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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-MAR-2020
11:55 AM
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Case: 19-2403 Document: 57 Page: 1 Filed: 08/28/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SIMPSON STRONG-TIE COMPANY,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
MID CONTINENT STEEL & WIRE, INC.,
Defendant-Appellee
______________________
2019-2403
______________________
Appeal from the United States Court of International
Trade in No. 1:17-cv-00057-GSK, Judge Gary S.
Katzmann.
______________________
Decided: August 28, 2020
______________________
ROBERT KEVIN WILLIAMS, Clark Hill PLC, Chicago, IL,
argued for plaintiff-appellee. Represented by GEORGE REID
TUTTLE, III, Law Offices of George R. Tuttle, A Professional
Corporation, San Rafael, CA.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
Case: 19-2403 Document: 57 Page: 2 Filed: 08/28/2020
2 SIMPSON STRONG-TIE CO. v. UNITED STATES
DC, argued for defendant-appellant. Also represented by
ETHAN P. DAVIS, JEANNE DAVIDSON, PATRICIA M.
MCCARTHY; VANIA WANG, Office of the Chief Counsel for
Trade Enforcement and Compliance, United States De-
partment of Commerce, Washington, DC.
ADAM H. GORDON, The Bristol Group PLLC, Washing-
ton, DC, for defendant-appellee. Also represented by PING
GONG.
______________________
Before PROST, Chief Judge, MOORE and STOLL, Circuit
Judges.
STOLL, Circuit Judge.
The Government appeals a decision of the United
States Court of International Trade affirming a remand de-
termination of the United States Department of Commerce
concluding that certain zinc masonry anchors and certain
nylon masonry anchors imported by Simpson Strong-Tie
Company are outside the scope of an antidumping order
imposed on certain steel nails from the People’s Republic of
China. See generally Simpson Strong-Tie Co. v. United
States, 393 F. Supp. 3d 1251 (Ct. Int’l Trade 2019); see also
Notice of Antidumping Duty Order: Certain Steel Nails
from the People’s Republic of China, 73 Fed. Reg. 44,961
(Dep’t of Commerce Aug. 1, 2008). The issues presented in
this case are substantially identical to the issues presented
in OMG, Inc. v. United States, No. 19-2131 (Fed. Cir.
Aug. 28, 2020), issued herewith. 1 For the reasons stated in
1 Though OMG involves a different antidumping or-
der covering certain steel nails from the Socialist Republic
of Vietnam, the relevant scope language of that order is
substantially identical to that of the antidumping order at
issue in this case. Compare Certain Steel Nails from the
Republic of Korea, Malaysia, the Sultanate of Oman,
Case: 19-2403 Document: 57 Page: 3 Filed: 08/28/2020
SIMPSON STRONG-TIE CO. v. UNITED STATES 3
that opinion, we affirm the decision of the Court of Inter-
national Trade.
AFFIRMED
Taiwan, and the Socialist Republic of Vietnam: Antidump-
ing Duty Orders, 80 Fed. Reg. 39,994, 39,995 (Dep’t of Com-
merce July 13, 2015), with Certain Steel Nails from the
People’s Republic of China, 73 Fed. Reg. at 44,961–62.
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2 So.3d 279 (2009)
YUNGER
v.
STIRLING INTERN. REALTY, INC.
No. 5D08-2597.
District Court of Appeal of Florida, Fifth District.
February 10, 2009.
Decision without published opinion. Affirmed.
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J-S28018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACKIE S. KAUFFMAN :
:
Appellant : No. 339 MDA 2020
Appeal from the PCRA Order Entered February 14, 2020
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000653-2016
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: AUGUST 28, 2020
Appellant, Jackie S. Kauffman, appeals from an order entered on
February 14, 2020, which dismissed her petition for collateral relief filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On a previous appeal, we summarized the facts of this case as follows:
In 2016, [Appellant’s] nine-year-old daughter (hereinafter,
[“A.H.”]), a special needs child, resided in a trailer home with
[Appellant], [her] older brother (who was also a minor), and
[Appellant’s] paramour, Adam Stidfole (“Stidfole”). Notably,
Stidfole was a registered sexual offender (related to his sexual
abuse of children and possession of child pornography in 2006),
and [Appellant] admittedly knew of Stidfole’s status as such prior
to cohabitating with him and her minor children. [Appellant] did
not warn [A.H.] of Stidfole’s status as a sexual offender or of a
need to protect herself when around him. [Appellant] stated that
she tried to always arrange for either another adult or [A.H.’s]
older brother to be in the trailer when [Appellant] was not present.
Between approximately June 2016 and September 2016,
[however,] Stidfole repeatedly sexually assaulted [A.H.].
J-S28018-20
[Appellant] testified at her trial that [A.H.] was lying about the
sexual assaults.
[In October 2016,] the Commonwealth charged [Appellant] with
one count of [endangering the welfare of a child.] The matter
proceeded to a jury trial, at the close of which the jury found
[Appellant] guilty. On May 11, 2018, the trial court sentenced her
to serve one to two years in a state correctional facility, plus costs
and a $250.00 fine. Additionally, the trial court determined that
[Appellant] was eligible for the Recidivism Risk Reduction
Incentive program.
Commonwealth v. Kauffman, 2019 WL 2564538, at *1 (Pa. Super. June
21, 2019) (footnotes omitted). This Court affirmed Appellant’s judgment of
sentence on June 21, 2019. Id. Appellant did not seek further review.
On August 27, 2019, Appellant filed a timely, pro se PCRA petition and
the PCRA court subsequently appointed counsel to represent Appellant in the
proceedings. On November 14, 2019, court-appointed counsel filed an
amended PCRA petition on Appellant’s behalf. In her petition, Appellant
claimed that trial counsel was ineffective because he failed to “make a
reasonable closing argument.” Appellant’s Amended PCRA Petition, 11/14/19,
at *2 (un-paginated). The PCRA court held an evidentiary hearing on February
7, 2020, during which trial counsel testified. Thereafter, on February 14,
2020, the PCRA court denied Appellant’s petition. Trial Court Opinion and
Order, 2/14/20, at 1. This timely appeal followed.1
____________________________________________
1 Appellant filed a notice of appeal on February 24, 2020. On February 26,
2020, the PCRA court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. On March 6, 2020, the PCRA court
issued a statement pursuant to Pa.R.A.P. 1925(a), in which it expressly
incorporated an opinion that accompanied its February 14, 2020 order.
-2-
J-S28018-20
Appellant raises the following issue on appeal:
Did [Appellant] receive effective assistance of counsel when [trial
counsel] failed to make a reasonable closing argument to the jury?
Appellant’s Brief at 4.
Our standard of review is as follows:
Our review of a PCRA court's decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. … The
PCRA court's credibility determinations, when supported by the
record, are binding on this Court; however, we apply a de novo
standard of review to the PCRA court's legal conclusions.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal quotation
marks and citations omitted).
The statutory requirements for PCRA relief are set forth in Section 9543,
which states, in relevant part, as follows:
(a) General rule.--To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is
granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
42 Pa.C.S.A. §§ 9543(a)(1)(i). Pennsylvania “[c]ase law has strictly
interpreted the requirement that [a PCRA] petitioner be currently serving a
sentence for the crime to be eligible for relief.” Commonwealth v. Plunkett,
-3-
J-S28018-20
151 A.3d 1108, 1109 (Pa. Super. 2016). Thus, once a PCRA petitioner’s
sentence is completed, she “becomes ineligible for relief, regardless of
whether [she] was serving [her] sentence when [she] filed the petition.”
Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006).
In the case at bar, it appears that Appellant is ineligible for PCRA relief.
As stated above, on May 11, 2018, the trial court sentenced Appellant to serve
one to two years in a state correctional facility, plus pay costs and a $250.00
fine. While the “record does not indicate the exact date on which Appellant
began serving her sentence” it also does not include any “request for a delayed
sentence.” Commonwealth v. Auchmuty, 799 A.2d 823, 825-826 (Pa.
Super. 2002). We therefore assume that Appellant began serving her
sentence on the date of sentencing. Id. Accordingly, it would appear that
Appellant completed her sentence in May 2020 and is no longer “currently
serving a sentence of imprisonment, probation or parole for the crime.” 42
Pa.C.S.A. §§ 9543(a)(1)(i). Thus, despite the fact that Appellant completed
her sentence after she filed her PCRA petition and after the PCRA court
conducted the evidentiary hearing and dismissed her petition, she appears
ineligible for PCRA relief. See also Commonwealth v. Ahlborn, 699 A.2d
718, 720 (Pa. 1997); Hart, supra. Because the record seems to establish
that Appellant is no longer eligible for collateral relief, the dismissal of her
petition is subject to affirmance on procedural grounds.
Notwithstanding the above, as the record does not expressly confirm
whether Appellant continues to serve her sentence, and thereby remain
-4-
J-S28018-20
eligible for collateral relief, we shall, out of an abundance of caution, briefly
address the merits of her claims. Herein, Appellant argues that trial counsel
was ineffective. In particular, Appellant claims that trial counsel’s closing
argument failed to “sharpen or clarify the issues . . . for the jury to decide, []
present [Appellant’s] version of the [entire] case, [] point out the weaknesses
of the Commonwealth’s case, and [] attempt to persuade the jury.”
Appellant’s Brief at 16. Based upon these alleged failures, Appellant asserts
that trial counsel was ineffective because he essentially “abandoned [her] at
the time of the closing argument.” Id. at 24.
Our Supreme Court previously explained:
In order to obtain relief under the PCRA based on a claim of
ineffectiveness of counsel, a PCRA petitioner must satisfy the
performance and prejudice test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). In Pennsylvania, we have
applied the Strickland test by requiring a petitioner to establish
that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's action or failure to act; and
(3) the petitioner suffered prejudice as a result of counsel's error,
with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been
different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001). Counsel is presumed to have rendered effective
assistance, and, if a claim fails under any required element of the
Strickland test, the court may dismiss the claim on that basis.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Commonwealth v. Vandivner, 130 A.3d 676, 680 (Pa. 2015) (parallel
citations omitted).
Relating to the reasonable basis prong, [g]enerally, where matters
of strategy and tactics are concerned, counsel's assistance is
deemed constitutionally effective if he chose a particular course
that had some reasonable basis designed to effectuate his client's
-5-
J-S28018-20
interests. Courts should not deem counsel's strategy or tactic
unreasonable unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. Also [a]s a general rule, a lawyer
should not be held ineffective without first having an opportunity
to address the accusation in some fashion. … The ultimate focus
of an ineffectiveness inquiry is always upon counsel, and not upon
an alleged deficiency in the abstract.
Relating to the prejudice prong of the ineffectiveness test, the
PCRA petitioner must demonstrate that there is a reasonable
probability that, but for counsel's error or omission, the result of
the proceeding would have been different.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal quotation
marks and citations omitted).
The right to effective assistance of counsel extends to closing
arguments. Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004),
quoting Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003). However, the
“selection of arguments” by counsel is recognized as a “core exercise of . . .
discretion.” Yarborough, 540 U.S. at 7. As such, an appellate court’s review
of a defense counsel’s summation is highly deferential:
[C]ounsel has wide latitude in deciding how best to represent a
client, and deference to counsel's tactical decisions in his closing
presentation is particularly important because of the broad range
of legitimate defense strategy at that stage. Closing arguments
should “sharpen and clarify the issues for resolution by the trier
of fact,” but which issues to sharpen and how best to clarify them
are questions with many reasonable answers. Indeed, it might
sometimes make sense to forgo closing argument altogether.
Judicial review of a defense attorney's summation is therefore
highly deferential.
Id. at 5–6 (citations omitted). In recognition of the deference due to counsel,
this Court previously explained that counsel need not discuss every legal
-6-
J-S28018-20
definition or “legal questions relevant to the case being tried in his
summation.” Commonwealth v. Crawford, 427 A.2d 166, 181 (Pa. Super.
1981). Instead, counsel may decide, as a matter of strategy, how to
“marshal[] the evidence and [how] to present it, along with the permissible
inferences arising therefrom, to the jury in the best possible light on behalf of
his client.” Id.
Herein, we conclude that trial counsel had a reasonable basis for
formulating a brief, coherent, closing argument. See N.T. Trial, 3/19/18, at
25-26. At the evidentiary hearing, trial counsel explained that “when he made
his closing[,] the room felt tense” and, as such, he believed that “an emotional
speech was not a viable option.” Trial Court Opinion and Order, 2/14/20, at
2. Further, trial counsel recognized that, because Appellant continuously
testified that A.H. lied about the sexual assaults, the “case hinged on whether
the jury believed [A.H.] or [Appellant].” Id.; see also N.T. Trial, 3/19/18, at
111, 115, 123-125, 129-130. Trial counsel, therefore, decided to avoid
“points that [he] knew that the Commonwealth [could counter].” N.T.
Evidentiary Hearing, 2/7/20, at 11-12. Instead, “he opted to state that it was
up to the jury, [that] they should remove emotion from their deliberation, and
carefully weigh the evidence presented before them.” Trial Court Opinion and
Order, 2/14/20, at 2. In light of our deference to trial counsel’s tactical
decisions, we conclude that counsel followed a reasonable strategy designed
to effectuate Appellant’s interest in making his closing argument and that
-7-
J-S28018-20
unchosen alternatives did not offer a potential for success substantially
greater than the course actually pursued.
Because it appears that Appellant is no longer eligible for collateral relief
and, alternatively, because Appellant’s ineffectiveness claim fails, we affirm
the PCRA court’s order dismissing her PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/28/2020
-8-
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The plaintiff, Technical Coatings Laboratory, Inc. (TCL) appeals a declaratory ruling of the defendant Timothy Keeney, Commissioner of Environmental Protection, holding that methyl ethyl ketone to be distilled (MEK-TBD), a material used by the plaintiff in manufacturing coating products, is subject to regulation by the state as a hazardous waste. The Commissioner issued his ruling pursuant to General Statutes 4-176. This appeal is brought pursuant to General Statutes 4-183. The Connecticut Business and Industry Association (CBIA) was granted leave to intervene as a plaintiff in this appeal. The court finds the issues in favor of the defendant Commissioner.
Certain essential facts are undisputed and provide the basis for the plaintiff's appeal. Methyl ethyl ketone (MEK) is used by the plaintiff as a raw material ingredient in the production of paints, inks and other coatings. It is also used to wash the coating cylinder. After the MEK is used to wash the coating cylinder, it is collected in fifty-five gallon steel drums which are labeled with the date on which collection of the material begins. These drums are then taken to a staging area to await distillation. The MEK awaiting distillation is known as "MEK-TBD," or methyl ethyl ketone to be distilled. One fifty-five gallon drum of MEK-TBD is usually generated each day, but the generation rate depends on the number of ink color changes on the coating machine each day. Within twenty-four hours of generation, the drums are moved to a bermed area in the ink room of the plant, where the still is located. The drums of MEK-TBD are stored in this area until the company is ready to begin the distillation CT Page 21 process. The period of time that any one drum of MEK-TBD is held in storage varies from fourteen hours to two weeks, but the average storage time is one week. The MEK-TBD is then transferred to the still for distillation. The distillation process revitalizes the MEK so that it may be returned for use in the manufacturing process.
The basic issue underlying this appeal is the proper classification and handling of MEK-TBD, under applicable law and regulations, while it is being stored and distilled, prior to being returned for use in TCL's manufacturing process. To settle this issue, TCL filed a petition for a declaratory ruling with the Commissioner, pursuant to Conn. Dept. Reg. 22a-3a-1(c). In its petition, TCL sought the following rulings:
1. TCL's MEK-TBD is not a "waste" and is not subject to regulation as a solid waste or a hazardous waste under state regulations (RCSA 22a-449(c) — 100 through 110).
2. TCL's MEK-TBD is a recyclable material and is properly regulated as such pursuant to RCSA 22a-449(c) — 101(c).
3. TCL's MEK-TBD and the equipment used by TCL in reclaiming its MEK is exempt from the provisions of subdivision (3) of 22a-449(c) — 101(c) by virtue of the provisions of RCSA 22a-449(c) — 101(c)(4).
4. Although the term "recyclable material" may include wastes, in this case, TCL's MEK-TBD is subject to state regulation by virtue of the Commissioner's authority to regulate the recycling of "chemical liquids" (CGS 22a-448(1) not on the basis that MEK-TBD is a hazardous waste; nor would the imposition of requirements to comply with any of the provisions of 22a-449(c) — 100 through 22a-449(c) — 110, by virtue of the Commissioner's authorities under 22a-449(c) — 101(c) operate to render TCL's MEK-TBD a hazardous waste.
On July 31, 1992, after obtaining additional information from TCL, the Commissioner issued a declaratory ruling which essentially denied each of TCL's requests. In his CT Page 22 ruling, the Commissioner held as follows: (1) MEK-TBD is a solid waste; (2) MEK-TBD is a recyclable material subject to regulation under Conn. Dept. Reg. 22a-449(c) — 101(c); (3) MEK-TBD is not exempt from regulation under Conn. Dept. Reg. 22a-449(c) — 101(c)(4); and (4) MEK-TBD is subject to regulation pursuant to General Statutes 22a-448 and 22a-449(c). The consequences of this declaratory ruling for TCL are that the company will have to label, store, and handle the MEK-TBD as hazardous waste in compliance with Conn. Dept. Reg. 22a-449(c) — 102. TCL will also have to comply with the annual reporting and registration requirements of Conn. Dept. Reg. 22a-449(c) — 101(c)(3).
On August 18, 1992, TCL filed a petition for reconsideration. On September 22, 1992, the Commissioner denied the petition for reconsideration.
The undisputed facts recited above establish that TCL is aggrieved by the defendant Commissioner's ruling within the meaning of General Statutes 4-183. See Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168,592 A.2d 386 (1991).
TCL claims that the Commissioner erred in his interpretation of state and federal law. More specifically, TCL asserts that MEK-TBD is not a solid waste, because, based on federal case law, MEK-TBD is not "discarded" TCL further asserts that based on 40 C.F.R. § 261 as incorporated into the Connecticut regulations in22a-449(c) — 101, MEK-TBD is not a "waste," nor is it "spent material." TCL claims, therefore, that the Commissioner has no authority to regulate it as a waste. TCL also claims that the Commissioner erred in holding that the distillation equipment used to recycle MEK-TBD is not "an essential part of an industrial production process" and is therefore not exempt from the registration and annual reporting requirements of Conn. Dept. Reg. 22a-449(c) — 101(c)(3) pursuant to Conn. Dept. Reg. 22a-449(c) — 101(c)(4).
The claims of the parties in this case involve conflicting interpretations of federal and state statutes and regulations as applied to a highly technical manufacturing process. They also raise policy questions concerning the extent of the government's role in regulating business and protecting the environment. These CT Page 23 issues lead the court to focus initially on its proper role in reviewing the actions of governmental agencies in such cases.
"[T]he usual scope of a court's review of administrative action is quite limited." Starr v. Commissioner of Environmental Protection, 226 Conn. 358,371, 627 A.2d 1296 (1993) (Citations omitted). In this regard, General Statutes 4-183(j) provides, in relevant part, as follows:
The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
It is not the function of the trial court "to retry the case or to substitute its judgment for that of the administrative agency." Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199
(1986) (Citations omitted). "Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." Id.
Even with respect to the interpretation of statutes and regulations, the court's role is limited. "Although the interpretation of statutes is ultimately a question of law; . . . it is well established practice . . . to `accord great deference to the construction given [a] statute by the agency charged with its enforcement.'" Starr v. Commissioner of Environmental Protection, supra, 372 (Citations omitted) (Emphasis added). "This principle CT Page 24 applies with even greater force to an agency's interpretation of its own duly adopted regulations." Griffin Hospital v. Commission on Hospitals Health Care, supra, 497. This deference principle does not mean that the court must abdicate its adjudicative function in interpreting statutes and regulations, but it does mean that where there are two equally plausible interpretations of a statute or regulation the court must give due deference to that followed by the administrative agency concerned. Starr v. Commissioner of Environmental Protection supra, 376
Under Subtitle C of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (RCRA), the federal Environmental Protection Agency (EPA) has established a program for overseeing the safe generation, transportation, treatment, storage and disposal of hazardous waste. Under Connecticut General Statutes 22a-449, the Connecticut Commissioner of Environmental Protection is authorized to establish such programs and adopt and enforce such regulations as he deems necessary to carry out the intent of Subtitle C of the RCRA. The applicable state regulation, 22a-449(c) — 101(a)(1), incorporates by reference the federal regulations promulgated by the EPA in 40 C.F.R. Part 261.
Title 40 C.F.R. Part 261 "identifies those solid wastes which are subject to regulation as hazardous wastes."40 C.F.R. § 261.1(a). The definition of solid waste contained in Part 261 "applies only to wastes that also are hazardous for purposes of the regulations implementing Subtitle C of RCRA." 40 C.F.R. § 261.1(b)(1). The essence of the Commissioner's decision is his conclusion that MEK-TBD is a solid waste and is also subject to regulation as a hazardous waste. A "solid waste" is defined as "any discarded material" that does not fall within enumerated exclusions. 40 C.F.R. § 261.2(a)(1). It is undisputed that MEK-TBD does not fall within those exclusions. A "discarded material" is defined as any material which is "abandoned," "recycled" as explained in paragraph (c) of 261.2, or is "considered inherently waste-like."40 C.F.R. § 261.2(a)(2). Paragraph (c) of 261.2 provides that materials are solid wastes "if they are recycled — or accumulated, stored, or treated before recycling — as specified in paragraphs (c)(1) through (4) of this CT Page 25 section." 40 C.F.R. § 261.2(c). Paragraph (c)(3) provides that materials noted with a "*" in column 3 of table 1 are solid wastes when "reclaimed." 40 C.F.R. § 261.2(c)(3). A material is "reclaimed" if it is "processed to recover a usable product, or if it is regenerated. Examples are . . . regeneration of spent solvents.40 C.F.R. § 261.1(c)(4). TCL concedes that MEK-TBD is a "reclaimed" material. The Commissioner concluded that MEK-TBD is a "spent material" which is a solid waste when reclaimed, as noted with a "*" in column 3 of table 1. A "spent material" is defined as "any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing."40 C.F.R. § 261.1(c)(1).
The Commissioner based his conclusion that MEK-TBD falls within the definition of "discarded material" on his interpretation of the federal cases that discuss the meaning of "discarded" under RCRA. See American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) (AMC I); American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990) (API); American Mining Congress v. EPA, 907 F.2d 1179
(D.C. Cir. 1990) (AMC II). In the two later federal cases, the court noted that the term "discarded" is "marked by the kind of ambiguity demanding resolution by the [EPA's] delegated lawmaking powers." AMC II, supra 1186, citing API, supra, 740-41. In AMC II, the court noted that "if Congress has not directly spoken to the precise issue, then [the court] will defer to the agency's reading of the statute as long as it is `permissible,' . . . that is, `so long as it is reasonable and consistent with the statutory purpose.'" (Citation omitted.) AMC II, supra citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984).
In AMC I, the court held that spent materials which are "reused and recycled in a continuous, ongoing manufacturing or industrial process" are not "discarded" under the RCRA definition of solid waste. (Emphasis in original.) AMC II, 1186. The court reasoned that such materials could not be treated as solid wastes because "they have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating CT Page 26 industry itself." (Emphasis in original.) Id.
In AMC II, the court noted that AMC I "concerned only materials that are `destined for immediate reuse in another phase of the industry's ongoing production process.'" (Emphasis in original.) AMC II, supra. The court in AMC II held that certain sludges which are stored for possible future reclamation are "discarded" within the meaning of RCRA.
In this case, the Commissioner found that TCL's use and handling of MEK-TBD is most closely analogous to the facts presented in AMC II because TCL stores, labels, and transfers the MEK-TBD prior to distillation. The Commissioner further reasoned that the MEK-TBD is not immediately reused in another phase of the company's ongoing production process, as was the case in AMC I, but rather it is reclaimed before being reintroduced into that process. As indicated above, the evidence presented by TCL shows that MEK-TBD is stored for up to two weeks prior to being distilled and that the average storage time is one week.
As noted above, the court must defer to the expertise of the Commissioner in interpreting and applying the statutes and regulations which he is charged with enforcing so long as his interpretation and application of those statutes and regulations to the facts of the case are reasonable. See Starr v. Commissioner of Environmental Protection, supra; All Brand Importers v. Department of Liquor Control, supra. The fact that MEK-TBD is stored for a significant period of time prior to distillation and reintroduction into the manufacturing process is obviously supportive of the Commissioner's conclusion that this fact pattern is more similar to that which was present in AMC II than that in AMC I. This conclusion, which the court finds to be reasonable, in turn supports the Commissioner's interpretation of the term "discarded" and his application of the relevant statutes and regulations in accordance with the rule of AMC II rather than AMC I. Accordingly, this court must defer to the Commissioner's interpretation even though TCL and CBIA advance a different, plausible interpretation.
The Commissioner also concluded that MEK-TBD is a CT Page 27 "spent material" because TCL does not use it in the manufacturing process without first distilling it. TCL claims that because it could reuse the MEK-TBD without distilling it and because it simply chooses to recycle it to create a higher quality product, the MEK-TBD should not be considered a "spent material." The Commissioner's conclusion in this regard, however, is based on TCL's own claim that it distills the used MEK-TBD so that it can produce the higher quality product that it chooses to do. The court concludes that the Commissioner reasonably determined that MEK-TBD is "spent material" because it cannot be used for the same purpose for which MEK is used without prior distillation.
The Commissioner also concluded that TCL was not exempt from the reporting and registration requirements of Conn. Dept. Reg. 22a-449(c) — 101(c)(3). Under 22a-449(c) — 101(c)(4), the requirements of 22a-449(c) — 101(c)(3) do not apply to recycling equipment that is "an essential part of an industrial production process of the facility that generates the recyclable materials." The Commissioner found that the term "essential" implies that the manufacturing process could not continue without the operation of the recycling equipment. Such a production process would be a totally enclosed recycling system, in which spent solvents were regenerated and reintroduced immediately into the industrial production process, without prior storage, through a system of connected piping. In this case there is no evidence that TCL could not continue its manufacturing process without the operation of the distillation equipment. In fact, the evidence is to the contrary. It was, therefore, reasonable for the Commissioner to conclude that the distillation equipment is not "essential" to TCL's manufacturing process. It follows that the disputed reporting and registration requirements apply to this equipment.
In their briefs to the court and in oral argument, the plaintiffs eloquently express the view that the Commissioner's interpretation of the statutes and regulations impose unreasonable burdens on the plaintiff's business in particular and on economic development in the state in general. Thus, plaintiff TCL points out that the Commissioner's ruling, with its consequent extra storage, registration, and reporting requirements, creates a CT Page 28 disincentive to recycle the used MEK. The company claims that if it did not recycle the MEK, however, it would use 130,000 gallons more each year. With regard to the economic effects of the ruling, TCL states that "the Commissioner does not appreciate how deleterious any excessive regulatory burdens can be to a company struggling to survive in today's economic environment." In the same vein, plaintiff CBIA argues that the Commissioner's ruling "will lead to unnecessary, costly, burdensome and wasteful results."
The force of the plaintiffs' economic and policy arguments is undeniable, especially in the context of the facts of this particular case. However, the court has no reason to believe that the Commissioner has not considered these arguments in arriving at his decision. Furthermore, it is not the proper role of the court to overrule the judgment of an administrative agency on matters of policy which are within the jurisdiction of that agency. Such policy judgments are to be made, or reversed, only by the agency involved or by the legislature.
For all of the reasons set forth above, the appeal is dismissed.
Maloney, J.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00489-CR
THOMAS CLARENCE JACOBS APPELLANT
A/K/A THOMAS C. JACOBS
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Thomas Clarence Jacobs a/k/a Thomas C. Jacobs attempts to
appeal from his conviction for robbery causing bodily injury. The trial court’s
certification states that this “is a plea-bargain case, and the defendant has NO
right of appeal.” On October 14, 2013, we notified Jacobs that the appeal would
be dismissed pursuant to the trial court’s certification unless he or any party
1
See Tex. R. App. P. 47.4.
desiring to continue the appeal filed a response showing grounds for continuing
the appeal. See Tex. R. App. P. 25.2(d), 44.3. We received a response, but it
does not show grounds for continuing the appeal. Therefore, in accordance with
the trial court’s certification, we dismiss the appeal. See Tex. R. App. P. 43.2(f).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 14, 2013
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84 Ill. 2d 14 (1981)
416 N.E.2d 1078
HERMAN J. KIRKWOOD, Appellant,
v.
THE INDUSTRIAL COMMISSION et al. (Security Roofing and Siding Co., Inc., Appellee).
No. 53493.
Supreme Court of Illinois.
Opinion filed February 3, 1981.
*15 *16 Bennett, Willoughby & Latshaw, P.C., of Decatur (K. Michael Latshaw, of counsel), for appellant.
Alfred R. Bonaldi, of Keefe & De Pauli, P.C., of East St. Louis, for appellee.
Judgment affirmed.
MR. JUSTICE RYAN delivered the opinion of the court:
The issue in this appeal is whether the Industrial Commission's finding that the claimant was not an employee, but an independent contractor, when he was injured, was against the manifest weight of the evidence. The claimant, Herman J. Kirkwood, had been applying siding to a home pursuant to an agreement with Security Roofing and Siding Co., Inc. (Security). He was injured after falling from a scaffold. He filed an application for adjustment of claim *17 under the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The arbitrator and Industrial Commission denied compensation. The circuit court of Coles County confirmed the decision of the Industrial Commission. The claimant appeals directly to this court under our Rule 302(a) (73 Ill.2d R. 302(a)). We hold that the decision of the Industrial Commission was not against the manifest weight of the evidence.
The claimant had been applying siding to homes since 1970. He had worked for Kool Vent Company for about a year when he and his brother formed Kirkwood Brothers Construction Company. They were in business under that name for approximately seven years. In October 1977, the company ceased doing business and claimant joined a partnership called Woolen Home Improvement, which also was engaged in applying siding. On August 1, 1978, the claimant withdrew as a member of that partnership. On that same date, the claimant, his son and two friends, Bob Green and Bob Craft, began to do the same work on projects supplied by Security. Project negotiations were discussed solely between Security and the customer. After negotiations were complete, Security would add that project to the work list posted at its office. The siding crews with which Security dealt could then pick a project from the list. The claimant, his son and his friends comprised one of these crews.
Job specifications and materials for projects on which the claimant's crew worked were provided by Security. The crew did not pay for materials. The crew provided its own tools, equipment, trucks, and scaffolding. It likewise set its own hours and applied the siding without supervision. A representative of Security would, from time to time, visit the job site to be sure the work was satisfactory. The crew made no warranties to the customer beyond those made by Security.
The crew was paid on a piecework basis, that is, by the *18 amount of material applied to a building, receiving a lump sum check at the end of each job. The checks were made out to either Kirkwood Home Improvements or Kirkwood Applicating. No taxes or social security were withheld by Security. Expenses were deducted by the claimant, who then divided the remainder among the crew members. Security's checks to Kirkwood were paid from Security's general account, not its payroll account.
On August 21, 1978, claimant was injured while working at a project site. The scaffolding which was owned and erected by the claimant collapsed, causing him to fall approximately 20 feet. After the claimant's injury, the crew discontinued further work on the project. Security paid Kirkwood Applicating for work already done on the project and arranged to have another applicating service complete the job.
The arbitrator, in denying compensation, found that the claimant was operating as an independent contractor on August 21, 1978, and that the relationship of employee and employer did not exist between Kirkwood and Security on that date. The Industrial Commission affirmed, and the circuit court of Coles County confirmed the decision of the Commission. In appealing to this court, the claimant argues that he was an employee and not an independent contractor and that the Industrial Commission's decision to the contrary is against the manifest weight of the evidence and must be reversed.
The claimant's argument places great reliance upon similarities between this case and the cases of Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, and Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454. In each of those cases the injured party was found to be an employee. Contending that the facts of Mastercraft and Kirkwood are identical to the case at bar, the claimant argues that the injured party here must also be considered an employee. While the facts of each case *19 are quite similar to the case at bar, each is distinguishable.
The significant differences between those cases and the one we are now considering is that from the facts in each of those cases the Industrial Commission found the claimant to be an employee and not an independent contractor. In both cases this court acknowledged that if the undisputed facts permit inferences to be drawn either way, that is, that the claimant was an employee or that he was an independent contractor, then the Commission alone is empowered to draw that inference, which will not be set aside unless against the manifest weight of the evidence.
Admittedly, the facts in Mastercraft and Kirkwood are strikingly similar to those in our case, but they are not identical. In Mastercraft, for instance, the employer owned the scaffold, sawhorses and cutting boards. The employer's foreman supervised and inspected the performance of the claimant's work. Although the claimant in Mastercraft did work in a crew, each member of the crew was paid separately, except when the claimant would, from time to time, hire somebody to help him. Also, in Mastercraft, the claimant would on occasion collect from the homeowner and turn the money over to the employer.
In Kirkwood it appears that, for the job in question, the agreement was to pay the claimant and his coworker $2,450 upon completion of the job. Also, the salesman who sold the job had responsibilities beyond those of a salesman and functioned as an overseer of the job. When the owner requested a change in the plans that had been agreed on, the salesman came to the job site and discussed these changes with the owner, the claimant and his coworker.
In Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106, 108, this court said: "The question of whether a person is an independent contractor or an employee is often a difficult one because elements pertaining to both relationships may be present." In our case, as in Mastercraft and *20 Kirkwood, elements of both an employee status and that of an independent contractor are present, and inferences can be drawn either way from the undisputed facts in all three cases. In Mastercraft and in Kirkwood we found the inferences drawn by the Industrial Commission not to be against the manifest weight of the evidence. In this case, although the Industrial Commission drew inferences contrary to those in Mastercraft and Kirkwood, we likewise find these inferences not to be contrary to the manifest weight of the evidence.
Determining whether one is an independent contractor or an employee is often a vexing problem. (O'Brien v. Industrial Com. (1971), 48 Ill. 2d 304, 307.) Since many jobs contain elements of each, there is no clear line of demarcation between the status of employee and independent contractor. (Bauer v. Industrial Com. (1972), 51 Ill. 2d 169; Henry v. Industrial Com. (1952), 412 Ill. 279; Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615; Kehrer v. Industrial Com. (1937), 365 Ill. 378.) For this reason, when the facts of a particular case are susceptible to either interpretation, it is within the Industrial Commission's province to draw inferences and evaluate the credibility of the witnesses in arriving at a decision. (C. Iber & Sons, Inc. v. Industrial Com. (1980), 81 Ill. 2d 130, 136; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31; O'Dette v. Industrial Com. (1980), 79 Ill. 2d 249; Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 290.) On review, that decision will only be reversed if it is against the manifest weight of the evidence. Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236, 240; Scott v. Industrial Com. (1979), 76 Ill. 2d 183; Alexander v. Industrial Com. (1978), 72 Ill. 2d 444; Pantle v. Industrial Com. (1975), 61 Ill. 2d 365; Quick v. Industrial Com. (1972), 53 Ill. 2d 46; *21 Williams v. Industrial Com. (1971), 49 Ill. 2d 317; Lawrence v. Industrial Com. (1945), 391 Ill. 80.
This court has considered various factors in resolving the question of whether a workman is an employee or an independent contractor; i.e., amount of supervision and control, the method of making payment, the right to discharge, the skills required, the source of materials and tools, and the work schedule. Most frequently emphasized is the right to control the workman and the details of his work. (See O'Brien v. Industrial Com. (1971), 48 Ill. 2d 304.) The pronouncements of this court in this area are necessarily binding on the Commission and are followed by it in making its determinations. The approach this court has followed could conceivably lead to inconsistent results in identical factual situations, as the claimant argues has happened in this case as compared to Mastercraft and Kirkwood. Such results are irksome, particularly to Herman Kirkwood, the claimant in this case since in Kirkwood v. Industrial Com. he was found to be an employer, whereas in this case, under very similar arrangements, when he is the claimant, he is found to be an independent contractor.
Professor Larson suggests that the traditional elements considered by courts in determining whether a workman is an employee or an independent contractor were adopted from the common-law master-servant concept and are not particularly appropriate in determining whether a workman is an employee for purposes of workmen's compensation acts. For instance, the degree of control that can be exercised over a workman and the performance of his work is a significant factor in determining whether the master is to be held liable vicariously for the acts of his servant. However, workmen's compensation law is concerned not with injuries by the employee, but injuries to the employee, and the right to control his activities does not have the same significance as it has in determining whether the employer should be responsible for the acts *22 of his servant. Professor Larson suggests that the right to control the workman should not be the most relevant factor in determining if a workman is an employee in a compensation case. More important to consider is the nature of the claimant's work in relation to the regular business of the employer. (1C A. Larson, Workmen's Compensation secs. 43.42, 43.50 (1980).) This approach can be best explained by quoting from Professor Larson's treatise:
"The theory of compensation legislation is that the cost of all industrial accidents should be borne by the consumer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection." 1C A. Larson, Workmen's Compensation sec. 43.51, at 8-17 to 8-18 (1980).
In section 43.52, under the heading of "Relativity as essential part of test," Professor Larson states:
"Note that the factor here stressed is in two parts: the nature of the claimant's work, and its relation to the employer's work. The nature of the claimant's work, in the abstract, is seldom a safe guide in itself, and for this reason it is dangerous to rely on precedents classified solely by the character of the worker's job for example, to say that window-washers are usually held to be employees while lawyers are usually held to be independent contractors. If I, as a private householder, call upon a window-washing company and engage it to do what amounts to one day's work on my house, I am probably not an employer. But an industrial plant which at regular intervals keeps this same company busy doing what otherwise would be done through its own employees could be held an employer. Similarly, when I seek the services of a lawyer, on the occasion of one of my rare encounters with the legal process, the lawyer is obviously not my employee. But the same lawyer, engaged continuously by a law firm or insurance company, can be *23 an employee.
This test, then, which for brevity will be called the `relative nature of the work' test, contains these ingredients: the character of the claimant's work or business how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on and its relation to the employer's business, that is, how much it is a regular part of the employer's regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job." 1C A. Larson, Workmen's Compensation sec. 43.52, at 8-19 to 8-20 (1980).
This court, while adhering to the belief that the right to control the details of a worker's performance is the essential element in determining whether a worker is an employee has, nonetheless, on several occasions acknowledged the significance of the nature of the work performed in relation to the general business of the employer. See Henry v. Industrial Com. (1952), 412 Ill. 279, 283; Coontz v. Industrial Com. (1960), 19 Ill. 2d 574, 578; Alexander v. Industrial Com. (1978), 72 Ill. 2d 444, 450; Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 460.
We believe that the approach suggested by Professor Larson would lead to more consistent and more logical results than emphasizing the common-law master-servant elements of tort liability. Indeed, the latter approach may well have led to a contrary conclusion in the case now before us. The tests presently applied in determining whether a worker is an employee or an independent contractor are the results of court pronouncements and could no doubt be abandoned by judicial decision. (See Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 25, cert. denied (1960), 362 U.S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955.) The tests now applied are long-standing, business relationships have been structured in *24 consideration of them, and insurance protection against compensation claims has been tailored with these tests in mind. It could be unnecessarily disruptive, and expose employers to risks against which they have had no opportunity to insure, for this court to abruptly abandon its previous approach and follow the suggestions of Professor Larson. In any event, it would be inappropriate for this court in this case to abandon consideration of the elements heretofore deemed significant in favor of Professor Larson's suggestions, since the suggestions were neither briefed nor argued.
For the reasons heretofore stated in this opinion, the judgment of the circuit court of Coles County is affirmed.
Judgment affirmed.
MR. JUSTICE SIMON took no part in the consideration or decision of this case.
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141 B.R. 702 (1992)
In re Gwendolyn JACKSON, Debtor.
Marshall H. WATSON, Plaintiff,
v.
Gwendolyn JACKSON, Defendant.
Bankruptcy No. B-90-13724-PHX-GBN, Adv. No. 91-861-GBN.
United States Bankruptcy Court, D. Arizona.
July 8, 1992.
*703 Louis B. Schaeffer, John F. Emerson, Phoenix, Ariz., for plaintiff.
Gwendolyn Jackson, pro se.
Jon N. Vogel, Vogel & Damore, Scottsdale, Ariz., for trustee.
Adrianne Kalyna, Phoenix, Ariz., U.S. Trustee.
MEMORANDUM OF DECISION
GEORGE B. NIELSEN, Jr., Bankruptcy Judge.
Debtor Gwendolyn Jackson filed a Chapter 7 bankruptcy petition within the District of Arizona on December 31, 1990. A discharge was granted on May 20, 1991. Docket No. 29. On June 12, 1991, her mother died, leaving a will that devised a Phoenix residence to debtor. The will appointed Ms. Jackson as personal representative. Following her mother's death, debtor distributed her mother's vehicle and furniture to her brothers, as required by the will. The residence is the only asset remaining to be distributed.
Plaintiff, Marshall H. Watson, is a creditor with a Maricopa County, Arizona, Superior Court judgment of $118,108.00. On August 20, 1991, plaintiff conducted an examination of debtor under Bankruptcy Rule 2004, and discovered debtor's inheritance. Docket No. 36. Plaintiff filed a complaint to revoke debtor's discharge under 11 U.S.C. § 727(d)(2) on September 17, 1991.
On September 5, 1991, debtor amended her schedules to reference the inheritance for the first time. The amendment occurred after plaintiff stated his intent to file a complaint to revoke debtor's discharge for willful concealment of property. To date, debtor has not filed her mother's will for probate or sought appointment as a personal representative of her mother's estate.
I
Plaintiff contends the discharge should be revoked for a knowing, fraudulent failure to report entitlements under the will, as well as failure to deliver or surrender the property to the trustee.
Debtor, not represented by counsel at trial, denies she knowingly and fraudulently failed to report or surrender property.
Since testimony and exhibits were received as evidence, findings of fact and conclusions of law are required. Rule 7052, FED.R.BANKR.P. This memorandum will serve as the Court's findings and conclusions. Rule 52(a), FED.R.CIV.P. This proceeding is a core proceeding. 28 U.S.C. § 157(b)(2)(J). Accordingly, the Court will enter a final judgment. Any aggrieved party has ten days to perfect an appeal to either the United States District Court for the District of Arizona or the Bankruptcy Appellate Panel of the United States Court of Appeals for the Ninth Circuit. Rule 8002(a), FED.R.BANKR.P.
II
Ms. Jackson identified Exhibit A as her December 31, 1990 Chapter 7 petition which was signed by her attorney. After her August 20, 1991, 2004 examination, her counsel withdrew.
*704 Debtor works as a supervisor in Maricopa County Superior Court, where she is responsible for 15 employees. She has occupied this job for 14 years. Earlier, she served as a data entry operator for 10 months at the court. She has previous employment with the Maricopa County Hospital, the State Fish and Game Commission, and a private employer. Since 1969, her employment has largely been computer or data based.
She identified Exhibit B as her bankruptcy schedules. Schedule A-2 lists plaintiff's debt of $141,546. Exhibit D is plaintiff's August 21, 1986, state complaint, No. C-600737. The complaint alleges fraud and breach of fiduciary duty. Plaintiff charged Ms. Jackson utilized his money and credit cards for her own personal benefit. Exhibit E is the judgment resulting from a two week jury trial. The jury awarded plaintiff $108,108, $10,000 in punitive damages, interest, attorney's fees and costs.
Plaintiff is Ms. Jackson's uncle by marriage. During the parties' dealings, he was in his early 70's and supported himself by retirement income and lawn work. Mr. Watson can only write his own name.
Debtor's schedules list her real estate, including her home, a rental property and a residence previously owned by Mr. Watson that he transferred to Ms. Jackson and her daughter. Exhibit B. Exhibit F is the February 11, 1986, quit claim deed from plaintiff.
Ms. Jackson's February 14, 1992, response to plaintiff's pretrial order reflects she learned in an April, 1991 letter from her attorney that a discharge could be revoked. Exhibit J. She concedes that at the beginning of her representation by counsel, it is probable disclosure requirements were discussed.
Exhibit B schedules $9,368 in personal property, including an automobile valued by debtor at $8,075 and $150 in a bank account. Deducting the latter two items, Ms. Jackson believed she owned approximately $1,300 in personalty at the filing date.
Exhibit K is an insurance premium notice of July 15, 1991 for her residence. Besides real estate coverage of $89,100, insurance for $66,825 in personal property is provided. The period of coverage is August of 1991 through August of 1992. Exhibit M is another insurance premium notice providing coverage from August 29, 1989 to August 29, 1990. Ms. Jackson cannot explain the discrepancy between the personal property valuations contained in her policies and the valuations in her bankruptcy schedules. She notes her insurance agent prepared the policy valuations.
In her August, 1991, deposition, Exhibit N at page 51, she testified she had no objection to the agent's values. She felt the agent knew what he was doing. To date, she has not decreased her personal property coverage under the policies. Debtor assumes the agent's valuations are based on his personal inspection.
Ms. Jackson's mother was hospitalized on Memorial Day, 1991, and died on June 12, 1991. Exhibit O is her last will, appointing debtor her personal representative. The will grants Ms. Jackson her mother's Magnolia Street home. Debtor read the will to her brothers and, in June of 1991, distributed their bequests. She has not filed the will for probate. She concedes her office desk is about 15 feet away from county probate facilities.
Debtor believes she mentioned her mother's bequest in a telephone conversation with her attorney. The purpose of the call was not the inheritance but another subject. Ms. Jackson does not recall her attorney's response. She believed her counsel would disclose this inheritance in the bankruptcy, if appropriate. She does not know if counsel did so.
At the 2004 examination, Ms. Jackson's counsel did not indicate he had forgotten to amend the schedules. Exhibit C is her September 5, 1991 amended bankruptcy schedules, listing the Magnolia property for the first time. This amendment occurred after her examination.
Exhibit P lists the items she was to bring to her examination. She cannot recall if a deed from her mother to herself was among the documents she brought. The *705 deed was not discussed in her deposition. She has no idea why she would not bring her mother's will to the deposition. She does not know if she did so.
Debtor became a signatory on her mother's checking account upon her parent's hospitalization. Exhibit P, paragraphs 4 and 5, reflects she was to bring checking account information on all accounts in which she had an interest. Ms. Jackson did not produce information on her mother's checking account at her deposition. Exhibit R is the mother's bank statement, reflecting on August 7, 1991, two weeks prior to the 2004 examination, her name was on decedent's account. She made a withdrawal from this account one day before her deposition. She does not know why she did not provide this information, other than to speculate she was busy and this period was traumatic for her.
Page 55 of her deposition reflects her testimony that paychecks, family support and rental income were the only source of deposits into her personal account. At the deposition, there were several deposits Ms. Jackson could not initially identify. Debtor repeatedly insisted the only source of deposits was pay, support or rental checks. At trial, she acknowledges this was not true. Her mother's account was another source for deposits. Later in the deposition, she disclosed her control of the mother's account.
Exhibit S is a December 1, 1991 letter to Ms. Jackson from the trustee's attorney. This document requests debtor to execute papers to transfer the Magnolia property to the trustee. Ms. Jackson has not done so.
She consulted real estate broker Charles Jackson concerning listing the Magnolia property for sale. She did not formally list the property, however. At her deposition, she stated she changed her mind and her daughter was allowed to occupy the property.
III
She emphasized in cross-examination that the insurance forms reflect inclusion of inflation provisions. She believes replacement values were selected by the agent. Her bankruptcy schedules, by contrast, reflect her guess as to the current value. She does not believe the Magnolia house is formally hers, although it was granted to her in the will. The will is not probated because other family duties demand her time. Although plaintiff cannot read or write, she does not believe he is senile or a true creditor. She became a signatory on her mother's account in May, when the account had several hundred dollars in it. At her mother's death, Ms. Jackson had to immediately write funeral checks from this account. This account was also used to reimburse Ms. Jackson for expenses paid with personal funds. Later, Ms. Jackson discovered her mother borrowed $500 from a neighbor. She took her mother's death benefit, paid the neighbor, and reclaimed an automobile pledged as security. Decedent's account is now overdrawn.
She has not turned the Magnolia property over to the trustee as she is unsure of the propriety of this demand. She has never before probated an estate and thinks there is a 180-day waiting requirement before probated real estate can be transferred. She believes plaintiff is over zealous, as she lacks any money to repay this debt. Her former spouse assists her financially, since she is a working single parent with four children.
IV
Under § 727(d)(2), the court shall revoke a discharge if "the debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee. . . ." See Ross v. Mitchell (In re Dietz), 914 F.2d 161, 163 (9th Cir.1990).[1] A right to a discharge is *706 left to the sound discretion of the Bankruptcy Court. Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984).
Generally, a debtor acting in reliance on the advice of counsel lacks the intent required to be denied a discharge. First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir.1986). Any such reliance must be in good faith, however. Supra. Although a discharge and fresh start are fundamental to bankruptcy, they are intended only for honest debtors. Citibank South Dakota v. Dougherty (In re Doughery), 84 B.R. 653, 657 (9th Cir. BAP 1988). While § 727 is construed liberally for debtors and strictly against objectors, In re Adeeb, 787 F.2d at 1342, a debtor has no fundamental, constitutional right to a discharge. Grogan v. Garner, ___ U.S. ___, ___, 111 S. Ct. 654, 659, 112 L. Ed. 2d 755 (1991). Concealment of assets alone is sufficient to deny discharge. Lack of injury to creditors is irrelevant. Adeeb, 787 F.2d at 1343.
V
This Court weighs the credibility of witnesses. Debtor is a mature, intelligent, knowledgeable, professional person of long-standing employment in a supervisory position with a court system. She is not naive. Her generalized allegations that she provided information concerning her inheritance to her attorney during a telephone conversation on an unspecified date lack credibility. Debtor concedes the requirement to disclose the inheritance was discussed with counsel. Her failure to bring relevant paperwork to the deposition and unforthcoming testimony concerning existence of the inheritance, access to the mother's bank account and repeated denials of sources of income further damage her credibility. Plaintiff has established a prima facie case. Debtor's failure to respond with credible evidence means she cannot prevail. Aubrey v. Thomas (In re Aubrey), 111 B.R. 268, 273 (9th Cir. BAP 1990). This is not a case where debtor has voluntarily revealed the transfer and recovered substantially all the property for the estate. Adeeb, 787 F.2d at 1345-46.
The failure to promptly amend schedules to list the inheritance, supported by the circumstantial evidence of a failure until late in the deposition to disclose information, evidences the requisite wrongful intent. The Court finds for plaintiff and against defendant and will revoke the discharge.
NOTES
[1] In the present case, debtor received an interest in the residence that was property of the estate, because debtor became entitled to acquire the real estate within 180 days of filing her petition by bequest, devise or inheritance. See 11 U.S.C. § 541(a)(5).
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0564n.06
No. 13-6464
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 25, 2014
RICKY EDWARDS, ) DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CSX TRANSPORTATION, INC., ) DISTRICT OF TENNESSEE
)
Defendant - Appellee. )
BEFORE: WHITE, DONALD, and O’MALLEY,Circuit Judges.
HELENE N. WHITE, Circuit Judge. CSX locomotive engineer Ricky Edwards
brought this action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq.,
and the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701, after sustaining severe injuries on
the job. The Magistrate Judge determined that Edwards’s negligence was the sole cause of his
injuries and granted CSX’s motion for summary judgment. We REVERSE and REMAND for
further proceedings.
I.
The parties consented to have a magistrate judge (MJ) decide all matters. The MJ’s
opinion granting CSX’s motion sets forth most of the pertinent background:
On May 28, 2012, . . . [plaintiff] was assigned the task of operating a train
consisting of two locomotives and perhaps 30 cars from Bostic, North Carolina to
Erwin, Tennessee. When he reported for work, he already was nauseated.
The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for the Federal Circuit,
sitting by designation.
No. 13-6464
Edwards v. CSX Transportation, Inc.
The lead locomotive, i.e., the one in front from which the engineer
operated the train, was No. 823. The train . . . had left Hamlet, North Carolina
earlier that day, manned by another crew. It was plaintiff’s responsibility, along
with the conductor, Mr. McClain, to bring the train from Bostic, North Carolina to
Erwin, Tennessee.
Locomotive No. 823 had been inspected the day before as required by 49
CFR § 229.21.[1] That report indicated that the toilet on No. 823 had no defects.
As required by 49 CFR 229.137,[2] railroad locomotives are required to be
equipped with a “sanitation compartment,” which is nothing but a closet toilet.
These toilet compartments are somewhat similar to a portable toilet often seen at
outdoor events. Waste is flushed from the toilet with a blue-colored disinfectant
liquid, all of which flows into a holding tank which is emptied later. Part 229 of
49 CFR defines “sanitary” and “unsanitary.” The definitions are complimentary,
and referring to the definition for “unsanitary” will suffice for purposes of this
opinion:
Unsanitary means having any condition in which any significant
amount of filth, trash, or human waste is present in such a manner that a
reasonable person would believe that the condition might constitute a
health hazard; or strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable concern
with respect to exposure to hazardous fumes. Such conditions include,
but are not limited to, a toilet bowl filled with human waste, soiled toilet
paper, or other products used in the toilet compartment, that are present
due to a defective toilet facility that will not flush or otherwise remove
waste; visible human waste residue on the floor or toilet seat that is
present due to a toilet that overflowed; an accumulation of soiled paper
towels or soiled toilet paper on the floor, toilet facility, or sink; an
accumulation of visible dirt or human waste on the floor, toilet facility,
or sink; and strong persistent chemical or human waste odors in the
compartment.
§ 229.5
1
49 C.F.R. § 229.21 is titled “Daily inspection” and provides:
(a) . . . each locomotive in use shall be inspected at least once during each calendar day. A written report
of the inspection shall be made. The report shall contain the name of the carrier; the initials and
number of the locomotive; the place, date and time of the inspection; a description of the non-
complying conditions disclosed by the inspection; and the signature of the employee making the
inspection. Except as provided in §§ 229.9, 229.137, and 229.139, any conditions that constitute non-
compliance with any requirement of this part shall be repaired before the locomotive is used . . . .
2
49 C.F.R. § 229.137 provides in pertinent part: “all lead locomotives in use shall be equipped with a sanitation
compartment.”
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No. 13-6464
Edwards v. CSX Transportation, Inc.
As plaintiff climbed aboard No. 823 to begin his work day, he had to walk
by the toilet compartment. The door was open, and he noticed a strong odor of
human waste and chemicals. He looked into the compartment and saw that the
bowl contained human waste, and the seat and back were splattered with urine
and blue chemical. It was so nasty, so he testified during his deposition, that he
did not want to flush the toilet without wearing rubber gloves. Other than
spraying disinfectant into the compartment, plaintiff did not do anything else, nor
did he say anything about the compartment to any other representative of the
Railroad.
Plaintiff took his seat in the cab of the locomotive and commenced his run.
Approximately half-way to Erwin[, Tennessee], he stopped his train near Poplar,
North Carolina to await the passing of another train. While waiting, plaintiff’s
nausea suddenly grew worse, and he realized he was going to quickly vomit. He
got up from his seat and went outside to the catwalk in order to vomit, disdaining
the toilet because of its nasty condition. [T]he second time he vomited he pitched
over the railing and was badly hurt.
PID 522-24. Additional pertinent background is that Locomotive 823 was inspected at 2:00 p.m.
on May 27, 2012, after which the crew that preceded Edwards and McClain took the train from
Hamlet to Bostic. The following day, Edwards and McClain reported to the Bostic yard around
10:00 a.m., and the train left Bostic around 12:15. Edwards was struck with the urge to vomit
about eight hours into his shift, around 6:00 p.m. on May 28, 2012.
Edwards’s accident resulted in an extended hospitalization and his injuries ended his
railroad career. On July 3, 2012, CSX trainmaster Buchanan visited Edwards at his home and
asked him to complete an “employee report of personal injury while on the job,” form PI-1A.
Edwards described the incident on the form as follows:
Was sitting on engine and started feeling bad, got up and went outside to throw
up. Was standing at hand rail throwing up and that is the last I remember. Fell
off the side of the engine hurting my face & back. Don’t remember nothing about
the fall.
The form asked, “Was anyone at fault?” Edwards checked “yes” and wrote, “CSX bathrm. not
cleaned.” The form asked, “Did defective tool or equipment cause accident?” Edwards checked
“yes” and wrote, “Bathrm. Not usable. Dirty. Reason for being outside.” Finally, the form
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No. 13-6464
Edwards v. CSX Transportation, Inc.
asked, “Did employee have a safe place in which to work?” Edwards checked “no” and wrote,
“Bath rm. was not usable.” PID 297. Both Buchanan and Edwards signed the form. Buchanan
later testified that his investigation of the accident led him to conclude that Edwards had not
violated any rules or regulations.
II. FELA and LIA
“[A]n avowed departure from the rules of the common law, [FELA] was a response to the
special needs of railroad workers who are daily exposed to the risks inherent in railroad work.”
Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 329 (1958) (citation omitted). FELA provides
that:
Every common carrier by railroad . . . shall be liable in damages to any person
suffering injury while he is employed by such carrier . . . 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, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track, roadbed, . . . or
other equipment.
45 U.S.C. § 51 (emphasis added). The Supreme Court recently reiterated FELA’s lessened
negligence and causation standard:
Under [FELA] the test of a jury case is simply whether the proofs justify with
reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury . . . for which damages are sought.
CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (2011) (citation and quotation marks
omitted, emphasis added). So, too, has this court. See Szekeres v. CSX Transp., Inc. (Szekeres
II), 731 F.3d 592, 597 (6th Cir. 2013) (“McBride simply reaffirmed Rogers [v. Missouri Pacific
R.R. Co., 352 U.S. 500, 506 (1957),] and the causation standard that has governed FELA cases
for over 50 years.”); see also Szekeres I, 617 F.3d 424, 429 (6th Cir. 2010); Richards v. Consol.
Rail Corp., 330 F.3d 428, 437 (6th Cir. 2003) (“Rogers [, 352 U.S. at 506,] makes clear that
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No. 13-6464
Edwards v. CSX Transportation, Inc.
where the evidence allows more than one outcome on the issue of causation, the issue should be
decided by a jury, not a judge”).
To supplement FELA and facilitate employee recovery, Congress enacted the LIA
(formerly the Boiler Inspection Act), which imposes an absolute duty on railroad carriers to
ensure their locomotives are properly maintained and safe to operate. LIA claims are actionable
under the FELA, Szekeres I, 617 F.3d at 427; that is, LIA does not confer a right of action on
injured employees, but rather, has been construed as a supplement to FELA such that proof of a
violation under LIA establishes negligence as a matter of law under FELA, Urie v. Thompson,
337 U.S. 163, 188 (1949).
The LIA provides in pertinent part:
A railroad carrier may use or allow to be used a locomotive . . . on its railroad line
only when the locomotive . . . and its parts and appurtenances –
(1) are in proper condition and safe to operate without unnecessary danger of
personal injury;
(2) have been inspected as required under this chapter and regulations prescribed
by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.
49 U.S.C. § 20701. A rail carrier can violate the LIA either by breaching the broad duty to keep
all parts and appurtenances of its locomotives in proper condition and safe to operate without
unnecessary danger of personal injury, or by failing to comply with the regulations issued by the
Federal Railroad Administration and promulgated under the LIA. See 65 Am. Jur. 2d Railroads
§ 130, Federal regulation – Locomotive Inspection Act. An employee’s contributory negligence
does not bar his recovery.3
3
See Szekeres, 617 F.3d at 427; Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 188 (6th Cir. 1993)
(citing Urie v. Thompson, 337 U.S. 163, 188-89 (1949)).
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No. 13-6464
Edwards v. CSX Transportation, Inc.
III.
During Edwards’s deposition, CSX’s counsel did not ask Edwards whether he would
have used the locomotive’s toilet facility had it been sanitary when he became ill. Following
discovery, CSX moved for summary judgment, asserting that there was no causal connection
between the alleged unsanitary locomotive toilet and Edwards’s injuries; that the sole cause of
his injuries was “his own bodily maneuver,” that is, “falling overboard [from the upper platform
of the catwalk after vomiting] on a stationary locomotive”; and that Edwards himself was
responsible for the condition of the toilet as a matter of law. In response, Edwards reiterated in
an affidavit what he previously stated on the CSX form Buchanan asked him to complete in July
2012:
As my PI-1A Form shows, the reason I went outside rather than to the indoor
toilet compartment of the locomotive on May 28, 2012 was because of the dirty
unusable, unsanitary condition of the toilet. I specifically described the condition
in my deposition. I would much rather be sick to my stomach and vomiting in a
contained inside area where I could safely bend over or get onto my knees or get
my rear end onto the floor as one would normally do at home or anywhere else
when vomiting. Also, if I became dizzy or was ill for a while, I would be able to
sit on the floor or the nearby steps and not have a risk of falling.
As I testified in my deposition, it is true that the feeling of needing to vomit came
over me quickly, but I did have time to get to the toilet if it had been sanitary and
usable and time to decide not to go to the toilet compartment given its condition
that I had seen at the start of my trip and to go out the door behind me instead.
....
If the toilet compartment had been sanitary, I would have simply gotten out of my
seat, walked quickly down three or four steps and gone to the toilet compartment
in order to get on my knees or sit down. The condition of the toilet caused and
was the reason for me to go outside instead as I told CSX on my personal injury
report form.
PID 294-95.
The MJ concluded that Edwards’s own negligence was the sole cause of his injuries:
The toilet in No. 823 was unsanitary to the point of being nasty, a
condition noted by the plaintiff when he reported to work the day of his accident.
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No. 13-6464
Edwards v. CSX Transportation, Inc.
He could have requested that the toilet be cleaned; he did not. He could have
requested that the two locomotives in his train be switched, so that he would no
longer be required to operate No. 823. He could have refused to move the train at
all; indeed, the regulations required that he not move the train until the non-
complying condition of the toilet had been remedied. Nevertheless, plaintiff
chose to keep No. 823 as the lead engine. His failure to either switch locomotives
or to keep the engine stationary until the dirty toilet compartment was cleaned
constituted negligence as a matter of law since he violated a number of the
regulations just quoted [49 C.F.R. §§ 229.5, 229.9(a), 229.29, 229.137(c)].
....
He knew about the condition a considerable amount of time before he was
overtaken by nausea, and that condition had been allowed to persist because of his
negligence.
PID 52-29/Dist. Ct. Mem. Op. 10/11/13.
IV.
We review de novo the MJ’s grant of summary judgment, viewing the facts and
inferences therefrom in a light most favorable to Edwards. Zomba Enters., Inc. v. Panorama
Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007).
The MJ correctly observed that an unsanitary toilet facility constitutes negligence per se
under LIA and that an employee’s contributory negligence is not a bar to recovery, but
improperly applied the law and usurped the jury’s function by ruling that Edwards’s own
negligence was the sole cause of his injuries. First, the MJ read into LIA a notice requirement
where none exists.4 Second, the MJ’s determination that Edwards’s “failure to either switch
locomotives or to keep the engine stationary until the dirty toilet compartment was cleaned
constituted negligence as a matter of law since he violated several regulations,” finds no support
in LIA/FELA cases; the MJ cited no authority and CSX provided none on point. The inapposite
authority CSX relied upon below included Toth v. Grand Trunk R.R., 306 F.3d 335, 351 (6th Cir.
4
Edwards so argued below. See PID 568-69 (Hrg. Tr 10/10/13); PID 427, 431, 446 (CSX Response to Edwards’
Statement of Undisputed Facts). CSX admitted below that Edwards violated no safety rules, but argued that
Edwards’s failure to report the condition of the toilet violated “common sense” and Edwards “certainly violated
CSX rules.” CSX gave no explanation of what rules Edwards violated. PID 426 (CSX Reply to Pl.’s Resp. to Mo.
for Summ. J.); PID 446 (CSX Response to Pl.’s Additional Facts).
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2002), modified on other grounds in Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d
776 (6th Cir. 2003). We held in Toth that sufficient evidence warranted the district court’s sole-
proximate-cause jury instruction:
We conclude that the defendant introduced sufficient evidence to warrant the
sole-proximate-cause instruction. The defense argues, based in part upon
plaintiff’s conflicting answers during cross-examination, that the accident could
have resulted from the plaintiff’s negligence in improperly gripping the operating
lever. GTW also cites safety rules . . . which require an employee to grip the
extreme end of an operating lever handle at arm’s length. GTW claims that the
accident could not have occurred as plaintiff describes if he had been observing
this rule.
Toth, 306 F.3d at 351 (emphasis added). Toth is distinguishable from the instant case because
CSX does not claim that Edwards caused the unsanitary toilet condition or that cleaning the toilet
was among his job duties, and CSX admitted that Edwards did not violate any safety rules. See
supra n.4.
More on point are cases addressing the effect an employee’s knowledge of the defective
condition has on causation; those cases hold that the employee’s contributory negligence and the
railroad’s violation of a regulation are concurring proximate causes. See Spokane & Inland
Empire R. Co. v. Campbell, 241 U.S. 497, 510 (1916) (“It is too plain for argument that under
this legislation the violation of the safety appliance act need not be the sole efficient cause, in
order that an action may lie. . . . where, as in this case, plaintiff’s contributory negligence and
defendant’s violation of a provision of the safety appliance are concurring proximate causes, it is
plain that the employers’ liability act requires the former to be disregarded”); McCarthy v. Penn.
R. Co., 156 F.2d 877, 881 (7th Cir. 1946) (disapproving the district court’s sole-proximate-cause
jury instruction where “there was no evidence of any independent acts of negligence by the
decedent that were the sole cause of the accident and his death. . . . This [sole-proximate-cause
jury instruction] was bound to confuse and mislead the jury into believing that that concurring
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No. 13-6464
Edwards v. CSX Transportation, Inc.
acts of the decedent in continuing to use the defective locomotive after he knew it was defective,
and not reporting it, might be considered as acts of negligence, for which the decedent might be
charged with sole liability for the accident. The giving of such instruction under such
circumstances was error.”); Yentzer v. Penn. R. Co., 239 F.2d 785 (3d Cir. 1957) (upholding jury
verdict in the plaintiff’s favor where malfunction in cab signal system caused failure to warn of
another train ahead, rejecting the railroad’s contention that the plaintiff could not recover
because, on observing inconsistent signals, he failed to stop the train in accordance with railroad
regulations).
The MJ’s determination that Edwards’s knowledge of the unsanitary condition of the
toilet and his failure to report it barred his recovery was a misapplication of the LIA/FELA; the
determination whether the unsanitary toilet played any part in producing Edwards’s injuries was
for the factfinder.
CSX argued in Szekeres I, as it does here, that even if the plaintiff had established a
defect with the toilet facility, the causal connection between the alleged defect and his injury was
too tenuous to impose absolute liability on CSX. 617 F.3d at 429. This court rejected that
argument:
CSX maintains that although Szekeres could have urinated anywhere in the rural
area and admitted that his job duties did not require that he walk up the incline, he
chose to walk up a ‘real soft’ muddy incline to get to a more private area.
On the question of causation, courts ‘focus on whether a reasonable jury
could conclude that the defective appliance played any part, even the slightest, in
bringing about the plaintiff’s injury.’ Richards, 330 F.3d at 437 (emphasis in
original). Although this is a close question, we conclude that there is a sufficient
factual basis for a reasonable jury to conclude that Szekeres’s injury ‘was within
the risk created by’ the unsanitary toilet facility. With the toilet facility being
‘unusable,’ Szekeres had no available indoor facility and was left to relieve
himself outside. As . . . Szekeres’s expert stated in his affidavit, railroad
employees typically ‘walk [] up the incline to seek privacy to relieve
[themselves]’ when other ‘toilet facilities are unavailable.’ Szekeres testified that
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Edwards v. CSX Transportation, Inc.
he slipped from accumulated mud on his boots from both the area behind the
switch and from climbing the embankment, so there is a direct tie between his
inability to use the onboard toilet facility and his accident.
We thus conclude that the district court improperly granted summary
judgment on Szekeres’s LIA and C.F.R. claim.
Szekeres I, 617 F.3d at 430. As in Szekeres I, the MJ here usurped the jury’s role by ruling on
causation as a matter of law: “if as a result of a defective appliance a plaintiff is required to take
certain actions and he . . . is injured while taking those actions, the issue of causation generally
should be submitted to a jury.” 617 F.3d at 429.
As this court observed in Keith v. Wheeling & L.E. Ry Co., “the authority of courts by
direction of a verdict, to withdraw from consideration of a jury matter bearing upon the question
of the defendant’s negligence and its proximate relation to the injury is now very restricted
indeed.” 160 F.2d 654, 658 (6th Cir. 1947). This is not a case where causation is so attenuated
that taking the issue from the jury is warranted.
Admittedly[,] scenarios will arise where the connection between the defective
appliance and the plaintiff’s injuries become[s] too attenuated to conclude that the
defect caused the injury. Take for example the following scenario: a train goes
into an emergency stop due to defective air brakes; and an employee, who has
exited the train and is standing next to it merely waiting for the brakes to be
repaired, is attacked by a rabid dog. Or the same employee waiting for the defect
to be repaired decides to stretch his or her legs, goes for a walk, falls, and is
injured. A court reasonably could find no causation as a matter of law in these
situations.
Richards, 330 F.3d at 437 n.5. Here, the unsanitary condition of the toilet facility made it
necessary for Edwards to find an alternative accommodation that placed him in greater danger of
injury. The MJ improperly determined that Edwards’s negligence was the sole proximate cause
of his injuries and barred recovery.
For these reasons, we REVERSE the grant of summary judgment to CSX and REMAND
for proceedings consistent with this opinion.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-09-00049-CV
_____________________
TRIESTE INVESTMENTS, L.L.P., Appellant
V.
WELDON W. ALDERS, Appellees
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV 73473
MEMORANDUM OPINION
The appellant, Trieste Investments, L.L.P., filed a motion to dismiss this appeal. The
motion is voluntarily made by the appellant prior to any decision of this Court. See Tex. R.
App. P. 42.1(a)(1). No other party filed notice of appeal. We grant the motion and dismiss
the appeal.
APPEAL DISMISSED.
____________________________
DAVID GAULTNEY
Justice
Opinion Delivered July 16, 2009
Before McKeithen, C.J., Gaultney and Horton, JJ.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1401
PATSY HOLBROOK, Widow of William Holbrook,
Deceased,
Petitioner,
versus
EASTERN ASSOCIATED COAL COMPANY; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(98-0814-BLA)
Submitted: September 14, 1999 Decided: September 27, 1999
Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West Vir-
ginia, for Petitioner. Mark E. Solomons, Laura Metcoff Klaus,
ARTER & HADDEN, L.L.P., Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Patsy Holbrook seeks review of the Benefits Review Board’s
decision and order affirming the administrative law judge’s denial
of black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West
1986 & Supp. 1999). Our review of the record discloses that the
Board’s decision is based upon substantial evidence and is without
reversible error. Accordingly, we affirm on the reasoning of the
Board. See Holbrook v. Eastern Associated Coal Co., BRB No. 98-
0814-BLA, (B.R.B. Mar. 12, 1999). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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752 N.W.2d 35 (2008)
STATE
v.
HINNERS.
No. 07-0063.
Court of Appeals of Iowa.
April 9, 2008.
Decision without published opinion. Sentence Vacated in part and Remanded.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6291
TERRY WENDELL COPELAND,
Plaintiff - Appellant,
versus
ROBERT J. HURLEY, Forensic Scientist; STEVEN
E. HARRIS; NANCY S. FORSTER; ROBERT F. BARRY;
MICHAEL R. BRAUDES; SCOTT WHITNEY; THOMAS A.
KENNEDY; CAROL E. CHANCE; HOWARD MARGULIES;
KEVIN P. CLARK; JAMES W. HAGIN, JR., Detective
Sergeant; RONALD A. KARASIC; JOHN MERTEN,
F.B.I. Agent; RONALD LAMARTINA, Detective
Sergeant,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-05-
10-AMD)
Submitted: June 23, 2005 Decided: June 30, 2005
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Terry Wendell Copeland, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry Wendell Copeland appeals the district court’s order
denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have
reviewed the record and find no reversible error. Accordingly, we
affirm for the reasons stated by the district court. See
Copeland v. Hurley, No. CA-05-10-AMD (D. Md. Jan. 7, 2005). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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873 P.2d 413 (1994)
127 Or. App. 511
Thomas TENOLD, Respondent,
v.
WEYERHAEUSER COMPANY, a corporation, and Larry Hoff, Appellants.
89-2198 CV; CA A72816.
Court of Appeals of Oregon, In Banc.[*]
Argued and Submitted April 19, 1993.
Resubmitted November 3, 1993.
Decided April 20, 1994.
*415 Jeffrey M. Batchelor, Portland, argued the cause for appellant Weyerhaeuser Co. Alan M. Scott argued the cause for appellant Larry Hoff. With them on the briefs were James H. Clarke and Lane, Powell, Spears, Lubersky, and Galton, Scott & Colett.
George W. Kelly, Eugene, argued the cause and filed the brief for respondent.
Resubmitted In Banc November 3, 1993.
DURHAM, Judge Pro Tem.
Defendants appeal a jury verdict entered against them for $2,552,566. They make multiple assignments of error. We affirm.
Plaintiff filed three claims against defendant Weyerhaeuser Company (Weyerhaeuser): malicious prosecution, intentional infliction of severe emotional distress and defamation. The jury found for plaintiff and awarded $900,000 noneconomic damages, $2,566 economic damages and $1,500,000 punitive damages against Weyerhaeuser on those claims. The jury found defendant Hoff liable on plaintiff's claims of intentional infliction of severe emotional distress and defamation and awarded $100,000 noneconomic damages and $50,000 punitive damages against Hoff.
In its first two assignments of error,[1] Weyerhaeuser argues that the trial court erred in denying its motions to withdraw from the jury the issue of its vicarious liability for Klamath County Sheriff Deputy Wilson's conduct. We review the evidence in the light most favorable to plaintiff to determine if there was sufficient evidence to submit the issue to the jury. Turman v. Central Billing Bureau, Inc., 279 Or. 443, 445, 568 P.2d 1382 (1977).
Weyerhaeuser owns and operates a railroad as part of its business in Klamath County. Plaintiff worked for Weyerhaeuser for 12 years as a member of a section crew on the railroad. Defendant Hoff is a security supervisor, whose duties include investigating thefts of company property. Weyerhaeuser and the Klamath County sheriff's office entered into a contract under which Klamath County provided "Forestry Patrol and field investigation on Weyerhaeuser's property." Klamath County Sheriff Deputy Wilson carried out the county's responsibilities under the contract. Weyerhaeuser also hired Green, a private security guard, to live on its property and to provide 24-hour security.
On July 6, 1988, plaintiff asked Hoff if he could "get some railroad ties." Hoff told him it was "no problem," and instructed him to inquire of the company how much they would cost. The next day, plaintiff asked Hoff if he could use some company equipment to pick up the ties, and Hoff said "that would be fine." On July 15, 1988, Green informed Hoff that plaintiff had delivered railroad ties to a cattle ranch. Hoff reported to Walt Barnes, his immediate supervisor, and to Steve Kirk, a security supervisor, that he suspected that plaintiff had stolen the ties delivered to the ranch. Kirk then contacted Wilson and asked him to investigate. While Wilson was interviewing the owner of the ranch, he told the owner that plaintiff had stolen 600 ties and sold them to others "around the country." While being interviewed by Hoff, two of plaintiff's co-workers said that they had helped plaintiff load some ties, and that plaintiff had told them that he intended to pay for the ties. Hoff did not tell his supervisor or Wilson about the information.
Shortly after his investigation began, Wilson went to plaintiff's home and told him that "it didn't look good" and that if he would admit guilt, he would not be arrested in front of his family. Plaintiff claimed that he had permission to take the ties. On August 1, plaintiff, Hoff, Barnes and a union representative met. Plaintiff admitted taking some ties but repeatedly maintained that Hoff had given him permission. After the meeting, Barnes met with his supervisor, McClure, and told him that plaintiff "had taken ties, and that he really offered no excuses or reasons for taking the ties without paying for them." Based on that information, Weyerhaeuser terminated plaintiff's employment.
At about the same time, Wilson issued plaintiff a criminal citation for theft in the second degree, and Kirk asked the district attorney to prosecute plaintiff. Wilson's report to the district attorney did not disclose *416 plaintiff's contention that Hoff had given him permission to take the ties with the understanding that he would pay for them at a later time. Plaintiff was indicted by the Klamath County grand jury. Subsequently, the district attorney moved to dismiss the indictment after learning that some of the ties that plaintiff had been accused of stealing did not belong to Weyerhaeuser, and that plaintiff had paid for them.
There was also evidence in the record that Hoff and other employees at Weyerhaeuser had ill will toward plaintiff. An employee testified that Hoff told him, sometime in 1986, that "there's more than one way to get rid of [plaintiff]." Kirk testified that a Weyerhaeuser manager who was involved in the investigation said, "I don't care what the court system does or anything else, that II will have the man's job." Kirk also recalled in his testimony that Hoff had come to him after the charges against plaintiff were dropped and said that he had caught plaintiff in possession of marijuana a couple of years ago, that plaintiff was a drug addict, and that he wanted plaintiff "gone." Hoff's foster son testified that he overheard Hoff tell his wife that plaintiff was a drug user who had a methamphetamine lab in his house, and that he was always drunk at work. Plaintiff denied those allegations at trial.
Weyerhaeuser asserts that the trial court erred when it submitted the issue to the jury of whether Wilson was "its agent when he engaged in the conduct the jury ultimately found to be tortious." Weyerhaeuser's vicarious liability for Wilson's conduct depends on whether Wilson was an "employee" of Weyerhaeuser and committed the alleged tortious acts within the scope of his employment.[2]Stanfield v. Laccoarce, 284 Or. 651, 654, 588 P.2d 1271 (1978). Although the parties agree that Wilson was an employee of the county, in addition, he could be a "loaned" employee of Weyerhaeuser, if Weyerhaeuser had the right to exercise control over the manner and means by which Wilson performed his duties. See Penrose v. Mitchell Bros., 246 Or. 507, 512, 426 P.2d 861 (1967); Nordling v. Johnston, 205 Or. 315, 332, 283 P.2d 994, 287 P.2d 420 (1955); Nichols v. Baggarley, 79 Or.App. 505, 508, 719 P.2d 914 (1986).
The contract between Klamath County and Weyerhaeuser says:
"[Weyerhaeuser] may increase, decrease or alter work to be done and materials furnished hereunder, and any changes occasioned thereby in amounts to be paid hereunder shall be agreed to in writing prior to performance of such work or furnishing such materials. * * * All work or materials furnished hereunder shall at all times be subject to the inspection and approval of [Weyerhaeuser]."
That language could be construed to indicate that the parties intended that Wilson was the employee of Klamath County only and Weyerhaeuser is not liable vicariously for Wilson's conduct, as defendants argue. However, because the provision says that Weyerhaeuser has the right to "increase, decrease or alter the work to be done and the materials furnished" and the right to inspect and approve the work, it is also subject to the interpretation that Weyerhaeuser had the right to control the manner and means that Wilson used to accomplish the results sought by Weyerhaeuser. Those alternative interpretations demonstrate the ambiguity in the agreement, and the meaning of an ambiguous contract is an issue to be decided by the trier of fact. David M. Scott Const. v. Roush, 273 Or. 877, 880, 544 P.2d 162 (1975).
Also, what the parties intended under the contract often is discernible by their conduct in carrying out the terms of the contract. See Tarlow v. Arntson, 264 Or. 294, 300, 505 P.2d 338 (1973). Wilson testified that Kirk asked him to investigate and told him who to contact. Wilson also testified that he kept Kirk updated on the progress of his investigation and gave him a copy of his report. Kirk testified that Weyerhaeuser had "control" of the investigation and that, whenever it had a problem to investigate, the deputy was at his "disposal." There was also *417 a handwritten statement by Wilson that said that the "reason [the criminal prosecution] was dropped was per Steve Kirk's decision." We conclude that from the entire evidentiary record, the jury could have found that Weyerhaeuser had the right of control over Wilson's conduct such as to constitute a master-servant relationship. See Meskimen v. Larry Angell Salvage Company, 286 Or. 87, 592 P.2d 1014 (1979).
In their third and fourth assignments of error, both defendants contend that the trial court erred in denying their motions for directed verdict on plaintiff's claims for intentional infliction of severe emotional distress. They argue that plaintiff did not present any evidence to prove that defendants' conduct was an extraordinary transgression of the bounds of socially tolerable conduct. To prove a claim for intentional infliction of severe emotional distress, plaintiff must prove that:
"(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct." Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000 (1989).
It is a question of law whether, viewing the evidence in the light most favorable to plaintiff, defendants' conduct constitutes "extraordinary conduct which a reasonable jury could find beyond the farthest reaches of socially tolerable behavior." Hall v. The May Dept. Stores, 292 Or. 131, 137, 637 P.2d 126 (1981).
In Hall v. The May Dept. Stores, supra, the plaintiff was suspected of stealing money and was interrogated based on "scant" evidence. The court said that
"the jury could find that [the security officer] knew that he did not have `proof' of plaintiff's guilt, that he knew he did not have evidence sufficient to have her arrested, that he nevertheless told her that he had sufficient proof to have her arrested and charged with embezzlement, and that he shouted at plaintiff and pounded the desk, referring to sheets of paper which he did not explain to her." 292 Or. at 141, 637 P.2d 126.
From this evidence, the court held that the jury could infer that the security officer was engaging in a deliberate and systematic tactic to threaten and frighten the plaintiff into a confession and to make her an example to other employees. The court said that,
"if a jury, drawing all possible inferences favorable to plaintiff, found an intentionally oppressive method of browbeating an employee into a confession, it could also decide that this method went beyond the outer bounds of socially tolerable employer practices." 292 Or. at 142, 637 P.2d 126.
Furthermore, in Woods v. First American Title Ins. Co., 102 Or.App. 343, 348, 794 P.2d 454 (1990), rev. den. 311 Or. 151, 806 P.2d 129 (1991), we said that
"[f]alsely accusing someone of being a liar, a thief and a fraud before a third person, knowing that the accusations are not true, and persuading a police officer to harass the accused person on the basis of those assertions, constitute more than every-day rude behavior."
We concluded that the plaintiff's complaint stated a claim for intentional infliction of severe emotional distress.
Here, the crux of plaintiff's claims for intentional infliction of severe emotional distress is that employees at Weyerhaeuser intentionally and in bad faith made accusations that plaintiff had stolen the ties, despite having knowledge that he was given permission to take them and that he intended to pay for them. The jury could infer that Hoff knew that plaintiff had permission to take the ties, but that he, along with other Weyerhaeuser employees, triggered an unfounded criminal investigation to get plaintiff fired, to defame him, and to cause him to be prosecuted by the district attorney. We hold that a jury reasonably could find that defendants' conduct exceeded the bounds of socially tolerable conduct under the circumstances. Therefore, the trial court did not err in denying defendants' motion for directed verdict on plaintiff's claims for intentional infliction of severe emotional distress.
*418 Next, Weyerhaeuser assigns as error the trial court's denial of its motion to modify the judgment to reduce the amount awarded to plaintiff for noneconomic damages to $500,000 in accordance with ORS 18.560. The jury awarded plaintiff a total of $900,000 in noneconomic damages on his three claims against Weyerhaeuser.[3] Plaintiff argues that, although ORS 18.560 limits his recovery for noneconomic damages to $500,000 per claim, he may recover more than $500,000 in noneconomic damages, because he prevailed on more than one claim. Weyerhaeuser argues that the limitation on damages in the statute means that the total award of noneconomic damages for all tort claims arising out of the same operative facts cannot be more than $500,000.
In construing statutes, our task is to discern the intent of the legislature. ORS 174.010; Mattiza v. Foster, 311 Or. 1, 4, 803 P.2d 723 (1990). We first look to the text of the statute to ascertain "what is * * * contained therein, not to insert what has been omitted, or to omit what has been inserted." ORS 174.010; Sanders v. Oregon Pacific States Ins. Co., 314 Or. 521, 527, 840 P.2d 87 (1992). If the meaning of the statute is not apparent on its face, we look to the statute's context, and if that is not dispositive, then we examine its legislative history. PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993).
ORS 18.560 provides, in part:
"Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person * * *, the amount awarded for noneconomic damages shall not exceed $500,000." (Emphasis supplied.)
The language of ORS 18.560 limits noneconomic damages to $500,000 in any "civil action." We cannot ascribe a plain meaning to the phrase "civil action," because "action" has been interpreted in a variety of ways. See East Side Mill Co. v. SE Portland Co., 155 Or. 367, 372, 64 P.2d 625 (1937). Likewise, the statute's context is not dispositive and we find no express legislative history to indicate what the legislature meant by the phrase.[4] In the absence of such evidence, we will consider the objective of the statute to determine the legislative intent. See State v. Parker, 299 Or. 534, 540, 704 P.2d 1144 (1985).
ORS 18.560 was enacted as part of the 1987 "Tort Reform Act." OrLaws 1987, ch 774, § 6. According to the legislative history, the purpose of imposing a cap on noneconomic damages was to stabilize insurance premiums and to decrease the costs associated with tort litigation. Minutes, House Judiciary Subcommittee, April 29, 1987, pp 11, 15. In the light of that purpose, we are persuaded that the modern definition of an "action," adopted by the Supreme Court in Dean v. Exotic Veneers, Inc., 271 Or. 188, 193, 531 P.2d 266 (1975), best fulfills the objective of the statute:
"The most convenient [definition] is to consider a cause of action as an aggregate of operative facts giving rise to a right or rights termed `right' or `rights of action' which will be enforced by the courts. The number and extent of operative facts included within a single cause of action are to be determined pragmatically, mainly by considerations of practical trial convenience." (Emphasis supplied.)
The relevant factors for determining what connotes an "aggregate of operative facts" are "their relatedness in time, space, origin, or motivation, and whether, taken together they form a convenient unit for trial purposes." Troutman v. Erlandson, 287 Or. *419 187, 206, 598 P.2d 1211 (1979). In this case, plaintiff's factual allegations about Weyerhaeuser's course of conduct are an aggregate of operative facts that give rise to several "rights of action." We conclude that the statute directs the trial court to reduce the noneconomic damage award to $500,000.
However, plaintiff contends that ORS 18.560 violates Article VII (amended), section 3, of the Oregon Constitution, which provides, in part:
"In actions at law, where the value in controversy shall exceed $200, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict."
"Reexamine" means to subject to "a second or new examination." Websters Third New International Dictionary 1907 (unabridged 1976). We cannot discern from the text and context of Article VII (amended), section 3, whether a court "re-examines" a "fact tried by a jury" when it reduces a damage award that exceeds the statutory limit. See Comeaux v. Water Wonderland Improvement Dist., 315 Or. 562, 570, 847 P.2d 841 (1993). To resolve that question, we look for guidance to the circumstances surrounding the adoption of Article VII (amended), section 3. See PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611, 859 P.2d 1143.
Van Lom v. Schneiderman, 187 Or. 89, 98, 210 P.2d 461 (1949), discusses the evolution of Article VII (amended), section 3. The framers of the United States Constitution preserved the right of trial by jury, as it was know at common law, in the Seventh Amendment, which provides:
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
That amendment protected the jury trial right as it had developed in England. At the time of the adoption of the Seventh Amendment, English common law reserved to the jury the determination of the amount of damages. 3 W. Blackstone, Commentaries 396. However, the English system authorized the court, in a damage action, to grant a new trial if the judge believed that the verdict awarded excessive damages. Van Lom says that
"the federal judges, like the English judges, have always exercised the prerogative of granting a new trial when the verdict was clearly against the weight of the evidence, whether it be because excessive damages were awarded or for any other reason." 187 Or. at 112, 210 P.2d 461.
Oregon preserved that federal jury trial right when it adopted Article I, section 17, as part of its Bill of Rights.[5] That section provides:
"In all civil cases, the right of Trial by Jury shall remain inviolate."
Before 1910, Oregon also retained the tradition of allowing courts to set aside "excessive" verdicts. Van Lom v. Schneiderman, supra, 187 Or. at 105, 210 P.2d 461. For example, OCLA, § 5-802, authorized a new trial for:
"(5) Excessive damages, appearing to have been given under the influence of passion or prejudice; (6) Insufficiency of the evidence to justify the verdict or other decision[.]"
See 187 Or at 105.
In 1910, the people of Oregon adopted Article VII (amended), section 3. The amendment repeats the substance of Article I, section 17, but also creates a limitation on the authority of an Oregon court to reexamine a jury's determination of any fact, through the proscription: "no fact tried by a *420 jury shall be otherwise re-examined in any court of this State." Buchanan v. Lewis A. Hicks Co., 66 Or. 503, 510, 133 P. 780, 134 P. 1191 (1913), describes the problem that the amendment was intended to correct:
"Pursuant to the provisions of that statute [Lord's Oregon Laws, § 174] it had been the practice of many trial courts in Oregon, prior to the amendment of the organic law * * * to set aside judgments and grant new trials, when, from a consideration of all the evidence given at the trial of an action, it was believed the verdict was excessive. In order to inhibit such practice and to uphold verdicts, the Constitution was amended so as to preclude a court from re-examining any fact that had been tried by a jury, when the verdict returned was based on any legal evidence * * *."
In Van Lom v. Schneiderman, supra, 187 Or. at 95, 210 P.2d 461, the court said:
"This last clause forbids re-examination of a fact found by a jury otherwise than by another jury * * *, and is transgressed every time that a court undertakes to revise or correct a jury's finding of fact (unless this be done by the Supreme Court where there is error in the record * * *). All that the court may do, so far as the facts are concerned, is to examine the record to determine whether it `can affirmatively say there is no evidence to support the verdict.'"
The Supreme Court has held that the amendment was intended to prohibit courts from deciding that a jury's factual determination of the amount of damages is improper when measured against a statutory standard, such as "excessive," and nullifying the verdict.
"The purpose of this amendment [Article VII, section 3] was to prohibit courts from setting aside or modifying judgments founded upon verdicts of juries, where there is no prejudicial error in the record. In this case the jury was properly instructed, and there is no assignment of error except as to the amount of the verdict. Under such circumstances, it was for the jury only to fix the amount of plaintiff's damages, which it did by a unanimous verdict.
"* * * * *
"Although in the opinion of this court the amount of damages awarded might be deemed excessive, we cannot affirmatively say that there is no evidence to support it. Under the record in the case, this court is powerless to grant relief." Malpica v. Cannery Supply Co., 95 Or. 242, 247, 187 P. 596 (1920).
Malpica v. Cannery Supply Co., supra, is but one of many cases that hold that Article VII (amended), section 3, is a limitation on the court's power to set aside or modify a jury's factual determination of damages, or a judgment that embodies that determination, following a fair trial. In Sigel v. Portland Ry. L. & P. Co., 67 Or. 285, 291, 135 P. 866 (1913), the court held that, after the plaintiff presented the evidence of her injury,
"[i]t therefore became the duty of the jury to determine the amount of her damages. * * * The judgment on the verdict could not be set aside without the re-examination of a question of fact which had been tried by a jury upon legal evidence and under proper instructions as to the law."[6]
Roach v. Mead, 301 Or. 383, 385, 722 P.2d 1229 (1986), states:
"In Shepler v. Weyerhaeuser Company, 279 Or 477, 484, 569 P2d 1040 (1977), which concerned a jury verdict for plaintiff in a negligence action, we defined our scope of review in civil actions at law:
"`* * * Since the verdict was for plaintiff, we could not find error * * * unless we could affirmatively say there is no evidence to support the verdict. (Oregon Constitution, Amended Art. VII, § 3.)'" *421 The Supreme Court has applied that limitation on appellate review authority since the earliest cases construing Article VII (amended), section 3.
"[T]he Supreme Court, on appeal, is powerless to re-examine any fact tried by a jury, unless it, like the lower court, in passing upon a motion for a new trial, can affirmatively say there is no evidence to support the verdict. * * *
"[T]he right, upon appeal, to correct a judgment rests upon an error of law committed by the trial court and not upon the re-examination of any fact tried by a jury, except in cases where the Supreme Court can affirmatively say there is no evidence to support the verdict." Buchanan v. Lewis A. Hicks Co., supra, 66 Or. at 511, 133 P. 780, 134 P. 1191.
Sullivan v. Wakefield, 65 Or. 528, 535, 133 P. 641 (1913), says:
"Under this section of the Constitution, a court cannot legally set aside the findings of the jury, where there has been no error of law, without affirmatively finding that there was no evidence to support the verdict." (Emphasis in original.)
In Love v. Chambers Lumber Co., 64 Or. 129, 133, 129 P. 492 (1913), the court said:
"Where there is evidence to support a verdict, and the facts have been submitted to a jury under proper instructions, we are precluded from disturbing such verdict. Article VII, Section 3, of the constitution as amended November 8, 1910 * * *."
Similarly, the court said in State v. Hill, 63 Or. 451, 459, 128 P. 444 (1912):
"Under the recent amendment to our constitution (Article VII, section 3), if there is any evidence to support the verdict, this court cannot disturb it. The jury are the exclusive judges of all questions of fact."
ORS 18.560 reinstitutes the practice of courts reducing excessive jury awards, except that it substitutes a statutory monetary standard, $500,000, for statutory criteria controlling judicial discretion (e.g., "excessive damages," "passion or prejudice," and "insufficiency of the evidence"). It requires the court to apply the monetary standard in every case, whether or not the evidence supports the jury's higher damage award. Article VII (amended), section 3, was designed to prevent that practice, because the people chose to make jurors the exclusive judges of the facts regarding the extent of a plaintiff's damages. We have examined the context of the adoption of Article VII (amended), section 3, and the problem that it sought to remedy. From our examination, we conclude that a jury's verdict on damages, which is supported by the evidence, is a "fact tried by a jury" under that amendment, and that ORS 18.560 violates that amendment, because it compels the court to reexamine the verdict by requiring the court to nullify the jury's factual determination to the extent that it exceeds the legislature's damage cap.
Weyerhaeuser argues that its motion did not threaten any interference with the jury's factual determination on damages because ORS 18.560 operates as a limitation after the jury makes its award.[7] We give the same response to that argument as the Washington Supreme Court gave to it in Sofie v. Fibreboard Corp., 112 Wash.2d 636, 655, 771 P.2d 711, 780 P.2d 260 (1989):[8]
*422 "Respondents also contend that the damages limit affects only the judgment as entered by the court, not the jury's finding of fact. This argument ignores the constitutional magnitude of the jury's fact-finding province, including its role to determine damages. Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. This court will not construe constitutional rights in such a manner. As we once stated:
"`The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name * * *. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding. State v. Strasburg, 60 Wash. 106, 116, 110 P. 1020 (1910), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L. Ed. 356 (1866)'"
Weyerhaeuser also contends that, if the statute compels a reexamination of a fact found by the jury, courts are similarly barred from applying the statutes that govern contributory negligence, ORS 18.470,[9] and contribution, ORS 18.455.[10] Those statutes are not analogous because, under them, the court gives effect to the jury's findings on damages. Under ORS 18.470, the court carries out the jury's findings on the amount of the plaintiff's damages and the plaintiff's proportionate fault. Under ORS 18.455, the court reduces the damage award by the amount that the plaintiff has already recovered from a co-defendant to ensure that the plaintiff receives only the amount of damages found by the jury. In contrast, ORS 18.560 directs the court to nullify the jury's verdict on damages to the extent that the verdict exceeds the amount that the legislature has determined is a fair award in all cases, regardless of the jury's contrary determination from the evidence in a particular case.
Weyerhaeuser's motion invited the trial court to set aside the jury's verdict, because it was too large when measured by the damage cap in ORS 18.560. Article VII (amended), section 3, forbids the court to reexamine the verdict unless no evidence supports it. Because evidence in the record supported the verdict, the court correctly refused to set it aside.[11]
*423 Defendants' remaining assignments of error challenge the jury's punitive damages award. They assert that the award was excessive and, therefore, violated their rights under Article I, section 16, of the Oregon Constitution, the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.[12] They assign as error the denial of their motion for a new trial on that basis. ORCP 64B. In Oberg v. Honda Motor Co., 316 Or. 263, 275, 851 P.2d 1084 (1993), cert. granted ___ U.S. ___, 114 S. Ct. 751, 127 L. Ed. 2d 69 (1994), the Supreme Court held that Article I, section 16, applies only to criminal cases, and that the award in that case did not violate the Due Process Clause under the holding in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).[13] Similarly, Article I, section 16, does not apply in this case and the punitive damages award does not violate defendants' due process rights in the light of the court's instruction that outlined objective criteria on which the jury was required to base its decision,[14] and because of the availability of post-verdict review.
Regarding the Eighth Amendment, the United States Supreme Court held in Browning-Ferris v. Kelco Disposal, 492 U.S. 257, 264, 109 S. Ct. 2909, 2914, 106 L. Ed. 2d 219 (1989), that the clause does not apply to awards of punitive damages in cases between private parties "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." The Court left open the question we must answer in this case: whether the amendment applies to a civil action when the government has a right to share in the award. In reviewing the purpose and the history of the Eighth Amendment, it said that the framers were concerned with "the potential for governmental abuse of its `prosecutorial' power" and that the Excessive Fines Clause was "intended to limit only those fines directly imposed by, and payable to, the government." 492 U.S. at 266, 268, 109 S.Ct. at 2915, 2916. (Emphasis supplied.) Furthermore, it said that it
"has never held, or even intimated, that the Eighth Amendment serves as a check on the power of a jury to award damages in a civil case. Rather, our concerns in applying the Eighth Amendment have been with the criminal process and with direct actions initiated by government to inflict punishment. Awards of punitive damages do not implicate these concerns." 492 U.S. at 259, 109 S.Ct. at 2912. (Emphasis supplied.)
*424 Under ORS 18.540,[15] the government becomes a beneficiary of a portion of a punitive damages award after a verdict has been entered. In this case, a private party brought an action against defendants, and the jury directly imposed the judgment against defendants to punish and to deter future misconduct. The government of Oregon did not initiate this action. Because the purpose of the Eighth Amendment would not be furthered if applied under the circumstances, we reject defendants' arguments. The trial court did not err in denying their motion for a new trial.
Affirmed.
EDMONDS Judge, concurring in part; dissenting in part.
I concur in the majority's opinion, except for the portion that holds that the limitation on noneconomic damages in ORS 18.560 is unconstitutional. The majority says that ORS 18.560 violates the prohibition in Article VII (amended), section 3, against the reexamination of a fact "tried by a jury," and thus, it invalidates the major component of the Oregon Tort Reform Law enacted in 1987. It rejects Weyerhaeuser's argument that the statute does not interfere with the jury's factual determination because the statute operates as a legal limitation after the jury makes its award on the basis of the reasoning of the court in Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 780 P.2d 260 (1989). For the reasons that follow, the majority's reliance on that reasoning is ill-placed, and it errs when it declares the statute to be unconstitutional under section 3.
Sofie v. Fibreboard, supra, is about Article I, section 21, of the Washington Constitution, which provides that "the right of trial by jury shall remain inviolate."[1] Of course, Article VII (amended), section 3, has entirely different language. The Sofie court examined the right to trial by jury as it existed in Washington at the time of section 21's adoption in 1889. The court was persuaded by the decision in Baker v. Prewitt, 3 Wash.Terr. 595, 19 P. 149 (1888):
"Baker's holding provides clear evidence that the jury's fact-finding function included the determination of damages. This evidence can only lead to the conclusion that our constitution, in article 1, section 21, protects the jury's role to determine damages." Sofie v. Fibreboard Corp., supra, 112 Wash.2d at 646, 771 P.2d 711.
This court's adoption of the Sofie court's reasoning without regard to the discrete language *425 and history of section 3 constitutes a "nonanalysis" of the issue. Moreover, as will be demonstrated later, the Washington court's construction of section 21 is inconsistent with our Supreme Court's construction of Article I, section 17, of the Oregon Constitution, although the language of the provisions is identical. Finally, the Sofie court's reasoning is flawed because it fails to recognize the difference between the jury's fact finding process and the imposition of a rule of law by a trial court subsequent to the jury's factual determination.
A proper analysis begins with the understanding that ORS 18.560 is presumptively constitutional, and that we cannot declare a law that the legislature has passed in the best interests of all of the citizens of Oregon unconstitutional except when the unconstitutionality is clearly shown. See Bowden v. Davis et al, 205 Or. 421, 289 P.2d 1100 (1955). The first step of the analysis is to examine the language of section 3. It is presumed that the language used in section 3 is sufficiently precise to convey the intent of its framers.
"To find the thought a given [constitutional provision] expresses, the first resort in all cases is to the natural signification of the words used * * *. If thus regarded the words embody a definite meaning, * * * there is no room for construction." Monaghan v. School District No. 1, Clackamas County, 211 Or. 360, 367, 315 P.2d 797 (1957).
The majority says that "`reexamine' means to subject to a `second or new examination,' " but that it cannot discern "whether a court `re-examines' a `fact tried by a jury' when it reduces a damage award that exceeds the statutory limit." 127 Or.App. at 520, 873 P.2d at 418. I disagree, because the meaning of section 3 is plain from the language of the provision. "Facts are actualities." See Churchill v. Meade, 92 Or. 626, 636, 182 P. 368 (1919). A determination of an ultimate fact is a determination of what took place based on the underlying evidentiary facts and the inferences drawn therefrom. See Maeder Steel Products Co. v. Zanello, 109 Or. 562, 570, 220 P. 155 (1924). In contrast, the imposition of a rule of law by a court arises from a different source; from the mandate of a constitutional provision, a statute or the case law. Although a ruling of law by the court often "flows from the ultimate facts" as found by the trier of fact, it is uniquely within the province of the court and it does not involve the fact finding process. State v. Cummings, 205 Or. 500, 532, 288 P.2d 1036, (1955); see also Can-Key v. Industrial Leasing, 286 Or. 173, 183, 593 P.2d 1125 (1979).
Section 3 recognizes that difference. It prohibits the "reexamination of facts" tried by a jury but at the same time preserves the power of the court to set aside a verdict if there is no evidence to support it. That language demonstrates that the framers were cognizant of the difference between the fact finding process and the imposition of a rule of law dictated by the facts of a case. Section 3 does not prohibit the imposition of a rule of law that supersedes a determination of fact by a jury.
The next step is to determine whether the application of ORS 18.560 to a jury verdict constitutes "a reexamination of fact" or the imposition of a "rule of law." It is clear that the determination by a jury about the amount of damages that a plaintiff has incurred as a result of a defendant's conduct is a determination of ultimate fact and implicates section 3. See Chance v. Alexander, 255 Or. 136, 138, 465 P.2d 226 (1970). For instance, if a jury determines that the plaintiff has incurred $600,000 in noneconomic damages, no court in Oregon could lawfully reexamine the evidence and substitute its finding that the plaintiff had incurred only $450,000 in damages for the jury's determination.
However, ORS 18.560 does not require the trial court to make a reassessment of the amount of damages, but requires the court to perform a different function. It says, "the amount awarded for noneconomic damages shall not exceed $500,000," and requires the trial court to enter judgment for not more than that amount. No reevaluation of the amount of damages incurred by the plaintiff occurs. The statute establishes a fixed ceiling on the amount of damages for which a judgment could be entered. The effect of *426 the statute is to impose a rule of law, a limit on "recoverable" damages on the jury's verdict. In that sense, the statute, in concept, is no different than other rules of law which require a trial court to enter a judgment that changes the decision of the jury, e.g., a directed verdict under ORCP 60, a judgment notwithstanding the verdict under ORCP 63, a reduction in an award of damages because of comparative negligence under ORS 18.470, or a judgment for treble damages for timber trespass under ORS 105.810. When the language of section 3 and ORS 18.560 are compared, logic tells us that the implementation of the statute does not involve the substitution of the court's determination of the amount of damages for that of the jury's.
Even if, because of an ambiguity in section 3, we are permitted to look further for the answer to the query, the majority's analysis is not helpful. None of the cases that it cites are about statutes that impose legal limitations on the amount of damages that are recoverable in a particular claim. All of them concern the setting aside of excessive verdicts on the basis that the trial judge did not agree with the jury's determination of the facts. We must keep in mind that section 3 is to be interpreted to give effect to the intent of the people adopting it in 1910. The majority is not permitted to rewrite the constitution to outlaw ORS 18.560 unless the statute conflicts with what the people had in mind at that time. Jones v. Hoss, 132 Or. 175, 178, 285 P. 205 (1930). With those principles in mind, I examine the background underlying the adoption of section 3 and its historical relationship to Article I, section 17.
Inherent in the majority's holding is the belief that plaintiffs had a historical right to unlimited damages for personal injury at common law and that the legislature cannot constitutionally limit the amount of damages that could be awarded in a personal injury action. That belief is mistaken. At common law, the courts could control excessive verdicts. They could order a new trial "when the verdict was clearly against the weight of the evidence, whether it be because excessive damages were awarded or for any other reason." See Van Lom v. Schneiderman, 187 Or. 89, 112, 210 P.2d 461 (1949). When the constitution was adopted, the founding fathers did not intend to create an enhanced right to trial by jury, but instead intended that the practice of the courts at the time continue. See Tribou v. Strowbridge, 7 Or. 156, 158 (1879).
If courts could control the award of damages under section 17, the legislature could also. For instance, in 1862, the legislature authorized courts to set aside verdicts and grant new trials because of "[e]xcessive damages * * * given under the influence of passion or prejudice." See General Laws of Oregon, ch 2, § 232(5), p 197 (Civ Code) (Deady 1845-1864). More importantly, also in 1862, the legislature enacted a statute which limited the amount of recoverable damages in a wrongful death action:
"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury caused by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person." General Laws of Oregon, ch 4, § 367, p 941 (Civ Code) (Deady 1845-1864).
There is more evidence that bears on the state of the law before section 3 was adopted. In Deane v. Willamette Bridge Co., 22 Or. 167, 29 P. 440 (1892), the Supreme Court recognized the constitutional authority of the legislature to govern the procedure of awarding damages when it upheld the constitutionality of a statute that required the court without the intervention of a jury to assess damages when the defendant was in default. The court noted the common law power of courts to decide questions of law and distinguished those matters from questions of fact to be decided by a jury under section 17. 22 Or. at 173, 29 P. 440. It then held that the assessment of damages by a jury at common law when the defendant was in default was not a matter of right, but *427 could be decided by the court alone. Thus, the statue was held constitutional in the face of a challenge under section 17.
Presumably, the drafters of section 3 were aware of existing statutes and precedents when section 3 was enacted in 1910. It is uncontroverted that the "mischief" at which the constitutional provision was aimed was the multiplicity of new trials that were being granted by trial courts on the basis of excessive damages. Van Lom v. Schneiderman, supra, 187 Or. at 100, 210 P.2d 461. To remedy that problem, section 3 provides that a new trial cannot be ordered unless it can be said affirmatively that there is no evidence to support the verdict or that there was legal error committed during the initial trial. However, the authority of a trial court to grant a nonsuit or directed verdict on a point of law clearly remains unimpaired by the amendment. Lusk, "Forty Five Years of Article VII, section 3, Constitution of Oregon," 35 OrLRev 1, 4, (1955).
In 1907, the legislature passed a law which amended the limitations on wrongful death damages and increased it to $7,500. See Lord's Oregon Laws § 380. There is no evidence that I can find that suggests that the drafters of section 3 intended to nullify that law and it continued in various forms until 1967. Or Laws 1967, ch 544, § 2. See also Wiebe v. Seely, Administrator, 215 Or. 331, 351, 335 P.2d 379 (1959).[2] Consequently, the authority of trial courts to set aside verdicts after 1910 for excessive damages was limited, but the legislature's authority to limit the amount of reasonable damages remained unfettered. Under the circumstances, the majority cannot reasonably hold that the drafters intended by section 3 to abrogate the authority of the legislature to enact a statute like ORS 18.560.
In summary, the majority forgets about the import of the presumption that ORS 18.560 is constitutional, relies on a decision by the Washington Supreme Court about an unrelated provision of the Washington Constitution as the basis of its rationale, says that it cannot "discern" what "reexamination" of a fact means in the context of the plain language of section 3, and ignores the historical evidence about the objective of the framers of section 3. A philosophical difference with the legislature about the wisdom of the tort reform law is not a sufficient justification for declaring a statute unconstitutional. It is only when a statute violates the constitution expressly or implicitly that it is unconstitutional. ORS 18.560 does neither.
Because my analysis would result in holding that ORS 18.560 does not violate Article I, section 17, or Article VII (amended), section 3, I address plaintiff's alternative argument that the statute violates Article I, section 10, of the Oregon Constitution. Section 10 provides:
"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
Plaintiff argues that "the statute prevents a plaintiff with noneconomic damages in excess of $500,000 from receiving the `remedy [* * *] for injury done him' which the constitution contemplates."
At common law, litigants had the right to recover damages for injury to their person or property and to have a jury assess those damages when the facts were in dispute. Deane v. Willamette Bridge Co., supra, 22 Or. at 173, 29 P. 440. However, the right did not prevent the legislature from changing common law remedies, or "attach[ing] conditions precedent to [their] exercise, and perhaps abolish[ing] old and substitut[ing] new remedies." Mattson v. Astoria, 39 Or. 577, *428 580, 65 P. 1066 (1901).[3] Article XVIII, section 7, provides:
"All laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed." (Emphasis supplied.)
Based on section 7, the Supreme Court in Perozzi v. Ganiere, 149 Or. 330, 40 P.2d 1009 (1935), rejected the plaintiff's contention that the legislature could not abolish or limit an automobile guest's remedy for negligent injury in an action brought against his host. The court said:
"The right to alter all laws in force in the territory of Oregon when the constitution was adopted, whether the same were of common-law or legislative origin, was reserved to the people of the state by article XVIII, § 7, supra. Indeed, that section of our organic act which adopted the common law of England clearly contemplated future changes in the common law, as evidenced in the condition expressed that the common law should continue in force `until altered or repealed'. Moreover, had it been the intention of the framers of the constitution to adopt and preserve the remedy for all injuries to person or property which the common law afforded, they undoubtedly would have signified that intention by exact and specific wording, rather than the language used in article I, § 10." 149 Or. at 346, 40 P.2d 1009. (Emphasis in original.)
As the Supreme Court said in Davidson v. Rogers, 281 Or. 219, 222, 574 P.2d 624 (1978):
"The language of the constitution does not specify that the remedy need be the same as was available at common law at the time of the adoption of the constitution; and the statute, while restricting the remedy, does not abolish the cause of action. Even though a retraction is not requested, the right of action still exists for an intentional defamation and, in any event, for recovery of specific demonstrable economic loss. Such limitation is not violative of Art. I, § 10, for the reason that it does not wholly deny the injured party a remedy for the wrong suffered." (Citations omitted; emphasis supplied.)
ORS 18.560 does not "wholly" deny plaintiff a remedy for his injury; it merely limits his recovery to all proven economic damages and up to $500,000 in noneconomic damages. Therefore, I would hold that ORS 18.560 is constitutional under section 10.
The call for judicial restraint in these kinds of matters was best expressed in 1882: "When there is nothing in the section of the constitution referred to inhibiting, expressly or impliedly, the power of the legislature to enact the law in question, * * * it is not therefore repugnant to that section." Cresap v. Gray, 10 Or. 345, 349 (1882). Article VII (amended), section 3, Article I, section 17, and Article I, section 10, do not expressly or impliedly inhibit the legislature from setting statutory limitations on the amount of damages for which judgment can be lawfully entered. We should uphold the constitutionality of ORS 18.560 against plaintiff's attacks.
RICHARDSON, C.J., and DEITS and LANDAU, JJ., join in this concurring in part and dissenting in part opinion.
NOTES
[*] Haselton, J., not participating.
[1] Some assignments are made by Weyerhaeuser alone; some are made by both defendants.
[2] Defendants do not argue that Wilson was not acting within the scope of his employment when the alleged tortious conduct occurred.
[3] The jury awarded plaintiff $250,000 in noneconomic damages on his claim for malicious prosecution, $500,000 for his claim for intentional infliction of severe emotional distress, and $150,000 for his claim of defamation.
[4] A preliminary version of ORS 18.560 said that "the amount awarded for noneconomic damages shall not exceed $500,000 per person in the aggregate." During its first work session, the legislature deleted the phrase "per person in the aggregate," because it found the language to be confusing. Chairman Frye said that the committee's intention was to limit damages to $500,000 per person and that the language that limits damages of any one person sufficiently reflected that intention. There was no discussion of multiple claims. Tape Recording, Senate Committee on Judiciary, March 23, 1987, Side A at 355-416.
[5] Deane v. Willamette Bridge Co., 22 Or. 167, 29 P. 440 (1892), on which the dissent relies, 127 Or.App. at 534, 873 P.2d at 426, held that the plaintiff had no constitutional right under Article I, section 17, of the Oregon Constitution, to a jury determination of damages in a default proceeding, because the English common law did not afford a jury trial right in a default proceeding. Deane is of limited utility here, because it was decided 18 years before the adoption of Article VII (amended), section 3, and this case does not concern rules applicable to default proceedings.
[6] The determination of the amount of punitive damages is likewise a question of fact. Van Lom v. Schneiderman, supra, 187 Or. at 111, 210 P.2d 461, discussing punitive damages, says:
"Under a system such as ours, where the court responds to the law and the jury to the facts, it would be difficult indeed to say that a question which for centuries has been submitted to the decision of a jury is other than a question of fact. And the reluctance of the courts, having power to do so, to interfere with the jury's decision, gives added weight to this conclusion."
See also Hahn v. Mackay, 63 Or. 100, 111, 126 P. 12, 126 P. 991 (1912).
[7] The dissent relies on Wiebe v. Seely, Administrator, 215 Or. 331, 335 P.2d 379 (1959), which interpreted a statutory limitation on wrongful death damages, for the proposition that, after the adoption of Article VII (amended), section 3, in 1910, "the legislature's authority to limit the amount of reasonable damages remained unfettered." 127 OrApp at 535, 873 P.2d at 427. Wiebe does not support that argument, because no party in Wiebe challenged the wrongful death statute under Article VII (amended), section 3. The court noted, "It is not suggested that such a statute is beyond the powers of the legislature." 215 Or. at 353, 335 P.2d 379. Wiebe construes a statute, not a constitutional provision.
[8] Sofie held that a statutory limit on the noneconomic damages recoverable by a personal injury or wrongful death plaintiff infringed on the Washington state constitutional guarantee of the right to trial by jury. The court's opinion reports that that view reflects the weight of authority from other jurisdictions, particularly those states that have analyzed the history of the jury trial right. 112 Wash.2d at 659, 771 P.2d 711. On that point, Oregon's constitutional history is similar to that of Washington, except that Oregon, by enacting Article VII (amended), section 3, has expressed its constitutional policy on protecting jury verdicts from judicial reexamination more clearly than any other state.
[9] ORS 18.470 provides:
"Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering. This section is not intended to create or abolish any defense."
[10] ORS 18.455 provides:
"(1) When a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death or claimed to be liable in tort for the same injury or the same wrongful death:
"(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
"(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
"(2) When a covenant described in subsection (1) of this section is given, the claimant shall give notice of all of the terms of the covenant to all persons against whom the claimant makes claims."
[11] In Rogers v. Hill, 281 Or. 491, 506, 576 P.2d 328 (1978), Justice Tongue, joined by Justice Lent, in a special concurring opinion, said:
"[A]lthough juries may sometimes make mistakes, so do judges, and the voters and legislature of Oregon, by the constitutional and statutory provisions adopted by them, made a deliberate choice to confer upon juries the exclusive and final authority to resolve such questions and to remove from the courts the power to either set aside such determinations by juries or to withhold such questions from juries for determination." (Emphasis supplied.)
We do not address whether Article VII (amended), section 3, forbids courts from withholding traditional factual issues, such as the amount of a plaintiff's damages in a tort action, from a jury and, if so, whether ORS 18.560 violates that obligation.
We also do not address other arguments concerning the constitutionality of ORS 18.560. For example, we do not address whether ORS 18.560 violates the duty of courts to administer justice "completely," within the meaning of Article I, section 10, because it compels the court to reduce a jury's damage award that the evidence supports.
[12] Plaintiff argues that defendants did not preserve their argument that the punitive damages award violated the prohibition against excessive fines under both the federal and the state constitutions. We disagree.
[13] See also TXO Production Corp. v. Alliance Resources Corp., ___ U.S. ___, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993).
[14] The jury was instructed:
"If you have found that Plaintiff is entitled to general damages, you must then consider whether to award punitive damages. Punitive damages may be awarded to the Plaintiff, in addition to general damages, to punish the wrongdoer and to discourage the Defendant and others from engaging in wanton misconduct. In considering punitive damages, you must first determine whether the Defendant was guilty of wanton misconduct that caused damage to Plaintiff. Wanton misconduct is conduct amounting to a particularly aggravated deliberate disregard of the rights of others. If you decide this issue against the Defendant, you may award punitive damages, although you are not required to do so, because punitive damages are discretionary. In the exercise of the discretion[,] you may consider the importance to society of deterring similar misconduct in the future. If you decide to award punitive damages, you may properly consider the following items in fixing the amount. First, the character of the Defendant's conduct. Second, the Defendant's motive. Third, the sum of money that would be required to discourage the Defendant and others from engaging in such conduct in the future. And fourth, the income and assets of the Defendant. The amount of punitive damages may not exceed the sum of $2,000,000$1,000,000 on the malicious prosecution, and $1,000,000 on the intentional infliction of emotional distress." (Emphasis supplied.)
[15] ORS 18.540 provides, in part:
"Upon the entry of a judgment including an award of punitive damages, the Department of Justice shall become a judgment creditor as to the punitive damages portion of the award to which the Criminal Injuries Compensation Account is entitled pursuant to paragraph (c) of this subsection * * *."
[1] The language "the right to trial by jury shall remain inviolate," is found also in the Bill of Rights, Article I, section 17, as originally adopted in the Oregon Constitution. In Oregon, the provision has been interpreted to mean the "right [to have] a jury determine all issues of fact." Molodyh v. Truck Insurance Exchange, 304 Or. 290, 297, 744 P.2d 992 (1987). (Emphasis supplied.) There are differing interpretations of whether a statutory limitation on the amount of damages violates the "inviolate" right to trial by jury, depending on the jurisdiction. For instance, Article I, section 20 of the Indiana Constitution contains a provision identical to Article I, section 17 and Article I, section 21, of the Oregon Constitution. In Johnson v. St. Vincent Hospital Inc., 273 Ind. 374, 404 N.E.2d 585 (1980), the appellants argued that an Indiana statute which limited damages in medical malpractice cases violated section 20. The court disagreed.
"When a request is made to the trial court for an order to determine the amount due claimant from the patient's compensation fund after a trial by jury on the issue of damages has taken place and the trial court has rendered a judgment, no contest with regard to the total damages due claimant can or does exist. That issue has already been finally adjudicated by the trier of fact. * * * Furthermore, there is no indication in the cases relied upon by appellants that the right to have a jury assess the damages in a case properly tried by jury constitutes a limitation upon the authority of the Legislature to set limits upon damages. * * * It is the policy of this Act that recoveries be limited to $500,000, and to this extent the right to have the jury assess the damages is available. No more is required by Art. I, § 20 of the Indiana Constitution in this context." 404 N.E.2d at 602.
In my assessment, the Indiana Supreme Court's opinion has no more relevance to the Oregon Constitution than the Washington Supreme Court's opinion.
[2] In Wiebe v. Seely, Administrator, supra, what the court said about the nature of a statutory limitation on damages is instructive:
"[T]he statute does not deal with the function of the jury at all, but with that of the court. The legislature has said, in effect, that regardless of the extent of the damages actually suffered by the plaintiff in an action against the estate of a deceased tort-feasor, recoverable damages may not exceed $15,000. * * * It is not suggested that such a statute is beyond the powers of the legislature." 215 Or. at 352, 335 P.2d 379. (Emphasis supplied.)
[3] The Supreme Court has acknowledged the authority of the legislature to limit remedies for common law causes of action on a number of occasions. For example, in Holden v. Pioneer Broadcasting Co. et al, 228 Or. 405, 365 P.2d 845 (1961), cert. den. 370 U.S. 157, 82 S. Ct. 1253, 8 L. Ed. 2d 402 (1962), the court held that statutes eliminating the right of a defamed person to receive damages for an inadvertent libel when a retraction was made were constitutional under Article I, sections 8, 10 and 20, of the Oregon Constitution. See also Noonan v. City of Portland, 161 Or. 213, 248, 88 P.2d 808 (1939); Evanhoff v. State Industrial Acc. Com., 78 Or. 503, 154 P. 106 (1915).
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182 So. 2d 447 (1966)
Michael F. BRADFORD, doing business as Bradford Contracting Company, McDonough Construction Company of Florida, a Florida corporation and Seaboard Surety Company, a New York corporation, Appellants,
v.
FOUNDATION & MARINE CONSTRUCTION COMPANY, Inc., a Florida corporation, Appellee.
No. 5420.
District Court of Appeal of Florida. Second District.
February 2, 1966.
*448 Marvin Barkin, of Fowler, White, Gillen, Humkey & Trenam, Tampa, and Edgar Miller, of Miller & Russell, Miami, for appellants.
J.D. Hobbs, Jr., of Cramer & Hobbs, and Paul H. Roney, of Roney & Beach, St. Petersburg, for appellee.
ALLEN, Chief Judge.
Appellants, defendants below, appeal from a final judgment awarding sums for work done under the contract, services rendered, charge backs, bond premium, crane rental and attorneys' fees.
The subject of this case is the building of a canal. The principal controversy arose out of the interpretation of construction contracts entered into by the contestants and liability of payment for work done by the appellee, plaintiff below. The three day trial involved resolving the contractual issues by seeing and hearing eight witnesses give testimony and understanding the thirty-seven exhibits filed.
After trial, the judge, who heard the case without a jury, denied appellants' motion for a directed verdict and reserved rendition of verdict and judgment. After this reservation, the circuit judge retired and the cause was transferred to another judge of the circuit. The successor judge made findings upon the record alone and entered a final decree after denying appellants' motion for a trial of the issues de novo.
We are faced squarely with whether it was error for the successor judge to enter findings and a final decree, when testimonial proof was given at trial, on a cause tried completely by his predecessor, without a jury, but undetermined thereby.
*449 We have studied the cases from this jurisdiction cited by both sides and find that they neither are in point nor help direct the way to our decision. Further research pointed out that the other jurisdictions, which have passed upon this question, have arrived at opposite results. Annot. 54 A.L.R. 952; 30 Am.Jur., Judges §§ 39, 40 (1958).
It is generally stated that a successor judge may complete any acts uncompleted by his predecessor where they do not require the successor to weigh and compare testimony. 48 C.J.S. Judges § 56a (1947). Also, in the absence of a statute to the contrary, a successor judge cannot generally make findings or render a final decree even though the testimony is transcribed at trial and preserved. 48 C.J.S. Judges § 56b (1947); 54 A.L.R. 959(e).
Reason and conscience lead this court, in line with other jurisdictions, to adopt the rule that where oral testimony is produced at trial and the cause is left undetermined, the successor judge cannot render verdict or judgment without a trial de novo, unless upon the record by stipulation of the parties. Feldman v. Board of Pharmacy of Dist. of Columbia, D.C.Mun. App., 150 A.2d 100 (1960); Cram v. Bach, 1 Wis. 2d 378, 83 N.W.2d 877, aff'd on rehearing, 1 Wis. 2d 370, 85 N.W.2d 673 (1957); Dawson v. Wright, 234 Ind. 626, 129 N.E.2d 796 (1955); McAllen v. Souza, 24 Cal. App. 2d 247, 74 P.2d 853 (1938); State ex rel. Wilson v. Kay, 164 Wash. 685, 4 P.2d 498 (1931).
