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https://www.courtlistener.com/api/rest/v3/opinions/1032729/	deter police misconduct" and therefore would not further the purpose of the rule. Davis v. United States, 564 U.S. , _, 131 S. Ct. 2419, 2423- 24, 2427 (2011); see also United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (9th Cir. 2012), cert. denied, 568 U.S. , 133 S. Ct. 994 (2013). Mosby fails to explain why this court should deviate from the reasoning in Davis. In addition, Mosby failed to demonstrate that the district court erred in concluding that he did not have a reasonable expectation of privacy in the parking lot of the apartment complex where the device was placed on his car. See State v. Harnisch, 113 Nev. 214, 221-22, 931 P.2d 1359, 1364-65 (1997), clarified on denial of reh'g, 114 Nev. 225, 954 P.2d 1180 (1998). Therefore, the district court did not err in denying the motion to suppress. Second, Mosby argues that the district court erred in denying his motion for a mistrial based on the State's reference to inadmissible evidence during its opening statement. We discern no abuse of discretion. See Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417 (2007) (reviewing district court order denying mistrial for abuse of discretion). The State's remarks did not refer to the repeat offender program and thus did not mention evidence that had been precluded. Further, the evidence related to the surveillance of Mosby on the day of the offense was relevant, see NRS 48.025 (providing that relevant evidence is generally admissible), and did not refer to any uncharged bad acts, see NRS 48.045(2) (limiting use of uncharged bad acts evidence). Third, Mosby contends that the district court erred in imposing the habitual criminal sentences absent a jury trial on the issue in accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). Because we have previously concluded that Apprendi's holding does not apply to SUPREME COURT OF NEVADA 2 (0) 1947A habitual criminal adjudications, O'Neill v. State, 123 Nev. 9, 10-11, 153 P.3d 38, 39 (2007), we conclude that Mosby is not entitled to relief on this claim. Fourth, Mosby asserts that the State presented insufficient evidence at trial to sustain his convictions. This claim lacks merit because the evidence, when viewed in the light most favorable to the State, is sufficient to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). The jury heard evidence that Mosby drove to a bus stop, boarded a bus, and was observed taking wallets from three people and touching the coat of a fourth person in a probing manner. After his arrest, Mosby was discovered in possession of cash from one victim's wallet; wallets belonging to two other victims, one of which had the victim's identification and credit cards; Canadian currency belonging to some of the victims; and a driver's license bearing the name of one individual and number corresponding to the license of another individual. Based on this evidence, we conclude that a rational juror could reasonably find that Mosby intended to commit larceny when he boarded the bus, NRS 205.060(1) (burglary defined), took property, including identification and credit cards, from several people with the intent to appropriate it for himself, NRS 205.270(1) (larceny from the person defined); NRS 205.690(1) (obtaining credit or debit card without consent of cardholder), attempted to take property from another, MRS 205.070(1); NRS 193.330(1) (attempt defined), and used the identification of another to delay or avoid prosecution, NRS 205.463(2) (obtaining and using personal identification information of another defined). SUPREME COURT OF NEVADA 3 (0) 1947A Having reviewed Mosby's contentions and concluded that they lack merit, we ORDER the judgment of conviction AFFIRMED. J. J. cc: Hon. Adriana Escobar, District Judge Clark County Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk SUPREME COURT OF NEVADA 4 (0) 1947A	01-03-2023	07-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/2592599/	37 N.Y.2d 614 (1975) In the Matter of the Arbitration Between Susquehanna Valley Central School District at Conklin, Appellant, and Susquehanna Valley Teachers' Association et al., Respondents. Court of Appeals of the State of New York. Argued September 10, 1975. Decided October 28, 1975. Frank C. Shaw for appellant. Ira Paul Rubtchinsky and Bernard F. Ashe for respondents. Judges JASEN, GABRIELLI and JONES concur with Chief Judge BREITEL; Judge FUCHSBERG concurs in a separate opinion in which Judge WACHTLER concurs; Judge COOKE taking no part. 616Chief Judge BREITEL. In a special proceeding under CPLR 7503 for a permanent stay of arbitration demanded by a teachers' association under teacher grievance procedure, the school district appeals. The Appellate Division had affirmed an order directing it to proceed to arbitration under a collective bargaining agreement. The alleged grievance still in issue relates to a staff reduction in the 1973-1974 school budget. The reduction had been included in the budget allegedly contrary to the collective bargaining agreement which had stabilized average class sizes and staff size. The agreement also provided for hiring two additional teachers for the academic year in question. Contending that the staff reduction violated the collective bargaining agreement, the teachers' association demanded arbitration, seeking reinstatement of the abolished positions. In its petition, the school district maintained that staff size, as a matter of law and policy, is within the board's exclusive prerogative, and therefore not arbitrable. Prefatorily, it is important to note that the expansive rule expressed in Board of Educ. v Associated Teachers of Huntington (30 N.Y.2d 122, 130) that, in the absence of statutory provisions which prohibit collective bargaining as to a particular term or condition, any subject matter in controversy between a board of education and its teachers is subject to arbitration under a broad arbitration clause, has been restated, and more accurately, in Syracuse Teachers Assn. v Board of Educ. (35 N.Y.2d 743, 744). In the Syracuse case, it was said that "collective bargaining under the Taylor Law (Civil Service Law, § 204, subd 1) has broad scope with respect to the terms and conditions of employment, limited by plain and clear, rather than express, prohibitions in the statute or decisional law". Yet even this is not the sum of it. Public policy, whether derived from, and whether explicit or 617 implicit in statute or decisional law, or in neither, may also restrict the freedom to arbitrate. School matters are but one example; indeed, matters affecting marriage, child custody, and the like, are not subject to unbridled arbitrability, as might be the case in a private building construction agreement (see, e.g., Schneider v Schneider, 17 N.Y.2d 123, 127-128; Sheets v Sheets, 22 AD2d 176, 178; Matter of Fence v Fence, 64 Misc 2d 480, 483-484 [POLIER, J.]; see, generally, Arbitration Alimony Support Custody, Ann., 18 ALR 3d 1264; Domke, Commercial Arbitration, § 13.09, pp 128-129). Key to the analysis is that the freedom to contract in exclusively private enterprises or matters does not blanket public school matters because of the governmental interests and public concerns which may be involved, however rarely that may ever be. In this case, however, it has not been shown and it does not appear that there is any restrictive policy, however derived, limiting the freedom to contract concerning staff size. Turning directly to the issue at hand, there is a simple dichotomy. A marked distinction exists between a duty to engage in collective bargaining, and a freedom to agree to submit controversies, whether or not subject to mandatory bargaining, to arbitration. Illustrative of this dichotomy and distinction are Matter of West Irondequoit Teachers Assn. v Helsby (35 N.Y.2d 46) and Matter of Board of Educ. v Associated Teachers of Huntington (30 N.Y.2d 122, supra). In the West Irondequoit case (supra), the court held that the Public Employment Relations Board, within its authority under article 14 of the Civil Service Law (the Taylor Law), was empowered to determine that, since class size was not a term or condition of employment, it was not subject to mandatory collective bargaining (pp 51-52). On the other hand, in the Huntington case (supra), it was held that certain terms and conditions of employment were subjects about which the board of education and its teachers were free to agree to arbitrate, without violating statute, decisional law, or public policy (p 129). The present case involves enforcement of an agreement to arbitrate; hence, the rule of the Huntington case (supra) determines the result. It does not involve a compulsion to bargain collectively, in which event the rule of the West Irondequoit case would be applicable. Thus, the board of education was always free to bargain *618 voluntarily about staff size and was also, therefore, free to agree to submit to arbitration disputes about staff size. Accordingly, the order of the Appellate Division should be affirmed, without costs. FUCHSBERG, J. (concurring). We all agree that the arbitration of the attempted staff reduction here is prohibited neither by express provisions in any relevant statute (see Board of Educ. v Associated Teachers of Huntington, 30 N.Y.2d 122), nor by any "plain and clear" statutory language (see Syracuse Teachers Assn. v Board of Educ., 35 N.Y.2d 743, 744), and that that is so irrespective of whether the number of teachers to be maintained on staff as a result of class size specifications is bargainable or not. (See Matter of West Irondequoit Teachers Assn. v Helsby, 35 N.Y. 2d 46.) That being dispositive, I most respectfully suggest that it is a mistake for the majority to write, in restrictive tones and in vague generalities, of public policy "concerns which may be involved, however rarely that may ever be" even though "it does not appear that there is any restrictive policy" involved in this case. The notion that courts may freely assume the role of arbiters of public policy is a very much exaggerated one. Most especially, they should avoid doing so in the face of a statutory scheme which bespeaks its own policy considerations, public policy having indeed been authoritatively defined as "found in the Constitution, the statutes or judicial records" of our State. (See Mertz v Mertz, 271 N.Y. 466, 472 [LEHMAN, J.]; 20 Am Jur 2d, Courts § 64, pp 430-431.) It can hardly be disputed that legislative concern, activity and enactment are at the heart of the sensitive and growing field of labor relations in the public sector, not only in New York, but throughout the Nation. (See City of Amsterdam v Helsby, 37 N.Y.2d 19 [concurring opn].) Pragmatically, I also believe that the public policy pronouncements made by the majority hold out an "open sesame" of hope to those who would have the courts contravene the well-recognized statutory preference for bargaining and arbitration (Civil Service Law, § 200, subd [c]; see Matter of Associated Teachers of Huntington v Board of Educ., 33 N.Y.2d 229, 236) and will but encourage proliferation of litigation rather than composition of differences in public employment disputes. Order affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1668981/	89 So.2d 373 (1956) 230 La. 867 Mrs. Vola Evelyn PULLEN v. The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., et al. In re V. J. MITCHELL Applying for Certiorari or Writ of Review, Parish of Orleans. In re Mrs. Vola Evelyn PULLEN Applying for Certiorari or Writ of Review, Parish of Orleans. Nos. 41919, 41920. Supreme Court of Louisiana. May 7, 1956. Rehearing Denied June 29, 1956. Joseph A. Gladney, Baton Rouge, Amos L. Ponder, Jr., Simon & Wicker, Warren M. Simon and Thomas C. Wicker, Jr., New Orleans, for petitioners. Montgomery, Barnett, Brown & Sessions and Cicero C. Sessions, New Orleans, for intervenor and appellant. Porteous & Johnson, Wm. A. Porteous, Jr., Parnell J. Hyland, Weiss & Weiss and S. Paul Weiss, Jr., New Orleans, amici curiae. Deutsch, Kerrigan & Stiles, New Orleans, for defendant-respondent. WATKINS, Justice ad hoc. This proceeding, which calls for the interpretation of certain provisions of a policy of public liability insurance, arises from an action in tort, in response to which exceptions of no cause of action and no right of action were filed. Hence, it is before us upon the basis of the allegations of fact shown by the pleadings and the accompanying documents, which disclose the pertinent factual situation hereinafter set out. L. Edward Pullen was engaged as a truck driver for Southern Equipment and Tractor Company (hereinafter referred to as Southern) on April 14, 1952, and in the course and scope of his employment was helping in loading a dragline onto a motor truck. V. J. Mitchell had traded in the dragline on the purchase of new equipment from Southern and, at the latter's request, was helping to load it onto the truck. Mitchell was operating the dragline in the act of loading, and when the boom came into contact with a high tension electric wire Pullen was electrocuted. It is alleged that Mitchell was an independent contractor and that his negligence was the cause of Pullen's death. At the time of the accident a policy of public liability insurance written by the Employers' Liability Assurance Corporation, Ltd. (hereinafter referred to as Employers') was in force and affected the dragline 374 (which was included in the policy definition of automobile) and insured Southern, and also (under the omnibus clause) any persons using it with the permission of such named insured, against bodily injury to a maximum of $100,000 for each person (coverage A). The workmen's compensation insurer of Southern at that time was Maryland Casualty Company (hereinafter referred to as Maryland), which was also the public liability insurer of Mitchell, the applicable limit of its policy being $10,000. The widow of Pullen instituted this action against Mitchell (the alleged tort feasor) and Employers' (assertedly the public liability insurer under the omnibus clause of its policy issued to Southern) to recover damages for the death of her husband. Mitchell denied liability and called in warranty his codefendant, Employers', invoking the additional insured provisions of the mentioned omnibus clause of the latter's policy in which Southern was the named insured. Maryland intervened in the suit, claiming indemnification from Employers' for workmen's compensation payments required of it on account of Pullen's death. Employers' filed exceptions of no cause or right of action to (a) plaintiff's petition, (b) Mitchell's call in warranty and (c) Maryland's petition of intervention. The District Judge sustained the exceptions and rejected all demands made against Employers'. Appeals to the Court of Appeal, Orleans Circuit, resulted in an affirmance of the judgment. See 72 So.2d 353. On the applications of plaintiff and Mitchell certiorari was granted to review the judgment, largely because the important question involved is res novo in the jurisprudence of this state. The theory of the demands of plaintiff, of Mitchell and of Maryland as against Employers' is that Mitchell, the tortfeasor, is an additional insured under the omnibus coverage of the liability policy, as follows: "Definition of `Insured'. "The unqualified word `insured' includes the named insured and also includes * * (2) * * * any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured. * * ." No question is raised by Employers' under the exceptions as to the defendant Mitchell being an insured under the provisions of the omnibus clause of its liability policy. Hence, for the purposes of the exceptions, he was under the coverage of the policy and was insured by Employers' against liability for damages. Defending under the exceptions of no cause of action, and directing attention to the admitted fact that the decedent Pullen was an employee of (and acting within the scope of his employment with) Southern when the accident occurred, Employers' invokes and relies on certain exclusions, the interpretation of which is the crucial point in the case, defined in the policy as follows: "This policy does not apply: " * * * * * * "(c) under Coverages A and B * * * to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law; "(d) under Coverage A, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment * * * of the insured * * ." To such defense the plaintiff, Mitchell and Maryland respond that the exclusions "mean simply that coverage is denied only 375 as to injury to or death of an employee of the insured against whom liability therefor is sought to be imposed", and that since the decedent Pullen was not in the employment of Mitchell, the omnibus insured and the tort feasor from whom damages are demanded herein, the exclusions are inapplicable. Thus, the only question raised by the exceptions involves the interpretation of the exclusion clause. That question is whether the defendant Mitchell is "the insured" referred to in that clause as the insured who is excluded from coverage, or, to put it more precisely, from whom coverage is withdrawn, by the provisions thereof. For the sake of certainty in delineating the problem to be resolved, we refer to the judgment of the appellate court, which accurately states the issue, as well as its position and that of the parties, 72 So.2d 353, 355, as follows: "Appellants contend that whereas the claim arose by virtue of the fault of an omnibus insured, properly construed, the word `insured' where it occurs in the exclusions should be treated as referring to the person to whom the omnibus coverage clause applies and not to the named insured, and therefore it should be taken to refer solely to Mitchell. They argue, consequently, that since Pullen was not in the employ of Mitchell and that as Mitchell was not liable for any workmen's compensation benefits, the exclusions relied upon by appellee have no application and the omnibus coverage afforded Mitchell is unaffected thereby. "An examination of the policy leads to the conclusion that it is not open to such a construction as appellants contend for. The contract states specifically and unambiguously that `the unqualified word "insured" includes the named insured.' To hold for appellants would necessitate striking out of the policy such quoted language of the insuring agreements. (Italics ours.) "Such definition of the `insured' in the omnibus clause has the effect of placing the persons covered by the omnibus clause in exactly the same position as