohio App.3d 160, 163, 644 N.E.2d 731 (9th Dist.1994).
{¶10} “Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes
the material allegations in the complaint, with all reasonable inferences to be drawn
therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the
plaintiff could prove no set of facts in support of his claim that would entitle him to relief.”
(Citation omitted.) Midwest at 570. “Thus, Civ.R. 12(C) requires a determination that no
material factual issues exist and that the movant is entitled to judgment as a matter of
law.” (Citation omitted). Id.
{¶11} Civ.R. 10(D)(2)(a) requires that any complaint containing a medical claim,
as defined in R.C. 2305.113, “shall be accompanied by one or more affidavits of merit
relative to each defendant named in the complaint for whom expert testimony is
necessary to establish liability.” “Affidavits of merit shall include all of the following:
(i) A statement that the affiant has reviewed all medical
records reasonably available to the plaintiff concerning the
allegations contained in the complaint;
(ii) A statement that the affiant is familiar with the applicable
standard of care;
(iii) The opinion of the affiant that the standard of care was
breached by one or more of the defendants to the action and
that the breach caused injury to the plaintiff.
Civ.R. 10(D)(2)(a).
{¶12} “An affidavit of merit is required to establish the adequacy of the complaint
* * * [and a]ny dismissal for the failure to comply with this rule shall operate as a failure
4
Case No. 2022-G-0005
otherwise than on the merits.” Civ.R. 10(D)(2)(d). The purpose of this pleading rule is
“to deter the filing of frivolous medical-malpractice claims” and “to place a heightened
pleading requirement on parties bringing medical claims.” Fletcher v. Univ. Hosps. of
Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10, ¶ 12.
{¶13} Here, in their supplemental motions for judgment on the pleadings,
appellees argued that appellant’s affidavit of merit did not comply with the requirements
of Civ.R. 10(D)(2)(a). The trial court did not specifically rule on this issue when it
dismissed the complaint for failure to state a claim upon which relief can be granted.
Appellant’s first assigned error, however, is limited to an argument that hers is not a
medical claim, and therefore no affidavit of merit was required. The definition of “medical
claim,” as provided in R.C. 2305.113(E)(3),
means any claim that is asserted in any civil action against a
physician, podiatrist, hospital, home, or residential facility,
against any employee or agent of a physician, podiatrist,
hospital, home, or residential facility, or against a * * *
advanced practice registered nurse, * * *, and that arises out
of the medical diagnosis, care, or treatment of any person.
‘Medical claim’ includes * * *:
(a) Derivative claims for relief that arise from the medical
diagnosis, care, or treatment of a person[.]
“‘Derivative claims for relief’ include, but are not limited to, claims of a parent, guardian,
custodian, or spouse of an individual who was the subject of any medical diagnosis, care,
or treatment * * * that arise from that diagnosis, care, treatment, or operation, and that
seek the recovery of damages for any of the following:
(a) Loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, or any other intangible loss
that was sustained by the parent, guardian, custodian, or
spouse;
5
Case No. 2022-G-0005
(b) Expenditures of the parent, guardian, custodian, or spouse
for medical * * * care or treatment, for rehabilitation services,
or for other care, treatment, services, products, or
accommodations provided to the individual who was the
subject of the medical diagnosis, care, or treatment * * *.
(Emphasis added.) R.C. 2305.113(E)(7).
{¶14} In her complaint, appellant stated her cause of action, in part, as “failure to
follow Mandatory Reporting Procedures of Elder Abuse” by Patient, which caused harm
to her. Although not cited in her complaint, in her appellate brief appellant refers to R.C.
5101.63 and 5101.99, which govern the ”duty to report suspected abuse, neglect, or
exploitation of adult”—a mandatory duty for, inter alia, individuals authorized to practice
medicine, licensed nurses, and employees of outpatient health facilities—and the fine for
violating said duty. Thus, appellant has alleged breach of a duty to report abuse of an
adult.
{¶15} While R.C. 5101.63 sets forth a specific duty to report knowledge or
suspicions of adult abuse, a plaintiff bears the burden of showing that he or she falls within
the class of individuals the statute was designed to protect. See, e.g., Neuenschwander
v. Wayne Cty. Children Serv. Bd., 92 Ohio App.3d 767, 770, 637 N.E.2d 102 (9th
Dist.1994), citing Hocking Valley Ry. Co. v. Phillips, 81 Ohio St. 453, 462, 91 N.E. 118
(1910). The duty to report knowledge or suspicion of adult abuse under R.C. 5101.63 is
owed to “any person sixty years of age or older within this state who is handicapped by
the infirmities of aging or who has a physical or mental impairment which prevents the
person from providing for the person’s own care or protection, and who resides in an
independent living arrangement.” R.C. 5101.60(C) (defining “adult” as used in sections
5101.60 to 5101.73 of the Revised Code).
6
Case No. 2022-G-0005
{¶16} Here, appellant alleged that she was harmed by appellees because Patient
abused her, and appellees failed to report it. However, appellant did not allege in her
complaint that she is sixty years of age or older, that she is handicapped by the infirmities
of aging, or that she has a physical or mental impairment. She, in fact, holds herself out
as Patient’s caregiver during the relevant time period. Accordingly, even if we accept
appellant’s argument that this allegation does not constitute a “medical claim,” and thus
did not require an affidavit of merit, the trial court did not err in concluding she failed to
state a claim upon which relief can be granted.
{¶17} The first assigned error is without merit.
{¶18} In her second assigned error, appellant contends the trial court erred in
dismissing her complaint because she alleged that appellees breached the standard of
care in their treatment of Patient. Specifically, she asserts that appellees violated the
following Ohio Administrative Code provisions: section 4723-8-04 (requiring a “standard
care arrangement” be entered into with each physician with whom a certified nurse
practitioner collaborates); chapter 4723-9 (providing for the “prescriptive authority” of the
nursing board); section 4723-9-10 (governing the formulary and standards of prescribing
for certified nurse practitioners); and section 4723-9-12 (governing the standards and
procedures for review of the Ohio automated RX reporting system).
{¶19} Appellant has not alleged facts demonstrating that she has standing to
argue that appellees’ treatment of Patient breached the standard of care. See, e.g.,
Williams v. Griffith, 10th Dist. Franklin No. 09AP-28, 2009-Ohio-4045, ¶ 12, citing State
ex rel Tubbs Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998) (“A civil
action must be asserted by the real party in interest because a party who is not the real
7
Case No. 2022-G-0005
party in interest lacks standing to prosecute the action.”). She alleges no facts necessary
to demonstrate that she has standing to bring a derivative claim. See R.C. 2305.113(E)(7)
(“derivative claims for relief” are claims of a parent, guardian, custodian, or spouse). Nor
does appellant have the capacity as a practicing attorney to maintain the claim as it
pertains to any alleged injury Patient may have suffered. See, e.g., Williams at ¶ 11-16.
{¶20} Accordingly, the second assigned error is also without merit.
{¶21} Construing the material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, in favor of appellant as true, appellant could prove no
set of facts in support of her claim that would entitle her to relief. Appellees were entitled
to judgment as a matter of law, and the trial court did not err in dismissing appellant’s
complaint.
{¶22} The judgment of the Chardon Municipal Court is affirmed.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.
8
Case No. 2022-G-0005 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483620/ | IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term
_______________ FILED
November 14, 2022
No. 21-0396
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent,
v.
TRACY PENNINGTON,
Petitioner.
________________________________________________________
Appeal from the Circuit Court of Jackson County
The Honorable Lora A. Dyer Judge
Criminal Action No. 19-F-83
AFFIRMED
________________________________________________________
Submitted: September 27, 2022
Filed: November 14, 2022
Roger L. Lambert, Esq. Patrick Morrisey, Esq.
Hurricane, West Virginia Attorney General
Counsel for Petitioner Katherine M. Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “When reviewing a ruling on a motion to suppress, an appellate court
should construe all facts in the light most favorable to the State, as it was the prevailing
party below. Because of the highly fact-specific nature of a motion to suppress, particular
deference is given to the findings of the circuit court because it had the opportunity to
observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s
factual findings are reviewed for clear error.” Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468
S.E.2d 719 (1996).
2. “In contrast to a review of the circuit court’s factual findings, the
ultimate determination as to whether a search or seizure was reasonable under the Fourth
Amendment to the United States Constitution and Section 6 of Article III of the West
Virginia Constitution is a question of law that is reviewed de novo. . . . Thus, a circuit
court’s denial of a motion to suppress evidence will be affirmed unless it is unsupported
by substantial evidence, based on an erroneous interpretation of the law, or, based on the
entire record, it is clear that a mistake has been made.” Syl. Pt. 2, in part, State v. Lacy, 196
W. Va. 104, 468 S.E.2d 719 (1996).
3. Law enforcement executing a valid arrest warrant may lawfully enter
a residence if they have reason to believe that the subject of the warrant lives there and is
presently within. Reason to believe requires less proof than probable cause and is
established by evaluating the totality of the circumstances.
i
HUTCHISON, Chief Justice:
Petitioner Tracy Pennington entered a conditional guilty plea to one count of
child concealment following the Circuit Court of Jackson County’s denial of her motion to
suppress evidence that her minor child, who had been adjudicated as a status offender for
truancy and placed in a temporary guardianship with her grandparents in a neighboring
county, was discovered by law enforcement in petitioner’s home after absconding from her
grandparents’ supervision five months earlier. At issue in this appeal is whether the
officers’ entry into the residence for the exclusive purpose of executing a lawful juvenile
“pick-up” order violated petitioner’s constitutional right against unreasonable search and
seizure such that the evidence obtained as a result of the search of the residence should
have been suppressed.
Upon review of the parties’ briefs, appendix record, oral argument, and
applicable legal authority, and for the reasons stated below, we find no error and affirm the
circuit court’s decision to deny petitioner’s motion to suppress.
I. Factual and Procedural Background
Juvenile S.W. was adjudicated as a status offender for truancy on July 30,
2018. By order entered November 5, 2018, it was agreed that, as a lesser restrictive
alternative to out-of-home placement, S.W. would be placed with her paternal
grandparents, as temporary guardians, in Kanawha County, West Virginia, where she
would attend school. Petitioner’s parental rights to S.W. remained intact. After being
1
placed with her grandparents, on December 7, 2018, S.W. left their residence, without
permission, and was no longer attending school.
By order entered January 11, 2019, upon consideration of the State’s motion
and verified petition that S.W., who was then sixteen years old, was an “active runaway,
whose current whereabouts are unknown[,]” the circuit court determined that there was
probable cause to believe that S.W.’s health, safety, and welfare demanded that she be
taken into custody, in accordance with West Virginia Code § 49-4-705(a)(2) , and it
1
ordered that she be taken into custody forthwith and placed in the State’s custody for
placement in a staff-secured facility pending further hearings. This order is commonly
referred to as a “pick-up” order.
Until she was temporarily removed from petitioner’s custody in November
2018, S.W. resided with petitioner and G.W., S.W.’s father, in petitioner’s apartment on
Klondyke Street in Ripley, West Virginia. After S.W. absconded from her grandparents’
home in December, Department of Health and Human Resources (DHHR) worker Carey
West Virginia Code § 49-4-705 provides:
1
(a) In proceedings formally instituted by the filing of a
juvenile petition, the circuit court or a magistrate may issue an
order directing that a juvenile be taken into custody before
adjudication only upon a showing of probable cause to believe
that one of the following conditions exists: . . . (2) the health,
safety and welfare of the juvenile demand custody. . . . A
detention hearing pursuant to section seven hundred six of this
article shall be held by the judge or magistrate authorized to
conduct the hearings without unnecessary delay and in no
event may any delay exceed the next day.
2
Blackhurst spoke with petitioner and G.W. by phone and, on several occasions, attempted
to locate S.W. by going to petitioner’s apartment. Also on occasion, DHHR workers
received tips that S.W. had been seen at petitioner’s apartment or at her maternal
grandparents’ house, which was located nearby. Ms. Blackhurst’s efforts to locate S.W.
were unsuccessful. Law enforcement’s repeated efforts to locate S.W. at petitioner’s
apartment were equally unavailing.
On May 16, 2019, by which time S.W. had been missing for more than five
months, Jackson County Sheriff’s Deputy Ben DeWees was advised by his superior, Chief
Deputy R. H. Mellinger, that, at approximately 8:30 p.m., he received a tip from a woman
who not only saw S.W. at petitioner’s apartment, but who was also informed by petitioner
that she intended “to keep [S.W.] hidden until she was 18, so all this juvenile stuff would
go away.” Chief Deputy Mellinger advised Deputy DeWees that his source concerning
S.W.’s whereabouts was credible. Upon receiving this information from his superior, and
with the knowledge that S.W. was the subject of a “pick-up” order, Deputy DeWees
contacted the Jackson County Prosecuting Attorney to determine whether a search warrant
was also required to enter petitioner’s apartment in order to execute the “pick-up” order.
According to Deputy DeWees, Prosecuting Attorney Katie Franklin advised him that a
search warrant was not required. Deputy DeWees also contacted two other law
enforcement officers, West Virginia State Troopers M.P. Fannin and J.M. Comer, whom
he knew had been to petitioner’s apartment earlier in the evening in an unsuccessful attempt
to speak with petitioner on an unrelated criminal matter. The officers returned to
petitioner’s apartment and joined Deputy DeWees as he knocked on the door. Although
3
footsteps could be heard from inside the apartment, no one answered the door. After
explaining the purpose of their visit to petitioner’s landlord, who lived next door, Deputy
DeWees obtained a key to the apartment.
Using the key, the officers entered the apartment and encountered petitioner
and G.W. lying on the bed in one of the bedrooms. Petitioner and G.W. denied that S.W.
2
was in the apartment. The officers eventually proceeded to the second bedroom, where they
found S.W. hiding inside a hollowed-out chest of drawers that had been placed against the
wall. The officers took S.W. into custody pursuant to the pick-up order. Deputy DeWees
also arrested both petitioner and G.W. for “child concealment,” in violation of West
Virginia Code § 61-2-14d , because of “[t]he way [S.W.] was hidden in the room.”
3
Petitioner and G.W. were subsequently indicted on felony charges of “child concealment”
and conspiracy to commit that offense, in violation of West Virginia Code § 61-10-31.
4
2
The body camera video footage taken by Deputy DeWees of the search of
petitioner’s apartment was made a part of the appendix record and viewed by the Court in
connection with this appeal.
West Virginia Code § 61-2-14d provides, in relevant part, as follows:
3
(a) Any person who conceals, takes or removes a minor
child in violation of any court order and with the intent to
deprive another person of lawful custody or visitation rights
shall be guilty of a felony, and, upon conviction thereof, shall
be imprisoned in the penitentiary not less than one nor more
than five years, or in the discretion of the court, shall be
imprisoned in the county jail not more than one year or fined
not more than one thousand dollars, or both fined and
imprisoned.
West Virginia Code § 61-10-31 provides, in relevant part, as follows:
4
Continued . . .
4
On August 20, 2019, petitioner filed a motion to suppress “any and all
evidence obtained as a result of the illegal, warrantless search of [petitioner’s] home” – i.e.,
evidence that S.W. was concealed in the home. A suppression hearing was conducted on
May 18, 2020, at which Ms. Blackhurst, the DHHR caseworker, and Deputy DeWees
testified consistently with the facts as set forth above. Deputy DeWees clarified that the
sole purpose for entering petitioner’s apartment was to execute the “pick-up” order for
S.W. out of concern for her because “[w]e didn’t know where she was”; that he did not
intend to charge petitioner with a crime in the event S.W. was found in the home; but that
petitioner and G.W. were ultimately arrested because of “[t]he way [S.W.] was hidden in
the room.” By order entered on August 6, 2020, the circuit court denied petitioner’s motion.
Petitioner thereafter entered into a plea agreement pursuant to which she
pled guilty to the offense of “child concealment”; the State agreed to dismiss the count of
conspiracy. Under the terms of the plea agreement, petitioner retained the right to appeal
5
any prior pretrial evidentiary rulings of the circuit court. She was sentenced to a period of
It shall be unlawful for two or more persons to conspire (1) to
commit any offense against the State or (2) to defraud the State,
the state or any county board of education, or any county or
municipality of the State, if, in either case, one or more of such
persons does any act to effect the object of the conspiracy.
Additionally, the plea agreement provided that the State would dismiss one count
5
of “obtaining money by false pretenses,” one count of “forgery,” and one count of
“uttering,” for which petitioner was indicted in connection with an unrelated criminal
matter.
5
incarceration of one to five years, with such sentence being suspended, and was placed on
probation for a period of four years. This appeal followed.
II. Standard of Review
The issue on appeal is whether the circuit court erred in denying petitioner’s
motion to suppress the evidence obtained as a result of the search of her home.
When reviewing a ruling on a motion to suppress, an
appellate court should construe all facts in the light most
favorable to the State, as it was the prevailing party below.
Because of the highly fact-specific nature of
a motion to suppress, particular deference is given to the
findings of the circuit court because it had the opportunity to
observe the witnesses and to hear testimony on the issues.
Therefore, the circuit court’s factual findings are reviewed for
clear error.
In contrast to a review of the circuit court’s factual
findings, the ultimate determination as to whether a search or
seizure was reasonable under the Fourth Amendment to the
United States Constitution and Section 6 of Article III of the
West Virginia Constitution is a question of law that is
reviewed de novo. . . . Thus, a circuit court’s denial of
a motion to suppress evidence will be affirmed unless it is
unsupported by substantial evidence, based on an erroneous
interpretation of the law, or, based on the entire record, it is
clear that a mistake has been made.
Syl. Pts. 1 and 2, in part, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). With these
standards in mind, we now consider the parties’ arguments.
III. Discussion
The Fourth Amendment to the United States Constitution provides that
citizens have the right “to be secure in their persons, houses, papers, and effects, against
6
unreasonable searches and seizures[.]” It protects against certain kinds of government
6
intrusions, most particularly, “the physical entry of the home by law enforcement.”
7
However, in Payton v. New York, 445 U.S. 573, 603 (1980), the Supreme Court held that
“for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the [subject of the warrant]
lives when there is reason to believe the [subject] is within.” Indeed, where authorities have
a valid arrest warrant, “it is constitutionally reasonable to require [the subject] to open his
doors to the officers of the law.” Id. at 602-03. 8 The parties agree that the “pick-up” order
directing that S.W. be taken into custody and placed with the DHHR, which was founded
upon probable cause to believe that her “health, safety and welfare” demanded it, see W.
This federal right to be free from unreasonable search and seizure applies to the
6
states through the Fourteenth Amendment. See Payton v. New York, 445 U.S. 573, 576
(1980) (citing Mapp v. Ohio, 367 U.S. 643 (1961)). See also State v. Duvernoy, 156 W.
Va. 578, 582, 195 S.E.2d 631, 634 (1973) (“Article III, Section 6 of the West Virginia
Constitution is very similar to the Fourth Amendment” and has been traditionally construed
in harmony with the Fourth Amendment).
State v. Snyder, 245 W. Va. 42, 47, 857 S.E.2d 180, 185 (2021) (citing Payton v.
7
New York, 445 U.S. 573, 585-86 (1980)).
To be clear, the subject of the pick-up order was S.W., but the Fourth Amendment
8
claim in this case was raised by petitioner, who was not named in the pick-up order but
whose indictment and guilty plea were based on evidence uncovered during the officers’
search of her residence for S.W. In Steagald v. U.S., 451 U.S. 204 (1981), the Supreme
Court held that, absent exigent circumstances or consent, “under the Fourth Amendment,
a law enforcement officer may not legally search for the subject of an arrest warrant in the
home of a third party without first obtaining a search warrant.” Id. at 205-06. Because we
conclude that there was a reasonable belief that S.W. resided with petitioner, see infra.,
petitioner’s apartment was not “the home of a third party” and, therefore, Steagald does
not apply.
7
Va. Code § 49-4-705(a)(2), was the functional equivalent of an arrest warrant and was
9
lawfully issued.
At issue here is whether petitioner’s Fourth Amendment protection against
unreasonable search and seizure was violated when the officers entered her apartment to
execute the pick-up order for S.W. The Payton standard for executing a valid arrest warrant
(or, in this case, a valid “pick-up” order) has been interpreted as requiring a two-part
inquiry: “first, there must be a reasonable belief that the location to be searched is the
[subject’s] dwelling, and second, the police must have ‘reason to believe’ that the [subject]
is within the dwelling.” 10 Petitioner contends that Payton’s “reasonable belief” standard
requires that law enforcement have “probable cause” that S.W. was both living at the
apartment and would be there when they entered because that interpretation “is most
consistent with the special protections that the Constitution affords to the home.” United
States v. Brinkley, 980 F.3d 377, 385 (4th Cir. 2020). 11 See id. (observing that “Payton itself
reiterated that ‘the physical entry of the home is the chief evil against which the wording
See State v. Ellsworth, 175 W. Va. 64, 70, 331 S.E.2d 503, 509 (1985) (stating that
9
“the term ‘custody’ as used in [formerly] W. Va. Code, 49-5-8 [now 49-4-705] . . . is
equivalent to an arrest, that is, it must be based upon probable cause . . . .”).
United States v. Magluta, 44 F.3d 1530, 1533 (11th Cir. 1995); accord Valdez v.
10
McPheters, 172 F.3d 1220, 1224 (10th Cir. 1999); United States v. Risse, 83 F.3d 212, 216
(8th Cir. 1996); United States v. Lauter, 57 F.3d 212, 215 (2nd Cir. 1995).
Accord United States v. Gorman, 314 F.3d 1105 (9th Cir. 2002); United States v.
11
Vasquez-Algarin, 821 F.3d 467 (3rd Cir. 2016).
8
of the Fourth Amendment is directed’” (quoting Payton, 445 U.S. at 585)). According to
12
petitioner, the facts and circumstances surrounding the officers’ entry and search of her
home did not meet that heightened standard, emphasizing that the officers were not entitled
to rely on the uncorroborated tip of an unidentified informant concerning S.W.’s
whereabouts.
The State counters that the appropriate quantum of proof for executing an
arrest warrant is the less stringent standard of whether, under the totality of the
circumstances available to the officers, the officers had a reasonable belief that S.W. was
residing with petitioner in her home and was at the home at the time they entered. The State
contends that the plain text of Payton, along with the holdings of a number of jurisdictions,
support its argument, and that using common sense and viewing the situation in the totality,
the officers had reason to believe that S.W. both lived at, and would be present in,
petitioner’s apartment at the time they entered. We agree.
The issue of what quantum of proof is necessary to satisfy the reason to
believe standard in the context of executing a lawful arrest warrant has been frequently
debated, with multiple courts construing it as being “satisfied by something less than would
be required for a finding of ‘probable cause.’” United States v. Thomas, 429 F.3d 282, 286
Several state courts have held that, under their respective state constitutional
12
search and seizure provisions, the reason to believe standard means there must be probable
cause to believe the subject of the arrest warrant lives in the dwelling and is within. See
e.g., State v. Hatchie, 166 P.3d 698 (Wash. 2007); Anderson v. State, 145 P.3d 617 (Alaska
Ct. App. 2006); State v. Jones, 27 P.3d 119 (Oregon 2001).
9
(D.C. Cir. 2005). In view of the plain text of Payton – that an officer with “an arrest
13
warrant founded on probable cause” has “the limited authority to enter a dwelling in which
the [subject of the warrant] lives when there is reason to believe the [subject] is within” –
14
it is clear that the Supreme Court “used a phrase other than ‘probable cause’ because it
meant something other than ‘probable cause.’” Thomas, 429 F.3d at 286; accord United
States v. Magluta, 44 F.3d 1530, 1534 (11th Cir. 1995) (stating that “[t]he strongest support
for a lesser burden than probable cause remains the text of Payton, and what we must
assume was a conscious effort on the part of the Supreme Court in choosing the verbal
formulation of ‘reason to believe’ over that of ‘probable cause.’”). Indeed, the Court’s use
of “probable cause” in Payton to “describe[e] the foundation for an arrest warrant[,] and
its use of ‘reason to believe’ [to] describ[e] the basis for the authority to enter a dwelling[,]
shows that the Court intended different standards for the two.” United States v. Pruitt, 458
F.3d 477, 484 (6th Cir. 2006); see also Barrett v. Commonwealth, 470 S.W.3d 337, 342
(Ky. 2015) (“[i]n setting forth the rule in Payton, the Supreme Court required the arrest
warrant to be ‘founded on probable cause,’ yet set [‘]reason to believe[’] as the standard to
justify entry. Therefore, the Court was clearly aware of the differences and chose to require
13
Accord United States v. Pruitt, 458 F.3d 477, 482 (6th Cir. 2006); Valdez, 172 F.3d
at 1225; United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997); Risse, 83 F.3d at 216;
Lauter, 57 F.3d at 215; Magluta, 44 F.3d at 1535; Barrett v. Commonwealth, 470 S.W.3d
337, 342 (Ky. 2015); Duran v. State, 930 N.E.2d 10, 15-16 (Ind. 2010); State v. Chavez,
No. 27840, 2018 WL 5310268 (Ohio Ct. App. 2018); Brown v. U.S., 932 A.2d 521 (D.C.
Ct. App. 2007).
445 U.S. at 603.
14
10
separate standards.”). As one court also explained, “a reasonable ground for belief of
15
guilt” (that is, probable cause for the issuance of an arrest warrant) is not the “grammatical
analogue to a reasonable belief that an individual is located within a premises subject to
search. These are two entirely different inquiries.” Pruitt, 458 F.3d at 484.
16
The less stringent “reason to believe” standard is “established by looking at
common sense factors and evaluating the totality of the circumstances and requires less
proof than does the probable cause standard.” Barrett, 470 S.W.3d at 342. Stated another
way, an in-home search for the subject named in an arrest warrant is lawful where “the
15
The Supreme Court’s awareness and use of the different standards was specifically
noted in Maryland v. Buie, 494 U.S. 325 (1990), in the context of the justification of a
protective sweep. The Court stated that the Court of Appeals of Maryland “applied an
unnecessarily strict Fourth Amendment standard” when it “require[ed] a protective sweep
to be justified by probable cause to believe that a serious and demonstrable potentiality for
danger existed.” Id. at 337. Rather, the Court explained, “[t]he Fourth Amendment permits
a properly limited protective sweep in conjunction with an in-home arrest when the
searching officer possesses a reasonable belief based on specific and articulable facts that
the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.
Thus, as Buie demonstrates, the “Court does not use the terms probable cause and
reasonable belief interchangeably, but rather that it considers reasonable belief to be a less
stringent standard than probable cause.” Pruitt, 458 F.3d at 484.
Additionally, by obtaining an arrest warrant, officers have already demonstrated
16
probable cause to a neutral magistrate. See Magluta, 44 F.3d at 1534-35 (“Reasonable
belief embodies the same standards of reasonableness [as probable cause] but allows the
officer, who has already been to the magistrate to secure an arrest warrant, to determine
that the suspect is probably within certain premises without an additional trip to the
magistrate” (internal quotations omitted).); Barrett, 470 S.W.3d at 343 (“[T]he rights of
suspects will be adequately protected by using th[e] [reasonable belief] standard. When
police execute a valid arrest warrant, a neutral and detached magistrate has already made a
probable cause evaluation that the suspect has committed a crime. It would be overly
burdensome for police to make a second probable cause determination when executing a
valid arrest warrant.”).
11
facts and circumstances within the knowledge of the law enforcement agents, when viewed
in the totality, . . . warrant a reasonable belief that the location to be searched is the
[arrestee’s] dwelling, and that the [arrestee] is within the residence of the time of entry.”
Magluta, 44 F.3d at 1535. “[T]he appropriate test is whether the facts known to the officers,
taken as a whole, gave them objectively reasonable grounds to believe that the [subject of
the arrest warrant] lived at the apartment.” People v. Downey, 130 Cal. Rptr.3d 402, 409
(Cal. Ct. App. 2011). For example, although the subject of an arrest warrant “‘may live
somewhere else from time to time does not categorically prevent a dwelling from being the
[subject’s] residence[,]’[b]ut the officers’ belief that the searched home is the [subject’s]
residence must be reasonable at the time of entry into the home.” Payton v. City of
Florence, Ala., 413 Fed. Appx. 126, 131 (11th Cir. 2011) (quoting United States v. Bennett,
555 F.3d 962, 965 (11th Cir.), cert denied, 558 U.S. 831 (2009)). As for law enforcement’s
“on the spot determination” as to whether the subject is inside the residence at the time,
“‘courts must be sensitive to common sense factors indicating a resident’s presence[,]’”
United States v. Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000) (quoting Magluta, 44 F.3d
at 1535), such as the presence of an automobile parked outside the residence. See State v.
Slaman, 189 W. Va. 297, 299, 431 S.E.3d 91, 93 (1993) (“the two officers reasonably
believed that one of the suspects, [Maria] Luciano, . . . could be inside the mobile home. .
. . [because] they noticed an automobile with a vanity license plate with ‘Maria 2’ on it”). 17
The State contends that we have previously determined the appropriate standard
17
to be “reason to believe” and that our decision in State v. Slaman, 189 W. Va. 297, 431
S.E.2d 91 (1993), is controlling. In Slaman, officers visited the defendant’s home in order
Continued . . .
12
The time of day has also been held to be sufficient. See Thomas, 429 F.3d at 286 (“[T]he
early morning hour was reason enough” for officers to have reason to believe the arrestee
would be home when they executed the warrant); United States v. May, 68 F.3d 515, 516
(D.C. Cir. 1995) (“[T]he logical place one would expect to find [the arrestee] on that . . .
morning was at his home”); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983)
(holding that “agents arrived at the apartment at 8:45 A.M. on a Sunday morning, a time
to execute arrest warrants for the defendant and his girlfriend. See id. at 298, 431 S.E.2d at
92. The officers were advised by a neighbor that the girlfriend, Maria Luciano, should be
home at that time of day; a vehicle parked outside the residence with the license plate
“Maria 2” also suggested that she was at home. See id. The officers entered the home
through an unlocked door and observed a purse and a blanket tossed on the couch, which
suggested that someone was inside the home. See id. Although Ms. Luciano was not found
there, an inspection of the home revealed marijuana plants growing in a fish aquarium that
was found on the floor. See id. The plants were later seized pursuant to a subsequently
obtained search warrant. See id. After he was indicted on the charge of manufacturing a
controlled substance, the defendant moved to suppress the evidence obtained as a result of
the initial search of the home. See id. at 299, 431 S.E.2d at 93. The motion was denied, and
the defendant was subsequently convicted of the crime charged. See id. On appeal, the
defendant argued that the initial search of his home was an unreasonable violation of his
constitutional rights, and that the evidence ultimately seized as a result of that search was
inadmissible, because “the officers lacked the requisite probable cause and exigent
circumstances to justify the illegal entry and search.” Id.
In affirming the circuit court’s ruling and defendant’s conviction, we emphasized
that the officers were at the home to execute arrest warrants and, “[g]iven their authority,
[they] acted reasonably in entering the unlocked . . . home. . . . [T]he two officers
reasonably believed that one of the suspects, . . . whom they were looking for, could be
inside. . . .and they had the legal authority to look and see if she was within the . . . home.”
Id. at 299-300, 431 S.E.2d at 93-4.
While our conclusion in Slaman is wholly consistent with our holding in this case,
we acknowledge that the decision did not include an analysis of Payton or a clear
explanation as to why a reasonable belief that Ms. Luciano was present in the home was
sufficient for entry. Thus, although Slaman clearly lends support to our holding in the
present case, we do not exclusively rely on it as the final word on the issue presented herein.
13
when they could reasonably believe that [the subject] would be home”); Magluta, 44 F.3d
at 1535 (“[O]fficers may presume that a person is at home at certain times of the day – a
presumption which can be rebutted by contrary evidence regarding the [arrestee’s] known
schedule”). Officers may also “take into consideration the possibility that the resident may
be aware that police are attempting to ascertain whether or not the resident is at home[.]”
Id. The circumstances of the subject’s employment may also be relevant. See Lauter, 57
F.3d at 215 (information given to police that the subject “was unemployed and typically
slept late” supported “a reasonable belief that [he] was present in the apartment when the
warrant was executed”). “And the officers may consider an absence of evidence the suspect
is elsewhere.” Valdez v. McPheters, 172 F.3d 1220, 1226 (10th Cir. 1999). “No single factor
is, of course, dispositive.” Id.
Based upon all of the foregoing, we now hold that law enforcement executing
a valid arrest warrant may lawfully enter a residence if they have reason to believe that the
subject of the warrant lives there and is presently within. Reason to believe requires less
proof than probable cause and is established by evaluating the totality of the
circumstances. 18
Petitioner contends that, because West Virginia is within the jurisdiction of the
18
Fourth Circuit, this Court should adopt the probable cause standard consistent with that
court’s holding in United States v. Brinkley, 980 F.3d 377 (4th Cir. 2020); however, we
decline to do so for the reasons stated herein. Although “[t]his Court pays due deference
and respect to opinions and analysis of the Fourth Circuit . . . . we are not bound to adopt
[its] approach” on this issue. State ex rel. Ford Motor Co. v. McGraw, 237 W. Va. 573,
595, 788 S.E.2d 319, 341 (2016). See also State ex rel. Johnson & Johnson Corp. v. Karl,
Continued . . .
14
In applying our holding to this case, we find that in evaluating the unique
facts and circumstances in the totality, law enforcement had a reasonable belief that S.W.
resided with petitioner in her home and that S.W. was within the home at the time they
entered for purposes of executing the pick-up order. S.W. was a child who, up until she
was removed from petitioner’s custody, lived with petitioner at her apartment. Indeed,
S.W.’s placement with her grandparents was temporary, with petitioner’s parental rights
remaining intact. There was no evidence presented that S.W. had previously lived
anywhere other than with her parents; therefore, it was certainly logical to believe that,
after running away from her grandparents’ supervision, S.W. would return to her mother’s
home. Given that S.W. had previously been seen at petitioner’s apartment on several
occasions during the course of the five-month period after she ran away, the sighting of
S.W. on May 16, 2019, was reasonably believed by law enforcement to be credible. Further
adding to the reliability of the information that S.W. was living with petitioner and was
presently within the home was the informant’s specific (and correct) knowledge that S.W.
was the subject of juvenile proceedings and that petitioner, according to the informant,
planned to conceal S.W. in the apartment until she reached the age of majority, when the
juvenile proceedings would resolve. It was also proper for the officers to consider that S.W.
was aware that they were looking for her and that she was attempting to conceal herself
220 W. Va. 463, 477 n.18, 647 S.E.2d 899, 913 n.18 (2007) (“While federal court opinions
applying West Virginia law are often viewed persuasively, we are not bound by those
opinions”), superseded by statute as stated in J.C. by and through Michelle C. v. Pfizer,
Inc., 240 W. Va. 571, 814 S.E.2d 234 (2018)).
15
within the home so as not to be found. See Magluta, 44 F.3d at 1535. Moreover, the
19
officers arrived at the home sometime after 8:30 p.m., a time of night that a child would
ordinarily be at home. See e.g., id. (“[O]fficers may presume that a person is at home at
certain times of the day”). Because the officers had a reasonable belief, according to the
totality of the circumstances, that S.W. lived with petitioner at her apartment and was
within the apartment at the time they entered, we discern no error in the circuit court’s
denial of petitioner’s motion to suppress.
IV. Conclusion
Based upon all of the foregoing, the circuit court’s order is hereby affirmed.
Affirmed.
Critically, Deputy DeWees testified that the exclusive purpose for entering
19
petitioner’s apartment was to execute the pick-up order for S.W. and that the decision to
arrest petitioner was because of “[t]he way [S.W.] was hidden in the room.”
16 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483615/ | [Cite as State v. Ely, 2022-Ohio-4039.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0028
Plaintiff-Appellee,
Criminal Appeal from the
-v- Conneaut Municipal Court
DAVID ELY,
Trial Court No. 2021 TRC 00244
Defendant-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
John D. Lewis, City of Conneaut Law Director, 294 Main Street, Conneaut, OH 44030
(For Plaintiff-Appellee).
Adam Parker, The Goldberg Law Firm, 323 West Lakeside Avenue, Suite 450,
Cleveland, OH 44113 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, David Ely, appeals the judgment of the Conneaut Municipal Court
imposing sentence following his guilty plea to operating a vehicle under the influence
(“OVI”). We affirm.
{¶2} Following a traffic stop, Ely was charged with speeding and OVI, in violation
of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree pursuant to R.C.
4511.19(G)(1)(a). After plea negotiations, Ely entered a guilty plea to the OVI charge,
and the state agreed to dismiss the speeding charge. The trial court accepted Ely’s guilty
plea and sentenced him to 180 days of confinement, suspending all but 10 days, and five
years of supervised community control. The trial court issued an entry granting a stay of
the sentence during the pendency of appeal.
{¶3} The trial court appointed counsel for Ely’s appeal. Counsel ultimately filed
a brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). After an independent review of the proceedings below, this court concluded the
record disclosed colorable issues for appeal: whether the trial court erred by failing to
inform Ely of the effect of his guilty plea, and whether the plea is governed by Traf.R. 10,
as alleged by the state, or Crim.R. 11, as was alleged in appellant’s Anders brief. We
appointed new counsel to argue this and any other assignments of error that successor
counsel chose to raise.
{¶4} The parties have now re-briefed the issue pertaining to the trial court’s
failure to inform Ely of the effect of his guilty plea, and both parties maintain that Traf.R.
10(D) applies. In his sole assigned error, Ely argues:
{¶5} “The trial court failed to comply with Traf. R. 10(D) by not explaining the
effect of a guilty plea.”
{¶6} “A violation of R.C. 4511.19(A)(1) aka DUI or OVI, as a first-degree
misdemeanor, constitutes a ‘traffic case’ to which the Ohio Traffic Rules apply.” State v.
Sauceman, 11th Dist. Trumbull No. 2020-T-0033, 2021-Ohio-172, ¶ 13, citing Traf.R. 1(A)
& 2(A) and R.C. 4511.19(G)(1)(a). “Punishable by a jail-term of ‘not more than one
hundred eighty days,’ [Ely]’s DUI charge constitutes a ‘petty offense’ under the Traffic
Rules.” Sauceman at ¶ 13, citing R.C. 2929.24(A)(1) and Traf.R. 2(D).