The appellee argues that Sections 26.19 and 38.12, Florida Statutes, F.S.A., govern the outcome of this decision in the absence of Florida case law.
Section 38.12 states, in pertinent part:
"Upon the resignation, death or impeachment of any judge, all matters pending before him shall be heard and determined by his successor, and parties making any motion before such judge shall suffer no detriment by reason of his resignation, death or impeachment. * * *" (Emphasis added.)
The phrase "heard and determined" is ambiguous. We agree with a sister state's interpretation of a similar statute that it does not authorize the successor judge to weigh and compare testimony of witnesses whom he did not see or hear. Cram v. Bach, 1 Wis. 2d 378, 85 N.W.2d 673 (1957).
Section 26.19 states, in pertinent part:
"No civil or criminal cases, suits in equity, * * * finding, decree, judgment * * * shall abate, be quashed, set aside, reversed, qualified, dismissed, defeated, or held to be in error because of the changes in any circuit or circuits, or judge or judges, * *."
The legislature originally enacted this section in 1935 as part of the act entitled "An Act Redistricting the State of Florida into Judicial Circuits * * *." Laws of Florida, 1935, Chapter 17085. The clear purpose of Section 26.19 was to obviate the necessity of discontinuance of an action in a case pending when a vacancy existed because of a change in the circuits or judges of the circuit. Here, the suit is not being held in error because of the change of judge alone, but on the rationale that the successor failed to hear the cause de novo.
Our adoption of the rule requiring a decision upon the facts from a judge who heard the evidence is not to be lightly taken. No one would contend that the permanent absence of a juror, after having heard the evidence and before a verdict is rendered, would not be ground for a mistrial. Appellate courts lean as heavily upon judge's findings as they do upon jury verdicts. This reliance on a judge, or jury as a trier of fact is in recognition of their opportunity to personally hear the witnesses and observe their demeanor in the act of testifying. The absence of this opportunity leaves a gap in the proper procedure of trial.
*450 The transcript shows that the successor judge would have had to weigh and compare the testimonial evidence of eight witnesses whom he did not see or hear. In view of the foregoing, appellants' motion for trial de novo should have been granted.
In the light of our decision on this question, we need not discuss appellants' other points on appeal.
Reversed and remanded for proceedings not inconsistent with this opinion.
LILES and PIERCE, JJ., concur.
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Order Michigan Supreme Court
Lansing, Michigan
December 30, 2015 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
150906(79) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
SC: 150906
v COA: 314337
St. Joseph CC: 12-017690-FH
MICHAEL ANDREW RADANDT,
Defendant-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of the Criminal Defense Attorneys of
Michigan and the American Civil Liberties Union of Michigan to file a late amicus curiae
brief is GRANTED. The amicus brief submitted on December 28, 2015, is accepted for
filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 30, 2015
Clerk
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752 N.W.2d 33 (2008)
JOHN DEERE DES MOINES WORKS
v.
GRAY.
No. 06-2001.
Court of Appeals of Iowa.
March 14, 2008.
Decision without published opinion. Affirmed.
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Curran, Dennis J., J.
Michael Baggett, an inmate at MCI-Norfolk, has sued Harold W. Clarke in his official capacity as Commissioner of the Massachusetts Department of Correction. Baggett alleges that much of his personal property was thrown away by prison *200guards after he was removed from his cell. He brings this action under 42 U.S.C. §1983, the Massachusetts Tort Claims Act, G.L.c. 258, and the Massachusetts Civil Rights Act, G.L.c. 12, § 1II. He also alleges simple negligence. The Department has moved to dismiss the complaint. For the reasons that follow, the Department’s motion is ALLOWED.
I.Claims Under 42 U.S.C. §1983
Congress enacted 42 U.S.C. §1983 to establish liability for “[e]veiy person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any . . . person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Under §1983, however, a state officer sued in his official capacity is not considered a person, and therefore, is not subject to suit. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989) (“Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official, but rather is a suit against the official’s office. As such, it is no different from a suit against the [s]tate itself’ (citation omitted)). Therefore, Baggett’s claim for retrospective damages under §1983 cannot survive.
II.Claims Under the Tort Claims Act
The Massachusetts Tort Claims Act, G.L.c. 258, waives sovereign immunity for certain claims against the Commonwealth or its employees. The Act does not, however, waive immunity for intentional torts, § 10(c), or the “lawful detention of any goods ... by any law enforcement officer,” § 10(d). To the extent that Baggett claims correctional officers intentionally destroyed his property, the action against the Department is barred by § 10(c). In Vining v. Commonwealth, 63 Mass.App.Ct. 690, 694-95 (2005), the Appeals Court held that when properly was negligently lost by law enforcement officials, § 10(d) barred liability. Correctional officers are considered law enforcement officers under the Act. Gunter v. Superintendent, Old Colony Correctional Center, 72 Mass.App.Ct 1101 (2008) (decision pursuant to Rule 1:28). Therefore, if Baggett’s property was negligently destroyed, liability is barred by § 10(d). The Act’s waiver of immunity does not allow Baggett’s claims thereunder or for simple negligence to proceed.
III.Claims Under the Civil Rights Act, G.L.c. 12, §111
To survive a motion to dismiss a claim under the state Civil Rights Act, G.L.c. 12, §1II, a plaintiff must allege “that (1) his exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion." Bally v. Northeastern University, 403 Mass. 713, 717 (1989) (internal quotation marks omitted). Here, Baggett has alleged no facts suggesting “threats, intimidation or coercion.” Therefore, his action under the state Civil Rights Act cannot survive.
ORDER
For the foregoing reasons, the Department’s Motion to Dismiss is ALLOWED. Judgment shall enter for the defendant forthwith.
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01-03-2023
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10-17-2022
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https://www.courtlistener.com/api/rest/v3/opinions/2983132/
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Order filed, November 11, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00601-CR
____________
CASIMIR EME-ODUNZE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No 6
Harris County, Texas
Trial Court Cause No. 1878875
ORDER
The reporter’s record in this case was due October 20, 2014. See Tex. R.
App. P. 35.1. On August 18, 2014, this court granted Patricia Palmer’s first
motion for extension of time to file the record until September 18, 2014. On
September 17, 2014, Patricia Palmer filed a second motion for extension of time
to file the record which was granted until October 20, 2014. The court has not
received a request to extend time for filing the record. The record has not been
filed with the court. Because the reporter’s record has not been filed timely, we
issue the following order.
We order Patricia Palmer, the substitute court reporter, to file the record in
this appeal within 30 days of the date of this order. No further extension will be
entertained absent exceptional circumstances. The trial and appellate courts are
jointly responsible for ensuring that the appellate record is timely filed. See Tex.
R. App. P. 35.3(c). If Patricia Palmer does not timely file the record as ordered,
we will issue an order directing the trial court to conduct a hearing to determine the
reason for the failure to file the record.
PER CURIAM
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01-03-2023
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09-22-2015
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https://www.courtlistener.com/api/rest/v3/opinions/2895584/
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NO. 07-06-0381-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 7, 2007
______________________________
J. W. MARSHALL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 92977; HONORABLE LARRY GIST, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON ABATEMENT AND REMAND
Appellant J. W. Marshall has given notice of appeal from a judgment of conviction and sentence for the possession of a controlled substance. The appellate court clerk received and filed the trial court clerk’s record on September 21, 2006. The trial court reporter’s record was filed on October 12, 2006.
New counsel for appellant was appointed on December 19, 2006 and appellant’s brief due date was extended to March 2, 2007. By our letter dated April 26, 2007, appellant was granted an extension to file the brief to May 21, 2007 with the admonition that no other extensions would be granted absent extreme and unusual circumstances. Appellant was also notified that this appeal could be abated pursuant to Rule 38.8(b). No brief or other response has been received from appellant.
Accordingly, this appeal is abated and the cause is remanded to the trial court.
Tex. R. App. P.
38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine:
(1) whether appellant desires to prosecute this appeal;
if appellant desires to prosecute this appeal, then whether appellant is indigent, and if not indigent, whether counsel for appellant has abandoned the appeal;
if appellant desires to prosecute this appeal, whether appellant’s present counsel should be replaced; and
what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant’s appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.
If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.
In support of its determination, the trial court shall prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk’s record. The hearing proceedings shall be transcribed and included in a supplemental
reporter’s record. Those supplemental records shall be submitted to the clerk of this court no later than July 9, 2007.
Per Curiam
Do not publish.
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01-03-2023
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09-07-2015
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https://www.courtlistener.com/api/rest/v3/opinions/3166697/
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Order Michigan Supreme Court
Lansing, Michigan
December 30, 2015 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
150616(80) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
CRAIG HECHT, Justices
Plaintiff-Appellee,
SC: 150616
v COA: 306870
Genesee CC: 10-093161-CL
NATIONAL HERITAGE ACADEMIES, INC.,
Defendant-Appellant.
_________________________________________/
On order of the Chief Justice, the motion of defendant-appellant to extend the time
for filing its reply is GRANTED. The reply will be accepted for filing if submitted on or
before January 19, 2016.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 30, 2015
Clerk
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01-03-2023
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12-31-2015
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https://www.courtlistener.com/api/rest/v3/opinions/2600322/
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170 P.3d 817 (2007)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kenneth Royal WHEELER, Defendant-Appellant.
No. 05CA2057.
Colorado Court of Appeals, Div. VI.
September 20, 2007.
*818 John W. Suthers, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
Neff Services, Inc., Lauretta A. Martin Neff, Bayfield, CO, for Defendant-Appellant.
Opinion by Judge WEBB.
Defendant, Kenneth Royal Wheeler, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of use of a stun gun, § 18-12-106.5, C.R.S. 2007, and two counts of misdemeanor menacing, § 18-3-206(1), C.R.S.2007. He does not challenge his conviction on two counts of false imprisonment, § 18-3-303(1), C.R.S. 2007. We affirm.
According to the prosecution's evidence, defendant threatened three other students with a stun baton and prevented two of them from leaving his dormitory room. Although the evidence shows that defendant "activated" the stun baton in the victims' presence, the Attorney General concedes that defendant did not touch or attempt to touch either of them with it.
I. Sufficiency of the Evidence
Defendant first contends the trial court should have granted his motion for judgment of acquittal based on insufficient evidence because the prosecutor did not establish an adequate foundation for an expert's opinion that defendant's stun baton could immobilize another person. See § 18-12-101(1)(i.5), C.R.S.2007 (stun gun is "a device capable of temporarily immobilizing a person by the infliction of an electrical charge"). We disagree.
In assessing the sufficiency of the evidence, we must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999).
According to defendant, because the prosecution's expert witness had no experience with the stun baton and did not know either its amperage or what kind of batteries were in it at the time of the incident, the expert lacked an adequate foundation for his opinion that the device met the statutory definition. However, the witness was qualified without objection as an expert "in stun guns and in the training, use, and physical effects of stun guns," and defendant failed to object for inadequate foundation to the expert's opinion that the device met the statutory definition.
On appeal, defendant does not dispute that if properly admitted, the expert's opinion *819 would constitute sufficient evidence for the jury to have concluded that the device was a stun gun under section 18-2-101(1)(i.5). In our view, the sufficiency of the opinion to establish this element of the offense is beyond challenge.
Defendant cites no authority, and we have found none in Colorado, holding that a motion for judgment of acquittal preserves a challenge to the foundation for expert testimony which was admitted without objection. See People v. Ramirez, 155 P.3d 371, 377 (Colo.2007) ("Whether the evidence is sufficient to support a judgment is a separate question from whether the evidence should be admitted in the first place.").
Such a holding would improperly allow defendant to accomplish indirectly that which he did not do directly contest the foundation for the expert's opinion after the prosecutor had rested and could not develop additional bases for the opinion. See Melville v. Southward, 791 P.2d 383, 391 (Colo.1990) (the plaintiff "might have been able to lay an adequate foundation" if the trial court had not "simply overruled the defendant's objection and thus admitted the opinion testimony without requiring any further foundation"); see also People v. Norman, 703 P.2d 1261, 1272 (Colo.1985) ("Having failed to object to the foundation testimony presented by the prosecution at any time during the trial, defendant cannot challenge such evidence on appeal.").
Hence, insofar as defendant relies solely on purported lack of an adequate foundation for the opinion, we conclude that he has waived his insufficiency of the evidence argument. See Righi v. People, 145 Colo. 457, 462, 359 P.2d 656, 658 (1961) (defendant who failed to argue that prosecutor was limited to three peremptory challenges at trial waived the issue for purposes of appeal); People v. Cordova, ___ P.3d ___, ___, 2007 WL 1558373 (Colo.App. No. 05CA0515, May 31, 2007) (defendant waived objection to lack of signed verdict form by failing to raise issue when jury orally announced verdict); People v. Asberry, ___ P.3d ___, ___, 2007 WL 1557932 (Colo.App. No. 04CA2431, May 31, 2007) (defendant waived appellate challenge to juror by failing to "exercise reasonable diligence" in developing record on which trial court should have excused the prospective juror); Melina v. People, 161 P.3d 635, 647 (Colo.2007) (defendant waived argument that verdict may not have been unanimous by failing either to tender a unanimity instruction or request that the prosecutor make an election).
Because defendant does not argue that admission of the expert's opinion was plain error, we decline to conduct a plain error review. See People v. Masters, 33 P.3d 1191, 1200 (Colo.App.2001) (declining to address plain error when not raised by defendant), aff'd, 58 P.3d 979 (Colo.2002); see also Crim. P. 52(b) (plain error "may be noticed").
Accordingly, we further conclude that the evidence was sufficient for the jury to have determined that defendant's device was a stun gun.
II. Meaning of "Uses"
Defendant next contends the trial court erred in instructing the jury over his objection on the term "uses" a stun gun as follows:
"USED" as mentioned in these instructions, does not mean that the stun gun had to be physically applied to the person of another. The term "USED" includes holding the weapon in the presence of another in a manner that causes the other person to fear for his or her safety or in a manner that caused the victim to believe that it will be used against him or her in case of resistance.
We disagree.
The trial court has substantial discretion in formulating jury instructions so long as they are correct statements of the law and fairly and adequately cover the issues presented. People v. Gordon, 160 P.3d 284, 288 (Colo.App.2007).
Statutory interpretation is a question of law that we review de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.2007).
When construing a statute, our primary task is to effectuate the General Assembly's intent. Id. To determine this intent, we look to the plain language of the statute, read words and phrases in context, and construe *820 them according to their common usage. Id. at 690.
A statute is ambiguous if it is "reasonably susceptible to different interpretations." Lobato v. Industrial Claim Appeals Office, 105 P.3d 220, 225 (Colo.2005) (quoting Bd. of Educ. v. Booth, 984 P.2d 639, 652 (Colo. 1999)). If the statute is ambiguous, "we may consider other aids to statutory construction, such as the consequences of a given construction, the end to be achieved by the statute, and legislative history." Bostelman v. People, 162 P.3d at 690.
Section 18-12-106.5 provides that "[a] person commits a class 5 felony if he knowingly and unlawfully uses a stun gun in the commission of a criminal offense." The statute does not define "uses," nor has any Colorado appellate court done so in this context.
The term "use" has multiple dictionary definitions, including: "something that fills a need or gives a benefit or advantage"; "to observe or follow a custom"; "to make familiar by repeated or continued practice or experience"; and "to put into action or service." Webster's Third New International Dictionary 2524 (1986). Thus, the statute could reasonably be interpreted as prohibiting, in the commission of a crime, (1) only discharge of a stun gun ("put into action"), or (2) threatening display of a stun gun ("gives a benefit or advantage") as well.
Based on these definitions, defendant asserts that the statute is ambiguous. He further asserts that because other criminal statutes refer to "threatened use" in addition to "use" see, e.g., § 18-1.3-406(2)(a)(I)(A), C.R.S.2007 the General Assembly did not intend "uses" to go beyond discharging a stun gun. We are not persuaded.
Initially, "[w]e look at the context in which a statutory term appears, and the meaning of a word may be ascertained by reference to the meaning of words associated with it." Robinson v. Colo. State Lottery Div., 155 P.3d 409, 413 (Colo.App.2006) (cert. granted Apr. 9, 2007); see also People v. Bergen, 883 P.2d 532, 537 (Colo.App.1994) (courts must look at the context in which statutory terms appear).
The broad language of the statute "uses a stun gun in the commission of a criminal offense" has been interpreted as applying to "any crime." See People v. Bass, 155 P.3d 547, 554 (Colo.App.2006). This language includes predicate offenses that could be complete without discharging a stun gun, because merely displaying the stun gun would afford the perpetrator desired leverage over the victim. See, e.g., § 18-3-303(2)(a), C.R.S. 2007 (false imprisonment) ("uses force or threat of force to confine"); § 18-3-402(5)(a)(III), C.R.S.2007 (sexual assault) ("The actor is armed with a deadly weapon . . . and uses the deadly weapon . . . to cause submission of the victim."); § 18-4-301(1), C.R.S.2007 (robbery) ("use of force, threats, or intimidation").
Thus, looking at "use" in its statutory context, we conclude that section 18-12-106.5 unambiguously creates a separate crime whenever a stun gun facilitates commission of the predicate offense, whether or not it is discharged.
The supreme court has similarly interpreted section 18-3-206(1)(a), which provides that menacing is a felony if committed "[b]y use of a deadly weapon." See People v. Hines, 780 P.2d 556, 558 (Colo.1989). The Hines court concluded "that an offender may commit felony menacing by the `use' of a firearm without actually pointing the firearm at another person." Id. It explained that the term "use" "is broad enough to include the act of holding the weapon in the presence of another in a manner that causes the other person to fear for his safety." Id.
Hines cites several out-of-state cases similarly interpreting "use." See, e.g., United States v. Wilson, 28 F. Cas. 699 (C.C.E.D.Pa. 1830) (No. 16,730) (statutory proscription against jeopardizing life of person in charge of mail by use of a dangerous weapon does not require that weapon be pointed at victim, and statutory element of "use" is satisfied when weapon is displayed in manner that causes victim to believe that it will be used against him in case of resistance); Culverson v. State, 95 Nev. 433, 596 P.2d 220 (1979) (per curiam) (defendant's act of opening a bag and displaying a handgun during course of robbery, while keeping his hand on the gun, *821 constituted "use" of deadly weapon during commission of robbery); Gaston v. State, 672 S.W.2d 819 (Tex.App.1983) (defendant's holding a shotgun during an assault constituted "use" of a deadly weapon, even though defendant made no physical motion to employ shotgun and did not verbally threaten to shoot victim).
Accordingly, we further conclude that the trial court did not err in giving the jury instruction on the term "uses."
III. Lesser Included Offense
Finally, defendant contends his convictions for misdemeanor menacing are lesser included offenses of his stun gun offenses, because the element "in the commission of a criminal offense" required the prosecution to establish all elements of menacing, the predicate offense, thus making it a lesser included offense. Again, we disagree.
In People v. Bass, 155 P.3d at 554, the defendant similarly argued that his conviction for attempted robbery was a lesser included offense of his conviction for using a stun gun on the person he sought to rob. The division held that "[b]ecause use of a stun gun may accompany any crime . . . the statute defining use of a stun gun does not subsume all the essential elements of the lesser crime." Id. at 553-54.
Defendant cites no Colorado case, and we have found none, holding that a predicate offense other than those specifically listed in the greater offense statute is a lesser included offense. Cf. People v. Delci, 109 P.3d 1035, 1037 (Colo.App.2004) (because the offense of assault is specifically listed within the statute as a predicate offense for first degree burglary, it is a lesser included offense). Therefore, we decline to depart from Bass.
Accordingly, we conclude that misdemeanor menacing is not a lesser included offense of use of a stun gun, and the trial court was not required to merge the convictions.
The judgment is affirmed.
Judge LOEB and Judge RUSSEL concur.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2983196/
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Order filed, October 08, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00745-CR
____________
CAREY JAMES BURTON JUNIOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405TH District Court
Galveston County, Texas
Trial Court Cause No. 14CR0096
ORDER
The reporter’s record in this case was due September 30, 2014. See Tex. R.
App. P. 35.1. The court has not received a request to extend time for filing the
record. The record has not been filed with the court. Because the reporter’s record
has not been filed timely, we issue the following order.
We order Delicia Struss, the substitute court reporter, to file the record in
this appeal within 30 days of the date of this order.
PER CURIAM
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01-03-2023
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09-22-2015
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https://www.courtlistener.com/api/rest/v3/opinions/2983199/
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Order filed, October 07, 2014.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00654-CR
____________
CHAD SMALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1383973
ORDER
The reporter’s record in this case was due September 08, 2014. See Tex. R.
App. P. 35.1. The court has not received a request to extend time for filing the
record. The record has not been filed with the court. Because the reporter’s record
has not been filed timely, we issue the following order.
We order Marcia Barnett, the official court reporter, to file the record in
this appeal within 30 days of the date of this order.
PER CURIAM
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01-03-2023
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09-22-2015
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https://www.courtlistener.com/api/rest/v3/opinions/3166801/
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
GERALD A. LECHLITER, )
)
Plaintiff, )
)
v. ) C.A. No. 7939-VCG
)
DELAWARE DEPARTMENT OF )
NATURAL RESOURCES & )
ENVIRONMENTAL CONTROL, )
COLLIN O’MARA, DAVID SMALL, )
CHARLES SALKIN, CITY OF LEWES, )
UNIVERSITY OF DELAWARE, )
PATRICK T. HARKER, SCOTT R. )
DOUGLASS, NANCY M. TARGETT, )
BLUE HEN WIND, INC., FIRST )
STATE MARINE WIND, LLC, and )
GAMESA TECHNOLOGY )
CORPORATION, INC., )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: September 4, 2015
Date Decided: December 31, 2015
Gerald A. Lechliter, Lewes, DE, Pro Se Plaintiff.
Ralph K. Durstein, III, Devera B. Scott, and William J. Kassab, of DEPARTMENT
OF JUSTICE, Wilmington, DE, Attorneys for Defendants Delaware Department of
Natural Resources & Environmental Control, Collin O’Mara, David Small, and
Charles Salkin.
Daniel L. McKenty and Michael W. Mitchell, of HECKLER & FRABIZZIO,
Wilmington, DE, Attorneys for Defendant City of Lewes.
William E. Manning, Richard A. Forsten, and Allison J. McCowan, of SAUL
EWING LLP, Wilmington, DE, Attorneys for Defendants City of Lewes, University
of Delaware, Patrick T. Harker, Scott R. Douglass, Nancy M. Targett, Blue Hen
Wind, Inc., First State Marine Wind, LLC, and Gamesa Technology Corporation,
Inc.
GLASSCOCK, Vice Chancellor
The Plaintiff, Col. Gerald A. Lechliter, lives on a cul-de-sac in Lewes. His
property abuts a large parcel of land (the “Lewes Property”) set aside as, but never
used for, an industrial park. This large parcel was owned by the University of
Delaware, and is adjacent to its Lewes campus. It is generally south of Canary
Creek, and adjacent to the Great Marsh which lies north of Lewes. In 2002, the
University sold the Lewes Property to the Delaware Department of Natural
Resources and Environmental Control (“DNREC”), to be used as open space. The
University reserved an easement over a portion of the Lewes Property near the Great
Marsh, which gave it the right to enter and deposit dredge spoils. Eventually, the
University and DNREC modified this easement, to allow the University and an
entity it created to build a large windmill—an electricity-generating wind turbine—
in the easement, with which the University could do research on generation of
“clean” energy and supply itself and others with electrical power. The turbine was
constructed in the easement, approximately one-half mile from Lechliter’s home.
According to Lechliter, the operation of the wind turbine, through its noise
and its stroboscopic emanations, disturbs his quiet enjoyment of his property. He
brought this action for nuisance and related torts, pro se. In a manner reminiscent
of his similar crusade against another use being made of a different portion of the
old industrial park—a public dog park1—Lechliter has raised numerous challenges
1
See Lechliter v. DNREC, 2015 WL 7720277 (Del. Ch. Nov. 30, 2015).
1
to the manner in which the wind turbine was approved, constructed, and operated,
and has thrown into his complaint acts of local government unrelated to his claims
concerning the turbine (for instance, his dissatisfaction with the way DNREC
chooses those allowed to hunt on the Lewes Property). He has brought this action
against the University, DNREC, the City, and others, seeking declaratory judgments,
injunctive relief, and damages. Before me are the Defendants’ Motions for
Summary Judgment. For the following reasons, I reserve decision with respect to
certain of the tort claims; otherwise the Motions are granted.
I. BACKGROUND FACTS
A. The Parties
Lechliter is a citizen of Lewes, Delaware.2
The State Defendants are the Delaware Department of Natural Recourses and
Environmental Control (“DNREC”); Collin O’Mara, Secretary of DNREC; David
Small, Deputy Secretary of DNREC; and Charles Salkin, Director of the Division of
Parks and Recreation within DNREC (together, the “DNREC Defendants”).3
The University of Delaware Defendants are the University of Delaware
(“UD” or the “University”); Patrick T. Harker, UD President; Scott R. Douglass, UD
Executive Vice-President; and Nancy M. Targett, UD Dean (together, the “UD
2
Compl. ¶ 29.
3
Id. at ¶ 30; Def. DNREC’s Opening Br. 1.
2
Defendants”).4
The Defendants also include the City of Lewes (the “City”); Blue Hen Wind,
Inc. (“Blue Hen”); Gamesa Technology Corporation, Inc. (“Gamesa”); and First
State Marine Wind, LLC (“First State”) (together with the UD Defendants, the
“City/UD Defendants”).
B. Overview
1. DNREC Purchases the Lewes Property from UD
In 2002, using State funding through Delaware’s Open Space Program,
DNREC purchased from the University the Lewes Property, 260.94 acres of land
adjacent to the University’s Lewes campus.5 In conjunction with the purchase—and
included as consideration6—DNREC granted the University two easements, one of
which was an easement (the “Original Easement”) that allowed UD to continue using
approximately 23 acres (the “Encumbered Land”) to deposit dredge spoils, the
historic use of that property.7
2. Construction of the Turbine on the Encumbered Land
The University first began contemplating the construction of a wind turbine
in 2007 when it met with the City’s Board of Public Works (the “City BPW”) to
4
Compl. ¶ 30; Defs. City/UD’s Opening Br. 2 n.2.
5
Compl. ¶ 33; Def. DNREC’s Opening Br., Ex. A (Deed).
6
Compl., Ex. 9 (Original Easement), at 49.
7
Id. at ¶ 53; id., Ex. 9 (Original Easement), at 50.
3
discuss the possibility of constructing a wind turbine in Lewes.8 In 2008, UD started
investigating a project to construct a wind turbine on its Lewes campus to conduct
research and to provide carbon-emission-free electricity to the campus.9 As part of
its preliminary investigation, the University hired Sustainable Energy
Developments, Inc. (“SED”) to study the feasibility of the project (the “Feasibility
Study”).10
During 2009, the University moved beyond the planning phase and began
taking steps toward the construction of a wind turbine. On July 24, 2009, UD and
Gamesa11 entered into a memorandum of understanding (“MOU”) whereby the
parties would jointly construct, own, and operate a wind turbine on UD’s Lewes
Campus.12 Later that year, on October 19, 2009, the University and DNREC
finalized an MOU (the “DNREC-MOU”) that committed DNREC to provide UD
the right to access and control a portion of the Lewes Property adjacent to the
University for the purpose of constructing, owning, operating and maintaining a
wind turbine.13 The DNREC-MOU contemplated that DNREC would eventually
convey back to UD the entire Lewes Property, or at least a parcel large enough to
8
Id. at ¶ 34.
9
Id. at ¶ 35.
10
Id. at ¶ 36.
11
The parties did not provide background facts about Gamesa. I note that, according to their
website, Gamesa is a global company that constructs, operates, and maintains wind turbines. See
GAMESA, http://www.GamesaCorp.com/en/ (last visited Dec. 23, 2015).
12
Compl. ¶ 39; id., Ex. 6 (DNREC-MOU), at 25.
13
Id. at ¶ 41; id., Ex. 6 (DNREC-MOU).
4
build the wind turbine, in exchange for either cash or another parcel owned by the
University.14
On the same day, UD and Gamesa finalized an agreement to build a 410-foot
tall, utility-scale 2 megawatt Gamesa Turbine (the “Turbine”) on the University’s
Lewes Campus.15 Pursuant to the agreement, UD formed Blue Hen, which together
with Gamesa formed First State, a privately held LLC, to construct and operate the
Turbine.16
A few months later, on January 11, 2010, the Lewes City Council (“City
Council”) held a public meeting, the agenda for which included the “presentation
and consideration” of a memorandum of agreement with the University (the “City-
MOA”).17 During the meeting, City Council voted to initiate an executive session—
that is, a session held in private—in which the agenda indicated that topics other
than the City-MOA would be discussed.18 However, when City Council returned to
open session, it approved the City-MOA, which included “modifications as
discussed in [e]xecutive [s]ession,” thus indicating—according to the Plaintiff—that
14
Id. at ¶ 41; id., Ex. 6 (DNREC-MOU), at 27.
15
Id. at ¶ 43. According to the City/UD Defendants, the Turbine’s supporting structure is 256 feet
high, and the Turbine consists of three blades, which are each 144 feet in length. Defs. City/UD’s
Opening Br. 3. Using these measurements, the maximum height of the complete structure is 400
feet—that is, 10 feet less than the Plaintiff alleges. Id. The difference is immaterial for purposes
of this Memorandum Opinion.
16
Compl. ¶ 44; id., Ex. 5 (Incorporation Documents).
17
Id. at ¶ 46; id., Ex. 8 (Agenda & Minutes for January 2010 Meeting), at 42.
18
Id. at ¶ 47; id., Ex. 8 (Agenda & Minutes for January 2010 Meeting), at 47.
5
the City-MOA was improperly discussed in private.19
Shortly thereafter, on February 2, 2010, DNREC, recognizing that the land
had not yet been transferred in accordance with the DNREC-MOU, amended the
Original Easement (as amended, the “Amended Easement”) to allow the University
to access the Encumbered Land to begin building the Turbine.20 The Amended
Easement granted the University the right to use the Encumbered Land for “any
lawful purposes,” but prohibited UD from subleasing the land or using it for
“commercial uses.”21
The next day, on February 3, 2010, DNREC Deputy Secretary David Small
sent a letter to the City Solicitor stating that DNREC had approved the construction
of the Turbine.22 Weeks later, on February 16, 2010, representatives of the
University and the City finalized the City-MOA, authorizing the construction of the
Turbine.23 Finally, on February 24, 2010, the University paid a building permit fee
of $20,283, which was calculated based on 1% of the construction costs of the tower,
19
Id. at ¶¶ 47–49; id., Ex. 8 (Agenda & Minutes for January 2010 Meeting), at 48.
20
Id. at ¶ 57. The Plaintiff alleges that an e-mail reveals that the Amended Easement is
approximately 1.4 acres larger than the Original Easement. Id. at ¶ 88. The recorded document
memorializing the Amended Easement does not purport to burden additional land, however. See
id., Ex. 10 (Amended Easement).
21
Id. at ¶ 59; id., Ex. 10 (Amended Easement), at 56. However, I note that the Amended Easement
allows the University to “enter into license agreements for activities on the [Encumbered Land]
with a limited liability company . . . or other entity of which the University is a member . . . where
those activities are within the mission of the University, as determined by the University.” Id., Ex.
10 (Amended Easement), at 56.
22
Id. at ¶ 69; id., Ex. 20 (Letter from Small).
23
Id. at ¶ 72; id., Ex. 21 (City-MOA).
6
excluding the costs of the turbine mechanism itself.24 The City issued the building
permit (the “Building Permit”) on the same day.
In addition to its negotiations with the City and State, the University also
applied to the United States Department of Energy (“USDOE”) for federal grants,
pursuant to the National Environmental Policy Act (“NEPA”), to assist in the
construction and operation of the Turbine. On April 1, 2010, the USDOE informed
the University that an environmental assessment (“EA”) would be required to
receive federal funds under NEPA.25 According to its final EA, the USDOE
determined a “Finding of No Significant Impact,” and concluded that assisting the
construction of the Turbine “would not constitute a major Federal Action
significantly affecting the quality of the human environment.”26
Construction of the Turbine commenced in March 2010 and the Turbine was
operational in June 2010.
24
Id. at ¶ 189–90. According to the Plaintiff, and consistent with the building permit application,
the application was submitted approximately two months earlier, on December 17, 2009, by SED
on behalf of the University. Id. at ¶ 183; id., Ex. 7 (SED Letter). The building permit fee, however,
was not paid until February 24, 2010. Id. at ¶ 189.
25
See id., Ex. 57 (USDOE Letter).
26
See id., Ex. 58 (Final EA). The Plaintiff’s answering brief includes allegations that UD provided
inaccurate information to the USDOE when it conducted its EA. See Pl.’s Answering Br. 28–32.
The Plaintiff requests that the Court
take judicial notice of the facts related to the federal grants because these facts
clearly demonstrate the pattern of misinformation DNREC, and the University with
political pressure, used to obtain a favorable [EA]. Id. at 58.
However, the Plaintiff did not include in his Complaint any claims concerning DNREC’s
involvement with the USDOE. To the extent the Plaintiff attempts to use these facts to establish
a new cause of action against the Defendants in his answering brief in opposition to the Motions
to Dismiss and for Summary Judgment, such a claim is untimely.
7
3. Post-Construction Events
On July 1, 2010, the Delaware Governor signed the 2011 Bond Bill, in which
the General Assembly included in the bill’s “epilogue language” a provision that
authorized DNREC to sell back a portion of the Lewes Property to the University.27
In September 2010, the Plaintiff and two other citizens met with DNREC
Secretary O’Mara and inquired as to whether DNREC had consulted the Open Space
Council (the “OSC”), a body formed by statute to advise DNREC on land
preservation issues, in regards to the DNREC-MOU or the Amended Easement.28
O’Mara confirmed that DNREC had not.29
On November 30, 2011, the City BPW entered into an agreement with First
State to purchase excess electricity generated by the Turbine.30 Since operation of
the Turbine commenced, First State has sold electricity to the University to power
its Lewes campus and has sold the excess electricity to the City BPW.31
Finally, in anticipation that UD and DNREC would soon enter into an
27
Compl. ¶ 84. Section 87 of the 2011 Bond Bill, titled “University of Delaware – Lewes Land,”
provides:
The University of Delaware desires to acquire portions of land previously acquired
from the University by [DNREC] which are located adjacent to the Sharpe [sic]
Campus in Lewes. [DNREC] has determined that some of this land is now surplus
to the Department’s needs. In accordance with 30 Del. C. § 5423(c)(2), the General
Assembly authorizes the Secretary of [DNREC] to negotiate a transfer of such land
to the University in keeping with the requirements of this section. Id., Ex. 30 (2011
Bond Bill).
28
Id. at ¶ 90.
29
Id.
30
Id., Ex. 70 (Memorandum of Understanding), at 425–27.
31
Id. at ¶ 65.
8
agreement to transfer the Encumbered Land, the General Assembly again adopted
“epilogue language” in the 2012 Bond Bill that authorized DNREC to transfer the
parcel to UD; the language was nearly identical to that in the 2011 Bond Bill, except
that it mentioned the operation of the Turbine and the use of the land for research
purposes.32 To date, DNREC and UD have not entered into an agreement to transfer
or exchange the Encumbered Land.
4. The Turbine’s Effect on the Plaintiff
The Turbine is located approximately one-half mile from the Plaintiff’s
residence. According to the Plaintiff, since the construction of the Turbine, many
citizens living in close proximity have complained about its negative effects,
including the level of noise it generates.33 On December 22, 2010, the Plaintiff
emailed Mayor Ford and the Lewes City Manager to inform them of the Turbine’s
alleged adverse effects; to date, the Plaintiff has yet to receive a response.34
Concerns of the type expressed by the Plaintiff have not been completely
ignored, however. The University hired Tech Environmental, Inc. to perform two
acoustical studies to examine the acoustic effects of the Turbine: one in 2009, before
the Turbine’s construction; and another in 2011, six months after the Turbine was
32
Def. DNREC’s Opening Br., Ex. B (2012 Bond Bill) (“The land is limited to the area on which
the University is conducting research associated with the operation of a wind turbine . . . .”).
33
Compl. ¶ 131.
34
Id., Ex. 47 (Email); id. at ¶ 137.
9
operational.35 Despite the Plaintiff’s allegations regarding noise, the Defendants
allege the Turbine’s noise level is compliant with all applicable regulations.36 In
addition, the University hired SED to study the Turbine’s stroboscopic “flicker
effect,” a phenomenon that occurs when turbine blades momentarily, but repeatedly,
cast a shadow on the surrounding area when the blades pass in front of the sun.37
The study concluded that the Turbine would not have an adverse flicker effect on
the surrounding area.38 At Oral Argument on the instant Motions, the Plaintiff
alleged that the he was suffering physical injury and property damage from the very-
low-frequency sound emitted by the Turbine, which the University’s studies did not
address.39
5. The Connector Road Near the Turbine
In 2006, DNREC received $2.2 million from the Delaware Department of
Transportation to construct a road connecting New Road to Pilottown Road in Lewes
(the “Connector Road”).40 About four years later, after the consideration of various
proposed locations for the Turbine, it was built less than 600 feet from the planned—
and afterwards constructed—Connector Road, which, according to the Plaintiff, is
35
Aff. of Allison J. McCowan, Esq. in Supp. of Def’s Motion for Summ. J. (“Aff. of Allison
McCowan”), Exs. C (Acoustic Study) and D (Sound Compliance Study).
36
See Defs. City/UD’s Opening Br. 1.
37
See Aff. of Allison McCowan, Ex. B (Shadow Flicker Analysis).
38
See id.
39
Oral Arg. Tr. 58–60 (Unofficial Transcript). I note that oral argument on the instant Motions
was held on September 4, 2015, but none of the parties requested an official copy of the transcript.
40
Compl., Ex. 6 (DNREC-MOU), at 4.
10
inadequate according to DNREC’s own safety specifications.41
II. PROCEDURAL HISTORY
The Plaintiff filed his Verified Complaint on October 11, 2012. The
Complaint alleged seven counts against the Defendants: Count I alleges that DNREC
violated numerous statutes to illegally build the Turbine; Count II alleges that the
City violated statutes and zoning ordinances to illegally issue the Building Permit;
Counts III and IV allege violations of the Delaware Freedom of Information Act
(“FOIA”) against DNREC and the City, respectively; Count V alleges that DNREC
allows selected individuals to hunt illegally; Count VI alleges that the Defendants
committed nine torts in the construction and operation of the Turbine; and Count VII
alleges that DNREC and UD acted with gross and wanton negligence by approving
UD’s realignment of the Connector Road. In addition, the Plaintiff alleges that
DNREC conspired with UD, Gamesa, Blue Hen, and First State to perform the
wrongs alleged in Count I; similarly, the Plaintiff alleges that the City conspired with
the UD Defendants to perform the wrongs alleged in Count II.
In relief, the Plaintiff seeks numerous declaratory judgments and various
forms of injunctive relief, including the removal of the Turbine, as well as damages.
On June 24, 2013, I granted the parties’ Stipulation to Stay the Case pending
the resolution of a related federal action, also brought by the Plaintiff, which
41
Id. at ¶¶ 200–17.
11
“involve[ed] the same universe of alleged facts underlying [] this action.” On
October 10, 2013, Plaintiff filed a Motion for Temporary Restraining Order to
prevent construction of the Connector Road, which I denied via Letter Opinion of
October 22, 2013.42
On January 16, 2015, the District Court granted the defendants’ motion to
dismiss and on January 28, I granted Plaintiff’s Motion to Lift Stay of Proceedings.
On April 2, 2015, the City/UD Defendants filed a Motion for Summary
Judgment. On April 6, 2015, the DNREC Defendants filed a Motion to Dismiss.
The parties submitted briefing on both Motions in June and July. I heard oral
argument on September 4, 2015. This is my Memorandum Opinion.
III. STANDARD OF REVIEW
The Defendants filed two dispositive motions in response to the Plaintiff’s
claims. The City/UD Defendants filed a Motion for Summary Judgment on Counts
I, II, IV, VI, and VII. The DNREC Defendants filed a Motion to Dismiss Counts I,
III, V, VI, and VII under Court of Chancery Rule 12(b)(6), for “failure to state a
claim upon which relief can be granted.” However, the DNREC Defendants’
opening brief and the Plaintiff’s answering brief cited evidence that was not included
in the Plaintiff’s Complaint. Moreover, the City/UD Defendants moved for
summary judgment on many of the same counts. All of the parties, including the
42
Lechliter v. DNREC, 2013 WL 5718888 (Del. Ch. Oct. 22, 2013).
12
Plaintiff, have been given ample opportunity to supplement the record and I find that
none of the parties would be prejudiced by an application of the standard applicable
to a motion for summary judgment. In light of the foregoing, I convert the DNREC
Defendants’ Motion to Dismiss to a Motion for Summary Judgment,43 thus applying
the applicable standard to all of the Plaintiff’s Counts, as set forth below.
Summary Judgment should be granted where, considering the facts in the light
most positive to the non-moving party, the moving party has established 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.44
IV. ANALYSIS
The Plaintiff’s Complaint asserts a slew of claims against the Defendants,
both individually and as a part of a conspiracy. Col. Lecliter is an intelligent man,
articulate in written and oral communication. He is not legally trained, however,
and has taken the opportunity here to complain of the actions of the Defendants in
ways that sometimes approach the border between creative and frivolous. As a
result, my analysis below is necessarily45 an inelegant dog’s breakfast, the episodic
treatment of claims in which will no doubt try the reader’s patience. Because of the
43
See In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168–69 (Del. 2006).
44
Ct. Ch. R. 56(c).
45
Necessarily, that is, given not only the nature of the action, but also this judge’s limitations as a
writer.
13
idiosyncratic organization and presentation of the Complaint, I have found it difficult
to determine precisely what causes of action the Plaintiff asserts. I limit my analysis
here to those claims that have been clarified in the briefing or at oral argument; all
remaining allegations not briefed or otherwise explained are considered waived.46
A. Claims Against DNREC for Granting the Original Easement
In Count I, the Plaintiff alleges that the Original Easement granted in 2002
represents “a misuse of taxpayer dollars,” and argues that the use prescribed therein
did not conform to any of the purposes enumerated in the Delaware Land
Preservation Act (the “DLP Act”) for which DNREC can acquire real property.47
Additionally, the Plaintiff points to 29 Del. C. § 9403 and argues that DNREC lacked
the power to grant the Original Easement because the Director of the Office of
Management and Budget has been given the sole authority to grant easements.48 In
46
See In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *26 (Del. Ch. Oct. 24,
2014) (waiving the plaintiffs’ claim where they “did not mention [the claim] in their Opposition Brief
or at the Argument”) (citing Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr.
28, 2003) (“It is settled Delaware law that a party waives an argument by not including it in his brief.”)).
47
Specifically, 7 Del. C. § 7503(a) provides the following:
State agencies may acquire any interest in real property for the following
purposes . . . : (1) To protect and conserve all forms of natural and cultural
resources; (2) To protect and conserve the biological diversity of plants and
animals and their habitat; (3) To protect existing or planned parks, forests, wildlife
areas, nature preserves or other recreation, conservation or cultural sites by
controlling the use of contiguous or nearby lands; (4) To preserve sites of special
natural, cultural or geological interest; (5) To connect existing open spaces into a
cohesive system of greenways and resource areas; (6) To provide for public
outdoor recreation; and (7) To allow for water resource conservation.
48
29 Del. C. § 9403 states: “For purposes of this chapter the granting of an easement shall not be
considered a conveyance of real property. The determination to grant an easement shall be at the
discretion of the Director of the Office of Management and Budget” (emphasis added).
14
response, DNREC argues that all claims concerning the Original Easement should
be time-barred under the doctrine of laches.
The doctrine of laches supports denial of a plaintiff’s request for equitable
relief when the plaintiff has unreasonably delayed in seeking that relief, and such
delay has prejudiced the defendant.49 DNREC asserts that the Plaintiff’s allegations
regarding the Original Easement are time-barred because the Plaintiff’s Complaint
was filed after the analogous three-year statute of limitation for actions “based on a
statute,” as provided in 10 Del. C. § 8106(a). Although the statute of limitation does
not strictly bind a court in equity in a laches analysis, the statute will ordinarily bar
a claim unless the plaintiff can show the existence of “unusual conditions or
extraordinary circumstances.”50 Here, the Plaintiff contends unusual facts and
circumstances exist that justify the tolling of his claims, because he was unaware of
the Original Easement in 2002, because the 2002 deed “makes no mention of any
easements,” and because there is “no evidence that these easements were referred to
the OS Council for advice and consultation.”51 Ultimately, the Plaintiff urges me to
find that his claims are not barred because he filed his Complaint “well within [two]
years of discovering [the Original Easement] through a FOIA request.”52
49
See Reid v. Spazio, 970 A.2d 176, 182 (Del. 2009); Martin v. Med-Dev Corp, 2015 WL 6472597,
at *15 (Del. Ch. Oct. 27, 2015) (citing U.S. Cellular Inv. Co. v. Bell Atlantic Mobile Sys., Inc., 677
A.2d 497, 502 (Del. 1996)).
50
See Reid, 970 A.2d at 184 (citing Wright v. Scotton, 121 A. 69, 72–73 (Del. 1923)).
51
Pl.’s Answering Br. 64–65.
52
Id. at 65.
15
The Plaintiff’s argument is not persuasive, however. The Original Easement
provided that the University could continue using the Encumbered Land for the
disposal of dredge spoils, which the Complaint itself avers that the University did
for seven years before the Plaintiff filed his Complaint. It is clear that there was no
attempt to conceal the fact or effect of the University’s retention of the Original
Easement.
The Plaintiff has failed to allege any additional facts to establish unusual or
extraordinary circumstances that would justify tolling his claims beyond the
statutory time limitations, and his claims are therefore barred by laches. As a result,
I grant summary judgment in favor of the Defendants for the claims in Count I that
allege violations of statutes arising from the grant of the Original Easement. Because
of this decision, I need not reach the Defendants’ argument that the Plaintiff lacks
standing to proceed on this claim. However, I note that even if this claim was not
time-barred, the Original Easement was a part of the purchase transaction itself, and
thus did not involve the disposition of public lands, or the granting of an easement
thereon; accordingly, the Plaintiff’s claims are without merit.53
53
The Plaintiff supposes, erroneously in my view, the existence of a brief moment in time, between
the purchase of the Lewes Property and the grant of the Original Easement, where the Encumbered
Land became protected under the DLP Act. Therefore, the Plaintiff alleges that the grant of the
Original Easement converted the permanently protected status of the parcel, in violation of the
DLP Act. However, the Original Easement was contemplated to be included as consideration for
the purchase of the Lewes Property, and the transfer of the Lewes Property to, and the grant of the
easement from, DNREC were virtually simultaneous. Consequently, I deem the purchase and
grant a single, simultaneous transaction. The Encumbered Land was never subject to the strictures
16
B. Claims Against DNREC Concerning the DNREC-MOU and the Amended
Easement54
In Count I of the Complaint, the Plaintiff alleges that DNREC acted ultra vires
when it approved the DNREC-MOU in October 2009 and also when it amended the
Original Easement in February 2010. The Plaintiff argues that in each instance
DNREC violated numerous statutes because it failed to take mandated prerequisite
action before entering these agreements.
The DNREC Defendants argue that the Plaintiff’s claims based on alleged
statutory violations should be rejected because the Plaintiff lacks standing to bring
his claims. A private individual has a right of action under a statute, in general, only
where the statute so provides.55 An exception exists where a plaintiff has suffered
an injury-in-fact as a result of the statutory violation, and the interest damaged is
within the “zone of interest” addressed by the statute; in other words, where the
plaintiff has suffered a concrete injury of the type the statute was intended to prevent.
The Plaintiff does not point to any statute itself to confer a private right of action to
seek review of the alleged violations; instead, the Plaintiff argues that he has
standing because DNREC’s statutory violations caused him to suffer an injury. In
of the DLP Act, and was therefore not subject to the provisions that the Plaintiff argues DNREC
violated here.
54
In this section, I consider only the claims against DNREC, individually. The Plaintiff’s related
conspiracy claims are analyzed together and discussed elsewhere.
55
See Oceanport Indus. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994) (“[N]o
party has a right to appeal unless the statute governing the matter has conferred the right to do
so.”).
17
addition, the Plaintiff argues that he has taxpayer standing to challenge the grant of
the easements.56 I analyze each of the Plaintiff’s standing arguments in turn and find
that the Plaintiff lacks individual standing, but that the Plaintiff has taxpayer
standing to bring claims concerning the Amended Easement.
1. Individual Standing
This Court applies the “concept of standing as a matter of self-restraint to avoid
the rendering of advisory opinions at the behest of parties who are mere
intermeddlers.”57 The plaintiff bears the ultimate burden of establishing standing to
bring a claim.58 Where, as is the case here, the plaintiff has not alleged that a statute
expressly provides standing, the plaintiff may establish standing by meeting a two-
part test. First, the plaintiff must demonstrate the he has suffered an “injury-in-fact”;
second, the plaintiff must demonstrate that the interest he seeks to protect is within
the zone of interest to be protected by the statute in question. 59 The Delaware
Supreme Court has held that this test entails the following inquiry:
(1) [T]he plaintiff must have suffered an injury in fact-an invasion of a
legally protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) there must
be a causal connection between the injury and the conduct complained
of—the injury has to be fairly traceable to the challenged action of the
56
Pl.’s Answering Br. 34–40.
57
Dover Historical Soc. v. City of Dover Planning Com’n, 838 A.2d 1103, 1111 (Del. 2003)
(quotation omitted). Federal courts apply a similar requirement due to their jurisdictional limits
under Article III of the United States Constitution.
58
Id. at 1109.
59
O’Neill v. Town of Middletown, 2006 WL 205071, at *28 (Del. Ch. Jan. 18, 2006) (citing Dover
Historical Soc., 838 A.2d at 1110).
18
defendant and not the result of the independent action of some third
party not before the court; and (3) it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable
decision.60
Finally, in order to establish standing, the plaintiff’s “interest in the controversy must
be distinguishable from the interest shared by other members of a class or the public
in general.”61
In Count I of the Complaint, the Plaintiff does not allege a particular injury,
but instead relies solely on the contention that the alleged statutory violations have
caused him “tort damages.”62 In the Plaintiff’s answering brief, he argues that he
has sufficiently plead an injury to establish standing by pointing to the following
injuries:
“Turbine proximity, noise, proximity to the walkway on which he
regularly walks, loss of property and aesthetic value, and UD’s denial
of [the Plaintiff’s] access to land purchased for permanent preservation
as Open Space.”63
The Plaintiff also alleges that he has suffered adverse “health effects.”64 For the
purpose of assessing standing in Count I, I will assume that these alleged injuries are
those alleged as “tort damages” in his Complaint. I note that the aesthetic and access
damages are shared with the public at large, and cannot support an injury-in-fact,
60
Id. (citing Dover Historical Soc., 838 A.2d at 1110).
61
Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, at 1382 (Del. 1991) (citation omitted).
62
Compl. 56.
63
Pl.’s Answering Br. 40.
64
Id.
19
but, since the Plaintiff has alleged in the record both personal injury and damage to
his property value as a result of the operation of the turbine, I will consider those the
injury alleged here.
The first statutory violation alleged by the Plaintiff is that DNREC violated the
DLP Act because it failed to consult with the OSC before approving the DNREC-
MOU and before granting the Amended Easement. The DLP Act, at 7 Del. C. §
7506(6), provides that the OSC shall “[a]dvise and consult regarding any change
from permanently protected status of open space lands acquired or otherwise
protected.” Plaintiff asserts that DNREC was required to consult the OSC here
because the DNREC-MOU and the Amended Easement changed the status of the
Encumbered Land from permanently protected status.65 The Plaintiff alleges that
DNREC’s failure to consult the OSC has caused him tort damages, presumably to
his health and property values.
Second, the Plaintiff argues that DNREC violated statutes concerning the
“Conservation Trust Funds” because DNREC failed to obtain an Act of the General
Assembly before signing the DNREC-MOU and granting the Amended Easement.66
65
7 Del. C. § 7506(6) provides that “[t]he Council shall . . . (6) [a]dvise and consult regarding any
change from permanently protected status of open space lands acquired or otherwise protected.”
The operation of the statute in circumstances closely related to those present here is discussed in
Lechliter, 2015 WL 7720277.
66
Additionally, the Plaintiff points to 30 Del. C. § 5423(c)(2), which requires that, “[i]f the General
Assembly approved the sale of any project or portion thereof, the State shall receive its pro rata
share of net sale income.” Therefore, Plaintiff argues that the section only “authorizes the sale . . .
of the protected, public trust Open Space, not the exchange for other land stipulated in the
20
The Plaintiff points to 30 Del. C. § 5423 which states, in part, the following:
It is intended that property acquired with funds from the Endowment
Account shall remain in public outdoor recreation and conservation use
in perpetuity. Said property may not be converted to other uses without
a subsequent act of the General Assembly.67
The Plaintiff alleges that DNREC was required to obtain an act of the General
Assembly pursuant to Section 5423 because the DNREC-MOU and the Amended
Easement converted the use of the Encumbered Land. Furthermore, the Plaintiff
argues that due to this statutory violation68 by DNREC, he has suffered “tort
damages,” presumably injury to his health and property values.
Finally, the Plaintiff argues that DNREC violated Delaware Code Chapter 94,
titled “Real Property Distributions,” because DNREC failed to follow the statutory
procedures that are required to declare property surplus. The Plaintiff points to three
provisions within that Chapter. First, the statute provides that the “Commission on
[DNREC-MOU] or the granting of an easement for the use of land bought with Project Account
funds.” Pl.’s Answering Br. 45.
67
30 Del. C. § 5423(c)(2) (emphasis added).
68
Because I find that the Plaintiff lacks standing, I need not reach DNREC’s assertion that it did
comply with Section 5423, pointing to the actions of the General Assembly in the 2011 and 2012
Bond Bills. The Plaintiff attacks the 2011 and 2012 Bond Bills on at least two grounds. First, the
Plaintiff asserts that 30 Del. C. § 5423(c)(2) requires an Act of the General Assembly before
converting the use of land and that the Bond Bills were approved after DNREC signed the
DNREC-MOU and granted the Amended Easement—an argument, I note, that is inconsistent with
the language of the statute itself, which requires a “subsequent” Act of the General Assembly. In
addition, the Plaintiff asserts that the 2011 and 2012 Bond Bill cannot satisfy the requirement of
Section 5423 because the General Assembly “circumvented the normal legislative process” by
inserting mere “epilogue language,” which cannot serve as an “Act of the General Assembly.”
Moreover, the Plaintiff argues that the Bond Bills failed to indicate that its authorization was to
remain effective beyond the fiscal year enacted.
21
State Surplus Real Property” is tasked with determining how to utilize land that has
been designated as surplus.69 This commission must review a proposed conveyance
of real property before it can be “sold, leased, transferred or otherwise conveyed.”70
Second, the statute states that “the granting of an easement shall not be considered a
conveyance of real property,” but provides that “[t]he determination to grant an
easement shall be at the discretion of the Director of the Office of Management and
Budget.”71 Finally, the statute contains a special requirement for parcels of land
designated as State parks and open space:
Notwithstanding any provision of this chapter to the contrary, no state
park, or any part thereof, open space as defined in § 7504 of Title 7 or
other area acquired primarily for recreational use, shall be rezoned,
neither shall there be a change in the use of any such lands requiring a
variance or subdivision approval, except upon 45 days prior notice to
all elected members of the General Assembly in whose district such
lands, or any part thereof, lie.72
The Plaintiff alleges that DNREC violated the statute because, before signing the
DNREC-MOU, it failed to (1) properly designate the Encumbered Land as surplus,
and (2) notify the members of the General Assembly in whose district the
Encumbered Land lies. Additionally, the Plaintiff alleges that DNREC improperly
granted the Amended Easement because it failed to seek the discretion of the
69
See 29 Del. C. § 9405.
70
See id. at § 9403.
71
See id. at § 9403.
72
Id. at § 9406.
22
Director of the Office of Management and Budget. The Plaintiff again argues that
he suffered “tort damages” as a result of these statutory violations.
The syllogism advanced by the Plaintiff, as I understand it, runs thus: the
Defendants failed to clear certain procedural hurdles required to lawfully build the
Turbine, and if the Turbine had not been built, it would not emit sounds or create the
flicker effect, and it is those emissions that have injured him. Thus, he has suffered
an injury-in-fact and has standing to litigate the violations of statute. This analysis,
however, is fatally flawed.
First, the injury complained of is not sufficiently related to the statutory
breaches to amount to an injury-in-fact for standing purposes. The Plaintiff has not
alleged, nor could he, that the Defendants could not have cleared the hurdles he
alleges they wrongfully refused to try. There is nothing in the record to show that
the failure of DNREC to consult with the OSC, for instance, which failure the
Plaintiff alleges violated the DLP Act, would have resulted in the OSC
recommending against the Turbine; or that DNREC would have followed such a
recommendation, which would have been purely precatory. Thus, the relationship
between any violation and the damage alleged is insufficiently concrete to afford
standing here.
More fundamentally, the Plaintiff’s injuries are not in the zone of interest
addressed by any of the statutes he cites. The DLP Act seeks to preserve open space
23
and protect the environment. The same is true of 30 Del. C. § 5423. Finally, 29 Del.
Code §§ 9401 et seq. is intended to protect the property interests of the State of
Delaware, as well as to preserve open space. The fact that violations of these statutes
led to construction of a windmill, emanations from which subsequently injured the
Plaintiff, is a mere fortuity; none of the statutes cited had the intent of preventing the
harm the Plaintiff has allegedly suffered, and his injuries, therefore, are outside the
zone of interests protected thereby. The Plaintiff, if he has suffered an injury, may
pursue his damages in tort, but lacks standing to vindicate the statutory violations of
which he complains.73
2. Taxpayer Standing
The Plaintiff argues that he has taxpayer standing to challenge the Original
Easement and Amended Easement. In Delaware, taxpayer standing is “reserved for
a narrow set of claims involving challenges either to expenditure of public funds or
use of public lands.”74 It provides a plaintiff–taxpayer standing regardless of any
73
I note that in Count I of the Complaint, the Plaintiff alleges that DNREC also violated portions
of the Coastal Zoning Act because it “never submitted plans for the Turbine to a pre-construction
Status Decision.” Compl. ¶ 236; 7 Del. C. §§ 7001–13. It is unclear to me whether the Plaintiff
has continued to support this claim in his answering brief or at oral argument. To the extent that
the Plaintiff has not waived this claim, he lacks standing for the same reasons stated above: he has
not sufficiently alleged a concrete injury-in-fact, nor does his alleged injury fall within the zone of
interest addressed by the Coastal Zoning Act. The Coastal Zoning Act was designed to protect the
State’s natural environment and not to prevent “tort damages” as alleged by the Plaintiff here.
74
Reeder v. Wagner, 974 A.2d 858, at *2 (Del. 2009) (citing O’neil, 2006 WL 4804652 at *20).
24
showing of special damages.75
Here, the Plaintiff argues that he has taxpayer standing because the grants of
the Original Easement and Amended Easement represent both a “misuse of taxpayer
dollars” and a “misuse of public land.”76 I have already concluded that the Plaintiff’s
claims concerning the Original Easement are barred by laches. To the extent the
Plaintiff alleges that the Amended Easement represents a misuse of public funds, his
argument is unavailing because DNREC did not expend any funds, of any kind,
when it agreed to amend the easement.
That leaves the Plaintiff’s claim that the Amended Easement is a misuse of
public land. The foundational case for taxpayer standing regarding publicly-owned
real property is City of Wilmington v. Lord.77 In Lord, a group of taxpayers
challenged the erection of a water tank on city-owned land that had been previously
designated to be used for public park purposes.78 The plaintiff–taxpayers argued
that the construction of a water tank was illegal because it did not conform to the
75
Danvir Corp. v. City of Wilmington, 2008 WL 4560903, at *3 (Del. Ch. Oct. 6, 2008) (citation
omitted).
76
DNREC argues that the Plaintiff failed to allege taxpayer standing in his Complaint. However,
I note that the Plaintiff broadly asserted in Count I of his Complaint that “Defendant DNREC and
UD-related defendants’ actions are a misuse of public land.” Compl. ¶ 240.
77
378 A.2d 365 (Del. 1977).
78
Specifically, the parcel of land had been donated to the city using a deed that included an express
condition that the land be used for public park purposes. Id. at 637. Furthermore, to receive the
land, the city acted pursuant to a statute that gave it the authority to acquire real property “for the
purpose of providing and maintaining one or more open places or parks.” Id. After being used for
many years as a golf course, the city proposed building a water tank on the land. Id.
25
land’s designated purpose and would thus violate the public trust; in response, the
city argued that the plaintiffs did not have standing to bring the claim. 79 To address
the issue of standing, the Court noted that a taxpayer has a “sufficient stake” in the
proper use of tax receipts to “allow him to challenge improper uses of tax funds.”80
Recognizing that the plaintiffs in that case had challenged, not the use of funds, but
the use of property, the Court extended taxpayer standing to encompass a challenge
to the use of real property:
The improper use of publicly held real property is sufficiently
analogous to the improper use of public money so that if a taxpayer has
a legal right to sue in the latter case, then necessarily a taxpayer should
have a similar right in the former case.81
Accordingly, the Court held that “where a property is held under an express trust for
public park purposes, a taxpayer has standing to sue to enjoin an alleged violation of
that trust.”82 In this case, the Plaintiff asserts that the Amended Easement permits
certain uses of the Encumbered Land that “fail to conform to the statutory covenants
for the use of protected, public trust open space listed in the DLP Act.”83 This
allegation is sufficient to obtain taxpayer standing under the standard articulated in
Lord. The Plaintiff alleges that a parcel of land is held in the public trust and has
been designated as open space, thereby limiting the use of the land. Furthermore,
79
Id.
80
Id.
81
Id. at 638 (citations omitted).
82
Id. at 640.
83
Pl.’s Answering Br. 34.
26
the Plaintiff argues that the Amended Easement allows the University to use the
parcel for uses other than those permitted by statute, namely, the building of the
Turbine. Therefore, I find that the Plaintiff has taxpayer standing to challenge the
Amended Easement, and address the substance of these allegations next.
3. The Amended Easement as a Misuse of Public Property
I have already described the statutory violations that the Plaintiff alleges to
establish his claim that the Amended Easement was a misuse of public property. In
sum, the Plaintiff argues that there are various statutes to which DNREC failed to
adhere in amending the Original Easement and creating the Amended Easement,
because that amendment resulted in a change of the status of the land from DLP Act-
protected open space.
DNREC contends, and I agree, that the Plaintiff’s challenge to the Amended
Easement must be dismissed because it is based on the “false premise” that the
Encumbered Land was once state-owned, permanently protected open space under
the DLP Act,84 unencumbered by the private rights embodied in the easement. The
Plaintiff argues that the entirety of the Lewes Property became protected open space
upon DNREC’s purchase, thus assuming that there was a moment in time, between
84
This analysis deals with the Plaintiff’s arguments that the Easements wrongfully converted
property purchased under the DLP Act from protected open space to the private use of the
University and its affiliates. It should not be confused with the Plaintiff’s allegations that the
Turbine violates the City’s zoning code because the Lewes Property is zoned “Open Space.” See
infra Section IV.C.
27
the purchase of the Lewes Property and the grant of the Original Easement, where
the Encumbered Land was subject to the restrictions on development in the DLP
Act. However, the Original Easement was explicitly included as consideration for
the purchase of the Lewes property; in fact, the grant and the purchase were virtually
simultaneous. Consequently, I deem the purchase and the grant a single,
simultaneous transaction. The Encumbered Land, therefore, was never DLP Act-
protected open space, unencumbered by a right of private usage in favor of the
University. The Encumbered Land was purchased from UD without the right to
exclude UD: it was, and remained, land subject to the deposition of dredge spoils by
the University. In light of this fact, DNREC’s subsequent amendment to the Original
Easement likewise could not have converted the Encumbered Land from public open
space to land subject to private use, since the Encumbered Land was reserved, in any
event, to the use of the University as a spoils ground.85
85
In addition, the Plaintiff alleges that the Amended Easement added acreage to the Original
Easement. Pl.’s Answering Br. 18. If the additional acreage was originally protected open space,
and if the record indicated that that acreage was now occupied by the Turbine, then the Plaintiff
might be able to show that DNREC illegally converted the additional acreage from protected open
space. However, the Plaintiff has failed to support this claim. According to the terms of the
Amended Easement, the only purpose of the amendment is to “clarify the ability of [UD] to utilize
the Area for its purposes”; the terms do no mention additional acreage. See Compl., Ex. 10
(Amended Easement). The Plaintiff’s only evidence for his contention that the Amended
Easement included additional land not subject to the Original Easment is an email that he received
in response to a FOIA request. That email was authored by the Manager of the Land Preservation
Office, a Division of Parks and Recreation. In it, the Manager states that the Amended Easement
increased the Encumbered Land by 1.4 acres. Id., Ex. 28 (Email). The Plaintiff, however does
not allege or point to record evidence that the Turbine is located outside the Original Easement,
and I note that the terms of the Amended Easement do not purport to extend the burdened area.
28
4. The University’s Violation of the Amended Easement
In Count I, the Plaintiff also alleges that the University violated the terms of the
Amended Easement by allowing First State, a “third-party, for-profit LLC” to sell
electricity generated by the Turbine.86 According to the Plaintiff, the Amended
Easement prohibits “commercial uses” and, otherwise, does not contemplate that
First State would operate the Turbine.87 In response, the Defendants contend that
the Plaintiff lacks standing to enforce the Amended Easement because the Plaintiff
was not a party to the agreement. The Plaintiff did not attempt to establish standing
to enforce the terms of the Amended Easement in his answering brief or at oral
argument and, therefore, the Plaintiff’s claim is waived.88
Based on the foregoing, I grant summary judgment in favor of the Defendants
for all of the Plaintiff’s claims in Count I.89
Therefore I conclude that the email, whatever its evidentiary value, does not create an evidentiary
issue for trial.
86
Pl.’s Answering Br. 16.
87
Id.
88
See In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *26 (Del. Ch. Oct. 24,
2014) (waiving the plaintiffs’ claim where they “did not mention [the claim] in their Opposition Brief
or at the Argument”) (citing Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr.
28, 2003) (“It is settled Delaware law that a party waives an argument by not including it in his brief.”)).
89
I note that the Defendants argue that all of the Plaintiff’s allegations have been cured by
“legislative fiat” through the 2011 and 2012 Bond Bills. In response, the Plaintiff argues that the
bills merely contemplate the sale of the land and are, otherwise, silent as to the easements.
Additionally, the Plaintiff questions whether the bills’ authorizations, if any, extend beyond their
fiscal year. I need not consider the relevance of the Bond Bills to the facts here because I have
already dismissed the Plaintiff’s claims on other grounds.
29
C. Claims Against the City for Approving the City-MOA and Granting the
Building Permit
In Count II of his Complaint, the Plaintiff challenges the process by which the
City approved the construction of the Turbine, asserting claims against the City and
the UD Defendants.90 As a result of these process violations, the Plaintiff argues
that the City-MOA and Building Permit are “legal nullities.”91
The Plaintiff alleges that the City-MOA “effectively rezoned the
[Encumbered Land] from Open Space in the 2005 Comp Plan to University without
following proper procedures.”92 In other words, to the extent the City-MOA
indicates any zoning status other than “Open Space,” the City-MOA would have
effectively, but improperly, rezoned the Encumbered Land from “Open Space” to a
new status: “University.”93 To support this claim, the Plaintiff asserts that the
City-MOA incorrectly indicates that the Encumbered Land is zoned as “University,”
90
In this section, I consider only the claims against the City, individually. The Plaintiff’s related
conspiracy claims are analyzed together and discussed elsewhere.
91
Pl.’s Answering Br. 72. In addition, the Plaintiff alleges for the first time in his answering brief
that the City-MOA was breached. Id. at 24. According to the Plaintiff, the City-MOA “preclude[d]
any commercial activity without prior written consent of the City.” Id. However, the Plaintiff
argues that First State—a for-profit entity—was allowed to conduct “commercial activity” without
obtaining consent in accordance with the MOA. Id. To the extent this is an attempt to state a
claim, raised for the first time in a brief in opposition to Motions to Dismiss and for Summary
Judgment, it is untimely, and I have not considered it here.
92
Id. at 8. This argument regarding the zoning of the Lewes Property as “Open Space” should
not be confused with Plaintiff’s argument that certain restrictions applied to the Encumbered Land
because it was acquired as protected open space under the DLP Act, addressed above.
93
See id. 9. The Plaintiff refers to an email from then-Mayor Ford in which Ford stated that if any
land ownership was transferred, the zoning of the land would change from “Open Space” to
“University.” See Comp., Ex. 61 (Email), at 366.
30
and therefore, per the Plaintiff, the City-MOA improperly effects a “rezoning” of the
Encumbered Land.
I find the Plaintiff’s rationale hard to follow. As the Defendants point out, the
City-MOA contains a simple inaccuracy: the City-MOA mistakenly indicates that
the Encumbered Land was zoned “University” when it was actually zoned as “Open
Space.” The Plaintiff has failed to show how this inaccuracy caused the Plaintiff an
injury or is otherwise actionable.
The Plaintiff also challenges the issuance of the Building Permit for the
Turbine by the City. First, he argues that if the City-MOA did not effectively rezone
the Encumbered Land, the University would have had to request that the parcel be
rezoned before receiving a Building Permit for the Turbine, which it failed to do.94
Second, the Plaintiff asserts that the Building Permit was improperly issued because
the fee assessed in conjunction with the permit was “greatly reduced.”95 According
to the Plaintiff, the Building Permit application improperly excluded the costs of the
Turbine itself and only accounted for the construction costs of the tower on which it
is located, thus significantly, and improperly, reducing the Building Permit fee.96
94
Pl.’s Answering Br. 70.
95
Id. at 9. The Plaintiff also appears to challenge the height variance that was allegedly granted
in order to obtain the building permit. The Plaintiff has failed to specifically articulate a claim
regarding the City’s decision to exempt the Turbine from any height restrictions, other than to
allege that documentation of the City’s decision was not provided to him in any City FOIA
responses. See id. at 24.
96
See id. at 26–27. Plaintiff alleges the excluded costs of the Turbine were approximately
$3,000,000. See id.
31
Finally, the Plaintiff alleges that the Building Permit application inaccurately stated
that UD owned the property.97
The Plaintiff’s challenge to the issuance of the Building Permit is fatally
untimely. The City Building Code provides that an appeal may be taken to the Board
of Building Code Appeals “by any person aggrieved by a decision of the Building
Official” within 20 days.98 In response, the Plaintiff argues that appealing to the
Board of Building Code Appeals would have been “futile,” but fails to indicate why
this is so. The permit was exercised and the Turbine was constructed over two years
before the Plaintiff filed his Complaint. Having eschewed his right under the Code
to seek redress, the Plaintiff is barred by laches from litigating the matter here.
D. FOIA Claims Against DNREC and the City
The Plaintiff alleges in Counts III and IV that both DNREC and the City
violated the Delaware FOIA.99 In Count III, the Plaintiff alleges that DNREC
violated the Open Meeting provisions of the Delaware FOIA because (1) DNREC
did not publish an agenda for the public meeting of the OSC on June 6, 2012; (2)
DNREC employees discussed an unauthorized topic during an executive session at
that OSC meeting; and (3) DNREC published an agenda for the public meeting of
97
Id. at 27–28.
98
70 Lewes Code § 70-60.
99
29 Del. C. §§ 10001–07.
32
the OSC on September 16, 2012 that did not meet the specificity requirements.100
DNREC argues that this FOIA claim should be dismissed because DNREC is not
the proper party for the Plaintiff’s claim. According to DNREC, the OSC is a
separate entity, created by statute, and DNREC merely supports the OSC. Moreover,
DNREC argues that it has no authority over the OSC, which, DNREC argues, is the
proper subject of the Plaintiff’s FOIA claims. The Plaintiff did not respond to
DNREC’s argument in his answering brief and, as a result, the Plaintiff has waived
the FOIA claim in Count III. Therefore, I grant summary judgment in favor of the
Defendants as to Count III.
In Count IV, the Plaintiff alleges that “City Council has flagrantly and
consistently violated provisions of the FOIA.”101 The Plaintiff’s only support for
this allegation is to incorporate by reference “all allegations set forth” in his
Complaint.102 The Defendants argue that the Plaintiff’s allegations are “conclusory
allegations that may be ignored on a motion for summary judgment.”103 Moreover,
the Defendants assert that any FOIA violations related to the Turbine are time-
barred, alluding to the untimely allegations asserted in Count II. In Count II, the
Plaintiff asserts various allegations against the City regarding the January 2010 City
100
Compl. ¶ 270.
101
Id. at ¶ 272.
102
Id. at ¶ 271.
103
Defs. City/UD’s Opening Br. 14.
33
Council meeting. The Plaintiff alleges that the agenda published for the January
2010 public meeting failed to give the public proper notice that City Council was
going to vote on its approval of the City-MOA.104 According to the Plaintiff, the
agenda merely disclosed that the City-MOA was going to be “discussed” and
“considered.”105 In addition, the Plaintiff challenges the executive session that was
held during that City Council meeting. According to the Plaintiff, the City-MOA
was discussed during the executive session despite the fact that neither the agenda
nor the minutes of the meeting included the City-MOA as a topic.106 According to
the Plaintiff, the City’s failure to properly notify its citizens that it intended to vote
on approving the City-MOA was a violation of his procedural due process rights.107
The City argues, and I agree, that these allegations are more accurately characterized
as violations of the open meetings provision of the FOIA.108 The FOIA includes
express time limitations, which state, in part, the following:
Any citizen may challenge the validity . . . of any action of a public
body by filing suit within 60 days of the citizen’s learning of such action
but in no event later than 6 months after the date of the action.109
The Plaintiff filed his complaint on October 11, 2012, well beyond the FOIA’s six-
month statute of repose. Therefore, I find that the Plaintiff’s failure to contest the
104
Pl.’s Answering Br. 21.
105
Id. at 21.
106
Id. at 22.
107
Id. at 70.
108
See 29 Del. C. § 10004.
109
Id. at § 10005(a).
34
alleged FOIA infractions within six months amounts to laches, by analogy to the
statute of repose, and grant summary judgment in favor of the Defendants for the
FOIA claims embedded in Count II.
In the Plaintiff’s answering brief, he concedes that most of the FOIA claims
alleged against the City are time-barred; however, the Plaintiff argues that he has
properly alleged “FOIA claims that fall with[in] the six-month statutory period for
filing a complaint,” citing paragraphs 220 through 232 of his Complaint. 110 These
paragraphs were not originally cited in Count IV of the Complaint, however. After
reviewing the paragraphs identified in the Plaintiff’s answering brief, it appears that
he alleges FOIA violations resulting from various City meetings between June and
September 2012.111 However, the topics in the meetings were wholly unrelated to
the Turbine,112 and the Plaintiff has not sought relief for allegations related to these
meetings, beyond a blanket request that I enter a declaratory judgment that the
meetings were “illegal.” But invoking the Declaratory Judgment Act,113 without an
actual controversy, does not confer jurisdiction on this Court.114 An actual
controversy involves redress of a disputed right on the part of the complainant, where
the dispute is actual, ripe, and adverse between the parties.115 As such, the Plaintiff
110
Pl.’s Answering Br. 77.
111
Compl. ¶ 220–32.
112
Id. at ¶ 222.
113
See 10 Del. C. §§ 6501–13.
114
E.g., Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 662–63 (Del. 1973).
115
Id.
35
has failed to state a claim with respect to violations of FOIA involving the 2012
meetings.
E. Claims Against DNREC for Allowing Certain Persons to Hunt the
Property
In Count V, the Plaintiff accuses DNREC of “allow[ing] selected individuals
to hunt illegally on State-owned Open Space Park land.” The Plaintiff concedes that
DNREC has the authority to regulate hunting in State parks,116 but argues that “the
gravamen of this claim is that DNREC allowed only select individuals to hunt in this
area.”117 According to the Plaintiff, “[i]f hunting is to be allowed in this area, all
citizens should have the same rights.”118 However, the Plaintiff does not allege that
he has sought and been denied a right to hunt these lands; he is a mere intermeddler
who seeks a declaration without a corresponding interest or injury. He is without
standing; therefore, I grant summary judgment in favor of the Defendants in Count
V.119
116
Pl.’s Answering Br. 56. Both the Plaintiff and DNREC cite 7 Del. C. § 4701(d), which provides:
All state parks and other areas acquired primarily for recreational use shall, from
the date of their establishment as such, come under the jurisdiction of the
Department of Natural Resources and Environmental Control and shall be closed
to hunting, except in areas designated by the Department of Natural Resources and
Environmental Control for such purpose.
117
Pl.’s Answering Br. 57 (emphasis added).
118
Id. at 57.
119
The Plaintiff alleges for the first time in his answering brief that this supposed illegal hunting
occurs in close proximity to his residence and in an area through which he regularly walks, thus
creating a hazard and a nuisance. Id. at 57. However, as the Plaintiff did not raise this allegation
in his Complaint and points to no record evidence in support, I do not consider these allegations
here.
36
F. Tort Claims Against All Defendants
In Counts VI and VII, the Plaintiff alleges eight tort claims: (1) private
nuisance,120 (2) negligent infliction of emotional distress, (3) public nuisance, (4)
negligence per se, (5) negligence, (6) fraudulent misrepresentation, (7) negligent
misrepresentation, and (8) civil conspiracy. The Plaintiff brings each tort claim
against all of the Defendants “under the concert of action and civil conspiracy
doctrines.” I address each tort claim below.
1. Private Nuisance and Public Nuisance
A private nuisance is “a nontrespassory invasion of another's interest in the
private use and enjoyment of land.”121 “[A]ll those who participate in creating the
nuisance may be liable to third parties who suffer as a result.”122
The Plaintiff alleges that the Turbine—one-half mile distant from his
property—produces “disturbing noises, flashing red light, strobe/shadow effect and
unreasonable interference with [his] use and enjoyment of his property, including
sleep deprivation.”123 The Defendants argue that they could not have unreasonably
120
The Plaintiff alleges that the effects of the Turbine have caused both a “private nuisance” and
a “continuing private nuisance.” The allegations largely overlap and there is no legal distinction
between the Plaintiff’s causes of action. Therefore, I will consider both sets of allegations under
the private nuisance tort.
121
Restatement (Second) of Torts § 821D (1979). See also Bechrich Holdings, LLC v. Bishop,
2005 WL 1413305, at *9 (Del. Ch. June 9, 2005) (citing Cunningham v. Wilmington Ice Mfg. Co.,
121 A. 654, 654 (Del. Super. 1923) (defining tort of private nuisance).
122
Leitstein v. Hirt, 2006 WL 2986999, at *2 (Del. Ch. Oct. 12, 2006) (citing Keeley v. Manor
Park Apartments, 99 A.2d 248, 250 (Del. Ch. 1953)).
123
Compl. ¶ 278.
37
interfered with the Plaintiff’s use and enjoyment of his property, pointing to
affidavits filed in this matter, which embody studies that show that the Turbine
“complies with the [S]tate’s noise regulations;124 that it complies with the City’s
noise and other zoning requirements;125 and, that any ‘flicker’ is limited.”126 The
Plaintiff personally expresses disagreement with these studies,127 but points to no
evidence that he has been harmed by the Defendants’ unreasonable acts. During oral
argument, the Plaintiff argued that it was subliminal long-waive-length sounds and
the pernicious effects on health of the limited flicker effect that have caused him
physical harm and diminished his property value. These are claims that will require
expert testimony to validate.128 Since the Defendants have submitted affidavits
124
The University commissioned a noise study in late 2010 that concluded that even when the
Turbine is moving at its maximum speed, it complies with Delaware Noise Regulations. Defs.
City/UD’s Opening Br. 16; Aff. of Allison McCowan, Exs. C (Acoustic Study) and D (Sound
Compliance Study).
125
The City submitted the affidavit of the Building Official for the City, who stated that the Turbine
does not violate the City’s noise ordinance. Aff. of Allison McCowan, Ex. A (Aff. of Henry
Baynum), at ¶ 8.
126
The University hired SED to perform a “Shadow Flicker Analysis.” SED concluded that the
Turbine would not have any adverse shadow flicker impacts to the surrounding area. Id. at Ex. B
(Shadow Flicker Analysis).
127
Compl. ¶ 35; Oral Arg. Tr. 58–60 (Unofficial Transcript).
128
When the issue of causation requires consideration of scientific determinations that are not a
matter of common knowledge, the plaintiff has the burden to provide testimony of a competent
expert witness. See, e.g., Money v. Manville Corp. Asbestos Disease Comp. Tr. Fund, 596 A.2d
1372, 1377 (Del. 1991) (“The plaintiff has the burden of providing by competent evidence that
there was a reasonable probability of a causal connection between each defendant’s negligence
and the plaintiff’s injury . . . . When the issue of causation is presented in a context which is not a
matter of common knowledge, such a reasonable probability can only be proven by the testimony
of a competent expert witness.”) (internal citations omitted). Here, the Plaintiff’s nuisance claim
requires many scientific determinations, such as the level of subliminal sound, the frequency of a
flicker effect, and the effect of each on his health and property values, all of which are not a matter
of common knowledge and thus require testimony of an expert.
38
indicating that the Plaintiff has suffered no cognizable harm, Rule 56 requires the
Plaintiff to point to record evidence of his own showing an issue for trial, or his
claims must be dismissed.129 The Plaintiff can point to nothing in the evidence of
record to substantiate his allegations.
At oral argument, the Plaintiff maintained that he had not understood it was
necessary to provide evidence of harm at this stage of the litigation, but he
represented to the Court that he could provide expert testimony to support his
nuisance claim if given more time. I note that the Plaintiff is representing himself
pro se in this matter and has made allegations that, if true, could lead to relief. Given
these considerations, I find it equitable to give the Plaintiff the opportunity to submit
expert testimony to support his private nuisance claim. Therefore, I will reserve my
decision regarding the Plaintiff’s private nuisance claim for 60 days, within which
time the Plaintiff should submit affidavits and an expert report sufficient to sustain
a finding of nuisance. If the Plaintiff fails to submit additional evidence, I will revisit
the Defendants’ Motion for Summary Judgment as to the private nuisance claim.
The Plaintiff also alleges the Turbine has caused a public nuisance. A public
nuisance is a nuisance that “affects the rights to which every citizen is entitled.”130
129
See Ch. Ct. R. 56(e); see also Winshall v. Viacom Intern. Inc., 2012 WL 6200271, at *8 (Del.
Ch. Dec. 12, 2012).
130
Artesian Water Co. v. New Castle Cnty., 1983 WL 17986, at *22 (Del. Ch. Aug. 4, 1983). See
also Restatement (Second) of Torts § 821B(1) (1979) (“A public nuisance is an unreasonable
interference with a right common to the general public.”).
39
To have standing to bring a public nuisance claim, a private plaintiff must allege a
special harm—that is, a harm “of a kind different from that suffered by other
members of the public.”131
The Plaintiff’s public nuisance claim suffers the same shortcoming as does his
private nuisance claim: he has failed thus far to present any scientific evidence that
links his complaints of special injury—physical and property damage—to the
operation of the Turbine. Assuming he does so in the time I have allotted him, he
will have met the requirement of special injury. The infringement of a public right
he alleges is that the Turbine presents a safety hazard to the public using the
Connector Road, an allegation that awaits factual development. For the reasons
stated above, I reserve decision on the Defendants Motion for Summary Judgement
with respect to the public nuisance claim for 60 days, during which time the Plaintiff
may supplement the record with affidavits and an expert report.
2. Negligence Per Se
The Plaintiff alleges that the Defendants have damaged him, and are negligent
per se. To establish negligence per se, a plaintiff must first demonstrate that the
defendant committed a “violation of a Delaware statute enacted for the safety of
131
Artesian Water Co., 1983 WL 17986 at * 22. See also Restatement (Second) of Torts § 821C
(1979) (“In order to recover damages in an individual action for a public nuisance, one must have
suffered harm of a kind different from that suffered by other members of the public . . . .”).
40
others.”132 Second, the plaintiff must demonstrate that the defendant’s violation
proximately caused his injury.
Here, the Plaintiff alleges that the Defendants violated the City’s Comp Plan
and the DLP Act by constructing the Turbine at its present location.133 The Plaintiff
has not alleged that the DLP Act was “enacted for the safety of others,”—clearly, it
was not—and therefore fails to establish negligence per se. The Plaintiff’s
Complaint indicates that “[t]he City Code has Zoning regulations, the purpose of
which are promoting public health, safety, morals, and general welfare of the City
of Lewes”;134 but this is simply the general foundation upon which all statutes and
regulations exist—a set of zoning regulations do not amount to regulation enacted
expressly in aid of citizens’ safety. Finally, Plaintiff asserts that the UD Defendants
“violated the State’s Noise Statute and City’s Noise Ordinance.”135 Again, there is
no indication that these ordinances were enacted to protect the safety of the public.
Summary judgement is therefore entered on the claims of negligence per se.
3. Negligence
The Plaintiff alleges that the Defendants were negligent in locating the
Turbine. To establish negligence, a plaintiff must show that the defendant owed the
132
Duphily v. Delaware Electric Co-Op, Inc., 622 A.2d 821, 828 (Del. 1995) (citations omitted).
133
Pl.’s Answering Br. 81.
134
Compl. ¶ 136.
135
Pl.’s Answering Br. 81.
41
plaintiff a duty; that the defendant breached that duty; and that the defendant’s
breach proximately caused an injury to the plaintiff.136
The Plaintiff alleges that “UD owed a duty to Lechliter to locate and operate
the Turbine with reasonable care because it knew, or should have known, the Turbine
would affect residents whose homes are in close proximity to it with nuisance noise,
flicker, and even vibration.”137 The Defendants argue that this duty equates to the
general duty of an adjacent landowner—which is already accounted for in the
Plaintiff’s private nuisance claim—and that the Plaintiff must cite a separate duty on
which to base his nuisance claim.138 The Defendants fail to cite a legal basis for this
assertion, however. I note that the Defendants have not asserted that the regulatory
process by which they obtained a permit for the Turbine precludes this claim, and I
do not consider that argument here.
The Plaintiff has alleged that UD owes the Plaintiff a duty of reasonable care
to locate the Turbine so as to not damage neighboring property, which duty it
breached, and that Plaintiff has suffered damages thereby. While the Defendants are
correct that the Plaintiff may not recover damages for the same injuries under
separate theories of nuisance and negligence, they are not entitled to summary
judgment on this record. However, I reserve decision on these claims for the same
136
See Culver v. Bennett, 588 A.2d 1094, 1096–97 (Del. 1991) (citations omitted).
137
Compl. ¶ 65.
138
Defs. City/UD’s Reply 15.
42
reason as with the nuisance claims—the Plaintiff must in 60 days supplement the
record to show injury, or face summary judgement.
Finally, in Count VII, the Plaintiff attempts to state another negligence claim:
he asserts that by locating the Connector Road too close to the Turbine, DNREC and
UD acted “with gross and wanton negligence” in creating “a public safety hazard for
citizens by approving UD’s realignment of the Connector Road.”139 The tort of
negligence cannot address a prospective public injury, and the defendant has failed
to point to (or even allege) any injury he has suffered due to the construction or
location of the road. I grant the Defendants’ Motion for Summary Judgment with
respect to Count VII.
4. Fraudulent Misrepresentation
The Plaintiff asserts numerous claims of fraudulent misrepresentation. In
order to establish a claim for fraudulent misrepresentation, a plaintiff must show: (1)
that the defendant made a false representation of a material fact to the plaintiff; (2)
that the defendant must have knowledge of the falsity of the representation, while
the plaintiff must be ignorant of the falsity; (3) that the misrepresentation was made
with the intent that the plaintiff would believe it to be true, act in reliance thereon,
and be deceived thereby; and (4) that the plaintiff actually did so believe, act, and
139
Compl. 68. The Connector Road was constructed after the Turbine was up and operating.
43
was deceived, as well as having been harmed thereby.140
The Plaintiff asserts that “UD never informed the public about any problems
associated with Turbines,” and, instead, presented the Turbine as “[g]reen [e]nergy,
the wave of the future, and completely benign.”141 In addition, the Plaintiff alleges
that UD “misrepresented the zoning for the parcel” on which the Turbine was
constructed—apparently an allegation relating to the indication in the City-MOA
that the property was zoned “University.”142 According to the Plaintiff, “[i]f the land
use of ‘Open Space’ in the Comp Plan had been applied to the parcel, the Turbine
never would have been built at this location without a public hearing.”143 Overall,
the Plaintiff alleges that he relied on UD’s misrepresentations of the zoning of the
Encumbered Land and, as a result, he failed to oppose the Turbine prior to
construction.144 Moreover, had the Plaintiff known about the “problems associated
with [t]urbines,” he would have “taken action to prevent UD from building its
Turbine.”145
The Plaintiff has not, and cannot, allege that he was harmed by the
misrepresentation of the Defendants, if any. His contention that he would have
140
See Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995) (citing Twin Coach Co. v. Chance
Vought Aircraft, Inc., 163 A.2d 278, 284 (Del. 1960) (citations omitted)).
141
Pl.’s Answering Br. 84 (quotations omitted).
142
Id. at 85.
143
Id. at 86.
144
Id. at 87.
145
Id.
44
“taken action” does not amount to an allegation that he could have blocked the
construction of the Turbine, and he cannot, therefore, demonstrate that he has been
harmed by any statements of UD. With respect to his claims that UD should have
provided him additional negative information about wind turbines in general, the
failure to inform without more is not actionable misrepresentation. In effect, the
misrepresentation claims are merely an attempt to repackage his stale FOIA and
process arguments. I grant the Defendants’ Motion for Summary Judgment as to the
Plaintiff’s claim for fraudulent misrepresentation.
5. Negligent Misrepresentation
In the Plaintiff’s Complaint, he asserts that he “meets the minimal
requirements for this tort claim.”146 The Defendants correctly point out that the
Plaintiff’s claim must fail because he does not allege that the Defendants owed a
“pecuniary duty” to provide accurate information to the Plaintiff—a necessary
element of negligent misrepresentation.147 Therefore, I grant the Motion for
Summary Judgment in favor of the Defendants on this claim.
6. Civil Conspiracy
The Plaintiff’s Complaint contains multiple allegations of conspiracy, all of
which I address in this section. To state a claim for civil conspiracy under Delaware
146
Compl. ¶ 307.
147
See Corp. Prop. Assocs. 14 Inc. v. CHR Holding Corp., 2008 WL 963048, at *8 (Del. Ch. Apr.
10, 2008).
45
law, a plaintiff must plead facts supporting “(1) the existence of a confederation or
combination of two or more persons; (2) that an unlawful act was done in furtherance
of the conspiracy; and (3) that the conspirators caused actual damage to the
plaintiff.”148 In Count I of the Complaint, the Plaintiff alleges that
Defendants DNREC, UD, Gamesa, Blue Hen, and First State conspired
to build the Turbine illegally on state-owned Open Space in violation
of the [DLP] Act at 7 Del. C. § 7501 et seq.; 29 Del. C., chapter 94,
“Real Property Disposition”; 30 Del. C. 5423(c)(2); and the Delaware
Coastal Zone Act and Regulations.149
Similarly, in Count II of the Complaint, the Plaintiff alleges the following:
The City and [UD Defendants] conspired to violate the City’s October
2005 Comp Plan and 22 Del. C. § 702(d), to misrepresent material facts
to the detriment of City taxpayers; to issue an illegal Building Permit;
[and] to defraud the City treasury of funds it is due by law.150
As the result of my decision above, none of the Plaintiff’s individual
allegations in Count I or II survive. Therefore, the Plaintiff’s related
conspiracy claims must fail because the Plaintiff has not alleged a surviving
148
Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1036 (Del. Ch. Nov. 22, 2006)
(citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149–50 (Del. 1987)).
149
Compl. 56. The Plaintiff simplified this claim in his answering brief by alleging that “UD
conspired with State and City officials to allow the construction of the Turbine in violation of the
[DLP] Act.” Pl.’s Answering Br. 92.
150
Compl. 58. The Plaintiff simplified this claim in his answering brief by alleging that “UD
conspired with State and City officials to allow the construction of the Turbine in violation of . . .
the City’s Comp. Plan . . . . The claim also applies to the City and UD’s handling of the Building
Permit.” Pl.’s Answering Br. 92.
46
substantive cause of action on which to base his claims.151
Finally, in Count IV of the Complaint, the Plaintiff asserts that his
“claim of fraud readily meets the requirement for an underlying wrong.” It is
unclear whether the Plaintiff alleges a fraud in relation to his allegations in
Counts I and II, or if he alleges a separate count for fraud. I have already
rejected the Plaintiff’s allegations in Counts I and II, and to the extent the
Plaintiff attempts to rely on a separate allegation of fraud, he has failed to state
a claim for fraud with particularity.152 Therefore, I grant summary judgment
in favor of the Defendants as to all of the Plaintiff’s conspiracy claims.
V. CONCLUSION
The Complaint pleads tort claims that will require expert testimony to
withstand summary judgment, barnacled with improperly alleged or stale process
claims. Based on the foregoing, I grant summary judgment in favor of the
Defendants on all of the Plaintiff’s claims, except for certain of the Plaintiff’s tort
claims alleged in Count VI, upon which I reserve decision pending the Plaintiff’s
submission of expert opinion. The Defendants should present an appropriate form
of order.
151
The Plaintiff concedes that “it is essential that there be an underlying wrongful act, such as a
tort or a statutory violation.” Id. (citing Empire Fin. Serv., Inc. v. Bank of New York (Delaware),
900 A.2d 92, 97 (Del. 2006)).
152
See Metro Commc’ns Corp. BVI v. Advanced Mobilecomm Techs. Inc., 854 A.2d 121, 144 (Del.
Ch. 2004) (citing Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983)) (noting that
Chancery Court Rule 9(b) requires that a claim of common law fraud be alleged with particularity).
47
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01-03-2023
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12-31-2015
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https://www.courtlistener.com/api/rest/v3/opinions/1029378/
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1358
MICHAEL E. WELLS,
Plaintiff - Appellant,
v.
ROBERT M. GATES, Secretary of Defense,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cv-00619-RWT)
Argued: March 26, 2009 Decided: July 10, 2009
Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Lenore Cooper Garon, GEBHARDT & ASSOCIATES, LLP,
Washington, D.C., for Appellant. Jason Daniel Medinger, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Myrrel C. Hendricks, GEBHARDT & ASSOCIATES,
LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael E. Wells appeals the district court’s grant of
summary judgment in favor of the Department of Defense (“DOD”)
on his claims of retaliation, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to
2000e-17 (“Title VII”), and hostile work environment, in
violation of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. §§ 621-34 (“ADEA”). For the reasons
explained below, we affirm.
I.
Wells was an Industrial Security Specialist with the DOD’s
Defense Security Service (“DSS”) for almost sixteen and one-half
years, until his retirement in 2008. In that position, he
performed various national security management functions, such
as inspecting defense contractor facilities and operations for
compliance with federal regulations on the handling of
classified documents. Wells was born on February 20, 1948,
putting him at age fifty-seven during most of the conduct
relevant to his claims.
From 2001 through 2008, Wells’ supervisor was Field Office
Chief Horace Bearzi. By all accounts, Wells and Bearzi had what
can best be described as a less than cordial working
relationship. Although Wells and Bearzi had been at loggerheads
2
for years, the conduct giving rise to Wells’ claims began in
early 2005. Starting in March 2005, Bearzi repeatedly ordered
Wells to stop using the modifier “Senior” with respect to his
title “Industrial Security Specialist” on the grounds that it
was no longer an officially recognized position. Wells failed
to comply. On August 8, 2005, after receiving the approval of
his supervisor, representatives of the DSS Office of Human
Resources and Office of General Counsel, and upper management,
Bearzi issued a Letter of Reprimand (“LOR”) to address Wells’
continued use of the nonexistent title and his signing of
official letters requiring Bearzi’s signature. On August 31,
2005, Bearzi conducted Wells’ mid-year performance review and
noted that he had nine “seriously overdue” security assessment
reports, including some that were 120 days late, even though
such reports were to be completed within thirty days of the
inspection.
On September 1, 2005, Bearzi issued Wells a Letter of
Instruction (“LOI”), again with the concurrence of his
supervisor, representatives of the Office of Human Resources and
Office of General Counsel, and upper management. In the LOI,
Bearzi specifically identified the overdue reports and cited
Wells for improperly storing national security files at home.
To improve Wells’ performance and ensure national security,
Bearzi (1) required Wells to return the files and forbade him
3
from routinely retaining files at home; (2) prohibited him from
writing reports, scheduling activities, or performing any other
duties at home; (3) revoked his authority to park a government-
owned vehicle at home; (4) instructed Wells to brief Bearzi at
the beginning of each day as to his planned activities and at
the end of each day as to his accomplished activities; and (5)
withdrew approval of Wells’ compressed work schedule. On that
same day, Wells requested annual leave for the following three
weeks, which Bearzi approved.
The next day, September 2, 2005, Wells contacted a
counselor of the DSS Office of Diversity Management – its Office
of Equal Employment Opportunity (“EEO”). On September 21, he
went out on sick leave, and approximately two weeks later he
canceled other previously scheduled leave (for an annual hunting
trip) because, he said, a check-up revealed potentially serious
health issues. He filed a formal EEO complaint on September 30,
2005, alleging that the LOR and LOI were retaliatory and
claiming that he was subject to a hostile work environment. 1
When his annual leave was about to expire, Wells requested
additional sick leave through December 2, 2005. He based his
1
The EEO summarily rejected the retaliation claim because
Wells had not participated in prior protected conduct and, after
a lengthy investigation, denied the hostile work environment
claim as well.
4
back-to-back requests on vague references to “[p]hysician
imposed medical leave” and cryptic doctor’s notes referring to
his “hypertension, diabetes, hypercholesterolemia, [and]
obesity.” (J.A. 182, 184-87, 191-92.) Bearzi approved each of
the requests. Though allegedly unable to work, however, Wells
was healthy enough to testify at length on behalf of a co-worker
at both an EEOC deposition and a hearing and appeared
unannounced for a departmental meeting at work during which,
according to Bearzi, he said he was “feeling fine.” These
developments contributed to Bearzi’s growing suspicions that
Wells was malingering.
When Wells requested yet again that his sick leave be
extended, this time beyond December 13, 2005, 2 and through
January 20, 2006, Bearzi consulted the Office of Human Resources
and Office of General Counsel. Based on their advice, he asked
Wells to provide further documentation by December 20, 2005, to
substantiate his medical condition. Bearzi noted that Wells had
already missed seventy-two calendar days of work, had not
submitted adequate medical documentation, and had reported
unbidden to work-related activities on three separate occasions.
2
Wells requested annual leave from December 5, 2005,
through December 13, 2005, which was approved by Bearzi. Wells
claimed that this annual leave was for medical reasons.
5
Bearzi cautioned Wells that he could grant no further sick leave
without the requested documentation.
Even though Bearzi reminded Wells of the looming deadline
through e-mails and a telephone call, Wells failed to provide
any documentation. Accordingly, by letter of December 22, 2005,
Bearzi denied Wells any further sick leave.
On December 30, 2005, Wells belatedly submitted further
medical documentation and requested sick leave from December 29,
2005, to January 31, 2006. Unfortunately, Wells’ doctor’s note
stated only that he “[h]as been ill and unable to work from
12/29/05 to 1/31/06.” (J.A. 212.) Based on the advice of the
Office of Human Resources and Office of General Counsel, Bearzi
again denied the sick leave request and asked for further
medical documentation. On January 27, 2006, Wells submitted a
doctor’s note indicating that he was suffering from intestinal
bleeding, which Bearzi relied on to grant sick leave as of
February 1, 2006.
On January 24, 2006, Wells again contacted an EEO
counselor. He filed a formal complaint on March 14, 2006,
alleging that he suffered disparate treatment, retaliation, and
a hostile work environment. After an extensive investigation,
the EEO concluded that Bearzi’s request for further medical
documentation and denial of sick leave were not related to
Wells’ age or any protected conduct.
6
After more than ten months of continuous leave, dating back
to early September 2005, Wells returned to work in July 2006.
Wells filed the present case on March 12, 2007. His
complaint alleges that the DOD violated the ADEA and Title VII
when, based on his age and in retaliation for his prior
protected EEO activities, it subjected him to (1) retaliation
and disparate treatment; (2) a hostile work environment; and (3)
adverse personnel actions. In lieu of answering, the Government
moved to dismiss, or in the alternative, for summary judgment.
Following several months of briefing and a hearing, the district
court considered all matters of record, including several
hundred pages of the extensive EEO files, denied Wells’ request
for additional discovery on the grounds he failed to articulate
any specific need, and granted the Government summary judgment
on all claims.
Wells timely brings this appeal. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
Wells challenges the district court’s grant of summary
judgment on his claims for retaliation and hostile work
7
environment. 3 We review the grant of summary judgment de novo,
“viewing the facts and inferences drawn therefrom in the light
most favorable to the non-moving party.” Baqir v. Principi, 434
F.3d 733, 742 (4th Cir. 2006). Summary judgment is appropriate
only if “there is no genuine issue as to any material fact and .
. . the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
A.
We address first Wells’ retaliation claim. 4 In the absence
of direct evidence, we analyze a Title VII retaliation claim
under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004). To establish a
prima facie case of retaliation, a plaintiff must demonstrate
that (1) he engaged in protected conduct; (2) his employer took
3
The district court held that the disparate treatment claim
lacked merit because Wells was not subjected to an adverse
employment action and offered no specific evidence that
similarly situated employees had received better treatment.
Wells waives this claim on appeal inasmuch as he only mentions
the term “disparate treatment” in the statement of the issues in
his initial brief and never follows up with any argument. Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
opening brief to contain the “appellant’s contentions and the
reasons for them”); see Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999).
4
The Government does not dispute, and we therefore assume,
that a federal employee may pursue a retaliation claim under
Title VII. Baqir, 434 F.3d at 747 n.16.
8
an adverse employment action against him; and (3) the protected
conduct was causally connected to the adverse action. Ziskie v.
Mineta, 547 F.3d 220, 229 (4th Cir. 2008). To satisfy the
second element, “a plaintiff must show that a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (internal quotation marks and citation
omitted). 5 If the plaintiff establishes a prima facie case, the
burden shifts to the employer to demonstrate a legitimate non-
retaliatory reason for the adverse employment action. Baqir,
434 F.3d at 747. If the employer does so, the plaintiff must
prove that this reason was a pretext for retaliation. Id.
5
The Government objected in the district court to the
application of the Burlington Northern standard to a Title VII
retaliation case involving a federal employee. Although this
court has applied this standard to federal employees in several
unreported cases, e.g., Caldwell v. Johnson, 289 F. App’x 579,
591 n.13, 592 (4th Cir. 2008) (citing cases), the issue has not
been reached in a reported case. Ziskie, 547 F.3d at 229.
Because the Government has not renewed its objection on appeal,
we assume that the Burlington Northern standard applies for
purposes of this appeal.
9
1.
Wells claims he created a genuine issue of material fact as
to the second element of the prima facie case. 6 Although his
briefing is less than clear, he appears to argue that he
suffered materially adverse employment actions when Bearzi (a)
requested further documentation of his medical condition, (b)
refused to lift his LOI restrictions, and (c) denied a portion
of his requested sick leave.
a.
Wells contends that Bearzi’s December 6, 2005, letter
requesting further medical documentation constituted a
materially adverse employment action. The district court held
that this request was not a materially adverse employment action
because it would not have dissuaded a reasonable employee from
filing an EEO complaint. The district court also noted that
Wells, in fact, was not inhibited and subsequently filed another
EEO complaint.
A materially adverse employment action is one that “well
might have dissuaded a reasonable worker” from engaging in
protected conduct. Burlington N., 548 U.S. at 68 (internal
quotation marks and citation omitted). An employer’s action is
not materially adverse, however, if it amounts to “petty slights
6
For purposes of this appeal, we assume that Wells has met
the first and third elements of the prima facie case.
10
or minor annoyances that often take place at work and that all
employees experience.” 7 Id. at 68. To make that assessment, we
look to the context of the claimed actions. Id. at 69.
We agree with the district court that Bearzi’s request for
further medical documentation was not a materially adverse
employment action. Bearzi’s letter simply advised Wells to
obtain appropriate medical documentation from his physician
before any additional medical leave could be approved. Standing
alone, this request did not impose any disciplinary action on
Wells or otherwise have a tangible employment consequence.
Chaple v. Johnson, 453 F. Supp. 2d 63, 72-73 (D.D.C. 2006)
(holding that “speculation of a future bad act” does not support
a Title VII retaliation claim). Such a request would not
dissuade a reasonable worker from participating in protected
conduct. Moreover, the mere fact that Wells participated in the
protected conduct of testifying at EEOC proceedings and filing
an EEO complaint does not immunize him from a reasonable request
by his employer.
b.
Wells claims next that he suffered a materially adverse
employment action when Bearzi refused to lift the restrictions
7
This anti-retaliation provision “protects an individual .
. . from retaliation that produces an injury or harm.”
Burlington N., 548 U.S. at 67.
11
previously imposed in the LOI. Wells concedes that the initial
imposition of these restrictions predated his participation in
protected conduct and could not serve as the basis of a Title
VII retaliation claim. He claims, however, that he eventually
satisfied the terms of the LOI yet the restrictions remained in
place until he retired two years later.
The record reflects that Bearzi imposed the LOI
restrictions to enable Wells to finish significantly overdue
work, prohibit him from storing national security files at home,
and ensure that he completed his assignments on time. Nothing
in the LOI indicates that Bearzi would lift the restrictions
when the overdue reports were completed or after a fixed period
of time, such as the end of the fiscal year, as Wells argues.
Bearzi instead stated that he intended to lift the LOI when
Wells cleared his backlog and remained current. Wells concedes
that his reports were unfinished when he returned from sick
leave and identifies nothing in the record indicating that he
ever completed them. Thus, the district court correctly
concluded that Bearzi’s refusal to lift these restrictions did
not constitute a materially adverse employment action.
c.
Wells next argues that Bearzi’s denial of his request for
sick leave from December 13, 2005, through January 31, 2006,
constituted a materially adverse employment action. Although
12
the district court acknowledged that Wells raised the denial of
sick leave as a retaliatory act, it concluded, without
specifically addressing the argument, that no materially adverse
employment action existed.
Wells claims that he was entitled to the grant of sick
leave for this six-week period. He asserts that he initially
provided sufficient documentation on December 5, 2005, pointing
to an e-mail, leave request form, and doctor’s note, which
Bearzi denied. Wells also argues that he provided further
documentation in his sick leave request of December 30, 2005,
which Bearzi likewise denied. This six-week period included the
Christmas holidays and ultimately resulted in the loss of more
than $8,000 in gross income, which Wells otherwise would have
been entitled to receive as compensation. The Government argues
that the denial was not a materially adverse employment action
because it did not dissuade Wells from participating in
protected conduct after some of the alleged retaliatory acts.
In Burlington Northern, the Court held that the anti-
retaliation provision “protects an individual . . . from
retaliation that produces an injury or harm.” 548 U.S. at 67.
Loss of compensation could qualify as such an injury or harm.
Id. at 73. Although “the fact that an employee continues to be
undeterred in his or her pursuit of a remedy . . . may shed
light as to whether the actions are sufficiently material and
13
adverse to be actionable,” Somoza v. Univ. of Denver, 513 F.3d
1206, 1214 (10th Cir. 2008), the court ultimately must apply an
objective standard. Burlington N., 548 U.S. at 68, 69; Steele
v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (stating that the
“materially adverse” standard does not require consideration of
the employee’s “asserted imperviousness to acts of
retaliation”).
Based on the financial impact, we cannot say that a
reasonable worker would not be dissuaded from engaging in
protected conduct by the loss of this compensation from denial
of sick leave. Burlington N., 548 U.S. at 73. To this extent,
we disagree with the conclusion of the district court. For the
reasons that follow, however, it is not dispositive, and we
agree with the district court’s ultimate decision.
2.
We find that the Government has demonstrated a legitimate,
non-retaliatory reason for Bearzi’s actions. An employer may
enforce generally applicable employment policies against its
employees without creating a cause of action for retaliation.
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719, 728-29 (6th
Cir. 2008); Hervey v. County of Koochiching, 527 F.3d 711, 725
(8th Cir. 2008); McCann v. Tillman, 526 F.3d 1370, 1376 (11th
Cir. 2008); Gates v. Caterpillar, Inc., 513 F.3d 680, 686-87
(7th Cir. 2008); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.
14
2006); see also Valles-Hall v. Ctr. for Nonprofit Advancement,
481 F. Supp. 2d 118, 155 (D.D.C. 2007) (denying Title VII
retaliation claim where employee failed to provide further
medical documentation to support a sick leave request in
accordance with company policy); Chaple, 453 F. Supp. 2d at 72-
73 (same).
At times pertinent here, the generally applicable
regulation on sick leave documentation was codified at 5 C.F.R.
§ 630.403 (2005). 8 That provision allows an agency to “grant
sick leave only when supported by administratively acceptable
evidence.” 5 C.F.R. § 630.403(a). Although an agency “may
consider an employee’s certification . . . as administratively
acceptable evidence,” the agency “may also require a medical
certificate or other administratively acceptable evidence as to
the reason for an absence” that exceeds three working days. Id.
Bearzi complied with the generally applicable regulations
governing sick leave requests. Upon the advice of the Office of
Human Resources and the Office of General Counsel, Bearzi
8
Bearzi’s December 6, 2005, letter referred to 5 C.F.R.,
part 339, as the basis for his request for further medical
documentation. Those regulations more specifically concern an
individual’s medical qualifications and physical well-being.
E.g., 5 C.F.R. § 339.301(b) (authorizing agencies to require a
medical examination for positions that have “medical standards
or physical requirements”). It is apparent, however, that
Bearzi’s error was inadvertent, and his request for additional
documentation was well-founded on this record for the reasons
infra.
15
requested further medical documentation from Wells in the
December 6, 2005, letter. Bearzi directed Wells to have his
physician complete the attached Form WH-380 to verify his
medical condition and its impact on his ability to perform the
essential duties of his position. Bearzi requested this
documentation by December 20, 2005. He also reminded Wells
several times to comply with the request. Yet by December 21,
Wells had neither submitted the requested information nor
provided the form to his physician. Only after this did Bearzi
deny further leave. Accordingly, when viewing the facts in the
light most favorable to Wells, it is apparent that the district
court properly held that the Government established a
legitimate, non-discriminatory basis for Bearzi’s actions.
3.
Wells argues that Bearzi’s basis for denying sick leave was
merely pretextual. This is demonstrated, Wells claims, by
Bearzi’s refusal to grant sick leave even after the requested
medical documentation was provided. The problem with Wells’
argument is that he did not provide his e-mail, leave request
form, and doctor’s note, until December 30, 2005. This was ten
days after the stated deadline and eight days after the denial
of his sick leave request. Moreover, Wells failed to submit the
16
documentation on Form WH-380, as required, 9 or to demonstrate
that he provided all of the information requested by Bearzi.
Wells next argues that Bearzi’s ultimate approval of his
sick leave as of February 1, 2006, demonstrates that the prior
denial was pretextual. 10 Although Wells claims that he did not
provide any different medical documentation in the approved sick
leave request of January 27, 2006, than he had in the previous
denied requests, Bearzi stated that the approved request
included a doctor’s note indicating that Wells was suffering
from intestinal bleeding. The record does not contain the leave
requests in question, foreclosing any comparison of the
documentation. Thus, Wells has not shown that Bearzi knew of
9
Wells argues that Form WH-380 was inapplicable to his
situation. Although the instructions to Form WH-380 indicate
that it is “optional” and is used for requests under the Family
and Medical Leave Act, nothing in the record indicates that it
could not be used to solicit information for sick leave requests
as well. Indeed, the record indicates that DOD agencies, such
as the DSS, commonly use Form WH-380 to request information
about an employee’s medical condition. Any suggestion of
pretext is further dispelled by the fact that Bearzi’s request
that Wells use Form WH-380 was made upon the advice of the
Office of Human Resources.
10
On a related note, Wells claims that Bearzi’s change of
his status from “absent without leave” (“AWOL”) to “leave
without pay” (“LWOP”) demonstrates pretext. Wells states that
this alteration implies that Bearzi could not justify AWOL
status. However, Wells fails to explain how the initial AWOL
status was unjustified or to identify how the change of his
classification to a more favorable status could be evidence of
pretext.
17
the extent of the medical condition prior to the end of January
or that the prior sick leave requests contained adequate medical
documentation.
In addition, the record contains no evidence that Bearzi
failed to apply the generally applicable regulation to request
further medical documentation from similarly situated employees
who had requested extended sick leave. To the contrary, Bearzi
had previously required another employee to provide further
medical documentation to support a sick leave request. For
these reasons, we conclude that Wells failed to demonstrate
evidence of pretext, and the district court properly granted
summary judgment on Wells’ retaliation claim.
B.
We now turn to Wells’ claim that he was subjected to a
hostile work environment based on his age, in violation of the
ADEA, 11 and in retaliation for his protected conduct, in
violation of Title VII. The district court held that the
hostile work environment claim lacked merit because Wells
offered no evidence that the alleged harassment was based on his
11
The Government does not dispute that Wells may bring a
hostile work environment claim under the ADEA. “[W]e have
previously assumed, without deciding, that a hostile work
environment claim is generally cognizable under the ADEA for
plaintiffs age forty or older.” Baqir, 434 F.3d at 746 n.14
(citing Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir.
1999); Causey v. Balog, 162 F.3d 795, 801 n.2 (4th Cir. 1998)).
18
age or that it was severe or pervasive. We address each basis -
age and retaliation - separately.
1.
To make out a hostile work environment claim under the
ADEA, a plaintiff must adduce evidence that “(1) he experienced
unwelcome harassment; (2) the harassment was based on his . . .
age; (3) the harassment was sufficiently severe or pervasive to
alter the conditions of his employment and to create an abusive
atmosphere; and (4) there is some basis for imposing liability
on the employer.” Baqir, 434 F.3d at 745-46 (citing Bass v.
E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003)).
Wells grounds his age-based harassment claim on the
following actions: Bearzi’s instruction not to use the title
“Senior Industrial Security Specialist;” issuance of an LOR
charging “blatant insubordination;” imposition of the LOI
restrictions; and posting on a bulletin board in a Human
Resources employee’s office that Wells had filed a grievance
regarding those restrictions. 12 Wells argues that Bearzi did not
impose such restrictions on similarly situated employees who
12
Although Wells also argues that the denial of his sick
leave contributed to the hostile work environment, he claims
that it was retaliatory and not based on age.
19
were not over the age of forty and, thus, not within the
protected class under the ADEA.
We find that, no matter how these actions are viewed,
Wells’ claim fails because he never demonstrates a genuine issue
of material fact that age was a factor in the alleged
harassment. “[C]onclusory statements, without specific
evidentiary support, cannot support an actionable claim for
harassment.” Causey, 162 F.3d at 802. Wells never alleges, nor
is there any evidence, that Bearzi made any age-related
comments. Wells also fails to identify any evidence that Bearzi
accorded different treatment to similarly situated employees who
were not within the protected class. Although Wells claims that
he presented evidence that younger co-workers were allowed to
use the “Senior Industrial Security Specialist” title and were
not subject to the same restrictions, nothing in the record
identifies even one co-worker under Bearzi’s supervision who was
under the age of forty, employed as an Industrial Security
Specialist at pay grade GS-12, guilty of delinquent reports even
remotely as overdue, and involved in as many episodes of
insubordination. Thus, the district court properly granted
summary judgment on Wells’ hostile work environment claim based
on age.
20
2.
To make out a hostile work environment claim based on
retaliation under Title VII, a plaintiff must show that “(1) he
experienced unwelcome harassment; (2) the harassment was . . .
[in retaliation for protected conduct]; (3) the harassment was
sufficiently severe or pervasive to alter the conditions of his
employment and to create an abusive atmosphere; and (4) there is
some basis for imposing liability on the employer.” Baqir, 434
F.3d at 745-46 (citing Bass, 324 F.3d at 765); see Von Gunten v.
Maryland, 243 F.3d 858, 869-70 (4th Cir. 2001), overruled on
other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006).
Wells alleges that he was subjected to unwelcome harassment
in retaliation for his protected conduct. He points again to
Bearzi’s denial of the requested sick leave and refusal to lift
the LOI restrictions. 13
Even if this alleged unwelcome harassment could be said to
have been in retaliation for protected conduct, Wells fails to
show that it was severe or pervasive. To meet this third
element of the prima facie case, the harassment must be severe
13
The Government argues that the imposition of the LOR and
LOI restrictions were not retaliatory actions for purposes of
the hostile work environment claim. Although Wells alleges
other unwelcome harassment based on his age, he relies on the
LOR and LOI only to the extent of Bearzi’s refusal to lift the
restrictions after Wells returned from sick leave.
21
or pervasive enough to create a subjectively and objectively
hostile or abusive work environment. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21-22 (1993); Von Gunten, 243 F.3d at 870.
We examine all of the circumstances to determine whether the
work environment was objectively hostile. These circumstances
“may include the frequency of the . . . [retaliatory] conduct;
its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Harris, 510 U.S. at 23. The harassment must be extreme.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Wells may have subjectively perceived his work environment
to be hostile, but he fails to demonstrate that the alleged
harassment was objectively hostile and abusive. Bearzi denied
Wells’ sick leave request under the generally applicable
regulations governing such requests and, in doing so, relied on
the advice of the Office of Human Resources and the Office of
General Counsel to request further medical documentation.
Bearzi also reminded Wells many times to provide the
information. When Wells failed to comply by the deadline and
subsequently refused to do so, Bearzi again relied on the advice
of the Office of Human Resources and the Office of General
Counsel to deny the sick leave request. Thus, the denial was
22
the direct result of Wells’ inaction and did not reflect an
objectively hostile atmosphere.
Wells also fails to show that the refusal to lift the LOI
restrictions was objectively hostile and abusive. Federal
courts “do[] not sit as a kind of super-personnel department
weighing the prudence of employment decisions made by
[employers] charged with employment discrimination.” DeJarnette
v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). Bearzi
imposed the restrictions to enable Wells to catch up with
seriously overdue work, prohibit him from storing national
security files at home, and ensure that he completed his
assignments on time. The record contains no evidence that these
deficiencies were ever remedied. Based on Wells’ documented
shortcomings, the refusal to lift the LOI restrictions did not
“unreasonably interfere” with his work performance.
Accordingly, the district court properly granted summary
judgment on Wells’ hostile work environment claim based on
retaliation.
III.
Wells argues finally that the district court prematurely
granted summary judgment before allowing him the opportunity to
conduct discovery. We review the district court’s refusal to
allow discovery prior to the entry of summary judgment for abuse
23
of discretion. Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002). We will not reverse the district
court “unless there is a clear abuse of discretion or[] unless
there is a real possibility the party was prejudiced by the
denial of the extension.” Ingle v. Yelton, 439 F.3d 191, 195
(4th Cir. 2006) (citation omitted).
Federal Rule of Civil Procedure 56(f) authorizes a court to
refuse summary judgment “where the nonmoving party has not had
the opportunity to discover information that is essential to his
opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
n.5 (1986). To avail itself of this relief, the nonmoving party
must set forth specific reasons for discovery in an affidavit,
Fed. R. Civ. P. 56(f), and “may not simply assert in its brief
that discovery was necessary.” Nguyen v. CNA Corp., 44 F.3d
234, 242 (4th Cir. 1995) (internal quotation marks and citation
omitted). Although “the failure to file an affidavit under Rule
56(f) is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate,” Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)
(internal quotation marks and citation omitted), a Rule 56(f)
affidavit may not be necessary under certain circumstances.
Harrods, 302 F.3d at 244-45.
Wells concedes that he never filed a Rule 56(f) motion and
affidavit. The record also contains no evidence that he raised
24
the need for additional discovery in his brief in opposition to
the Government’s summary judgment motion. And although Wells
attached a witness list to his brief, his list fails to
articulate what additional facts would be gained through
discovery or how those facts would enable him to survive summary
judgment. To the contrary, it merely contains vague assertions
as to the listed individuals’ relevance. Thus, we cannot say
that the district court abused its discretion in refusing to
allow discovery prior to entering summary judgment for the
Government.
IV.
For the foregoing reasons, we conclude that Wells failed to
create a genuine issue of material fact that he suffered
retaliatory or hostile work environment discrimination. Nor
does he show that the district court abused its discretion in
refusing to allow him discovery prior to the entry of summary
judgment. Accordingly, we affirm the district court’s grant of
summary judgment.
AFFIRMED
25
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752 N.W.2d 35 (2008)
IN RE A.F.
No. 08-0217.
Court of Appeals of Iowa.
April 9, 2008.
Decision without published opinion. Affirmed in part, Reversed in part.
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NO. 07-06-0191-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 16, 2007
______________________________
LINDSEY DWAIN JOHNSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 52,105-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Lindsey Dwain Johnson, a felon, appeals his conviction for a felon unlawfully
possessing a firearm. His two issues on appeal concern the propriety of an oral
amendment to an enhancement paragraph in the indictment. He contends that because
the actual wording of the paragraph in the indictment was not physically altered, the
amendment was invalid, and the trial court could not include the modification in its charge
to the jury. We affirm the judgment.
Through enhancement paragraph one of the indictment, the State alleged that
appellant had been convicted of felonious stealing in Missouri on May 15, 1991. The
actual year of conviction, however, was 1981. The State sought to correct the error by
orally moving to amend the paragraph and incorporate the true date. The motion was
granted but nothing was written on the indictment itself, or a copy of it, memorializing the
change.
Statute provides for the means of amending an indictment. See Tex. Code Crim.
Proc. Ann. art. 28.10 (Vernon 2006) (specifying how an indictment must be amended).
It is the purported failure to comply with that provision which underlies both of appellant's
issues. Moreover, we note that authority holds an oral motion to amend coupled with the
trial court's decision to grant it falls short of a valid amendment under art. 28.10. Instead,
the two acts, when combined, simply grant permission to undertake an amendment. Riney
v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000); Valenti v. State, 49 S.W.3d 594, 597
(Tex. App.- Fort Worth 2001, no pet.). The actual amendment occurs when the charging
instrument (or a copy of it) is physically altered by the insertion or deletion of language on
the face of the document. See Riney v. State, 28 S.W.3d at 565-66 (finding it acceptable
for the State to offer an amended version of a photocopy of the indictment); Valenti v.
State, 49 S.W.3d at 597-98 (holding that the physical interlineation of the written order
granting the motion to amend in which the language of the original indictment was
produced was sufficient to amend the indictment). As mentioned earlier, the record before
us contains no written alteration to the indictment or any similar document.
Yet, authority also holds that while prior convictions used for enhancement purposes
must be pled in some form, they need not be pled in the indictment. Villescas v. State, 189
S.W.3d 290, 292-93 (Tex. Crim. App. 2006); Brooks v. State, 957 S.W.2d 30, 34 (Tex.
Crim. App. 1997). So too are we told not only that the deletion of surplusage from an
indictment falls outside the requirements of art. 28.10 but also that surplusage
encompasses language unessential to the validity of the indictment. Kenley v. State, No.