the named insured, and subject to all of the conditions of the policy as they would apply to the named insured, and subject to all the limitations upon coverage set forth in the policy. * * " It will be observed that the court made specific reference to the language of the omnibus clause in construing the meaning and import of the word "insured" in the exclusion clause. The liability policy, the omnibus clause and the exclusion clause were clearly designed for certain express purposes. They evince such purposes by their very nature, viz.:the policy is intended to offer protective coverage, the omnibus clause to describe its extent, and the exclusion clause to define its limitations. And each should be construed in the light of its objects and purposes. The omnibus clause states with unmistakable certainty that "the unqualified word `insured' includes the named insured", but it also states with equal certainty that it includes the omnibus or additional insured. Thus, the word "insured" relates not only to the named insured, but also to the omnibus insured. Indeed, it can be said to cover, comprehend, include and refer to every character of insured covered or intended to be covered by the policy, whether the named insured, the omnibus insured, the additional insured, or any other insured. The omnibus clause, by its own term and title and its use of the word "includes", indicates extensiveness and comprehensiveness and an evident purpose and intent to refer to any and every person entitled to protection under the policy. It draws no distinctions except as shown by the selfevident fact that the named insured and the 376 omnibus insured are separate and distinct persons. It defines no relationship other than that the named insured and the omnibus insured are both included under the coverage of the same liability policy. It describes and identifies no particular insured, because there is nothing in the word "insured" as used in the clause that indicates, or even suggests, a specific reference to the named insured or any other insured. The omnibus clause, in the sense in which it uses the unqualified word "insured", makes potential reference to every insured, and thus evidences its purpose and intent to offer protective coverage to any and every insured defined in its provisions. And that is all the omnibus clause and the unqualified word "insured" used therein can be held to mean. Since it is illogical to suppose that it was designed to do the double duty of describing both the inclusions and exclusions of policy coverage, it is reasonable to conclude that it was intended to extend coverage only. Hence, the omnibus clause is intended to extend, and not to limit, coverage. On the other hand, the very nature of the term and title of the exclusion clause suggests that it is intended to delimit and restrict coverage. It is necessarily exclusive instead of inclusive, restrictive rather than comprehensive. It is quite clearly designed to identify and point out such persons who are not entitled to the protective coverage of the policy. While the unqualified word "insured" used in the omnibus clause refers to every insured covered by the policy, it does not follow that the use of the same word in the exclusion clause makes the same inclusive reference to every insured. It is obvious that to import such meaning into the exclusion clause would not only do violence to the policy purpose of coverage, but would destroy it by its suicidal implication of absolute nullity by comprehensive exclusion. Comprehensive inclusion under the omnibus clause followed by comprehensive exclusion under the exclusion clause would be equivalent to a lease contemplating eviction before or simultaneously with occupancy. Such use and purpose are so thoroughly inconsistent with, and utterly repugnant to, the policy intent of protective coverage, that any consideration thereof in the interpretation of the omnibus and exclusion clauses is intolerable. And such use is not only in conflict with policy purpose, but it is also at variance with the purposes and designs of the respective clauses. It thus becomes evident that the meaning given to the unqualified word "insured" in the omnibus clause does not necessarily apply in, and can hardly extend to, the exclusion clause, and that any attempt to construe the use of the word in one clause by reference to the other clause obscures and confuses, rather than clarifies, the meaning of both the word and the clause. It is apparent, therefore, that the true and proper use and meaning of the unqualified word "insured" is directly related to the particular clause in which it is incorporated, that the word becomes merged with, or submerged in, the context of the clause and thus savors of its flavor, that it is not so much the word that gives meaning to the clause as it is the clause that gives meaning to the word, and that the word has a meaning only in the sense in which it is used in a particular clause. Hence, the word has no distinct meaning apart from that of the clause in which it is used, and it must be read and considered in the light of the adjunctive or descriptive language of that clause, as well as in view of its purpose and intent, and thus must partake of the meaning of the clause itself. Thus, in the omnibus clause the word has the comprehensive meaning of that clause in accordance with its language, purpose and design, while in the exclusion clause it bears the stamp and import of that particular clause and has a restrictive meaning. In the final analysis, it is the meaning of the clause, rather than that of a single word, that requires interpretation. Since the omnibus clause extends coverage only and points out no exclusions, the identity of the insured intended to be excluded 377 or withdrawn from the benefits of policy coverage cannot be found in the omnibus clause, but must be sought within the perimeter and in the language of the exclusion clause. In the absence of other related provisions (and none have been pointed out except the unwarranted reference to the omnibus clause), it is the only area of the policy defining the terms and conditions of exclusion. The exclusion clause must necessarily be examined and interpreted in the light of its own design and intent, as well as in view of the objects and purposes of the policy. Once coverage has been extended, as it is quite clearly the purpose of the policy to do and as has been done here, it should be withdrawn only when exclusion is established with certainty. And because comprehensive exclusion is violative of the purpose and intent of policy coverage, exclusion must necessarily be specific and not general. It is specific, as distinguished from comprehensive, when it particularly identifies the insured or insureds intended to be excluded. The exclusion clause, as its name implies, sets forth the traits, characteristics and circumstances that mark an insured for exclusion. And the insured or insureds to be excluded must bear the marks and traits, or conform with the circumstances, described and particularized in the exclusion clause as the basis for exclusion. The pertinent language of the exclusion clause shown hereinabove is as follows: "This policy does not apply: "(c) * * to any obligation for which the insured * * * may be held liable under any workmen's compensation law; "(d) * * * to bodily injury to * * * or death of any employee of the insured while enaged in the employment * * * of the insured * * ." Under the foregoing provisions, an insured, who may be liable for workmen's compensation or whose employee may suffer injury or death while engaged in his employment, is excluded from coverage. The basis for exclusion is the existence of an employer-employee relationship between the insured and the injured, and the insured must be identified as the employer to be subject to exclusion. In the absence of an employer-employee relationship between the insured and the injured, exclusion does not apply to the insured, and the latter remains under the protective coverage of the policy. This brings us to the question initially stated: whether Mitchell is "the insured" who is marked and identified by the provisions of the exclusion clause as the insured subject to exclusion from coverage. The pleadings describe Mitchell as an independent contractor, from which no implication can be drawn showing any other kind of relationship between him and Southern. Both the pleadings and the policy show Mitchell and Southern to be separate and distinct individuals, and the pleadings disclose that they have separate and distinct interests. There can hardly be any dispute as to whether Mitchell is the insured sought to be excluded from coverage by the exceptions, because he is the only insured against whom liability is sought and through whom Employers', the exceptor, is sought to be held. Insofar as the pleadings are concerned, there is no other insured involved in this proceeding. But even if any other insured or any number of insureds were involved directly or indirectly and whether or not their liability was sought, the test of identification for exclusion must be applied to each specifically and not to all collectively, as heretofore shown, and the exclusion or non-exclusion of any insured has no reference or relevance to that of any other insured where there is no connection or relationship between them. In this case, Mitchell and Southern are separate, distinct and unrelated individuals with separate and distinct interests, and under the pleadings before us Mitchell is the only insured from whom liability is 378 demanded and who is sought to be excluded. Therefore, he is unquestionably the relevant insured here, and the test of the exclusion clause must be applied to him to determine whether he is an insured whose identity marks him for exclusion from coverage. The basis for exclusion (supra) is the existence of an employer-employee relationship between the insured and the injured, and identification of the insured as employer. The undisputed facts presented for consideration under the exceptions show that there was no relationship whatsoever between Mitchell and the decedent Pullen, which circumstance emphasizes total lack of any relationship between them as employer and employee, the sine qua non for exclusion. Thus, there is no basis for excluding Mitchell, and he remains under the protective coverage of Employers' liability policy. Accordingly, for the reasons assigned, the judgment of the Court of Appeal, Orleans Circuit, and the judgment of the district court are reversed, annulled and set aside. It is now ordered, adjudged and decreed that there be judgment herein overruling the exception of no cause of action; and that this cause be remanded to the district court for proceedings in accordance with law and not inconsistent with the views herein expressed. DUPONT, Justice ad hoc concurs with written reasons. HAMITER, J., dissents with written reasons. HAWTHORNE, J., dissents, and concurs in the dissenting opinion of HAMITER, J. McCALEB, J., dissents with written reasons. SIMON, J., recused. DUPONT, Justice ad hoc (concurring). The cause of action herein is directed at (1) V. J. Mitchell and (2) the Employers' Liability Assurance Corporation, Ltd., as his liability insurer, in solido. Mrs. Pullen contends that her husband's death was due to the negligence of Mitchell, an independent contractor, and that when Mitchell became liable under the law he was covered and protected against liability under an insurance policy issued by Employers' Liability Assurance Corporation which was then and there in full force and effect. There is no dispute as to Mitchell meeting coverage requirements as specified under the heading "Definition of Insured" contained in said policy. There is disagreement, however, only as to whether or not the said exclusion provisions of said policy deprive the tortfeasor Mitchell and Plaintiff Mrs. Pullen from the protection and benefits of said policy of liability insurance. An examination of the pertinent provisions of said policy reveals that an insured (obviously including both the named and also the omnibus insured) is not entitled to the protection and insurance benefits afforded by said policy only in those cases where the person negligently injured or killed by him is an employee of the particular insured who may be held liable on any obligation under the workmen's compensation law. Certainly, there are no words, contained anywhere in said policy, which recite, or could be interpreted to mean, that any insured, covered in the definition of insured in said policy, would not be protected against liability due to his negligence in injuring or causing the death of a person not employed by him or to whom he is not obligated under the workmen's compensation law. And words, providing for exclusions and exceptions in liability insurance contracts, must be clearly set forth in the policy and cannot under any rules of law or equity be supplied by the court to enlarge or supplement the exclusion provisions of said policy. 379 It appears, therefore, that "since Pullen was not in the employ of Mitchell and that as Mitchell was not liable for any workmen's compensation benefits, the exclusions relied upon by appellee have no application and the omnibus coverage afforded Mitchell is unaffected thereby." HAMITER, Justice (dissenting). In holding untenable the contention of the claimants herein (plaintiff, Mitchell and Maryland), and in sustaining the defense of Employers', the Court of Appeal made specific reference to the definition contained in the omnibus clause under which Mitchell became an additional insured and it concluded that, in view of the definition, he (Mitchell) was subject to the same conditions and limitations respecting the policy's coverage as was the named insured, Southern. Thus, to quote from the opinion of that tribunal, 72 So.2d 353, 355, it observed: "An examination of the policy leads to the conclusion that it is not open to such a construction as appellants contend for. The contract states specifically and unambiguously that `the unqualified word "insured" includes the named insured.' To hold for appellants would necessitate striking out of the policy such quoted language of the insuring agreements. (Italics ours.) "Such definition of the `insured' in the omnibus clause has the effect of placing the persons covered by the omnibus clause in exactly the same position as the named insured, and subject to all of the conditions of the policy as they would apply to the named insured, and subject to all the limitations upon coverage set forth in the policy. Hence, since Pullen was an employee of Southern Equipment & Tractor Co., the named insured, the latter was liable to his widow under the compensation statutes, and so Pullen's death was excluded from coverage whether the person causing the death be the named insured or a person to whom the omnibus clause applies, even though the latter is not liable for the providing of the compensation benefits. If a contrary view were to be taken, it would be equivalent to saying that the insurer's liability is greater as to Mitchell, an omnibus insured, than it would have been to Southern Equipment & Tractor Co., if said named insured through negligence on its part had been responsible for Pullen's death." With such conclusion and observation I fully agree. It may be added that to give the exclusions the meaning that claimants contend for, and thus to overcome the plain definition contained in the omnibus clause that the unqualified word "insured" includes the named insured as well as an additional insured, there would have to be written into such exclusions a restrictive phrase such as the "employee of the insured against whom liability is sought to be imposed" or "employee of the insured tort feasor". Furthermore, an interpretation of the exclusions in the manner suggested by claimants might well lead to results obviously not contemplated by the parties to the insurance contract. For example, under that interpretation, if Southern had not carried workmen's compensation insurance it would have a right and a cause of action against the tort-feasor Mitchell and also against its own public liability insurer (Employers') to recover all workmen's compensation which it is obligated to pay to Pullen's widow. See Board of Commissioners of Port of New Orleans v. City of New Orleans, 223 La. 199, 65 So.2d 313. The liability policy in question under those circumstances would furnish to Southern both workmen's compensation and public liability insurance. On behalf of claimants it is argued that the provisions of the exclusions are ambiguous and, hence, that the adoption of the suggested interpretation is required by the well established and widely recognized rule that where policy provisions are attended with ambiguity they are to be construed strongly against the insurer and in favor of the insured. My view is that such provisions 380 are not ambiguous, and it accords with the views of numerous courts of other jurisdictions that have construed similar insurance verbiage as I do herein. Lumber Mutual Casualty Insurance Co. of New York v. Stukes, 4 Cir., 164 F.2d 571; Webb v. American Fire & Casualty Co., 148 Fla. 714, 5 So.2d 252; Standard Surety & Casualty Company of New York v. Maryland Casualty Co., 281 App.Div. 446, 119 N.Y.S.2d 795; Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357; Continental Casualty Company v. Pierce, 170 Miss. 67, 154 So. 279; Gibbs v. Employers' Mutual Liability Insurance Co. of Wisconsin, 224 N.C. 462, 31 S.E.2d 377; Birrenkott v. McManamay, 65 S.D. 581, 276 N.W. 725; Vaughn v. Standard Surety & Casualty Co., 27 Tenn.App. 671, 184 S.W.2d 556, certiorari denied by Sup.Ct.; Associated Indemnity Corporation v. Wachsmith, 2 Wash.2d 679, 99 P.2d 420, 127 A.L.R. 531; Shawcroft v. Standard Accident Insurance Co. of Detroit, 177 Wash. 106, 30 P.2d 987. Even the few tribunals of other jurisdictions adopting a contrary construction have not found ambiguity. Kaifer v. Georgia Casualty Co., 9 Cir., 67 F.2d 309; Sandstrom v. Clausen's Estate, 258 Wis. 534, 46 N.W.2d 831; Shanahan v. Midland Coach Lines, 268 Wis. 233, 67 N.W.2d 297. I respectfully dissent. McCALEB, Justice (dissenting). The language of the insurance policy is precise and unambiguous. Hence, there is no necessity for interpretation; the contract is the law between the parties and should be enforced as written. Article 1901, Civil Code. Exclusions (c) and (d) declare that the policy does not cover injuries to an employee of the "insured" and the policy defines the word "insured", when used unqualifiedly, to include the "named insured" and also any person using the vehicle with the consent of the named insured. Thus, since plaintiff's husband was an employee of the named insured, liability for his death was excluded from coverage. To my mind, it is as simple as that and further comment is superfluous, except to say that I am in full agreement with the views expressed by the Court of Appeal, see 72 So.2d 353, and the many authorities which support its opinion. See 127 A.L.R. 531 et seq. I respectfully dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1708612/	500 So.2d 436 (1986) Bessie WHITE v. George NAQUIN, et al. No. CA/85/1207. Court of Appeal of Louisiana, First Circuit. December 23, 1986. 