{¶7} Traf.R. 10(D) provides that “[i]n misdemeanor cases involving petty
offenses * * * the court may refuse to accept a plea of guilty or no contest and shall not
2
Case No. 2021-A-0028
accept such pleas without first informing the defendant of the effect of the plea of guilty,
no contest, and not guilty. This information may be presented by general orientation or
pronouncement.” “When a defendant charged with a petty misdemeanor traffic offense
pleads guilty or no contest, the trial court complies with Traf.R. 10(D) by informing the
defendant of the information contained in Traf.R. 10(B).” State v. Watkins, 99 Ohio St.3d
12, 2003-Ohio-2419, 788 N.E.2d 635, at syllabus; State v. Jones, 116 Ohio St.3d 211,
2007-Ohio-6093, 877 N.E.2d 677, ¶ 25. Traf.R. 10(B)(1) provides, “[t]he plea of guilty is
a complete admission of the defendant’s guilt.” Crim.R. 11(E) provides that “[i]n
misdemeanor cases involving petty offenses the court may refuse to accept a plea of
guilty or no contest, and shall not accept such pleas without first informing the defendant
of the effect of the plea of guilty, no contest, and not guilty,” and is therefore “identical in
all relevant respects to Traf.R. 10(D).” Watkins at ¶ 15.
{¶8} Neither Crim.R. 11(E) nor Traf.R. 10(D) mandate the heightened colloquy
required for felony pleas pursuant to Crim.R. 11(C)(2), which provides:
In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or
no contest without first addressing the defendant personally
either in-person or by remote contemporaneous video in
conformity with Crim.R. 43(A) and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
3
Case No. 2021-A-0028
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
See also Watkins at ¶ 25 (“A judge’s duty to a defendant before accepting his guilty or no
contest plea is graduated according to the seriousness of the crime with which the
defendant is charged.”). Accordingly, “[i]n all cases, the judge must inform the defendant
of the effect of his plea. In felony cases and misdemeanor cases involving serious
offenses, a judge must also ‘addres[s] the defendant personally’ and ‘determin[e] that the
defendant is making the plea voluntarily.’” Id. at ¶ 26, citing Crim.R. 11. “For felony
defendants, and only felony defendants, Crim.R. 11(C)(2)(c) adds something extra and
separate—the judge must also inform the defendant of all the rights attendant to the trial
that he is foregoing.” (Emphasis sic.) Watkins at ¶ 27.
{¶9} Here, the trial court engaged in the following plea colloquy:
THE COURT: * * * Mr. Ely, what’s being indicated today is that
you wish to change your original not guilty plea to a plea of
guilty to the charge of Operating a Vehicle Under the
Influence. Is that what you wish to do today?
THE DEFENDANT: Yes.
THE COURT: You understand that by pleading guilty to this
offense that you would be withdrawing – your attorney and
you would have to withdraw the suppression motion that you
filed, so you would be withdrawing any request for this Court
to review the issues raised in the suppression motion, and you
would be withdrawing your right to a suppression hearing. Is
that what you wish to do?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. By pleading guilty, you would also be
waiving your right to a trial, which includes your right to cross-
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Case No. 2021-A-0028
examine witnesses and to confront evidence presented
against you. You’d be waiving your right to testify or not
testify, without any negative connotation. You’d be waiving
your right to subpoena witnesses. You’d be waiving your right
to be proven guilty beyond a reasonable doubt, as well as your
right to a jury trial. All of those, your trial rights, you’d be
waiving by pleading guilty to this offense.
Are you sure you want to do that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You are represented by [defense counsel].
Have you had sufficient time to consult with him, and are you
satisfied with his counsel?
THE DEFENDANT: Yes.
THE COURT: Has anyone made any promises to you on what
your sentence will be in order to induce you to plead guilty to
this offense?
THE DEFENDANT: No.
THE COURT: Okay. So, you understand that whatever
recommendations are being made are simply that: They’re
just recommendations to the Court. This Court does not have
to follow any recommendations. So, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. Are you currently under the influence of
any drugs, alcohol or prescription medications today that
might affect your thinking?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you currently on probation, parole,
community control or post-release control with any court?
THE DEFENDANT: No.
THE COURT: And are you thinking clearly today, and do you
understand everything that’s happening?
THE DEFENDANT: Yes.
5
Case No. 2021-A-0028
THE COURT: I’m going to provide a form for you and [defense
counsel] to review and, if you find it acceptable, execute.
[DEFENSE COUNSEL]: This is the written waiver of trial, jury
trial, which he just communicated verbally (inaudible) would
sign there. Thank you.
Mr. Ely has executed, and I’ve signed it as well, in open court
a waiver of trial rights and the right to a jury trial in the instant
case, Your Honor. Thank you.
***
THE COURT: * * * The Court finds the Defendant’s plea of
guilty to the charge of Operating a Vehicle Under the
Influence, a violation of Section 4511.19(A)(1)(a) of the Ohio
Revised Code, is knowing, voluntary and intelligent. The
Court will accept the guilty plea to that charge. I will, therefore,
find the Defendant guilty of that offense.
{¶10} Thus, although the trial court explained numerous rights to Ely that he would
be waiving due to his guilty plea, there is no dispute that the trial court did not specifically
inform Ely that his guilty plea was “a complete admission of [his] guilt.” See Traf.R. 10(B)
& 10(D). In Sauceman, this court held:
The failure to comply with the sole requirement mandated by
the Traffic Rules for accepting a plea in petty offense cases,
like its counterpart for petty offense cases in the Criminal
Rules, is grounds for reversing the conviction. State v. Clark,
2012-Ohio-3889, 976 N.E.2d 293, ¶ 32 (11th Dist.) (by failing
“to inform appellant of the effect of her guilty plea, as
mandated by Crim.R. 11(E) and Traf.R. 10(D)” the trial court
“committed prejudicial error”); State v. McGlinch, 2019-Ohio-
1380, 135 N.E.3d 406, ¶ 31 (2d Dist.); Maple Heights v.
Mohammad, 8th Dist. Cuyahoga No. 108060, 2019-Ohio-
4577, ¶ 16; State v. Smith, 9th Dist. Medina No. 14CA0122-
M, 2016-Ohio-3496, ¶ 12.
Sauceman at ¶ 17. See also State v. McGrath, 2d Dist. Darke No. 2019-CA-21, 2021-
Ohio-2605, ¶ 18.
6
Case No. 2021-A-0028
{¶11} Relying on Sauceman, Ely argues that the trial court’s failure to inform him
that his guilty plea was a complete admission of his guilt constituted a “complete” failure
to comply with the Rule, and thus he is not required to demonstrate prejudice. However,
unlike Sauceman and McGrath, the trial court here explained numerous rights that Ely
was waiving by entering a guilty plea, such as those set forth in Crim.R. 11(C)(2),
including Ely’s right to a jury trial, to cross-examine witnesses against him, to subpoena
witnesses, to testify or not, without negative connotation, and to be proven guilty beyond
a reasonable doubt.
{¶12} The state maintains that although the trial court did not strictly comply with
Traf.R. 10(D), it substantially complied with the Rule, and Ely was not prejudiced. In
support, the state relies on the Supreme Court of Ohio’s decision in State v. Griggs, 103
Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51. In Griggs, the defendant entered guilty
pleas to voluntary manslaughter and burglary, thus implicating Crim.R. 11(C)(2). Id. at ¶
2-3. “During a plea hearing, the court advised Griggs of potential sentencing
consequences and of various rights, including the rights to have a jury trial, to have an
attorney, to subpoena witnesses, to confront his accusers, and to avoid compulsory self-
incrimination. The court did not, however, inform Griggs that his guilty plea was a
complete admission of guilt.” Id. at ¶ 4.
{¶13} The Griggs court recognized that the right to be informed of the effect of a
plea is a nonconstitutional right, subject to a substantial compliance standard. Id. at ¶ 12.
The court held that “[a] defendant who has entered a guilty plea without asserting actual
innocence is presumed to understand that he has completely admitted his guilt. In such
circumstances, a court’s failure to inform the defendant of the effect of his guilty plea as
7
Case No. 2021-A-0028
required by Crim.R. 11 is presumed not to be prejudicial.” Id. at syllabus. The Griggs
court specifically did not limit its analysis to Crim.R. 11(C)(2), but instead “resolve[d] the
effect of a court’s failure to advise a criminal defendant that a guilty plea is a complete
admission of guilt, pursuant to Crim.R. 11(C)(2), (D), and (E).” Id. at ¶ 2. Because
Traf.R. 10(D) is identical in relevant part to Crim.R. 11(E), we conclude that the Griggs
holding applies to Traf.R. 10(D). See Watkins, 2003-Ohio-2419, at ¶ 15.
{¶14} However, Ely further contends that, unlike Griggs, his comments at the
sentencing hearing assert actual innocence and establish prejudice.
{¶15} After the plea colloquy recited above, the following exchange occurred while
discussing the circumstances of the traffic stop and the services Ely had been receiving:
THE COURT: Okay. And in the report I have in front of me
from Community Counseling Center indicates that you have
not – you quit drinking in 2015.
THE DEFENDANT: Yeah. I hadn’t drank for quite some time.
THE COURT: Okay. Was this a relapse on your part?
THE DEFENDANT: No.
THE COURT: Okay. Also, the report also indicates you
continue to use cannabis at least once a week but said you
had quit over a month ago.
So, were you under the influence of marijuana at the time? I
mean –
THE DEFENDANT: No. I was pulled over – I was pulled over,
I feel I should have just got a speeding ticket. The officer
grabbed me out of my vehicle physically. That’s what started
me, that I was kind of uncooperative after that, because I was
upset that he had physically grabbed me out of my vehicle and
detained me into his patrol car, and then after that did the field
sobriety and stuff like that.
And, yeah, I was up – upset. I was upset.
8
Case No. 2021-A-0028
THE COURT: Well, I understand you were upset, but that’s
my question [sic]. My question is, you just pled guilty to
operating a vehicle under the influence. What were you under
the influence of at the time?
THE DEFENDANT: I blew a breathalyzer.
[DEFENSE COUNSEL]: Your Honor, if I may?
THE COURT: Yes.
THE DEFENDANT: I don’t want to say anything incriminating
here. I mean, I blew into the breathalyzer.
THE COURT: You just pled – you just pled guilty, Mr. Ely.
THE DEFENDANT: I blew into the breathalyzer.
THE COURT: There isn’t anything more incriminating than
that. You just pled guilty.
So go ahead, [defense counsel].
[DEFENSE COUNSEL]: Your Honor, thank you.
Um, Mr. Ely did blow a .118 on the portable breathalyzer test,
and once he was at the jail, he claimed the alcohol present
was from Robitussin cough syrup.
THE COURT: Okay.
[DEFENSE COUNSEL]: So, that’s what he claimed on the
day of the offense, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: Thank you.
THE COURT: Thank you.
Mr. Ely, you just pled guilty to operating a vehicle under the
influence of alcohol, drugs of abuse, or a combination thereof.
That’s what you just pled guilty to.
9
Case No. 2021-A-0028
So, um, if you don’t want to say anything before I sentence
you, that’s fine. You know, I mean –
THE DEFENDANT: Well –
THE COURT: -- you – you pled guilty to that.
THE DEFENDANT: I understand, Your Honor.
THE COURT: So, my question was simple: What were you –
what were you under the influence of?
THE DEFENDANT: It was – I blew a 1.8 [sic.], it was alcohol.
THE COURT: Okay. So, the report you made to Community
Counseling was not correct? It says he – he reported he quit
drinking in 2015. So drinking alcohol is different than
Robitussin?
THE DEFENDANT: No.
THE COURT: Okay. I’m going to proceed to impose
sentence. * * *
{¶16} Despite Ely’s comments that could indicate that he did not understand that
the effect of his guilty plea was a complete admission of guilt, he did ultimately
acknowledge that he blew above the legal limit on the breathalyzer as a result of alcohol.
Therefore, to the extent that Ely maintains that the Griggs presumption is inapplicable
due to his assertion of actual innocence, his argument lacks merit.
{¶17} Accordingly, we conclude that the trial court substantially complied with
Traf.R. 10(D) and Ely is “presumed to understand that he has completely admitted his
guilt” pursuant to Griggs.
10
Case No. 2021-A-0028
{¶18} Therefore, the judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
11
Case No. 2021-A-0028 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483625/ | Filed 11/14/22 P. v. Gentry CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C095339
Plaintiff and Respondent, (Super. Ct. Nos. 19CF05900
& 19CF07403)
v.
BRANDON MICHAEL GENTRY,
Defendant and Appellant.
Appointed counsel for defendant Brandon Michael Gentry asks this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a
disposition more favorable to defendant, we will affirm the judgment.
BACKGROUND
On September 12, 2019, defendant was stopped by a police officer for failing to
stop at a stop sign. After learning defendant was on probation, as well as a documented
gang member, the officer searched defendant’s car. The officer found a loaded handgun
1
in between the driver’s seat and center console and a pill bottle containing ammunition.
Defendant was arrested and charged with unlawful firearm activity and possession of
ammunition in Butte County Superior Court case No. 19CF05900 (case No. 900). On
October 2, 2019, defendant pleaded no contest to both charges; he was released on his
own recognizance.
On November 13, 2019, while out on his own recognizance, defendant was again
stopped for a traffic violation. The officer conducted a patdown search of defendant and
found a fixed-blade knife, methamphetamine, and drug paraphernalia. Defendant was
arrested and charged in Butte County Superior Court case No. 19CF07403 with a single
felony, carrying a dirk or dagger, and two drug-related misdemeanors. The People also
alleged defendant committed the felony offense while released on his own recognizance
in case No. 900.
On February 5, 2020, following an unsuccessful Marsden motion,1 defendant
pleaded no contest to possessing a dirk or dagger and admitted he committed the offense
while released on his own recognizance in case No. 900. Resolving both cases, the trial
court placed defendant on three years of formal probation and ordered him to serve 280
days in county jail.
Defendant violated his probation twice and was reinstated twice before December
8, 2021, when defendant again violated probation and was sentenced to an aggregate term
of five years four months in state prison.
Defendant timely appealed but did not obtain a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
1 People v. Marsden (1970) 2 Cal.3d 118.
2
issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by
counsel of the right to file a supplemental brief within 30 days from the date the opening
brief was filed, but to date, has not done so. Our review of the record pursuant to Wende
disclosed no arguable errors in defendant’s favor.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
EARL, J.
3 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491100/ | ORDER ON MOTIONS FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS is a Chapter 7 liquidation case and the matters under consideration are claims set forth in a five-count Complaint filed by Terry E. Smith (Trustee), the duly appointed and acting Trustee in charge of the administration of the estate of James A. Wittenburg, Sr. (Debtor). The matters presented for this Court’s consideration are Motions for Summary Judgment filed by both the Plaintiff and the Defendants, who agree that there are no genuine issues of material fact, and that the respective contentions of the parties can be resolved as a matter of law. The record confirms that there are no genuine issues in dispute concerning the material facts which can be summarized as follows:
By virtue of a Last Will and Testament executed by L.J. Novak, who died in 1959, the Debtor inherited a one-half interest in the estate of the Testator. The will was duly probated in 1959 and, in essence, created a trust to provide for support of the Testator’s wife during her lifetime with the remainder to be shared equally between the Debtor and his cousin. At the time the will was probated, the estate consisted of two large tracts of land located in Wood-ruff County, Arkansas. Although it is not clear from the record, it appears that the Commercial National Bank of Little Rock, Arkansas (Bank) was named as trustee for the testamentary trust known as the L.J. Novak Trust.
It appears that, sometime in 1981, the land was sold to Kenneth Canfield, who executed a promissory note and mortgage to secure the unpaid balance of the purchase price. The note was an installment note which required Canfield to make *68monthly payments to the Bank until 1995. .It appears that Canfield made payments to the Bank who, in turn, distributed the proceeds to the Testator’s widow during her life and, afterwards, to the Debtor and to the Debtor’s cousin. On December 17, 1986, the Bank as trustee assigned the interest in the Canfield note and mortgage to the Debtor and to his cousin as tenants in common, which conveyance effectively terminated the trust. This Assignment of Note and Interest was duly recorded with the Clerk of the Chancery Court in and for Woodruff County, Arkansas on January 2, 1987.
On November 26, 1986, while the trust was still in existence, the Debtor purchased an auto service and parts retail establishment from the Defendants. As part of this transaction, the Debtor executed a note in favor of the Defendants and granted a security interest in all of the business assets purchased by the Debtor. In addition, the Debtor executed a document entitled, “Assignment of Interest” which purported to assign his interest in the Canfield note and mortgage which, at that time, was held by the Bank as trustee pursuant to the Last Will and Testament of L.J. Novak. The pertinent part of the Assignment reads as follows:
This Assignment will be operative only after all other security for the said note and first mortgage has been exhausted.
The assignment did not prevent the Debtor from using the funds received from the Bank during the existence of the trust, nor after the monies received from Canfield after the trust was terminated. The fact of the matter is that it is very likely that the Debtor continued to receive his share of the payments made by Canfield on the note and mortgage and, as far as it appears, is quite possible that he is still receiving his share, notwithstanding the intervention of the bankruptcy. The only restriction placed on his right to enjoy the benefits of his interest in the Canfield note and mortgage v/as a provision which required that the value of his interest in the note and mortgage should at no time be less than the offsetting balance owed by him to the Defendants. Although the Contract of Purchase and Sale executed in November of 1986 by the Defendants as sellers and the Debtor as a buyer makes a reference to a security agreement in the financing statement (Exh. E to Defendants’ Motion for Summary Judgment), there is nothing in this record to indicate that either the security agreement or the financing statement makes any reference specifically to any part of the Debtor’s interest in the L.J. Novak trust and/or the Canfield promissory note and mortgage.
It should be noted in this connection that Paragraph 9 of the Last Will and Testament of L.J. Novak provides:
Any payment or payments of either income or principal from my residuary estate hereinbefore directed to be made to my beneficiaries hereinbefore named, shall not be subject to debts, engagements, auticipation [sic] or alienation of my beneficiary or beneficiaries, nor shall same be subject to judgment, at-tachement [sic] or other process of law at the hands of anyone whomsoever. (emphasis supplied)
The “Assignment of Interest” executed by the Debtor on November 26, 1986, was executed before the Debtor and the Debt- or’s cousin acquired the interest in a note and mortgage from the Trustee. Thus, it is clear that, at the time he assigned the interest, he had no interest whatsoever in the note and in the mortgage, except a possible future residual interest, albeit contingent upon the possibility that upon the death of the Testator’s widow, there are still properties remaining in the trust, and upon any ultimate shortfall which might occur after the Defendants liquidated all their collateral in the event of a default by the Debtor.
The Debtor ultimately defaulted on his obligation to the Defendants and the Defendants filed an action to foreclose the mortgage and the “security interest” in the Canfield note and mortgage. The Amended Final Judgment of foreclosure of the mortgage and Order of Sale was entered on January 27, 1989. The Amended Final Judgment of Foreclosure foreclosed the interest of the Debtor in real estate specifi*69cally described in the Final Judgment, and the Debtor’s interest in its equipment, inventory and product line listing. There is nothing in the final decree of foreclosure and Order for Sale entered on June 27, 1989, which made any mention of the Defendants’ interest, if any, either in the L.J. Novak trust, which, by the way, at that time was no longer in existence, having been dissolved, or in the Canfield note or mortgage.
In due course, the sale was scheduled and held, at which time the Defendants were the successful bidders and purchased all their collateral, but not the note and the mortgage. Thereafter, the Defendants sought a deficiency judgment and on April 24, 1989, the Circuit Court entered a Deficiency Judgment in the amount of $117,641 plus attorneys fees and costs. In addition, the Circuit Court also decreed that:
2. The Plaintiffs, HAROLD MULNIX and MARIAN MULNIX, his wife, be and the same are hereby subrogated to and entitled to the collateral securing that certain First Mortgage on the subject matter property held by AmeriBank-Oldsmar, in the amount of SIXTY-NINE THOUSAND SEVEN HUNDRED TWENTY-SEVEN AND 64/100 DOLLARS ($69,727.64), which collateral is represented by the Assignment of Interest executed by the Defendant, JAMES A. WITTENBURG, SR., in favor of the plaintiffs, HAROLD MULNIX and MARIAN MULNIX, his wife.
3. The Court retains jurisdiction of this cause to determine costs and attorney’s fees for the matters related to the obtaining of this Final Judgment of Deficiency.
The Debtor filed his Petition for Relief under Chapter 7 in this court on April 27, 1989, three days after the Deficiency Judgment was entered by the Circuit Court. Terry E. Smith was appointed as Trustee of the estate of the Debtor, and on July 27, 1989, he filed a five-count Complaint. The substance of the Complaint filed by the Trustee may be summarized as follows:
Count I claims that a certain Final Judgment of Deficiency entered on April 24, 1989, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, was legally ineffective to convey any interest to Harold and Marion Mulnix, the Defendants named in the Complaint in that the Defendants did not obtain a writ of execution or writ of garnishment, thus, no judgment lien attached to a certain promissory note in which their interest is the crux of the controversy. The Trustee contends in Count I that, by virtue of § 544 of the Bankruptcy Code, a claimed judicial lien is void against the Trustee. The claim in Count II is based on § 547 of the Bankruptcy Code and, according to the Trustee, the entry of the judgment referred to earlier, if it did create a lien, was a voidable preference in that the Final Judgment entered in the state court, if it operated as a transfer, did occur within 90 days on account of an antecedent debt and since all other operating elements of a voidable preference are present, the Trustee is entitled to a declaration that his interest is superior to any interest of these Defendants. The claims set forth in Count III were also based on § 547 by the contentions that the transfer was a certain “assignment of interest” which became operative only within 90 days and, therefore, could be avoided by the Trustee for the preferential transfer.
The claim asserted by the Trustee in Count IV is based on the contention that the certain “Assignment of Interest” purported to grant the security interest in the proceeds of that certain trust referred to as the “L.J. Novak Trust”, since the only way to perfect the security interest by the Trustee is to file a financing statement.
The last claim set forth in Count V contends that “the trust referred to as L.J. Novak trust” became a promissory note [sic], and inasmuch the note can only be perfected by profession or by filing a financing statement pursuant to Fla.Stat. § 697.304(1) or Fla.Stat. § 679.305, the Trustee as an ideal judgment creditor would defeat that interest pursuant to § 544 of the Bankruptcy Code.
On May 4, 1989, Defendants filed a Motion which sought relief from the automatic *70stay in order to be permitted to proceed to enforce the Deficiency Judgment entered by the Circuit Court on April 24, 1989. On June 23, 1989, this Court entered an Order granting the Motion for the limited purpose of permitting the parties to obtain a clarification from the Circuit Court of its Pinal Judgment of Deficiency entered on April 24, 1989. The Motion for Clarification sought a determination whether or not the one-half interest of the Debtor in the L.J. Novak trust became the property of the Defendants as of November 26, 1986, on which date the document entitled, “Assignment of Interest” was executed. After hearing was held on September 5, 1989, the Circuit Court entered an order on the Motion for Clarification, in which it held that the Defendants became the absolute owners by virtue of an absolute assignment of the Canfield note and mortgage as of November 26, 1986, the date the “Assignment of Interest” was executed.
These are the salient facts which, according to both the Plaintiff and the Defendants, entitle them to summary judgment as a matter of law.
From the foregoing, it is clear and this Court is satisfied that the issues raised by the Plaintiff and the Defendants cannot be resolved without an in-depth analysis of the legal effect of the “Assignment of Interest” executed by the Debtor on November 26, 1986, and without a proper analysis of the legal effect of the Pinal Judgment of Deficiency entered by the Circuit Court on April 24, 1989, and the Order on the Motion for Clarification entered pursuant to the hearing held on September 5, 1989. Resolution of these matters also requires determination of the legal effect of an intervention of bankruptcy, and the specific voiding powers according to the Trustee in bankruptcy by the Bankruptcy Code.
Considering first the legal effect of the “Assignment of Interest”, this Court is satisfied that it was nothing more than an attempt to grant a conditional security interest in the Canfield note and mortgage for the limited purpose of providing additional collateral to secure the indebtedness owed by the Debtor to the Defendants as a result of the purchase of the automotive parts and service business. Moreover, even if the “Assignment of Interest” attempted to create a present right in the Canfield note and mortgage, it was ineffective totally because on the date the “Assignment of Interest” was executed, the Debtor had no interest in the Canfield note and mortgage. It is axiomatic that a security interest vested cannot attach in the collateral until the debtor acquires interest in the collateral. Fla.Stat. § 679.204[1]. Of course, it is evident from the plain language that the document executed by the Debtor was nothing more than that a condition of security interest created no valid and enforceable interest until it was determined that the Defendants were not able to obtain full satisfaction of the obligation owed to them by the Debtor from the liquidation of other collateral which they had. It is equally clear that no enforceable interest could be created in a mortgage unless the assignment of the mortgage is properly recorded in the public records in the county where real estate conveyances are recorded.
There is no dispute that in this particular instance, the Defendants never had possession of the note and it is equally without dispute that this “Assignment of Interest” was never recorded in the public records of Woodruff County, Arkansas. Even assuming, but not admitting, that the Defendants acquired a present interest in the Canfield note and mortgage by virtue of the “Assignment of Interest” by the Debtor, there is hardly any question that such interest could not survive bankruptcy simply because the special voiding power accorded to a trustee by § 544(a) of the Bankruptcy Code would grant the Trustee a right superior to the right of the Defendants due to lack of perfection of their interest in the Canfield note and mortgage.
Based on the foregoing, this Court is satisfied that the Defendants did not acquire a valid and enforceable interest in the Canfield note and mortgage by virtue of the “Assignment of Interest” or, in the alternative, even if they did, such interest is inferior to the interest of the estate. *71This leaves for consideration whether or not these Defendants did acquire for the first time a valid and enforceable interest in the Canfield note and mortgage when the Circuit Court entered the Final Deficiency Judgment on April 24, 1989, or three days prior to the commencement of the bankruptcy case. Assuming, without admitting, that Paragraph 2 of the Final Deficiency Judgment which purported to “sub-rogate” the Defendants to the collateral described in the “Assignment of Interest” did create for the first time a valid enforceable interest in the Canfield Note and Mortgage in favor of the Defendants. Accordingly, the entry of the Final Deficiency Judgment was clearly a transfer, albeit by judicial fiat, within the meaning of the term “transfer” as defined by § 101(50) of the Bankruptcy Code.
This being the case, the transfer occurred within 90 days of the commencement of the case and by virtue of § 547(f) the Debtor was presumed to be insolvent absent of any countervening proof which is nonexistent in this instance, this transfer is a voidable preference under § 547(b) of the Bankruptcy Code.
The matter is further complicated however, by the fact that after the commencement of a case, this Court authorized the parties to go back to the Circuit Court in order to obtain a clarification of a provision of the Final Judgment of Deficiency which purported to “subrogate” the Defendants. The reason this Court authorized the parties to seek a clarification of this paragraph is because it is impossible to determine from this Paragraph 2 to whom the Defendants were subrogated and what was the intent of the Circuit Court concerning these Defendants’ right to the collateral described in the “Assignment of Interest”. This provision provides specifically in Paragraph 2 as follows:
2. The Plaintiffs, HAROLD MULNIX and MARIAN MULNIX, his wife, be and the same are hereby subrogated to and entitled to the collateral securing that certain First Mortgage on the subject matter property held by AmeriBank-Oldsmar, in the amount of SIXTY-NINE THOUSAND SEVEN HUNDRED TWENTY-SEVEN AND 64/100 DOLLARS ($69,727.64), which collateral is represented by the Assignment of Interest executed by the Defendant, JAMES A. WITTENBURG, SR., in favor of the plaintiffs, HAROLD MULNIX and MARIAN MULNIX, his wife.
The difficulty arises from the fact that the Circuit Court in the Order of Clarification, rather than clarify the provision dealing with the subrogation, provided that one-half interest of a Debtor in the L.J. Novak trust became the property of the Defendants retroactively as of November 26, 1986, the date on which the “Assignment of Interest” was executed.
The Order of Clarification purported to vest in the Defendants absolute ownership of the Canfield note and mortgage in spite of the fact that, as noted earlier, the “Assignment of Interest” never purported to convey ownership of the Canfield note and mortgage, but merely attempted to create a conditional security interest to be operative only after the Defendants exhausted all the other collaterals in which they had an interest. Moreover, the Final Judgment of Foreclosure and the Order for Sale did not foreclose the Debtor’s interest in the Canfield note and mortgage, and the Defendants did not purchase any interest at the foreclosure sale of the Canfield note and mortgage. Accordingly, on the date of the commencement of this Chapter 7 case, the Canfield note and mortgage was property of the estate possibly only subject to an interest created by the entry of the Final Deficiency Judgment entered by the Circuit Court on April 24, 1989, which interest, as noted earlier, is voidable as a preference pursuant to § 547 of the Bankruptcy Code. It is evident and axiomatic that the rights of the parties, vis-a-vis, the estate of the Debtor, are determined as of the date of the commencement of the case. Thus, it is a legal impossibility to acquire ownership in properties of the estate postpetition even by a judicial fiat entered postpetition when such ownership clearly did not exist on the date of the commencement of the case.
*72Based on the foregoing, this Court is satisfied that to the extent the Order of Clarification purported to vest in the Defendants absolute ownership of the Can-field note and mortgage, which might have created outside of the bankruptcy a valid, enforceable interest, it could not have any legal effect on the estate’s interest in the Canfield note and mortgage.
Thus, in the last analysis, this Court is satisfied that the claim of the Defendants to the Canfield note and mortgage is inferi- or to the interest of the estate and since there are no genuine issues of material facts, the Trustee is entitled to judgment as a matter of law.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by the Trustee be, and the same is hereby, granted, and a separate Pinal Judgment will be entered in accordance with the foregoing.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491101/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THIS is a Chapter 7 liquidation case and the matter under consideration is the dis-chargeability vel non of a debt admittedly due and owing by Glenn M. Fish (Debtor) to Russell A. Martocci (Plaintiff). The claim of nondischargeability is based on § 523(a)(2)(A), and the proposition urged by the Plaintiff is that the Debtor obtained money from the Plaintiff by misrepresentation upon which the Plaintiff relied and, as a result, suffered damages evidenced by a judgment entered in the state court prior to the commencement of this case in the amount of $3,060.00, plus $475.00 attorney fees, plus $90.50 costs and interest. The facts relevant to the resolution of this controversy as established at the final eviden-tiary hearing are as follows:
At the time relevant to this controversy, the Debtor was a partner in the architectural firm known as FW Architects (FW). The Plaintiff engaged the services in a corporation known as Rocksbury Building Co. (Rocksbury) for the purpose of designing and constructing a custom-built residential home for the Plaintiff. It appears that the initial architect’s drawings were not correct and, for this reason, Rocksbury entered into an agreement with FW to make the necessary adjustments and corrections to the drawings. This was accomplished by the Debtor. The Plaintiff did enter into a contract with Rocksbury to construct the home pursuant to the revised architectural drawings. At approximately the same time, the Debtor left FW and became an employee of Rocksbury, and was placed in charge as a construction manager in charge of the supervision of the construction of the Plaintiff’s home.
Although the Debtor was employed by Rocksbury, he was paid directly by the Plaintiff for his services. By mid-summer of 1988, the home was nearing completion when the Debtor, who was apparently in a difficult financial condition, indicated to the Plaintiff that unless he continued to receive weekly payments from the Plaintiff, he would have to leave the job and seek employment elsewhere. In order to assure that the job would be completed and the Debtor would remain on the job, the Plaintiff agreed to lend him $3,000.00. The Plaintiff told the Debtor to go to his attorney’s office to sign a promissory note and to pick up the money. The promissory note (Plaintiff’s Exh. No. 1) is rather unusual in that it contains the following extensive recital in the body of the note:
The Maker hereof understands and agrees the part of the consideration for the Lender to loan the money represented by this Note is the Maker’s promise to act in his capacity, as a Registered Architect in the State of Florida duly licensed to perform architectural services, to supervise construction of Russell A. Mar-tocci's new home on Lot 17, Waterbury, *78A PRIVATE LAND RESERVE. Such services shall include, but not be limited to, being a representative of Martocci and shall ensure that the construction is in accordance with the plans and specifications and Martocci’s directions, that construction meets or exceeds all applicable codes, ordinances, laws and regulations and that construction progress proceeds in a timely manner without undue delay achieving substantial completion and final completion without defects and deficiencies in the work.
There is no question that the Debtor signed the note before a notary public and did not only peruse, but read the entire document. It is also without dispute that he did receive the funds lent to him by the Plaintiff and never repaid the loan. While it is not clear from the record, it appears the home was finished. The Plaintiff attempted to collect the loan without success; made demand on the Debtor for the repayment of the loan; then instituted an action in the state court; and later on obtained the final judgment against the Defendant by default on June 1, 1989 (Plaintiff’s Exh. No. 2).
The Debtor filed his voluntary Chapter 7 Petition on October 3, 1989, and properly listed the Plaintiff as an unsecured creditor holding an undisputed claim in the amount of $3,000.00. A Notice of Meeting of Creditors fixed the bar date to file complaints pursuant to § 523(c) of the Bankruptcy Code as January 2, 1990. The present Complaint was timely filed on December 22, 1989.
Based on the foregoing facts, it is the contention of the Plaintiff that the debt represented by the Final Judgment should be excepted from the general protective provisions of the bankruptcy discharge by virtue of § 523(a)(2)(A).
It should be noted at the outset that it has been generally recognized that the discharge provisions of the Bankruptcy Code are remedial and should be liberally construed in favor of the Debtor in order to achieve the congressional policy which is to give the debtor a new opportunity in life and a clear field for future effort unhampered by the pressures and discouragements of pre-existing debts. Local Loan v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970).
The quantum of proof required to sustain a claim of nondischargeability is far from clear. The Code itself is silent as to the burden of proof necessary to establish an exception to the discharge under § 523(a). Both appellate and bankruptcy courts are split as to whether or not the standard is clear and convincing evidence or merely a preponderance of the evidence. There are six circuits which held that the burden of proof for fraud under § 523(a) of the Bankruptcy Code is clear and convincing evidence. Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1262 (11th Cir.1988); Combs v. Richardson, 838 F.2d 112, 116 (4th Cir.1988); Matter of Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987); In re Phillips, 804 F.2d 930, 932 (6th Cir.1986); In re Black, 787 F.2d 503, 505 (10th Cir.1986); In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986); In re Kimzey, 761 F.2d 421, 423-24 (7th Cir.1985). Only the Fourth Circuit has adopted the preponderance of the evidence standard. Combs v. Richardson, supra. The latest pronouncement is the decision of the Eighth Circuit in the case of In re Garner, 881 F.2d 579 (8th Cir.1989) where the Court of Appeals, having considered extensively the case law covering this subject, concluded that they still adhere to the majority rule and require a clear and convincing standard before a claim of nondischargeability can be sustained under § 523(a)(2), citing, Matter of Van Horne, supra. It should be noted that the Supreme Court currently has under consideration this issue in the case of Grogan v. Garner, Dkt. No. 89-1149, page 31, 102, petition for cert, pending. Pending a resolution of this issue by the Supreme Court, this Court is satisfied that the well-reasoned opinion joining or accepting the majority approach is more persuasive and based on the foregoing, this Court is satisfied that the claim of nondischargeability under § 523(a)(2)(A) or (B) cannot be sus*79tained unless the proof presented is clear and convincing.
Consistent with this overall policy, the majority of the courts concluded that the burden of proof required to establish a viable nondischargeability claim under § 523(a) must be clear and convincing evidence. Chrysler Credit Corp. v. Rebhan, supra; Matter of Van Home, supra; In re Phillips, 804 F.2d 930, 932 (6th Cir.1986); In re Black, supra; In re Hunter, supra; In re Kimzey, supra. Applying these standards to this record, there is hardly any doubt that the Plaintiff has failed to meet the burden of proof required to establish a viable nondischargeability claim for the following reasons:
It is true that there is ample evidence in this record which would warrant the inference that the Debtor did, in fact, hold himself out to be a licensed architect. He never was an architect, let alone a licensed architect. This conclusion is not only supported by the fact that he was held out to be a partner in the partnership which carried the name of FW Architects but the promissory note recited earlier, which the Debtor signed, clearly indicates that it was understood by the Plaintiff that the Debtor was a registered architect. This Court is satisfied that the Debtor was well aware of this recitation in the promissory note and, by his silence, acquiesced in the falsity. Notwithstanding the foregoing, this Court is equally satisfied, however, that this misrepresentation was not material in that it played no meaningful role in the decision-making process of the Plaintiffs granting the loan to the Debtor. On the contrary, it is evident that the reason the Plaintiff lent the money to the Debtor was to assure that he would not walk off the job and that the job would be completed. It is also evident that the motivating factor of the Plaintiff in lending the money was his expectation that it would be repaid not because the Debtor was an architect. It should be pointed out in this connection there is no allegation or proof in this record of any improper construction or improper job performance by the Debtor attributable to his incompetence due to the fact that he was not, in fact, an architect.
In the last analysis, this is nothing more than a simple loan transaction and whether or not the Debtor was or was not an architect was of no consequence. This being the case, this Court is satisfied that the Plaintiff utterly failed to furnish clear and convincing evidence that the misrepresentation was material and, most importantly, that the Plaintiff relied upon this misrepresentation. Based on the foregoing, this Court is satisfied that the Plaintiff is not entitled to the relief sought and the Complaint shall be dismissed with prejudice.
A separate Final Judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491102/ | DECISION AND ORDER OVERRULING OBJECTION OF FIRST NATIONAL BANK OF POTH TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION
LEIF M. CLARK, Bankruptcy Judge.
CAME ON for hearing the objection of First National Bank of Poth Debtors to Debtors’ asserted homestead exemption. Upon consideration thereof, the court finds and concludes that the objection must be overruled.
BACKGROUND FACTS
The Debtors owned some rural land outside Floresville, Texas. They have lived continuously on this land since at least 1979. Mr. Brown is a building designer who specializes in the design and construction of metal buildings. In 1984 he obtained the first of a series of loans to finance and refinance the cost of constructing a metal building ostensibly to be used as his office. First National Bank of Poth took a personal property security interest in the structure, and extended further loans to the Browns for other business purposes secured by the structure. The security interest was duly perfected by a filing in the personal property records of the secretary of the State of Texas, but the bank never obtained a mortgage on the property, nor did it ever record this security interest in the building in the real property records.
The Browns represented to the Bank, the insurance company, an appraiser and others that the building was to be their office, that it would be portable in nature, and that they would be moving the structure to a different site as soon as they acquired that site. The Browns in fact constructed the structure on the property, affixed the structure to the land, and eventually moved into it as their home in late 1984 or early 1985, some time after they had given the Bank a security interest in the structure. Before moving into the metal building, they had been living in another, somewhat dilapidated structure on the property. The metal building, while not very large, is of sufficient size to serve as a home, though the plans shown to the bank did not give any indication that the building would be (or could be) used as a home. The original plans did not show any living space, though blue prints (not shown to the bank) did make provision for a bathroom and kitchen area, making conversion to residential use relatively easy.