2-06-0127-CR, 2006 at *22 Tex. App. Lexis 8864 (Tex. App.-Fort Worth October 12,
2006, no pet.). Since enhancement paragraphs need not be pled in the indictment, it
logically follows that they are unessential to the validity of the indictment and comparable
to surplusage for purposes of art. 28.10. As a result, we conclude that modifying the date
in the enhancement paragraph here does not implicate art. 28.10, and, therefore, the trial
court did not violate the terms of that provision. (1)
We affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Publish.
1. Appellant does not complain about lacking notice of the substance of the change; thus, we do not
consider that matter or its peripheral issues.
/span>At trial, the officer that responded to the call, Joe Pinson, testified. Pinson testified
that he was a certified police officer with the Slaton Police Department for 13 years. He
testified that he spoke with Ramirez about the incident in the afternoon following its
occurrence and photographed her injuries. Based on information he received from Ramirez
as well as his personal observation of Ramirez’s injuries, Pinson testified about the manner
in which appellant had used the belt and belt buckle. Over appellant’s objection, Pinson
testified that a belt and belt buckle used in the manner in which appellant used them would
be considered a deadly weapon.
By one issue, appellant challenges the judgment. Appellant’s sole issue contends
that the trial court erred in overruling appellant’s objection that Pinson testified as an expert
witness regarding what constitutes a deadly weapon without the State designating Pinson
as an expert witness in accordance with the trial court’s local rules.
Analysis
Appellant contends that the trial court erred in overruling his objection to Pinson
testifying as an expert when the State failed to provide notice of its intent to offer his expert
testimony, as required by the local rules of the court.
According to appellant’s brief, under
“the local rules of the 137th District Court of Lubbock County[,] both Defense and
Prosecution are required to give notice to the other if they plan to call an expert witness to
the stand during trial.” However, appellant does not provide a verifiable citation to this
purported local rule and no copy of the purported local rule is included in the record or
attached to appellant’s brief. Our review of the local rules applicable to the Lubbock County
District Courts does not include any rule which requires designation of expert witnesses.
See Local Administrative Rules of the District Courts and County Courts-At-Law of Lubbock
County, Texas, http://www.co.lubbock.tx.us/DClerk/PDF/localrules.pdf; Local Procedural
Rules, Criminal Cases, Lubbock County, Texas (2004),
http://www.co.lubbock.tx.us/DCrt/PDF/LocalProceduralRules.pdf; Lubbock County Local
Fair Defense Act Plan and Rules Sections of the Local Administrative Rules (2004),
http://www.co.lubbock.tx.us/DCrt/PDF/FairDefenseActAmen.pdf. Without substantive
argument or supporting authorities, an issue cannot be adequately evaluated, and will be
overruled. Tex. R. App. P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App.
1997). As appellant’s sole citation to supporting authority is to a purported local rule that
cannot be verified by this Court, we overrule appellant’s issue.
We are, however, mindful that the Texas Code of Criminal Procedure provides,
On motion of a party and on notice to the other parties, the court in which an
action is pending may order one or more of the other parties to disclose to
the party making the motion the name and address of each person the other
party may use at trial to present evidence under Rules 702, 703, and 705,
Texas Rules of Evidence. The court shall specify in the order the time and
manner in which the other party must make the disclosure to the moving
party . . . .
Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon 2005). The objection appellant raised
at trial to Pinson’s testimony was that, “He wasn’t designated, based on the Court’s order
that they designate their experts, if he is going to make an expert opinion as to what is or
is not a deadly weapon. And I would object to that for lack of notice.” However, a review
of the clerk’s record reveals neither a motion for identification of expert witnesses nor an
order from the trial court requiring the State to designate expert witnesses. Thus, there is
nothing in the record to indicate that the State was under any obligation to designate any
expert witness that it intended to call at trial.
However, even were we to find that the trial court’s ruling was in error because it
violated a local rule, trial counsel objected on the basis that Pinson’s testimony violated a
prior order of the trial court. If the complaint on appeal does not correlate to the objection
made at trial, the complainant has not preserved error. Tex. R. App. P. 33.1(a); Thomas
v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Because appellant’s argument on
appeal does not comport with the objection raised at trial, any error in the State’s failure to
designate Pinson as an expert witness was not preserved.
Conclusion
For the foregoing reasons, we overrule appellant’s sole issue.
Mackey K. Hancock
Justice
Do not publish.
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970 N.E.2d 137 (2008)
385 Ill. App. 3d 1149
361 Ill. Dec. 137
PEOPLE
v.
RUESTMAN.
No. 4-08-0103.
Appellate Court of Illinois, Fourth District.
December 30, 2008.
Affirmed.
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BRIAN MILLSAP V. SHOW TRUCKS USA, INC.
NO. 07-06-0407-CR
NO. 07-06-0408-CR
NO. 07-06-0409-CR
NO. 07-06-0410-CR
NO. 07-06-0411-CR
NO. 07-06-0412-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 14, 2007
______________________________
ELI EDWARDS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 31st DISTRICT COURT OF WHEELER COUNTY;
NOS. 4294, 4295, 4296, 4297, 4298, 4299; HON. STEVEN R. EMMERT, PRESIDING
_______________________________
ABATEMENT AND REMAND
__________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Eli Edwards (appellant) appeals his criminal convictions. Per two extensions of the
deadline previously granted him, his appellate briefs were due by February 8, 2007, with
the admonition that no further extensions would be granted. Yet, instead of filing the
appellate brief in each cause, counsel has again filed another motion for extension of time.
This court informed appellant that failure to comply with the February 8th deadline would
result in the appeals being abated and remanded to the trial court.
Consequently, we abate the appeals and remand the causes to the 31st District
Court of Wheeler County (trial court) for further proceedings. Upon remand, the trial court
shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing
to determine the following:
1. whether appellant is indigent;
2. whether appellant desires to prosecute the appeals; and
3. whether appellant has been denied the effective assistance of
counsel due to appellate counsel's failure to timely file an appellate
brief in each cause. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.
Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (holding that an indigent
defendant is entitled to the effective assistance of counsel on the first
appeal as of right and that counsel must be available to assist in
preparing and submitting an appellate brief).
We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects. Should the trial court find that appellant desires to
pursue the appeals, is indigent, and has been denied effective assistance of counsel, we
further direct it to appoint new counsel to assist in the prosecution of the appeals. The
name, address, phone number, telefax number, and state bar number of the new counsel,
if any, who will represent appellant on appeal must also be included in the court's findings
of fact and conclusions of law. Furthermore, the trial court shall also cause to be
developed 1) a supplemental clerk's record containing the findings of fact and conclusions
of law and 2) a reporter's record transcribing the evidence and argument presented at the
aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's
record to be filed with the clerk of this court on or before March 16, 2007. Should
additional time be needed to perform these tasks, the trial court may request same on or
before March 16, 2007.
It is so ordered.
Per Curiam
Do not publish.
10" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Title"/>
NO. 07-11-00241-CR; 07-11-00242-CR
IN THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL C
JULY
15, 2011
DEARL RAY STRICKLAND, APELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 58,674-D, 58,675-D; HONORABLE DON R. EMERSON, JUDGE
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant,
Dearl Ray Strickland, filed a notice of appeal on
June 21, 2011, challenging his conviction and sentence in trial court cause
numbers 58,674-D and 58,675-D. Pursuant
to a plea bargain agreement, the offense alleged in cause number 58,675-D,
indecency with a child by sexual contact, was dismissed, and appellant was
sentenced in open court on March 2, 2009, to incarceration for a period of 25
years in cause number 58,674-D for the offense of aggravated sexual assault of
a child. We dismiss the appeals for want
of jurisdiction.
In a criminal case in which no motion
for new trial is filed, the notice of appeal must be filed within 30 days after
the date sentence is imposed in open court.
Tex. R. App. P. 26.2(a). The time within which to file the notice may
be enlarged if, within 15 days after the deadline for filing the notice, the
party files the notice of appeal and a motion complying with Rule 10.5(b) of
the Texas Rules of Appellate Procedure. Tex. R. App. P. 26.3. Under these rules, appellant's notice of appeal
was due to be filed on April 1, 2009, but was not filed with the trial court
clerk until June 21, 2011, more than two years outside the fifteen-day
extension period.
A notice of appeal which complies
with the Texas Rules of Appellate Procedure is essential to vest this Court
with jurisdiction. See Slaton
v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998).
If an appeal is not timely perfected, this Court does not obtain
jurisdiction to address the merits of the appeal, and can take no action other
than to dismiss the appeal. Id. at 210.
We acknowledge that appellant may be
entitled to an out-of-time appeal by filing a post-conviction writ of habeas
corpus returnable to the Texas Court of Criminal Appeals; however, the
availability of that remedy is also beyond the jurisdiction of this Court.[1] See Tex.
Code Crim. Proc. Ann. art.
11.07, § 3 (West Supp. 2010); Ex parte Garcia, 988
S.W.2d 240, 241 (Tex.Crim.App. 1999).
Consequently, we dismiss this appeal
for want of jurisdiction.
Mackey
K. Hancock
Justice
Do
not publish.
[1] We note, however,
that the certification of defendants right of appeal filed in trial court
cause number 58,674-D indicates that it is a plea-bargain case, and the
defendant has NO right of appeal and the defendant has waived the right of
appeal. Thus, even if appellant is
granted an out-of-time appeal in this case, the case will be subject to
dismissal if a certification that shows that appellant has the right of appeal
is not made part of the record. See
Tex. R. App. P. 25.2(d).
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927 So. 2d 750 (2006)
ROBERTS v. ROBERTS.
No. 2004-CT-00754-COA.
Supreme Court of Mississippi.
March 23, 2006.
Petition for writ of certiorari denied.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
In this foreclosure action the plaintiff moves to strike the case from the jury docket. Defendant opposes on the ground that plaintiff, by claiming damages, attorneys' fees, interest, costs of suit and deficiency judgment, has converted this foreclosure suit from a legal to an equitable action.
The remedies sought by plaintiff are all traditionally allowed in a foreclosure action and do not turn this action into one at law.
Motion to strike the case from the jury docket is granted.
R. SATTER, STATE TRIAL REFEREE.
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706 N.W.2d 705 (2005)
In the Interest of R.S.N. and R.M.N., Minor Children,
J.S. and T.S., Appellants.
No. 05-0016.
Supreme Court of Iowa.
December 9, 2005.
*706 Sally B. Frank, Drake University Legal Clinic, and Elizabeth Kellner-Nelson, Student Legal Intern, Des Moines, for appellants.
Jeffrey T. Mains of Mains Law Office, P.L.C., Des Moines, for appellee-mother.
Catherine Levine, Des Moines, for minor children.
WIGGINS, Justice.
The juvenile court taxed reasonable attorney fees and costs against the petitioners, the prevailing parties, in a private involuntary termination of parental rights action. Because there was no statutory authority or controlling appellate decision allowing for the juvenile court to assess reasonable attorney fees and costs against the petitioners, we reverse the judgment of the juvenile court. We, however, remand this case to the juvenile court to reconsider its decision in light of Iowa Code section 600A.6B (Supp. 2005), enacted during the pendency of this appeal.
I. Background Facts and Proceedings.
T.S. and J.S. are the maternal grandparents and legal guardians of the minor children R.S.N. and R.M.N. The grandparents raised the children since infancy. In May 2004, the grandparents filed a petition to terminate the parental rights of the children's biological parents after they decided to adopt the children.
The biological mother, J.N.C., contested the termination and submitted an application for court-appointed counsel in June 2004. The juvenile court determined the mother was indigent and appointed an attorney to represent her in the proceeding. The juvenile court held the termination hearing in August 2004. The court found the mother never provided financial support for the children and made little effort to contact them. The court also found while R.S.N.'s biological father is unknown and R.M.N.'s biological father is known, both fathers abandoned the children. Even with these findings, the court denied the application to terminate the parental rights of the biological mother and the fathers, citing the failure of the grandparents to give the requisite notice to the fathers.
The mother filed a motion for enlarged findings and conclusions requesting the juvenile court to direct the state department of inspections and appeals to pay the attorney fees and costs the mother incurred and to tax the fees and costs to the grandparents as court costs. The grandparents responded by filing their own motion to amend the findings and rulings of the juvenile court contending they gave proper notice to the fathers. In their motion, the grandparents noted the court did not explain why it did not terminate the parental rights of the mother.
The mother submitted a partial resistance to the grandparents' motion. In her resistance, the mother stated she presumed the basis for not terminating her parental rights rested not on the court's inability to terminate the father's parental rights, but rather on a best interests inquiry. In October 2004, the juvenile court denied the mother's motion for attorney fees and costs because of the absence of a mechanism allowing the court to direct the state department of inspections and appeals to pay the mother's court-appointed attorney fees.
On October 28, 2004, the mother submitted a second motion for reasonable attorney fees and costs on the grounds she was the prevailing party. On November 3, 2004, the juvenile court issued an amended and substituted ruling and order reversing its prior decision by terminating the parental rights of the mother and fathers. *707 In the amended order, the court noted the children's fathers did receive notice of the termination proceeding and had abandoned the children, and the termination of the mother's parental rights was proper due to her continuing failure to provide parental support to the children.
On November 10, 2004, the grandparents filed a resistance to the mother's second motion asking for attorney fees and costs. In their resistance, the grandparents agreed some state agency should pay the mother's attorney fees, but argued the court does not have authority to require a petitioner in a private involuntary termination proceeding to pay a terminated parent's attorney fees. The grandparents also pointed out the mother was no longer the prevailing party after the juvenile court issued its amended and substituted ruling and order terminating the mother's parental rights.
On December 6, 2004, the juvenile court ordered the costs of the action, as well as reasonable attorney fees, taxed to the grandparents. The grandparents appealed the judgment taxing the costs of the action and reasonable attorney fees to them.
II. Scope of Review.
The issue presented is whether the prevailing petitioners in a private involuntary termination of parental rights action may be required to pay the costs of the action and reasonable court-appointed attorney fees for an indigent respondent. The scope of review in termination of parental rights cases is ordinarily de novo. In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005). However, to the extent the claim of error rests upon an interpretation of law, our review is for correction of errors at law. Id.; see also In re Marriage of Seyler, 559 N.W.2d 7, 8 (Iowa 1997) (stating "[q]uestions of the court's authority are reviewed for correction of errors at law").
III. Analysis.
Iowa law provides for private termination of parental rights proceedings pursuant to Iowa Code chapter 600A (2003). On May 12, 2004, six days before the grandparents filed their termination petition, this court held "an indigent parent has a right to have an attorney appointed, at public expense, to help defend against an involuntary termination of parental rights brought under Iowa Code chapter 600A." In re S.A.J.B., 679 N.W.2d 645, 646 (Iowa 2004). In so holding, we found the Iowa Constitution requires this result in cases where a private party brings a termination action because "the state is an integral part of the process in a 600A termination." Id. at 646, 650. The basis of the right to court-appointed counsel in such proceedings is to prevent discrimination by the state against indigent parents in private termination actions. See id. at 647-48, 650-51 (noting similarly situated parents in termination cases brought by the state under Iowa Code chapter 232 receive an attorney at public expense); Iowa Code § 232.113(1) (stating on the filing of a termination petition the parent has the right to counsel, and "[i]f the parent desires but is financially unable to employ counsel, the court shall appoint counsel").
The juvenile court acknowledged our In re S.A.J.B. decision in its denial of the mother's first motion for enlarged findings and conclusions when it stated:
[A]lthough the Iowa Supreme Court has ruled that a person has a right to counsel in private termination proceedings at state expense, if necessary, there is no mechanism by statute or otherwise which allows the court the authority to *708 direct the Iowa Department of Inspections and Appeals to pay the attorney fees of a person who is appointed counsel in these matters.
On appeal, the grandparents argue Iowa law does not permit a juvenile court to assess attorney fees against a party when there is no controlling appellate decision or statute allowing the court to assess attorney fees. "[I]t is well settled in this and other jurisdictions that neither a court of law nor equity has inherent power to tax costs [including attorney fees] to the losing party in any action." Harris v. Short, 253 Iowa 1206, 1210, 115 N.W.2d 865, 867 (1962).
We agree with the grandparents In re S.A.J.B. stands for the simple proposition that indigent parents facing termination proceedings enjoy a right to court-appointed counsel at public expense, just as their counterparts in termination cases brought by the state do. 679 N.W.2d at 646-47. In re S.A.J.B. is silent as to who is responsible for assuming the financial obligation of providing counsel to an indigent parent in a private termination action. Accordingly, In re S.A.J.B. did not authorize the juvenile court to order the grandparents to pay for the mother's court-appointed counsel.
We also agree with the grandparents that on December 6, 2004, when the juvenile court assessed the mother's attorney fees against the grandparents, there was no statutory authority permitting the court to do so. Only those costs or attorney fees authorized by statute are taxable. Harris, 253 Iowa at 1210, 115 N.W.2d at 867. Consequently, the juvenile court did not have authority to tax the attorney fees against the grandparents at the time it entered its order.
The grandparents also argue the court was without authority to assess the court costs against them because the juvenile court's subsequent ruling and order granted the grandparents their application to terminate the parental rights of the biological mother and fathers. Our statutes provide "[c]osts shall be recovered by the successful [party] against the losing party." Iowa Code § 625.1. Therefore, the juvenile court did not have the authority to assess the costs of this action against the grandparents, the prevailing parties.
Normally, our analysis would cause us to reverse the judgment of the juvenile court and remand the case to enter judgment without assessing reasonable attorney fees and costs against the grandparents. In this case, however, we must consider the effect of Iowa Code section 600A.6B enacted May 4, 2005, forty-four days after the grandparents filed their final proof brief.
Section 600A.6B provides:
1. A person filing a petition for termination of parental rights under this chapter or the person on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees for counsel appointed pursuant to section 600A.6A unless the court determines that the person filing the petition or the person on whose behalf the petition is filed is indigent.
2. If the person filing the petition or the person on whose behalf the petition is filed is indigent, the appointed attorney shall be paid reasonable attorney fees as determined by the state public defender.
3. The state public defender shall review all the claims submitted under this section and shall have the same authority with regard to the payment of these claims as the state public defender has with regard to claims submitted under chapters 13B and 815, including the authority *709 to adopt rules concerning the review and payment of claims submitted.
Iowa Code § 600A.6B. The legislature provided this section with retroactive application back to May 12, 2004, the date we filed In re S.A.J.B. Id. 2005 Iowa Acts ch. 107, § 14. Neither the parties nor the juvenile court considered the effect of this amendment because the governor signed the bill enacting section 600A.6B during the pendency of this appeal, almost five months after the court entered the order assessing reasonable attorney fees and costs against the grandparents.
We have said:
"Trial courts must be afforded the opportunity to avoid or correct error in judicial proceedings. Similarly, appellate courts must be provided with an adequate record in reviewing errors purportedly committed during trial. This perforce requires that counsel make timely and sufficient motions or objections upon which trial judges may rule. Absent such actions, an appellate court has nothing to review."
DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (citation omitted). We will not speculate as to the arguments the parties may have made to the juvenile court concerning the constitutionality or applicability of section 600A.6B to the present case. For this reason, we remand the case to the juvenile court to allow the parties to make their motions and arguments concerning section 600A.6B's applicability to the assessment of costs and attorney fees.
IV. Disposition.
Because there was no statutory authority or controlling appellate decision allowing the juvenile court to assess reasonable attorney fees and costs against the petitioners, we reverse the judgment of the juvenile court. It was, however, impossible for the juvenile court to consider the relevance of section 600A.6B to its award of reasonable attorney fees and costs. Accordingly, we remand this case to the juvenile court to consider section 600A.6B's applicability to this case. The juvenile court shall allow the parties to raise any issues they deem necessary in order for the court to determine if section 600A.6B has any effect on the award of reasonable attorney fees or costs in this action. We do not retain jurisdiction.
REVERSED AND CASE REMANDED WITH DIRECTIONS.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2378832/
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501 F. Supp. 1159 (1980)
Joseph GARDESKI, Hazel Gardeski, Vincent J. LaRocca, Michael Celuch, Louis J. Clausi, Joseph J. Tiano, Russell J. Costello, Thomas Mottsey, Acker Bus Lines, Inc., Edward Acker, Lucille Acker, Steven Gardeski, Helen Gardeski, Margaret Carpino, Dominic Tiano, Thomas Carpino, Richard Carpino, Stanley Gardeski, Louis Gardeski, Eva Clausi, Rose Tripoli, Chris Lindhurst, Frank D. Rittie, John Pirigyi, Leo Stopczynski, Margaret Chellemo, Theresa Ferrendino, Frank Costello, Clyde Robbins, Stanley Szynansky, Vernon J. Lewis, Jennie Lewis, Anthony Alecca, Jr., Margaret Alecca, Paul Natale, Leslie D. Elliott, George W. Acker, Paul E. Smith, Gloria Guido, Anthony Guido, Russell R. Mottsey, Emil LaRocca, Frances LaRocca, John A. Iconelli and Anna Denter, individually and on behalf of a class of all others similarly situated, Plaintiffs,
v.
COLONIAL SAND & STONE CO., INC., Hudson Cement Corp., Strelene Realty Corporation and Independent Cement Corp., Defendants.
No. 79 Civ. 1554.
United States District Court, S. D. New York.
November 24, 1980.
*1160 Gerald Orseck, Liberty, N. Y., for plaintiffs.
DeGraff, Foy, Conway, Holt-Harris & Mealey, Albany, N. Y., for defendant, Independent Cement Corp., by Michael J. Cunningham, Albany, N. Y.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendants Colonial Sand & Stone Co., Inc., Hudson Cement Corp. and Strelene Realty Corp., by Robert L. Laufer, Neal Johnston, New York City.
OPINION
SOFAER, District Judge:
This is a citizens' suit brought to enforce the anti-pollution standards of the federal Clean Air Act, 42 U.S.C.A. §§ 7401-7626 (Supp.1979). Plaintiffs are forty-five persons who live, work, or own businesses or real property in the vicinity of a cement plant located in East Kingston, New York. They allege that the plant has operated since 1976 in violation of the emission standards of both the Clean Air Act and New York state law. In particular, they claim that the plant's emissions of dust and particles have far exceeded permissible limits; that repeated requests and warnings, both private and public, failed to cause defendants to cease their illegal conduct; and that the emissions have damaged plaintiffs' health and property.
In Part I of their complaint, plaintiffs seek injunctive relief under the Clean Air Act to prevent future violations of emission standards. In Part II, plaintiffs seek money damages under state law for injuries sustained due to past violations.[1] Claims under Part II may properly be considered under the doctrine of pendent jurisdiction only if subject matter jurisdiction exists over the claim in Part I.
The defendants include the owner of the plant, Colonial Sand & Stone Company ("Colonial"); Colonial's wholly owned subsidiaries Strelene Realty Company (the owner of the underlying real estate) and Hudson Cement Corporation (which at one time performed financial services in connection with the ownership of the plant); and the lessee and operator of the plant, International Cement Corporation ("ICC"). Defendants have filed motions to dismiss and for summary judgment on several grounds, including lack of subject matter jurisdiction and, most recently, mootness. This opinion deals with the mootness claim, and with the *1161 assertion by defendants that enforcement efforts of the New York State Department of Environmental Conservation ("DEC") are sufficient to preclude jurisdiction under a statutory provision that bars citizen suits where a "State has commenced and is diligently prosecuting a civil action in a court of ... a State" to require compliance with the statute. 42 U.S.C.A. § 7604(b)(1)(B) (Supp.1979).
I. Mootness
ICC has moved to dismiss Part I of the complaint as moot. ICC has occupied the cement plant since approximately April, 1978 under a lease arrangement with defendants Colonial and Strelene. The original lease was for one year, with renewals at ICC's option for periods through March 31, 1981 and March 31, 1984. ICC exercised its first option, thereby extending the lease term to March 31, 1981. On June 6, 1980, however, ICC, citing the prohibitive cost of rehabilitation, announced its intention to discontinue operating the plant immediately and permanently. A month later, on July 14, 1980, ICC gave written notice to Colonial and Strelene of its intention not to exercise its option to extend the lease beyond March 31, 1981. ICC claims that, since it does not own and no longer operates the facility, no activity remains to be enjoined by this action.
The Supreme Court has refused on several occasions to hold that an action is moot merely because a defendant terminates allegedly improper conduct. In United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897), the dissolution of a freight association whose activities had been challenged under the Sherman Act did not prevent the Court from enjoining future illegal activities. Similarly, in United States v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953), an action was brought to enjoin violations that resulted from one individual maintaining interlocking directorates in three sets of competing corporations. After the complaint was filed, the individual resigned the offending positions, and the defendants moved to dismiss the case as moot. But the Court refused to require dismissal, stating that "voluntary cessation of allegedly illegal conduct ... does not make the case moot," since otherwise the defendant would be free to resume his former conduct. Id. at 632, 73 S. Ct. at 897.
The Court took essentially the same position under a similar fact situation in United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968), noting that a case may be moot if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, but mere statements that it would be uneconomical to engage in such acts "cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellee's shoes." Id. at 203, 89 S. Ct. at 364 (citing W. T. Grant, supra, 345 U.S. at 633, 73 S. Ct. at 897).
ICC has not met the burden of proving this action is moot. While ICC has apparently ceased operating the cement plant, it remains legally empowered to recommence the challenged activities. ICC will continue to hold the plant as lessee until at least March 31, 1981, when its current lease expires. Furthermore, although ICC has notified Colonial and Strelene that it will not exercise its option to extend the lease until 1984, ICC may in fact be free to negotiate a new lease agreement when the current one expires. So long as the plant remains standing it could be used again, by ICC, Colonial, Strelene, or by another lessee or sublessee.
If the defendants have in fact given up using the plant or permitting its use, then an injunction may be unnecessary. But the case is not moot. See United States v. Parke, Davis & Co., 362 U.S. 29, 80 S. Ct. 503, 4 L. Ed. 2d 505 (1960); United States v. Oregon State Medical Society, 343 U.S. 326, 72 S. Ct. 690, 96 L. Ed. 978 (1952).
II. Subject Matter Jurisdiction
A. Statutory Framework
The Clean Air Act, as amended, 42 U.S. C.A. §§ 7401-7626 (Supp.1979), is the product of successive efforts by Congress since 1955 to come to grips with the nation's air *1162 pollution problem. See generally F. Grad, Environmental Law § 3.03 (2d Ed. 1978). The Act is designed "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C.A. § 7401(b)(1) (Supp.1979). Primary responsibility for enforcing the statutory standards of the Clean Air Act is left to state and local governments. Id. § 7401(a).
In 1970, responding to the view that state and local efforts had failed adequately to control air pollution, Congress for the first time created a mechanism to establish specific air quality standards that each state would be obligated to enforce. Clean Air Act Amendments of 1970, Pub.L.No.91-604 § 4(a), 84 Stat. 1678 (1970) (codified in 42 U.S.C. § 7401(a) (Supp.1979)). To ensure that state and local governments would fulfill their obligations under the Act, Congress added a provision permitting suits by private citizens in federal court to enforce the substantive standards set forth in the statute. Section 304(a) of the Clean Air Act, 42 U.S.C.A. § 7604(a) (Supp.1979), reads in pertinent part:
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation ....
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty as the case may be.
The citizen suit provision, if left unqualified, might have worked to remove the primary responsibility for enforcing the Clean Air Act from the states. Congress sought no such result. Its object in permitting citizen suits was only to "motivate governmental agencies charged with the responsibility to bring enforcement and abatement proceedings." S.Rep.No.1196, 91st Cong., 2d Sess. (1970) at 36-37, reprinted in A Legislative History of the Clean Air Act Amendments of 1970 (hereinafter cited as "Legislative History") at 436-37. The citizen suit provision was therefore qualified by statutory language that precludes federal court jurisdiction when the appropriate agency is diligently prosecuting an action to enforce the statutory standards. Section 304(b)(1)(B), 42 U.S.C.A. § 7604(b)(1)(B) (Supp.1979), provides that "[n]o action may be commenced ... if the Administrator [of the federal Environmental Protection Agency ("EPA")] or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order ...."[2] Moreover, Congress provided that all prospective plaintiffs must give notice of alleged violations to EPA's Administrator, to the state in which the alleged violations are taking place, and to the alleged violators, at least 60 days before commencing a citizen suit. 42 U.S.C.A. § 7604(b)(1)(A) (Supp. 1979). This interim is designed to provide governmental agencies with an opportunity to act on alleged violations, and thereby to render the citizen suit unnecessary. S.Rep. No.1196, supra at 37, in Legislative History, supra at 437.
Plaintiffs in this action have satisfied the notice requirement. Defendants contend, however, that actions taken by the New York DEC constitute diligent prosecution of *1163 a civil action within the meaning of section 304(b)(1)(B). Plaintiffs respond, first, that DEC's actions are insufficient irrespective of the agency's diligence, since DEC failed to commence "a civil action in a court of the United States or a State," as the statute requires. Furthermore, plaintiffs contend, even if DEC's administrative actions may be treated as the equivalent of a court suit, the agency has failed to prosecute its administrative enforcement diligently.
B. Sufficiency of Administrative Proceedings
The statutory language requires, before jurisdiction may be denied or deferred, that the agency involved be found to have commenced a "civil action" in a "court." In general, a "court" would ordinarily mean something other than an administrative agency. But agencies have been deemed to be courts if "such a classification [is] necessary to achieve statutory goals." Baughman v. Bradford Coal Co., 592 F.2d 215, 217 (3d Cir.), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979). To hold that the Clean Air Act requires agencies to commence a court suit in all cases, in order to retain enforcement control, would be inconsistent with the statutory purpose as well as Congress' desire that the states be primarily responsible for enforcing the Act. Effective enforcement of Clean Air standards is Congress' goal, and it cannot be measured mechanically. A court suit may be unnecessary, for example, because an administrative proceeding has resulted in an enforceable consent judgment; or because an administrative proceeding is underway that may result in substantially the same relief that could be obtained from a court. States usually proceed administratively before going to court, and if the agency involved possesses the necessary authority and is diligent in prosecuting violations the State and its agency may be at least as effective in achieving results as a citizen in the judicial process. Plaintiffs' view of the law would require a state agency (or EPA), once notified of a citizen suit, to terminate administrative action, however successful, and to commence a court suit, however unnecessary, in order to retain control over enforcement of clean air standards.
DEC clearly possesses powers sufficient to compel compliance with air quality standards. Articles 19 and 71 of the New York Environmental Conservation Law (ECL) provide DEC with broad powers of enforcement. Air Pollution Control Act, N.Y.Envir.Conserv.Law §§ 19-0101 to 19-0711 (McKinney) and relevant enforcement provisions in id. §§ 71-0101 to 71-3903. Among other things, DEC may inspect and investigate alleged or potential violators, ECL §§ 19-0301, 19-0305; conduct hearings, id. §§ 19-0301, 19-0307; propose orders, id. § 19-0509; and issue final orders or agree to orders on consent with alleged violators, id. §§ 19-0305, 19-0509. DEC determinations are subject only to limited judicial review. Id. § 19-0511. DEC also has the power to impose civil penalties on those who violate the ECL, or any "code, rule or regulation which was promulgated thereto; or any order except an order directing such person to pay a penalty ..." Id. § 71-2103. Indeed, DEC may impose criminal penalties should such violations be wilfull, id. § 71-2105, and may request the Attorney General to seek injunctive relief against any alleged violator, id. § 71-2107. Finally, the DEC Commissioner is authorized to issue a summary abatement order, without prior hearing, in certain exigent circumstances. Id. § 71-0301.
DEC's substantial powers distinguish its capacity to enforce Clean Air standards from that of Pennsylvania's Department of Environmental Resources. In Baughman v. Bradford Coal Co., supra, the Third Circuit held that Pennsylvania's state agency could not be treated as having commenced a civil action, because the agency's only power was to assess a penalty; it had no authority to seek an injunction against air quality violations. 592 F.2d at 218-19. New York's DEC, on the other hand, does have the power to enforce air quality standards. That it may sometimes be forced to go to court to enforce its injunctive order or sanctions *1164 is no reason to require it to go to court every time a citizen files suit.[3]
C. Diligent Prosecution
Assuming that DEC's efforts at the agency level could be regarded as the equivalent of a civil action, DEC must still be shown to be diligently prosecuting some administrative enforcement proceeding. No judicial guidance exists as to what constitutes diligent prosecution. Any such determination must rest at least in part, however, on the agency's enforcement record.
1. DEC Enforcement Efforts
DEC was first made aware of possible ICC violations of emission standards when, in 1978, local citizens and politicians complained about air pollution from the plant. According to the affidavit of John Greenthal, then Regional Attorney for the DEC, the agency considered, but rejected, the possibility of seeking an injunction against further violations in state court. DEC's General Counsel at the time, Philip Gitlen, determined that a court was unlikely to enjoin operation of the plant without specific evidence of danger to the health of the community. Greenthal Affidavit, November 1, 1979, at 2-3. At about the same time, DEC also considered and rejected the possibility of pursuing criminal action against ICC. Both DEC and the New York State Department of Law, Environmental Protection Bureau, determined there was a better chance of solving the plant's pollution problems through the use of administrative procedures. Id. at 5-6.
DEC's decision to forego court action did not mean that it lacked the power to compel ICC to comply with air quality standards. It began preparing, in fact, for an enforcement action, a relatively formal adjudicatory proceeding. Before a hearing was commenced, however, the parties succeeded in negotiating an Order on Consent, which was signed by the DEC and ICC on December 15, 1978. No amount of diligence, in any court, could likely have produced as satisfactory a result so quickly. The Order included a fifteen-part Schedule of Compliance, detailing how ICC was to meet air quality standards. It also included provisions for civil penalties to be applied in the event that ICC failed to comply with certain portions of the Schedule.
DEC learned soon after the Order was signed, however, that ICC was not meeting the requirements of the Schedule of Compliance. Persons living or working near the plant continued to complain, and DEC personnel confirmed that violations were occurring. On January 18, 1979, plaintiffs served notice of their intention to commence an action in federal court to enforce the air quality standards of the Clean Air Act. An internal DEC memorandum, dated February 16, 1979, described DEC efforts and indicated some dissatisfaction with ICC's performance. Letter from Neil Isabelle, Senior Sanitary Engineer, Air Resources Staff, New Paltz to John Greenthal. But no formal demand for compliance was made, and no enforcement proceeding was commenced.
On March 23, 1979, over 60 days after giving notice of their intention to commence an action, plaintiffs filed this complaint. Four days later, DEC Regional Attorney John Greenthal sent a letter to ICC constituting a "demand for curing" within 30 days of certain violations of the Schedule *1165 of Compliance.[4] In addition, the letter to ICC stated that, "[a]lthough the inspections performed to date have revealed violations of other terms, provisions and conditions of the Schedule of Compliance, the Department has determined not to issue `demands for curing' such conditions at this time." DEC reserved the right to take action on these other alleged violations at a later date.
Plaintiffs have submitted evidence that ICC continued to violate air quality standards despite the demand for curing. Internal DEC documents indicate substantial dissatisfaction with ICC's performance. Particularly instructive is a memorandum sent on May 15, 1979 from Neil Isabelle, Senior Sanitary Engineer on the Air Resources Staff at New Paltz, to John Greenthal. It described continued violations, and suggested there was little hope of correction unless sanctions were imposed:
Since April 30th when the "Thirty Day Notice" [contained in the demand for curing] expired, representatives of this office have inspected the facility three times. The dates of the inspections were May 8th, 9th and 10th. Many violations of Parts 211 and 220 were noted during each inspection. After a week of warm dry weather, the dust situation at the facility as a whole had been entirely unsatisfactory. It is the collective opinion of the Air Resources staff that Compliance with the Order had been unsatisfactory and operations at the plant are not satisfactory. In view of the on-going violations and apparent recalcitrant attitude, I request that activation of the penalty provisions of the Order be commenced as soon as possible to provide some negative incentive. Further inspections will continue.
Mr. Isabelle concluded that his memorandum was intended "to re-inforce the opinion that the plant is not operating satisfactorily in many aspects and that the firm is not expending enough effort in this area."
At about this time, EPA began to contemplate bringing its own enforcement action. Internal EPA memoranda, dated May 25 and June 4, 1979, detailed ICC violations and concluded that DEC efforts to enforce the December 15, 1978 Order on Consent were likely to proceed slowly. These memoranda suggested that EPA issue its own Notice of Violation pursuant to its statutory authority under section 113(a)(1) of the Clean Air Act, 42 U.S.C.A. § 7413(a)(1) (Supp.1979).[5] On June 21, 1979, EPA sent ICC a Notice of Violation of air quality standards, based on an inspection of ICC conducted on May 18, 1979. ICC was given 30 days to remedy its violations or face the possibility of an injunction and/or civil penalties. It appears, however, that EPA never pursued this attempt to force ICC to comply with air quality standards, despite the fact that an EPA memorandum dated July 23, 1979, reported continuing violations.
On August 8, 1979, DEC informed ICC that it was still violating the Schedule of Compliance. ICC was told either to pay DEC a civil penalty of $50,000 or to file a written notice requesting a hearing on any issue involved in the allegation of non-compliance. The letter also contained another *1166 "demand for curing" covering violations not specified in the demand of March 27.
During the next three and one-half months DEC and ICC apparently explored ways of obtaining compliance with the December 15, 1978 Order on Consent. On September 24, representatives of DEC, ICC, and EPA met to discuss the situation. ICC promised to respond to DEC proposals and agreed to implement most of the suggestions made. Nevertheless, problems at the cement plant continued. On approximately November 26, 1979, DEC wrote ICC proposing modifications of the 1978 Order "as a resolution to the present compliance problems at the plant." The letter went on to state that "the issuing of the modification would obviate the need to initiate enforcement proceedings and the need for a hearing on the contingent penalty for violation of the original Order." Once again, DEC threatened an enforcement action, this time if the matter was not resolved by November 30, 1979.
Attempts to modify the December 15, 1978 Order failed. On December 14, 1979, one day less than one year after the original Order on Consent was signed, DEC filed a Notice of Hearing and a Complaint setting January 8, 1980 as the date for an administrative hearing to consider ICC's violations of state anti-pollution laws. The complaint alleged, among other things, violations of paragraphs 1, 2, 5, 6, 8, 9, 10, and 12 of the 1978 Schedule of Compliance. The hearing was never held; instead, on approximately January 14, 1980, ICC executed a new Order on Consent, in which ICC agreed to pay DEC $50,000 to cover the expenses DEC had incurred and would incur in monitoring the plant. Otherwise the Second Order on Consent is similar in form to that issued in December 1978. It too contains a Schedule of Compliance and provides for civil penalties in the event ICC fails to live up to its terms.
The precise sequence of events following the signing of the second Order on Consent is unclear. Documents submitted to this Court indicate that, while ICC remained in violation of some aspects of the new Schedule of Compliance, DEC was generally satisfied with ICC's overall performance. As in the past, DEC did not initiate attempts to collect penalties for violations, did not seek injunctive relief in state court, and did not commence an administrative proceeding to enforce air quality standards. See Letter of March 24, 1980 from Val Washington, DEC Regional Attorney to Michael J. Cunningham, attorney for ICC. Finally, on June 6, 1980, ICC announced its intention to stop operating the cement plant.
2. Lack of Diligent Prosecution
DEC's initial efforts resulted in the Order on Consent of December 15, 1978. That result should be viewed as sufficient in itself to satisfy the statutory requirement of diligent prosecution, had ICC complied with the Order. To require an agency to commence any form of proceeding would be senseless where the agency has already succeeded in obtaining the respondent's agreement to comply with the law in some enforceable form. Settlements should be encouraged here, as they are in virtually all areas of litigation. The Order established standards for ICC to meet, a schedule of compliance, and a procedure by which DEC could deal with any ICC failure to perform. A litigant would rarely be able to obtain greater relief in an injunctive proceeding, especially where the alleged air pollution violations resulted from constructive economic activity, and where no immediate danger to human health was alleged.
Nevertheless, DEC thereafter failed to meet any reasonable test of diligent prosecution. Events following the December 15, 1978 agreement demonstrate that the Order on Consent was ineffective. But instead of seeking promptly to enforce the Order or commencing an enforcement action, DEC continued to seek voluntary compliance. However diligent these settlement efforts may have been, they were unsuccessful and cannot be equated with the prosecution of an enforcement action. Not until March 27, 1979, after plaintiffs had filed a complaint in this action, did DEC formally demand curing of violations. That demand also was *1167 ineffective. Still, DEC failed to commence an enforcement action, or to invoke the procedures specified in the Order on Consent. On August 8, 1979, DEC issued a second demand for curing of violations of the Schedule of Compliance and announced its intention to seek civil penalties for ICC's failure to comply with the March 27 demand for curing. ICC continued to violate air quality standards, however, and it was not until December 14, 1979, that DEC filed a Notice of Hearing and Complaint. No hearing was held, because a new Order on Consent was obtained. But this Consent once again failed to eliminate all violations, which ended only when ICC voluntarily discontinued its operations. None of the steps DEC took after obtaining the December 15, 1978 Order on Consent can reasonably be characterized as the prosecution of an action.
Defendants press for an approach to the statute that would treat DEC's efforts as sufficient to warrant dismissal. They assert that the limitations on the jurisdiction of the federal courts to hear citizen suits were included to ensure that agency efforts were not hampered by "unrestricted private enforcement activity." Memorandum of Law in Support of Motions of Defendant ICC for Dismissal of the Complaint and for Summary Judgment at 11. They cite the concern expressed during Congressional consideration of the 1970 amendments to the Clean Air Act that the citizen suit provisions might be used to bring "frivolous and harassing actions." S.Rep.No.1196, supra at 18, in Legislative History, supra at 438. Furthermore, they contend that "[t]he plaintiffs are attempting to intrude upon the enforcement program which has been developed by the New York Department of Environmental Conservation." Memorandum of Law at 12. Agency enforcement policy, when it is reasonable in light of the difficulties posed by a given set of circumstances, should be protected from disruption by private efforts. One could argue in this case, for example, that DEC performed reasonably well. With limited resources at its disposal, DEC rapidly obtained an Order of Consent, and then carefully built a case for enforcement. DEC's efforts appear to have forced ICC to spend considerable amounts to improve an outdated cement plant. More vigorous enforcement might have succeeded only in forcing the plant to close even sooner than it did.
Defendants' perception of the citizen suit as interfering with agency efforts is inconsistent, however, with the spirit in which such suits were authorized by Congress and with which they have been received by the Second Circuit. "In enacting § 304 of the 1970 Amendment, Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests .... Thus the Act seeks to encourage citizen participation rather than to treat it as a curiosity or theoretical remedy." Friends of Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976), cert. denied, 434 U.S. 902, 98 S. Ct. 296, 54 L. Ed. 2d 188 (1977). See also Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 700 (D.C.Cir.1974). Of course, "unrestricted" citizen suits would be undesirable. But Congress has clearly indicated that such suits must be accepted where agency enforcement activity is insufficient.
Indeed, the legislative history suggests that citizen suits should be dismissed only if the District Court finds the state agency's conduct adequate to justify that extreme remedy:
It should be emphasized that if the agency had not initiated abatement proceedings following notice or if the citizen believed efforts initiated by the agency to be inadequate, the citizen might choose to file the action. In such case, the courts would be expected to consider the petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition. On the other hand, if the court viewed the agency action as inadequate, it would have jurisdiction to consider the citizen action notwithstanding any pending agency action. *1168 S.Rep.No.1196, supra at 37, in Legislative History, supra at 437 (emphasis added). In short, the legislative history suggests a sensitive handling of citizen suits, that reflects Congress' conviction that such suits can perform an indispensable function.
Nothing in the record supports the view that this particular case is frivolous, or that plaintiffs' federal claim for injunctive relief was brought to harass defendants. The evidence is strong that ICC operated the cement plant in continuous and substantial violation of air quality standards. Defendants may prove the contrary. But DEC and EPA shared plaintiffs' view that violations were taking place.
Anyone familiar with the complexities and costs often involved in securing enforcement of environmental goals will recognize the appeal of defendants' argument against permitting citizens to disrupt the enforcement efforts of state and local agencies. Nevertheless, the line Congress appears to have drawn in the Clean Air Act has much to commend it. Complete deference to agency enforcement strategy, adopted and implemented internally and beyond public control, requires a degree of faith in bureaucratic energy and effectiveness that would be alien to common experience. At minimum, by requiring that a "civil action" to abate violations be commenced and diligently prosecuted, Congress mandated that a relatively formal injunctive proceeding of some kind be commenced and pursued if no effective settlement is obtained. Any such proceeding, such as an enforcement action at DEC, would tend to assure Congress, the courts, and the public that agency enforcement efforts were real and sufficient.
In this case, for example, an administrative enforcement action would have required the Commissioner of DEC to designate a hearing officer, who would possess substantial independence of judgment and action. DEC would have had to assign sufficient personnel to prepare the case against ICC, and to meet deadlines set by the hearing officer. Citizens and environmental groups would have been free to attend the proceeding, and more significantly to intervene and participate as parties. Settlements would still have been possible, but the adequacy of any proposed settlement would be considered by the hearing officer, and intervenors would be given at least an opportunity to comment. See generally, In re General Electric Co., 6 Env. L.Rep. 30,001, 30,007, 30,023 (DEC-ALJ, 1975-76). Had no settlement been achieved, findings and conclusions would have accompanied the hearing officer's recommendation to the Commissioner. The Commissioner's determination would have been appealable, not only by the respondent, but also by citizens or intervenors. In short, at every point in the proceeding a record of the agency's diligence would be available to interested citizens and the courts.
To contend that citizen suits undermine agency enforcement policy is, moreover, ultimately misleading. Unquestionably, such suits may disturb the course of agency action. But the agency nevertheless remains free to adhere to its own view of the appropriate enforcement policy by continuing to press for an informal resolution and devoting its enforcement resources to other matters. This should hardly be viewed as some sort of deprivation for the agency, since it will usually result from the agency's own determination that the steps necessary to retain enforcement control are not worth the resources required. In this case, once ICC failed to comply with the 1978 Order on Consent, DEC had the choice of either commencing an enforcement proceeding and prosecuting it diligently, or permitting the citizen suit to go forward. It could not follow a different enforcement policy and still satisfy the statutory standard.
The motions to dismiss as moot and for lack of jurisdiction are denied. Defendants should make any other preliminary motions within thirty days of this order. Meanwhile, discovery should proceed.
SO ORDERED.
NOTES
[1] Plaintiffs also assert that violations of federal common law and statutes give rise to federal question jurisdiction of Part II of this action under 28 U.S.C. § 1331. Plaintiffs claim for money damages does not, however, arise under any federal law. This is not a case involving the federal common law of interstate pollution. See Illinois v. City of Milwaukee, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972). Moreover, damages do not appear to be available to private litigants who sue under the Clean Air Act.
[2] The provision for citizen suits was originally included in the Senate, but not the House, version of the 1970 bill. The Senate bill did not contain the specific language precluding jurisdiction in cases where there was diligent prosecution by a state or federal agency. It is clear from the legislative history, however, that the Senate did intend that this type of limitation be placed on citizen suits.
[3] The only reported case dealing with the issue is Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979), discussed in text. Plaintiffs may have waived any right to object to a finding that DEC action could be treated as a "court" proceeding. In several documents as well as in oral statements to this Court, plaintiffs conceded that DEC action could fulfill this portion of the statutory language. For example, in one of plaintiffs' memoranda of law they stated: "Plaintiffs readily concede that the holding in [Baughman] is applicable here-the N.Y.S. Dept. of Environmental Conservation has the power of a state court with respect to the correction of violations alleged here, and consequently, may be considered a state court as defined in 42 U.S.C. § 7604(b)(1)(B)." Plaintiff's Factual Memorandum: No Diligent Prosecution by State Agency of Compliance Proceedings, September 21, 1979, at 3 n.3.
[4] The December 15, 1978 Order on Consent provided that the DEC would serve a demand for curing "[i]n the event that the Department alleges that Respondent has violated any term, provision or condition of the Schedule of Compliance." The Order further provided that if ICC failed to comply with such a demand within a period to be specified by the DEC, the DEC would serve written notice of non-compliance and ICC would then have 15 days either to pay the civil penalty specified in the Order or to demand an administrative hearing on the alleged violations.
[5] The May 25 Memorandum, sent from F.W. Giaccone, the Chief of the Air Facilities Branch to Robert N. Ogg, Chief of the New York/Virgin Islands Section of the Air Facilities Branch, and to Steven Dvorkin, Chief of the General Enforcement Branch contained the following: "DEC intends to pursue the violation of the order. This could be a slow process. GEB should, therefore, discuss with DEC the possibility of a separate EPA enforcement action. The company has been resistant for several years and all possible pressure should be applied. Based on the above violations, a Notice of Violation should be issued."
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Fourth Court of Appeals
San Antonio, Texas
July 25, 2014
No. 04-14-00397-CV
IN THE INTEREST OF S.D.A., S.A.A., D.S.A., Children,
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2013EM506191
Honorable Eric Rodriguez, Judge Presiding
ORDER
Judgment was rendered on May 14, 2014, and appellant timely filed a notice of appeal.
See TEX. R. APP. P. 26.1. The clerk’s record and reporter’s record were due on July 14, 2014.
The clerk’s record was filed on July 18, 2014. No reporter’s record has been filed. In response
to an inquiry by this court’s clerk, the trial court coordinator stated that no court reporter was
assigned to the case, the hearing was taken by audio recording, and appellant has not requested a
copy of the audio recording.
Accordingly, it is ORDERED that within fifteen (15) days from the date of this order the
appellant provide written proof to this court showing that a copy of the audio recording of the
hearing has been requested from the trial court coordinator. If no copy of the hearing is
requested within such timeframe, the appellant’s brief will be due thirty (30) days after the date
of this order.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 25th day of July, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
First Lieutenant TONYA M. JONES-MARSHALL
United States Army, Appellant
ARMY 20100649
Headquarters, XVIII Airborne Corps and Fort Bragg
Gary J. Brockington, Military Judge
Colonel Stephen J. Berg, Staff Judge Advocate
For Appellant: Captain Meghan M. Poirier, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA;
Captain Jennifer A. Parker, JA (on brief); Colonel Patricia A. Ham, JA; Lieutenant
Colonel Imogene Jamison, JA; Major Richard E. Gorini, JA; Captain Meghan M.
Poirier, JA (on brief in response to specified issues).
For Appellee: Captain Daniel D. Maurer, JA (argued); Major Amber J. Williams,
JA; Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (on brief); Major
Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA
(on brief in response to specified issues).
28 March 2012
----------------------------------
OPINION OF THE COURT
----------------------------------
KRAUSS, Judge:
A panel of officers, sitting as a general court-martial, convicted appellant,
contrary to her pleas, of three specifications of conspiracy to commit larceny, one
specification of larceny, and six specifications of forgery, in violation of Articles
81, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, 923
(2006) [hereinafter UCMJ]. Appellant was acquitted of four specifications of false
official statement and two specifications of fraud against the United States, alleged
in violation of Articles 107 and 132, UCMJ, respectively. The convening authority
approved the adjudged sentence to dismissal from the service.
Appellant’s case is now before this court for review under Article 66, UCMJ.
She raises two assignments of error asserting that the evidence is legally and
JONES-MARSHALL—ARMY 20100649
factually insufficient to support her convictions for forgery and that the military
judge committed plain error by failing to treat the larceny and forgery charges as an
unreasonable multiplication of charges. In addition, we specified the issue as to
whether the evidence was legally and factually sufficient to support two of
appellant’s convictions for conspiracy.
BACKGROUND
Appellant, a mobilized reservist, assumed duties at Fort Jackson, South
Carolina in 2005 and, over the course of the following two years, stole over $50,000
from the United States by submitting phony rental receipts and rental agreements for
reimbursement she was not authorized. The government charged appellant with
submission of false claims as well as larceny and false official statement. The
government also charged appellant with forgery based on the falsified lease
agreements and rental receipts she made that also served as the basis for the charged
larceny and false claims. Indeed, under Article 123, UCMJ, the government charged
appellant with forgery on the theory that the documents at issue “would, if genuine,
apparently operate to the legal harm of the United States, in that [they were] used to
fraudulently submit travel vouchers.” The leases and receipts at issue concerned
purported agreements and transactions between individual private parties. The
testimony of several witnesses established appellant’s responsibility for the creation
and submission of the false documents charged and the receipt of money from the
United States as a result.
Appellant also faced charges of conspiring separately with three different
individuals to steal money from the United States by submitting fraudulent travel
vouchers in a similar fashion. In relation to the alleged conspiracies, the co-
conspirator alleged under Specification 1 of Charge I actually testified. The
government relied entirely upon documentary evidence to prove the two other
conspiracies alleged under Specifications 2 and 3 of Charge I.
LAW AND DISCUSSION
Forgery
Here the government fell into the trap set by Article 123 for those who
overlook the legal efficacy requirement necessary to properly prosecute forgery
under the UCMJ. See United States v. Thomas, 25 M.J. 396, 402 (C.M.A. 1988).
Article 123 is a narrowly defined statute that is strictly interpreted. United States v.
Hopwood, 30 M.J. 146, 147 (C.M.A. 1990). While forgery in a general sense may
simply include false signature to a document or the falsification of another
document, forgery under the UCMJ includes only those falsified documents that
“would, if genuine, apparently impose a legal liability on another or change his legal
right or liability to his prejudice.” UCMJ art. 123(1). In order to properly convict a
soldier of forgery, the evidence must establish that the false document alleged must
2
JONES-MARSHALL—ARMY 20100649
itself impose such legal harm. The document in question and extrinsic facts are
admissible to show whether the document in and of itself possesses this legal
efficacy required to sustain a proper prosecution and conviction for a violation of
Article 123, UCMJ. Hopwood, 30 M.J. at 147; Thomas, 25 M.J. at 401–02. Here,
neither the falsified leases nor the falsified receipts apparently impose a legal
liability on the United States.
Both the leases and receipts purport to reflect agreements and transactions
between private parties that neither expressly nor implicitly bear any relationship to
the United States whatsoever. Neither the leases nor the receipts themselves create
or purport to create any legal right or liability on the part of the United States. The
leases alleged involve the accused and a Mr. MN as lessee and lessor, respectively,
and Sergeant First Class KLP and Ms. RN as lessee and lessor, respectively.
Nowhere is the United States mentioned in either case and the leases in question
contain nothing that would offer any legal right or impose any legal liability upon
the United States. The receipts purport to reflect rent paid by individuals in their
private capacity to individuals in their private capacity. The receipts neither
expressly or by implication involve the United States in any sense.
The government argues that when considered in light of the Joint Federal
Travel Regulation (JFTR), the leases and receipts perfect a mobilized reservist’s
right to reimbursement from the United States for rent paid and therefore satisfy the
legal efficacy requirement. See D EF . T RAVEL M GMT O FFICE , J OINT F ED . T RAVEL
R EG ’ S , V OL . 1, ch. 4 (C303, 1 March 2012). However, the JFTR provision relied
upon does not describe those or any documents as instruments perfecting any claim
for reimbursement. The JFTR merely allows reimbursement for rent paid by
mobilized reservists while in a temporary duty status. Nor do the leases and receipts
in this case purport to create a right to reimbursement or establish an entitlement to
reimbursement. Testimony rendered by an employee of the Defense Finance and
Accounting Service on the subject establishes that while documents such as a lease
and receipt for rent paid may serve as part of any package necessary to claim
reimbursement for rent, additional, separate documents, including orders, that
establish a reimbursable status, and a travel voucher, are essential before a soldier
can expect the United States to reimburse for rent paid. Therefore, neither the JFTR
nor any other extrinsic fact in this case establishes that the alleged receipts or leases
themselves perfect a right to reimbursement or that those documents, in and of
themselves, impose a legal harm on the United States.
While falsified leases and receipts may properly serve as the basis for prosecution
under Article 123, UCMJ, in other circumstances, they cannot as alleged and
prosecuted here.
3
JONES-MARSHALL—ARMY 20100649
Additional documents in a particular case may constitute extrinsic facts
relevant to the question of legal efficacy when considered in conjunction with the
false document. See Thomas, 25 M.J. at 400–02. However, those additional
documents must actually confer legal efficacy upon the document itself, define the
document as possessing legal efficacy itself, or establish that, under the
circumstances, legal efficacy inheres in the document alleged. Additional
documents that illustrate the alleged false documents as merely preliminary steps
toward imposition of legal harm or perfection of a legal right, on the other hand, do
not suffice as proof of forgery. This distinction preserves the statutory requirement
to prove legal efficacy as defined. Hopwood, 30 M.J. at 147–48; Thomas, 25 M.J. at
400–02. Because documents that are merely preliminary and necessary steps toward
perfection of a legal right or imposition of a legal harm cannot, as a matter of law,
constitute forgeries under Article 123, UCMJ, the forgeries in this case must fail.
Hopwood, 30 M.J. at 148.
While creation and provision of the falsified leases and receipts may
constitute preliminary steps toward perfecting a false claim against the United
States, in this case, the lease and receipts themselves neither impose an apparent
liability on the United States nor apparently perfect a soldier’s entitlement to
reimbursement for rents paid. Neither do those documents possess that legal
efficacy when viewed in conjunction with the JFTR. One who submits falsified
rental agreements or receipts for rent, alone, to finance, will not be reimbursed for
rent on the basis of those documents alone or by reference to the JFTR. Either taken
alone or as steps toward perfection of such an entitlement they cannot, as a matter of
law, constitute forgeries under Article 123, UCMJ. Hopwood, 30 M.J. at 147–48;
Thomas, 25 M.J. at 400–02.
The limitation of the law under Article 123, UCMJ, does not prevent the
government from properly prosecuting a soldier for dishonest dealings in this
respect. Indeed, this case exemplifies that fact. Appellant was properly prosecuted
for larceny and false claim based on the same facts used to prosecute the forgery
offenses and was ultimately convicted of larceny. Hopwood, 30 M.J. at 148.
Conspiracy
In response to the issue specified by this court, the appellant argues and the
government concedes that the evidence is factually insufficient to support
appellant’s conviction for conspiracy under Specification 2 of Charge IV. We agree.
After consideration of the record and the briefs and arguments of the parties, we also
maintain reasonable doubts about whether appellant entered into the agreement
necessary to support a conviction under Specification 3 of Charge IV, as alleged,
and find the evidence factually insufficient to support the same. UCMJ art. 66(c).
4
JONES-MARSHALL—ARMY 20100649
CONCLUSION
The findings of guilty of Specifications 2 and 3 of Charge I and of the
specifications of Charge IV and Charge IV are set aside and dismissed. The
remaining findings of guilty are affirmed. Under the particular facts of this case we
are confident that reassessment of the sentence is appropriate. Indeed we agree with
the sense of appellant’s argument, relative to an unreasonable multiplication of
charges, that the larceny constitutes the gravamen of the misconduct charged, are
confident that the sentence to dismissal is not inappropriately severe and that a
dismissal would be imposed by this court-martial even absent charge of the forgery
and conspiracy offenses here disapproved. Reassessing the sentence on the basis of
the error noted, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms the sentence as approved by the convening
authority.
Senior Judge JOHNSON and Judge BURTON concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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170 P.3d 1205 (2007)
CITY OF SPOKANE, Respondent,
v.
Lawrence J. ROTHWELL, Petitioner.
City of Spokane, Respondent,
v.
Henry E. SMITH, Petitioner.
Nos. 25316-3-III, 25317-1-III.
Court of Appeals of Washington, Division 3.
November 8, 2007.
*1206 Breean Lawrence Beggs, Center for Justice, Spokane, WA, for Petitioner.
Michelle Dimond Szambelan, City Attorneys Office, Spokane, WA, for Respondent.
SWEENEY, C.J.
¶ 1 Spokane county voters elect district court judges. But those judges also preside over Spokane city municipal cases, with the judges sitting as "municipal court judges" by designation. This is despite the fact that state statute mandates that only city voters may select municipal judges. And all of the Spokane County district court judges are designated as part-time municipal judges despite another state statute that requires designation of municipal departments. We conclude, therefore, that the way in which the Spokane municipal judges are elected is contrary to state law. We therefore reverse these convictions.
FACTS
¶ 2 The city of Spokane entered into an agreement (Interlocal Agreement) in 2004 with the county of Spokane for the county to provide municipal court services for the equivalent of 3.7 full-time judges and related services. The county district court is serviced by nine judges elected county-wide. There are no elections for municipal judges per se. The "municipal department" is instead rotated among the district court judges based on a schedule. The parties suggest that the schedule is created by the district court itself, but there is no information in this record one way or the other. The agreement ended by its terms on December 31, 2004. But, apparently, the city and the county continued to operate under the terms of the agreement, although this is also not clear from either the record or the briefs on file here.
¶ 3 The City of Spokane charged Henry Smith with driving under the influence, and Lawrence Rothwell with physical control of a motor vehicle under the influence under the Spokane Municipal Code in April 2005. Both cases were assigned to Judge Patti Walker. Judge Walker is a district court judge; her department is department No. 4. She was elected in 2002 in a county-wide, not city-wide, election.
¶ 4 Mr. Rothwell and Mr. Smith moved pretrial to dismiss for lack of jurisdiction. They argued that the Spokane municipal department was created in violation of state statute and was therefore an invalid entity. And Judge Walker had not been properly elected to the position of Spokane municipal court judge. Judge Walker denied both motions and concluded the court had jurisdiction in both cases. Mr. Rothwell and Mr. Smith were convicted as charged.
*1207 ¶ 5 Both Mr. Rothwell and Mr. Smith appealed to superior court and again challenged the district court's authority to preside over city cases. The superior court (Judge Rebecca Baker) concluded that the statutory scheme (and particularly RCW 3.46.070[1]) was not violated as long as a majority of city voters voted for a particular district court candidate. Judge Baker also concluded that the statute has been complied with but for the fact that there was no designation of municipal positions on the ballot. Judge Baker stated that there is nothing of "real consequence" that is implicated by such an omission. Clerk's Papers at 12.
¶ 6 We accepted discretionary review.
DISCUSSION
¶ 7 Mr. Rothwell and Mr. Smith contend that Judge Walker was not properly elected to the position of municipal court judge because she was elected in a county-wide election of a district court seat rather than by city voters to a municipal court position, contrary to RCW 3.46.063(1) and RCW 3.46.070. They also argue that the municipal department of the district court was created and maintained in violation of the scheme set out in chapter 3.46 RCW. And it is not therefore a valid department. They argue that Judge Walker (and necessarily all other Spokane county municipal judges) must be elected solely by the residents of the city of Spokane and elected to specific municipal court departments, designated as such on the ballot.
¶ 8 Whether the city's approach to creating a municipal department of the Spokane County District Court and electing its judges complies with the state statutory scheme is a question of law. And so our review is de novo. Enter. Leasing, Inc. v. City of Tacoma, Fin. Dep't, 139 Wash.2d 546, 551-52, 988 P.2d 961 (1999). The city must strictly comply with the statutes and the statutory scheme we apply here because they implicate the franchise rights of the citizens of Spokane. State v. Moore, 73 Wash.App. 805, 813-14, 871 P.2d 1086 (1994). The city argues that substantial compliance is sufficient but cites no relevant authority for that proposition.
ELECTION
¶ 9 RCW 3.46.063(1) requires that each full-time equivalent judicial position be filled by election. The words "full-time equivalent" refers to hours per week of judicial time, so more than one person could fill a position. But all must be elected. RCW 3.46.063(1). Any additional positions that equal one-half of a full-time position or more must also be filled by election. RCW 3.46.063(2). And only city voters may vote for municipal judges. RCW 3.46.070.
¶ 10 The designation of 3.7 full-time municipal judicial positions then triggers the requirement of RCW 3.46.063(1) that all municipal judges involved with serving that time be elected. And they must be elected by city voters only; voters who are told that they are electing municipal judges. RCW 3.46.070. That was not done here. City of Spokane voters did not elect Judge Walker or any of the other judges designated to serve a term as a municipal department. That designation was made by some other administrative process, again unclear from this record. And the city does not assert otherwise. It contends instead that it substantially complied with the statute because city voters (also citizens of the county) voted for the district court judges and did so in roughly the same proportion as the county voters. The superior court agreed.
¶ 11 A municipal judge is separate and distinct from a district court judge. RCW 3.46.020, .030, .063, .070. RCW 3.46.070 is clear and unambiguous. Only city voters shall vote for municipal judges designated as such by the county auditor. We must read the statute literally. See Bostain v. Food Express, Inc., 159 Wash.2d 700, 708, 153 P.3d 846 (2007), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 18, 2007) (No. 07-402); see also Bruett v. Real Prop. Known as 18328 11th Ave. N.E., 93 Wash. App. 290, 301, 968 P.2d 913 (1998) (court *1208 cannot amend unambiguous statute by judicial construction). The city urges substantial compliance as the standard but again cites no meaningful authority for that proposition.
¶ 12 Judge Walker was not, then, elected to the position of municipal court judge by the citizens of Spokane and had no authority to preside over these trials. In light of this conclusion, we need not decide in this case whether the municipal department was created and maintained in violation of chapter 3.46 RCW.
DE FACTO JURISDICTION
¶ 13 The city argues nonetheless that Judge Walker had de facto authority to act as a judge even assuming that she was not properly elected. Mr. Smith and Mr. Rothwell respond that Judge Walker did not have de facto authority because she was not elected by city voters.
¶ 14 A judge may exercise the authority of an office if he or she is a de facto officer. That requires a showing that he or she holds an office, exercises its functions, and discharges the duties under some color of right. Foisy v. Conroy, 101 Wash.App. 36, 41, 4 P.3d 140 (2000). A de facto judge exercises "`the duties of the judicial office under color of authority pursuant to an appointment or election thereto, and for the time being performs those duties with public acquiescence, though having no right in fact, because the judge's actual authority suffers from some procedural defect.'" Cotton v. City of Elma, 100 Wash.App. 685, 700, 998 P.2d 339 (2000) (quoting 46 AM.JUR.2D, Judges § 242 (1994)).
¶ 15 Here, Judge Walker was neither elected nor appointed by the citizens of the city of Spokane; therefore, she has no color of right and no de facto jurisdiction. In Nollette v. Christianson,[2] the court rejected the notion that all Spokane County district court judges had de facto jurisdiction to act in the capacity of Spokane municipal judges. Nollette, 115 Wash.2d at 605, 800 P.2d 359. Nollette held that without an appointment, no district court judge could act as a municipal court judge. Id. The statutes now require that municipal judges in Spokane be elected, but it follows from Nollette that without such an election, no district court judge has jurisdiction over municipal cases. RCW 3.46.063; Nollette, 115 Wash.2d at 605, 800 P.2d 359.
¶ 16 And here the first Interlocal Agreement was expired so there was no attempt to create a municipal department. And more significantly, no municipal department was created in compliance with chapter 3.46 RCW.
HOLDING
¶ 17 We conclude that Judge Walker did not hold color of right to the office of municipal court judge and was therefore without authority to preside over municipal proceedings and impose judgment. We therefore reverse the convictions.
I CONCUR: SCHULTHEIS, J.
BROWN, J. (concurring in part, dissenting in part).
¶ 18 I agree that the manner for electing Spokane municipal judges is flawed and thus, concur partly in the majority opinion. However, because I would hold the judges acted with de facto authority, I part company with the majority in reversing the convictions of Mr. Smith and Mr. Rothwell.
¶ 19 In State v. Canady, 116 Wash.2d 853, 856-57, 809 P.2d 203 (1991), the court discussed the difference between de facto offices and de facto judges. The Canady court noted the applicable rule is found in Higgins v. Salewsky, 17 Wash.App. 207, 212, 562 P.2d 655 (1977). Generally, a de jure office is a precondition for a de facto officer. But an exception exists where the office is created by a flawed legislative act or municipal ordinance "and the office is regarded as a de facto office until the act or ordinance is declared invalid." Canady, 116 Wash.2d at 857, 809 P.2d 203 (citation omitted). Considering the 2004 Interlocal Agreement and the ordinance under the legislative scheme, an "official attempt was made to `create' the `office' in question by act or ordinance." Id. (citation omitted). Therefore, I would apply *1209 the exception recognized in Canady and affirm the convictions.
¶ 20 Accordingly, I respectfully dissent in part.
NOTES
[1] "In each district court district where an election is held for the position of municipal judge, the county auditor . . . shall designate the proper number of municipal judge positions. . . . Only voters of the city shall vote for municipal judges."
[2] Nollette v. Christianson, 115 Wash.2d 594, 800 P.2d 359 (1990).
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Case: 12-12497 Date Filed: 09/23/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12497
________________________
D.C. Docket No. 8:09-cr-00585-SCB-TBM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIAN I. MORGAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 23, 2013)
Before BARKETT and MARCUS, Circuit Judges, and HUCK, * District Judge.
PER CURIAM:
*
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
Case: 12-12497 Date Filed: 09/23/2013 Page: 2 of 5
Following a jury trial, Marian Morgan was convicted of one count of
conspiracy to defraud the United States, seven counts of wire fraud, five counts of
transfer of funds taken by fraud, six counts of engaging in a monetary transaction
involving criminally derived property, and three counts of making false statements
on income tax returns. She received a total sentence of 420 months’ imprisonment,
below the advisory guideline range of 264 years. Morgan appeals her conviction
arguing that the district court erred by allowing the government to introduce
evidence of her husband’s guilty plea through the testimony of his attorney. As to
her sentence, she argues that it is substantively unreasonable and that the district
court erred in applying three separate sentencing enhancements: (1) four levels for
being an organizer or leader of criminal activity under U.S.S.G. § 3B1.1(a); (2)
two levels for abuse of a position of trust under U.S.S.G. § 3B1.3; and (3) two
levels for obstruction of justice under U.S.S.G. § 3C1.1.
Having carefully reviewed the parties’ briefs and the record and having the
benefit of oral argument, we find no reversible error in the district court’s rulings
with the exception of the application of the abuse of trust enhancement. The
evidence failed to establish that Morgan occupied a position of trust distinct from
that which this Court has found inadequate to justify the abuse of trust
enhancement. The abuse of trust enhancement requires more than a showing of an
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arms-length transaction or commercial relationship that one would find in any
investment fraud case, which we find to be the situation here.
Under U.S.S.G. § 3B1.3, a two-level enhancement is applied if “the
defendant abused a position of public or private trust, or used a special skill, in a
manner that significantly facilitated the commission or concealment of the
offense.” U.S.S.G. § 3B1.3. In order for the abuse of a position of trust
enhancement to apply, the government must establish that: (1) “the defendant held
a place of private or public trust,” (2) the victim conferred the trust, and (3) the
defendant “abused that position in a way that significantly facilitated the
commission or concealment of the offense.” United States v. Walker, 490 F.3d
1282, 1300 (11th Cir. 2007).
In United States v. Mullens, 65 F.3d 1560, 1566-67 (11th Cir. 1995), where
the defendant operated an elaborate Ponzi scheme that tricked investors into giving
the defendant unfettered control over their funds, which were never invested, this
Court held that the defendant did not occupy a position of trust simply by
developing ordinary social relationships with some of his investors, and the abuse
of trust enhancement did not apply.
Likewise in United States v. Morris, 286 F.3d 1291, 1292 (11th Cir. 2002),
the conspirators obtained investors’ funds by purporting to offer high-yield
3
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investment opportunities and then using wire transfers to send the funds to other
persons or entities. One conspirator, Morris, represented himself as an attorney
and professional trader and used these representations to encourage investors to
transfer him their funds. Id. at 1295-96. Morris “contacted and maintained
contact” with the investors directly and called one victim numerous times and
falsely assured that the victim’s money was on the way. Id. at 1296. We stated,
“Morris may have abused the trust of the victims, but that is not the inquiry here.
The initial question is whether or not Morris occupied a position of trust.” Id. at
1297. We held that although Morris may have used his status as an attorney to
develop the trust of his victims and represented himself as a professional trader,
more was required than control or discretion to justify the § 3B1.3 enhancement.
Id. at 1298. “Something more akin to a fiduciary function is required.” Id. at
1299. Thus, we held that the abuse of trust enhancement was improper. Id. at
1300.
Neither the PSI nor the district court identified any particular investor or
group of investors with whom Morgan had any association, much less a bona fide
relationship of private trust, other than to perpetrate MEH’s investment fraud.
While Morgan fraudulently induced the investors to trust her and MEH with their
money, the government failed to establish that she abused a bona fide relationship
of trust as contemplated by U.S.S.G. § 3B1.3. See Mullens, 65 F.3d at 1567
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(“Fraudulently inducing trust in an investor is not the same as abusing a bona fide
relationship of trust with that investor.”). Thus, the district court erred in applying
the two-level enhancement for abuse of trust under U.S.S.G. § 3B1.3.
Accordingly, we hereby AFFIRM Morgan’s conviction, and VACATE the
sentence imposed and REMAND for resentencing.
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186 P.3d 1149 (2008)
STATE of Washington, Respondent,
v.
Russell Raymond VANT, Appellant.
No. 35779-8-II.
Court of Appeals of Washington, Division 2.
July 1, 2008.
*1151 Thomas Edward Doyle, Attorney at Law, Hansville, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.
Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.
PENOYAR, J.
¶ 1 A jury convicted Russell Vant of a protection order violation and a sex offender registration violation. Vant appeals the protection order violation conviction on the ground that the State produced insufficient evidence to prove that the home where he was seen by his community corrections officer (CCO) was the protected party's "residence." Vant further asserts that the State failed to prove a prior out-of-state conviction or conduct a comparability analysis, as required. Vant alleges that the trial court erred by including two prior convictions in his offender score that the State did not prove, imposing improper conditions for community custody, and sentencing him in excess of the maximum sentence possible. We affirm but remand for a new sentencing hearing and clarification of Vant's judgment and sentence.
FACTS
¶ 2 A restraining order entered on January 3, 2006, prevented Vant from knowingly coming within one mile of his niece, Raven Carter, or her residence. On August 29, 2006, two CCOs familiar with Vant observed him on the porch of 7030 Steamboat Island Road Northwest in Thurston County. That address is the home of Vant's sister, who is Carter's mother.
¶ 3 Eric Kolb, a detective in the Thurston County sexual offender registration unit, supervised Vant as a sexual offender. Without a stable residence, Vant met with Detective Kolb on July 14, 2006 to "[register] as a transient in Thurston County." Report of Proceedings (RP) (Dec. 20, 2006) at 39. At the meeting, Kolb instructed Vant to "check in . . . every single Monday" at the Thurston County Sheriff's Office to keep Kolb apprised of his whereabouts. RP (Dec. 20, 2006) at 42. Vant last signed in with the sheriff's office on August 14, 2006. Between August 14 and Vant's arrest in October 2006, the sheriff's office had not received any letters or phone calls from Vant explaining his absence. Vant was subsequently arrested and charged with violating the order prohibiting contact, *1152 and violating sex offender registration requirements.[1]
¶ 4 At trial, Vant testified that he "assumed" Carter lived with her mother but that he was told that Carter would not be home, so he went over to "get some laundry" and "[take] a bath." RP (Dec. 20, 2006) at 75. Vant further testified, with respect to the sexual offender registration, that Detective Kolb explained the registration rules to him but that his "comprehension is not that good." RP (Dec. 20, 2006) at 77. When asked on cross-examination if he reported to the police after August 14, Vant responded: "I'm not aware of what I did or didn't do." RP (Dec. 20, 2006) at 84.
¶ 5 Carter testified as well, noting that she only lived "[o]ff and on" with her mother during August 2006. RP (Dec. 20, 2006) at 9. She testified that she was not at her mother's house on August 29, when Vant was seen on the porch, but that she was there the next day when police came to take her statement. Carter testified that she received mail at her mother's house and that she kept personal belongings and property there as well.
¶ 6 The jury convicted Vant on both counts and the trial court sentenced him on January 11, 2007. The trial court sentenced Vant to 18-months' confinement and 36-to-48-months' community custody. Additionally, the trial court ordered Vant to refrain from possessing or consuming any controlled substances or from possessing or perusing any "sexually explicit images" at his CCO's discretion. Clerk's Papers (CP) at 36. The trial court further ordered Vant to submit to random urinalysis/portable breath test/blood alcohol content (urinalysis/PBT/BAC) tests and random polygraph tests at his CCO's discretion.
¶ 7 Vant now appeals.
ANALYSIS
I. Sufficiency of the Evidence
¶ 8 The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980). When the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Theroff, 25 Wash. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wash.2d 385, 622 P.2d 1240 (1980); State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (en banc). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990)). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wash.2d at 874-75, 83 P.3d 970 (citing State v. Cord, 103 Wash.2d 361, 367, 693 P.2d 81 (1985)).
¶ 9 Under RCW 10.99.050(2)(a), willful violation of a protection order issued under RCW 10.99.050 is punishable, and knowledge is a necessary statutory element of a protection order violation. Under the protection order provisions, Vant was not to have any contact with Raven Carter, nor knowingly come within one mile of Carter's residence.[2] No address was listed on the protection order. The jury was instructed that if Vant, knowing of these provisions, willfully violated the order by knowingly entering or coming within one mile of Carter's residence, he should be convicted of the offense.
¶ 10 Carter testified that she was living "[o]ff and on" at her mother's house the end of August 2007. RP (Dec. 20, 2006) at 9. She also testified that her personal property and possessions were kept at her mother's house. *1153 She could not remember exactly where she stayed the week of the violation, but Carter did recall being at her mother's house on August 30 when a deputy stopped by the house to take her statement. Additionally, Carter received her mail at her mother's address.
¶ 11 Jurors heard from Vant as well, who replied "yes" when asked by the State if he knew that Carter lived with her mother. RP (Dec. 20, 2006) at 87. Further, when asked by his own counsel if he was aware that Carter was living with her mother, Vant responded: "I assumed [Carter] was living there. I mean, [my sister] told me [Carter] wouldn't be there and I could go and get my stuff." RP (Dec. 20, 2006) at 75.
¶ 12 In his appeal, Vant argues that the dictionary definition of "residence" does not align with Carter's testimony, regarding her living habits, when he visited his sister's house on August 29, 2007. Appellant's Br. at 8. Per Vant, Webster's Dictionary, "residence" means:
the act . . . of abiding or dwelling in a place for some time: an act of making one's home in a place . . .; the place where one actually lives or has his home distinguished from his technical domicile; . . . a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit. . . . Appellant's Br. at 7 (citing to Webster's Third New International Dictionary 1931 (1969)).
¶ 13 Under this definition, any reasonable jury could easily find, beyond a reasonable doubt that Carter, in fact, "resided" at her mother's house. She testified that though she did not live there all the time, she did live there off and on, kept personal belongings there, and received mail there. Carter may not have lived there full time, but her testimony indicates that her mother's house was at least a "temporary . . . dwelling" to which she intended to return. RP (Dec. 20, 2006) at 9. Further, the jury heard that Carter returned to her mother's house the day after Vant's visit, as the police took her statement. Vant relies heavily on the idea that Carter did not reside at her mother's but, rather, that it was more of a "technical domicile." Appellant's Br. at 8.
¶ 14 Regardless, Vant's own testimony demonstrated to the jury that he "assumed" Carter lived there and that he was attempting to visit when she would not be home. RP (Dec. 20, 2006) at 75. Even under the residence definition Vant presented, any reasonable trier of fact could have found Vant guilty of "knowingly coming within one mile of the residence of Raven Carter," this violating the protection order. CP at 25; Instr. 12.
II. Comparability
¶ 15 Vant argues that because the State did not prove his 1984 Georgia felony conviction, nor show that it is "comparable" to a Washington felony, it should not have been used in calculating his offender score.[3]State v. Cabrera, 73 Wash.App. 165, 168, 868 P.2d 179 (1994). In fact, the State did not present proof of conviction nor of comparability at sentencing.[4] Had this prior felony been omitted from his score, his standard range would have decreased from 17-22 months to 4-12 months. RCW 9.94A.525(16). Further, Vant, citing In re Personal Restraint of Cadwallader, 155 Wash.2d 867, 123 P.3d 456 (2005), argues that upon remand for resentencing, the State should be held to the existing record and prohibited from providing new information or analysis to the court.
*1154 ¶ 16 The State points out, however, that Vant provided the trial court with proof of his out-of-state conviction when he stipulated, on the record, that he was "previously convicted of a felony sex offense." RP (Dec. 20, 2006) at 63. Further, the State argues that comparability analysis was unnecessary because for offender scoring purposes, it makes no difference whether the prior conviction was comparable to a class A, class B, or class C felony, or even whether it was a felony at all, only that it was a sex offense.
¶ 17 In Washington, persons required to register as a sex offender are described as having "been found to have committed or . . . been convicted of any sex offense or kidnapping offense . . ." RCW 9A.44.130(1). RCW 9.94A.030(42) lists the various crimes considered to be sex offenses.
¶ 18 The State properly points out that because Vant stipulated to the felony sex offense at trial, and did not dispute that he was required to register as a sex offender, he provided the trial court with the evidence required to prove by a preponderance of the evidence that the prior conviction should be included in his offender score. As such, this issue need not be remanded for resentencing; Vant's offender score properly included his 1984 out-of-state felony sex offense conviction. RCW 9.94A.525(2).
III. Prior Convictions
¶ 19 The State concedes that at sentencing they did not provide independent proof of two prior convictions for sex offender registration statute violations used to calculate Vant's offender score. It further concedes that the matter should be remanded for resentencing in light of this omission. Under Ford, the State contends that because Vant failed to object at sentencing, the State should be permitted to introduce new evidence to prove the convictions on remand.[5]Ford, 137 Wash.2d at 485, 973 P.2d 452.
¶ 20 Though the State did not present a presentencing report, they did note Vant's prior convictions and its desire that these convictions be used to calculate Vant's offender score. Vant had an opportunity at that time to object or, at least, to demand that the State prove those prior offenses. Vant did not object nor bring deficiencies of the State's assertions to light. As such, we remand for resentencing where the State will be permitted to present appropriate proof of the convictions.
IV. Community Custody Conditions
¶ 21 Vant contends that the trial court erred in ordering him to submit to random urinalysis/PBT/BAC, not to possess or peruse any sexually explicit images, and to submit to random polygraph tests as conditions of his probation.[6] The State disagrees, asserting that the trial court was well within its discretion to impose said conditions as part of Vant's sentence.
¶ 22 We review the imposition of community custody conditions for abuse of discretion and will reverse only if the trial court's decision is manifestly unreasonable or based on untenable grounds. State v. Riley, 121 Wash.2d 22, 37, 846 P.2d 1365 (1993). A condition may be manifestly unreasonable if the trial court has no authority to impose it. State v. Jones, 118 Wash.App. 199, 207-08, 76 P.3d 258 (2003).
A. Random Polygraph Tests
¶ 23 Vant claims that under our decision in State v. Flores-Moreno, polygraph *1155 testing at the CCO's discretion without limitations as a sentencing condition is impermissible and constitutes an abuse of discretion by the trial court. 72 Wash.App. 733, 866 P.2d 648 (1994). As the State correctly notes, however, the Washington Supreme Court's subsequent decision in State v. Riles permits the condition, stating: "Trial courts have authority to require polygraph testing under RCW 9.94A.120(9)(c) [recodified in July of 2001 as RCW 9.94A.505(8) ] to monitor compliance with other conditions of community placement." 135 Wash.2d 326, 351-52, 957 P.2d 655 (1998).
¶ 24 Since Riles confirms the trial court's authority to order such testing by the CCO for the purpose of monitoring compliance with the other conditions of his sentence, we decline to overturn the condition. If Vant's CCO subjects him to improper questioning during a polygraph examination, he may challenge the conditions at that time. See State v. Riles, 86 Wash.App. 10, 16-17, 936 P.2d 11 (1997), aff'd, 135 Wash.2d 326, 957 P.2d 655 (1998).
B. RANDOM URINALYSIS/PBT/BAC
¶ 25 Vant next argues that the random testing the trial court ordered is not statutorily mandated and not an area of concern considering the nature of his offenses. Therefore, Vant contends, the trial court's imposition of such testing, at his CCO's discretion, is an abuse of the trial court's discretion and should be overturned. Vant's argument fails.
¶ 26 As a condition of his probation, Vant was ordered not to "possess/consume any controlled substances." CP at 36. This condition was properly issued under RCW 9.94A.700(4)(c), which states that as a condition of community placement "the offender shall not possess or consume controlled substances except pursuant to lawfully issued prescriptions." This condition is required unless the trial court waives it, regardless of the offense committed. RCW 9.94A.700(4). Stemming from this statutory authority, it follows, through Riles, 86 Wash.App. 10, 936 P.2d 11, that the trial court has the ability to enforce these conditions. As such, the trial court's imposition of random urinalysis/PBT/BAC tests to ensure compliance with its conditions does not constitute an abuse of discretion, and the condition should remain.
C. Sexually Explicit Materials
¶ 27 In the judgment and sentence, the trial court ordered Vant to refrain from possessing or perusing any "sexually explicit images per [his] CCO." CP at 36. Vant argues that the court abused its discretion in ordering this condition as the phrase "sexually explicit" is unconstitutionally vague as applied. Appellant's Br. at 16.
¶ 28 Vant relies on Division One's holding in State v. Sansone, which held a similar condition to be unconstitutionally vague. 127 Wash.App. 630, 638-41, 111 P.3d 1251 (2005). In that case, Sansone was prohibited from viewing pornographic materials without the approval and consent of his therapist or CCO. What constituted "pornographic" materials were to be defined and determined by the therapist and CCO, as well. Upon discovering that Sansone was looking at provocative pictures of fully clothed women that the CCO deemed inappropriate, he was sentenced for violating the terms of his probation. Sansone, 127 Wash.App. at 634, 111 P.3d 1251. In reversing the violation on the grounds that "pornographic" was unconstitutionally vague as applied, the court said:
Although delegation to the probation officer or treatment provider to define a term in a community placement condition may be permissible in some circumstances, the vagueness is not cured by the delegation here.
Sansone, 127 Wash.App. at 634, 111 P.3d 1251.
¶ 29 Vant notes that while the probationary terms in these cases are different, "[t]he fact that one term could be defined so differently indicates the impropriety of delegation. . . ." Sansone, 127 Wash.App. at 643, 111 P.3d 1251.
¶ 30 At the least, Vant's challenge is premature. Vant challenges the condition as applied, however, the State has not yet applied any sanctions to him for violating the condition. As such, it cannot be said that any future application of the condition will be *1156 unconstitutionally vague as applied to the facts. If the trial court does not modify these conditions on remand to address Vant's concerns, and if he is penalized for possessing or perusing something that he believes does not constitute "sexually explicit" material, he may challenge the condition at that time. See Riles, 86 Wash.App. at 16-17, 936 P.2d 11.
V. Statutory Maximum for Sentence
¶ 31 The trial court sentenced Vant to 18-months' confinement on the charge of failing to register as a sex offender and a community custody range of 36 to 48 months. Combining both incarceration time and community custody time, the maximum possible total time Vant could serve would be 66 months, exceeding the statutory maximum allowed by 6 months. RCW 9A.20.021(1)(c). Vant asserts that this requires remand for resentencing within the allowable range of 60 months. Relying on State v. Sloan, 121 Wash.App. 220, 87 P.3d 1214 (2004), the State asserts that the trial court did not err in imposing community custody. The State concedes however, under Sloan, we should remand for the trial court to clarify that the total incarceration and community custody time cannot exceed the maximum sentence.
¶ 32 The State is correct, and Sloan is dispositive on this issue. The legislature sets the maximum punishment for every offense. Sloan, 121 Wash.App. at 221, 87 P.3d 1214. The total punishment, including imprisonment and community custody, may not exceed the statutory maximum for a particular offense. Sloan, 121 Wash.App. at 221, 87 P.3d 1214. Where a defendant is sentenced to the statutory maximum, and also sentenced to community custody, the judgment and sentence should set forth the statutory maximum and clarify that the term of community custody cannot exceed that maximum. Sloan, 121 Wash.App. at 221, 87 P.3d 1214.
¶ 33 The Sentencing Reform Act (SRA), chapter 9.94A RCW, requires community custody for most sex offenders:
When a court sentences a person to the custody of the department [of corrections] for a sex offense not sentenced under RCW 9.94A.712, . . . the court shall in addition to the other terms of the sentence, sentence the offender to community custody for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer.
RCW 9.94A.715(1). Except as relates to collection of restitution, a sentence may not exceed the statutory maximum term the legislature set. RCW 9.94A.505(5).
¶ 34 The facts in Sloan are similar to ours. There, the trial court sentenced the defendant to the statutory maximum of 60-months' confinement and an additional 36-to-48 months' community custody. The trial court reasoned that, although the defendant was sentenced to the statutory maximum, she may earn early release credits and transfer to community custody before serving the entire term. Sloan, 121 Wash.App. at 223, 87 P.3d 1214 (citing RCW 9.94A.728(1) & (2)(b)). The court explained that, in that event, the defendant would remain in community custody for up to the statutory range of 36 to 48 months but no longer than the 60-month maximum term. Sloan, 121 Wash. App. at 223, 87 P.3d 1214. Division One of this court held that her total punishment did not exceed the statutory maximum and did not violate RCW 9.94A.505(5). Unlike this case, in Sloan, the judgment and sentence included a qualification that the "[d]efendant is not to be incarcerated for any violations as upon her release she will have served the maximum time allowed." Sloan, 121 Wash. App. at 222, 87 P.3d 1214.
¶ 35 Vant was sentenced to 18 months, and the court imposed an additional 36 to 48 months' community custody. Vant's judgment and sentence does not clarify that his term of confinement plus community custody cannot exceed the maximum term the legislature set, and the judgment and sentence does not set forth the statutory maximum penalty. The State concedes that we should remand on this issue. We remand with directions to the trial court to insert the language suggested in Sloan, setting forth the maximum sentence, and clarifying that the combined term *1157 of confinement and community custody cannot exceed that maximum.
¶ 36 We affirm Vant's convictions, but remand for a new sentencing hearing and for clarification of judgment and sentence consistent with this opinion.
We concur: VAN DEREN, C.J., and QUINN-BRINTNALL, J.
NOTES
[1] Contrary to RCW 9A.44.130(11)(a), RCW 26.50.110(1), RCW 10.99.020 and RCW 10.99.050.
[2] The Thurston County Superior Court issued the protection order pursuant to chapter 10.99 RCW, and it was in effect.
[3] The Georgia court convicted Vant of rape while armed with a deadly weapon in 1984.
[4] Defense counsel did not object to this omission in the State's recommendation. Distinguishing his case from State v. Ford, 137 Wash.2d 472, 485, 973 P.2d 452 (1999) (where the Washington Supreme Court remanded and permitted the State to prove the disputed matters because "defense counsel has some obligation to bring the deficiencies of the State's case to the attention of the sentencing court"), Vant argues that here, there was no State case to object to.
Issues not raised in the trial court may not generally be heard for the first time on appeal. State v. Moen, 129 Wash.2d 535, 543, 919 P.2d 69 (1996). There is an exception to this rule for illegal or erroneous computations of an offender score that alter the defendant's standard range. Ford, 137 Wash.2d at 477, 973 P.2d 452.
[5] Ford states:
[W]hile we necessarily hold that a sentence based on insufficient evidence may not stand, we recognize that defense counsel has some obligation to bring the deficiencies of the State's case to the attention of the sentencing court. Accordingly, where, as here, the defendant fails to specifically put the court on notice as to any apparent defects, remand for an evidentiary hearing to allow the State to prove the classification of the disputed convictions is appropriate. See State v. McCorkle, 88 Wash. App. 485, 500, 945 P.2d 736 (1997). This preserves the purpose of the [Sentencing Reform Act] to impose fair sentences based on provable facts, yet provides the proper disincentive to criminal defendants who might otherwise purposefully fail to raise potential defects at sentencing in the hopes the appellate court will reverse without providing the State further opportunity to make its case. Ford, 137 Wash.2d at 485-86, 973 P.2d 452.
[6] All at his CCO's discretion.
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In this action for damages for personal injuries sustained by the plaintiff as she was walking easterly across Campbell Avenue just north of its intersection with Crown Street in New Haven on the evening of November 18, 1934, in consequence of being knocked down by the defendant's automobile which he was driving northerly on said Avenue, I am entirely satisfied upon the evidence that the defendant was negligent. The Avenue is 42 feet wide between curbs and the most easterly rail of the double trolley tracks 15 1/2 feet from the easterly curb. The plaintiff as she crossed either on or just north of the cross-walk along the north side of Crown Street, had reached the most easterly rail when the defendant first saw her. He was then driving his car at a point to the south of Court Street and half way between the most easterly rail and the east curb at a speed of about 25 miles per hour. The defendant thereafter continued to operate his car at approximately the same speed without changing its course, and without observing the plaintiff further, or paying any attention to where she was or what she was doing, until his right head-light struck her and threw her to the roadway at a point near the east curb and some fifty feet north of the north-easterly curb corner of the two streets.
The plaintiff who had crossed from the north-westerly curb corner, before leaving the curb looked south and saw the lights of approaching autos a block or more away, and judged that she had plenty of time to cross in safety. She then walked straight across and did not look again to the south until the defendant's car loomed up about 10 feet away. She tried to hurry on across but was struck before she could escape. Under such circumstances whether the plaintiff as contributorily negligent is a question of fact for the trier.Perry vs. Haritos, 100 Conn. 476, 479; Porcello vs. Finnan,113 Conn. 730, 732; Catricola vs. Hayes, 114 Conn. 716, 717;Giannatasio vs. Nealon, 117 Conn. 696, 697. It is my conclusion that she was not, and that the defendant's negligence was the proximate cause of the accident and her injuries.
The plaintiff is 56 years of age. She suffered a crack, or fracture without dislocation, of the right fibula about 4 inches below its top, a laceration of the right forehead about 1 1/2 inches long slightly below the hair line, body and leg contusions, *Page 41
abrasions of both knees, and consequent pain, suffering and shock. The scar on the forehead is the only permanent injury, though the plaintiff is still troubled with an aggravated arthritic condition of the left knee in consequence of the accident. After 12 days in the hospital the plaintiff was discharged and has been having physio-therapy treatment since. I find $1,100.00 to be fair compensation for the foregoing injuries. She is further entitled to recover the following items of special damage; hospital bill $110.90, doctors' bills $167, household assistance $44, Miss Stuart for treatment $37.50, glasses $14 and damage to clothing $23., a total of $396.40.
Judgment may be entered for the plaintiff to recover of the defendant $1,496.40 damages, plus costs.
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Motion Granted in Part and Denied in Part and Order filed February 24,
2015
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00825-CV
____________
INWOOD FOREST COMMUNITY IMPROVEMENT ASSOCIATION,
Appellant
V.
TOAN VAN NGUYEN, ET AL, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2014-18791
ORDER
Appellant has filed an unopposed motion to compel filing a supplemental
clerk’s record and to abate this appeal until the supplemental clerk’s record has
been filed. See Tex. R. App. P. 34.5(c). We grant the motion in part and order a
supplemental clerk’s record filed; in all other respects the motion is denied.
The Harris County District Clerk is directed to file a supplemental clerk’s
record on or before March 5, 2015, containing the following documents:
1. Document Number 62347111, “Plaintiffs Supplemental Response to
Defendants' Motion to Dismiss Under Citizens Participation Act” filed
09/15/2014;
2. Document Number 62335053 “Plaintiffs Response to Defendants' Motion to
Dismiss Under Citizens Participation Act” filed 9/12/2014;
3. Document Number 62335054 “Exhibit 1” filed 9/12/2014;
4. Document Number 62335055 “Plaintiffs First Supplement to Original
Petition” filed 9/12/2014;
5. Document Number 62302180 “Exhibit A” filed 9/10/2014; and
6. Document Number 62302184 “Exhibit E: filed 9/10/2014.
If the omitted item(s) is not part of the case file, the district clerk is directed
to file a supplemental clerk’s record containing a certified statement that the
omitted item(s) is not a part of the case file.
PER CURIAM
Panel consists of Justices Jamison, Busby and Brown.
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09-22-2015
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866 P.2d 492 (1994)
125 Or. App. 608
Nina CLEVIDENCE, Guardian Ad Litem for Randy C. Olesen, a Minor, Appellant,
v.
PORTLAND SCHOOL DISTRICT # 1, Respondent.
9202-00733; CA A76242.
Court of Appeals of Oregon.
Argued and Submitted July 29, 1993.
Decided January 5, 1994.
David C. Force argued the cause and filed the briefs for appellant.
Thomas W. McPherson argued the cause for respondent. With him on the brief was Peter R. Mersereau.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.
ROSSMAN, Presiding Judge.
Plaintiff appeals a judgment for defendant Portland School District No. 1, in this action brought under the Oregon Tort Claims Act. Plaintiff is the conservator and guardian ad litem for Randy Olesen, her minor grandson. Randy was injured in the cafeteria at Lewis Elementary School, operated by defendant, where Randy was a fourth-grader. At the time of the accident, Randy was working to put away tables in the cafeteria as a participant in the school district's "cafeteria assistance program," under which students may work in the cafeteria and receive free lunch. A table fell on him and seriously injured his right leg.
Plaintiff brought this personal injury action against defendant on behalf of Randy, alleging that Randy's injuries were due to defendant's negligence. Plaintiff assigns error to the trial court's granting of defendant's motion for summary judgment. The *493 court held that, because Randy was an employee of the district, his exclusive remedy is under the Workers' Compensation Law and that defendant is immune from liability pursuant to ORS 30.265(3)(a):
"Every public body [is] * * * immune from liability for:
"(a) Any claim for injury to or death of any person covered by any workers' compensation law."
Randy's father had given written consent for Randy to work in the lunchroom. The consent form stated that "students are covered by State Accident Insurance while working in the lunchroom." The school district is self-insured, pursuant to ORS 656.017. Defendant submitted evidence on summary judgment that, at the time of the accident, it had elected pursuant to ORS 656.039 to provide workers' compensation coverage to students participating in the cafeteria assistance program and had paid workers' compensation premiums to itself for that coverage. It submitted evidence that the assessments were calculated by determining the total number of student workers in the district's schools for a given quarter and multiplying that number by the value of the meal provided to the participants as consideration for their cafeteria work. Defendant determined that Randy was entitled to workers' compensation coverage and paid medical benefits to him.
Plaintiff contends that the immunity of ORS 30.265(3)(a) does not apply, because Randy was not a covered worker, as he was under the age of 14 and could not be legally employed, see ORS 653.320,[1] and he did not have the legal ability to enter a contract for employment. Further, she contends, as a matter of public policy, under the circumstances here defendant should not be granted immunity under ORS 30.265(3).
We need not address plaintiff's contentions concerning the legality of Randy's employment. The coverage of the Workers' Compensation Law extends to all persons who fall within the definition of the term "worker." ORS 656.005(28) defines "worker" as
"any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer * * *."
The definition expressly includes minors, whether lawfully or unlawfully employed. Under Oregon law, a minor, although illegally employed, is still entitled to the benefits of the workers' compensation system, and those benefits are exclusive. Manke, Adm'x v. Nehalem Logging Co., 211 Or. 211, 219-23, 301 P.2d 192, 315 P.2d 539 (1957). Accordingly, plaintiff's argument that defendant unlawfully employed minor children is irrelevant to the determination of whether Randy was a worker entitled to benefits under the Workers' Compensation Law. If the other requirements of ORS 656.005(28) are satisfied, Randy is a worker for purposes of workers' compensation, despite his age or the legality of his employment relationship.
Plaintiff contends that the lunches that Randy received are not, as a matter of law, "remuneration" under the statute, because Randy had "an absolute statutory right to receive a free school lunch whether he furnished his services to Defendant or not." Plaintiff offered no evidence, nor has she cited any authority, in support of her position that defendant was mandated by law to provide lunches to Randy. We reject the contention that the lunches could not, as a matter of law, be remuneration. See Buckner v. Kennedy's Riding Acad., 18 Or.App. 516, 526 P.2d 450 (1974).
Plaintiff contends that, even if Randy was a worker for purposes of workers' compensation, he was excluded from coverage under ORS 656.027. We need not decide that question. ORS 656.039(1) provides:
"An employer of one or more persons defined as nonsubject workers or not defined as subject workers may elect to make them subject workers. * * * If the employer *494 is or becomes a self-insured employer, the election shall be made by filing written notice thereof with the director, the effective date of coverage to be the date specified in the notice."
Throughout this proceeding, defendant has maintained that it elected to provide coverage for Randy pursuant to that section.
For the first time on appeal, plaintiff argues that there is no evidence that defendant's election was procedurally correct. We disagree with plaintiff's assessment of the record. Defendant presented uncontradicted evidence that, pursuant to ORS 656.039(1), it elected to and did provide workers' compensation coverage for plaintiff. Plaintiff submitted no evidence or counter affidavit that defendant's election was incomplete or ineffective.
Plaintiff further contends that there is an issue of fact as to whether Randy's injuries arose out of and in the course of his employment. Plaintiff does not direct us to any specific part of the record to establish such an assertion. However, we have reviewed all of the record and conclude that there is no question of fact as to whether Randy was in the course of his employment at the time of the injury.
For the first time on appeal, plaintiff makes several arguments concerning the constitutionality of ORS 30.265(3) as applied to injured student workers. We will not address them.
The trial court properly granted defendant's motion for summary judgment.
Affirmed.
NOTES
[1] ORS 653.320(1) provides, in part:
"No child under the age of 14 shall be employed in any work or labor for wages or other compensation to whomsoever payable, during the term when the public schools of the * * * district * * * in which the child resides are in session."
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929 N.E.2d 176 (2006)
367 Ill. App.3d 1111
IN RE BRANDON W.
No. 4-05-0549.
Appellate Court of Illinois, Fourth District.
September 28, 2006.
Rev'd & rem.
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365 F.3d 1225
Richard LYNN, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 02-15521.
United States Court of Appeals, Eleventh Circuit.
April 14, 2004.
Thomas K. Maher, Rudolf, Maher, Widenhouse & Fialko, Chapel Hill, NC, for Petitioner-Appellant.
Steven E. Butler, Leigh Lichty Pipkin, Richard H. Loftin, Asst. U.S. Atty., Mobile, AL, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
1
In 1997, Richard Joseph Lynn, a federal prisoner, filed a § 2255 motion to vacate his life sentence. Lynn's direct appeal was dismissed in 1990 because he escaped from custody while that appeal was pending. The district court denied Lynn's § 2255 motion. We affirm.
I. PROCEDURAL BACKGROUND
A. 1989 Jury Trial
2
In 1989, Lynn, Robert Eyster, and Jack Marshall were indicted and tried in federal court on numerous drug charges.1 In a multi-count indictment, Lynn and his codefendants were charged with participating in an ongoing conspiracy to import cocaine by plane into Alabama from 1982 to 1989. During those years, Lynn's drug-trafficking enterprise smuggled massive amounts of cocaine, at least 600 kilograms per load.
3
The government claimed that Lynn principally directed and administered the criminal organization, which included pilots, personnel who refueled the planes in Belize, personnel who unloaded the cocaine in Alabama, radio operators who monitored law enforcement communications, and persons who distributed the cocaine. According to the government, Eyster acted as a radio operator in Alabama and Marshall was an armed "enforcer" who provided intimidation, unloaded cocaine from the airplanes, and transported it to other locations for distribution.
4
The jury found Lynn, Eyster, and Marshall guilty of drug crimes.2 The district court sentenced Lynn to seven concurrent life sentences.3
B. Dismissal of Lynn's Direct Appeal
5
On December 15, 1989, Lynn, along with codefendants Eyster and Marshall, appealed their convictions and sentences to this Court. While his direct appeal was pending with this Court, Lynn escaped from federal custody on or about March 27, 1990.
6
On June 18, 1990, the government filed a motion to dismiss Lynn's direct appeal based on the fugitive disentitlement doctrine. The government contended that because Lynn was a fugitive from justice, his appeal should be dismissed. See Estelle v. Dorrough, 420 U.S. 534, 537, 95 S. Ct. 1173, 1175, 43 L. Ed. 2d 377 (1975) ("Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law."); Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 499, 24 L. Ed. 2d 586 (1970) (dismissing appeal because defendant's refusal to surrender to authorities "disentitles [him] to call upon the resources of the Court for determination of his claims").
7
On August 17, 1990, this Court granted the government's motion and dismissed Lynn's direct appeal. On August 29, 1990, federal authorities apprehended Lynn, who had remained at large for over five months.4
C. Attempts to Reinstate Direct Appeal
8
While Lynn was still a fugitive and after his direct appeal was dismissed, his counsel filed a motion for reconsideration and a proposed brief, asking this Court to allow counsel to file that brief for Lynn. After Lynn was captured, Lynn's counsel filed supplements to that reconsideration motion and a separate motion to adopt issues from codefendant Eyster's appellate brief. Two of the claims that Lynn sought to adopt from Eyster's brief are the same claims made in Lynn's § 2255 motion and this appeal: (1) the prosecutor's improper vouching for the credibility of witness Sheehy; and (2) witness sequestration violations by prosecution witnesses incarcerated together who discussed and tailored their testimony to conform to each other's.
9
On September 25, 1990, this Court denied Lynn's motion to reconsider the earlier dismissal of his appeal. The proposed appellate brief and motion to adopt Eyster's arguments, both submitted by Lynn's counsel, were returned unfiled. The Supreme Court subsequently denied Lynn's petition for a writ of certiorari regarding our dismissal of his appeal. Lynn v. United States, 499 U.S. 904, 111 S. Ct. 1103, 113 L. Ed. 2d 213 (1991).
10
D. 1991 Reversal of Eyster's and Marshall's Convictions
11
Although Lynn's appeal was dismissed, the direct appeals of codefendants Eyster and Marshall remained pending. On December 17, 1991, this Court reversed Eyster's and Marshall's convictions based on the prosecutor's improper vouching for the credibility of Sheehy, a key government witness during the trial. United States v. Eyster, 948 F.2d 1196, 1207-08 (11th Cir.1991). This Court concluded that the "prosecutor's comments implicated the government's credibility, so infecting the trial with unfairness as to rise to the level of a denial of due process." Id. at 1207. Because Lynn's § 2255 motion claims that his due process rights were violated by this same prosecutorial misconduct, we outline what happened during the 1989 trial.
12
Witness Sheehy was indicted with defendants Lynn, Eyster, and Marshall, but pled guilty shortly before trial and testified against them. Sheehy pled guilty to only Count 7 (cocaine importation on a flight in July or August 1987) and not to Count 9 (cocaine importation on a flight on September 25, 1987). During the trial, defense counsel emphasized that Sheehy was in a halfway house until July 30, 1987 and living in the Florida Keys in August 1987, and contested Sheehy's credibility by attacking his willingness to admit guilt falsely to Count 7 in order to obtain the benefits of a plea. To rehabilitate Sheehy, the prosecutor on redirect asked Sheehy questions implying that his plea to Count 7, instead of Count 9, was due to a typographical error in his plea agreement.
13
In reversing, this Court determined: (1) that Sheehy had pled to Count 7; (2) that there was no typographical error; and (3) that by suggesting to the jury that Sheehy meant to plead to Count 9 instead of Count 7, the prosecutor "implicitly vouched for the witness by indicating that information not before the jury supported Sheehy's credibility." Id.
14
This Court in Eyster concluded that the prosecutor's "improper vouching" tainted Eyster's and Marshall's trial because "the essence of their defense was attacking the credibility of certain key witnesses testifying against them pursuant to plea agreements." Id. at 1208. This Court noted that although the government produced extensive documentary and physical evidence about the drug-trafficking organization, "the government's case against Eyster, and to a lesser degree Marshall, depended heavily on the credibility of witnesses who testified pursuant to plea agreements." Id. at 1200. This Court determined that "there is a reasonable probability that, but for the prosecutor's improper comments, the outcome of the proceeding would have been different," particularly because no physical evidence linked Eyster to the drug-trafficking organization. Id. at 1208.
15
In their direct appeals, Eyster and Marshall also sought a new trial based on prosecution witnesses' intentionally violating the witness sequestration order.5 Specifically, witnesses Sheehy, Purvis, DeWeese, and Barclay discussed and tailored their trial testimony while incarcerated together. Id. at 1210. During the trial, defendants were able to elicit testimony from Purvis, DeWeese, and Barclay, who admitted to engaging in conversations during trial and to violating the witness sequestration order. Id. at 1210-11. Purvis even admitted to discussing testimony with DeWeese and Sheehy. Id. Defendants also filed a post-trial motion for a new trial based upon Sheehy's admission to his own counsel that there were repeated violations of the witness sequestration order and that he and others had perjured themselves regarding these violations. Id. at 1211.
16
In our Eyster decision, this Court concluded that Eyster and Marshall were not entitled to a new trial based on the witness sequestration violations. Id. Although this Court noted that "the record ... reflects that both the district court and the government were lax in upholding the sequestration rule," it ultimately concluded that, "given the curative aspect of the cross-examination," the district court did not abuse its discretion in denying defendants a new trial. Id. (emphasis added). In so concluding, this Court determined that "[d]efense counsel fully cross-examined [witnesses] Purvis, DeWeese, Barclay and Sheehy about the nature and extent of their contacts with each other, thereby giving the jury the opportunity to evaluate their credibility." Id.
E. Lynn's § 2255 Motion
17
On March 28, 1997, over five years after this Court reversed Eyster's and Marshall's convictions, Lynn filed a § 2255 motion.6 Lynn's § 2255 motion contended that his trial was fundamentally unfair in violation of his constitutional due process rights for the same two reasons put forth by Eyster and Marshall in their appeals: (1) the prosecutor's improper vouching for witness Sheehy; and (2) sequestration violations by prosecution witnesses who discussed and tailored their testimony to conform to each other's. Lynn's § 2255 motion stressed that this Court in Eyster had reversed the convictions of Eyster and Marshall based on a violation of their due process right to a fair trial. Because he was tried with Eyster and Marshall, Lynn asserted that he also was denied his constitutional right to a fair trial due to the prosecutor's improper vouching and the witness sequestration violations.
18
In addition to relying on this Court's reversal of Eyster's and Marshall's convictions, Lynn's § 2255 motion relied on affidavits executed in 1997 by prosecution witnesses Sheehy and Purvis (the "1997 affidavits"). In those 1997 affidavits, Sheehy and Purvis admitted that they discussed and tailored their testimony to conform to other witnesses' testimony during trial.7 Neither affidavit alleges knowledge or complicity on the part of any government agent or attorney at any time; rather, they contain essentially the same claims made in Eyster's and Marshall's direct appeals.
19
In its 1997 response, the government argued that the claims in Lynn's § 2255 motion were available on direct appeal, that Lynn's escape led to dismissal of his direct appeal in 1990, and that he is procedurally barred from now raising these claims in a § 2255 motion.
20
On September 1, 1999, Lynn filed (1) a motion to amend and to supplement his original § 2255 motion and (2) new affidavits executed by witness Sheehy on June 29, 1999 and witness Purvis on June 30, 1999 (the "1999 affidavits"). As to his improper vouching claim, Lynn now alleged that the prosecutor admitted during Eyster's appeal that she knew the "Count 7-9 typo" was false and to soliciting perjury knowingly from Sheehy.
21
As to his witness sequestration claim, Lynn's 1999 motion to amend stated that Lynn sought to add "a newly discovered claim, whose facts and evidence `relate back' to the original facts and evidence, on which the `tailoring' claim was brought." Lynn's motion to amend also stated: (1) that the Sheehy and Purvis 1997 affidavits about the tailoring claim were filed on April 23, 1997; (2) that "during further interviews with witnesses, a much more egregious revelation of prosecutorial misconduct was discovered"; (3) that "subsequent discovery has revealed a new related claim"; (4) that the "newly discovered claim" is that members of the prosecution team "actually cross-pollinated these witnesses" by telling Sheehy and Purvis facts and evidence from other witnesses, facts not within the knowledge of any witness, and facts from the government agents themselves; and (5) "that the government pollinated, primed and pumped witnesses to testify to a parade of perjury."
22
In the 1999 affidavits filed with Lynn's motion to amend, Sheehy and Purvis repeat part of their admissions (from their 1997 affidavits) that they had discussed and tailored their testimony with other witnesses. However, their 1999 affidavits go further and state, albeit in a conclusory fashion: (1) that the government was involved with their tailoring their testimony to "merge" with other witnesses' testimony;8 and (2) that the government knew they were testifying about information given to them by agents and of which they had no personal knowledge.9 Sheehy's and Purvis's 1999 affidavits do not name any government agents or investigators. They also do not give details or a single example of what testimony or statements were tailored or conformed to be consistent or were without personal knowledge.
23
F. District Court Denies Lynn's § 2255 Motion
24
On September 16, 2002, the district court granted Lynn's 1999 motion to amend his original § 2255 motion in part and allowed Lynn to file the new affidavits and to add his "newly discovered claim" about the government's complicity in the witnesses' tailoring their testimony.10 In the same order, the district court denied Lynn's § 2255 motion in full.
25
The district court granted a certificate of appealability as to these three issues: (1) the application of procedural bar to Lynn's § 2255 motion; (2) "the prosecutor's improper vouching for the credibility of a government witness"; and (3) "the violation of the sequestration of certain of the government's witnesses."11 See 28 U.S.C. § 2253(c)(3).
II. STANDARD OF REVIEW
26
"In a Section 2255 proceeding, we review legal issues de novo and factual findings under a clear error standard." United States v. Walker, 198 F.3d 811, 813 (11th Cir.1999).
III. DISCUSSION
27
While we ultimately address the fugitive disentitlement doctrine, we first explain why Lynn's § 2255 motion is due to be denied under general § 2255 principles.
A. Claims Cognizable in § 2255 Proceedings
28
Lynn's § 225512 motion seeks to vacate his sentence based on: (1) the prosecutor's improper vouching for its witness Sheehy; (2) prosecution witnesses discussing and tailoring their testimony in violation of the witness sequestration order; and (3) the government's complicity in the witnesses' tailoring their testimony and testifying to facts not within their personal knowledge.
29
Courts have long and consistently affirmed that a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal. See, e.g., United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 1593, 71 L. Ed. 2d 816 (1982) (collecting cases).13 Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994);14 and (2) "[r]elief under 28 U.S.C. § 2255 `is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Richards v. United States, 837 F.2d 965, 966 (11th Cir.1988) (quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sep.1981)). Accordingly, a non-constitutional error that may justify reversal on direct appeal does not generally support a collateral attack on a final judgment, Frady, 456 U.S. at 165, 102 S. Ct. at 1593, unless the error (1) could not have been raised on direct appeal and (2) would, if condoned, result in a complete miscarriage of justice. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S. Ct. 3037, 3044 n. 10, 49 L. Ed. 2d 1067 (1976).
30
In many cases in the past, this Court has opted to address the issues of procedural default, cause, and prejudice, as the district court did here, without expressly addressing the threshold inquiry of whether the claimed error is even cognizable in a § 2255 proceeding. However, in some cases, this Court has recognized this threshold issue and concluded that certain claimed errors, even if meritorious on direct appeal, are not cognizable in a § 2255 proceeding. See Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir.1998) (stating that "[t]he threshold inquiry is whether Burke's claim that his sentence is contrary to a subsequently enacted clarifying amendment is cognizable under § 2255" and holding his claim does not provide a basis for collateral relief); Richards, 837 F.2d at 966 (noting defendant may not make a statutory non-constitutional claim in a § 2255 motion); Kett v. United States, 722 F.2d 687, 690 (11th Cir.1984) ("[A]s the district court correctly noted, claims of excessive bail are not cognizable in a section 2255 action.").15
31
Therefore, in this case, we address the threshold issue of whether Lynn's claims are even cognizable in a § 2255 motion. Lynn argues that the trial errors here are cognizable because they were so fundamentally egregious and prejudicial as to violate his constitutional rights to due process and a fair trial. However, as to the witness sequestration claim, the Eyster Court found that given the curative aspect of the cross-examination, the district court did not abuse its discretion by denying Eyster's and Marshall's motion for a mistrial. 948 F.2d at 1211. Further, as to the improper vouching claim, the Eyster Court relied on the fact that there was limited evidence against Eyster and Marshall in finding that the prejudice from this error rose to the level of a constitutional violation. Id. at 1208. Unlike Eyster and Marshall, Lynn was convicted as the charged leader of the drug-trafficking organization, and Lynn has never asserted that the overall evidence against him was as limited as that against Eyster and Marshall, who both performed lesser roles in the drug conspiracy. We conclude that Lynn's claims of improper vouching and witness sequestration violations are fundamentally trial errors that were available on direct appeal and are not cognizable in a § 2255 proceeding.
32
However, even if this Court were to accept Lynn's characterization of his claims as constitutional claims and as cognizable in a § 2255 motion, the district court nonetheless properly denied Lynn's § 2255 motion for the reasons outlined below.16
B. Procedural Default
33
Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir.1998); Mills, 36 F.3d at 1055; Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.1989). This rule generally applies to all claims, including constitutional claims. See Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 2300, 129 L. Ed. 2d 277 (1994) ("Where the petitioner — whether a state or federal prisoner — failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes cause for the waiver and shows actual prejudice resulting from the alleged violation." (internal quotation marks, punctuation, and citations omitted)); see also Wainwright v. Sykes, 433 U.S. 72, 84, 97 S. Ct. 2497, 2505, 53 L. Ed. 2d 594 (1977) (applying cause and prejudice standard to constitutional claims).17
34
A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828 (1998); Mills, 36 F.3d at 1055; Cross v. United States, 893 F.2d 1287, 1289 (11th Cir.1990); Greene, 880 F.2d at 1305; Martorana v. United States, 873 F.2d 283, 284 (11th Cir.1989); Parks v. United States, 832 F.2d 1244, 1246 (11th Cir.1987). Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if "`a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Mills, 36 F.3d at 1055 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986)); see also Bousley, 523 U.S. at 622, 118 S. Ct. at 1611; Jones, 153 F.3d at 1307.
35
We easily dispense with the second narrow exception because there is no evidence establishing that Lynn is actually innocent.18 Therefore, we focus on whether Lynn has shown cause and prejudice for not raising his § 2255 claims on direct appeal.
36
C. Cause and Prejudice for Procedural Default
37
In procedural default cases, the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all. See, e.g., Smith v. Murray, 477 U.S. 527, 534, 106 S. Ct. 2661, 2666, 91 L. Ed. 2d 434 (1986); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.1992); Lomelo v. United States, 891 F.2d 1512, 1515 (11th Cir.1990).19 Further, to show cause for procedural default, Lynn must show that some objective factor external to the defense prevented Lynn or his counsel from raising his claims on direct appeal and that this factor cannot be fairly attributable to Lynn's own conduct.20 Smith v. Jones, 256 F.3d 1135, 1145 (11th Cir.2001) (noting "that `the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule'" (quoting Murray v. Carrier, 477 U.S. at 488, 106 S. Ct. at 2645)); Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.2001); McCoy, 953 F.2d at 1258.21 Lynn argues that he has shown cause because he has new evidence not available at the time of his 1990 direct appeal. We disagree and explain why.
1. Improper Vouching
38
We first point out that Lynn does not actually present any new evidence as to his improper vouching claim. Lynn's so-called new evidence is his allegation that the prosecutor admitted during Eyster's direct appeal that she knowingly solicited perjury from Sheehy about the "Count 7-9 typo" and knowingly misled the jury. However, Lynn's allegation is belied by this Court's Eyster decision, which noted that the government continued to assert that it conducted the redirect examination of Sheehy "in good faith" and did not intentionally mislead the jury. 948 F.2d at 1206. This Court further stated that "[i]t is irrelevant whether the prosecutor asked her question in good faith," that "[w]e do not attempt to divine whether the prosecutor indeed had a lapse of memory about the circumstances of Sheehy's plea," and that "the prosecutor cannot vouch for the credibility of a witness even if she devoutly believes the facts she improperly places before the jury." Id. at 1207. Lynn's improper vouching claim is essentially the same as Eyster's and Marshall's and is procedurally barred due to Lynn's failure to pursue it on direct appeal.22
2. Witness Sequestration Claim
39
Before discussing the merits of Lynn's claim that "the government pollinated, primed and pumped witnesses to testify to a parade of perjury," we note that there are two ways in which to view Lynn's claim. The first is that Lynn is providing additional evidence that the government was involved in the known witness sequestration violations whereby the witnesses discussed and tailored their testimony to conform to each other's. The second way to view Lynn's claim is that Lynn is actually making a new, separate claim of prosecutorial misconduct; namely, that government agents fed information to prosecution witnesses from both other witnesses and from government agents themselves. Out of an abundance of caution, we address both versions of Lynn's claims.
40
To the extent Lynn raises a pure witness sequestration claim, Lynn has filed new affidavits, but they do not establish cause to overcome his procedural default of that claim. First, Eyster's brief on direct appeal stressed the intentional witness sequestration violations by the same witnesses, Sheehy and Purvis. Eyster's brief asserted that Sheehy, Purvis, and others intentionally violated the witness sequestration order by discussing and conforming their testimony to one another's while confined in jail during the trial.23 This Court's Eyster decision already states that the record in that case reflected "that both the district court and the government were lax in upholding the witness sequestration rule." Id. at 1211 (emphasis added). Because Eyster raised this very issue, Lynn has not shown that his claim about the government's involvement with the witness sequestration violations was unavailable at all on direct appeal.
41
Further, Lynn has not shown that any "objective factor external to the defense" prevented him from raising his witness sequestration claim on direct appeal. Jones, 256 F.3d at 1145; Johnson, 256 F.3d at 1171; McCoy, 953 F.2d at 1258. Rather, the factor preventing Lynn from raising his witness sequestration and improper vouching claims on direct appeal was his unlawful escape from custody. If Lynn had not escaped, this Court would have addressed not only his improper vouching claim but also his witness sequestration claim in his direct appeal.
42
Second, to the extent Lynn raises a pure, but stronger, witness sequestration claim, Lynn has not shown cause because he has not satisfied the standards for a new trial based on newly discovered evidence. This Court has concluded that § 2255 motions based on new evidence are subject to the standards generally applicable to motions for a new trial based on new evidence. Greene, 880 F.2d at 1306-07; Bentley v. United States, 701 F.2d 897, 898 (11th Cir.1983); Everitt v. United States, 353 F.2d 532, 532 (5th Cir.1965). There are now five requirements that a movant must satisfy before a new trial will be granted based on newly discovered evidence. United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir.2003). The five requirements are as follows:
43
(1) the evidence was discovered after trial, (2) the failure of the defendant to discover the evidence was not due to a lack of diligence, (3) the evidence is not merely cumulative or impeaching, (4) the evidence is material to issues before the court, and (5) the evidence is such that a new trial would probably produce a different result.
44
Id. (citations omitted). Furthermore, "we have held that motions for a new trial are highly disfavored, and that district courts should use great caution in granting a new trial motion based on newly discovered evidence." Id. (internal quotation marks and citation omitted). Lynn would have to satisfy these five requirements to obtain a new trial based on new evidence if the issue was raised on direct appeal. The standard is arguably higher, but certainly no lower, for Lynn to obtain a new trial based on new evidence through a § 2255 proceeding.
45
We need not analyze all five requirements because Lynn's new evidence of the government's involvement in the witness sequestration violations does not meet the third requirement, that the evidence not be merely "cumulative or impeaching." Id. Here, Lynn's new evidence merely provides further impeaching evidence of witness testimony and is also cumulative of evidence already proffered by Lynn's codefendants in the district court and in their direct appeals. Because neither cumulative nor impeaching new evidence is sufficient to satisfy Lynn's burden in a § 2255 proceeding, the district court correctly found that Lynn failed to show cause for his procedural default of his witness sequestration claim.