437 F. Barry Marionneaux, Patrick W. Pendley, Plaquemine, for Bessie White, plaintiffappellee. John Dale Powers, Baton Rouge, for George H. Naquin, Anita Naquin and State Farm Fire & Cas. Co., defendants-appellants. Kenneth E. Barnette, Baton Rouge, for St. Paul Fire and Marine Ins. Co., defendant-appellee. Carey J. Guglielmo, Baton Rouge, for George A. Naquin and State Farm Fire & Cas. Co., defendants-appellants. Before EDWARDS, WATKINS and LeBLANC, JJ. LeBLANC, Judge. The issue in this personal injury case is whether a defendant/third-party plaintiff can obtain indemnification from the plaintiff's employer, when the plaintiff received worker's compensation benefits for the injury sued upon. Plaintiff, a bus driver for the Ascension Parish School Board (School Board), was injured when she bumped into or was tripped by a minor student on the grounds of East Ascension High School. Plaintiff was paid worker's compensation benefits for the injury she sustained. Plaintiff also filed a personal injury suit against George Naquin, the minor student's father, and his homeowner's insurer, State Farm Fire & Casualty Company (State Farm). Naquin and State Farm in turn filed a third-party demand against the School Board seeking indemnification of any amounts for which they were held liable on the basis that the employees of East Ascension High failed to properly supervise Naquin's daughter. In response to the third-party demand, the School Board filed a motion for summary judgment contending its liability was limited to worker's compensation benefits. The trial court granted the motion and dismissed the third-party demand against the School Board. Naquin and State Farm appealed. We affirm. A motion for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show that there is no genuine issue as to material fact, and that the mover is clearly entitled to judgment as a matter of law. La.Civ.Code art. 966B; McCorkle v. Gulf States Utilities Co., 457 So.2d 682 (La.App. 1st Cir.1984). There are no issues of material fact in this case. Further, it is well established that a third-party, even if only vicariously liable, is not entitled to indemnification from the plaintiff's employer for damages the plaintiff sustained in an accident covered under the Worker's Compensation Act. LeJeune v. Highlands Insurance Company, 287 So.2d 531 (La.App. 3rd Cir.1973), writ denied 290 So.2d 903 (1974); Badeaux v. Patterson Truck Line, Inc., 247 So.2d 875 (La.App. 3rd Cir.); writ denied, 259 La. 77, 249 So.2d 209 (1971); Bagwell v. South Louisiana Electric Coop. Ass'n., 228 So.2d 555 (La.App. 3rd Cir. 1969); Gifford v. Aurand Manufacturing Company, 207 So.2d 160 (La.App. 4th Cir.), writ refused, 252 La. 115, 209 So.2d 41, (1968); Hebert v. Blankenship, 187 So.2d 798 (La.App. 3rd Cir.1966). The employer's liability is limited exclusively to the payment of worker's compensation benefits, even if the employer is guilty of actual negligence. La.R.S. 23:1032; LeJeune; Bagwell; Gifford. The Worker's Compensation Act, La.R.S. 23:1021 et seq., constitutes a compromise 438 between the rights of employers and the rights of employees. Employers are required under this act to pay compensation benefits to any employee injured during the course and scope of his employment, even when the employer is not guilty of actual fault. To counterbalance the economic impact of this rule, employers cannot be held liable for any damages other than compensation benefits, even if guilty of actual fault. Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir.1979), writ denied, 382 So.2d 164 (1980). To require the employer to indemnify a third party who was held liable for damages to the employee would circumvent the fundamental principles behind this compromise. See Franklin v. Oilfield Heavy Haulers, 478 So.2d 549, 557 (La.App. 3rd Cir.1985), writs denied, 481 So.2d 1330 and 1331 (1986). Accordingly, the summary judgment was properly granted. There is no merit to the appellants' argument that the School Board is liable for indemnification, not in its capacity as plaintiff's employer, but in its capacity as the custodian of Naquin's daughter while she was on school grounds. Although the "dual-capacity doctrine" has been accepted in some jurisdictions, it has consistently been rejected by the courts of this state.[1]McCorkle v. Gulf States Utilities Co., supra; Certain v. Equitable Equipment Co., 453 So.2d 292 (La.App. 4th Cir.), writ denied, 459 So.2d 535 (1984); Hebert v. Gulf States Co., 369 So.2d 1104 (La.App. 1st Cir.), writ denied, 369 So.2d 466 (1979). We likewise reject this argument, finding the application of this doctrine would be inconsistent with the spirit of the Worker's Compensation Act. The judgment of the trial court is affirmed. All costs of appeal are to be paid by appellants. AFFIRMED. EDWARDS, J., dissents and assigns reasons. EDWARDS, Judge, dissenting. The result in this case is wrong. The majority confused the issue of the School Board's liability to the plaintiff under worker's compensation with the School Board's completely separate liability to defendant George Naquin under the doctrine of "in loco parentis." LSA-C.C. art. 2318. In Posey v. Lemoine, 471 So.2d 272 (La. App. 4th Cir.1985), the court astutely noted that the exclusivity provision in worker's compensation did not prevent suit against a co-employee who was not being sued for her own negligence but as the mother of her child, for whose negligence she was legally responsible under LSA-C.C. art. 2318. I respectfully dissent. NOTES [1] We disagree with appellants' contention that Wright v. Moore, supra, recognized the application of the "dual capacity doctrine" in Louisiana. The court in Wright did not apply this doctrine and the discussion of its application was made with reference to its application in other jurisdictions. This is made perfectly clear by this Court's statement in McCorkle v. Gulf States Utilities Co., at p. 685, "Similar arguments urging the application of the dual capacity doctrine... have previously, and properly, been rejected by this court."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1835695/	108 B.R. 643 (1989) In re Lee MADER, Debtor-Appellant. No. 89 C 20113. United States District Court, N.D. Illinois, W.D. November 30, 1989. Scott Boyd, Rockford, Ill. and Edward Mitchell, Lanark, Ill., for debtor-appellant. Stephen Balsley, Bradley Koch, Daniel Donahue, and Thomas J. Lester, Rockford, Ill., for respondent. MEMORANDUM OPINION AND ORDER ROSZKOWSKI, District Judge. This action comes before the Court on debtor-appellant Lee Mader's appeal from a ruling of the Bankruptcy Court for the Northern District of Illinois, Western Division, Honorable Judge Richard N. DeGunther, presiding. Debtor-appellant here appeals the Bankruptcy Court's holding that effectively bars the exercise of rights of modification under Bankruptcy Code Section 1229 in favor of the mandatory language of Bankruptcy Code Section 1227. For the reasons set forth in the Memorandum Opinion below, this Court reverses the ruling of the Bankruptcy Court insofar as it holds that Code Section 1227 precludes, as a matter of law, an evidentiary hearing and independent determination of the application of Code Section 1229. Further, this Court remands the case back to the Bankruptcy Court for such evidentiary and other proceedings pursuant to Code Section 1229 which are not inconsistent with this opinion. STATEMENT OF THE FACTS The debtor-appellant, Lee Mader, filed a voluntary petition for relief under Chapter 12 of Title 11 of the United States Bankruptcy Code (hereinafter "Code") on February 5, 1987. On February 19, 1987, debtor filed his original plan of reorganization. Certain secured creditors, among them the Mount Carroll National Bank and the Federal Land Bank of St. Louis, now known as the Farm Credit Bank of St. Louis, as well as the Chapter 12 Trustee, filed objections to the confirmation of debtor's proposed plan of reorganization of February 19, 1987. The primary basis for the objections rested on the belief that debtor would not be able to make all payments called for under the proposed plan. The various parties held extensive negotiations which eventually resulted in the 644 filing of a second amended plan (June 5, 1987), a third amended plan (June 31, 1987), and a fourth amended plan (August 6, 1987). On August 17, 1987, a confirmation hearing was held before the Bankruptcy Court on the fourth amended plan of reorganization. At that time, the Bankruptcy Court entered separate orders adopting certain stipulations and agreements between the various parties modifying the proposed amended plan. The orders of the court provided, inter alia, for the following: Should the debtor fail to make any payment required under either reamortized loan agreement and such failure shall continue for a period of 30 days, then, at the option of the Land Bank; A. The case shall be converted to a Chapter 7 proceeding; B. The debtors should be required to deliver deeds in lieu of foreclosure to the Land Bank; or C. A plan trustee shall be appointed to sell the property free and clear as set forth herein. In addition, the court's order provided some detailed procedures in the event of default. The modified plan, containing the creditor's expedited default remedies (or so-called "drop-dead" clauses) was confirmed. On September 9, 1988, subsequent to debtor's default on various obligations under the confirmed plan, debtor filed a motion to modify the confirmed plan pursuant to Code Section 1229. On February 16, 1989, after arguments and briefing by all interested parties, the Bankruptcy Court entered a Memorandum Opinion and Order denying the debtor's requested motion to modify the confirmed plan. A motion to reconsider was also filed by the debtor and thereafter denied by the Bankruptcy Court on March 6, 1989. Debtor now appeals the rulings of the Bankruptcy Court, particularly the refusal of that court to address the appropriateness of a modification pursuant to Code Section 1229, that as a matter of law no modification of the plan's payment provisions could ever occur due to the inclusion of the "drop-dead" clauses in the confirmed plan. More simply, the Bankruptcy Court held that because the plan contemplated the eventuality of default through the inclusion of the "drop-dead" clauses, no modification could occur. DISCUSSION Jurisdiction for the instant appeal is proper in this Court pursuant to 28 U.S.C. § 158. In an appeal from a ruling of the Bankruptcy Court, where pure questions of fact are concerned, the District Court will not overturn the Bankruptcy Court unless those rulings are found to be clearly erroneous or an abuse of discretion. However, where there are pure questions of law or mixed questions of law and fact, the District Court may conduct a de novo review. See Matter of Evanston Motor Co., Inc., 735 F.2d 1029 (7th Cir.1986); Wiesmueller v. Interstate Fire & Casualty Co., 568 F.2d 40 (7th Cir.1978); Industrial Equipment Company v. Emerson, 554 F.2d 276 (7th Cir.1977); 9 C. Wright & A. Miller, Federal Practice & Procedure § 2588. In the present case, this Court is presented with an appeal concerning pure questions of law regarding the respective scope of Bankruptcy Code sections 1227 and 1229 properly subject to de novo review. Section 1227 of the Code states as follows: (a) Except as provided in Section 1228(a) of this Title, the provisions of a confirmed plan bind the debtor, each creditor, each equity security holder and each general partner in the debtor, whether or not the claim of such creditor, such equity security holder, or such general partner in the debtor is provided for by the plan, and whether or not such creditor, such equity security holder, or such general partner in the debtor has objected to, has accepted, or has rejected the plan. 11 U.S.C. § 1227(a).[1] Section 1229(a) of the Code provides as follows: 645 (a) At any time after confirmation of the plan but before completion of payments under such plan, the plan may be modified, on request of the debtor, the trustee, or the holder of an allowed unsecured claim, to (i) increase or reduce the amount of payments claims of a particular class provided for by the plan; (ii) extend or reduce the time for such payments; or (iii) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan. 11 U.S.C. § 1229(a).[2] While appellant Mader spends considerable time arguing the issue of whether, sitting as a court of equity, the Bankruptcy Court below had some obligation to "prevent manifest injustice," this Court limits its present ruling to the legal issue of whether Code sections 1227 and 1229 are mutually exclusive. There appears to be very little published law on this question as Chapter 12 is a relatively new legislative phenomena.[3] In addition, what published cases do exist are, for the most part, decisions from the various bankruptcy courts and, as such, are merely instructive for this Court and not binding. However, some discussion of the legislative history of Chapter 12 and the cases that do exist is warranted. Chapter 12 of the Bankruptcy Code was passed in response to a financial crisis on America's family farms. When extreme economic difficulty was encountered, most farmers had too much debt to qualify for Chapter 13 relief and Chapter 11 was found to be "needlessly complicated, unduly time-consuming, inordinately expensive and, in too many cases, unworkable." H.R.Rep. No. 99-958, 99th Cong., 2d Sess., reprinted in 1986 U.S.Code Cong. & Admin.News 5227, 5246, 5249.[4] The House Conference Committee's Report did not address any legislative history or commentary relating to the purposes or workings of section 1229. However, there is some discussion relating to section 1227. 646 In that regard, the Conference Committee's Report stated the following: The Conferees are concerned that farmers be able to obtain post confirmation credit. The Conferees are in agreement that current law allows Chapter 13 debtors to do so. Because section 1227 is modeled after section 1327, family farmers may provide in their plans for post-confirmation financing secured by assets that have revested in the debtor. The debtor may also use revested property to the extent it is not encumbered by the plan or order of confirmation to secure post-confirmation credit. H.R.Conf.Rep. No. 99-958, 99th Cong., 2d Sess, 1986 U.S.Code Cong. & Admin.News 5246, 5251-52. This discussion relating to the family farmer's ability to obtain post-confirmation credit is the only legislative history available relating to either section 1227 or section 1229. The first case in which this issue is directly addressed appears to be In re Grogg Farms, Inc., 91 B.R. 482 (Bankr.N.D.Ind. 1988). In that case, similar to the facts before this Court, the confirmed plan included a "drop dead" clause. The default clause in In re Grogg provided as follows: Should the debtor at any time be more than thirty days in default in its obligations to Phoenix assumed in this plan, Phoenix shall have the right to an order lifting the automatic stay within ten days of service of said verified pleading. Id. at 483. In In re Grogg, the bankruptcy court first discussed the participatory nature of bankruptcy proceedings. In that respect, the court noted that participatory proceedings often result in terms which neither the debtor nor the creditors would otherwise have had a legal right to impose upon the other party or a legal obligation to accept. The court stated that "[s]uch a plan is the product of the give and take of negotiations where each party, acting in its own self interest, attempts to maximize its return under a particular set of unfortunate circumstances." Id. at 484. Therefore, so long as the plan comports with the dictates of Code section 1225(a)(5), the plan can be confirmed. Id. at 485. Next, the court discussed the "tension" between Code sections 1227 and 1229. The court recognized that section 1227 provides the confirmed plan not only with a binding effect on both debtors and creditors, In re Winterfeldt, 28 B.R. 486, 488 (Bankr.E.D. Wis.1983), the confirmed plan is also "res judicata as to those issues which could have and should have been raised prior to or in connection with confirmation." In re Grogg, 91 B.R. at 485 citing to In re Evans, 30 B.R. 530, 531 (9th Cir.B.A.P.1983); In re Lewis, 64 B.R. 415, 417 (Bankr.E.D. Penn.1986); In re Lewis, 8 B.R. 132, 137 (Bankr.D.Idaho 1981). While the court recognized the fact and necessity of some finality, the court also noted that flexibility was necessary to account for "[c]hanging fortunes and unexpected circumstances." In re Grogg, 91 B.R. at 485. The court then set out a framework within which a post-confirmation modification could be analyzed as follows: Post-confirmation modification is only warranted when an unanticipated change in circumstances affects the implementation of the plan as confirmed. The right or the opportunity to modify, thus, exists only in order to address unforeseen circumstances whose consequences are not provided for by the plan as originally written and confirmed. If the plan anticipates a particular event and addresses the rights and duties of the parties, should that event occur, there is no need to modify. Instead, one only needs to implement the contingency provisions contained in the original plan. Id. at 485. The court in In re Grogg concluded that because the confirmed plan specifically provided for relief for the creditor in the event of default in the form of a lifting of the automatic stay, no modification of the plan may be made by the court which would circumvent the provided-for remedy in the "drop dead" clause. This conclusion is apparently premised on the belief that the unforeseen circumstance relevant to the inquiry under section 1229 is the default itself. Because the default is itself the unforeseen circumstance, and default is provided for in the "drop dead" clause, no 647 modification can occur because it can never be said to be an unforeseen circumstance. Id. at 485-86. In another early case, In re Dittmer, 82 B.R. 1019 (Bankr.D.N.D.1988), the bankruptcy court correctly noted that nothing in the Code itself mandates a showing by the debtor of some change in circumstances or unforeseen difficulties. The court points to the legislative history of Chapter 13, upon which Chapter 12 was modeled, in assessing whether there is any "changed circumstances" burden imposed upon the debtor.