The metal building was attached to the ground with metal devices designed to keep *321it from being blown down in a high wind. The devices are similar to those used for mobile homes, though the basic structure of the “foundation” differs from standard mobile home construction. The engineering plans (which were not shown to the Bank) showed the building is attached to the ground via steel blocks and steel columns, anchored into concrete. The building lacks the “skids” normally associated with a portable building. The building is quite tall for a metal structure, and the metal beams which form the base of the structure are not spaced on the same Centers as are mobile homes, making truck transport much more difficult. While the building could conceivably be moved, the task would be about as difficult and cumbersome as would a house-moving project.
ANALYSIS
The foregoing facts indicate that the property in question qualifies as the Debtors’ homestead as of the filing of the bankruptcy, under Texas state law. The structure has become sufficiently affixed to the real estate to constitute an improvement to the real estate and hence part of the homestead. Minnehoma Financial Co. v. Ditto, 566 S.W.2d 354, 357 (Tex.Civ.App.—Fort Worth 1978, writ ref d n.r.e.). As of the filing, the debtors both used and intended to use the structure as their home. Braden Steel Corp. v. McClure, 603 S.W.2d 288, 292 (Tex.Civ.App.—Amarillo 1980, no writ); McFarlane v. First Nat. Bank of Orange, 97 S.W.2d 754 (Tex.Civ.App.—Beaumont 1936, writ ref d); Sims v. Beeson, 545 S.W.2d 262 (Tex.Civ.App.—Tyler 1976, writ ref d n.r.e.). As against the chapter 7 trustee and the unsecured creditors of this estate, then, the debtors may claim the property as exempt under Section 522(b)(2). 11 U.S.C. § 522(b)(2); In re Hui-zar, 71 B.R. 826, 829 (Bankr.W.D.Tex.1987); Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35, 36-37 (1929); see Gann v. Montgomery, 210 S.W.2d 255, 259 (Tex.Civ.App.—Ft. Worth 1948, no writ).
This finding does not resolve whether the bankruptcy exemption is also effective against the Bank’s lien, however. The court has, by separate order, dismissed the debtors’ companion motion to avoid lien for want of jurisdiction, defeating the debtors’ attempts to get this court to resolve this very issue. Whether a debtor is entitled to a claimed exemption for purposes of Section 522(b)(2) focuses solely on the debtors’ entitlement to that claim under controlling state law as of the date of the filing of the bankruptcy, for purposes of removing it from the chapter 7 trustee’s administration. Huizar, 71 B.R. at 830; In re Currie, 34 B.R. 745, 748 (D.Kan.1983). The court does not (and should not) reach the question whether the debtors had a homestead interest in the structure in 1984, when the debtors gave the Bank a lien it, or whether such a lien is valid notwithstanding the assertion of homestead.1 Matter of Zahn, 452 F.Supp. 1341, 1343 (E.D.Wis.1978), aff'd, 605 F.2d 323 (7th Cir.1979), cert. denied sub nom., 444 U.S. 1075, 100 S.Ct. 1022, 62 L.Ed.2d 757 (1980).
For the foregoing reasons, the objection to exemption is overruled, without prejudice to the Bank’s asserting the invalidity or unavailability of the exemption claimed by the debtors as a defense to the Bank’s lien at some later date in some other forum.
So ORDERED.
. That issue may be controlled by such factual concerns as whether the lien was in place before construction began, whether the lien was in place before the structure became a fixture, and whether, prior to occupancy, the debtors represented (in word or deed) that the structure was not their home. Miles Homes of Texas, Inc. v. Brubaker, 649 S.W.2d 791, 793 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.) (lien in esse before property becomes homestead prevails over homestead claim); Saveli v. Flint, 347 S.W.2d 24, 27 (Tex.Civ.App.—Eastland 1961, writ ref'd n.r.e.) (in interim between declaration of intent to use and actual usage, homestead may be waived by representations relinquishing homestead claim); Federal Life Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex.Civ.App.—Texarkana 1941, writ ref’d) (debtor may be estopped by affirmative conduct from asserting homestead against an innocent purchaser). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491103/ | OPINION AND ORDER ON OBJECTION TO CLAIM OF EXEMPTION
BARBARA J. SELLERS, Bankruptcy Judge.
This matter is before the Court upon the objection of Larry Staats, the duly appointed trustee in bankruptcy (“Trustee”), to a claim of exemption asserted by the debtors, James and Helen Williams (“Debtors”). The opposed exemption relates to Mr. Williams’ interest in real property and a mobile home claimed by him as homestead exemptions. The Trustee’s objection was opposed by Debtors and was heard by the Court on November 16, 1989.
This Court has jurisdiction in this contested matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) in which this bankruptcy judge may enter a final order.
FINDINGS OF FACT
The facts of this matter are uncontested. Debtors filed a joint petition under the *400provisions of Chapter 7 of the Bankruptcy-Code on April 24, 1989. Their bankruptcy schedules indicate ownership of real estate known as 410 Rutland Street, Middleport, Ohio (“the Real Property”). The Real Property jointly deeded to Debtors is valued at $5,000 and is not subject to any liens. Also indicated on the schedules is a 1973 Kirkwood mobile home (“the Mobile Home”) which rests on and is attached to the Real Property and in which the debtors reside. The Mobile Home is titled solely in Mr. Williams’ name, is valued at $5,000 and is encumbered by a lien in the amount of $2,400 as of the date the petition was filed.
As clarified in the hearing and pursuant to Ohio Rev.Code § 2329.66(A)(1), Mrs. Williams has asserted a claim of exemption for her interest in the Real Property ($2,500) and Mr. Williams has asserted a claim of exemption for his interest in the equity of the Real Property ($2,500) and his interest in the equity of the Mobile Home ($2,600). Debtors argue that the Mobile Home and the Real Property are one asset, and therefore, Mr. Williams should be able to split the $5,000 homestead exemption between the two items. The Trustee, on the other hand, argues that the two items are separate and distinct assets, and therefore, Mr. Williams can only apply the exemption to one or the other.
ISSUE OP LAW
The issue before the Court is whether the debtor may claim a homestead exemption in both real estate and a mobile home pursuant to Ohio Rev.Code § 2329.66(A)(1) or whether the debtor is limited to one or the. other.
CONCLUSION OF LAW
Since Ohio has opted out of the federal exemption scheme pursuant to 11 U.S.C. § 522(b)(2), Ohio bankruptcy debtors generally must look to state law for exemption claims.
Section 2329.66(A)(1) of the Ohio Revised Code provides a limited exemption from attachment by a judicial lien creditor, such as a trustee in bankruptcy, for a debtor’s interest in homestead property. The section reads as follows:
(A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order, as follows:
(1) The person’s interest, not to exceed five thousand dollars, in one parcel or item of real or personal property that the person or a dependent of the person uses as a residence.
Although the Debtors and the Trustee failed to cite any case law either in their written objections or oral arguments, this question was considered in Matter of Say-lor, 7 B.R. 86 (Bankr.S.D.Ohio 1980). In that case, very much like the case at bar, the debtor resided in the mobile home which sat on two acres of land. Unlike the present case, however, the mobile home was not attached to the land but rested on blocks, and the debtor had no equity in the real property. The court, applying the plain meaning of the statute, permitted the debtor to claim an aggregate homestead exemption to the monetary limits of the statute from either real or personal property or from both.
In determining the plain meaning of the statute, the court looked to the Uniform Exemption Act from which the federal exemption and the Ohio exemption statute are derived. Saylor at 87. Also citing the Rules of Construction for the Bankruptcy Code found at 11 U.S.C. § 102(5), which provide specifically that “ ‘or’ is not exclusive,” the court determined that the debtor is “not limited to a mutually exclusive choice between the two alternatives,” as stated in the Legislative History.
In essence, where a mobile home which serves as a debtor’s residence is located on the real property sought to be claimed as the homestead exemption, the real and personal property together comprise one item of property that the debtor uses as a residence. The purpose for the exemption is best served by this interpretation.
Based upon the foregoing, the Court finds that Mr. Williams can assert his homestead exemption to the monetary lim*401its of the statute from either the Real Property or the Mobile Home or from both. The Trustee’s objection to the claim of exemption is, therefore, overruled.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491104/ | OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
DONALD E. CALHOUN, Jr., Bankruptcy Judge.
This matter is before the Court on the Motion of Defendant, Midwest Drywall, Inc. (“Midwest” or “the Defendant”) for Vacation of Stay, for Summary Judgment and for Award of Reasonable Attorneys’ Fees and Costs. The Plaintiff filed a Cross-Motion for Summary Judgment against Midwest. The Court has jurisdiction over 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 pursuant to 28 U.S.C. § 157(b)(2). The following Opinion and Order constitutes findings of fact and conclusions of law.
The Plaintiff, Frederick M. Luper, Trustee for Debtor Lee Way Holding Company (“the Plaintiff” or “the Trustee”), filed this adversary proceeding against numerous defendants, including Midwest, under the Interstate Commerce Act, 49 U.S.C. § 10101, et seq., seeking to collect accounts receivable allegedly due the bankruptcy estate. These receivables consist of undercharges resulting from differences between amounts actually paid to the Debtor for freight shipments in which each defendant was a liable party, and the amounts which allegedly should have been paid pursuant to the tariffs lawfully on file with the Interstate Commerce Commission (“ICC” or “the Commission”). The Defendant answered the Plaintiff’s Complaint and simul*402taneously requested the Court to refer this matter to the ICC under the doctrine of primary jurisdiction, to address an issue of unreasonable practice. In November, 1988, the Court granted Midwest’s unopposed Motion for Referral. On September 29, 1989, the ICC rendered its decision, finding that Lee Way had engaged in unreasonable practices and prohibiting collection of undercharges from Midwest. It is upon that decision that Midwest now seeks a judgment, asserting that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law based on those facts. The Trustee counters that the ICC allowed the defense of unreasonable practices, in contravention of the ruling of the Supreme Court in Louisville & Nashville R.R. v. Maxwell, 237 U.S. 94, 35 S.Ct. 494, 59 L.Ed. 853 (1915), that there are no issues of fact and that he, rather than Midwest, is entitled to judgment.
Rule 56(c) of the Federal Rules of Civil Procedure is made applicable to proceedings in bankruptcy by virtue of Bankruptcy Rule 7056. Rule 56(c) states in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Recognizing that the moving party has the burden of demonstrating the absence of dispute as to any material fact, the United States Supreme Court observed in the ease of United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176, 177 (1962) that:
On summary judgment, the inferences to be drawn from the underlying facts contained in such materials [pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits] must be viewed in the light most favorable to the party opposing the motion.
The purpose of summary judgment was articulated by Judge Graham of this district when he stated in Banks v. Rockwell Intern. N. Am. Aircraft Operations, 666 F.Supp. 1053, 1056 (S.D.Ohio 1987) affirmed, 855 F.2d 324 (6th Cir.1988), that:
Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed “to secure the just, speedy, and inexpensive determination of every action”. Celotex Corp. v. Catrett, 477 U.S. 317 at 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 [1986] (quoting Fed.R.Civ.P. 1). [Other citation omitted].
Judge Graham, in citing the case of Anderson v. Liberty Lobby, Inc., ill U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), observed that under Rule 56(c):
[The] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. [Emphasis in original; other citation omitted].
The Plaintiff argues that under the “filed rate doctrine” a carrier is required to charge and the shipper is required to pay the rate in the carrier’s tariff filed with the ICC. No deviation from the filed rate is permitted. The Court need only refer to the tariff to determine the amount of the Defendant’s indebtedness.
The filed rate doctrine is based upon 49 U.S.C. § 10761(a) which provides that:
A carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter. That carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that effects the value of that transportation or service, or another device.
The provision has been strictly construed, beginning with Louisville and Nashville *403R.R. v. Maxwell, 237 U.S. 94, 35 S.Ct. 494, 59 L.Ed. 853 (1915). Maxwell held, in short, that shippers who are charged less than the applicable tariff may be forced to pay the difference between the rate actually charged and the carrier’s published rate. Even an intentional misquotation by or rate negotiated with the carrier will not relieve the shipper/customer from payment of the published tariff. Maxwell, 237 U.S. at 97, 35 S.Ct. at 495. As explained by Justice Hughes:
Under the Interstate Commerce Act, the rate of a carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it_ Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it may work hardship in some cases, but it embodies the policy which has been adopted by Congress in regulation of interstate commerce in , order to prevent unjust discrimination. [Emphasis added.]
Maxwell, 237 U.S. at 97, 35 S.Ct. at 495, 59 L.Ed. at 853. Maxwell and its progeny have led the ICC and the lower courts to refuse consideration of equitable defenses in suits by carriers to collect undercharges, until recently.
In 1986, the ICC adopted a policy statement holding that, in the post-Motor Carrier Act of 1980 environment, the filed rate doctrine did not necessarily bar equitable defenses. National Industrial Transportation League—Petition to Institute Rule Making on Negotiated Motor Common Carrier Rates, Ex Parte No. MC-177, 3 I.C.C.2d 99, 1986 Fed.Carr.Cas. (CCH) para. 37,284 (October 14, 1986). This represented a reversal of the ICC’s previous position regarding this issue. In National Industrial Transportation League (“NITL”), the Commission was asked by the NITL to adopt a rule declaring a negotiated (but unpublished) motor carrier rate to be the maximum reasonable rate “if the shipper acted with a good faith belief that the negotiated rate was the legally applicable rate”. The NITL stressed that such a rule would not abrogate § 10761 and also that, “although motor carrier undercharge cases must be filed in court, 49 U.S.C. § 11706, the courts can refer the question of whether a motor carrier practice in fact violates the Act to the Commission, under the doctrine of primary jurisdiction.” Id.
The NITL’s arguments did not persuade the ICC. The Commission ultimately decided that it lacked the authority to adopt the NITL’s proposed rule because the rule would “essentially nullify” § 10761. The ICC stated that it would assume its traditional role in unreasonable practice cases and aid the court by making necessary administrative determinations. Id. However, the ICC noted that its review would remain consistent with the statutory scheme and that the court has authority to set the remedy and accept or reject the Commission’s conclusion.
Thus, as recognized by the ICC itself, the ICC’s mere change in policy enunciated in NITL is not binding upon this Court.1 *404However good the intentions of the ICC may be, the Commission’s pronounced policy cannot be interpreted as legislating new law or exceptions to existing law. In Pacific Gas & Electric Co. v. Federal Power Com’n, 506 F.2d 33 (D.C.Cir.1974). The District of Columbia Circuit Court addressed the critical distinction between a substantive rule and a general statement of policy. A properly adopted substantive rule establishes a standard of conduct which has the force of law. A general statement of policy, however, has not such force. The court explained that:
A general statement of policy is the outcome of neither a rulemaking nor an adjudication; it is neither a rule nor a precedent but is merely an announcement to the public of the policy which the agency hopes to implement in the future rulemakings or adjudications. A general statement of policy, like a press release, pre-sages an upcoming rulemaking or announces the course which the agency intends to follow in future adjudications. [Footnote omitted.]
Pacific Gas & Electric Co., 506 F.2d at 38. See also, Supreme Beef Processors, Inc. v. Yaquinto (Matter of Caravan Refrigerated Cargo, Inc.), 864 F.2d 388, 391 (5th Cir.1989).
The ICC refused to adopt the NITL’s proposed rule, but rather instead it declared a general policy on the issue of unreasonable practices. Nonetheless, the law presently requires that this Court apply the filed rate doctrine as enunciated by 49 U.S.C. § 10761 and the Maxwell decision by the Supreme Court. The decision by the ICC in NITL did not and cannot usurp the legislative duties of Congress. See, Supreme Beef, supra at 392.
It has been argued that the Motor Carrier Act passed by Congress in 1980, which substantially deregulated the trucking industry, warrants reconsideration of the filed rate doctrine. However, Congress did not amend § 10761 and, in an analogous situation, the Supreme Court has refused to give an expansive reading to the Motor Carrier Act. See, Square D Company v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). In Square D, the plaintiffs asserted that the Keough doctrine had been impliedly repealed by the Motor Carrier Act and argued that allowing antitrust actions would promote the purposes of the Act. The Supreme Court, however, refused to read into the Act an implied repeal of the Keough doctrine, stating that:
... Congress must be presumed to have been fully cognizant of this interpretation of the statutory scheme, which has been a significant part of our settled law for over half a century and that Congress did not see fit to change it when Congress carefully reexamined this area of the law in 1980.
Square D, 106 S.Ct. at 1928 (Footnote omitted). The Fifth Circuit Court of Appeals has so held in a casé involving collection of undercharges, such as the instant case. Supreme Beef Processors, Inc. v. Yaquinto (Matter of Caravan Refrigerated Cargo, Inc.), 864 F.2d 388 (5th Cir.1989).
Numerous cases have been cited by each party in support of their respective positions. Two very recent decisions West Coast Truck Lines, Inc. v. Weyerhaeuser Co., 893 F.2d 1016 (9th Cir.1990) and Delta Traffic Service, Inc. v. Oneida Motor Freight, Inc., 893 F.2d 472 (2d Cir.1990) contend that issues concerning the reasonableness of practices fall within the primary jurisdiction of the ICC. These cases, however, ignore the plain language of Maxwell in which the Supreme Court clearly limited the scope of review to a review of rates, to the exclusion of a review of practices.2
*405It is difficult to reconcile the decisions of the various courts. However, it appears to this Court that there lies a distinction between reasonableness of the published tariff, and reasonableness in practices of the carrier vis-a-vis collection of the published tariff. While both may be reviewed by the ICC, reasonableness of a carrier’s practices or reasonableness of collection of the published tariff (i.e. undercharges), are not factors which can be considered by this Court within the context of the Plaintiffs claim. See, Supreme Beef, supra. As set forth in Maxwell, supra, and other cases cited above, equitable considerations are not legally cognizable. See also, Farley Transportation Company, Inc. v. Santa Fe Trail Transportation Company, 778 F.2d 1365 (9th Cir.1985); Western Transportation Company v. Wilson & Company, Inc., 682 F.2d 1227 (7th Cir.1982); Delta Traffic Service, Inc. v. Sun Chemical Dispersions Division, 1988 Fed.Carr.Cas. (CCH) para 83,415 (S.D.Ohio Sept. 14, 1988); Delta Traffic Service, Inc. v. E.L. Mustee & Sons, 1988 Fed.Carr.Cas. (CCH) para. 83,407 (N.D.Ohio May 12, 1988). The Supreme Court specifically stated in Maxwell, supra, that shippers as well as carriers must abide by the published rate “unless it is found by the Commission to be unreasonable.” Maxwell, 237 U.S. at 97, 35 S.Ct. at 495. See also, Western Transportation Company, 682 F.2d 1227, 1231.
In this case, Midwest raises only equitable defenses which are of no great moment.3 This Court must follow established precedent, which does not recognize such defenses. The Court finds, therefore, that there are no genuine issues of material fact and the Plaintiff is entitled to judgment as a matter of law on the issue of liability. However, there is no evidence in the record to establish the amount for which Midwest is liable. Therefore, a hearing will be scheduled to establish the amount of the judgment.
Midwest has made two other requests in its Motion: for vacation of the stay of this adversary proceeding, and for an award of reasonable attorney fees and costs. The Trustee has joined in the request that the stay be lifted, and it is appropriate to do so. Midwest finally requests an award of attorney’s fees and costs which were occasioned by the Trustee’s alleged conduct before the ICC. In light of the Court’s decision on the Motions for Summary Judgment, it is inappropriate for this Court to award attorney fees and costs. The Court would note that it does not condone tactics of the kind described by Midwest in its Motion for Summary Judgment; however, any such award should be sought from the ICC, before which the behavior occurred. It would be inappropriate for this Court to impose sanctions for activities which did not occur before this Court. In accordance with the foregoing, it is
Ordered and Adjudged that Plaintiff’s Motion for Summary Judgment hereby is GRANTED in part. The Defendant’s Motion for Summary Judgment is DENIED. An evidentiary hearing will be held on May 15, 1990 at 9:30 a.m. in C.R. 148, United States Bankruptcy Court, 85 Marconi Boulevard, Columbus, Ohio 43215, to determine the balance due from Midwest. It is further
Ordered and Adjudged that Midwest’s Motion for Vacation of Stay of Judicial Proceedings is granted, and the Stay previously imposed in this adversary proceeding as to proceedings between the Plaintiff and Midwest is vacated. It is further
*406Ordered and Adjudged that Midwest’s Motion for Award of Reasonable Attorney’s Fees and Costs is denied without prejudice to Midwest to seek such an award from the Interstate Commerce Commission.
IT IS SO ORDERED.
. In Petition to Institute Rulemaking or Negotiated Motor Common Carrier Rates; Ex Parte No. MC-177, 5 I.C.C.2d 623, 1989 Fed.Carr.Cas. (CCH) para. 37,694 (June 14, 1989), the ICC attempted to strengthen the effect of its previous statements in NITL, stating:
[W]e have decided ... to reopen NITL to clarify: that we have primary jurisdiction over unreasonable practice issues; that our unreasonable practice determinations are thus binding and dispositive of the issue of the maximum reasonable compensation the carrier may receive for the transportation involved; and that our determinations are subject to judicial review only to determine that they are not arbitrary or capricious. Furthermore, we will modify our policy in this area to the extent that we will now entertain unreasonable practice claims based on negotiated rates without awaiting a court referral.
However, this court has no knowledge of any statute granting exclusive jurisdiction to the ICC for resolution of such issues. Furthermore, 28 U.S.C. § 1336(b) specifically provides that a court which refers a question or issues to the ICC shall have "exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission arising out of such referral.” Therefore, this statement by the ICC is of no more force and effect than NITL. See also, Supreme Beef Processors, Inc. v. Ya-*404quinto (Matter of Caravan Refrigerated Cargo, Inc.), 864 F.2d 388, 392 (5th Cir.1989); Delta Traffic Service, Inc. v. Sun Chemical Dispersions Div., 1988 Fed.Carr.Cas. (CCH) para. 83,415 (S.D.Ohio Sept. 14, 1988).
. Midwest suggests that the ICC has jurisdiction to sidestep the "filed rate doctrine”, although this Court does not. See, Delta Traffic Service, Inc. v. Oneida Motor Freight, Inc., 893 F.2d 472 (2nd Cir.1990) (“As previously discussed, Maxwell indicated that a filed rate should not be enforced if the ICC found it to be unreasonable. Once the ICC finds a rate or practice to be reasonable, however, courts must comply with the filed rate doctrine and may not consider *405equitable defenses to an action to collect undercharges [emphasis added].") The Second Circuit stated the narrow holding of Maxwell and then changed the meaning of the holding by including the words “or practices”. Clearly, if the Supreme Court in Maxwell had wanted to include practices, it would have. See also. West Coast Truck Lines, Inc. v. Weyerhaeuser Co., 893 F.2d 1016 (9th Cir.1990).
. Midwest has attempted to distinguish this case from previous decisions by this Court, suggesting that the ICC’s findings of unreasonable practice is not an equitable defense and is tied to the rate issue. This is, of course, without merit, and the Court need not address this theory at length. Suffice it to say that the ICC’s decision was clearly predicated on a waiver or estoppel theory, which is, of course, an equitable defense of the kind that Maxwell disavowed. In fact, Maxwell is based on a factual scenario directly on all fours with the instant case. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491106/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
DONALD E. CALHOUN, Jr., Bankruptcy Judge.
This cause came on for trial on February 6, 1990, on the Plaintiff’s Complaint against Defendants, Teamsters Union Lo*411cals 135, 413, 637 and 957 and Truckdrivers Union Local 407. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the General Order of Reference entered in this District. This matter is a core proceeding under 28 U.S.C. § 157(b)(2). At the commencement of the hearing, counsel advised the Court that only certain transfers to Union Locals 135, 957 and 407 (collectively the “Defendants” or “Union Locals”) remain at issue.
Prior to commencement of this Chapter 11 case, Commercial Lovelace Motor Freight, now known as Lee Way Holding Company (“Lee Way” or the “Debtor”), entered into a collective bargaining agreement (the “agreement”). The “dues checkoff provision” of the agreement provided that union dues would be deducted from the employees’ wages and forwarded by Lee Way to the local chapter/division of the union (Tr. 16). On March 7, 1985, Lee Way filed a Chapter 11 Bankruptcy petition and continued doing business for a short time. The Trustee seeks recovery in accordance with Section 549 of the Bankruptcy Code of three transfers made to the union locals by the Debtor after March 7, 1985 in payment of dues obligations incurred prior to March 7, 1985.
The first transfer, check No. 632411 (exhibit 1) payable to Truckdrivers Union Local 407 in the amount of $1,187.00, was dated February 28, 1985, but not negotiated until March 21, 1985. The check was payment of union dues for the week ending February 9,1985 (Tr. 9). The second transfer was check No. 634846 (exhibit 2) payable to Teamster’s Local 135 in the amount of $1,376.00. The check was paid by the bank on April 2, 1985, and was in payment of union dues for the week ending March 2, 1985 (Tr. 11). The third transfer was a check to Teamsters Local 957 in the amount of $702.00 (exhibit 3) in payment of union dues for employees of the Dayton office for the week ending March 2, 1985, and dues for employees of the Greenville office for the week ending March 9, 1985. The portion attributable to Dayton, $594.00, was all in payment of dues accrued prior to filing. The remainder, $108.00 attributable to Greenville, was only partially in payment of prepetition dues because filing occurred on the third day, March 7, 1985, of the five-day work week. The pre-petition portion of the $108.00 is $64.80. The total amount recoverable under Check No. 634851 is the sum of $594.00 and $64.80 which is $658.80 (Tr. 12).
The Defendant/union locals do not disagree that these three payments were post-petition transfers in payment of prepetition debt. Rather, they argue that the Debtor did not transfer property of the estate; rather, when the Debtor deducted the dues from its employees’ wages, the Debtor held those funds in trust for the benefit of a third-party, the union locals. The Defendants allege that these monies were effectively held in constructive trust (Tr. 17-18). Additionally, the Defendants argue that Section 1113 of the Bankruptcy Code constrains the Trustee’s authorization to recover the transfers under Section 549 of the Bankruptcy Code.
In order to properly analyze this first issue, a brief summary of the law of trusts is necessary. As the nature of a trust is equitable, Fulton v. Gardiner, 127 Ohio St. 77, 186 N.E. 724 (1933), determining whether a trust exists is a matter of state common law. Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307,1 L.Ed.2d 314 (1957). In Ohio, there are two classifications of trust: express and implied. Within that classification, implied trusts are categorized as either resulting or constructive. Hartwell v. Schlarb, 16 O.L.Abs. 728, 729 (Ct.App.1934), aff’d., 129 Ohio St. 493, 196 N.E. 273 (1935).
An understanding of express and constructive trusts is pertinent to the issue at hand. The often repeated characteristics of an express trust were originally stated by an Ohio court in Norris v. Norris, 40 O.L.Abs. 293, 57 N.E.2d 254 (Ct.App.1943), appeal dismissed, 142 Ohio St. 634, 53 N.E.2d 647 (1944), as follows:
(1) A trust is a relationship;
(2) It is a relationship of a fiduciary character;
(3) It is a relationship with respect to property; not one involving merely personal duties;
*412(4) It involves the existence of equitable duties imposed upon the holder of the title to the property to deal with it for the benefit of another; and
(5) It arises as a result of a manifestation of an intention to create the relationship.
A constructive trust, on the other hand, arises “where confidential relations exist but with persons and where some wrong has been done or fraudulent act committed which authorizes chancellor to declare a trust to prevent great injustice or fraud from being accomplished.” Koletich v. Rozman, 17 O.L.Abs. 26, 29 (Ct.App.1934).
The Defendant alleges that the money the Debtor withheld from its employees’ wages was held in constructive trust for the unions. (Tr. 17-18). “When property of an estate is alleged to be held in trust, the claimant has the burden of establishing the original trust relationship.” 4 L.King, Collier on Bankruptcy para. 541.13 (15th ed.1988). In the absence of fraudulent conduct or wrongdoing, of which there is no evidence here, there can be no finding of a constructive trust.
Whether an express trust exists between the parties requires a greater analysis. According to the Norris case, a trust is a fiduciary relationship with regard to property that imposes equitable duties upon the holder of the property. There must also be some manifestation of intention by the parties to create this relationship. Norris, 40 O.L.Abs. at 300, 57 N.E.2d 254. The relationship between the Debtor and the Teamsters Union fails to meet two of the necessary requirements of an express trust. First, this relationship was not one of a fiduciary character, and second, there is no evidence of intent to form such a relationship.
A fiduciary relationship exists when a special confidence is bestowed upon one “who in equity and good conscience is bound to act in good faith and with due regard to interests of one reposing the confidence.” Neagle v. McMullen, 334 Ill. 168, 165 N.E. 605, 608 (1929). A fiduciary relationship is entered into purposefully and with knowledge.
In the case cited by the Plaintiff, In re Columbia Packing Company, 35 B.R. 447 (Bankr.D.Mass.1983), the debtor in Chapter 11 bankruptcy sought authority to pay dues to the union accrued prepetition, claiming that it could trace the funds. As in the instant case, the checkoff provision of the union contracts did not require that a separate fund be created nor was one created by the parties. The court held that the general cash account was clearly property of the estate.1
On the facts before this Court, the Debt- or did not enter into a fiduciary relationship with the Union. There are no documents to support this nor was a specific fund generated primarily for holding these monies. The deducted funds were placed into a general account, not a special account specifically for union dues. There was no need nor intention to create any type of fiduciary relationship.
In examining whether there was an intention to create a trust, the facts in In re Thornton, 544 F.2d 1005 (9th Cir.1976) are very similar to those in the case before us and the Court’s discussion is instructive. In Thornton, the debtor corporation had entered into a labor agreement that required the corporation to deduct money from its employees’ wages and submit it to a vacation savings trust fund. On a few occasions, the corporation deducted the monies but failed to forward them to the trust fund. Upon commencement of the bankruptcy case, the referee in bankruptcy held these debts dischargeable. The trustee of the trust fund appealed arguing that the corporation, upon deducting certain amounts from employees wages, held those funds in a trust in a fiduciary capacity. Id. at 1006. In deciding whether or not an express trust had been created, the court *413said that the labor agreement was contractual in nature:
It was part of a collective bargaining agreement negotiated between employer and employees dealing at arm’s length. The only obligation assumed by the bankrupt was to pay contributions to the fund. The intent to create a trust as to monies in Thornton’s hands and before payment to the Trustees is patently lacking here.
Id. at 1007.
In the case at hand, the Debtor paid the funds pursuant to the contract and the Trustee is attempting to recover them for the estate. The issue of whether an express trust is created, however, is the same. For the same reasons, and having considered the agreement before the Court, this Court finds that there was no intention on the part of either the Debtor or the Teamsters Union to create a trust for those deducted funds.
The second issue before the Court concerns the relationship between Section 1113, rejection of collective bargaining agreements, and Section 549, postpetition transactions. The Defendants argue the applicability of Section 1113(f) which provides:
(f) No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section.
The provisions to which subsection (f) refers require the Trustee to petition the Court for approval of a modification or rejection proposal. In this case, there was no modification or rejection of the collective bargaining agreement and failure to pay the deducted funds over to the union does not constitute rejection or modification within the meaning of § 1113; thus Section 1113(f) has no application in this context.
The payments made to the union locals following the filing of the bankruptcy petition were made pursuant to the collective bargaining agreement and in the ordinary course of business. Sometime thereafter, the collective bargaining agreement expired by its own terms. The Bankruptcy Code requires payment of prepetition amounts due under an executory contract only in the event of assumption of that contract under § 365, which was not done here. This subsequent action by the Trustee to recover these postpetition transfers for the estate is authorized by Section 549.
The cases to which the Defendants cite are simply inapposite. In both In re Fiber Glass Industries, 49 B.R. 202 (Bankr.N.D.N.Y.1985), and In re Kentucky Truck Sales, Inc., 52 B.R. 797 (Bankr.W.D.Ky.1985), the Trustee motioned the court for approval to reject the collective bargaining agreement because the struggling Chapter 11 corporation could not afford to continue payments under the agreement’s present terms. Triple A Coal Company, Inc., 55 B.R. 806 (Bankr.S.D.Ohio 1985) dealt with a secured creditor’s interest in accounts receivable and the proceeds thereof. In re MCF, Inc., 82 B.R. 40 (Bankr.S.D.Texas) addressed the debtor’s interest in monies held in a segregated account. Here, the Trustee is retrieving monies belonging to the estate that were transferred following the filing of the Chapter 11 petition on account of prepetition debt.
Upon the foregoing, the Court finds the subject transfers avoidable under § 549. A separate Final Judgment in favor of the Plaintiff shall be entered as to Teamsters Union Locals 135 and 957, and Truckdri-vers Union Local 407. The Court will await a stipulation of dismissal as to the other union locals.
IT IS SO ORDERED.
. However, the Court recognized that the obligation represented a priority debt under § 507(a)(3) of the Bankruptcy Code. Therefore, the Court authorized the Debtor to make the payments, subject to the limits of § 507(a)(3). Although the posture of the instant case differs from Columbia, the principle is equally applicable. Nor is it of great moment that this case predated § 1113 of the Bankruptcy code. The principle remains the same. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491108/ | MEMORANDUM AND ORDER
WILLIAM A. HILL, Bankruptcy Judge.
By adversary Complaint filed February 27, 1989, Phillip D. Armstrong, Trustee in the Chapter 7 case, seeks recovery and restitution from the defendant, Highlands Operating Company, Inc. (Highlands), for damages and losses to the estate allegedly caused by Highlands misfeasance and breach of fiduciary duty while in control of certain of the Debtor’s property pre-conversion. The trustee also believes compensation paid to Highlands was excessive and ought to be reconsidered. The trustee asks for a full accounting by Highlands and forfeiture of their operating bond.
Highlands generally denies the allegations and counterclaims for additional earned but unpaid costs and expenses.
Trial was held on January 24, 1990.
Findings of Fact
1.
It would be impossible to begin discussing, let alone making sense out of the facts relevant to the trustee’s claims for relief without first having an understanding of the cases procedural history and the relationship of the various parties.
The Debtor, Great Plains Petroleum, Inc. (GPP), was a North Dakota corporation engaged in the operation of oil and gas producing properties, pipelines and salt water disposal wells. The function of salt water disposal wells is to serve as a depository for salt water generated from producing oil wells. In addition to being operator of wells, GPP also held a working interest in them.1 GPP operated nine salt water disposal wells and fourteen oil producing properties in which it also had working interests.
In 1986 cash flow problems ensued due to several lawsuits and the hold back by working interest owners of payment for their share of well operating costs.
On April 7, 1986, one of the working interest owners brought suit in U.S. District Court for North Dakota seeking to have GPP placed in receivership. In consequence, a receiver was appointed. Following this event, on April 17, 1986, GPP filed for protection under Chapter 11 of the United States Bankruptcy Code. By adversary Complaint filed on May 2, 1986, GPP sought turnover and an accounting from the federal receiver. That action was shortly resolved by the federal receiver and GPP as debtor-in-possession agreeing to the appointment of a Chapter 11 trustee. On May 28, 1986, Questa Engineering Corporation was appointed trustee and several days later was appointed as an examiner with the powers of a trustee pursuant to section 1106 of the Code. Questa was authorized to operate the business of GPP and perform all duties of a trustee including the operation of the wells. Dissatisfaction with Questa’s management performance caused GPP to request its termination as examiner which precipitated a negotiated plan of reorganization which, among other provisions, provided for a disbursing agent who would be responsible for payment of claims. What is noteworthy is that this agreement filed in March 1987 *572also provided for the return of GPP control to GPP’s sole shareholder, Tom Haugen.
In June 1987, Questa asked to be relieved of its examiner/trustee responsibilities. This issue came on for hearing on August 5, 1987, at which time the court was advised that a stipulation would shortly be filed resolving Questa’s motion as well as other issues. The stipulation filed' August 6, 1987, allowed for Questa’s resignation and reinstatement of GPP as debtor-in-possession. However, as a part of the stipulation it was agreed that Highlands, a contract well operator based in Texas would, subject to court approval and its election as operator by working interest owners, become operator of fifteen wells in which GPP had working interests. Its assumption of control would be effective July 1, 1987. The following is a list of the wells coming under Highlands’ control and also sets out GPP’s percentage working interest:
1. Cook N-l salt water disposal (24%).
2. Dinwoody 22-23 salt water disposal.
3. Doris Slaaten 26-1 oil (7.5%).
4. George Tank 1 salt water disposal (8%).
5. Helling State 21-16 salt water disposal (90%).
6. Kannenberg 1-27 salt water disposal (72%).
7. Kostelecky 1 oil (56.25%).
8. Kostelecky A-l oil (56.25%).
9. McMann State 21-16 oil (28.70%).
10. Sadowsky 1 salt water disposal (28.25%).
11. Signalness B-l salt water disposal (36.87%).
12. Ralph Slaaten 23-1 oil (74.64%).
13. Helling State 16-11 salt water disposal (90%).
14. Sullivan 23-1 oil (30%).
15. Thorlackson 26-3 oil (75%).
GPP remained the operator of the seven other wells. The stipulation was approved by Order entered August 7, 1987. In September 1987, GPP asked to be reinstated as operator of the fifteen Highland operated wells. This motion was withdrawn but resulted in a stipulation being filed providing for GPP’s reinstatement as operator of the following six salt water disposal wells effective November 1, 1987:
1. Helling State 21-16
2. Signalness B-l
3. Kannenberg 1-27
4. Helling State 16-11
5. Sadowsky A-l
6. Cook N-l
The stipulation was approved by Order entered December 4, 1987.
The Debtor’s Second Amended Chapter 11 Plan filed on June 2, 1988, was confirmed by Order entered June 6, 1988. As confirmed the plan incorporated the terms of the August 6, 1987, stipulation by which Highlands remained as operator of the eight oil wells and the one salt water disposal well. When GPP failed to obtain funds necessary to fund the plan the case was converted to a Chapter 7 on November 21, 1988. Highlands then ceased to operate the nine wells remaining under its control effective November 1, 1988.
The Chapter 7 trustee was authorized to operate GPP’s business and in April 1989 he sought authority to sell all of the Debt- or’s well related assets including GPP’s working interests in the oil and salt water disposal wells. These efforts culminated in a court approved sale of all GPP’s interests in the fourteen oil wells and nine salt water disposal wells to Great Dakota Oil Company, a company owned solely by Tom Hau-gen, the former owner of GPP. Great Dakota purchased these interests subject to all existing liens and encumbrances and without any warranty of title.
2.
Highlands itself never had a working interest in any of the wells but undertook their operation by virtue of the August 1987 stipulation between Questa, its predecessor operator/examiner, GPP, the Creditors Committee and working-interest owners who together agreed that Highlands would become the operator of the enumerated wells. The method of operation and duties imposed upon Highlands as operator were not set out in the stipulation itself but rather contained in a standard form operating agreement (American Association of *573Petroleum Landsmen Form 610-1982) which is typical of agreements entered into between working-interest owners and operators. Working interest owners normally elect a person or company to be operator of a petroleum property and then engage his services by entering into an operating agreement. The August 1987 stipulation as it relates to Highlands is an election.2
The operating agreement in detailed' terms sets out the duties incumbent upon an operator relative to a wells drilling and development, expenditures and liabilities of parties, leasehold acquisition, maintenance and surrender, and accounting procedures. It provides that the operator shall conduct and have full control of all operations on the land to be developed and shall have no liability to non-operators except as might result from gross negligence or willful misconduct. It allows for operator resignation upon ninety days notice or earlier where a successor assumes control. (Article V B(l)).