3. New Claim of Prosecutorial Misconduct
46
Although the 1999 affidavits bolster Lynn's witness sequestration claim, it is certainly arguable that the government's alleged complicity — in the witnesses' tailoring their testimony and testifying to facts learned from other witnesses or government agents — creates a new and separate claim of prosecutorial misconduct. To the extent Lynn raises a new claim of prosecutorial misconduct, we conclude that the district court properly denied this claim as well.24
47
As outlined above, Eyster and Marshall raised a similar witness sequestration claim in their direct appeals that asserted that witnesses Sheehy and Purvis discussed their testimony with other witnesses and tailored their testimony to conform with each other's. Eyster and Marshall's claim, in effect, was that Sheehy and Purvis perjured themselves by testifying to events not within their personal knowledge but learned from other prosecution witnesses.
48
In his 1999 motion to amend his § 2255 motion, Lynn claims that Sheehy and Purvis not only learned information from other witnesses but that the two men were fed information from government agents. Lynn claimed that he was able to learn of the government's involvement in this perjurious testimony only after additional interviews with Sheehy and Purvis. Lynn asserts that this "newly discovered" evidence of the government's involvement in the perjurious testimony constitutes a new claim of prosecutorial misconduct that was not available on direct appeal.
49
As discussed above, there are five requirements that Lynn must satisfy in order to obtain a new trial based on newly discovered evidence: (1) the evidence must be discovered after trial; (2) the failure of the defendant to discover the evidence must not be due to a lack of diligence; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be such that a new trial would probably produce a different result. Id. The government contends that Lynn has not satisfied the five requirements and that Lynn has not shown cause for failing to raise this prosecutorial misconduct claim on direct appeal. For example, the government challenges Lynn's due diligence, the second requirement, and asserts that Lynn has not explained: (1) "why the information was not tendered until ten years after trial"; (2) whether he took steps "to investigate that matter during the ten-year period between trial and the tendering of the new affidavits"; (3) "how the government prevented the information from being available on direct appeal"; and (4) "the discrepancy ... between the first and second set of [Purvis and Sheehy] affidavits...." There is also a substantial question whether Lynn has satisfied the fifth requirement that his new evidence is such that a new trial would probably produce a different result.
50
Even assuming arguendo that Lynn's newly discovered evidence satisfied all five requirements and that Lynn has established cause for his procedural default, Lynn's new claim of prosecutorial misconduct still fails on the merits because the 1999 affidavits contain nothing more than conclusory allegations. In articulating its concerns with the 1999 affidavits, the district court correctly pointed out that the affidavits do not name any government agents or investigators and do not give details or a single example of what testimony or statements were tailored or conformed to be consistent or were based on information fed from government agents. Furthermore, neither 1999 affidavit identified any statement that was made without the witnesses' personal knowledge. Because the 1999 affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) ("A petitioner is not entitled to an evidentiary hearing ... when his claims are merely conclusory allegations unsupported by specifics...." (internal quotations and citations omitted)); Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990) (en banc) ("The petitioner will not be entitled to an evidentiary hearing when his claims are merely `conclusory allegations unsupported by specifics' ...." (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977))); United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980) ("When claims for habeas relief are based on unsupported generalizations, a hearing is not required." (internal quotations and citations omitted)); Scott v. United States, 598 F.2d 392, 393 (5th Cir.1979) ("Contrary to [the movant's] assertions, ... the right to a hearing is not established simply by filing a petition under 28 U.S.C. § 2255. When claims for habeas relief are based on unsupported generalizations, a hearing is not required.").
D. Fugitive Disentitlement Doctrine
51
In light of his procedural default problems, Lynn also argues that the usual procedural default rules should not apply because: (1) his direct appeal had a meritorious constitutional claim, as shown by the reversal of Eyster's and Marshall's convictions; (2) his direct appeal was involuntarily dismissed due to his escape; and (3) he surrendered shortly after his direct appeal was dismissed and immediately attempted to reinstate his direct appeal. We discuss the fugitive disentitlement doctrine and explain why the traditional procedural default rules not only apply to Lynn's § 2255 motion, but necessarily do so.
52
The fugitive disentitlement doctrine permits courts to dismiss a fugitive's appeal in cases in which an individual escapes while at the same time attempting to invoke the jurisdiction of that particular court. The Supreme Court first recognized the fugitive disentitlement doctrine in the 1876 case of Smith v. United States, 94 U.S. 97, 24 L. Ed. 32 (1876).25 See Pesin v. Rodriguez, 244 F.3d 1250, 1252-53 (11th Cir.2001) (discussing history of fugitive disentitlement doctrine).
53
In Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970), the Supreme Court reaffirmed the fugitive disentitlement doctrine and dismissed a state defendant's direct appeal to the United States Supreme Court because the state defendant was a fugitive from justice. Id. at 365-66, 90 S. Ct. at 498-99. The Molinaro Court reasoned that a fugitive should not be entitled to call upon a court for relief as follows:
54
No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.
Id. at 366, 90 S. Ct. at 498-99.26
55
In Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S. Ct. 1199, 122 L. Ed. 2d 581 (1993), the Supreme Court explained that the fugitive disentitlement doctrine is a tool primarily for the court that had its jurisdiction invoked while the defendant was a fugitive. See id. at 249, 113 S. Ct. at 1208. In Ortega-Rodriguez, the federal court of appeals had dismissed Ortega-Rodriguez's direct appeal because the defendant had been a fugitive while his case was under the jurisdiction of the district court. Ortega-Rodriguez, however, was "returned to custody before invocation of the appellate system." Id. at 249, 113 S. Ct. at 1208. Although the Supreme Court recognized the continued validity of the fugitive disentitlement doctrine,27 it determined that the court of appeals applied the fugitive disentitlement doctrine in too broad a fashion. Id. at 246-47, 113 S. Ct. at 1207. The Supreme Court stated that, "[a]bsent some connection between a defendant's fugitive status and his appeal, as provided when a defendant is at large during the ongoing appellate process, the justifications advanced for dismissal of fugitives' pending appeals generally will not apply." Id. at 249, 113 S. Ct. at 1208 (internal quotations and citation omitted). Further, the Supreme Court concluded that it was the district court's authority that had been questioned and, therefore, it was the district court — not the court of appeals — that could use the fugitive disentitlement doctrine as a tool to protect the integrity of the judicial system.28 Id. at 246, 113 S. Ct. at 1207.
56
While the Supreme Court in Ortega-Rodriguez concluded that the fugitive disentitlement doctrine was applied too broadly, it also specifically stated that the doctrine retained its validity as a tool for courts to protect the integrity of the judicial process. Id. at 246, 113 S. Ct. at 1206-07 ("We have no reason here to question the proposition that an appellate court may employ dismissal as a sanction when a defendant's flight operates as an affront to the dignity of the court's proceedings."). Indeed, the very premise of the fugitive disentitlement doctrine remains the same; namely, "that the fugitive has demonstrated such disrespect for the legal processes that he has no right to call upon the court to adjudicate his claim." Id. at 246, 113 S. Ct. at 1206 (internal quotations omitted).29
57
In Joensen v. Wainwright, 615 F.2d 1077, 1078-80 (5th Cir.1980), our predecessor court affirmed the district court's denial of the § 2254 petition of a state prisoner whose state direct appeal was dismissed because he escaped from the state's custody while his direct appeal was pending.30 The Joensen Court recognized that the fugitive disentitlement doctrine was constitutional, stating that "[i]f the [United States] Supreme Court can summarily and unconditionally dismiss an escapee's appeal without offending the constitution, there is no reason why a state court may not do likewise." Id. at 1079. In concluding that the fugitive disentitlement doctrine was constitutional and in denying the § 2254 petition, the Joensen Court stated that a "criminal defendant abandons his appeal by escaping while the appeal is pending... [and that t]here is no constitutional right to reinstatement of an appeal abandoned by the escape" after recapture. Id. at 1080 (internal citations omitted).
58
As noted earlier, this Court dismissed Lynn's direct appeal pursuant to the fugitive disentitlement doctrine.31 As the district court recognized, this Court's role is not now to revisit the original dismissal of Lynn's direct appeal.32 Further, in the present case, this Court looks to see the effect of this Court's dismissal of Lynn's direct appeal on his § 2255 motion. Specifically, does it make any difference in the application of the procedural default rule in a § 2255 case that Lynn's direct appeal was involuntarily dismissed pursuant to the fugitive disentitlement doctrine?
59
The government argues that it does and that under the fugitive disentitlement doctrine Lynn has procedurally waived his right to seek post-conviction relief in a § 2255 motion. In contrast, Lynn asserts that his procedural default should be excused because his direct appeal was meritorious and involuntarily dismissed under the fugitive disentitlement doctrine.33 We conclude that neither position is correct. Instead, while the fugitive disentitlement doctrine governed Lynn's direct appeal, the traditional principles of procedural default govern Lynn's § 2255 motion. Consequently, if a defendant's direct appeal was involuntarily dismissed under the fugitive disentitlement doctrine, a prisoner is not per se barred from filing a § 2255 motion. Rather, a prisoner may proceed with those § 2255 claims that are cognizable and that are not defaulted under the traditional rules of procedural default.
60
We reach this conclusion for two reasons. First, if we refused to apply traditional rules of procedural default and created a special exception for fugitive-disentitlement dismissals as Lynn advocates, we effectively would render the fugitive disentitlement doctrine a nullity. If traditional rules of procedural default did not apply in this case, the fugitive disentitlement doctrine would lose all meaning as criminal defendants could escape, have their direct appeals dismissed, and then later bring a § 2255 motion as a substitute for a direct appeal. This cannot be and is not the law of this or any other circuit.
61
In fact, in prior fugitive cases, this Court, in effect, has already applied traditional rules and case law surrounding habeas corpus relief, albeit in the context of § 2254 and not § 2255. In Hall v. Alabama, 700 F.2d 1333 (11th Cir.1983), a state prisoner escaped while his direct appeal was pending in state court. Id. at 1334. This Court first noted that a § 2254 petitioner must exhaust all state remedies before filing a § 2254 petition. Id. at 1335. The Hall Court then concluded that a state prisoner's escape while his direct appeal was pending constituted a waiver of his right to pursue his direct appeal and thereby precluded him from exhausting all of his available state remedies. Id. at 1338. Because of the failure to exhaust, the state prisoner was prohibited from challenging his state conviction through a § 2254 petition in federal court. Id. Thus, the Hall Court reached its conclusion through traditional exhaustion principles applicable to § 2254 cases.
62
On the other hand, this Court, in effect, has not allowed the fugitive disentitlement doctrine to operate as a per se bar to all § 2254 relief where the state habeas court entertained the defendant's claim and did not consider it barred by state procedural rules. Stacey v. Warden, 854 F.2d 401, 405 (11th Cir.1988). Stacey was convicted in Alabama state court, did not appeal his conviction, and escaped after serving one year of a thirty-year sentence. Id. at 402. Once recaptured and sentenced for another crime in Florida, Stacey pursued a state habeas claim in Alabama alleging ineffective assistance of counsel in his original conviction. Id. After exhausting state habeas, Stacey filed a § 2254 petition. Id.
63
The district court dismissed Stacey's § 2254 petition because, according to the district court, Hall mandated that "Stacey had waived his claim of ineffective assistance of counsel when he escaped." Id. at 404. On appeal, the government also argued that even if Stacey had not waived his ineffective-assistance-of-counsel claim, Stacey was barred from pursuing a § 2254 petition because his escape from custody was an independent and adequate state ground for the state courts to dismiss Stacey's state petition. Id.
64
In Stacey, this Court concluded that Hall did not prohibit Stacey from pursuing a § 2254 petition alleging ineffective assistance of trial counsel because "this claim was not reviewable on direct appeal and therefore was not waived" by Stacey's escape. Id. The Stacey Court further concluded that because the state habeas court did not refuse to hear Stacey's ineffective assistance claim due to the fugitive disentitlement doctrine or any other state procedural ground, Stacey had exhausted his available state remedies. Id. at 405. The Stacey Court reached each of these conclusions by applying traditional § 2254 rules and case law regarding waiver, exhaustion of all available state remedies, and procedural default.
65
Second, our conclusion that traditional rules of procedural default should apply to Lynn's § 2255 motion is consistent with the policy reasons behind the procedural default rule. The procedural default rule does not depend on the circumstances under which an earlier direct appeal was dismissed. That is, the procedural default rule does not depend on whether a movant never filed a direct appeal or appealed but raised different issues. Rather, the procedural default rule in the context of § 2255 looks to conserve judicial resources and protect "the law's important interest in the finality of judgments" by requiring that all available claims be brought on direct appeal and not in a later § 2255 motion. See Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1693, 155 L. Ed. 2d 714 (2003) ("The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments."). By applying traditional rules of procedural default to Lynn's § 2255 motion, we are conserving judicial resources, respecting the law's important interest in the finality of judgments, and giving force to the fugitive disentitlement doctrine.
66
What we learn from Hall, and particularly Stacey and Ortega-Rodriguez, is that the fugitive disentitlement doctrine operates as a sanction where the fugitive status and court proceedings overlap, but it does not generally have a separate, independent application that per se bars motions or appeals later filed by a one-time fugitive. Rather, in the context of habeas corpus, the traditional rules of exhaustion and procedural default, whether a § 2254 petition or § 2255 motion, ultimately control the disposition of a defendant's claims.34
IV. CONCLUSION
67
In summary, Lynn's direct appeal was dismissed in 1990 under the fugitive disentitlement doctrine, a doctrine that is as valid today as it was then. Nothing about the fugitive disentitlement doctrine requires this Court to apply anything but traditional rules and case law pertaining to § 2255 proceedings and procedural default. As outlined above, after applying the traditional rules and case law pertaining to § 2255 proceedings and procedural default, we conclude that the district court properly denied Lynn's § 2255 motion.
68
AFFIRMED.
Notes:
1
Of the twenty-four indicted participants in that drug-trafficking organization, four were tried with Lynn: Eyster, Marshall, Ricou DeShaw and Craig Keaser. DeShaw and Keaser were found not guilty of the particular counts with which they were charged
2
Lynn was convicted of seven drug crimes: conspiracy to import cocaine, in violation of 21 U.S.C. § 963; conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846; three counts of importation of cocaine, in violation of 21 U.S.C. § 952; and two counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
3
Lynn's base offense level was 36 for importing 13,200 kilograms of cocaine. United States Sentencing Guidelines § 2D1.1(a)(3) (1988). Lynn's offense level was increased by two levels for possession of a firearm during commission of the offense, by four levels for his role as a leader in the drug importation ring, and by two levels for obstruction of justiceId. at §§ 2D1.1(b)(1), 3B1.1(a), 3C1.1. Lynn's criminal history category III was based on three points for a prior conviction of conspiracy to possess with intent to distribute cocaine and two points for committing the instant offense less than two years after release from imprisonment. Although Lynn's total offense level was 44, Lynn was sentenced based on offense level 43 because that was the highest listed level for his offenses. Lynn's offense level of 43 and criminal history category III resulted in life sentences for each crime.
4
On June 26, 1990, Lynn's counsel filed a response to the government's motion to dismiss and asked that this Court give Lynn an opportunity to surrender either by holding the government's motion in abeyance for thirty days or by entering an order prospectively dismissing the appeal after thirty days. Although that request was not expressly granted, this Court did not dismiss Lynn's appeal until August 17, 1990, which was after this thirty-day period would have expired
5
On direct appeal, Eyster and Marshall also argued that the district court erred in admitting unfairly prejudicial photographs of the remains of pilots killed in a plane crash and violated their rights to an impartial jury by creating a jury pool of persons with surnames that began with letters from one portion of the alphabet. Lynn's counsel attempted to file a motion to adopt both of these arguments, but his motion was returned unfiled. This Court rejected both arguments in Eyster's and Marshall's direct appealsEyster, 948 F.2d at 1212-13.
6
Because Lynn's convictions were final prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Lynn had one year from the AEDPA's effective date on April 24, 1996, or until April 23, 1997, to file his § 2255 motionSee Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir.1998). Lynn's § 2255 motion was timely filed on March 28, 1997.
7
Purvis's and Sheehy's 1997 affidavits are identical to one another and state that: (1) after each day's trial session, they would "meet and thoroughly discuss [their] testimony for that day"; (2) they "engaged in regular, repeated and intentional discussions of [their] testimony during the entire course of the trial"; and (3) they "minimized the extent and significance of those discussions and did not disclose them to the jury" during cross-examination
8
In their 1999 affidavits, Sheehy and Purvis each state: (1) that "the government agents and investigators ... made [him] aware of areas that [his] statements were contradictory with those of other witnesses' statements or expected testimony"; and (2) it was "clear and apparent" that he was "expected to conform [his] statements and testimony to merge with the statements of other government witnesses' statements and testimony, especially where it fit the government's theory of the case, if [he] expected favorable treatment and a positive recommendation from the government at [his] sentencing."
9
Sheehy's 1999 affidavit states: "It was apparent that the agents during trial, knew we had further opportunity to merge our testimony and that they (the case agents) knew we all, at times, were testifying from information given [to] us by the agents and testifying to facts of which we had no original or personal knowledge, but rather were testifying from information provided by the case agents during interviews." Purvis's 1999 affidavit makes nearly identical allegations and further alleges: "I know this was true for me, and from conversations with other witnesses during trial and after trial, I believe it was true for them as well."
10
Lynn's counsel timely filed his initial § 2255 motion in 1997, but Lynn pro se filed three motions to amend his § 2255 motion. Specifically, Lynn pro se filed a first motion to amend on September 1, 1999, a second motion to amend on April 17, 2000, and a third motion to amend on August 17, 2000. Other than granting Lynn's first motion to amend in part, the district court denied these motions to amend. As pointed out in Lynn's brief on appeal, "Lynn raised additional claims, and filed motions to amend the § 2255 motion. The remaining claims, and attempted amendments, are not raised as issues in this appeal."
11
Although the district court granted in part Lynn's 1999 motion to amend, the district court treated Lynn's new evidence and new claim about the government's complicity in the witnesses' tailoring their testimony as part of his witness sequestration claim. Thus, we consider Lynn's new evidence and new claim within the ambit of the district court's certificate of appealability
12
28 U.S.C. § 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255.
13
InFrady, the Supreme Court explained:
"When Congress enacted § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice."
456 U.S. at 165, 102 S. Ct. at 1593 (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S. Ct. 2235, 2239, 60 L. Ed. 2d 805 (1979) (footnotes omitted)).
14
"A ground of error is usually `available' on direct appeal when its merits can be reviewed without further factual development."Mills, 36 F.3d at 1055.
15
See also Davis v. United States, 411 U.S. 233, 234-39, 93 S. Ct. 1577, 1578-81, 36 L. Ed. 2d 216 (1973) (concluding that a claim of unconstitutional discrimination in the composition of the grand jury was not cognizable under § 2255); Hill v. United States, 368 U.S. 424, 429, 82 S. Ct. 468, 472, 7 L. Ed. 2d 417 (1962) (sentencing court's failure to comply with Fed.R.Crim.P. 32(a) not cognizable under § 2255); United States v. Velez-Rendon, 845 F.2d 304, 304 (11th Cir.1988) ("If we were to treat the application as a petition under 28 U.S.C. § 2255 we would have to find that [the petitioner's] claims [that his sentence was illegal under Rule 32] are not cognizable in a habeas corpus proceeding... because the errors do not qualify as ... a complete miscarriage of justice"); Capua, 656 F.2d at 1037 ("In determining whether a claim of error is cognizable under Section 2255, a distinction is drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other."); Buckelew v. United States, 575 F.2d 515, 518 (5th Cir.1978) (concluding that some of the claims "raise no issue of a constitutional violation and thus are not cognizable for review under Section 2255"); Thor v. United States, 574 F.2d 215, 221 (5th Cir.1978) ("[U]nder these circumstances, the error was not so fundamentally grievous as to be cognizable in a Section 2255 motion."); Delegal v. United States, 363 F.2d 433, 434 (5th Cir.1966) (stating that "errors asserted in Appellant's motion are not the kind that may be raised by collateral attack under § 2255, which does not provide a substitute for direct appeal").
This Court adopted as binding precedent all Fifth Circuit decisions handed down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
16
Lynn's § 2255 motion was on a district court form wherein Lynn listed his claims. Under each claim, Lynn incorporated by reference a "Memorandum of Law" attached to the form. In the "Memorandum of Law," Lynn asserted that he was denied his constitutional right to a fair trial because of the government's improper vouching and the witnesses' sequestration violations
17
InMassaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1693, 155 L. Ed. 2d 714 (2003), the Supreme Court reaffirmed that "the general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." However, the Massaro Court excepted ineffective-assistance-of-counsel claims from the general procedural default rule. Id. at 1696 (noting that a § 2255 motion is preferable to direct appeal for deciding claims of ineffective assistance of counsel and that "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255"). In so concluding, the Supreme Court stated:
The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments. We conclude that requiring a criminal defendant to bring ineffective-assistance-of-counsel claims on direct appeal does not promote these objectives.
Id. at 1693.
18
"This exception is exceedingly narrow in scope as it concerns a petitioner's `actual' innocence rather than his `legal' innocence."Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.2001) (citing Calderon v. Thompson, 523 U.S. 538, 559, 118 S. Ct. 1489, 1502-03, 140 L. Ed. 2d 728 (1998); Murray v. Carrier, 477 U.S. at 495-96, 106 S. Ct. at 2649). "`[A]ctual innocence' means factual innocence, not mere legal innocence." Bousley, 523 U.S. at 623, 118 S. Ct. at 1611.
19
Perceived futility of a claim does not constitute cause for procedural defaultSmith, 477 U.S. at 535-36, 106 S. Ct. at 2667. "Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim." McCleskey v. Zant, 499 U.S. 467, 498, 111 S. Ct. 1454, 1472, 113 L. Ed. 2d 517 (1991). As stated in Lomelo, "In determining whether cause exists, the Supreme Court has held that the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was available at all." 891 F.2d at 1515 (internal quotations and citation omitted).
20
To show cause, a defendant must prove that "some objective factor external to the defense impeded counsel's efforts" to raise the claim previouslyMurray v. Carrier, 477 U.S. at 488, 106 S. Ct. at 2645. "[C]ause ... requires a showing of some external impediment preventing counsel from constructing or raising the claim." Id. at 492, 106 S. Ct. at 2648.
21
As stated inLomelo, 891 F.2d at 1515 n. 9, "[t]he `cause and actual prejudice' standard for federal habeas petitions mirrors the standard used to evaluate collateral attacks on state convictions." Thus, at times in our "cause" analysis, we look to both § 2254 and § 2255 cases.
22
Lynn also argues that the government has "unclean hands" and should be barred under principles of equity from asserting procedural default because Lynn's conviction was obtained by intentional government misconduct — improper vouching. However, there is no showing that the improper vouching was intentional. In any event, Lynn, in effect, is inviting this Court to create a third exception to procedural default, which we decline to do
23
In Lynn's current appeal, the government included Eyster's direct appeal brief as an attachment wherein Eyster expressly argued: (1) that "[a]fter trial, defense counsel learned that Sheehy had in fact violated the sequestration rule and that Purvis and DeWeese had engaged in repeated violations well beyond the discussions they admitted before the jury"; and (2) that "Sheehy, DeWeese and Purvis repeatedly and intentionally violated the sequestration order, and then lied about it."
24
Lynn's new § 2255 claim of prosecutorial misconduct made in 1999 was untimely unless it "related back" to Lynn's timely 1997 § 2255 claimsSee Pruitt v. United States, 274 F.3d 1315, 1319 (11th Cir.2001) ("The Davenport rule makes it clear that the key factor is whether the amended claims arise from the same underlying facts as the original claims."); Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir.2000) (stating that "in order to relate back, the untimely claim must have arisen from the `same set of facts' as the timely filed claim, not from separate conduct or a separate occurrence in `both time and type'") (citations omitted). Because Lynn asserts that the 1999 affidavits about the government's complicity add a new claim of prosecutorial misconduct based on newly discovered facts, we have serious reservations about whether Lynn's new claim of prosecutorial misconduct actually "relates back" to his timely filed § 2255 motion. However, the government does not argue on appeal that Lynn's new claim of prosecutorial misconduct is untimely filed. Accordingly, we assume, but do not decide, for the purposes of this appeal that Lynn's new prosecutorial misconduct claim relates back and is timely.
25
InSmith, the Supreme Court refused to hear a criminal appeal because the appellant-defendant was a fugitive. 94 U.S. at 98. The Supreme Court reasoned that it had the discretion to refuse to hear the appeal because the appellant-defendant would not necessarily be bound to its ruling: "If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest." Id. at 97. Thus, the Supreme Court concluded that it need not "hear and decide what may prove to be only a moot case." Id.
26
InEstelle v. Dorrough, 420 U.S. 534, 95 S. Ct. 1173, 43 L. Ed. 2d 377 (1975), the Supreme Court deemed a Texas law constitutional that automatically dismissed a criminal appeal upon the appellant-defendant's escape from custody but reinstated the appeal if the appellant voluntarily surrendered within ten days of his escape. Id. at 535-36, 95 S. Ct. at 1174-75. Noting that the "longstanding and established principle of American law" is that courts may dismiss the pending appeals of escaped prisoners, the Supreme Court accepted Texas's two-tier approach to the fugitive disentitlement doctrine. Id. at 537, 95 S. Ct. at 1175. Specifically, the Court concluded that a state may constitutionally "deal more severely with those who simultaneously invoked the appellate process and escaped from its custody than with those who first escaped from its custody, returned, and then invoked the appellate process." Id. at 541, 95 S. Ct. at 1177.
27
"It is often said that a fugitive `flouts' the authority of a court by escaping, and that dismissal is an appropriate sanction for this act of disrespect."Ortega-Rodriguez, 507 U.S. at 245, 113 S. Ct. at 1206 (citations omitted).
28
The Supreme Court did note, however, "that some actions by a defendant, though they occur while his case is before the district court, might have an impact on the appellate process sufficient to warrant an appellate" dismissal under the fugitive disentitlement doctrineOrtega-Rodriguez, 507 U.S. at 249, 113 S. Ct. at 1208. For example, "a long escape, even if it ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal." Id. The Supreme Court recognized that appellate courts retain the authority to sanction defendants whose "misconduct at the district court level somehow [made] meaningful appeal impossible or otherwise disrupt[ed] the appellate process so that an appellate sanction is reasonably imposed." Id. at 249-50, 113 S. Ct. at 1208-09 (internal quotations and citation omitted).
29
We note that courts possess great latitude in their application of the fugitive disentitlement doctrine. For example, a court may immediately dismiss a fugitive's case without allowing any time for surrender or order a fugitive's case conditionally dismissed unless he surrenders within a certain number of daysSee Ortega-Rodriguez, 507 U.S. at 250 n. 23, 113 S. Ct. at 1209 n. 23 ("Though dismissal of fugitive appeals is always discretionary, ... appellate courts may exercise that discretion by developing generally applicable rules to cover specific, recurring situations."); Estelle, 420 U.S. at 541, 95 S. Ct. at 1177 (stating that a court may "deal more severely with those who simultaneously invoked the appellate process and escaped from its custody than with those who first escaped from its custody, returned, and then invoked the appellate process."); Molinaro, 396 U.S. at 366, 90 S. Ct. at 498-99 (stating that the dismissal of an appeal of a convicted defendant who has escaped from prison need not "await ... the expiration of a fixed period of time"); Fratus v. United States, 496 F.2d 1190, 1191 (5th Cir.1974) (dismissing fugitive's appeal without prejudice so that fugitive could reinstate case once he was no longer a fugitive); United States v. Shelton, 482 F.2d 848, 849 (5th Cir.1973) (remanding to district court to schedule a hearing at which appellant-fugitive shall appear to "show cause why the conditional revocation of his bond and conditional dismissal of his appeal should not be made final").
30
InJoensen, the appellant-prisoner's habeas petition argued that the Florida appellate court violated his procedural due process rights by dismissing his appeal without giving him notice and an opportunity to be heard and by denying his motion to reinstate the appeal without finding that he knowingly waived his right to appeal. 615 F.2d at 1078.
31
Other circuits follow the rule, as we do, that a criminal defendant abandons and waives his direct appeal by escaping from custody while his appeal is pendingSee, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1220 (10th Cir.1999); United States v. Lanier, 123 F.3d 945, 946 (6th Cir.1997); United States v. Corporan-Cuevas, 35 F.3d 953, 957 (4th Cir.1994); United States v. Puzzanghera, 820 F.2d 25, 27 (1st Cir.1987); United States v. Freelove, 816 F.2d 479, 480 (9th Cir.1987); Virgin Islands v. James, 621 F.2d 588, 589 (3rd Cir.1980); United States v. Sperling, 506 F.2d 1323, 1345 n. 33 (2nd Cir.1974); see also United States v. Vasquez-Gutierrez, 335 F.3d 731, 732 (8th Cir.2003); United States v. DeValle, 894 F.2d 133, 135-36 (5th Cir.1990).
32
Lynn asserts thatOrtega-Rodriguez fundamentally changed the meaning of the fugitive disentitlement doctrine. While we expressly decline to revisit the correctness of this Court's dismissal of Lynn's direct appeal, we do note that this Court's earlier decision is in no way undermined by Ortega-Rodriguez. Rather, Lynn's direct appeal represented the classic case of an individual attempting to invoke the jurisdiction of a court while at the same time remaining a fugitive from justice. Ortega-Rodriguez in no way changed the application of the fugitive disentitlement doctrine to situations like the one presented in Lynn's direct appeal. Furthermore, there never has been, nor is there now, a constitutional right to have a direct appeal reinstated after recapture. See Joensen, 615 F.2d at 1078.
33
We note that Lynn's assertion that the district court denied his § 2255 motion by using a per se bar is belied by the record. In this case, the district court did not apply a per se bar. Rather, the district court applied traditional procedural default rules when reaching the ultimate conclusion that Lynn did not show cause for failing to raise his claims on direct appeal
34
We point out that if a criminal defendant filed a § 2255 motion and then escaped from custody while appealing the district court's denial of his § 2255 motion, a court of appeals would be justified in dismissing the appeal under the fugitive disentitlement doctrine. However, Lynn's escape occurred during his direct appeal in 1990 and not during his § 2255 proceedings, which began in 1997
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01-03-2023
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04-27-2010
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https://www.courtlistener.com/api/rest/v3/opinions/2980844/
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February 19, 2015
JUDGMENT
The Fourteenth Court of Appeals
IN THE INTEREST OF A.A.J.C., A CHILD,
NO. 14-14-00998-CV
________________________________
Today the Court heard appellant's motion to dismiss the appeal from the
judgment signed by the court below on September 5, 2014. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
We further order that each party shall pay its costs by reason of this appeal.
We further order that mandate be issued immediately.
We further order this decision certified below for observance.
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01-03-2023
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09-22-2015
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https://www.courtlistener.com/api/rest/v3/opinions/2980835/
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February 24, 2015
JUDGMENT
The Fourteenth Court of Appeals
CARLOS DANIEL FERNANDEZ, Appellant
NO. 14-13-00376-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance.
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01-03-2023
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09-22-2015
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https://www.courtlistener.com/api/rest/v3/opinions/491823/
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824 F.2d 971
U.S.v.Bowman*
NO. 86-1905
United States Court of Appeals,Fifth Circuit.
JUL 15, 1987
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/1873549/
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752 N.W.2d 33 (2008)
GOLDEN FURROW FERTILIZER, INC.
v.
BAKER.
No. 07-0518.
Court of Appeals of Iowa.
February 27, 2008.
Decision without published opinion. Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1125054/
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17 Cal.4th 148 (1998)
THE PEOPLE, Plaintiff and Appellant,
v.
REGINALD EUGENE WILLIAMS, Defendant and Respondent.
Docket No. S057534.
Supreme Court of California.
January 5, 1998.
*151 COUNSEL
Gil Garcetti, District Attorney, George M. Palmer, Acting Head Deputy District Attorney, Patrick D. Moran and Joseph N. Sorrentino, Deputy District Attorneys, for Plaintiff and Appellant.
Frank Duncan for Defendant and Respondent.
OPINION
MOSK, J.
Penal Code section 1385, subdivision (a) (hereafter Penal Code section 1385(a)), provides in pertinent part: "The judge or magistrate may ... of his or her own motion ..., and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes...."
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal. Rptr.2d 789, 917 P.2d 628] (hereafter sometimes Romero), we explained that the "power to dismiss an action," on a trial court's own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), "includes the lesser power to strike ... allegations" or vacate findings "relevant to sentencing, such as the allegation" or finding "that a defendant has prior felony convictions." (13 Cal.4th at p. 504; accord, id. at p. 524, fn. 11.)
In Romero, we proceeded to hold that, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), a trial court may strike an *152 allegation or vacate a finding under the so-called "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)[1] that a defendant has previously been convicted of a "serious" and/or "violent" felony as defined therein. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) We also held that an appellate court must review such a ruling for abuse of discretion. (Ibid.)
In this cause, we shall further consider how trial and appellate courts should undertake to rule and review in this area.
I
On April 19, 1995, in the Superior Court of the County of Los Angeles, the district attorney filed an information against Reginald Eugene Williams.
In a single count, the district attorney charged that, on or about February 9, 1995, Williams committed the felony of driving a vehicle under the influence of an alcoholic beverage and/or a drug specifically, as was otherwise disclosed, phencyclidine or PCP in violation of Vehicle Code section 23152, subdivision (a).
In connection therewith, the district attorney made various allegations, including the following.
In order to charge the offense of driving under the influence, which is alternatively a misdemeanor or a felony (see Veh. Code, § 23160 et seq.), as the latter rather than the former, the district attorney alleged, pursuant to Vehicle Code section 23175, that, within the preceding seven years, Williams had suffered three convictions for separate incidents of the same offense, two in 1991 and one in 1992.
In order to enhance any sentence of imprisonment, the district attorney alleged, pursuant to Penal Code section 667.5, subdivision (b), that (1) following a 1982 conviction, Williams served a prior prison term for the felony of rape (id., § 261); (2) following a 1988 conviction, he served a prior prison term for the felony of possession of a firearm by a convicted felon (id., § 12021, subd. (a)(1)); and (3) following a 1989 conviction, he served another prior prison term for another felony of possession of a firearm by a convicted felon.
Lastly, in order to bring the cause within the Three Strikes law, the district attorney alleged, pursuant to that scheme (Pen. Code, §§ 667, subds. (b)-(i), *153 1170.12), that Williams had previously been convicted of two serious and/or violent felonies, as follows: (1) in 1982, he was convicted of the felony of attempted robbery (Pen. Code, §§ 211, 664), which was at least serious (id., § 1192.7, subd. (c), including subd. (c)(19)); and (2) also in 1982, he was convicted of the felony of rape, which was both serious (id., § 1192.7, subd. (c)(3)) and violent (id., § 667.5, subd. (c)(3)).
Arraigned on the information, Williams pleaded not guilty to the charge with a denial of the allegations.
The cause was later called for trial by jury. Prior to trial, Williams moved the superior court, under Penal Code section 17, subdivision (b)(3) (hereafter Penal Code section 17(b)(3)), which authorized it to "declare[]" an alternative misdemeanor-felony offense to be a misdemeanor when it "grants probation to a defendant without imposition of sentence," to make such a declaration as to the offense of driving under the influence. The People opposed on grounds including that such a declaration was inappropriate in light of the circumstances and, in any event, could not be made prior to sentencing. The superior court denied the motion without prejudice to its renewal after the preparation and submission of a probation officer's report. It continued commencement of trial.
Subsequently prepared and submitted, the probation officer's report described the circumstances of the offense, to the effect that, on the afternoon of February 9, 1995, Williams, who was then 32 years of age, was driving a vehicle on the streets of Los Angeles under the influence of PCP; he was stopped by a police officer; he smelled of the drug, stared blankly, was sweating slightly and grinding his teeth; seven or eight times he was asked by the officer to present his driver's license, and seven or eight times he replied, "How are you doing sir?"; he seemed to be confused, disoriented, and jumpy; he was arrested.
The probation officer's report related Williams's prior record.
As to Williams's juvenile history, so far as it was available, the probation officer's report may be read to reflect the following: (1) a 1976 arrest for burglary (Pen. Code, § 459) with a request for the filing of a petition for an adjudication of wardship (Welf. & Inst. Code, § 602) based on attempted burglary (Pen. Code, §§ 459, 664); (2) another 1976 arrest for burglary with another request for the filing of a wardship petition, this one apparently based on burglary; (3) yet another 1976 arrest for burglary with yet another request for the filing of a wardship petition, this one based on theft (id., § 484); and (4) a 1979 arrest for burglary with a request for a wardship *154 petition apparently based on burglary. It appears that there was at least one adjudication of wardship for an unidentified offense with a commitment to a juvenile camp.[2]
As to Williams's adult history, the probation officer's report may be read to reflect the following: (1) a 1981 conviction for the misdemeanor of burglary with probation along with commitment to jail; (2) a 1982 conviction for the felony of attempted robbery as alleged in the information with probation along with commitment to jail; (3) a 1982 conviction for the felony of rape with commitment to prison as also alleged in the information and parole in 1986; (4) a 1987 violation of parole as to the 1982 rape conviction with commitment to prison; (5) a 1988 conviction for the felony of possession of a firearm by a convicted felon with commitment to prison as alleged in the information; (6) a 1988 violation of parole based on the 1988 firearm-possession conviction with commitment to prison and parole in 1989; (7) a 1989 conviction for the felony of possession of a firearm by a convicted felon with commitment to prison as alleged in the information; (8) a 1989 violation of parole based on the 1989 firearm-possession conviction with commitment to prison and parole in 1990; (9) a 1990 violation of parole apparently as to the 1989 firearm-possession conviction with commitment to prison and parole in 1991; (10) a 1991 conviction for the misdemeanor of driving under the influence as alleged in the information with probation; (11) another 1991 conviction for the misdemeanor of driving under the influence as also alleged in the information this one with suspension of driver's license; (12) a 1991 conviction for the misdemeanor of driving with driver's license suspended (Veh. Code, § 14601.1) with probation; (13) a 1992 conviction for the misdemeanor of driving under the influence as alleged in the information with commitment to jail and/or imposition of a fine; (14) a 1992 arrest for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) leading, apparently, to revocation of parole as to the 1989 firearm-possession conviction with commitment to prison; (15) a 1995 conviction for the misdemeanor of driving without a driver's license (Veh. Code, § 12500, subd. (a)) with imposition of a fine; (16) a 1995 conviction for the misdemeanor of possession of a controlled substance (Health & Saf. Code, § 11377) with probation along with commitment to jail; and (17) a 1995 conviction for the misdemeanor of willful infliction of corporal injury on a spouse or cohabitant resulting in a traumatic condition (Pen. Code, § 273.5) so-called "spousal battery" with commitment to jail.
*155 In addition, the probation officer's report related Williams's personal history. Among other things, it noted that he had had a substance abuse problem since he was nine years of age; he apparently recognized the fact and stated a desire to change; but he did not follow through in efforts to bring the situation under control. It also noted that he was unemployed; he lived alone; he had cohabited with a woman for five or six years, and had two children by her, one of whom was disabled; and he wished to receive probation in order to help care for this child.
The probation officer's report recommended that, if Williams were convicted of the felony of driving under the influence, he should, among other things, be denied probation, sentenced to the upper term, and committed to prison. It evaluated him as a "clear and present danger to the community and to himself" because he had "become a habitual traffic offender." It found no circumstances in mitigation. By contrast, it found three circumstances in aggravation: (1) his offense "involved the threat of great bodily harm"; (2) his "prior conviction[s] as a[n] adult are numerous"; and (3) he "has served prior prison terms."
Williams again moved the superior court, impliedly under Penal Code section 17(b)(3), to declare the offense of driving under the influence to be a misdemeanor rather than a felony. In the alternative, he suggested that it strike one of the two allegations under the Three Strikes law that he had previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a). He evidently did so in order to reduce the maximum sentence under the scheme for a conviction for the felony of driving under the influence from a term of imprisonment for 25 years to life to one for 6 years. For a conviction of the felony of driving under the influence outside the scheme, the term of imprisonment was sixteen months, two years, or three years when, as here, there were at least three prior convictions of the same offense as either a misdemeanor or a felony. (See Veh. Code, § 23175, subd. (a); Pen. Code, § 18.) But for a conviction of the felony of driving under the influence within the scheme, if there was one prior serious and/or violent felony conviction, the term of imprisonment was twice the term of imprisonment otherwise provided (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), to wit, two and two-thirds years, four years, or six years. And if there were at least two prior serious and/or violent felony convictions, the term of imprisonment was an indeterminate one for life, with a minimum of 25 years. (Id., §§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii); see Veh. Code, § 23175, subd. (a); Pen. Code, § 18.)
At the hearing, the superior court stated that it was not inclined to declare the offense of driving under the influence to be a misdemeanor rather than a *156 felony "because of the nature of [Williams's] criminal record and the fact that ... this is a driving under the influence of PCP," and that even if it had been, it could not do so "until sentencing anyway." But it also stated that "this might be an appropriate case to strike a prior, and then treat it as a two-strike case" "because of the age of those prior serious felonies, burglaries, and one robbery,"[3] which Williams committed about 13 years earlier when he was about 20 years of age, and "because of ... the lack of any kind of violence related crimes from then until now...."
In response, Williams immediately decided to withdraw his plea of not guilty to the charge with a denial of the allegations, and to plead guilty with an admission thereof instead. The superior court advised him of the maximum sentence that it could impose a term of imprisonment for 28 years to life, comprising a minimum of 25 years for the felony of driving under the influence and 1 year additionally and consecutively for each of the 3 prior prison terms. It impliedly gave him leave to withdraw his original plea of not guilty with denials. He did so. It expressly allowed him to enter a new and different plea of guilty with admissions. He did so by means of a so-called "open plea," under which he was not made any promises. In response thereto, it expressly found him guilty and impliedly determined the allegations to be true.
Straightway, the superior court proceeded to address Williams's motion under Penal Code section 17(b)(3) to declare the offense of driving under the influence to be a misdemeanor rather than a felony, and his suggestion that it strike one of the two allegations under the Three Strikes law that he had previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a). It inquired whether it could use the probation officer's report for that purpose, and he responded in the affirmative. It denied the motion. It explained that, "because of your ... record, I don't think this is an appropriate case to reduce this matter to a misdemeanor pursuant to section 17(b)...." But it ruled in accordance with the suggestion that it would strike now vacate one of the two allegations now findings under the Three Strikes law. Rejecting an argument by the People on the threshold issue, it stated: "I currently think that I ... have the authority to strike a prior under 1385 of the Penal Code." (At that time, prior to Romero, the existence vel non of such authority was an open question.) Rejecting an argument by the People on the merits, it stated: "[Williams's] prior convictions for the serious felonies were in 1982. It would appear, though, since that time he has run afoul with [sic] the law many times, but not for crimes involving actual violence. We always *157 have a situation when somebody's driving under the influence, it could have been violence. [¶] However, luckily, nothing happened in this case." It then ordered the finding relating to the prior conviction for the serious felony of attempted robbery vacated: "That leaves us now with a two-strike case, ... plus the one-year enhancements for the priors." Contrary to the requirement of Penal Code section 1385(a), however, it failed to set forth its reasons in an order entered on the minutes.
Turning to sentencing, the superior court, among other things, imposed on Williams a term of imprisonment for nine years. It chose the upper term of imprisonment for three years for the felony of driving under the influence for the reasons stated in the probation officer's report. It doubled that term to six years under the Three Strikes law because there was one prior serious and/or violent felony conviction. It added one year for each of the three prior prison terms, each to run consecutive to the term for driving under the influence and to each other. It apparently declined to vacate any of the underlying findings under Penal Code section 1170.1, subdivision (h), which granted it the authority to do so "if," among other things, "it determine[d] that there [were] circumstances in mitigation of the additional punishment," because of the "same factors that led [it] to deny the request under 17(b) to reduce act [sic] as far as factors in aggravation." Noting the presence of two members of Williams's family, it stated: "[T]he fact that you've got [them] here ... shows me they still love you and still support you, in spite of the disappointment you obviously are to them. What you've done is, you've let down them [sic]. It's time for you to start doing something productive in your life."
The People filed a notice of appeal pursuant to Penal Code section 1238, subdivision (a)(10), against the "imposition of" what they claimed to be "an unlawful sentence," specifically, the "imposition of a sentence based upon an unlawful order ... which strikes ... the effect of ... [a] prior conviction."
In a judgment announced in an opinion not certified for publication, Division Five of the Second Appellate District of the Court of Appeal reversed the superior court's judgment in part and affirmed it in part. In a unanimous opinion,[4] having raised the issue itself, it concluded that the superior court's order vacating the finding under the Three Strikes law that Williams had previously been convicted of the serious felony of attempted robbery, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), was subject to review for abuse of discretion, and that such order was erroneous under that standard in light of Williams's "extraordinary record of prior criminality." Proceeding to disposition, it stated: *158 "Since [Williams] entered an open plea, there is no need for remanding for reconsideration of the sentence. The trial court identified no mitigating circumstances and we can find none which would warrant striking the three prior prison terms enhancements. As a result, the trial court should simply order [him] to serve a 28 years-to-life sentence." Accordingly, it reversed the judgment, as pertinent here, to the extent that it imposed a sentence comprising a term of imprisonment for nine years, and remanded the cause with directions to impose one for twenty-eight years to life; in all other respects, it affirmed the judgment.
The Court of Appeal denied a petition for rehearing submitted by Williams. At the same time, it modified its original opinion on its own motion without change in judgment to delete the signature of one of the justices therefrom and to add a separate opinion by him in dissent. He stated: "I agree that the order imposing sentence should be set aside. I believe it should be set aside because the trial court neglected to set forth the reasons for the dismissal in a written order as required by the Supreme Court in [Romero]. I do not agree that we, as an appellate court, can go further and, in what amounts to an exercise of our discretion, as distinguished from a review of the trial's [sic] exercise of its discretion, deny the motion to strike and impose a different and more severe sentence." He concluded: "[W]e should do what the Supreme Court effectively did on analogous facts in Romero: Vacate the sentence and remand the matter to the trial court to proceed in accordance with the views expressed in Romero."
On Williams's petition, we granted review.
II
(1) In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a).
In Romero, in order to provide guidance both to the trial courts, which may make such rulings, and also to the lower appellate courts, which may review them, we restated the law, as follows:
"... A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with [Penal Code] section 1385(a), and is subject to review for abuse....
"`The trial court's power to dismiss an action under [Penal Code section 1385(a)], while broad, is by no means absolute. Rather, it is limited by the *159 amorphous concept which requires that the dismissal be "in furtherance of justice." As the Legislature has provided no statutory definition of this expression, appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have arisen challenging its exercise. Thus, in measuring the propriety of [a] court's action ..., we are guided by a large body of useful precedent which gives form to the above concept.
"`From the case law, several general principles emerge. Paramount among them is the rule "that the language of [Penal Code section 1385(a)], `in furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal...." ... At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." ...' ... `Courts have recognized that society, represented by the People, has a legitimate interest in "the fair prosecution of crimes properly alleged." ... "`[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.' ..."' ...
"From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes [or vacates] a sentencing allegation [or finding], solely `to accommodate judicial convenience or because of court congestion.' ... A court also abuses its discretion by dismissing a case, or a sentencing allegation [or finding], simply because a defendant pleads guilty.... Nor would a court act properly if `guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring `defendant's background,' `the nature of his present offenses,' and other `individualized considerations.' ...
(2) "A court's discretionary decision to dismiss or to strike [or vacate] a sentencing allegation [or finding] under [Penal Code section 1385(a)] is also reviewable. `[W]here the court's action lacks reason it may be invalidated upon timely challenge.'... [Penal Code section 1385(a)] anticipates, and facilitates, appellate review with the requirement that `[t]he reasons for the dismissal must be set forth in an order entered upon the minutes.' ... `The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter's transcript may show the trial court's motivation; the minutes must reflect the reason "so that all may know why this great power was exercised."'" (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531, italics in original, citations omitted.)
(3) In Romero, we recognized that the "concept" of "furtherance of justice" within the meaning of Penal Code section 1385(a) is "`amorphous.'" (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) In *160 so doing, we did no more and no less than we had to. Plainly, the words do not define themselves.
When we undertake to render Penal Code section 1385(a)'s concept of "furtherance of justice" somewhat more determinate, we may proceed by adopting one of two general orientations. Broadly speaking, we may seek "justice" outside the bounds of the scheme to which the defendant is subject which here, of course, is the Three Strikes law. Or we may look for "justice" in that scheme's interstices, informed by generally applicable sentencing principles relating to matters such as the defendant's background, character, and prospects.[5]
To attempt to give content to the concept of "furtherance of justice" in Penal Code section 1385(a) by searching outside the scheme in question runs the risk of failure. In Romero, we had to acknowledge that what is "just" is formless. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) To be sure, "justice" is commonly defined as giving each person his due. (See, e.g., Plato, Res Publica (Burnet ed. 1952) Liber IV, pp. 433e12 to 434a1.) But it is not commonly agreed what is due each person. (E.g., Weinreb, The Complete Idea of Justice (1984) 51 U. Chi. L.Rev. 752.)
By contrast, to proceed by looking within the scheme in question, as informed by generally applicable sentencing principles, offers some prospect of success. The scheme itself constitutes the "letter" of the law. More than perhaps any other source, it may also suggest its "spirit." For even when it does not declare its purpose in ipsissimis verbis, it indicates its objective through its scope and operative terms. (See Continental Ins. Co. v. Superior Court (1995) 32 Cal. App.4th 94, 108 [37 Cal. Rptr.2d 843] [stating that the "scope of discretion always resides in the particular law being applied"]; Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal. App.4th 415, 422 [21 Cal. Rptr.2d 303] [same].)
Moreover, it is in fact by looking within the scheme in question, as informed by generally applicable sentencing principles, that we have actually proceeded. This is manifestly true as to the Three Strikes law. In Romero, we noted the balance, for present purposes, between the defendant's constitutional rights which we suggested included the guaranties against disproportionate punishment of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution (see, e.g., People v. Marshall (1990) 50 Cal.3d 907, 938 [269 Cal. Rptr. 269, 790 P.2d 676]) and society's legitimate interests which we stated embraced the fair prosecution of properly charged crimes. (See People v. Superior Court *161 (Romero), supra, 13 Cal.4th at pp. 530-531.) We implied that, in that balance, no weight whatsoever may be given to factors extrinsic to the scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant. (See id. at p. 531.) We also implied that, in that same balance, preponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. (See ibid.)
We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.
III
(4a) Turning to the case at bar, we now consider the decision of the Court of Appeal. As indicated, the majority concluded that the superior court's order vacating the finding under the Three Strikes law that Williams had previously been convicted of the serious felony of attempted robbery, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), was unsound on the merits. For his part, the dissenting justice concluded that the order was ineffective on procedural grounds. The majority did not consider the question of ineffectiveness. The dissenting justice did not consider the question of unsoundness.[6]
In People v. Orin (1975) 13 Cal.3d 937 [120 Cal. Rptr. 65, 533 P.2d 193], we reviewed a similar superior court ruling both for its effectiveness (id. at *162 pp. 943-945) and also for its soundness (id. at pp. 945-951). We shall follow a similar course here.
On the question of the effectiveness of the superior court's order, we believe that the Court of Appeal dissenting justice was right to give a negative answer. In Romero, we held that, under "settled law," a ruling that is unaccompanied by reasons set forth in an order entered on the minutes, like that here, is simply "ineffective." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532.)
On the question of the soundness of the superior court's order, we believe that the Court of Appeal majority was right to give a negative answer.
(5) To begin with, the Court of Appeal majority properly determined that the superior court's order was subject to review for abuse of discretion. This standard is deferential. (E.g., People v. Williams (1997) 16 Cal.4th 153, 210 [66 Cal. Rptr.2d 123, 940 P.2d 710]; People v. Mayfield (1997) 14 Cal.4th 668, 720 [60 Cal. Rptr.2d 1, 928 P.2d 485].) But it is not empty. Although variously phrased in various decisions (see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [60 Cal. Rptr.2d 93, 928 P.2d 1171], quoting the wording in several opinions), it asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts (People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [9 Cal. Rptr.2d 628, 831 P.2d 1210]; see People v. Jackson (1992) 10 Cal. App.4th 13, 22 [12 Cal. Rptr.2d 541]).
(4b) The Court of Appeal majority also properly determined that the superior court's order amounted to an abuse of discretion.
In light of the nature and circumstances of his present felony of driving under the influence, which he committed in 1995, and his prior conviction for the serious felony of attempted robbery and his prior conviction for the serious and violent felony of rape, both of which he suffered in 1982, and *163 also in light of the particulars of his background, character, and prospects, which were not positive, Williams cannot be deemed outside the spirit of the Three Strikes law in any part, and hence may not be treated as though he had not previously been convicted of those serious and/or violent felonies.
There is little about Williams's present felony, or his prior serious and/or violent felony convictions, that is favorable to his position. Indeed, there is nothing. As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; "the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable but had failed or refused to learn his lesson" (People v. Gallego (1990) 52 Cal.3d 115, 209, fn. 1 [276 Cal. Rptr. 679, 802 P.2d 169] (conc. opn. of Mosk, J.)). As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation.
Similarly, there is little favorable about Williams's background, character, or prospects. We do not ignore the fact that he apparently had had a stable living arrangement with a woman, had expressed a desire to help care for their disabled child, and was still loved, and supported, by his family. But neither can we ignore the fact that he was unemployed and did not follow through in efforts to bring his substance abuse problem under control. Certainly, that he happened to pass about 13 years between his prior serious and/or violent felony convictions and his present felony, and proceeded from about 20 years of age to 32, is not significant. He did not refrain from criminal activity during that span of time, and he did not add maturity to age. Quite the contrary. In those years, he was often in prison or jail; when he was not, he violated parole and, apparently, probation, and committed the offenses that resulted in his convictions for the following: the felony of possession of a firearm by a convicted felon; another felony of possession of a firearm by a convicted felon; the misdemeanor of driving under the influence; another misdemeanor of driving under the influence; the misdemeanor of driving with driver's license suspended; yet another misdemeanor of driving under the influence; the misdemeanor of driving without a driver's license; the misdemeanor of possession of a controlled substance; and, lastly and notably, the misdemeanor of spousal battery. The superior court evidently believed that Williams was not the same man when he committed his present felony in 1995 at 32 years of age as he had been when he suffered his prior serious and/or violent felony convictions in 1982 at 20. In this regard, it asserted that there were no "crimes involving actual violence" in the interim. It was wrong. He had not changed. We put to the side his two convictions for the felony of possession of a firearm by a convicted felon. We also put to the side the apparent revocation of his parole following his *164 arrest for assault with a deadly weapon. But the fact remains, not more than three months before he committed his present felony, he committed the misdemeanor of spousal battery which is plainly a "crime[] involving actual violence."
In view of the forgoing, the superior court's order fell outside the bounds of reason under the applicable law and the relevant facts.
Finally, in considering the decision of the Court of Appeal, we must obviously pass on its disposition. Without even mentioning Romero, the majority reversed the superior court's judgment as to sentence. By contrast, bound by Romero's authority, the dissenting justice would have vacated the judgment in that part and remanded the cause. We believe that the dissenting justice was largely right and that the majority was altogether wrong the panel should have vacated the judgment in its entirety. In Romero, we held, in words directly applicable here, that the "conclusion that the [superior] court's order was ineffective necessarily affects the disposition. At the time [Williams] pled guilty, the [superior] court had indicated its willingness to consider striking [one of] the prior felony conviction allegations. This factor manifestly influenced [his] decision to plead guilty. Under these circumstances, the appropriate remedy is to vacate the judgment, to permit [him] to withdraw his plea, and otherwise to proceed in conformity with" the law. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532.)[7]
*165 IV
For the reasons stated above, we conclude that we must affirm the judgment of the Court of Appeal to the extent that it sets aside the superior court's order vacating the finding under the Three Strikes law that Williams had previously been convicted of the serious felony of attempted robbery, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a). We must otherwise reverse the judgment of the Court of Appeal with directions to vacate the judgment of the superior court and remand the cause to that court for proceedings not inconsistent with the views expressed in this opinion.
It is so ordered.
Kennard, J., Werdegar, J., and Brown, J., concurred.
BAXTER, J., Conurring and Dissenting.
I concur in the judgment reversing the judgment of the Court of Appeal and remanding this matter to the superior court for further proceedings. I dissent from the judgment to the extent that it requires the trial court to permit defendant to withdraw his plea in those proceedings.
The majority correctly concludes that the trial court abused its discretion when it set aside its finding that defendant had committed the prior serious felony of attempted robbery. As the majority explains, defendant's criminal record establishes beyond question that he is a person who comes within the spirit of the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)[1] His criminal activity has continued unabated since his childhood except for those periods when he has been incarcerated. Contrary to the view of the trial court, he has committed a recent crime of violence, spousal battery. Moreover, while his repeated acts of driving while intoxicated by drugs or alcohol did not lead to injury or death, such conduct is proscribed and heavily punished when repeated because it creates a serious threat of injury to other drivers and their passengers, bystanders, and the intoxicated driver. This conduct should not be disregarded solely because it is not a "crime of violence" as that term is generally understood. Driving while intoxicated is a dangerous offense which often poses a threat of serious injury and thus may appropriately be considered in deciding whether punishment under the provisions of the Three Strikes law is warranted regardless of whether death or injury actually occurred. I therefore agree that defendant's conduct and the extended sentence mandated by that law are within the spirit of the Three Strikes law.
*166 I also agree that the judgment imposed by the trial court must be reversed because the court failed to comply with the requirement of section 1385, subdivision (a), that the reason or reasons for exercising discretion to strike a prior felony conviction be set forth in a minute order. Because the court failed to do so, the order setting aside the finding that defendant had previously been convicted of attempted robbery was ineffective. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 532 [53 Cal. Rptr.2d 789, 917 P.2d 628] (Romero); People v. Orin (1975) 13 Cal.3d 937, 944 [120 Cal. Rptr. 65, 533 P.2d 193].) Since defendant was a person within the provisions of the Three Strikes law, the lesser sentence imposed on defendant was unauthorized. For that reason too the superior court judgment must be reversed.
I depart company from the majority, however, when it holds that the trial court must permit defendant to withdraw his plea. I recognize that this relief was granted in Romero. In retrospect, however, I believe the court erred in doing so and thereby granting that defendant a benefit not granted to other defendants whose guilty pleas are based only on a hope or anticipation of leniency in sentencing, but to whom no promises of leniency have been made.
Had the prosecutor or the court given defendant any assurance that the prior conviction would be stricken or had any other promises of leniency been made which are not to be honored, the promise would have to be kept or the defendant be permitted to withdraw the plea of guilty. (§ 1192.5.) Due process requires no less. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262 [92 S.Ct. 495, 499, 30 L.Ed.2d 427].) A guilty plea "is the defendant's consent that judgment of conviction may be entered without a trial a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (Brady v. United States (1970) 397 U.S. 742, 748 [90 S.Ct. 1463, 1469, 25 L.Ed.2d 747], fn. omitted.)
When leave to withdraw a plea is not required by statute or mandated by constitutional considerations, however, whether to permit a defendant to withdraw the plea is a decision committed to the sound discretion of the trial court. Unless the defendant was not represented by counsel when the plea was entered, good cause must be shown by clear and convincing evidence before the court may permit the plea to be withdrawn when a defendant seeks to do so before judgment. Mistake, ignorance, or other factor which *167 overcomes the exercise of free judgment by the defendant is "good cause." (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566 [116 Cal. Rptr. 242, 526 P.2d 250].) The requirement of good cause shown by clear and convincing evidence is not lessened when a motion to withdraw a plea is made after judgment. (People v. Castaneda (1995) 37 Cal. App.4th 1612, 1617 [44 Cal. Rptr.2d 666].)
"With respect to postjudgment motions to withdraw a guilty plea, the courts have required a showing essentially identical to that required under Penal Code section 1018: `[W]here on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty.... It should be noted, however... that this exceptional remedy applies ... only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.' (People v. Schwarz [(1927)] 201 Cal. [309,] 314-315 [257 P. 71], italics added.) Again the decision to grant the motion lies within the trial court's discretion." (People v. Castenada, supra, 37 Cal. App.4th at p. 1617.) "Post plea remorse" brought on by dissatisfaction with the sentence imposed is not good cause for withdrawal of a plea, however. "As a general rule, a plea of guilty may be withdrawn `for mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment.' [Citations.] [¶].... [When a defendant] enters a guilty plea hoping for leniency which is not forthcoming ... [the] situation has traditionally been held not to constitute a ground for the court to exercise its discretion in allowing the withdrawal of a guilty plea." (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797-798 [114 Cal. Rptr. 596, 523 P.2d 636] (Giron), fn. omitted.)
Romero went too far, therefore, in directing that the defendant there be permitted to withdraw his plea. The majority perpetuates the error here.
The majority concedes that no promises were made in this case. It must do so because the court made that clear, stating to counsel in defendant's presence: "No promises are being made. I indicated to him that in appropriate cases like this, I have in fact struck a prior before today. However, I'm not promising that." In taking the plea, the prosecutor expressly warned the defendant that the plea would be "an open plea, which means the court has not made you any promise what sentence you could receive and, therefore, depending upon what the court does at the time of sentencing, it could be something less than 28 years to life, but of course, that is the maximum." Moreover, the judge made an express finding that no promises had been made.
*168 Since there were no unkept promises by the prosecutor or the court, and defendant clearly knew the full range of possible punishment, the record does not reflect any statutory or constitutional compulsion to permit him to withdraw his plea. The majority relies therefore on the court's "inherent power," a discretionary power, to permit withdrawal of a plea. The court's discretionary power to permit withdrawal of a plea is not as broad as the majority implies, however. First, it is a power vested in the trial court in the first instance. Second, it is a limited power which may be exercised only on clear and convincing evidence of good cause. If all of the factors relevant to determining good cause have been developed and are reflected in the record, an appellate court may be able to determine without remand that it would be an abuse of discretion were the trial court to deny a postjudgment motion to withdraw a guilty plea. That is not the case here.
Whether this defendant entered the plea in reliance on, or was substantially influenced in deciding to plead guilty, by the judge's comment regarding his inclination to strike one prior conviction or simply hoped that the court would do so cannot be determined on this record. Whether a factor overreaching a defendant's judgment induced a guilty plea presents a factual question on which both the defendant and prosecutor are entitled to offer evidence. The judge's comment alone is insufficient to establish that an overreaching factor led to defendant's entry of a guilty plea he would not otherwise have entered. At best the record supports an inference that the trial court's comment regarding its inclination to strike one prior conviction influenced defendant. Certainly there is no clear and convincing evidence here that the comment did so.
The majority, without reference to the well-established law circumscribing the power of the court to permit withdrawal of a guilty plea, holds that "in fairness" defendant should be permitted to withdraw his plea. It does so in the apparent assumption that the trial court's comments induced the plea, but that assumption is not supported by any evidence. The majority holds in effect that, as a matter of law, such comments about a court's inclinations regarding sentence induce pleas which a defendant may withdraw if the anticipated sentence is not imposed. I cannot join in either the assumption or the holding.
I agree that a decision to permit withdrawal of a plea should be decided in the interest of justice. (Giron, supra, 11 Cal.3d at pp. 796-797.) I also agree, in light of the comments made by the judge before defendant entered his plea, that this may be a case in which the usual rule disfavoring withdrawal of a plea solely because anticipated leniency was not forthcoming should not be applied. I do not agree, however, that this court may order the trial court *169 to permit defendant to withdraw the plea. The majority accepts the concession by the People at oral argument that the court's statement was a "powerful inducement," but defendant has not presented evidence to that effect and the prosecutor who was present at the time the plea was entered has not been afforded the opportunity to offer contrary evidence.
Based on this record, this court is in no position to rule that it would be an abuse of discretion to deny a motion to withdraw the plea, yet it concludes that it is proper to decide the question itself. It thereby usurps a power vested in the trial court.
Since the sentence imposed in this case was unauthorized, the judgment of the superior court must be reversed and the matter remanded for a new probation and sentence hearing. At that hearing defendant may move to withdraw his plea and the trial court may hear his reasons and any opposition from the local prosecutor.
To the extent that the disposition ordered by the majority differs, I dissent from the judgment.
George, C.J., and Chin, J., concurred.
Appellant's petition for a rehearing was denied February 25, 1998, and the opinion was modified to read as printed above.
NOTES
[1] Penal Code section 667, subdivisions (b) through (i), is the codification of the Three Strikes law's legislative version (Stats. 1994, ch. 12, § 1). Penal Code section 1170.12 is the codification of its initiative version (Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994)). The two are "nearly identical." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.)
[2] The district attorney did not allege that the apparent adjudication of wardship for the unidentified offense amounted to a prior serious and/or violent felony conviction. (Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3); see also People v. Davis (1997) 15 Cal.4th 1096, 1103 [64 Cal. Rptr.2d 879, 938 P.2d 938] [declining to decide whether an adjudication of wardship for "residential burglary" may constitute a prior serious and/or violent felony conviction].)
[3] The superior court misspoke: The "prior serious felonies" to which it referred were attempted robbery and rape.
[4] Which somewhat curiously does not even mention Romero, then recently decided.
[5] See, e.g., California Rules of Court, rule 410 et seq.
[6] Williams claims that, under People v. Scott (1994) 9 Cal.4th 331 [36 Cal. Rptr.2d 627, 885 P.2d 1040], the Court of Appeal erred by undertaking to review the superior court's order at all. We disagree. In Scott, we held only that a party cannot raise a "complaint[] about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons ... for the first time on appeal." (Id. at p. 356.) We did not even purport to consider whether an appellate court may address such an issue if it so chooses. Surely, the fact that a party may forfeit a right to present a claim of error to the appellate court if he did not do enough to "prevent[]" or "correct[]" the claimed error in the trial court (id. at p. 353) does not compel the conclusion that, by operation of his default, the appellate court is deprived of authority in the premises. An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. (E.g., Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 17 [221 Cal. Rptr. 468, 710 P.2d 268, 69 A.L.R.4th 915]; see, e.g., People v. Berryman (1993) 6 Cal.4th 1048, 1072-1076 [25 Cal. Rptr.2d 867, 864 P.2d 40] [passing on a claim of prosecutorial misconduct that was not preserved for review]; People v. Ashmus (1991) 54 Cal.3d 932, 975-976 [2 Cal. Rptr.2d 112, 820 P.2d 214] [same].) Indeed, it has the authority to do so. (See, e.g., Canaan v. Abdelnour, supra, 40 Cal.3d at p. 722, fn. 17.) True, it is in fact barred when the issue involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of evidence. Such, of course, is not the case here. Therefore, it is free to act in the matter. (See, e.g., Canaan v. Abdelnour, supra, 40 Cal.3d at p. 722, fn. 17.) Whether or not it should do so is entrusted to its discretion. (Ibid.)
[7] At oral argument, the People expressed the position that, "in fairness, ... [Williams] should be allowed to withdraw his plea" of guilty to the charge with an admission of the allegations. We agree. Whether to grant or deny a defendant permission to withdraw a plea of guilty must be decided "in the interest of promoting justice." (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-797 [114 Cal. Rptr. 596, 523 P.2d 636].) Generally, it is the trial court that makes the decision. (See ibid.) That is because it is the trial court that deals with pleas in the first instance. But here it is we who shall do so. For we have a record on appeal that is altogether adequate for the task. As noted, the superior court stated that "this might be an appropriate case to strike a prior," and in response Williams immediately decided to withdraw his original plea of not guilty with a denial of the allegations. Post hoc, propter hoc: The record on appeal compels the inference not through a logical fallacy but as a factual reality. The superior court should not have made its statement which at oral argument the People conceded was a "powerful inducement" because this was in fact not an "appropriate case to strike a prior." Hence, Williams should not have been subjected to its influence. It follows that, "in the interest of promoting justice" (ibid.), he should be allowed to return to the status quo ante by withdrawing his plea of guilty with admissions, should he so choose.
In Romero, we implied that, on remand there, the superior court could rule as it had originally. (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532.) On remand here, if the material and information set out again prove to be the same as that set out before, the superior court cannot rule as it did originally, inasmuch as its order was erroneous. But if such material and information turn out to be different, it is not bound.
[1] All subsequent statutory references are to the Penal Code.
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https://www.courtlistener.com/api/rest/v3/opinions/2600345/
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170 P.3d 1098 (2007)
215 Or. App. 656
Gail Glick ANDREWS, Appellant,
v.
SANDPIPER VILLAGERS, INC., an Oregon corporation, its Board of Directors and Architectural Review Committee, Respondent.
04233; A129071.
Court of Appeals of Oregon.
Argued and Submitted July 25, 2006.
Decided October 31, 2007.
*1099 James K. Brewer argued the cause for appellant. On the brief were Scott A. Fewel, and Fewel & Brewer, Corvallis.
Clifford G. Collard, Newport, argued the cause and filed the brief for respondent.
Before SCHUMAN, Presiding Judge, and LANDAU[*] and ORTEGA, Judges.
ORTEGA, J.
Plaintiff brought this action against defendanta homeowners association (the association), its board of directors (the board), and its architectural review committee (the ARC)seeking to quiet title in real property and a declaration that the conditions, covenants, and restrictions (CCRs) that were applicable to plaintiff's property did not require her to trim or cut trees to protect the ocean view of a neighbor. The trial court granted summary judgment to defendant, along with attorney fees. Plaintiff appeals, contending that issues of both law and fact precluded summary judgment. We affirm.
Summary judgment is proper if the "pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact." ORCP 47 C. "No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively *1100 reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id.; see also Bachmeier v. Tuttle, 195 Or.App. 83, 85, 96 P.3d 871 (2004) (in reviewing the allowance of summary judgment, we view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor).
Except where specifically noted, the following facts were not disputed. The association consists of owners of property in Sandpiper Village, a coastal subdivision in Lincoln County. When the subdivision was originally platted in 1968, the developer recorded a declaration of covenants and restrictions (the 1968 CCRs) requiring that there could be "[n]o trees, hedges, shrubbery, plantings or fencing of any kind whatsoever in excess of six feet in height." The 1968 CCRs also provided that the covenants and restrictions therein were to remain in effect for 25 years, after which they would automatically extend for 10-year periods "unless an instrument signed by a majority of the then owners of all lots within the said property has been recorded, agreeing to extinguish or change said covenants and restrictions in whole or in part." The covenants and restrictions also could be amended prior to the expiration of the 25-year period by the affirmative vote of two-thirds of the lot owners, with each lot having one vote.
Twenty-five years later, in 1993, the board proposed an "amended declaration" (the 1993 CCRs). As pertinent here, it included the following provision:
"3.2.2. Trees, Shrubbery and Fencing. No trees, hedges, shrubbery, plantings or fencing of any kind shall be allowed to obstruct the ocean view without written approval of [the board]. View impairment will be determined by the [ARC], who will give the owner written notification to trim the vegetation blocking the view. After thirty (30) days, the [ARC] shall have the authority to hire an appropriate person or persons to complete the work at the owner's expense. This recourse will be taken if the owner fails to comply with the original request."
A majority of homeowners voted to adopt the amendments. The 1993 CCRs were then recorded, accompanied by a signed and notarized "certification" by LeBaron, the then-president of the association, and Rubin, its then-secretary, attesting that the CCRs were approved by 51 percent or more of the homeowners.
In 1994, the association's legal counsel, Dumas, and the chair of the ARC, Strassmaier, drafted several proposed substantive amendments to the 1993 CCRs, not including any amendment to Section 3.2.2, quoted above. Most of the proposed amendments were approved by vote of the homeowners. At the same time, Dumas drafted what he termed to be "stylistic" changes to the other provisions and reorganized and renumbered the CCRs; those changes were not voted on by the homeowners. Following Dumas's ostensibly stylistic changes and renumbering, Section 3.2.2 of the 1993 CCRs became Section 3.6 and provided as follows:
"3.6 Ocean View. No trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of [the board]. View obstruction shall be determined by the ARC."
In addition, Section 8.3 of the 1994 CCRs provided, in part, that, "[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control." The 1994 CCRsincluding both the approved amendments and Dumas's additional changeswere recorded, again accompanied by a certification by LeBaron and the then-secretary, Robbie Vitus, to the effect that they had been approved by 51 percent or more of the homeowners.
Plaintiff purchased property in Sandpiper Village in 1997, after all of those events. At that time, she reviewed the 1994 CCRs as part of her title report, including the certification that the CCRs had been approved by at least 51 percent of the homeowners.
In June 2003, another member of the association, Gildroy, sent a written notice to plaintiff and the ARC, requesting that plaintiff trim trees on her property in order to *1101 preserve Gildroy's view. Plaintiff did not trim the trees. Eight months later, the ARC requested in writing that plaintiff trim the trees within 45 days.
Instead, plaintiff initiated this action. In her first claim for relief in the operative complaint, plaintiff sought a declaration that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that Gildroy's property was a "designated [ocean] view lot." In her second claim for relief, she sought to quiet title in her property to the effect that the CCRs were void by reason of failing to comply with applicable state statutes. Plaintiff also sought reasonable attorney fees and costs.
Defendant answered and also moved for summary judgment. As pertinent here, in support of its motion defendant contended that plaintiff's legal challenge was based entirely on the inclusion in the 1994 CCRs of the phrase, "designated ocean view lots"; that, because that phrase was drafted as a stylistic change by Dumas and was never voted on by the homeowners, it should be disregarded; and that, without that phrase, the 1994 CCRs had the same effect as the 1993 CCRs. Alternatively, defendant argued that, even assuming that the phrase is a valid part of the 1994 CCRs, the phrase is ambiguous and the court either should defer, in the absence of any showing of fraud or bad faith, to the ARC's interpretation of it, or should determine, based on extrinsic evidence including Dumas's affidavit and the absence of any list of "designated" lots that it was not intended to effect a substantive change to the 1993 CCRs, under which all lots were entitled to view protection. Defendant also contended that it was not bound by a representation that plaintiff had invoked by a former ARC chairperson regarding the meaning of the phrase "designated ocean view lots." It argued that plaintiff could not in any event reasonably rely on that representation because, in making it, the former chairperson acted only as an individual and did not represent the ARC or intend for plaintiff to rely on her statement and because Gildroy's lot patently did have an ocean view; moreover, there was no evidence that plaintiff did in fact rely on the statement.
In opposition to the motion, plaintiff asserted the existence of a material issue of fact relating to whether the 1994 CCRs were properly enacted. Plaintiff contended that Dumas's attestation as to the meaning and validity of the 1994 CCRs could not be taken to reflect the understanding of a party to the agreement and conflicted with an August 2000 letter in which he asserted that the 1994 CCRs were valid regardless of any insufficiency in their adoption. Plaintiff also argued that, to the extent that defendant was attempting to rely on the 1993 CCRs, there was no evidence that those CCRs were properly enacted. Plaintiff further contended that the meaning of the phrase "designated ocean view lots" in the 1994 CCRs was unambiguous and that there was no evidence that Gildroy's lot had been so designated; moreover, even if the CCRs were ambiguous, consistently with another provision of the CCRs, the board, not the ARC, was authorized to interpret them, and they should be construed against the drafter, namely, the board. Finally, plaintiff argued that, where title records caused property purchasers and owners to understand that the 1994 CCRs were valid, where defendant did nothing to correct that understanding, and where owners relied on them, defendant was equitably estopped from asserting that the 1994 CCRs were not validly enacted.
As noted, the trial court awarded summary judgment in favor of defendant and, in a supplemental judgment, awarded it attorney fees and costs.
In her first assignment of error, plaintiff contends that the trial court erred because the phrase "from designated ocean view lots" in the 1994 CCRs is unambiguous. According to plaintiff, where the term "designated" is in the past tense, such designation must occur before the ARC determines whether there is a view obstruction and takes action to remove the obstruction, a process that, on this record, did not take place in regard to Gildroy's lot. Plaintiff further argues that the fact that the CCRs themselves set out no process for making such a designation does not create an ambiguity; rather, it *1102 merely creates a question of fact as to whether a particular property was designated. Plaintiff also contends that the ARC had no authority to interpret the CCRs and that the record lacks any evidence that the board undertook to interpret them.
Plaintiff next argues that, even assuming that the relevant portion of the 1994 CCRs was ambiguous, we should disregard evidence of Dumas's intent and related extrinsic evidence that, according to plaintiff, is rendered unreliable in light of what plaintiff deems the patently erroneous certification of the 1994 CCRs by LeBaron and Vitus and in light of evidence of Dumas's later and assertedly inconsistent written statement regarding the validity and enforceability of the 1994 CCRs. Plaintiff contends that the only relevant extrinsic evidence in the record relates to the conduct of the parties, including evidence that a former chairperson of the ARC assured plaintiff that Gildroy's lot was not a designated ocean view lot and evidence of other instances in which the ARC purportedly has determined or informed plaintiff that other lots are or are not designated ocean view lots. Plaintiff also argues that, to the extent that the 1994 CCRs are ambiguous, this court should construe them against defendant. Finally, plaintiff contends that, to the extent that the 1994 CCRs are not given effect, there are questions of fact regarding the 1993 CCRs that also preclude summary judgment, including possible defects in the approval of those CCRs.
Defendant responds that the phrase "designated ocean view lots" can plausibly be given more than one meaning. Specifically, defendant asserts that the phrase may mean a particular subset of all ocean view lots within Sandpiper Village those expressly determined by some entity to be ocean view lots; alternatively, it may mean all lots that can be characterized as ocean view lots. Given that ambiguity, and relying on the method of interpretation of ambiguous provisions that is set out in Yogman v. Parrott, 325 Or. 358, 363-64, 937 P.2d 1019 (1997), defendant points to extrinsic evidence of the meaning of the phrase, as to which they contend there is no factual dispute. Specifically, defendant relies on Section 3.2.2 of the 1993 CCRs, which, it contends, protected all ocean view lots; and evidence namely, Dumas's communications to the board that changes to the relevant portions of the 1994 CCRs were not intended to change the substance of the 1993 CCRs. Defendant further argues that the ARC properly should be understood to be the designating entity and that its authority in that respect properly can be exercised at the time it orders an owner to trim trees on her lot; according to defendant, under Yogman, evidence that the ARC conducted itself consistently with that understanding of the CCRs in this case constitutes further evidence of the CCRs' meaning. Defendant urges us to resolve any ambiguity at the second level of interpretation and not to apply maxims of interpretation. Defendant finally contends that, notwithstanding Section 8.2 of the 1994 CCRs, and in the absence of a contrary interpretation by the board of directors, the ARC was authorized to interpret a provision that it is charged with applying, namely, Section 3.6; additionally, in the absence of any proof of fraud, bad faith, or failure to exercise honest judgment, the interpretation and decision of the ARC are entitled to deference.
As previously noted, on review of the trial court's grant of summary judgment to defendant, we view the record in the light most favorable to plaintiff, the party opposing summary judgment, to determine whether defendant was entitled to judgment as a matter of law. ORCP 47 C. Specifically, the issue here is whether there is any genuine issue of material fact regarding the meaning of the 1994 CCRs and, if not, whether defendant is entitled to a judgment in its favor.
Whether defendant is entitled to a judgment in its favor in turn depends on the meaning of the CCRs that was most likely intended by the parties. See ORS 42.240; see also Yogman, 325 Or. at 364, 937 P.2d 1019; McKay's Market of Coos Bay v. Pickett, 212 Or.App. 7, 12, 157 P.3d 291 (2007). In determining that meaning, we examine the parties' objective manifestations of intent, as evidenced by their communications and acts. Staffordshire Investments, Inc. v. Cal-Western, 209 Or.App. 528, 535-36, 149 P.3d 150 (2006) (citing Kabil Developments *1103 Corp. v. Mignot, 279 Or. 151, 157-58, 566 P.2d 505 (1977)). We first examine the text of disputed provisions in the context of the document as a whole. If the text's meaning is unambiguous, we decide the meaning of the provisions as a matter of law. Yogman, 325 Or. at 361, 937 P.2d 1019. The provisions are ambiguous if they have no definite meaning or are capable of more than one sensible and reasonable interpretation in the context of the agreement as a whole. See id. at 362-63, 937 P.2d 1019. Dictionary definitions may be used in the first step of the analysis to determine whether a provision is ambiguous. See id. at 362, 937 P.2d 1019. If the disputed provisions are ambiguous, we proceed to a second step that involves examining extrinsic evidence of the contracting parties' intent, including, if helpful, evidence regarding the parties' "practical construction" of an agreement. Id. at 363-64, 937 P.2d 1019. If resort to such extrinsic evidence does not resolve the ambiguity, then we proceed to a third and final step, namely resort to "appropriate maxims of construction." Id. at 364, 937 P.2d 1019.[1]
Neither the phrase "designated ocean view lots" nor the term "designated" is defined in the 1994 CCRs. The ordinary meaning of the transitive verb "designate" is "to make known directly as if by sign: SIGNIFY, INDICATE"; "DENOMINATE, IDENTIFY, LABEL"; "to declare to be"; and "to choose and set apart." Webster's Third New Int'l Dictionary 612 (unabridged ed. 2002). Synonyms include the verbs "name," "nominate," "elect," and "appoint." Id. Those definitions and synonyms suggest that a "designated ocean view lot" is one that has been declared, identified, labeled, named, or chosen and set apart as such. Even assuming that all lots in a development, and not just some subset of the total, could be so designated, those meanings further suggest that some actor has affirmatively performed the designation. Moreover, the fact that the term "designated" is in the past tense suggests that, at the relevant time that is, the time at which view obstruction is determined the task of designation has already been performed.
However, nothing in the 1994 CCRs expressly delegates the performance of that task to any entity. That the drafters of the 1994 CCRs knew how to delegate specific tasks to specific entities is apparent from the fact that Section 3.6 of the 1994 CCRs expressly delegates to the ARC the task of determining whether the view of a designated ocean view lot has been obstructed. Accordingly, the context of the 1994 CCRs as a whole suggests that, by referring to "designated ocean view lots," the drafters were not referring to any formal, separate, or independent designation process carried out in advance, in a particular manner, by a particular designating entity or actor, but merely to the determination of the existence of an ocean view that necessarily accompanies or, more accurately, precedes, albeit by only a minimal time period the determination that a view obstruction must be removed.
Examination of the text and context of Section 3.6 of the 1994 CCRs therefore discloses more than one plausible meaning of the phrase "designated ocean view lots." Again, the phrase may indicate that some or all of the lots in the development formally have been labeled as such by some entity *1104 and, moreover, that the designation has occurred before the determination regarding a view obstruction. Alternatively, because the 1994 CCRs do not expressly identify a designation process, an entity to perform the designation, or a time at which the designation is to be accomplished, the phrase plausibly refers merely to the ARC's implicit determination of the existence of an ocean view at the time it determines that the view has been obstructed.
Because the phrase is ambiguous, we next consider extrinsic evidence of its meaning. Yogman, 325 Or. at 363, 937 P.2d 1019. We begin with defendant's evidence, which includes the affidavit and attached exhibits of the association's legal counsel, Dumas. In his affidavit, Dumas attested that he prepared the 1994 CCRs for recording and that, in addition to incorporating the "substantive changes" to the 1993 CCRs that were voted on and approved by the homeowners, he prepared and incorporated "stylistic changes" to other sections of the CCRs.[2]
Also in the record is a 1994 letter from Dumas to Robbie Vitus, who was then secretary of the association, and Jim Vitus, an association member, in which he stated that the 1994 CCRs contained
"a few stylistic changes in wording and location of certain provisions. These stylistic changes do not alter the rights of the homeowners or the association, and therefore require no vote. They merely make the [CCRs] clearer and easier to read. In the unlikely event that a stylistic change is interpreted to have materially altered any right or obligation, that right or obligation shall be observed or enforced as it existed prior to such change."
Two months later, Dumas again wrote to the Vituses with a more detailed explanation of the "stylistic changes." As pertinent here, he explained:
"Section 3.2.2 has been renumbered as Section 3.6 and retitled Ocean View, which is more appropriate. The wording has been changed to state exactly the same thing, only more clearly and succinctly."
In light of Dumas's assertion that the "stylistic changes" to the 1994 CCRs were not intended to change the substance of the 1993 CCRs, the 1993 CCRs constitute additional extrinsic evidence of the meaning of the 1994 CCRs. Section 3.2.2 of the 1993 CCRs, as quoted above, provides in part that "[n]o trees, hedges, shrubbery, plantings or fencing of any kind shall be allowed to obstruct the ocean view without written approval of [the board]." (Emphasis added.) We agree with defendant that the unqualified reference to "the ocean view" suggests that the 1993 CCRs were intended to protect all lots that, as a matter of observable fact, have a view of the ocean. That evidence supports defendant's interpretation of the 1994 CCRs.[3]
Before offering extrinsic evidence of her own, plaintiff asserts that defendant's evidence does not resolve any ambiguity in the 1994 CCRs. As noted, she contends that the certification of homeowner approval of the 1994 amendments was indisputably inaccurate and that an analysis in August 2002 by Dumas regarding the validity of the 1994 *1105 CCRs was incorrect. Even assuming plaintiff is right, however, neither of those issues creates a material factual dispute regarding the substantive meaning of Section 3.6 of the 1994 CCRs.
That leaves plaintiff's own offer of extrinsic evidence regarding the meaning of the 1994 CCRs, which consists of two examples of defendant's prior conduct. First, plaintiff attested in her affidavit that a past chairperson of the ARC, Stoutsenberger, assured her that Gildroy's lot was not a designated ocean view lot. However, the affidavit does not state whether Stoutsenberger was the chairperson of the ARC at the time she made the statement or, alternatively, at the time that the 1994 CCRs were adopted. As a result, Stoutsenberg's alleged statement is insufficient to create a factual dispute about the meaning of the 1994 CCRs that the parties intended.
Second, plaintiff points to the allegation in her amended complaint that "[t]he ARC has made determinations in the past that other properties within the development were not designated view properties." However, although pleadings frame the issues to be tried in a civil action, the factual allegations in pleadings, unless admitted by the opposing party, have no evidentiary effect. See ORCP 47 D (providing in part that the party adverse to a motion for summary judgment may not rely on mere allegations or denials of that party's pleadings); see also Jones v. Lindsey, 193 Or.App. 674, 677, 91 P.3d 781 (2004). Indeed, plaintiff's allegation, without evidence of the context of those determinations, is insufficient to raise a material issue of fact in any event.
We conclude that extrinsic evidence makes clear the meaning of the provision at issue. Specifically, Dumas's contemporaneous communications indicate that Section 3.6 of the 1994 CCRs was intended to have the same substantive effect as Section 3.2.2 of the 1993 CCRs, which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone has previously "designated" as having an ocean view. Rather, it protected "the ocean view," without qualification, from obstruction caused by "trees, hedges, shrubbery, plantings, or fencing of any kind." It follows that, properly construed, the phrase "designated ocean view lots" in Section 3.6 of the 1994 CCRs refers to those lots that, as a matter of observable fact, have a view of the ocean. Plaintiff presented no contrary extrinsic evidence from which a jury could have found otherwise.[4]
In summary, there is no genuine issue of material fact pertaining to the meaning of Section 3.6 of the 1994 CCRs and, under that provision, defendant is entitled to judgment as a matter of law. Accordingly, the trial court did not err in granting summary judgment to defendant. Moreover, because we affirm the trial court in that regard, we also necessarily reject plaintiff's second assignment of error, in which she challenges the award of attorney fees and costs to defendant.
Affirmed.
NOTES
[*] Landau, J., vice Richardson, S.J.
[1] In Yogman, the plaintiffs and the defendants owned houses in a beach-front subdivision. The properties were subject to a restrictive covenant requiring the properties to be used only for residential, and not commercial, purposes. The plaintiffs sought a declaration that the defendants' activity of renting their property for short periods violated that covenant. The trial court granted the plaintiffs' motion for summary judgment, but this court reversed, and the Supreme Court affirmed our decision. 325 Or. at 360, 937 P.2d 1019.
In doing so, the court first examined the meaning of the terms "residential" and "commercial enterprise" in the context of the covenant as a whole and concluded that the terms were ambiguous. Id. at 362-63, 937 P.2d 1019. The court next determined that, although there was some evidence that another house in the subdivision and houses subject to similar covenants were used as rental properties, that extrinsic evidence was not sufficient to resolve the ambiguity. Id. at 363-64, 937 P.2d 1019. It therefore applied the maxim calling for strict construction of restrictive covenants and concluded that, because the defendants' use of their property as rental property was not plainly prohibited by the covenant, it was permissible. Id. at 364-66, 937 P.2d 1019.
[2] Dumas also attested that "[t]he addition of the phrase `designated ocean view lots' to Section 3.6 was related to the concept of `original natural trees' that existed in the 1968 [CCRs]." He explained that the 1968 CCRs included a six-foot height limitation for trees and shrubs but that the limitation did not apply to the "original natural" trees and shrubs on the association lots. He stated that it therefore was "reasonable to infer" that the height limitation was intended to protect ocean views and that, under the 1968 CCRs, ocean views that were obstructed by "original natural" trees and shrubs were not protected. He stated that, accordingly, he understood the phrase "designated ocean view lots" in the 1994 CCRs to mean lots with views not obstructed by original natural trees and shrubs. Because those attestations by Dumas relate only to his understanding the CCRs and not to any facts surrounding their adoption, and because Dumas was not a party to the CCRs, we do not consider those statements as extrinsic evidence of the meaning of the 1994 CCRs. By the same token, we disregard plaintiff's observation in this court that there is "no evidence that [her] trees were not original natural trees."
[3] We do not consider defendant's purported extrinsic evidence pertaining to their conduct in this case. Although extrinsic evidence includes evidence of the circumstances and conduct of the parties during the life of the agreement, see Yogman, 325 Or. at 364, 937 P.2d 1019, it logically does not include the unilateral conduct of a party that is the subject of the parties' dispute.
[4] Because extrinsic evidence makes clear the intended meaning of Section 3.6 of the 1994 CCRs, we need not proceed to the third level of contract interpretation, in which we apply relevant maxims of construction. Specifically, we need not decide whether Section 8.3 of the 1994 CCRs-which provides in part that, "[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control" would be relevant in this case.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1913361/
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981 A.2d 317 (2009)
COM.
v.
MOULTRIE.
No. 436 EDA 2008.
Superior Court of Pennsylvania.
June 2, 2009.
Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2600358/
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170 P.3d 572 (2007)
In re the Matter of the MARRIAGE OF Carmen P. ROCKWELL, Respondent, and
Peter G. Rockwell, Appellant.
No. 56954-6-I.
Court of Appeals of Washington, Division 1.
August 27, 2007.
Publication Ordered October 19, 2007.
*574 Patricia S. Novotny, Attorney at Law, Seattle, WA, for Appellant.
Cynthia B. Whitaker, Law Offices of Cynthia B. Whitaker, Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, for Respondent.
APPELWICK, C.J.
¶ 1 Peter Rockwell challenges the fairness of a 60/40 division of property in the dissolution of a long term marriage. He argues the trial court improperly considered his future earning capacity as a factor in the overall fairness of the division. He claims the trial court erred in making an adjustment for social security benefits that his wife would have received but for her type of federal pension. Carmen Rockwell cross-appeals, arguing that the court erred when it chose the subtraction method to characterize and value her federal pension. We reverse the trial court's use of the subtraction method for pension characterization and valuation, but affirm on all other issues and remand for further proceedings.
FACTS
¶ 2 Peter and Carmen Rockwell were married from 1978 until 2004, a total of 26 years. *575 Carmen[1] had been employed in the federal civil service for 16 years prior to the marriage. During those 16 years, she took two breaks from this service, one for a period of about fourteen months, and another for a period of just under five years. She continued in this field for 24 more years during their marriage. Peter has bachelor's degrees in mechanical engineering and liberal arts. He worked as an engineer in Washington, D.C. before seeking a position in technical sales. In order to advance Carmen's career, the couple moved to New York in 1984, and then to Seattle in 1986. Each time, Peter gave up his current employment and sought re-employment in their new location. In 1999, when Peter was 48, he was laid off. In his last year of employment, he had earned a $72,000 salary and a commission of about $18,000. He searched for employment in similar fields but without success, and stopped seeking employment after the spring of 2002.
¶ 3 Carmen retired in 2002 at age 60, testifying to health concerns that kept her from continuing her employment. She had advanced from a position as a GS-3 clerk to a GS-15 executive, for which she earned a $120,000 salary as the head of the Northwest Regional Office of Civil Rights. Because she was enrolled in the Civil Service Retirement System (CSRS), she earned a substantial pension that is in lieu of any social security benefits. This pension is now in "pay status."
¶ 4 In 2004, Carmen filed for dissolution of the marriage. At trial, the parties and their experts presented lengthy testimony regarding Carmen's career and health, Peter's career, job search and health, the future possible income streams of both parties, the community debts, and the tangible assets available to each. The trial court received evidence on various real and personal properties, including the family home, Carmen's IRA and Thrift Savings Plan, Peter's contributory and rollover IRA's, two automobiles, rental proceeds, life insurance policies, Peter's disability insurance policy, frequent flier miles, and Carmen's CSRS pension.
¶ 5 In its oral ruling issued on June 24, 2005,[2] the trial court stated that it was "back[ing] out the Social Security contribution assessment for that Mr. Kessler provided, that's $159,464." This is the value of social security that Carmen would have received if she was not receiving her particular type of federal pension. The trial court "compensated" her for that amount in its written findings of fact.
¶ 6 In addressing the division of the pension, the trial court noted Peter's entitlement to Social Security benefits and their potential to increase, Carmen's lack of Social Security benefits due to her type of pension, and Peter's inheritance funds that he gifted to the community. It accepted the "subtraction method" that Peter's actuary expert used to value Carmen's pension, finding that 92 percent of the pension was community property and 8 percent was Carmen's separate property. The trial court concluded that it was fair and equitable to divide the community property portion of the pension 60 percent to Carmen and 40 percent to Peter, and to award Carmen her separate property portion of the pension. This meant that Peter is to receive 36.8 percent of the gross value of the pension.
¶ 7 Both parties moved for reconsideration of the oral ruling filing a motion and response to the same on July 26, 2005. There are no significant differences between what the parties raised in their motions for reconsideration and the issues raised on appeal. The trial court denied Peter's motion for reconsideration in its entirety. The trial court also denied Carmen's motion for reconsideration in its entirety, but did revise the *576 proposed order to reflect that the pension was 8 percent Carmen's separate property and 92 percent community property.
¶ 8 The trial court issued its written findings of fact on August 26, 2005. Based on those findings, the trial court stated "[g]iven the difference in age, earning capacity, physical condition, and that husband had the ability to earn income and save for retirement in the future, it is fair and equitable to divide the community property 60 percent to wife and 40 percent to husband." It also ordered the family home to be sold in order to provide liquidity to both parties.
¶ 9 Neither party moved for reconsideration of the written findings of fact. Peter filed his notice of appeal on September 26, 2005. Carmen filed her notice of cross-appeal on October 4, 2005.
ANALYSIS
I. Standard of Review
¶ 10 Appellate courts apply the substantial evidence standard of review to findings of fact made by the trial judge. See Washington Family Law Deskbook, 2nd Ed. § 65.4(1) at 65-9. As long as the findings of fact are supported by substantial evidence, they will not be disturbed on appeal. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 575, 343 P.2d 183 (1959). "Substantial evidence exists if the record contains evidence of a sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise." In re Marriage of Griswold, 112 Wash.App. 333, 339, 48 P.3d 1018 (2002). Where the trial court has weighed the evidence, the reviewing court's role is to simply determine whether substantial evidence supports the findings of fact, and if so, whether the findings in turn support the trial court's conclusions of law. In re Marriage of Greene, 97 Wash.App. 708, 986 P.2d 144 (1999). A court should "not substitute [its] judgment for the trial court's, weigh the evidence, or adjudge witness credibility." Id. at 714, 986 P.2d 144 (citing In re Marriage of Rich, 80 Wash.App. 252, 259, 907 P.2d 1234 (1996)).
¶ 11 The trial court's distribution of property in a dissolution action is guided by statute, which requires it to consider multiple factors in reaching an equitable conclusion. These factors include (1) the nature and extent of the community property, (2) the nature and extent of the separate property, (3) the duration of the marriage, and (4) the economic circumstances of each spouse at the time the division of the property is to become effective. RCW 26.09.080. In weighing these factors, the court must make a "just and equitable" distribution of the marital property. RCW 26.09.080. In doing so, the trial court has broad discretion in distributing the marital property, and its decision will be reversed only if there is a manifest abuse of discretion. In re Griswold, 112 Wash. App. at 339, 48 P.3d 1018 (citing In re Marriage of Kraft, 119 Wash.2d 438, 450, 832 P.2d 871 (1992)). A manifest abuse of discretion occurs when the discretion was exercised on untenable grounds. In re Marriage of Muhammad, 153 Wash.2d 795, 803, 108 P.3d 779 (2005). If the decree results in a patent disparity in the parties' economic circumstances, a manifest abuse of discretion has occurred. In re Marriage of Pea, 17 Wash. App. 728, 731, 566 P.2d 212 (1977).
¶ 12 However, the court is not required to divide community property equally. In re Marriage of White, 105 Wash.App. 545, 549, 20 P.3d 481 (2001). In a long term marriage of 25 years or more, the trial court's objective is to place the parties in roughly equal financial positions for the rest of their lives. Washington Family Law Deskbook, § 32.3(3) at 17 (2d. ed.2000); see also Sullivan v. Sullivan, 52 Wash. 160, 164, 100 P. 321 (1909) (finding that for a marriage lasting over 25 years, "after [which] a husband and wife have toiled on together for upwards of a quarter of a century in accumulating property . . . the ultimate duty of the court is to make a fair and equitable division under all the circumstances"). The longer the marriage, the more likely a court will make a disproportionate distribution of the community property. Where one spouse is older, semi-retired and dealing with ill health, and the other spouse is employable, the court does not abuse its discretion in ordering an unequal division of community *577 property. In re Marriage of Schweitzer, 81 Wash.App. 589, 915 P.2d 575 (1996).
II. Social Security Benefits
¶ 13 Peter assigns error to the trial court's consideration of Carmen's social security benefits. First, he assigns error to the following finding of fact:
2.8.
13.e. Wife is not entitled to receive Social Security benefits as her pension is in lieu of Social Security benefits. The present value of wife's social security benefits is $159,464. The court finds it is fair and equitable to compensate wife in this amount, since husband will receive social security benefits.
¶ 14 Mr. Kessler, Carmen's expert, testified that Carmen's type of federal pension is in lieu of Social Security. He valued the Social Security that she would have received at $159,404, which was based on a recalculation of updated numbers. This amount was not challenged. He noted that Peter will receive Social Security benefits that will increase from cost-of-living adjustments every year. When asked whether it was reasonable for Carmen to ask the court to deduct the value of her Social Security benefits from the value of the pension for purposes of property division, he replied that it was necessary to ensure fairness:
[I]f we were truly trying to have an apples-to-apples analysis, for instance, in the case of Mr. Rockwell who will receive Social Security benefits, we needed to put a value on the Social Security benefit and deduct it from the value of Ms. Rockwell's CSRS benefit that does not entitle her to Social Security benefits.
The evidence is sufficient to persuade a fair-minded rational person that the value of Carmen's foregone Social Security, which would have been indivisible separate property, was $159,404.
¶ 15 Next, Peter argues that the trial court improperly compensated Carmen for the fact that her federal pension is in lieu of social security. The law does not permit the court to value and distribute social security benefits. In re Marriage of Zahm, 138 Wash.2d 213, 219, 978 P.2d 498 (1999) (citing 42 U.S.C. § 407(a) of the Social Security Act and its interpretation under Hisquierdo v. Hisquierdo, 439 U.S. 572, 590, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979)). In particular, the trial court cannot calculate a future value of those monies and award that value as a precise property offset as part of its property distribution. Zahm, 138 Wash.2d at 217, 978 P.2d 498. However, the possibility that one or both parties may receive Social Security benefits is a factor the court may consider in making its distribution of property. Id. "A trial court could not properly evaluate the economic circumstances of the spouses unless it could also consider the amount of social security benefits currently received." Id. at 223, 978 P.2d 498.
¶ 16 Carmen's expert testified to the present value of the Social Security that Carmen would have received but is not entitled to draw due to the structure of her federal pension. The trial court "compensated" Carmen by reducing the community property portion of the pension by that amount and treating it as if it were social security. The fact that Peter would receive social security was confirmed, but its value was not considered. Neither the "in lieu of" portion of the pension nor Peter's social security were added to either parties' column for purposes of dividing the present assets. Once set aside, these amounts were excluded from the equation used by the court to determine a fair division of property. By doing this, the trial court did not value Peter's social security and offset it against other property, nor did it divide his social security benefit. That would have been error under Zahm. Rather, the trial court focused solely on Carmen's foregone, indivisible social security benefits and valued them for purposes of comparing her economic future against Peter's. But for the existence and structure of Carmen's federal pension there would be no question that this was appropriate the trial court's adjustment method simply removed both parties' social security benefits from the equation in order to put them on comparable footing prior to dividing the remaining assets. We do not read Zahm to preclude this calculation *578 as a fair and proper means of considering social security or achieving overall fairness. We conclude that the challenged finding is supported by substantial evidence and that the trial court properly considered and compensated for the social security benefits that Carmen would have received, but for her federal pension.
III. Husband's Earning Capacity
¶ 17 Peter argues the trial court erred when it found that he was capable of earning a salary of at least $70,000 a year. To support this finding, the trial court relied on the following findings of fact:
2.20.
1. Husband is nine years younger than wife and in good health.
. . .
3. Husband has two bachelor's degrees, significant experience and knowledge in a variety of areas and is capable of working and earning at least $70,000 gross per year.
¶ 18 Peter is, in fact, eight years and four months younger than Carmen. Carmen was born on September 19, 1942. Peter was born on January 25, 1951. While the record could be corrected to be this precise, we do not regard this rounding up as an error of fact. The court used the number only to consider the parties' ages. Precision in the number of day or weeks or months in such a consideration is not necessarily required.
¶ 19 Peter also argues that the trial court erred when it underestimated his age because its oral ruling stated that he would have seven more years of work until the age of sixty. He contends that this results in an inaccurate valuation of his future earnings as a basis for the 60/40 split. We recognize that the trial court, in its oral ruling, stated "[a]nd what I have done in terms of trying to look at the big picture is estimate incomes from him until he is at age 60, so I'm talking about seven years." However, by the end of trial in June 2005, Peter was 54.5 years old. He will be 60 years old on January 25, 2011. This results in 5.5 years of work at an estimated salary of $70,000, rather than seven years. Peter argued this same issue to the trial court in his motion for reconsideration: "The court indicated that it determined that [Peter] would be able to earn $490,000 in future earnings between now and the time he is 60." Confronted with this factual error the trial court denied reconsideration. We can infer from this denial that the seven year period was the intended duration as opposed to age 60 being the intended endpoint. We conclude that the implication in the findings of fact and rejection of Peter's motion for reconsideration is that the trial court estimated that Peter would retire at age 62. This would mean that Peter in fact had seven years in which to earn a $70,000 salary. There is no error.
¶ 20 In regards to his potential salary, Peter testified that he has bachelor's degrees in mechanical engineering and liberal arts. In 1999, when he was 48, he was laid off. In that last year of employment, he had earned a $72,000 salary and a commission of about $18,000. He testified that in pursuing another job, what he considered suitable for his age and experience was a sales job involving a great degree of technical experience paying a minimum of $70,000. He also testified that during his two-year job search from 2000 until 2002, he only looked for jobs that would pay $70,000 and up. During his testimony he described his lengthy but unsuccessful job search. He acknowledged that he may have a better chance of finding a position in technical sales if he mounted a nationwide job search. But he was not interested in jobs outside of the Seattle area due to concerns regarding his daughter's health at the time. He stopped seeking employment after the spring of 2002.
¶ 21 In December of 2004 the court ordered Peter to again look for work. According to his testimony, he first pursued leads in technical sales, but was discouraged by the lack of positive responses. He then considered becoming a math teacher but was again discouraged by the training required and the low pay-scale, which would begin at $38,000 per year. He settled on becoming a real estate agent, and joined a real estate firm in May of 2005. At the time of trial in June of 2005, he had not made any listings or sales, but had incurred business costs. Since becoming *579 a real estate agent, he inquired into one or two opportunities in technical sales, but did not receive a job offer in that field. During his testimony he indicated that while his daughter is now an adult and lives in Bellingham, he would prefer to remain in the Seattle area, again due to her health concerns.
¶ 22 If a trial court's finding is within the range of the credible evidence, we defer. In re Marriage of Sedlock, 69 Wash.App. 484, 491, 849 P.2d 1243 (1993). Here, the salaries to which Peter testified ranged from $38,000 as a teacher to about $90,000 in his last years of employment. While he may have had difficulty in securing a technical sales position with such a salary in Seattle, Peter has the training and experience to pursue such positions, as well as more recent training to sell real estate. Further, while we recognize his legitimate concerns for his daughter's health, he is not so constrained by those circumstances that he cannot look for jobs outside of Seattle. The trial court's finding is both within the range of credible evidence, and is supported by substantial evidence showing that Peter would be able to work and earn a salary of $70,000 per year.
¶ 23 Next, Peter argues that his future earning capacity should not have been considered in dividing the property. Future earning potential "is a substantial factor to be considered by the trial court in making a just and equitable property distribution." In re Marriage of Hall, 103 Wash.2d 236, 248, 692 P.2d 175 (1984). While Peter cites this case as prohibiting the consideration of future earning potential as a divisible asset, the Hall court only declined to offset future earning capacity as an asset against goodwill. Id. Instead, because a spouse has no property interest in the earning capacity of the other spouse, Hall only forbids treating earning capacity as a present asset, placing it among other community assets, and dividing it as property. In re Marriage of Kraft, 119 Wash.2d at 448, 832 P.2d 871. Further, in considering a party's future earnings capacity, a trial court may consider the age, health, vocational training and work history of the party. Washington Family Law Deskbook, § 32.3(4)(a) (1st ed.).
¶ 24 As noted above, the trial court must put the parties in roughly equal financial positions for the rest of their lives. See Washington Family Law Deskbook, § 32.3(3) at 17 (2d. ed.2000). This requires considering the combination of the division of property and the expected income and earnings of the parties. And, where one spouse is older, semi-retired and dealing with ill health, and the other spouse is employable, the court does not abuse its discretion in ordering an unequal division of community property. In re Marriage of Schweitzer, 81 Wash.App. 589, 915 P.2d 575 (1996). Peter was younger, in good health and employable at a substantial wage. Moreover, substantial evidence showed that Carmen was retired, older and in poor health. Accordingly, the trial court did not abuse its discretion when it compared Peter's age, health and employability (and thereby, future earning capacity) against Carmen's as a basis for its 60/40 split of the community property.
¶ 25 Peter's final assignment of error in regards to his future earning capacity is based on the following finding of fact:
2.8.
13.f. Husband is entitled to receive Social Security benefits at this time of up to $1,888 (age 70) per month depending upon when he elects to begin receiving the benefit, which benefits will increase in the future from husband's employment. If he retires at age 62 his social security benefit would be $1,078 per month.
(emphasis added.) By emphasizing the underlined language, Peter challenges only that his benefits will increase based on future employment, not the actual valuation of his benefits. But the appropriateness of imputing his income has already been established above. Further, because the value of his Social Security benefits has been set aside and is not part of the equation of equitable division, there is no possible error here.
IV. Characterization of Federal Pension
¶ 26 Peter asserts that the findings of fact regarding the community percentage *580 of the federal pension is erroneous because the court committed a mathematical error.
2.8.
13.l. The court accepts the actuarial analysis of husband's expert Mr. Dallas and finds that the "subtraction method" of valuing the pension is the appropriate method. Pursuant to that method, the increase in the benefit during the marriage is $6,194 and therefore 92 [percent] of the retirement benefit is community property and 8 [percent] is separate property.
. . .
13.o. 40 percent of the community property portion of the pension equates to 36.8 percent of the gross value of the pension (calculated as follows: 40 percent of 92 percent).
(emphasis added).
¶ 27 Peter contends that the trial court should have characterized the pension as 93.2 percent community property and 6.8 percent separate property, rather than the 92/8 split that was used in the final order. Arguing that this is mathematical error, he is concerned that he will receive about $35 less per month than he should, resulting in a $8,400 shortfall over twenty years.
¶ 28 Peter submitted two exhibits in which his actuary estimated the community property portion of the pension. Exhibit 71 supported a 93.2/6.8 split. But Exhibit 76, prepared by Peter, supports a 91.8/8.2 split. The trial court orally accepted Peter's actuary's assessment and valuation of the pension for the purposes of its analysis of the 60/40 split. However, in the final order, it accepted a 92/8 split, which was proposed by Carmen.
¶ 29 As noted above, when the parties offer conflicting evidence in valuation, the court may adopt the value asserted by either party, or any value in between the two. In re Marriage of Sedlock, 69 Wash. App. at 484, 849 P.2d 1243 (1993). The final split is within the range of evidence offered by both parties. Moreover, Peter argued this very point in his motion for reconsideration, which was rejected by the trial court. This rejection eliminates the possibility of an inadvertent choice or mere mathematical error in favor of the trial court's conscious choice of a value within the range of evidence. We conclude that the trial court did not abuse its discretion when stayed within the range of evidence offered by both parties. There was no mathematical error.
¶ 30 In her cross-appeal, Carmen assigns error to the trial court's use of the subtraction method, rather than the time rule method in characterizing her pension as 92 percent community property. She asserts that Washington cases have only used the time rule method, under which the proportion would be 60/40 in her favor. Peter counters that both methods result in the percentage formula that has been encouraged by Washington courts, but neither one has been definitively chosen over the other. Instead, he argues, courts have used the method that best applies to the circumstances of the case and creates the most equitable results. However, he does not cite to any Washington cases that explicitly approve of the subtraction rule method. Even the out-of-state cases he cites to support his "best application to the circumstances" argument reject the subtraction method. Similarly, the Washington cases cited by both Peter and Carmen have used a time rule method or a close variation thereof. See e.g. In re Marriage of Bulicek, 59 Wash.App. 630, 636-37, 800 P.2d 394 (1990); In re Marriage of Chavez, 80 Wash.App. 432, 434, 436, 909 P.2d 314 (1996); In re Marriage of Greene, 97 Wash.App. 708, 713, 986 P.2d 144 (1999) (noting that the time rule was the typical formula for apportioning a pension, but approving the trial court's use of a "slightly different formula but [that] made the same basic calculation").
¶ 31 "Pension benefits constitute property rights in the nature of deferred compensation, even if benefits are not presently available." In re Marriage of Bulicek, 59 Wash.App. at 636-37, 800 P.2d 394. If the pension was accumulated partly prior to marriage and partly after marriage, it is proportionately classified, with the portion acquired *581 during marriage characterized as community property. See In re Marriage of Landry, 103 Wash.2d 807, 699 P.2d 214 (1985).
¶ 32 In deciding the distribution of property in a dissolution, the trial court has wide discretion. Bulicek, 59 Wash.App. at 636-637, 800 P.2d 394. Generally, the community share is calculated by dividing the number of years of marriage (prior to separation) by the total number of years of service for which pension rights were earned and multiplying the results by the monthly benefit at retirement. Id. This is known as the time rule method.
¶ 33 In Bulicek, the parties were married for 22 years before separation. The husband had continued to work after their dissolution. Bulicek, 59 Wash.App. at 631, 800 P.2d 394. The value of his monthly retirement benefits was to increase based on these post-dissolution working years. The court used the time rule method to ensure that the wife would receive a certain percentage of the husband's retirement benefits, even though the monthly payout would increase after dissolution. Id. at 638, 800 P.2d 394. The court recognized that the husband's prospective increase in retirement benefits was based on the 22 years of community effort supporting his career, performance and therefore past and future pay increases contributing to his benefit. Bulicek, 59 Wash.App. at 639, 800 P.2d 394. Emphasizing that the trial court has wide discretion in awarding property in a dissolution, this Court upheld and encouraged the time rule method of dividing pension rights as a means of recognizing the community contribution to such increases. Id.
¶ 34 The time rule method was also recognized as "the correct formula to determine the community share" of the total pension credits earned by the retiree in Marriage of Chavez, 80 Wash.App. at 434, 436, 909 P.2d 314. There, the parties' marriage was dissolved in 1986, and the husband retired seven years later. Chavez, 80 Wash.App. at 434-35, 909 P.2d 314. Because he was a military pension recipient, after 20 years of service he would be entitled to 50 percent of his base salary, and his pension would increase by another 2.5 percent of his salary (i.e. "service credit") for each additional year of service after 20 years. Id. Due to his 30 years of service, he was entitled to a pension of 75 percent of his base salary. Id. He challenged the decree of dissolution, which had awarded the wife 50 percent of this pension, arguing that his salary at retirement should not be used to calculate the wife's share of the pension because that salary was different from his salary at the time of divorce. Id. at 437, 909 P.2d 314. The court disagreed, citing Bulicek's conclusion that benefits increase based on higher salaries made possible by the community effort, and concluded that "increases in pension benefits based on a retiree's higher salary at the time of retirement should be included in the community share." Id. at 437, 909 P.2d 314 (emphasis added). The court was careful to note however, that the wife's share of the pension should not be increased due to the additional "service credits" that the husband earned subsequent to the divorce. Id. at 437, 909 P.2d 314.
¶ 35 We draw on the above principles to conclude that the trial court erred when it approved the use of the subtraction rule to characterize Carmen's federal pension. If post-dissolution pension increases are apportioned to make an equitable division, increases in pensions due to pre-marriage efforts should also be apportioned to make an equitable division. Like the court in Bulicek we recognize that Carmen's salary increased substantially during the marriage. However, such increases would not have occurred but for her first sixteen years in the federal government. Similar to the indivisible "service credits" in Chavez, increases due to her years of service prior to the marriage should not be divisible community property. The subtraction rule disproportionately undervalues those early years by freezing the value of Carmen's front-end contribution and disallowing the separate interest to benefit from any income increases that became possible only because of her earlier years of service. There is a sharp contrast between the subtraction method, which characterizes the pension as only 8 percent separate property and 92 percent community property, and the time rule method which characterizes the pension *582 as 38 percent separate property and 62 percent as community property. When the trial court's 60/40 division of the property is applied to the community property of the pension, using the time rule method means that Peter will receive 24.4 percent of the gross pension, and Carmen will receive 74.6 percent of the gross pension. This division more appropriately values Carmen's first 16 years of work for the federal government.
¶ 36 Washington cases have only used the time rule method, not the subtraction method. We conclude that the trial court erred when it used the subtraction method and reverse and remand with instructions to characterize Carmen's federal pension according to the time rule method.
¶ 37 Having concluded the pension was improperly characterized, we need not reach Peter's assignments of error relating to mathematical error in the percentages assigned to community and separate interests in the pension.
V. Overall Division of Property
¶ 38 Peter challenges the overall division of the property. He challenges the following findings specifically:
2.8.
13.m. The court accepts the actuarial analysis of husband's expert and finds that although husband is nine years younger than wife and it is more likely than not that wife will predecrease him . . .
13.n. The court finds that it is fair and equitable to divide the community property portion of the pension 60 [percent] to wife and 40 [percent] to husband, and to award wife her separate property portion of the pension.
. . .
2.20.
5. Given the difference in age, earning capacity and physical condition, and that husband had the ability to earn income and save for retirement in the future, it is fair and equitable to divide the community property 60 [percent] to wife and 40 to husband.
. . .
8. The distribution of property and liabilities as stated herein and as set forth in the Decree is fair and equitable [Repeated as a Conclusion of Law at 3.3.2.]
Based on these alleged factual errors, Peter also assigns error to provisions 3.2, 3.3, 3.14.1, and 3.14.2 in the decree of dissolution which divide the property.
¶ 39 Altogether, the trial court concluded that "the basics of the ruling are a 60/40 split," based on the difference in age, earning capacity, physical condition, and that Peter has the ability to earn income and save for retirement in the future. The "trial court has broad discretion in distributing the marital property, and its decision will be reversed only if there is a manifest abuse of discretion." In re Marriage of Griswold, 112 Wash.App. 333, 339, 48 P.3d 1018 (2002). In light of the discretion afforded to the trial court in determining what will be a fair and equitable distribution, and the factors that it can appropriately consider, we conclude that there was no abuse of discretion in making this final distribution. Absent the error in characterizing the federal pension, we affirm the trial court's division of the property as fair and equitable.
VI. Attorney Fees
¶ 40 Both parties assert the right to attorney fees on appeal under RCW 26.09.140 and RAP 18.1. We award Carmen attorney fees and costs subject to the provisions of RCW 26.09.140 and RAP 18.1.
¶ 41 We reverse the trial court's characterization of Carmen's federal pension and affirm on the other issues appealed. We remand for further proceedings consistent with this opinion.
WE CONCUR: DWYER and GROSSE, JJ.
NOTES
[1] For purposes of maintaining the distinction between the parties we will refer to them by their first names.
[2] Because the findings are not clear as to how the court arrived at its conclusions, we rely on the trial court's oral opinion. In re Marriage of Yates, 17 Wash.App. 772, 565 P.2d 825 (1977) (an appellate court may use a trial judge's oral opinion to clarify formal findings with which the oral opinion is consistent). Cf. Shinn v. Thrust IV, Inc., 56 Wash.App. 827, 838, 786 P.2d 285 (1990) (an oral opinion is not itself the judgment, and cannot be used to impeach or contradict unambiguous written finding).
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254 Kan. 479 (1994)
866 P.2d 1037
STATE OF KANSAS, Appellee,
v.
DARIN T. MAYS, Appellant.
No. 68,778
Supreme Court of Kansas.
Opinion filed January 21, 1994.
Steven R. Zinn, deputy appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
Michael A. Russell, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Robert T. Stephan, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.:
The defendant, Darin Mays, appeals his convictions of rape and aggravated robbery. He contends that the court denied him the right to present evidence in support of his theory of defense. The defendant further contends that the court erred by failing to instruct on eyewitness identification. We need not address the defendant's second contention because the exclusion of evidence under the facts of this case resulted in the denial of a fair trial. Accordingly, for the reasons expressed, we reverse and remand for a new trial.
*480 R.J. was staying with her boyfriend, Tyrone Dillard, at a motel in Kansas City, while their house was being exterminated. She testified that while alone in their room about 3:00 p.m. her uncle, Jerry Robinson, came into the room, claiming that her boyfriend told him to come by and borrow about $25. She testified that her uncle stated that he would return later to pick up the money.
Soon after Robinson left, R.J. said she responded to a knock on the door, looked out, and saw the defendant. She recognized the defendant as "Dolemite" because she had seen him on the streets "a couple of times" a year or more before that date. She testified that she did not "run around" with the defendant and had never conversed with him but that he "hung around" with her cousins and others she knew.
R.J. testified that she let the defendant in and that as soon as she had closed the door he pulled a handgun, pointed it at her head, and told her he wanted everything she had. She testified that after she gave the defendant about $100, he told her to sit on the bed, started searching the room, and told her that if he found anything else he would kill her.
According to R.J., the defendant then returned to the bed and told her to take off all of her clothes. When she failed to respond quickly, he "started yanking them." She testified that the defendant then fondled her breasts and inserted his fingers into her vagina. The defendant then yanked the telephone out of the wall and left, taking with him the money and her boyfriend's diamond ring, which the defendant saw on the counter as he was leaving.
R.J. dressed and left the room. Tyrone Dillard drove up as she was on her way to the front office to call him for help in reporting the crime to the police. Dillard drove her to the police station, where she reported the crime. Detective Wohlforth showed R.J. six photos, from which she identified the defendant. Detective Wohlforth testified that no one assisted her in making the identification and that R.J. had no doubt that she had correctly identified the man who had raped and robbed her.
Dillard testified that as he was pulling into the motel parking lot, he saw R.J.'s uncle, Jerry Robinson, and a man known as Horse driving away in a blue Chrysler automobile. Dillard had seen the defendant with Robinson and Horse earlier that day in *481 the same car but did not see the defendant with Robinson and Horse as they left the motel in the car.
Officer Thebo testified that he processed the telephone for fingerprints. He was unable to identify any prints as those of the defendant. Detective Wohlforth testified that he interviewed R.J. and Dillard separately. R.J. was upset and "trying real hard to hold back the tears." According to Wohlforth's testimony, R.J. described to him the same series of events that she described to the jury. R.J. told Wohlforth that the perpetrator's name was Dolemite. Another detective told Wohlforth that Dolemite was known to him as Darin Mays. Officer Wohlforth placed the defendant's photo in a photographic lineup with five other photographs and displayed them in random order to R.J. She looked at all of the photos and identified the defendant.
Jerry Robinson testified on behalf of the defendant. He denied seeing R.J. or being in her room, and he denied that he asked to borrow money. The defendant's mother and his cousin, Jan Brooks, testified that the defendant was at his residence the entire day of the incident and never left the residence. The defendant also testified that he was at his residence that day and never did see R.J. or Dillard on the day of the incident.
The jury found the defendant guilty of both counts, and he was sentenced to 15 years to life for each count, the terms to be served concurrently.
The State's case was based upon the testimony of R.J. No physical evidence linking the defendant to the offense was presented, with perhaps the exception of testimony as to the clothes the defendant was wearing. The State claims that the defendant's witness, Jan Brooks, corroborated R.J.'s testimony about the clothes the defendant was wearing. Yet, there was some variance, and Jan Brooks' recollection was not that complete. When Tyrone Dillard returned to the motel room, he saw a car in which there were three people, including Robinson and Horse. Dillard did not see the defendant at that time. About two minutes after the car left, R.J. walked up and said she had been robbed and sexually assaulted. As a practical matter, the State's case rested exlusively upon R.J.'s testimony.
It is against this backdrop that we examine the first allegation of error. The defendant contends that the trial court denied him *482 the right to present evidence in support of his theory of defense because it precluded him from testifying regarding a prior altercation with Dillard and from cross-examining R.J. regarding her financial dependence upon Dillard.
According to the defendant, he did not know whether the rape and robbery occurred. It was his theory that R.J. was lying either about the incident or about who raped and robbed her. According to the defendant's theory, R.J. lied because Dillard and the defendant had been engaged in an ongoing feud concerning money that the defendant had gambled away, money that belonged to Dillard. Based upon their relationship and upon the fact that Dillard provided financial support for R.J., the defendant contended that she lied to help Dillard carry out the vendetta he allegedly had against the defendant.
Perhaps the best way to illustrate what evidence was excluded by the trial court, the significance of the evidence as it related to the defendant's theory, and the basis upon which the court excluded the evidence is to quote directly from the record.
The following exchange occurred during the cross-examination of R.J.:
"Q. [MR. REED, defense counsel] Ms. [R.J.], do you work for a living?
"A. No.
"Q. And who provides your support?
"MR. RUSSELL [prosecution]: Object. May we approach the bench?
"THE COURT: Very well.
"(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
"MR. RUSSELL: Judge, I would object to any of this as it's irrelevant as to what happened on that day and how she makes a living. I don't know where he's going with this, but if he's trying to prove she came through money through drugs or something, that has no relevance. As to whether or not a robbery took place does not have anything to do with where the money came from or anything.
"MR. REED: Your Honor, if I may, if I can try to establish a basis of relevancy, the point of my inquiry is it goes to one of credibility, because my client is going to argue that Mr. Dillard is involved in the drug trade. The reason why they made these charges against him is because he double-crossed her boyfriend, Tyrone Dillard, who provides her support.
"THE COURT: At this point in time, I see no reason of what she does for a living or how she makes a living to be brought into the charges. I'll sustain the objection."
*483 The following exchange took place during the defense counsel's cross-examination of Tyrone Dillard:
"(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury.)