[5] The court concludes that the right to propose a modification bears no particular burden of proof, insofar as reasons are concerned, the modifications themselves do place upon the proponent a burden of proving the modifications comply with Chapter 12's provisions pertaining to plan content and confirmation as set out in sections 1222(a), (b), 1223(c) and 1225(a), to no less a degree than if originally proposed. The nature of the circumstances giving rise to the need for modification and the degree by which they affect plan execution do not obviate this burden and consequently are immaterial to the issue of whether modification should be allowed except to the extent they impact upon the Debtors' continuing ability to fund a plan. In re Dittmer, 82 B.R. at 1021 (emphasis added). While the court in In re Dittmer did not allow modification, it did not do so because of the court's conclusion that the modified plan was incapable of being adequately funded based on the debtor's modified projections. Taking the foregoing discussion of the legislative history and case law into consideration, this Court draws the following conclusions. The debtor in this case is correct in arguing that the court in In re Grogg Farms, Inc., supra, missed the mark. While this Court agrees with most of the analysis laid out in that opinion, the final conclusion appears misplaced. The critical factor which is missing is the importance of the underlying reasons for the default, not the fact of default itself. If the fact of default itself was the only inquiry relevant to this case, the implication would be that no debtor who has a confirmed plan which addresses the eventuality of default could ever modify that confirmed plan. That conclusion appears to this Court unsupportable especially given the fact that the legislative history of section 1227 exclusively addresses the issue of the availability of post-confirmation credit to the family farmer. In addition, the legislative history of section 1327, the precursor of section 1227, explicitly cites a natural disaster as a potential reason for modification under that section. Many of the other cases cited are easily distinguishable as they deal, for example, with whether, following a hearing, a determination by the bankruptcy and/or district court that a plan should or should not be modified was an abuse of discretion. This case has not even progressed to the stage where that question is presented. It appears that these two Code sections cannot be read harmoniously and compatibly. Either a plan originally confirmed with a default provision can be modified pursuant to section 1229 or it can not be modified. While this Court does not hold that the present debtor's confirmed plan should be modified, nor do we hold that the modified plan presented to the bankruptcy court meets the requirements of section 1229, this Court does hold that, as a matter *648 of law, the mere inclusion of a "drop dead" clause in the confirmed plan does not, ipso facto, preclude the possibility of modification under section 1229. No such preclusive effect appears contemplated by section 1227, and no such preclusive effect will be given here. Therefore, to the extent the bankruptcy court held that as a matter of law no modification under section 1229 could occur, that ruling is reversed. The case is remanded to the bankruptcy court for further proceedings not inconsistent with this opinion. CONCLUSION For the reasons set forth in the opinion above, this Court reverses the ruling of the bankruptcy court insofar as it precludes a hearing on the merits of debtor's modification petition. This Court rules that, as a matter of law, debtor is not precluded from seeking a modification from a confirmed plan under section 1229 for changed circumstances even when that confirmed plan includes default provisions. This case is remanded to the bankruptcy court for any further proceedings not inconsistent with this opinion. NOTES [1] Section 1228(a) of the Code, referred to in Section 1227(a), states as follows: (a) As soon as practicable after completion by the debtor of all payments under the plan, other than payments to holders of allowed claims provided for under section 1222(b)(5) or 1222(b)(10) of this title, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan allowed under section 503 of this title or disallowed under section 502 of this title, except any debt (1) provided for under section 1222(b)(5) or 1222(b)(10) of this title; or (2) of the kind specified in section 523(a) of this title. 11 U.S.C. § 1228(a). [2] Section 1229 also makes the provisions of 11 U.S.C. § 1222(a), 1222(b), 1223(c) and 1225(a) applicable to any modification of the plan pursuant to § 1229(a). Section 1229 also provides that the modified plan, when approved, becomes the confirmed plan. Lastly, section 1229 provides that the court, only for cause, may approve payments which expire after three years after the time the first payment under the original confirmed plan was due, and under no circumstances may the court approve payments which expire more than five years after the time the first payment was due. [3] Chapter 12 of the Bankruptcy Code was made effective by Pub.L. 99-554, Title II, § 255, 100 Stat. 3105 (October 27, 1986). In addition, the law has an automatic "sunset" clause repealing the law as of October 1, 1993. Pub.L. 99-554, Title III, § 302(f), 100 Stat. 3124 (October 27, 1986). Therefore, not only is the law of recent origin, it is of limited duration. [4] The House Conference Report also contained the following language: [T]his subtitle creates a new chapter of the Code Chapter 12 to be used only by family farmers. It is designed to give family farmers facing bankruptcy a fighting chance to reorganize their debts and keep their land. It offers family farmers the important protection from creditors that bankruptcy provides while, at the same time, preventing abuse of the system and ensuring that farm lenders receive a fair repayment. This new chapter is closely modeled after existing Chapter 13. At the same time, however, the new chapter alters those provisions that are inappropriate for family farmers the requirement that the plan be filed within 15 days of the petitions; the requirement that plan payments start within 30 days of the plan confirmation; and the low debt limits found in Chapter 13. Under this new chapter, it will be easier for a family farmer to confirm a plan of reorganization. H.R.Conf.Rep. No. 99-958, 99th Cong., 2d Sess., 1986 U.S.Code Cong. & Admin.News 5246, 5249. [5] The legislative history of section 1327 of the Code provides as follows: If a problem arises in the execution of the plan, the bill permits modification of the plan, either through a scaling down of payments, a temporary moratorium, or an extension of time for performance. If the problems, such as a natural disaster, . . ., are severe enough that modification is impracticable, the debtor's inability to make further payments is due to circumstances for which he should not justly be held accountable, and if his creditors have already received at least what they would have if the debtor had opted for straight bankruptcy, then the court may terminate performance under the plan and grant the debtor his discharge notwithstanding incomplete performance. In re Dittmer, 82 B.R. 1019, 1021 (Bankr.D.N.D. 1988) (emphasis added) quoting H.Rep. No. 595, 95th Cong., 1st Sess., pt. 1 at 125 (1977), U.S. Code Cong. & Admin.News 1978, pp. 5787, 6086.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1341131/	302 S.E.2d 271 (1983) MAS CORPORATION, t/a and d/b/a Holiday-West Motel, Plaintiff, v. Ernest A. THOMPSON, t/a and d/b/a Thompson Sign Co., Defendant and Third-Party Plaintiff, v. Mahmood Ali SIDDIQUI and Shamshad Ali Siddiqui, Third-Party Defendant. No. 8218SC344. Court of Appeals of North Carolina. May 3, 1983. 274 Hugh C. Bennett, Jr., High Point, for plaintiff and third-party defendants-appellants. Stern, Rendleman & Klepfer by John A. Swem, Greensboro, for defendant-appellee. VAUGHN, Chief Judge. Appellants' first four arguments are that the trial court erred in denying their motions for summary judgment and directed verdict, and in granting defendant's motion for directed verdict on two of appellants' claims. The purpose of summary judgment is to bring litigation to an early decision on the merits without the delay and expense of trial when no material facts are at issue. McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972). That purpose cannot be served after there has been a trial. Denial of a motion for summary judgment, therefore, should not be reviewable on appeal from a final judgment rendered on a trial on the merits. See Parker Oil Co. v. Smith, 34 N.C.App. 324, 237 S.E.2d 882 (1977); Annot., 15 A.L.R. 3d 899, 922 (1967). Appellants present identical arguments for the trial court's allegedly erroneous denial of their motions for summary judgment and directed verdict. We shall consider their argument only with respect to the denial of their motion for a directed verdict. Upon motion for a directed verdict, all the evidence which tends to support the nonmovants' case against it must be taken as true and viewed in the light most favorable to the nonmovant, the nonmovant is entitled to the benefit of every reasonable inference which may be reasonably drawn from the evidence, and the motion may be granted only if, as a matter of law, the evidence is insufficient to grant a verdict for the nonmovant. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). Any party may move for a directed verdict at the close of all the evidence. G.S. 1A-1, Rule 50(a). The court may direct a verdict for the party with the burden of proof when the credibility of the movant's evidence is manifest as a matter of law. North Carolina National Bank v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979). Appellants assign as error the trial court's denial of their motion for a directed 275 verdict on three grounds. They contend that their motion for directed verdict should have been granted because the contract required Thompson to use sections of the former Holiday Inns sign so as not to infringe on the Holiday Inns trademark. The general rule is that when a written contract is unambiguous the interpretation is a question of law, but when the terms of the contract are ambiguous it is for the jury to ascertain the meaning. Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962). The following language "It is understood that sections of the above described sign will be from former sign, used so as not to infringe on Holiday Inn trade-mark" is ambiguous for three reasons. First, there is no promise by either party. The sentence began "It is understood," which, when viewed in the light most favorable to Thompson, does not clearly indicate that Thompson was promising anything. Second, there was conflicting evidence as to the parties' intentions. Obviously, a contract should be construed, whenever possible, to give effect to the intentions of the parties. Adder v. Holman & Moody, Inc., 288 N.C. 484, 219 S.E.2d 190 (1975). Thompson said, in his deposition, that he included that sentence for two reasons: to let Siddiqui know that the sign would contain used materials, and to let him know that the Holiday Inns trademark would not be used. According to Siddiqui, the sentence was included so as to hold Thompson responsible for furnishing signs satisfactory to Holiday Inns. Since there is conflicting evidence of the parties' intentions, the interpretation of the contract was a question of fact for the jury to decide. Third, Siddiqui's subsequent conduct indicates he was engaged in a consistent pattern of misusing Holiday Inns trademarks. Subsequent conduct of the parties, after executing a contract, is admissible to show their intent. Heater v. Heater, 53 N.C.App. 101, 280 S.E.2d 19, review denied, 304 N.C. 194, 285 S.E.2d 99 (1981). Affidavits of two Holiday Inns employees show that in October 1980 and January 1981, more than a year after Siddiqui's franchise was terminated, Holiday Inns place mats, guest checks, towels, telephone facing strips, and commode cleanliness strips were found in Siddiqui's motel. These blatant infringements cast doubt on Siddiqui's assertion that Thompson promised not to infringe on the Holiday Inns trademark. Moreover, when Siddiqui asked Thompson to change the sign in December because of Holiday Inns' complaints he agreed to pay Thompson on a cost-plus basis, which indicates he did not consider Thompson liable for the infringements. The above circumstances, which must be viewed in the light most favorable to Thompson, indicate there is ample evidence to grant a verdict in favor of the nonmovant, and the trial court did not err in denying the appellants' motions for a directed verdict. Appellants argue that, notwithstanding any issues of material fact in the interpretation of the contract, their motion for directed verdict should have been granted because G.S. 25-2-312(3) requires Thompson to deliver the signs free from any claim of infringement. G.S. 25-2-312(3) provides: Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications. (Emphasis added.) Again, viewing the evidence in the light most favorable to Thompson, it is clear that G.S. 25-2-312(3) does not apply in this case. Thompson's evidence tends to show that the parties agreed Siddiqui would be liable for any infringement. Even if it is unclear what, precisely, was "otherwise agreed", the statute only applies if nothing was said as to liability, and the other conditions are fulfilled. In this situation, where the parties thought they had agreed to something, what their agreement actually was is a question of fact for the jury. *276 Appellants further argue that the trial court should have granted Siddiqui's motion for directed verdict because Thompson is barred from enforcing his lien against Siddiqui individually since Siddiqui was merely an agent of Holiday-West Motel. The rule, however, is that "[a]n agent who makes a contract for an undisclosed principal is personally liable as a party to it unless the other party had actual knowledge of the agency and of the principal's identity.... The duty is on the agent to make this disclosure and not upon the third person with whom he is dealing to discover it." Howell v. Smith, 261 N.C. 256, 258-259, 134 S.E.2d 381, 383 (1964). In Howell, plaintiff sued defendant for the balance due for petroleum products he sold defendant. Defendant alleged that he purchased the products as an officer of the corporation, so the corporation was solely liable for the debt. Defendant contended that five invoices and checks with the corporate name which he sent plaintiff gave plaintiff notice of the principal corporation. The Supreme Court disagreed, holding that the receipt of five statements, mailed in envelopes bearing the corporate name, and the individually signed checks with the corporate name printed on them were insufficient to establish actual knowledge that plaintiff was dealing with the corporation, not the individual defendant. Moreover, the court said "the use of a trade name is not as a matter of law a sufficient disclosure of the identity of the principal and the fact of agency." Howell v. Smith, 261 N.C. at 259, 134 S.E.2d at 384. Here, Thompson said, in his deposition, that Siddiqui "acted to me totally as an individual. He never referred to any corporation, any partner, any anything other than just him as an individual, is how I dealt with him." We find that since Thompson had no actual notice of the corporate principal, the use of "Holiday-West" on documents and correspondence does not preclude Thompson's recovery from Siddiqui individually. Appellants also assign as error the trial court's granting Thompson's motion for a directed verdict on the claims of statutory warranty under G.S. 25-2-312(3), and unfair trade practices. We have already discussed why the statutory warranty was inapplicable in this case, and a directed verdict on this claim was appropriate. As to the claim of unfair trade practices, the statute, G.S. 75-1.1(a), provides: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful." A practice is unfair when it offends established public policy or when it is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980). The appellants' evidence, taken as true and viewed in the light most favorable to the appellants, shows no evidence that Thompson did anything which offended public policy or was immoral, unethical, oppressive, unscrupulous, or injurious. Appellants contend that Thompson was deceptive when he filled his name in the blank on the contract which said "architect". Absent any indication that appellants read it or relied on it in any way the jury could not find this to be an unfair or deceptive act. Moreover, in their verdict, the jury found that Siddiqui had assumed responsibility for infringement, so any error of the trial court in not submitting the issue of unfair trade practices was harmless. See Hendricks v. Hendricks, 273 N.C. 733, 161 S.E.2d 97 (1968). We have carefully reviewed appellants' remaining assignments of error and find them to be without merit. No error. WEBB and EAGLES, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1453909/	947 F. Supp. 1021 (1996) Dwight Dwayne ADANANDUS, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. Civil No. SA-95-CA-415. United States District Court, W.D. Texas, San Antonio Division. August 27, 1996. Order Denying Amendment September 19, 1996. 