Although the stipulation provided an effective date of July 1, 1987, Highlands did not actually assume operational control of the fifteen wells until August 1987. For the month of July 1987, only accounting services were provided. The number of wells being operated by Highlands was reduced to nine on November 1, 1987, when operation of six salt water disposal wells was returned to GPP.
As a part of its accounting responsibilities under the agreement, Highlands as operator was to bill non-operators on a monthly basis for their share of charges paid and credits received from operations conducted on the well properties. These bills are commonly called joint interest billing statements (JIB’s). Highlands did prepare and disseminate statements for each of the months July ’87 through October 1988 setting forth the leasehold operating expenses for each well respectively and specifying GPP’s proportionate share. The JIB’s for July 1987 were prepared from Questa data. The only JIB’s in evidence are those pertaining to GPP’s interest. There are no JIB’s in evidence pertaining to any other working interest owners share. The trustee complains that the manner in which Highlands prepared the monthly JIB’s was deficient but several witnesses, including the court approved disbursing agent, acknowledged that the JIB’s as prepared by Highlands were accurate, contained a separate accounting for each well and contained no incorrect expense entries.
Some confusion arose over the transfer of JIB account receivables from Questa to Highlands upon Questa’s June 1987 resignation as examiner/trustee. As of June 30,1987, there was $183,305.58 in outstanding JIB receivables owing Questa from working-interest owners including $46,-611.47 due from L. Ron Hubbard for the months of April ($22,415.33), May ($11,-979.58) and June ($12,216.56). The documentary evidence is not complete with respect to the transfer of the JIB accounts from Questa to Highlands but presumably, based upon the lack of evidence to the contrary, it was done for the most part in a manner satisfactory to Questa and Highlands. The only discrepancy is as regards the Hubbard JIB’s for May and June which were paid to Questa in August 1987, and who, after retaining $22,415.33, issued a check to Highlands on August 25, 1987, for the balance of $24,196.14. The disbursing agent believed he should have received this money because it was collected after the stipulation effective date. He further testified that GPP was never given credit for the full sum yet a JIB for November 1987, shows a credit entry of $10,659.00. The balance of the $24,196.14 transfer is unaccounted for. The JIB’s in evidence reflect only the credits and charges for GPP and do not bear any information regarding other working-interest owners. Whether the unaccounted for $13,537.14 balance was credited to some other working-interest owner and therefore shows up on some other working-interest owners JIB’s is un*574known. No evidence was introduced to clarify the point.
While agreeing that the JIB’s completed by Highlands are accurate, the disbursing agent further testified that from his reconstruction of Highlands accounting figures there appeared to be revenues omitted of $29,530.00 from Cook N-l which from his calculations would leave GPP with a net positive working interest share of $13,-006.00 from fourteen wells (Dinwoody excepted). He could not explain, however, where his $29,530.00 omitted revenue figure came from explaining only that there must have been more water pumped into Cook N-l from McMann State 21-16 than reported. These two wells are in a symbiotic relationship, with Cook N-l serving as the disposal well for waste water generated by the McMann State oil well. The disbursing agent surmised that Cook N-l must have taken a lot more water from McMann and other wells than was reported but no substantiating documentation was produced for this opinion. An accountant working for Great Dakota reconciled all of the salt water produced, concluding that 93,848 barrels were disposed of into Cook N-l, 56,495 barrels of which came from McMann which was billed $22,667.00 at forty cents per barrel. The remaining water came from other wells but he could not locate corresponding revenues credited to Cook N-l. Neither the disbursing agent nor Great Dakota’s accountant knew exactly what the water disposal charge was but used a general industry standard. Tom Haugen figured that from November 1987, to the present, GPP should have received at least $47,000.00 as its share of salt water disposal fees earned on Cook N-l. The relevancy of this is unclear since GPP and not Highlands was the operator of Cook N-l subsequent to November 1, 1987.
The well known as Ralph Slaaten 23-1 was a marginally producing well when Highlands took it over. Prior to that time it had on and off production periods with fairly high operating costs. The well required an acid wash job in January 1988, which is not unusual according to the contract pumper who did the work. Slaaten 23-1 is a difficult well with high daily maintenance costs. Tubing was stuck in the hole causing a five day shut down for retrieval in May 1988. Unsuccessful, Highlands had it shut in on May 12. Production resumed in July 1988. Over Highlands period as operator of Slaaten 23-1 expenses were incurred of $246,903.00 while only $53,346.00 in revenues were generated.
The operating agreements specifically provides that an operator shall not undertake any single project with an estimated expenditure of over $25,000.00 without the consent of all parties via a “authority for expenditure” (AFE) (Article III fl 2). No AFE was ever issued on the Slatten 23-1 well. Tom Haugen, the president of Great Dakota, could not point to any particular AFE violation nor could any other of the trustee’s witnesses. According to the contract pumper, AFE’s are not intended for normal day-to-day maintenance operations but only for special projects. None of the work done on Slatten 23-1, even though costing a considerable amount of money over fourteen months, was of the type regarded by him as requiring an AFE. The acid wash job done in January was the single largest expenditure with cost estimates being under $25,000.00. Indeed, the contract pumper knew of no project on any well that exceeded the $25,000.00 threshold limit.
During Highlands’ operation, leases lapsed on Ralph Slaaten 23-1, Doris Slaa-ten 26-1, Kostelecky 1 and Kostelecky A-l. ASI, a working interest owner on the Slaa-ten wells stepped in and top leased the Slaaten wells. Apparently the leases were lost due to lack of production although this fact is not entirely clear. Whether the leases were of any value is wholly speculative due to the marginal nature of the wells and the costs of production. Both the Kos-telecky wells had shown net revenue losses over the period of Highlands’ operation as did the two Slaaten wells. The two Koste-lecky wells were ultimately plugged and the equipment sold off. This belies testimony by Tom Haugen that Kostelecky was showing a net profit from a 240 barrel monthly production. Haugen felt that before allowing the leases to lapse that High*575lands, as operator, should have notified the working interest owners and the court. Article VIII of the operating agreement does provide that no lease covered by the agreement shall be surrendered until all parties consent.
When Highlands ceased its role as operator in November 1988 there remained a number of unpaid well-related bills on McMann, Slaaten and Dinwoody wells. The circumstances of these unpaid billings was not developed at trial. Great Dakota is now paying these obligations due to its purchase of GPP’s working interest.
The foregoing are the most significant facts regarding Highlands’ conduct while operating the wells. Despite these accounting problems and the discrepancies generated by them, no working interest owner ever made a demand upon Highlands for an audit as was their right under the operating agreement. Any requested audit, however, is to be conducted by the non-operators with its cost being borne by parties other than the operator. Accounting Procedure Joint Operations Article I 115.
Conclusions of Law
Resolution of the issues raised does not turn upon an application of federal bankruptcy law but instead turns upon application of contract law. Highlands was not a court appointed examiner or receiver and did not embark upon its duties by reason of any bankruptcy court or Bankruptcy Code requirements. Rather, it was allowed by virtue of a stipulation between the working-interest owners including GPP, to assume the duties specified within the operating agreement which was a contract between Highlands, a non-interest operator, and the non-operator working-interest owners. The court and the Code played no part in forming this contractual relationship or the respective duties resulting thereby. All the stipulation of August 1987 did was to select an operator for certain properties. It did not set out any parameters of performance for Highlands.
The only cause of action available is for breach or negligent performance of the contractual obligations by Highlands. A party seeking damages on these grounds must prove the existence of the contract, its relationship to the act complained of and the value of the loss allegedly sustained. Computec Systems Corp. v. General Automation, Inc., 599 F.Supp. 819 (D.C.P.R.1984). In the instant case the trustee seeks recovery of what he believes are mis-allocated and omitted well revenues, loss of profits occasioned by unauthorized expenditures and lease lapses. He also requests an accounting. At this juncture, due to the sale of the estate’s interest to Great Dakota, the trustee has no interest in the wells themselves. GPP’s working interest was sold to Great Dakota who, as a consequence, became a party to the operating agreement and became successor to whatever contract rights GPP had. The only remaining cause of action the trustee has by virtue of the perceived contract breach is to recover damages equal to the amount by which the sole value of GPP’s working-interest was diminished by Highland’s breach or negligent performance.
Damages, like any other element of a cause of action, must be both pleaded and proved with the burden resting with the plaintiff to offer sufficient evidence to support the award. A party may not recover damages merely because they are asked for. Ustrak v. Fairman, 781 F.2d 573 (7th Cir.1986). The Eighth Circuit in Vigano v. Wylain, Inc., 633 F.2d 522 (8th Cir.1980) stated with approval section 331 of the Restatement of Contracts:
“Damages are recoverable for losses caused or for profits or other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” Restatement of Contracts § 331
The facts as developed at trial are for the most part inconclusive as to whether Highlands breached the operating agreement. The court has before it what are apparently incomplete JIB records and those records that it does have pertain only to GPP’s interest. To that extent the JIB’s are accurate and complete and within the require*576ments of the operating agreement. No employee of Highlands was called to testify and the complete nature of the work performed by Highlands, the reasons for it and the expenses incurred on the various wells were left undeveloped. The trustee’s cause for breach rests upon innuendo and negative presumptions but the facts themselves are less than clear. His cause falls short of the evidence necessary to establish “gross negligence or willful misconduct” which, under the operating agreement are the only grounds for operator liability.
Even if the court was satisfied that the trustee had carried his burden with regards to the issue of breach, the evidence falls far short of the standard of proof necessary to award damages. Absolutely no evidence at all was introduced bearing upon the value to the estate of GPP’s working-interest unaffected by the acts of Highlands and the degree to which that interest lost value due to Highlands’ acts or omissions.
On the matter of accounting, the court feels again that the duties imposed upon Highlands are defined by the operating agreement. Highlands has no Bankruptcy Code duty to provide an accounting. Aside from providing JIB’s which it did, its only responsibility as operator was to submit to an audit paid for by the working-interest owners — an audit which has never been requested.
Finally, the facts are insufficient for either the return of compensation by Highlands or the award to it of additional compensation.
For the reasons stated, the court finds that the trustee fails in his proof and judgment may be entered in favor of the defendant, Highlands Operating Company, Inc., dismissing the complaint of the plaintiff, Phillip D. Armstrong, trustee of the estate of Great Plains Petroleum, Inc.
SO ORDERED.
. An "operator" of a petroleum producing property is the party who actually controls and conducts the day-to-day operations for the owners who are non-operators who have working interests or royalty interests in the property. City of Long Beach v. Department of Energy, 754 F.2d 379 (temporary emergency Ct. of App.1985). A "working interest” is an operating interest as distinguished from a royalty or non-working interest (sometimes called a net profit interest). As commonly used in the oil and gas industry, the term is generally synonymous with the term, "leasehold interest”. Miller v. Schwartz, 354 N.W.2d 685 (N.D.1984). The concept of an operator must remain distinguished from an operating interest for, while some operators may also be working or operating interest owners, many are not but are merely employed by the working interest owners to manage the daily well operations.
. It is unclear from the facts whether a separate operating agreement was entered into for each well. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491110/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: ORDER TO SHOW CAUSE
JON J. CHINEN, Bankruptcy Judge.
On March 8, 1990, an Order to Show Cause hearing was held to determine whether the Chapter 7 petition filed by Wilson D. Gaoiran and Myda M. Gaoiran (“Debtors”) should be dismissed for abusive filing. Present at the hearing were Gayle Lau, Esq., Assistant U.S. Trustee and Richard Kennedy, the Trustee. Neither Debtors nor their attorney appeared. Following a review of the records in the file, the Court dismissed the case for abusive filing based on the findings of fact and conclusions of law hereinafter’ set forth.
FINDINGS OF FACT
The Debtors filed their voluntary petition on June 17, 1988. Because the Debtors were not present at the meeting of creditors scheduled for August 3, 1988, the meeting was continued at the request of Debtors’ counsel to September 9, 1988. On September 9, 1988, the Debtors again were not present and the meeting was continued until October 5, 1988. Because neither Debtors nor their counsel appeared at the meeting of creditors scheduled for October 5, the meeting was continued until moved on and the Court directed the issuance of an Order to Show Cause. However, before the Order to Show Cause was issued, counsel for Debtors informed the Court that Debtors, who are in the military, were planning to be in Honolulu in November. Thus, no Order to Show Cause was issued and the meeting of creditors was scheduled for November 17, 1988.
At the meeting of creditors held on November 17, 1988, the Debtors stated that they will amend their Schedules and the monthly Income and Expense Statement. An Amended Petition was filed on June 19, 1989, together with a Current Income and Expense Statment.
Upon review of the most current monthly income and expense statement, the Court noticed that several items were not clear. By letter to counsel for Debtors, the court inquired about the $308.00 per month payment under item (e) and the $341.00 per month payment under item (p). By letter dated August 24, 1989, counsel for Debtors explained that the $341.00 per month payment was for payment on an automobile loan and the $308.00 per month was to pay for a $25,000.00 insurance policy to cover the wife’s parent’s funeral expenses.
The Court then wrote to Debtors’ counsel on September 15, 1989 and pointed out that the $341.00 automobile payment was deducted twice because the amount of $341.00 was deducted from the payroll as shown in item (c) and also in item “p”. The Court also pointed out that $25,000.00 for insurance to cover the wife’s parents’ funeral expenses was excessive, that $10,-000.00 was adequate. The Court pointed out that, if Debtors adjusted their budget all creditors could be paid a substantial amount of their debts within 36 months and directed counsel to consult with Debtors on converting to Chapter 13. Since no answer has been received, the Court issued the Order to Show Cause.
*669Debtors’ Amended Schedules show $70,-716.41 in secured claims and $3,926.00 in unsecured claims for a total of $74,642.41. Debtors show gross income of $3,375.51. After deductions for taxes and other allotments, the take home pay is $2,072.81. The deductions includes $308.00 for their parents’ insurance with a policy of $25,-000.00 for funeral expenses.
Debtors’ monthly expenses total $1556.00 as filed by Debtors and their income and expense statement shows a monthly excess of $516.81.
To the extent that these Findings of Fact constitute Conclusions of Law, they shall be so deemed.
CONCLUSIONS OF LAW
The Court finds that, the sum of $341.00 in item p for automobile payment is a double deduction and the sum of $308.00 for $25,000.00 funeral expenses in item (e) is excessive. The Court feels $10,000.00 is adequate. The Court is of the opinion that this so-called “insurance” is a savings-in-disguise.
Should the $341.00 and one-half of $308.00 or $154.00 be added to $516.81, there is an excess of over $1000.00 per month that can be applied towards a Chapter 13 plan. That means the unsecured creditors will be receiving close to 45% of their claims.
Since the Debtors are able to pay a substantial amount of their debt with their future income, granting a discharge will be an abuse of the Bankruptcy Code. In re Kelly, 841 F.2d 908 (9th Cir.1988).
To the extent that these Conclusions of Law constitute Findings of Fact, they shall be so deemed. An Order of Dismissal will be issued forthwith. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491111/ | FINDINGS OF FACT, CONCLUSIONS OF LAW
RE: AMENDMENT TO SCHEDULES
JON J. CHINEN, Bankruptcy Judge.
An evidentiary hearing was held on March 12, 1990, before the undersigned *670Judge to determine whether an amendment to the Debtor’s schedules should be allowed to include the claim of John W. Lines (“Lines”). Following the hearing, the Court took the matter under advisement.
Based upon the evidence adduced, the memoranda submitted, the records in the file and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
Lines and Debtor were at one time very-close friends. As a result of such friendship, Lines sold his business, Hawaii Hunting Supplies, to Debtor without any down-payment, and Lines assisted Debtor in familiarizing himself with the business. Unfortunately, the two friends became involved with the same girl. As a result of this “triangle love affair”, the friendship between Lines and the Debtor evaporated. And, Lines pressured Debtor to pay the sum owing for the sale of the Hawaii Hunting Supplies.
Debtor was unable to pay his debts. After a conference with his counsel, Debtor decided to file for bankruptcy. Debtor gave all of his records concerning his debts, including the claim of Lines for $20,-000.00, to his attorney and he assumed that Lines was listed as one of his creditors. However, though the schedules showed a contingent, potential claim against Lines, Lines was not listed as a creditor.
The petition was filed on December 30, 1986. Debtor’s attorney acknowledged that it was an error on the part of his office that Lines was not listed as a creditor. Before signing the documents, Debtor briefly reviewed his petition and the attached schedules and statement of affairs. Lines’ claim was for $20,000.00 and comprised the largest single claim; however, Debtor did not make certain that Lines was listed as a creditor.
In early January of 1987, Lines, who was not aware of Debtor’s petition filed in the bankruptcy court, approached Debtor and demanded payment. Instead of informing Lines of the petition and the automatic stay, Debtor asked Lines to “wait awhile”, for he was seeking a loan.
Thereafter, on January 27, 1987, Debtor filed an Amended Schedule of Current Income and Expense, together with Amended Statement of Financial Affairs for Debtor Engaged in Business, Schedule A — Amended Statement of All Liabilities of Debtor, Schedule B — Amended Statement of All Property of Debtor and Amended Summary of Debts and Property. Again, the list of claimants did not include the name of Lines. And, the Certificate of Service filed on January 30, 1987 clearly shows that Lines was not served with a copy of the various amendments.
In February and April of 1987, Lines again approached Debtor and asked for payment of the $20,000.00 that was due. Instead of informing Lines of the petition in bankruptcy, Debtor again asked Lines to “wait a while” because he was seeking a loan.
There being no complaint or objection filed, Debtor received his discharge on June 4, 1987.
Thereafter, Lines learned from a friend that Debtor had filed a petition in bankruptcy. As a result, Lines’ counsel made a trip to Honolulu to check the court files and discovered that Lines was not listed as a creditor and that Debtor was discharged. Then, on December 21, 1987, Lines brought an action in the State Court to collect the $20,000.00 debt from Debtor. Thereafter, on March 16, 1989, Lines filed a Motion for Summary Judgment in the state court. Only then, on March 29, 1989, Debtor filed an Amended Schedule A-3 to add the claim of Lines. However, on objection of Lines who claims he was not noticed of the application to amend schedule, a hearing was held on July 19, 1989, at which time, the Amendment was vacated by the Court in its Memorandum Decision and Order Re: Motion to Strike. 102 B.R. 787.
On November 21,1989, Notice of Need to File Proof of Claim Due to Recovery of Assets was mailed to all creditors, including Lines. Deadline was set at February 20, 1990.
*671Lines claims that failure of Debtor to list him as a creditor in the original schedules and in the amended schedules, and, thereafter, failure of Debtor to inform him (Lines) of the petition shows bad faith on the part of Debtor. In addition, Lines claims that failure of Debtor to list him as a creditor caused his attorney to fly to Honolulu to check the court files, to file the action in the Third Circuit Court and to object to this late Amended Schedule attempting to add his name as a creditor. And, Lines claims that, had he known of the petition, he would have aggressively pursued the inventory that disappeared from the premises.
To the extent that these Findings of Fact constitute Conclusions of Law, they shall be so deemed.
CONCLUSIONS OF LAW
Amendments to schedules should be liberally allowed at any time absent a showing of bad faith or prejudice to third parties. In re Magallanes, 96 B.R. 253 (9th Cir. BAP 1988). Bad faith or prejudice to creditors is cause to bar amendments. In re Doan, 672 F.2d 831 (11th Cir.1982).
In the instant case, Debtor left out the name of Lines not once, but twice. Debtor left out Lines’ name in the original schedules and in the amended schedules. Because the list of creditors were listed alphabetically in both schedules, even a casual glance at the list would have shown that Lines was not listed as a creditor.
And Lines’ claim was for $20,000.00, the largest claim against Debtor. When Lines’ claim is added to the debts listed by Debtor in the amended schedules of $39,000.00, the total debt would be $59,000.00. Thus, Lines’ claim would exceed one-third (Vsrd) of the total. In reviewing the schedules and later the amended schedules, how Debtor could miss such a large claim is incomprehensible.
In addition, after the petition had been filed, when confronted by Lines for payment, Debtor did not inform Lines of the petition and of the automatic stay. Instead, Debtor asked Lines to “wait awhile”, for he was seeking a loan. If Debtor really believed that the schedules included Lines as a creditor, he would have told Lines not to harass him for payment.
Because Lines was not informed of the petition and because Lines’ name was not listed as a creditor, Lines spent considerable time and money in pursuing his claim against Debtor. In late 1978, when he learned of Debtor’s petition, Lines had his attorney fly to Honolulu to check the Court record. When Lines discovered that he was not listed as a creditor and that Debtor had been discharged, Lines commenced the action in the state court proceeding in December 1987 and filed the Motion for Summary Judgment in March of 1989. Only then did Debtor, in late March of 1989, file his Amended Schedule A-3 to add Lines as a creditor. Because of the long delay in filing the Amended Schedule A-3, Lines has spent additional time and money in objecting to the amendment.
Lines had sold the business and equipment of Hawaii Hunting Supplies to Debtor in January 1986. Lines knew what he had sold to Debtor. Debtor contends that some of the equipment in the inventory were stolen and others were lost in transit from Hilo to Honolulu. Had Debtor listed Lines as a creditor in the schedules -when the petition was filed in December of 1986 or shortly thereafter, Lines would have attended the ^meeting of creditors and aggressively examined the debtor. Debtor denied Lines the opportunity to pursue and recover the “lost” inventory. This is prejudicial to Lines and the other creditors.
Based on the foregoing, the Court finds bad faith on the part of Debtor in not listing Lines as a creditor when he amended the schedules and later failed to inform Lines of the petition in bankruptcy. In addition, the Court finds that failure to list Lines as a creditor prevented Lines from attending the meeting of creditors and vigorously examining Debtor as to the whereabouts of the “lost” inventory. This is prejudicial to Lines and the other creditors. The proposed amendment is denied.
To the extent that these Conclusions of Law constitute Findings of Fact, they shall *672be so deemed. An Order by the Court will be entered forthwith. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491112/ | MEMORANDUM DECISION AND ORDER RE: APPLICATION BY ACCOUNTANT FOR APPROVAL OF FEES
JON J. CHINEN, Bankruptcy Judge.
On February 15, 1990, Panned Kerr Forster (“Applicant”), the accountants for the estate, filed an Application by Accountant for Approval and Confirmation of Interim Compensation and Reimbursement of Expenses (“Application for Compensation”), seeking total fees of $14,239.25. A Request for Hearing on Application for Compensation was filed by the Office of the United States Trustee on February 21, 1990, essentially stating that more detail is required in the submitted time sheets, and that the reports filed herein do not comply with the U.S. Trustee’s requirements. A hearing was held on April 11, 1990, at which time the Court took the matter under advisement. The Court, being advised in the premises, now renders this memorandum decision and order.
Debtor argues that accountants should not be held to the same strict standards as attorneys in submission of time sheets to support a fee application. This is clearly incorrect.
An award of fees to an accountant, like an award of fees to an attorney is governed by 11 U.S.C. § 330, which provides in pertinent part:
§ 330. Compensation of officers.
(a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney—
(1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
As noted in In re American International Airways, Inc., 69 B.R. 396 (Bankr.E.D.Pa.1987),
We believe that a consideration of these Code sections provided as a whole estab*673lishes, beyond a doubt, that Congress meant to set the standards for appointment and compensation of all professional persons, including attorneys, accountants, and “financial management consultants” the same. Thus, in 11 U.S.C. §§ 327(a), 327(b), 327(d), and 328(b), specific references to “attorneys” and “accountants” are juxtaposed, and it seems quite clear from these provisions that all references to “professional persons” are meant to include, inter alia, both attorneys and accountants.
It is therefore not surprising to learn that the courts which have addressed the specific subject of the relationship of applications for compensation by attorneys and accountants have unanimously concluded that “an accountant’s application for compensation is reviewed under the same standard applying to attorneys.” In re R & B Institutional Sales, Inc., 65 B.R. 876, 884 (Bankr.W.D.Pa.1986). Accord: In re Affinito & Sons, 63 B.R. 495, 497 (Bankr.W.D.Pa.1986); and In re Cumberland Bolt & Screw, Inc., 44 B.R. 915, 916 (Bankr.M.D.Tenn.1984). Cf. In re Daig Corp., 48 B.R. 121, 136 (Bankr.D.Minn.1985) (factors established in connection with fee applications of attorneys apply to management consultants as well).
These cases specifically address the contention frequently made by accounting firms (although commendably not by the Movant) that they cannot (and presumably will not) comply with the procedural standards set forth in [In re] Meade Land [and Development Co. ], 527 F.2d 280 (3rd Cir.1975), in preparing their fee applications. Unfortunately, our only answer to these firms per the Code requirements, is that, if their assertions that they cannot and will not provide such applications is true, then we cannot and will not grant their applications. (Emphasis in original) (footnote omitted).
Based on the above, the Court denies the Application for Compensation without prejudice. Applicant shall have 30 days to submit revised time sheets clearly showing the services provided and the reasons for their occurrence. If Applicant fails to do so in the time allowed, the Application for Compensation will be denied without further order of the court. The Court reserves for further ruling whether the reports filed herein must comply with the Office of the United States Trustee guidelines. The Court notes, however, that several courts have held that the guidelines are not binding on the Debtor. See e.g. In re Matter of Johnson, 106 B.R. 623 (Bankr.D.Neb.1989); In re Crosby, 93 B.R. 798 (Bankr.S.D.Ga.1988).
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491115/ | ORDER ON MOTION TO DISMISS AND MOTION TO CONTINUE
GEORGE L. PROCTOR, Bankruptcy Judge.
This adversary proceeding comes before the Court at the Pretrial Conference for consideration of Defendant, William Kin-dorf, Jr.’s, Motion to Dismiss for lack of subject matter jurisdiction. Upon due consideration of the Motion together with supporting memoranda of law and argument of counsel, the Court determines that the Motion shall be denied on the following basis together with the reasoning set forth by the Court on the record at the Pretrial Conference.
The Motion of Defendant challenges the subject matter of jurisdiction of this Court to adjudicate this action by the Trustee to avoid an alleged fraudulent transfer. William Kindorf, Sr. has not filed any claim in this Chapter 7 proceeding. Her contention *735is that such an action is a “private” cause of action as defined by the United States Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) and Granfinanciera S.A. v. Nordberg, — U.S. -, 109 S.Ct. 2782, 106 L.Ed.2d 26 and accordingly this action requires adjudication by a court and judge constituted under Article III of the United States Constitution. The Motion further contends that by referring this matter from the District Court to the Bankruptcy Court for the Middle District of Florida 28 U.S.C. § 157, the general reference statute, unconstitutionally delegates Article III judicial power to an Article I Court.
The Motion by Defendant sets forth an alleged defect which is very similar to that determined by the Court in Marathon. Marathon held that the assignment of jurisdiction to the Bankruptcy Court, through 28 U.S.C. § 1471 (since repealed) violated Article III of the Constitution. In the wake of Marathon, Congress enacted 28 U.S.C. § 157 as part of a comprehensive revamping of Bankruptcy Court jurisdiction.
Examined under the present jurisdictional scheme, this is a “core” matter, which the statute allows the District Court to refer to the Bankruptcy Court, through a “general reference”, for final adjudication, with the District Court sitting in the role of appellate court with the traditional power of review. This is in contrast to the District Court’s power of de novo review in the case of “non-core” matters.
The Court is familiar with the reasonings set forth in Friedman v. Gold Advice, Inc., 103 B.R. 335 (Bankr.S.D.Fla.1989) and Ellenberg v. Bouldin, 1990 Bankr. Lexis 60 (Bankr.N.D.Ga.1990) but is not bound by those decisions and disagrees with their holdings as applied to this case. Further, the Court is aware of no decision by the District Court for the Middle District of Florida, which the Court would be bound by, which speaks to this issue. Nor is the Court aware of any decision by the 11th Circuit Court of Appeals which controls the determination of this Motion. The Court is aware of the decision in Ben Cooper v. the Insurance Company of the State of Pennsylvania, et al., 896 F.2d 1394 (2d Cir.1990), and considers the reasoning by the 2d Circuit to be correct.
Accordingly, the Court determines that the jurisdiction of the subject matter of this action is proper through the effect of 28 U.S.C. § 157 and that the statute is constitutional.
Defendant’s companion Motion to Continue the trial in this matter, for the purpose of allowing intervention by the Attorney General under 28 U.S.C. § 2403 and for additional briefing and argument, is denied. Additionally, any Motion for Stay of these proceedings pursuant to 28 U.S.C. § 158, pending determination by the District Court on a Motion for Leave to Appeal will be denied.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491116/ | ORDER ON JOINT OBJECTION TO THE CLAIMS OF THE INTERNAL REVENUE SERVICE
A. JAY CRISTOL, Bankruptcy Judge.
This cause came before the Court on February 21, 1990, at 1:30 p.m., on the Joint Objection to the Claims of the Internal Revenue Service (“IRS”) (the “Objection”) filed by the Debtor, T.M. Products Co. (“TM”) and its president Thomas Metz-ger (“Metzger”).
This Order is intended to constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
These Chapter 11 proceedings have been pending since 1985. TM is a manufacturer of aluminum doors and windows, whose plant is in an economically blighted area. It employs approximately 160 people, most of whom are minorities.
At the hearing the IRS made an ore terms motion to dismiss for the lack of standing of Metzger. Because TM joined in the motion, and because Metzger was a principal of TM and is a major creditor of the estate, the Court denied the Motion.
For the purposes of this hearing, the Court takes judicial notice of the orders entered with respect to status conferences (the “Orders”), as well as all other orders, pleadings and reports filed in the case. The Orders, almost since the inception of the case, have reflected the Court’s efforts to balance the interests of TM and its creditors in reorganization and the rights of administrative claimants, in particular the IRS, to the payment of obligations incurred in the reorganization process. Indeed, the IRS took the position, as early as Fall, 1985, that the proceedings should be dismissed for the failure of TM to pay the trust fund portion of taxes to the IRS. See United States of America’s Motion to Dismiss.
Another interest that the Court was required to protect was that of Mellon Bank (“Mellon”). As reflected in numerous orders governing the use of cash collateral, *767the Court authorized TM’s use of monies derived in the operation of its business and required percentage payments to Mellon. See, e.g. Agreed Order on Debtor’s Emergency Motion for Further Modification on Adequate Protection and Mellon Bank’s Motion to Compel Compliance, entered August 18, 1986.
There is little question in the Court’s mind that the most persistent and significant problem during the pendency of this case was TM’s difficulty in timely paying its tax obligations, particularly those comprising withholding tax trust fund payments. Numerous pleadings filed by the IRS reflect its significant efforts to see that trust fund taxes were in fact paid by TM when due and many of the Orders reflect the Court’s efforts to see that such taxes were paid. See e.g. Order on Status Conference, entered August 15, 1988, (in which the Court directed that all delinquent and current withholding taxes be paid pri- or to any further interest payments to Mellon Bank).
About June of 1989, it became apparent that TM would not survive and that a Chapter 11 plan if filed, other than a consensual liquidating plan, would not be confirmed. The Court was advised that the principal impediment to a successful plan was the administrative tax liability, in excess of $1.5 million. Under Section 1129(a)(9)(A) of the Code, such claims must be paid in full in cash on the effective date of the plan, unless otherwise agreed. Thus, the taxing agencies held the trump card; no plan could be approved without their consent, and no investor or purchaser appeared interested in satisfying such claims.
However, in June of 1989, TM and Metz-ger filed a Joint Motion to Sell Substantially All Assets of Debtor Free and Clear of Liens. The Joint Motion reflected an attempt by the movants to sell the company as a going concern to maximize the estate’s recovery. The Court entered its Order Granting Joint Motion to Sell Substantially All Assets of Debtor Free and Clear of Liens, on July 7, 1989. The Court now recognizes that the serious disruption that would have occurred in the event of dismissal has not occurred because of the sale; but, that has been achieved at great cost. We have avoided the Scylla of liquidation but not the Charybdis of significant unpaid administrative liability.
The Objection arises from a disagreement over the amount of such tax liability. Specifically, it arises from a dispute between TM and Metzger and the IRS as to the proper application of payments made during these proceedings.
TM and Metzger contend that all sums paid to the IRS during the course of these proceedings were on account of trust funds taxes. The IRS has filed an amended proof of claim (the “Claim”), dated January 30, 1990, apparently recognizing, in part, such an application of payments.
In discussions with Metzger however, the IRS has apparently taken the position that the true liability for trust fund taxes of the company, and hence Metzger’s personal liability as a “responsible officer” within the meaning of Section 6672 of the Internal Revenue Code, 26 U.S.C. § 6672 (1982), is significantly greater than reflected in the Claim or that which TM and Metzger assert is owed. It is unclear whether the IRS even stands by its Claim.
The issue presented to the Court is not novel. As the Court sees it, the issue is two pronged. First, under what circumstances may a debtor designate where payments made in a Chapter 11 are to be applied. Second, when may this designation occur.
The authority is divergent. Certain appellate decisions have held that payments under a Chapter 11 Plan of Reorganization are involuntary and may not be designated. In re Ribs-R-Us, 828 F.2d 199 (3rd Cir.1987); In re Technical Knockout Graphics, Inc., 833 F.2d 797 (9th Cir.1987); In re Ducharmes & Co., 852 F.2d 194 (6th Cir.1988).
However, the Eleventh Circuit in In re A & B Heating Corp., 823 F.2d 462 (11th Cir.1987), vacated and remanded for consideration of mootness, 486 U.S. 1002, 108 S.Ct. 1724, 100 L.Ed.2d 189 (1988), holds to *768the contrary,1 as does the First Circuit in In re Energy Resources Co., Inc., 871 F.2d 223, 230 (1st Cir.1989).
In both A & B Heating and Energy Resources debtors in Chapter 11 plans were permitted to designate the application of payments made to the IRS. As stated in both, the issue turns on whether the payments to the IRS, under its rules, are deemed “voluntary” where the taxpayer pays its liability or “involuntary” where the payment is a result of collection efforts. If voluntary, the debtor may designate and if involuntary, the IRS may apply the payments where it chooses.
In In re Energy Resources Co., 871 F.2d 223 (1st Cir.1989) the Court acknowledged that payments in a Chapter 11 cannot be easily described as either voluntary or involuntary: “In our view, the labeling question is a difficult one because a Chapter 11 proceeding has some characteristics that make one consider a related tax payment ‘involuntary’; but it also has other characteristics that make a ‘voluntary’ label seem more natural.” Id. at 228 (emphasis in original).
The characteristics which make a Chapter 11 proceeding seem voluntary are:
(1) the debtor chooses voluntarily to enter chapter proceeding;
(2) chapter 11 proceedings are intended to offer protection to the debtor from its creditors;
(3) Chapter 11 gives the debtor options as to how the IRS will be paid;
(4) third parties may have provided funds used for payment;
(5) if the debtor does not file a plan restructuring the IRS obligations, the case may be dismissed; and
(6) historically, the debtor in a bankruptcy proceeding, can choose which of several claims held by a creditor will be satisfied by a payment.
In re Energy Resources, 871 F.2d at 229.
The factors which favor a conclusion that payments in a Chapter 11 are involuntary are based upon a simple premise: A Chapter 11 requires enforcement action by the IRS, court supervision and court orders requiring the debtor to achieve confirmation of a plan and to meet the obligations contained therein including the payment of priority tax claims. Id.
Even if A & B Heating is not binding authority, the Court finds its reasoning and that of Energy Resources persuasive. The Court concludes that TM was entitled to designate.
Because this case did not involve a Chapter 11 plan which designated payment, the Court must make a preliminary factual determination as to whether there was, in fact, some other designation. Jerry Davis, TM’s comptroller, testified that it always was TM’s intention to comply with the Orders which, as mentioned, required the payment of the trust funds taxes first, despite the fact that the dozens of checks involved do not bear a description. These problems notwithstanding, even Madeline Oliver, the IRS representative, testified that she was aware, on several occasions, that Davis indicated TM’s intention that specific checks were for trust fund taxes.
Davis’ explanation was that, because of orders entered at Mellon’s insistence requiring Mellon to be paid, there were insufficient funds on hand to pay the IRS. The same is true of taxes owing to the State of Florida. The parties, including Mellon, were apparently aware of this fact.
The Court heard testimony that during the proceedings, the Metzger family infused approximately $1.2 million so that TM could meet its obligations and at least some portion of those funds were used to pay the IRS. Further, during the proceedings, the IRS was paid approximately $2.5 million.
The Court finds that many of the factors enumerated in Energy Resources are present. Here, TM tried for a number of years to reorganize, albeit unsuccessfully. Metzger personally did a yeoman’s job in *769tirelessly using his efforts and funds in attempts to reorganize. Ultimately, no plan was confirmed, but TM was sold as a going concern for fair value and the jobs of over 120 employees were preserved. Although this was not a reorganization in the classical sense, it has achieved at least as much as a liquidating plan would. The Court was advised in Court that a plan would not be successful because, as mentioned, any plan would require the payment of all administrative claims, including taxes, upon confirmation. Without the agreement of IRS to a plan there could be no confirmation.
Further, and perhaps more compelling, unlike Energy Resources, this case involves persistent Court supervision to assure that taxes and particularly trust fund portions were paid when due. If the Court were to conclude that these payments were involuntary because the IRS was paid because of enforcement action, and therefore through a “legal proceeding,” Amos v. Commissioner, 47 T.C. 65 (1966), it would reach a truly anomalous result. Here the IRS’ efforts and the Court Orders were specifically directed at the payment of trust fund taxes. To now recast those payments as having been made on account of nontrust fund taxes is inappropriate. Further, it would undermine the policy of encouraging guarantors and principals of debtors to infuse capital necessary to keep those debtors operating. Without the added assurance that in helping the debtor, they are limiting their exposure the principals might well just wait until responsible officer liability is assessed. Unfortunately, that may be too late for the debtor.
The Court additionally concludes, as to the second issue presented, that the designation of tax payments occurred at the time that they were paid and, again, upon filing of the Joint Motion. Either, standing alone, is sufficient.
Accordingly, it is
ORDERED and ADJUDGED that the Joint Motion is granted.
FURTHER ADJUDGED that for the purpose of determining the tax liability of TM and Metzger, all payments received by the IRS during these proceedings shall be applied first to trust fund taxes.
DONE and ORDERED.