"MR. REED: Your Honor, I thought it would be wise to ask for a cite now. But on the question now of credibility, I want to elicit some testimony concerning the ongoing feud between Mr. Dillard and Mr. Mays concerning some stolen money, and I'd like to be able to ask those questions.
"MR. RUSSELL: Judge, under 60-422, that deals with credibility of a witness and it says you can only cross-examine a witness about prior instances of crimes involving dishonesty or fraud. And if he's going to lead up to about drugs, that has no that is not a crime that deals with dishonesty or fraud, and under 60-422, does not allow it and I would object ..., and number two, that's inadmissible evidence.
....
"THE COURT: Tell me exactly what it is you want to get into.
"MR. REED: Well, Your Honor, my client's my client's allegation is that because of some prior business transactions between him and Mr. Dillard that a motive which created, you know, for his testimony and the reason why these charges have been brought against him, my client would, you know, testify when it comes his turn to testify that he misapplied some funds that were lent to him by Mr. Dillard and a substantial sum of money, and that for this reason that he [Dillard] has a vendetta, if you want to call it, against against Mr. Mays. What I want to do is try to elicit this before the jury is to show that apart from the fact that he's the boyfriend of Ms. [R.J.], that he may perhaps have some other motives to appear here to testify as he has.
"THE COURT: When you say `other motives', are you saying that because of this gentleman's relationship financially with your client that [R.J.] is lying?
"MR. REED: Well, that yeah, that's basically my client's argument.
"THE COURT: Mr. Dillard has the power over the young lady to make her lie, then, or
"MR. REED: That's already been made by my client.
"THE COURT: Tell me about this when did this economic situation develop?
"MR. REED: What time was that you got the money?
"MR. MAYS: I don't remember when, it was before the incident, you know, about the beginning of June or the end of May and he give me some money to get some
"MR. REED: About a thousand dollars?
"MR. MAYS: Yes, some money to get something for him and I lost the money gambling. And I was going to try to pay him back, but I had got laid off at the time and he got a little upset about it, you know, and I wasn't working. I told him I'd get paid, I was going to draw unemployment *484 to pay him back. He didn't want that, so we got into it at a club one night and we got into a little fight, and he states that he would get even with me somehow, you know. And come after June 18th, a few weeks later, I had a warrant out for my arrest for this aggravated robbery and rape against his girlfriend.
"MR. REED: So again, your Honor, to recapitulate, my client's argument is that Mr. Dillard does have that influence over his girlfriend and that this is his means of getting even for that shorting him on that business transaction.
"THE COURT: Mr. Russell?
"MR. RUSSELL: Judge, when we went through the first sideboard on the first witness, I heard the term `drug use' up there, and now they're talking about a transaction and I don't know if they're talking about drugs or not. I mean we're outside the hearing of the jury if that's what they're arguing, that has no relevance at all. I mean, number one, you cannot cross-examine someone about drugs because it's not a crime that involves dishonesty or fraud. As to if they're not using the term `drugs' and they want to use the term `transaction', that somehow this witness has some type of control over a victim to make the story she has, I don't think there's been any showing by this defendant that there's any relevance to that other than it's a made-up story.
"THE COURT: I agree with what most of you would say, but if this witness would have an interest in the outcome of this case, any interest that may be as to the defendant, would be relevant for credibility purposes.
"MR. REED: So again, Your Honor, I think it's relevant not only to not so much her testimony to a lesser extent because she's a third person, but mostly to his credibility as a witness.
"MR. RUSSELL: Well, now we're straying from that. If they're going to tie it in say now he's got control over the woman ... as prior bad acts, I don't see that as a prior bad act or specific instance or conduct. If there's any probative value, it's outweighed by the undue prejudice.
"MR. REED: Again, Your Honor, the point of this testimony I want to elicit is not to show that Mr. Dillard is a bad person, but simply to show that in this specific instance, this case that we have before us, there is a motive to develop the testimony which he has offered, and I think it goes directly to the issue of credibility because I think this shows that he is not a dispassionate observer apart from the fact that she is his girlfriend."
The court allowed defense counsel to inquire as to the loan transaction. Tyrone Dillard testified that he never loaned money to the defendant and never got into a feud with the defendant. Dillard also testified that four months prior to the incident at issue here, the defendant and Jerry Robinson robbed Dillard. Dillard stated that he reported it to the police but denied that he ever made a statement he would get even with the defendant. *485 On redirect, Dillard testified that he did not influence R.J. in her identification of the defendant in this case and that the police brought them back into the office separately.
Finally, while the defendant was testifying on direct examination, the following exchange took place:
"Q. (By Mr. Reed) Mr. Mays, in the months preceding June 18th, did you have any contacts with Mr. Dillard?
"A. Not around June the 18th. Before then I did.
"Q. And when was that?
"A. I think it was probably beginning of the year, somewhere like that.
"Q. Beginning of 1991?
"A. Yeah, somewhere like January or February I seen him at a club and we had got into it.
"Q. Can you tell the jury about what happened there?
"MR. RUSSELL: Judge, I would object to any of this. This is irrelevant.
"MR. REED: Your Honor, I think given this goes to the perhaps the Court wants a bench conference on this but I think this goes directly to the issue of the credibility of the prosecution witness. This isn't a matter of collateral impeachment, I think this goes directly
"THE COURT: Approach the bench.
"(The following proceedings were had at the bench by Court and counsel out of the hearing of the jury:)
"THE COURT: I guess what bothers me, I'm not sure it's ever been shown that the guy has that much control over the woman, and the guy's testimony is he didn't have anything to do with this crime. It's her testimony, and there's nothing been shown that she has a reason or an interest in this to lie, so
"MR. REED: But one of my arguments that I'm going to make during closing is that perhaps what inference he had would suggest in her mind that if she had any problems with identification, perhaps his power of suggestion helped her to identify Mr. Mays as her attacker.
"MR. RUSSELL: Judge, the evidence in this case has been that there was a photo lineup. He's testified that she didn't see him and she picked him out of a lineup. His name does not appear on that photo anywhere. How is it that he could tell her to pick out any person when there's no name there and she's never seen him?
"THE COURT: I'm going to sustain the objection."
Evidence concerning the financial dependence of R.J. upon her boyfriend, Tyrone Dillard, was material, relevant, and admissible. Evidence concerning a feud and fight between the defendant and Dillard, as well as Dillard's alleged statement that he would get even with the defendant, was material, relevant, and admissible. Relevant evidence is defined as "evidence having any tendency *486 in reason to prove any material fact." K.S.A. 60-401(b). See State v. Baker, 219 Kan. 854, Syl. ¶¶ 1, 2, 4, 549 P.2d 911 (1976).
While a formal proffer by defense counsel was not made in each instance, the court, based upon side bar conferences with counsel, was aware of the information to be elicited and the reasons why such information was important to the defendant's theory of his defense. The defendant himself, in one of the conferences outside the presence of the jury, explained to the court that Tyrone Dillard said to him after a fight over money at a local bar that he was going to get even with the defendant. We are satisfied that the record meets the requirements that the defendant make a proffer of the excluded evidence, for the record demonstrates the nature of the excluded evidence and the significance of that evidence to the defendant's case.
Immediately after the incident, R.J. dressed and left the room to contact Dillard for help in reporting the rape and robbery to the police. She met Dillard, and he drove her to the police station. The evidence demonstrates that while she was not acquainted with the defendant she could recognize him from seeing him at other times before the incident. She testified that she recognized him as "Dolemite."
The only evidence supporting the defendant's convictions was the testimony of R.J. If the jury believed her testimony, it necessarily would convict the defendant. At the same time the jury necessarily would reject the testimony of the defendant and his alibi witnesses. Evidence bearing upon the credibility of R.J. was key to and an integral part of the defendant's defense.
In State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 (1978), we said: "A defendant is entitled to present the theory of his defense. The exclusion of evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial."
In Bradley, the defendant raised self-defense in a case where the victim entered the room in an intoxicated condition and fired a shot at the defendant, with the bullet striking the mattress near the defendant's head. The defendant jumped up and struggled with the victim, resulting in the victim's death. 223 Kan. at 712.
The victim knew the defendant and, before coming into the room, learned that the defendant was a police informant who *487 might turn the victim in for an earlier offense the victim had committed. The defendant sought to establish that fear of being reported to the authorities was the reason the victim attacked the defendant. The court excluded this evidence by ruling in limine that such evidence was evidence of bad character and inadmissible. 223 Kan. at 713. We agreed that the evidence was properly excluded as evidence of bad character by the trial court. Yet, in Bradley, we held that the defendant
"had a right to present his theory of defense. He had the right to introduce into evidence what he believed was the motive and intent of the deceased for what he claimed was an attack by the deceased upon his person. This was an integral part of his claim of self-defense or justifiable homicide. It is fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict. The right to present one's theory of defense is absolute." 223 Kan. at 713-14.
In addition to his alibi defense, the defendant's theory was that the alleged victim, R.J., had a motive to lie about the rape and robbery itself or who committed the rape and robbery. Her motive was to please her boyfriend, who supported her and had told the defendant within the past year that he would get even with the defendant.
We have no way of knowing what impact this evidence may have had upon the jury. We do know that the defendant's conviction depends upon the testimony of R.J. We are not prepared to conclude that the exclusion of evidence bearing upon the credibility of the main witness against the defendant in a case where no physical evidence connected the defendant to the crime scene was harmless error.
The exclusion of relevant, admissible, noncumulative evidence bearing upon the credibility of a critical prosecution witness unfairly prejudiced the defendant. The exclusion of evidence in this case is similar to the exclusion that occurred in State v. Davis, 237 Kan. 155, 159, 697 P.2d 1321 (1985). Just as in Davis, the evidence excluded herein was admissible and related to the credibility of a critical witness against the defendant. In Davis, as here, we reversed and remanded for a new trial.
In State v. Humphrey, 252 Kan. 6, Syl. ¶ 3, 845 P.2d 592 (1992), we said: "It is fundamental to a fair trial that the accused *488 be afforded the opportunity to present his or her defense to the charge so the jury may properly weigh the evidence and reach its verdict." We further recognized in Humphrey that
"[t]he Confrontation Clause of the Sixth Amendment affords an accused the right to cross-examination. The United States Supreme Court has `recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross- examination.' Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974)." 252 Kan. at 17.
The trial court in this case prevented the defendant from cross-examining both R.J. and Tyrone Dillard involving matters attacking the credibility of the only witness providing any evidence against him. The court further excluded evidence offered on direct examination by the defendant concerning an ongoing feud between the defendant and Dillard. The court excluded evidence that was an integral part of the theory of the defense. The exclusion violated the defendant's fundamental right to a fair trial. See State v. Gonzales, 245 Kan. 691, 783 P.2d 1239 (1989). Accordingly, we reverse and remand for a new trial.
Reversed and remanded for a new trial.
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NO. 07-07-0055-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 2, 2007
______________________________
ELIZABETH GUTIERREZ, APPELLANT
V.
ZURICH AMERICAN INSURANCE COMPANY AS SUBROGEE OF
HUNTER INDUSTRIES, INC. AND JOHNNIE HILL, APPELLEES
_________________________________
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY;
NO. 03-1179; HONORABLE BILL HENRY, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Elizabeth Gutierrez attempts to appeal after the trial court granted a
Motion to Sever filed by Zurich American Insurance Company (Zurich) and removed
Gutierrez as a party in this case. Since Gutierrez is not a party in this suit and has no
standing to file a notice of appeal, we dismiss for want of jurisdiction.
Background
On August 20, 2003, Zurich filed an action against Gutierrez and Miguel Gomez
seeking damages arising from a car accident. On December 5, 2005, the trial court
granted a default judgment against Gomez and proceeded on the case as to Gutierrez.
On July 12, 2006, Zurich filed a Motion to Sever requesting the trial court sever the
judgment against Gomez into a separate proceeding since all causes of action asserted
against Gomez had been disposed. On the same date, Zurich also moved for summary
judgment against Gutierrez. On August 8, the trial court granted Zurich’s Motion to Sever
and signed a prepared severance order; however, the trial court exchanged Gutierrez’s
name for Gomez’s name through most of the prepared order, but not all instances. The
resulting order created a new cause number, 03-1179A, and stated that “all causes of
action pled by Plaintiff against Defendant Gomez be severed into a new cause of action
with the following cause number and style: Cause No. 03-1179A; Zurich American
Insurance Company . . . v. Elizabeth Gutierrez . . . .”
A review of the clerk’s record in this cause of action does not contain either an order
granting Zurich’s summary judgment nor Gutierrez’s motion for new trial filed after August
8, 2006. However, according to Zurich’s response to Gutierrez’s Motion for New Trial,
which is contained in the clerk’s record, the trial court granted Zurich’s motion for summary
judgment on August 8 and Gutierrez filed a motion for new trial on September 7. Although
no motion for a new trial after August 8 is contained in the clerk’s record, an order dated
November 14, 2006 denies Gutierrez’s motion for new trial. Gutierrez filed notice of
appeal on December 13.
2
Law and Analysis
Subject matter jurisdiction is essential to the authority of a court to decide a case.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Subject
matter jurisdiction is never presumed and cannot be waived. Id. at 443-44. Subject matter
jurisdiction may be raised for the first time on appeal. Id. at 445. The issue may be raised
sua sponte by a court, and is a legal question subject to de novo review. See Mayhew v.
Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Standing is a component of subject matter
jurisdiction; it cannot be waived. See Tex. Ass’n of Bus., 852 S.W.2d at 443-44.
Generally, an ambiguous order may be construed in light of the motion upon which
it was granted. Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404 (Tex. 1971). The
same rules of interpretation apply in construing the meaning of a court order or judgment
as in ascertaining the meaning of other written instruments. Id. 404-05. The entire
contents of the instrument and record should be considered, and the instrument is to be
read as a whole. Id. at 405.
In reviewing the record, it would appear that the trial court severed Zurich’s cause
of action against Gutierrez into the new cause of action, cause no. 03-1179A. Therefore,
Gutierrez is no longer a party in the present cause of action and, thus, does not have
standing to file an appeal. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150
(Tex.1982) (appealing party cannot complain of errors that do not injuriously affect its rights
or that merely affect the rights of others). Hence, we conclude that we do not have
jurisdiction to consider Gutierrez’s appeal in this cause.
3
Conclusion
For the foregoing reasons, we dismiss for want of jurisdiction.
Mackey K. Hancock
Justice
4
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NO. 07-06-0060-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
APRIL 9, 2007
______________________________
WALTER LEE WILLIAMS, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 47
TH
DISTRICT COURT OF POTTER COUNTY;
NO. 50,502-A; HON. HAL MINER, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, CJ. and CAMPBELL and HANCOCK, JJ.
Walter Lee Williams, III appeals his conviction for evading arrest with a motor vehicle. Through his points of error, he contends that the evidence was legally and factually insufficient to support the conviction. We affirm the judgment.
The applicable standards of review are explained in
Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and
Watson v. State,
204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases.
Next, a person commits the offense of evading arrest or detention if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him.
Tex. Pen. Code Ann.
§38.04(a) (Vernon 2003). Appellant argues that the evidence was insufficient to illustrate that he knew (while driving his car) that he was being pursued by a peace officer who was attempting to detain him. We disagree.
A person’s intent or knowledge may be inferred by acts, words, conduct, and the surrounding circumstances.
Ledesma v. State,
677 S.W.2d 529, 531 (Tex. Crim. App. 1984);
Withers v. State,
994 S.W.2d 742, 746 (Tex. App.–Corpus Christi 1999, pet. ref’d). Here, the record showed the following. First, Officer Scott Chappell observed appellant, during the wee hours of the morning and while it was still dark, erratically operating his motor vehicle. Second, the officer activated his red and blue emergency overhead lights on his officially marked squad car and sped up to catch appellant. Three, appellant accelerated his vehicle. Four, Chappell maintained a constant view of appellant’s vehicle and activated his siren. Five, the siren was described as “very loud.” Six, the emergency lights of the squad car could be seen in the rear view mirror of appellant’s vehicle. Next, appellant drove onto the grounds of an apartment complex, exited the vehicle while it was still moving, and began to run. Eight, Chappell chased appellant on foot while yelling “stop, police” and eventually captured him. Finally, a video recording of the incident was viewed by the jury. This is some evidence upon which a rational jury could find beyond a reasonable doubt that appellant knew, while driving his vehicle, that he was being pursued by a peace officer who wished to detain him.
See Kimbrough v. State,
No. 04-01-0273-CR, 2002 Tex. App.
Lexis
593 at *7 (Tex. App.–San Antonio January 30, 2002, pet. ref’d) (not designated for publication) (finding the evidence legally sufficient when the officer activated his overhead lights but the defendant sped away which resulted in a high speed chase through a residential neighborhood with the defendant swerving between lanes, running several stop signs, and driving into a curb after which he abandoned the car and fled on foot).
And, that appellant exited his vehicle
while it was stilling moving
and then began to run on foot could certainly be viewed by a rational jury as rebutting the suggestion that he did not first become aware of the officer’s presence until he left the vehicle. Thus, we cannot say that the evidence in any way preponderates against the jury’s verdict or that the evidence supporting the verdict was weak.
In sum, the record contains legally and factually sufficient evidence establishing appellant’s guilt. Thus, we overrule the issues and affirm the judgment.
Brian Quinn
Chief Justice
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NO. 07-08-0256-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 12, 2008
______________________________
AMADO FLORES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 287th DISTRICT COURT OF BAILEY COUNTY;
NO. 2202; HON. GORDON HOUSTON GREEN, PRESIDING
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
On Motion to Dismiss
Appellant, Amado Flores, filed a pro se Notice of Appeal to appeal a judgment of
revocation and sentence entered against him in the 287th District Court of Bailey County,
Texas. However, appellant has now filed a motion to dismiss his appeal.
Because the motion meets the requirements of Texas Rule of Appellate Procedure
42.2(a)
and this Court has not delivered its decision prior to receiving it, the motion is
hereby granted and the appeal is dismissed. Having dismissed the appeal at appellant’s
request, no motion for rehearing will be entertained and our mandate will issue.
Mackey K. Hancock
Justice
Do not publish.
of fact and conclusions of law addressing
the foregoing issues, and 2) cause to be developed a supplemental clerk’s record
containing its findings of fact and conclusions of law and all orders it may issue as a result
of its hearing in this matter. Additionally, the district court shall then cause the
supplemental record to be filed with the clerk of this court on or before July 29, 2009.
Should further time be needed by the trial court to perform these tasks, then same must
be requested before July 29, 2009.
It is so ordered.
Per Curiam
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272 F.2d 298
Homer S. HEAD, Appellant,v.A. A. WOLLMANN, Jr., Appellee.A. A. WOLLMANN, Jr., Appellant,v.Homer S. HEAD, Appellee.
No. 17581.
United States Court of Appeals Fifth Circuit.
Oct. 27, 1959, Rehearing Denied Jan. 21, 1960.
James P. Bailey, Bryan, Suhr & Bering, Houston, Tex., for appellant.
C. O. Ryan, Thomas M. Ryan, Houston, Tex., Kelley & Ryan, Houston, Tex., of counsel, for appellee.
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
RIVES, Chief Judge.
1
This action was brought by the appellee, Wollmann, against the appellant, Head, and also against one Adler Edmiston upon a promissory note in the principal amount of $50,000 signed 'Adler Edmiston, Trustee.' The complaint alleged that in executing and delivering the note, Edmiston acted on his own behalf and as agent for Head and also for one Gordon B. Butterfield, who was not sued. The case was tried to the court without a jury. At the conclusion of the evidence, the plaintiff, with leave of the court, filed an amended complaint to conform to the evidence.1 The amended complaint counted on the promissory note and also on certain written instruments or agreements executed contemporaneously with the note.
2
The district court filed a memorandum opinion incorporating its findings of fact and conclusions of law, and entered judgment against Edmiston,
3
'* * * in the sum of Fifty Thousand Dollars ($50,000.00) together with interest thereon at the rate of two per cent (2%) per annum from March 10, 1953 until the date of this judgment, plus ten per cent (10%) of the total amount due as attorney's fees, together with interest upon the entire sum from the date of this judgment at the rate of six per cent (6%) per annum,'
4
and against Head, 'in the sum of Fifty Thousand Dollars ($50,000.00), together with interest thereon at the rate of six per cent (6%) per annum from the date of this judgment.' It was further provided that the total recovery against both defendants should not exceed the amount of the judgment rendered against Edmiston.
5
Head alone appealed. Wollmann cross-appealed, but only insofar as the judgment against Head failed to award Wollmann 'interest on the sum of Fifty Thousand Dollars ($50,000.00) at the rate of two per cent (2%) per annum from March 10, 1953 until the date of the judgment, plus ten per cent (10%) of the total amount due as attorney's fees.'
6
Wollmann was a dentist by profession, who lived in Huron, South Dakota. He had known Butterfield, a Montana resident, for many years and had engaged with Butterfield in previous ventures seeking the discovery and production of oil and gas. Edmiston and Head were citizens of Houston, Texas, who also prospected for and promoted the production of oil and gas.
7
Butterfield and Edmiston owned a one-eighth overriding royalty interest in a large acreage in San Patricio County, Texas, leased to D and E Drilling Company. That Company had completed a producing well on a part of that acreage and had drilled a second well on another part to almost the same depth when it had decided to plug the second well. It had set cement in the surface pipe and had the well half plugged and the rig torn halfway down when Edmiston induced a Mr. James L. Minahan, a consulting geological engineer of Fort Worth, Texas, to go with him to check 'the Schlumberger electrical log services core analysis' with respect to this second well.
8
On March 6 or 7th, 1953, Minahan gave his opinion that there was a fifty-fifty chance of completing the well as a producing well. D and E was unwilling to spend further money on the well, and the lease on that part of the acreage would terminate shortly unless further efforts were made to bring the well into production. D and E offered to assign the lease to Edmiston, reserving a fractional three-fourths working interest in itself, if Edmiston would secure the funds necessary and proceed with cleaning and testing operations with a view to securing production. Wolf Drilling Company, which had drilled the well, estimated that $50,000 would be enough to attempt to complete the well as a producer. To keep from losing the rig, Edmiston arranged for the drillers to wait at an expense of $600 a day. Edmiston and Butterfield offered interests in the venture to Minahan and to Head. The four (Edmiston, Butterfield, Minahan, and Head) had several discussions among themselves about raising the necessary $50,000, and Butterfield suggested that he would contact Dr. Wollmann and attempt to secure the funds from him.
9
Dr. Wollmann and his wife were then at a health resort in Mineral Wells, Texas, and Butterfield met Wollmann there at the Baker Hotel.2 After they had discussed the venture, Butterfield wrote by pen and ink on hotel stationery a letter proposal (hereafter referred to as Plaintiff's Exhibit No. 1) as follows:
10
'Dear Doctor Wollmann:
11
'Following is understanding of our agreement concerning the participation in completion of the well at Corpus Christi: It is estimated there will be a total cost of $50,000.00 to complete this well and put the oil and gas in the tanks for oil and lines for delivery of the gas.
12
'You agree to advance this $50,000.00. We, in turn, agree to do all necessary work in connection with completion of the well, as setout, and to furnish all necessary casing, tubing, cementing, lines, tanks, etc. We further agree to give you a note of even date in amount of $50,000.00, bearing interest at two per cent, due in Nine months, said note to be signed by each, G. B. Butterfield, Adler Edmiston, Homer, S. Head, Sr. and James Minahan, Sr.
13
'We further agree that a full 75% of all oil and gas returns will credit toward payment of this note.
14
'It is further agreed between us that when this note is paid in full, an assignment will be made to you of Thirty-seven and one-half per cent (37-1/2%) in the working interest in this lease. It is understood that there is a one-eighth (1/8) land owners royalty and a one-eighth overriding royalty outstanding against this lease, making it a Seventy-five per cent (75%) lease.
15
'Sincerely, 'Gordon B. Butterfield'
16
The next day, Dr. Wollmann, accompanied by his wife, drove to Fort Worth to talk with Mr. Minahan. Minahan testified that he made it clear to Dr. Wollmann there in Fort Worth that he was no longer personally interested in the transaction 'because I wouldn't put my money in it.'
17
The following day, March 9, Dr. Wollmann, still accompanied by his wife, drove to Houston. Mr. Edmiston met them at the hotel clerk's desk as they registered and made arrangements for Dr. Wollmann to discuss the matter on the following day at Mr. Head's office in the Gulf Building in Houston.
18
At that meeting on March 10, Mr. Edmiston first handed to Dr. Wollmann a note from Mr. Head (hereafter referred to as Plaintiff's Exhibit No. 2) as follows:
19
'Homer S. Head-- Oil Operator
20
'Gulf Building
21
'Houston 2, Texas, March 9, 1953 'Dear Dr. Wollman,
22
'It is my understanding that Gordon Butterfield, A. Edmiston, you and I are all agreeable on a deal in San Patricio County, Texas, and that you have a note for $50,000.00 to be signed by Butterfield, Edmiston and myself.
23
'I have to leave town and set on a well in Eastland County, Texas. This letter will give you authority to close any deal with Mr. Edmiston and I will sign the note with Messrs. Edmiston and Butterfield at any time.
24
'Yours very truly, 'Homer S. Head 'Homer S. Head
25
'/es 'P.S. I think this is a-1 deal sorry it was necessary for me to leave town-- I hope to see you soon.
26
'Homer.'
27
Dr. Wollmann testified that he showed Mr. Edmiston the letter proposal which he had received from Edmiston (Plaintiff's Exhibit No. 1), and that he used that as a guide in arriving at an agreement. Edmiston testified that he never did see that letter proposal. In any event Dr. Wollmann and Mr. Edmiston, without the benefit of legal advice, undertook to reach an agreement, which Mr. Head's secretary typed, as follows (Plaintiff's Exhibit No. 3):
28
'State of Texas 'County of Harris
29
'This memorandum of agreement entered into this tenth day of March, 1953, by and between Adler Edmiston, Trustee for Gordon B. Butterfield, Homer, S. Head, and Adler Edmiston, Harris County, Texas, known as the First Party and Dr. A. A. Wollmann, Jr., of Huron, South Dakota, known as the Second Party Witnesseth:
30
'First Party has this day taken over a well drilled for oil or gas in San Patricio County, Texas, on a block of land consisting of approximately 409 acres described as follows:
31
'Said well was drilled by the Drilling and Exploration Company of Houston, Texas to a depth of 9636' and Schlumberger well log run on said well shows several sands that should be tested for production. First Party has made a deal with Drilling & Exploration Company to take over said well and start immediately to wash down and drill out plug and set casing to a depth of 9500', cement same and make production tests; trying to make a producer out of same.
32
'The Drilling & Exploration Company has assigned A. Edmiston, as Trustee for the above mentioned parties and himself, a lease covering the above described 409.25 acres subject to the following conditions to-wit:
33
'A. Edmiston is to pay all bills, casing, tanks, Schlumbergers and drilling operations to complete said well with the understanding that the above lease now owned by Drilling & Exploration Company is only a 3/4 lease and said lease is now being assigned to A. Edmiston, Trustee, as follows:
34
'A. Edmiston, Trustee, is supposed to received all oil royalties and payments from said well until the cost of completing said well has been reimbursed to A. Edmiston, Trustee. In that event, the Drilling & Exploration Company shall own a 1/4 Working Interest of the 3/4 Lease now assigned to A. Edmiston, Trustee.
35
'First Party agrees that all oil, pipe line runs, and checks received from production of said well will be paid to First Party (as Trustee), until First Party has received $50,000.00. The First Party has this date executed a promissory note payable in nine months from date at the rate of 2% interest to Second Party to reimburse him for the money advanced for the completion of the above described well. All monies received from production by First Party shall be paid to Second Party as received to apply on said note until $50,000.00 has been paid and when said well has produced enough money to reimburse Second Party $50,000.00, the balance of the 3/4 of 3/4 interest shall be divided equally as follows: '1/2 to Dr. A. A. Wollmann and 1/2 equally to Homer S. Head, Gordon B. Butterfield and A. Edmiston.
36
'A. Edmiston, Trustee, hereby agrees to execute all papers properly as above specified. Second Party has nothing to do with the drilling of the above described well and is not liable for any damages which may occur from said well. A. Edmiston, Trustee, shall have the control of all operations of said well.
37
'Witness the Execution Hereof this the 10th day of March, 1953.
38
'Adler Edmiston 'Adler Edmiston
39
'(Seal) 'The State of Texas 'County of Harris
40
'Before Me, the undersigned authority, on this day personally appeared Adler Edmiston, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
41
'Given under my hand and seal of office this the 10th day of March, 1953.
42
'Eleanor C. Sanders
43
'Eleanor C. Sanders
44
'Notary Public, Harris County, Texas
45
'My Commission expires 6-1-53'
46
At the same time, a promissory note and a letter (Plaintiff's Exhibits Nos. 4 and 5) were prepared and delivered to Dr. Wollmann, as follows:
47
'50,000.00 March 10, 1953 194 ... Nine months after date, for value receive I promise to pay to the order of Dr. A. A. Wollmann Jr. Fifty thousand and no/100 ........ Dollars at Huron, South Dakota
48
'With interest after date at the rate of 2 per cent per annum and if not paid at maturity and collected by an attorney or by legal proceedings, an additional sum of ten per cent on the amount of this note as attorney's fees.
49
'Due Nov. 10, 1953
50
'(s) Adler Edmiston
51
'Adler Edmiston, Trustee'
52
'Dr. A. A. Wollmann, Jr., 'Huron, South Dakota. 'Dear Dr. Wollman:
53
'This letter will give Mr. Gordon B. Butterfield of Billings, Montana, the authority to issue 25,000 shares of Wymotex Oil Company of Billings, Montana, stock which is owned by Mr. Butterfield and me and which is to be placed in escrow in a bank to be named by you to satisfy the $50,000.00 furnished us in San Patricio County, Texas.
54
'Yours very truly, 'Adler Edmiston 'Adler Edmiston
55
'/es 'cc: Gordon Butterfield'
56
Dr. Wollmann then delivered to Mr. Edmiston his check for $50,000.
Dr. Wollmann further testified:
57
'Q. Now, Dr. Wollman, what happened in connection with this transaction after you paid over the $50,000.00, and received these documents from Mr. Edmiston? A. The next day or so, we drove to Corpus Christi, down to where the well was being drilled.
58
'Q. And what occurred there, if anything? A. We met Mr. Edmiston, and we were there several days, and to the meantime, Mr. Head came down. We were going back and forth to the well.
59
'Q. All right. A. While they were drilling.
60
'Q. Did you have any conversation with Mr. Head about the financial aspects of this matter? A. I did.
61
'Q. Can you tell us in your own words just what happened at that time? A. I asked him to sign the note, and he told me that I didn't have the proper papers.
62
'Q. Was that the only reply he gave to you at that time? A. That's right.
63
'Q. Did he ever say that he wouldn't sign the note? A. No.
64
'Q. Did you press him about his signing something at that time? A. No, I didn't have the proper papers, so I didn't.'
65
Mr. Head testified that he simply declined to sign the note, and that Dr. Wollmann had nothing more to say at the time. In connection with this conflict, the examination of Mr. Head by the district judge, quoted in the margin,3 may be revealing.
66
The well eventually proved to be a dry hole and was finally plugged about January 23, 1955, and the equipment above the ground was then sold.
67
The respective factual contentions of the parties and the findings of the district court are thus stated in the memorandum opinion (176 F.Supp. 566):
68
'It is the plaintiff's testimony, and theory, that under the agreement he was to be repaid, if the venture was unsuccessful, by the two defendants and Butterfield, and that the note evidences that obligation. He contends further that the Wymotex stock was security, to which he might look for satisfaction of the note, if Edmiston, Head and Butterfield otherwise were unable to pay it.
69
'In addition to such support as this theory may find in the written instruments, Butterfield corroborates the plaintiff's testimony in every particular. He readily, almost eagerly, admits his own liability, and that of the two defendants. In this respect it is noted that Butterfield was not made a party-defendant here; that he and the plaintiff were friends and successful coadventurers in other matters long before this controversy arose; and, that Butterfield is a recent bankrupt.
70
'Head and Edmiston testify that the agreement was not as stated above, or as the written instruments would tend to show. It is their testimony that Wollman was to risk his capital, and they their time and skill in undertaking to make the well produce; and that in the event of failure all were to lose, and that there was to be no repayment. Their testimony is to the effect that the note was never intended to constitute a personal obligation on their part, but was no more than a memorandum of the amount which Wollmann advanced, and to which he was entitled to recoupment from the first oil produced. They explain the Wymotex letter as an alternative defense, in that if Wollman was to be repaid in case of failure, he was to look only to the 25,000 shares above mentioned. This stock was then jointly owned by Edmiston and Butterfield, and had a value of some $2 a share. Since that time, its value has decreased to an extent that it now has little, if any, market value. During the trial, Edmiston indicated his willingness to surrender his share of such stock to Wollman, which he contends would satisfy the obligation.
71
'I find the facts to be in accordance with the plaintiff's theory and testimony. I find that it was the understanding of all parties that Wollman was to be repaid in the event the well was a failure, and that the note was intended to, and did, evidence this obligation. I find further that the block of Wymotex stock was intended simply to secure the payment of the obligation, but was not intended to be the sole source to which plaintiff might look for such satisfaction.'
72
The district court entered judgment against Edmiston for the amount with interest and attorneys' fees due under the promissory note. As to Head, however, the court held:
73
'The plaintiff may not recover against Head as a maker of the note, by reason of the terms of Article 5932, 18, Vernon's Annotated Civil Statutes of this State. I find, however, that Head intended to, and by his letter of March 9, 1953 (Ex. 2) did, in writing, authorize Edmiston, as his agent, to deal with Wollman and to bind him (Head) upon any contract so arrived at. I find that Edmiston was authorized to, and did, act as agent for Head, as well as on his own behalf, in executing the 'Memorandum of Agreement' (Ex. 3), and that Head is bound thereby. I find further that the 'Memorandum of Agreement' did no more than reduce to writing the oral understanding previously arrived at between the parties, and to which Head had assented on or before March 9, 1953.
74
'I find that Edmiston, Head and Butterfield were not acting as partners in this venture (as contended by plaintiff), and I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head's agent. It was contemplated by all concerned that Head and Butterfield would sign individually, and on their own behalf, and that the three would constitute joint makers. While the statute cited above would prevent recovery against Head as maker of the note, it does not prevent recovery for breach of the initial contractual obligation, or for breach of his written promise to sign the note as maker. Head's liability in this respect is clear.1
75
'* * * Had Head and Butterfield joined in execution of the note, the three would have been liable jointly and severally, and the plaintiff might have sought his recovery in full against any or all.2 Hence, Edmiston, who did sign, has not suffered. Clearly the escrow provision was intended purely as a means of affording the plaintiff additional security. * * *
76
'1. 6 Tex.Jurs., Bills & Notes, 36 and 116; 10 C.J.S. Bills and Notes 516; Kelley v. Audra Lodge, Tex.Civ.App.1915, 176 S.W. 784; Wood v. Key, Tex.Civ.App.1923, 256 S.W. 314.
77
'2. Beitel v. Beitel, Tex.Civ.App.1937, 109 S.W.2d 345; Watkin Music Co. v. Basham, 1908, 48 Tex.Civ.App. 505, 106 S.W. 734; Kuykendall v. Coulter, 1894, 7 Tex.Civ.App. 399, 26 S.W. 748.'
78
Accordingly, the court rendered judgment against Head only for the principal sum of $50,000 with interest from the date of the judgment.
79
It will be noted from the last sentence of the quoted holdings that the district court had no doubt that the Wymotex stock was simply put up as collateral to secure the payment of the obligation.
80
'The holder of a secured note is not required by Texas law to exhaust his security before enforcing the note against the original maker, but may proceed to judgment without reference to the security, whether the same is in the form of a pledge of collaterals or a mortgage on real or personal property.' 6 Tex.Jur., 222, p. 881.
81
The appellant emphasizes the meaning of the word 'satisfy' in the letter (Plaintiff's Exhibit No. 5) by which the 25,000 shares of stock were 'to be placed in a bank to be named by you to satisfy the $50,000.00 furnished us * * *.'4 The word 'satisfy' would be entitled to more weight if it had been used by a lawyer skilled in the use of language of precise legal significance. It is questionable whether the word was originally chosen even by the two nonlawyers, Wollmann and Edmiston. Mr. Head's secretary testified that they did not dictate the letter to her, 'Mr. Edmiston just gave me a general outline of what he wanted, and I typed the letter.' It is a fair inference that the word 'satisfy' was initially the choice of the stenographer.
82
While the secretary and Edmiston testified to the most definite understanding that the stock was to be sccepted by Dr. Wollmann in lieu of the money, Dr. Wollmann testified that he and Edmiston talked about the stock being put up simply as collateral. Dr. Wollmann further testified that he attached little importance to the stock, and had not comprehended the provision that it was to be placed in escrow. Actually, that never was done. After the well proved to be a dry hole, Edmiston went to South Dakota and offered Dr. Wollmann not 25,000 shares as specified in the letter, but 50,000 shares of the stock. Dr. Wollmann refused, and testified: 'I asked for my $50,000.00 instead.' We agree with the finding that the stock was intended simply as collateral security. If we disagreed, nevertheless recognizing the superior advantage enjoyed by the district court, which saw and heard the witnesses and observed their demeanor on the stand, we could not set aside the finding as clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure.
83
Judges JONES and RIVES are in agreement down to this point. Judge JONES would simply affirm the judgment of the district court for reasons stated in a separate concurring opinion. Judge RIVES would go further and, for reasons stated in a separate opinion, would increase the judgment against Head so as to include interest and attorneys' fees. However, in order to reach a decision, Judge RIVES concurs with Judge JONES that the judgment be
84
Affirmed.
85
PER CURIAM.
86
The petitions for rehearing in the above styled and numbered cause are hereby denied.
87
Judge CAMERON dissents from the portion of the order denying the Petition for Rehearing of Appellant Head and concurs in the residue.
88
JONES, Circuit Judge (concurring).
89
It is my view that the appellant authorized Edmiston to bind him on what he refers to as a 'deal' and that he became bound. The district court made its determination as to what the deal was and, among other things, found that the deal included a promise to pay Wollmann if he did not get payment from a producing oil well. This determination is, I think, supported by substantial evidence. It was contemplated by Head that a note would be given to Wollmann. Head's letter to Wollmann says 'You have a note for $50,000.00 to be signed by Butterfield, Edmiston and myself.' Again it is said in the letter, 'I will sign the note with Messrs. Edmiston and Butterfield at any time.' While Edmiston was authorized to bind Head in making the deal, Head reserved to himself the signing of the note. It follows, or so I think, that Head was not obligated on the note and it would be improper to require him to pay the attorneys' fee for which the note stipulated. Although not in agreement with all that is said by the district court, I am convinced that its decision is correct. Wollman v. Head, 176 F.Supp. 563, I concur in the affirmance of its judgment.
90
RIVES, Chief Judge (concurring in affirmance, but dissenting from the failure to modify and increase the judgment).
91
While I concur to the extent of at least affirming the judgment against Head, I could hardly do so if I were not of the opinion that Head is liable on the promissory note the same as Edmiston. Butterfield's letter proposal (Plaintiff's Exhibit No. 1) and Head's letter (Plaintiff's Exhibit No. 2) each stated that Head's obligation to repay the $50,000 to Wollmann would be evidenced by a note. The only language that I find in the agreement (Plaintiff's Exhibit No. 3) obligation Head to pay the sum of $50,000 to Wollmann is that referring to the note:
92
'The First Party has this date executed a promissory note payable in nine months from date at the rate of 2% interest to Second Party to reimburse him for the money advanced for the completion of the above described well.'
93
I accept all of the fact findings of the district court except the finding not necessary to support its judgment to the effect that the Wymotex stock has a value of some $2 a share at the time the transaction was closed.1 Among other such findings which I accept are the following:
94
'* * * I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head's agent. It was contemplated by all concerned that Head and Butterfield would sign individually, and on their own behalf, and that the three would constitute joint makers.'
95
When, however, Head found it necessary to leave town and be absent from the meeting in his office, Edmiston was spurred on by a sense of urgent necessity to definitely close the transaction, and to do so he undertook to sign both the note and the agreement on behalf of Head (and of Butterfield as well as of himself).2
96
While Edmiston expected Butterfield and Head thereafter to sign the note, he added the word 'Trustee' after his own signature to signify that he was acting not only for himself, but also for Head and for Butterfield. That is made clear by the agreement entered into at the same meeting (Plaintiff's Exhibit 3), 'by and between Adler Edmiston, Trustee for Gordon B. Butterfield, Homer S. Head, and Adler Edmiston, Harris County, Texas, Known as the First Party and Dr. A. A. Wollmann, Jr., of Huron, South Dakota, known as the Second Party.' The agreement recites that, 'The First Party has this date executed a promissory note. * * *' Throughout that agreement, Edmiston is referred to as 'Trustee' with the meaning that he is acting for himself and his two coventurers.3 The testimony is without dispute that, notwithstanding Edmiston's lack of authority to execute the promissory note (as distinguished from the written contract) as Head's agent, Edmiston actually did purport to act on account of Head (as well as of Butterfield and himself) in signing the note, and, hence, his execution of the note could be ratified by Head for '* * * ratification does not result from the affirmance of an act, unless the one acting purports to act on account of another.' 1 A.L.I., Restatement of Agency, 85, p. 204.
97
Texas has the Uniform Negotiable Instruments Law, which includes Article 5932, Section 18, Vernon's Annotated Civil Statutes of Texas, the statute to which the district court referred.4 That section is followed by two other sections which appear pertinent.5 Clearly, the addition of the word 'Trustee' to Edmiston's signature did not exempt him from personal liability on the note.6 As between the original parties, however, it was permissible to prove, and was in fact shown by the contemporaneous agreement (Plaintiff's Exhibit 3), that the word 'Trustee' was meant to indicate that Edmiston was acting not only for himself, but also for Head and for Butterfield. As between the original parties, the rule is well settled in Texas, as elsewhere,7 that:
98
'In considering bills and notes as evidencing an agreement between the parties, application is made of the fundamental rule that other instruments executed at the same time, for the same purpose and in the course of the same transaction are to be construed therewith,-- that is, all the papers are given the same affect as though they were in fact a single instrument.' 6 Tex.Jur., Bills and Notes, 47, p. 644.8
99
Head's actual signature to the note was the means by which Edmiston had expected that his assumption of authority would be ratified. That was not, however, the exclusive mode of ratification. When Head, with full knowledge of the fact, either by having the note presented to him for his signature, or by the terms of the agreement referring to the note, joined in accepting the benefits (or what were then hoped would be benefits) of the $50,000 check which Dr. Wollmann delivered to Edmiston in return for the note and the other obligations, and joined in expending that fund over a long period of time, he effectually ratified and approved Edmiston's execution of the note on his behalf.9 It cannot be said that that conduct amounted to no more than an unnecessary ratification of the agreement already authorized, for two reasons: (1) The agreement itself, as executed, showed that the 'First Party,' which included Head, had executed the promissory note. (2) In parting with his $50,000, Wollmann relied on the promissory note as well as on the agreement, and he had a right to rely on both. That conduct would result in ratification even if it should be assumed, contrary to the weight of the evidence (see footnote 3 to majority opinion), that Head had theretofore repudiated any liability on the note by flatly refusing to sign it.
100
'The affirmance by the principal of a transaction with a third person is not prevented from resulting in ratification by the fact:
101
'(b) that the purported principal, before affirming, had repudiated the transaction, if the third person has not acted or has failed to act in reliance upon the repudiation.' 1 A.L.I., Restatement of Agency, 92, p. 227.
102
I would hold Head liable on the promissory note the same as Edmiston.
103
CAMERON, Circuit Judge (dissenting).
104
This is an action upon a promissory note. Both the original complaint and the amended complaint, filed over Head's objections, made it plain that Wollmann was suing on the note quoted in the majority opinion.1
105
The court below found 'that Edmiston, Head and Butterfield were not acting as partners in this venture (as contended by plaintiff), and I find that Head did not intend to authorize Edmiston to execute the promissory note (as distinguished from the written contract) as Head's agent.' The concurring opinion of Judge JONES accepts this finding that the note executed by Edmiston as Head's agent did not bind Head. The court concluded that, as far as the note was concerned, there was nothing in the Texas Statute or the facts which would 'prevent recovery * * * for breach of his (Head's) written promise to sign the note as maker. Head's liability in this respect is clear.'
106
The only documents quoted in the court's findings and conclusions were the note, Edmiston's letter of March 10th to Wollmann in effect pledging 25,000 shares of Wymotex Oil Company stock 'to satisfy the $50,000.00 furnished us,' and Head's letter of March 9th to Wollmann.
107
The finding of the court below that Edmiston's effort to bind Head to the note was beyond the powers granted to him is the only finding which is supported by the evidence. It is equally clear that the suit as filed and as prosecuted in the lower court and in this Court must fail as to Head because it is an action on a writing not binding upon Head. The power of attorney granted by Head's letter of March 9th to Wollmann was in writing and was in clear and explicit and unambiguous terms. The court could not, therefore, legally consider any extraneous proof in construing the note and the letter constituting the sole power relied upon for its execution on behalf of Head.
108
Eliminating the note, there is nothing in the Memorandum of Agreement executed by Adler Edmiston which binds, or purports to bind, Head to pay Wollmann any money. Wollmann was advised that the note was to be signed by Head and not by Edmiston for him, and his releasing the money to Edmiston before presenting the note to Head for his signature, when the evidence shows that he was easily available, was completely unjustified.
109
Wollmann knew within a very short time after the execution of the papers by Edmiston that Head was not going to sign a note in the terms of the one sued on. Head's reason was clear. He understood that, simultaneously with the closing of the deal, Edmiston and Butterfield were going to place stock with Wollmann 'to satisfy the $50,000.00 furnished us.' The trial court found the stock to be worth that amount of money-- 'This stock was then jointly owned by Edmiston and Butterfield, and had a value of some $2 a share.' The majority opinion rejects that finding by the court below while accepting the residue of its findings. Faced with a record containing as much vague and equivocal testimony on the part of all of the parties as this one, I do not feel justified in accepting some of the fact findings of the court below and rejecting others. It is my feeling that the court below committed an error or law in holding Head liable under the 'deal' when Head categorically refused to sign the only thing which could obligate him personally to Wollmann. He had, without dispute as far as I can find, been led to believe that Wollmann was to be satisfied by the Wymotex stock. 'Satisfy' is not a word of ambiguous, equivocal or uncertain meaning.2
110
The undisputed proof of Wollmann's dealings with Head is susceptible of no other construction but that he knew that Head had refused to sign a paper under which he would be personally bound to pay the $50,000. When he declined to sign the note because Wollmann did not have the proper papers, Wollmann took his papers back to his home in a distant state and kept them without ever mentioning the matter of a note from Head or making any demand for payment of a note for a period of more than four years. If, having parted with his $50,000 without getting Head's signature on the note, Wollmann wanted to protect himself, he had ample opportunity to begin action immediately following Head's refusal, which would have prevented the $50,000 from being expended by Edmiston or anyone else. He failed to do so and demonstrated to Head and to everyone else that he was not relying on any supposed obligation of Head to answer to him personally for the money he had advanced. This construction by the two of the rights and obligations subsisting between them appears from evidence which is, in my judgment, uncontradicted.
111
The other theory of liability, presumably accepted by the majority, is that casually adverted to by the court below that Head was liable to Wollmann for failure to carry out his written agreement to sign a note. The first answer to this is that the contract would be unenforceable, because the kind of note to be executed by Head was not described in the writing. An agreement to make a contract must set forth all of the terms of the contract to be executed or it will be unenforceable.3 Nobody contends, therefore, that the note which Head referred to and which was executed by Edmiston in negotiable form was intended to be what on its face it purported to be. It was to be a note imposing an obligation different from that spelled out by the terms of the note sued on.
112
It is plain, moreover, that any action against Head for failure to carry out his contract to sign a note was barred by Article 5527 of the Texas Code requiring an action on an indebtedness evidenced by contract in writing to be brought within four years after the cause of action accrues. This action was brought nearly three months after the expiration of the four year period of limitation.
113
The court below summarized its basic findings in the sentence: 'I find further that the 'Memorandum of Agreement' did no more than reduce to writing the oral understanding previously arrived at between the parties, and to which Head had assented on or before March 9, 1953.' It seems to me that what the court did was to endeavor to construct an obligation from the jumble of writings and testimony about them, and this was not permissible under the suit as filed and prosecuted.
114
Even if the court had the right to permit the unambiguous writings upon which alone I think the case should be decided to be varied, amended and supplemented by the testimony of contemportaneous negotiations between the parties, I think the contract it enforced by its judgment is too unrealistic and lacking in mutuality to have our approval. Under its terms, Wollmann, having made considerable money risking his capital in other oil 'gambles,' suddenly turned money-lender, making a loan to three joint venturers with him, one of whom he had, according to his amended complaint, investigated and found worth the money, accompanied by security undisputedly adequate to satisfy the loan. In addition, he had an assignment of the first oil runs as further protection. And, finally, he was to receive a bonus of a half interest in the well-- as much as the other three joint venturers together. Leaving out of view that he did not conceive the idea of attempting enforcement of the note against Head until more than four years had elapsed, we are asked to by-pass the writings and create from the sharply disputed testimony a contractual arrangement which, in my opinion, is at war with reason and with the pattern of like joint ventures which have come before the courts. See, e.g., Stricker v. Morgan, 5 Cir., 1959, 268 F.2d 882; Baker v. Nason, 5 Cir., 1956, 236 F.2d 483; Sample v. Romine, 1942, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346 and McCartney v. McKendrick, 1956, 226 Miss. 562, 85 So.2d 164. I think it is safe, in a situation such as faces us here, to stick to the writings. Both law and 'high justice' will be served better by such a course. For these reasons, I respectifully dissent.
1
See Rule 15(b), Federal Rules of Civil Procedure, 28 U.S.C.A
2
Mr. Head happened also to be at the same hotel in Mineral Wells on another business matter, and he and Dr. Wollmann met socially, but had no discussion about this particular transaction
3
Examination by the Court:
'Q. You never talked to Wollman about this trade at all until after it had been entered into or signed up on the 10th of March; is that true, sir? A. No, that's true.
'Q. Your only information as to what the trade was to be came from Edmiston or Butterfield? A. That's correct.
'Q. I see. So you wrote this letter to Wollman, where you set out in substance that you would sign the note and that you thought you all were in agreement. At the time you wrote that letter, you had before you only the information that Edmiston or Butterfield had given you? A. That's correct.
'Q. Now, what information did they give you about the part that a promissory note would play in this picture? A. Your Honor, may I say something?
'Q. Just answer my question, please, sir. A. O.K. See, on the 9th Mr. Edmiston asked-- came in there and said that the only thing I was to-- they was to put up this Wymotex stock.
'Q. And you would not have to put in any money, I know that. What part did they tell you a promissory note was going to play in this picture? A. They didn't tell me anything, what part it was going to play.
'Q. Well, what did they say about a promissory note? A. They didn't say anything about a promissory note. Only he just asked me about this thing, that-- the way this-- the reason I asked this, I want to say something here--
'Q. Well, now, who first mentioned a promissory note to you? A. Mr. Edmiston.
'Q. In connection with this transaction, please, sir? A. Mr. Edmiston.
'Q. And when was that, please, sir? A. On the 9th.
'Q. And what did he tell you about it? A. He said that until Mr.-- the deal was that Mr. Wollman, Dr. Wollman was going to take the stock, Wymotex stock, and when that promissory note-- in other words, the note wasn't involved in the thing at all, it didn't mean a thing; when that letter, when Dr. Wollman accepted the letter for the stock, that was it.
'Q. Now you are telling me what Edmiston told you on or about the 9th of March, before you left Houston and before the trade was signed on the 10th? A. That's correct.
'Q. If I understand you, sir. A. That's correct.
'Q. And Edmiston told you that all there was to it was to be the stock which he and Butterfield were to put up, and I believe you said when Wollman took that letter, that was it? A. That was it, yes, sir.
'Q. What I have asked you was, what did Edmiston say to you about a promissory note on the 9th of March? A. He asked me to-- to sign this note, due to the fact that the rig was going to be moved off, that Keet Lewis and I guess Grey Wolf Drilling were. They was handling that deal, Judge; I didn't know anything about the deal. It wasn't my deal.
'Q. What did Mr. Edmiston tell you about a promissory note on the 9th of March, and why you were to sign one or why anybody else was to sign one, please, sir? A. Well, I asked that same question, and why I signed the note, I don't know whether I made myself clear or not--
'Q. I didn't ask you why you signed it. What did Edmiston say to you about a promissory note on the 9th of March? A. All right; he said that Dr. Wollman was going to put up stock-- I mean they were going to put up stock to Dr. Wollman, see, and this note was-- the note-- the stock was in lieu of the note.
'In other words, when the note-- he accepted the stock, the note had no value whatsoever. Or never did have any value.
'Q. Edmiston told you that he, Edmiston, and Butterfield were going to put up stock? A. That's correct.
'Q. You weren't to put up any stock? A. No, sir.
'Q. Of any kind? A. No, sir.
'Q. But you were to sign the note? A. Till they completed their deal. They said they was-- the doctor was coming down here and was going to accept the stock for the $50,000.00.
'Q. What was the necessity of your signing the note? A. I don't know, Your Honor.
'Q. If you were to have no personal liability and you were not to put up any stock? A. My liability--
'Q. You are a business man, I am sure, Mr. Head. A. Yes, sir.
'Q. Why would you sign a note for $50,000.00, if you weren't to incur any liability or if you weren't to put up any collateral? A. The only liability that I incurred was to go down there and look after the well.
'Q. That is not my question. I said why would you sign the note, if your understanding was that you were never to have any personal liability, and were not to furnish any of the collateral, and if your only contribution to the venture was to be your time and effort? A. That question, I asked that same question, Your Honor.
'Q. Well, you can answer it for me now; we have got the other way around. I am asking you, why did you do it? Why would you do it? A. Well, it was stupidity on my part, if you want to put it that way.'
4
Appellant argues that, at the time of the transaction in Head's office, the value of the Wymotex stock was sufficient to satisfy the debt, and draws that inference from the district court's finding that the stock then 'had a value of some $2 a share.' That finding is not necessary to support the judgment entered by the court. Actually, it seems to us clearly erroneous, for we find in the record no definite evidence of the value of the stock on March 10, 1953, but do find evidence strongly indicating that its then value was nowhere near $2 per share. The evidence of that stock's value may be summarized as follows: During the latter part of 1952 and the first part of 1953, a Mr. Feland in Houston offered $75,000 for 100,000 shares which would be 75 cents per share; in October 1954, it was worth 68 cents per share, and in October 1956, 38 cents per share. Sometime in 1956, Mr. Feland offered $75,000 for 300,000 shares, which would be 25 cents per share
1
My views on that finding are expressed in footnote 4 to the majority opinion
2
Edmiston testified, in part, as follows:
'Q. Would you have signed this note, for instance, if you hadn't understood that Mr. Butterfield and Mr. Head were going to sign it, too, as a personal obligation? A. No, sir. I didn't sign it personally. I put 'trustee' down there. I was with them all.
'Q. In other words, you thought you were signing this note in accordance with this general agreement and contract that you all had drawn up, is that right? A. That's right, yes, sir.
'Q. Now, Mr. Edmiston, had Mr. Butterfield or Mr. Head expressly authorized you to sign that note for them? A. No, sir.
'Q. Now, you signed the contract referred to as Plaintiff's Exhibit No. 3 pertaining to this deal, did you not? A. Yes, sir.
'Q. Did you understand, with Dr. Wollman, that that contract was to be signed by Mr. Butterfield and Mr. Head? A. No, sir.
'Q. Now, if the note was to be signed by them-- A. Yes, sir.
'Q.-- why wasn't this contract to be signed by them? A. Because I was appointed trustee to close the deal and handle it.
'Q. Well, you were appointed trustee by whom? A. Well, they--
'Q. Mr. Butterfield and Mr. Head? A. I was to handle the well and close the deal, that's all.
'Q. In connection with that matter, were you also authorized to sign the note? A. No, sir.
'Q. Now, Dr. Wollman did, in fact, give you a check, a good check for $50,000.00 there on March 10th, in Mr. Head's office, Didn't he? A. Yes, sir.
'Q. And you took that and deposited it in the Second National Bank, didn't you? A. Yes, sir.
'Q. And it was paid, and you had that money available to put in the venture, didn't you? A. Yes, sir.
'Q. Now, you weren't intending to wait until somebody else signed something before Dr. Wollman paid the money over to you and you accepted it, were you? A. Now, wait. Just what was that?
'Q. You weren't intending to wait until somebody else signed a note before you got the money from Dr. Wollman, were you? A. Well, the well at that time, we had to go and tend to it right quick, or they were going to close the well down, and I had the drillers waiting on $600.00 a day time.
'So I didn't wait-- I figured they all would sign it; they agreed to sign it; and I went on to rush to get the driller, to get him started.
'Q. Yes, sir. A. To keep from losing the rig.
'Q. Yes, sir. It was urgent to do something that day, unless the whole deal was going to fall through; isn't that right? A. Yes, sir. Yes, sir.
'Examination by the Court:
'Q. You are telling me now, as I understand it, in answer to Mr. Ryan's questions, that when you-- that the matter was an urgent one, and that as soon as you got the check from Dr. Wollman, you deposited it and used the proceeds; you considered that it was all right for you to go ahead, because you were going to lose your lease or the rig was going to be moved off or something, if you didn't act promptly? A. Yes, sir, I had to act promptly, Judge, or lose it.
'Q. Well, do I understand, then, that you considered the trade final and definite when you got Dr. Wollman's check, and used his money? A. Yes, sir. I didn't figure-- I figured that-- now, Judge, they taken the note and was going ahead and have Gordon Butterfield execute it, and I left it up to their honor to do that.
'Q. You left it up to whose honor to do what? A. The ones that was supposed to sign that note with me.
'Q. You mean you expected Mr. Butterfield and Mr. Head both to sign the note? A. Yes, sir. Yes, sir.
'Q. Because they had told you they would? A. Yes, sir, that's right.
'Q. All right. So, so far as you are concerned, I take it from your testimony-- A. Yes, sir.
'Q. There was no uncertainty about the trade? A. No, sir.
'Q. You considered it final? A. Yes, sir.
'Q. And definite? A. Yes, sir.
'Q. And you felt that you were justified in taking the money from Wollman and using it? A. And start the well immediately, because I had to get with Wolf, Grey Wolf Drilling Company.
'Q. I see. A. And they were calling every hour, and they were going to pull the rig off if they didn't--
'Q. The point I am making is, as I understand what you are telling me, now-- A. Yes, sir.
'Q.-- there were no uncertainties? A. No, sir.
'Q. There were no contingencies? A. No, sir.
'Q. There were no loose ends that had to be tied down before it was a final trade, in your mind? A. No, sir.'
3
The district court found that Edmiston had the authority to execute that agreement on behalf of Head and of Butterfield, and that finding is supported by well nigh conclusive evidence. See Footnote 2, supra
4
Art. 5932, Sec. 18, Vernon's Annotated Civil Statutes of Texas:
'Sec. 18. No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.'
5
Art. 5932, Vernon's Annotated Civil Statutes of Texas:
'Sec. 19. The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.
'Sec. 20. Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.'
6
As said in Second Nat. Bank v. Ford, 1939, 132 Tex. 448, 123 S.W.2d 867, 869:
'* * * By the provisions of the Negotiable Instruments Law, art. 5932, 20, Cooley's addition of the word 'trustee' after his signature without disclosing for whom he was acting did not exempt him from personal liability. Certainly the facts establish no exemption, but, on the contrary, they establish liability.'
7
See Huntington Finance Co. v. Young, 1928, 105 W.Va. 405, 143 S.E. 102, 104; 7 Am.Jur., Bills & Notes, 62, pp. 820, 821; 8 Id., 474, pp. 222, 223, footnotes 2 to 7; 10 C.J.S. Bills and Notes 44b, p. 482
8
See also, Camp v. Dallas Nat. Bank, Tex.Civ.App.1929, 21 S.W.2d 104, 109; Stubblefield v. Cooper, Tex.Civ.App.1930, 37 S.W.2d 818, 821; McFarland v. Shaw, Tex.Com.App.1932, 45 S.W.2d 193, 196; Schwab v. Schlumberger Well Surveying Corp., Tex.Civ.App.1946, 195 S.W.2d 412, 415; Continental Nat. Bank of Fort Worth v. Conner, 1948, 147 Tex. 218, 214 S.W.2d 928, 930; Allied Building Credits, Inc. v. Ellis, Tex.Civ.App.1953, 258 S.W.2d 165, 166
9
2 Tex.Jr., Agency, 80, p. 477; 1 A.L.I., Restatement of Agency, 99; 2 Am.Jur., Agency, 227, 228; 2 C.J.S. Agency 49
1
Wollmann's original complaint copied the note in the body of it and alleged 'In so executing and delivering said note, defendant Edmiston was acting on his own behalf, and as agent for Head and Butterfield, and was expressly authorized in writing by Head and Butterfield to execute and deliver said note as an obligation binding upon both of them. By reason of the premises, the defendants Head and Edmiston, together with Butterfield, jointly and severally obligated themselves to pay the said note according to its tenor and effect.'
In his amended complaint filed over Head's protest and after all of the evidence was in, Wollmann again copied the note, referred to the contract of March 10th executed by Edmiston and charged again: 'In so executing and delivering said note, and in executing the said contract, defendant Edmiston was acting on his own behalf, and as agent for Head and Butterfield, who were, both on and prior to March 10, 1953, associated with him as partners in the development of the lease * * * referred to. In addition, Edmiston was expressly authorized in writing by both Head and Butterfield to execute and deliver the above described contract and note as obligations binding upon both of them. * * *'
Thereupon he copied in the body of the amended complaint Head's letter to him on March 9th wherein Head stated that Edmiston was authorized to close the deal, but that he would sign the note.
The only prayer of the original complaint was repeated in the amended complaint: 'Wherefore, premises considered, plaintiff prays * * * that upon final trial he have judgment against them, jointly and severally, for the sum of $50,000.00, together with interest thereon at the rate of two per cent per annum from March 10, 1953 until the date of judgment, plus ten per cent of the amount due as attorney's fees * * *,' thus demonstrating anew that he was suing upon the note.
His brief before us is devoted in considerable part to an effort to support his cross appeal for interest and attorney's fees as provided in the note.
2
Webster's New World Dictionary, 1953, p. 1295, defines the transitive verb 'satisfy' as meaning: '5. (a) To give what is due to, (b) to discharge (an obligation, debt, etc.); settle in full.' 78 C.J.S. at page 582, gives a similar definition
3
In appellee's brief it is stated: 'The promissory note, though negotiable on its face, was payable on a contingency, being the failure of the oil well to produce a sufficient return to reimburse * * * (Wollmann).'
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01-03-2023
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08-23-2011
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https://www.courtlistener.com/api/rest/v3/opinions/1873615/
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586 So. 2d 9 (1991)
Lynda Horton McGUIRE
v.
James Robert HORTON.
2900025.
Court of Civil Appeals of Alabama.
June 7, 1991.
E. Paul Jones, Alexander City, for appellant.
Mack Clayton, Alexander City, for appellee.
ROBERT P. BRADLEY, Retired Appellate Judge.
The parties were divorced in the Circuit Court of Tallapoosa County on September 23, 1985. On May 31, 1989 the wife filed a "Motion for Property Settlement" in which she sought a division of certain real property allegedly held in joint tenancy during the marriage.
On June 18, 1990 the husband filed a motion to dismiss. On June 26, 1990 the husband filed an answer and amended motion to dismiss. After a hearing on August 20, 1990, the trial court granted the motion to dismiss. The wife appeals.
The record indicates that at the time of the divorce in 1985 the trial court ratified an agreement between the parties. The record does not contain a copy of the agreement or the decree; thus we cannot determine what property, if any, was divided at that time.
In any event, the law governing property settlements is well settled. When there is no specific disposition of an asset in a divorce decree, the parties are left in the same position relative to that asset as they were before the divorce. Miller v. *10 Miller, 391 So. 2d 119 (Ala.Civ.App.1980). A divorce decree dividing the parties' property between them is not subject to modification, except for clerical errors, after the lapse of thirty days from entry of the decree. Bromley v. Bromley, 449 So. 2d 1252 (Ala.Civ.App.1984).
In this case, it is obvious that more than thirty days had elapsed since the time the divorce decree was entered; thus the trial court had no jurisdiction to further adjudicate a property settlement. We therefore find that the trial court properly granted the husband's motion to dismiss the wife's petition.
The foregoing opinion was prepared by Retired Appellate Judge ROBERT P. BRADLEY while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.
AFFIRMED.
All the Judges concur.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2600598/
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186 P.3d 654 (2008)
Pamela RAE, Plaintiff-Appellant,
v.
John L. BUNCE, Jr., and Stanley W. Welsh, Defendants-Respondents.
No. 33996.
Supreme Court of Idaho, Boise, May 2008 Term.
June 6, 2008.
Herzfeld & Piotrowski, Boise, for appellant.
Cosho Humphrey, LLP, Boise, for respondents.
EISMANN, Chief Justice.
This is an appeal from a judgment dismissing an action seeking to set aside an order modifying the custody provisions of a divorce decree for alleged fraud upon the court and awarding attorney fees pursuant to Idaho Code § 12-121. We affirm the judgment of the district court and award attorney fees on appeal.
I. FACTS AND PROCEDURAL HISTORY
Child Custody Proceedings
John Bunce (Dad) and Pamela Rae (Mom) were married on October 5, 1985, and during their marriage they had four children: Kelsey, Devon, Wyatt, and Josephine. In 1995, after the children were born, the family moved from the Bay Area in California to Idaho, but Dad commuted to San Francisco for work each week.
On March 5, 1997, Dad and Mom separated, and Mom filed a divorce action in California. In September 1998, the parties entered into an agreement resolving custody of their *656 children. Mom was given primary physical custody and Dad was given specified periods of time when he would have physical custody. The divorce decree in the California action was ultimately entered on January 8, 1999.
In July 2000, Mom filed the California judgment in Idaho, seeking to establish it as an Idaho judgment pursuant to the Enforcement of Foreign Judgments Act, Idaho Code §§ 10-1301 et seq., and she filed a motion to modify custody. She obtained an ex parte restraining order preventing Dad from exercising visitation with their daughter Josephine. After a hearing, the restraining order was quashed and the petition to modify custody was dismissed on the ground that the Idaho court lacked jurisdiction under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, I.C. §§ 32-11-101 et seq., because of the California court's exclusive, continuing jurisdiction. Mom still refused to permit Dad to exercise visitation with Josephine, and Dad had to obtain an order from the California court in order to do so.
In June 2002, Dad relocated to Blaine County, Idaho, the same county in which Mom resided with the children. The parties continued litigating custody issues in California. Pursuant to their stipulation, an Idaho attorney was appointed by the California court as a special master and was given authority over various custodial issues. Between January 9 and August 29, 2003, the California court entered six orders based upon reports from the special master attempting to resolve the parties' ongoing conflicts regarding custody and visitation.
In July, 2003, Dad learned that Mom had moved back to California. On August 1, 2003, he filed a motion in Blaine County seeking an ex parte interim custody order to keep the children in Idaho. The court refused to grant the motion on the ground that California still had exclusive jurisdiction. Four days after Dad had enrolled the children in school in Blaine County, Mom surreptitiously took them to California and attempted to enroll them in school there. After some legal wrangling, the children were returned to Idaho.
The special master issued a final report making recommendations for an order to resolve the remaining disputes between the parties. On October 8, 2003, the judge who had presided over the parties' divorce action in California entered an order relinquishing jurisdiction over the children. On October 23, 2003, Dad instituted the Idaho custody proceedings by filing a motion in the Idaho court to implement the visitation schedule recommended by the special master. One week later, Mom filed a motion seeking to implement her proposed visitation schedule, based upon her move to California.
The Idaho custody proceedings were tried in August 2004. After closing arguments, the trial court on August 25, 2004, orally ruled that the children would reside primarily with Dad in Blaine County, Idaho. The court also asked the parties to submit their proposed visitation schedule and argument on child support before September 24, 2004.
On August 28, 2004, the parties' sixteen-year-old daughter, Devon, was scheduled to fly back to Idaho. Mom had Devon rebooked on a flight to Los Angeles, where Mom picked her up and took her to Malibu. On September 1, 2004, through her counsel, Mom filed a motion asking the court to reconsider custody. She supported the motion with her affidavit in which she stated, "She [Devon] refuses to return to Ketchum, Idaho. I refuse to force her to return to Ketchum, Idaho."
On September 1, 2004, the court entered an order requiring Mom to return Devon to Dad's physical custody by 5:00 p.m. the following day. The order also provided that a separate order would follow the next day. The separate order entered on September 2, 2004, awarded sole physical and legal custody of the children to Dad pending further order of the court, denied Mom's motion to reconsider, and stated that "it is absolutely clear to this Court that [Mom] will not abide by orders of this Court." The court noted that Mom's statement in her affidavit that she will not force Devon to return to Idaho was direct proof that she would refuse to follow the court's orders. Dad filed contempt proceedings against Mom, but later withdrew them because Mom intended to call Devon as a *657 witness and Dad wanted to avoid any further trauma to her.
On November 29, 2004, the court issued its memorandum decision in the custody proceedings. The parties' oldest daughter, Kelsey, was at that time enrolled in school in Colorado, and in less than five months she would attain the age of majority. She wanted to complete her schooling in Colorado. Dad approved, but Mom did not. The court found it would be in Kelsey's best interests to complete her schooling in Colorado. It ordered that both parties would continue to have joint custody of Kelsey, but they must honor her wishes regarding parental contact. With respect to Devon, Wyatt, and Josephine, the court awarded Dad their primary physical custody, with Mom having specified periods of visitation. On December 27, 2004, the court entered an order amending the child custody provisions of the divorce decree in accordance with the memorandum decision.
Independent Action to Set Aside Judgment
On September 1, 2005, Mom filed this action pro se, seeking to set aside all orders entered in the custody action during the period from September 2004 through January 2005, because of alleged fraud upon the court. Those orders were: the order entered on September 1, 2004, ordering Mom to return Devon to Dad's custody; the order entered on September 2, 2004, awarding Dad sole legal and physical custody of the children until further order of the court; the memorandum opinion and order entered on November 29, 2004; and the order filed December 27, 2004, amending the child custody provisions of the divorce decree. Mom named as defendants Dad and his attorney, Stanley Welsh. On September 26, 2005, Mom retained counsel to represent her in this action. Five months later her attorney was suspended from practicing law, and Mom then retained her current attorney.
Because Mom has abandoned on appeal some of the allegations she made in the trial court, her specific allegations of fraud upon the court will be discussed in more detail in the analysis portion of this opinion. The district court granted the Defendants' motion for summary judgment and dismissed this action. It also awarded Dad attorney fees in the sum of $9,840.28 pursuant to Idaho Code § 12-121. Mom then timely appealed.
II. ISSUES ON APPEAL
1. Did the district court err in granting the Defendants' motion for summary judgment?
2. Did the district court err in awarding Dad attorney fees pursuant to Idaho Code § 12-121?
3. Is Dad entitled to an award of attorney fees on appeal pursuant to Idaho Code § 12-121?
III. ANALYSIS
A. Did the District Court Err in Granting the Defendants' Motion for Summary Judgment?
Rule 60(b) of the Idaho Rules of Civil Procedure recognizes that courts have the inherent power "to set aside a judgment for fraud upon the court." "The term `fraud upon the court' contemplates more than interparty misconduct, and, in Idaho, has been held to require more than perjury or misrepresentation by a party or witness." Compton v. Compton, 101 Idaho 328, 334, 612 P.2d 1175, 1181 (1980). It "will be found only in the presence of such `tampering with the administration of justice' as to suggest `a wrong against the institutions set up to protect and safeguard the public.'" Id. (quoting Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 246, 64 S. Ct. 997, 1001, 88 L. Ed. 1250, 1255-56 (1944)). "The party asserting a claim of fraud on the court must establish that an unconscionable plan or scheme was used to improperly influence the court's decision and that such acts prevented the losing party from fully and fairly presenting its case or defense." 47 Am.Jur.2d, Judgments § 728 (2006).
The judgment at issue in this case is the order entered on December 27, 2004, which amended the child custody provisions of the divorce decree in accordance with the memorandum decision. The prior orders in the child custody proceeding, including the order *658 entered on September 1, 2004, were interlocutory orders, not judgments. Therefore, Mom must show there was fraud upon the court that would justify setting aside the order entered on December 27, 2004. On appeal, Mom bases her claim of fraud upon the court upon the circumstances surrounding the issuance of the order entered on September 1, 2004, and upon Dad's withdrawal of his motion seeking to hold Mom in contempt. She must show not only that there was fraud upon the court with respect to those two events, but she must also show that it justifies setting aside the judgment later entered on December 27, 2004.
The order entered September 1, 2004. After the two and one-half day trial in the custody proceedings, Mom's attorney Dana Monson sent the judge a letter dated August 27, 2004. In the letter, which was faxed to Mr. Welsh, she stated that they had a disagreement as to whether the judge had stated after the trial that Mom could have the children in her custody until school began. She asked the judge to clarify that matter. Thereafter, there were a series of letters to the judge from Mr. Welsh and Ms. Monson regarding the issue and Dad's alleged inability to contact Devon while she was at her Mom's. In her letter to the judge dated August 31, 2004, Ms. Monson concluded by writing:
Finally, as mentioned at trial, I will be out of town and unavailable beginning late tomorrow until September 13, 2004. Although I have Doug Werth cover in my absence, I am not certain if he will be covering on this matter. Rather, I believe Ms. Rae may have other counsel. She will, through such person, inform the Court and Mr. Welsh of such representation as necessitated.
Mom had been permitted to exercise visitation with Devon until she was to start school. On September 1, 2004, Mr. Welsh sent a letter to the judge, with a copy to Ms. Monson, stating that Devon's school orientation would be on Friday, September 3, 2004, and asking the judge to sign a proposed order requiring Mom to have Devon back in Dad's custody in Blaine County by 5:00 p.m. on Thursday, September 2, 2004, so that she could attend that orientation. The judge issued the proposed order on September 1, 2004, at 4:28 p.m. and wrote on it, "Separate order to follow by fax on 9/2/04." Copies of the order were faxed to Mr. Welsh, Ms. Monson, and Mr. Werth.
On September 1, 2004, at 4:30 p.m. Mom filed a motion for reconsideration and her supporting affidavit explaining in detail why Devon should be allowed to remain with Mom in Malibu. In her affidavit, Mom stated, "She [Devon] refuses to return to Ketchum, Idaho. I refuse to force her to return to Ketchum, Idaho."
On September 2, 2004, the judge sua sponte without a hearing issued an order denying Mom's motion for reconsideration and granting Dad sole legal and physical custody Devon, Wyatt, and Josie. In the order, the judge wrote the following:
At the conclusion of trial, the Court sought the assistance of the parties in attempting to work out a visitation arrangement. It is apparent from the correspondence received from counsel that the communication and cooperation level of the parties in this case continues to be nonexistent. It is also absolutely clear to this Court that Pamela Rae will not abide by orders of this Court. The statement contained in paragraph 5 of Ms. Rae's latest affidavit stating that "I refuse to force her [Devon] to return to Ketchum, Idaho" is direct proof that she will refuse to follow the order of this Court. Despite this Court's clear order that Devon shall reside with her father, Ms. Rae declines to accept her responsibility as a parent by stating that she will not support this Court's decision. She has been held in contempt of court in California twice, and sanctioned by this Court. It is clear to this judge that she will do what she wants because she alone thinks she knows what is best for her children. This Court has ordered that Devon will reside in Blaine County and attend school there.
In this final memorandum opinion, this Court will address how Pamela Rae has attempted to influence the decisions of these children. While this Court does not *659 consider it inappropriate for a parent to solicit the opinion of children as to where they wish to reside, the children's decision is not controlling. Pamela Rae thinks otherwise. She is wrong. This Court finds that Pamela Rae's representations as to what the children want is not credible evidence given the totality of the evidence this Court heard at trial. Pursuant to Rule 7(b)(3) I.R.C.P. the Court in its discretion declines to hear oral argument or receive additional evidence on this issue. (Parenthetical and emphasis in original.)
Dad ultimately had to initiate proceedings in California to obtain the return of Devon.
Mom contends that this constituted fraud upon the court because Mr. Welsh submitted the proposed order by a letter rather than by a motion and because he did so when he knew Ms. Monson would be out of town and would not receive the copies he mailed her. Mom's argument that this constitutes fraud upon the court is ridiculous. She cannot explain how submitting a proposed order by letter rather than by motion prevented her from fully and fairly presenting her case. Likewise, mailing a letter to counsel who had stated there would be someone covering in her absence does not even come close to constituting fraud upon the court.
More importantly, Mom knew before September 1, 2004, that she was to have Devon back in Dad's custody in time for school. The court's order issued sua sponte on September 2, 2004, and its later memorandum decision and order modifying custody were influenced by Mom's recalcitrance, not by Mr. Welsh sending the proposed order by letter rather than by motion and mailing a copy to Ms. Monson when she was out of town. As the court stated in its September 2 order:
In light of Ms. Rae's unequivocal statement quoted above ["I refuse to force her [Devon] to return to Ketchum, Idaho"], this Court enters the following orders:
1) Pamela Rae's motion for reconsideration of the Court's oral ruling on August 25, 2004 is granted in part and denied in part. (2) This order supercedes [sic] all written and oral temporary orders issued by the Blaine County Magistrate in this case.
It is hereby ordered:
. . . .
2) On August 25, 2004, Ms. Rae told this Court that her "schedule did not permit visitation with the children." Despite this, this Court believes that Ms. Rae arranged for Devon to go to Malibu, knowing full well that she did not intend to return her to Blaine County. Her pattern of conduct directly parallels her conduct during the "Josie incident" several years ago. This Court finds that Pamela Rae cannot be trusted to follow Court orders to return the children as required. Accordingly, Pamela Rae's physical visitation rights with Devon, Wyatt and Josie are suspended until further order of this Court. The Court also specifically orders that Pamela Rae shall have no physical contact with Devon, Wyatt or Josie pending further order of the Court. (Emphasis in original.)
Mom alleges, "The effect of Defendants Bunce's and Welsh's submission of a request for an order via letter was to deny Ms. Rae the opportunity to contest the motion and to ensure that Magistrate Stoker issued an order based purely upon Mr. Welsh's own representations." The only representations made by Mr. Welsh in his one-page letter that were relevant to the proposed order were:
I understand that Ms. Rae arranged for Devon to fly to Malibu.....
In any event, I understand that Devon's school orientation is this Friday. For that reason and to avoid any dispute, I have enclosed herewith a proposed Order which I request the court sign so that Devon is returned for the orientation on Friday.
I would be happy to arrange for a phone conference with the court if the court so desires.
Mom does not contend that any of the above-quoted representations were untrue.
The withdrawal of the motion for contempt. On September 29, 2004, Dad filed a motion seeking to have Mom held in contempt of the order entered on September 2, *660 2004. He alleged that Mom had violated that order by enrolling Devon in school in California and by failing to return her to Dad's custody.[1] The motion for contempt was scheduled for hearing on October 22, 2004, but Dad later withdrew the motion when Mom stated that she would have Devon testify during the contempt proceedings. Mom contends that his withdrawal of the motion constitutes fraud upon the court because she was deprived of the opportunity to counter the inaccuracies contained in his supporting affidavits and because the judge in the custody proceedings may have read and relied upon the alleged inaccuracies when making the factual findings in his memorandum decision.
The motion for contempt alleged that Mom had violated court orders by enrolling Devon in school in California and by failing to return her to Dad's custody. In his memorandum decision, the judge in the custody proceedings wrote:
Within one week following trial, an additional conflict arose between the parties. The extent of that conflict and the new issues raised between the parties is set forth in the Court's order dated September 2, 2004 and will not be repeated in detail herein. Suffice it to say that Pamela caused Devon to be taken to Malibu, California, apparently enrolled her in school there, and despite this Court's direct order to the contrary, refused to return her to Jack's custody in Idaho. This Court, on its own motion, summarily granted Jack interim sole legal and physical custody of all of the children and suspended Pamela's visitation with the children. (Emphasis in original.)
Mom cites this as an example of how the judge in the custody proceedings relied upon alleged misstatements by Dad and Mr. Welsh. Her attorney admitted during oral argument on the motion for summary judgment that Mom caused Devon to arrive in southern California and that she enrolled Devon in school there.[2] He stated that Mom only disputes that portion of the above quotation where the judge wrote that she "refused to return [Devon] to Jack's custody in Idaho." Mom argues that the judge must have relied upon misstatements by Dad and Mr. Welsh in making this finding and that Dad's withdrawal of his motion for contempt prevented her from disputing that finding.
The district court concluded from the record that the judge made this finding based upon Mom's conduct, not upon any alleged misstatement by Dad or Mr. Welsh. On September 2, 2004, the judge issued sua sponte an interim order on custody. The only information available to the judge at that time regarding Mom keeping Devon in Malibu was Mom's affidavit submitted in support of her motion for reconsideration. In that affidavit she explained why Devon should remain in Malibu and stated, "She refuses to return to Ketchum, Idaho. I refuse to force her to return to Ketchum, Idaho." As shown by the above-quoted portions of the September 2 order, the judge relied upon Mom's affidavit and prior conduct in concluding in that order that Mom had refused to return Devon to Jack's custody in Idaho.
Mom argues that even if there was no evidence showing that the judge in the custody proceedings relied upon any allegedly inaccurate information in Dad's affidavits, she is entitled to all reasonable inferences in her favor when defending a motion for summary judgment. She insists that for the purposes of summary judgment the district court in this case should have inferred that the judge in the custody proceedings relied upon alleged inaccuracies in Dad's affidavits submitted in support of the contempt motion rather *661 than upon Mom's affidavit and prior conduct. In other words, Mom argues that the district court should have inferred that the judge in the custody proceedings misstated the basis of his findings.
This case would have been tried to the court, not to a jury. "When an action will be tried before the court without a jury, the trial court as the trier of fact is entitled to arrive at the most probable inferences based upon the undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences." Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354, 360-61, 93 P.3d 685, 691-92 (2004). The district judge was not required to draw the inference argued by Mom. She has failed to make any reasonable argument as to how Dad withdrawing the motion for contempt prevented her from fully and fairly presenting her case.
There is simply no factual basis for Mom's allegations of fraud upon the court. In addition, all of the allegedly wrongful conduct by Dad and Mr. Welsh was known by Mom prior to the issuance of the judge's memorandum opinion on November 29, 2004. Had there been inaccuracies in any of Dad's affidavits, Mom could have filed affidavits setting forth her version of what occurred. Had the judge's memorandum opinion been based upon incorrect information, Mom could have filed a motion to amend the findings pursuant to Rule 52(b) of the Idaho Rules of Civil Procedure. Had there been additional evidence that Mom desired to present, she could have moved prior to the entry of judgment to re-open the case to take additional evidence. Davison's Air Service, Inc. v. Montierth, 119 Idaho 967, 968, 812 P.2d 274, 275 (1991). An independent action to set aside a judgment based upon alleged fraud upon the court is not a substitute for actions that could have been taken in the trial court to correct the prejudice from allegedly wrongful conduct. As stated in 47 Am. Jur.2d, Judgments § 728 (2006) (footnotes omitted):
However, the court's power to vacate a judgment because of a fraud on the court is not a license for parties to refrain from bringing motions until after an appeal on the merits, and an independent action for fraud may be barred where the plaintiff had ample opportunity to or, in fact, did raise the alleged fraud in the underlying action.
The district court did not err in dismissing this action.
B. Did the District Court Err in Awarding Dad Attorney Fees Pursuant to Idaho Code § 12-121?
The district judge awarded Dad attorney fees pursuant to Idaho Code § 12-121. "An award of attorney fees under Idaho Code § 12-121 is not a matter of right to the prevailing party, but is appropriate only when the court, in its discretion, is left with the abiding belief that the case was brought, pursued, or defended frivolously, unreasonably, or without foundation." McGrew v. McGrew, 139 Idaho 551, 562, 82 P.3d 833, 844 (2003). "We review a trial court's award of attorney fees under the statute under an abuse-of-discretion standard." Thomas v. Madsen, 142 Idaho 635, 639, 132 P.3d 392, 396 (2006).
The district court found that Mom's conduct in this lawsuit "suggests an improper purpose such as harassment or maliciousness." That finding is supported by the evidence. The court also examined each of Mom's allegations regarding fraud upon the court and found that there was either no factual basis and/or no legal basis to support them. The court decided that although the initial filing of this lawsuit may not have been frivolous or unreasonable, Mom should have been able to determine through discovery that it was. Giving her almost nine months to conduct that discovery, the court found that beginning on June 14, 2006, Mom pursued this case frivolously or without foundation.
The court found that a reasonable total attorney fee would be $19,680.56. The court divided that fee in half because Mr. Welsh represented both himself[3] and Dad in this lawsuit and would not be entitled to fees for *662 representing himself. The court therefore awarded Dad attorney fees in the sum of $9,840.28.
On appeal, Mom argues that she did not pursue this case frivolously. She has failed to show that the district court abused its discretion in awarding attorney fees pursuant to Idaho Code § 12-121. We affirm that award.
C. Are the Defendants Entitled to an Award of Attorney Fees on Appeal Pursuant to Idaho Code § 12-121?
The Defendants seek an award of attorney fees on appeal pursuant to Idaho Code § 12-121. "Attorney fees can be awarded on appeal under that statute only if the appeal was brought or defended frivolously, unreasonably, or without foundation." Downey v. Vavold, 144 Idaho 592, 596, 166 P.3d 382, 386 (2007). This appeal certainly qualifies. Mom's lawsuit was devoid of any legal or factual basis, as is this appeal. We therefore award attorney fees on appeal to Dad pursuant to Idaho Code § 12-121. Because Mr. Welsh is representing himself, he is not entitled to an award of attorney fees. Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 377, 973 P.2d 142, 148 (1999).
IV. CONCLUSION
We affirm the judgment of the district court. We award the respondents costs on appeal, and we award Mr. Bunce attorney fees on appeal.
Justices BURDICK, W. JONES and HORTON concur.
J. JONES, Justice, concurring in part and dissenting in part.
I concur in the Court's opinion, excepting only that part of Section III.C, where the Court denies attorney fees to Mr. Welsh based on the Court's opinion in Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 973 P.2d 142 (1999).
As I pointed out in Barbee v. WMA Securities, Inc., 143 Idaho 391, 397, 146 P.3d 657, 663 (2006), the Court in Bowles did not analyze the issue of whether an attorney acting as a pro se litigant may be entitled to attorney fees. Rather, the Court merely cited to a Court of Appeals decision, Swanson & Setzke, Chtd. v. Henning, 116 Idaho 199, 774 P.2d 909 (Ct.App.1989), wherein the Court of Appeals held that the rule preventing awards of attorney fees to pro se litigants included attorneys litigating pro se. The Court of Appeals decision was not based upon the language of the statute in question but, rather, upon public policy considerations. As I noted in Barbee:
The Court of Appeals determined that it would be unfair to allow a lawyer pro se litigant to recover fees where non-lawyer pro se litigants could not. The public policy considerations do not take into account that non-lawyer pro se litigants do not have a license to practice law and are not engaged in the business of making a living through the practice of law. The Court of Appeals indicated that lawyer pro se litigants do not make disbursements for time they devote to their own litigation. However, this ignores the fact that "a lawyer's time and advice is his stock in trade," as so aptly put by that great lawyer, Abraham Lincoln. When a lawyer devotes time to a legal action of his own, either to collect an account, to defend a legal action, or otherwise, the attorney may not make a disbursement of funds, but the attorney does make a disbursement of merchandise that could have been sold elsewhere, i.e. his time. If the attorney prevails, there is no language in any of the statutory fee provisions that precludes an award of fees to the attorney. The Court of Appeals in Swanson & Setzke went even so far as to state that it would make no difference if the entity seeking fees was a professional service corporation, as opposed to the individual lawyer in the corporation, thereby permitting a de facto piercing of the professional corporation veil in order to apply its public policy. That holding is bad public policy and should not be perpetuated by this Court.
Barbee, 143 Idaho at 397, 146 P.3d at 663.
NOTES
[1] The September 2 order provided, among other things, that "Devon, Wyatt, and Josie . . . are . . . to attend school in Blaine County" and that "Devon shall be returned to Blaine County at Pamela Rae's expense."
[2] During the oral argument, the following dialogue occurred:
MR. PIOTROWSKI: On August 28 Devon boarded an airplane with a ticket that Ms. Rae had purchased to southern California. Yes, it's true that she caused her to arrive in southern California.
THE COURT: Okay. And it's true, also, that she apparently enrolled her in school there?
MR. PIOTROWSKI: She did, indeed, enroll her in school there.
[3] There is no basis for filing this lawsuit against Mr. Welsh. He was not a party in the underlying lawsuit and would not be a proper defendant in an action seeking to set aside the judgment in that case.
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NO. 07-11-00133-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 22, 2012
JUDITH M. HENDERSON, APPELLANT
v.
TIMOTHY WAYNE SPANN
& AMANDA SPANN, APPELLEES
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-549,365; HONORABLE LESLIE HATCH, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
Judith M. Henderson appeals the trial court’s judgment awarding Timothy Wayne
Spann and Amanda Spann damages in connection with a motor vehicle accident.
Among her other contentions, Henderson argues that the trial court erroneously
admitted evidence of unadjusted medical bills. In light of recent controlling authority, we
reverse and remand for a new trial.
Factual and Procedural History
In September 2009, the vehicle Henderson was driving collided with a motorcycle
driven by Mr. Spann, an off-duty police officer. Mr. Spann suffered significant injuries to
his groin and lower back. The Spanns brought suit, and a Lubbock County jury found
that Henderson’s negligence was the proximate cause of Mr. Spann’s injuries.
The jury awarded $267,542.42 to Mr. Spann to compensate him for past and
future physical pain and mental anguish, lost wages, past and future physical
impairment, and past and future medical expenses. The jury also awarded $60,000 to
Mrs. Spann to compensate her for loss of consortium and loss of household services of
Mr. Spann. Included in the jury’s verdict were damages in the amount of $69,583.20 to
compensate Mr. Spann for past medical expenses. This figure represents the amount
reflected by unadjusted medical bills introduced into evidence over Henderson’s
objection.
The propriety of the admission of evidence of these unadjusted medical bills
remains an issue on appeal. The admitted medical bills did not reflect $54,379.56 in
adjustments and write-offs associated with worker’s compensation, evidence of which
Henderson unsuccessfully offered. Acknowledging, post-verdict, that the law only
allowed the Spanns to recover the amount of past medical expenses that were “actually
paid or incurred,” the trial court adjusted the award of past medical expenses to reflect
2
only the portion of the medical bills that were recoverable: $15,203.64. See TEX. CIV.
PRAC. & REM. CODE ANN. § 41.0105 (West 2008).1
Despite the trial court’s post-verdict reduction of damages for past medical
expenses, on appeal, Henderson challenges the trial court’s instructions to the jury
regarding the proper measure of damages. She also challenges the trial court’s
admission of unadjusted medical bills, its exclusion of adjusted medical expenses, and
the sufficiency of the evidence to support the jury’s awards of future medical expenses
and of losses of services and consortium. Because we will sustain Henderson’s second
and third issues, we will reverse and remand the matter to the trial court for new trial.
Admission of Unadjusted Medical Bills
We first address Henderson’s second and third issues, both of which relate to the
trial court’s evidentiary rulings. Henderson argues the trial court abused its discretion
by admitting evidence of the unadjusted medical bills and, likewise, abused its
discretion by excluding evidence of the adjusted medical expenses. Resolution of this
evidentiary issue turns on the interpretation and application of section 41.0105 and the
Texas Supreme Court’s opinion in Haygood, issued after Henderson and Spann filed
their initial briefs. See Haygood v. De Escabedo, 54 Tex. Sup. Ct. J. 1377, 2011 Tex.
LEXIS 514 (July 1, 2011).
1
Section 41.0105, in its entirety, provides as follows:
In addition to any other limitation under law, recovery of medical or health care
expenses incurred is limited to the amount actually paid or incurred by or on
behalf of the claimant.
Id. Hereinafter, we will refer to this provision simply as section 41.0105.
3
To most accurately apply Haygood, we must first visit the Tyler Court’s opinion in
De Escabedo v. Haygood, 283 S.W.3d 3 (Tex.App.—Tyler 2009), aff’d, 54 Tex. Sup. Ct.
J. 1377. In De Escabedo, the Tyler Court was asked to review a similar evidentiary
dispute relating to evidence of unadjusted medical bills. See id. at 5–6. De Escabedo
argued that the unadjusted medical bills were irrelevant to and, therefore, no evidence
of damages. Id. Ultimately, the Tyler Court agreed, concluding that, per section
41.0105, evidence of unadjusted medical bills was inadmissible evidence and,
therefore, there was no evidence to support the jury’s award of past medical expenses.
See id. at 7. The Tyler Court sustained De Escabedo’s legal sufficiency challenge, and
Haygood sought review from the Texas Supreme Court.
The Texas Supreme Court pointed out that intermediate appellate courts had
agreed that section 41.0105 limits recovery of past medical expenses to those
expenses actually paid or incurred.2 See Haygood, 2011 Tex. LEXIS 514, at *20. What
had remained unclear, until Haygood, was the effect of section 41.0105 on the
admissibility of evidence at trial. The Haygood court held that section 41.0105 “limits
recovery, and consequently the evidence at trial, to expenses that the provider has a
legal right to be paid.”3 Id. at *1–2. So, contrary to the Spanns’ position, section
2
The Texas Supreme Court explains that it, too, had previously held as such in
Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 412 (Tex.
2007). See Haygood, 2011 Tex. LEXIS 514, at *18–19. The Haygood court defined
“actually paid or incurred” as “expenses that have been or will be paid, and excludes the
difference between such amount and charges the service provider bills but has no right
to be paid.” See id. at *17.
3
The jury is still precluded from hearing evidence regarding who ultimately pays
to the provider these recoverable expenses. Traditionally, the common law collateral
source rule “precludes any reduction in a tortfeasor’s liability because of benefits
4
41.0105 does have evidentiary impact: “Since a claimant is not entitled to recover
medical charges that a provider is not entitled to be paid, evidence of such charges is
irrelevant to the issue of damages.” Id. at *21 (citing TEX. R. EVID. 402). Further, “any
relevance of such evidence is substantially outweighed by the confusion it is likely to
generate, and therefore the evidence [of unadjusted medical bills] must be excluded.”
Id. at *22 (citing TEX. R. EVID. 403).
Based on Haygood’s holdings, we conclude that the evidence at issue here–Mr.
Spann’s unadjusted medical bills–was irrelevant and inadmissible. See id. at *21–22.
Admitting such evidence and excluding evidence of the adjusted medical expenses was
an abuse of discretion. See id. We must now determine whether the error associated
with the trial court’s evidentiary rulings is reversible error.4 See Interstate Northborough
received by the plaintiff from someone else.” Id. at *10. Haygood’s holding that only the
adjusted medical expenses are admissible on the issue of damages does not run afoul
of the collateral source rule: “Consistent with our views in Daughters of Charity, we hold
that the common-law collateral source rule does not allow recovery as damages of
medical expenses a health care provider is not entitled to charge.” Id. at *15. Instead,
the collateral source rule still applies to the adjusted medical expenses; the jury cannot
know if plaintiff or another entity paid the adjusted, recoverable amounts. See id. at *26
(concluding that the jury should not be told that the adjusted recoverable amounts will
be covered in whole or in part by insurance).
4
We pause to note the distinction between the issue presented to the Tyler Court
in De Escabedo and the issue presented in the case to this Court. In De Escabedo and,
subsequently, in Haygood, the ultimate issue was legal sufficiency of the evidence
whereas, in the instant case, the issue is presented to us as an evidentiary issue. Prior
to affirming the Tyler Court’s determination of legal sufficiency, however, Haygood does
directly address the same evidentiary issue as is before us. That said, we follow
Haygood’s guidance in determining the propriety of the trial court’s evidentiary rulings,
but we must go on to examine any error in those rulings for harm. Because the issues
presented to the Tyler Court and this Court are slightly different, we note this distinction
only to illuminate the reason we, unlike the De Escabedo and the Haygood courts, must
analyze the particular error raised here for harm.
5
P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); Good v. Baker, 339 S.W.3d 260, 273
(Tex. App.—Texarkana 2011, pet. denied).
Harm Analysis and Post-Verdict Adjustment
A successful challenge to a trial court’s evidentiary rulings generally requires the
complaining party to demonstrate that the judgment turns on the particular evidence
excluded or admitted. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
From Haygood, we learn that only evidence of “recoverable” medical expenses–those
“actually paid or incurred”–was relevant to damages. See Haygood, 2011 Tex. LEXIS
514, at *25. Here, such evidence would have been the adjusted medical expenses that
were ultimately excluded from evidence in favor of the admitted unadjusted medical
bills, evidence of which should have been excluded as irrelevant to damages for past
medical expenses. See id. at *21. The admission of irrelevant evidence and exclusion
of relevant evidence, then, meant that the jury’s verdict was based on insufficient
evidence of damages for past medical expenses. See id. at *22.
Moreover, without evidentiary support in the record, the trial court’s judgment
based on that verdict, even though modified post-verdict, remains erroneous.
“Irrelevant evidence, even when admitted without objection, will not support a
judgment.” Porras v. Craig, 675 S.W.2d 503, 505 (Tex. 1984). It follows, then, that
when, as a consequence of the trial court’s evidentiary rulings, there is no evidence of
past medical expenses, a judgment awarding past medical damages is improper. See
TEX. R. APP. P. 44.1(a).
6
The Spanns contend that, even if section 41.0105 does have any evidentiary
impact and even if admission of the unadjusted medical bills was error, Henderson
cannot show harm because the trial court ultimately reduced the jury’s award of past
medical expenses to reflect the adjustments and write-offs. Based on principles in
Haygood, we disagree with their position that post-verdict adjustment can cure the harm
in admitting irrelevant evidence, excluding relevant evidence, and, ultimately, permitting
the jury’s verdict to be based on insufficient evidence of medical expenses “actually paid
or incurred.” We understand the Haygood court to reject the post-verdict adjustment
procedure used in the instant case.5 See Haygood, 2011 Tex. LEXIS 514, at *24–25
(citing Texarkana Mem. Hosp. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997), for
proposition that issues of medical expenses as related to plaintiff’s injuries must be
determined by jury). The Haygood court added that permitting the trial court to resolve
disputed fact issues relating to damages violates the constitutional right to trial by jury.
Id. at *25. Further, we note that the post-verdict adjustment method is inadequate to
account for or remedy any effect the inadmissible evidence of unadjusted past medical
expenses may have had on the jury’s assessment of non-economic damages. See id.
at *22.
With that, the trial court’s erroneous evidentiary rulings in conjunction with its
post-verdict adjustment of the amount of past medical expenses probably caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). As a result of the trial
5
Justice Lehrmann’s dissenting opinion, joined by Justice Medina, proposed that
the post-verdict adjustment procedure is an adequate mechanism to implement section
41.0105’s limitation. See Haygood, 2011 Tex. LEXIS 514, at *44 (Lehrmann, J.,
dissenting).
7
court’s evidentiary rulings, the judgment, even as adjusted, is based on what amounts
to no evidence, and the post-verdict adjustment itself serves as a deprivation of the
constitutional right to trial by jury. We conclude that the error in the trial court’s
evidentiary rulings was reversible error.
Based on Haygood’s principles, we conclude that the trial court abused its
discretion by admitting irrelevant evidence in the form of unadjusted medical expenses
and excluding relevant evidence in the form of adjusted medical bills demonstrating the
amounts “actually paid or incurred” by or on behalf of the Spanns. We conclude that the
erroneous admission of irrelevant evidence and the concurrent exclusion of relevant
evidence probably caused the rendition of an improper judgment. The effect of the trial
court’s evidentiary rulings was to leave before it only legally insufficient evidence to
support its judgment, and Haygood reaffirms the principle that it is the jury, not the trial
court, who should make the factual determinations relating to damages, a conclusion
which represents the Texas Supreme Court’s rejection of the post-verdict adjustment
method of implementing section 41.0105. Based on these conclusions, we sustain
Henderson’s second and third issues relating to the trial court’s evidentiary rulings. See
Haygood, 2011 Tex. LEXIS 514, at *25–26.
8
Conclusion
Having sustained Henderson’s second and third issues, we reverse the trial
court’s judgment and remand the cause to the trial court for new trial. See TEX. R. APP.
P. 43.2(d); 43.3.
Mackey K. Hancock
Justice
Quinn, C.J., concurring in part and dissenting in part.
Pirtle, J., concurring.
9
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NO. 07-08-0058-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 4, 2008
______________________________
CORRINE FRAIDE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17197-0704; HONORABLE ED SELF, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Corrine Fraide, pleaded guilty to the offense of driving while intoxicated
with a child under the age of 15 years and was assessed a term of confinement in the
State Jail Division of the Texas Department of Criminal Justice for one year and a fine of
$1,000 with the state jail time being probated. Appellant was placed on community
supervision for two years. Subsequently, the State filed a motion to revoke community
supervision alleging a number of violations of the appellant’s terms and conditions of
probation. Appellant pleaded “Not True” to the allegations contained in the State’s motion
to revoke community supervision. After hearing the evidence, the trial court found that
appellant had violated the terms and conditions of her community supervision and revoked
her probation and sentenced her to serve the original term of one year in a state jail facility.
This appeal followed. We affirm.
Appellant’s attorney has filed an Anders brief and a motion to withdraw. Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion
to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion,
the record reflects no reversible error upon which an appeal can be predicated. Id. at 744-
45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel
has candidly discussed why, under the controlling authorities, there is no error in the trial
court’s judgment. Additionally, counsel has certified that he has provided appellant a copy
of the Anders brief and motion to withdraw and appropriately advised appellant of his right
to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510
(Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se
response. Appellant has not filed a response.
By his Anders brief, counsel raises grounds that could possibly support an appeal,
but concludes the appeal is frivolous. We have reviewed these grounds and made an
independent review of the entire record to determine whether there are any arguable
grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346,
102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We
have found no such arguable grounds and agree with counsel that the appeal is frivolous.
2
Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s
judgment is affirmed.1
Mackey K. Hancock
Justice
Do not publish.
1
Counsel shall, within five days after this opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of appellant’s right to file a pro
se petition for discretionary review. See TEX . R. APP. P. 48.4.
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909 S.W.2d 717 (1995)
Charles Michael LEHR and Johanna Sue Chelgren, Appellants,
v.
Marilynn Mae COLLIER and Meredythe (Peggy) Mae Arnold, Co-Personal Representatives of the Estate of Julia E. Lehr, deceased, and Co-Trustees of the Julia E. Lehr Revocable Living Trust dated January 3, 1984, Respondents.
No. 19905.
Missouri Court of Appeals, Southern District, Division Two.
September 28, 1995.
Motion for Rehearing or Transfer Denied October 20, 1995.
*718 Gary D. Rappard, Kansas City, for appellant.
Richard D. Bender, Sherwood, Honecker & Bender, Springfield, for respondents.
SHRUM, Chief Judge.
Acting jointly, Charles Michael Lehr and Johanna Sue Chelgren[1] filed two petitions in their deceased grandmother's probate estate (Estate of Julia E. Lehr). By petition "A" they sought an order to remove Marilynn Mae Collier (Marilynn) and Meredythe Mae (Peggy) Arnold as co-personal representatives of Julia's estate.[2] By petition "B," they asked that Marilynn and Peggy be removed as co-trustees of Julia's inter vivos trust.[3]
The trial court dismissed petition "A" at the end of Petitioners' presentation of evidence. The court found that Petitioners were not devisees or legatees under Julia's will and, on that basis, ruled that Petitioners lacked standing to request removal of the personal representatives.
Regarding petition "B," the trial court dismissed it upon Respondents' motion filed at the conclusion of the case. The trial court relied upon extrinsic evidence that came in without objection, to conclude that Julia did not intend her grandson, Mike, to share in her estate. As to Sue, the trial court noted that it could not explain why Julia excluded her as a beneficiary of the trust "except that the overall treatment of grandchildren seemed to be consistent throughout the will and trust documents." Based on those findings, the trial court ruled that "Petitioners are not beneficiaries under the ... Trust
*719 Agreement ... and, therefore, lack standing to request removal of the co-trustees."
Petitioners appeal from the orders dismissing petitions "A" and "B."
Under the applicable standard of review, we must affirm the judgment if it is supported by substantial evidence, if it is not against the weight of the evidence, and if it is not based on an erroneous declaration or application of law. Schupbach v. Schupbach, 760 S.W.2d 918, 920 (Mo.App.1988) (citing Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976)).
We find that the trial court misapplied or erroneously declared the law in dismissing petitions "A" and "B." We reverse and remand.
FACTS
On January 3, 1984, Julia executed a will and an inter vivos trust prepared by her lawyer.
The diagram below lists Julia's children, living and dead, as of January 3, 1984. Also, it lists Petitionersbut not other grandchildrenbecause Petitioners were the only descendants of Julia's two deceased children.
Julia Lehr
(Testator and Trust Grantor)
(Children of Julia Lehr)
Eddie Lehr Frankie Charles Lawrence Meredythe Arnold Marilynn Collier
(deceased Lehr Lehr, Jr. (co-trustee/ (co-trustee/
in 1950s. (deceased 1976) co-personal co-personal
No children) representative/ representative/
Respondent) Respondent)
(Children of Charles Lehr, Jr.)
Johanna Sue (Lehr) Chelgren Charles Michael "Mike" Lehr
(Petitioner) (Petitioner)
Julia died on July 26, 1993. Petitioners, Respondents, and Frankie survived Julia.
In her will, Julia declared that she was single and "I have three ... children, namely, [PEGGY],[4] FRANKIE ... and MARILYNN...." She made no mention of deceased children in her will nor did she mention grandchildren, either by name or as a class. In Article III, Julia devised and bequeathed "all of my tangible personal property to my three (3) children, [PEGGY], FRANKIE ... and MARILYNN...." She defined "tangible personal property" as "automobiles, jewelry, collections, clothing, purely personal effects, chinaware, silverware, books, pictures, antiques, paintings, furniture and household goods, and furnishings of every kind and description, and including any insurance thereon." Article IV of Julia's will contained a pour-over provision which funded her contemporaneously-created inter vivos trust with the residuary estate. Article V named Peggy and Marilynn as co-personal representatives.
As to Julia's trust instrument (exhibit 9), in pertinent part it read:
"ARTICLE I
....
C. After the death of the Grantor, and after the payment of ... obligations [as described] ..., the successor Co-Trustees shall then divide all of the rest, residue and remainder of the trust estate into such number of equal shares so as to provide for one equal share for the descendants, collectively. *720 of each of the Grantor's children who may then be deceased, which shares shall be divided per stirpes and not per capita. The successor Co-Trustees shall then ... pay over and distribute the same in the following manner:
1. In the event that a share is set aside for the benefit of [Peggy], the Co-Trustees shall pay over and distribute, said share of trust to ... [Peggy], and the trust estate shall thereupon terminate with respect to said share.
2. In the event that a share ... is set aside for the benefit of Frankie ..., the Co-Trustees shall pay over and distribute, said share of trust to the said Frankie ..., and the trust estate shall thereupon terminate with respect to said share.
3. In the event that a share ... is set aside for the benefit of Marilynn ..., the Co-Trustees shall pay over and distribute, said share of trust to the said... [Marilynn], and the trust estate shall thereupon terminate with respect to said share.
4. Notwithstanding anything to the contrary herein contained [sic] in the event that any share ... shall be distributed to any beneficiary who has not as yet attained ... majority ..., the Co-Trustees shall nevertheless continue to retain said share of trust and shall pay such portion of the principal and/or income therefrom to or for the benefit of such beneficiary for the support, maintenance, education and medical care of said beneficiary.... At such time that each beneficiary attains the age of majority... the Co-Trustees shall pay over and distribute, free of trust, said share to such beneficiary, and the trust estate shall thereupon terminate with respect to said share." (Emphasis ours.)
In petition "B," Petitioners relied upon the emphasized language in paragraph C and its subparagraph 4 to allege that they were the sole beneficiaries of Julia's trust. Continuing, they alleged that after Julia's death, numerous requests by them to Respondents regarding the trust went unanswered. Additionally, they alleged that Respondents breached numerous of their duties as cotrustees. Based on those allegations, Petitioners sought an order removing Respondents as co-trustees as well as other relief.
In his opening statement, Petitioners' lawyer told the trial court that Petitioners would offer evidence about who Julia intended to designate as beneficiaries of her trust. Without expressly conceding that ambiguity existed in Julia's trust, counsel told the court that Mike and Sue's position was that "the inter vivos trust is intended to be split four ways" and that they should receive their father's share.
Petitioners then offered evidence as their lawyer had outlined in his opening statement. Specifically, Mike testified that in 1984, Julia had assured him that he and Sue would receive their father's share of the trust estate. Witnesses Frank and Eva Pezza testified about conversations with Julia in which Julia stated that Mike and Sue would get their father's share of her estate through her will or trust. Additionally, Petitioners placed in evidence a draft copy of Julia's trust (exhibit 10). It contained additional language in Article I, paragraph C that was not in the trust instrument Julia signed. The pertinent part of exhibit 10 with the additional language underlined reads as follows:
"C. After the death of the Grantor, ... the successor Co-Trustees shall then divide all of the rest, residue and remainder of the trust estate into such number of equal shares so as to provide for one equal share for each child of the Grantor who is then living, and one equal share for the descendants, collectively, of each of the Grantor's children who may then be deceased, which shares shall be divided per stirpes and not per capita. (Emphasis ours.)
Respondents called Catherine Dowling as a witness. Her testimony included the following. She worked for Julia's lawyer when Julia's will and trust were prepared. At the lawyer's direction, Dowling "drew" or "typed out" Julia's will and also the final signed copy of Julia's trust document and a draft copy of the trust. Dowling was never told to alter the language in the final version of Julia's trust instrument from what was in the rough *721 draft. The omission of the language "each child of the grantor who is then living, and" from exhibit 9 resulted from "an error on [her] part." Dowling testified that she did not have a word processor; hence, her procedure was to type out a draft copy of every instrument. Dowling testified that Julia had stated in her presence that she wanted her children to be "taken care of," there were to be no other beneficiaries, and that she would "not leave [her grandchildren] anything."
Judith Taylor, Respondent Peggy's daughter, also testified about conversations in which Julia stated that the only beneficiaries of her estate would be her children: Marilynn, Peggy, and Frankie; that Mike already had his inheritance; and that Mike and Sue would not receive a share. According to Taylor, Julia made these statements in their private conversations and also on several occasions when Julia talked to her lawyer in Taylor's presence.
In paragraph 9 of its "Findings and Order," the trial court found that Julia's trust contained "a scrivener's error at Article I Paragraph C." Also in paragraph 9, the trial court found that "[a]t trial, counsel and the evidence were in agreement that the correct text is that which appears in the same paragraph of Petitioners' exhibit 10." Based on those findings, the trial court reformed the trust to correct the scrivener's error via this order:
"It is the order judgment and decree of the Court that the Revocable Living Trust of Julia E. Lehr dated January 3, 1984, is amended at Article I, Paragraph C per the Court's finding in paragraph 9 herein."
Additionally, the trial court observed that evidence in the record supported "the finding that Julia ... intended her grandson ... [Mike] to not share in her estate." The court also found that it was "at a loss to explain why ... Sue ... did not share in the trust estate except that the overall treatment of grandchildren seemed to be consistent throughout the will and trust documents." The trial judge concluded that Petitioners were not beneficiaries under Julia's trust and, therefore, lacked standing to request removal of Respondents as co-trustees. Accordingly, the trial court dismissed petition "B."
DISCUSSION AND DECISION
By Points II, III and IV, Petitioners present four questions.
First, was Julia's unreformed trust instrument ambiguous? We answer, "Yes."
Second, did the trial court err in reforming the trust document? We answer, "No."
Third, did the reformed trust instrument contain an ambiguity? We answer, "No."
Fourth, did the trial court misapply the law when it used extrinsic evidence to reach the conclusion that Julia did not intend Petitioners to be beneficiaries of her trust? We answer, "Yes."
"`Ambiguity' means `duplicity, indistinctness or uncertainty of meaning of an expression used in a written instrument.'" Schupbach, 760 S.W.2d at 923[2]. A trust instrument is ambiguous if its provisions, when taken together, evoke a question as to who the real parties and beneficiaries are. See In re Estate of Lamy, 679 S.W.2d 288, 290[2] (Mo. banc 1984).
An ambiguity in a trust instrument may be either patent or latent. Schupbach, 760 S.W.2d at 923. "A patent ambiguity is one on the face of the instrument, whereas a latent ambiguity occurs where the instrument itself is unambiguous on its face but becomes open to more than one interpretation when applied to the factual situation in issue." Boatmen's Union National Bank v. Welton, 640 S.W.2d 497, 502[3] (Mo.App. 1982).
A reading of Julia's trust immediately evokes a question about who the real parties and beneficiaries are; hence, it is ambiguous. See Lamy, 679 S.W.2d at 290[3]. Specifically, we refer to the conflict between Article I, paragraph C and its subparagraphs 1-3. When read in isolation, paragraph C directs the co-trustees to "divide ... the ... remainder of the trust estate into such number of equal shares so as to provide for one equal share for the descendants, collectively, of each of [Julia's] children who may then be deceased, which shares shall be divided per *722 stirpes and not per capita." As written, paragraph C makes no provision for "an equal share" of the trust estate for Julia's children either by name or as a class, but provides "an equal share" for a different class of beneficiaries, i.e., "descendants ... of each of [Julia's] children who may then be deceased...." Yet, inexplicably, subparagraphs 1-3 of paragraph C provide for contingent distributions of the trust estate to Julia's children, Peggy, Frankie, and Marilynn. The provisions cannot be reconciled and create an ambiguity in the instrument. We reject Petitioners' arguments to the contrary.
The problems presented by Julia's trust instrument are patent, that is, they are apparent to a person who reads the entire document with care. See Marvin F. Hall Trust v. Hall, 810 S.W.2d 710, 714 (Mo.App. 1991). In such a case, the court must read the instrument "`as near as may be from [the grantor's] standpoint, giving effect, if possible, to every clause and portion of it, and to this end, if need be, words may be supplied and omitted....'" Id. (quoting Grace v. Perry, 197 Mo. 550, 95 S.W. 875, 877 (1906)). When a trust instrument contains a patent ambiguity, it is permissible to resort to extrinsic evidence of "objective, operative facts concerning events in the [Grantor's] life... in order ... to give precise and explicit meaning to the language used in the instrument." Schupbach, 760 S.W.2d at 923[4]. However, where the ambiguity is patent, evidence of a grantor's declarations of intent is generally inadmissible, whether made before, at the time of, or after execution. Hall, 810 S.W.2d at 715[6] (citing Breckner v. Prestwood, 600 S.W.2d 52, 56[5] (Mo.App.1980)).
Disregarding evidence about Julia's declarations of intent, there was substantial evidence via Catherine Dowling's testimony that a circumstance surrounding Julia's trust was a scrivener's error. Contrary to Petitioners' contentions in Points II and III, the trial court did not err when it reformed Julia's trust instrument to add the omitted language. By amending paragraph C of Article I as the trial court did, the conflict between paragraph C and its subparagraphs 1-3 was reconciled. We affirm that part of the trial court's judgment that reformed paragraph C, Article I of Julia's trust.
Our conclusion that the trial court correctly reformed Julia's trust instrument does not end our analysis. In their fourth point, Petitioners assert that the trial court erred when it construed the reformed trust as benefiting only "living children" or their descendants, thus eliminating Petitioners as beneficiaries. They contend that whether reformed or not, Julia's trust instrument unambiguously identifies them as beneficiaries; hence, they had standing to seek Respondents' removal as co-trustees. In essence, Petitioners' position is that the language added to the trust instrument by the trial court served merely to reduce Petitioners' share, not eliminate them as beneficiaries.
Contrarily, Respondents contend that Julia's trust instrument as amended contains an ambiguity, latent in nature. It is often said that there are two types of latent ambiguities:
"One type explicitly describes a person or thing, and two or more persons or things fit exactly the description or condition ... [, and] [t]he other type exists when no person or thing fits the description or condition..., but two or more persons or things do fit the description or condition, in part, and imperfectly."
Breckner, 600 S.W.2d at 55[2].
Here, Respondents seem to be contending that the former type of latent ambiguity exists. They assert that "[t]he latent ambiguity in Julia's trust is whether descendants of Julia's `children' has reference solely to the three children she identified in her Will, or has reference to a dictionary or statutory meaning." In developing that argument, Respondents rely on the oft-stated principle that a will and trust must be construed together when they form part of the same estate plan. Commerce Trust Company v. Starling, 393 S.W.2d 489, 494[6] (Mo.1965); Schupbach, 760 S.W.2d at 924[9]. Applying that rule, they point to the will phrase, "I have three (3) children, namely ... PEGGY..., FRANKIE ... and MARILYNN..." and also the fact that in her will, Julia made no mention of her deceased children or their *723 descendants. From that, Respondents argue that one can readily ascertain that Julia intended to define "children" as Peggy, Frankie, and Marilynn. Continuing, Respondents assert that if that definition of "children," i.e., Peggy, Frankie, and Marilynn, was what Julia intended when she referred to "Grantor's children" in paragraph "C" of the trust, it is then impossible to ascertain, with any degree of certainty, what her intent was regarding beneficiaries. Consequently, they argue that a latent ambiguity exists which needed extrinsic evidence to resolve. We disagree.
Missouri courts generally use the same rules for construing both trusts and wills. Buder v. United States, 7 F.3d 1382, 1385[3] (8th Cir.1993) (citing Central Trust Bank v. Stout, 579 S.W.2d 825, 827[2] (Mo. App.1979)). When, as here, the trust and will form parts of the same plan, the documents must be construed together. Commerce Trust, 393 S.W.2d at 494[6]. The paramount rule of construction in determining the meaning of such instruments is that the grantor/testator's intent is controlling. Hollis v. Estate of Hollis, 845 S.W.2d 156, 158 (Mo.App.1993); Hall, 810 S.W.2d at 713-14[1]. This intent must be gathered from the whole of both documents and not single words, passages, or sentences. Hollis, 845 S.W.2d at 158[4]. In ascertaining this intent, courts must give the words used in the will and trust their usual, ordinary and natural meaning unless there is something in the instruments to deflect from that meaning. See Commerce Trust, 393 S.W.2d at 494[3]. We must construe the instruments to avoid, if possible, repugnancy in their various provisions. Id.
Whether an ambiguity exists in Julia's estate documents is a question of law and we are free to make our own determination as to the meaning of Julia's will and trust. In re Estate of Beare, 880 S.W.2d 562, 565[1] (Mo.App.1993); Boatmen's Trust Company v. Sugden, 827 S.W.2d 249, 254[9] (Mo.App.1992). We review declarations of law de novo. Beare, 880 S.W.2d at 565[2].
When we construe the language and provisions of Julia's will and reformed trust according to the above rules, and in light of the attending circumstances, we find no ambiguity. The declaration by Julia in her will that, "I have three (3) children," is in the present tense. When such words are given their usual, natural, and ordinary meaning as understood by a reasonable person, they simply express the fact that Julia had three living children when she executed her estate plan documents. Under the circumstances, the absence from Julia's will of any mention of her deceased children is not something that deflects from the usual, ordinary, and natural meaning of the words "Grantor's children" in her reformed trust as meaning all her children, living or dead. We reject Respondents' argument to the contrary.
Moreover, Julia disposed of her personal possessions via her will and all her other estate by her trust. We are not persuaded that Julia intended to attach a special and restrictive definitional meaning to "children" based on the fact that she gave her personal possessions to her three living children in her will. Julia's bequest to her three living children of her personal possessions does not depart from the meaning we have ascribed to "Grantor's children" in construing the trust. We find no latent ambiguity in the reformed trust instrument.
It is elementary that "[a] trust can be created in favor of the members of a class of persons where the class is definite enough so that its membership can be ascertained." II AUSTIN W. SCOTT AND WILLIAM F. FRATCHER, SCOTT ON TRUSTS § 120, at 197 (4th ed. 1987). See also Adams v. Simpson, 358 Mo. 168, 213 S.W.2d 908, 912[5] (1948) (holding that persons within class of beneficiaries designated in will are deemed to have been intentionally included by testator).
Here, Julia's trust document, both before and after reformation, created a trust for a class described as "descendants, collectively, of each of the Grantor's children who [were] ... deceased" when Julia died. That was a class "definite enough so that its membership [could] be ascertained." When Julia created the trust, Petitioners were its only members since two of Julia's children were then deceased: Eddie, who died without issue, and Charles Jr., Petitioners' father. As *724 no other of Julia's children died after the trust was created, Petitioners were ultimately the only members of the class. Julia's trust, both before and after reformation, unambiguously identified Petitioners as beneficiaries.
In finding that Petitioners were not beneficiaries under the reformed trust, the trial court relied upon testimony of Julia's declarations about her intent made before, at the time of, and subsequent to the execution of her estate documents. By relying on this type of extrinsic evidence, the trial court gave no effect to the clause in Julia's will that "provide[d] for one equal share for the descendants, collectively, of each of the Grantor's children who may then be deceased, which shares shall be divided per stirpes and not per capita." In both respects, the trial court erred. Extrinsic evidence of a grantor's statements of intent is only admissible to resolve a latent ambiguity. Schupbach, 760 S.W.2d at 923[6]. We have found no latent ambiguity within the trust instrument. Thus, there is no support for the trial court's use of evidence from beyond the four corners of the trust instrument to construe its meaning.
In Boatmen's, 640 S.W.2d at 502, we explained why parol evidence of a grantor's declarations of intent may not be used to contradict the express terms of an instrument:
"Parol evidence concerning a testator's or grantor's declarations concerning his intention, whether made before, during or after execution of will or trust, is incompetent upon the question of construction to be given to the language used in the instrument. The reason for this is that the intention is to be gleaned from the instrument itself and considered in the light of the extrinsic circumstance where the language is ambiguous. If parol evidence of oral declarations by a testator or grantor was admitted, not only would the result be to subject the question of his intention to evidence of declarations which he, being dead, could not refute, but it would also in effect violate the statutes requiring wills and trusts to be made in writing."
Id.
The well-established general rule that parol evidence cannot be used to vary or contradict the terms of an unambiguous document is a rule of law and not of evidence. Central Production Credit Ass'n v. Reed, 805 S.W.2d 300, 302[6] (Mo.App.1991). Evidence offered in violation of such rule must be ignored, even if the parol evidence has been received without objection. Glass v. Mancuso, 444 S.W.2d 467, 475[1] (Mo.1969).
Based on our conclusion that the trust instrument as reformed was free of ambiguity, it follows that the parol testimony concerning Julia's declarations about her intent was improperly received and should have been ignored by the trial court. See Glass, 444 S.W.2d at 475. Under the circumstances, the decision about whether Petitioners are beneficiaries of the trust must be based solely on the language of the reformed trust. See Central Production, 805 S.W.2d at 302. Effect must be given to the clause, present in both the executed and reformed trust, which "provide[d] for one equal share for the descendants, collectively, of each of the Grantor's children who may then be deceased, which shares shall be divided per stirpes and not per capita." Since Petitioners are, in fact, within this class of beneficiaries, the trial court could not, as a matter of law, have found that they are not beneficiaries under the trust and that they lack standing to request removal of the co-trustees. We find that they are beneficiaries under the trust as reformed by the trial court; consequently, they have standing to request removal of the co-trustees.