1022 1023 1024 1025 1026 1027 1028 1029 1030 Stephanie L. Stevens, San Antonio, TX, for petitioner. Gena A. Blount, Office of the Texas Attorney General, Austin, TX, for respondents. MEMORANDUM OPINION AND ORDER BIERY, District Judge. The State of Texas seeks to put to death one of its citizens, Dwight Dwayne Adanandus. In his petition for federal habeas corpus relief, Mr. Adanandus raises twenty-one points requiring constitutional review by this Court and examination of current law on the issues raised. For reasons stated herein, relief is denied. * * * * * Although in more detail later, the Court first addresses generally the assertion of ineffective assistance of trial counsel Steven Hilbig and the historical professional obligation of lawyers in criminal cases. In a nation whose landscape is dotted with synagogues and churches, the entreaties of "thou shalt not kill" and "forgive your enemies" are challenged by retribution and revenge, understandable responses to violent crime. The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death, collectively imposed upon the predators among us through the might of the State. Having democratically given vent to normal human emotions in the face of incredibly heinous acts, the legal exercise of the power to end a life requires careful scrutiny by some objective entity bound by the rule of law. The alternatives to the imposition of the ultimate punishment within a framework of due process are the anarchy of a lynch mob or the whim of a dictator and the concomitant devolution of society to the level of those deserving execution. For the Constitution to be more than mere words, even those accused of capital murder must have competent advocacy against the strength and resources of government. Though frequently and pejoratively quoted out of context, Dick the Butcher recognized lawyers as protectors of English rights; hence they must be killed to achieve illegitimate seizure of sovereignty.[1] Based on the record before it, this Court concludes Mr. Hilbig and attorneys David Weiner, Julie Pollock and Stephanie Barclay Stevens ably fulfilled their professional responsibilities to Mr. Adanandus and to the rule of law which protects all citizens. I. The Record Before the Court are the following petitions and motions: (1) petitioner's second amended petition for federal habeas corpus relief, filed June 25, 1996,[2] (2) respondent's answer and motion for summary judgment, filed September 12, 1995,[3] (3) petitioner's motion for evidentiary hearing, filed July 26, 1995,[4] (4) respondent's pleading opposing petitioner's motion for evidentiary hearing, filed September 12, 1995,[5] (5) petitioner's reply to respondent's opposition to an evidentiary hearing, filed October 16, 1995,[6] and (6) more than eight thousand pages of state court records from petitioner's capital murder trial, direct appeal, and state habeas corpus proceeding.[7] 1031 II. Statement of the Case On January 28, 1988, petitioner Dwight Dwayne Adanandus shot and killed Vernon Hanan while committing an armed robbery of the Continental National Bank ["CNB"] in San Antonio, Texas. Several eyewitnesses testified that bank teller Patricia Martinez began yelling she had been robbed immediately after petitioner left her window. Vernon Hanan entered the bank lobby, apparently heard the shouts, and lunged at petitioner as petitioner was attempting to exit the bank. The two men wrestled with each other from the bank lobby into the foyer where petitioner pushed Hanan away from himself and down, pointed his gun at Hanan, and fired the fatal shot. Bank security cameras recorded almost the entire series of events leading up to the fatal shooting. There has never been any genuine dispute as to the operative facts.[8] Petitioner was indicted in cause no. 88-CR-1454 on a charge of capital murder on April 12, 1988.[9] Jury selection in petitioner's state court trial began on March 29, 1989.[10] The guilt-innocence phase of petitioner's trial began May 1, 1989.[11] On May 9, 1989, the jury found petitioner guilty of the offense of capital murder.[12] The next day, the punishment phase of petitioner's trial began, and two days later, May 12, 1989, the jury returned its verdict on the punishment special issues. The trial court sentenced petitioner to death.[13] 1032 Petitioner appealed his conviction and sentence. In an opinion issued June 16, 1993, the Texas Court of Criminal Appeals affirmed petitioner's conviction and sentence.[14] The United States Supreme Court denied petitioner's petition for certiorari on March 21, 1994.[15] On September 7, 1994, petitioner filed his initial application for state habeas corpus relief.[16] On October 21, 1994, petitioner filed 1033 an amended application for state habeas corpus relief.[17] The state trial court held an evidentiary hearing on petitioner's state habeas corpus application on November 21, 1994. At the hearing, petitioner's counsel introduced extensive medical records relating to petitioner's childhood head trauma and also testified.[18] In an Order issued January 9, 1995, the state trial court issued its findings of fact, conclusions of law, and recommended petitioner's state habeas corpus application be denied.[19] On February 21, 1995, the Texas Court of Criminal Appeals denied petitioner's state habeas corpus application in an unpublished per curiam opinion finding the state trial court's findings and conclusions were supported by the record and denied relief on the basis of those findings and conclusions.[20] On May 3, 1995, petitioner filed his motion for leave to proceed In Forma Pauperis and for appointment of experts,[21] motion for appointment of counsel,[22] motion for stay of execution,[23] and motion for time to amend,[24] together with an initial petition for federal habeas corpus relief, setting therein some twenty-one (21) grounds for relief.[25] In an Order issued May 4, 1995, this Court granted petitioner's motions for stay of execution, for 1034 appointment of counsel, and for leave and time to file an amended petition.[26] On July 26, 1995, petitioner filed a motion requesting an evidentiary hearing.[27] On that same day, petitioner also filed an amended petition for federal habeas corpus relief in which he asserted a single, multi-faceted ground for relief alleging ineffective assistance on the part of his trial counsel.[28] On September 12, 1995, respondent filed a pleading opposing petitioner's request for an evidentiary hearing[29] and an answer and motion for summary judgment.[30] On October 16, 1995, petitioner filed a reply to respondent's opposition to petitioner's request for an evidentiary hearing and a reply to respondent's answer and motion for summary judgment. In each of these replies, petitioner argued he had not been provided an expert witness during his state habeas corpus proceeding.[31] On November 6, 1995, this Court issued an Order directing petitioner to state on the record whether he was withdrawing all of the grounds for relief contained in his initial federal habeas corpus petition.[32] Petitioner filed a responsive pleading on November 21, 1995, advising the Court he still wished to assert all of the grounds for relief contained in his initial federal habeas corpus petition and requesting leave to file a second amended federal habeas corpus petition.[33] The Court granted this request on June 25, 1996.[34] In his second amended federal habeas corpus petition, filed June 25, 1996, petitioner asserts some twenty-one grounds for relief consisting of the following arguments: 1. the petitioner's trial counsel rendered ineffective assistance by (a) failing to introduce evidence showing petitioner had suffered a head injury during his childhood and (b) allowing his political ambitions to result in a conflict of interest in connection with petitioner's case; 2. the state trial court erroneously failed to define the term "reasonable doubt" in the jury charge; 3. the state trial court erroneously denied petitioner's requested jury instructions at the guilt-innocence phase of trial on the lesser-included offenses of felony murder, voluntary manslaughter, and involuntary manslaughter; 4. the state trial court erroneously denied petitioner's requested definition of "deliberately" in the jury instructions at the punishment phase of trial; 5. the prosecution withheld potential exculpatory evidence from the defense relating to a prior competency hearing held in 1981 in another criminal proceeding against the petitioner; 6. petitioner's sentence was based on an invalid prior conviction; 7. the prosecution violated equal protection principles when it used a peremptory challenge to strike the last remaining black member of the jury venire; 8. the state trial court erroneously admitted the testimony of three prosecution witnesses regarding petitioner's bad reputation at the punishment phase of trial; 9. the jury instructions deprived petitioner's jury of the opportunity to make a reasoned moral response to mitigating evidence; 10. the state trial court erroneously denied petitioner's requested jury instructions regarding mitigating evidence; 11. the state trial court erroneously denied petitioner's requested jury instructions regarding the effect of a hung jury; 1035 12. the state trial court erroneously denied petitioner's right to call witness William Stolhanske; 13. petitioner's constitutional rights were violated by his forced medication during trial; 14. the state trial court erred in conducting a portion of the voir dire portion of trial in petitioner's absence and in refusing to dismiss the array after so doing; and 15. the petitioner was incompetent to stand trial.[35] On July 9, 1996, respondent filed a pleading arguing this federal habeas corpus proceeding is now governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996[36] and this Court must apply the provisions of that enactment to this cause despite the fact the Texas state statute which respondent identifies as satisfying the procedural prerequisites of the federal enactment did not become effective until after the disposition of petitioner's state habeas corpus application.[37] III. Analysis and Authorities A. Ineffective Assistance Arguments In his initial ground for federal habeas corpus relief, petitioner argues his trial counsel rendered ineffective assistance by (1) failing to investigate, develop, and present at either the guilt-innocence or punishment phases of trial evidence showing that (a) due to a head injury he suffered as a child, petitioner suffers from a neuropsychological impairment and (b) petitioner suffered from an unstable family background, verbal and physical abuse as a child, and substance abuse, but still possesses redeeming qualities and (2) allowing said trial counsel's political ambitions to create a conflict of interest which interfered with said counsel's ability to represent petitioner.[38] 1. Standard of Review The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in the case of Strickland v. Washington: A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.[39] In order to establish counsel's performance was constitutionally deficient, a convicted defendant must show counsel's representation "fell below an objective standard of reasonableness."[40] In so doing, a convicted 1036 defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance.[41] The courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight.[42] It is strongly presumed counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.[43] An attorney's strategic choices, usually based on information supplied by the defendant and a thorough investigation of relevant facts and law, are virtually unchallengeable.[44] Counsel is required neither to advance every nonfrivolous argument nor to investigate every conceivable matter into which inquiry could be classified as nonfrivolous.[45] The proper standard for evaluating counsel's performance under the Sixth Amendment is "reasonably effective assistance."[46]1037 "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment."[47] "Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."[48] In order to establish that he has sustained prejudice, the convicted defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."[49] In addition, analysis of the second or "prejudice" prong of the Strickland test must include examination of whether counsel's deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair.[50] "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him."[51] In summary, in order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.[52] The two-part test of Strickland v. Washington, supra, has been applied by the Supreme Court and the Fifth Circuit in a wide variety of contextual challenges to the effectiveness of counsel's performance. Given the language of Strickland itself, the test applies to the conduct of counsel both in preparation for and at trial.[53] The test also 1038 has been applied to challenges to guilty pleas based on ineffective assistance of counsel allegations.[54] Of course, the two-part test applies to sentencing proceedings because the Strickland opinion itself dealt with a sentencing proceeding.[55] Additionally, the two-part Strickland test has also been applied to the performance of counsel on appeal.[56] Because a convicted defendant must satisfy both prongs of the Strickland test, a failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong.[57] Therefore, a failure to establish that counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice.[58] It is also unnecessary to consider whether counsel's performance was deficient when there is an insufficient showing of prejudice.[59]1039 Mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.[60] 2. The Setting The deficiency prong of Strickland is judged by counsel's conduct under the law existing at the time of the conduct.[61] Prejudice within the meaning of Strickland is measured by current law and not by the law as it existed at the time of the alleged error.[62] At the time of petitioner's capital murder trial in May of 1989, the Texas capital sentencing procedure called for a bifurcated trial in which the guilt or innocence phase of the trial occurred prior to any consideration of punishment by the jury. If the jury found the defendant guilty of capital murder, the same jury would remain empaneled and the punishment phase of the trial would proceed.[63] At the punishment phase of the capital trial, the Texas capital sentencing statute directed the trial court to submit the following issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.[64] At the time of petitioner's trial, the Texas capital sentencing statute directed the trial court to instruct the jury that "(1) it may not answer any issue `yes' unless it agrees unanimously; and (2) it may not answer any issue `no' unless 10 or more jurors agree."[65] The Texas capital sentencing statute also provided as follows: If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding or is unable to answer any issue submitted under this article, the court shall sentence the defendant to confinement in 1040 the Texas Department of Corrections for life.[66] Prior to the time of petitioner's trial, a plurality of the Supreme Court had upheld the foregoing Texas capital sentencing scheme against a facial attack in Jurek v. Texas.[67] In Jurek, The Supreme Court plurality held: a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today held in Woodson v. North Carolina [428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)], to be required by the Eighth and Fourteenth Amendments. * * * A jury must be allowed to consider on the basis of all relevant evidence not only why a death penalty should be imposed, but also why it should not be imposed. Thus, in order to meet the requirements of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances.[68] The Supreme Court also reviewed the opinions of the Texas Court of Criminal Appeals and interpreted them as allowing consideration of a wide range of mitigating circumstances under the second special issue, i.e., the inquiry relating to the future dangerousness of the defendant, in the course of the punishment phase of a Texas capital murder trial.[69] The Supreme Court plurality's decision in Jurek was later adopted by the a majority of that Court in Eddings v. Oklahoma.[70] Petitioner was tried in May of 1989 prior to the issuance by the United States Supreme Court of its opinion in Penry v. Lynaugh.[71] In Penry, the Supreme Court held the Texas capital sentencing scheme unconstitutional as applied to a defendant who had introduced evidence of his abusive childhood and mental retardation.[72] On June 26, 1989, more than a month after the petitioner's trial ended, the Supreme Court majority concluded in Penry that, in answering the three special issues submitted to it during the punishment phase of Penry's trial, the state court jury had not been able to consider and give effect to all of Penry's mitigating evidence "without any jury instructions on mitigating evidence."[73] However, in subsequent decisions from Texas and other states, the 1041 Supreme Court has narrowed the holding in Penry.[74] In fact, in 1993, the Supreme Court held its opinion in Penry should not be construed as broadly suggesting the invalidity of the Texas special issue framework.[75] Later the same year, the Supreme Court upheld a Texas prisoner's capital murder conviction and death sentence against a claim that the former Texas capital murder statute precluded the jury from considering and giving effect to mitigating evidence of the defendant's youth at the time of his offense.[76] Thus, while a majority of the Supreme Court has not formally rejected its analysis in Penry, the Court has taken great pains in subsequent opinions to narrow the Penry holding.[77] As explained above, petitioner's claims of ineffective assistance must be examined, first, in connection with the first prong of Strickland with due recognition of the fact petitioner was tried before the Supreme Court's opinion in Penry and, second, in conducting the prejudice analysis full recognition must be given to the many subsequent Supreme Court and Fifth Circuit opinions narrowing the Penry holding. 3. Failing to Develop and Introduce Mitigating Evidence Prior to petitioner's trial, petitioner's trial counsel, Steven Hilbig, requested and obtained a mental examination of the petitioner by psychiatrist Dr. Raymond M. Costello.