. The precedental value of A & B Heating is unclear since the case ultimately was dismissed as moot. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491118/ | OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
A. INTRODUCTION
Once again, this court is asked to resolve a conflict arising from what has developed as the successful Chapter 11 rehabilitation of the principal purveyor of taxicab services in the city of Philadelphia, METRO TRANSPORTATION CO., trading as YELLOW CAB CO. (“the Debtor”). In this proceeding, the Debtor avers that Controlled Risk Services, Inc. (“CRS”), originally appointed as the Debtor’s Third Party Administrator (“TPA”) under written contract to administer post-petition insurance claims against the Debtor during its reorganization, is liable to the Debtor for damages resulting from negligence or professional malpractice, breach of its contract, and breach of its fiduciary duties to the Debtor as its TPA. These claims were asserted in a complaint filed in the above-captioned adversary proceeding only after CRS filed a “motion” seeking compensation for its services performed as TPA subsequent to April 12, 1988, for which CRS had not been compensated prior to its discharge. In a counterclaim to the complaint, CRS reiterated its claim for compensation and also sought interest, compensation for handling certain subrogation claims, and other damages resulting from its allegedly wrongful termination as TPA.
We conclude, after a tortuous course of pre-trial proceedings, a five-day consolidated trial on the motion for compensation and the complaint and counterclaim in the adversary proceeding, and consideration of voluminous post-trial submissions, that the *877Debtor has failed to meet its burden of proving CRS guilty of tortious malpractice. Consequently, we find that the Debtor’s other claims, demanding proof of comparable elements, also lack merit.
However, we also conclude that CRS’ performance of its services was not exemplary, and that the Debtor was within its rights in terminating the TPA contract on its finding that CRS was not adequately performing its duties. Therefore, we conclude that CRS is entitled to compensation for services performed prior to its termination, but is not entitled to recover on any claims attributable to closing cases which were merely transferred to the new TPA, interest, or any damages for alleged wrongful termination of the parties’ contract.
B. PROCEDURAL HISTORY
The facts surrounding the Debtor’s bankruptcy filing and its need for approval of its self-insurance plans to replace its loss of private insurance coverage are set forth in detail in an Opinion filed over 3¾⅞ years ago in this case, reported at 64 B.R. 968, 969-71 (Bankr.E.D.Pa.1986) ("Metro I”)1 For the purposes of clarity, we repeat some of these facts at Findings of Fact 1-13, pages 878-80 infra. We also add that on October 25, 1989, the Debtor’s Plan of Reorganization was confirmed. However, we also note that the effective date of the Plan was to be triggered by the approval of the Pennsylvania Public Utility Commission (“PUC”) of certain transfers of Certificates of Public Convenience and the grants of liens on the Certificates to certain secured creditors, which has not yet transpired.
CRS’ request for final compensation for its services, which set the instant proceedings into motion, was filed on October 7, 1988. The motion requested that the Debt- or deposit $75,000 into a special custodial account to be applied toward compensation of services performed by CRS as described in 15 invoices dated between April 12, 1988, and July 15, 1988, totalling $69,303.54. Interest of twelve (12%) percent per annum is demanded for any delay over thirty days in payment of each invoice.
When the Debtor and the Official Unsecured Creditors’ Committee of the Debtor (“the Committee”) objected to the motion for compensation, it was set down for a hearing on November 2, 1988. In a colloquy on that date with interested counsel, the Debtor indicated an intention to file the instant adversary proceeding. Accordingly, we entered an Order of November 3, 1988, requiring the Debtor to file the projected adversary proceeding on or before February 1, 1989, and setting forth the pre-trial schedule for a consolidated trial on CRS’ motion and the adversary proceeding on March 15, 1989.
The trial date was continued to April 27, 1989, and then, per an Order of April 6, 1989, to August 1, 1989, in order to permit the parties to respond to certain outstanding discovery under a schedule established by the court. On July 17,1989, CRS filed a renewed motion for sanctions against the Debtor for its failure to comply with our Order of April 6, 1989, and the Debtor, admitting non-compliance by special counsel initially appointed to try the case, moved, on July 18, 1989, to replace that special counsel with new special counsel and to continue the trial again. By Order of July 28, 1989, we allowed CRS, but not the Debtor, an extension of time to complete discovery due to the Debtor’s failure to adhere to the terms of the Order of April 6, 1989, and we established a new pre-trial schedule contemplating the commencement of the consolidated trial on October 24, 1989.
In its pre-trial submissions, CRS requested that we bifurcate the liability and the damage aspects of the Debtor’s claims. Weighing the factors of convenience to the *878parties and the court, possible prejudice to the parties, and economy of resources in a matter in which we had skepticism of the merits of the claim, see, e.g., Bankruptcy Rule (“B. Rule”) 7042, Federal Rule of Civil Procedure (“F.R.Civ.P.”) 42(b); Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22 (3d Cir.1984); and 5 J. MOORE, ¶ 42.03[1], at 42-36 to 42-41 (2d ed.1989), we granted the motion to bifurcate.
A five-day trial on the issue of liability alone as to the Debtor’s claim, as well as the motion for compensation filed by CRS in the Debtor’s main case, ensued on October 24, 1989, October 31, 1989, November 2, 1989, November 13, 1989, and November 14, 1989. In the course of the trial, the parties expressly agreed, pursuant to 28 U.S.C. § 157(c)(2), that this court could determine the adversary proceeding, assuming arguendo that it was not core. But see, e.g., In re Ben Cooper, Inc., 896 F.2d 1394, 1397-1400 (2d Cir.1990); and In re Jackson, 90 B.R. 126, 128-31 (Bankr.E.D.Pa.1988) (post-petition events relating to insurance coverage and alleging malpractice, respectively, are core proceedings, pursuant to 28 U.S.C. § 157(b)(2)(A)). Throughout this Opinion, we will refer to the transcripts of each of those respective days of trial as “Transcripts I, II, III, IV, and V,” respectively.
Delays in ordering the transcripts resulted in extension of the post-trial briefing through March 13, 1990. Settlement conferences of November 17, 1989, and January 12, 1990, before the Honorable William H. Gindin, Chief Judge of the District of New Jersey, who appeared to assist this court with its overwhelming caseload, were unsuccessful.
The post-trial submissions were copious, but addressed almost exclusively the Debt- or’s claims against CRS in the adversary proceeding, neglecting almost entirely CRS’ motion for compensation and counterclaims. Given the lack of prominence which even CRS has given these aspects of the matters before us, we consider and dispose of them summarily.
Pursuant to the dictates of B.Rule 7052 and F.R.Civ.P. 52(a), our decision is rendered in the format of Findings of Fact, Conclusions of Law, and a Discussion relating to the claims in the adversary complaint, followed by our summary disposition of the other aspects of the matters before us.
C. FINDINGS OF FACT
1. On January 26, 1982, the PUC authorized the Debtor to operate eight hundred (800) taxicabs in the City of Philadelphia.
2. The Debtor’s liability insurer, Balboa Insurance (hereinafter “Balboa”), announced that it intended to cancel its coverage of the Debtor as of August 1, 1986.
3. The Debtor filed its Chapter 11 bankruptcy petition on July 29, 1986, seeking, principally, to address the crisis in its operations created by the threat that its insurance with Balboa would be cancelled and not replaced.
4. On July 29, 1986, and August 6, 1986, this court, per Chief Judge Emil F. Goldhaber, issued, respectively, a Temporary Restraining Order requiring Balboa to continue its insurance coverage to the Debtor through August 6, 1986; and an Order approving a Stipulation between the Debtor and Balboa pursuant to which Balboa would continue coverage of the Debtor until October 1,1986, and the Debtor would be prohibited from requesting this court to continue Balboa’s coverage after October 1, 1986.
5. About a year prior to the cancellation of Balboa’s insurance coverage, on October 12, 1985, the Debtor filed an application with the PUC requesting that it approve certain self-insurance components of the Debtor’s coverage under the Balboa policy. On August 4, 1986, the Debtor amended its self-insurance application to request the PUC to approve a revised self-insurance plan contemplating no participation by an independent insurance company.
6. On August 12,1986, the PUC filed an adversary proceeding in this court seeking declaratory and injunctive relief with regard to its denial of the Debtor’s application for self-insurance. In an Answer and *879Counterclaim, the Debtor sought to stay the enforcement of PUC’s decision.
7. A hearing on the Debtor’s revised self-insurance application was held by PUC Administrative Law Judge Herbert Smolen (“AU Smolen”) on August 25, 1986. At the hearing, the Debtor and the PUC submitted a Settlement Agreement dated August 25, 1986, which left open, as the only issue to be decided, the question of whether the Debtor could fund the plan. However, AU Smolen eschewed the Settlement Agreement and recommended, in an Initial Decision dated September 12,1986, that the PUC deny the Debtor’s revised application because “[t]he proposed self-insurance program, as submitted, does not adequately protect the interests of Metro’s patrons and/or the general public.” On September 25, 1986, adopting AU Smolen’s recommendations, the PUC denied the Debtor’s self-insurance application.
8. A hearing on PUC’s Complaint and the Debtor’s action was held on September 24, 1986. In our Opinion of September 29, 1986 (Metro I), we concluded that, given the protections to the public included in the Settlement Agreement, and the devastating impact that denying relief would have upon the Debtor’s estate, Metro I, 64 B.R. at 973-75, granting the extraordinary relief of allowing the Debtor to self-insure and operate under the terms of the August 25, 1986, Settlement Agreement was appropriate.
9. We also required, in an unpublished portion of the Order accompanying Metro I, that the Debtor continue to search for available conventional insurance and periodically report to the court on its progress in that regard.
10. The Settlement Agreement required the Debtor to retain a TPA to “investigate, adjust, litigate and, when appropriate in the judgment of the TPA, settle claims ... upon such terms and conditions as established by this order and the contract.” Further, the Settlement Agreement required the Debtor to “enter into a contract with the TPA which shall incorporate the Fair Claims Practices Act which, together with otherwise applicable investigative and settlement standards of care, fairness and thoroughness, shall constitute the procedures to be followed by the TPA.”
11. The Debtor retained CRS as its TPA and, on December 3, 1986, entered into a final Claims Administration Agreement (“the CAA”), pursuant to which CRS would serve as the TPA for all “incidents and events occurring after 12:01 A.M., October 1, 1986 ...” The CAA was preceded by a letter agreement of October 27, 1986. However, we conclude that the CAA was intended to be the formal consummation of the parties’ negotiations, and therefore all terms of the parties’ contractual relationship merged into the CAA. See, e.g., In re Kellett Aircraft Corp., 173 F.2d 689, 691-93 (3d Cir.1949).
12. The following provisions of the CAA are pertinent to the instant matter:
3. EMPLOYMENT OF COUNSEL. TPA will have sole authority and discretion to appoint, dismiss or substitute independent counsel to defend all claims against METRO, provided, however, that such employment shall be subject to approval of the Bankruptcy Court.... When it appears, in the judgment of either TPA or METRO that a claim may exceed $500,000.00, ..., TPA shall permit METRO, at METRO’S expense, to be associated with TPA in the defense or control of any claim or legal proceeding.
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6. REPORTS. TPA will furnish METRO with the following reports:
(a) Subject to the receipt of data from the bank administering the funds, a weekly report on the status of the funds in the Claims Fund and the Expense Fund established pursuant to the self-insurance program, including total sums received, amounts paid, and balance remaining in said fund at the close of each business week;
(b) A monthly financial report of all claims losses paid and reserved, and allocated expenses paid during the period.
(c) Management data base reports, as agreed.
*8807. SETTLEMENT OF CLAIMS. TPA shall have sole authority and discretion to settle all claims or losses arising out of any single occurrence where the total aggregate of claims does not exceed $500,000.00, and such settlements by TPA shall be binding on METRO....
8. FEES AND EXPENSES. TPA shall be entitled to a fee out of the Expense Fund of $175.00 per claim_
In addition, TPA shall be entitled to reimbursement of all expenses ... required to comply with the terms of this Agreement and other out-of-pocket expenses relating to the administration of claim [sic].
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10. REPORT AND INVESTIGATION OF CLAIMS BY METRO. METRO shall within twenty-four hours of receipt of notice of any claim, inform TPA thereof. METRO shall, within two business days of receipt of all accident reports, deliver copies thereof, together with all items of evidence received by METRO to TPA. METRO shall be permitted but is not required to perform, at its own expense, an initial investigation of any accident.
11. CLAIMS RESOLUTION. TPA shall perform the investigation, adjustment, litigation, and when appropriate in the judgment of TPA, the settlement of all claims.
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13. FAIR CLAIMS. Both TPA and METRO are aware of the Unfair Claims Settlement Practices Regulations established pursuant to the Pennsylvania Unfair Insurance Practices Act ... [B]oth TPA and METRO shall voluntarily comply with the requirements of said Act and said Regulations, except to the extent that said Act and Regulations may be inconsistent with any provisions of the Bankruptcy Code, Bankruptcy Rules or any orders of the Bankruptcy Court.
14. AUDITS. TPA shall make its files and records available to METRO and the PUC upon request by either for inspection thereof during regular business hours upon two business days notice ....
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16. TERMINATION. This agreement may be terminated by TPA, METRO, and or any Trustee appointed by METRO on 20 days written notice in any of the following events:
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(e.) A finding by METRO that the TPA is not adequately performing his duties under the terms and conditions of this Agreement, including but not limited to failure to properly settle claims in a timely fashion under the terms hereof.
(f.) TPA’s willful misconduct, gross negligence or fraud.
13. This court, by Order dated December 4, 1986, approved the CAA and the retention of CRS as the Debtor’s TPA pursuant to it.
14. Marshall Sherman, the Vice-President of CRS (“Sherman”), was employed by the Debtor from approximately April, 1983, through June, 1985, as the Director of the Debtor’s insurance operations in its in-house claims department. Sherman was a well-respected and valued employee of the Debtor and resigned under amicable circumstances. While in the Debtor’s employ, Brian Somerman, President and Chief Executive Officer of the Debtor (“Somer-man”), testified that “[Sherman] did an excellent job.” Transcript I, at 12-13.
15. The Debtor retained Sherman and CRS as its TPA based upon Sherman’s “expertise and the trust of [the Debtor].” Id. at 20.
16. The relationship between the Debt- or and CRS remained on good terms throughout the first year of the CAA, but began to deteriorate during the second year. According to Somerman, problems arose because the Debtor was not receiving monthly loss-runs as required under the CAA and was concerned about what it considered the high level of reserves set by CRS.
17. In April or May of 1988, Somerman first suggested a peer review of CRS’ *881claims-handling practices. Sherman agreed to the peer review.
18. K. MacDonald and Associates, Inc. (“KMA”) was retained by the Debtor, without court approval, to conduct the peer review of CRS. KMA is a corporation which has been in existence since 1984 which has six (6) offices and approximately fifty (50) employees and is engaged in the business of claims adjustment and administration. KMA is owned by Kevin MacDonald (“MacDonald”), who is also KMA’s President.
19. KMA was retained, by letter dated April 11, 1988, from Debtor’s counsel, to perform a “review and evaluation of randomly selected reserves established by [CRS] and claims payments made in connection therewith.” See Plaintiff’s Exhibit 13.
20. KMA is a competitor of CRS. Sherman testified that he was displeased at the selection of KMA to perform the peer review, but admitted that he did not articulate those concerns to the Debtor prior to the performance of the peer review by KMA.
21. While, at the time of the peer review, the Debtor and KMA testified that they had no direct discussions about KMA’s replacing CRS as TPA under its self-insurance plan, based upon all of the testimony and evidence, we find that, before KMA’s engagement began, the Debtor contemplated replacing CRS with KMA and that KMA desired to replace CRS.
22. KMA conducted two audits of CRS. The first audit was conducted shortly before May 18, 1988 (hereinafter “the First Audit”). In doing this audit, KMA inspected approximately ten (10%) percent of CRS’ files, which represented forty-five (45%) percent of the total amounts paid by the Debtor on the claims handled by CRS.
23. KMA issued an audit report dated May 18, 1988, detailing its findings from the First Audit (“the First Report”). In a cover letter dated as of even date therewith, KMA summarized the findings in the First Report as follows:
It is this company’s opinion that the files reviewed reflected inconsistency in reserving practices, a lack of recognition of proper coverages and potentially inappropriate payment of claims. The files also lacked adequate record keeping regarding file contents and payments. Moreover, file contents were not well organized. We also recommend more adequate computer hardware and statistical data record keeping in order to sufficiently administer the program.
See Plaintiff’s Exhibit 16.
24. KMA also recommended that a more extensive audit of CRS’ practices be conducted by it. The Debtor requested KMA to immediately conduct such a more extensive audit.
25. KMA conducted a second audit of CRS on May 20-22, 1988 (“the Second Audit”). The Second Audit consisted of a review by KMA of all of the 866 open files maintained by CRS.
26. KMA issued a report of the Second Audit, which was undated, and a supplemental letter dated June 27, 1988, detailing its findings from the Second Audit (“the Second Report”). KMA expressed the following concerns regarding CRS’ claims handling: (a) insufficient settlement activity; (b) inconsistent and “inappropriate” reserving practices; (c) missing documentation, such as motor vehicle checks; (d) inadequate file accounting system; (e) insufficient evidentiary investigation; (f) erroneous claim payment; (g) no standard diary system; and (h) poor file condition. See Plaintiff’s Exhibit 17. There is no evidence that either the First or the Second Report, or their contents, were disclosed to CRS at any time prior to the initiation of the adversary proceeding.
27. In April or May, 1988, the Debtor began negotiations with United Fire Insurance Co. (“United Fire”) for United Fire to become the Debtor’s conventional liability insurer.
28. On or around May 18, 1988, the same time period in which KMA was performing its First and Second Audits of CRS, Somerman and MacDonald attended a meeting with United Fire. MacDonald supposedly attended the meeting to interpret *882loss run information contained on CRS' computer disc provided to the Debtor, but we find that, in addition, Somerman and MacDonald contemplated KMA’s becoming a TPA under the United Fire policy and replacing CRS’ role as TPA in the self-insurance program with KMA, and therefore wished to introduce United Fire to KMA.
29. On May 20, 1988, the Debtor filed a Motion with this court to appoint KMA as the TPA under the United Fire conventional insurance policy, which was to become effective June 1, 1988. The court entered an Order so appointing KMA on May 26, 1988.
30. Although CRS never contracted with the Debtor to perform claims handling under the Debtor’s conventional insurance plan, CRS assumed that the Debtor would contract with it to handle claims under any conventional insurance plan into which the Debtor would enter.
31. Despite the Debtor’s denials, we find that, even prior to receipt of KMA’s First and Second Reports, the Debtor had decided to terminate CRS.
32. Although neither the Debtor nor Debtor’s counsel told KMA what conclusions it should reach in the First or Second Reports, it is clear that KMA’s interest in replacing CRS as TPA and the Debtor’s decision to effect this replacement before receipt of the Reports tainted the objectivity of the First and Second Reports.
33. On June 8, 1988, when the Debtor was prepared to effect its intention to eliminate CRS as its TPA, CRS, which had not been informed of the contents of the Reports, was suddenly asked to resign as TPA under the Debtor’s self-insurance plan. When CRS refused to voluntarily resign, it was terminated by letter dated June 23, 1988, from the Debtor’s counsel, pursuant to the terms of the CAA. In a letter to CRS of July 14, 1988, the Debtor's counsel indicated that he considered the termination of CRS as the Debtor’s TPA to be effective as of July 17, 1988.
34. KMA was first officially approached about becoming CRS’ successor TPA under the Debtor’s self-insurance program in July, 1988. However, as noted above, we find that KMA and the Debtor had considered entering into this relationship prior to the Debtor’s termination of CRS.
35. Accordingly, KMA and the Debtor executed an agreement which KMA would become the Debtor’s TPA for its self-insurance program on August 22, 1988. By Order dated September 28, 1988, this court approved the appointment of KMA as TPA under the self-insurance program.
36. The aspect of the Debtor’s self-insurance program which was of primary significance to it was the level of cash contributions which it was required to submit into the claims escrow account under the self-insurance program, because the Debtor constantly experienced cash-flow deficiencies subsequent to the bankruptcy filing. The level of contributions required depended upon the amount of reserves established by its TPA. Thirty (30%) percent of the Debtor’s budget of expenditures was devoted to making the necessary payments into the escrow account.
37. The Debtor, therefore, had a very significant interest in keeping the reserves low. Most of the friction between CRS and the Debtor, per its Vice-President in charge of operations, Robert Seaner (“Seaner”), was caused by Seaner’s belief that CRS was pegging the reserves too high and was constantly and improperly changing the reserves on individual claims, usually adjusting them upward.
38. The Debtor’s perceived need to maintain lower and more stable reserves, in combination with the contention that CRS failed to provide information to it in timely fashion, was the strongest motivating factor in the Debtor’s desire to replace CRS as its TPA.
39. KMA provided the Debtor with the comfort which it desired by concluding that CRS had maintained the Debtor’s reserves too high. There was no evidence that KMA’s presence as TPA resulted in any significant changes in the Debtor’s reserving practices, however, once it became the TPA.
40. Subsequent to the initiation of this lawsuit, and obviously solely in preparation *883for trial of this proceeding, the Debtor hired a highly reputable firm, Tillinghast, a Towers Perrin Co. (“Tillinghast”), to evaluate CRS’ work-product.
41. Several of the findings of KMA, which were supported by Tillinghast’s ultimate report, have merit. Specifically, they both found that CRS failed to maintain its files in a neat and orderly fashion, failed to consistently pursue settlement and subro-gation claims, failed to consistently provide the Debtor with monthly loss-runs, delegated claims practices to personnel far less experienced than Sherman, and that Sherman and the other supervisory personnel of CRS failed to consistently supervise this personnel.
42. John J. Bennett (“Bennett”) of Til-linghast, who performed the Tillinghast report, found, however, that CRS’ reserves were generally set far too low. This finding, directly contrary to KMA’s finding on perhaps the most significant bottom-line aspect of CRS’ work-product, its maintenance of reserves, suggests that KMA’s Reports were not very accurate nor objective.
43. Throughout the trial, the Debtor’s witnesses reiterated the practical difficulties to the Debtor in switching TPA’s, presumably to emphasize the perceived severity of malfeasance by CRS. However, on March 28, 1990, we approved an expedited motion, filed by the Debtor on March 19, 1990, to replace KMA with a new entity, Atlantic States Adjustment, Inc. (“ASA”), as TPA, because Donald G. Flynn, the claims manager of KMA during its engagement with the Debtor, had left KMA to form ASA.
D. CONCLUSIONS OF LAW
1. CRS must comply with the standard of professional conduct for TPA’s.
2. The standard of care required of professionals generally, which we find applicable to CRS’ engagement as the Debtor’s TPA, is established in 2 RESTATEMENT (SECOND) OF TORTS, § 299A, at 73 (1965) (“the Restatement”), which has been adopted by Pennsylvania courts and states as follows:
Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.
3. Expert testimony is necessary to establish CRS’ compliance or non-compliance with the standard of care applicable to a TPA.
4. The Debtor failed to establish, by a preponderance of the evidence, that CRS violated the standard of care applicable to a TPA.
5. The CAA is a contract between CRS and the Debtor.
6. The Debtor failed to show that CRS breached the terms of the CAA.
7. CRS owed a fiduciary duty to the Debtor. Its fiduciary duty arose out of its relationship as an adjuster-like agent of the Debtor.
8. The Debtor failed to show that CRS breached this fiduciary duty.
E. DISCUSSION
1. THE DEBTOR FAILED TO ESTABLISH THAT CRS WAS GUILTY OF MALPRACTICE.
a. CRS Must Comply With the Standard of Professional Conduct Applicable to TPA’s.
In order to prevail on its claim of professional malpractice against CRS, the Debtor bore the burden of proving the following, by a preponderance of the evidence: (1) the duty of CRS to the Debtor; (2) a breach of that duty; and (3) that the breach was a substantial factor in causing damages to the Debtor. See, e.g., In re Direct Satellite Communications, Inc., 96 B.R. 507, 515-16 (Bankr.E.D.Pa.1989).
The duties of CRS to the Debtor arise from the professional standard of conduct for TPA’s and the CAA. The professional standard of conduct for TPA’s is not readily ascertainable. It can, however, be extrapolated from the Pennsylvania Unfair In*884surance Practices Act, 40 P.S. § 1171.1, et seq. (“UIPA”), and the standards of conduct for other professionals.
The UIPA was expressly incorporated into the CAA by reference. The purpose of the UIPA is to regulate practices in the insurance industry. 40 P.S. §• 1171.2. Certain persons, including brokers and adjusters, are prohibited by the UIPA from engaging in any trade practices which are unfair or deceptive, as defined by 40 P.S. § 1171.5. 40 P.S. § 1171.4. An “adjuster” under the UIPA, which is very close to the role of a TP A, is a person who represents an insurance company in settling a loss with an insured and does not represent the insured. Culbreth v. Lawrence J. Miller, Inc., 328 Pa.Super. 374, 384, 477 A.2d 491, 497 (1984).
The goal of the UIPA is to protect the public from nefarious insurance sales schemes, opportunistic salespersons, and insurance companies unwilling to defend their insureds. The requirements for compliance with the UIPA include proper representation of facts, prompt action, reasonable (to the claimant) standards for investigation of claims, good faith (to the claimant) and reasonable settlement practices, effecting fair settlements in lieu of compelled litigation, maintaining clear purposes in effecting settlements, making claimants aware of options, and truthfulness to all parties in performance of duties. See 40 P.S. § 1171.5.
Insofar as it relates to insurance adjusters, the UIPA mainly addresses the duties of an adjuster as to a claimant. The UIPA does not evince a purpose to protect an insurer from the practices of its adjusters, nor does it discuss directly the duty of the adjuster to an insurer. Certain requirements of the UIPA, however, also appear to apply to the adjuster-insurer relationship, which is very close to the relationship between CRS and the Debtor. These include the requirements of responsiveness, reasonable investigation of liability, effectuation of prompt and equitable settlements, and truthfulness. The satisfaction of these requirements should be among the accomplishments of a competent adjuster. The failure of an adjuster to fulfill these requirements and others under the UIPA can lead to the assessment of administrative penalties against the insurer under the UIPA. 40 P.S. §§ 1171.9, 1171.10. An adjuster, therefore, has an implicit duty to comply with the provisions of the UIPA in order to protect the insurer from liability.
In the absence of the statement of a specific professional standard of care for TPA’s to insurers in the UIPA, we must also look to the standard of care required of professionals generally as set forth in the Restatement, at § 299A, and as thusly stated in a recent Pennsylvania court decision:
Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.
Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 531-32, 479 A.2d 1027, 1031 (1984). This means, for example, that an architect’s client has the right to regard an architect as skilled in building construction science and to expect that party to use the reasonable and ordinary care and diligence evidenced by other architects in the same or similar locality. Bloomsburg Mills, Inc. v. Sardoni Construction Co., 401 Pa. 358, 361, 164 A.2d 201, 203 (1960). Similarly, a physician who is not a specialist is required to possess and employ the skill and knowledge usually possessed by physicians in the same or similar locality in the treatment of a patient. Incollingo v. Ewing, 444 Pa. 263, 281-82, 282 A.2d 206, 213 (1971), citing Donaldson v. Maffucci, 397 Pa. 548, 553-54, 156 A.2d 835, 838 (1959).
Accountants have been held to the standard of care similar to the standard set forth in Section 299A of the Restatement. Wooler, 330 Pa.Super. at 532, 479 A.2d at 1031. “In the absence of specific language relieving it from acts of negligence, [a contract] did not relieve [the accountant] from acts of negligence, [and] did not relieve it *885from liability for ignoring suspicious circumstances which would have raised a ‘red flag’ for a reasonably skilled and knowledgeable accountant.” Wooler, 330 Pa.Super. at 533, 479 A.2d at 1032. Thus, in Wooler, when an accounting firm agreed to provide unaudited accounting services, it was held to further undertake to exercise the degree of accounting skill possessed by other accountants in the community and it was required to be alert for control defects which were patently obvious and which could lead to defalcations by a dishonest employee.
In attorney malpractice cases, Pennsylvania law employs a similar standard. To prove attorney malpractice, the following elements must be established:
1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.
Direct Satellite, supra, 96 B.R. at 515-16. Accord, Rizzo v. Haines, 520 Pa. 484, 499, 555 A.2d 58, 65 (1989).
A few cases discuss the standard of care which arises among the parties to an insurance contract. Most closely on point is Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 656 (3d Cir.1968), cert. denied, 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969), which quotes in part from Talley v. Hoffman, 18 D. & C.2d 725, 729 (Lycoming Co.C.P.1959), as follows in describing the standard of care to which an insurance broker is required to conform in performing services for an insured party:
“[A]n insurance broker is under a duty to exercise the care that a reasonably prudent businessman in the brokerage field would exercise under similar circumstances .... ” An insurance broker is the agent of the insured ... and carries a duty to his'principle to exercise reasonable skill, care, and diligence in effecting insurance.... He is charged with the exercise of reasonable care and skill in making inquiries and obtaining information concerning the responsibility of the insurer with whom they place [sic] the risk, and is liable for any loss occasioned by such want of care....
Other cases, addressing the standard of care imposed upon an insurer in its relationship with its insured, Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58-59, 188 A.2d 320, 322 (1963), and of an adjuster employed by an insurer to an insured party, Diamon v. Penn Mutual Fire Ins. Co., 247 Pa.Super. 534, 551, 372 A.2d 1218, 1227 (1977), emphasize that the insurer and its adjuster assume a fiduciary position which obliges them “to act in good faith and with due care in representing the interests of the insured.”
The instant case appears to be unique in presenting a situation in which an insurer is asserting a cause of action against its adjuster or agent even though no claimant has asserted any. claim against the insured. The lack of any averment that CRS’ conduct resulted in the creation of any unjustified liability of the Debtor-insurer to an insured or to any other party is, ultimately, a factor which causes us to question the viability of the Debtor’s claim. See pages 889-90 infra. However, addressing only the issue of the standard of care, these insurance-industry cases suggest that the agents of an insured do indeed have an obligation to adhere to a standard of care in performing their duties, similar to those imposed upon other professionals.
The Debtor and CRS, despite an alternative argument by the latter that no professional standard of care applicable to TPA’s exists, agree in their trial briefs that the standard articulated in Wooler, supra, has been uniformly adopted by the courts of this Commonwealth as the standard of care of professionals to their principals generally and is applicable in the instant matter. We therefore find that this standard is the proper standard of care for TPA’s and must be adhered to by CRS in the performance of its duties for the Debtor,
b. Expert Testimony is Necessary to Establish CRS’s Non-Compliance with the TP A Standard of Care for TP A’s.
We have held that expert testimony is required as an element of proof in all but *886the very simplest malpractice cases. Direct Satellite, 96 B.R. at 517. But see Rizzo, supra, 520 Pa. at 501-03, 555 A.2d at 66-68 (expert testimony not needed where the issues are not beyond an average person’s knowledge). Further, the Pennsylvania Supreme Court has held that expert testimony is usually necessary to establish negligent practice in any profession. Powell v. Risser, 375 Pa. 60, 65, 99 A.2d 454, 456 (1953). In light of this precedent and the complexities of the instant case, we find that expert testimony is necessary to determine whether CRS failed to comply with the standard of care applicable to a TPA.
c. Even Though the Debtor’s Expert Was Competent, the Debtor Failed to Establish That CRS Violated the Standard of Care Applicable to a TPA.
The Debtor called Bennett, of Tillin-ghast, as its expert witness. Tillinghast is a corporation engaged in the business of management, risk management, and actuarial and insurance claim consulting. Bennett is an attorney and an insurance underwriter who has been employed by Tillin-ghast as an insurance-claim consultant for approximately two years. While at Tillin-ghast, Bennett has performed over forty claims audits, including several audits of businesses handling automobile claims similar to those handled by CRS. In fact, Bennett described automobile claims handling as his “forte.” Transcript IV, at 17.
Bennett’s audit of CRS’ files took eight (8) days. Due to the contentious relationship of the Debtor and CRS at that time, Bennett did not speak to anyone from CRS as part of his audit. Bennett reviewed CRS’ claim-reserving and settlement activities, the CAA, and 147 files which, according to a statistical analysis by Bennett which was undisputed by CRS, constituted a one hundred (100%) percent sample of the files which CRS opened and closed with an indemnity payment. In addition, he reviewed additional seventy-eight (78) random files not in the category of these 147, for a total of 225 files. Bennett concentrated on files closed by CRS in order to permit his analysis to emphasize only those cases which CRS handled completely, from start to finish. Bennett testified that he was positive that the files that he had reviewed had been handled solely by CRS and not altered by KMA.
Bennett described the procedures which, in his opinion, equate to proper automobile claims handling as follows:
[W]hat would be most essential is prompt assignment, prompt and proper investigation, prompt proper evaluation leading to an accurate case reserve. Aggressive negotiation and then proper settlement. All of this reflected in the development and gathering of accurate claim records and statistics. And that basically does it, as well as a process of thorough and consistent supervision and management. There’s really no one set standard or that this isn’t written in a book or in a set of procedures anywhere, but this [is the] kind of process that you generally find in all successful claim handling operations. And all insurance companies have their own manuals and procedures that set forth this kind of thing.
Transcript IV, at 30.
Bennett concluded from his audit that CRS’ claim-handlers were inexperienced; that they therefore handled more files than they were able to service adequately and that they were incapable of making judgments concerning comparative negligence; that general file maintenance, organization and documentation were poor and contained no evidence of a set claims-handling procedure; that supervision of the claims-handlers was inadequate; that investigations were often inadequate or incomplete; that no-fault claims and settlements were handled poorly; that viable subrogation opportunities were not pursued; that the closing ratio maintained by CRS, sixty-four (64%) percent, was poor; and that the litigation files were “totally out of control.” Further, Bennett concluded that the reserves were “unusually alarmingly low,” although he found no evidence that the reserves were intentionally depressed. See generally id. at 30-59.
*887In Bennett’s opinion, the services performed by CRS generally failed to meet the minimum standards in the claims-handling business, and did not satisfy the obligations of CRS to the Debtor under the CAA. Id. at 53-54.
Bennett did concede that the claims handled by CRS were fairly complicated and required a “level of evaluation and claim handling expertise and experience ... to perform the judgmental functions needed and the valuative functions needed in auto [bodily injury claims].” Id. at 205.
CRS also called an expert witness, A. Andrew Tignanelli (“Tignanelli”). Generally, Tignanelli, was not as persuasive as Bennett. Initially, Tignanelli denied that there was an industry standard of care for TPA’s, but later testified that, if there were such a standard, CRS complied with it. Transcript V, at 88. Tignanelli reviewed only 53 files, the handling of which Bennett had previously characterized as “very poor.” Tignanelli concluded that these files were not “grossly out of line.” Id. at 116. Rather, he emphasized that establishing reserves and making settlements are subjective processes and that “claims people have a notorious habit of going from one extreme to the other.” Id. at 98. Tignanelli further testified that, while communication between the CRS’ claims-handlers and supervisors was lacking, the results obtained by CRS were good. Id. at 96. He concluded that CRS conducted adequate investigations, id. at 111; adequately pursued subrogation, id. at 114; adequately pursued settlements, id. at 115; and employed an adequate staff. Id. at 117. However, Tignanelli admitted, under cross-examination, that, if Tillin-ghast’s findings were correct, the Debtor would have been justified in terminating its contract with CRS. Id. at 196.
In finding Bennett’s testimony to be more persuasive than Tignanelli’s, we compared not only the methodology used by both experts, but also their individual qualifications. While Bennett, on cross-examination, revealed that he was not familiar with the UIPA or the Pennsylvania procedures which must be followed to obtain a default judgment, he has personally performed over 40 audits of TPA’s, including numerous small TPA’s, such as CRS, around the country. Meanwhile, Tignanel-li’s engagement here was the first audit of a small TPA that he had ever performed and much of his experience was as a claims-handler rather than as a claims-handling consultant. Balancing all of the relevant considerations, we give more weight to Bennett’s conclusions than to Tignanel-li’s.
Even so, we conclude that the Debtor failed to establish that CRS has violated the TPA standard of care articulated earlier in this Opinion. See pages 883-85 supra.
As illustrated in the following disclaimer appearing at page 2 in Tillinghast’s report, Tillinghast, per Bennett, was unable to articulate a definite standard of care for TPA’s:
Because of the unpredictability and variability inherent in the claim handling process, I cannot guarantee that Metro’s claim evaluations, reserves or settlements, are or will be accurate, adequate or reasonable with regard to their ultimate disposition.
The same report stated, at page 4:
We have found no one standard or method governing the claim handling process, and we are not aware of a single set of requirements governing the handling of claims.
Applying the standard of care adopted by this court to Bennett’s findings, we conclude that, while CRS clearly did not provide exemplary claims-handling services to the Debtor, it did not violate the standard of care applicable to a TPA. Several factors lead to this conclusion. First, in numerous respects, Bennett’s testimony was inconclusive. His expertise was limited by his lack of familiarity with Pennsylvania insurance practices; with Pennsylvania law regarding claims handling and sub-rogations; and with the Debtor’s bankruptcy procedures for acquiring claims settlement approval. As a result, he provided inconsistent testimony regarding the complexity of the CRS cases and failed to de*888finitively establish any industry standards which had been violated by CRS.
Bennett reported that CRS was slow in closing files and making settlements. However, since he was unfamiliar with the Debtor’s bankruptcy mechanisms regarding paying claims and making settlements, Bennett was unable to state whether the delays he discovered were due to the bankruptcy mechanisms or to CRS’ performance.
Bennett found several practices of CRS to be objectionable due to his experiences in California and Massachusetts. However, Tignanelli, who is familiar with local TPA practice, testified that many of the “problems” in the CRS files identified by Bennett were actually not problems, but were, instead, procedures consistent with TPA practices in the Philadelphia area, usually for good reasons. For example, Bennett identified the absence of motor vehicle reports in many of the CRS files as a deficiency in CRS’ claims-handling procedure. Tignanelli, however, testified that motor vehicle reports are not required in every case and that, from his experience, it is not unusual to find files of local claims agents which contain no such reports.
Both experts agreed that the process of setting reserves is a very subjective one. Bennett, during his review of CRS’ closed files, was in the enviable position of being able to employ perfect 20/20 hindsight. It is quite simple to compare reserves for certain claims with the payments actually made and conclude that these numbers do not always match. While CRS’ reserves were often inconsistent with the payments actually made when accounts were closed, we do not find that they were so extremely erratic as to warrant a finding that CRS violated its professional duty of care to the Debtor.
In Findings of Fact 36-39 and 42, pages 882 and 883 supra, we noted the significance of the level of reserves to the Debt- or’s ability to fund its self-insurance plan and the contrast between Bennett’s faulting CRS for reserves that are “unusually, alarmingly low,” and KMA’s conclusion that the reserves set by CRS were too high.