In their fifth point, Petitioners contend that the trial court erred when it dismissed petition "A" in which they sought an order removing Respondents as co-personal representatives of Julia's probate estate. Of the various positions taken by Petitioners on this point, the following has merit.
Section 473.140, RSMo 1994, provides for the removal of a personal representative by either "the court, upon its own motion, or upon complaint in writing made by any person interested supported by affidavit...." Id. (emphasis ours). Under the *725 probate code,[5] the term "`[i]nterested persons' mean[s] heirs, ... or any others having a property right or claim against the estate of a decedent being administered...." § 472.010(15). At the very least, and curiously, among the trial court's findings, Petitioners are heirs of the testator, Julia E. Lehr. This status qualifies them as having standing as "interested persons" to request the removal of Respondents as co-personal representatives under § 473.140. The trial court erred when it sustained Respondents' motion to dismiss petition "A" on the grounds that Petitioners were not devisees or legatees under Julia's will and therefore lacked standing.
We affirm that part of the judgment that reformed Julia's trust. We reverse that part of the judgment that dismissed petitions "A" and "B" based on the finding that Petitioners lacked standing. As the trial court never reached the merits of petitions "A" and "B," we remand for further proceedings.[6]
PREWITT, P.J., and CROW, J., concur.
NOTES
[1] Without intending disrespect, herein we refer to Charles Michael Lehr as "Mike," and Johanna Sue Chelgren as "Sue." Collectively, we refer to them as "Petitioners."
[2] Again, without intending disrespect, we refer to Petitioners' late grandmother, Julia Lehr, as "Julia." We refer to Marilynn Mae Collier and Meredythe (Peggy) Mae Arnold individually as "Marilynn" and "Peggy." Collectively, we refer to them as "Respondents."
[3] We have designated the petitions as "A" and "B" for the sake of brevity and ease of reference.
[4] In the January 4, 1984, instruments, Peggy's name appears as "Meredythe (Peggy) Mae Heckendorn." An amendment to Julia's trust on January 14, 1986, reads: "The said Meredythe Mae Heckendorn and the said Meredythe M. Arnold are one and the same person."
[5] As defined by § 472.010(5), RSMo 1994, "'[c]ode' or `probate code' means chapters 472, 473, 474 and 475, RSMo[.]"
[6] Because we find Petitioners' contentions in Points IV and V have merit, there is no need to address their Points I, VI and VII.
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909 S.W.2d 255 (1995)
Gregory O'Neal FRAZIER, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-94-00198-CR.
Court of Appeals of Texas, Houston (14th Dist.).
October 12, 1995.
*256 Richard L. Manske, El Campo, for appellant.
W.C. Kirkendall, Seguin, for appellee.
Before HUDSON and EDELMAN, JJ., and ELLIS[1], J. (Assigned).
OPINION
EDELMAN, Justice.
Gregory O'Neal Frazier appeals his conviction for two counts of delivery of a controlled substance on the ground that the trial court erred in denying his Batson challenge. We affirm.
Following voir dire at appellant's trial, the State peremptorily struck both black members of the jury panel, Ms. Hurd and Ms. Banks. Before the jury was empaneled, appellant, who is black, moved to have the court determine if the State's strikes were impermissibly based on race. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). After conducting a Batson hearing, the court ruled that the State's strikes were not based on race. In his sole point of error, appellant claims that the trial court erred in overruling his Batson challenge.
The Equal Protection Clause of the United States Constitution prohibits a prosecutor from using peremptory strikes to exclude otherwise qualified and unbiased persons from a jury solely by reason of their race. Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 1370, 113 L. Ed. 2d 411 (1991). Racial discrimination in the selection of jurors is prohibited because it casts doubt on the integrity of the judicial process, and places the fairness of the criminal proceeding in doubt. Id. at 409, 111 S. Ct. at 1369-70.
To raise this equal protection claim, the defendant must first make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Hernandez v. New York, 500 U.S. 352, 359-60, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991). Once a movant makes a prima facie case, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id.
In this context, a race-neutral explanation simply means one based on something other than the race of the juror. Id. It must relate to the particular case to be tried, but need not rise to the level justifying exercise of a challenge for cause. Batson, 476 U.S. at 96-97, 106 S. Ct. at 1723. Moreover, the explanation need not be persuasive, or even plausible. Purkett v. Elem., ___ U.S. ___, ___, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995). The issue is the facial validity of the prosecutor's explanation. Id. Unless a discriminatory intent is inherent in that explanation, the reason offered will be deemed race neutral. Id.
Once a race-neutral reason is given, the trial court must determine whether the defendant has carried his burden of proving *257 purposeful discrimination. Hernandez, 500 U.S. at 359-60, 111 S. Ct. at 1866. There will seldom be much evidence bearing on that issue, and the best evidence will often be the demeanor of the attorney who exercises the challenge. Id. at 364-66, 111 S. Ct. at 1869. Factors the trial court may consider to determine whether the prosecutor's explanation for a peremptory challenge is merely a pretext include:
(1) the reason given is not related to the facts of the case;
(2) there was a lack of questioning or meaningful questions to the challenged juror;
(3) disparate treatment, i.e., persons with the same or similar characteristics as the challenged juror were not struck;
(4) disparate examination of venire members, i.e., questioning a challenged juror to evoke a certain response without asking the same question of other panel members; and
(5) an explanation based on a group bias where the trait is not shown to apply to the challenged juror specifically.
Whitsey v. State, 796 S.W.2d 707, 713-14 (Tex.Crim.App.1989).
Since the trial judge's finding turns largely on an evaluation of credibility, a reviewing court should ordinarily give those findings great deference. Hernandez, 500 U.S. at 364-66, 111 S. Ct. at 1869. A trial court's finding on the issue of discriminatory intent should not be overturned unless its determination is clearly erroneous. Id. at 368-69, 111 S. Ct. at 1871. Where there are two permissible views of the evidence, the trial court's choice between them cannot be clearly erroneous. Hernandez, 500 U.S. at 368-71, 111 S. Ct. at 1871-72.
In the case before us, Mr. Follis, the prosecutor, stated he struck Ms. Hurd because she was employed by Richmond State School and was in charge of duties that essentially made her a social worker. The prosecutor explained that in his past experiences, employees of that school and other people engaged in that type of work tended to be too lenient on defendants.[2] On its face, this explanation, although stereotypical, was race-neutral.
Appellant argues that the prosecutor's reason was a pretext because it was not based on anything Ms. Hurd said or did, but on a perception of other employees of that facility. Appellant contends that the prosecutor thus "violated" two of the Whitsey factors by not asking meaningful questions of Ms. Hurd,[3]*258 and by striking her based on a group bias which was not shown to apply to her specifically. Appellant asserts that the presence of such Whitsey factors tends to show that the State's reasons are not supported by the record or are an impermissible pretext.
Appellant is correct that the presence of Whitsey factors tends to show pretext. Indeed, the failure to show how a bias applies directly to a venireperson "will weigh heavily against the legitimacy of any race-neutral explanation." Keeton v. State, 749 S.W.2d 861, 866 (Tex.Crim.App.1988). However, the presence of Whitsey factors does not establish conclusively that the stated reasons were a pretext. The State may base peremptory challenges on a prosecutor's legitimate hunches and past experiences so long as racial discrimination is not the motive. Id. at 865.
In several cases, group traits not shown to apply directly to stricken jurors have nevertheless been held to be sufficient racially-neutral reasons and not pretext. In Tompkins, for example, the court upheld a prosecutor's strike against a black postal employee where the prosecutor had not had "very good luck with postal employees" even though the prosecutor did not elaborate on her evident bias against such employees. 774 S.W.2d at 205. See also Emerson v. State, 851 S.W.2d 269, 272 (Tex.Crim.App. 1993) (upholding a prosecutor's strike of a nurse on the theory that a nurse might recommend to other jurors that medical testimony should be introduced in a sexual assault trial); Silva v. State, 800 S.W.2d 912, 915 (Tex.Civ.App.-San Antonio 1990, no writ) (upholding a prosecutor's strikes based on the theory that unemployed or younger people are less likely to be prosecution-minded); York v. State, 764 S.W.2d 328, 331 (Tex. App.-Houston [1st Dist.] 1988, writ ref'd) (upholding a strike based on the prosecutor's hunch that social workers were not the type of jurors a prosecutor wanted and a strike of a truck driver based on the prosecutor's personal experiences with truck drivers).
Based on these cases, we cannot say that a trial court's denial of a Batson challenge is clearly erroneous solely because a prosecutor struck a venireperson for a group bias not shown to apply directly to the stricken juror. Instead, the trial court must make a credibility determination from all the facts and circumstances of the voir dire.
In this case, there was no evidence that there were other social workers who were not struck,[4] that black venire members were otherwise treated differently than other panel members,[5] or that black members were asked questions not asked of the other venire members. Moreover, after the prosecutor offered his reasons for the peremptory strikes, the court offered appellant's trial counsel an opportunity to cross-examine the prosecutor, but he declined.
Had he instead elected to do so, he might, for example, have asked how many cases the prosecutor had actually tried where school workers or social workers were jurors, how they voted in those cases, and the extent to which post-trial interviews indicated that the philosophy he attributed to the class actually existed and had any effect on their votes. With such questioning, he might have been able to impeach the prosecutor's credibility *259 and convince the trial judge (or appeals court) that the prosecutor's reasons were a pretext.[6]
As the case stands, however, we are without a sufficient basis to find that the trial court's decision was clearly erroneous. Accordingly, we affirm the judgment of the trial court.
NOTES
[1] Former Justice George T. Ellis sitting by assignment.
[2] The record from the Batson hearing, reads as follows:
MR. FOLLIS: The juror, Joyce Hurd, according to her information form, is a program manager for the Richmond State School and that caused me to question her about her duties. She testified that the programs that she manages had to do with personal care of the persons who are housed at Richmond State School.
In previous life, I was an Assistant District Attorney in Fort Bend County were Richmond State School is and I know Richmond State School to be an institution for persons who suffer from mental handicaps and disabilities of some sort.
During my tenure as Assistant District Attorney in Fort Bend County I had occasion to have persons on jury duty several times from Richmond State School.
Basically Ms. Hurd, according to her testimony, is a social worker and performs duties as such at Richmond State School and my experience has been that persons who engage in that sort of work, however laudable their work may be and it certainly is, are not preferable State's jurors because they tend to find the defendants to be not operating under their own influences but other influences and factors beyond their control and things of that nature that require people such as Ms. Hurd to give them help and care and that is not the kind of juror I would want. I would want a juor (sic) who would believe that a person is responsible for their own conduct and responsible for their own actions and my experience has been, specifically with persons from Richmond State Schcol(sic), that is not(sic) the belief of those persons. And it is for that reason and that reason solely that I struck Ms. Hurd, not withstanding that she is a member of a minority race.
[3] During the voir dire the prosecutor's only questioning of Ms. Hurd was as follows:
MR. FOLLIS: And what are your duties
JUROR: I am a program manager. I monitor everything to make sure they are
MR. FOLLIS: What kind of program, like treatment care?
JUROR: It is like domestic care, personal care, laundry, and types of programs like that; interview programs; in relation to all programs.
MR. FOLLIS: Are you actually involved in the care yourself or have you been in your career?
JUROR: Yes.
MR. FOLLIS: Thank you, ma'am.
The prosecutor then, also briefly, asked other jurors about their kind of work and whether anyone had any questions. After the State's conclusion, appellant's counsel then began his voir dire. Appellant's counsel only asked Ms. Hurd the following:
MR. MORRIS: .... Ms. Hurd
JUROR: Yes.
MR. MORRIS: Are you still working at the Richmond State School?
JUROR: Yes.
[4] In Emerson v. State, 851 S.W.2d 269 (Tex.Crim. App.1993), not only was the group trait not shown to apply directly to the struck juror, but the juror's occupation was not even established in the record and other jurors who shared that characteristic were not struck. Id. at 272, 274.
[5] At the Batson hearing, the prosecutor gave several reasons for striking Ms. Banks including that she knew appellant, that she felt uncomfortable convicting someone based on someone else's word, and that she would have a problem with testimony from a paid informant. Appellant has not challenged the striking of Ms. Banks or asserted that the striking of both black panel members was based on a pattern of discriminatory intent. See Batson, 476 U.S. at 96-97, 106 S. Ct. at 1723.
[6] Anticipating the possibility of a Batson challenge, appellant's trial counsel might have also attempted to voir dire the black jury panel members to establish a lack of bias.
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476 S.W.2d 811 (1972)
Marvin Jasper LAIRD, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5657.
Supreme Court of Arkansas.
February 28, 1972.
Kenneth C. Coffelt, Little Rock, for appellant.
Ray Thornton, Atty. Gen., Gene O'Daniel, Asst. Atty. Gen., Little Rock, for appellee.
*812 HARRIS, Chief Justice.
Appellant, Marvin Jasper Laird, was charged by information with two separate and distinct felonies, the first, Possessing Stolen Property, referring to a 1964 GMC truck belonging to Glen Crumblis, and a second charge, Possessing Stolen Property, referring to a Massey-Ferguson tractor belonging to Hubert Pickett. Counsel for appellant, just before the trial commenced, announced that he was ready to go to trial on either charge, but he strenuously objected to being tried on both charges at the same time. The court overruled the objection and the case proceeded to trial, the jury finding Laird guilty on each charge, and fixing his sentence at one year's confinement on each charge in the Department of Corrections. The court, in sentencing the defendant, ordered that the sentences be served concurrently. From the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in requiring appellant to go to trial on both of these charges at the same time over his objections, and further, certain instructions are complained about which will also be discussed.
We agree that the court erred in holding that the appellant should be tried on both charges at the same time over his objections. Originally, this court held that to try two charges together was error, even though the defendant consented; McClellan v. The State, 32 Ark. 609. In The State v. Jourdan, 32 Ark. 203, an opinion by Chief Justice English, it was pointed out that two larcenies were charged in the same indictment, but that this could not be done, Section 1783 of Gantt's Digest being cited. The wording of this statute is identical with our present statute, Ark.Stat.Ann. § 43-1009 (Repl. 1964), which provides:
"An indictment, except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes, and by different means, the indictment may allege the modes and means in the alternative."
The "next section" referred to in the opinion (Section 1784 of Gantt's Digest) lists various offenses which may be charged in one indictment but several charges of larceny are not permitted. Likewise, in our present statute, Ark.Stat. Ann. § 43-1010 (Repl. 1964), a number of offenses are listed which may be included in one indictment, but again there is no authorization for several charges of that offense in the same indictment.
In cases subsequent to McClellan and Jourdan, this court held that several charges could be consolidated if the defendant did not object. Silvie v. State, 117 Ark. 108, 173 S.W. 857; Setzer v. State, 110 Ark. 226, 161 S.W. 190.
Also, in the latter case, it was pointed out that there are some exceptions to the prohibition against offering evidence of more than one crime where, for instance, the evidence is offered to show pursuit of a common purpose and a conspiracy; of course, where several criminal acts are committed as part of a single offense, such acts may be included in the indictment or information. In Ragar v. State, 180 Ark. 1131, 24 S.W.2d 334, Ragar was charged with three counts of assault with intent to kill, the charge alleging that he assaulted three different persons by firing a shotgun through a closed door, the blast having injured three people but only one conviction was sought. As previously pointed out, § 43-1010 permits the joinder of certain offenses enumerated in that section.
The present charges are based upon Ark.Stat.Ann. § 41-3938 (Repl. 1964), this statute being enacted in 1955, and dealing with the possession of stolen goods. As far as that particular offense is concerned, no authority is given in this, or any other statute, to consolidate charges filed in more than one information, or to charge more than one separate offense in an information. Of course, the charge (of the *813 possession of the truck and the tractor) would not constitute error within itself if only one offense was being charged; rather the error occurred when Laird was tried for two offenses, and two penalties were given.
We also agree that error was committed by the failure to give instructions that were tendered. The court's instruction # 3 referred to circumstantial evidence, and reads as follows:
"A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they say, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case. Any fact in the case, and any element of the crimes charged, may be proved by either kind or both kinds of evidence."
This instruction was correct, but it did not go as far as appellant desired. He offered two instructions which were proper instructions, explaining to the jury that the circumstances must be consistent with the guilt of the defendant and further that such circumstances must be inconsistent with any reasonable conclusion[1] other than the guilt of the defendant. One of these should have been given.
Complaint is also made that the court's instruction on reasonable doubt was erroneous. Pertinent portions read as follows:
"A reasonable doubt is defined to you as being a real, solid and substantial doubt. The kind of doubt that would cause you to halt or hesitate in making a decision affecting some important issue in your own life. It is not necessary that you actually know the defendant to be guilty, because to actually know he is guilty would involve your having actually been involved in the alleged crimes. Nor is reasonable doubt a possible or imaginary doubt, because everything relating to human affairs is susceptible of some imaginary doubt."
We probably would not reverse solely because of the language "solid and substantial doubt". Though we have no hard and fast rule as to language to be employed in this instruction, the use, particularly of the word "solid" is unusual, and might even require an explanation itself. Certainly, that portion of the instruction which states "it is not necessary that you know the defendant to be guilty" should not be given, for the jury might take it to mean if they just "thought" he was guilty, it would be sufficient; in other words, we do not think this language is proper in defining reasonable doubt. In the case of Dempsey v. State, 83 Ark. 81, 102 S.W. 704, an instruction was given which has been used, and approved, in subsequent cases. The instruction is as follows:
"Reasonable doubt . . . is not a mere possible doubt, or imaginary doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt; but it is such a doubt as arises from such a candid and impartial consideration of all the evidence in the case as would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life; and a juror is satisfied beyond doubt if, from a candid consideration of all the evidence, he has an abiding conviction of the truth of the charge."
In accordance with what has been said, the judgment is reversed, and the cause remanded.
It is so ordered.
NOTES
[1] A better word would have been "hypothesis".
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981 A.2d 929 (2009)
COM.
v.
MITCHELL, E.
No. 971 EDA 2008.
Superior Court of Pennsylvania.
July 16, 2009.
Affirmed.
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829 N.E.2d 897 (2005)
357 Ill. App.3d 684
293 Ill.Dec. 972
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Melvin JONES, Defendant-Appellant.
No. 1-03-2421.
Appellate Court of Illinois, First District, Fourth Division.
May 19, 2005.
*899 Office of the State Appellate Defender, Chicago (Vicki P. Kouros, of counsel), for Appellant.
Cook County State's Attorneys Office, Chicago (Renee Goldfarb and William Toffenetti, of counsel), for Appellee.
Presiding Justice REID delivered the opinion of the court:
Following a jury trial, Melvin Jones was convicted of first degree murder and sentenced to a term of 65 years in prison. This is the direct appeal from that conviction and sentence. On appeal he argues that the 25-year sentence enhancement should not have been applied to him because it was based on the murder victim's death. He argues the sentence enhancement should only apply to an injury or death of a person other than the victim. Jones also argues the additional 25 years constitutes an improper double enhancement and is, therefore, unconstitutional. He further argues that the enhancement is improper because it does not bear a reasonable relationship to the public interest of punishing the risk that firearms pose to others when used in the commission of murder. For the reasons that follow, we affirm the conviction and sentence.
*900 BACKGROUND
On January 8, 2000, in the midst of a gang war between two factions of the Gangster Disciples (GDs), Jones shot and killed Jerry Green. The two warring factions are the Third Ward GDs and the No Limit GDs. In late 1999, Lawrence Green, the leader of the No Limit GDs put a "hit" out on any member of the Third Ward GDs. The victim, Jerry Green, was identified as Lawrence Green's son's mother's nephew. In response, Leonard Kline, the leader of the Third Ward GDs put a "hit" out on Green and any of his followers. The Third Ward GDs enlisted the defendant, Antolito Jones and Travis Ashby to carry out the murders.
The three Third Ward GDs met at Kline's house and planned a murder. They would meet at 73rd and Damen in Chicago at 4 a.m. From there these men would find, shoot and kill Green or some other member of the No Limit GDs. Early in the morning on January 8, the meeting took place. Ashby got guns from Kline's house. Defendant carried a chrome .380-caliber semiautomatic handgun, Antolito Jones carried a .357 revolver, while Ashby kept a handgun for himself. The three men walked west from 73rd and Damen until they could hide themselves in a gangway across the street from Green's house. Jerry Green, the victim, who was not a member of any gang, was shot dead after leaving Curtis Moore's home. Moore and Green were friends. There was no eyewitness to the shooting, but Moore testified that Green stopped by Moore's lounge and helped him clean up after closing. At approximately 2 a.m., Moore and Green drove to another friend's house but did not go inside. Green later drove Moore home and both men went inside Moore's house. When the victim left for his car, he was approached by the armed men, who began calling him names. The victim tried unsuccessfully to get into his car. Defendant started shooting and continued to shoot until the victim fell to the ground. Defendant subsequently returned the gun he used to Kline. At the time of the shooting, Moore heard 5 or 10 gunshots. Moore explained that he looked out of his window and saw Green lying in the street next to his car.
The police arrived at the scene shortly after the shooting. The police recovered 11 shell casings and 1 bullet fragment from the scene. These shell casings were initially all characterized as .9-millimeter shell casings, but it was later determined that there were two .9-millimeter casings and nine .380 shell casings. The police also recovered six .380 shell casings, two.9-millimeter shell casings and one fired bullet from the scene of the murder. Two additional medium-sized bullets were recovered from the victim's body.
Detectives spoke with Lawrence Green, who had been sleeping in the basement bedroom when the shots were fired. Lawrence Green explained to them that, two days previously, he had been shot at in the same neighborhood. Lawrence Green identified one of those shooters as Leonard Kline and the other as the defendant. Lawrence also turned over two bullet fragments from that earlier shooting. The investigation continued, resulting in a stop order being submitted by Detective Lanihan for the defendant, who was subsequently apprehended. Detective Roger Murray interviewed the defendant, who admitted to killing the victim. The defendant's statement was videotaped.
Jones was charged by way of indictment with six counts of first degree murder. Jones was also charged with personally discharging a firearm that proximately caused Green's death. At trial, the videotaped confession was presented to the jury. Evidence was also presented establishing *901 that the bullets recovered from the scene and from the victim's body came from the same gun, a .380-caliber weapon. The defendant opted not to testify on his own behalf. The jury found this defendant guilty of both first degree murder and personally discharging the firearm that killed the victim. The 65-year sentence that followed the jury trial consisted of 40 years for the murder and an additional 25 for personally discharging the firearm.
ANALYSIS
Improper Enhancement
Jones argues on appeal that the phrase "another person" found in the 25-year-to-natural-life enhancement provision contained in section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections should be interpreted to apply only in cases where the basis for the enhancement is not the murder victim's death. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000). Jones asks this court to vacate the enhancement to his sentence. He argues that the phrase "another person" must apply to someone other than the murder victim because, if it applies to the murder victim, the requirements of the statute could only be met in the most unusual of circumstances. According to Jones, when the murder victim forms the basis of the enhancement, death by firearm will almost always be the case. He therefore contends that, in that situation, the causing of "great bodily harm, permanent disability, permanent disfigurement" becomes superfluous language. He asks this court to construe the statute so as to give reasonable meaning to all words and sentences and not to render any portion superfluous.
In the alternative, assuming this court is not persuaded that the plain language of the statute requires injury to someone other than the victim, Jones argues the statute is ambiguous. As an ambiguous statute, Jones asks this court to resort to aids of statutory construction. Jones believes the legislature's purpose in adopting the enhancement provision was to add extra time when a bystander is injured during a murder. He argues the legislature was primarily concerned with the potential for harm to others when firearms are used in the commission of felonies. Jones' focuses his interpretation of the legislative history on section 33A-1(a) of the Criminal Code of 1961 (720 ILCS 5/33A-1(a) (West 2000)). In that section, the legislature discusses that the "use of a firearm greatly facilitates the commission of a criminal offense because of the more lethal nature of a firearm and the greater perceived threat produced in those confronted by a person wielding a firearm." 720 ILCS 5/33A-1(a)(2) (West 2000). The legislature also indicated that the risk of harm to more people increases with the use of firearms. This includes victims, bystanders and law enforcement personnel. Jones chooses to view this as being a legislative focus on others, not just victims.
The State responds that, based upon the plain language of the statute, the defendant's position is untenable. The State maintains that the phrase "another person" as used in the statute clearly applies to a person other than the defendant, not a person other than the victim. As a result, a sentencing enhancement is not warranted when the only person injured is the defendant himself. According to the State, the purpose of the sentence enhancement statute is to deter the use of firearms and was meant to apply to all cases where a firearm seriously injures or kills someone, not just in cases where an additional bystander is injured or killed. The State maintains that Jones has selectively chosen to emphasize only portions of the expressed legislative intent. According to the State, a fair reading of the *902 entire statute, including the legislative history and commentary, demonstrates that the legislature has always wanted to punish those criminals who possess and/or discharge firearms in the commission of their offenses. The State argues that, merely because some of the possible factual permutations that could arise are more remote than others does not mean they are impossible.
Jones argues in reply that the State is ignoring the rule of statutory construction that any ambiguity in a penal statute should be strictly construed in favor of the defendant. Jones believes it is clear that, with that ambiguity construed in his favor, the legislative intent is really to protect bystanders and law enforcement personnel. Jones is also not asking for a cross-comparison analysis. He is arguing that his add-on sentence must be vacated, not merely reduced.
"A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity." People v. Powell, 355 Ill. App.3d 124, 130, 290 Ill.Dec. 849, 822 N.E.2d 131 (2004), citing People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). "A court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be done." Powell, 355 Ill.App.3d at 130, 290 Ill.Dec. 849, 822 N.E.2d 131, citing Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433. "The question of whether a statute is constitutional is subject to de novo review." Powell, 355 Ill.App.3d at 130, 290 Ill.Dec. 849, 822 N.E.2d 131, citing People v. Carney, 196 Ill.2d 518, 526, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2001).
Jones argues that the trial court erred in its application of the statutory provision that authorized the addition of a 25-year enhancement to his sentence for murder. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000). "Public Act 91-404 amended the penalty provisions of several statutes by adding what have been referred to as the '15/20/25-to-life' provisions. Pub. Act 91-404, § 5, eff. January 1, 2000. Under these provisions, a mandatory enhancement is added to the defendant's sentence if he used a firearm in the commission of the offense. The length of the enhancement depends on how the firearm was used." People v. Moore, 343 Ill.App.3d 331, 342-43, 277 Ill.Dec. 870, 797 N.E.2d 217 (2003), citing People v. Moss, 206 Ill.2d 503, 506, 276 Ill.Dec. 855, 795 N.E.2d 208 (2003). The relevant portion of the "15/20/25-to-life" provisions states:
"Under the '15/20/25-to-life' provision, a defendant's sentence is enhanced if he utilizes a firearm while committing the offense of first degree murder. See 730 ILCS 5/5-8-1(a)(1)(d)(I) through (a)(1)(d)(iii) (West 2000). If the defendant either was `armed with a firearm' or `personally discharged a firearm' while committing first degree murder, the circuit court must add 15 or 20 years to his sentence, respectively. See 730 ILCS 5/5-8-1(a)(1)(d)(I), (a)(1)(d)(ii) (West 2000). If, however, he `personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person, 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.' 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000)." Powell, 355 Ill.App.3d at 129 n. 1, 290 Ill.Dec. 849, 822 N.E.2d 131.
"When construing a statute, a court is required to ascertain and give effect to the intent of the legislature." People v. Carter, 213 Ill.2d 295, 301, 290 Ill.Dec. 182, 821 N.E.2d 233 (2004), citing People v. Latona, 184 Ill.2d 260, 269, 234 *903 Ill.Dec. 801, 703 N.E.2d 901 (1998). "`The most reliable indicator of legislative intent is the language of the statute, which, if plain and unambiguous, must be read without exception, limitation, or other condition.'" Carter, 213 Ill.2d at 301, 290 Ill. Dec. 182, 821 N.E.2d 233, quoting People v. Davis, 199 Ill.2d 130, 135, 262 Ill.Dec. 721, 766 N.E.2d 641 (2002). "Criminal or penal statutes must be strictly construed in the defendant's favor, `and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute.'" Carter, 213 Ill.2d at 301, 290 Ill.Dec. 182, 821 N.E.2d 233, quoting Davis, 199 Ill.2d at 135, 262 Ill.Dec. 721, 766 N.E.2d 641, citing People v. Laubscher, 183 Ill.2d 330, 337, 233 Ill.Dec. 639, 701 N.E.2d 489 (1998), People v. Woodard, 175 Ill.2d 435, 222 Ill.Dec. 401, 677 N.E.2d 935 (1997), and People v. Shinkle, 128 Ill.2d 480, 486, 132 Ill.Dec. 432, 539 N.E.2d 1238 (1989).
"[T]he intent of the firearm enhancements is to punish the use of a firearm * * * in connection with the commission of another felony, be it armed robbery, aggravated kidnapping, or first degree murder." Powell, 355 Ill. App.3d at 133, 290 Ill.Dec. 849, 822 N.E.2d 131, citing 720 ILCS 5/18-2, 10-2, 18-4 (West 2000), and 730 ILCS 5/5-8-1(a)(1)(d)(I) through (a)(1)(d)(iii) (West 2000). "[T]he 25-year firearm-enhancement provision is not so disproportionate to the offense of first degree murder by the personal discharge of a firearm causing injury or death that it shocks the moral sense." People v. Sawczenko-Dub, 345 Ill.App.3d 522, 530, 280 Ill.Dec. 832, 803 N.E.2d 62 (2003). The legislative intent is to deter and penalize the illegal use of firearms, specifically to help prevent brutal and heinous murders. It is because "`[a] firearm gives a perpetrator a strong advantage over the victim and effectively deters the victim's escape. A firearm is particularly lethal to the victim of the underlying crime as well as others in the vicinity; and a firearm allows the perpetrator to effortlessly and instantaneously execute an intent to kill once it is formed.'" Sawczenko-Dub, 345 Ill. App.3d at 530-31, 280 Ill.Dec. 832, 803 N.E.2d 62, quoting People v. Zepeda, 87 Cal.App.4th 1183, 1215, 105 Cal.Rptr.2d 187, 207-08 (2001). Because the intent of the legislature has been to apply a more severe punishment for the crime depending on whether harm is occasioned through the use of a firearm, we cannot interpret the statute in the manner suggested by the defendant. The plain and ordinary meaning of the phrase "of another," when considered in the context of the entire statute and the legitimate statutory purposes thereof, is that the defendant causes harm to a person other than himself or herself. This is consistent with the fact that, had the defendant merely discharged his weapon without making contact, he would only have been eligible for the 20-year enhancement and, had he merely been carrying the firearm at the time, the potential enhancement would be 15 years. In addition to the "15/20/25-to-life" provisions, section 5-8-1 also imposes enhanced punishment for killing multiple people and a separate enhancement trigger for killing law enforcement personnel. In light of these separate enhancement triggers, in order for the entire statute to remain consistent, the "another person" language in this subsection must mean a person other than the defendant. We believe the use of the phrase "another person" is unambiguous when interpreted in context of the entire statute. It is intended to cover victims and bystanders. Because there is no real ambiguity here, we are not required, as the defendant suggests, to resort to extrinsic aids for construction *904 or to construe the language in favor of any particular party.
Double Enhancement
Jones next argues that, if the "death of another person" portion of the enhanced sentencing provision is satisfied by the death of the victim, it amounts to additional punishment for an element that is inherent in the offense itself, the causing of death. He argues the death of the victim amounts to an improper double enhancement because this single factor of the death is being used as both an element of the crime and as an aggravating factor justifying the imposition of a harsher sentence than may have otherwise been imposed. Jones contends that, under the statute, where no person is injured other than the victim, the same injury or death constitutes an element of the offense and a basis for the sentencing enhancement. The trial court cannot impose a sentence under the enhancement statute for mere possession or even discharge of a weapon; there must be great bodily harm or death before the enhancement provision kicks in. Jones admits that other cases have addressed and rejected an argument similar to the one he now makes on the basis that it is the use of the firearm that triggers the enhancement, not the death itself. These cases include People v. Bloomingburg, 346 Ill.App.3d 308, 324-26, 281 Ill.Dec. 673, 804 N.E.2d 638 (2004), Sawczenko-Dub, 345 Ill.App.3d at 537-39, 280 Ill.Dec. 832, 803 N.E.2d 62, and Moore, 343 Ill.App.3d at 347-48, 277 Ill.Dec. 870, 797 N.E.2d 217. Jones recognizes that, in Bloomingburg, Sawczenko-Dub, and Moore, because a firearm is not needed to cause death, the firearm factor accounts for only one enhancement. Despite the obstacles of these other cases, Jones argues that this court has misconstrued the double enhancement argument as it is applied to this statutory provision, resulting in a "25-to-life" enhancement. Jones argues that the only difference between this enhancement provision and others in the statutes is the death.
The State responds that the use of the firearm is not an element of the crime of murder. As a result, it cannot amount to a double enhancement. The use of the firearm is the manner in which death is caused; it is an aggravating factor that is only used once in sentencing. The State argues that the general prohibition against double enhancements is a rule of statutory construction, not one of constitutional scope that would result in a bar. In this case, the State contends there is but one enhancement for killing someone by shooting him or her with a firearm. The shooting with a firearm is not inherent in the offense as there are many other ways to kill someone and still be guilty of first degree murder. As a result, the State urges this court to hold that the defendant's assertion that the enhancement punishes the causation of death is misplaced. In the alternative, the State argues that double use of a single factor is permitted if it was intended by the legislature. If this court should find that a double enhancement has occurred, the State argues it was clearly intended by the legislature.
Jones replies that he never argued that the firearm conduct is both an element of the offense and the sentencing enhancement. He argues the problem is that the "causing death" portion is both an element and an sentencing enhancement. Jones also argues that Moore and Sawczenko-Dub are flawed because they misconstrued the double enhancement argument as it is applied to the "25-to-life" provision. Jones claims it is wrong to focus exclusively on firearm use. He claims it is the element of death or causing death that presents the double enhancement problem.
*905 "Double enhancement occurs when a single factor is used both as an element of the crime and as an aggravating factor justifying the imposition of a harsher sentence than may have otherwise been imposed." People v. Thompson, 354 Ill.App.3d 579, 591-92, 290 Ill.Dec. 352, 821 N.E.2d 664 (2004), citing People v. Moss, 206 Ill.2d 503, 533, 276 Ill.Dec. 855, 795 N.E.2d 208 (2003). We find no double enhancement in this case. "Firearm use is not inherent in the offense of first degree murder." Thompson, 354 Ill.App.3d at 592, 290 Ill.Dec. 352, 821 N.E.2d 664, citing 720 ILCS 5/9-1(a) (West 2002). "It is when first degree murder is committed by discharging a firearm that the sentence is enhanced. In this respect, the first degree murder sentencing statute reflects the pattern contemporaneously established with regard to several other serious felony offenses, similarly enhancing the punishment for firearm use during the commission of these offenses." Thompson, 354 Ill.App.3d at 592, 290 Ill.Dec. 352, 821 N.E.2d 664, citing Moss, 206 Ill.2d at 514, 276 Ill.Dec. 855, 795 N.E.2d 208; Sawczenko-Dub, 345 Ill.App.3d at 537-39, 280 Ill.Dec. 832, 803 N.E.2d 62 (it is the use of the firearm to cause the death of the victim that triggered the enhancement, not the death itself); Bloomingburg, 346 Ill.App.3d at 325-26, 281 Ill.Dec. 673, 804 N.E.2d 638 (it is the manner of death, that it occurred as a result of the discharge of a firearm, rather than the fact of death, that is the focus of the enhancing provision).
Proportionate Penalties
Finally, Jones argues that the statute mandating the enhancement of the sentence of any defendant convicted of first degree murder is unconstitutional because it does not bear a reasonable relationship to the public interest of punishing the risk that firearms pose to others when used during the commission of the murder. He argues that, because the normal sentencing range for first degree murder is 20 to 60 years (730 ILCS 5/5-8-1(a)(1)(a) (West 2000)), adding an additional 25 years to life punishes the means of the crime more harshly than the crime itself. Jones argues this violates both due process of law and the proportionate penalties clause.
The State responds that the "25-to-life" enhancement applied to this defendant is reasonably related to the goal of deterring the use of firearms during the commission of murder. The State argues the defendant's entire argument is based on a flawed premise. Defendant is looking at the threat of harm and concluding that it is being more heavily punished than the harm itself. The State argues this is incorrect because, in a due process violation claim, this court must determine whether the penalty for the given offense is reasonably related to the goal of the legislature. The State maintains that the personal discharge of the firearm is not punished more severely than the actual harm because they are both elements of the same offense. The aggravating factor of personally discharging a firearm that proximately causes injury or death is only triggered through the commission of the murder. Upon commission of each element, one aggregate penalty is prescribed by the legislature.
In reply, Jones argues that the use of the firearm poses no greater risk of harm to the murder victim, but only increases the risk of harm to others. Therefore, he argues it is necessarily the risk of harm that the legislature seeks to deter through the sentencing enhancement. Jones accuses the State of failing to explain how the "25-to-life" enhancement represents a reasonable means of deterring the use of guns that cause death. Jones does not argue that the sentences for first degree murder and the personal discharge of a *906 firearm are discrete. He claims the fact remains that the add-on provision punishes defendants more severely than if they were sentenced to first degree murder without the enhancement. Jones argues the State is without authority for its position that the due process analysis does not involve comparing two elements of the same offense. Jones claims the State's position is illogical as it implies that an enhancement provision is exempt from due process.
"The proportionate penalties clause of the Illinois Constitution provides that `[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.'" Bloomingburg, 346 Ill.App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638, quoting Ill. Const. 1970, art. I, § 11. "`In evaluating whether a proportionate penalties violation has been established, the central question is whether the penalty at issue has been set by the legislature "according to the seriousness of the offense." [Citations.]'" Bloomingburg, 346 Ill.App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638, quoting People v. Moss, 206 Ill.2d 503, 522, 276 Ill.Dec. 855, 795 N.E.2d 208. The Illinois Supreme Court has identified three tests to determine if a proportionate penalties violation has occurred. Bloomingburg, 346 Ill. App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638, citing People v. Hill, 199 Ill.2d 440, 264 Ill.Dec. 670, 771 N.E.2d 374 (2002). The first test is applied when a single offense is challenged. Bloomingburg, 346 Ill.App.3d at 322 n. 2, 281 Ill.Dec. 673, 804 N.E.2d 638, citing People v. Davis, 177 Ill.2d 495, 502, 227 Ill.Dec. 101, 687 N.E.2d 24 (1997). In the first test, we look to see if "`a penalty * * * is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.'" Bloomingburg, 346 Ill. App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638 quoting Hill, 199 Ill.2d at 452, 264 Ill.Dec. 670, 771 N.E.2d 374. The second test is applied when two similar or related offenses are to be compared. Bloomingburg, 346 Ill.App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638, citing Davis, 177 Ill.2d at 502, 227 Ill.Dec. 101, 687 N.E.2d 24. Under the second test, "`a penalty is invalid * * * where similar offenses are compared, and conduct that creates a less serious threat to the public health and safety is punished more severely.'" Bloomingburg, 346 Ill.App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638 quoting Hill, 199 Ill.2d at 452, 264 Ill.Dec. 670, 771 N.E.2d 374. The third test for a violation of the proportionate penalties clause, "when identical offenses are given different sentences" (People v. Hill, 199 Ill.2d 440, 452, 264 Ill.Dec. 670, 771 N.E.2d 374 (2002)), "is applied when comparing two identical offenses, i.e., where the same conduct constitutes both offenses or when two different offenses have identical elements." Bloomingburg, 346 Ill.App.3d at 322 n. 2, 281 Ill.Dec. 673, 804 N.E.2d 638, citing Davis, 177 Ill.2d at 503, 227 Ill.Dec. 101, 687 N.E.2d 24, and People v. Lewis, 175 Ill.2d 412, 423, 222 Ill.Dec. 296, 677 N.E.2d 830 (1996). "Under the third test * * * `the elements of the respective offenses must be identical before the proportionate penalties clause will be implicated.'" (Emphasis in original.) Bloomingburg, 346 Ill.App.3d at 322, 281 Ill.Dec. 673, 804 N.E.2d 638, quoting People v. Graves, 207 Ill.2d 478, 483, 279 Ill.Dec. 502, 800 N.E.2d 790 (2003).
"[I]t is the legislature's function and role to declare and define criminal offenses and to determine the nature and extent of punishment for their commission in order to protect the interests of society." Thompson, 354 Ill.App.3d at 592-93, 290 Ill.Dec. 352, 821 N.E.2d 664, citing *907 People v. Steppan, 105 Ill.2d 310, 319-21, 85 Ill.Dec. 495, 473 N.E.2d 1300 (1985). "This function includes mandatory sentencing schemes." Thompson, 354 Ill. App.3d at 593, 290 Ill.Dec. 352, 821 N.E.2d 664, citing Hill, 199 Ill.2d at 447, 264 Ill. Dec. 670, 771 N.E.2d 374. "Generally, in order to survive a due process and proportionate penalties challenge, the penalty must be `"reasonably designed to remedy the evils that the legislature has determined to be a threat to the public health, safety, and general welfare."'" Thompson, 354 Ill.App.3d at 593, 290 Ill.Dec. 352, 821 N.E.2d 664, quoting People v. Lombardi, 184 Ill.2d 462, 469, 235 Ill.Dec. 478, 705 N.E.2d 91 (1998), quoting People v. Hickman, 163 Ill.2d 250, 259, 206 Ill.Dec. 94, 644 N.E.2d 1147 (1994). As we have learned from our review of Sawczenko-Dub, Moore, Bloomingburg and Thompson, "the purpose underlying the sentencing-enhancing provision at issue is to deter the use of firearms in the commission of murder." Thompson, 354 Ill.App.3d at 593, 290 Ill.Dec. 352, 821 N.E.2d 664, citing Sawczenko-Dub, 345 Ill.App.3d at 530, 280 Ill.Dec. 832, 803 N.E.2d 62. We find no compelling reason to depart from the wisdom of those cases, as that is a legitimate statutory purpose despite the fact that an enhanced sentence can exceed the statutory maximum for the unenhanced crime. That is the very reason why the legislature has adopted such a hard-line attitude towards the use of firearms to commit murder, to deter and discourage such conduct.
CONCLUSION
In light of the foregoing, the defendant's conviction and sentence are affirmed.
Affirmed.
GREIMAN and QUINN, JJ., concur.
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01-03-2023
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10-30-2013
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131 So. 2d 867 (1961)
Elsie Mae B. STALLWORTH
v.
Nicholas B. STALLWORTH.
I Div. 941.
Supreme Court of Alabama.
June 29, 1961.
Scott & Porter, Chatom, for appellant.
Grady W. Hurst, Jr., Chatom, for appellee.
STAKELY, Justice.
This case involves a suit for divorce and for the custody of minor children of the parties.
Appellant Elsie B. Stallworth, respondent in the Circuit Court, is a native of Louisiana. Appellant and appellee, Nicholas B. *868 Stallworth, complainant in the Circuit Court and a resident of Washington County, Alabama, were married in Louisiana in 1943, while appellee was in military service. During the war the parties lived in Louisiana and at various military posts about the United States. Upon his discharge from the service they returned to Louisiana, where appellee was a student at Louisiana State University. In 1948, upon appellee's graduation from that University, the couple moved to appellee's home in Vinegar Bend, Washington County, where they resided until June 1959, when appellant left and went to the home of her parents in Baton Rouge, Louisiana, where the two minor children of the marriage, Nicholas Richard Stallworth, then age fourteen, and Darryl Clarke Stallworth, then age eight, were already visiting.
The facts of the cause of the separation of the parties were in dispute in the lower court. No good purpose can be served by setting out this evidence, since, as we shall undertake to show, consideration of this evidence is not necessary to a determination of this cause.
On July 6, 1959, ten days after leaving her husband, appellant filed in the Family Court of the Parish of East Baton Rouge, Louisiana, a petition seeking a separation "a mense et thoro", provisional and temporary custody of the children and permanent custody after hearing. On July 15, the Louisiana Court issued a decree giving appellant temporary custody of the children and appointed a Baton Rouge attorney as "curator ad hoc" to represent the appellee in those proceedings, substituted service being made upon the "curator ad hoc", in accordance with the Louisiana procedure, and notice of the proceedings being given to appellee by registered mail. Subsequently the appellee appeared by attorney in the Louisiana court and filed a pleading known as an "Exception to Citation", contesting the form of service. This "Exception" was overruled and appellee made no further appearance or contest in the Louisiana court.
On September 29, 1959, the Louisiana Court entered a final decree awarding to the appellant a divorce "a mense et thoro" and the custody of the children.
Meanwhile, on July 31, 1959, appellee had filed his bill in the Circuit Court of Washington County, in Equity, alleging the residence of the complainant (appellee) and the matrimonial domicile of the parties to be Washington County, alleging abandonment by the wife (appellant), and asking, in addition to general relief, an award of custody of the children and an injunction to restrain appellant from further proceedings in foreign jurisdictions, and, by later amendment, asking a divorce. The court entered on July 31, 1959, a temporary order awarding the custody of the children to appellee and issuing the injunction prayed for. Service was had upon appellant by newspaper publication for four successive weeks beginning in September 1959.
On October 29, 1959, appellant made a special appearance in the Circuit Court of Washington County, in Equity, for the purpose of filing what is called a plea in abatement, alleging that she was a bona fide resident of the State of Louisiana and setting forth the proceedings in the Louisiana Court. Following a hearing the court overruled the plea and, at a later time, overruled the plea as it was refiled to the bill as amended. Appellant declined to appear or plead further and a decree pro confesso was entered against her. Finally, on September 10, 1960, the court entered a final decree granting the appellee a divorce on the ground of voluntary abandonment by appellant and awarding to the appellee the custody of the two children. From this decree appellant appeals.
As we have indicated, appellee in his original bill filed in the lower court sought relief and by amendment specifically sought a divorce on grounds of abandonment. The bill, filed July 31, 1959, alleges that "the respondent * * * abandoned the complainant without just cause or legal excuse on June 26, 1959 * * *." Title 34, § 20, *869 Code of 1940, as amended, provides in its material part that, "The circuit court in equity has power to divorce persons from the bonds of matrimony, upon bill filed by the aggrieved party, for the causes following: * * * 3. For voluntary abandonment from bed and board for one year next preceding the filing of the bill." (Emphasis added.) It is clear that according to the allegations of appellee's original bill itself the alleged abandonment by the appellant was, at the time the bill was filed, a little over a month in duration, and certainly did not meet the statutory requirement of one year. On June 29, 1960 appellee amended his bill to add thereto: "That the respondent, Elsie May B. Stallworth, voluntarily abandoned the bed and board of complainant for more than one year next preceding the filing of this amendment to the bill of complaint, since which time complainant and respondent have not lived together nor in any way recognized each other as husband and wife."
By its own terms the amendment to the bill, and consequently the bill as amended, states that the abandonment was for one year "next preceding the filing of this amendment," a point in time nearly eleven months after the filing of the original bill. The requirement of the statute, Title 34, § 20, is that the voluntary abandonment before one year "next preceding the filing of the bill." Accordingly a year's abandonment most of which was subsequent to the filing of the bill is not a year's abandonment preceding the filing of the bill. We think that this conclusion is apparent from the wording of the statute, and further, that it is consistent with our view that the abandonment must be "the year nearest to the time of the filing of the bill." Cox v. Cox, 268 Ala. 572, 109 So. 2d 703, 705; Winning v. Winning, 262 Ala. 258, 78 So. 2d 303.
As we have pointed out, appellant made no general appearance in the circuit court and hence there was in that court no challenge to the merits or sufficiency of the bill or the bill as amended, though that challenge has been made on appeal. This court in Tillery v. Tillery, 217 Ala. 142, 115 So. 27, has said, however, that
"The statutes conferring jurisdiction on courts of equity to divorce persons from the bonds of matrimony limit the jurisdiction by prescribing the causes or grounds upon which divorces may be granted, prescribing the procedure and requiring that `the cause for which the decree is sought must be alleged in the bill' * * * [Code 1940, Title 34, §§ 20-27.] This jurisdiction does not exist independent of the statute, and hence courts of equity, in exercising jurisdiction to grant a divorce a vinculo, are courts of statutory and limited jurisdiction, and it is essential to the validity of the proceedings that the jurisdictional facts affirmatively appear from the record. * * * One of the jurisdictional facts essential to the validity of the proceedings is that a statutory cause or ground for divorce must be alleged in the bill, and failing in this the proceedings are coraum non judice and therefore wholly void."
See also Ex parte Mercer, 255 Ala. 3, 49 So. 2d 670; Anthony v. Anthony, 221 Ala. 221, 128 So. 440.
In Edelman v. Poe, 267 Ala. 387, 103 So. 2d 333, 334, this court said: "The rule is that when a bill is filed which is not sufficient to invoke the jurisdiction of the court an amendment will not confer jurisdiction by alleging facts which occur after the original bill was filed, which facts would have been sufficient had they existed when the bill was filed." See also Harper v. Raisin Fertilizer Co., 158 Ala. 329, 48 So. 589; Equity Rule 28(2).
The decree of divorce entered in the Circuit Court of Washington County, in Equity, is based on abandonment and in accordance with the foregoing authorities is void for want of jurisdiction and thus insufficient to support the appeal. Tillery v. Tillery, supra.
*870 While we have condemned the portion of the court's decree which awarded the divorce, this does not necessarily require us to invalidate the entire decree. Avery Freight Lines Inc. v. Persons et al., 250 Ala. 40, 32 So. 2d 886. It is true that the court appears to have proceeded under the authority of § 35, Title 34, Code of 1940, to make an award of the custody of the children to the complainant. But this court has said that regardless of the statute, "whenever the welfare of the children is concerned and the jurisdiction of the court is invoked, the court has an inherent power to enter a decree for their custody and support." Butler v. Butler, 254 Ala. 375, 377, 48 So. 2d 318, 319. In the instant case the jurisdiction of the court with reference to the children was sought to be invoked by the following allegations in the bill of complaint:
"That the respondent is not a fit, and suitable or proper person to be entrusted with the care, custody and control of the said children.
"That it is in the best interest and welfare of the children that their custody pendente lite is awarded to the complainant on the presentation of this bill of complaint and that their permanent custody be awarded to complainant upon the final hearing in this cause."
As we have pointed out, prior to the time the present bill was filed in the Circuit Court of Washington County, in Equity, a suit was filed by Elsie Mae B. Stallworth (appellant here) against Nicholas B. Stallworth (appellee here) in the family court of the Parish of East Baton Rouge, Louisiana, seeking a separation "a mensa et thoro," provisional and temporary custody of the children and permanent custody after hearing. As we have also pointed out, on July 15, 1959, the Louisiana Court entered a decree giving to the appellant here temporary custody of the children and appointing a Baton Rouge Attorney as "curator ad hoc" to represent Nicholas B. Stallworth in those proceedings. Substituted service being made on the "curator ad hoc" and notice of the proceedings being given to the appellee here by registered mail, subsequently Nicholas B. Stallworth (appellee here) appeared by attorney in the Louisiana Court and filed a plea known under the Louisiana Practice as "an exception to citation," contesting the form of service. This "exception" was overruled and Nicholas B. Stallworth made no further appearance or contest in the Louisiana Court. On September 29, 1959, the Louisiana Court entered a final decree, awarding to Elsie Mae B. Stallworth a divorce a mensa et thoro and the custody of the children.
It will be observed that Nicholas B. Stallworth entered a special appearance in the court in Louisiana in order to question the jurisdiction of the Louisiana Court and was overruled by that court. The question of jurisdiction of the Louisiana Court was, therefore, settled prior to the time that the decree in Washington County was entered. In this connection it will be remembered that the suit in the Louisiana Court was filed prior to the time the suit in Washington County was filed.
In the case of Ex parte Aufill, 268 Ala. 43, 104 So. 2d 897, 902, this court said, "At this point we divert long enough to say that it makes no difference that Capt. Aufill entered a special appearance in the California Court and not a general appearance. So far as the question of jurisdiction is concerned, he was personally before the California Court."
In the case of Forbes v. Davis, 187 Ala. 71, 65 So. 516, this court held that if a judgment of a sister state was properly authenticated and produced on the trial of the case in Alabama and there was a want of jurisdiction to render the judgment that does not appear upon the face of the properly certified transcript, then it must be presumed prima facie that the court rendering it had jurisdiction to do so. In the case here referred to this court further held that if the court rendering the judgment in another *871 state did so in an illegal and improper manner and had no jurisdiction to do so, the burden was on the defendant to assert that fact and produce evidence to overcome the presumption.
The proceedings in the Louisiana Court, including the decree properly authenticated, were introduced in evidence in the Washington County Court. Since the decree of the Louisiana Court appears on its face to be a valid and binding decree and nothing appearing that the Louisiana Court did not have jurisdiction, then full faith and credit must be given to the decree of the Louisiana Court.
In Ex parte Burch, 236 Ala. 662, 184 So. 694, this court held that where two or more courts have concurring jurisdiction, the one who first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction to the final determination of the action and the enforcement of its judgments or decrees. In this connection see also Little v. Little, 249 Ala. 144, 30 So. 2d 386, 171 A.L.R. 1399; Burns v. Shapley, 16 Ala.App. 297, 77 So. 447.
A mother armed with a duly authenticated decree of a court of competent jurisdiction awarding custody of children to her as the agent and trustee of the state is entitled to the custody of such children. State v. Black, 239 Ala. 644, 196 So. 713. The children were present in Louisiana with their mother. Moss v. Ingram, 246 Ala. 214, 20 So. 2d 202.
We think it necessarily follows from the foregoing that since the jurisdiction of the Louisiana Court was invoked prior to the time the suit in Washington County was filed, that its decree with reference to the children supersedes the decree of the court in Washington County and that the Circuit Court of Washington County, in Equity, was in error in awarding the custody of the children to Nicholas B. Stallworth. It results that the decree of the Circuit Court of Washington County, in Equity, with reference to the children should be and is reversed.
Appeal dismissed in part and decree reversed and remanded in part with directions to the lower court to dismiss the bill.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
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10-30-2013
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186 P.3d 1012 (2008)
2008 UT App 207
BURTON LUMBER & HARDWARE COMPANY, Plaintiff and Appellee,
v.
Michael GRAHAM, Defendant and Appellant.
No. 20060912-CA.
Court of Appeals of Utah.
May 30, 2008.
*1015 David G. Harlow, Provo, for Appellant.
Richard D. Burbidge, Salt Lake City, for Appellee.
Before Judges BENCH, DAVIS, and ORME.
OPINION
DAVIS, Judge:
¶ 1 Defendant Michael Graham appeals from the trial court's judgments, which awarded actual damages, punitive damages, and attorney fees and costs to Burton Lumber & Hardware Company (Burton Lumber). We affirm.
BACKGROUND
¶ 2 Graham owned and operated a business that manufactured wall panels for residential housing. Burton Lumber and Graham entered into an agreement (the Agreement) whereby Burton Lumber purchased Graham's wall panel plant and agreed to employ Graham as the general manager of the plant. During the drafting of the Agreement, Graham, who was advised by an attorney and a CPA, tried to negotiate different employment terms but eventually agreed that he would be an at-will employee who could be terminated without cause at any time. Under the Agreement, Burton Lumber was to pay a fixed price for the business assets and inventory, as well as a salary, quarterly bonuses, and half of the plant's profits over the following three years to Graham. Burton Lumber was also to assume Graham's obligations under the lease for the building where the plant was located. The Agreement was finalized, and Burton Lumber took ownership of the plant on March 19, 2001.
¶ 3 In late July 2001, it appeared from Burton Lumber's records that one of its customers, Hamlet Homes, had failed to make payment for two invoices. Burton Lumber began to look into the matter, and Hamlet Homes responded by submitting a copy of the check it had used to pay those invoices. Graham's superiors at Burton Lumber talked with Graham, who claimed to not know what had happened to the check. After further investigation, Burton Lumber discovered that Graham had picked up the check for $7,293 from Hamlet Homes in early June 2001, had cashed it, and had deposited part of it into his wife's bank account and the remainder into his account.
¶ 4 Thereafter, in August 2001, the president and vice-president of Burton Lumber met with Graham to confront him about the check and to terminate him. Graham eventually admitted that the check belonged to Burton Lumber and stated that he would repay the amount within three days; he also agreed to turn in the company truck he had been using. Graham did neither, although Burton Lumber was eventually able to recover the truck. Burton Lumber also sent Graham a letter proposing to apply his final salary check toward the amount he owed and requesting that Graham respond if he did not agree with such action. Graham never replied, and as a result, his salary check was applied to his debt. According to the Agreement, because Graham was terminated, he was no longer entitled to his unaccrued bonus for the third quarter or any of the promised future shares of the plant's profits (although no such profits were realized in any event.)
¶ 5 After Graham was terminated, he took several items that, according to the Agreement, belonged to Burton Lumber. Additionally, sometime after Graham's termination, Burton Lumber determined that Graham had been paid for expense reimbursements that were not proper business expenses. Burton Lumber also learned that while Graham was employed as the plant's general manager, he had been personally renting a generator to contractors on Burton Lumber jobs. On at least one occasion, Graham included the rental amount on a bid and Burton Lumber ended up collecting for the rental. Graham then had a subcontractor make a phony invoice to Burton Lumber for *1016 the rental charge amount. Burton Lumber issued a check to the subcontractor, who wrote Graham a check for that amount. Thus, Graham received a secret, improper payment from the job.
¶ 6 On September 7, 2001, Graham served a notice to vacate on Burton Lumber, demanding that Burton Lumber vacate the plant building by October 1, 2001. Although Burton Lumber had agreed to assume the lease obligations, it agreed to vacate but notified Graham that it would need a few more weeks beyond the deadline to completely vacate. Graham agreed, and Burton Lumber moved the plant into a bigger building on October 25, 2001, having paid all the October 2001 rent.
¶ 7 Burton Lumber brought this action to recover the several amounts owed by Graham, including the remaining portion of the Hamlet Homes check, the value of the converted property, the secret payment, and the improperly claimed business expenses. Burton Lumber further claimed that Graham had defrauded it into purchasing his business. In its complaint, Burton Lumber also requested awards of punitive damages and attorney fees. Graham responded and counter-claimed, arguing that the Agreement is unconscionable, his termination was in bad faith and without cause, Burton Lumber converted his personal property, Burton Lumber was unjustly enriched, and Burton Lumber damaged and did not timely vacate the plant building. After a summary judgment proceeding in which the trial court dismissed Graham's claim that the Agreement is unconscionable, the remaining claims were tried in November 2004. The trial court entered judgment in favor of Burton Lumber on all its claims with the exception of its fraud and improper reimbursement claims. The trial court also determined that Burton Lumber was entitled to punitive damages and attorney fees, which amounts were determined after an evidentiary hearing on those matters. Graham now appeals virtually every trial court determination in favor of Burton Lumber.
ISSUES AND STANDARDS OF REVIEW
¶ 8 The bulk of Graham's arguments on appeal challenge the trial court's factual findings. "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R. Civ. P. 52(a). "`A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" State v. Walker, 743 P.2d 191, 193 (Utah 1987) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948)).
¶ 9 Graham also argues that the Agreement, or at least one paragraph of it, is unconscionable. This is a question of law, which we review for correctness. See Sosa v. Paulos, 924 P.2d 357, 360 (Utah 1996).
¶ 10 Graham additionally challenges the award of punitive damages to Burton Lumber. "Whether punitive damages [should be] awarded is generally a question of fact within the sound discretion of the [fact finder], and will not be disturbed absent an abuse of discretion." ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 259 (Utah Ct.App. 1997) (alterations in original) (internal quotation marks omitted).
¶ 11 Finally, Graham argues that the trial court erred in awarding attorney fees under Utah Code section 78-27-56, which allows attorney fees to be awarded against a party whose action or defense is without merit and is brought in bad faith, see Utah Code Ann. § 78-27-56(1) (2002). This is a mixed question of fact and law: "As to whether the party lacked good faith, the trial court must make a factual finding of a party's subjective intent. In addition, the trial court must conclude, as a matter of law, that the action was without merit." Pennington v. Allstate Ins. Co., 973 P.2d 932, 939 n. 3 (Utah 1998).
ANALYSIS
I. The Challenged Findings of Fact
¶ 12 Many of Graham's arguments are, either directly or indirectly, challenges *1017 to the trial court's findings of fact. To successfully challenge such findings, "an appellant must first marshal all the evidence supporting the finding[s] and then demonstrate that the evidence is legally insufficient to support the findings even in viewing it in the light most favorable to the court below." Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989); see also Utah R.App. P. 24(a)(9).
The process of marshaling is . . . fundamentally different from that of presenting the evidence at trial. The challenging party must temporarily remove its own prejudices and fully embrace the adversary's position; he or she must play the devil's advocate. In so doing, appellants must present the evidence in a light most favorable to the trial court and not attempt to construe the evidence in a light favorable to their case. Appellants cannot merely present carefully selected facts and excerpts from the record in support of their position. Nor can they simply restate or review evidence that points to an alternate finding or a finding contrary to the trial court's finding of fact.
Chen v. Stewart, 2004 UT 82, ¶ 78, 100 P.3d 1177 (citations and internal quotation marks omitted).
¶ 13 Graham wholly fails to fulfill the "rigorous and strict" marshaling requirement, see id. ¶ 79. In some instances, he does not even directly challenge the findings of fact but, rather, in making his legal arguments implies that the findings were opposite of that which the trial court actually found. For those findings that Graham does directly challenge, he essentially reargues the evidence and asserts that the findings are incorrect because the evidence supporting them is "self-serving" and "controverted."[1] But such recharacterizations of the evidence are ineffectual on appeal because it is the trial court's role to assess credibility and to assign weight to conflicting evidence. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 75, 99 P.3d 801 ("When reviewing a district court's findings of fact on appeal, we do not undertake an independent assessment of the evidence presented during the course of trial and reach our own separate findings with respect to that evidence. Rather, we endeavor only to evaluate whether the court's findings are so lacking in support that they are against the clear weight of the evidence."). Thus, because Graham makes no real attempt to properly marshal the evidence, we accept all the trial court's findings. See Chen, 2004 UT 82, ¶ 80, 100 P.3d 1177. Further, we refuse to address any of Graham's legal arguments that are entirely dependent on a version of the facts that is contrary to the trial court's findings. In the interest of clarity, however, we set forth such legal arguments and the related factual findings that render these arguments unavailing.
¶ 14 Graham contests the trial court's ruling in favor of Burton Lumber on the issue of the Hamlet Homes check. He argues that Burton Lumber's theories of conversion, unjust enrichment, breach of contract, and breach of fiduciary duty fail because the check belonged to Graham and the wall panels that the check covered were produced prior to Graham's employment with Burton Lumber. However, the trial court specifically found that (1) "[t]he Agreement closed on March 19, 2001, at which time Burton Lumber took over ownership operations and Graham became General Manager of the wall panel plant"; (2) "[a]ll business done commencing March 19, 2001 was Burton Lumber business done for its benefit"; (3) the selections that must have been made before the work underlying the Hamlet Homes check could commence were not completed until March 28 or March 29, 2001; and (4) the Hamlet Homes check "clearly belonged to Burton Lumber."
¶ 15 Graham argues that he did not breach his fiduciary duties to Burton Lumber through the generator rental. He claims that there was "nothing secret" about the rental and that such rentals were consistent with his duty to act primarily for the benefit of Burton Lumber. But the trial court found that "Graham did not request or receive permission *1018 from Burton Lumber to rent generators on Burton Lumber jobs and Graham's superiors at Burton Lumber had no knowledge he was doing so." The court then concluded that "[b]y this subterfuge, Graham received a secret profit . . . on a Burton Lumber job and usurped a corporate opportunity of Burton Lumber."[2]
¶ 16 Graham next contests the trial court's determination that he converted Burton Lumber property, arguing that the property was his and that, instead, Burton Lumber improperly retained some of his property. The trial court, however, found that (1) "[u]nder the Agreement, Burton Lumber acquired all of the assets of the wall panel business except amounts receivable and personal assets of Graham such as his `home, furniture, cars, and clothing'";[3] (2) Graham had indicated that other business assets were included in the transaction beyond those specifically listed in the asset schedule; and (3) Graham took possession of several items belonging to Burton Lumber under the Agreement.[4]
¶ 17 Graham argues that Burton Lumber improperly retained his last paycheck. The trial court found that Burton Lumber notified Graham that it intended to apply the paycheck to the amount owed by Graham for keeping the Hamlet Homes money and that "Graham did not object."[5] The trial court then properly offset that amount against the award given for Graham taking the Hamlet Homes check.
¶ 18 Graham next contends that he should have been awarded his quarterly bonus, premium compensation, and profit shares because Burton Lumber breached its duty of good faith and fair dealing by terminating him "in order to avoid paying [contract] amounts." The trial court found the opposite: "Burton Lumber acted in good faith in terminating Graham based on its good faith and reasonable belief . . . that Graham had embezzled the Hamlet [Homes] check." The court specifically found that (1) "Burton Lumber did not terminate Graham to avoid paying him a share of the wall panel plant profits (of which there were none),"[6] (2) *1019 "Burton Lumber had just cause for terminating [Graham] for dishonesty," and (3) "Burton Lumber's decision to terminate Graham was not based on any advice or recommendation from [a consulting group]."
¶ 19 In addition to his claim that the Hamlet Homes check belonged to him, Graham also claims that there were six other Hamlet Homes jobs that should have been paid to him because they were completed before Burton Lumber acquired his wall panel business. The trial court found that "each of these jobs was in fact a Burton Lumber job and that Graham is not entitled to recover any sums relating to these jobs"; indeed, the court set forth three pages of evidence supporting such findings.[7]
¶ 20 Graham sets forth a one-sentence argument that he should have been allowed "continued use and possession of the truck." The trial court found that under the Agreement, Graham was entitled to keep the truck only if he was terminated "without just cause." Because the court had already determined that Graham was terminated for cause, it concluded that he had no right to the truck.[8]
¶ 21 Graham argues that Burton Lumber failed to satisfy all of the lease obligations it assumed under the Agreement. However, the trial court found that (1) "Burton Lumber did in fact assume and pay Graham's ongoing obligations under the lease, including the monthly lease payments"; (2) Graham requested Burton Lumber to vacate the panel plant; (3) Burton Lumber complied and vacated on October 25, 2001; and (4) Burton Lumber paid the lease payment for October 2001. As to damages to the panel plant, the court specifically found:
Burton Lumber did not do any damage to the panel plant. Any damage to the panel plant had been done . . . before Burton Lumber acquired the panel plant. Moreover, at the time Graham claims damage was done to the panel plant, he was the General Manager of the plant and responsible for its care and maintenance.
II. Unconscionability
¶ 22 Paragraph 7.4 of the Agreement reads: "If the employment of Graham is terminated for any reason, he will immediately forfeit any unpaid portion of the remaining contingent deferred purchase price specified in Paragraph 2.2 above, plus he will no longer be entitled to any continuing salary, allowances, and bonuses." Graham argues that this paragraph is unconscionable and unenforceable because it allows Burton Lumber to fire him to avoid paying him what was, essentially, part of the purchase price for his business.
¶ 23 There are two branches of unconscionabilityprocedural unconscionability and substantive unconscionability. See generally Sosa v. Paulos, 924 P.2d 357, 360 (Utah 1996). Procedural unconscionability, which addresses the circumstances of the parties and the way in which the contract was negotiated, see id. at 362, is not asserted *1020 in this case. Rather, Graham argues that there exists substantive unconscionability in Paragraph 7.4 of the Agreement sufficient to support a finding of unconscionability.
¶ 24 The Utah Supreme Court has previously instructed that "`[g]ross disparity in terms, absent evidence of procedural unconscionability, can support a finding of unconscionability.'" Id. at 361 (quoting Resource Mgmt. Co. v. Weston Ranch, 706 P.2d 1028, 1043 (Utah 1985)). Nonetheless,
[a] party claiming unconscionability bears a heavy burden. The law enables parties to freely contract, establishing terms and allocating risks between them. The law even permits parties to enter into unreasonable contracts or contracts leading to a hardship on one party. . . .
. . . [Thus,] if a contract term is unreasonable or more advantageous to one party, the contract, without more, is not unconscionable-the terms must be "so one-sided as to oppress . . . an innocent party."
Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 402 (Utah 1998) (citations omitted) (quoting Sosa, 924 P.2d at 361). The terms of the Agreement do not embody a gross disparity. We cannot say that the Agreement, or parts thereof, are one-sided where the trial court found that Burton Lumber paid up-front for the fixed assets and inventory of Graham's business and where Graham was simply deprived of the Agreement's "contingent deferred" payments if he was no longer working for Burton Lumber.[9] Because Graham has not met his burden to show that the Agreement, in whole or in part, is unconscionable, we affirm the trial court on this matter.
¶ 25 Graham also argues that the Agreement is unconscionable because at-will employment is subject to modification where additional consideration is provided by the employee. But the case to which Graham cites explains that "[t]o satisfy the `good consideration' exception . . ., [the employee] would have had to offer [his employer], at its request, something more than what he was already obligated to do under his employment agreement, not just a continuation of the duties he was required to perform." Rose v. Allied Dev. Co., 719 P.2d 83, 86 (Utah 1986). Here, there was no consideration given beyond those obligations set forth in the Agreement. Further, Paragraph 7.1, which states that Graham will be an at-will employee, specifically provides that "nothing contained in [the] Agreement or in any other document shall have the effect of altering or changing Graham's status as an employee at will."
III. Punitive Damages
¶ 26 Graham argues that the punitive damages award was improper because Burton Lumber's only claim for punitive damages was confined to its fraud claim, which was dismissed. We do not agree, however, that the request for punitive damages was so narrow. In its complaint, Burton Lumber generally requested punitive damages for Graham's actions. Graham bases his argument on one reference to Burton Lumber's trial brief, in which punitive damages are discussed in context of the fraud claim; but even in that trial brief, Burton Lumber stated that it was requesting punitive damages "under theories of fraud, conversion, unjust enrichment, breach of fiduciary duties and breach of contract."
¶ 27 Graham also argues that the punitive damages award was excessive. Graham argues that there have been no negative effects on Burton Lumber's net revenues or public opinion; that there has been no economic, emotional, or medical effect on Burton Lumber's owners or employees; and that there is little probability of Graham's misconduct re-occurring. *1021 Again, these issues are addressed in findings of fact that the trial court made and that we have declined to disturb on appeal. See supra ¶¶ 12-13. The trial court found that (1) Graham's annual income was approximately $40,000 and his net worth was approximately $12,000; (2) he embezzled money, obtained secret payments, and converted property of Burton Lumber; (3) such conduct was "reprehensible especially given the fiduciary duties that Graham owed to Burton Lumber as the General Manager of its wall panel plant"; (4) Graham lied to conceal his dishonesty; (5) "Graham then forced Burton Lumber to incur very substantial attorney[ ] fees to defend Graham's frivolous counterclaims, which Graham asserted in bad faith"; (6) Graham's wrongful prosecution and defense required Burton Lumber management and employees to spend "hundreds of hours" on the case, including time in numerous and lengthy depositions taken by Graham; (7) "there is a probability that Graham may engage in dishonest business conduct in the future"; (8) "Graham testified falsely at trial concerning his actions"; (9) Graham has never shown remorse for his actions; (10) the principal damages amount was $16,958; and (11) a punitive damages award of $34,000 was reasonable.
¶ 28 Regarding any issue as to whether the trial court considered the appropriate factors in its determination, the seven factors to be considered in determining whether a punitive damages award is excessive are
(i) the relative wealth of the defendant; (ii) the nature of the alleged misconduct; (iii) the facts and circumstances surrounding such conduct; (iv) the effect thereof on the lives of the plaintiff and others; (v) the probability of future recurrence of the misconduct; (vi) the relationship of the parties; and (vii) the amount of actual damages awarded.
Crookston v. Fire Ins. Exch., 817 P.2d 789, 808 (Utah 1991). As the findings above show, the trial court considered each of these factors. Further, "the amount of a punitive damage award generally must bear a `reasonable and rational' relationship to the actual damages" and not be "`grossly disproportionate' to the actual damages awarded." Id. at 810. The award here, approximately double the amount of actual damages, was reasonable. See id. ("Generally, we have found punitive damage awards below $100,000 not to be excessive . . . when the punitives do not exceed actual damages by more than a ratio of approximately 3 to 1.").
IV. Costs and Attorney Fees
¶ 29 Graham asserts that costs and attorney fees were not properly awarded. But the trial court determined "that Graham's defense of Burton Lumber's claims on which it was successful and his prosecution of his counterclaims was in bad faith and that such defenses and claims were without merit." Thus, the court determined that attorney fees were proper under Utah Code section 78-27-56 because "all of Burton Lumber's fees were incurred because of Graham's bad faith assertion of all his counterclaims and his defenses to Burton Lumber's claims except his defenses to Burton Lumber's fraud and improper expense claims." See generally Utah Code Ann. § 78-27-56(1) (2002) ("In civil actions, the court shall award reasonable attorney[ ] fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith. . . ."). Graham states that the evidence does not support the trial court's finding of bad faith, but then he discusses this assertion no further. Thus, we again accept the trial court's findings and its resulting determination. See supra ¶¶ 12-13.
¶ 30 Graham also argues that Burton Lumber's attorneys' invoices are lacking sufficient detail to determine which attorney fees were incurred for which issues, and that the trial court was essentially left to guess on this matter. He also claims that the evidence presented by Burton Lumber was not sufficient to show that the attorney fees were reasonable. However, there was ample evidence before the trial court to make these determinations. The trial court was provided with the hourly rates of Burton Lumber's attorneys and found such to be "reasonable and customary." The court also determined that Burton Lumber's attorney fees were *1022 "substantially increased as a result of Graham's litigation strategy, including the taking of numerous lengthy depositions, requesting and receiving many thousands of pages of documents, and lengthy questioning of witnesses and calling at best tangentially relevant witnesses at trial which significantly lengthened the trial." Burton Lumber's primary attorney also testified in support of the time allocations on the invoices, which testimony the trial court apparently accepted as true notwithstanding Graham's claims that such evidence need not be accepted because the testimony was "self-serving."
¶ 31 Graham further alleges that in arriving at the attorney fees award no time was allocated to Burton Lumber's unsuccessful fraud and improper expense reimbursement claims. But the trial court did deduct from the attorney fee award an amount representing "more than the amount of time actually expended in pursuing the fraud claim." The court also found that "almost all, if not all, of the legal services performed with respect to the fraud claim were also relevant and necessary with respect to the other issues in the case upon which Burton Lumber was successful." And the court followed this finding with specific examples. The trial court also found that the amount involved in the improper expense reimbursement claim "was minimal." And again, the court found that "almost all, if not all, of the legal services devoted to this issue were necessary and relevant with respect to Graham's credibility." Moreover, although the trial court did not think it necessary to do so, the court determined, based upon the evidence before it, that a further fees reduction of $5000 would "more than compensate" for any fees arising from the improper expense reimbursement claim and any other unsuccessful motions. We therefore see no error with the award of attorney fees.
¶ 32 Graham also sets forth a one-sentence argument asserting that costs were improperly awarded because Burton Lumber's November 11, 2005 Memorandum of Costs and Disbursements was served on Graham before the judgment was entered and was therefore in violation of rule 54(d)(2) of the Utah Rules of Civil Procedure. See generally Utah R. Civ. P. 54(d)(2) ("The party who claims his costs must within five days after the entry of judgment serve upon the adverse party against whom costs are claimed, a copy of a memorandum of the items of his costs and necessary disbursements in the action. . . ."). But the judgment was entered on November 7, 2005, so the timing of the Memorandum complied with rule 54(d)(2). See id.
¶ 33 In another one-sentence argument, Graham takes issue with the awarded costs related to various depositions, stating that these were not essential costs. However, the trial court ruled otherwise. The court explained the basis of the award:
[T]his case presented a significant level of complexity that required counsel for [Burton Lumber] to depose numerous people in order to adequately prepare for trial and to provide the Court with the information necessary to appreciate the facts of this case. Furthermore, the Court notes the direct connection between these depositions and testimony presented at trial.
Insofar as Graham attempts to challenge these findings, we again do not address such a challenge based on his failure to marshal. See supra ¶¶ 12-13. Insofar as this was a legal challenge to whether these findings are sufficient to award deposition costs, the very case Graham cites, Young v. State, 2000 UT 91, 16 P.3d 549, would support the award given these findings. See id. ¶ 11 ("The trial court must find that the depositions were essential because they were used in a meaningful way at trial, or because the development of the case was of such a complex nature that the information in the depositions could not be obtained through less expensive means of discovery, before [a party] can recover these amounts as costs.").
¶ 34 Graham argues that he should be awarded his costs and attorney fees, not only the fees incurred from defending this action, but also, on a theory of consequential damages, for those costs and attorney fees incurred in defending against a case brought by the plant building's landlord and in defending against criminal charges. This argument rests upon Graham's assertion that Burton Lumber terminated him to avoid having to pay under Paragraph 7.4 of the Agreement, *1023 which assertion is not consistent with the trial court's factual findings; and as discussed above, we do not disturb those findings. See supra ¶ 18. We therefore affirm the trial court's determination on this matter as well.
CONCLUSION
¶ 35 Because Graham makes no real attempt to marshal the evidence supporting the challenged findings of fact, we accept all the facts found by the trial court. As to the legal issues Graham raises, we agree with the trial court that the Agreement is not unconscionable and that the awards of both punitive damages and attorney fees and costs were proper and reasonable. Affirmed.
¶ 36 I CONCUR: GREGORY K. ORME, Judge.
¶ 37 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Judge.
NOTES
[1] Graham also provides us with more than twenty "unreceived" exhibits. We cannot consider such documents in our inquiry into whether "the evidence is legally insufficient to support the findings," Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989) (emphasis added).
[2] Graham also makes a waiver argument regarding this issue, which argument is misplaced. Waiver requires "an intention to relinquish" a known right. Geisdorf v. Doughty, 972 P.2d 67, 72 (Utah 1998). There is no indication that Burton Lumber intended to relinquish its right to recover from Graham by not accepting payment on behalf of Graham by a third party.
[3] To the extent that this is an interpretation of the Agreement, which is a legal question, there is no error here. The Agreement specifically provides in Paragraph 1.6: "Except for accounts receivable and personal assets of Graham such as his home, furniture, cars, and clothing there are no excludable assets. [Burton Lumber] is purchasing all assets of [Graham]." The items taken by Graham, including office computer equipment and several tools, were not such personal items.
[4] Graham specifically suggests that the award to Burton Lumber for the lease expense of his company truck was granted under a theory of breach of oral contract, which he argues was based on his statement that he would return the truck. But the trial court's determination was not based on Graham's breach of an oral contract resulting from that statement but, rather, was based on his breach of the Agreement.
[5] It is not clear whether Graham's argument is a challenge to the court's finding that he acquiesced to Burton Lumber keeping his paycheck. Indeed, several of Graham's arguments are imprecise as to the exact errors being alleged, providing, at best, very cursory analyses. This argument regarding Graham's paycheck is a prime example, consisting of a one-sentence assertion that the action on the part of Burton Lumber was improper. Such an argument does not comply with appellate briefing rules. See Utah R.App. P. 24(a)(9) (requiring an appellant's argument to "contain the contentions and reasons of the appellant with respect to the issues presented"); West Jordan City v. Goodman, 2006 UT 27, ¶ 29, 135 P.3d 874 ("This court is not a depository in which the appealing party may dump the burden of argument and research. An adequately briefed argument must provide meaningful legal analysis. A brief must go beyond providing conclusory statements and fully identify, analyze, and cite its legal arguments. This analysis requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority." (footnotes and internal quotation marks omitted)). We warn that such noncompliance may have serious consequences because we have the discretion to strike the noncompliant arguments and "assess attorney fees against the offending lawyer." Utah R.App. P. 24(k).
[6] Graham's related claim that there would have been more profits had Burton Lumber replaced him with a more experienced manager is unavailing. As the findings support, Graham was never entitled to profits even if some had been realized.
[7] Graham cites selected excerpts from a summary judgment ruling, whereby he implies that the trial court determined that the parties mutually breached the Agreement during the weeks between the signing of the Agreement on March 6 and the completion of the takeover on April 1. This is a mischaracterization of the ruling. Although the trial court noted that the facts "suggest a mutual breach of contract," the court determined only that "[t]here is much debate concerning ownership of contracts completed by the panelization plant in the window of time between March 6 and April 1" and that summary judgment was inappropriate on this issue. (Emphasis added.)
[8] To the extent that this is another contract interpretation issue, we see no error. The contract states:
If Graham quits his employment with [Burton Lumber], he shall have no right to continue to use . . . the truck and must surrender possession of the truck to [Burton Lumber] immediately. If Graham is fired without just cause, he shall be entitled to keep the truck and [Burton Lumber] will deliver title to the truck to him free and clear of all liens and/or encumbrances.
We think it a correct interpretation that if Graham was fired for cause, i.e., his actions essentially terminated his employment, then he would not be allowed to keep the truck. The opposite conclusion would be nonsensical, requiring return of the truck if Graham chose to leave but allowing him to keep the truck if he committed actions, such as the embezzlement that occurred here, which led to him being terminated for cause.
[9] Although the Agreement allowed Burton Lumber to terminate Graham at any time, with or without cause, the covenant of good faith and fair dealing would likely prevent Burton Lumber from firing Graham for the sole purpose of avoiding the contingent deferred purchase price. See Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 16, 94 P.3d 193 ("Broadly speaking, the more leeway a party has under the terms of the contract, the more contracting parties may invoke the protections of the covenant of good faith and fair dealing in the exercise of that discretion."). But this issue is not before us because the trial court specifically found that Graham was fired because of his embezzling and not because Burton Lumber wanted to avoid the contingent payments under the contract. See supra ¶ 18.
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160 S.W.3d 288 (2005)
In re Barbara GOSS.
No. 06-05-00033-CV.
Court of Appeals of Texas, Texarkana.
Submitted March 17, 2005.
Decided March 25, 2005.
*289 P. Michael Jung, Strasburger & Price, LLP, Dallas, George A. Boll, Jeff R. Ward, Juneau, Boll & Ward, PLLC, Addison, for relator.
Deborah J. Race, Ireland, Carroll & Kelley, PC, Charles H. Clark, Clark, Lea, Ainsworth & Porter, Tyler, for real party in interest.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Opinion by Justice ROSS.
Barbara Goss, the plaintiff below, has filed a petition for writ of mandamus asking us to order the trial court to vacate its order granting Brookshire Grocery Company's motion for new trial. She contends the grant is not valid because the trial court had lost plenary power before it granted the motion.
The underlying lawsuit is a tort action by Goss against Brookshire in which the jury awarded substantial damages in her favor. Following the jury's verdict, but before judgment, Brookshire filed a combined motion for judgment notwithstanding the verdict, and in the alternative, motion for new trial. A hearing was held on Brookshire's motions, after which the trial court rendered judgment on the jury's verdict. Brookshire's motions were denied by written order signed the next day.[1] Brookshire later filed a much more extensive motion for new trial, which the trial court ultimately granted. The question is whether, when that order was finally issued, the trial court still had the plenary authority to do so. We conclude that it did not.
Mandamus is appropriate relief when a trial court issues an order after its plenary power has expired, because such an order is void. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000).
The following timetable shows the relevant filings, hearings, and rulings:
Brookshire files motion for judgment notwithstanding the
verdict and alternative motion for new trial: 12/03/2004
*290
Hearing on motions and judgment signed 12/09/2004
Order overruling motions signed: 12/10/2004
Brookshire files second motion for new trial: 01/07/2005
Hearing on second motion for new trial: 01/25/2005
Order granting second motion for new trial signed: 02/01/2005
The relevant plenary power provisions of Tex.R. Civ. P. 329b are as follows: (1) if no motion for new trial is filed, the court has plenary power for thirty days after the judgment is signed; (2) if a motion for new trial is filed and there is no formal ruling, it is overruled as a matter of law seventy-five days after the judgment is signed; (3) if a motion for new trial is filed, the court has plenary power over its judgment until "thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first." Under these provisions, a trial court retains plenary power for thirty days after it rules, or for seventy-five days (when overruled as a matter of law), plus thirty more. The motion in this case, partially titled "In the Alternative Motion for New Trial" was overruled December 10, 2004. Goss contends the trial court lost plenary power January 10, 2005; thus, the court was clearly without authority when it granted Brookshire's second motion February 1, 2005. Brookshire responds with two alternative arguments.
Brookshire contends the initial motion entitled "Motion for Judgment Notwithstanding the Verdict and in the Alternative Motion for New Trial" was not considered as such by the trial court. Brookshire posits that the trial court understood that motion to be only a motion for judgment notwithstanding the verdict and that Brookshire would later file a more complete motion for new trial. Language suggesting that is what Brookshire contemplated can be found in the motion itself:
In the event the court declines the relief requested in this motion and enters a judgment, Brookshires intends to file a more comprehensive motion for new trial raising all insufficiency and other complaints not addressed herein.
Comments made at the hearing by the trial court also support Brookshire's argument:
realistically what's before the Court right now is whether or not the Court should enter a judgment on the, on the verdict or a judgment notwithstanding the verdict.
Therefore, Brookshire argues, because the first motion was purely a motion for judgment notwithstanding the verdict (and not a motion for new trial), the rules permitted it to file its complete motion for new trial within the initial thirty-day time period. If correct, then the standard seventy-five-day time period applied as started by the filing of that complete (second) motion filed within thirty days of the signing of the judgment. Under this argument, a timely motion was filed within thirty days, and because there was still an outstanding and unruled-on motion pending, the court had the full seventy-five days from judgment to rule. Thus, under this view, the order granting a new trial was valid.
The language of the trial court's order, however, belies Brookshire's argument:
On December 9, 2004, came on to be heard Defendant Brookshire Grocery Company's Motion for Judgment Notwithstanding the Verdict and In the Alternative Motion for New Trial and Plaintiff's Response to same. Having considered the pleadings and the evidence presented, and having heard and considered the arguments of counsel, the *291 Court finds that said Motions are DENIED.
Although the hearing on the first motion was mostly directed at a discussion of the motion for judgment notwithstanding the verdict, it was not exclusively so. This was partly because of an overlap in the requested relief and the reasons for that relief. The result is, we cannot say conclusively that the court ruled solely on the motion for judgment notwithstanding the verdict and that it did not consider the motion for new trial. Even if the court did at one time have that intention, the judgment itself clearly and unambiguously disposes of both motions, and to make such a decision was clearly within the authority of the court.
Brookshire also argues that, at the hearing on the first motion, the trial court impliedly granted it permission to file an amended motion for new trial. This argument is supported by the transcription of the hearing where the trial court was informed of, and was expecting, a much more extensive motion for new trial to be filed. In the context of a discussion of whether there was any evidence to support the jury's verdict, the court made these comments:
when [the judgment is] entered, I will look more carefully at the other points that you have given me a heads up on at least.
....
I will go ahead then and ... enter the judgment so you can get a copy of that and go ahead and proceed on then with the, with the motion for new trial.
Arguably, the trial court did at least impliedly grant permission to file an amended motion. Assuming that such permission can be granted by implication under these facts, the remaining question is whether it would serve to extend the plenary authority of the trial court. The Texas Supreme Court has held that it does not.
In order for Brookshire to prevail, it must distinguish In re Dickason, 987 S.W.2d 570 (Tex.1998). In that case, the Texas Supreme Court stated that, once the trial court overrules a motion for new trial, the court retains plenary power for another thirty days, and that "[f]iling an amended motion for new trial does not extend the court's plenary power." Id. at 571; see also In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding).
Brookshire argues that its position is nonetheless controlled by Rule 329b(e), which provides that, if a timely motion for new trial is filed (and this one was filed within thirty days of judgment), then the court retains plenary power until thirty days after the timely-filed motion is overruled, either by written order or as a matter of lawwhichever comes first.[2]
Brookshire argues that Dickason is distinguishable because it does not show that the second motion for new trial was either timely filed or filed with the permission of the court. Under its analysis, the critical distinction is whether the motion was timely filed with permission of the courtand if it was, then Rule 329b(e) leaves plenary power with the trial court until thirty days after that motion is overruled.
That argument is not persuasive. In Dickason, the court would have analyzed *292 the matter substantially differently had it been of the opinion that no timely motion was filed. The opinion is predicated on the assumption that a proper amended motion was before the courtand yet concludes that the plenary time periods are exclusively based on the original motionnot on the amended motion.
We conclude the trial court acted outside the period of its plenary authority over its judgment in granting the motion for new trial. We therefore conditionally grant the writ of mandamus, and direct the trial court to vacate its February 1, 2005, order granting Brookshire a new trial.
The writ will issue only if the trial court fails to comply.
NOTES
[1] Even though Brookshire's motions predated the judgment, under Tex.R. Civ. P. 306c, they became effective on the date of the judgment.
[2] We note cases cited by Goss to the effect that an amended motion can only be filed within the thirty-day time frame if a preceding motion has not yet been ruled on. Milam v. Nat'l Ins. Crime Bureau, 989 S.W.2d 126, 129 n. 1 (Tex.App.-San Antonio 1999, no pet.); Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 419 n. 2 (Tex.App.-Amarillo 1995, no writ).
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353 S.W.2d 102 (1961)
BYERS BROS. REAL ESTATE & INSURANCE AGENCY, INC., a Corporation, Respondent,
v.
H. Howard CAMPBELL and Suburban Realty Company, Inc., a Corporation, Appellants.
No. 23428.
Kansas City Court of Appeals, Missouri.
December 4, 1961.
*103 Robert E. Coleberd, Hale, Coleberd, Kincaid & Waters, Liberty, for appellants.
Thaine Q. Blumer, Blumer & Wright, Kansas City, for respondent.
HUNTER, Presiding Judge.
This is an action for damages by plaintiff-respondent, Byers Brothers Real Estate and Insurance Agency, a corporation, for conspiracy to defraud plaintiff of his $400.00 earned real estate commission under an exclusive real estate contract, against defendants-appellants, Suburban Realty Company, Inc., a corporation, and its employee, H. Howard Campbell. Plaintiff dismissed with prejudice as to the defendants, Mr. and Mrs. Browning, having compromised and settled its claim with them for $300.00.
On the first trial plaintiff received a verdict for $100.00 actual and $4,500.00 punitive damages. The trial court sustained defendants' motion for a new trial and this court affirmed because of the error committed by plaintiff in reading an unsigned deposition to the jury. See, Byers Bros *104 Real Estate & Ins. Agency, Inc. v. Campbell, Mo.App., 329 S.W.2d 393.
On the second trial plaintiff received a verdict for $100.00 actual and $7,500.00 punitive damages. The trial court entered judgment accordingly, and this second appeal resulted.
The controversy arose as a result of the efforts of the Brownings to sell their house located in Clay County, Missouri. By a written contract dated April 8, 1957, they employed plaintiff company to sell the house agreeing "* * * that the Owner hereby appoints (plaintiff) as the sole and exclusive Agent for the sale of said property, at a price and terms as follows: ($8,750.00) or at any other price and terms with the consent of the Owner.
"This exclusive agency contract is irrevocable for a period of (30 days) days from the date hereof.
"If the property be sold or otherwise disposed of by anyone while this contract is in effect, the Owner agrees to pay the Agent a commission of Five (5) per cent on the gross amount of the sale, * * *."
Shortly thereafter (before April 16) and within the 30 day exclusive period defendant Campbell brought a Mr. and Mrs. Hughes to look at the house and they wanted to buy it. Mr. Browning testified Mr. Campbell told the Brownings that he had a buyer who would pay cash and that he had his name on a contract. Mr. Browning then advised Mr. Campbell that he and Mrs. Browning had given the sale of the property exclusively to another company, naming plaintiff company. "Q. So you told Mr. Campbell it was a 30-day exclusive, from April 8, 1957, and Mr. Campbell told you they would have the deeds dated after the expiration of Byers Brothers' contract? A. Yes, that is what he said." "* * * he told me they would postpone the final signing of the contract. * * * Q. After you executed this contract with the Hugheses, (on April 16, 1957) did Byers Brothers send any men by with prospective purchasers? A. Yes. Q. What did you tell them about this sale to the Hughes? A. Well, I didn't tell them. Q. Did you show the house to the prospective purchasers? A. Yes. This Mr. Campbell told me not tohe told me to go ahead and show it just as little as possible and not to tell. Q. Mr. Campbell said not to tell Byers Brothers of the contract that you signed with the Hughes? A. Yes. * * * Did you ask him if you would have to pay Byers Brothers a commission? A. He said we wouldn't."
Defendant Campbell's testimony was substantially in accord. He admitted Mr. Browning told him, "Well, Mr. Campbell, we listed the house on an exclusive basis with another realty firm." He then reported this to Mr. Kuhn, president and principal stockholder of Suburban Realty Company, Inc., and Mr. Kuhn told him to go ahead and sell it anyhow. Mr. Kuhn in his testimony did not deny knowledge of the situation, and admitted he instructed defendant Campbell what to do.
During the 30-day exclusive agency period plaintiff, not knowing that the sale of the house had already been contracted frequently advertised it in the newspaper and on numerous occasions took prospective buyers to the house to show it. On such occasions either Mr. or Mrs. Browning would be present. On one occasion it took a prospective purchaser, Mr. Waters, to Mr. Browning, who first stated he would sell to Mr. Waters upon certain conditions, but upon those conditions being immediately agreed to, refused and said he would sell only on additional conditions to which Mr. Waters also agreed. Then, according to the testimony of Mrs. Waters, he proceeded to discourage and insult Mr. Waters by asking numerous questions. "* * * he (Browning) started discussing the house, the roof was leaking and I don't know what all. Then he was very rude to my husband. * * * he asked him where he worked, then he asked how old he was, how much he made, how long he'd been employed with the company, if he bought *105 the property did he think he could keep up the payments. * * * And several questions like that." Then Mr. Browning increased his terms again and Mr. Waters was discouraged and did not agree to them. The Brownings never revealed to plaintiff or Mr. Waters that they had already contracted to sell their house to the Hugheses for $8,000.00.
Some two weeks later plaintiff learned of the earlier sale to the Hugheses and that the Brownings had paid a 5% sales commission on the $8,000 sales price to defendant Suburban Realty Company. Defendants refused to pay any commission to plaintiff.
As their first point defendants assert the trial court erred in submitting the issue of punitive damages to the jury for the reason the case relates purely to the breach of a contract, and punitive damages are not recoverable in an action for a breach of contract. The difficulty with the contention is that the action is not one for damages for breach of contract but is premised on the alleged executed conspiracy of the defendants to sell the house under circumstances of secrecy and in such a manner as to defraud plaintiff of the $400.00 real estate commission it was entitled to receive under the terms of the contract. The evidence supports plaintiff's charge that the defendants with the intent of securing for themselves the commission for the sale of the Brownings' house conspired with the Brownings to defraud the plaintiff of the commission due plaintiff under the terms of the contract by concealing from plaintiff the fact a sale had been made within the exclusive period through such acts as post-dating various papers, by discouraging other potential buyers produced by plaintiff within the exclusive period, by conspiring to conceal and by concealing from plaintiff the fact that it was entitled to a commission and by receiving plaintiff's commission and retaining it.
The general subject has been well covered by our Supreme Court in Rosen v. Alside, Inc., Mo., 248 S.W.2d 638, 643: "A civil conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which is lawful. Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083; Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526. Strictly speaking, there has been no distinct form of writ or action of conspiracy; but the action sounds in tort, and is of the nature of an action on the case upon the wrong done under the conspiracy alleged. 11 Am.Jur., Conspiracy, § 53, p. 584; 15 C.J.S. Conspiracy § 21, pp. 1031-1033. The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff. Shaltupsky v. Brown Shoe Co., supra; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998; Seegers v. Marx & Haas Clothing Co., supra; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570. A combination for the purpose of causing a breach of contract has been held to be an unlawful conspiracy. A person who by conspiring with another or by collusive agreement with him assists him to violate his contract with a third person and to obtain the benefit of that contract for himself commits an actionable wrong."
As stated in the Rosen case, supra, conspiracy does not ordinarily give rise to a civil action unless something is done pursuant to it, which without the conspiracy, would create a right of action against the defendants generally. In the case before us it is the fraud that occurred. Fraud was practiced upon the plaintiff to its damage. And it is the general rule that punitive damages are recoverable in any action of tort involving the commission of fraud. 15 Am.Jur., Damages, Sec. 272, page 708. Thus, although it is the general rule that damages for breach of contract are limited to the pecuniary loss sustained, where the breach is occasioned by and but a part of an executed conspiracy to defraud and the action sued on is for the *106 tortthe fraud committed, exemplary damages may ensue. See, Hart v. Midkiff, Mo., 321 S.W.2d 500, 508(13); 25 C.J.S. Damages § 120, p. 716; Prosser, Law of Torts, 2nd Ed., Chapter 22, pp. 744-745; Louis Schlesinger Co. v. Rice, 4 N.J. 169, 72 A.2d 197. We rule the action before us is one of conspiracy to defraud, essentially sounding in tort, and as such may carry with it the assessment of punitive damages.
The remaining reasons defendants give in support of their contention that punitive damages do not lie go in the main to the question of whether a submissible case of conspiracy to defraud was made. Most of these were treated in our earlier opinion, Byers Bros. Real Estate & Insurance Agency, Inc. v. Campbell, Mo.App., 329 S.W.2d 393. Since the facts presented on the second trial are substantially the same as those on the first trial, what we there said became the law of the case. The evidence is sufficient to make a submissible case of conspiracy to defraud. It is of no avail to now argue the jury should have come to a different conclusion where the evidence, as here, viewed in its light most favorable to plaintiff, together with the permissible inferences therefrom, supports the verdict. This is especially true of defendants' contention that there is no evidence to show they did anything to prevent a sale to a prospective purchaser who was ready, able and willing to purchase according to the contract terms. Twice defendants stated their terms to Mr. Waters but upon his agreeing to them the defendants made additional requirements.
Nor is there merit to defendants' contention that in submitting its Instruction 4A instructing the jury the actual damages were $100.00 any admission by plaintiff that its action was for breach of contract. According to plaintiff's evidence it was defrauded of its $400.00 commission and other defendants settled their liability by paying $300.00. The instructions, including No. 4A, were drawn on the tort theory of a conspiracy to defraud which was accomplished.
Defendants also charge error in the giving of Instruction No. 1 for the reason the instruction required, among numerous others, the jury to find 2(a) "Brownings avoided the telephone calls of plaintiff's salesman King, if so," 2(b) "Brownings avoided an appointment with King and Waters at plaintiff's office" and 2(c) "that in furtherance of said conspiracy, if so, Brownings discouraged a sale to the Waters by advising them of a leak in the roof" when there was no evidence to support such findings.
Plaintiff's Instruction No. 1 required in the conjunctive the finding of many facts supportive of its charge of conspiracy to defraud. One portion read "* * * and that in furtherance of said conspiracy, if any, you find the Brownings first agreed to a sale to the Waters but then refused to consummate such a sale, if so, and that in furtherance of said conspiracy, if so, Brownings discouraged a sale to the Waters by advising them of a leak in the roof, if so, and if you further find plaintiff to have been defrauded of a sales commission and thereby damaged, if you so find. * *" The circumstances under which the Waters were told of a leak in the roof so large they had to catch the water "in buckets" considered with the evidence that the Brownings had not told King of a leak prior to that time, and King did not see a leak, provide a sufficient evidential basis for a finding that the motive of the Brownings in telling of the leak in the manner and to the extent they did was to discourage a sale to the Waters. Fraud and fraudulent motive are sometimes difficult to prove for fraud is seldom perpetrated openly or disclosed to witnesses. Frequently the proof, of necessity, consists of circumstantial evidence and the reasonable inferences therefrom. The evidence and its reasonable inferences amply supported this submission.
*107 Considering 2(b), there was evidence that King, plaintiff's agent, had arranged for the Brownings to meet with him and Mr. Waters at King's office. King and Waters waited 30 minutes beyond the appointment time, and then Mr. Browning called and said he couldn't make it. Defendants argue this is not evidence "Browning avoided an appointment with King and Waters at plaintiff's office." This evidence combined with the evidence that defendant Campbell had instructed Browning to show the house as little as possible, and, the other mentioned evidence of conspiracy provides a sufficient basis for the submission of the questioned item. Plaintiff was entitled to submit its instructions not only on the direct evidence but also on the reasonable inferences that it might bear.
As to Point 2(a), it is true that when Mr. Browning was asked, "Q. Did you try to avoid their telephone calls and their contacts?" he answered, "No, we were there all the time." However, in view of other evidence the jury may not have believed Mr. Browning's answer. The evidence was that plaintiff's salesman King tried many times "to contact" Browning after April 16, 1957, but found it "hard to do". It was a week after King had arrangements to show Mr. Waters the house that he could contact Mr. Browning. The questioned finding was perhaps a possible inference from the facts. Certainly it was sufficient to premise a finding Browning tried to avoid "their contacts". Whether such avoidance includes telephone calls is an incidental matter, surplusage and not a finding concerning an essential fact. It was just one item of many submitted in the conjunctive. Assuming there is no direct evidence to support that single item we cannot fairly say its conjunctive submission constituted such error as to necessitate a reversal of the case. While it is well-settled law that it is error to give an instruction which has no evidence to support it, not all errors are prejudicial so as to require a reversal. Cf. Wolf v. Kansas City Tire & Service Co., Mo.App., 257 S.W.2d 408, 414(12). Looking to the entire instruction, as we must, we are convinced that the error was not prejudicial to defendant, but, rather, if anything, unnecessarily added to plaintiff's burden.
Defendants' final contention is that the trial court erred in giving plaintiff's Instruction No. 2, the punitive damage instruction, because (1) it directs the jury "if you find from the evidence that the acts and things done by the defendants were willfully and maliciously done" without hypothesizing such acts and things or referring to other instructions that hypothesized them; and (2) it fails to tell the jury the assessment of punitive damages is discretionary.
Defendants cite Luikart v. Miller, Mo.Sup., 48 S.W.2d 867, 871, where the court in discussing a punitive damage instruction worded differently from that before us stated, "The jury should have been instructed as to what `act and representations in question' which they might find were willful and malicious would authorize punitive damages." We agree that this is the rule. The instructions when read as a whole must clearly instruct the jury on that subject and not give the jury a roving commission to guess what acts or things are meant. While Instruction No. 2 does not within itself hypothesize the acts and things referred to, they were set out in detail in the conjunctive in Instruction No. 1, which closed by directing the jury that if it found them from the evidence "your verdict should be for the plaintiff against both defendants". The first sentence of Instruction No. 2, stated, "The court instructs the jury that if you find for the plaintiff, and if you further find from the evidence that the acts and things done by the defendants were willfully and maliciously done, then, in addition to the actual damages, you may assess against the defendants by way of punishment for such wrongful acts exemplary or punitive damages. * * *" It is fundamental that the instructions must be read *108 as a whole. If when read as a whole the instructions are sufficient to make it clear to the jury what is intended by the submission there can be no merit to the contention that an instruction which did not repeat that which was properly submitted in another instruction is reversibly erroneous. In Hall v. Martindale, Mo.App., 166 S.W.2d 594, 604, in disposing of a contention similar to the one before us the court stated: "* * * even though one particular instruction might be looked upon as incomplete if read without regard to the other given instructions, it nevertheless suffices if its partial view is supplemented by the other instructions so that the whole are consistent and harmonious." We believe the jury, as reasonable men, understood the acts and things referred to were those detailed in the conjunctive in Instruction No. 1, which the jury was required to find before it could consider any damages under Instruction No. 2. Additionally, Instruction No. 1 itself required a finding that each act of defendant Campbell submitted in the instruction was committed with the intent to defraud plaintiff. Under these circumstances, we find no reversible error. However, the instruction is no model for future use and the problem presented here should not recur. See, Pogue v. Rosegrant, Mo.Sup., 98 S.W.2d 528, 533; Hart v. Midkiff, supra, 321 S.W.2d p. 509.
Finally, we rule Instruction No. 2 in using the word "may" did advise the jury that any allowance of punitive damages was discretionary with the jury, and that it did not have to grant punitive damages. An accepted dictionary definition of "may" is "permission". Permission to do a thing is not a requirement or order that it be done. In State ex rel. Kennen v. Fidelity & Deposit Co., 94 Mo.App. 184, 67 S.W. 958, 963, the court discussed an instruction on permissive interest. The instruction provided, "* * * to which you may add 6% interest * * *." The court ruled "But it did in fact leave the allowance of interest to the discretion of the jury, and, if the defendants were not satisfied with the instruction, they should have asked for a more definite direction." Cf. Dickensheet v. Chouteau Mining Co., 200 Mo.App. 150, 202 S.W. 624. We find no merit in defendants' final contention.
The judgment is affirmed.
All concur.
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668 P.2d 656 (1983)
Mark Wayne SCHMIDT, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 5828.
Supreme Court of Wyoming.
September 2, 1983.
Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Michael L. Hubbard, Asst. Atty. Gen., for appellee.
Before ROONEY, C.J., and RAPER,[*] THOMAS, ROSE, and BROWN, JJ.
THOMAS, Justice.
This case presents the question of an abuse of discretion on the part of the district court in denying a motion which was made prior to the imposition of sentence by the appellant, Mark Wayne Schmidt, to withdraw his plea of guilty. We conclude that under Rule 33(d), W.R.Cr.P., the test to be applied in reviewing the ruling of the district court when a criminal defendant moves to withdraw his plea of guilty before sentence is imposed is whether there was an abuse of discretion on the part of the sentencing judge. In this instance there was no abuse of discretion, and the judgment and sentence imposed by the district court will be affirmed.
In his brief Mark Wayne Schmidt states the issue as follows:
*657 "Whether trial court erred in denying Appellant's pre-sentence motion to withdraw his guilty plea and re-enter pleas of not guilty and not guilty by reason of mental illness or deficiency."
In its statement of the issue appellee, the State of Wyoming, invokes the applicable test, and states the issue as follows:
"DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING?"
The record in this case discloses the following events in connection with the prosecution of Schmidt. The criminal complaint which was filed on July 16, 1981, charged that on July 14, 1981, Schmidt committed the crimes of sexual assault in the first degree in violation of § 6-4-302(a), W.S. 1977, and assault while armed with a deadly or dangerous weapon in violation of § 6-4-506(b), W.S. 1977. Schmidt was arrested on August 2, 1981, and on August 4, 1981 he was brought before the commissioner for proceedings in accordance with Rule 5, W.R. Cr.P. On August 14, 1981, a written waiver of Schmidt's right to a speedy preliminary hearing was filed, and on August 25, 1981, he filed a motion pursuant to § 7-11-303, W.S. 1977, seeking an examination on the question of whether he suffered from a mental illness or deficiency.[1]
On August 26, 1981, the State and Schmidt stipulated a reasonable belief that grounds existed which would necessitate the examination under the statute, and on August 27, 1981, the justice of the peace transferred the case to the district court so that it might proceed to order an examination pursuant to the statute. On August 31, 1981, the district court ordered the examination, and Dr. Brian Miracle was appointed to make it.
*658 Dr. Miracle submitted his report on October 1, 1981, and on October 30, 1981, the district court remanded the case to the justice of the peace court for a preliminary hearing. Thereafter, on November 6, 1981, Mark Schmidt filed a written waiver of his right to a preliminary hearing, and on November 9, 1981, an information was filed in the district court. The charges alleged in the information were identical to those which had been asserted in the criminal complaint, except that reference was made to a prior conviction of rape in the State of Iowa which the State suggested resulted in the maximum penalty for the charge of sexual assault being five years to life in accordance with § 6-4-306(c)(i), W.S. 1977. On November 12, 1981, an order was entered setting the case for arraignment on November 20, 1981.
On November 20, 1981, Schmidt filed a Motion to Require Plaintiff to Amend Information to Conform to Charge on Original Complaint in which he contended that he had waived preliminary hearing on only a charge of sexual assault in the first degree and had not waived preliminary hearing on a charge of sexual assault in the first degree aggravated by a prior conviction. On November 20, 1981, Schmidt's arraignment was commenced together with the arraignment of other persons charged with criminal violations, but when he pressed his motion no plea was entered. On December 11, 1981, a written waiver of his right to a speedy trial was filed by Schmidt, and on the same date he entered pleas of not guilty to both Count 1 and Count 2 of the Information which had been amended to delete from Count 1 the aggravating circumstances with respect to the charge of sexual assault in the first degree.
On December 12, 1981, Schmidt was released from custody after the appearance bond required by the court had been filed. On February 12, 1982, that bond was revoked. Other information in the record discloses that the bond was revoked after Schmidt was charged with another sexual assault in Washakie County, Wyoming, which occurred after his release from custody. Schmidt's trial was set for April 12, 1981, and the State subpoenaed witnesses for that trial.
On April 9, 1982, Schmidt again was before the district court at which time he continued his plea of not guilty but added a plea of not guilty by reason of mental illness or deficiency. In an order which was dated April 13, 1982, and filed on April 16, 1982, the district court reflected those proceedings and ordered an examination in accordance with § 7-11-304, W.S. 1977[2], noting *659 in its order that an earlier examination had been made in accordance with § 7-11-303(b), W.S. 1977. On May 24, 1982, Dr. Miracle, who again had been designated as the examiner, but this time of the defendant's choice, filed his second report. In the meantime an examination also had been conducted at the Wyoming State Hospital, apparently in connection with the criminal proceedings which had been filed in Washakie County, Wyoming, and a report dated February 25, 1982, from the Wyoming State Hospital is included among the papers in the record in this case.
Thereafter the trial date again was set for August 5, 1982. The State of Wyoming subpoenaed six witnesses to proceed with this trial. In the meantime the State of Wyoming had filed another Amended Information which alleged the aggravation of the first count relating to sexual assault in the first degree and which relied upon a conviction of sexual assault in Washakie County as an aggravating circumstance enhancing the available sentence. On August 5, 1982, Mark Wayne Schmidt then changed his plea from not guilty and not guilty by reason of mental illness or deficiency to guilty to Count 1. The record reflects that this occurred while the jury panel was waiting in the court room. The record also reflects a written agreement between Mark Wayne Schmidt and the Big Horn County and Prosecuting Attorney by which the defendant agreed to plead guilty to one count of sexual assault after the Amended Information had again been amended to delete the aggravating circumstance for the enhancement of punishment as to that count. The State of Wyoming agreed to this amendment; agreed to dismiss Count 2 of the Amended Information; agreed not to object to any recommendation by defense counsel that the sentence imposed be the same as that imposed in Washakie County; and both parties agreed that the agreement which they had made was subject to approval by the court. On the same day the district court ordered a presentence investigation to be accomplished and the sentencing then was set for October 22, 1982.
On October 15, 1982, a Motion to Withdraw Guilty Plea was filed by the defendant, Mark Wayne Schmidt. This motion reflects that Schmidt had been evaluated on October 1, 1981, and May 24, 1982, by Dr. Brian Miracle, a clinical psychologist. It also notes that he had been evaluated by the Wyoming State Hospital at Evanston, Wyoming. The essence of the motion, then, is that in an examination performed on September 29, 1982, Dr. John F. Yost, a psychiatrist practicing in Denver, Colorado, concluded that Mark Schmidt "lacks substantial capacity to appreciate the wrongfullness [sic] of his conduct or to conform his conduct to the requirements of law in regards [sic] to the two sexual assaults mentioned in the preceding evaluation." In an accompanying affidavit Dr. Yost stated his conclusion:
"5. That on September 29, 1982, I conducted an examination of Mark Wayne Schmidt, defendant in the above-entitled matter, and based upon the examination upon my professional knowledge as a psychiatrist, it is my opinion that at the time of the alleged criminal conduct in this case, the accused, Mark Schmidt, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."
Dr. Yost's conclusion was premised upon his diagnosis that Schmidt suffered from:
"1) Post traumatic stress disorder delayed type (DSM III # 309.81); 2) Obsessive Compulsive Disorder (DSM III *660 # 300.30) manifested by repeated sexual acting out."
The justification in Schmidt's motion for relying upon Dr. Yost was that the previous evaluators did not have the specialized experience and training in dealing with post-Vietnam stress syndrome. The evaluations by Dr. Miracle and the Wyoming State Hospital were contrary in their ultimate conclusion to that of Dr. Yost. The reports indicate that the evaluators were aware of his service in Vietnam. Dr. Miracle's diagnoses do reflect "AXIS I 309.81 Post Traumatic Stress Syndrome." The report from the Wyoming State Hospital does not include that diagnosis. There also is present in the file a copy of a report submitted by the Iowa Security Medical Facility, Oakdale, Iowa, on August 24, 1973, a date which preceded Mark Wayne Schmidt's service in Vietnam, which relates to a similar event to that involved in this criminal case, and contains conclusions similar to those reached by the Wyoming State Hospital and Dr. Miracle.
The perimeter of our law with respect to the contentions of Mark Wayne Schmidt is set forth in Ecker v. State, Wyo., 545 P.2d 641, 642 (1976):
"Withdrawal of a plea of guilty before sentencing is not an absolute right. Denial by the district court is within its sound discretion and there must be a plausible reason for withdrawal. United States v. Webster, 9 Cir.1972, 468 F.2d 769, cert. den., 410 U.S. 934, 93 S. Ct. 1385, 35 L. Ed. 2d 597; United States v. Valdez, 5 Cir.1971, 450 F.2d 1145. See also United States v. Needles, 2 Cir.1973, 472 F.2d 652. Where an exhaustive voir dire of defendant before accepting plea makes it abundantly clear that the plea was entered voluntarily, with full understanding of its consequences, and there is a factual basis, there is no abuse of discretion. United States v. Fernandez, 2 Cir.1970, 428 F.2d 578. When a patient and understanding judge gives every consideration to a defendant's change of position the day before trial and the defendant attempts to mock the administration of justice, there is no abuse of discretion. Burnett v. United States, 10 Cir.1968, 404 F.2d 29."
In its reliance upon federal authorities, Ecker v. State, supra, reflects the proposition set forth in Hicklin v. State, Wyo., 535 P.2d 743, 748, 79 A.L.R. 3d 1050 (1975), that our Rule 33(d), W.R.Cr.P., is identical to Rule 32(d), F.R.Cr.P., which leads to persuasive authority in the federal cases which have construed that rule.
In Ecker v. State, supra, we alluded to "a plausible reason for withdrawal." Federal authorities have identified this as a "fair and just" reason for withdrawing the plea. See, e.g., Kercheval v. United States, 274 U.S. 220, 224, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927); Barker v. United States, 579 F.2d 1219 (10th Cir.1978). Whichever phrase is used, the presentation by Schmidt in connection with his motion for leave to withdraw his plea of guilty of supporting documentation for the proposition that he had developed reliable evidence sustaining the defense of mental illness or deficiency does present a "plausible reason" and a "fair and just" reason for withdrawing the plea. Other federal authorities then suggest that the burden should shift to the government to establish that it would be prejudiced if leave to withdraw the plea were granted. United States v. Strauss, 563 F.2d 127 (4th Cir.1977); United States v. Savage, 561 F.2d 554 (4th Cir.1977). This is not a universal view in the federal courts, however (United States v. Saft, 558 F.2d 1073, 41 A.L.R.Fed. 859 (2nd Cir.1977), and it would appear that there has been a shift in emphasis by virtue of the amendment of Rule 11, F.R.Cr.P., which now requires the placing of plea agreements in the record, for full inquiry into the voluntariness of the plea, for detailed advice to the defendant concerning his rights and consequences of the plea and a determination that the defendant understands these matters, and for a determination of the accuracy of the plea. United States v. Barker, 514 F.2d 208 (D.C. Cir.1975), cert. denied 421 U.S. 1013, 95 S. Ct. 2420, 44 L. Ed. 2d 682 (1975).
The American Bar Association Standards for Criminal Justice espouse in Standard 14-2.1 the proposition that the defendant should be allowed to withdraw his plea prior *661 or to imposition of sentence for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon defendant's plea. We note that prejudice has been recognized if potential witnesses may no longer be available, Government of Virgin Islands v. Berry, 631 F.2d 214 (3rd Cir.1980); in instances in which the government had discontinued its trial preparation and notified a number of witnesses not to appear and grand jury sessions scheduled for the defendant and other witnesses to testify to related circumstances would have to be cancelled, United States v. Brown, 617 F.2d 54 (4th Cir.1980); when the government would have to re-assemble some eighteen witnesses and the trial judge had at arraignment fully complied with Rule 11, United States v. Strauss, supra; and similar instances.
In this case Schmidt makes no contention that Rule 15, W.R.Cr.P., which tracks Rule 11 of the Federal Rules of Criminal Procedure, was not complied with scrupulously. The appellant Schmidt was advised in accordance with this rule on more than one occasion. There is no indication that the plea of guilty was not voluntary. The plea agreement is spread upon the record. There is no question as to the factual basis for the plea. On August 5, 1982, when, with the jury panel waiting, Mark Wayne Schmidt withdrew his pleas of not guilty and not guilty by reason of mental illness or deficiency and entered a plea of guilty the following colloquy occurred:
"THE COURT: Okay. Now, secondly, if you do withdraw your pleas of mental illness or deficiency, that ends that. You can't put that out as an issue. You can be tried on those two charges, your mental illness and deficiency pleas, that you were mentally ill. That's up to the jury to determine despite the fact that Mr. Miracle and Evanston say you are not mentally ill and you lack the capacity to go to trial, you can still plead that as an issue in the Courtroom and ask the jury to make that determination.
"Do you understand that?
"MR. SCHMIDT: Yes, sir.
"THE COURT: You waive that if you plead guilty.
"Do you understand that?
"MR. SCHMIDT: Yes, sir."
With due regard to the federal cases cited above, and the American Bar Association Standards for Criminal Justice, the rule in this state still is that withdrawal of a plea of guilty before sentencing is not an absolute right, and denial by the district court is within its sound discretion. Hanson v. State, Wyo., 590 P.2d 832 (1979); Ecker v. State, supra. See United States v. Rodriguez-DeMaya, 674 F.2d 1122 (5th Cir.1982). In light of the circumstances which have been recited at some length in this opinion, we cannot discern any abuse of the trial court's discretion in this instance. The trial court twice had ordered that Schmidt be examined on the issue of mental illness or deficiency. It had before it a third report from the Wyoming State Hospital, a fourth report from Dr. Yost, and a report made some years earlier in Iowa. The case had been filed in the district court for almost a year. Similar proceedings had been conducted in a neighboring county. The State of Wyoming had prepared its case for trial on two occasions, and on one of those the jury panel actually had reported for duty. Because abuse of discretion is the standard we do not require that the State establish prejudice, but on the state of this record we could not as a matter of law negate a conclusion by the district court that prejudice had been shown.
Concluding that there is no abuse of discretion manifested by the proceedings in this case, the judgment and sentence of the district court is affirmed.
ROSE, Justice, dissenting.
I dissent. Defendant Schmidt, subsequent to entering his plea of guilty pursuant to a plea agreement with the State, became possessed of a meritorious defense to the charges lodged against him. This defense was not discoverable prior to the time that Schmidt pled guilty. Certainly this constitutes a "plausible" reason for withdrawing the plea. To grant the motion to withdraw the guilty plea under such circumstances would indeed be fair and just.
*662 Schmidt had originally pled not guilty and later added a plea of not guilty by reason of mental illness or deficiency. Prior to changing his plea to guilty, he had been evaluated for mental capacity at least four times. The first of these was in Iowa in connection with similar charges several years previous. The second was performed in accordance with § 7-11-303(b), W.S. 1977 in connection with the instant charges. The third was necessitated by charges in another county. The fourth examination was conducted by the same doctor who performed the § 7-11-303(b) examination, and for purposes of this case he conducted another examination by authority of § 7-11-304, W.S. 1977. All of these examinations resulted in a determination that Schmidt was mentally competent at the time of the alleged criminal acts giving rise to this prosecution. After completion of these four examinations, the State amended the information to allege aggravating circumstances. Defendant then changed his plea to guilty to the current charge, in exchange for the State's promise to drop the aggravating charge and other concessions. Shortly thereafter, yet another examination was performed by a doctor who had more extensive experience with the post-Vietnam stress syndrome than any of the other evaluators. His determination was that Schmidt, at the time of the alleged criminal act, lacked substantial capacity to appreciate the wrongfulness of his conduct. Thus, the results of this examination revealed to the defendant a meritorious defense to the charges against him and he sought to withdraw his plea of guilty.
Based on these facts, the majority determine that the trial court did not abuse its discretion in denying the presentence motion to withdraw the guilty plea. The majority properly indicate that there is no absolute right to withdraw a guilty plea prior to sentencing and that whether to grant such a motion is within the sound discretion of the trial court. Hanson v. State, Wyo., 590 P.2d 832, 835 (1979); Ecker v. State, Wyo., 545 P.2d 641, 642 (1976); Nagelberg v. United States, 377 U.S. 266, 267, 84 S. Ct. 1252, 1253, 12 L. Ed. 2d 290 (1964); United States v. Hancock, 607 F.2d 337 (10th Cir.1979); Dorton v. United States, 447 F.2d 401, 411-412 (10th Cir.1971). The majority also properly equate the Wyoming standard that the defendant must show a plausible reason to withdraw his plea, Ecker v. State, supra, with the federal test of fairness and justice. Kercheval v. United States, 274 U.S. 220, 224, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927); Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978); Dorton v. United States, 447 F.2d at 412. However, the majority seem to ignore the fact that in discretionary rulings on motions to withdraw pleas of guilty, the trial court, and this court on review, have the benefit of judicial opinions which delineate the factors to be considered in the exercise of such discretion. Without saying as much, the majority consider and eliminate one such factor in this case by indicating that there is no contention that Rule 15, W.R.Cr.P. (Rule 11, F.R.Cr.P.) has not been complied with. 668 P.2d at 660-661. I depart from the majority because they have failed to adequately evaluate the other factors which must bear upon the discretionary exercise.
A presentence motion to withdraw a guilty plea is judged by a less stringent standard than a postsentence motion, Hicklin v. State, Wyo., 535 P.2d 743, 749 (1975), primarily because at this stage it is approprite to give maximum protection to the defendant's right to his day in court. Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963). In such cases, doubts should be resolved in favor of the defendant, United States v. Stayton, 408 F.2d 559, 560 (3rd Cir.1969), because the benefits which accrue to all of us by putting the State to its proof override any consideration of inconvenience to courts and prosecutors. United States v. Roberts, 187 U.S.App.D.C. 90, 570 F.2d 999, 1009 (1977), appeal after remand 195 U.S. App.D.C. 1, 600 F.2d 815, aff'd 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622. These are the reasons behind the early holding that a presentence motion to withdraw a guilty plea should be granted "if for any reason the granting of the privilege seems fair and just." (Emphasis added.) Kercheval v. United States, 274 U.S. at 224, 47 S.Ct. at *663 583. Such withdrawal should be "freely allowed," Poole v. United States, 102 U.S. App.D.C. 71, 250 F.2d 396, 400 (1957); United States v. Roberts, 570 F.2d at 1008; Kadwell v. United States, 315 F.2d at 670, and granted with liberality, Dorton v. United States, 447 F.2d at 411-412, and even with "`great liberality,'" United States v. Fina, 289 F. Supp. 288, 289 (E.D.Pa. 1968), quoting from United States v. Roland, 318 F.2d 406, 409 (4th Cir.1963). These are the general principles that guide the trial court's discretion in such cases.