[78] a. The Evidence in Question Dr. Costello's report includes observations, among others, that (1) he conducted a four and one-half hour face-to-face interview with petitioner on July 12, 1988, (2) petitioner understood all instructions, worked consistently without fatigue, and showed no obvious signs of dysfunction or injury except for a vocal tremor, occasional inarticulation of words, and a scar running lengthwise on his skull at the hairline above the right ear, (3) petitioner indicated he had acquainted himself with the law by reading books and talking with other inmates about the law, the judicial process, and police conduct, (4) petitioner understood the nature of the proceeding against him, was familiar with the judicial process, and understood the role of his attorney and the nature of the attorney-client privilege, (5) petitioner stated a metal plate was implanted in his head after he suffered a head injury in a horseback-riding accident and thereafter, his behavior deteriorated and 1042 became more erratic, (6) he had difficulty concentrating and dropped out of school after completing the tenth grade, (7) petitioner experienced periods of lost consciousness following his accident but was not diagnosed with epilepsy until 1978 or 1979 while incarcerated at the Bexar County Jail, (8) he was hospitalized in Chicago in 1986 after he again experienced a period of unconsciousness, (9) petitioner subsequently refused to submit to a CAT-scan, (10) petitioner characterized his own criminal conduct as impersonal acts of violence toward society as a whole similar in the nature to the actions of an "independent businessman," and (11) petitioner performed very well on nearly every neuropsychological test, demonstrating (a) the ability to think abstractly and symbolically, (b) an exceptional memory for what he heard, (c) excellent learning ability, (d) good concentration, (e) the ability to catch on to novel tasks quickly, (f) an average intelligence, but (g) poor memory for visual symbolic information (which Dr. Costello linked to petitioner's right parietal head injury).[79] Dr. Costello concluded (1) petitioner had good ability to assess reality, to organize information, to process or think about information, to problem-solve, and to learn, (2) petitioner's ability to plan and execute a rational course of action was not in question, (3) if a life-style change toward criminal activity pre-dated petitioner's head injury, use of the head injury for mitigation purposes would be less plausible and would have to include evidence showing petitioner's criminality was not a simple process of his unique maturation into adulthood, (4) there was no information indicating petitioner was unable to assist his attorney in the preparation of petitioner's defense, (5) there was no information indicating petitioner lacked a rational and factual understanding of the proceedings against him, and (6) there was no information suggesting petitioner would not continue in his criminal career.[80] In addition to the foregoing information, attorney Hilbig met and consulted extensively with petitioner to discuss the case and explore defensive strategies.[81] Nothing in Dr. Costello's report or in any of his conferences with petitioner gave attorney Hilbig any reason to believe he should file a motion challenging petitioner's mental competence.[82] In addition, attorney Hilbig reviewed petitioner's medical records from the Austin State School. These records addressed petitioner's childhood head injury from the horseback-riding accident, the implanting of a metal plate in petitioner's head, and petitioner's mental health both prior to and following that accident.[83] Attorney Hilbig made a tactical decision not to introduce those records into evidence because (1) strategically, the focus of the defense at the guilt-innocence phase of trial was on whether petitioner had acted intentionally and, at the punishment phase, on whether petitioner had acted deliberately in shooting the decedent, (2) the records in question contained information that could have been harmful to the petitioner because they arguably showed petitioner had engaged in violent behavior prior to the date of his head injury, i.e., petitioner had taken knives to school, threatened other students, and directed profanity toward teachers prior to his head injury, and (3) the records contained information showing that no specific behavioral or intellectual changes appeared to have resulted from petitioner's head injury and parietal plate implant.[84] 1043 At the request of petitioner's counsel in this federal habeas corpus proceeding, petitioner was examined in June, 1995 by psychologist Dr. Robert Geffner who, with the assistance of another person, prepared a report styled "Neuropsychological and Psychological Evaluation."[85] That report contains observations, among others, that (1) petitioner was the youngest of seven children, (2) the brother to whom petitioner was the closest and who was petitioner's role model, Elmer Adanandus, was convicted and sent to the penitentiary in January, 1970 for armed robbery, (3) petitioner was sent to the Austin State School in September, 1970 with a diagnosis of borderline mental retardation, but an IQ test showed petitioner was in the average range of intellectual ability, (4) petitioner was diagnosed at the time of his discharge from the Austin State School as suffering from a "non-psychotic organic brain syndrome with a personality disorder, NOS" possibly resulting from petitioner's skull fracture in the right parietal region and the insertion of a plate in petitioner's head in July, 1970, (5) medical records showed petitioner had undergone another craniotomy in 1974, possibly following a second head injury sustained in a motorcycle accident; petitioner began to experience headaches and a metallic cranialplasty device was placed in the right posterior parietal portion of petitioner's skull, (6) a CAT-scan conducted in December, 1993 showed no intracranial abnormalities, (7) petitioner's medical records from state prison and Bexar County indicated a long history of non-specific seizure disorder for which petitioner had been treated with Phenobarbital and Dilantin and petitioner had been treated in state prison with Midrin for chronic migraine headaches, (8) petitioner's conduct disorder behaviors appear to predate his head injury but may have exacerbated petitioner's condition, (9) petitioner completed only the ninth grade but earned a GED while incarcerated, (10) petitioner was employed for one year as a dishwasher when he was approximately 16-years-old, has also held other low-skill jobs, such as a baggage and freight handler for American Airlines, and worked for two years at an iron foundry, (11) petitioner once again tested within the normal range of intellectual functioning and within the normal range on the vast majority of neuropsychological tests administered, (12) there were some indications of a mild neuropsychological impairment, particularly in the areas of fine motor skills, abstract reasoning, and concept formation, (13) psychological testing revealed petitioner (a) is currently pessimistic, depressed, and possibly insecure in interpersonal relationships, (b) suffers from low self-esteem, marked anxiety, and possibly a thought disorder, (c) had attempted to injure himself on one or more occasions, (d) has difficulty with planning and judgment, (e) may also have difficulty controlling impulsiveness, (f) can best be described as having a confused self-identity, perfectionistic traits, feelings of recklessness and uselessness, and tendencies toward being a loner with unstable relationships, (g) displays a tendency toward insecurity, indecisiveness, and repression, (h) is motivated by a desire to strive for and achieve power, and (i) may suffer from significant trauma resulting in anxiety, depression, sleep disturbance, 1044 and sexual difficulties, (14) petitioner is currently experiencing significant emotional distress as well as mild neuropsychological impairment that appears to have produced significant disruptions in his behavior and functioning,[86] (15) given petitioner's history of impulsive behavior, interpersonal conflicts, polysubstance abuse, and personality dysfunction, petitioner may have organic personality disorder, (16) the decline in petitioner's IQ score since 1970 may indicate a reduction in intellectual functioning possibly caused by a head injury in the mid-1970's, (17) petitioner admitted to being prone to explosive and impulsive behaviors and his test scores indicate the possibility of an intermittent explosive disorder that may be related to childhood abuse or organic processes affecting neuropsychological functioning, (18) these disorders could lead to violent impulsive acts during periods of situational stress, (19) petitioner's improved performance on some tests may be due to his living in a structured environment without the opportunity for substance abuse, (20) at the time of his offense in 1988, petitioner likely was suffering from an even greater loss of functional and cognitive abilities than at present, probably exacerbated by petitioner's psychological disturbances and polysubstance abuse, (21) those conditions likely rendered petitioner incapable of coping with stress and conflicts, (22) in 1988, petitioner likely suffered from mild to moderate brain impairment while simultaneously suffering from severe emotional and psychological disturbances, and (23) with proper treatment and structuring of petitioner's environment, it is unlikely petitioner would be a danger to himself or others.[87] b. At the Guilt-Innocence Phase Petitioner argues his trial counsel should have introduced evidence of petitioner's head injuries and neuropsychological deficiencies in mitigation at the guilt-innocence phase of trial. (1) Deficient Performance As previously discussed, the deficiency prong of Strickland is judged by counsel's conduct under the law existing at the time of the conduct.[88] Based on the foregoing evidence, the tactical decision by petitioner's trial counsel not to assert either a diminished capacity defense or some other defense premised upon petitioner's childhood head injury at the guilt-innocence phase of trial did not cause the performance of petitioner's trial counsel to "fall below an objective standard of reasonableness." On the contrary, based on the information then available to petitioner's trial counsel, the tactical decision not to assert either of these defenses at the guilt-innocence phase of trial fell well within the very broad range of tactical decision-making to which this Court must give deference. Petitioner's trial counsel reviewed petitioner's medical records from the Austin State School as well as Dr. Costello's report and reasonably concluded that either a diminished capacity defense or a defense premised on petitioner's childhood head injury could have been readily negated by petitioner's medical history and the results of Dr. Costello's examination. It is strongly presumed counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.[89] Even assuming further independent investigation by petitioner's trial counsel into petitioner's psychosocial background in 1989 would have revealed all of the information contained in Dr. Geffner's 1995 report, the tactical decision by attorney Hilbig not to 1045 attempt to use petitioner's head injuries as the basis for a defense at the guilt-innocence phase of trial was well within the realm of reasonable trial strategy. Introduction by petitioner's defense counsel of such psychological evidence at the guilt-innocence phase of trial would, necessarily, have opened the door to the admission of testimony and other evidence concerning petitioner's entire criminal history, including his prior armed robberies. It was well within the parameters of a sound trial strategy for petitioner's defense counsel to have avoided a course of action which would have permitted the prosecution to introduce evidence of petitioner's prior criminal and violent acts at the guilt-innocence phase of petitioner's capital murder trial. Furthermore, the conclusions regarding petitioner's capacity for planning and executing a course of action contained in Dr. Geffner's 1995 report are inconsistent with the conclusions contained in the report generated by Dr. Costello in 1988. Moreover, petitioner has not alleged facts showing attorney Hilbig's reliance upon Dr. Costello's conclusions was unreasonable or unjustified. In fact, attorney Hilbig reviewed petitioner's medical records from the Austin State School, Dr. Costello's report, conferred extensively with petitioner, and concluded there was no legitimate basis for a plea of insanity or a claim of mental incompetence. Therefore, attorney Hilbig was not required to conduct additional investigation into petitioner's psychological condition.[90] For the foregoing reasons, the failure of petitioner's trial counsel to conduct further investigation into petitioner's psychological and mental condition and to develop and introduce evidence at the guilt-innocence phase of trial relating to petitioner's head injuries did not cause the performance of said counsel to fall below an objective level of reasonableness. Thus, this aspect of petitioner's ineffective claim fails to satisfy the initial prong of Strickland. (2) Prejudice In addition, despite the length and breadth of Dr. Geffner's report, nothing in that report clearly establishes petitioner was incapable on January 28, 1988, of forming the intent to either rob a bank or shoot anyone who got in his way. As explained above, there was no genuine dispute petitioner robbed the bank and shot the decedent when the decedent attempted to stop the petitioner from leaving the bank. Instead, the critical issue at the guilt-innocence phase of trial was whether the actual shooting had been an intentional, as opposed to an accidental or negligent, act. The evidence introduced at the guilt-innocence phase of trial included photographs of the robbery and shooting taken by bank security cameras, as well as extensive eyewitness testimony. This evidence established that (1) petitioner planned his actions with forethought, first inspecting the bank the week before the robbery and meticulously printing a written note that directed the bank teller to take specific actions and included very specific threats, (2) on January 28, 1988, petitioner entered the bank with a fully loaded semiautomatic pistol and a bag concealed inside an expandable file folder, and made verbal and written threats on the life of bank teller Patricia Martinez, (3) petitioner obtained approximately thirteen thousand dollars from Martinez and began to walk away very quickly from Martinez toward the door, (4) after Martinez began yelling she had been robbed and threw a small sign at petitioner, petitioner pulled a gun from the waistband of his pants as he attempted to leave the bank, (5) Vernon Hanan attempted to tackle petitioner, petitioner dropped the bag containing the money, and the two men wrestled with each other from the bank lobby into the foyer, (5) petitioner pushed Hanan away from himself, (6) petitioner pointed his gun at Hanan, (7) petitioner pulled the trigger of his gun, which had a heavy trigger pull, and (8) petitioner fatally shot Hanan through the forearm, into the chest, and through the heart from a distance of approximately two feet while Hanan was falling toward a sitting position.[91] Nothing 1046 in Dr. Geffner's report indicates petitioner was mentally incompetent or otherwise incapable, on January 28, 1988, of intentionally performing any of the foregoing acts. Petitioner offered no testimony or other direct evidence at the guilt-innocence phase of trial regarding his mental state. Prejudice within the meaning of Strickland is measured by current law and not by the law as it existed at the time of the alleged error.[92] The evidence introduced at the guilt-innocence phase of trial also established that (1) after petitioner shot Hanan, petitioner turned, pointed his gun at a bank customer, re-entered the bank lobby, and recovered the bag containing the money petitioner had dropped during his struggle with Hanan,[93] (2) petitioner then fled out the front door of the bank,[94] (3) petitioner then ran across an embankment, jumped down, paused and smiled at a couple parked in their automobile, and continued his flight into a nearby residential neighborhood,[95] (4) because the crime occurred during the noon hour, a number of persons walking near the bank chased after petitioner and one bank employee gave pursuit in an automobile,[96] (5) at one point during the chase, petitioner became entangled in a fence and pointed his gun at his pursuers as they approached,[97] (6) after freeing himself from the fence, petitioner took off running again but slipped in the middle of the street, dropped some of the money from his bag, again pointed his gun at his pursuers, picked up some of the money he had dropped, and then ran off once again,[98] (7) petitioner's pursuers recovered some of the money petitioner dropped on the ground during his flight,[99] (8) law enforcement authorities closed off the area, recovered additional money petitioner had taken in the robbery that was scattered on the ground as well as petitioner's robbery note, recovered petitioner's shoes and file folder, and began a search of the neighborhood using trained dogs to locate petitioner, who was eventually found 1047 hiding beneath a house,[100] (9) law enforcement officers found petitioner's jacket inside a hole in the house under which petitioner was hiding and several thousand dollars in cash stuffed into the lining of the jacket,[101] (10) after several hours of unsuccessfully attempting to coax petitioner out from underneath the house, police first sent in a trained dog and then an officer, and the shoeless petitioner crawled out from under the house,[102] (11) law enforcement officers looked unsuccessfully for petitioner's gun that day but returned to the house the following day and, with the aid of a metal detector, found petitioner's pistol buried in several inches of soft dirt beneath the house in question,[103] (12) a law enforcement officer recovered a spent shell casing from petitioner's gun in the foyer of the bank,[104] and (13) both the spent shell casing found in the foyer of the bank and the fatal bullet removed from the body of Vernon Hanan showed signs they had been fired by petitioner's gun.[105] There is no evidence or factual allegations currently before this Court establishing a reasonable probability that, but for the failure of petitioner's trial counsel to conduct further investigation into petitioner's psychological and mental condition and to develop and introduce evidence at the guilt-innocence phase of trial relating to petitioner's head injuries, the outcome of the guilt-innocence phase of petitioner's trial would have been different. The physical evidence introduced at the guilt-innocence phase of trial established the fatal shot was fired while petitioner and Hanan were separated by at least two feet and while Hanan was falling toward a sitting position.