Also, we note that Somerman criticized CRS for changing reserves too frequently. Somerman’s skepticism about the propriety of these changes in reserves was articulated by him as the primary reason for the Debtor’s desire to obtain a peer review of CRS’ activities in the first place. In response, Sherman testified that the files were reviewed every thirty days in order to make adjustments to the reserves as were necessary. Both KMA and Bennett criticized CRS’ reserve practices because they believed that not enough changes were made. These opinions suggest that Somerman’s original criticism of CRS was unjustified. We are also reluctant to conclude, in light of these diametrically conflicting views as to the propriety of the frequency with which CRS changed reserves, that CRS’ practices in this regard were deficient.
There was no evidence that routine claims were not properly processed. Bennett’s comments regarding routine claims processing was limited to allegations of poor file-jacket organization, inadequate maintenance of file histories, and insufficient record-keeping. However, CRS, through Sherman, presented testimony that the condition of CRS’ files were as good as and even better than the files that he had maintained while employed by the Debtor in prior years. This assertion was conceded by Somerman, who stated that CRS’ files were neater than when the files had been maintained by the Debtor itself. Seaner, who handled the Debtor’s day-today interactions with CRS, admitted that the claims were handled the same as when Sherman had worked in-house with the Debtor. Both Somerman and Seaner testified that they would have been satisfied if CRS had handled the claims as well as Sherman had done when employed by the Debtor. From this testimony, we conclude that CRS’ handling of routine claims was adequate.
Bennett also found fault with CRS for failing to adequately develop claim files under processing. To some degree, this position has merit. Both the KMA audit *889and Bennett’s audit revealed inconsistent diary-entry methodology by CRS. There was little use by CRS of standard forms, police reports were sometimes lacking in disputed liability claims, and CRS’ letters assigning cases to counsel for litigation were often non-existent. Motor vehicle reports were not always obtained to determine whether the claimant had concurrent no-fault coverage.
On the other hand, Sherman contended that the lack of complexity of many of the files, CRS’ practice of making notes on the file jackets, and its use of a computer system provided an adequate file history. Sherman further testified that standard forms were used when appropriate, police reports were sought as needed, and informal communications met the needs of litigation counsel. Testimony was given that Pennsylvania no-fault laws require payment within 30 days, good faith notwithstanding, thereby making a wait for motor vehicle reports impossible prior to payment even though such reports might otherwise indicate that non-payment of certain claims would be justified.
Bennett also provided testimony that CRS had consistently failed to pursue sub-rogation rights. While specific files where potential subrogation rights of the Debtor were allegedly not pursued were identified, CRS responded, with apparent justification, that successful pursuit of subrogation required the Debtor’s cooperation in providing information, which was frequently not forthcoming.
The Debtor may have been able to meet its evidentiary burden if it had shown that CRS was guilty of either a failure to be alert to suspicious circumstances, a failure to comply with specific claims processing procedures provided in the CAA, or a specific failure to comply with the UIPA, thereby subjecting the Debtor to liability to claimants or to administrative penalties. However, Bennett’s testimony failed to establish any of these matters.
Bennett offered no testimony regarding any specific circumstances which should have generated particular cause for alarm on the part of a TPA. Other than general criticisms of CRS’ practices, Bennett did not find that CRS had failed to respond to any abnormalities in the claims process which should have flagged the attention of an alert TPA. In fact, CRS offered unre-futed testimony that its agents had flagged a shortfall in the funding of the escrow account against the reserves and brought this to the attention of counsel for the Committee.2
Furthermore, Bennett offered no testimony relating to violations of specific terms of the CAA other than to testify that, in his opinion, CRS had not complied with the terms of the CAA.
Finally, Bennett provided no testimony, and there was no other evidence presented, that the Debtor faced any potential liabilities to claimants or any other parties as a result of CRS’ failure to comply with the UIPA or any other act on CRS’ part. This failure is a significant distinction between the facts of Consolidated Sun Ray, supra, and Diamon, supra, where an insurance broker and an insurance adjuster, respectively, were found accountable for the failures of claimants to make recoveries from the insurers to which they were allegedly entitled.
We are struck, here, by the failure of the Debtor to allege, even in general terms, adverse consequences which ensued to claimants against it or to itself as a result of the CRS’ malfeasance or nonfeasance. The only area in which any damages to the Debtor as a result of CRS’ actions was *890alleged was a claim that the Debtor was burdened with additional costs as a result of its replacing CRS with KMA and the Debtor’s being compelled to pay KMA to duplicate work already done by CRS. While we agree with the Debtor’s contention that it had a right to discharge CRS, see pages 891-92 infra, such damages obviously resulted from the Debtor’s own choice to switch TPA’s. From the Debtor’s filing of the adversary proceeding only as a reaction to CRS’ motion for compensation, through the completion of the trial, we were left with the firm impression that this proceeding was filed merely to attempt to justify the dismissal of CRS in light of the lack of any prior warnings or any hard evidence of cause on the part of the Debtor for doing so. Also, it should be recalled that we concluded, at Findings of Fact SI-SE, at page 882 supra, that the KMA Reports which were the basis of the Debtor’s discharge of CRS were tainted by KMA’s conflict of interests. Bennett’s more objective evaluation was the product of a post-litigational effect to justify what had already been done precipitously.
It is difficult to be receptive to claims filed for reasons which appear retaliatory and were conceived mainly to justify past doubtfully-prudent conduct of a client in discharging a professional, as opposed to claims filed because of firm evidence that malpractice of the defendant was the direct cause of damages inflicted solely by the professional and not as a result of the client’s own choices.
Consequently, we conclude that the Debtor has failed to show, by the requisite preponderance of the evidence, that CRS violated its duty to perform its duties as a TP A. Therefore, the Debtor cannot prevail in its action for professional malpractice against CRS.
2. THE DEBTOR FAILED TO SHOW THAT CRS BREACHED THE CAA.
Since the Debtor has failed to establish that CRS violated its professional duty to the Debtor, the Debtor’s claim that CRS is guilty of negligence is foreclosed and its claim that CRS breached the CAA is severely weakened. Under Pennsylvania law, a broker’s conduct is measured by the same standard irrespective of whether a claim is made against him in negligence or for breach of contract. Consolidated Sun Ray, Inc. v. Lea, 276 F.Supp. 132, 136 (E.D.Pa.1967), aff'd, Consolidated Sun Ray, supra. Similarly, the standards for determination of whether CRS’ performance constituted professional malpractice or a breach of a contract to perform professional services cannot be differentiated.
The Debtor argues that CRS breached the CAA in that CRS (1) failed to adequately supervise the work done by its staff; (2) failed to conduct adequate and complete investigation of the claims against the Debtor; (3) made erroneous judgments in setting reserves; (4) made duplicate and improper payments; (5) failed to properly handle and pursue subrogation cases; (6) maintained its claim files and recordkeeping poorly; and (7) failed to adequately supervise the services of independent counsel retained to litigate certain claims.
It is noteworthy that, at the time that the Debtor terminated the CAA, the contractual failing of CRS which was highlighted and which allegedly prompted the KMA audits was the failure of CRS to timely supply copies of monthly loss-runs. However, this contention was not listed among the alleged breaches of the CAA recited in the last paragraph which were emphasized at the time of and subsequent to the trial.
The CAA provides that CRS shall have “sole discretion” in handling the Debtor’s claims, presumably to assure its independence from the Debtor in performing this duty in light of the Debtor’s incentive to keep reserves as low as possible at all costs. But see page 889 n. 2 supra. CRS handled the Debtor’s claims in a manner which we have found did not violate its professional duty of care. We conclude, therefore, that the Debtor failed to establish that CRS breached the CAA.
3. THE DEBTOR FAILED TO SHOW THAT CRS BREACHED ITS FIDUCIARY DUTY TO IT.
“Under Pennsylvania law, the duty of an agent to his principal is one of loyalty *891in all matters affecting the subject of his agency and the agent must act with the utmost good faith in the furtherance and advancement of the interests of his principal.” Garbish v. Malvern Federal Savings & Loan Ass’n, 358 Pa.Super. 282, 296, 517 A.2d 547, 554 (1986), appeal denied, 516 Pa. 641, 533 A.2d 712 (1987), citing Sylvester v. Beck, 406 Pa. 607, 178 A.2d 755 (1962). Pennsylvania law recognizes a cause of action for breach of fiduciary duty. American Standard Life & Accident Ins. v. U.R.L., Inc., 701 F.Supp. 527, 540 (M.D.Pa.1988). In fact, the insurance-oriented “malpractice cases” cited at pages 884-85 supra, Consolidated Sun Ray, Ge-deon, and Diamon, are technically based on claims of breaches of fiduciary duties by the respective defendants.
As in a malpractice claim, the standard of care imposed on the fiduciary depends on whether or not the fiduciary is or claims to be an expert in the area to which his fiduciary duty relates. Garbish, supra, 358 Pa.Super at 296, 517 A.2d at 554. When the fiduciary acquires his undertaking based upon a skill he possesses which is allegedly beyond that possessed by an ordinary prudent person, he is to be judged by the standard of his claimed skill level. Id.
CRS, in its role as a TPA, served in a role very similar to that of an insurance adjuster for the Debtor. “An adjuster does not discharge functions of a quasi judicial nature, but represents his employer, to whom he owes faithful service.” 45 C.J.S. 1229 (1946). Thus, a claim against a TPA for breach of a fiduciary duty is the basic equivalent of a claim of malpractice against the TPA.
Our conclusion that the Debtor was unable to prove that CRS was guilty of malpractice therefore requires us to conclude that the Debtor was also unable to prove that CRS breached its fiduciary duties to the Debtor. Therefore, we find that the Debtor has failed to prove that CRS breached a fiduciary duty to it.
4. CRS IS NOT ENTITLED TO PREVAIL ON ITS COUNTERCLAIMS, EXCEPT TO THE EXTENT THAT IT IS ENTITLED TO BE COMPENSATED FOR SERVICES PERFORMED PRIOR TO ITS TERMINATION AS TPA.
We noted, at page 878 supra, that the parties, and notably CRS, devoted little attention in post-trial submissions to CRS’ counterclaim and motion for compensation. We believe that this lack of attention was due to a perception by both parties that these claims were far simpler to resolve than the validity of the claims of the Debt- or against CRS. Indeed, this is so.
Despite our conclusion that the Debtor failed to sustain its claim, we rather easily find that CRS may not proceed on its claim for wrongful termination. Paragraph 16(e) of the CAA, see Findings of Fact 12, page 880 supra, clearly permits the Debtor to terminate the CAA if it finds that CRS has not adequately performed its duties thereunder. It is apparent that the Debtor felt that CRS has not adequately performed under the CAA. While the evidence did not rise to the level of proving malpractice on the part of CRS, the evidence did establish that CRS performed its services in less than exemplary fashion. Apparently, CRS and the Debtor negotiated paragraph 16(e) of the CAA to provide the Debtor with complete power to dismiss or retain its TPA as well as to provide it a high level of comfort regarding its claim-handling, see page 889 n. 2 supra, and CRS voluntarily agreed to this, among the conditions of its employment. We add that Bennett, particularly, was convincing in establishing that CRS was deficient, to a considerable degree, in the performance of its duties as the TPA. See pages 886-87 and 887 supra.
We do agree that CRS is entitled to most of the compensation sought in its motion requesting same and its counterclaim. We found, at Finding of Fact 33, page 882 supra, that CRS was effectively terminated as the Debtor’s TPA on July 17, 1988, after the performance of all of its services for which compensation is sought in the *892“motion” for compensation. CRS is therefore entitled to compensation for all services performed as TPA recited in that motion, which apparently do not extend beyond the end of the day of July 17, 1988.
However, the motion seeking compensation of $69,303.54, plus interest, from the assets of the Debtor’s estate, cannot be sustained in its entirety. We find valid the Committee’s Objection to the request of CRS for compensation for closing cases in which services were not totally completed, but which were merely returned to the Debtor for subsequent servicing to completion by KMA, as CRS’s successor. We also decline to allow CRS any interest for delays in receipt of its compensation. The CAA does not expressly provide for payment of interest for delay in payment of compensation. The delay in payment was attributable, in large part, to this court’s own perception that the claims of malpractice set forth by the Debtor in this proceeding, which we reject but clearly decline to characterize as frivolous, had to be resolved before payment could be authorized.
We will permit CRS to submit a revised Application for compensation, in accordance with the guidelines set forth in this Opinion, on or before May 5, 1990. We will then allow the Debtor and the Committee until May 12, 1990, to submit comments or objections in response to this Application. We then anticipate entering an award in favor of CRS without the need for a further hearing. -
P. CONCLUSION
We will enter an Order consistent with the conclusions reached in this Opinion.
ORDER
AND NOW, this 23rd day of April, 1990, after a five-day trial and upon consideration of the parties’ respective post-trial submissions relevant to the above-captioned adversary proceeding and the “motion” of the Defendant therein in the Debtor’s main bankruptcy case for compensation, it is hereby ORDERED and DECREED as follows:
1. Judgment is entered in favor of the Defendant, CONTROLLED RISK SERVICES, INC., and against the Plaintiff, METRO TRANSPORTATION CO., d/b/a YELLOW CAB COMPANY on all claims set forth in the adversary complaint.
2. Judgment is entered in favor of the Plaintiff on all counterclaims asserted by the Defendant in the adversary proceeding except those counterclaims which are the equivalent of the requests set forth in CRS’ motion for compensation.
3. The Defendant shall file and serve, upon the Debtor, the Official Unsecured Creditors’ Committee, the United States Trustee, and the court in chambers, an amended Application for Compensation, consistent with the guidelines set forth in the foregoing Opinion, on or before May 5, 1990.
4. The Debtor, the Official Unsecured Creditors Committee, and the United States Trustee shall file and serve upon each other, CRS, and the court in chambers, any objections or responses to the aforesaid Application on or before May 15, 1990.
. Other Opinions arising out of this case are reported at 87 B.R. 338 (Bankr.E.D.Pa.1988) (Debtor permitted to reject executory pre-petition settlement agreement with its owner-drivers); 82 B.R. 351 (Bankr.E.D.Pa.1988) (pre-petition victim of accident with one of the Debtor’s cabs denied relief from the automatic stay); and 78 B.R. 416 (Bankr.E.D.Pa.1987), aff'd in part and remanded in part, 107 B.R. 50 (E.D.Pa.1989) (interim fee application of counsel for Creditors’ Committee reduced).
. In fact, Sherman contended that this act on his part, which he claimed that the Debtor viewed as a threat to its continued maintenance of the self-insurance program, was actually the primary reason that the Debtor sought its replacement. We find a strong possibility of merit in this contention. While the Debtor was required to hire a TPA which was independent, in order to avoid its manipulation of the reserves in the self-insurance program, it was obvious that the Debtor was reluctant to allow independence to flourish. We suspect that CRS was hired because the Debtor perceived that Sherman’s prior employment with it would enhance its control over the TPA’s performance of duties. At the first instance of real independence, CRS was discharged. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491119/ | MEMORANDUM AND ORDER ON MOTION TO DISQUALIFY COUNSEL
ALAN H.W. SHIFF, Bankruptcy Judge.
The plaintiff moves to disqualify the defendants’ law firm, Berchem & Moses (“BM”). For the reasons that follow, the motion is denied.
BACKGROUND
The plaintiff is a partnership which was formed to purchase three apartment buildings located in Norwalk, Connecticut; to perform construction work necessary to convert the apartments into condominiums; and to market the completed condominium units (the “project”). On December 23, 1981, the defendant Citytrust made a $5,000,000.00 construction loan to the plaintiff, which was secured by a first mortgage on the project and a $400,000.00 irrevocable letter of credit issued by Merchants Bank and Trust.
In January, 1983, Citytrust called the letter of credit, which Merchants Bank paid on January 20, 1983. Subsequent negotiations between the plaintiff and Citytrust resulted in an April 7, 1983 Contract of Sale (the “Contract”), which provided that Citytrust would form a wholly owned subsidiary corporation to be known as Sheffield Corporation; that the defendant Sheffield would purchase the project, assume $3,692,616.67 of the plaintiff’s mortgage obligation to Citytrust, complete the conversion, and market the condominium units; and that sale proceeds would be applied first to reduce the principal on the mortgage, second to reimburse Sheffield for costs of completion, which were not to exceed $2,800,000.00, and third to pay City-trust interest, with any surplus to go to the plaintiff. Citytrust subsequently applied $400,000.00 from the letter of credit to the debt, thereby reducing the principal balance to $3,292,616.67. On April 8, 1983, the plaintiff filed a chapter 11 petition. On May 11, 1983, the court approved the Contract. Sheffield subsequently completed the project. The defendants claim that the sale of the project resulted in a deficit after the allowance of all completion costs.
On March 14, 1985, the plaintiff commenced the instant adversary proceeding, contending that the sale of the project generated a surplus of approximately $825,-000.00 and that the alleged deficit resulted from grossly inflated costs of completion and the failure to hold surplus funds in interest bearing accounts. The challenged costs include attorneys’ fees of approximately $81,000.00 paid to BM.
On April 5, 1990, the plaintiff filed the instant motion under Connecticut Rules of Professional Conduct (“Conn.Rule”) 3.7, contending that it will call BM attorneys as witnesses to testify about advice BM gave *13to the defendants and that the probability that BM’s testimony will conflict with the defendants’ employees’ testimony mandates BM’s disqualification. The plaintiff’s attorney admitted at oral argument that he was not aware of any relevant local rules of the district court or this court. Upon being directed to District Court Local Civil Rule 33(b)(2) he acknowledged that it is the governing provision, but contended that the standards under that rule are the same as those under Conn.Rule 3.7.
The defendants state that District Court Local Civil Rule 33 governs, see infra at 4 for text, and contend that two years of discovery have not yielded a shred of potential evidence that there is a conflict between them and BM. The defendants further argue that BM has represented them in this matter for approximately eight years and that they would be prejudiced if BM were disqualified. The defendants attorney has characterized the plaintiff’s motion as “borderline frivolous”.
DISCUSSION
1.
District Court Local Civil Rule (“Dist. Rule”) 3(a), made applicable by Local Bankruptcy Rule 1(b), provides:'
1. Other than the specific Rules enumerated in Rule 3(a)2 of these Local Rules, this Court recognizes the authority of the “Rules of Professional Conduct,” as approved by the Judges of the Connecticut Superior Court as in effect on October 1, 1986, as expressing the standards of professional conduct expected of lawyers practicing in the District of Connecticut....
2. Rules 3.6 and 3.7(b) of the Rules of Professional Conduct are not adopted as rules governing professional conduct in the District of Connecticut_ The ethical standards governing participation as counsel in a case where either the attorney or another attorney in his or her firm may be a witness for both civil and criminal cases are set forth in Local Civil Rule 33.
Since this adversary proceeding was pending for approximately five years before the plaintiff disclosed its intention to call BM attorneys as witnesses, Dist.Rule 33(b)(2) is controlling and provides:
If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or she or a lawyer in the same firm may be called as a witness other than on behalf of his or her client, the lawyer may continue the representation until it is apparent that his or her testimony is or may be prejudicial to the client.
2.
The plaintiff’s contention that the same standard governs motions under Conn.Rule 3.7 and Dist.Rule 33(b)(2) is misinformed. Conn.Rule 3.7 does not include any provision analogous to Dist.Rule 33(b)(2). Dist. Rule 33(b)(2) traces Code of Professional Responsibility D.R. 5-102(B), and the plaintiff’s motion cannot be granted under the standards for that rule as enunciated by the courts in this circuit.
In ruling on disqualification matters, courts in this circuit give deference to the right of a client to choose his own counsel so long as high professional standards are maintained. Government of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.1978); Huntington v. Great W. Resources, Inc., 655 F.Supp. 565, 571 (S.D.N.Y.1987). As the court in Government of India stated:
A client whose attorney is disqualified incurs a loss of time and money in being compelled to retain new counsel who in turn have to become familiar with the prior comprehensive investigation which is the core of modern complex litigation. The client moreover may lose the benefit of its longtime counsel’s specialized knowledge of its operations.
Government of India, supra, 569 F.2d at 739. Thus, I am obliged to adopt “a restrained approach that focuses primarily on preserving the integrity of the trial process.” Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir.1980), vacated, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). As the court in Lamborn v. Dittmer, 873 *14F.2d 522, 531 (2d Cir.1989), observed, “[bjecause the courts must guard against tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny, particularly motions under subdivision [D.R. 5-102] (B) ” (Citations omitted and emphasis added). Under that strict standard, an attorney should not be disqualified unless the attorney’s presence will tend to taint the case. Board of Ed. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); United States Football League v. National Football League, 605 F.Supp. 1448, 1452 (S.D.N.Y.1985). A trial may become tainted if an attorney’s conflict of interest under D.R. 5-102(B) undermines the court’s confidence in the vigor of the attorney’s representation of his client. Gaull v. Wyeth Laboratories, Inc., 687 F.Supp. 77, 80 (S.D.N.Y.1988). See also Nyquist, supra, 590 F.2d at 1246.
Under D.R. 5-102(B), the moving party must not only specifically demonstrate the nature and extent of any alleged prejudice, but also that the likelihood of such prejudice occurring is substantial. Lamborn, supra, 873 F.2d at 531; Rice v. Baron, 456 F.Supp. 1361, 1371 (S.D.N.Y.1978).
“For testimony to be ‘prejudicial’ within the meaning of the disciplinary rule, the ‘projected testimony of a lawyer or firm member must be sufficiently adverse to the factual assertions or account of events offered on behalf of the client, such that the bar or the client might have an interest in the lawyer’s independence in discrediting that testimony.’ ”
Lamborn, supra, 873 F.2d at 531 (quoting Rice, supra, 456 F.Supp. at 1371).
The plaintiff has failed to meet its burden of proof. It has made no attempt to demonstrate that there is a substantial likelihood that the defendants will be prejudiced if BM attorneys are called to testify. Instead, the plaintiff’s attorney invites this court to speculate that if called to testify, BM attorneys might contradict deposition testimony given by the defendants employees.
CONCLUSION
The plaintiff’s motion is without merit, it is denied, and IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483628/ | Filed 11/14/22 P. v. Aubrey CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE OF THE STATE OF
CALIFORNIA,
A165241
Plaintiff and Respondent,
v. (Humboldt County
AARON AUBREY, Case Nos. CR1903760,
CR1904050A)
Defendant and Appellant.
On August 3, 2019, R.C. reported to Eureka police that his wallet was
forcefully taken from him. On August 8, 2019, in case number CR1903760,
the Humboldt County District Attorney filed a felony complaint charging
Aaron Aubrey with robbery (Pen. Code, § 211)1 and a prior prison term
enhancement (former § 667.5, subd. (b)).
At the August 20, 2019 preliminary hearing, R.C. testified that Aubrey
was not the man who robbed him, even though he had previously identified
him with “99 percent” certainty in a photo lineup as the person who had
taken his wallet. R.C. also acknowledged that he had been seated next to
Aubrey’s girlfriend prior to the case being called. The responding officer
testified about R.C.’s statements to him regarding the incident and his
1 All further statutory references are to the Penal Code unless otherwise
stated.
1
identification of Aubrey as the person who robbed him. The People rested,
and the court recessed.
During the break, the prosecutor, a District Attorney investigator, the
responding officer, and another individual on the prosecution team spoke
with R.C. about his testimony in a meeting which was recorded and
transcribed. R.C. disclosed that Aubrey’s girlfriend had texted R.C. that if he
did not want any problems, he would need to say it wasn’t Aubrey who
robbed him. They would return his money if he so testified.
Upon returning from the recess, the People successfully moved to
reopen evidence and R.C. was recalled as a witness. R.C. identified Aubrey
as the person who took his property. Asked why he was unable to make the
identification earlier, he explained that he was scared, felt threatened, and
did not want harm to come to him or his family. R.C. explained that Aubrey’s
girlfriend instructed him to not identify Aubrey if he didn’t want any
problems. R.C. assumed the message came from Aubrey.
Aubrey was held to answer on the robbery charge and duly arraigned
on the information filed on August 28, 2019. He plead not guilty to the
robbery charge and denied the prior prison term special allegation.
On August 23, 2019, in case number CR1904050A, the Humboldt
County District Attorney filed a new felony complaint charging Aubrey and
his girlfriend with attempting to dissuade a witness (§ 136.1, subd. (a)(2)) and
a prior prison term enhancement (§ 667.5, subd. (b)). He plead not guilty to
the charge and denied the special allegation as set forth in the information
filed on October 30, 2019.
On March 24, 2021, Aubrey moved to dismiss CR1903760 on the basis
of prosecutorial misconduct and due process violations. Aubrey alleged that
during the recess at the preliminary hearing the prosecution intimidated R.C.
2
into changing his testimony by threatening him with perjury charges. He
claimed R.C.’s testimony was coerced and deprived him of a fair trial. The
People submitted written opposition to the motion. There is no transcript of
any hearing or any trial court decision on the motion in the record. Aubrey’s
appellate counsel represents that the motion “was re-set and continued
several times” until it was “eventually ‘stayed’ a year later” when he entered
a plea, as discussed below.
On March 29, 2022, days before Aubrey’s jury trial in CR1903760 and
CR1904050A was scheduled to begin, Aubrey entered into a “global plea”
reflecting a negotiated disposition with the prosecution as to the two cases
and other pending matters. Aubrey agreed to plead guilty to robbery in
CR1903760; witness intimidation in CR1904050A; being a prohibited person
in possession of a firearm in violation of section 29800, subdivision (a)(1) in
case number CR2103909A; and possession of a controlled substance in
violation of Health and Safety Code section 11350 in case number 2103930.
He agreed to serve a total of three years and eight months in state prison.
Both prior prison term enhancements allegations under section 667.5,
subdivision (b) in CR1903760 and CR1904050A were dismissed.
On April 21, 2022, the trial court sentenced Aubrey to three years and
eight months in state prison pursuant to the negotiated disposition. The
sentence consisted of the mid-term of three years for the robbery conviction
and one-third the mid-term of two years, or eight months, for witness
tampering to run consecutively. The court also imposed a concurrent
sentence of the mid-term of three years for the felon in possession of firearm
conviction. Aubrey was awarded 488 days of credit for 424 actual days served
and an additional 64 days of section 2933.1 conduct credits. He was also
ordered to pay restitution and certain assessments.
3
On May 9, 2022, Aubrey filed notices of appeal in CR1903760 and
CR1904050A. In each notice, he checked the box on the Judicial Council form
that his appeal was “challeng[ing] the validity of the plea or admission” and
also wrote that “[d]enial of due process due to prosecutorial misconduct” was
another basis for the appeal. In the accompanying requests for certificates of
probable cause, Aubrey noted: “Defendant’s motion to dismiss due to
prosecutorial misconduct, witness coercion was denied. The denial should be
reviewed by an appellate court.”
On June 23, 2022, Aubrey filed a notice of appeal in CR2103909A,
checking the box on the Judicial Council form that his appeal “challenges the
validity of the plea or admission.” In the accompanying request for certificate
of probable cause, Aubrey stated: “Change of plea was based in part on
global offer including cases CR1903760 and CR1904050A. The validity of the
plea on those two cases was appealed; this appeal is to put all three cases
together.”
For CR1903760 (the robbery case) and CR1904050A (the witness
intimidation case), appellate counsel has filed a brief asking us to
independently review the record pursuant to People v. Wende (1979) 25
Cal.3d 436, to determine whether there are any arguable issues on appeal. 2
Appellate counsel has averred that Aubrey was advised of his right to file a
supplemental brief, but he has not filed such a brief. Having independently
reviewed the record, we conclude there are no issues that require further
briefing and affirm the judgment.
DISPOSITION
The judgment is affirmed.
2 Appellate counsel raises no contentions on appeal with respect to
CR2103909A (the felon in possession case).
4
_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A165241/People v. Aubrey
5 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483635/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TRUST-ED SOLUTIONS, LLC, )
)
Plaintiff/Counterclaim-Defendant, )
)
v. )
)
GILBERT LLP, ) C.A. No. N20C-06-229 MMJ CCLD
)
Defendant/Counterclaim- )
Plaintiff/Third-Party Plaintiff, )
)
v. )
)
RACHEL L. COSGROVE, )
)
Third-Party Defendant. )
ORDER
The Court has considered Gilbert LLP’s Motion for Relief Under Rule 37 (the
“Motion”), and Trust-Ed and Cosgrove’s Response in Opposition, the Court finds that:
(1) Trust-Ed’s production of Cosgrove’s Wells Fargo records eliminates the
need for preparation and production of the summary ordered at the conclusion of the
August 10, 2022 hearing.
(2) Also ordered on August 10, 2022 was production of correspondence with
Wells Fargo relating to Trust-Ed’s attempts to obtain records from Wells Fargo. This
correspondence must be produced within 10 days of the date of this Order.
(3) The issue of sanctions will be considered at the conclusion of the case.
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston
Dated: November 14, 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483636/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE : ID No. 1509003526
:
: RK-15-090428 01 PDWDCF
v. : RK-15-120034 01 ATT MURDER 1ST
:
:
DANIEL R. EYSTER, :
Defendant. :
:
Submitted: September 6, 2022
Decided: November 14, 2022
ORDER
Defendant’s Motion for Postconviction Relief - SUMMARILY DISMISSED
On this 14th day of November 2022, after considering Defendant Daniel
R. Eyster’s First Motion for Postconviction Relief, and the record, IT APPEARS
THAT:
1. Mr. Eyster filed his Motion for Postconviction Relief, pro se, on
September 6, 2022. He seeks relief from an August 23, 2016 conviction for
Attempted Murder First Degree and Possession of a Deadly Weapon During the
Commission of a Felony (PDWDCF). He filed this motion more than six years after
his conviction.
2. Superior Court Criminal Rule 61(i)(1) provides :
[a] motion for postconviction relief may not be filed more than one
year after the judgment of conviction is final or, if it asserts a
retroactively applicable right that is newly recognized after the
judgment of conviction is final, more than one year after the right is
first recognized by the Supreme Court of Delaware or by the United
States Supreme Court.
1
3. While Superior Court Criminal Rule 61(i)(5) makes this procedural bar
inapplicable in certain circumstances, Mr. Eyster identifies no exception to excuse
his untimeliness. Accordingly, his Motion is procedurally barred and must be
dismissed.
NOW, THEREFORE, for the reasons explained above, Defendant’s Motion
for Postconviction Relief is summarily DISMISSED.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Resident Judge
JJC/jan
oc: Prothonotary
cc: Stephen Welch, DAG
Suzanne MacPherson-Johnson, Esquire
Daniel R Eyster, JTVCC
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483624/ | Filed 11/14/22 P. v. Gonzalez CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081139
Plaintiff and Respondent,
(Super. Ct. No. VCF037619D-96)
v.
JOSE GONZALEZ, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Tulare County. Gary L. Paden,
Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Franson, J.
INTRODUCTION
In 1996, a jury convicted petitioner Jose Gonzalez of first degree murder (Pen.
Code,1 § 187, subd. (a), count 1).2 As to count 1, the jury found true the special
circumstance that petitioner committed the murder while engaged in the commission or
attempted commission of a robbery (§ 190.2, subd. (a)(17)). The trial court sentenced
petitioner on count 1 to a term of life without the possibility of parole.
In 2019, petitioner filed a petition for resentencing pursuant to section 1172.6
(former § 1170.95).3 The trial court summarily denied the petition.
On appeal, petitioner contended the special circumstance finding should not
preclude him from resentencing relief because his conviction predates our Supreme
Court’s decision in Banks/Clark,4 which clarified the meaning of “major participant” and
“reckless indifference to human life.”5 We affirmed the trial court’s denial of
resentencing. (People v. Gonzalez (June 20, 2022, F082567 [nonpub. opn.].)
1 All further statutory references are to the Penal Code, unless otherwise specified.
2 Petitioner was convicted of additional offenses and enhancements, as described
below.
3 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no
change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in
this opinion.
4 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th
522 (Clark).
5 Petitioner also asserted the trial court erred to the extent it determined his petition
was facially insufficient, made its own factual findings to determine he was a major
participant who acted with reckless indifference to human life, and relied on the appellate
opinion from his codefendant’s appeal to support its finding. He also asserted he was
entitled to reversal “without a showing of prejudice, or unless the court’s errors were
harmless beyond a reasonable doubt.” (People v. Gonzalez (June 20, 2022, F082567
[nonpub. opn.], p. 9, fn.7.) Because we conclude petitioner established a prima facie case
for relief under section 1172.6, we do not address these arguments in this opinion.
2.
Our Supreme Court held subsequently held that a pre-Banks/Clark special
circumstance finding does not render a section 1172.6 petitioner ineligible for relief as a
matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) We, therefore, vacate
our opinion, reconsider the matter in light of Strong, reverse the trial court’s order, and
remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We include a brief summary of the facts underlying this case taken from
petitioner’s codefendant’s direct appeal.6
“Prosecution evidence showed that [Saleh Bin] Hassan was killed on
December 29, 1994, while working at [a] Market, which he and his wife
owned in Farmersville, near Visalia. He had been shot twice, including
once in the back. His dead body was lying prone behind the counter.
Nothing was missing from the cash register. However, Hassan’s wallet and
handgun were gone. [George Lopez Contreras] was implicated in the crime
along with three other men: [petitioner], Santos Acevedo Pasillas …, and
Louis Phillip Fernandez, Jr. .… [Contreras] carried a shotgun into Hassan’s
store, and was identified as the actual killer. At the outset, criminal charges
were jointly filed against all four men.” (People v. Contreras (2013) 58
Cal.4th 123, 128–129.)
On October 17, 1996, a jury convicted petitioner of first degree murder (§ 189,
subd. (a), count 1) and robbery (§ 211, count 2). As to the murder offense, the jury found
true a robbery special circumstance (§ 190.2, subd. (a)(17)). As to both counts, the jury
found not true a firearm enhancement (§ 12022.5, subd. (a)). On November 19, 1996, the
trial court sentenced petitioner on count 2 to the aggravated term of five years. As to
6 We provide this summary of the facts from the codefendant’s direct appeal
because it was incorporated into the People’s briefing in the trial court and petitioner
argues it may have been considered in the trial court’s ruling. However, we do not rely
on these facts in resolving the issues presented in this appeal. (People v. Flores (2022)
76 Cal.App.5th 974, 988 [appellate opinion from codefendant’s appeal is not part of the
record of conviction that may be considered in determining whether a petitioner has
stated a prima facie case]; § 1172.6, subd. (d)(3).) Furthermore, to the extent the trial
court relied on these facts, it erred. (Flores, at p. 988.) As we explain below, however,
any such error was harmless.
3.
count 1, the trial court sentenced petitioner to a concurrent term of life without the
possibility of parole.7 Petitioner did not appeal.
In 1998, petitioner filed a petition for writ of habeas corpus in this court alleging
ineffective assistance of counsel because his trial counsel failed to file a notice of appeal.
(In re Jose Gonzalez on Habeas Corpus (Feb. 27, 1998, F030146 [nonpub. order]).) This
court denied the petition because petitioner failed to explain the approximate one-year
delay in seeking relief. (Gonzalez, F030146.)
On March 21, 2019, petitioner, in propria persona, filed a petition for resentencing
on his murder conviction pursuant to section 1172.6. In the form petition, petitioner
stated a complaint, information, or indictment was filed against him that allowed him to
be prosecuted under a theory of felony-murder or murder under the natural and probable
consequences doctrine; he was convicted of first or second degree murder at trial; and he
could not now be convicted of first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019. Petitioner also requested the court
appoint counsel during the resentencing process. Petitioner further stated he was not the
actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of murder in the first degree;
or that he was not a major participant in the felony or did not act with reckless
indifference to human life during the course of the crime or felony. Petitioner further
stated the murder victim was not a peace officer acting in the performance of his or her
duties. Petitioner further stated he was convicted of second degree murder under the
natural and probable consequences doctrine or under the second degree felony-murder
doctrine and he could not now be convicted of murder because of changes to section 188,
effective January 1, 2019. Lastly, petitioner stated there had been a prior determination
7 The minute order states the term of life without the possibility of parole was “to
run concurrent to [c]ount 2 pursuant to [section] 654.”
4.
by a court or jury that he was not a major participant and/or did not act with reckless
indifference to human life under section 190.2, subdivision (d) and therefore is entitled to
section 1172.6 resentencing.
On April 4, 2019, the People filed a motion to dismiss the petition, arguing that
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) was unconstitutional and
that petitioner was ineligible for resentencing because the jury found true the special
circumstance, which established petitioner was a major participant in the robbery who
acted with reckless indifference to human life. On April 8, 2019, the trial court appointed
the public defender’s office to represent petitioner. Petitioner’s counsel did not file a
reply.
On both January 15 and March 16, 2020, the parties appeared at a hearing and the
matter was continued.8 On March 17, 2020, the People sent an email to defense counsel,
with a copy to the assigned judge, regarding cases on the previous day’s calendar, “[a]s
[the assigned judge] instructed.” Therein, the People stated:
“Based on the record of conviction including the associated appellate
opinions, the following cases fail to state a prima facie case for relief under
[Senate Bill] 1437. Please note that where the special circumstance murder
allegations were found true, that defendant would be ineligible as a matter
of law because the jury has found him/her to have been a major participant
who acted with reckless disregard for human life.”
With specific regard to petitioner, the People stated:
“The jury found the special circumstance to be true. [Petitioner] was found
to have been a major participant with reckless disregard. As such, he
cannot establish that had the changes to [section] 188 and [section] 189
been in place, he could not have been convicted of murder.”
8 We previously denied petitioner’s “APPLICATION TO CORRECT THE
RECORD ON APPEAL,” filed on May 18, 2022, without prejudice to filing it in the
superior court. The application was denied because the matter sought to be corrected was
irrelevant to this appeal.
5.
The trial court responded to the email, noting that the matters referred to by the
People were set for April 17, 2020, and asking defense counsel to advise the court prior
to that date whether he agreed or disagreed with the People’s position. The record does
not contain an email response from defense counsel.
The matter was heard on April 17, 2020, and the trial court stated:
“As to [another of the petitioners referred to in the prosecutor’s
email], his request is denied for resentencing. The [c]ourt finds he is not
eligible for the relief requested. The same is true—the [c]ourt makes the
same finding as to [petitioner]. Seeing the DA’s response, he is not
eligible.”
The court’s minute order states only, “[Petitioner] not eligible.”
A timely appeal followed. In a nonpublished opinion, we affirmed the trial court’s
denial of resentencing. (People v. Gonzalez (June 30, 2022, F081139) [nonpub. opn.].)
On August 9, 2022, petitioner filed a petition for review asking the court to
transfer this case for reconsideration in light of our Supreme Court’s opinion in Strong.