These general principles are further refined by specific guidelines adopted by the courts. These guidelines include consideration of the timeliness of the motion, United States v. Roberts, 570 F.2d at 1008, and whether the Rule 15, W.R.Cr.P. hearing was properly afforded to the defendant. Kadwell v. United States, 315 F.2d at 669. The courts are split on whether an avowal of innocence should be a factor to consider. United States v. Washington, 341 F.2d 277, 9 A.L.R. 3d 448, 460 (3d Cir.1965), cert. denied 382 U.S. 850, 86 S. Ct. 96, 15 L. Ed. 2d 89, reh. denied 382 U.S. 933, 86 S. Ct. 317, 15 L. Ed. 2d 346; Kadwell v. United States, 315 F.2d at 670, n. 12. In this case, the most important factor of those embraced by the courts as mitigating in favor of granting a plea-withdrawal motion is that the defendant believed and had reason to believe that a meritorious defense was available to him. United States v. Joslin, 140 U.S.App.D.C. 252, 434 F.2d 526, 531 (1970); Kadwell v. United States, 315 F.2d at 670, n. 12; Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499, 502 (1959).
Defendant Schmidt believed he had a meritorious defense based on the fifth of the enumerated psychiatric evaluations. This factor alone is sufficient to mandate granting of the plea-withdrawal motion. Poole v. United States, 250 F.2d at 400. Coupled with the principles of great liberality which guide the courts, United States v. Hancock, 607 F.2d at 337, this basis indicates a clear case of abuse of discretion by the trial court.
Upon a motion to withdraw a guilty plea based on an available defense, the trial court should not undertake to decide the merits of the defense. Gearhart v. United States, 272 F.2d at 502. Also see: Poole v. United States, 250 P.2d at 401; 3 Wright, Federal Practice & Procedure: Criminal 2d § 538, p. 203 (1982). That is the jury's function. Hence it is irrelevant in this case that there were four reports in the record indicating that defendant was competent and only one indicating he was incompetent. While this might possibly defeat the defense at trial, the question to be addressed on the motion to withdraw the guilty plea is whether, based on the possible defense, defendant is entitled to an opportunity to cast a reasonable doubt on the State's case against him. Our entire criminal justice system is based on the premise that he is.
Although the majority acknowledge that prejudice to the prosecution is not required to defeat a motion to withdraw a guilty plea, their emphasis on the fact that the State had prepared its case and that the jury panel was waiting seems to indicate they were not unaffected by the possibility of prejudice to the State. I emphasize that prejudice is not determinative. Even if it were, it is my firm conviction that prejudice has not been shown here. This cannot constitute prejudice as a matter of law. "[W]here such prejudice is absent or minimal, withdrawal is routinely permitted," United States v. Roberts, 570 F.2d at 1011. The State must also show that the witnesses would be unavailable, Government of the Virgin Islands v. Berry, 631 P.2d 214 (3rd Cir.1980), or some other substantial impact on the State's presentation of its case. United States v. Brown, 617 F.2d 54 (4th Cir.1980); United States v. Carden, 599 F.2d 1320 (4th Cir.1979), cert. denied 444 U.S. 874, 100 S. Ct. 156, 62 L. Ed. 2d 101; United States v. Strauss, 563 F.2d 127 (4th Cir.1977).
The trial judge abused his discretion in denying Schmidt's presentence motion to withdraw his guilty plea based upon an available defense. I would reverse.
NOTES
[*] Retired June 13, 1983, but continued to participate in the decision of the court in this case pursuant to order of the court entered June 13, 1983.
[1] Section 7-11-303, W.S. 1977 (Cum.Supp. 1982), provides in pertinent part as follows:
"(a) If it appears at any stage of a criminal proceeding, by motion or upon the court's own motion, that there is reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed, any further proceedings shall be suspended. If the question is raised in a court other than the district court, the proceeding shall be suspended and the cause transferred to the district court.
"(b) The district court shall order an examination of the accused by a designated examiner. The order may include, but is not limited to, an examination at the Wyoming state hospital on an inpatient or outpatient basis, the utilization of local mental health centers on an inpatient or outpatient basis, or the examination of the accused, should he be incarcerated for any reason, at his place of detention. In selecting the examination site, the court may consider proximity to the court, availability of an examiner or examiners, and the necessity for security precautions. If the order provides for commitment of the accused to a designated facility, the commitment shall continue no longer than a thirty (30) day period for the study of the mental condition of the accused.
"(c) Written reports of the pretrial examination shall be filed with the clerk of court. The report shall include:
"(i) Detailed findings;
"(ii) An opinion as to whether the accused has a mental illness or deficiency, and its probable duration;
"(iii) An opinion as to whether the accused, as a result of mental illness or deficiency, lacks capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed;
"(iv) An opinion as to whether at the time of the alleged criminal conduct the accused, as a result of mental illness or deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law;
"(v) A recommendation as to whether the accused should be held in a designated facility for treatment pending determination by the court of the issue of mental fitness to proceed; and
"(vi) A recommendation as to whether the accused, if found by the court mentally fit to proceed, should be detained in a designated facility pending further proceedings.
"(d) The clerk of court shall deliver copies of the report to the district attorney and to the accused or his counsel. The report is not a public record or open to the public. Within five (5) days after receiving a copy of the report, both the accused and the state may, upon written request, obtain an order granting them an examination of the accused by a designated examiner of their own choosing. If such an examination is ordered, a report conforming to the requirements of subsection (c) of this section shall be furnished to the court and the opposing party."
[2] Section 7-11-304, W.S. 1977, provides as follows:
"(a) A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
"(b) As used in this section, the terms `mental illness or deficiency' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
"(c) Evidence that a person is not responsible for criminal conduct by reason of mental illness or deficiency is not admissible at the trial of the defendant unless a plea of `not guilty by reason of mental illness or deficiency' is made. A plea of `not guilty by reason of mental illness or deficiency' may be pleaded orally or in writing by the defendant or his counsel at the time of his arraignment. The court, for good cause shown, may also allow such a plea to be entered at a later time. Such a plea does not deprive the defendant of other defenses.
"(d) In all cases where a plea of `not guilty by reason of mental illness or deficiency' is made, the judge shall order the defendant examined as provided in W.S. 242.3(b) [§ 7-11-303(b)]. If an examination provided in W.S. 7-242.3(b) [§ 7-11-303(b)] was made, the report may be received in evidence and no new examination shall be required unless, in the discretion of the court, another examination is necessary. Within five (5) days after receiving a copy of the report, both the accused and the state, upon written request, may obtain an order granting them an examination of the accused by a designated examiner of their own choosing. The clerk of court shall deliver copies of the report or reports to the district attorney and to the accused or his counsel. All reports required by this subsection shall conform to the requirements of W.S. 7-242.3(c) [§ 7-11-303(c)]. These reports are not public records or open to the public.
"(e) If the initial report contains the recommendation that the accused be held in a designated facility pending trial, the court may order that the accused be committed to or held in a designated facility pending trial.
"(f) No statement made by the defendant in the course of an examination or treatment pursuant to this section and no information received by any person in the course thereof is admissible in evidence in any criminal proceeding on any issue other than that of the mental condition of the defendant."
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752 N.W.2d 36 (2008)
STATE
v.
WRIGHT.
No. 05-0529.
Court of Appeals of Iowa.
April 30, 2008.
Decision without published opinion. Affirmed.
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752 N.W.2d 33 (2008)
NEINER
v.
GARDNER.
No. 06-1878.
Court of Appeals of Iowa.
March 14, 2008.
Decision without published opinion. Reversed and Remanded with Directions.
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981 A.2d 923 (2009)
COM.
v.
DONALD JACKSON.
No. 963 WDA 2006.
Superior Court of Pennsylvania.
June 30, 2009.
Affirmed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6631
THOMAS D. CROOKS, JR.,
Petitioner - Appellant,
versus
MICHAEL MOORE, South Carolina Department of
Corrections; NATHANIEL HUGHES, South Carolina
Department of Corrections; SOUTH CAROLINA DE-
PARTMENT OF CORRECTIONS; ATTORNEY GENERAL OF
THE STATE OF SOUTH CAROLINA,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Joseph F. Anderson, Jr., District
Judge. (CA-98-2456-2-17AJ)
Submitted: September 30, 1999 Decided: October 6, 1999
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas D. Crooks, Jr., Appellant Pro Se. Larry C. Batson, Sr.,
Lesli Brown Darwin, SOUTH CAROLINA DEPARTMENT OF CORRECTIONS,
Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas D. Crooks, Jr., appeals the district court’s order
denying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 1999). We have reviewed the record and the district
court’s opinion accepting the recommendation of the magistrate
judge and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal substantially on the
reasoning of the district court. See Crooks v. Moore, No. CA-98-
2456-2-17AJ (D.S.C. Apr. 26, 1999). In addition, with regard to
Crooks’ claim that his work credits have been miscalculated, we
hold that Crooks has failed to make a substantial showing of the
denial of a consitutional right. See 28 U.S.C.A. § 2253(c) (West
Supp. 1999). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
2
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492 S.E.2d 141 (1997)
CHESAPEAKE BUILDERS, INC.
v.
Wing K. LEE, et al.
Record No. 961778.
Supreme Court of Virginia.
September 12, 1997.
*142 Kevin E. Martingayle, Virginia Beach (Stallings & Richardson, on briefs), for appellant.
Henry E. Howell, III, Viriginia Beach (Richard H. Doummar, on brief), for appellees.
Present: CARRICO, C.J., COMPTON, STEPHENSON,[*] LACY, KEENAN, and KOONTZ, JJ., and POFF, Senior Justice.
*143 KEENAN, Justice.
In this appeal, we consider whether a purchaser of real property was entitled to recover damages for the loss of his bargain, or specific performance of the contract with an abatement in the purchase price, as a result of the sellers' breach of contract.
Chesapeake Builders, Inc. (Chesapeake) filed an amended bill of complaint against Wing K. and Dorothy W. Lee, seeking specific performance of a contract with the Lees, or in the alternative, damages of $205,000 for the alleged loss of bargain caused by the Lees' breach of contract. The Lees filed an answer requesting rescission of the contract based on an alleged mutual mistake of fact. The chancellor referred the matter to a commissioner in chancery who heard the following evidence.
In April 1994, Chesapeake and the Lees executed a contract for the sale of Lots 2, 3, and 4, as shown on the Tazewell plat of Ocean Park, in the City of Virginia Beach. Lot 2 was a vacant lot, and Lots 3 and 4 contained improvements including a residence, a carport, and a garage. Chesapeake agreed to purchase the three lots for $95,000, which included a $1,000 deposit. The Lees were the owners of Lot 2, but they did not own, and never had owned, Lots 3 and 4.
Mr. Lee testified that he first attempted to sell Lot 2 by erecting a "For Sale" sign on the property which included the dimensions of his vacant lot. The Lees later employed real estate agent A. Deborah Sutphin of Man-Jac Realty, Inc. to assist them in the sale of the lot. The Lees gave Sutphin a copy of their tax assessment for Lot 2, and copies of two surveys depicting all three lots.
Sutphin erroneously advertised Lots 2, 3, and 4 in a Metro Multiple Listing Service, Inc. (MLS) publication as the lots offered for sale by the Lees. The Lees' listing was located in the vacant land section of the publication. The listing did not indicate that there were any improvements on the property and stated that the lot was zoned for duplex construction. The listing further showed a tax assessment of $55,000 for the land and $0 for improvements.
Sutphin erected a Man-Jac Realty sign on Lot 2 and left in place the Lees' sign. William E. Wood and Associates had erected "For Sale" signs on Lots 3 and 4 on behalf of the owner of those lots.
J.C. Keeter, the president of Chesapeake, discovered the Lees' property through the MLS listing. Keeter directed his real estate agent, who was affiliated with William E. Wood and Associates, to prepare a standard purchase agreement conditioned on Chesapeake's ability to construct one duplex on the property. After making some minor changes, the Lees signed the contract, and Keeter accepted the Lees' counteroffer. About seven weeks after the contract was executed, during preparations for settlement, Keeter learned from his attorney that the Lees did not own Lots 3 and 4.
Keeter testified that he believed he was obtaining the three lots at a greatly reduced price due to the Lees' ongoing marital difficulties, which were known to him at the time the contract was negotiated. The Lees stipulated they were having such difficulties at that time.
Mr. Lee testified that he had a fifth-grade education and that, at all times prior to discovery of the contract error, he believed the MLS listing and the contract were limited to the sale of Lot 2. The parties stipulated that Mrs. Lee had received a degree from a two-year business college, and that she reads and understands English. Mr. Lee testified that Mrs. Lee did not read the contract before signing it, and that Sutphin did not read the contract to him before he signed it.
The parties stipulated that the combined fair market value of Lots 2, 3, and 4 was $300,000. The parties also agreed that the fair market value of Lot 2 was $80,000.
In their amended bill of complaint, Chesapeake sought a decree awarding specific performance of the contract, requiring the Lees to convey title to the three lots or, alternatively, to convey Lot 2 for $25,333.33, a reduction in price of more than two-thirds the fair market value of the lot. In the alternative, Chesapeake requested $205,000 in damages for its alleged loss of bargain, representing the difference between the total *144 market value of the three lots and the contract price.
The commissioner found that, although the Lees "apparently paid little attention to what they signed, there is no evidence that they intentionally contracted to convey something they did not own." Since the commissioner found that the Lees did not act with the intent to mislead or deceive, he concluded that Chesapeake was not entitled to damages for its loss of bargain.
The commissioner also ruled that Chesapeake was entitled to an abatement in the purchase price based on the Lees' inability to perform the entire contract, but that the abatement requested by Chesapeake would create an inequitable result. Instead, the commissioner recommended that Chesapeake be allowed to elect between two remedies. The first remedy would allow Chesapeake to rescind the contract, based on mutual mistake of fact, with a refund of the $1,000 deposit plus interest on that amount, and reasonable attorney's fees of $4,258 pursuant to the terms of the contract. The second remedy would allow specific performance of the contract, requiring the Lees to convey Lot 2 at a price abated to its fair market value of $80,000. Under this alternative, Chesapeake would also receive credit for its $1,000 deposit and its reasonable attorney's fees of $4,258 under the contract terms. Both Chesapeake and the Lees filed exceptions to this report.
After a hearing, the chancellor entered an order overruling both parties' exceptions. The chancellor held that there was a mutual mistake of fact when the contract was executed, and that Chesapeake was entitled to the remedies outlined in the commissioner's report.
On appeal, Chesapeake argues that the commissioner erred in ruling that the contract contained a mutual mistake of fact. Chesapeake asserts that the evidence did not show that Keeter made a mistake in executing the contract with the Lees, and that any "mistake" committed by the Lees was due to their own negligence in failing to read the contract before signing it. Chesapeake contends that it is entitled to either (1) damages of $205,000 for the loss of its bargain, representing the difference between the fair market value of the three lots and the contract price, or (2) specific performance of the contract for Lot 2, with an abatement in the purchase price to $25,333.33 to reflect Chesapeake's loss of the right to purchase the other two lots.
In response, the Lees assert that the commissioner's finding, that the parties acted under a mutual mistake of fact in signing the contract, is supported by the evidence. The Lees allege that Chesapeake mistakenly believed the Lees owned the three lots, and that the Lees mistakenly thought the contract was limited to the sale of the one lot they owned. The Lees assert that, since they did not act in bad faith, the commissioner afforded Chesapeake an appropriate choice of remedies. The Lees further contend that equitable principles support the commissioner's decision to set the purchase price for Lot 2 at its fair market value of $80,000.
We consider these arguments under an established standard of review. A decree which approves a commissioner's report will be affirmed unless plainly wrong or without evidence to support it. Firebaugh v. Hanback, 247 Va. 519, 525, 443 S.E.2d 134, 137 (1994); Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984). While the report of a commissioner in chancery does not carry the weight of a jury verdict, Code § 8.01-610, the report should be sustained by the chancellor if the commissioner's findings are supported by the evidence. This rule applies with particular force to the report's factual findings which are based on evidence heard by the commissioner, but does not apply to pure conclusions of law contained in the report. Morris v. United Virginia Bank, 237 Va. 331, 337-38, 377 S.E.2d 611, 614 (1989); Hill, 227 Va. at 576-77, 318 S.E.2d at 296-97.
We first conclude that the record supports the chancellor's decision sustaining the commissioner's finding that the Lees did not act in bad faith or intentionally misrepresent that they owned Lots 3 and 4. As stated above, Mr. Lee testified that he placed his sale sign on the one lot he owned, and that his sign included only that lot's dimensions.
*145 He also stated that he provided Sutphin with a copy of his real estate tax assessment for the property which showed that he only owned Lot 2. Lee further testified that, throughout the negotiation of the contract, he believed the contract related exclusively to Lot 2. The record also shows that Sutphin prepared the erroneous MLS listing on which Keeter relied. Finally, as the commissioner observed, the Lees could not have expected to benefit from the misrepresentation because the error necessarily would have been discovered before settlement.
Since the record supports the finding that the Lees did not act in bad faith, Chesapeake was not entitled to contract damages of $205,000 for its alleged loss of bargain. Absent a contrary contractual provision, a purchaser of real estate may not recover damages for breach of contract beyond the return of the purchase money actually paid, with interest, unless the purchaser proves that (1) the seller acted in bad faith in contracting to convey title at such time, or (2) on or before the time fixed for the completion of the contract, the seller voluntarily rendered himself unable to complete the conveyance, or (3) the seller was able to make the conveyance contracted for and neglected or refused to do so. Williams v. Snider, 190 Va. 226, 230, 56 S.E.2d 63, 65 (1949); Davis v. Beury, 134 Va. 322, 339, 114 S.E. 773, 777 (1922).
To recover damages for the loss of its bargain, Chesapeake was required to prove one of the above exceptions. See Davis, 134 Va. at 340-41, 114 S.E. at 778; Spruill v. Shirley, 182 Va. 342, 348-49, 28 S.E.2d 705, 708 (1944). However, the record shows that Chesapeake failed to prove that the Lees' conduct fell within any of these exceptions, or that any specific contractual provision entitled Chesapeake to recover such damages.
We agree with Chesapeake, however, that the chancellor erred in ruling that rescission was a proper remedy because the parties entered into the contract under a mutual mistake of fact. Although Keeter entered into the contract under the mistaken belief that the Lees owned Lots 3 and 4, there is no evidence that the Lees executed the contract believing they owned those additional lots. Instead, the evidence is uncontroverted that the Lees did not read the contract or take other measures to acquaint themselves with the contract terms. Such conduct is evidence of negligence, not of mistake, and does not constitute grounds for rescission of a contract. See Metro Realty of Tidewater, Inc. v. Woolard, 223 Va. 92, 99, 286 S.E.2d 197, 200 (1982); Ashby v. Dumouchelle, 185 Va. 724, 733, 40 S.E.2d 493, 497 (1946).
We next consider whether the record supports the chancellor's award of specific performance. Specific performance of a contract does not lie as a matter of right, but rests in the discretion of the chancellor, and may be granted or refused under established equitable principles and the facts of a particular case. Firebaugh, 247 Va. at 526, 443 S.E.2d at 137; Hawks v. Sparks, 204 Va. 717, 720, 133 S.E.2d 536, 539 (1963). The chancellor's discretion must be exercised with a view to the substantial justice of the case. Millman v. Swan, 141 Va. 312, 319, 127 S.E. 166, 168 (1925).
Generally, when there is a deficiency in title, quantity, or quality of an estate, the purchaser has the option to require the seller to convey such part as the seller is able, with an abatement of the purchase price for any deficiency. Turner v. Holloway, 146 Va. 827, 834, 132 S.E. 685, 687 (1926); Millman, 141 Va. at 322, 127 S.E. at 169. The purpose of an abatement, as reflected in our decisions, is to allow the purchaser to enforce the contract at a price reflecting the value of the estate that the seller is able to convey. See, e.g., Turner, 146 Va. at 834, 132 S.E. at 687; Watson v. Hoy, 69 Va. (28 Gratt.) 698, 712-13 (1877); Hoback v. Kilgores, 67 Va. 442, (26 Gratt.) 442, 444-45 (1875). The terms of the abatement, as part of the award of specific performance, rest within the chancellor's sound discretion. See Millman, 141 Va. at 319, 127 S.E. at 168.
Here, the chancellor, in accordance with the commissioner's recommendation, abated the contract price to $80,000, the stipulated fair market value of Lot 2. The commissioner set this amount after finding that *146 the abatement requested by Chesapeake would be inequitable under the circumstances of the case. We conclude that the record supports this finding.
The stipulated value of all three lots was $300,000. Although Keeter believed that he was able to secure the $95,000 contract price based on the Lees' personal circumstances, those circumstances had no bearing on the price set by the Lees, who erroneously believed they had fixed the contract price for the sale of Lot 2 only. Further, the Lees did not act in bad faith throughout the course of these events. Thus, we hold that the chancellor correctly sustained the commissioner's refusal to set an abatement which would have deprived the Lees of more than 68% of the fair market value of their property. The chancellor properly modified the demands of the parties according to the substantial justice of the case. See Millman, 141 Va. at 319, 127 S.E. at 168.
For these reasons, we will affirm in part, and reverse in part, the chancellor's decree and enter final judgment in favor of Chesapeake for specific performance of the contract according to the terms of the chancellor's decree.
Affirmed in part, reversed in part, and final judgment.
NOTES
[*] Justice Stephenson participated in the hearing and decision of this case prior to the effective date of his retirement on July 1, 1997.
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186 P.3d 1094 (2008)
Allan PARMELEE, Appellant,
v.
Robert O'NEEL; Robert Monger; Harold Clarke, Eldon Vail; Lynn Delano, Kathryn Bail; Carroll Riddle; Sandra Carter; John Palmer; John Aldana; Sandra Diimel; Jerry McHaffie; Tina Adams; Nathan Cornish; Michael Erlenmeyer; unknown others, and the community partners of each named Defendant, Respondents.
No. 35652-0-II.
Court of Appeals of Washington, Division 2.
June 19, 2008.
*1096 Hank L. Balson, Public Interest Law Group, Seattle, WA, for Appellant.
Amanda Marie Migchelbrink, Attorney at Law, Daniel John Judge, Attorney General's Office, Olympia, WA, for Respondents.
Eric Stahl, Davis Wright Tremaine LLP, Seattle, WA, Aaron Hugh Caplan, Los Angeles, CA, Sarah A. Dunne, ACLU, Kristina Silja Bennard, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties Union of Washington Foundation.
BRIDGEWATER, J.
¶ 1 Allen[1] Parmelee, a Department of Corrections (DOC) inmate, appeals from the dismissal of his suit for damages and for an injunction against DOC for violating his First Amendment rights, and his due process rights, and retaliating against him for exercising his First Amendment rights. We hold that when DOC infracted Parmelee for referring to Sandra Carter, the superintendent of Clallam Bay Correctional Center, as "anti-male a lesbian" in a letter to DOC Secretary, it based the infraction on the criminal libel statute under RCW 9.58.010. We hold that the criminal libel statute is facially unconstitutional for overbreadth and vagueness. Because DOC based Parmelee's infraction on an unconstitutional statute, we vacate the infraction.
¶ 2 We further hold that the trial court erred when it dismissed Parmelee's retaliation *1097 claim under CR 12(b)(6) because, based on his pleadings, Parmelee may be able to prove a set of facts that would justify recovery: Parmelee was in litigation against DOC officials, he made critical statements against DOC staff and policy, and DOC did not issue the infraction until three months after he had attempted to send his critical letter to the DOC secretary. We reverse the trial court's dismissal under CR 12(b)(6) and remand to the superior court, where Parmelee may assert his claims for damages against DOC for violating his substantive due process rights, for violating his First Amendment rights, and for retaliating against him for exercising his rights.
FACTS
¶ 3 Parmelee is a Washington State inmate in the custody of DOC. He describes himself as outspoken and politically active. He has written prisoner self-help books, news articles, and press releases regarding prisoner rights. Parmelee is often critical of DOC staff, policies, and operations.
¶ 4 On July 20, 2005, Parmelee tried to send a letter to DOC Secretary Harold Clarke, complaining about the conditions and programs at Clallam Bay Corrections Center (CBCC). In the letter, Parmelee stated that CBCC Superintendent Sandra Carter was "anti-malea lesbian."[2] CP at 717. He also speculated that "[h]aving a man-hater lesbian as a superintendent is like throwing gas on [an] already smoldering fire." CP at 718. DOC intercepted the letter, preventing it from leaving the institution.
¶ 5 Three months later, on October 14, 2005, DOC issued a serious infraction against Parmelee under former WAC 137-28-260(1)(517) (2005),[3] for "[c]ommitting any act that is a misdemeanor under local, state, or federal law that is not otherwise included in these rules." Prison officials infracted Parmelee under this disciplinary rule for violating Washington's criminal libel statute, RCW 9.58.010. Specifically, DOC claimed that his letter to Secretary Clarke "IS CONSIDERED TO BE LIBLOUS [sic] AND SLANDERS THE CHARACTER AND REPUTATION OF SUPERINTENDENT SANDRA CARTER." CP at 714.
¶ 6 DOC afforded Parmelee a hearing in front of a hearing officer to address the infraction. At the hearing, Parmelee tried to enter a written statement that explained his position on the infraction filed against him. He also submitted a request for DOC employees to respond to written questions, including questions regarding Carter's sexual orientation. The hearing officer refused to permit the questions because "`they [were] designed to question the integrity of staff and not addressing the guilt or innocents [sic] of the offender.'" Br. of Resp't at 4 (citing CP at 722-36).[4] The hearing officer found Parmelee guilty of the infraction, punishing him with 10 days of disciplinary isolation and 10 days without privileges. Parmelee's punishment did not affect or extend his current sentence.
¶ 7 On December 27, 2005, Parmelee filed a complaint for libel, slander, due process violations, First Amendment violations, malicious prosecution, and retaliation[5] against several DOC employees.[6] He sought monetary, declaratory, and injunctive relief.[7] After *1098 DOC employees answered the complaint, Parmelee filed a motion for judgment on the pleadings. DOC employees opposed the motion and filed a cross-motion to dismiss the lawsuit. The superior court commissioner considered the motions without oral argument and entered a memorandum opinion on October 3, 2006, granting DOC employees' motion while denying Parmelee's.
¶ 8 Parmelee filed a motion to revise the commissioner's ruling, which the trial court denied. He continued to file subsequent motions for revision and reconsideration, all of which the trial court denied.[8] He then filed a notice of appeal on November 27, 2006. Although there is no evidence in the record showing that Parmelee served notice of his appeal to DOC employees, they timely filed a response with this court. In addition, we permitted the American Civil Liberties Union of Washington (ACLU) to file an amicus curiae brief, addressing the facial validity of Washington's criminal libel statute, RCW 9.58.010 and .020. DOC employees chose not to address the constitutionality of RCW 9.58.010 or .020.
ANALYSIS
I. Standard of Review
¶ 9 Parmelee filed a motion for judgment on the pleadings under CR 12(c), and DOC employees filed a motion to dismiss for failure to state a claim upon which relief may be granted under CR 12(b)(6). We review a trial court's dismissal of a claim under either CR 12(b)(6) or CR 12(c) de novo. Burton v. Lehman, 153 Wash.2d 416, 422, 103 P.3d 1230 (2005); Suleiman v. Lasher, 48 Wash.App. 373, 376, 739 P.2d 712 (a motion to dismiss for failure to state a claim (CR 12(b)(6)) and a motion for judgment on the pleadings (CR 12(c)) raise identical issues), review denied, 109 Wash.2d 1005 (1987). Dismissal under CR 12 is appropriate only if it is beyond doubt that the plaintiff cannot prove any set of facts to justify recovery. Burton, 153 Wash.2d at 422, 103 P.3d 1230; Suleiman, 48 Wash.App. at 376, 739 P.2d 712. In making this determination, a trial court must presume that the plaintiff's allegations are true and may consider hypothetical facts that are not included in the record. Burton, 153 Wash.2d at 422, 103 P.3d 1230. It is under this standard that we must review the issues raised on appeal.
II. Constitutionality of Washington's Criminal Libel Statute On Its Face
¶ 10 Parmelee first challenges the constitutionality of Washington's criminal libel statutory scheme, RCW 9.58.010 and .020, under which DOC punished him for the language in his letter to Superintendent Clarke. He alleges that the statute is facially unconstitutional under Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). Therefore, Parmelee contends that the superior court erred when it dismissed his claims under CR 12(b)(6) and found that DOC may rightly rely on chapter RCW 9.58 as basis for its actions against him.
¶ 11 Although Parmelee did not challenge the constitutionality of RCW 9.58.010 and .020 below, we may consider manifest constitutional errors for the first time on appeal. RAP 2.5(a)(3). An error is manifest if it has practical and identifiable consequences in the trial at issue. State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999). We believe that the constitutionality of Washington's criminal libel statutory scheme has practical and identifiable consequences in this case, particularly in light of the long-standing United States Supreme Court precedent declaring criminal libel statutes unconstitutional under its First Amendment jurisprudence See, e.g., Garrison, 379 U.S. 64, 85 S. Ct. 209. We are therefore compelled to address whether Washington's criminal libel statutory scheme is unconstitutional under United States Supreme Court precedent.
*1099 A. Criminal Libel and First Amendment Jurisprudence
¶ 12 In order to properly analyze the constitutionality of Washington's criminal libel statutory scheme, a brief review of defamation law in the context of First Amendment jurisprudence is necessary. To begin, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), was a turning point for defamation law in the United States. There, the Supreme Court held that civil sanctions could not be imposed based on defamatory statements made about a public official unless such statements were false and made with "actual malice." New York Times, 376 U.S. at 279, 84 S. Ct. 710. It defined "actual malice" as making a statement "with knowledge that [the statement] was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 279-80, 84 S. Ct. 710. The Supreme Court reasoned that "debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270, 84 S. Ct. 710.
¶ 13 In the same year, the Supreme Court decided Garrison, wherein it extended principles set forth in New York Times to the criminal context. In Garrison, the State convicted a district attorney under Louisiana's criminal libel statute for issuing a disparaging statement concerning the judicial conduct of eight judges. Garrison, 379 U.S. at 65, 85 S. Ct. 209. The Louisiana Supreme Court affirmed the conviction, rejecting the defendant's contention that the statute unconstitutionally breached his freedom of expression. Garrison, 379 U.S. at 67, 85 S. Ct. 209. But the United States Supreme Court reversed, finding Louisiana's criminal libel statute infringed, on protected speech. Garrison, 379 U.S. at 77, 85 S. Ct. 209.
¶ 14 Specifically, the Garrison Court held that Louisiana's criminal libel statute did not meet constitutional muster because it punished false statements concerning public officials made without "actual malice." Garrison, 379 U.S. at 78, 85 S. Ct. 209. It further held that a statute is manifestly unconstitutional if it fails to provide truth as an absolute defense to criminal liability:
Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since . . . "erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the `breathing space' that they `need . . . to survive' . . .," only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is more than self-expression; it is the essence of self-government.
Garrison, 379 U.S. at 74-75, 85 S. Ct. 209 (quoting New York Times, 376 U.S. at 271-72, 84 S. Ct. 710).
¶ 15 Following Garrison, several courts have declared various criminal libel statutes unconstitutional for failing to limit criminal liability to statements made regarding public officials with actual malice. See, e.g., Mangual v. Rotger-Sabat, 317 F.3d 45 (1st Cir. 2003) (holding Puerto Rico's criminal libel statute facially unconstitutional because it did not require the New York Times and Garrison standard of actual malice be proven in order for a statement disparaging a public figure to be successfully prosecuted); I.M.L. v. State, 61 P.3d 1038 (Utah 2002) (holding Utah's criminal libel statute infringed on a substantial amount of constitutionally protected speech by punishing false statements regarding public figures made without knowledge or recklessness and true statements regarding public figures); Ivey v. State, 821 So. 2d 937, 949 (Ala.2001) (holding Alabama's criminal libel statute unconstitutional because it did not conform to the New York Times and Garrison "actual malice" requirement), overruled on other grounds by Ex parte Bell, 978 So. 2d 33 (Ala.2007).[9] Until *1100 now, Washington courts have not addressed the constitutionality of its criminal libel statute under Garrison.
B. Constitutionality of Washington's Criminal Libel Statute Under Garrison
¶ 16 Washington courts presume statutes to be constitutional. State v. Thorne, 129 Wash.2d 736, 769-70, 921 P.2d 514 (1996). The party challenging a statute bears the burden of proving beyond a reasonable doubt that it does not satisfy constitutional standards. Thorne, 129 Wash.2d at 769-70, 921 P.2d 514. "Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality." State v. Reyes, 104 Wash.2d 35, 41, 700 P.2d 1155 (1985). Nevertheless, we "cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question." Miller v. French, 530 U.S. 327, 341, 120 S. Ct. 2246, 147 L. Ed. 2d 326 (2000) (quoting United States v. Locke, 471 U.S. 84, 96, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985)). A statute's plain reading must make the interpretation reasonable. Soundgarden v. Eikenberry, 123 Wash.2d 750, 757, 871 P.2d 1050, cert. denied, Soundgarden v. Gregoire, 513 U.S. 1056, 115 S. Ct. 663, 130 L. Ed. 2d 598 (1994). And finally, in considering a facial challenge, we analyze the statutory language itself and do not rely on the facts of the case. City of Seattle v. Webster, 115 Wash.2d 635, 640, 802 P.2d 1333 (1990), cert. denied, 500 U.S. 908, 111 S. Ct. 1690, 114 L. Ed. 2d 85 (1991).
¶ 17 RCW 9.58.010[10] defines criminal libel. Under that provision, exposure of any living person or the memory of the dead to hatred, contempt, ridicule or obloquy, or injury to a business relationship is a gross misdemeanor. RCW 9.58.010; see also 16A WASHINGTON PRACTICE: TORT LAW AND PRACTICE, § 19.1, at 2-3 (3d. ed.2006). RCW 9.58.020 establishes a presumption that statements falling into the RCW 9.58.010 classifications are malicious. It states:
Every publication having the tendency or effect mentioned in RCW 9.58.010 shall be deemed malicious unless justified or excused. Such publication is justified whenever the matter charged as libelous charges the commission of a crime, is a true and fair statement, and was published with good motives and for justifiable ends. It is excused when honestly made in belief of its truth and fairness and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of any person in respect of public affairs, made after a fair and impartial investigation.
RCW 9.58.020.
¶ 18 A plain reading of RCW 9.58.020 reveals that Washington's criminal libel statutory scheme does not meet minimum constitutional standards under Garrison. Specifically, RCW 9.58.020 is unconstitutional because it does not justify excuse from prosecution (1) false statements made without actual malice or (2) true statements made without good motive or intent. See Garrison, 379 U.S. at 78, 85 S. Ct. 209.
¶ 19 Again, in Garrison, the Supreme Court explicitly held that the First and Fourteenth *1101 Amendments prohibit criminal punishment for false speech under statutes that do not require a showing of actual malice. Garrison, 379 U.S. at 67, 85 S. Ct. 209. This is precisely what Washington's criminal liable statute does: it permits punishment for false statements not made with actual malice. See Garrison, 379 U.S. at 67, 85 S. Ct. 209. A speaker may face prosecution under Washington's statute if she makes a false statement unless it was "honestly made in belief of its truth and fairness and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of any person in respect of public affairs, made after a fair and impartial investigation." RCW 9.58.020. This standard in no way comports with the "actual malice" standard set forth in Garrison. Garrison, 379 U.S. at 67, 85 S. Ct. 209; New York Times, 376 U.S. at 279-80, 84 S. Ct. 710.
¶ 20 Likewise, the Garrison Court explicitly held that the First and Fourteenth Amendments absolutely prohibit punishment of truthful criticism where discussion of public affairs is concerned. Garrison, 379 U.S. at 74, 85 S. Ct. 209. Contrary to this absolute rule, RCW 9.58.020 justifies true statements when a person publishes them with "good motives and for justifiable ends." Thus, because RCW 9.58.020 permits punishment of true statements not made with good motives or for justifiable ends, it does not survive constitutional scrutiny. See Garrison, 379 U.S. at 67, 73-74, 85 S. Ct. 209. In fact, the Garrison Court cited Washington's criminal libel law as an example of the type of statute that failed constitutional scrutiny. Garrison, 379 U.S. at 70 n. 7, 85 S. Ct. 209.
¶ 21 It is clear, therefore, that Washington's criminal libel statutory scheme does not meet the constitutional standards demanded under Garrison because it permits prosecution of persons for making false statements without actual malice and/or making true statements without good motive or intent. See Garrison, 379 U.S. at 73-74, 85 S. Ct. 209.
¶ 22 Neither party addressed whether either the statute or the application of Garrison was limited to public figures. But because Garrison spoke only in terms of public figures being prosecuted, we also address an alternative basis for holding the statute unconstitutional as it pertains to private citizens. We examine both overbreadth and vagueness. We do this even in light of DOC and the attorney general refusing to address the constitutionality of the statute in either their briefing or at oral argument.
C. Overbreadth of Washington's Criminal Libel Statutory Scheme
¶ 23 The Washington State Supreme Court has previously summarized Washington's overbreadth doctrine:
A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. The First Amendment overbreadth doctrine may invalidate a law on its face only if the law is "substantially overbroad." In determining overbreadth, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct."
City of Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989) (internal citations omitted) (quoting City of Houston v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987), appeal dismissed & cert. denied, 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729 (1987)).
¶ 24 As noted above, Washington's criminal libel statutory scheme, RCW 9.58.010 and .020, is facially unconstitutional because it prohibits true speech and false speech made without actual malice. For these same reasons, Washington's criminal libel statutory scheme is alternatively unconstitutional for overbreadth. Case law in several state and federal jurisdictions support this result.
¶ 25 For example, in Tollett v. United States, 485 F.2d 1087 (8th Cir.1973), the Eighth Circuit held that 18 U.S.C. § 1718 was unconstitutional, reasoning that it punished protected speech. Specifically, the Eighth Circuit reasoned that, among other things, the statute did not include an "actual malice" requirement. Tollett, 485 F.2d at 1097-98. Further, it found that the statute failed to distinguish between libel relating to private figures and libel relating to public figures. Tollett, 485 F.2d at 1097. Therefore, *1102 the Eighth Circuit held that 18 U.S.C. § 1718 was facially overbroad and thus unconstitutional. Tollett, 485 F.2d at 1097-98.
¶ 26 Similarly, in Fitts v. Kolb, 779 F. Supp. 1502 (D.S.C.1991), the district court held that South Carolina's criminal libel statute was facially overbroad. There, the criminal libel statute made reference to malice, but only in the context of "malicious intent." Fitts, 779 F.Supp. at 1515. The district court found that "malicious intent" was not synonymous with the "actual malice" standard from New York Times. Fitts, 779 F.Supp. at 1515. It reasoned that absent the "actual malice" requirement, the statute permitted punishment for the publication of protected speech. Fitts, 779 F.Supp. at 1515. Thus, the district court held that South Carolina's criminal libel statute was facially overbroad and thus unconstitutional. Fitts, 779 F.Supp. at 1516.
¶ 27 Likewise, in I.M.L. v. State, 61 P.3d 1038, the Utah Supreme Court held that Utah's criminal libel statute infringed on a substantial amount of constitutionally protected speech-because it punished false statements concerning public figures made without regard for truth of the statements or whether the speaker made them knowingly or recklessly. Therefore, the Utah Supreme Court held that the statute was overbroad based on its plain language, and, thus was unconstitutional. I.M.L., 61 P.3d at 1048.
¶ 28 In addition, the Alaska Supreme Court declared that Alaska's criminal libel statute was facially overbroad in Gottschalk v. State, 575 P.2d 289 (1978). Under Alaska's statute, truth was not an absolute defense. Rather, true statements concerning public officials or public figures were protected only if the speaker made such statements with good intent. Gottschalk, 575 P.2d at 296. Thus, Alaska's criminal libel statute punished protected speech. Gottschalk, 575 P.2d at 296. Accordingly, the state supreme court held that the statute was facially overbroad. Gottschalk, 575 P.2d at 296.
¶ 29 Several other jurisdictions have declared criminal libel statutes unconstitutional on the basis of overbreadth for the same reasons. See, e.g., United States v. Handler, 383 F. Supp. 1267, 1280 (D.Md.1974) (holding a defamation statute unconstitutionally overbroad because it failed to immunize truthful speech or include an actual malice requirement); State v. Helfrich, 277 Mont. 452, 457, 922 P.2d 1159 (1996) (holding Montana's criminal libel statute facially overbroad because it "impermissibly require[d] the defendant to prove that the material, even if true, was communicated in good faith and for justifiable ends.").
¶ 30 Although decisions from other jurisdictions do not bind us, such decisions nevertheless provide well-reasoned guidance in determining whether Washington's criminal libel statutory scheme is facially overbroad. Similar to the aforementioned statutes, RCW 9.58.010 and .020 punish true speech and false statements made without actual malice. Therefore, we choose to follow the guidance of other jurisdictions and deem the statutory scheme facially overbroad and, thus, unconstitutional.[11]
D. Vagueness of Washington's Criminal Liable Statutory Scheme
¶ 31 "A statute is unconstitutionally vague if [it] does not (1) define the criminal offense with sufficient definiteness such that ordinary persons understand what conduct is proscribed or (2) provide ascertainable standards of guilt to protect against arbitrary enforcement." State v. Stevenson, 128 Wash.App. 179, 188, 114 P.3d 699 (2005). A statute is indefinite "if persons of common intelligence must necessarily guess at its meaning and differ as to its application." State v. Glas, 147 Wash.2d 410, 421, 54 P.3d *1103 147 (2002). When analyzing a statute for vagueness, a reviewing court examines the context of the enactment as a whole, giving the statutory language a "sensible, meaningful, and practical interpretation" to determine whether it gives fair warning of the proscribed conduct. City of Spokane v. Douglass, 115 Wash.2d 171, 180, 795 P.2d 693 (1990). The fact that some terms in the statute are undefined does not necessarily render the statute unconstitutionally vague. Douglass, 115 Wash.2d at 180, 795 P.2d 693. "For clarification, citizens may resort to the statements of law contained in both statutes and in court rulings which are `[p]resumptively available to all citizens.'" Douglass, 115 Wash.2d at 180, 795 P.2d 693 (quoting State v. Smith, 111 Wash.2d 1, 7, 759 P.2d 372 (1988) (alteration in original)).
¶ 32 Amicus contends that RCW 9.58.020 is vague because speech is excused from prosecution under the statute if it consists of fair comments. While RCW 9.58.020 may be unconstitutionally vague insofar as it includes the phrase, "consists of fair comments," we need not decide vagueness on these grounds. Rather, RCW 9.58.020 is void for vagueness because of its use of the term "malicious." See Fitts, 779 F.Supp. at 1515-16. We find this is an alternative basis for holding Washington's criminal libel statutory scheme unconstitutional.
¶ 33 In Fitts, the South Carolina District Court relied on New York Times when it held that South Carolina's criminal libel statute was overbroad and vague in violation of the First and Fourteenth Amendments. Fitts, 779 F.Supp. at 1518. The South Carolina criminal libel statute stated:
[a]ny person who shall with malicious intent originate, utter, circulate or publish any false statement or matter concerning another the effect of which shall tend to injure such person in his character or reputation shall be guilty of a misdemeanor. . . .
Fitts, 779 F.Supp. at 1508.
¶ 34 The Fitts court reasoned that the statute's use of the term "malicious" could create confusion with the term "malice" as used in New York Times. Fitts, 779 F.Supp. at 1515. In other words, "malicious intent" as used in South Carolina's statute could be confused with the New York Times' "actual malice" standard, which denotes knowledge of the defamatory falsity or reckless disregard for whether the statement was true or false. Fitts, 779 F.Supp. at 1514-15, accord New York Times, 376 U.S. at 279-80, 84 S. Ct. 710. Thus, the statute was inherently vague because it created a potential confusion between the common law "malice" standard and the New York Times "actual malice" standard. Fitts, 779 F.Supp., at 1515-16, accord I.M.L., 61 P.3d at 1044 (stating that the "common law definition of `malice' is quite different from the `actual malice' contemplated by the United States Supreme Court").
¶ 35 Again, we find the Fitts reasoning persuasive. RCW 9.58.020 is void for vagueness because it includes the term "malicious" without reference to "actual malice" as required under New York Times. See Fitts, 779 F.Supp. at 1515-16. A person of common intelligence may guess that "malicious" in RCW 9.58.020 refers to the common law meaning of malice as opposed to the New York Times "actual malice" standard. See Fitts, 779 F.Supp. at 1515-16. Thus, RCW 9.58.020 is unconstitutionally vague.
III. Constitutionality of Washington's Criminal Libel Statute As Applied to Parmelee
¶ 36 Parmelee also argues that Washington's criminal libel statutory scheme is constitutionally invalid insofar as it purports to allow the state to punish prisoners for statements made in outgoing grievances to prison officials. But when a statute is facially unconstitutional, it follows that no set of circumstances exist in which the statute, as currently written, can be constitutionally applied. City of Redmond v. Moore, 151 Wash.2d 664, 669, 91 P.3d 875 (2004), accord City of Houston v. Hill, 482 U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 ("Criminal statutes must be scrutinized with particular care . . . those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." (Internal citations omitted)), appeal dismissed & cert. *1104 denied, 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729 (1987).
¶ 37 In any event, the record is insufficient for us to determine whether RCW 9.58.010 and .020 were unconstitutionally applied to Parmelee. He did not challenge the constitutionality of the statutory scheme in the trial court below. Aside from actual infraction and letter, the record contains no evidence or testimony surrounding the circumstances of Parmelee's infraction. Although we may address constitutional claims of manifest error not raised below, if the "record from the trial court is insufficient to determine the merits of the constitutional claim, then the claimed error is not manifest and review is not warranted." WWJ Corp., 138 Wash.2d at 602, 980 P.2d 1257.
¶ 38 Nevertheless, DOC employees seem to argue that Parmelee's infraction referencing RCW 9.58.010 was proper because Parmelee was in DOC custody when the hearing examiner infracted him. They rely on Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64 (1987), to support this argument.[12]
¶ 39 In Turner, the United States Supreme Court articulated the standard for reviewing the constitutionality of prison regulations. It stated that a regulation is constitutional when it is "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S. Ct. 2254. Whether a prison regulation is reasonable turns on four factors: (1) the rational relationship between the right and the limitation, (2) the reasonableness of the limitation, (3) the impact accommodation would have on the prison environment, and (4) the absence of readily available alternatives. Turner, 482 U.S. at 89-90, 107 S. Ct. 2254.
¶ 40 Division One of this court applied the Turner test in a similar matter involving Parmelee. In In re Parmelee, 115 Wash. App. 273, 284, 63 P.3d 800 (2003), review denied, 151 Wash.2d 1017, 92 P.3d 779 (2004), Parmelee submitted multiple grievances wherein he used vulgar language and threatened the prison staff.[13]Parmelee, 115 Wash. App. at 277-280, 63 P.3d 800. After a disciplinary hearing, the hearing officer found Parmelee guilty of a G-301 infraction for defiance/insolence/abuse. Parmelee, 115 Wash.App. at 277-78, 63 P.3d 800.[14] G-301 was defined in the Inmate Information Handbook as "[m]aking flagrant, public statements which are degrading, ridiculing, abusive, insolent, defiant, obscene, and/or which promote disorder." Parmelee, 115 Wash.App. at 277, 63 P.3d 800. Parmelee appealed to the administrative hearing examiner, who affirmed the hearing officer. Parmelee, 115 Wash.App. at 280, 63 P.3d 800. He was punished with 10 days in disciplinary segregation for each infraction, totaling 20 days in segregation. Parmelee, 115 Wash.App. at 280, 281, 63 P.3d 800.
¶ 41 In his appeal, Parmelee argued that his First Amendment right to free speech was violated when he was punished for making insolent, abusive, and threatening comments about staff in an administrative grievance. Parmelee, 115 Wash.App. at 280, 63 P.3d 800. Applying Turner, Division One held that there was a legitimate reason for requiring all inmates to behave respectfully toward prison staff and limiting tension between guards and residents. Parmelee, 115 Wash.App. at 287, 63 P.3d 800. It also noted that there were other avenues available to Parmelee, namely that he could have used other words to properly address the problems he was attempting to address in his grievances. Parmelee, 115 Wash.App. at *1105 287, 63 P.3d 800. Division One concluded that the purpose of the grievance procedure was to bring issues to the attention of prison officials and not a forum to make disparaging, degrading, and abusive comments to staff. Parmelee, 115 Wash.App. at 287, 63 P.3d 800. Therefore, Division One held that G-301 complied with the Turner test. Under the facts of the case, the application of G-301 to Parmelee did not infringe on his constitutional right to free speech. Parmelee, 115 Wash.App. at 288-89, 63 P.3d 800.
¶ 42 But the facts and circumstances of In re Parmelee and this case are distinguishable. Namely, in the former, Parmelee challenged G-301, a prison regulation, as unconstitutional. Here, Parmelee is challenging RCW 9.58.010, as applied through former WAC 137-28-260(1)(517). The distinction is critical. If Parmelee were challenging former WAC 137-28-260(1)(517), Turner would apply. See Parmelee, 115 Wash.App. at 283-84, 63 P.3d 800 (recognizing that Turner is the appropriate test to apply, as opposed to the less stringent standard set forth by the Ninth Circuit in Bradley v. Hall, 64 F.3d 1276 (9th Cir.1995)).
¶ 43 Here, Parmelee is not challenging the validity of the prison regulation set forth in former WAC 137-28-360(l)(517); he is challenging the underlying criminal statute, RCW 9.58.010 and .020. As discussed above, Washington's criminal libel statutory scheme is facially unconstitutional. That it was applied through a prison regulation does not render it constitutional in the prison setting. Contrary to DOC employees' contention, Turner is inapposite under these circumstances.
¶ 44 This is not to say that an inmate's use of insolent, abusive, or scurrilous language in grievances and/or toward prison staff is not punishable. In In re Parmelee, for example, Division One upheld a prison regulation prohibiting such language. See In re Parmelee, 115 Wash.App. at 288, 63 P.3d 800. Many other courts have upheld prison regulations prohibiting libelous language in grievances. See, e.g., Hale v. Scott, 371 F.3d 917, 919-20 (7th Cir.2004) (holding that language that is otherwise punishable is not shielded from disciplinary action merely because it appears in a grievance); Gibbs v. King, 779 F.2d 1040, 1045 (5th Cir.1986) (holding that the prison regulation furthered legitimate interests, as the clear purpose of the rule was "to prevent the escalation of tension that can arise from gratuitous exchanges between inmates and guards and to enable employees to maintain order without suffering verbal challenges to their authority"), cert. denied, 476 U.S. 1117, 106 S. Ct. 1975, 90 L. Ed. 2d 659 (1986); Hadden v. Howard, 713 F.2d 1003, 1005 (3rd Cir.1983) (upholding a disciplinary sanction under a prison regulation for a prison inmate who wrote "unfounded, slanderous and derogatory statements" about prison staff in a grievance).
¶ 45 For example, had DOC employees in this case issued Parmelee a general infraction under WAC 137-28-220(l)(202) for "[a]busive language, harassment [sic] or other offensive behavior directed to or in the presence of staff, visitors, inmates, or other persons or groups," then perhaps the regulation would be constitutionally sound under Turner. But these are not the facts before us now.
¶ 46 Parmelee was issued a serious infraction under former WAC 137-28-260(1)(517) for "[c]omitting any act that is a misdemeanor under local, state, or federal law that is not otherwise included in these rules" and DOC chose RCW 9.58.010. As discussed above, RCW 9.58.010 and .020 fail constitutional scrutiny and thus cannot be the basis for an infraction under former WAC 137-28-260(l)(517). Therefore, we hold that DOC employees' reliance on Turner is unconvincing.
¶ 47 In conclusion, we need not determine whether Washington's statutory scheme is unconstitutional as applied to Parmelee because the statutory scheme is facially unconstitutional. Moreover, even if we wanted to address whether the statutes are unconstitutional as applied to Parmelee, the record is insufficient to properly decide this issue. Thus, we cannot address whether Washington's criminal libel statutory scheme is unconstitutional as applied to Parmelee in this case. Likewise, we cannot address whether *1106 Parmelee's freedom of speech or substantive due process rights were violated because the record is insufficient to make those determinations. WWJ Corp., 138 Wash.2d at 602, 980 P.2d 1257. Nor do we address whether procedural due process was violated because Parmelee abandoned that claim at oral argument.
IV. Retaliation Claim
¶ 48 Finally, Parmelee contends that he stated a cognizable retaliation claim and thus the trial court erred in dismissing it under CR 12(b)(6). The trial court refused to address Parmelee's retaliation claim, stating that he failed to establish the requisite requirement that he suffered "atypical and significant hardship." CP at 87.
¶ 49 To begin, Parmelee is correct that he was not required to establish an "atypical and significant hardship" as a result of the infraction to establish a retaliation claim under the First Amendment. See, e.g., Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995). Thus, the trial court erred when it reasoned that Parmelee had to establish an "atypical and significant hardship" to go forward with his retaliation claim. See Rhodes, 408 F.3d at 567.
¶ 50 To prevail on a retaliation claim under 42 U.S.C. § 1983, Parmelee carries the burden to establish that DOC employees retaliated against him for exercising his constitutional rights; that the retaliatory action chilled the exercise of his First Amendment rights; and that the retaliatory action failed to advance legitimate penological goals, such as preserving institutional order and discipline. Rhodes, 408 F.3d at 567-68. In addition, a court evaluates a retaliation claim in light of the deference afforded to prison officials. Pratt, 65 F.3d at 807.
¶ 51 Notwithstanding the unconstitutionality of Washington's criminal libel statutory scheme, Parmelee established a cognizable retaliation claim in his pleadings. Although he did not cite to § 1983 or case law supporting such a claim, he refers to the "retaliatory intent" of DOC employees repeatedly. See, e.g., CP at 698; see also CP at 694, 695, 703. Specifically, Parmelee alleged in his complaint:
49. Defendants acted in bad faith, evil motive, maliciousness and with retaliatory intent to chill, stop and prevent Parmelee from now or ever in the future, make [sic] statements or complaints critical of DOC staff or policy.
CP at 698. This language constitutes a claim for retaliation. Parmelee pleaded facts sufficient to state a claim for which relief may be granted. Dismissal is appropriate only if it appears beyond doubt that the plaintiff cannot prove any set of facts that would justify recovery. See CR 12(b)(6); CR 12(c). Here, based on his pleadings, Parmelee could prove facts that would justify recovery.
¶ 52 First, Parmelee alleged that the language used in his grievance was not libelous and was therefore protected by the First Amendment. He alleged that DOC retaliated against him for pursuing litigation against DOC officials and making statements critical of DOC staff and policy. He also alleged that DOC employees' actions failed to advance legitimate penological goals. In addition, he alleged that DOC's actions did not comply with its internal policy that "[n]o letter is to be censored to eliminate opinions critical of Department policy or Department employees." CP at 695. Finally, Parmelee alleged that DOC retaliated against him because it did not issue his infraction until nearly three months after he attempted to send the letter to DOC Secretary Clarke, around the time he was actively pursuing litigation against prison officials. Although timing does not establish a prima facie case of retaliation, in some circumstances it may suggest retaliatory actions. See Pratt, 65 F.3d at 808.
¶ 53 When taken together, and assuming that Parmelee's allegations are true, dismissal was inappropriate. We hold that the trial court erred when it dismissed this claim. See Burton, 153 Wash.2d at 422, 103 P.3d *1107 1230; Suleiman, 48 Wash.App. at 376, 739 P.2d 712.
V. ATTORNEY FEES
¶ 54 Parmelee seeks attorney fees for the first time on appeal, under 42 U.S.C. § 1988,[15] which authorizes an award of attorney fees to the prevailing party in proceedings in vindication of civil rights. Parmelee is not entitled to attorney fees on appeal. He will only be entitled to attorney fees under 42 U.S.C. § 1988 if on remand, his attorney successfully litigates the retaliation claim under 42 U.S.C. § 1983.
¶ 55 We hold that Washington's criminal libel statute is facially unconstitutional and is likewise unconstitutional for overbreadth and vagueness. We vacate the infraction based on the unconstitutional statute. We reverse the trial court's dismissal under CR 12(b)(6) and remand for further proceedings at which Parmelee may raise his claims for damages against DOC for violating his First Amendment rights, violating substantive due process, and retaliating against him.
We concur: VAN DEREN, C.J., and ARMSTRONG, J.
NOTES
[1] We note the appellant uses two different spellings of his first name: "Allan" appears in the captions and body of the pleadings but when he signs his name, he spells it "Allen." We will use the spelling "Allen" in this opinion.
[2] The subject of the letter was: "RE: A Lesbian as a Superintendent Is A Solution For Disaster." CP at 717.
[3] The State has since promulgated new prison disciplinary rules, effective May 1, 2006. See WAC 137-25-030 (listing serious infractions).
[4] The record does not include minutes or verbatim report of proceedings from the administrative proceedings.
[5] In his original complaint, Parmelee also alleged libel and slander against the defendants, under chapter 9.58 RCW. He later withdrew his claims for libel and slander, arguing instead that chapter 9.58 RCW was superceded.
[6] The named defendants include: Robert O'Neel, Richard Monger, Harold Clarke, Eldon Vail, Lynn DeLano, Kathryn Bail, Carroll Riddle, Sandra Carter, John Palmer, John Aldana, Sandra Diimmel, Jerry McHaffie, Tina Adams, Nathan Cornish, Michael Erlenmeyer, "Unknown Others" and the community partners of each.
[7] According to DOC, Parmelee did not serve the complaint on the first DOC employee until June 15, 2006. Subsequent to that service, other DOC employees were either personally served or waived service. To date, according to DOC, Clarke, Vail, DeLano, Bail, Diimmel, and Erlenmeyer have not been served. Both parties have filed a plethora of motions regarding DOC staff and service.
[8] The State contends and there is no evidence in the record that Parmelee ever served DOC employees with the motions to revise or the motion for reconsideration.
[9] A few courts have struck down criminal libel statutes insofar as they pertain to public officials, public figures, or matters of public concern, without deciding whether those statutes were unconstitutional as applied to private individuals and/or private matters. Mangual, 317 F.3d at 66-67; People v. Ryan, 806 P.2d 935, 940 (Colo.) (holding the statute unconstitutional only as applied to constitutionally protected statements about public officials, public figures, or matters of public concern), cert. denied, 502 U.S. 860, 112 S. Ct. 177, 116 L. Ed. 2d 140 (1991). Yet Washington's criminal libel statute does not distinguish between public and private individuals or issues and there seems to be no way to construe the statutory language to do so. Consequently, we must either wholly uphold the statute or wholly invalidate it as facially unconstitutional. See, e.g., Tollett v. United States, 485 F.2d 1087, 1097-98 (8th Cir.1973).
[10] RCW 9.58.010 provides:
Every malicious publication by writing, printing, picture, effigy, sign[,] radio broadcasting or which shall in any other manner transmit the human voice or reproduce the same from records or other appliances or means, which shall tend:
(1) To expose any living person to hatred, contempt, ridicule or obloquy, or to deprive him of the benefit of public confidence or social intercourse; or
(2) To expose the memory of one deceased to hatred, contempt, ridicule or obloquy; or
(3) To injure any person, corporation or association of persons in his or their business or occupation, shall be libel. Every person who publishes a libel shall be guilty of a gross misdemeanor.
[11] A minority of courts have upheld criminal libel statutes in circumstances distinguishable from those here. See People v. Heinrich, 104 Ill. 2d 137, 150-51, 83 Ill. Dec. 546, 470 N.E.2d 966, 972 (1984) (upholding criminal libel state that was aimed at fighting words and neither a public plaintiff nor a public issue was involved); see also Phelps v. Hamilton, 59 F.3d 1058, 1072, 1073 (10th Cir.1995) (applying Kansas law and finding the statute ambiguous, but interpreting the statute to include an "actual malice" requirement based on the assumption that the state legislature "only intend[ed] to criminalize unprotected speech."). It also should be noted that while Phelps was pending, the Kansas legislature amended its statute to require "actual malice." KAN. STAT. ANN. § 21-4004.
[12] Although we find Turner inapposite, we briefly address it because DOC employees relied so heavily on Turner in their briefing and oral argument.
[13] Specifically, Parmelee referred to a corrections officer in one grievance as a "piss-ant officer," and "an asshole." He also requested that DOC "[f]ire this asshole before someone reacts to his attempt to provoke violently." Parmelee, 115 Wash.App. at 276-77, 63 P.3d 800. In another grievance, Parmelee stated, "fire this prick because shitheads like him shouldn't be around prisoners." Parmelee, 115 Wash.App. at 279, 63 P.3d 800. In that second grievance, he also warned that the officer should be fired "before his attitude gets him fucked up." Parmelee, 115 Wash.App. at 279, 63 P.3d 800.
[14] The hearing examiner also found Parmelee guilty of making a threat, in violation of S-207. Parmelee, 115 Wash.App. at 279, 63 P.3d 800.
[15] 42 U.S.C. § 1988(b) provides: "In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . ., the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs."
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752 N.W.2d 453 (2008)
FOGLE
v.
PELLA CORP.
No. 06-1746.
Court of Appeals of Iowa.
May 14, 2008.
Decision without published opinion. Reversed.
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Case: 13-3132 Document: 15 Page: 1 Filed: 08/08/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KEITH ANDREW FIELDS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
UNITED STATES POSTAL SERVICE,
Intervenor.
__________________________
2013-3132
__________________________
Petition for review of the Merit Systems Protection
Board in No. PH0752090568-B-2.
__________________________
ON MOTION
__________________________
ORDER
The United States Postal Service (Postal Service)
moves to reform the caption to name the Merit Systems
Protection Board (Board) as the respondent, and to allow
the Postal Service to intervene. Keith Andrew Fields
Case: 13-3132 Document: 15 Page: 2 Filed: 08/08/2013
FIELDS V. MSPB 2
opposes the motion. The Postal Service also requests to set
their briefing schedule.
Pursuant to 5 U.S.C. § 7703(a)(2), the Board is
designated as the respondent when the Board's decision
concerns the procedure or jurisdiction of the Board. In this
case, the Board dismissed the appeal for lack of
jurisdiction. Thus, the Board is the proper respondent in
this petition for review.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to reform the caption is granted. The
revised official caption is reflected above.
(2) The Board and the Postal Service should calculate
the due date for their response briefs from the date of
filing of this order.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk
s21
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NO. 07-09-0272-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 30, 2009
______________________________
IN RE THIRTY-FOUR GAMBLING DEVICES AND SIX HUNDRED
AND THIRTY NINE DOLLARS IN UNITED STATES CURRENCY
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Relators, Michelle Medrano and Johnny Shannon,1 have brought a mandamus
action against the Honorable John Board, Judge of the 181st District Court of Randall
County, Texas, seeking an order from this Court ordering Judge Board to proceed to trial
on the underlying forfeiture action.2 Having determined that Relators have not shown
themselves entitled to mandamus relief, we will deny the application.
1
The record indicates that Medrano was operating “The Other Place” for Shannon,
who was the owner.
2
Relators’ amended application for writ of mandamus requests other relief which
will be denied.
Factual & Procedural Background
The underlying cause of action arose out of the seizure of certain items of personal
property3 and an amount of cash from an establishment known as “The Other Place” in
Randall County, Texas, pursuant to the execution of a search warrant on June 24, 2003.
Subsequently, on June 11, 2004, the State, real party in interest, filed a petition seeking
to forfeit the seized property pursuant to the Texas Code of Criminal Procedure. See TEX .
CODE CRIM . PROC . ANN . art. 18.18 (Vernon Supp. 2008).4 Notice of the setting of a hearing
on the issue of the forfeiture of the property was given on June 30, 2004. The notice
provided that the hearing would occur on July 19, 2004. One day prior to the original
hearing date, Relator Medrano filed a Plea in Abatement and Motion for Continuance
objecting to the court’s notice. The court granted the motion for continuance, reset the
hearing for a later date, and issued a second notice5 pursuant to article 18.18. See art.
18.18. At a pretrial hearing, Judge Board indicated that his intent was to proceed to trial
on the “Court’s notice.” Subsequently, the trial court heard the matter and entered a
judgment dated September 2, 2004. The trial court appears to have intended to enter
judgment in a new cause number, Cause No. 54,834-B. However, the judgment was
actually entered in Cause No. 53,716-B, the cause initiated by the real party in interest’s
original petition. Notice of appeal of the “judgment entered in Cause No. 54,834-B” was
3
The items of personal property seized are known as “8-liner” devices, alleged to
be gambling devices, gambling paraphernalia, or altered gambling devices.
4
Further reference to the Texas Code of Criminal Procedure will be by reference
to “Article ___” or “art. ____.”
5
This will be referred to as the “Court’s notice.”
2
given on November 11, 2004. This Court dismissed the appeal for want of jurisdiction, as
there was no judgment actually entered in Cause No. 54,834-B.6 See In re Thirty-four
Gambling Devices, No. 07-04-0548-CV, 2006 Tex.App. LEXIS 775, at *8
(Tex.App.–Amarillo Jan. 30, 2006, no pet.) (memo. op.). The Court’s mandate was issued
February 5, 2006.
The real party in interest requested a trial setting by letter addressed to Judge Board
on November 29, 2006, in Cause No. 54,834-B. By letter dated August 21, 2007, Judge
Board advised all parties that the matter was set for final hearing on October 30, 2007.
Relator Shannon filed a motion for continuance on October 24, 2007. On October 30,
2007, Shannon filed another motion for continuance, supported by the affidavit of
Shannon, a motion to dismiss for lack of prosecution, and a plea to the jurisdiction and plea
in bar.7 The motion for continuance was granted on October 30, 2007, and Judge Board
requested briefing on the other motions. On January 2, 2008, real party in interest
requested a final hearing. On January 7, 2008, Judge Board denied Shannon’s plea to the
jurisdiction and plea in bar. On January 16, 2008, Relators filed a motion to recuse Judge
Board. On May 29, 2008, Relators filed a motion to dismiss for failure to immediately set
the motion to recuse. On June 3, 2008, Judge Bryan Poff denied the motion to recuse.8
6
The real party in interest had taken a voluntary non-suit in the original cause
number on August 5, 2004.
7
The real party in interest states that, although these documents were filed stamped
November 5, 2007, they were actually filed with the court during the hearing of October 30,
2007.
8
Judge Poff had been assigned to hear the motion to recuse.
3
Again, on June 3, 2008, the real party in interest filed a request that the matter be set for
trial. Relators filed another motion to dismiss for failure to prosecute on June 16, 2009.
Judge Board set a hearing on the motion to dismiss for July 21, 2009. On July 29, 2009,
Judge Board denied the motion to dismiss. Prior to Judge Board’s ruling on the motion to
dismiss, Relators filed a motion to exclude alleging that the search warrant giving rise to
the case should be excluded from evidence. The motion to exclude was scheduled for
hearing on October 22, 2009. Prior to that hearing, Relators filed their original application
for mandamus on August 17, 2009. The real party in interest filed its response to the
application for mandamus on August 31, 2009. Relators filed an amended application for
mandamus on September 1, 2009 and a response to the real party in interest’s response
on September 9, 2009.
Standard of Review
Courts of appeals have appellate jurisdiction as specified in article V, section 6, of
the Texas Constitution, together with such other original and appellate jurisdiction as may
be prescribed by law. TEX . CONST . art. V, § 6. Courts of appeals have jurisdiction to issue
writs of mandamus. TEX . GOV’T CODE ANN . § 22.221(b)(1) (Vernon 2004)
Mandamus is a legal remedy, Westerman v. Mims, 111 Tex. 29, 227 S.W. 178, 181
(1921), even though equitable principles apply. In re Int’l Profit Assocs., Inc., 274 S.W.3d
672, 676 (Tex. 2009). A writ of mandamus is an extraordinary remedy that will issue only
to correct a clear abuse of discretion or the violation of a duty imposed by law, when there
is no other adequate remedy by law. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003).
4
Relators seeking issuance of a writ of mandamus based on the violation of a legal duty
must show: (1) a legal duty to perform a non-discretionary act; (2) a demand for
performance; and (3) a refusal to act. O’Connor v. First Court of Appeals, 837 S.W.2d 94,
97 (Tex. 1992). Fundamental requirements of due process mandate an opportunity to be
heard. Creel v. Dist. Att’y for Medina County, 818 S.W.2d 45, 46 (Tex. 1991). Requiring
a district court to proceed to trial on a matter is supportable by a mandamus action.
Kissam v. Williamson, 545 S.W.2d 265, 267 (Tex.Civ.App.–Tyler 1976, orig. proceeding).
Analysis
Relators contend that, when Judge Board denied their motion to dismiss, he made
a decision to “maintain the case on the docket” and, therefore, was required to issue a
pretrial order assigning a trial date. Relators cite the Court to Texas Rule of Civil
Procedure 165a(1) as authority for this proposition. See TEX . R. CIV. P. 165a(1).9 Rule
165a(1) states, in pertinent part,
1. Failure to appear. A case may be dismissed for want of prosecution on
failure of any party seeking affirmative relief to appear for any hearing or trial
of which the party had notice . . . . If the court determines to maintain the
case on the docket, it shall render a pretrial order assigning a trial date for
the case . . . .
Id.
9
Further reference to the Texas Rules of Civil Procedure shall be by reference to
“Rule ___.”
5
The record before this Court reflects that the party seeking affirmative relief, the real
party in interest, has appeared at every setting for which the trial court has issued notice.
Moreover, Judge Board did not set this matter for consideration on a dismissal docket,
rather, the record affirmatively reflects that Relators are basing their demand on the hearing
of their motion to dismiss. Therefore, we find their reliance upon Rule 165a(1) to be
misplaced. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 850-51 (Tex. 2004).
Accordingly, Relators have not shown that Judge Board failed in a ministerial duty pursuant
to the Rule.
However, this does not end our inquiry. Alternatively, Realtors maintain that the trial
court “failed to cause either a hearing to be had within twenty days as mandated by the
procedures of article 18.18 or the State failed to create and cause to be entered a
Judgment on the Art. 18.18 Show Cause Hearing that was had pursuant to the notice
issued by Magistrate Board on July 26, 2004." See art. 18.18. First, article 18.18 does not
mandate that a hearing be held within 20 days. Id. Article 18.18(e) does direct that a
person interested in the property at issue (here, “Thirty-Four Gambling Devices and Six
Hundred and Thirty Nine Dollars in United States Currency”) appear before the 20th day
following issuance of the article 18.18(b) notice or risk forfeiture of any interest in that
property. See art. 18.18(e). Following appearance, the trial court must conduct a hearing
on the issue and determine the nature of the property and the person’s interest therein. Id.
At that hearing, the person interested in the property must prove by a preponderance of the
evidence that the property is not subject to disposition pursuant to article 18.18 and that he
is entitled to possession. Id. At the conclusion of that hearing, the magistrate shall dispose
6
of the property or proceeds in accordance with article 18.18(a). See art. 18.18(a). The
record reflects that a hearing was scheduled pursuant to the article and that Relator Moreno
filed a motion to continue the original hearing. Because Relators have the burden to prove
entitlement to the property, any motion to dismiss for lack of prosecution does not “clearly
contain,” by operation of law or otherwise, a request that the Magistrate set the matter for
trial. O’Connor, 837 S.W.2d at 97.
Judge Board held the required hearing and, at the conclusion, it appears he
attempted to enter a judgment, however, due to the confusion as to the cause number, the
judgment was not entered in the surviving case. Of greater import is the state of the record
regarding the actions of Relators. The record reflects that Relators have filed at least two
motions for continuance, one before the initial hearing and one after this Court’s mandate
issued. In addition, Relators have filed three other dilatory motions, including a motion to
recuse Judge Board. Based upon the failure of Relators to request Judge Board to set the
matter for final hearing before or after he ruled upon their motion to dismiss for want of
prosecution, we cannot say Relators have ever made a demand for the Judge to perform
his legal duty to set the matter for trial. See id. Accordingly, we cannot grant the
mandamus based upon Relators’ alternate theory.
Additionally, the record before this Court reflects that at least two requests for
setting have been made by the real party in interest and that those requests have now been
outstanding for more than a year. At the time of each request, Relators have responded
with either a motion for continuance or other dilatory pleading. Relators’ course of action
leads to an inescapable conclusion that Relators did not truly desire a trial. It is of no legal
7
significance that the real party in interest has requested trial settings because Relators must
meet the burden of showing their entitlement to mandamus relief based upon their action.
See In re Chavez, 62 S.W.3d 225, 229 (Tex.App.–Amarillo 2001, orig. proceeding).
Finally, in the amended application for mandamus, Relators have requested that we
address a number of other issues that relate to the underlying cause of action. To support
this proposition, Relators have cited the Court to In re Colonial Pipeline Co., 968 S.W.2d
938, 943 (Tex. 1998). While we have the discretionary authority to consider these other
issues, we have denied the request for mandamus and, therefore, see no reason to do so.
Conclusion
Relators’ application for mandamus is denied.
Mackey K. Hancock
Justice
8
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186 P.3d 77 (2008)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Justin HEIMANN, Defendant-Appellant.
No. 06CA0662.
Colorado Court of Appeals, Div. A.
November 29, 2007.
*78 John W. Suthers, Attorney General, Corina Gerety, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge NIETO.[*]
Defendant, Justin Heimann, appeals the prison sentence imposed upon revocation of his sentence to probation. We affirm.
Defendant pleaded guilty to an added count of attempted sexual assault on a child by one in a position of trust-victim fifteen to eighteen years old, a class five felony, in exchange for dismissal of the three original felony counts. He was charged as a result of incidents during which the nineteen-year-old defendant took two thirteen-year-old girls to his apartment, served them alcohol, and had sexual intercourse with them. This occurred on multiple occasions as to one of the two victims and on one occasion as to the other victim. The court sentenced defendant to three years probation with a ninety-day jail sentence.
Approximately six months later, the probation officer filed a complaint alleging defendant had violated the terms and conditions of his probation by failing to appear for two scheduled probation appointments; attending a party at which he drank alcohol, resulting in a blood alcohol content of .083; and violating his curfew by being out of his home at 3 a.m. The probation officer recommended a sentence to the Department of Corrections (DOC).
At the probation revocation hearing on January 12, 2006, defendant admitted two violations of his probation and requested that he be screened for a community corrections placement. The court accepted defendant's admission and defendant agreed to the February 16, 2006, sentencing date set by the court at the conclusion of the hearing. At the sentencing hearing, the court imposed a sentence of four years in the DOC, plus two years mandatory parole.
I.
Defendant contends the trial court committed reversible error by failing to revoke his probation within five days after the probation revocation hearing. We disagree.
Probation is a privilege, not a right. People v. Ickler, 877 P.2d 863, 866 (Colo. 1994). If the court finds that a defendant violated the terms and conditions of probation, it has the discretion to revoke that privilege and impose any sentence to which the defendant was subject upon conviction of the underlying crime. § 16-11-206(5), C.R.S. 2007; People v. Santana, 961 P.2d 498, 500 (Colo.App.1997). A defendant facing probation revocation is entitled to the minimum requirements of due process, including notice of the alleged probation violations and an opportunity to be heard. People v. Atencio, 186 Colo. 76, 78, 525 P.2d 461, 462 (1974). The procedure for the probation revocation hearing is set forth at section 16-11-206, C.R.S.2007.
Defendant claims he is entitled to reinstatement of probation because the February 16, 2006, hearing at which he was sentenced to prison occurred more than five days after he admitted two violations of probation at the revocation hearing held on January 12, 2006. He claims such a result is compelled by section 16-11-206(5), which states in pertinent part: "If the court determines *79 that a violation of a condition of probation has been committed, it shall, within five days after the said hearing, either revoke or continue the probation."
A statutory provision requiring, as here, that a decision of a court "be entered or filed within a definite time has generally been considered directory." Shaball v. State Comp. Ins. Auth., 799 P.2d 399, 402 (Colo.App.1990). Such provisions are not jurisdictional unless a contrary intent is clearly expressed. Statutory time limitations are generally categorized as directory, not jurisdictional, unless time is of the essence, the statute contains negative language denying exercise of authority beyond the time period prescribed, or disregarding the relevant provision would injure public or private rights. Id; see People v. Osorio, 170 P.3d 796, 798 (Colo.App.2007) (similar holding applies to court rules).
The statute at issue does not contain language that precludes the court's action after the indicated time period. Further, we reject defendant's contentions that the inclusion of a time period for the court's action and the fact that section 16-11-206(5) does not expressly provide for a court's extension of that time period make the provision "jurisdictional in nature." See Osorio, 170 P.3d at 798; In re Marriage of Helmich, 937 P.2d 897, 899 (Colo.App.1997) (while General Assembly may limit jurisdiction of court to act, no statute will be held to limit court power unless "limitation is explicit from the language of the statute"); cf. People in Interest of D.M., 650 P.2d 1350, 1352 (Colo.App.1982) (court calendar congestion may be permissible cause for delay under section 16-11-206(4), C.R.S.2007).
We further conclude that any violations of the statute did not injure any public or private right. Defendant has not indicated that he was affected in any way by the timing of the proceedings. At the January probation revocation hearing, defendant admitted violations of the terms and conditions of his probation. At the February hearing, he did not ask the court to reinstate his probation but, instead, argued for a community corrections placement against the prosecutor's argument for prison time. Further, he received credit against his DOC sentence for the time spent in custody. Reversal is not warranted where defendant consented to a hearing outside the time period specified by statute and there is no showing that the timing affected the fairness of the proceeding or cast doubt on the reliability of its outcome.
II.
Defendant next contends that his aggravated range sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because it was based on the prior conviction exception to the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which he claims is no longer valid. Our supreme court and divisions of this court have addressed this contention and rejected it. See, e.g., Lopez v. People, 113 P.3d 713, 723 (Colo.2005) (while there is "some doubt about the continued vitality of the prior conviction exception, . . . it remains valid after Blakely"); People v. Nunn, 148 P.3d 222, 225 (Colo.App.2006) (noting that Supreme Court has not overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which is a basis for prior conviction exception, and has continued to recognize the exception). We will not reach a contrary conclusion. Here, the trial court unmistakably identified defendant's prior felony conviction as a basis for imposing an aggravated range sentence, which is sufficient to survive a Blakely challenge. See DeHerrera v. People, 122 P.3d 992, 993-94 (Colo.2005).
III.
Defendant also contends the court abused its discretion by imposing an aggravated range sentence. We disagree.
We will not overturn a sentencing court's decision absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234, 239 (Colo.1984). In exercising its discretion in sentencing, a trial court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating circumstances, *80 and the public interest in safety and deterrence. People v. Eurioste, 12 P.3d 847, 850 (Colo.App.2000). The circumstances of a crime alone may justify the imposition of a lengthy sentence. People v. Leske, 957 P.2d 1030, 1043 (Colo.1998). Where the sentencing court finds several factors justify a sentence in the aggravated range, only one of those factors need be legitimate to support the sentencing decision. Id.
The class five felony of which defendant was convicted subjected him to a presumptive range sentence of one to three years in the DOC or, upon a finding of extraordinary aggravating circumstances, a sentence of up to six years in the DOC. See §§ 18-1.3-401(1)(a)(V)(A), (6), 18-3-405.3(1), C.R.S.2007. Defendant's sentence to four years in prison was within the range authorized by law.
At the sentencing hearing, the court discussed the impact of the crimes and harm to the victims caused by defendant's predatory conduct, defendant's failure to take advantage of the opportunity provided to him by his sentence to probation, his prior felony conviction, protection of the public, and the message to the community that would be imparted by the sentence imposed. Thus, the court considered the appropriate factors in sentencing. See People v. Walker, 724 P.2d 666, 669 (Colo.1986) (after having weighed factors relevant to sentencing decision, court is not required to engage in a point-by-point discussion of every factor when it explains the sentence to be imposed).
We find no abuse of discretion that would allow us to overturn the sentence imposed. See People v. Fuller, 791 P.2d 702, 708 (Colo. 1990) (appellate court must uphold sentence if it is within range required by law, is based on appropriate considerations as reflected in record, and is factually supported by circumstances of case); People v. Mazzoni, 165 P.3d 719, 723-24 (Colo.App.2006); Eurioste, 12 P.3d at 851.
The sentence is affirmed.
DAVIDSON, C.J., and NEY *, J., concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2007.
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186 P.3d 1078 (2008)
STATE of Washington, Respondent,
v.
Christina S. OROZCO, Appellant.
No. 59064-2-I.
Court of Appeals of Washington, Division 1.
March 17, 2008.
Publication Ordered April 23, 2008.
*1079 Jon Thomas Scott, Scott & Howard, Mill Creek, WA, for Appellant.
Thomas Marshal Curtis, Lisa Danette Paul, Snohomish Co. Prosecutor's Office, Everett, WA, for Respondent.
Pamela Beth Loginsky, Washington Assn. of Prosecuting Attorneys, for other Party.
AGID, DWYER and LEACH, JJ.
PER CURIAM.
¶ 1 Christina Orozco (Orozco) appeals her conviction for stalking. She argues that the trial court erred by refusing to disqualify the Snohomish County Prosecutor's Office (the Prosecutor's Office) because one of its attorneys assisted her victim in obtaining a civil anti-harassment order. She fails to properly raise any relevant Washington rule, statute, or case to support her claim that a prosecutor's office cannot assist a county employee in obtaining a civil anti-harassment order against another county employee and then later prosecute the offending employee criminally without creating an impermissible conflict of interest. We affirm.
FACTS
¶ 2 Orozco harassed and stalked Tina Rogers (Rogers). Both women worked for Snohomish County (the County) when the harassment began. Much of this harassment occurred at Rogers' workplace and involved disseminating information that impugned her reputation as a county employee. Rogers sought and obtained a civil anti-harassment order with the help of the Civil Division of the Prosecutor's Office. In addition to prosecuting crimes, the Prosecutor's Office is also charged with providing legal advice to and representing the County in civil proceedings.[1] Although the County was not a party to the civil anti-harassment order proceedings, it was in its capacity as attorney for the County that the Prosecutor's Office assisted Rogers, a county employee experiencing harassment at and related to her work. When Orozco continued to harass and stalk Rogers, the Criminal Division of the Prosecutor's Office charged her with stalking and later amended the charge to include certain aggravating factors. Although two different attorneys from two different divisions of the Prosecutor's Office handled the civil and criminal matters, Orozco moved to disqualify the Prosecutor's Office, alleging a violation of RPC 3.8 based on a conflict of interest. The trial court denied that motion, finding no actual or potential conflict of interest. A jury convicted Orozco, and the court sentenced her to 9 months in jail and 240 hours of community service.
DISCUSSION
¶ 3 Orozco contends the trial court erred in refusing to disqualify the Prosecutor's Office and in finding that there was no conflict of interest that precluded it from proceeding against her criminally for stalking Rogers after it had assisted Rogers in obtaining a civil anti-harassment order against her. We disagree.
¶ 4 We review a decision not to disqualify an attorney for an abuse of discretion.[2] A trial court abuses its discretion when it makes a decision based on untenable grounds or for untenable reasons.[3] We review a determination about whether a conflict *1080 of interest exists de novo because it is a question of law.[4] Generally, when a trial court applies the law incorrectly, it abuses its discretion.[5]
¶ 5 Orozco argues that the Prosecutor's Office could not prosecute her after its civil division assisted her victim in obtaining a civil anti-harassment order without violating its duty of impartiality under RPC 3.8. But a prosecutor has no duty of impartiality under RPC 3.8. The term "impartial" appears nowhere in the text of or comments to RPC 3.8. And the Washington Supreme Court has quoted a United States Supreme Court decision to explain that prosecutors are neither expected nor required to be completely impartial:
The Court observed that, unlike judges, "[p]rosecutors need not be entirely `neutral and detached,'" and may be rewarded for initiating and carrying out prosecutions in the name of the people. As such, they "are necessarily permitted to be zealous in their enforcement of the law." Although the constitution prevents prosecutors from making decisions that are "motivated by improper factors or . . . contrary to law. . . . [T]he strict requirements of neutrality cannot be the same for . . . prosecutors as for judges. . . . "[[6]]
The trial court properly ruled that the prosecutor's actions did not violate RPC 3.8.[7]
¶ 6 Orozco cites one Pennsylvania case to suggest that this situation presents an actual conflict of interest, and that case is distinguishable. In Commonwealth v. Eskridge, the Pennsylvania Supreme Court held that there was an actual conflict of interest when a prosecuting attorney's private law firm pursued a negligence case arising out of an automobile accident in which the defendant driver had been prosecuted criminally for his role in the accident.[8] Clearly, a conflict of interested arose there because the prosecuting attorney, as a partner in the law firm, would benefit financially from a conviction that could be used as proof in the civil case. A later Pennsylvania case, holding that no conflict of interest exists when the prosecuting attorney has no personal stake in the outcome of a criminal proceeding, explained that Eskridge is limited to situations where the prosecuting attorney has a "direct financial interest in the outcome of a prosecution."[9] Here the prosecuting attorney had no financial or personal stake in the outcome of the criminal case. Neither the Prosecutor's Office nor the civil and criminal deputies received extra remuneration for taking the civil case. And, because the civil anti-harassment order was obtained before the criminal charge, a successful prosecution would have no effect on the outcome of the civil case. Consequently, we hold there was no actual conflict of interest.
¶ 7 Finally, in her reply brief, Orozco argues for the first time that the Prosecuting Attorney's conduct violates RCW 36.27.050. But RAP 2.5(a) limits our review to issues the trial court had an opportunity to consider.[10] An issue raised for the first time in a reply brief is generally too late to warrant *1081 consideration.[11] We decline to consider her RCW 36.27.050 argument.
¶ 8 We affirm.
NOTES
[1] RCW 36.32.020.
[2] State v. Schmitt, 124 Wash.App. 662, 666, 102 P.3d 856 (2004) (citing Pub. Util. Dist. No. 1 of Klickitat County v. Int'l Ins. Co., 124 Wash.2d 789, 812, 881 P.2d 1020 (1994)).
[3] Id. (citing State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S. Ct. 1193, 140 L. Ed. 2d 323 (1998)).
[4] State v. Vicuna, 119 Wash.App. 26, 30, 79 P.3d 1 (2003) (citing State v. Ramos, 83 Wash.App. 622, 629, 922 P.2d 193 (1996)), review denied, 152 Wash.2d 1008, 99 P.3d 896 (2004).
[5] State v. Tobin, 161 Wash.2d 517, 523, 166 P.3d 1167 (2007) (citing State v. Kinneman, 155 Wash.2d 272, 289, 119 P.3d 350 (2005)).
[6] State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967 (alterations in original) (citations omitted) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 248-50, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980)), cert. denied, 528 U.S. 922, 120 S. Ct. 285 (1999).
[7] Orozco also cites Berger v. United States to support her claim that a prosecutor has a duty of impartiality. 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). But Berger is not a conflict of interest case. Berger discusses the duty of a prosecutor to refrain from making improper comments about the evidence and suggesting that he has personal knowledge of facts not in evidence that would tend to inculpate the defendant. Id. at 88, 55 S. Ct. 629.
[8] 529 Pa. 387, 604 A.2d 700, 701 (1992).
[9] Commonwealth v. Lutes, 2002 Pa. Super 51, 793 A.2d 949, 956 (2002).
[10] See Almquist v. Finley Sch. Dist. No. 53, 114 Wash.App. 395, 401-02, 57 P.3d 1191 (2002), review denied, 149 Wash.2d 1035, 75 P.3d 968 (2003).
[11] Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992).
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752 N.W.2d 452 (2008)
WELLS
v.
LYNCH.
No. 07-1152.
Court of Appeals of Iowa.
May 14, 2008.
Decision without published opinion. Affirmed in part, Reversed in part, and Remanded.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION #109 MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT PAUL MACY
Motion for Summary Judgment is granted.
This case involves a negligence action against the defendants Prince CT Page 13836 Medical, Incorporated (hereinafter Prince Medical), Shelley Sherbondy and Paul Macy. Plaintiff alleges that as a result of the negligence of the defendants Sherbondy and Macy she was struck by a swinging door located on the premises owned by the defendant Prince Medical.
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
The defendant, Paul Macy has filed a Motion for Summary Judgment as to Count Two of the Complaint. Count Two is directed at the defendant, Paul Macy. Attached to the plaintiff's Motion for Summary Judgment was a Memorandum of Law and two Affidavits. One from the Affidavits is from the defendant Shelley Sherbondy and the other is from the defendant Paul Macy.
The Affidavit of Shelly Sherboudy (sic) provides in pertinent part that:
4) I along with Paul Macy, were walking together by the swinging doors which allegedly hit Nancy Carasone at the building located at 46-48 Prince Street, New Haven, Connecticut on June 15, 2000.
5) I pushed open the door which allegedly hit Nancy Carasone.
6) I did not see Paul Macy make any physical contact with the door before Nancy Carasone fell.
The Affidavit of Paul Macy provides in pertinent part that: CT Page 13837
4) I along with Shelley Sherbondy, were walking through the door which allegedly hit Nancy Carasone on June 15, 2000 at the building located at 46-48 Prince Street, New Haven, Connecticut.
5) I was walking behind Shelly Sherbondy when she pushed open the door which allegedly hit Nancy Carasone.
6) At no time before Nancy Carasone fell, did I have any contact with the door.
The defendant asserts in his Motion for Summary Judgment that since he did not have contact with the door that allegedly struck the plaintiff he did not owe any duty to her.
On September 20, 2001, the plaintiff filed its response to the defendant's Motion for Summary Judgment. The response states in pertinent part that the plaintiff "does not oppose the defendant Paul Macey's (sic) Motion for Summary Judgment."
Before addressing the merits of plaintiff's motion, a brief review of the standards for the granting of a Motion for Summary Judgment is necessary:
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700
(1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
A "material fact" is a fact that will make a difference in the result of the case. See Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 489, 280 A.2d 359
(1971). The party seeking summary judgment "has the CT Page 13838 burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).
Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 590
(1998).
In the instant action, the plaintiff has not filed any opposing Affidavits. Furthermore, the plaintiff has stated in its reply to the Motion for Summary Judgment that it does not oppose said Motion. In light of the foregoing, the Court comes to the conclusion that the defendant has met his burden of showing that there are no genuine issues of material fact. The defendant has also met his burden of showing that since he did not open the door that allegedly struck the plaintiff he was not under any duty to the plaintiff
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). It is well settled that to state a cause of action for negligence, a plaintiff must establish "duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "The existence of a duty is a question of law, and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation. Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990)." Leavenworth v. Mathes, 38 Conn. App. 476, 479, 661 A.2d 632 (1995).
Davies v. General Tours, Inc., 63 Conn. App. 17, 22 (2001).
Whereas the defendant has met his burden of proof that there are no genuine issues of fact and that he was not under any duty to the plaintiff, under applicable principles of substantive law he is entitled to a judgment as a matter of law. The defendant's Motion for Summary Judgment is therefore granted.
Richard A. Robinson, J.
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Filed 2/21/20 Certified for Publication 3/16/20 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITIZENS OF HUMANITY, LLC, D074790
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-00006337-
CU-NP-CTL)
CONI HASS et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
The Spangler Firm and Arie L. Spangler for Defendant and Appellant Coni Hass.
Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit, and Jocelyn D. Hannah for
Defendants and Appellants John H. Donboli, JL Sean Slattery, and Del Mar Law Group
LLP.
Browne George Ross, Peter W. Ross, and Charles Avrith for Plaintiff and
Respondent.
1
John H. Donboli, JL Sean Slattery, and Del Mar Law Group LLP (collectively the
Del Mar Attorneys) filed a mislabeling lawsuit on behalf of a putative class of consumers
who claimed they were misled by "Made in the U.S.A." labels on designer jeans
manufactured by Citizens of Humanity (Citizens). Citizens's jeans were allegedly made
with imported fabrics and other components. The linchpin of the purported class action
was that the "Made in the U.S.A." labels violated former Business and Professions Code
section 17533.7.1 However, a new law was passed after the complaint was filed that
relaxed the previous restrictions and, ultimately, the lawsuit was dismissed with
prejudice. (Stats. 2015, ch. 238, § 1.)
Citizens then filed this malicious prosecution action against the named plaintiff in
the prior case (Coni Hass), a predecessor plaintiff (Louise Clark), and the Del Mar
Attorneys. Each defendant filed a motion to strike the complaint under the anti-SLAPP
(Strategic Lawsuit Against Public Participation) statute, Code of Civil Procedure
section 425.16. Finding that Citizens met its burden to establish a probability of
prevailing on the merits, the trial court denied defendants' motions.
Hass and the Del Mar Attorneys (together Appellants) appeal contending Citizens
failed to make a prima facie showing that it would prevail on its claims. We disagree.
As we shall explain, (1) there are no undisputed fact on which we can determine, as a
matter of law, whether the Del Mar Attorneys and Clark had probable cause to pursue the
1 Statutory references are to the Business and Professions Code unless otherwise
specified.
2
underlying actions; (2) there is evidence which would support a reasonable inference the
Appellants were pursuing the litigation against Citizens with an improper purpose; and
(3) the district court's dismissal of the underlying action, with prejudice, constituted a
favorable termination in the context of a malicious prosecution suit. Accordingly, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Litigation
In June 2014, the Del Mar Attorneys initiated a putative class action lawsuit
against Citizens in the U.S. District Court for the Southern District of California, alleging
the company misleadingly labeled that its jeans were "Made in the U.S.A." when they
used imported components (fabric, thread, buttons, zipper assembly). The putative class
consisted of "all persons in the United States" who bought apparel from Citizens that was
labeled "Made in the U.S.A." within the four-year limitations period. Louise Clark, the
named plaintiff, allegedly bought a pair of "Boyfriend"-style Citizens jeans for $218 at a
Macy's store in San Diego shortly before the lawsuit was filed.
An amended complaint followed, and the district court thereafter denied Citizens's
motion to dismiss the action on federal preemption grounds. In May 2015, Citizens filed
an answer to the First Amended Complaint, admitting that it placed the label "Made in
the U.S.A." on the outer label of some "Boyfriend" jeans and that "some component
parts" of those jeans were from outside the United States.
The case proceeded to discovery. At her deposition in November 2015, Clark
admitted she was related to Slattery, one of the attorneys handling her case. Citizens
3
promptly moved to disqualify the Del Mar Attorneys. Clark filed a declaration stating
she felt the attention would distract from the merits of the case and indicating she no
longer felt comfortable "being 'in the spotlight' in this manner." The district court denied
the disqualification motion and in early May 2016 permitted the Del Mar Attorneys to
substitute Coni Hass for Clark as the named plaintiff. Clark withdrew her claims, and the
district court found no bad faith in the firm's decision to bring in a new class plaintiff.
Now proceeding on behalf of Hass and the putative class, the Del Mar Attorneys
filed a second amended complaint on May 5, 2016. That complaint alleged that Hass
bought a pair of Citizens "Ingrid"-style jeans from Nordstrom around November 2013,
relying on the "Made in the U.S.A." label. It asserted three interrelated causes of action:
false labeling under Business and Professions Code section 17533.7, a derivative
violation under the Unfair Competition Law (UCL, Bus. & Prof. Code, § 17200 et seq.),
and a violation of the Consumers Legal Remedies Act (CLRA, Civ. Code, § 1750 et
seq.).
Meanwhile, the Legislature amended section 17533.7. (Stats. 2015, ch. 238, § 1,
effective Jan. 1, 2016.) Like its predecessor, the amended statute prohibits selling
products in California labeled with "Made in U.S.A." or the like where the item "has been
entirely or substantially made, manufactured, or produced outside the United States."
(Compare former § 17533.7 with current § 17533.7, subd. (a).) But unlike the original
statute, the amended version includes two safe harbors. Merchandise could now be
labeled "Made in U.S.A." if foreign parts comprise no more than 5 percent of the
product's final wholesale value (§ 17533.7, subd. (b)), or if foreign-sourced materials
4
could not be domestically sourced and comprise no more than 10 percent of the product's
final wholesale value (§ 17533.7, subd. (c)).2
Citizens filed a motion to dismiss Hass's second amended complaint for failure to
state a claim under the amended statute. (Fed. Rules Civ.Proc., rule 12(b)(6).) The
district court granted the motion. Although statutes generally apply only prospectively,
the court applied an exception under California law that wholly statutory claims abate
with repeal or amendment of the remedial statute. Based on California's safe harbor
doctrine, the court also dismissed Hass's related claims under the CLRA and UCL. The
dismissals as to all three causes of action were without prejudice to amending the
complaint to show the safe harbors in amended section 17533.7 did not apply.
Citizens also argued in its motion to dismiss that Hass lacked standing as to
products she did not purchase. The court accepted this as an alternative basis to dismiss a
substantial portion of the class claims. Hass alleged she bought Ingrid-style jeans but did
not allege that Citizens's other products were substantially similar, as required for
standing over those putative class claims. As with its ruling on the merits, the dismissal
2 Under the old law, enacted in 1961, courts interpreted the "entirely or substantially
made" language in section 17533.7 strictly. (See Colgan v. Leatherman Tool Group, Inc.
(2006) 135 Cal. App. 4th 663, 690-692 (Colgan) [although tools were designed,
assembled, and finished in the United States, manufacturer's use of foreign-made
component parts precluded a "Made in U.S.A." label]; see generally, Kwikset Corp. v.
Superior Court (2011) 51 Cal. 4th 310, 329 ["to some consumers, the 'Made in U.S.A.'
label matters"].) By amending the statute in 2015, the Legislature sought to update
labeling standards to reflect the realities of a complex global economy, which limit a
manufacturer's ability to make products exclusively with domestic components. (Assem.
Com. on Privacy & Consumer Protection, Rep. on Sen. Bill No. 633 (2015−2016 Reg.
Sess.) Jul. 7, 2015, p. 4.)
5
was without prejudice to adding additional standing allegations in an amended pleading.
However, Hass decided not to amend and instead requested voluntary dismissal. In
December 2016, based on that request, the court dismissed the federal case with
prejudice.
The Malicious Prosecution Action and Anti-SLAPP Motion
In February 2018, Citizens filed the instant malicious prosecution action against
Clark, Hass, and the Del Mar Attorneys. The defendants moved to strike the complaint
under the anti-SLAPP statute (Code Civ. Proc., § 425.16). Included with their motions
was a declaration by Donboli describing the underlying litigation, his firm's reasons for
substituting Hass for Clark, and admitting Hass filed a notice of intent not to amend the
complaint. In the notice of intent not to amend the complaint, Hass explained:
"The Court's December 6, 2016 order found, in part, that Coni Hass
lacked subject matter jurisdiction to bring claims on additional
products. In light of this ruling, Plaintiff Coni Hass requests the
Court to dismiss the entire case for lack of subject matter
jurisdiction."
In support of the anti-SLAPP motion, Hass filed a declaration indicating she relied
on the "Made in the USA" label in buying her jeans and though she lacked
documentation, believed in good faith that she bought those jeans at a Nordstrom store in
San Diego in 2013. Each of the defendants also submitted pleadings, discovery
responses, motions, and rulings by the federal court.
Citizens opposed the anti-SLAPP motions with evidence it maintained showed the
Del Mar Attorneys selected Clark and Hass to represent the class, knowing neither had
relied on the labels in the jeans they purchased and thus were illegitimate, "shill"
6
plaintiffs. A declaration by Gary Freedman, Citizens's manager and general counsel,
indicated the company had "made a deliberate choice to manufacture its denim jeans
products in [the U.S.], despite the extra cost" and employed nearly 500 workers in the
Los Angeles area. Excerpts of depositions taken of Clark, Hass, and the Del Mar
Attorneys in the underlying case were offered to question their motivations for
prosecuting that action. The Clark and Hass excerpts explored whether either named
plaintiff actually relied on the "Made in the U.S.A." label in purchasing their jeans.
These excerpts were also offered to question how the two women became involved in the
case—in Clark's case, based on her relationship to Slattery and past participation in the
firm's mislabeling lawsuits, and in Hass's case, being contacted out-of-the-blue by an
attorney at the Del Mar Law Group after she made an unrelated complaint on a class
action website about the mislabeling of essential oils. Excerpts from the depositions of
Slattery and Donboli were offered to question their firm's investigation of Clark's and
Hass's claims.
Citizens also submitted prior putative class action complaints filed by the Del Mar
Attorneys with Clark as the named plaintiff. These complaints and Clark's January 2016
declaration requesting to withdraw because of the " 'spotlight' " were offered to support
its argument that Clark was a "shill." Finally, Citizens submitted a copy of the second
amended complaint in the prior case and the court's dismissal orders.
The trial court denied all three anti-SLAPP motions, finding Citizens had
established a probability of prevailing on the merits as to each essential element of its
malicious prosecution action. As to favorable termination, the court relied on Hass's
7
decision not to amend and Clark's decision to step down as putative class representative.
Crediting Citizens's deposition excerpts, it further found a sufficient showing that the
underlying case was prosecuted without probable cause:
"Plaintiff Citizens has shown a prima facie case to defeat the Anti-
SLAPP motion on this element. As for the original plaintiff, Clark,
her deposition testimony has been provided which provides evidence
to support lack of probable cause to assert 'Made in the USA' claims,
particularly with respect to reliance. With respect to Hass, plaintiff
has provided evidence related to how Hass came into the litigation
and her apparent lack of knowledge of Citizens jeans.
"With respect to attorneys Slattery and Donboli, plaintiff has
provided evidence regarding their handling of the litigation that
supports inferences of lack of probable cause if not at the inception
of the litigation, at least after the deposition of Ms. Clark."
Finally, the court found that Citizens had made a prima facie case that the prior case was
brought for an improper purpose, such as extracting a settlement having no relation to the
merits of the claim.
DISCUSSION
Appellants appeal the order denying their anti-SLAPP motions.3 They argue that
Citizens did not produce sufficient evidence to support the superior court's conclusion
that Citizens established a probability of prevailing on the merits as to each element of its
malicious prosecution action. We disagree.
3 Although Clark filed a notice of appeal, her appeal was dismissed when she failed
to file an opening brief. Thus, we discuss Clark in the context of Hass's and the Del Mar
Attorneys' arguments, but we eschew any analysis of the anti-SLAPP motion or the
malicious prosecution action as it relates solely to Clark.
8
I
THE ANTI-SLAPP MOTIONS
A. Anti-SLAPP Overview
A SLAPP suit, or a strategic lawsuit against public participation, is one that seeks
to chill a party's valid exercise of constitutional rights to free speech and to petition for
redress. (JSJ Limited Partnership v. Mehrban (2012) 205 Cal. App. 4th 1512, 1520.) The
goal of the anti-SLAPP procedure is to eliminate meritless or retaliatory litigation at an
early stage of proceedings. (Ibid.) Code of Civil Procedure, section 425.16 provides in
pertinent part:
"A cause of action against a person arising from any act of that
person in furtherance of the person's right of petition or free speech
under the United States Constitution or California Constitution in
connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established
that there is a probability that the plaintiff will prevail on the claim."
(Code Civ. Proc. § 425.16, subd. (b)(1).)
We use a two-step process to resolve an anti-SLAPP motion. In the first step, the
defendant must establish that the challenged claim arises from protected activities.
(Baral v. Schnitt (2016) 1 Cal. 5th 376, 384 (Baral).) The parties agree that Citizens's
malicious prosecution action meets that standard. "The plain language of the anti-SLAPP
statute dictates that every claim of malicious prosecution is a cause of action arising from
protected activity because every such claim necessarily depends upon written and oral
statements in a prior judicial proceeding." (Daniels v. Robbins (2010) 182 Cal. App. 4th
204, 215 (Daniels); see generally, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th
728, 733-741.)
9
This case therefore turns on the second inquiry—whether Citizens has met its
burden of establishing a probability it would prevail on the merits. (Baral, supra, 1
Cal.5th at p. 384; Code Civ. Proc., § 425.16, subd. (b)(1).)4 "Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under
the statute." (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88.)
This second step is a summary-judgment-like procedure. (Sweetwater Union High
School Dist. v. Gilbane Building Co. (2019) 6 Cal. 5th 931, 940 (Sweetwater).) We first
determine whether Citizens's prima facie showing is enough to win a favorable judgment.
(Ibid.) This threshold is "not high." (Greene v. Bank of America (2013) 216 Cal. App. 4th
454, 458.) Claims with minimal merit proceed. (Sweetwater, at p. 940.) We accept
Citizens's evidence as true and do not weigh evidence or resolve conflicting factual
claims. (Ibid.) We may consider affidavits, declarations, and their equivalents if it is
reasonably possible these statements will be admissible at trial. (Id. at p. 949.)
After examining Citizens's evidence, we evaluate Appellants' showings only to
determine if they defeat Citizens's claim as a matter of law. (Sweetwater, supra, 6
Cal.5th at p. 940.) Appellants can prevail either by establishing a defense or the absence
of a necessary element. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal. App. 4th 568,
585.) If there is a conflict in the evidence (the existence of a disputed material fact), the
4 Citizens contends Hass and the Del Mar Attorneys waived their right to challenge
the sufficiency of the evidence by failing to fairly summarize evidence in its favor. We
disagree that Appellants' summary of the evidence was deficient.
10
anti-SLAPP motion should be denied. (See Oviedo v. Windsor Twelve Properties, LLC
(2012) 212 Cal. App. 4th 97, 112 (Oviedo).)
An action for malicious prosecution has three required elements: "(1) the
defendant brought (or continued to pursue) a claim in the underlying action without
objective probable cause, (2) the claim was pursued by the defendant with subjective
malice, and (3) the underlying action was ultimately resolved in the plaintiff's favor."
(Lane v. Bell (2018) 20 Cal. App. 5th 61, 67.) The trial court determined that Citizens
established a probability of success as to each of these three elements and denied the anti-
SLAPP motions.
"We review de novo the grant or denial of an anti-SLAPP motion." (Park v.
Board of Trustees of California State University (2017) 2 Cal. 5th 1057, 1067.)
B. The Likelihood of Success on the Merits
1. Probable Cause
"An action is deemed to have been pursued without probable cause if it was not
legally tenable when viewed in an objective manner as of the time the action was initiated
or while it was being prosecuted." (Sycamore Ridge Apartments LLC v. Naumann (2007)
157 Cal. App. 4th 1385, 1402 (Sycamore).) The test is whether, on the basis of facts then
known, any reasonable attorney would have believed that instituting or maintaining the
prior action was tenable. (Ibid.; see Zamos v. Stroud (2004) 32 Cal. 4th 958, 973
[continuing to pursue an action discovered to lack probable cause meets the standard].)
" 'A litigant will lack probable cause for his action either if he relies upon facts which he
has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory
11
which is untenable under the facts known to him.' " (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal. 4th 260, 292 (Soukup).)
If there is " 'no dispute as to the facts upon which an attorney acted in filing the
prior action, the question of whether there was probable cause to institute that action is
purely legal.' [Citation.] 'The resolution of that question of law calls for the application
of an objective standard to the facts on which the defendant acted.' [Citation.]" (Daniels,
supra, 182 Cal.App.4th at p. 222.) So, it is often said that "the existence or absence of
probable cause has traditionally been viewed as a question of law to be determined by the
court, rather than a question of fact for the jury. . . . [¶] . . . [It] requires a sensitive
evaluation of legal principles and precedents, a task generally beyond the ken of lay
jurors . . . ." (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 875
(Sheldon).)
On the other hand, when there is a dispute as to the state of the defendant's
knowledge and the existence of probable cause turns on resolution of that dispute, there
becomes a fact question that must be resolved before the court can determine the legal
question of probable cause. (See Sheldon, supra, 47 Cal.3d at p. 881 ["[T]he jury must
determine what facts the defendant knew . . . ."].) "[C]ases have also made clear that if
the facts upon which the defendant acted in bringing the prior action 'are controverted,
they must be passed upon by the jury before the court can determine the issue of probable
cause . . . . "What facts and circumstances amount to probable cause is a pure question of
law. Whether they exist or not in any particular case is a pure question of fact. The
12
former is exclusively for the court, the latter for the jury." ' " (Id. at p. 877, citing Ball v.
Rawles (1892) 93 Cal. 222, 227.)
Although probable cause must exist as to each cause of action (see Soukup, supra,
39 Cal.4th at p. 292), all three causes of action in the underlying case turned on Citizens's
alleged violation of section 17533.7 in labeling its jeans as being "Made in the U.S.A."
a. Representation of Clark
Citizens argues no reasonable attorney would have sued on Clark's behalf, or
continued litigating on her behalf when her deposition testimony revealed she was not
misled. Its theme, echoed throughout the briefs, is that Clark is a "shill" who, with her
brother-in-law, Slattery, participates in a cottage-industry of contrived "Made in the
U.S.A" labeling lawsuits. Citizens asserts that the Del Mar Attorneys years ago
"developed a scheme to misuse the court system for their own financial gain."
In response, the Del Mar Attorneys argue that Citizens has not shown that no
reasonable attorney would have filed suit on Clark's behalf, and they emphasize the
following facts. Clark bought a pair of Citizens Boyfriend-style jeans from a Macy's
store in San Diego in 2014. The jeans were labeled, "Made in the U.S.A." At the time,
courts construed the "entirely or substantially made" language in section 17533.7 strictly,
such that merchandise containing even one foreign-made component could not be labeled
as "Made in the U.S.A." (See Colgan, supra, 135 Cal.App.4th at pp. 690-692.) Donboli
saw the labels on the jeans Clark bought and confirmed on retailers' websites that
Citizens included "Made in the U.S.A." labels on other apparel. Although Clark's jeans
had an outer label stating "Made in the U.S.A.," an inner label clarified in small print that
13
they were "Made in the USA with imported fabrics." This inner label did not change
Donboli's view that the outer label violated the statute. Based on these facts, the Del Mar
Attorneys contend probable cause existed.
We would agree with the Del Mar Attorneys that Citizens failed to carry its burden
if these were the only facts in the record. Similarly, if Citizens merely called Clark a liar
or asserted she was a shill, without evidence, we would find probable cause existed.
However, that is not the record before us.
Instead, Citizens proffered significant evidence to support the reasonable inference
that Clark was a shill plaintiff, and the Del Mar Attorneys were aware of this fact. It is
undisputed that Slattery is Clark's brother-in-law, and that Clark was a named plaintiff in
Slattery's firm's prior Made-in-USA labeling lawsuits involving air freshener and nasal
spray products. Clark also was the named plaintiff in an ingredient mislabeling lawsuit
filed by the Del Mar Attorneys against a dog food company. Although these facts alone
would not support a reasonable inference that Clark was a shill, when combined with
other facts that became apparent at Clark's deposition, we determine that a reasonable
inference could be drawn that Clark was a shill plaintiff.
For example, Clark testified at her deposition that she purchased the Citizens jeans
from Macy's, brought them home, took them out of the bag, placed them on the floor, left
the tags on the jeans, and then went to wash them. However, when she went to wash the
jeans, she first noticed that the care label on the inside of the jeans stated that the jeans
were made with imported fabric. It is not clear why Clark would leave the tags on the
jeans when she testified that she was going to wash them and was apparently preparing to
14
do so. Such a detail supports the inference that Clark purchased the jeans to serve as the
lead plaintiff in the mislabeling case, not because she wanted to purchase and own jeans
that were made in the United States.
Also, Clark admitted that she had purchased a lot of jeans and did not regularly
look to see where the jeans were made before she purchased them. She brought 32 pairs
of jeans to her deposition and, apparently, all but three of them had labels indicating they
were made outside the United States. Clark testified that she owned "a lot" of shoes but
could only think of one pair that was made in the United States. Indeed, beyond just in
buying jeans, Clark acknowledged that for the products she buys, she does not look at the
labels before she makes purchases. This deposition testimony further supports Citizens's
claim that Clark did not care where her jeans were made and would not have purchased
the Citizens jeans simply to wear. Rather, she purchased them to serve as a plaintiff in a
mislabeling case for the Del Mar Attorneys, like she had several times previously.
After she was deposed, Clark filed a declaration in support of a motion for leave to
amend complaint to name a new class plaintiff. In the declaration, Clark stated that she
did not wish to serve as a named plaintiff any longer because she was "no longer
comfortable with being 'in the spotlight' in this manner." Citizens had filed a motion to
disqualify the Del Mar Attorneys as counsel of record based on what Citizens had learned
during Clark's deposition, and Clark declared that she believed "that focusing attention on
me in this manner would be a distraction from the merits of this case." A reasonable
inference to be drawn from Clark's withdrawal, coupled with the foundation of her
15
deposition testimony, is that she did not want to serve as the named plaintiff to avoid
further scrutiny as to why she purchased the Citizens jeans.
Considering Clark's familial relationship with Slattery, her history of serving as a
plaintiff on mislabeling cases for the Del Mar Attorneys, her willingness to buy foreign
made products (including jeans and shoes), her admission that she did not look at the
labels before buying products, the fact she left the tags on her jeans, and her withdrawal
as the named plaintiff, a reasonable inference could be drawn that she was a shill
plaintiff. In other words, she purchased the subject jeans not because she was duped by
the "Made in the U.S.A." label, but because she wanted to again assume the role as a
named plaintiff in another mislabeling case for the Del Mar Attorneys. And a reasonable
attorney would not represent a shill plaintiff.
Thus, we are faced with two conflicting narratives, both supported by evidence,
regarding the origin of the federal mislabeling case. According to the Del Mar Attorneys,
Clark was a consumer who would purchase products that were made in the U.S.A. when
it was within her budget. She purchased the Boyfriend-style jeans with a "Made in the
U.S.A. label" believing they were made in the United States. When she discovered they
were actually made with imported fabric, she decided to sue and engaged the Del Mar
Attorneys. In contrast, Citizens argues that Clark has a history of serving as a lead
plaintiff in mislabeling claims filed by the Del Mar Attorneys, and she purchased the
subject jeans not because she was fooled by the label, but because she wanted to again
serve as a plaintiff. Further, based on Clark's relationship with Slattery and her
experience serving as a named plaintiff in previous mislabeling cases, the Del Mar
16
Attorneys were aware that Clark was a shill. There are no undisputed facts on which we
can determine, as a matter of law, whether probable cause existed. Instead, there are
disputed material facts that present factual questions that must be resolved before a legal
determination of probable cause can be made. As a result, Citizens has met its burden for
purposes of opposing an anti-SLAPP motion on this issue as to the Del Mar Attorneys
involving their representation of Clark. (See Oviedo, supra, 212 Cal.App.4th at p. 115;
Sheldon, supra, 47 Cal.3d at pp. 877, 881.)
b. Representation of Hass
Having found that Citizens satisfied its burden of showing a prima facia case that
the Del Mar Attorneys lacked probable cause to file the underlying mislabeling complaint
with Clark as the named plaintiff, we next consider whether Hass had probable cause to
bring suit. Hass was added as the lead plaintiff in the underlying suit after Clark
withdrew. Hass alleged that she purchased a pair of Ingrid-style jeans from a San Diego
Nordstrom store in or around November 2013 and, that those jeans were "marked with a
'Made in the U.S.A.' country of origin designation when the product actually contains
component parts made outside of the United States."
Apparently, Hass entered her contact information on a website called Top Class
Actions to complain about the mislabeling of cypress essential oil as "cedarwood
essential oil." Hass did not recall providing any additional information on the website.
17
Sometime later, Hass was contacted by Camille DeCamp from the Del Mar Law Group.
DeCamp and Hass spoke by phone for "a few minutes."5
During her deposition, Hass testified that she thought the fabric of her jeans "wore
thin faster than [she] would have thought," but she wore the jeans on multiple occasions,
and, in fact, subsequently purchased a second pair of Citizens jeans from May Company
because "they were having a really good clearance sale."6 Regarding the purchase of
Hass's first pair of Citizens jeans, Hass stated that a "sales gal" at Nordstrom brought her
"lots" of brands of jeans, and she chose to purchase the Ingrid-style Citizens jeans. She
paid in cash and no longer possessed a receipt evidencing her purchase. She testified that
she looked at the label on the jeans before she purchased them but did not recall if the
label stated, "Made in the U.S.A." or "Made in the U.S.A. with imported fabrics."
However, Hass did not investigate what materials Citizens used to manufacture the
Ingrid-style of jeans, and she did not know where the materials Citizens used to
manufacture the jeans came from or even where Citizens manufactured the Ingrid-style
5 At his deposition, Donboli recalled that DeCamp might have contacted Hass
through a fee-based website, "Classaction.com." But he explained that the site generally
included prompts, such as, "did you buy Hebrew National kosher hotdogs during this
time period? If you did, there's X, Y, Z person that's conducting an investigation. Please
contact them." There is no evidence in the record that Donboli and Hass talked before
Hass was added as a named plaintiff in the second amended complaint.
6 During her deposition, Hass was asked if she looked at the label before purchasing
the second pair of jeans. She replied, "I always look at the labels." She then clarified that
she looks at the labels of all products: "Yeah. I often will read the label on a can of
beans." There is no indication in the record regarding the style of these second pair of
Citizens' jeans or what the label on them said. Further, there do not appear to be any
allegations in the second amended complaint specifically addressing Hass's second pair
of Citizens jeans. Appellants do not argue that the second pair of jeans plays any role in
the instant probable cause analysis.
18
jeans. When asked later if she still owned the Ingrid-style jeans, she answered, "They're
not jeans anymore. They're cutoffs."
Hass acknowledged that before talking to DeCamp, she was not contemplating
suing Citizens. Yet, after she learned Citizens was "labeling [its] products in a way that
was not true because it wasn't all made in America," she apparently agreed to be a named
plaintiff in the second amended complaint.
There is other evidence in the record bearing on what Hass and the Del Mar
Attorneys knew when the second amended complaint was filed. In opposition to the anti-
SLAPP motions, Gary Freedman, Citizens's general counsel, submitted a declaration.
Among other things, Freedman declared that Ingrid-style jeans were not sold at
Nordstrom in San Diego in or around November 2013. He also stated, "At no time has
Citizens labeled its Ingrid-style jeans with labels that solely read 'Made in the U.S.A.' At
all times, the labels on Citizens'[s] Ingrid-style jeans have expressly stated the jeans were
made with imported fabrics."
With this foundation in mind, we try to ascertain Hass's and the Del Mar
Attorneys' knowledge at the time of filing the second amended complaint. To do so, we
begin with the specific allegations in the second amended complaint regarding the Ingrid-
style jeans purchased by Hass.
The second amended complaint states in part: "In or around November 2013,
Plaintiff Hass purchased the Ingrid brand jeans at a Nordstrom store in San Diego. At the
time of the purchase, the product itself was marked with a 'Made in the U.S.A.' country of
19
origin designation when the product actually contains component parts made outside of
the United States."
Hass also alleged that she "relied upon" the " 'Made in the U.S.A.' representation"
in deciding to purchase the Ingrid-style jeans. She alleged that at the time she made the
subject purchase, "she was supporting U.S. jobs and the U.S. economy."
In the second amended complaint, Hass emphasized the importance of a label
explicitly stating "Made in the U.S.A.": "The 'Made in the U.S.A.' claim is prominently
printed on the apparel products themselves." Indeed, as Hass brought the complaint as a
named plaintiff in a purported class action, the allegations in the complaint underscored
the significance of the "Made in the U.S.A." label: "Plaintiffs intend to seek class wide
relief on behalf of all California purchasers of any [Citizens] apparel product labeled as
'Made in the U.S.A.' that incorporated foreign-made component parts (in violation of
California and/or federal law) and not just the specific brand of jeans purchased by
Plaintiff." Therefore, the second amended complaint hinged on two essential alleged
facts: the subject apparel (in Hass's case, Ingrid-style jeans) contained: (1) a label stating
"Made in the U.S.A." and (2) foreign made component parts in violation of California
and/or federal law. Based on these two primary allegations, the Del Mar Attorneys, with
Hass as the lead plaintiff, aimed to certify a class action, obtain restitution and injunctive
relief, and be awarded attorney fees and costs. Consequently, at the time the second
amended complaint was filed, in order to have probable cause, we would expect
Appellants to know that Hass purchased Ingrid-style jeans with a label that said "Made in
the U.S.A." and components of those jeans came from a foreign country in violation of
20
California and/or federal law. On the record before us, it is unclear whether Appellants
had the requisite knowledge.
DeCamp contacted Hass after Hass provided her contact information on the Top
Class Actions website. They talked for a "few minutes." We do not know the substance
of that conversation as it is covered by the attorney-client privilege. However, it is clear
that Hass told DeCamp that she had purchased Ingrid-style jeans from Nordstrom around
November 2013. We are aware that there is evidence in the record that Nordstrom was
not selling those style of jeans in November 2013. Yet, that evidence does not cause us
concern. In general, a lawyer may rely on information provided by his or her client in
prosecuting an action unless the lawyer discovers that information is false. (Daniels,
supra, 182 Cal.App.4th at p. 223.) Moreover, the evidence that Nordstrom did not sell
the subject jeans during November 2013 does not necessarily call into question whether
Hass actually purchased the jeans. Rather, it could simply indicate that Hass was
mistaken about where she purchased the jeans some two years earlier.7 If this was the
only evidence calling into question the existence of probable cause in filing the second
amended complaint, we would find Citizens did not satisfy its burden. However, there is
other evidence, which raises serious concerns.
Hass admits that she did not do any investigation regarding the origin of the
components of the Ingrid-style jeans. She was not aware of where Citizens manufactured
7 Nonetheless, Citizens could still argue at trial that the fact Nordstrom did not sell
Ingrid-style jeans in November 2013 shows that Hass is lying about ever purchasing
these jeans. We do not consider this argument in our analysis.
21
those jeans. Nevertheless, it is apparent that DeCamp told her that "not all the jeans
[made by Citizens] were from the United States" and that Citizens was "labeling [its]
products in a way that was not true because [they weren't] all made in America." But, we
do not know if DeCamp told Hass that the Ingrid-style jeans were not made in the United
States or contained foreign components. Indeed, there is no indication in the record that
DeCamp or anyone else at the Del Mar Law Group knew if the Ingrid-style jeans were
made with foreign components. At this time, Citizens had answered the first amended
complaint. In its answer, it admitted "that the phrase 'Made in the U.S.A.' appears on the
outer label of some Citizens of Humanity brand, Boyfriend style jeans." Citizens also
admitted "that some component parts of Citizens of Humanity brand, Boyfriend style
jeans were made outside the United States." Thus, it appears the Del Mar Attorneys
knew that some components of Citizens's Boyfriend-style jeans were made from foreign
components. However, there is no indication in the record that the Del Mar Attorneys
had the same knowledge as to Ingrid-style jeans.
Further, it is unclear whether Hass or the Del Mar Attorneys knew the Ingrid-style
jeans Hass purchased contained a "Made in the U.S.A." label. At her deposition, Hass
did not recall whether the label on her jeans said "Made in the U.S.A." or "Made in the
U.S.A. with imported fabrics." There is no indication in the record that the Ingrid-style
22
jeans purchased by Hass were an exhibit at her deposition.8 There is no indication in the
record that the Del Mar Attorneys ever saw the label on Hass's jeans. And Freedman's
declaration indicates that Citizens did not label its Ingrid-style jeans with labels that
solely read "Made in the U.S.A." but, instead, carried labels that indicated the jeans were
made with imported fabrics.
We are aware that Hass submitted a declaration in support of her anti-SLAPP
motion that stated she purchased the Ingrid-style jeans, "which were marked with a 'Made
in the USA' tag." Hass's declaration is not consistent with her deposition testimony and
contradicts Freedman's declaration. At most, Hass's declaration does not establish what
she and/or the Del Mar Attorneys knew when the second amended complaint was filed.