[106] Nothing in Dr. Geffner's report establishes a reasonable probability that either (1) petitioner was mentally incompetent or otherwise incapable on January 28, 1988, of intentionally performing any of the criminal acts with which he was charged or (2) petitioner's criminal acts on January 28, 1988, were anything other than intentional. Thus, petitioner's first ineffective assistance claim also fails to satisfy the prejudice prong of Strickland. c. At the Punishment Phase Petitioner argues further his trial counsel should have introduced available evidence concerning petitioner's unstable childhood and head injuries as mitigating evidence at the punishment phase of his trial. (1) Deficient Performance The deficiency prong of Strickland is judged by counsel's conduct under the law existing at the time of the conduct.[107] As explained above, at the time of petitioner's May, 1989 trial, the Supreme Court's decision in Penry was not yet the law of the 1048 land.[108] Thus, the only three issues before the jury at the punishment phase of petitioner's trial were those listed above, i.e., questions asking whether petitioner's conduct had been deliberate, whether petitioner posed a continuing threat of violence to society, and whether petitioner's conduct in shooting Vernon Hanan had been unreasonable in response to Hanan's actions toward petitioner. The goal of petitioner's trial counsel at the punishment phase of trial was to obtain a negative answer to one or more of those jury issues. As explained above, petitioner's trial counsel obtained a psychiatric evaluation of petitioner in July, 1988 which, in pertinent part, included a finding that petitioner's "ability to plan and execute a rational course of action ... is not in question."[109] In addition, attorney Hilbig also reviewed petitioner's medical records from the Austin State School and noted that at least some portions of those records indicated petitioner had a history of violent behavior prior to any of his head injuries, and petitioner had not demonstrated any significant behavioral or intellectual deficiencies after his horseback-riding accident. The thrust of this portion of petitioner's ineffective assistance claim amounts to an argument that attorney Hilbig should have disregarded Dr. Costello's report and the contents of petitioner's medical records and conducted a far-ranging search for psychological evidence that might have mitigating value at the punishment phase of trial. However, the fact that Dr. Geffner's June, 1995 report contains arguably mitigating psychological evidence regarding petitioner's psychosocial history does not establish that attorney Hilbig's performance was professionally deficient in 1988 and 1989. "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources."[110] Given the clarity of Dr. Costello's conclusions with regard to petitioner's ability to plan and execute a rational course of action, the contents of petitioner's medical records, as well as petitioner's long track record for violent offenses including robbery discussed below, attorney Hilbig could have rationally concluded in 1988-89 that further investigation into petitioner's psychosocial history was not the most efficient use of the time and resources then available to defense counsel. Even if petitioner's trial counsel had conducted a more thorough investigation into petitioner's psychosocial background in 1988-89 and had obtained evidence consistent with the findings and conclusions reported by Dr. Geffner in 1995, at best, such evidence would have represented a double-edged sword. While such evidence might have tended to support petitioner's argument that petitioner's shooting of Vernon Hanan had not been a deliberate act but rather a violent outburst resulting from a stressful situation, it would also have supported the prosecution's contention that petitioner posed a continuing threat of violence to society. Furthermore, given the statements contained in both the reports of Dr. Costello and Dr. Geffner relating to petitioner's normal intellectual functioning, psychological testimony or other evidence along the lines of that contained in Dr. Geffner's report could have been used by the prosecution to bolster its contention that, when he entered the bank with a loaded weapon and note that included express death threats, petitioner deliberately placed himself in a situation in which he knew he might be required to use deadly force. Testimony 1049 such as that contained in Dr. Geffner's report establishing that petitioner functioned within the normal intelligence range would have bolstered the prosecution's contention that petitioner fully understood the gravity of his act of robbery and was fully prepared to use such force if necessary to complete his robbery. While the evidence relating to petitioner's head injuries, neuropsychological and psychological deficiencies, and propensity toward violent, explosive behavior contained in Dr. Geffner's report could have assisted petitioner's trial counsel in its argument that petitioner's action in shooting Vernon Hanan was not deliberate, there is nothing in Dr. Geffner's report suggesting petitioner's criminal actions on January 28, 1988, were actually caused by or the product of those injuries, deficiencies, or propensities. In addition, Dr. Geffner's report contains considerable information which would have supported positive answers to each of the three special punishment phase jury issues, such as indications that petitioner's older-brother-role-model had been convicted of armed robbery and sent to the penitentiary, petitioner's antisocial behavior predated his first head injury, petitioner had difficulty relating to others, and petitioner was capable of violent, explosive behavior. Had petitioner's trial counsel attempted to use petitioner's medical records and history of head injuries to attack the prosecution's position on the deliberateness or provocation issues, the prosecution could have cited to the very same portions of those records discussed by attorney Hilbig at the evidentiary hearing on petitioner's state habeas corpus application.[111] Those records arguably showed petitioner's tendency toward violent behavior predated his head injuries and petitioner had not sustained any significant behavioral changes or diminution in intellectual capacity following his horseback-riding accident.[112] Furthermore, while there was evidence indicating petitioner was treated initially for a seizure disorder and later for epilepsy after his horseback-riding accident, there was nothing contained in any of petitioner's medical records establishing petitioner had sought or received any psychological care since his last stay at the Austin State Hospital in the early 1970's. There was no evidence introduced at trial and there is no evidence in any of the material currently before this Court establishing that petitioner experienced any sort of epileptic seizure or other neurological dysfunction during the actual commission of his offense or that his criminal conduct was caused by his epileptic condition. The evidence at the punishment phase of petitioner's trial established that (1) on May 12, 1974, petitioner shot Lloyd Joe McGrew in the head during an altercation between petitioner and one of McGrew's brothers,[113] (2) petitioner was arrested on November 19, 1978, for unlawfully carrying a handgun and booked under the name "Paul Brown,"[114] (3) petitioner was arrested in San Antonio, Texas, on September 28, 1979, while in the course of burglarizing a store,[115] (4) petitioner robbed a convenience store at gun point on August 16, 1980, in Sweetwater, Texas, demanded the lone female store clerk's car keys and purse, ripped the telephone off the wall before he left the store, and threatened to shoot the clerk if she left the store within 1050 ten minutes of petitioner's departure,[116] (5) also in August, 1980, petitioner robbed another lone female convenience store clerk in Abilene, Texas, at gun point,[117] (6) on August 20, 1980, petitioner was arrested while driving a pickup truck that had been stolen just hours before from a residence in Amarillo, Texas, after a unknown person burglarized the residence and took the keys to that vehicle,[118] (7) on August 21, 1986, petitioner robbed the Sunbelt Savings branch office in Hurst, Texas, by handing an employee a note containing almost verbatim the same death threats contained in the note petitioner used in his robbery of the Continental National Bank ["CNB"] in San Antonio on January 28, 1988,[119] (8) during his robbery of the Sunbelt Savings branch, petitioner wore a brace over his forearm and wrist similar to the one he wore on January 28, 1988, when he robbed the CNB,[120] (9) the wrist brace concealed a prominent and noticeable tatoo on the back of petitioner's hand,[121] and (10) the note petitioner gave to Patricia Martinez at the CNB on January 28, 1988, was written in two different colors of ink and showed signs it had been drawn with a straight-edge and portions of it had been re-touched.[122] Petitioner testified at the punishment phase of his trial and admitted (1) he committed the two convenience store robberies in August, 1980 listed above, (2) he was also convicted of multiple counts of burglary and forgery, (3) he committed the pair of convenience store robberies in question while he was free on bond pending the disposition of his burglary and forgery charges, (4) he took the store clerk's car when he robbed the convenience store in Sweetwater, (5) he did not intend to kill Vernon Hanan, although he did point his gun at Hanan and pull the trigger, (6) after he shot Hanan, he looked down at Hanan on the floor for four or five seconds before returning to the bank lobby to recover the bag containing the money and knew Hanan was hurt, and (7) he removed his wrist brace while underneath the house.[123] As explained above, attorney Hilbig requested and obtained a psychiatric evaluation of the petitioner in July, 1988 which resulted, in pertinent part, in Dr. Costello's clear and unambiguous written finding that petitioner's "ability to plan and execute a rational course of action ... is not in question."[124] Faced with that finding, the other evidence discussed above, the potential double-edged sword nature of the contents of petitioner's medical records concerning head injuries, and the unavailability of a Penry instruction at the time of petitioner's trial, the decision by petitioner's trial counsel not to introduce petitioner's medical records or to assert a defense at the punishment phase of trial based on petitioner's prior head injuries was within the realm of reasonable trial tactics. Because petitioner was tried prior to the date of the Supreme Court's opinion in Penry, the only way the jury could have given effect to any potentially mitigating evidence regarding petitioner's prior head injuries would have been through the deliberateness and provocation issues. As explained above, however, the same medical records and psychological 1051 evaluations which petitioner now argues would have shown he shot Vernon Hanan reflexively rather than deliberately would also have shown that despite the fact his propensity toward violent behavior predated any of his head injuries and the fact he was prone to violent outbursts, petitioner had always performed within the normal range of intellectual functioning. Under such circumstances, the failure of attorney Hilbig to conduct a more searching investigation into petitioner's psychosocial history or to present other evidence then available showing petitioner had suffered a childhood head injury did not cause the performance of said counsel to fall below an objective level of reasonableness. In addition, given the evidence of petitioner's extensive criminal record and long-term history of violent behavior, petitioner's trial counsel did not act unreasonably in failing to present testimony from petitioner's family members and close personal friends purportedly establishing petitioner was kind and gentle with others. Furthermore, petitioner's trial counsel could reasonably have believed calling members of petitioner's immediate family and close personal friends to testify at the punishment phase of trial, and make a appeal for mercy, could alienate a jury which had already convicted petitioner of a capital murder.[125] Thus, this aspect of petitioner's ineffective assistance claim does not satisfy the initial prong of Strickland. (2) Prejudice As previously stated, prejudice within the meaning of Strickland is measured by current law and not by the law as it existed at the time of the alleged error.[126] The Fifth Circuit has held that, in order to constitute "relevant" mitigating evidence for Penry purposes, evidence of a defendant's background and character must relate to and diminish the defendant's moral culpability for the offense with which he is charged.[127] Mitigating evidence is "relevant" at the punishment phase of a Texas capital murder trial only if it implicates the basic concern of Penry defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. In order to meet this relevance standard, the evidence must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) the 1052 criminal act was attributable to this severe permanent condition.[128] It is unlikely the evidence of petitioner's childhood head injuries would even qualify as "relevant" mitigating evidence for Penry purposes. As explained above, petitioner's medical records from the Austin State School and other information contained in Dr. Geffner's report, which petitioner now argues should have been introduced as "mitigating" evidence at the punishment phase of his trial, included information which established (1) petitioner's violent, antisocial behavior predated his head injuries, (2) petitioner's older brother and role model had been convicted of armed robbery when petitioner was thirteen years old, (3) petitioner had a long history of polysubstance abuse beginning at an early age, and (4) despite petitioner's head injuries, seizure disorder, and history of substance abuse, petitioner had completed the ninth grade, earned a GED, and always tested within the normal range of intellectual functioning. Thus, there was nothing in the medical records then available to petitioner's trial counsel establishing petitioner's criminal conduct on January 28, 1988, was the product of or attributable to the head injuries petitioner had sustained as a child. Also as explained above, the evidence introduced during petitioner's trial established that (1) petitioner carefully used two different pens and a straight edge to write a menacing note threatening the bank teller with death,[129] (2) petitioner "cased" or inspected the bank the week before the robbery,[130] (3) petitioner carried a fully loaded pistol in the waistband of his pants when he entered the CNB on January 28, 1988,[131] (4) petitioner wore a wrist brace over his hand and wrist to conceal noticeable tatoos,[132] (5) petitioner not only gave the teller the threatening note but also orally threatened to kill her if she ever identified him,[133] (6) petitioner withdrew his gun after the teller began shouting and threw a sign at him,[134] (7) before he had any physical contact with Vernon Hanan, petitioner told Vernon Hanan and a companion to "get out of my way,"[135] (8) petitioner swung at Hanan several times immediately after Hanan lunged at petitioner,[136] (9) the two men wrestled from the bank lobby into the foyer,[137] and (10) petitioner shoved Hanan away from himself, pointed his gun at Hanan, pulled the heavy trigger, and shot Hanan through the heart while Hanan was falling in a sitting position at least two feet from petitioner's outstretched arm and gun.[138] 1053 Eyewitnesses Patricia Martinez and Nehemiah Cantu both testified petitioner pointed his gun at Hanan.[139] Petitioner admitted during his testimony at the punishment phase of trial he had pulled the trigger of his gun.[140] A firearms expert testified at petitioner's trial that petitioner's gun had a heavy trigger pull.[141] While petitioner did repeatedly state during his testimony at the punishment phase of trial he had not intentionally killed Hanan,[142] he admitted to having pulled the trigger of his gun,[143] admitted he refused to advise the police regarding the location of his gun at the time of his arrest,[144] and admitted he returned to the bank lobby after shooting Hanan to retrieve the bag containing the money.[145] During his testimony at the punishment phase of trial, petitioner specifically denied he was mentally incompetent,[146] and the jury had the first-hand opportunity to view petitioner's demeanor. In addition, no evidence was introduced at trial and there is no evidence in the record now before this Court establishing petitioner was suffering from any sort of epileptic seizure-related condition at the time he fired the fatal shot. Petitioner did testify at the punishment phase of his trial he felt remorse for having caused the death of Vernon Hanan.[147] Thus, there was at least some potentially mitigating evidence presented at the punishment phase of petitioner's trial. For the reasons discussed above, however, given the potentially damaging evidence contained in petitioner's records from the Austin State School,[148] the tactical decision by petitioner's trial counsel not to assert that petitioner's head injuries lessened petitioner's moral culpability for his crime was a reasonable one and well within the broad range of counsel's tactical discretion. Moreover, given the evidence contained in petitioner's records from the Austin State School indicating petitioner had a long history of behavioral problems prior to the date of petitioner's initial head injury and the findings made by Dr. Costello after his examination of the petitioner, there is no reasonable 1054 likelihood that, but for the decision by petitioner's trial counsel not to present evidence or argue that petitioner's head injuries mitigated petitioner's moral culpability, the outcome of the punishment phase of petitioner's trial would have been different. Analysis of the second or "prejudice" prong of the Strickland test must include examination of whether counsel's deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair.[149] "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him."