On September 28, 2022, our Supreme Court granted his petition for review and
transferred the matter back to this court with instructions to vacate our June 30, 2022,
opinion and reconsider in light of Strong. Based on Strong, we issued an order that it was
the “intention of the court to reverse and remand this matter [to the trial court] with
directions to issue an order to show cause[,]” but provided either party 15 days to serve
and file an objection. On October 10, 2022, this court received a letter from the Attorney
General’s office indicating they “ha[d] no objections to the court’s intended resolution.”
Accordingly, in light of Strong and the People’s concession, the trial court’s order
denying the section 1172.6 petition is reversed and the matter remanded for further
proceedings.
6.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill 1437 “to amend the
felony murder rule and the natural and probable consequences doctrine … to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
accomplished this task by adding three separate provisions to the Penal Code. (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable
consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a
principal to act with malice aforethought before he or she may be convicted of murder.
(§ 188, subd. (a)(3); accord, Gentile, at pp. 842–843.) Second, to amend the
felony-murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.”9 (§ 189, subd. (e); accord, Gentile, supra, 10 Cal.5th at
p. 842.)
Finally, the bill added section 1172.6 (former § 1170.95) to provide a procedure for those
convicted of a qualifying offense “to seek relief under the two ameliorative provisions
above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony
murder or murder under the natural and probable consequences doctrine or other theory
9 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
7.
under which malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences doctrine, or
manslaughter.” (§ 1172.6, subd. (a).)
“Section [1172.6] lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a)(1)–(3); see also § 1172.6, subd. (b)(1)(A);
accord, People v. Lewis (2021) 11 Cal.5th 952, 959–960 (Lewis).)
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1172.6, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and
the petitioner may file a reply. The trial court must then hold a hearing to determine if
the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961–963, 967.) In making
8.
this determination, the court may rely on the record of conviction, which includes, but is
not limited to, jury instructions and verdict forms. (Lewis, at pp. 970–971, 972.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971–972.) “If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
On the other hand, if the court determines the petitioner has met his or her prima
facie burden, “the trial court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder[, attempted murder, or manslaughter] conviction
and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at
p. 853; accord, § 1172.6, subds. (c), (d)(1).) At the hearing, the prosecution must “prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1172.6,
subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to
meet their respective burdens. The admission of evidence at the hearing is governed by
the Evidence Code. However, the court also “may consider evidence previously admitted
at any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1172.6, subd. (d)(3).)
II. Analysis
Petitioner contends the special circumstance finding cannot establish his
ineligibility for resentencing because Banks/Clark substantively changed the legal
9.
meaning of both “major participant” and “reckless indifference to human life.” Based on
our Supreme Court’s holding in Strong, we agree.10
Prior to Strong, the Courts of Appeal were split on the question of whether a
special circumstance finding entered prior to Banks and Clark renders a petitioner
ineligible for section 1172.6 resentencing relief as a matter of law. Our Supreme Court
recently resolved this split and made clear that when, as here, a petitioner’s case “was
tried before both Banks and Clark, the special circumstance findings do not preclude him
from making out a prima facie case for resentencing under section 1172.6.” (Strong,
supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have been
sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The Strong
court noted the Banks and Clark cases “both substantially clarified the law governing
findings under … section 190.2, subdivision (d).” (Id. at p. 706.) Further, the court
articulated a pre-Banks and Clark special circumstance finding does not negate the
showing a petitioner could not presently be convicted of murder or attempted murder
because of changes to section 188 or 189 “because the finding alone does not establish
that the petitioner is in a class of defendants who would still be viewed as liable for
murder under the current understanding of the major participant and reckless indifference
requirements.” (Strong, at p. 718.)
Because of the differences between the pre-and post-Banks and Clark special
circumstance requirements, our Supreme Court stated the changes may “have altered
what evidence defense counsel would have sought to introduce[,] … might have
10 Petitioner further contends the trial court erred to the extent it (1) made its own
factual findings to determine he was a major participant who acted with reckless
indifference to human life, (2) relied on the appellate opinion from the codefendant’s
appeal to support such a finding, and (3) failed to provide a statement of reasons, which is
required under section 1172.6, subdivision (c). Because we conclude petitioner
established a prima facie case for relief under section 1172.6, we do not address these
remaining arguments in this opinion.
10.
fundamentally altered trial strategies” (Strong, supra, 13 Cal.5th at p. 719), and may have
affected what jury instructions were requested or given (id. at p. 720.) “An after-the-fact
court review of a pre-Banks and Clark record does not account for all these
differences.… And as the Legislature has made explicit in a recent amendment to the
predecessor to section 1172.6, a court determination that substantial evidence supports a
homicide conviction is not a basis for denying resentencing after an evidentiary hearing.
[Citation.] Nor, then, is it a basis for denying a petitioner the opportunity to have an
evidentiary hearing in the first place.” (Ibid.) “For petitioners with pre-Banks/Clark
findings, no judge or jury has ever found the currently required degree of culpability for a
first time. Allowing reexamination of the issue under these circumstances does not
permit a ‘second bite of the apple’ because the changes in the law mean there is now ‘a
different apple.’ ” (Id. at p. 718.) Thus, neither “the jury’s pre-Banks and Clark findings
nor a court’s later sufficiency of the evidence review amounts to the determination
section 1172.6 requires, and neither set of findings supplies a basis to reject an otherwise
adequate prima facie showing and deny issuance of an order to show cause.” (Id. at
p. 720.)
Here, the jury found true the section 190.2, subdivision (a)(17) special
circumstance approximately 20 years before Banks and Clark were decided. Pursuant to
Strong, these findings do not preclude petitioner from stating a prima facie case for relief.
(Strong, supra, 13 Cal.5th at p. 721.)
Petitioner’s section 1172.6 petition was facially sufficient and alleged the
necessary facts required for relief under section 1172.6. Nothing in the record indicates
petitioner is ineligible for relief as a matter of law, and thus, we accept the People’s
concession and remand the matter for the trial court to issue an order to show cause, and
to the extent necessary, conduct an evidentiary hearing. (§ 1172.6, subds. (c), (d)(1) &
(3).) We express no opinion on the ultimate resolution of the petition.
11.
DISPOSITION
The trial court’s order denying petitioner’s section 1172.6 petition is reversed. On
remand, the trial court is directed to issue an order to show cause and, to the extent
necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
12. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483641/ | NOTICE
2022 IL App (5th) 200400-U NOTICE
Decision filed 11/14/22. The
text of this decision may be NO. 5-20-0400 This order was filed under
changed or corrected prior to Supreme Court Rule 23 and is
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Marion County.
)
v. ) No. 19-CF-279
)
JERRY B. EZEBUIROH, ) Honorable
) Allan F. Lolie Jr.,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court.
Justices Welch and Vaughan concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court, where defendant’s right to a speedy
trial was not violated. Additionally, the court did not abuse its discretion by
allowing the State to elicit testimony about defendant’s aggressiveness as a prior
bad act, and defense counsel was not ineffective, where defendant failed to
demonstrate prejudice.
¶2 Defendant, Jerry B. Ezebuiroh, appeals his conviction and sentence after a jury in the
circuit court of Marion County found him guilty of aggravated battery of a correctional officer
(720 ILCS 5/12-3.05(d)(4) (West 2018)). While defendant’s case was pending, the Illinois
Supreme Court entered emergency orders in response to the COVID-19 pandemic, regarding
section 103-5(a) of the Code of Criminal Procedure of 1963 (Code), known as the Speedy Trial
Act (Act) (725 ILCS 5/103-5(a) (West 2020)). Defendant argues on appeal that he was denied his
statutory right to a speedy trial, where the Illinois Supreme Court and the chief judge of the Fourth
1
Judicial Circuit lacked constitutional and statutory authority to suspend the operation of the
speedy-trial statute. Additionally, defendant argues that the court erroneously permitted the State
to elicit irrelevant and unfairly prejudicial testimony under Illinois Rule of Evidence 404 (eff. Jan.
1, 2011) that defendant previously behaved aggressively, and that defense counsel was ineffective
for failing to exercise a peremptory strike against a juror. For the following reasons, we affirm.
¶3 I. Background
¶4 We present only those facts necessary to our disposition of this appeal, which are as
follows. On July 29, 2019, the State charged defendant with the offense of aggravated battery of a
correctional officer, a Class 2 felony, whereby defendant, on July 27, 2019, without legal
justification, knowingly made physical contact of an insulting or provoking nature when defendant
grabbed and scratched Officer Cody Casner, a Marion County correctional officer engaged in the
execution of his official duties (720 ILCS 5/12-3.05(d)(4) (West 2018)). At the time, defendant
was incarcerated in the Marion County jail for the offense of domestic battery on a distinctly
separate case (No. 19-CF-134). The court appointed Attorney Craig Griffin to represent defendant
in the case at issue.
¶5 On August 20, 2019, the circuit court held a preliminary hearing where Officer Casner
testified to the following. On July 27, 2019, at approximately 7:05 p.m., a Marion County
correctional officer tased defendant, placed defendant in handcuffs, removed defendant from “D-
block,” and relocated him to a single solitary cell near the booking area in “R-4.” At approximately
7:40 p.m., Officer Casner approached defendant’s cell in the booking area to remove his handcuffs.
Officer Casner first “popped the chuck[ ]hole,” a small hatch between the inmate and guard, and
then requested defendant to “put his cuffs by the chuck[ ]hole *** to uncuff him.” Defendant
complied. He placed his back against the chuck hole to allow Officer Casner to remove his
2
handcuffs. After Officer Casner uncuffed one of defendant’s hands, defendant pulled away from
him, pulling Officer Casner’s hands through the chuck hole and then grabbing Officer Casner’s
left hand. After the exchange, Officer Casner’s hands and arms were scratched, scraped, and
bloody.
¶6 After the circuit court found probable cause, defendant, represented by Attorney Griffin,
waived formal arraignment, demanded a jury trial, and requested an October 2019 setting. The
court set defendant’s jury trial for October 15, 2019.
¶7 On September 24, 2019, the circuit court held a pretrial hearing. At the outset of the
hearing, defendant, proceeding pro se, claimed that Attorney Griffin failed to listen to him on
multiple occasions and refused to file motions at defendant’s request. The court admonished
defendant that he was entitled to representation by counsel, but defendant was not entitled to
choose his public defender. Following admonishments, the court vacated Attorney Griffin’s
appointment.
¶8 On September 26, 2019, the State filed a motion in limine. The State requested the circuit
court proceed with the charge of aggravated battery, not the offense of domestic battery (No. 19-
CF-134), at the next available trial setting.
¶9 On October 3, 2019, defendant filed several pro se motions in the circuit court. In
particular, he filed a “Motion for Recruitment of Counsel,” because he was unable to afford private
counsel. Defendant, claiming he was disabled and had mental health issues, filed a motion
requesting the court appoint an expert to assist him in understanding the proceedings and in
communicating with his attorney. Due to a long history of mental health issues, defendant claimed
he was not receiving necessary medication while incarcerated.
3
¶ 10 On October 3, 2019, the circuit court held a pretrial hearing. In referencing defendant’s
motions, the court stated the following:
“THE COURT: Now, the last time you were here though, sir, you told us that you
didn’t want an attorney. Now, today you are filing a motion telling me that you want an
attorney. Which way is it?
DEFENDANT EZEBUIROH: Because when it happened it happened so fast that I
couldn’t really concentrate with him asking me questions, so I don’t know how to answer
it at that period of time.
THE COURT: You understand if I were to grant the motion for counsel that it
would delay your jury trial which is scheduled for October 15th?
DEFENDANT EZEBUIROH: Yes, ma’am.
THE COURT: And that that delay would be attributed to you. And that’s a fancy
way of saying that you are the one that caused the delay, not the state’s attorney[’]s office.
Do you understand that?
DEFENDANT EZEBUIROH: Yes, ma’am.”
The court informed defendant it would re-appoint counsel to represent him. After defendant
affirmed that he understood, the court stated: “[A]gain, you understand that that will cause a delay
in your jury trial which is currently scheduled for October 15th?” Defendant acknowledged that
he understood. The court vacated the jury setting, re-appointed Attorney Griffin to represent
defendant, and confirmed that the record would show delay attributable to defendant.
¶ 11 On October 8, 2019, the circuit court held a pretrial hearing. At the outset, Attorney Griffin
requested a December 2019 setting for defendant’s jury trial with a pretrial hearing prior to the
start date. The court granted defendant’s request and reset defendant’s trial for December 14, 2019.
¶ 12 On November 19, 2019, defendant, represented by counsel, filed a motion requesting the
circuit court to appoint a psychiatrist or psychologist to evaluate his sanity at the time of the alleged
offense. That same day, the court held a pretrial hearing. At the hearing, Attorney Griffin requested
that the court appoint Dr. Daniel Cuneo to evaluate defendant. Attorney Griffin also requested that
the court continue defendant’s trial to January 2020, with the delay attributable to defendant.
Following the court’s admonishment, defendant acknowledged that he understood. Without
4
objection by the State, the court granted defendant’s motion to continue, appointed Dr. Cuneo,
vacated the December 2019 setting, and set defendant’s jury trial for January 21, 2020.
¶ 13 On January 9, 2020, the circuit court held a pretrial hearing. At the hearing, Attorney
Griffin moved the court to continue defendant’s trial. The court admonished defendant that any
delay would be attributable to him. Defendant acknowledged that he understood. Without
objection by the State, the court granted defendant’s motion and reset his jury trial for February
10, 2020.
¶ 14 On January 28, 2020, defendant filed several pro se motions, including a motion for new
counsel and a “Motion for Recruitment of Counsel,” requesting, again, that the circuit court
appoint an expert to assist him, due to a disability, in understanding the proceedings and
communicating and cooperating with his attorney. Additionally, defendant filed a motion for a 30-
day continuance to hire legal representation.
¶ 15 On January 28, 2020, the circuit court held a pretrial hearing. At the hearing, defendant
informed the court that he wished to proceed pro se. After admonishing defendant that the court
did not find grounds for removing Attorney Griffin, the court advised against defendant’s decision
to proceed pro se. Despite this, defendant elected to proceed without counsel. The court, with both
parties present, confirmed that defendant’s jury trial was set for February 10, 2020. The court
vacated Attorney Griffin’s appointment.
¶ 16 On February 3, 2020, the State filed three motions in limine (second, third, and fourth
motions in limine). Relevant to this appeal, the State’s fourth motion in limine requested that the
circuit court bar defendant and any other witnesses from testifying to the events that occurred at
7:05 p.m. on July 27, 2019, prior to the alleged offense against Officer Casner. The State also
requested that the court bar defendant from questioning witnesses about the same events.
5
¶ 17 On February 4, 2020, at the pretrial hearing, the circuit court acknowledged defendant’s
January 28, 2020, motion for a 30-day continuance. Defendant informed the court that he needed
additional time to hire an attorney. The following colloquy took place:
“THE COURT: *** Now, sir, you understand that you have a right to a speedy
trial?
DEFENDANT EZEBUIROH: Yes, sir.
THE COURT: And do you understand that if you delay this trial[,] it will not run
against your speedy trial rights? In other words, the delay will be charged to you which
means you will be held in custody for a longer period of time. Do you understand that?
DEFENDANT EZEBUIROH: Yes, sir.
THE COURT: And with that understanding, are you pursuing the motion to
continue?
DEFENDANT EZEBUIROH: For a 30[-]day continuance?
THE COURT: Yeah.
DEFENDANT EZEBUIROH: Yes, sir.
THE COURT: So[,] you understand that the 30 days will not run against your
speedy trial demand, delay will be to you?
DEFENDANT EZEBUIROH: Yes, sir.”
The court granted defendant’s motion to continue and reset defendant’s jury trial for March 9,
2020. The court informed defendant on the record: “[A]t some point in time you are either going
to have to produce an attorney or proceed pro se.” Defendant acknowledged that he understood.
¶ 18 On February 27, 2020, defendant appeared pro se at the pretrial hearing. The circuit court
granted defendant’s request to re-appoint counsel and re-appointed Attorney Griffin to represent
defendant. Defendant informed the court that he filed a civil suit against Attorney Griffin in federal
court. The court stated that “no one has been alerted to that, sir, so no one knows about that here.”
The court refused to reschedule defendant’s jury trial, informing him that his trial would start on
March 9, 2020. Defendant proceeded to state that he wanted a new attorney because he refused to
work with Attorney Griffin. After the court informed him that he could represent himself pro se,
hire his own private attorney, or work with Attorney Griffin, defendant accused the judge of
discrimination, calling the judge a “[r]acist mother f***er” and a “clan member.” The court found
6
defendant in indirect civil contempt of court. The court vacated Attorney Griffin’s appointment
and appointed Attorney Emily Fitch.
¶ 19 The circuit court held a pretrial hearing on March 4, 2020. At the outset of the hearing,
Attorney Fitch moved to continue defendant’s jury trial, requesting additional time to prepare.
After much back and forth between the court and defendant, defendant agreed to the continuance,
and the court rescheduled his jury trial to April 14, 2020.
¶ 20 On March 17, 2020, in response to the COVID-19 pandemic, the Illinois Supreme Court
entered an order directing courts to implement “temporary procedures to minimize the impact of
COVID-19 on the court system,” stating that “[e]ssential court matters and proceedings shall
continue to be heard by the Illinois courts.” Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020). Three days
later, on March 20, 2020, the Illinois Supreme Court issued a second supervisory order authorizing
chief circuit court judges to continue trial dates for the next 60 days and until further order of the
court. Ill. S. Ct., M.R. 30370 (eff. Mar. 20, 2020). The order of the Illinois Supreme Court on
March 20, 2020, specifically noted that any delay resulting from the emergency continuances
“shall not be attributable to either the State or the defendant for purposes of section 103-5 of the
Code.” Id.
¶ 21 On March 27, 2020, defendant filed a motion in limine, requesting that the circuit court
prohibit the admission of any and all evidence or testimony of defendant’s prior convictions at
trial. That same day, defendant filed a second motion in limine, requesting the court to enter an
order barring the State and any of its witnesses from referencing or introducing any evidence on
the basis of defendant’s incarceration in the Marion County jail for the offense of domestic battery
(No. 19-CF-134).
7
¶ 22 On March 30, 2020, the chief judge of the Fourth Judicial Circuit entered an administrative
order, in accordance with the Illinois Supreme Court’s March 20, 2020, order (Ill. S. Ct., M.R.
30370 (eff. Mar. 20, 2020)), continuing all civil and criminal jury trials until May 23, 2020, or
until further order by the Illinois Supreme Court without this delay attributable to the State or
defendants. In response, on March 31, 2020, the circuit court of Marion County continued
defendant’s jury trial due to an administrative order entered by the chief judge of the Fourth
Judicial Circuit, as a result of the COVID-19 pandemic. The court reset defendant’s jury trial for
June 8, 2020.
¶ 23 On April 3, 2020, the Illinois Supreme Court amended the March 20, 2020, order to allow
circuit courts to continue trials until further order by the court with no delay attributable to the
State or defendants. Ill. S. Ct., M.R. 30370 (eff. Apr. 3, 2020). Four days later on April 7, 2020,
the Illinois Supreme Court amended its March 20, 2020, and April 3, 2020, orders, stating that the
“continuances occasioned by this Order serve the ends of justice and outweigh the best interests
of the public and defendants in a speedy trial.” Ill. S. Ct., M.R. 30370 (eff. Apr. 7, 2020). The court
further stated that “such continuances shall be excluded from speedy trial computations contained
in section 103-5 of the Code ***. Statutory time restrictions in [the Act] *** shall be tolled until
further order of this Court.” Id.
¶ 24 On May 21, 2020, the circuit court, over defendant’s objection, vacated his June 8, 2020,
jury trial setting, pursuant to the supervisory and administrative orders issued with regard to the
COVID-19 pandemic. The court reset defendant’s trial for July 13, 2020.
¶ 25 On July 2, 2020, the circuit court held a pretrial hearing. The parties confirmed that
defendant’s jury trial was set for July 13, 2020, and Attorney Fitch informed the court of her
intention to file a motion regarding defendant’s speedy trial rights.
8
¶ 26 On July 7, 2020, defendant filed a “Motion for Discharge and Dismissal,” arguing that he
neither asked for, approved, or agreed to many of the continuances from September 24, 2019,
through March 4, 2020, nor the continuances on March 31, 2020, and May 21, 2020, due to the
administrative orders. Defendant asserted that, “[r]egardless of whether some of these
continuances were or should have been attributed to the Defendant, the fact remains that more than
120 days have passed since Defendant was arrested, excluding time attributable to the Defendant.”
Defendant argued that the various administrative orders exceeded the judiciary’s constitutional
and statutory authority, effectively making new law by suspending the speedy-trial statute.
Defendant argued that the continuances entered in accordance with the administrative orders
should be counted against the State. Defendant also requested his release from custody instanter,
and that the circuit court dismiss with prejudice the charge against him for the offense of
aggravated battery of a correctional officer. Additionally, the State filed its fifth motion in limine
on July 7, 2020, requesting that the court allow the State to read into evidence Officer Casner’s
August 20, 2019, sworn testimony, since Officer Casner was an active-duty armed serviceman and
unavailable to testify. The court granted the State’s motion without objection.
¶ 27 On July 9, 2020, the circuit court held a hearing on defendant’s motion for discharge and
dismissal on speedy trial grounds. At the hearing, Attorney Fitch rested on the defense’s motion,
offering no additional argument before the court. The State, in response, stated that the need for
the adminstrative orders “was beyond our control. We were ordered not to have trials.” The State
maintained that, although it had no case law to argue, given the COVID-19 pandemic caused new
issues in the court system, the Illinois Supreme Court appropriately exercised its power by entering
a supervisory order. The court denied defendant’s motion.
9
¶ 28 The circuit court held defendant’s two-day jury trial on July 14, 2020, and July 15, 2020.
At the outset of the trial on July 14, 2020, the State informed the court that it offered defendant a
plea deal. Specifically, the State offered defendant two years in prison with credit for time served
in exchange for defendant’s plea of guilty to a Class 4 felony. Defendant rejected the State’s offer.
The court then proceeded to voir dire.
¶ 29 During voir dire, and relevant to this appeal, the circuit court inquired if any prospective
jurors knew Officer Casner. Prospective juror Autumn Respondek indicated that she was best
friends with Officer Casner’s sister. Defendant’s argument on appeal is based on the following
colloquy which took place during voir dire:
“THE COURT: Have you had any discussions with his sister or with him about this
case?
PROSPECTIVE JUROR [RESPONDEK]: No.
THE COURT: She says no. Anything about being best friends with one of the
witnesses—and in fact[,] this case it is the alleged victim, as I read the charge—anything
about that relationship that would make it difficult for you to be fair and impartial to either
side?
PROSPECTIVE JUROR [RESPONDEK]: No.
THE COURT: So[,] if the State’s Attorney did not prove [defendant] guilty beyond
a reasonable doubt, would you be able to say not guilty?
PROSPECTIVE JUROR [RESPONDEK]: Yes.
THE COURT: And would that cause you trouble with your best friend[,] Mr.
Casner’s sister?
PROSPECTIVE JUROR [RESPONDEK]: No.
THE COURT: So[,] you’re not worried about that?
PROSPECTIVE JUROR [RESPONDEK]: (indicating)
THE COURT: She says no. Very good.”
Additionally, Respondek indicated that her cousin was a police officer in Mt. Vernon, Illinois, but
she did not discuss the case with him.
¶ 30 On July 15, 2020, defendant filed a third motion in limine, requesting the circuit court to
bar any evidence or testimony about defendant’s aggressive behavior on July 27, 2019, before the
alleged altercation with Officer Casner. That day, prior to the start of the second day of defendant’s
10
jury trial, the court heard argument on defendant’s third motion in limine. The State argued that
standard protocol at the Marion County jail was to handcuff aggressive inmates, thus, Officer
Casner would testify that, prior to the incident at issue, another officer handcuffed defendant for
aggressive behavior. The court denied defendant’s motion, stating that the State’s fourth motion
in limine requested the court to bar defendant and any of other witnesses from testifying to the
events at 7:05 p.m. on July 27, 2019, which took place prior to the alleged offense against Officer
Casner. The court, however, determined that it was important for the jury to understand why
defendant was initially handcuffed, especially given that the State alleged defendant was
aggressive in committing aggravated battery of a correctional officer. The State clarified that it
intended only for Officer Casner to explain how the jail handles aggressive inmates, which is to
handcuff inmates after they engage in aggressive behavior.
¶ 31 On July 15, 2020, the second day of trial, the circuit court heard testimony from two
witnesses. Before calling its first witness, Kenny Benzing, the State clarified that Benzing was
advised of the court’s ruling regarding defendant’s third motion in limine, advising the witness
“not to go into great detail regarding the reason why the protocol was being followed.” Rather, the
State informed the court that Benzing was advised to say that “it was a protocol for an aggressive
inmate.” The court admonished the jury and the parties proceeded to opening statements.
¶ 32 Following opening statements, the State called Benzing, the Marion County jail
administrator, who testified to the following. On July 27, 2019, the Marion County jail called
Administrator Benzing to inform him that defendant attacked Officer Casner. Following this brief
introduction, the State read Officer Casner’s August 20, 2019, testimony into evidence before the
court and in the presence of the jury.
11
¶ 33 Following the admission of Officer Casner’s prior testimony into evidence, Administrator
Benzing testified to the following. Administrator Benzing stated that he witnessed Officer Casner’s
injuries at the hospital and then confirmed that the photos of Officer Casner’s injuries accurately
depicted his injuries that day. The State then introduced into evidence two videos, one depicting
defendant’s holding cell and the other of the booking area, where Officer Casner was standing.
Administrator Benzing testified that he reviewed the video surveillance, indicating that the video
of Officer Casner was shorter and more limited because it recorded only movement. The video of
the holding cell, however, ran continuously and showed defendant’s back to the chuck hole with
his arms through the door. Administrator Benzing testified that the Marion County jail had a
protocol for aggressive inmates, requiring an officer to handcuff an aggressive inmate, place the
inmate in a solitary cell, and then “uncuffed through the chuck hole to prevent further injury to or
possible injury to inmate or an officer.” Administrator Benzing confirmed that the video depicting
Officer Casner showed Officer Casner reaching his hands through the chuck hole to uncuff
defendant, which was the appropriate jail protocol to follow with an aggressive inmate. The State
played both videos for the jury.
¶ 34 On cross-examination, Administrator Benzing testified that if an inmate’s handcuffs are
too tight, the officer can loosen the cuffs with a cuff key. Additionally, he indicated that it is
possible for handcuffs to get too tight if bumped into something.
¶ 35 On redirect, Administrator Benzing testified that Officer Casner acted appropriately and
followed protocol when he attempted to remove defendant’s handcuffs. Following the close of the
State’s evidence, Attorney Fitch moved for directed verdict, which the circuit court denied.
¶ 36 Next, Attorney Fitch called defendant, who testified to the following. Defendant testified
that he placed his back against the chuck hole and placed his hands through the opening to have
12
his handcuffs removed. While Officer Casner uncuffed one hand, “the other handcuff squeezed
down tight,” which caused defendant pain, so he pulled away. He claimed that the handcuff got
tighter as he pulled away. Defendant claimed he never touched Officer Casner’s hand but
attempted to grab the other end of the handcuff to decrease his pain. The following colloquy took
place:
“Q. [DEFENSE COUNSEL:] Now, in the video there is a point where you reach
your hand out *** and it looks like you’re touching Officer Casner’s hand. Can you explain
what was happening right there?
A. [DEFENDANT:] Well, I was handcuffed to two different handcuffs, and like
when I was pulling—whenever I was pulling it, it made pressure to my hand. So[,] the
officer had the one side of the handcuff—well, the wrist of the handcuff. And the hit—
same wrist of the handcuff pulling me. So[,] he could let go because my wrist was
tightening. And, when I got it loose[,] I went and sit [sic] down.
Q. So, what were you trying to do when you reached your hand out?
A. *** I was trying to grab the other end of the handcuffs.
Q. And is that what you grabbed?
A. Yes, ma’am.
Q. Did you ever touch Officer Casner’s hand?
A. No, ma’am.”
¶ 37 On cross-examination, defendant confirmed that he was not in pain when Officer Casner
started to remove the handcuffs. Defendant confirmed that the video depicted Officer Casner
attempting to uncuff both of defendant’s hands. He then confirmed that Officer Casner uncuffed
one of his hands before defendant pulled away. The following discussion took place:
“Q. [STATE’S ATTORNEY:] He had one [of your hands] uncuffed, didn’t he?
A. [DEFENDANT:] Yes, sir.
Q. That’s when you pulled away?
A. I don’t know how to answer that. While he was handcuffing the arm, the other
one got tighter. And it got tighter.
Q. But you didn’t pull away until he uncuffed the first handcuff, correct?
A. Yes, sir.”
After closing arguments, a unanimous jury found defendant guilty of aggravated battery of a
correctional officer.
13
¶ 38 On August 10, 2020, defendant filed a motion for a new trial, arguing, inter alia, that the
circuit court erred in denying his third motion in limine and motion for discharge and dismissal
based on speedy trial grounds. Defendant did not argue that Attorney Fitch was ineffective for
failing to exercise a peremptory strike against a juror.
¶ 39 On September 24, 2020, the circuit court held defendant’s sentencing hearing. Before
proceeding to sentencing, the court heard argument on defendant’s motion for a new trial, which
the court denied. Following a sentencing hearing that same day, the court sentenced defendant to
seven years in the Illinois Department of Corrections, followed by two years of mandatory
supervised release.
¶ 40 On October 7, 2020, defendant filed a pro se posttrial motion. Citing People v. Krankel,
102 Ill. 2d 181 (1984), defendant argued that Attorney Fitch was ineffective for allegedly failing
to (1) object to “new video evidence” never disclosed to defendant prior to trial when the State
introduced such evidence to the jury, (2) object at trial to Officer Casner testifying as an
unavailable witness, and (3) discuss trial strategy and communicate properly with defendant.
¶ 41 On October 13, 2020, defendant, represented by Attorney Fitch, filed a motion to
reconsider sentence, which the circuit court denied on December 3, 2020. Defendant filed a timely
appeal.
¶ 42 II. Analysis
¶ 43 On appeal, defendant argues that he was denied his statutory right to a speedy trial.
Additionally, he contends that the trial court erroneously permitted the State to elicit irrelevant and
inadmissible testimony under Illinois Rule of Evidence 404 (eff. Jan. 1, 2011) that constituted
other bad acts evidence, and that defense counsel provided ineffective assistance for failing to
exercise a peremptory strike against a juror who was close friends with Officer Casner’s sister.
14
¶ 44 A. Speedy Trial Rights
¶ 45 With regard to defendant’s speedy trial rights, defendant argues that the circuit court erred
by denying his motion for discharge and dismissal on speedy trial grounds, where he was tried
more than 120 days after he was taken into custody, resulting from supervisory and administrative
orders. Specifically, defendant argues that “[t]he nature and scope of the statutory right to a speedy
trial—and any exceptions thereto—is a matter that the Illinois Constitution leaves to the legislature
to define.” As such, defendant contends that, because the judiciary lacks power to amend or
suspend his statutory right to a speedy trial, the general administrative and supervisory orders were
unconstitutional. We disagree.
¶ 46 Criminal defendants in Illinois have both constitutional (U.S. Const., amends. VI, XIV; Ill.
Const. 1970, art. I, § 8) and statutory rights (725 ILCS 5/103-5(a) (West 2020)) to a speedy trial.
People v. Sykes, 2017 IL App (1st) 150023, ¶ 35. The State has a responsibility to bring a defendant
to trial within the appropriate 120-day statutory period. Id. ¶ 36. Unless we discern “a clear abuse
of discretion, this court must sustain the trial court’s determination as to whom delay is attributed.”
People v. Jones, 273 Ill. App. 3d 377, 381 (1995). Whether a defendant’s statutory right to a speedy
trial was violated is reviewed de novo. Sykes, 2017 IL App (1st) 150023, ¶ 35 (citing People v.
Van Schoyck, 232 Ill. 2d 330, 335 (2009)).
¶ 47 The Illinois Supreme Court’s orders allowed for the tolling of the speedy-trial term in
response to the COVID-19 pandemic. People v. Mayfield, 2021 IL App (2d) 200603, ¶ 17. Our
colleagues in the Second District recently determined that general continuances made pursuant to
the Illinois Supreme Court’s administrative orders regarding the pandemic have the effect of
tolling speedy trial computations. Id. ¶ 21. We agree.
15
¶ 48 Contrary to defendant’s assertions, our supreme court did not overstep its authority by
suspending the operation of the Act, where “[t]he scheduling of criminal trials is a matter of
procedure within the realm of our supreme court’s primary constitutional authority” (id.),
especially provided that the Illinois Supreme Court “retains primary constitutional authority over
court procedure” (Kunkel v. Walton, 179 Ill. 2d 519, 528 (1997)). As the Second District
determined, where the supreme court exercises its power to regulate the scheduling of trials,
“legislation in conflict must yield.” Mayfield, 2021 IL App (2d) 200603, ¶ 25. Accordingly, we
hold that the supreme court had the authority to toll the legislated speedy-trial term in response to
the COVID-19 pandemic and the circumstances facing the court system at the time the orders were
entered.
¶ 49 B. Evidence of Other Bad Acts
¶ 50 Next, defendant asserts that the circuit court erroneously denied defendant’s third motion
in limine, permitting the State to elicit testimony that he behaved aggressively prior to the incident
at issue. Defendant states that “the fact that [defendant] was having handcuffs removed through a
chuck hole was, of course, necessary to explain the context” for the incident between defendant
and Officer Casner. According to defendant, the “reason why that procedure was being employed,
however, was completely irrelevant.” (Emphasis in original.) Thus, the introduction of evidence
by the State that defendant engaged in aggressive behavior before the charged incident was
irrelevant to any proper purpose and amounted to reversible error, where the evidence was used to
show his bad character and his propensity to engage in aggressive behavior. We disagree.
¶ 51 Our supreme court has repeatedly held that evidence of other crimes or bad acts is
admissible if it is relevant for any purpose other than to show a defendant’s propensity to commit
crimes. People v. Wilson, 214 Ill. 2d 127, 135 (2005). Illinois Rule of Evidence 404(b) (eff. Jan.
16
1, 2011) provides that evidence of other crimes, wrongs, or acts may be admissible for purposes
other than to show propensity, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. “Other crimes or bad acts evidence may
also be permissibly used to show, by similar acts or incidents, that the act in question was not
performed inadvertently, accidently, involuntarily, or without guilty knowledge.” People v.
Brown-Engel, 2018 IL App (3d) 160368, ¶ 21 (citing 1 John W. Strong, McCormick on Evidence
§ 190, at 660, 664 (5th ed. 1999)). The admissibility of other crimes or bad acts evidence rests
within the sound discretion of the circuit court, and its decision on the matter will not be disturbed
absent a clear abuse of discretion. People v. Heard, 187 Ill. 2d 36, 58 (1999).
¶ 52 Here, the prior bad act testimony of Officer Casner and Administrator Benzing fits squarely
within the recognized exceptions, which allows such evidence to show defendant’s intent or to
show that the act in question was not performed inadvertently, accidently, involuntarily, or without
guilty knowledge. To sustain a conviction for aggravated battery, the State needed to show that
defendant knowingly made physical contact of an insulting or provoking nature with Officer
Casner. Defendant’s intent was at issue at trial because he claimed he pulled away from Officer
Casner in an attempt to avoid pain that he experienced during the uncuffing procedure, not to cause
Officer Casner harm.
¶ 53 Moreover, defendant claimed he never touched Officer Casner’s hand. Instead, he intended
to grab the other end of the handcuff to decrease his pain caused by the tight cuff on his restrained
wrist. Officer Casner’s and Administrator Benzing’s testimonies that defendant engaged in
aggressive behavior prior to the incident, along with the admitted video evidence demonstrating
the subsequent incident with Officer Casner, were highly relevant to show defendant intended to
make physical contact of a provoking nature with Officer Casner, which resulted in injuries to his
17
arms and hands. Therefore, the testimonies of Officer Casner and Administrator Benzing regarding
defendant’s aggressiveness as a prior bad act were relevant to show intent and lack of mistake.
¶ 54 Additionally, the evidence of prior bad acts provided context to the circumstances
surrounding the charged offense. Importantly, in explaining the context, the testimonies of Officer
Casner and Administrator Benzing did not introduce the details of the earlier incident in which
defendant was aggressive. Rather, the State elicited testimony from Officer Casner and
Administrator Benzing to explain that, due to prior, undisclosed aggressive behavior, defendant
was handcuffed, removed from D-block, and escorted to a holding cell in the booking area.
Moreover, consistent with Marion County jail protocol, both witnesses testified consistently that
Officer Casner attempted to remove defendant’s handcuffs in the holding cell, with defendant’s
back to Officer Casner and his hands through a chuck hole. Without this testimony, the charged
incident would appear isolated and possibly cause credibility issues for Officer Casner and
Administrator Benzing concerning the charged offense. See Brown-Engel, 2018 IL App (3d)
160368, ¶ 24 (evidence of defendant’s prior acts was admissible to show the context of the charged
act). Without evidence of defendant’s prior aggressiveness, the jury would have likely lacked the
necessary information to understand why Officer Casner could not remove defendant’s handcuffs
face-to-face with the cell door open. Consequently, we find no abuse of discretion in the admission
of Officer Casner’s and Administrator Benzing’s testimonies concerning defendant’s prior bad act
to establish intent under Illinois Rule of Evidence 404 (eff. Jan. 1, 2011). Accordingly, we cannot
conclude that the circuit court abused its discretion in denying defendant’s third motion in limine.
¶ 55 C. Ineffective Assistance of Counsel
¶ 56 Lastly, defendant argues ineffective assistance of counsel. Specifically, defendant contends
that Attorney Fitch was ineffective for failing to exercise a peremptory strike during voir dire
18
against Respondek, a juror in defendant’s case, who was close friends with Officer Casner’s sister.
Specifically, defendant asserts that counsel’s failure to strike juror Respondek was “inexplicable,
unjustifiable, and unreasonable under prevailing professional norms.” Moreover, arguing the
evidence was not overwhelming against him, defendant asserts “it would have been reasonable for
a jury free from the taint of Respondek’s relationship with the alleged victim’s sister to have
returned a verdict of not guilty.” We cannot agree.
¶ 57 The ineffectiveness of defense counsel may properly be raised for the first time on appeal.
People v. Jefferson, 2021 IL App (2d) 190179, ¶ 25 (citing People v. Lofton, 2015 IL App (2d)
130135, ¶ 24). A reviewing court may, however, abstain from deciding an ineffectiveness claim
on direct appeal if the record is not properly developed. Id. (citing People v. Veach, 2017 IL
120649, ¶ 46). Here, the record is adequate for consideration of defendant’s ineffectiveness claim,
which we review de novo. Lofton, 2015 IL App (2d) 130135, ¶ 24 (“Where, as here, the claim of
ineffective assistance was not raised in the trial court, our review is de novo.” (citing People v.
Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006))).
¶ 58 A defendant alleging ineffective assistance of counsel must satisfy the two-part test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To satisfy this test, the defendant must
establish that his attorney’s performance fell below an objective standard of reasonableness and
that this deficient performance prejudiced him. Id. at 688. Next, to establish prejudice, a defendant
must prove a reasonable probability exists that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Id. at 687. A reasonable probability is one that
sufficiently undermines confidence in the outcome of the proceeding. Id. at 694. The defendant’s
failure to satisfy either prong of Strickland defeats an ineffective assistance claim. People v.
Edwards, 195 Ill. 2d 142, 163 (2001). Thus, a reviewing court may resolve an ineffective assistance
19
claim based upon only the prejudice component because a lack of prejudice renders irrelevant the
issue of counsel’s performance. People v. Coleman, 183 Ill. 2d 366, 397-98 (1998).
¶ 59 In the case at bar, defendant argues defense counsel’s failure to excuse Respondek using a
peremptory strike was objectively and professionally unreasonable. Defendant also contends that
he suffered prejudice as a result of the allegedly deficient performance. According to defendant,
“it would have been reasonable for a jury free from the taint of Respondek’s relationship with the
alleged victim’s sister to have returned a verdict of not guilty.” We disagree.
¶ 60 Even if we were to assume a deficiency on the part of defense counsel, defendant has not
shown the requisite prejudice. The prejudice prong of the Strickland test generally requires the
defendant to show “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. Contrary to defendant’s
argument, the evidence against defendant was strong. Defendant has failed to demonstrate any
clear bias or prejudice held by Respondek against him. Rather, defendant has only stated what he
believes is the appearance of such bias because Respondek knew Officer Casner. Defendant has
failed to show that the verdict would probably have been different if Respondek had not served as
a juror. Instead, the record demonstrates Respondek’s impartiality in her response to the circuit
court’s questioning that she did not discuss the case with Officer Casner’s sister and believed she
could remain impartial towards defendant in light of her relationship with Officer Casner’s sister.
Moreover, Respondek responded that she believed she would find defendant not guilty if the State
failed to prove him guilty beyond a reasonable doubt, and that a not guilty verdict would not affect
her friendship with Officer Casner’s sister. For the foregoing reasons, we find defendant was not
deprived of his constitutional right to effective assistance of counsel.
20
¶ 61 III. Conclusion
¶ 62 For the reasons stated, we affirm the judgment of the circuit court of Marion County, where
defendant’s right to a speedy trial was not violated; the court did not abuse its discretion by denying
defendant’s motion in limine and allowing the State to admit relevant testimony about defendant’s
aggressiveness as a prior bad act to show intent and lack of mistake; and defendant’s claim of
ineffective assistance of counsel fails, where he failed to demonstrate prejudice.
¶ 63 Affirmed.
21 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483633/ | Filed 11/14/22 In re B.L. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re B.L., a Person Coming 2d Juv. No. B318044
Under the Juvenile Court Law. (Super. Ct. No. NJ30284)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
B.L.,
Defendant and Appellant.
B.L. appeals from the judgment entered after the juvenile
court sustained a petition filed pursuant to Welfare and
Institutions Code section 602. The court found true an allegation
that he had committed attempted second degree robbery. (Pen.
Code, §§ 664, 211, 212.5, subd. (c).) It placed him on probation in
his mother’s home.
Appellant contends the evidence is insufficient to show that
the victim accurately identified him as the perpetrator of the
attempted robbery. We affirm.
Trial Testimony
Maria R. (Maria) and her friend, J.H., were at the Pike
Mall in Long Beach. It was approximately 9:30 p.m. They had
been riding on an electric scooter that stopped working. J.H.
stayed on the scooter. Maria “got off” the scooter and “sat down.”
She was holding her wallet and cell phone. She was looking at
the phone when two men approached her. They tried to pull
away her wallet and cell phone.
Maria did not let go of her property. She fell to the ground
and hit her chin and knee. Maria “kept on screaming, . . . ‘Stop.
Please stop.’ And they didn’t until [J.H.] turned around and
heard me scream.”
J.H. saw Maria and the two men “struggling with her” on
the ground. He ran toward Maria. The men kicked and punched
J.H. They “took the scooter” and fled. Nothing was taken from
Maria.
Maria telephoned 911. About five minutes later, the police
arrived. Maria told the police that one of the perpetrators “was
wearing a gray sweater and gray light-colored pants.”
The police told Maria that “they had somebody” and she
should “go ahead and clarify if that was the person.” The police
drove Maria to a location where three suspects had been
detained. Maria identified two of the suspects.
Appellant was one of the suspects identified by Maria. At
the time of the identification, he was standing. After identifying
him, Maria wrote the following statement on a police form:
“‘That’s him. That’s the way he approached me. And that’s how
2
he was wearing his pants.’” At trial she again identified
appellant.
The prosecutor asked Maria, “Why did you identify
[appellant at the field show-up]?” She replied, “His clothing.”
Maria testified that she was “[a] hundred percent” certain of her
identification. When asked why she was so certain, Maria
responded: “Because when he was pulling my items from my
hand, . . . I was looking at him very well. What he was wearing
that day.” She also said she had “made eye contact” with
appellant.
Appellant is black. Maria appears to be Hispanic. She has
a Hispanic name and her friend, J.H., needed the assistance of a
Spanish interpreter when he testified.
Videos
Two videos were admitted into evidence. One is a
surveillance video of the attempted robbery. It was taken from a
distance and is of poor quality. The video shows Maria seated on
the edge of a planter. It is nighttime, but the area is well lit.
Maria is looking down at something. Two men are standing to
her right. One man is wearing a gray sweatshirt and hoodie. A
backpack is strapped onto his back. The other man is wearing a
dark-colored sweatshirt and hoodie. The man in the gray
sweatshirt approaches Maria and bends over directly in front of
her. The front of his face appears to be about one to two feet
away from the front of Maria’s face. A struggle ensues between
Maria and the man in the gray sweatshirt. The man in the dark-
colored sweatshirt joins the struggle. Maria is knocked to the
ground. J.H. runs toward Maria. The two men walk away. A
fight breaks out between J.H. and the man in the dark-colored
sweatshirt. Maria gets up off the ground. She and J.H. confront
3
the two men at a distance of approximately 12 feet. The video
ends.
The other video shows the interaction between Maria and
the police. A police officer reads Maria the following admonition:
“We are detaining a person for you to view who may or may not
be the person who committed the crime now being investigated.
The fact that this person is detained, and may or may not be
handcuffed, should not influence you. It is just as important to
free innocent persons from suspicion as it is to identify guilty
persons. . . . [¶] After you have enough time to look at this person
tell me or another officer whether or not you can identify this
person.”
Maria enters a police vehicle. An officer drives the vehicle
approximately one block, turns right at the corner, and comes to
a stop. While seated inside the vehicle, Maria identifies a suspect
who is not visible in the video. Maria says, “That’s him.” She
recognizes the suspect “[by] the way he’s standing.” The officer
asks, “And you said you knew because of the way he’s
standing[?]” Maria replies, “Yeah, that’s the way he came up and
approached me. And that’s the way he was wearing his, um,
pants . . . and yeah, his hoodie.” “Yeah, and his pants were
sagging.” The police vehicle then drives Maria back to the crime
scene.
Standard of Review
“The same standard governs review of the sufficiency of
evidence in adult criminal cases and juvenile cases . . . .” (In re
Matthew A. (2008) 165 Cal.App.4th 537, 540.) “[T]he sufficiency
of an . . . identification to support a conviction should be
determined under the substantial evidence test . . . used to
determine the sufficiency of other forms of evidence to support a
4
conviction.” (People v. Cuevas (1995) 12 Cal.4th 252, 257.) “The
court must ‘review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v. Ceja
(1993) 4 Cal.4th 1134, 1138.)
“‘[I]t is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of
the facts on which that determination depends. [Citation.] Thus,
if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.
[Citations.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The
trial court here stated, “I did find the victim in this case . . .
credible.”
Appellant’s Argument
Appellant argues: “[Maria] identified [appellant] not
because of any physical attribute or even because he was a black
male. She identified him by the way he was standing and
because of the way he wore his non-distinctive clothing.” “While
she might have been able to get ‘a very good look at his face[,]’
she did not identify appellant based on his face.” “[T]he cross-
racial nature of the victim’s identification further calls into doubt
the accuracy of the victim’s identification of appellant, as
‘[r]esearch shows that persons of one racial or ethnic group may
have more difficulty distinguishing among individual faces of
another group than among faces of their own group. . . .’” “The
fact [Maria] was able to identify appellant in court just proves
she remembers identifying him the night of the attempted
5
robbery. It does nothing to buttress her highly suspect field
identification.” “An identification based on the way appellant
was standing and how he wore his non-distinctive clothing does
not constitute substantial evidence that he was the would-be-
robber that night at the Pike.”
Substantial Evidence Supports the
Reliability of Maria’s Identification
“Identification of the defendant by a single eyewitness may
be sufficient to prove the defendant's identity as the perpetrator
of a crime.” (People v. Boyer (2006) 38 Cal.4th 412, 480.)
Substantial evidence supports the reliability of Maria’s
identification of appellant.
Within minutes after the attempted robbery, the police
apprehended appellant a short distance from the crime scene.
“[T]he law favors field identification measures when in close
proximity in time and place to the scene of the crime, with the
rationale for the rule being stated: ‘The potential unfairness in
such suggestiveness . . . is offset by the likelihood that a prompt
identification within a short time after the commission of the
crime will be more accurate than a belated identification days or
weeks later. . . .’” (In re Richard W. (1979) 91 Cal.App.3d 960,
970.)
The videos of the attempted robbery and of Maria’s ride in
the police vehicle show that few persons were in the vicinity of
the crime scene. This factor, along with appellant’s proximity to
the crime scene and the short lapse in time between the
commission of the crime and appellant’s apprehension, reduced
the risk that Maria identified the wrong person.
Although Maria said she had “made eye contact” with the
perpetrator, she did not need to see his face to make a reliable
6
identification. “‘[I]t is not necessary that any of the witnesses
called to identify the accused should have seen his face.
[Citation.] Identification based on other peculiarities may be
reasonably sure. Consequently, the identity of a defendant may
be established by proof of any peculiarities of size, appearance,
similarity of voice, features or clothing.’” (People v. Mohamed
(2011) 201 Cal.App.4th 515, 522 (Mohamed).) Maria said her
identification of appellant was based primarily on his clothing
and the distinctive way he was standing and was wearing his
pants and hoodie. Like the perpetrator, appellant’s pants “were
sagging.”
Moreover, Maria did not hesitate in identifying appellant at
the field show-up. She immediately said, “That’s him.” She
testified that she was “a hundred percent” certain of the accuracy
of her identification.
We recognize that “[t]here is near unanimity in the
empirical research that ‘“under most circumstances, witness
confidence or certainty is not a good indicator of identification
accuracy.”’” (People v. Lemcke (2021) 11 Cal.5th 644, 665.) But
“that ‘does not mean that eyewitness certainty is never correlated
with accuracy.’” (Id. at pp. 666-667.) “The large body of research
conducted in this area has identified numerous factors that can
affect the correlation between witness certainty and accuracy
including (among other things): (1) whether the confidence
statement occurred before or after the identification; (2) the
temporal proximity between the event and the identification; (3)
whether the witness provided an expression of certainty at the
initial identification; (4) whether the witness was highly
confident; (5) the use of suggestive identification procedures; and
(6) information witnesses receive after the identification that
7
might increase their level of confidence.” (Id. at p. 667.) Here,
there was close “temporal proximity between the event and the
identification,” Maria “provided an expression of certainty at the
initial identification,” and she was “highly confident.” (Ibid.)
As to the cross-racial nature of Maria’s identification, an
appellate court observed: “Errors in cross-racial identifications
are two to two and a half times higher than same race
identifications. Moreover, the errors in cross-racial
identifications are almost exclusively false positives, e.g., saying
a person is the perpetrator when the person is not the
perpetrator.” (Mohamed, supra, 201 Cal.App.4th at p. 520.) But
the cross-racial nature of Maria’s identification had minimal
impact on the accuracy of her identification because it was based
primarily on factors other than appellant’s face.
It has been said that, “‘[a]propos the question of identity, to
entitle a reviewing court to set aside a jury's [or a court’s] finding
of guilt the evidence of identity must be so weak as to constitute
practically no evidence at all.’” (Mohamed, supra, 201
Cal.App.4th at p. 521.) Here, the totality of the circumstances
shows that ample evidence supports the reliability of Maria’s
identification of appellant.1
1 At the conclusion of the hearing, appellant made remarks
that could be construed as an implied admission that he had
participated in the attempted robbery. In summarizing the
evidence, the court said, “As [Maria] was raising her head, she
saw the minor in this case – or she saw a person approach her
and try to grab her cell phone from her hand as well as try to
grab her wallet from her hand.” Appellant blurted out: “Can’t
even see.” “I had a whole mask on.” In determining whether
substantial evidence supports the reliability of Maria’s
identification, we have not considered appellant’s remarks.
8
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
9
Terry Truong, Commissioner
Superior Court County of Los Angeles
______________________________
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Dana M. Ali, Supervising Deputy
Attorney General, Stacy S. Schwartz, Deputy Attorney General,
for Plaintiff and Respondent. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483639/ | NOTICE 2022 IL App (4th) 220251-U
This Order was filed under
FILED
Supreme Court Rule 23 and is November 14, 2022
NO. 4-22-0251
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McDonough County
JOSEPH SIMPSON, ) No. 20CF56
Defendant-Appellant. )
) Honorable
) Curtis S. Lane,
) Judge Presiding.
JUSTICE BRIDGES delivered the judgment of the court.
Justices DeArmond and Zenoff concurred in the judgment.
ORDER
¶1 Held: Defense counsel was not ineffective for not objecting to hearsay testimony at trial,
and his lack of objections did not constitute plain error. Additionally, the trial court
did not err in conducting its preliminary Krankel inquiry. Therefore, we affirm.
¶2 Defendant, Joseph Simpson, appeals his convictions of unlawful restraint (720 ILCS 5/10-
3 (West 2020)) and domestic battery (id. § 12-3.2(a)(1)) of his then-wife, Rachele Simpson. He
argues that he was denied a fair trial when his trial counsel failed to make hearsay objections to
testimony that repeated Rachele’s out-of-court statement that defendant hit her in the face. In
addition, defendant argues that the trial court made an inadequate preliminary Krankel inquiry. For
the reasons herein, we affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged by information with two counts related to the events of February
24, 2020: count one for unlawful restraint (720 ILCS 5/10-3 (West 2020) (Class 4 felony)) and
count two for domestic battery (id. § 12-3.2(a)(1) (West 2020) (Class A misdemeanor)). An
amended information was filed on August 19, 2021, which added that, upon conviction of count
one, defendant was subject to an extended sentence due to a prior conviction. The case proceeded
to a bench trial on October 6, 2021.
¶5 A. Trial
¶6 Rachele Simpson testified as follows. She married defendant on January 17, 2020, and
although they were currently married, they were in the process of getting a divorce. On February
24, 2020, they were living together in Bushnell. She and defendant began drinking that day
“[p]robably as soon as [they] woke up.” They “always drank.” She believed they were drinking
Red Stag whiskey, and she did not know when they woke up.
¶7 When Rachele and defendant got hungry that afternoon, defendant drove them to Hardee’s
in Bushnell. He was driving a white Pontiac. On the way, there was “a little bickering.” They were
not yelling or screaming but instead “picking at each other *** picking and nagging.” They were
both drunk.
¶8 After they arrived at Hardee’s and got some food, their bickering escalated. Rachele
believed that she must have said something wrong that set defendant off, although she did not
know exactly what she said. Defendant hit her in the face with his fist. She believed defendant hit
her twice, and when she tried to get out of the car, he pulled her by her shirt back inside. She was
trying to get out through the passenger side door. This all occurred in the Hardee’s parking lot.
She was unsure whether the car was moving when she tried to get out of the car.
¶9 Rachele screamed for help when defendant pulled her back into the car. She did not
remember if she tried to get out of the car again. Defendant then drove out of the parking lot, and
they were screaming and arguing in the car. Defendant continued to hit her as he drove. At some
-2-
point, she took the keys out of the ignition and threw them out of the car, and that is when defendant
stopped hitting her. She threw the keys when the car was near the police department.
¶ 10 When the car finally stopped, Rachele exited without her shirt because defendant pulled it
off her when she was trying to get out of the car again. She ran toward a house. An elderly woman
answered the door, let her inside, and gave her a sweatshirt to wear. The woman also called the
police. The police arrived quickly and arrested defendant, who had remained in his car after
Rachele ran to the house. Rachele described her injuries from that day as a bruised face and a
“busted” mouth, with cut gums and bleeding.
¶ 11 Defense counsel asked Rachele about previous testimony she had given in this case. On
September 9, 2020, she had testified in favor of lifting a no-contact order between her and
defendant. Her testimony that day had denied that defendant had hit her and pulled her back into
the car on February 24, 2020. At the time of her September 2020 testimony, she and defendant
were still in a relationship. She stated that her September 2020 testimony was not truthful. She
explained that she had been untruthful because she did not want to make defendant unhappy—she
had been scared and wanted his love.
¶ 12 Rachele had also written the State’s Attorney’s office asking that the charges against
defendant be dropped. She explained she would visit defendant in jail, and he would say he loved
her and that she needed to get him out. She wrote the letter at defendant’s and his family’s behest.
The letter was not truthful but instead was written only to get defendant out of jail.
¶ 13 Kesia Lynch testified as follows. She was familiar with defendant but not with Rachele.
Defendant was from Bushnell, and “[e]verybody tends to know everybody.” She had seen him a
few times at the bar, but she had never had any arguments with him. She “honestly [did not] have
a problem with [defendant].”
-3-
¶ 14 On February 24, 2020, Lynch was at a Dairy Queen drive-through getting food for herself
and her kids. The Dairy Queen was in Bushnell across the street from Hardee’s. As she was sitting
in her car at the drive-through window, she heard a scream, a “blood curdling, scary scream.” The
scream came from the Hardee’s parking lot. She looked toward the lot, and she observed two
people fighting inside a beat-up, white car. The car was not moving. A woman was trying to get
out of the car, but the driver, a man, was pulling the woman back in by her shirt or hair. Lynch
could see that the car door had been flung open and that the woman had partially gotten out before
being pulled back in. After the woman was pulled back in, the door was not shut. The car then
took off across the road with the door open and was almost hit by another car. Lynch could see
that the occupants were “kind of hitting each other. One person was trying to pull away.” She never
saw the passenger door get shut. She called 9-1-1 after the car passed her and was heading down
the road in the direction of the Bushnell police station.
¶ 15 Joanne Dahmm, a retired nurse, testified as follows. On February 24, 2020, she was at her
home in Bushnell. Around 4 p.m., she heard a commotion outside and someone screaming for
help. She went to her porch and saw a white vehicle with the passenger front door open. A young
woman was screaming for help from inside the moving car, and Dahmm yelled stop. Dahmm
dialed 9-1-1, but she hung up on the 9-1-1 operator because, after the car stopped, the woman got
out and came toward her.
¶ 16 The woman “was crying and she said he had hit her in the face.” Dahmm observed that the
left side of the woman’s face was red. Dahmm took the woman into the house and gave her a
sweatshirt because she was wearing only pants and a bra and it was snowing. The man in the car
got out of the car and started to walk away until the woman went back out on the porch and yelled
-4-
something at him. The 9-1-1 operator redialed her, and Dahmm explained that some sort of
domestic dispute had occurred. She then informed the operator that the police had arrived.
¶ 17 Dahmm had not been familiar with Rachele or defendant prior to that day. She identified
defendant as the man from the incident on February 24, 2020.
¶ 18 On cross-examination, counsel asked if Rachele was acting hysterical, and Dahmm
responded that she “wasn’t hysterical but she was upset. She made it well known that he had hit
her in the face.” Tears were streaming down Rachele’s face. She observed red marks only on the
left side of her face; she did not see an injury to her lips.
¶ 19 Justin Hood, a Bushnell police officer, testified as follows. On February 24, 2020, Hood
was dispatched around 4 p.m. in response to a 9-1-1 call for a “rolling domestic.” He located the
car, which was a white, four-door Pontiac. Upon his arrival, the car was unoccupied. Defendant
was outside of the car, and Rachele was shirtless on the porch of Dahmm’s home. By the time he
spoke with Rachele, she had received a sweatshirt from Dahmm.
¶ 20 When Hood spoke with Rachele, she was upset and very animated. She kept saying that
defendant had done different things to her and was pointing at defendant. Hood observed a bruise
on her forehead and on one of her eyes or cheeks. She also had a split lip that looked recent but
had stopped bleeding. The cut was on the inside of the lip. He took two photographs of her face,
and they were admitted into evidence without objection. After speaking with Rachele, Hood
arrested defendant. He did not observe any injuries to defendant.
¶ 21 After the trial court denied defendant’s motion for a directed finding, defendant testified as
follows. On February 24, 2020, he and Rachele went into town to run errands. They went to the
bank, stopped at the gas station, and bought groceries at the Ludlum Food Mart. He believed they
-5-
went into town in the afternoon. Their last stop was Hardee’s for a bite to eat, and they used the
drive-through.
¶ 22 While in town they did not have any arguments; “[e]verything was great.” After they
arrived at Hardee’s, Rachele received some Facebook messages asking that she visit some other
people’s apartment. Defendant said they could not go because of their dog and the groceries. His
response angered Rachele. She “just started yelling” and was also being “a little physical.” She
was acting hysterical.
¶ 23 Defendant was the one driving the vehicle, a 2006 white Pontiac G6, and he immediately
drove away from the Hardee’s without getting food at the drive-through. Then Rachele attempted
to jump from the vehicle. Defendant estimated they were traveling up to 35 miles per hour. She
opened the door and lunged while the car was moving across the intersection from Hardee’s. He
tried to stop her by pulling her back into the vehicle by her shirt.
¶ 24 After defendant tried pulling Rachele back into the car, she took her shirt off and threw it
in the back of the car. At this point she was wearing only a bra on top. They remained in the car
until they reached the edge of town just past the police station, which was when Rachele removed
the keys from the ignition while he was still driving. Once the car came to a stop, Rachele tried
getting out of the car again. She walked up to a residence with a woman on the porch, and defendant
left the car to go retrieve the car keys. He was arrested before he made it back to the car, and he
cooperated with the officer.
¶ 25 On cross-examination, defendant denied that he and Rachele had been drinking that day,
and he denied that they stopped at a liquor store in town. He denied anything physical between
him and Rachele that day: he did not hit her, and she did not hit him. He acknowledged that the
car door was open when Rachele was trying to get out, but he testified that she immediately shut
-6-
the door after he pulled her back into the car, and the door remained shut until the car stopped.
However, when Rachele got out of the car to approach Dahmm’s house, she left the car door open.
¶ 26 He knew Lynch from around town, but that was the extent of their relationship, and there
was no “bad blood” between them. He did not know Dahmm before February 24, 2020.
¶ 27 The trial court began its findings by commenting on witness credibility. It acknowledged
the defense’s argument that Rachele had credibility issues, noting her previous testimony at the
non-contact order hearing and her letter to the State’s Attorney. As to defendant, the trial court did
not find his explanation of events credible, including that defendant testified to driving home but
that the direction he drove toward Dahmm’s house was not toward his home.
¶ 28 The trial court continued that it had “two witnesses that don’t have any fight in this, any
dog in the game” in Lynch and Dahmm. Lynch testified to hearing a loud scream coming from a
Hardee’s and observed a domestic altercation involving a white Pontiac. Defendant even agreed
there was no bad blood between him and Lynch. Dahmm testified that the white car’s door was
still open when the car approached and that she observed injuries to Rachele’s face, consistent
with Rachele’s statement that defendant hit her. Finally, Officer Hood testified to observing
bruising on Rachele’s face, and Rachele’s injuries were corroborated by the pictures he took,
showing red marks on her forehead towards and below the eye. Thus, defendant’s testimony that
nobody hit anyone that day was contrary to the evidence.
¶ 29 The trial court concluded that Rachele’s injuries and the testimony of third-party witnesses
rendered her version of events more credible than defendant’s. There was “no explanation other
than she was battered.” Accordingly, the trial court found defendant guilty of both counts beyond
a reasonable doubt. It sentenced defendant to four years’ imprisonment for the offense of unlawful
restraint (720 ILCS 5/10-3 (West 2020)).
-7-
¶ 30 B. Postjudgment Motions and Krankel Inquiry
¶ 31 On October 20, 2021, defendant filed a pro se “Motion to Appeal,” arguing that he received
ineffective assistance of trial counsel.
¶ 32 In response to defendant’s motion, the trial court held a pre-Krankel hearing on October
27, 2021. The trial court examined defendant, who testified that his trial counsel was ineffective
in that, during discovery, he received black-and-white photographs of Rachele’s face, but counsel
failed to object to the color photographs that the State entered into evidence at trial. The trial court
found defendant’s ineffective assistance claim meritless, and it declined to appoint defendant an
attorney to proceed with a Krankel hearing. It explained that the color photographs would have
been admitted even had trial counsel objected to them.
¶ 33 Through his trial counsel, defendant filed a motion to reconsider or for new trial on
November 4, 2021. He argued that the evidence was insufficient to convict and that he did not
receive a fair trial because, in part, the defense was not given color photographs of Rachele’s injury
until trial and had only previously received black-and-white photographs.
¶ 34 On December 1, 2021, defendant filed a pro se motion to reconsider judgment or for new
trial, which he amended on December 13 to include the story of Samson from the Hebrew Bible’s
Book of Judges. On December 9, 2021, through his trial counsel, defendant filed a motion to
reconsider and reduce sentence, arguing his sentence was excessive. Defendant then filed another
pro se motion to reconsider or for new trial on January 6, 2022, arguing, inter alia, a violation of
due process of law, ineffective assistance of counsel, and a Brady violation. His pro se motion was
amended by his trial counsel, arguing insufficiency of the evidence and a Brady violation for the
State’s use of color photographs of Rachele’s injuries at trial. On March 2, 2022, the trial court
-8-
heard and denied defendant’s motions to reconsider judgment or for new trial and to reconsider
and reduce his sentence.
¶ 35 This timely appeal followed.
¶ 36 II. ANALYSIS
¶ 37 Defendant raises two issues on appeal: (1) whether his trial counsel was ineffective for
failing to object to Dahmm’s testimony, which repeated Rachele’s out-of-court statement that
defendant hit her in the face, and (2) whether the trial court failed to make an adequate preliminary
Krankel inquiry.
¶ 38 A. Hearsay Testimony
¶ 39 Defendant argues that his trial counsel was ineffective for failing to make hearsay
objections to Dahmm’s testimony on both direct and cross-examination. Specifically, he contends
counsel failed to object on direct examination when Dahmm testified that Rachele “was crying
and she said [defendant] had hit her in the face,” and on cross-examination when Dahmm stated
that Rachele “made it well known that [defendant] had hit her in the face.” He contends that
counsel’s failure to object to this testimony could not be considered reasonable trial strategy and
that the hearsay evidence was prejudicial because it corroborated Rachele’s account of domestic
battery and the trial court relied on it in finding defendant guilty.
¶ 40 Defendant continues that no hearsay exception would have applied. In particular, he argues
that the excited utterance exception under Illinois Rule of Evidence 803(2) (eff. Sept. 28, 2018)
was inapplicable because Rachele was not hysterical at the time, and because she had time and
motive to fabricate her statement. He argues that Rachele “may have had upward of ten minutes”
to create her story that day. He contrasts Rachele’s statement to Dahmm on the day of the alleged
-9-
offense with her letter to the State’s Attorney’s office, in which she wrote of her intent to lie about
defendant hurting her.
¶ 41 Defendant acknowledges that the hearsay issue is not preserved for appeal, and he asks that
we review the issue for plain error in addition to ineffective assistance of counsel. He argues that,
under the first prong of plain error, the evidence was closely balanced.
¶ 42 The State responds that no error for purposes of plain error occurred. It argues that the
hearsay statements would have come in as excited utterances under Illinois Rule of Evidence
803(2) (eff. Sept. 28, 2018). It continues that, regardless, the evidence was not closely balanced
given that independent witnesses, Lynch and Dahmm, corroborated Rachele’s testimony—the
former witness observing Rachele and defendant fight in his vehicle and the latter observing
redness of Rachele’s face consistent with her alleged injury. For the same reasons, the State asserts
that defendant did not receive the ineffective assistance of counsel.
¶ 43 We reject defendant’s argument. To prevail on a claim of ineffective assistance of counsel,
a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668
(1984). People v. Bradford, 2019 IL App (4th) 170148, ¶ 14. A defendant must show both (1) that
counsel’s performance was deficient and (2) that counsel’s deficient performance prejudiced the
defendant. Id. To establish deficient performance, the defendant must show that counsel’s
performance fell below an objective standard of reasonableness. Id. “[D]efense counsel will not
be deemed ineffective for failing to make a futile objection.” People v. Holmes, 397 Ill. App. 3d
737, 745 (2010).
¶ 44 To establish prejudice, the defendant must show that, but for counsel’s deficient
performance, there was a reasonable probability that the result of the proceeding would have been
different. Bradford, 2019 IL App (4th) 170148, ¶ 15. A reasonable probability is one that would
- 10 -
undermine confidence in the outcome of the trial. Id. A claim of ineffective assistance will fail if
the defendant cannot satisfy either prong of the Strickland test. Id.
¶ 45 Claims of ineffective assistance of counsel may be raised on direct appeal where the basis
for the claim can be ascertained from the record. People v. Schaefer, 2020 IL App (5th) 180461, ¶
16. When a claim of ineffective assistance of counsel was not raised in the trial court, our review
is de novo. People v. Hibbler, 2019 IL App (4th) 160897, ¶ 88. The basis for defendant’s
ineffective assistance claim is clearly ascertained from the record, and he did not raise counsel’s
failure to object to hearsay below. Therefore, we will review his ineffective assistance claim de
novo.
¶ 46 Here, regardless of whether trial counsel was deficient for failing to object to the hearsay
statements at trial, defendant cannot show prejudice. Although defendant tries to paint this case as
a contest of credibility between him and Rachele, that picture unreasonably ignores the three
disinterested witnesses who testified consistent with Rachele’s allegation that defendant struck
her.
¶ 47 Lynch testified to witnessing a man and woman in a white car in the Hardee’s parking lot.
She heard a scream and saw a man and woman fighting in the car. She then saw a woman try to
leave the car, but the man pulled her back in. As the man drove the car away from the Hardee’s
lot, she again witnessed that the occupants were “kind of hitting each other. One person was trying
to pull away.”
¶ 48 Dahmm and Hood observed Rachele after she exited defendant’s car. Dahmm, a retired
nurse, observed red marks on the left-side of Rachele’s face. Hood, the responding police officer,
observed a bruise on Rachele’s forehead and on one of her eyes or cheeks. He also observed that
she had a split lip on the inside of the lip.
- 11 -
¶ 49 Given these witnesses’ testimonies, the trial court rightly concluded that defendant’s claim
that he did not hit Rachele was contrary to the evidence. The evidence supported no other
reasonable inference than that Rachele was battered, and neither the record nor reason implicated
anyone other than defendant as the batterer. Therefore, there was no reasonable probability that
the outcome of trial would have been different had counsel objected to the hearsay statements,
even if the objections would have been sustained.
¶ 50 Defendant also raises plain error. Plain error review bypasses normal forfeiture principles
and allows a reviewing court to consider an unpreserved claim of error when either (1) a clear or
obvious error occurred and the evidence is so closely balanced that the error alone threatened to
tip the scales of justice against the defendant, or (2) a clear or obvious error occurred and that error
is so serious that it affected the fairness of the defendant’s trial. People v. Thompson, 238 Ill. 2d
598, 613 (2010).
¶ 51 Plain-error review under the closely-balanced-evidence prong of plain error is similar to
an ineffective assistance claim based on evidentiary error. People v. White, 2011 IL 109689, ¶ 133.
Both require that the defendant show they were prejudiced, that is, that the evidence was so closely
balanced that the alleged error alone tipped the scales of justice against the defendant or that there
was a reasonable probability of a different result absent the error. Id. If it is clear that the defendant
cannot show prejudice, there is no reason to proceed further with either an ineffective assistance
analysis or a plain error review under the closely-balanced-evidence prong; both are evidence-
dependent, result-oriented analyses. Id. ¶ 134. We have already determined that defendant cannot
show prejudice, and as such, his plain error claim fails as well.
¶ 52 B. Preliminary Krankel Inquiry
- 12 -
¶ 53 Defendant also argues that the trial court failed to make an adequate inquiry into his pro se
claims of ineffective assistance of counsel. He argues that he showed possible neglect of his case
when he raised his trial counsel’s failure to object to color photographs of Rachele despite
receiving only black-and-white photographs before trial. Defendant argues that his only mistake
in the trial court was that he suggested exclusion of the photographic evidence instead of first
alleging that his counsel should have requested a continuance.
¶ 54 Defendant continues that the difference between the color and black-and-white
photographs mattered, in part, because Rachele was wearing dark eye shadow that day, and the
eye shadow could have appeared as bruising. He contends that without color photographs, defense
counsel did not know whether to question Rachele, Dahmm, or Hood about smudged makeup.
¶ 55 Defendant also argues error in that the trial court failed to address other bases for
ineffective assistance, which he had raised in his written pro se motion. Those other allegations
included trial counsel’s failure to question Hood on why he failed to photograph Rachele’s split
lip. Defendant concludes that the trial court failed to ask follow-up questions that would have
allowed it to review the claims’ merits, and it failed to create a sufficient record of the factual bases
for his claims.
¶ 56 The State responds that Hood observed bruising not only on Rachele’s cheek but also on
her forehead. The State also addresses one of defendant’s assertions in his amended motion to
reconsider judgment or for new trial, that he would have presented his brother’s testimony had he
seen the color photographs before trial. The State contends that if defendant’s brother had relevant,
exculpatory testimony regarding Rachele’s lack of injuries the following day, defendant would
have called him regardless of receiving only a black-and-white photograph of Rachele.
- 13 -
¶ 57 Whether the trial court properly conducted a preliminary Krankel inquiry presents a legal
question that we review de novo. People v. Roddis, 2020 IL 124352, ¶ 33. A preliminary Krankel
inquiry is triggered when a defendant raises a pro se posttrial claim of ineffective assistance of
counsel. People v. Jolly, 2014 IL 117142, ¶ 29. A pro se defendant is not required to file a written
motion but need bring only their claim to the trial court’s attention. Roddis, 2020 IL 124352, ¶ 35.
The purpose of a Krankel proceeding is to promote consideration of pro se ineffective assistance
claims in the trial court and to limit issues on appeal. People v. Patrick, 2011 IL 111666, ¶ 41; see
People v. Ayres, 2017 IL 120071, ¶ 21 (explaining that the initial evaluation of a defendant’s claims
at a preliminary Krankel inquiry creates the necessary record for claims raised on appeal).
¶ 58 The trial court should not automatically appoint new counsel when a defendant raises a
posttrial claim of ineffective assistance. Roddis, 2020 IL 124352, ¶ 35 Instead, the trial court
should first examine the factual basis of the defendant’s claim, and if it determines that the claim
lacks merit or pertains only to matters of trial strategy, it may deny the pro se motion and need not
appoint new counsel. Id. However, if the trial court finds possible neglect of the case, it should
appoint new counsel. Id.
¶ 59 On review, the operative concern is whether the trial court conducted an adequate inquiry
into the pro se defendant’s allegations of ineffective assistance. People v. Moore, 207 Ill. 2d 68,
78 (2003). During the preliminary Krankel inquiry, some interchange between the trial court and
trial counsel regarding the defendant’s claim is permissible. Jolly, 2014 IL 117142, ¶ 30. The trial
court may also discuss the allegations with the defendant. Id. Moreover, the trial court may
evaluate the allegations in light of its knowledge of defense counsel’s performance at trial and the
insufficiency of the defendant’s allegations on their face. Moore, 207 Ill. 2d at 79.
- 14 -
¶ 60 Here, the trial court conducted an adequate preliminary Krankel inquiry. It examined
defendant about his claims in his “Motion to Appeal” that counsel was ineffective. It asked him,
“what do you believe [your trial counsel] did in your own words that was ineffective?” Defendant
responded that his counsel had received black-and-white photographs of Rachele despite the State
submitting color photographs into evidence, and his counsel did not object to this. Defendant
asserted that they had “built [his] defense around black-and-white photo evidence.” Defendant
noted that the evidence reflected bruising on Rachele’s right cheek, and he claimed the evidence
hurt his credibility and led to the court’s determination that “something happened.” After
defendant finished testifying, the trial court reviewed more of defendant’s written motion, noting
defendant’s allegation that the State used a “sneaky” tactic of altering the photo evidence to black
and white before sending it to his trial counsel. The trial court found no basis for such allegation.
The trial court concluded that defendant’s ineffective assistance claim lacked merit.
¶ 61 The trial court’s conclusion was not error. Simply, the color or lack thereof to the
photographs had no possible effect on the outcome of defendant’s trial. Had there been no
photographs at all, the trial court still heard testimony from Dahmm and Hood of observations of
Rachele consistent with her being battered on her face. The photographs merely corroborated their
testimony, which the trial court had no reason to doubt in the first place, having explained that they
were disinterested witnesses unlike defendant and Rachele. Furthermore, Hood’s failure to
photograph the inside of Rachele’s lip was inconsequential. Had he not even testified to Rachele’s
split lip, the trial court still had sufficient evidence to find that Rachele was battered.
¶ 62 As to defendant’s new argument on appeal that Rachele was wearing dark eye shadow, that
argument could have been made regardless of the color of the photographs admitted. Nevertheless,
such argument strains credulity in light of the totality of the evidence, including when the marks
- 15 -
depicted appear not only on Rachele’s cheekbone but also on her forehead. Likewise, defendant’s
argument in his amended motion to reconsider judgment or for new trial, that he would have called
his brother to testify that Rachele’s injuries were faked, did not depend upon whether he received
color or black-and-white photographs.
¶ 63 In short, three witnesses testified consistent with defendant battering Rachele,
corroborating her account and discrediting his. Lynch observed fighting in the car, and Hood and
Dahmm observed Rachele’s injuries after she exited the car. In light of these testimonies,
defendant’s case did not turn on the two photographs of Rachele, whether in color or black and
white. Accordingly, defendant’s pro se claim of ineffective assistance lacked merit because he
could not show possible neglect of his case, and the trial court did not err in denying his motion
and declining to appoint him new counsel.
¶ 64 III. CONCLUSION
¶ 65 For the reasons stated, we affirm the judgment of the McDonough County circuit court.
¶ 66 Affirmed.
- 16 - | 01-04-2023 | 11-14-2022 |
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