Instead, it indicates a disputed issue of material fact, the existence of which, requires us
to conclude Citizens met its burden with respect to the probable cause element. (See
Oviedo, supra, 212 Cal.App.4th at pp. 114-115; Sheldon, supra, 47 Cal.3d at pp. 877,
881.) This conflict as to the contents of the label on Hass's jeans is especially disquieting
under the unique facts of this case. The Del Mar Attorneys filed a purported class action
based on a pair of jeans alleged to have a "Made in the U.S.A." label. It is unclear that
Hass or the Del Mar Attorneys knew the subject jeans had such a label at the time the
second amended complaint was filed. In fact, there is no indication in the record that the
8 In contrast, Clark brought the Boyfriend-style jeans she purchased to her
deposition. Also, there are pictures of the Clark's jeans in the record, including labels
that say "Made in the U.S.A." There are not any pictures of the Ingrid-style jeans
purchased by Hass in the record.
23
Ingrid-style of jeans allegedly purchased by Hass had the "Made in the U.S.A." label in
any event.9
2. Malice
" 'For purposes of a malicious prosecution claim, malice "is not limited to actual
hostility or ill will toward [appellant]. Rather, malice is present when proceedings are
instituted primarily for an improper purpose." [Citation.]' " (Oviedo, supra, 212
Cal.App.4th at p. 113.) For example, evidence suggesting that " ' " ' "the proceedings are
initiated for the purpose of forcing a settlement which has no relation to the merits of the
claim" ' " ' " (ibid.), and evidence that an attorney failed to conduct an adequate
investigation before filing a lawsuit (Sycamore, supra, 157 Cal.App.4th at p. 1407)
supports a finding of malice.
"[T]he defendant's motivation is a question of fact to be determined by the jury."
(Sheldon, supra, 47 Cal.3d at p. 874.) "Because direct evidence of malice is rarely
available, 'malice is usually proven by circumstantial evidence and inferences drawn from
the evidence.' [Citation.]" (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1543.)
The record contains some evidence that would support a reasonable inference by a
trier of fact that Appellants were pursuing the litigation against Citizens with an improper
purpose. As to Hass, she testified that she believed she purchased the Ingrid-style jeans
from Nordstrom in 2013, but she has no receipt evidencing the purchase. She did not
9 Because we conclude Citizens carried its burden of establishing a prima facia
showing of a lack of probable cause under former section 17533.7, we do not reach
Citizens's argument that Appellants lacked probable cause once section 17533.7 was
amended.
24
recall if the label on the Ingrid-style jeans contained a label that said "Made in the
U.S.A." or "Made in the U.S.A. with imported fabric." She did not investigate where
Citizens made its jeans. She purchased a second pair of Citizens jeans, but there is no
information in the record recording the style of those jeans or what the subject label said.
There is no evidence that she purchased this second pair of jeans based on a "Made in the
U.S.A." label. Instead, she indicated she bought them at a clearance sale. Hass admitted
that she had no plans to sue Citizens until she was contacted by the Del Mar Attorneys
and informed that Citizens mislabels its jeans.
In addition, Citizens offered additional evidence that further calls into question
Hass's motive for being a plaintiff in the underlying action. Citizens provided evidence
that at the time Hass claimed she purchased the Ingrid-style jeans (November 2013),
Nordstrom was not selling those jeans. Also, Citizens offered evidence that Ingrid-style
jeans did not have labels that solely stated: "Made in the U.S.A." A reasonable inference
can be drawn from this evidence that Hass did not subjectively believe that the action was
tenable. (See Sycamore, supra, 157 Cal.App.4th at p. 1407.)
Likewise, we determine there is sufficient evidence of malice as to the Del Mar
Attorneys. As we discuss above, a reasonable inference can be drawn that Clark was a
shill plaintiff, that she purchased the Citizens jeans to serve as a plaintiff in a class action
in order to be paid. Further, based on her role in previous suits filed by the Del Mar
Attorneys, it was reasonable to infer that the Del Mar Attorneys were aware of Clark's
motivations in serving as the lead plaintiff in a purported class action against Citizens (or
at least should have been aware after her deposition).
25
The evidence also shows similar problems in the Del Mar Attorneys'
representation of Hass. They never saw the Ingrid-style jeans that Hass allegedly
purchased. They did not know what the label on those jeans actually said. In fact, based
on the record, it appears the Del Mar Attorneys spent little more than a few minutes
discussing Hass's potential claims against Citizens with Hass before they decided to
represent her and add her as a class plaintiff. In short, the Del Mar Attorneys conducted
little investigation into Hass's claims, even when significant questions were raised
regarding the validity of her claims. Moreover, the attorneys for Citizens represented that
the Del Mar Attorneys pressured them for a quick settlement before a class was certified
or extensive discovery conducted.
Appellants deny all the allegations of malice and point to evidence they believe
undercuts Citizens's claim of malice.10 But none of the evidence put forward by
Appellants defeats the evidence in Citizens's favor as a matter of law. (See Oviedo,
supra, 212 Cal.App.4th at p. 114.) Simply put, there is enough evidence here that
satisfies Citizens's burden with respect to this element. (See Bergman v. Drum (2005)
129 Cal. App. 4th 11, 25 ["While these circumstances do not conclusively establish
malice, they are sufficient to allow the issue to go to the trier of fact for resolution."].)
3. Favorable Termination
10 For example, Appellants emphasize they believed in their claims, the Del Mar
Attorneys investigated Clark's claim before filing suit, the claims were based on
Citizens's violations of the law as the law existed at that time, Clark and Hass testified
they were involved in the suit to vindicate similarly situated consumers, and the Del Mar
Attorneys never paid Hass to be a plaintiff.
26
After the change in the mislabeling statute, Citizens brought a motion to dismiss,
contending Hass did not plead a violation of the new version of section 17533.7, and as
such, her other claims fail because they are contingent on section 17533.7. Citizens also
argued Hass lacked standing to sue for products that she did not purchase. The district
court agreed with Citizens that Hass had not stated a valid claim under the new statute.
Thus, it dismissed Hass's claim under section 17533.7 without prejudice. Additionally,
the court determined that Hass's other claims under the UCL and CLRA failed under
"California's safe harbor doctrine" and dismissed those causes of action without prejudice
Finally, the court concluded that Hass lacked "standing to proceed either for herself or on
behalf of others as to products she did not purchase." As such, the court dismissed
without prejudice all of Hass's claims on this ground as well. Hass opted not to file an
amended complaint, and the district court then dismissed the entire action with prejudice.
In ruling on the Appellants' anti-SLAPP motion, the superior court found that the
district's court's dismissal with prejudice of the entire action was a favorable termination
in the context of a malicious prosecution suit. Appellants claim this finding was
erroneous. We disagree.
"A voluntary dismissal is presumed to be a favorable termination on the merits,
unless otherwise proved to a jury. [Citations.] This is because ' "[a] dismissal for failure
to prosecute . . . does reflect on the merits of the action [and in favor of the
defendant]. . . . The reflection arises from the natural assumption that one does not
simply abandon a meritorious action once instituted." ' [Citation.]" (Sycamore, supra,
157 Cal.App.4th at p. 1400.)
27
Appellants acknowledge the existence of the presumption that a voluntary
dismissal reflects a favorable termination on the merits; however, they insist the superior
court had a duty to "evaluate the underlying reasons for terminating the action." To this
end, they rely on Sycamore, supra, 157 Cal. App. 4th 1385, and point out that the appellate
court there noted that the trial court observed that the malicious prosecution plaintiff
"offered evidence that reasonably suggested that the dismissal occurred because [the
underlying suit plaintiff's] claims lacked merit." (Id. at p. 1400.) Appellants contend that
Citizens offered no analogous evidence below, and the superior court did not properly
consider why Hass did not amend her complaint. We find Appellants' reliance on
Sycamore misplaced.
In Sycamore, after she failed to show up for her deposition, the plaintiff in the
underlying suit instructed her attorneys to dismiss her complaint. Thus, the plaintiff
voluntarily dismissed her claims. Subsequently, in exchange for a waiver of costs, the
plaintiff agreed to have her claims dismissed with prejudice. (Sycamore, supra, 157
Cal.App.4th at p. 1394.) Before the dismissal of plaintiff's claims, the trial court did not
evaluate the merit of those claims. Alternatively stated, the defendant did not bring a
dispositive motion or demur to challenge the plaintiff's causes of action.
Here, contrary to Sycamore, Citizens brought a successful motion to dismiss all of
Hass's claims. The district court ruled on the merits of Hass's three causes of action,
explicitly finding that Hass "failed to adequately allege that [Citizens] violated the
amended and controlling version of § 17533.7" and that her other two claims "fail to state
a plausible claim of relief." The court also found that Hass lacked standing to sue on
28
behalf of a putative class of purchasers of products that she, herself, did not purchase. In
other words, the district court determined it lacked subject matter jurisdiction to hear
claims Hass was bringing based on products she did not purchase. Therefore, the court
dismissed Hass's "claims on behalf of other purchasers for products she did not purchase"
on jurisdictional grounds. However, the court granted Hass leave to amend to address
these deficiencies.
Hass elected not to file an amended complaint and requested the court "dismiss the
entire case for lack of subject matter jurisdiction." The court then dismissed Hass's "case
WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(2)." Hass
maintains her actions coupled with the district court's dismissal underscore that the court
dismissed her actions on purely jurisdictional grounds, and as such, the dismissal did not
address the merits of her claims against Citizens.11 We are not persuaded.
Hass asked the district court to dismiss the entire case for lack of subject matter
jurisdiction. Such a dismissal would be inconsistent with the court's order on Citizens's
motion to dismiss. The court did not find Hass lacked standing to bring claims on her
behalf against Citizens for alleged violations of section 17533.7, the UCL, and the CLRA
based on the jeans she purchased. Rather, the court found, on the merits, that Hass had
not stated valid claims under any of those statutes based on the allegations in the
11 A "lack of standing" is a jurisdictional defect. (Common Cause v. Board of
Supervisors (1989) 49 Cal. 3d 432, 438; McKinny v. Board of Trustees (1982) 31 Cal. 3d
79, 90.) "[A] dismissal for lack of jurisdiction does not involve the merits and cannot
constitute a favorable termination." (Cantu v. Resolution Trust Corp. (1992)
4 Cal. App. 4th 857, 882; Lackner v. LaCroix (1979) 25 Cal. 3d 747, 750.)
29
operative complaint, but gave her leave to amend. The district court concluded Hass did
not have standing to bring claims on behalf of others who had purchased different types
of apparel from Citizens, unless she could plead additional facts to show the same alleged
violations that plagued the Ingrid-style jeans also infected the other apparel sold by
Citizens. Accordingly, the court did not have any grounds to dismiss the entire case for
lack of subject matter jurisdiction as requested by Hass.
Moreover, it is clear from the court's order dismissing the entire case with
prejudice that it did not simply find the case wanting on jurisdictional grounds. Federal
Rules of Civil Procedure, rule 41(a)(2) (Rule 41(a)(2)) provides the following:
"Except as provided in Rule 41(a)(1), an action may be dismissed at
the plaintiff's request only by court order, on terms that the court
considers proper. If a defendant has pleaded a counterclaim before
being served with the plaintiff's motion to dismiss, the action may be
dismissed over the defendant's objection only if the counterclaim can
remain pending for independent adjudication. Unless the order
states otherwise, a dismissal under this paragraph (2) is without
prejudice."
Thus, Rule 41(a)(2) allows a district court to dismiss any action, upon a plaintiff's
request, "on terms that the court considers proper." Additionally, the rule dictates that the
dismissal will be without prejudice, unless the order specifically states otherwise. Here,
the district court dismissed the entire action with prejudice. It was not required to do so.
Obviously, it thought such a dismissal was proper on the record before it. This dismissal
effectively prevents Hass from suing Citizens for any alleged violations of section
17533.7, the UCL, and the CLRA based on her purchase of the Ingrid-style jeans. We
struggle to see how such a dismissal could not be considered on the merits. As such, we
30
agree with the superior court that Citizens made a prima facia showing of favorable
termination of the underlying lawsuit.12
Based on the foregoing, we agree with the superior court that Citizens has satisfied
its minimal burden in opposing the anti-SLAPP motions. Citizens "demonstrated that the
complaint is both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the plaintiff is
credited." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal. 4th 811, 821.) That said,
we offer no opinion regarding the eventual success of Citizens's malicious prosecution
suit on the merits.
DISPOSITION
The order is affirmed. Citizens is entitled to its costs on appeal.
HUFFMAN, Acting P. J.
I CONCUR:
HALLER, J.
12 Because Clark is not a party to this appeal, we need not consider whether Citizens
proved a prima facia case of favorable termination as to her.
31
DATO, J., dissenting.
After a statutory amendment led Coni Hass to drop her mislabeling lawsuit against
Citizens of Humanity (Citizens), Citizens filed this malicious prosecution action against
her, prior named plaintiff Louise Clark, and their counsel John H. Donboli and JL Sean
Slattery at Del Mar Law Group LLP (the Del Mar Attorneys). Defendants filed motions
to strike the malicious prosecution complaint under the anti-SLAPP statute. (See Code
Civ. Proc., § 425.16.) The trial court determined that Citizens established a probability of
success as to each of the essential elements for malicious prosecution and denied the anti-
SLAPP motions. The majority agree.
"One of the elements of an action for malicious prosecution is the absence of
probable cause for bringing the prior action." (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal. 4th 811, 814 (Wilson).) "Only those actions that ' "any reasonable attorney
would agree [are] totally and completely without merit" ' may form the basis for a
malicious prosecution suit." (Id. at p. 817.) In my view, Citizens failed to make a prima
facie showing that the underlying mislabeling lawsuit was instituted or maintained
without probable cause. As such, the anti-SLAPP motions should have been granted.
(See JSJ Limited Partnership v. Mehrban (2012) 205 Cal. App. 4th 1512, 1527 [reversing
for failure of proof as to a single essential element].)
At its core, this case turns on the distinction between a reasonable inference and a
speculative one. My colleagues and I broadly agree on the facts and applicable law. We
part ways in how we view those facts in the context of this anti-SLAPP motion.
Although the disagreement appears on some level mundane—what credence to afford a
1
given set of facts—the import of today's decision implicates the ability of lawyers to
zealously advocate for their clients.
A
Clark bought a pair of "Boyfriend" jeans in 2014 that Citizens admits were labeled
"Made in the U.S.A." Because the jeans were made in this country with imported
components, the label violated former section 17533.7 of the Business and Professions
Code, which was strictly construed.1 (See Colgan v. Leatherman Tool Group, Inc.
(2006) 135 Cal. App. 4th 663, 691−692.) To challenge this practice, the Del Mar
Attorneys filed a putative class action lawsuit against Citizens on behalf of Clark as the
named plaintiff.
I agree with the majority that where there is a dispute about the facts on which an
attorney acted in filing a prior action, it is the jury's role to resolve that dispute before a
court may decide whether the prior action was, as an objective matter, legally tenable or
not. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 877, 881 (Sheldon).)
And as the majority opinion points out, the burden to establish a prima facie showing to
overcome an anti-SLAPP motion is "not high"; claims with "minimal merit" proceed.
(Greene v. Bank of America (2013) 216 Cal. App. 4th 454, 458; Sweetwater Union High
School Dist. v. Gilbane Building Co. (2019) 6 Cal. 5th 931, 940.) Where I part ways with
my colleagues is in their conclusion that we are faced with "two conflicting narratives,
1 Further statutory references are to the Business and Professions Code unless
otherwise specified.
2
both supported by evidence, regarding the origin of the federal mislabeling case" filed on
Clark's behalf. (Maj. opn., ante, at p. 16.)
Sheldon clarified the lack of probable cause element for malicious prosecution.
Explaining that the standard is objective in nature, the court rejected a formulation that
considered the attorney's subjective belief in the tenability of a client's claim. "[B]ecause
the issue of the attorney's subjective belief or nonbelief in legal tenability would rarely be
susceptible of clear proof and, when controverted, would always pose a factual question,"
such a standard "would in many cases effectively leave the ultimate resolution of the
probable cause element to the jury, rather than to the court." (Sheldon, supra, 47 Cal.3d
at p. 879.)
Instead, the Supreme Court adopted an objective standard. When "the facts
known by the attorney are not in dispute, the probable cause issue is properly determined
by the trial court under an objective standard; it does not include a determination whether
the attorney subjectively believed that the prior claim was legally tenable." (Sheldon,
supra, 47 Cal.3d at p. 881.) By contrast, when there is a dispute as to the existence of
certain facts relied upon to show probable cause, "the jury must determine what facts the
defendant knew before the trial court can determine the legal question whether such facts
constituted probable cause to institute the challenged proceeding." (Ibid.) Recognizing
that a malicious prosecution action is designed to protect the fundamental interest in
freedom from unjustifiable and unreasonable litigation, "it is not unfair to bar a plaintiff's
suit for damages even if the plaintiff can show that its adversary's law firm did not realize
how tenable the prior claim actually was, since the plaintiff could properly have been put
3
to the very same burden of defending an identical claim if its adversary had simply
consulted a different, more legally astute, attorney. This is a classic case of 'no harm, no
foul.' " (Id. at p. 882.)
I do not believe this is a situation where the predicate facts conflict. "Although it
is sometimes necessary to submit preliminary factual questions to the jury when there is a
dispute as to facts which the defendant knew when he instituted the prior action," here, as
in Sheldon, "there was no dispute as to facts of which [the Del Mar Law Group] was
aware when it brought the prior action on [Clark's] behalf." (Sheldon, supra, 47 Cal.3d at
p. 884.) The facts credited by the majority—Clark's family ties, history of serving as a
plaintiff, failure to cut the tags off her jeans, and willingness to buy foreign-made
goods—are not in dispute, even if the inferences they allegedly support are. (Compare
Olivares v. Pineda (2019) 40 Cal. App. 5th 343, 355−356 [factual dispute remained as to
what facts attorneys knew when they prosecuted underlying unlawful detainer suit];
Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 223−224 [factual dispute remained
where counsel offered no documents, declarations, or other evidence to support their
clients' allegations in the underlying complaint] (Daniels).) The question here remains an
objective one for the court—whether any reasonable attorney knowing the undisputed
facts would find Clark's lawsuit tenable.
I also part ways with the majority's assessment of Citizens's evidence. The anti-
SLAPP statute creates a "summary-judgment-like procedure" at an early stage of the
litigation to weed out meritless actions arising from protected activity. (Baral v. Schnitt
(2016) 1 Cal. 5th 376, 384.) To overcome an anti-SLAPP motion, Citizens " 'must
4
demonstrate that the complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence [it]
submitted . . . is credited.' " (Wilson, supra, 28 Cal.4th at p. 821, italics added.) In other
words, the motion should be denied only if Citizens can substantiate the elements of its
malicious prosecution action with evidence that, if believed, would justify a favorable
verdict. (Id. at pp. 821, 824; Baral, at pp. 384−385.)
" 'An assessment of the probability of prevailing on the claim looks to trial, and
the evidence that will be presented at that time.' " (Tuchscher Development Enterprises,
Inc. v. San Diego Unified Port Dist. (2003) 106 Cal. App. 4th 1219, 1236.) The question
is "whether there is admissible evidence showing facts that would, if proved at trial,
support a judgment in its favor on those claims." (Id. at p. 1239.) Conversely, an anti-
SLAPP motion must be granted if " 'the court concludes that the allegations made or the
evidence adduced in support of the claim, even if credited, are insufficient as a matter of
law to support a judgment[.]' " (Id. at p. 1238.)
Crediting Citizens's proffer, the majority suggest there is "significant evidence to
support the reasonable inference that Clark was a shill plaintiff, and the Del Mar
Attorneys were aware of this fact." (Maj. opn., ante, at p. 14.) What evidence
specifically? One of the Del Mar Attorneys (but not the one in charge of the case) is
Clark's brother-in-law, and Clark has been a named plaintiff in several of the firm's prior
mislabeling lawsuits. Clark testified at her deposition that she left the tags on the jeans
after coming home, as she prepared to wash them. She also testified that she purchased a
lot of jeans but, under normal circumstances, rarely looked to see where they were made.
5
And after Clark was deposed, she sought to withdraw because she was no longer
comfortable being in the spotlight. We are told that in their totality, these facts support a
reasonable inference that Clark was a "shill" plaintiff, whose lawsuit was entirely
contrived.
But can such facts, even in their totality, truly suffice to support a judgment at
trial? Although an inference can serve as substantial evidence for a factual finding on
appeal, " ' "the inference must be a reasonable conclusion from the evidence and cannot
be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork." ' "
(Shandralina G. v. Homonchuk (2007) 147 Cal. App. 4th 395, 411; see Evid. Code, § 600,
subd. (b).) In the SLAPP context specifically, courts have confirmed that although we do
not "weigh the credibility or comparative probative strength of competing evidence," we
disregard evidence that is "argumentative, speculative, impermissible opinion, hearsay, or
conclusory." (Gilbert v. Sykes (2007) 147 Cal. App. 4th 13, 26−27.)
Clark's participation in other mislabeling suits does not support a nonspeculative
finding that she was a "shill," as opposed to someone who relied on the labels of the
products she purchased. Many consumers leave tags on newly purchased clothing until
they wash or wear them—the fact that the tags were still on the jeans as Clark prepared
the wash does not support a nonspeculative finding that her purchase was a ruse. For
budgetary reasons Clark bought many foreign-made goods; this hardly means she did not
6
place a premium on jeans specifically labeled "Made-in-the-USA."2 And Clark's
decision to withdraw as named plaintiff after facing accusations about her family ties
does not permit us to conclude why she withdrew, and it is certainly not enough to allow
a jury to find she withdrew because her disingenuous motives were about to be exposed.3
These observations are not an impermissible weighing of the evidence. Courts
always perform an essential gatekeeping role in deciding how much is enough evidence
to allow a jury to reach a reasonable conclusion. Here, respectfully, the inferences relied
on by the majority opinion are too inconclusive and speculative to carry Citizens' burden.
Although Citizens may harbor a suspicion based on these facts that Clark was a shill
whose lawsuit was contrived, it has in my view failed to produce sufficient evidence as
would support such a finding at trial.4
2 I may buy most of my clothing without looking at a tag to see where the item was
made. But if I splurge on an expensive suit or pair of shoes labeled "Made in Italy," it
would hardly be fair to say I didn't care about that label.
3 By way of comparison, in a trade libel action by a clothing company against a
nonprofit and its employee, the company demonstrated minimal merit to defeat an anti-
SLAPP motion as to the distribution of allegedly defamatory flyers. A videotape showed
the employee participating in the protest with a stack of flyers and also depicted flyers in
the hands of passerby. Although there were no images of the employee actually handing
out any leaflets, the evidence supported a reasonable inference that he distributed at least
some of them. (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles
(2004) 117 Cal. App. 4th 1138, 1149−1150.) Recognizing that an inference may not rest
on conjecture (id. at p. 1149), no such inference can reasonably be drawn here.
4 I focus here on the evidence credited by the majority. However, I would draw the
same conclusion as to other evidence relied on by Citizens, including Clark's response to
the "paper airplane" line of questioning at her deposition and the fact that Clark's jeans
bore an inner care label stating, "Made in the U.S.A. with imported fabrics."
7
B
After Clark withdrew as named plaintiff, Hass took her place. The majority
conclude that Citizens established a likelihood that no reasonable attorney would have
believed Hass's mislabeling claims were tenable. In other words, the evidence was
sufficient to support a finding that both Haas and the Del Mar Attorneys knew Haas's
claims were contrived. In reaching this conclusion, the majority emphasize the lack of
evidence that Hass and the Del Mar Attorneys knew that (1) Hass purchased Ingrid-style
jeans with a "Made-in-USA" label, or that (2) components of these jeans were imported.5
Once again, I am unconvinced.
There is indeed uncertainty as to the label on the Ingrid jeans. Hass did not recall
whether the label said, "Made in the U.S.A." or "Made in the U.S.A. with imported
fabrics." There is no indication the Del Mar Attorneys inspected her jeans. And Gary
Freedman, Citizens's general counsel, declared that the Ingrid jeans were never "solely"
labeled "Made in the U.S.A."
But what inferences can reasonably be drawn from these facts? Hass alleged she
purchased Ingrid-style jeans bearing a label indicating they were U.S.-made, and a lawyer
may generally rely on information provided by a client. (Daniels, supra, 182
Cal.App.4th at p. 223.) The extent of attorney investigation is irrelevant to the question
of probable cause. (Sheldon, supra, 47 Cal.3d at pp. 882‒883.) Hass never alleged her
5 As with Clark, I focus on the evidence credited by the majority. But I would
likewise not find a prima facie showing of probable cause based on inconsistencies as to
when and where Hass bought her jeans or the circumstances in which she became
involved in the underlying action.
8
jeans were "solely" labeled "Made in the U.S.A." And I submit that Freedman's carefully
worded declaration cannot be read to suggest the Ingrid jeans bore only a qualified label
stating, "Made in the U.S.A. with imported fabrics."6 In short, Citizens did not produce
evidence that would support a reasonable inference at trial that the Ingrid jeans were not
labeled as "Made in the U.S.A." to serve as the basis for Hass's claims.
As the majority point out, we do not know whether the Ingrid jeans contained
foreign components. But Hass was stepping in as a new named plaintiff in an action that
from the start broadly challenged how Citizens labeled its apparel. By the time Hass
became involved, Citizens had admitted mislabeling a different style of jeans. Its refusal
to allow discovery beyond the Boyfriend jeans that Clark bought precluded Hass and her
counsel from knowing where components of other jeans were sourced. Probable cause is
lacking where an action is pursued without evidence sufficient to uphold a favorable
judgment or without information supporting an inference that such evidence can be
obtained for trial. (Daniels, supra, 182 Cal.App.4th at p. 222.) The fact that other
6 Freedman stated in his declaration: "At no time has Citizens labeled its Ingrid-
style jeans with labels that solely read 'Made in the U.S.A.' At all relevant times, the
labels on Citizens's Ingrid-style jeans have expressly stated that the jeans were made with
imported fabrics." Does this mean Citizens never used any "Made in the U.S.A." label on
Ingrid jeans, or only that it never used such a label without some other label that
disclosed the use of imported components? It would have been a simple matter for
Freedman to state, "In contrast to the labels on 'Boyfriend'-style jeans, the only labels
ever used on 'Ingrid'-style jeans read: 'Made in the U.S.A. with imported fabrics.' " He
did not do so. Moreover, the operative complaint alleged that Citizens used imported
components beyond the fabric, including "thread, buttons, rivets, and/or certain
subcomponents of the zipper assembly."
9
apparel was mislabeled could suggest to a reasonable attorney that the Ingrid jeans were
too.
The theory of the underlying case was not all that complex. Both Clark and Hass
alleged they purchased Citizens jeans that were labeled "Made-in-U.S.A." To the extent
the jeans were made with any foreign components, that violated former section 17533.7
and gave rise to various causes of action. The question on an anti-SLAPP motion is
whether Citizens proffered evidence that, if proven, would support a judgment in its
favor. On the question of probable cause, that requires a finding that no reasonable
attorney would have believed initiating an action on Clark's or Hass's behalf was tenable.
Citizens simply does not meet its burden.7
7 Given its ruling, the majority do not consider the effect of the statutory
amendment. Citizens filed its second amended complaint naming Hass as lead plaintiff
five months after amended section 17533.7 took effect. (See Stats. 2015, ch. 238, § 1.)
Invoking the rule of abatement, Citizens argues that no reasonable attorney would have
continued prosecution beyond that point. (See Younger v. Superior Court (1978) 21
Cal. 3d 102, 109; Governing Board v. Mann (1977) 18 Cal. 3d 819, 829; see also Brenton
v. Metabolife Internat., Inc. (2004) 116 Cal. App. 4th 679, 690.) But this rule has
exceptions. (See 3 Witkin, Cal. Procedure (5th ed. 2008), Actions, § 20, p. 84 ["if a
statute does not wholly repeal but merely revises existing law, so that the statutory cause
of action in modified form remains, no abatement occurs"], citing Krause v. Rarity
(1930) 210 Cal. 644, 654−655.)
California courts have yet to speak on the retroactivity question. And the fact that
attorneys for plaintiffs in three other cases challenged retroactivity strongly supports the
inference that reasonable attorneys believed the mislabeling claim remained objectively
tenable despite amendment of section 17533.7. (See Rossetti v. Stearn's Products, Inc.
(C.D. Cal. June 6, 2016, No. CV 16-1875-GW(Ssx)) 2016 U.S.Dist. Lexis 74163,
pp. *12‒*13; Fitzpatrick v. Tyson Foods, Inc. (E.D. Cal. Sept. 27, 2016, No. 2:16-cv-
0058-JAM-EFB) 2016 U.S.Dist. Lexis 132797, pp. *9‒*10, affd. (9th Cir. 2018) 714
Fed. Appx. 797; Alaei v. Rockstar, Inc. et al. (S.D. Cal. 2016) 224 F. Supp. 3d 992,
998−999.)
10
C
It is often said that malicious prosecution is a disfavored tort, whose elements are
"carefully circumscribed." (Sheldon, supra, 47 Cal.3d at p. 872.) Thus "probable cause
to bring an action does not depend on it being meritorious, as such, but upon it being
arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable
attorney would have thought the claim tenable." (Wilson, supra, 28 Cal.4th at p. 824.)
This standard derives from the " 'reasonable attorney' " standard for frivolous appeals, not
a " 'prudent attorney' " standard. (Sheldon, at p. 885.) "Plaintiffs and their attorneys are
not required, on penalty of tort liability, to attempt to predict how a trier of fact will
weigh the competing evidence, or to abandon their claim if they think it likely the
evidence will ultimately weigh against them." (Wilson, at p. 822.) " 'Counsel and their
clients have a right to present issues that are arguably correct, even if it is extremely
unlikely that they will win.' " (Sheldon, at p. 885.)
Defendants regularly complain of being forced to incur substantial expense to
defend against meritless lawsuits. In most cases, we understandably balance the costs
and benefits in favor of permitting plaintiffs their day in court. The costs of defense are
the costs we accept for the ability to freely seek redress of grievances.
But the context of this case is very different, because permitting this malicious
prosecution plaintiff its day in court will, I fear, do much to chill the ability of other
plaintiffs in all types of cases to seek fair redress of their grievances. Even more
troubling, in my view, is the chilling effect this may have on lawyers asked to represent
them. Will attorneys now infer they would be advised not to represent family members
11
on something less than open-and-shut cases? Or that a law firm should cease to represent
a client after filing a few similar lawsuits on her behalf? If a client becomes confused
and performs poorly at a deposition, will a reasonable attorney feel compelled to jump
ship? And must an attorney direct a heightened level of scrutiny to information provided
by a client before filing suit?
I hope these are not the inferences that are drawn by most lawyers. No doubt they
are not the inferences intended by the majority. But if we learn nothing else from this
case, we should certainly understand that the strength and reasonableness of inferences
often lies in the eye of the beholder.
To be sure, today's holding simply permits a malicious prosecution action to move
forward, without in any way suggesting Citizens will ultimately prevail. But this is
precisely the sort of harm the anti-SLAPP statute was designed to target and precisely the
result the procedure is designed to forestall. Based on Citizens's conduct, this case was
"arguably meritorious" when it was filed. (See Wilson, supra, 28 Cal.4th at p. 822.)
Although plaintiffs ultimately did not succeed when the law changed, I believe the anti-
SLAPP procedure should have enabled them and their counsel to defeat this speculative
malicious prosecution action at an early stage of litigation.
DATO, J.
12
Filed 3/16/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITIZENS OF HUMANITY, LLC, D074790
Plaintiff and Respondent, (Super. Ct. No. 37-2018-00006337-
CU-NP-CTL)
v.
CONI HASS et al., ORDER CERTIFYING OPINION
FOR PUBLICATION
Defendants and Appellants.
THE COURT:
The opinion in this case filed February 21, 2020, was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules
of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
1
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
HUFFMAN, Acting P. J.
Copies to: All parties
2
|
01-03-2023
|
03-16-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/1029271/
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL BROWN, a/k/a Rasheem Russell, a/k/a Hakeem Brown,
a/k/a Rasheem Jamal Russell, a/k/a Michael Haseem Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:01-cr-00023-CMH-1)
Submitted: June 18, 2009 Decided: June 22, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Brown, Appellant Pro Se. Kathleen Marie Kahoe,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Brown appeals the district court’s order
denying his motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006). We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons
stated by the district court. United States v. Brown, No. 1:01-
cr-00023-CMH-1 (E.D. Va. filed July 14, 2008 & entered July 16,
2008). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
2
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IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: APPOINTMENT TO THE : No. 681
:
CONTINUING LEGAL EDUCATION : SUPREME COURT RULES DOCKET
:
BOARD :
ORDER
PER CURIAM:
AND NOW, this 23rd day of November, 2015, Daniel J. Rovner, Esquire,
Chester County, is hereby appointed as a member of the Continuing Legal Education
Board for a term of three years commencing December 31, 2015.
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390 So. 2d 1114 (1980)
Ex parte Tony Glen ALLRED.
(Re: Tony Glen Allred v. State of Alabama).
79-845.
Supreme Court of Alabama.
December 2, 1980.
ADAMS, Justice.
WRIT DENIED-NO OPINION.
TORBERT, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur.
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752 N.W.2d 32 (2008)
STATE
v.
MURPHY.
No. 06-1936.
Court of Appeals of Iowa.
February 27, 2008.
Decision without published opinion. Affirmed.
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TRACI LUPE, )
)
Appellant, )
)
v. ) No. SD34046
)
CHRISTIAN COUNTY, MISSOURI, and ) FILED: December 16, 2015
DIVISION OF EMPLOYMENT SECURITY, )
)
Respondents. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
REMANDED WITH DIRECTIONS
(Before Scott, P.J., Bates, J., and Sheffield, C.J.)
PER CURIAM. Traci Lupe (“Claimant”) quit her position as a deputy sheriff.
The Labor and Industrial Relations Commission (“Commission”) denied her claim
for unemployment benefits, finding that she voluntarily left work without good cause
attributable to the work or her employer. RSMo § 288.050.1(1). She appeals,
asserting that the Commission misapplied the law as to whether she quit for good
cause.
We cannot intelligently review the Commission’s application of law to the
facts because it failed to make a critical finding of fact. As we cannot discern which
evidence the Commission believed and which it rejected, we must remand the case.
Edmonds Dental Co., v. Keener, 403 S.W.3d 87, 91 (Mo.App. 2013).
Background 1
Claimant worked three years for Christian County (“Employer”). She started
working in the jail and eventually was assigned to be a courtroom bailiff. Claimant
complained about her judge’s conduct, which she considered to be demeaning and
harassing, and that he threatened to have her reassigned to jail duties if she defied
him. After a meeting with Claimant, Employer reassigned her to courthouse door
security to distance her from that judge. Employer denied Claimant’s request for
transfer to another bailiff position.
A few months later, Claimant filed formal EEOC and judicial-ethics
complaints regarding the judge’s conduct. Soon thereafter, Employer reassigned
Claimant to jail transportation duty, stating that it needed a qualified female officer
to transfer female inmates. Although her work hours, pay rate, and accrued benefits
did not change, Claimant deemed this a retaliatory demotion to a less desirable
position and quit work a week later.
Claimant applied for unemployment benefits, but was denied because she had
quit voluntarily. An appeals tribunal affirmed the denial, finding credible Employer’s
1We summarize the background of this case based on the entire record, deferring to
the Commission’s determinations on issues resolving matters of witness credibility
and conflicting evidence. Darr v. Roberts Mktg. Group, LLC, 428 S.W.3d 717,
720 (Mo.App. 2014).
2
witness who testified that Claimant’s reassignment to jail transportation was not
retaliatory.
Claimant sought review by the Commission, which affirmed by a 2-1 vote,
again reciting Employer’s non-retaliatory reason for the transfer. However, the
Commission stated that it also found Claimant credible and “there is credible
evidence that indicates the transfer was, at least in part, in response to her
complaint. Under these circumstances it was not unreasonable for claimant to view
the transfer as retaliatory.” That said, the Commission found the transfer was not a
hardship for Claimant; she suffered no pay change or significant change in hours;
and she got along “ok” with her immediate co-workers. In concluding that Claimant
voluntarily left work without good cause attributable to the work or her employer,
the Commission wrote that “Claimant’s perception of an injustice, no matter how
reasonable, does not by itself render her work separation involuntary.”
Analysis
Claimant contends that the Commission misapplied the law in determining
that she lacked good cause for leaving work. We review de novo this legal question
upon which Claimant bore the burden of proof. Martin v. Div of Employment
Sec., 460 S.W.3d 414, 417 (Mo.App. 2015). Good cause is “an objective measure
based on what an average person would do acting reasonably and in good faith,” and
is “limited to instances where the unemployment is caused by external pressures so
compelling that a reasonably prudent person would be justified in giving up
employment.” Id. at 417-18.
3
The central issue in this case is whether Claimant’s last transfer was (1)
retaliation or discriminatory treatment 2 by Employer; or (2) an unwelcome but non-
discriminatory change of duties without a substantial change in pay or working
conditions. The latter likely would not support a good cause finding (see Darr, 428
S.W.3d at 728), but the former might do so.
“Absent discriminatory or unfair or arbitrary treatment, mere
dissatisfaction with working conditions does not constitute good cause for quitting
employment unless the dissatisfaction is based upon a substantial change in wages
or working conditions from those in force at the time the claimant’s employment
commenced.” Id. at 725 (our emphasis). Many cases so hold, 3 suggesting that
unlawful retaliation might constitute good cause for Claimant to quit despite the
Commission’s finding that her working conditions had not materially changed.
As to whether the transfer was retaliatory, the Commission’s findings are
ambiguous. The Commission declared the evidence credible in both directions, but
made no finding on the actual fact issue. Although explicit credibility determinations
often aid our review, “[c]redible, believable, even uncontradicted proof of
2 In this context, we see retaliation as tantamount to discrimination. Cf. Missouri
Pub. Entity Risk Mgmt. Fund v. Inv’rs Ins. Co., 338 F. Supp. 2d 1046, 1051-
52 (W.D. Mo. 2004) aff’d, 451 F.3d 925 (8th Cir. 2006) (insurance coverage for
employment discrimination claims).
3 See also Bordon v. Div. of Employment Sec., 199 S.W.3d 206, 210 (Mo.App.
2006); Rodriguez v. Osco Drug, 166 S.W.3d 138, 142 n.3 (Mo.App. 2005);
Cooper v. Hy-Vee, Inc., 31 S.W.3d 497, 504 (Mo.App. 2000); VanDrie v.
Performance Contracting and Div. of Employment Sec., 992 S.W.2d 369,
373-74 (Mo.App. 1999); Sokol v. Labor & Indus. Relations Comm’n, 946
S.W.2d 20, 26-27 (Mo.App. 1997); Mitchell v. Div. of Employment Sec., 922
S.W.2d 425, 428 (Mo.App. 1996); Charles v. Missouri Div. of Employment
Sec., 750 S.W.2d 658, 661 (Mo.App. 1988).
4
evidentiary facts may not prove a contested issue of ultimate fact to the fact-finder’s
satisfaction.” Black River Electric Cooperative v. People’s Community
State Bank, 466 S.W.3d 638, 640 (Mo.App. 2015).
Having carefully read and re-read the Commission’s decision, we simply
cannot tell if the Commission was persuaded that Claimant’s transfer was, in fact,
retaliatory. Absent a discernable finding of fact on this key issue, we cannot
determine whether the Commission erred in applying the law.
A Commission decision must leave no room for doubt about which evidence
was believed and which was rejected, provide for intelligent review of the decision,
and reveal a reasonable basis for the decision. Edmonds Dental, 403 S.W.3d at
90. Failure to make adequate findings of fact requires us to remand the case. Id. at
91.
Conclusion
We remand this case to the Commission with directions to make further
findings of fact as indicated herein “based on the evidence already presented or,
alternatively, to hear additional evidence if the Commission deems appropriate and
then enter its decision.” Id.
5
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LAMVU§RARY
NO. 27868
IN THE SUPREME COURT OF THE STATE OF HAWAL; §§
l ,, ga
DA\/'ID c. FARMER, on behalf of §
the BaHkrUptCy ESTATE OF DANIEL T. KEOMALM ‘B
Petitioner/Plaintiff/Counterclaim Defendant-Appel nt,§;
§§
vS.
h 90
HICKAM FEDERAL CREDIT UNION, Respondent/Defendant/Countercl
Plaintiff/Third~Party Plaintiff-Appellee; and
GERARD AUYONG and STEPHEN Y.H. KWOCK,
-Respondents/Defendant3-AppelleeS,
VS.
CUTTER PONTlAC, BUlCK, GMC OF WAIPAHU, lNC. and
CJW MOTORS, INC., Third-Party DefendantS.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 04-l-O732)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J., for the courtH
Petitioner/Plaintiff/Counterclaim Defendant-Appellant
David C. Farmer,
on behalf of the Bankruptcy EState of Daniel T.
Keomalu'S application for writ of certiorari,
filed on May l9,
20lO, is hereby rejected.
DATED: Honolulu, HawaiUq Jun@ 29, 2010_
FOR THE COURT:
Who\£'. Au.l@m %\¢
ASSociate JuStice
R.
Steven GeShell,
for petitioner/plaintiff/
counterclaim defendant-
appellant on the application
1 Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and
Circuit Judge WilSon, in place of Recktenwald, J., recused.
aimo
QH"“;§
Shelton G.W. Jim On
for respondent/defendant-
appellee Stephen Y.H.
1 Kwock on the response
Jeffrey S. Harris
for respondent/defendant/
counterclaim plaintiff/
third-party plaintiff~appellee
Hickam Federal Credit Union
and respondent/defendant~appellee
Gerard Auyong on the response
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05-25-2013
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847 P.2d 66 (1993)
William and Sheryl PAPPERT, Appellants,
v.
Virginia SARGENT, individually and as Guardian Ad Litem for Harold Sargent, Appellee.
No. S-4021.
Supreme Court of Alaska.
February 12, 1993.
Rehearing Denied March 2, 1993.
Susan S. McLean, Gray, McLean, Cole & Razo, Kodiak, for appellants.
Joel H. Bolger, Walter W. Mason, Jamin, Ebell, Bolger & Gentry, Kodiak, for appellee.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
*67 OPINION
MOORE, Justice.
William and Sheryl Pappert appeal the trial court's decision to rescind their 1981 transaction with Harold Sargent, in which the Papperts traded a mobile home for Mr. Sargent's property on Ugak Bay. The trial court found that Mr. Sargent was incompetent when he traded the property and that the Papperts knew or should have known of his condition. The trial court therefore voided the transaction and denied the Papperts restitution. Although the record supports the trial court's finding that Mr. Sargent was incompetent, it does not support the court's finding that the Papperts were aware of his condition. We therefore remand this case to the trial court to determine the proper restitutionary remedy.
I. FACTS AND PROCEEDINGS
Harold Sargent and his wife Virginia moved to Kodiak in 1965 and started operating the Kalsin Bay Inn in the early 1970s. In 1978, the Sargents took over a nearby cattle ranching operation. William Pappert and Mr. Sargent were friends who met frequently during the 1970s at the Kalsin Bay Inn. In late 1978, Mr. Pappert purchased a 1965 Kozy mobile home for $8,000. Mr. Pappert moved the trailer on Mr. Sargent's land near the American River in the spring of 1979. The Papperts lived in the trailer for eighteen months, adding a mud room and making other improvements worth approximately $3,000.
In the spring of 1981, the Papperts reached an oral agreement with Mr. Sargent in which they would trade the mobile home for his property at Ugak Bay. In August 1981, Mr. Sargent executed a deed to the Ugak Bay property, transferring all of his interest to the Papperts.
Mrs. Sargent first learned of the transaction with the Papperts in early 1982 while reviewing business records for tax purposes.[1] After she consulted with Dr. Nemiroff and her lawyer, her lawyer notified the Papperts that Mr. Sargent had not been competent when he executed the deed. The Papperts recorded their deed the next day. In March 1983 Mrs. Sargent filed a complaint for rescission of the transaction. Although the parties agreed that Mr. Sargent's condition should be evaluated, the court refused to approve the evaluation because Mrs. Sargent had failed to obtain legal status as Mr. Sargent's guardian. Mrs. Sargent took no further action for over four years. Mrs. Sargent finally reinitiated the action in December 1988 in her capacity as representative of Mr. Sargent's estate.
At trial, Mrs. Sargent entered the deposition of Dr. Nemiroff to establish that Mr. Sargent was incompetent in August 1981. Dr. Nemiroff treated Mr. Sargent from approximately September 1980 through the time period relevant to this case. In the fall of 1980, Dr. Nemiroff diagnosed Mr. Sargent as suffering from chronic obstructive pulmonary disease, including acute and chronic bronchitis, emphysema, and asthma. According to Dr. Nemiroff these conditions generally lead to lowered levels of oxygen and elevated carbon dioxide levels in the blood, often resulting in headaches, confusion, and lack of normal judgment. In June 1981, Dr. Nemiroff diagnosed Mr. Sargent as having suffered from a transient ischemic attack ("TIA"). He described a TIA as a condition in which the brain is not getting enough blood, and he thought that there was potential for a stroke. Mr. Sargent's condition continued to deteriorate after the TIAs began, and Dr. Nemiroff estimated that Mr. Sargent had over one hundred TIAs between July and December of 1981. Dr. Nemiroff noted that the effects of a TIA may include clouded judgment and affected motor ability such as temporary paralysis of a limb. He distinguished a TIA from a stroke by observing that the paralysis of an arm or a leg resulting from a TIA would go away in a few minutes to a few hours, but paralysis resulting from a stroke would be more permanent. Dr. Nemiroff offered his opinion that, in the summer of 1981, Mr. Sargent *68 would have had trouble making judgments at every moment of the day about transactions such as real estate contracts.
Mrs. Sargent, Dorothy Hopper and Thomas Truitt testified to the physical and mental manifestations of Mr. Sargent's condition. Mrs. Sargent testified that Mr. Sargent suffered TIA attacks almost on a daily basis during the summer of 1981 and that these attacks would last one or two minutes, leaving him exhausted. She also testified that her husband could not remember things and that he would leave words out of sentences.
Ms. Hopper worked with Mr. Sargent on a daily basis in the kitchen of the Kalsin Bay Inn. She testified that Mr. Sargent became increasingly forgetful over the summer, that he was unable to control his body or communicate during his attacks and that he sometimes could not perform the simplest routine tasks. She emphasized that she and Mrs. Sargent had to keep a very close eye on him. Ms. Hopper further testified that these changes in Mr. Sargent's behavior would be noticed by someone who knew him well and worked closely with him.
Mr. Truitt worked as a ranch hand during the summer of 1981 and also saw Mr. Sargent on a daily basis. He testified that he witnessed some of Mr. Sargent's attacks and that he believed at the time that Mr. Sargent was having trouble breathing. He also testified that Mr. Sargent was "doing things different" that summer, but that, at the time, he "didn't take any meaning to it at all, it was just Sarge."
The Papperts testified that they saw Mr. Sargent several times a week at the Kalsin Bay Inn and noticed some of his physical problems, but that neither of them thought that these problems reflected any mental incapacity.
At the close of evidence, Superior Court Judge J. Justin Ripley found that Mrs. Sargent had established, by a preponderance of the evidence, that Mr. Sargent was incompetent when he signed the deed in August 1981. The court further found that the manifestations of Mr. Sargent's incapacity were sufficiently obvious that the Papperts knew or should have known that Mr. Sargent was unable to act in a reasonable manner in relation to the transaction. Judge Ripley voided the transaction and concluded that the Papperts were not entitled to restitution. The court subsequently awarded Mrs. Sargent $6,000 in attorney's fees. This figure represented 50% of Mrs. Sargent's actual fees augmented by an additional 15% due to the court's finding that the Papperts "knew or should have known of Sarge's condition, and the implications to be drawn therefrom." This appeal followed.
II. DISCUSSION
A: MR. SARGENT'S INCOMPETENCY
The trial court found that Mr. Sargent was unable to understand the nature and consequences of the August 1981 transaction. The Papperts contend that the trial court's finding of incompetency was clearly erroneous.[2] We disagree.
Dr. Nemiroff testified that Mr. Sargent would have had difficulty making judgments about real estate transactions during the summer of 1981.[3] Testimony by Mr. Sargent's employees and his wife indicated that Mr. Sargent was often forgetful and confused during this time. Although the evidence of incompetency in August 1981 is not overwhelming, deference to the findings of the trial court is particularly appropriate when, as in this case, "the bulk of the evidence at trial is oral testimony." *69 Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979).
B: THE PAPPERTS' KNOWLEDGE OF MR. SARGENT'S INCOMPETENCY
The trial court also found that "[a]nyone with an eye to see it would have known that Mr. Sargent ... was not uniformly right in his thinking, recall and other mental functioning" and ruled that the Papperts knew or should have known that Mr. Sargent was incompetent. After reviewing the record, we conclude that this finding is clearly erroneous.
Dr. Nemiroff's expert opinion concerning Mr. Sargent's condition was based on his extensive experience with the incapacitating effects of lung disease and oxygen deprivation and we do not believe that lay-persons can reasonably be charged with such knowledge. We also conclude that the testimony of Mrs. Sargent and her employees, taken in the light most favorable to Mrs. Sargent, fails to establish that a person having dealings with Mr. Sargent would be plainly aware of his lack of competency to contract. The record reveals that those who saw Mr. Sargent on a daily basis noticed that he was increasingly forgetful and confused but fails to establish that these changes would be noticed by someone who did not work closely with him. Nor does the testimony establish that his deteriorating mental condition was generally known. Cf. Citizen's Nat'l Bank v. Gardner, 147 Iowa 695, 125 N.W. 161 (1910) (knowledge of person's excessive drug use together with his general reputation of incompetency held sufficient to charge another with knowledge of his incompetency); Sprinkle v. Wellborn, 140 N.C. 163, 52 S.E. 666 (1905) (when person contracts with obviously intoxicated person, knowledge of incompetency may be presumed). Although it was obvious that Mr. Sargent was quite ill, awareness of his physical condition would not necessarily lead a reasonable person to conclude that Mr. Sargent was incapable of making a reasoned decision.
It is also significant that Mr. Sargent was still nominally running both of the businesses in the summer of 1981. Although his employees and his wife believed that he was losing it, they strove to make him think that he was still in charge. It is only reasonable to conclude that their efforts would encourage others to believe that Mr. Sargent was still in control of his affairs. "People are not obliged to be filled with suspicion of the sanity of others with whom they deal." McClaney v. Scott, 188 Pa.Super. 328, 146 A.2d 653, 656 (1958). Although the parties dispute the market values of the mobile home and the Ugak Bay property at the time of the trade, the trial court's findings indicate that the terms of the transaction itself were not unfair. In the absence of solid evidence, we hold that the mere possibility of bad faith is insufficient. On the record presented, there is simply no basis to find that the Papperts should have been aware that Mr. Sargent was not competent to complete this transaction.
C: RESTITUTION
In general, a party who contracts with an incompetent person in good faith, without actual or constructive knowledge of his condition, is entitled to restitution.[4]See Metter Banking Co. v. Millen Lumber & Supply Co., Inc., 191 Ga. App. 634, 382 S.E.2d 624, 628 (1989); Pennsylvania Co. for Banking & Trusts v. Philadelphia Title Ins. Co., 372 Pa. 259, 93 A.2d 687, 690 (1953). This rule is founded on the equitable principle that it is fundamentally unfair to allow a person to repudiate a contract without returning the benefits received thereunder. See Pennsylvania Co., 93 A.2d at 690. Thus a party's right to void a contract due to incompetency may be defeated if he cannot restore the other party to his original position.
The Restatement (Second) of Contracts clearly lays out the factors a trial *70 court should take into account when faced with this type of situation.
If the contract is made on fair terms and the other party has no reason to know of the incompetency, performance in whole or in part may so change the situation that the parties cannot be restored to their previous positions or may otherwise render avoidance inequitable. The contract then ceases to be voidable. Where the other party, though acting in good faith, had reason to know of the incompetency at the time of contracting or performance, or where the equities can be partially adjusted by the decree, the court may grant or deny relief as the situation requires. Factors to be taken into account in such cases include not only benefits conferred and received on both sides but also the extent to which avoidance will benefit the incompetent and the extent to which others who will benefit from avoidance had opportunities to prevent the situation from arising.
Restatement (Second) of Contracts § 15, comment f (1981); see also Davis v. Colorado Kenworth Corp., 156 Colo. 98, 396 P.2d 958, 961-62 (1964) (where the contract is made on fair terms and the other party is without knowledge of the incompetency, the power to void the contract terminates to the extent that the contract has been performed). Since we conclude that the Papperts could not reasonably be expected to know of Mr. Sargent's condition, they are entitled to restitution.[5]
In this case the passage of time makes a return to the status quo in 1981 impossible the parties agree that the mobile home has significantly depreciated in value. In its oral findings, the trial court recognized the unfairness of rescinding the transaction at this late date, but declined to order any further restitution, commenting that the Papperts had had an opportunity to resolve this dispute at an earlier time but had failed to do so. On our review of the record, this result is clearly inequitable. Mrs. Sargent filed this action in 1983 but was unable to proceed further because she had neglected to obtain formal guardianship of Mr. Sargent. She only reinitiated the action in 1988, two years after Mr. Sargent's death. Since we conclude that the Papperts should not be charged with knowledge of Mr. Sargent's condition, they are entitled to some form of restitution. Thus we remand this case to the trial court to determine the proper measure of restitution. If, after a hearing, the court determines that meaningful restitution is not possible, it should decline to void the transaction. See Sprinkle v. Wellborn, 140 N.C. 163, 52 S.E. 666 (1905) (contract voidable on grounds of incompetency should not be set aside where other party had no notice of incompetency and derived no inequitable advantage from the contract and the parties cannot be returned to their original positions); Davis, 396 P.2d at 961-62.
D: ATTORNEY'S FEES
Where there is no money judgment in a case, attorney's fees may be awarded by the trial court "in its discretion in a reasonable amount." Alaska R.Civ.P. 82(a)(1). The purpose of Rule 82 is to partially compensate a prevailing party for the costs and fees incurred where such compensation is justified but not to penalize a party for litigating a good faith claim. Malvo v. J.C. Penney, Inc., 512 P.2d 575, 588 (Alaska 1973). However, where there is evidence that the losing party did not have a good faith claim, the trial court may appropriately impose a heavier burden, up to and including the full amount of the fees requested. Id.
In this case, the trial court ordered a 15% augmentation of its fee award on the grounds that the Papperts "knew or should have known of [Mr. Sargent's] condition, and the implications to be drawn therefrom." Since the trial court concluded that *71 the Papperts knew all along that Mr. Sargent was not competent, it apparently reasoned that they had litigated this case in bad faith. Since we have held that this finding was erroneous, we vacate that portion of the fee award.
III. CONCLUSION
We therefore AFFIRM the trial court's finding of incompetency, REVERSE its finding concerning the Papperts' knowledge of Mr. Sargent's condition, VACATE the augmented portion of the fee award and REMAND for further proceedings to determine the proper restitutionary remedy.
BURKE, Justice, with whom COMPTON, Justice, joins, dissenting.
I dissent. I believe the record supports the trial court's finding that the Papperts knew or should have known, when dealing with Sargent, that Sargent was incompetent. Accordingly, I would affirm the judgment below.
I am authorized to state that Justice COMPTON joins in my dissent.
NOTES
[1] Mr. Sargent suffered strokes in October and December 1981, and his physical condition steadily deteriorated over the next four years. He died in 1986.
[2] We will disturb the trial court's findings of fact only when we are left with a definite and firm conviction on the entire record that a mistake has been made. Parker v. Northern Mixing Co., 756 P.2d 881, 891 n. 23 (Alaska 1988).
[3] We are not persuaded by the Papperts' claim that Dr. Nemiroff was not qualified to offer an opinion as to Mr. Sargent's competency. Although Dr. Nemiroff is not a neurologist, he has had extensive experience in the effects of oxygen deprivation. Cf. Stallworth v. Ward, 249 Ala. 505, 31 So. 2d 324, 326 (1947) (medical doctor's professional opinion concerning competency of his patient should be accorded greater weight than the opinion of non-expert witnesses).
[4] Although the Papperts did not raise the issue of restitution until final argument before the trial court, we believe that failure to consider this issue on appeal would constitute "plain error." Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 115 (Alaska 1990).
[5] We emphasize that in an action to set aside a deed or contract on the grounds of the incompetency of one of the parties, it is not necessary to show that the other party knew or should have known of the incompetency. Metter Banking, 382 S.E.2d at 628; see, e.g., Hebert v. Bailey, 672 P.2d 1307 (Alaska 1983). Actual or constructive knowledge of a party's competence is only relevant if a party is seeking to avoid restitution or to establish fraud. See Metter Banking, 382 S.E.2d at 628; Hunt v. Golden, 271 Or. 321, 532 P.2d 26, 28 (1975).
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960 S.W.2d 899 (1997)
Mary L. PALOMINO, Appellant,
v.
Sergio J. PALOMINO, Appellee.
No. 08-97-00104-CV.
Court of Appeals of Texas, El Paso.
December 11, 1997.
Rehearing Overruled March 5, 1998.
Eddie Martin, El Paso, for Appellant.
Jesus M. Hernandez, El Paso, for Appellee.
Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.
OPINION
BARAJAS, Justice.
This is an appeal of a final decree of divorce and the division of certain lump sum *900 settlement payments. For the reasons stated below, we reverse the decision of the trial court.
I. SUMMARY OF THE EVIDENCE
Appellant, Mary Palomino, filed for divorce on December 7, 1990. Appellee, Sergio Palomino, filed an answer, cross-action for divorce and a third party claim on February 14, 1991. The divorce remained pending for several years until both parties agreed to a non-jury trial on April 8-9, 1996. At the time of trial, numerous stipulations were made in open court. The two issues to be determined by the court were the amount of support for the minor children and disposition or division of an annuity. The court heard evidence, both sides closed and the court took the case under advisement. The Appellee died on July 28, 1996.
On September 6, 1996, the court held a status hearing. The Appellant argued that the court should abate and dismiss the divorce action since Appellee had died and no judgment had been rendered. While admitting that no final judgment had been announced prior to Appellee's death, counsel for Appellee urged the court to enter judgment since all evidence had been presented. The court asked the parties to return the following Monday, September 9, 1996, at which time the court's decision would be announced. However, at that hearing, other matters consumed the court's time and no decision was announced.[1] Appellant asked that the parties be allowed to fully brief the issue of whether the court should render a judgment. Appellee again urged the court to render a decision based on the evidence presented in April. The court held another hearing on September 16, 1996, at which time counsel for the Appellee requested that Luis Palomino, father of Appellee and executor of the estate, be substituted in the place of Appellee. Upon the suggestion of death being entered of record in open court and after waiving issuance of a citation or scire facias,[2] Luis Palomino was substituted in place of his son in the divorce action. The court also allowed counsel for Appellee several additional days to file a response brief.
The Appellee filed a Motion to Sign Decree of Divorce on October 17, 1996 and the judgment hearing was held October 24, 1996. At the hearing, Appellant again objected to the court rendering a decision in the case, arguing that the action should have been abated and dismissed. Appellant further objected to the amount of child support and the division of the lump sum payments, in light of the fact that the court had not previously pronounced its judgment. The court signed the Final Decree of Divorce on November 21, 1996. This appeal followed.
II. DISCUSSION
Appellant brings three points of error. In Point of Error No. One, Appellant alleges that the court erred as a matter of law in entering a Final Decree of Divorce by not abating the divorce and dismissing the action when Appellee died before the pronouncement of judgment of divorce.
When a party to a suit dies, the suit will not abate if the cause of action survives the death of that party. Tex.R.Civ.P. 150. The general rule in Texas is that a cause of action for divorce is purely personal and becomes moot and abates upon the death of either spouse. McKenzie v. McKenzie, 667 S.W.2d 568, 571-72 (Tex.App.Dallas 1984, no writ); Garrison v. Garrison, 568 S.W.2d 709, 710 (Tex.Civ.App.Beaumont 1978, no writ). The "[d]eath of a party abates the divorce action and its incidental inquiries of property rights and child custody." Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex.1983)(orig.proceeding). "The proper procedural disposition of a divorce action when one of the parties dies is dismissal." Id. However, when a trial court has rendered judgment on the merits in a divorce *901 case, the cause does not abate when a party dies, and the cause cannot be dismissed. Novotny v. Novotny, 665 S.W.2d 171, 173-74 (Tex.App.Houston [1st Dist.] 1983, writ dism'd). Furthermore, when a party to a divorce dies during the pendency of appeal, the appeal becomes moot, unless the divorce decree significantly affects the property rights of the parties. Dunn v. Dunn, 439 S.W.2d 830, 833-34 (Tex.1969).
In summary, the cases above dictate the relationship of the judgment and the underlying cause in the following manner: (1) until judgment on the merits is rendered, a death of the party abates the cause and it must be dismissed; (2) after judgment is rendered, the cause does not abate upon the death of the party, but the judgment can be modified or withdrawn, or a new trial granted, during the period of the trial court's plenary power; and (3) the court of appeals has jurisdiction of the appeal after the death of a party if the divorce decree substantially affects the parties' property rights. See Turner v. Ward, 910 S.W.2d 500, 503-04 (Tex. App.El Paso 1994, no writ).
In the case before us, it is clear that the court had not rendered judgment, orally or in memorandum form, prior to the death of Appellee. The case law is clear that the proper procedure is to abate and dismiss the divorce action. Appellant urged the court to abate and dismiss the action at several hearings after Appellee's death. In addition, the parties extensively briefed the issue for the court. The trial court erred in not abating and dismissing the action. For the reasons stated above, we sustain Appellant's Point of Error No. One. We need not address Appellant's remaining points of error. We therefore reverse the judgment of the trial court and remand the cause with instructions to dismiss the underlying action as moot. December 11, 1997
NOTES
[1] The court was concerned about a voice mail message left with the court over the weekend in which the caller claimed to have "very important information" about the Palomino case. After speaking with the parties, conducting a conference call with the representative of the company where the call presumably originated, and hearing testimony, the court concluded that it could not determine the identity of the caller or the responsible party.
[2] See TEX.R.CIV.P. 152.
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960 S.W.2d 35 (1997)
In Re Max BENNETT, Judge of the 319th Judicial District Court, Nueces County, Texas, Relator.
No. 96-0598.
Supreme Court of Texas.
December 4, 1997.
Rehearing Overruled March 13, 1998.
*36 Carlos Villarreal, Corpus Christi, for Relator.
Eric Brown, Austin, Linda C. Breck, Corpus Christi, for Respondent.
OPINION
PER CURIAM.
In this mandamus proceeding we hold that neither the filing of a nonsuit nor the subsequent removal of a case to federal court deprived the state court of jurisdiction to consider, sua sponte, whether sanctions should be imposed on attorneys for pre-removal conduct when the sanctions are unrelated to the merits of the removed case. We further hold that the trial court did not abuse its discretion in imposing sanctions under the facts of this case. Accordingly, we conditionally issue a writ of mandamus directing the court of appeals to vacate the writ of mandamus in which it ordered the trial court to vacate sanctions, 925 S.W.2d 338.
I
This case arises out of a deliberate circumvention of the random assignment of cases in a county in which eight district courts preside. The attorneys who were sanctioned by the Honorable Max Bennett of the 319th District Court of Nueces County for their conduct are Robert C. Hilliard and Andrew Schirrmeister, III. They represent approximately seven hundred Peruvian plaintiffs who claim to have been injured by toxic gases and chemicals released by the Southern Peru Copper Corporation.
On August 30, 1995,[1] plaintiffs' counsel filed the first of seventeen lawsuits in Nueces County. The first suit was brought on behalf of three claimants. In accordance with the local rules of Nueces County, the case was randomly assigned to Judge Bennett's court.[2] Plaintiffs' counsel then filed sixteen more lawsuits, each having no more than five plaintiffs. The petitions were filed one after the other, only minutes apart, late in the afternoon of August 30 and on the morning of August 31, 1995. Each suit named different plaintiffs, all citizens of Peru, but the same defendants were sued in every case, and each petition contained identical factual allegations and legal claims. Each case was randomly assigned to one of the eight district courts in the county, but plaintiffs' counsel instructed the clerk of the court not to prepare citation for service in any of the first sixteen cases that had been filed.
None of the first sixteen suits was assigned to the 105th District Court. But the seventeenth was. Two hours after that assignment, plaintiffs' counsel filed an amended petition in the 105th District Court adding *37 approximately seven hundred plaintiffs, though none of the claimants in the other sixteen suits were ever joined. Once counsel for plaintiffs had finally succeeded in lodging a case in the 105th District Court, they instructed the clerk of the court to issue citation for service on the defendants. Service was never requested in any of the sixteen other suits.
On September 5, 1995, five days after securing the 105th District Court as the forum of choice, plaintiffs' counsel filed notices of nonsuit in all sixteen previously filed suits pursuant to TEX.R. CIV. P. 162.[3] Judge Bennett apparently was skeptical of this turn of events. He did not sign an order of nonsuit in the case pending in his court, but instead, on October 2, 1995, signed a "Sua Sponte Order Abating Dismissal and Setting Hearing on Transfer, Consolidation and Sanctions." The order required plaintiffs' counsel to appear on November 10, 1995 to show cause why the other sixteen lawsuits should not be transferred and consolidated into the case before Judge Bennett and why plaintiffs' counsel should not be sanctioned for intentionally violating local rules implementing random assignment of cases in Nueces County or the Texas Rules of Civil Procedure, including Rules 1, 2, 3a, 41, and 174.
Prior to the hearing on sanctions before Judge Bennett, the defendants removed all seventeen cases to federal court, including the case pending before Judge Bennett. Shortly after removal, plaintiffs' counsel filed with the federal district court a "Notice of Prior Filing of Nonsuit, and, in the Alternative, Notice of Dismissal pursuant to FRCP 41(a)(1)."[4]
Judge Bennett nevertheless went forward with a hearing on the matter of sanctions on November 10, as scheduled. At that hearing, counsel for the plaintiffs were themselves represented by counsel and were given the opportunity to call witnesses. Plaintiffs' counsel asserted that they acted in good faith and intended to diligently prosecute the case remaining in the 105th District Court. Hilliard admitted, however, that the filing process he used was designed to get his clients' claims before a particular judge. At the close of the hearing, Judge Bennett announced from the bench that he intended to enter an order requiring plaintiffs' counsel each to pay $10,000 as a sanction.
Meanwhile, on November 16, 1995, before Judge Bennett had reduced his rulings to a written order, the federal district court consolidated all seventeen cases that had been removed. That same day, the federal district court dismissed, but did not remand, all the cases that had been nonsuited, including the one removed from Judge Bennett's court, leaving pending only the case removed from the 105th District Court. (The federal district court eventually entered final judgment in the case removed from the 105th District Court on January 22, 1996, dismissing the case under the doctrines of comity of nations and forum non conveniens. The United States Court of Appeals for the Fifth Judicial Circuit has affirmed that judgment. Torres v. Southern Peru Copper Corp., 113 F.3d 540 (5th Cir.1997).)
In January 1996, Judge Bennett proceeded to memorialize his rulings from the sanctions hearing in formal written orders. Among the express findings included in those orders, Judge Bennett found that counsel had knowingly and intentionally violated the Local Rules of Practice of the District Courts of Nueces County that provide for the random assignment of cases and had violated the Texas Rules of Civil Procedure, in particular Rules 13 and 1. Judge Bennett never signed an order dismissing the case pursuant to the notice of nonsuit.
Plaintiffs' counsel filed a motion for leave to file a petition for writ of mandamus in the *38 court of appeals challenging Judge Bennett's sanctions. The court of appeals conditionally issued a writ of mandamus directing Judge Bennett to vacate that order and to sign an order dismissing the case pursuant to the notice of nonsuit.
Judge Bennett has now instituted this mandamus proceeding and requests that this Court issue a writ directing the court of appeals to vacate its writ of mandamus. We first consider the extent of Judge Bennett's authority to sanction counsel after the notice of nonsuit was filed.
II
The court of appeals held that because no affirmative relief had been requested by any defendant, the filing of a nonsuit deprived the trial court of jurisdiction to take any action other than the ministerial act of signing an order dismissing the case. 925 S.W.2d at 341. That holding gives an inordinate amount of weight to a notice of nonsuit and strips a trial court of authority to sanction the conduct of counsel when appropriate.
Generally, plaintiffs have the right under TEX.R. CIV. P. 162 to take a nonsuit at any time until they have introduced all evidence other than rebuttal evidence. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex.1995); Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex.1993). Such a nonsuit may have the effect of vitiating earlier interlocutory orders and of precluding further action by the trial court, with some notable exceptions. See Hyundai, 892 S.W.2d at 854-55 (holding that once a trial court announces a decision on a motion for partial summary judgment, that claim is no longer subject to the plaintiff's right to nonsuit); Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.1982) (stating that the rule recognizing a plaintiff's right to nonsuit should not be confused with the rule recognizing the power of a court to grant injunctive relief to prevent a multiplicity of groundless suits).
However, the signing of an order dismissing a case, not the filing of a notice of nonsuit, is the starting point for determining when a trial court's plenary power expires. Appellate timetables do not run from the date a nonsuit is filed, but rather from the date the trial court signs an order of dismissal. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.1995) ("The appellate timetable does not commence to run other than by a signed, written order, even when the signing of such an order is purely ministerial."); see also Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990); TEX.R. CIV. P. 329b(d).
While we have recognized that generally, a trial court has no discretion to refuse to sign an order of dismissal once notice of a nonsuit has been filed, this broad principle necessarily has exceptions. Rule 162 expressly states that a dismissal under the rule "shall have no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal." TEX.R. CIV. P. 162. Further, a trial court is free to "impose [] sanctions while it retain[s] plenary jurisdiction" even when a motion for sanctions is filed after the notice of nonsuit is filed. Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.1996). It is only after plenary jurisdiction has expired that a trial court may not sanction counsel for pre-judgment conduct. Id. at 596 & n. 2; see also BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990) (right to nonsuit is absolute unless there is a pending claim for affirmative relief or a motion for sanctions).
The removal to federal court placed this case in an unusual procedural posture. On the date of removal, Judge Bennett had not signed an order of dismissal, but he would have been well within his authority to defer signing such an order pending the disposition of the sanctions issues. A trial court has the discretion to allow a reasonable amount of time for holding a hearing on sanctions and, once the question of sanctions has been resolved, to then sign an order of dismissal. The court of appeals erred when it held otherwise. Judge Bennett would have had plenary power when he signed the order imposing sanctions but for the removal.
The opinion of the court of appeals is devoid of any mention of removal and erroneously focused only on Judge Bennett's plenary *39 power in the context of a nonsuit. The court of appeals should have considered what authority Judge Bennett had to enter an order sanctioning counsel for pre-removal conduct after the case had been removed and after the federal court had dismissed the case at the request of plaintiffs. We turn to that issue.
III
Federal law provides that once a case is removed to federal court "the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d). Section 1446(d) clearly prohibits state courts from taking any action on the merits of the removed case. See, e.g., Murray v. Ford Motor Co., 770 F.2d 461, 463 (5th Cir.1985) (holding that a state trial court had no power to set aside a default judgment after the case had been removed). However, whether section 1446(d) permits state courts to sanction counsel after removal for pre-removal conduct when such sanctions have no effect on the merits of the removed case is another matter. We have found few cases or commentators that directly address the question. See, e.g., Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 83-84 (Tex.App.San Antonio 1996, writ denied) (holding that the trial court had no jurisdiction to sanction counsel for post-removal conduct); Jackson v. State, 337 So. 2d 1281, 1283 (Ala.1976) ("We need not decide ... whether [removal to federal court] divested the state court of power to cite appellant [a lawyer] for contempt."); 14A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3737 (2d ed. 1985 & Supp.1997) (citing only cases holding that state courts are powerless to take any action with respect to the merits of the removed action unless and until remanded); 16 James Wm. Moore et al., Moore's Federal Practice § 107.31[2] (3d ed.1997) (same).
At least one Texas state court has held that removal of the underlying case did not foreclose consideration of a pending motion for contempt and sanctions against a party to the litigation and that party's counsel. Stewart Title Co. v. Street, 731 S.W.2d 737, 739-40 (Tex.App.Fort Worth 1987, orig. proceeding). The court of appeals in Stewart concluded that although the trial court had no jurisdiction after removal to strike the party's pleadings as punishment for contempt, the trial court did have jurisdiction to issue an order directing counsel to show cause why he should not be punished for contempt. Id. We neither approve nor disapprove of this holding to the extent that it permits attorneys to be sanctioned for filing a petition for removal. That issue is not before us.
We do, however, find guidance in federal caselaw which holds that federal courts retain jurisdiction even after a case has been remanded to state court to sanction counsel for post-removal conduct that occurred in federal court. See Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 445-46 (9th Cir.1992). The same principle applies to suits originally filed in federal court; the trial court retains jurisdiction to sanction counsel for his or her conduct during the proceedings even after the plaintiff files a notice of dismissal, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S. Ct. 2447, 2456, 110 L. Ed. 2d 359 (1990), and after an action is dismissed for want of jurisdiction, see id. at 395, 110 S. Ct. at 2455-56 (citing 28 U.S.C. § 1919). In Willy v. Coastal Corp., 503 U.S. 131, 137, 112 S. Ct. 1076, 1080, 117 L. Ed. 2d 280 (1992), the United States Supreme Court relied upon its holding in Cooter and recognized that sanctioning counsel for their conduct is collateral to the merits of the underlying case. 503 U.S. at 137-38, 112 S.Ct. at 1080-81. Sanctioning counsel is "not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate." Cooter, 496 U.S. at 396, 110 S. Ct. at 2456.
Judge Bennett found that plaintiffs' counsel had abused the judicial process. He imposed sanctions on the lawyers, not on their clients. Judge Bennett's determinations had no bearing whatsoever on the merits of the claims that were removed to federal court. Nor did his rulings interfere with or tend to have any chilling effect on the pursuit of jurisdiction in the federal system.
*40 We are also mindful that abuse of the state judicial process may be placed beyond the reach of any court, state or federal, were we to conclude that state courts should not go forward after removal with an adjudication of sanctions for pre-removal conduct of counsel. That is because federal courts have no authority to impose sanctions for pre-removal conduct that occurred in state court. See Willy v. Coastal Corp., 915 F.2d 965, 968 n. 8 (5th Cir.1990), aff'd, 503 U.S. 131, 112 S. Ct. 1076, 117 L. Ed. 2d 280 (1992).
From our review of federal precedent and in light of the practical ramifications, we conclude that state courts retain jurisdiction after removal of a case to federal court to sanction lawyers for pre-removal conduct so long as the sanction does not operate upon the merits of the underlying action. Accordingly, the court of appeals erred in concluding that Judge Bennett did not have jurisdiction to consider the imposition of sanctions in this case.
The final issue is whether the imposition of sanctions was appropriate under the facts of this case.
IV
Counsel for the plaintiffs contend that the trial court abused its discretion by sanctioning them. The court of appeals agreed, writing in dicta that even if Judge Bennett had plenary jurisdiction, he had no authority to impose sanctions sua sponte. 925 S.W.2d at 341-42. We disagree.
Courts possess inherent power to discipline an attorney's behavior. See Lawrence v. Kohl, 853 S.W.2d 697, 700 (Tex. App.Houston [1st Dist.] 1993, no writ) (holding that trial courts have the power to sanction parties for bad faith abuse of the judicial process not covered by rule or statute); Kutch v. Del Mar College, 831 S.W.2d 506, 509-10 (Tex.App.Corpus Christi 1992, no writ) (same); see also Public Util. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988) (recognizing the inherent power of courts to ensure an adversarial proceeding); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99 (Tex.1979) (recognizing that a court has inherent power "which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity"). A court has the inherent power to impose sanctions on its own motion in an appropriate case.[5]
Plaintiffs' counsel admitted that the filing scheme was designed to ensure adjudication by a particular judge. The practice of filing multiple cases without intent to prosecute most of them, in search of a court perceived to be sympathetic, subverts random assignment procedures that are in place in many multi-court counties and is an abuse of the judicial process. This type of conduct, if tolerated, breeds disrespect for and threatens the integrity of our judicial system.
The power to sanction is of course limited by the due process clause of the United States Constitution, as urged by plaintiffs' counsel. The lawyers sanctioned in this case cannot deny that they were fully aware of the purposes of the random assignment system. They intentionally attempted to circumvent those purposes. Counsel were given notice of the court's intention to consider sanctions and were given an opportunity to respond. Due process was not violated in this case. The court of appeals abused its discretion in directing Judge Bennett to vacate the order sanctioning counsel in this case.
* * * * *
Accordingly, the Court grants Relators' motion for leave to file, and, without hearing oral argument, conditionally grants the writ of mandamus. TEX.R.APP. P. 59.1. The writ *41 will issue only if the court of appeals fails to vacate its writ of mandamus.
NOTES
[1] As a historical note, amendments to the forum non conveniens statute enacted by the 74th Legislature went into effect on September 1, 1995, and applied to all cases filed on or after that date. See TEX. CIV. PRAC. & REM. CODE § 71.051 historical note [Act of May 24, 1995, 74th Leg., R.S., ch. 567, § 2, 1995 Tex. Gen. Laws 3363, 3364].
[2] Rule 3 of the Local Rules of the District Courts of Nueces County (Dec. 6, 1988) and the Substitute Order on Assigning Criminal and Civil Cases in the District Courts of Nueces County (Nov. 19, 1992) both provide that the district clerk of Nueces County shall randomly assign cases to the district courts of the county. The 105th District Court, however, is to receive one half the share of civil case assignments received by other district courts.
[3] Rule 162 provides in part: "At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit...." TEX.R. CIV. P. 162.
[4] FED.R.CIV.P. 41(a)(1) is the federal analogue to TEX.R. CIV. P. 162 and provides:
RULE 41. DISMISSAL OF ACTIONS
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation.... [A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs....
[5] For suits commenced on or after September 1, 1995, the Texas Civil Practice and Remedies Code authorizes a trial court to impose sanctions on its own initiative for certain conduct if the show cause order is issued before a voluntary dismissal or settlement of claims. See TEX. CIV. PRAC. & REM.CODE §§ 10.002(b), 10.004(e) & historical notes [Act of May 4, 1995, 74th Leg., R.S., ch. 137, § 2, 1995 Tex. Gen. Laws 977, 978]. We need not decide whether the conduct in this case is covered by these statutes.
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NO. 07-06-0175-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 5, 2007
______________________________
DAVID MATTHEW LAYTON, APPELLANT
V.
WARREN CLARK, APPELLEE
_________________________________
FROM THE 47
TH
DISTRICT COURT OF POTTER COUNTY;
NO. 94,288-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, David Matthew Layton, appeals from an order denying his request to take the deposition of Warren Clark pursuant to a request filed under the authority of Texas Rule of Civil Procedure 202.1(b). We dismiss the appeal.
Appellant was represented by the proposed deponent, Warren Clark, in 1996; specifically Clark was the trial attorney for appellant during appellant’s trial from May 2, 1996 until May 9, 1996. The trial court denied appellant’s request to depose Clark without a hearing. Appellant urges a number of constitutional grounds which he asserts would require this court to reverse. However, this court lacks jurisdiction to hear this appeal.
Appellant maintains, on appeal, that his request was not intended to be a deposition in anticipation of filing a law suit against Clark, but rather to investigate an actual innocence claim. However, despite the representations made by appellant in his brief, the clerk’s record reveals that his original petition alleges that he “seeks to depose Mr. Warren L. Clark, in order to investigate a potential claim arising out of the trial of Petitioner. . ., wherein the deponent may have committed legal malpractice resulting from his representation of Petitioner.”
Rule 202 of the Texas Rules of Civil Procedure permits the taking of a deposition to either perpetuate or obtain testimony for use in anticipation of suit, or to investigate a potential claim or suit.
Tex. R. Civ. P.
202.1 (a)-(b) (Vernon Supp. 2005). The ruling of a trial court is a final appealable order if the deposition sought is against a third party against whom suit is not contemplated.
IFS Security Group, Inc. v. Am. Equity Ins.
, 175 S.W.3d 560, 563 (Tex.App.–Dallas 2005, no pet.);
Thomas v. Fitzgerald
, 166 S.W.3d 746, 747 (Tex.App.–Waco 2005, no pet.). On the other hand if the request for discovery is sought from a person against whom there is a suit contemplated or pending, the ruling of the trial court is interlocutory.
IFS Security Group
, 175 S.W.3d at 563;
Thomas
, 166 S.W.3d at 747. In this case the record clearly demonstrates that appellant is seeking discovery from his former lawyer with an intent to file a legal malpractice case and, accordingly, the order of the trial court is interlocutory in nature.
Our jurisdiction over interlocutory appeals is specified by statue.
Stary v. DeBord
, 967 S.W.2d 352, 352-53 (Tex. 1998). There is no statute authorizing interlocutory appeal from an order denying a deposition against a person suit is contemplated against; therefore, we have no jurisdiction over this appeal. The appeal is dismissed for want of jurisdiction.
Mackey K. Hancock
Justice
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Quishpi v 80 WEA Owner, LLC (2016 NY Slip Op 08324)
Quishpi v 80 WEA Owner, LLC
2016 NY Slip Op 08324
Decided on December 13, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 13, 2016
Tom, J.P., Friedman, Saxe, Feinman, Kahn, JJ.
2445 150289/12
[*1]Segundo Quishpi, Plaintiff-Respondent-Appellant,
v80 WEA Owner, LLC, et al., Defendants-Appellants-Respondents.
80 WEA Owner, LLC, Third-Party Plaintiff-Appellant, Air Export Mechanical, Third-Party Defendant-Respondent.
Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for 80 WEA Owner, LLC, appellant-respondent.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for Kras Interior Contracting Corp., appellant-respondent.
Silberstein, Awad & Miklos, PC, Garden City (Joseph Awad of counsel), for respondent-appellant.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered May 29, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted defendants' motions for summary judgment dismissing that claim, denied defendants' motions for summary judgment dismissing the Labor Law § 241(6) claim insofar as it is predicated on violations of Industrial Code (12 NYCRR) §§ 23-1.8(c)(1) and 23-3.3(c), and denied defendant 80 WEA Owner, LLC's motion for a default judgment on its third-party complaint, unanimously modified, on the law, to grant defendants' motions as to the Labor Law § 241(6) claim, and otherwise affirmed, without costs, except as to the denial of 80 WEA's motion for a default judgment, the appeal from which is unanimously dismissed, without costs, as academic. The Clerk is directed to enter judgment dismissing the complaint.
Plaintiff was injured during the demolition of an elevator shaft when he tried to take down two 12-foot vertical steel beams topped by a horizontal steel beam approximately two feet long. He cut into the two vertical beams until they fell over in a "V" shape, and the horizontal beam, still attached to them, hit the floor. When plaintiff bent over to sever the horizontal beam from the left vertical beam, the beam sprang up and hit him in the face.
The Labor Law § 240(1) claim was correctly dismissed, because the record demonstrates that plaintiff's injuries were not the result of a failure to provide proper protection against "the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]), but rather the result of the propulsion of the vertical beam upward by "the kinetic energy of the sudden release of tensile stress in the [beam]" (Medina v City of New York, 87 AD3d 907 [1st Dept 2011]).
The Industrial Code provisions on which the Labor Law § 241(6) claim is predicated are inapplicable to the facts of this case. 12 NYCRR 23-1.8(c)(1) requires hard hats where there is a risk of "being struck by falling objects or materials or where the hazard of head bumping exists" (Modeste v Mega Contracting, Inc., 40 AD3d 255, 255-256 [1st Dept 2007]). 12 NYCRR 23-3.3(c) requires inspections during demolition of a structure "to detect any hazards ... resulting [*2]from weakened or deteriorated floors or walls or from loosened material," which refers to "structural instability caused by the progress of demolition" (see Garcia v 225 E. 57th St. Owners, Inc., 96 AD3d 88, 93 [1st Dept 2012]).
In view of the foregoing, we need not reach 80 WEA Owner's alternative argument as to its motion for a default judgment on the third-party complaint.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 13, 2016
CLERK
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NO. 07-06-0341-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 22, 2007
______________________________
GWENDOLYN PEVEHOUSE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;
NO. B3040-0510; HON. ED SELF, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The probation of Gwendolyn Pevehouse was revoked, and she was sentenced to
serve two years in the state jail for theft. Although she pled true to the allegations that she
had violated the terms and conditions of her probation, she contends on appeal that the
trial court should have sua sponte conducted a hearing to determine her competency at
the time of the revocation hearing. We affirm the judgment.
A person is incompetent to stand trial if she does not have sufficient present ability
to consult with her lawyer with a reasonable degree of rational understanding or a rational
as well as factual understanding of the proceedings against her. Tex. Code Crim. Proc.
Ann. art. 46B.003 (Vernon 2006). If evidence suggesting the defendant may be
incompetent comes to the attention of the trial court, it must determine, sua sponte, by
informal inquiry whether there is some evidence from any source that would support a
finding that the defendant may be incompetent to stand trial. Id. art. 46B.004(c). A
competency hearing is not required, however, unless the evidence is sufficient to create
a bona fide doubt in the mind of the judge whether the defendant is legally competent.
Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). And, we review that trial
court's decision not to conduct such a hearing under the standard of abused discretion.
Id.
At the time that appellant pled true to the revocation allegations, she revealed in
response to questioning from the trial court that she had suffered a nervous breakdown
three or four months earlier and had been placed on medication. So too did she disclose
that while the medication originally taken several months earlier purportedly left her
"messed up in the head," that currently ingested did not interfere with her ability to
understand the nature and consequences of the proceedings. Appellant also stated that
she was able to understand what her attorney had explained to her, answer his questions,
and ask questions of her own. The numerous answers she gave from the witness stand
to both the questions propounded by her counsel and the trial court during the evidentiary
hearing were also lucid and responsive to the questions asked. Appellant's counsel also
represented that he believed her competent.
Prior hospitalizations and treatment or evidence of mental impairment alone does
not raise a bona fide question regarding one's competency to stand trial. Moore v. State,
999 S.W.2d at 395. There must generally be evidence of recent severe mental illness,
bizarre acts, or moderate retardation. Id. This is especially true when the defendant is
taking medication to control her mental condition as appellant was here. Scott v. State,
No. 07-01-0484-CR, 2002 Tex. App. Lexis 4868 at *4 (Tex. App.-Amarillo July 3, 2002,
pet. ref'd ) (not designated for publication). Further, nothing in the record indicates
appellant's current medication affected her ability to comprehend the proceeding in which
she was involved, communicate with counsel, or assist in her defense. Thus, we conclude
that the trial court did not abuse its discretion in foregoing any further inquiry into her
competency to stand trial and overrule the issue.
The judgment of the trial court is affirmed.
Per Curiam
Do not publish.
false" QFormat="true" Name="Emphasis"/>
NO. 07-10-0224-CV
IN
THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL
B
AUGUST
5, 2010
______________________________
In re: KENNETH HICKMAN-BEY,
Relator
_______________________________
On
Original Proceeding for Writ of Mandamus
_______________________________
Before QUINN, C.J., and CAMPBELL and
HANCOCK, JJ.
Pending before the
court is the application of Kenneth Hickman-Bey, for a writ of mandamus. He asks us to order the Honorable Ron Enns,
69th District Court, to schedule a hearing and act upon various motions pending
in a suit he initiated. The motions
include Plaintiffs Motion for Partial Summary Judgment, and Plaintiffs
Motion for Change of Venue. We dismiss
the petition as moot.
On June 22, 2010, we directed Judge
Enns to respond to relators petition for mandamus. On July 14, 2010, Judge Enns filed his
response wherein he granted relators motion for teleconferencing regarding his
unresolved pleadings. A copy of the
document evincing the action is attached to this opinion as Exhibit A.
Accordingly, we do not reach the
merits of the issues raised, and the petition for writ of mandamus is dismissed
as moot. See In re Duncan, 62 S.W.3d 333, 334 (Tex. App.Houston [1st Dist.]
2001, orig. proceeding). This dismissal
is without prejudice to the relators right to seek a writ of mandamus should
unreasonable delay arise in the scheduling of the teleconference and ruling
upon the aforesaid motions and pleadings.
Per
Curiam
|
01-03-2023
|
09-08-2015
|
https://www.courtlistener.com/api/rest/v3/opinions/1548832/
|
992 A.2d 124 (2010)
COM.
v.
RIDENOUR.
No. 740 MAL (2009).
Supreme Court of Pennsylvania.
April 6, 2010.
Disposition of Petition for allowance of Appeal Denied.
|
01-03-2023
|
10-30-2013
|
https://www.courtlistener.com/api/rest/v3/opinions/1873706/
|
141 B.R. 133 (1992)
In re Dan Kenneth BRAUN, Debtor.
Dan Kenneth BRAUN, Plaintiff,
v.
CHAMPION CREDIT UNION, Defendant.
Bankruptcy No. 90-01336, Adv. No. 91-3122.
United States Bankruptcy Court, N.D. Ohio, W.D.
March 26, 1992.
*134 *135 Phillip Browarsky, Daniel Camick, Toledo, Ohio, for debtor.
Richard A. Shinaberry, Gordon Barry, Toledo, Ohio, for defendant.
OPINION AND ORDER AWARDING SANCTIONS FOR VIOLATION OF INJUNCTION
WALTER J. KRASNIEWSKI, Bankruptcy Judge.
This matter came on for trial upon Debtor/plaintiff's complaint for violation of automatic stay and subsequent injunction pursuant to 11 U.S.C. § 524. Upon consideration of the evidence adduced at trial, the court finds that defendant violated the injunction imposed by § 524 and that judgment should be awarded in favor of Debtor against defendant and its attorney, Richard A. Shinaberry in the amount of $15,000 for sanctions and an amount for compensatory damages to be subsequently determined by this court upon the filing of an appropriate affidavit.
FACTS
At trial, the parties stipulated to the following facts:
Debtor/plaintiff filed a voluntary petition under chapter 7 of title 11 on April 24, 1990.
Notice of that petition issued by the court; defendant received said notice.
Defendant did not attend the meeting of creditors, file a proof of claim, file a motion for relief from stay, file a motion for abandonment or file an adversary proceeding to determine the dischargeability of a debt or to object to Debtor's discharge.
On March 14, 1991, defendant filed a complaint in the municipal court of Toledo, Lucas County, Ohio; Debtor filed an answer thereto; a judgment entry granting judgment in favor of defendant was entered on November 15, 1991.
At the time of Debtor's petition, he had two accounts with defendant, to-wit: a Visa account with a balance of $1,726.24 and an automobile loan with a balance of $275.52.
Debtor alleges that as a result of defendant's state court action in violation of the injunction imposed by 11 U.S.C. § 524, he is entitled to compensatory and punitive damages. At trial, Debtor asked that his complaint be amended, requesting $10,000 in compensatory damages and $15,000 in punitive damages.
Debtor testified that he currently lives in Iowa, having relocated from Sylvania, Ohio sometime in September, 1990. He currently works for Champion Spark Plug and has, since August, 1971. Debtor stated that he purchased, in 1981, a 1937 car kit to convert a 1970 volkswagon that he owned into a 1937 Jaguar. He paid approximately $5,900 for this kit. Subsequently, he obtained a loan from defendant for $3,500 pledging the converted vehicle as collateral. Defendant's Exhibit B. Defendant required Debtor to obtain an appraisal of that vehicle. Debtor complied by contacting an appraiser listed in the telephone directory. This appraiser valued the vehicle at $9,000. Defendant's Exhibit C. Debtor opined that this appraisal was a fair valuation. Payments on this loan were made by payroll deductions and, after Debtor's layoff, direct payments.
In November, 1987, Debtor was divorced; in April, 1988, Debtor was laid off from his job. As a result, Debtor began experiencing financial problems. Debtor stated that he disassembled the converted vehicle in November, 1989, selling the kit for some $3,500 to a gentleman from Arizona. The purchaser wanted the parts, rather than the converted vehicle, as he had his own chassis upon which to assemble the kit. At the time of the sale, Debtor testified that he had forgotten that defendant held a first lien on the vehicle. Debtor still possesses the chassis and it is kept at his former Ohio address.
During the pendency of his bankruptcy case, Debtor indicated that defendant never contacted him regarding this vehicle. Additionally, Debtor stated that he never intended to conceal the vehicle or otherwise deceive defendant about its whereabouts. Debtor admitted that in answering question *136 12 of his statement of affairs, he did not answer truthfully as he had, in fact, made a transfer within one year of the filing of his petition, the sale of the kit.
Debtor testified that he received a copy of the complaint filed by defendant in the municipal court of Toledo, Lucas County, Ohio sometime after the granting of his discharge. Plaintiff's Exhibit 1. After his receipt, he contacted his attorney. He also received correspondence from attorney Richard A. Shinaberry regarding the outstanding indebtedness due defendant, threatening criminal prosecution if the matter was not resolved. Plaintiff's Exhibit 7. According to Debtor, he received a telephone call from Mr. Steve Grindle, employed by defendant, inquiring about the locale of the vehicle. Debtor also testified that he received documents from defendant that, if Debtor signed, would represent a new loan, the funds of which would be used to repay the money discharged as a result of Debtor's bankruptcy. These measures caused Debtor to feel threatened and harassed.
Attorney Richard Shinaberry testified that defendant retained him after the creditors' meeting had been held in Debtor's case. Thereafter, he attempted to ascertain the whereabouts of Debtor's vehicle, pledged to defendant, and the intentions of Debtor regarding that asset. Mr. Shinaberry's first contact regarding Debtor's case was with Joe Loeffler, the attorney representing Debtor at the time of the filing of his petition. Mr. Loeffler subsequently left that firm before Mr. Shinaberry was able to "firm up" the location of the vehicle, its condition and Debtor's intention.
Subsequently, Mr. Lee Johnson represented Debtor. Mr. Johnson informed Mr. Shinaberry, sometime after the § 341 meeting but before the granting of Debtor's discharge, that Debtor still possessed the vehicle and that Debtor wished to reaffirm this debt. Mr. Johnson did not disclose the location or condition of the vehicle. However, Mr. Johnson later told Mr. Shinaberry that Debtor would not reaffirm this debt and that the vehicle was available for defendant.
Mr. Shinaberry testified that he represented defendant in the municipal court action. Mr. Shinaberry, on behalf of defendant, filed a complaint seeking damages of $2,001.76. Plaintiff's Exhibit 1. Mr. Shinaberry explained that the action represented an in rem suit for conversion resulting from the $9,000 appraisal of the converted vehicle, which vehicle no longer existed; it did not, according to Mr. Shinaberry, represent an attempt to collect a prepetition debt. At the time of the filing of that state court action, Mr. Shinaberry did not know if the conversion had occurred prior to the filing of Debtor's petition, or after its filing.
Debtor's petition was reviewed by Mr. Shinaberry, according to his testimony. Schedule B-4, listing five vehicles with values from $50 to $850, was also reviewed by Mr. Shinaberry. Although no vehicle valued at approximately $9,000 appeared on that schedule, Mr. Shinaberry did not believe that this put him on notice that the kit was no longer available as Debtor's petition reflected that no sales or transfers had been made within one year of Debtor's petition. Furthermore, defendant asserts that Debtor had an obligation to affirmatively defend the state court action by asserting his discharge in bankruptcy.
On cross examination, Mr. Shinaberry stated that he could not recall at what point he became aware that the 1937 kit had been removed from the chassis; Mr. Camick, Debtor's current attorney of record, informed Mr. Shinaberry that Debtor had sold the kit, but that the chassis was available to defendant. Although asked to point out where in the state court complaint the allegations specifically complained of a postpetition conversion, Mr. Shinaberry was unable to answer except to state that the suit represented an in rem complaint. Debtor's counsel, after reviewing the complaint, then asked Mr. Shinaberry how this action could reflect an in rem action when the complaint reflects that the collateral is no longer available. Mr. Shinaberry stated that he could not answer *137 that question. According to Mr. Shinaberry, a complaint in the bankruptcy court was not filed as he assumed Debtor still possessed the collateral, that he believed Debtor would be reaffirming that debt and that he thought the collateral would be returned to defendant.
DISCUSSION
Debtor seeks relief pursuant to 11 U.S.C. § 524(a)(2) which provides that a discharge
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the Debtor, whether or not discharge of such debt is waived....
Debtor complains that defendant's action in instituting the municipal court action violated this statute. The court concurs. Section 524(a)(2) serves to protect a Debtor from a subsequent state court action by a creditor whose claim had been discharged in the bankruptcy case. See 3 Collier on Bankruptcy ¶ 524.01 at 524-4 (15th ed. 1991). Such is the case here. Debtor was granted a discharge on August 27, 1990; defendant, through its attorney Mr. Richard A. Shinaberry, filed its state court action on March 14, 1991.
Defendant asserts that its state court action represents a permissible in rem action, rather than an impermissible one in personam. These terms are defined as:
In rem. A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam.
"In rem" proceedings encompass any action brought against person in which essential purpose of suit is to determine title to or to affect interests in specific property.... It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. In the strict sense of the term, a proceeding "in rem" is one which is taken directly against property or one which is brought to enforce a right in the thing itself.
In personam. Against the person. Action seeking judgment against a person involving his personal rights ... as distinguished from a judgment against property (i.e. in rem).
Black's Law Dictionary 791, 793 (6th ed. 1990) (citations omitted).
Initially, the court notes that Mr. Shinaberry stated that he was admitted to practice law in 1973. Although Debtor's counsel stipulated to Mr. Shinaberry's qualification to practice in this court, the court would have been interested to learn of that date. Mr. Shinaberry stated that he could not recall the date, but it had "been awhile." Indeed, because it has "been awhile," the court finds Mr. Shinaberry's conduct in this matter to be absolutely outrageous.
Upon review of the state court complaint, and as pointed out by Debtor's counsel upon cross examination of Mr. Shinaberry, the court is convinced that Mr. Shinaberry filed an in personam complaint. That complaint states that Debtor sold the collateral unlawfully. Plaintiff's Exhibit 1 at 2. Mr. Shinaberry testified that at the time of the filing of that suit, he was unsure whether the conversion occurred prepetition or post-petition. Additionally, that complaint requested judgment in the amount of $2,001.76, the total amount of the outstanding debt due defendant on the date of the filing of Debtor's petition. See supra p. 135 ($1,726.24 + $275.52). Finally, Mr. Shinaberry, when questioned about the jurisdiction of that complaint, in personam or in rem, stated that he could not answer that question.
*138 Mr. Shinaberry admitted that the complaint asked for money damages and also admitted that, upon review of debtor's petition, he could not determine the vehicle to which defendant's lien attached. See Schedule B-4. Mr. Shinaberry repeatedly stated that the state court action complained of a postpetition conversion, yet, he could point to no allegation in the complaint alleging this action as postpetition. Furthermore, If the collateral no longer existed, as alleged in the state court complaint, and if the relief requested was monetary damages reflective of the outstanding unpaid indebtedness, Mr. Shinaberry, as an attorney with some 19 years of experience, knew that he sought a money judgment against Debtor for nonpayment of a preexisting loan, previously discharged in bankruptcy. Such a knowing and willful violation of one of the fundamental protections afforded by the filing of a bankruptcy petition, causes this court to consider Mr. Shinaberry's actions so seriously. In re Barbour, 77 B.R. 530, 17 C.B.C.2d 1277 (Bkrtcy. E.D.N.C.1987) (violations of the discharge injunction are not to be treated lightly; intentional violations will not be tolerated by this court).
Mr. Shinaberry asserted that Debtor failed to raise, as an affirmative defense to the state court action, his discharge in bankruptcy. Indeed, such an affirmative defense is unnecessary and has been since 1970.
Prior to 1970, the effect of a discharge was to create an affirmative defense that the Debtor could plead in any action brought on the discharged debt. A primary reason for the amendments was to effectuate the discharge and render needless its assertion as an affirmative defense in a subsequent state court action. In the usual case of discharge abuse or creditor harassment, suit would be brought in a local court after the granting of the discharge, and if the Debtor failed to plead the discharge affirmatively, the defense was deemed waived and an enforceable judgment could then be taken against him. Too often, the defense was in fact waived either through inadvertence, failure to be served or lack of means to obtain counsel. In any event, the former Debtor would find himself and his property subject to a judgment taken by default against him. Section 14f was enacted to prevent creditors from entering the arena of local courts and creating issues of waiver and default, and to restrain creditors holding such discharged debts from forcing the Debtor into any other forum or proceeding.
5 Collier on Bankruptcy ¶ 524.01 at 524-5 (15th ed. 1991).
In order to further drive home this court's annoyance with such an antiquated argument, it will quote further:
As stated in the report on this measure by the Senate Judiciary Committee, the major purpose of the proposed legislation is to effectuate, more fully, the discharge in bankruptcy by rendering it less subject to abuse by harassing creditors. Under present law creditors are permitted to bring suit in State courts after a discharge in bankruptcy has been granted and many do so in the hope the Debtor will not appear in that action, relying to his detriment upon the discharge. Often the Debtor in fact does not appear because of such misplaced reliance, or an inability to retain an attorney due to lack of funds, or because he was not properly served. As a result a default judgment is taken against him and his wages or property may again be subjected to garnishment or levy. All this results because the discharge is an affirmative defense which, if not pleaded, is waived.
S. 4247 is meant to correct this abuse.... The creditor asserting nondischargeability will have to file a timely application in the absence of which the debt will be deemed discharged. H.R. 18871 provides that at the same time notice is given to creditors of the date by which objections to discharge must be filed, creditors are also notified of the date by which applications to determine nondischargeability of their debts must be filed. When timely filed, the matter *139 will be heard in the bankruptcy court and final disposition made of it.
* * * * * *
The reasons behind the enactment of section 524(a), which is certainly comparable to and, in effect, amounts to a continuation of section 14f of the Act, include those which originally prompted the enactment of section 14f itself. With section 524(a)(2), however, congress has gone further and expanded section 14f(2) to encompass the enjoining of any act to collect a discharged debt such as dunning by telephone or letter, or indirectly through friends, relatives, or employees, harassment, threats of repossession and the like....
In essence, section 524(a) declares that any judgment rendered on a discharged debt in any forum other than the bankruptcy court is null and void as it affects the personal liability of the Debtor. Second, and perhaps more importantly, it contains an injunction prohibiting creditors holding discharged debts from (1) commencing an action on such debt....
Accordingly, should a creditor institute suit in a state court postdischarge, and obtain therein a judgment against the Debtor, such judgment is rendered null and void by section 524(a). The purpose of the provision is to make it absolutely unnecessary for the Debtor to do anything at all in the state court action.
Should the provisions of the discharge order be violated by a creditor subject thereto, such creditor will also have violated an injunction. He will thus be subject to citation for contempt in the bankruptcy court upon application of the Debtor.
Id. at 524-5-6, 524-7-9 (citations omitted). The court need say no more; defendant's argument is superfluous.
Having found that Mr. Shinaberry knowingly and willfully violated the discharge order entered pursuant to § 524, the court will, then, address Debtor's request for damages. Debtor's complaint requested $1,000 as compensatory damages and $1,500 as punitive damages. At trial, Debtor's counsel sought to amend its complaint, as a result of the almost one year pendency of the complaint and further expenses unnecessarily incurred due to defendant's flagrant violation, to request $10,000 as compensatory damages and $15,000 as punitive damages.
The court notes that there exists conflicting analysis concerning this court's ability to impose damages as a result of defendant's violation of the discharge order. Defendant's violation of § 524 permits Debtor to, minimally, recover reasonable attorney's fees incurred in defense of this action. See In re Wasp, 137 B.R. 71 (Bkrtcy.M.D.Fla.1992) (state court action violated § 524 and court awarded Debtor reimbursement for attorney's fees and costs incurred in defending state court action and in seeking relief from bankruptcy court); In re Brantley, 116 B.R. 443 (Bkrtcy.D.Md.1990) (Generally, the American rule governs the awarding of attorney's fees in federal court providing that each party should bear the costs of his own legal fees. There are three judicially created exceptions to the American rule based on the inherent equitable powers of a court: (1) when the litigant preserves or recovers a fund for the benefit of others; (2) when a losing party acts in bad faith, vexatiously, wantonly, or for oppressive reasons; or (3) when a defendant willfully disobeys a court order (citations omitted)); In re Burson, 107 B.R. 285, 21 C.B.C.2d 1478 (Bkrtcy.S.D.Cal.1989) (creditor violated § 524(a)(2) and Debtor would be permitted to recover reasonable attorney's fees incurred in defense of that action); In re Holland, 21 B.R. 681, 9 B.C.D. 385, 6 C.B.C.2d 1307 (Bkrtcy.N.D.Ind.1982) (violation of § 524 is punishable by contempt, awarding of attorney's fees and costs). However, because the court does not have sufficient evidence before it to determine whether Debtor's request for $10,000 compensatory damages is justified, it will grant Debtor ten days from the date of this opinion and order in which to file an affidavit detailing those amounts for which it seeks compensation; defendant will have ten days thereafter in which to object.
*140 Regarding Debtor's request for an award of punitive damages in the amount of $15,000, the court would like to carte blanch permit this award. It feels, compelled, however to analyze the request. Section 524 does not contain a subsection paralleling § 362(h). However, this court finds that § 105 empowers it to impose sanctions for violation of the discharge order. Barbour, 77 B.R. at 532. Additionally,
it is fair to conclude that all courts, whether created pursuant to Article I or Article III of the Constitution, do have inherent civil contempt power to enforce compliance with their lawful judicial orders, and no specific statute is required to invest a court with civil contempt power. This power is inherent in the authority to hear and determine legal disputes and it has been recognized at all times that the judicial power to issue an order carries with it the power to enforce the order.
* * * * * *
It would be ironic indeed and nothing more than an exercise in futility to grant a Debtor a discharge, together with a permanent injunction prohibiting the pursuit of the Debtor after discharge in an attempt to enforce discharged pre-petition debts, if the very court which granted the discharge would be powerless to enforce an obedience of the order and permit violation of the permanent injunction with impunity.
Matter of Miller, 81 B.R. 669, 676, 678-79, 16 B.C.D. 1187, 19 C.B.C.2d 712 (Bkrtcy. M.D.Fla.1988) (citations omitted). See also In re Power Recovery Systems, Inc., 950 F.2d 798 (1st Cir.1991) (it is well settled that bankruptcy courts are vested with contempt power); In re Skinner, 917 F.2d 444 (10th Cir.1990) (while bankruptcy courts do not have inherent civil contempt power, we conclude that congress granted them civil contempt power by §§ 105 and 157); In re Bowling, 116 B.R. 659 (Brktcy. S.D.Ind.1990) (though creditor's action do not quite rise to level of contempt, to warrant an award of punitive damages, court concludes that it is within its equity powers under § 105 to award damages).
It is difficult to assess damages to compensate [Debtors] for the humiliation, inconvenience and anguish they experienced because of [creditor's] lawsuit. [Debtor] testified that he moved to a new community after filing the bankruptcy petition to begin a new life. His efforts to finance a new home, however, were frustrated by the lawsuit filed by [creditor]. [Debtor] also was required to be away from his business to attend the hearing ... at a cost of at least $200 in income. The court finds that [Debtors] should be compensated in the amount of $500 for the damages they sustained as a result of [creditor's] intentional violation of the discharge injunction. Additionally, the Debtors incurred reasonable attorney's fees of $400 for which they should be compensated.
Barbour, 77 B.R. at 531.
The court finds that Debtor, in the instant situation, is entitled to damages as a result of defendant's violation of the discharge injunction. In re Myers, 18 B.R. 362, 18 B.C.D. 1124, 6 C.B.C.2d 347 (Bkrtcy.E.D.Va.1982), is determinative of the damages issue. In Myers, a creditor, postpetition, filed a state court action to recover personalty but requested the amount due under the sale contract. The court stated:
[t]his is more than scandalous. It is unlawful, abusive and dishonest. Unless a debt is declared by law or the court to be nondischargeable, creditors may not pursue a Debtor in personam. Indeed, creditors are enjoined from so pursuing a Debtor. 11 U.S.C. § 524. Any proper pursuit would be of the property itself, not a sou in money. It is not even entitled to the actual value should the [collateral] no longer exist.
Id. 18 B.R. at 363. Creditor, in that case, did not, subsequently, pursue that action. Id. The Myers court, however, stated that "the abuse perpetrated cannot be washed away with that after the hand has been caught in the proverbial jar." Id. That is,
*141 [creditor] is a sophisticated creditor and knows better. We mean for the injunction relative to discharge to be honored and it will not be unless the point is emphasized. Therefore, [creditor] is ... fined $10,000 for contempt for violation of the discharge injunction.
Id. at 363-64.
Additionally, Mr. Shinaberry's attitude warrants a finding of civil contempt to impose civil penalties. See In re Simonetti, 117 B.R. 708 (Bkrtcy.M.D.Fla.1990) (firm's obstinate failure to respond to calls and to correspondence made by Debtors' counsel to clear up this matter certainly caused the Debtors' damage and required the Debtors' counsel to request a hearing and appear in court to assert the rights of his clients and seek compensation for the damages; based on the totality of the picture, this court is satisfied that a cavalier attitude of the law firm representing creditor would certainly warrant to find them in civil contempt and to impose civil fine penalties in favor of the Debtors to compensate them for the damages they have suffered in the form of legal fees they have incurred which were necessary to assert their rights granted to them). Myers, supra, was entered in 1982; Debtor's request for $15,000 in 1992, appears appropriate and same will be assessed against Mr. Shinaberry and his client, jointly and severally.
As this opinion and order reflects, this court finds Mr. Shinaberry's conduct reprehensible and, accordingly, finds sanctions under Bankruptcy Rule 9011(a) appropriate. That rule provides:
[t]he signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, or to cause unnecessary delay, or needless increase in the cost of litigation or administration of the case.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney's fee.
Analogizing Bankruptcy Rule 9011 to Rule 11 Fed.R.Civ.P., the court notes that the test for imposition of sanctions is
whether the individual's conduct was reasonable under the circumstances. If the court finds that the alleged misconduct was not reasonable, the court must impose sanctions. The nature and amount of the sanctions, though, may vary depending upon the severity of the misconduct.
Mihalik v. Pro Arts, Inc., 851 F.2d 790, 792-93 (6th Cir.1988) (citations omitted). See also Century Products, Inc. v. Sutter, 837 F.2d 247 (6th Cir.1988) (the conduct of counsel that is the subject of sanctions must be measured by an objective standard of reasonableness under the circumstances (citations omitted)).
Finally, regarding Rule 11 sanctions, factors for the court's consideration include:
The first and most important factor is deterrence. Second, the sanctions are meant to compensate the party receiving the award for expenses incurred in litigating the improperly filed suit and the sanctions motion.... The third factor is mitigation.... Finally, there must be a consideration of the sanctioned party's ability to pay.
Danvers v. Danvers, 959 F.2d 601, 605 (6th Cir.1992).
Mr. Shinaberry filed the state court complaint on March 14, 1991. Plaintiff's Exhibit 1. The instant complaint was filed with this court on March 29, 1991. Mr. Shinaberry, on behalf of defendant, on May 20, 1991, filed an answer to Debtor's complaint and a counter-claim. A pretrial conference on Debtor's complaint was held on *142 June 26, 1991. On August 30, 1991, Debtor filed a motion for the court to make a decision on the record, to which defendant responded and requested dismissal of Debtor's complaint. The court, however, denied Debtor's motion and scheduled another pretrial conference. On November 15, 1991, the state court issued a judgment entry awarding judgment in favor of defendant in the amounts of $2,001.76 as compensatory damages, $5,000.00 as punitive damages and $1,260.00 as attorney's fees. A final pretrial conference was held in this court on November 22, 1991, scheduling this matter for trial on March 18, 1992. Given this factual chronology, the court is convinced, based upon Mr. Shinaberry's own testimony, that his conduct was in violation of Bankruptcy Rule 9011. His conduct was not reasonable and he pursued the state court action and asserted the meritless counter-claim in this court; sanctions must be imposed.
Debtor's filing of the instant complaint should, minimally, have put Mr. Shinaberry, an attorney with some 19 years of experience, on notice that a contested issue existed and that no further action should have been taken in the state court pending adjudication of the issues herein. Furthermore, as a result of Mr. Shinaberry's actions, defendant was awarded a judgment in excess of $8,000 ($2,001.76 + $5,000.00 + $1,260.00 = $8,261.76). This judgment, obviously, does not represent recovery for an in rem suit; it represents an in personam judgment. The damages awarded in that suit represent an attempt to collect a discharged debt as it includes the exact amount of the discharged debt, see supra p. 137, plus punitive damages and attorney's fees; that judgment does not represent recovery of the property, a $100 chassis. Not only did Mr. Shinaberry file a counter-claim with this court, but he proceeded to take a judgment in the state court. Mr. Shinaberry cites Herron v. Jupiter Transportation Co., 858 F.2d 332 (6th Cir.1988) stating that
litigants have "a continuing responsibility to review and reevaluate his pleadings and where appropriate modify them to conform to Rule 11."
Motion for Dismissal of Plaintiff's Complaint and Motion in Opposition to Decision on the Record Alone at 10 (quoting Herron, 858 F.2d at 335-36). Indeed, Mr. Shinaberry should have followed his own research and, minimally, evaluated his state court action after the initiation of Debtor's complaint. This court will quote further from Herron:
Failure to [review and reevaluate] permits the district court, within its discretion, to impose sanctions against the offending litigant or attorney when a reasonable inquiry would have disclosed that the complaint was either lacking in factual support or unwarranted by existing law.
* * * * * *
This position is consistent with similar Rule 11 cases that have concluded that an attorney and the litigant have a continuing obligation to review and reevaluate their pleadings, motions and other papers and upon discovery that such papers were without merit, to immediately dismiss the action at the risk of inviting the imposition of Rule 11 sanctions.
Id. at 336 (citations omitted). Mr. Shinaberry, In any event, should not have pursued the state court action, taking a judgment entry in an amount exceeding $8,000.
As previously stated, ad infinitum supra pp. 138-39, Mr. Shinaberry's actions, on behalf of defendant, mirror the abuse congress was attempting to eliminate in acting § 524(a). As in Simonetti, supra, this court finds Mr. Shinaberry's cavalier attitude and failure to "clear up this matter," minimally before trial, or earlier at the initiation of Debtor's complaint or one of the two subsequent pretrial conferences held upon Debtor's complaint, such egregious conduct that it is forced to impose sanctions under Bankruptcy Rule 9011 and to grant Debtor's request for $15,000 damages.
Mr. Shinaberry implied that he did not file any proceeding during the pendency of Debtor's case as he understood that Debtor would be reaffirming the debt owed defendant. The court is unsure how this inference *143 excuses Mr. Shinaberry's conduct in instituting the state court action. That is, once it became apparent, as it no doubt did, that Debtor would not be reaffirming the debt, Mr. Shinaberry, on behalf of defendant, could have requested an extension of time, under Bankruptcy Rule 4004(b), in which to investigate the possibility of a complaint. Additionally, defendant could have requested an examination of Debtor pursuant to Bankruptcy Rule 2004 in order to make inquiry of Debtor regarding the collateral and its disposition or whereabouts. Lastly, defendant had alternative remedies available to it as a result of Debtor's failure to reaffirm, redeem or surrender, including seeking relief from stay, permitting repossession of its collateral, abandonment of the collateral and, if appropriate, denial of Debtor's discharge for failure to comply with a court order. See Matter of Bayless, 78 B.R. 506, 511 (Bkrtcy. S.D.Ohio 1987).
Mr. Shinaberry also insinuated that Debtor failed to turnover the collateral. The court is, however, unaware of any duty imposed upon a Debtor to arrange for transportation or pickup of collateral pledged to a secured party. Furthermore, Debtor testified that he informed defendant that the chassis was available, and still available at the time of trial, to defendant; it is located at his former residence.
Defendant filed a counterclaim alleging that Debtor's complaint was frivolous. Clearly, the court finds this assertion not well taken. Additionally, defendant's counterclaim references § 523. Any cause of action asserted by defendant under § 523 is untimely and, again, not well taken. The court notes that defendant's counterclaim is identical to paragraphs 1 through 11 of its state court complaint, further indicia that its state court action was a proceeding in personam. Based upon the foregoing discussion, defendant's counterclaim should be dismissed.
Finally, defendant cites In re Brugin, Case No. 90-0209, 1991 WL 378166 (Bkrtcy.N.D.Ohio Aug. 8, 1991), in defense of its actions. The court finds that case inapposite. In Brugin, Judge Speer found the state court complaint reflected conversion of collateral, not recovery of a discharged debt. As stated, this court finds defendant's state court complaint sought recovery of the discharged debt. At trial, Mr. Shinaberry testified that, at the time of the filing of the state court action, he was not sure whether Debtor had converted the collateral prepetition or postpetition. See supra p. 136. In fact, although not relevant to adjudication of the issues herein, the court finds that no conversion occurred. Debtor stated that his son had removed some items from the chassis; this court finds that this represents nothing more than that a few "nuts and bolts" were taken from the chassis. Also, that collateral remains available to defendant today. Additionally, Judge Speer, in Brugin, found that the creditor was attempting to recover damages to the property; here, the court found creditor was attempting to recover a debt due it. The record in Brugin reflected that the creditor, from affidavits, unsuccessfully attempted to recover the collateral; here, Debtor testified that the collateral was available for defendant at his former residence. Lastly, in Brugin, the creditor requested and was granted relief from stay to proceed against the collateral; here, defendant made no such request.
In light of the foregoing, it is therefore
ORDERED that defendant cause the November 15, 1991 judgment entry in the municipal court of Toledo, Lucas County, Ohio to be expunged from that record and provide evidence of same with this court within ten days of the date of this opinion and order. It is further
ORDERED that defendant's counterclaim be, and hereby is, dismissed. It is further
ORDERED that Debtor/plaintiff file within ten days of the date of this opinion and order an affidavit detailing amounts for which he seeks compensatory damages; defendant is granted ten days thereafter in which to object. It is further
ORDERED that Debtor/plaintiff Dan Kenneth Braun be, and hereby is, granted judgment in the amount of $15,000 against defendant Champion Credit Union and its *144 counsel, Richard A. Shinaberry, jointly and severally, as sanctions.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2896883/
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NO. 07-08-0095-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 6, 2008
______________________________
VICTOR GRAJEDA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 84
TH
DISTRICT COURT OF OCHILTREE COUNTY;
NO. 4168; HON. WILLIAM D. SMITH, PRESIDING
_______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Victor Grajeda (appellant) plead guilty to driving while intoxicated without the benefit of a plea agreement before the trial court. The court found him guilty and assessed punishment at six years in prison. Subsequently, appellant filed a motion for new trial and claimed ineffective assistance of counsel. A hearing was held and at the close of the hearing, the motion was denied. Appellant now contends that 1) the trial court erred in denying his motion for new trial and 2) he received ineffective assistance of counsel. We affirm.
Issues One and Two - Motion for New Trial
Again, through his two issues, appellant contends that he received ineffective assistance of counsel. This is allegedly so because 1) he was unaware of the consequences of his guilty plea including the possibility of his imprisonment, 2) trial counsel failed to contact or call witnesses to testify on appellant’s behalf, and 3) trial counsel failed to introduce any evidence on appellant’s behalf except for medical records.
We are not the first to consider appellant’s assertion of ineffective assistance. As the record discloses, the trial court too had that opportunity via the motion for new trial. Moreover, upon hearing evidence and argument of both appellant and prosecutor, it decided to deny the motion. So, because appellant is effectively asking us to review the trial court’s decision
viz
that motion, we recognize that the standard of review is one of abused discretion.
Holden v. State
, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (stating that an appellate court reviews the trial court’s decision to deny a new trial under the standard of abused discretion). This in turn means that to the extent the decision rests on such matters as the resolution of conflicts within the evidence, the development of reasonable inferences of fact from the evidence presented, and the consideration of a witness’ credibility, we are not without limitations. Indeed, authority obligates us to defer to the manner in which the trial court resolved those conflicts or found a witness’ testimony credible.
Id
. Nor are we able to supplant our views for those of the trial court, so long as its decision finds support in the record.
Simply put, if the tenor of the evidence before the trial court would allow reasonable minds to disagree as to the ultimate facts, then the trial court’s decision fell within that zone of reasonable disagreement. If it did that, then it did not abuse its discretion in denying appellant a new trial. And, that is the situation here.
First, regarding appellant’s contentions that he did not know or understand the consequences of entering his guilty plea and that counsel did not inform him of the possibility of being imprisoned, the trial court could well have found the testimony to that effect incredible. As West Texans are prone to say, “this was not his first rodeo.” He had three prior felony convictions and four misdemeanor convictions. Of those seven, five were for operating a motor vehicle while intoxicated. The pre-sentence report tendered into evidence also revealed that appellant had served some jail time as a result of one or more of those convictions as well as probation. To this we add appellant’s testimony that he spoke with two lawyers in addition to his ultimate trial attorney and that the first two lawyers he spoke with told him that he would “not” receive probation and that he was going to go to jail. So too is there evidence in the record indicating that appellant contradicted some of his own testimony. The latter circumstance, coupled with his experience with the criminal justice system, his prior convictions for driving while intoxicated, his prior terms in jail due to one or more of those convictions, and his discussions with lawyers who told him he was going to jail, provided the trial court with basis to discredit his allegations that he knew neither the effect of his guilty plea nor the possibility that he would be imprisoned. In other words, the trial court could have legitimately chosen not to believe appellant.
(footnote: 1)
Second, regarding the allegation about trial counsel’s failure to interview and seek favorable witnesses or present favorable evidence, trial counsel did not testify at the hearing. So, we are left to guess about the motives and efforts, if any, he actually had or made with regard to the discovery of evidence favorable to appellant. This is problematic because we generally are to presume that counsel had legitimate trial strategies for doing what he did.
Mata v. State
, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). And, while it may be that counsel and appellant did not speak about the existence of favorable evidence, that does not necessarily mean that counsel made no effort to find any.
Third, and most importantly, appellant had to show not only that trial counsel erred but also that the errors caused him to suffer prejudice.
Strickland v. Washington
, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). From the tenor of the record before us, the trial court may well have concluded that the second element went unproven. Again, appellant was the subject of seven prior convictions, five of which involved his driving while intoxicated. And, though he had received probation and opportunity to correct his behavior in the past, that did not seem to dissuade him from continuing to engage in criminal conduct. Moreover, of the several witnesses he called at the hearing on the motion for new trial, most if not all talked about how good a neighbor, father, husband or worker he was. Yet, it would not be unreasonable for the trial court to conclude that despite appellant being a “good” person, receiving minimal punishment or probation would not cause him to permanently change his ways. Simply put, the record contained basis upon which reasonable minds could differ on whether the purported errors committed by trial counsel affected appellant’s conviction and punishment in any way. Thus, we cannot say that the trial court’s decision to reject appellant’s claim of ineffective assistance fell outside the zone of reasonable disagreement or evinced an instance of abused discretion.
Accordingly, we overrule each of appellant’s issues, reject the proposition that the trial court erred in denying appellant a new trial due to trial counsel’s purported ineffective assistance, and affirm the trial court’s judgment. Furthermore, we deny the State’s motion to dismiss as moot.
Brian Quinn
Chief Justice
Do not publish.
FOOTNOTES
1:And, even if appellant’s third attorney opined that he could secure probation for appellant and his efforts were unsuccessful, that does not necessarily give rise to a claim of ineffective assistance.
See
Flores v. State
, 18 S.W.3d 796 (Tex. App.–Austin 2000, no pet.) (holding that a defendant's reliance on his attorney's professional opinion does not render a guilty plea involuntary).
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01-03-2023
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09-08-2015
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