[150] As explained above, the decision by petitioner's trial counsel not to pursue further investigation into petitioner's psychosocial history and background in search of potential mitigating evidence was a rational decision made after review of petitioner's medical records, review of Dr. Costello's report, and said counsel's own examination of petitioner during their conferences prior to trial. The decisions by petitioner's trial counsel not to introduce petitioner's medical records into evidence at the punishment phase of petitioner's trial and not to argue petitioner's head injuries lessened petitioner's moral culpability were rational ones based on the results of Dr. Costello's examination of petitioner and the presence in those records of information which could have harmed petitioner's chances of obtaining a negative answer to one or more of the special sentencing issues. Those decisions did not render the outcome of the punishment phase of petitioner's trial unreliable and did not render that proceeding fundamentally unfair. Given petitioner's lengthy and violent criminal record, there is no reasonable probability that, but for the failure of petitioner's trial counsel to either investigate further the petitioner's psychosocial history or introduce evidence concerning petitioner's childhood head injuries and subsequent history of seizure disorders, or introduce testimony regarding the petitioner's capacity for gentleness and kindness toward close friends and family members, the outcome of the punishment phase of petitioner's trial would have been any different.[151] Thus, petitioner's second ineffective assistance claim also fails to satisfy the prejudice prong of Strickland. 4. Conflict of Interest In his third claim of ineffective assistance by trial counsel, petitioner argues attorney Hilbig's "political ambitions caused a conflict of interest."[152] More specifically, petitioner alleges that, during an unspecified time period, attorney Hilbig was a candidate for the position of United States Attorney for the Western District of Texas and later successfully ran for the office of Bexar County District Attorney.[153] Petitioner argues attorney Hilbig's conflict of interest is demonstrated by his admission during closing arguments at the punishment phase of petitioner's trial that he (attorney Hilbig) firmly believed in the efficacy of the death penalty.[154] Petitioner argues further that because of this conflict of interest, prejudice within the meaning of Strickland must be presumed. However, in Beets v. Scott,[155] the Fifth Circuit rejected such a broad-ranging approach to conflict of interest issues.[156] In 1055 so doing, the Fifth Circuit rejected a broad application of the presumed prejudice rule announced in Cuyler v. Sullivan,[157] choosing instead a more pragmatic approach under which a petitioner asserting an ineffective assistance claim based on a purported conflict of interest must ordinarily satisfy both prongs of the Strickland test.[158] Petitioner admits in his second amended petition his trial counsel revealed to him that he (attorney Hilbig) was a candidate for the U.S. Attorney position. Petitioner suggests this revelation was made in conjunction with a threat that withdrawal of said counsel would cause great delay in petitioner's trial. Assuming arguendo that petitioner's trial counsel breached some unspecified ethical standard in the course of advising petitioner of counsel's candidacy for the U.S. Attorney position, that breach does not establish a per se violation of petitioner's Sixth Amendment right to effective assistance.[159] Thus, to warrant federal habeas relief, petitioner's final ineffective assistance claim must satisfy both prongs of the Strickland test. To establish ineffective assistance based on a conflict of interest, a petitioner who failed to raise an objection at trial must demonstrate that an actual conflict of interest adversely affected his attorney's performance.[160] However, the presumption of prejudice resulting from this rule applies only in multiple representation cases.[161] The purported conflict of interest asserted by petitioner herein does not fall within the scope of the presumed prejudice rule as defined in Beets. While the fact petitioner's trial counsel was engaged in seeking the position of U.S. Attorney at the time of petitioner's trial might have presented a potential conflict of interest, petitioner has alleged no facts showing this potential conflict ever evolved into an actual conflict.[162] Petitioner argues his trial counsel's candidacy for the position in question tainted counsel's closing argument during the punishment phase of trial because attorney Hilbig admitted his own beliefs in the efficacy of the death penalty in arguing the death penalty should not be imposed on petitioner. However, these assertions are far too speculative to support a finding of prejudice under Strickland.[163] Petitioner had no constitutional right to be defended at trial by an attorney who was personally, politically, or morally opposed to the death penalty per se. Likewise, the mere fact petitioner's trial attorney was, at the 1056 time of trial, a candidate for an appointed federal office, without more, is insufficient to support a finding of an actual conflict of interest.[164] Further, this Court has independently reviewed the entirety of attorney Hilbig's closing argument at the punishment phase of trial and finds (1) the argument was consistent in both tenor and tone with the arguments made by petitioner's other trial counsel, attorney David R. Weiner, (2) the dual prongs of attorney Hilbig's argument at the punishment phase of petitioner's trial were that the death penalty was not an appropriate penalty in petitioner's case and the prosecution had employed appeals to emotion in lieu of presenting evidence establishing petitioner had acted deliberately in shooting Vernon Hanan, (3) attorney Hilbig argued that, in view of the very brief period of time between Vernon Hanan's initial lunge at petitioner and the firing of the fatal shot, petitioner's shooting of Hanan was not "deliberate," and (4) attorney Hilbig argued that despite petitioner's criminal record of previous robberies, there was no evidence petitioner had previously fired his weapon during any of those robberies.[165] When viewed in the context of the entire closing argument made by petitioner's two defense counsel and in light of the evidence that was then before the petitioner's jury, as outlined above, attorney Hilbig's expression of his own personal belief in the efficacy of the death penalty did not cause the performance of said counsel to fall below an objective level of reasonableness, and there is no reasonable probability that, but for those admissions, the outcome of the punishment phase of petitioner's trial would have been different. Finally, when viewed in this context, the admissions made by attorney Hilbig during closing argument at the punishment phase of petitioner's trial did not render the outcome of the punishment phase of petitioner's trial unreliable and did not render that proceeding fundamentally unfair. Moreover, the potential for a conflict of interest in petitioner's case is far less than the potential conflict found wanting by the Fifth Circuit in Beets.[166] Petitioner has alleged no facts showing his interests, financial or otherwise, were ever adverse to the interests of his trial counsel. Thus, this is not a situation in which petitioner's defense counsel represented parties with adverse interests simultaneously or even sequentially.[167] As in Beets, petitioner has failed to demonstrate any constitutional deficiency in the performance of his trial counsel resulting from the fact his attorney was then a candidate for the position of U.S. Attorney. In short, petitioner has alleged no facts showing that because (1) his trial counsel was a candidate for the position of U.S. Attorney at the time of petitioner's trial and (2) petitioner's trial counsel subsequently successfully campaigned for election to the position of Bexar County Criminal District Attorney, an actual conflict of interest existed which impacted 1057 petitioner's trial or prejudiced petitioner within the meaning of Strickland. Therefore, petitioner's arguments in support of his final assertion of ineffective assistance of counsel do not warrant federal habeas relief. B. Trial Court's Failure to Define "Reasonable Doubt" at Guilt-Innocence Phase of Trial In his second ground for federal habeas corpus relief, petitioner argues the state trial court erred in failing to instruct the jury at the guilt-innocence phase of trial as to the definition of the term "reasonable doubt." Petitioner also points out that in Geesa v. State,[168] decided after petitioner's trial but while petitioner's direct appeal was still pending before the Texas Court of Criminal Appeals, the same state appellate court ruled a definition of reasonable doubt must be given in all Texas criminal cases, even in the absence of an objection or request for same.[169] Petitioner attempts to characterize the rule announced in Geesa as one of federal constitutional principle and argues, therefore, the refusal of the Texas Court of Criminal Appeals to retroactively apply that rule to petitioner's and other cases tried prior to the date of the opinion in Geesa violates federal equal protection principles. However, the Fifth Circuit has held the failure to include a definition of "reasonable doubt" in the jury charge does not deprive a defendant of due process or render a capital murder trial unfair: Although the jury must be instructed that the state bears the burden of proving the defendant's guilt beyond a reasonable doubt, attempts by trial courts to define "reasonable doubt" have been disfavored by this court. Such attempts often result in using the term itself in the definition and serve only to confuse the concept in the minds of jurors.[170] Moreover, the Fifth Circuit has expressly rejected the same arguments raised herein by petitioner, holding the rule announced in Geesa is not mandated by federal constitutional principles and recognizing a state need only satisfy the rational basis test to pass equal protection scrutiny with regard to the non-retroactivity of a new state procedural rule.[171] "[T]he rule announced in Geesa was not required by the federal constitution or law."[172] Petitioner has presented no factual allegations showing the absence of a rational basis for the refusal of the Texas Court of Criminal Appeals to give its holding in Geesa retroactive effect.[173] Therefore, petitioner's second ground for federal habeas relief does not warrant same. C. Absence of Lesser-Included Offense Instructions In his third ground for federal habeas corpus relief, petitioner argues the state trial court erred in denying petitioner's requests for jury instructions at the guilt-innocence phase of trial on the lesser-included offenses of felony murder, voluntary manslaughter, and involuntary manslaughter.[174] In a capital murder case, a criminal defendant is constitutionally entitled to an instruction on a lesser-included offense if the evidence would permit a jury rationally to find 1058 the defendant guilty of the lesser offense and acquit him of the greater.[175] The Fifth Circuit has routinely applied this same standard to its review of Texas capital murder cases.[176] Therefore, a Texas capital murder defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and to acquit him of the greater.[177] This necessarily requires a showing that the facts of the case and the laws of the state warrant such an instruction.[178] 1. Felony Murder The Texas Court of Criminal Appeals held petitioner was not entitled to an instruction under Texas law on the lesser-included offense of felony murder.[179] After independently reviewing the extensive testimony from the guilt-innocence phase of petitioner's state court trial, this Court agrees. Felony murder under Texas law consists of a person committing or attempting to commit an underlying offense and, in the course and furtherance of that commission or attempt, that person commits or attempts to commit an act clearly dangerous to human life that causes the death of the victim.[180] As the Texas Court of Criminal Appeals noted in its opinion affirming petitioner's conviction, the principal difference between capital murder and felony murder at the time of petitioner's trial was the mental state necessary to support a conviction for those two offenses; capital murder required proof of an intentional killing while felony murder required only proof of an intent to commit the underlying felony, in this case robbery.[181] Therefore, to require an instruction on felony murder under Texas law as a matter of constitutional principle, the evidence at petitioner's trial had to permit a rational jury to conclude that petitioner had intended merely to commit the underlying offense of robbery but, during the commission of or attempt to commit that robbery, petitioner actually caused the death of the decedent by committing an act clearly dangerous to human life without actually intending to kill the decedent.[182] Petitioner argues there was no direct evidence at the guilt-innocence phase of his trial showing he subjectively formulated the intent to cause the death of the decedent or did so during the actual commission of the underlying predicate offense. However, petitioner misconstrues applicable state 1059 law. First, there is no requirement under Texas law in a case of capital murder committed in the course of a robbery that the intent to cause death be premeditated or formulated prior to the commission of the robbery; the offender must only have formulated the intent to cause death when he actually committed the murder.[183] Second, under applicable Texas law, intent to kill may be inferred from the use of a deadly weapon in a deadly manner; further, that inference is virtually conclusive on the issue of the defendant's intent to kill.[184] Petitioner offered absolutely no evidence at the guilt-innocence phase of trial to rebut the inference petitioner intended to kill Vernon Hanan when he aimed a fully loaded pistol at Vernon Hanan's heart and pulled the trigger. Petitioner did not testify at the guilt-innocence phase of his trial or offer any other direct evidence at that phase of trial establishing he intended only to commit a robbery and not to kill Vernon Hanan. On the contrary, the evidence, described above, established that (1) petitioner carried a fully loaded pistol in the waistband of his pants when he entered the CNB on January 28, 1988,[185] (2) petitioner wore a wrist brace over his hand and wrist to conceal noticeable tatoos,[186] (3) petitioner not only gave the teller the threatening note but also orally threatened to kill her if she ever identified him,[187] (4) petitioner withdrew his gun after the teller began shouting and threw a sign at him,[188] (5) petitioner told Vernon Hanan and a companion to "get out of my way," before he had any physical contact with Vernon Hanan,[189] (6) petitioner swung at Hanan several times immediately after Hanan lunged at the petitioner,[190] (7) the two men wrestled from the bank lobby into the foyer,[191] and (8) petitioner shoved Hanan away from himself, pointed his gun at Hanan, pulled the heavy trigger, and shot Hanan through the heart while Hanan was falling in a sitting position at least two feet away from petitioner's outstretched arm and gun.[192] As noted by the Texas Court of Criminal Appeals, there was absolutely no evidence at the guilt-innocence phase of trial establishing petitioner and Hanan ever struggled over the gun, that the 1060 fatal shot was fired at close range, or that petitioner's pistol misfired or discharged accidentally.[193] Thus, there was simply no evidence introduced at the guilt-innocence phase of petitioner's trial from which the jury could have rationally inferred that petitioner intended to commit only a robbery or that his fatal shooting of Vernon Hanan was anything other than intentional. The unambiguously deadly manner in which petitioner used a deadly weapon, i.e., petitioner's fully-loaded pistol, to shoot Vernon Hanan through the heart gave rise to a near-conclusive inference petitioner intended to kill Vernon Hanan when he engaged in that act.[194] Thus, petitioner was not entitled to a jury instruction on the lesser-included offense of felony murder, and the state trial court's denial of petitioner's request for same did not violate his federal constitutional rights. 2. Voluntary Manslaughter The Texas Court of Criminal Appeals also held petitioner was not entitled to a jury instruction on the lesser-included offense of voluntary manslaughter.[195] This Court has independently reviewed the extensive testimony from the guilt-innocence phase of petitioner's state court trial and agrees. At the time of petitioner's offense and trial, a charge on voluntary manslaughter was appropriate under Texas law when there was evidence the defendant had caused the death of the decedent under the "immediate influence of sudden passion arising from adequate cause."[196] However, as noted by the Texas Court of Criminal Appeals, under applicable Texas law, when a defendant initiates the criminal episode which leads to the victim's death and the victim was acting in an attempt to prevent the commission of the felony by the defendant, the victim's actions cannot, as a matter of law, rise to the level of "adequate cause" from which sudden passion may arise under the former Texas voluntary manslaughter statute.[197] In petitioner's case, it was undisputed Vernon Hanan was attempting to thwart petitioner's robbery of the CNB when Hanan initiated his contact with petitioner. Thus, nothing Hanan did during the course of attempting to thwart petitioner's robbery could rise to the level of "adequate cause" under applicable Texas law, and petitioner was not entitled to a jury instruction on the lesser-included offense of voluntary manslaughter. Accordingly, the state trial court's denial of petitioner's request for same did not violate petitioner's federal constitutional rights. 3. Involuntary Manslaughter The Texas Court of Criminal Appeals also held petitioner was not entitled to a jury instruction on the lesser-included offense of involuntary manslaughter.[198] Again, this Court has independently reviewed the extensive testimony from the guilt-innocence 1061 phase of petitioner's state court trial and agrees with the state court. At the time of petitioner's offense and trial, a charge on involuntary manslaughter was appropriate under Texas law when there was evidence establishing the defendant recklessly caused the death of the decedent.[199] However, as noted by the Texas Court of Criminal Appeals, there was no evidence at the guilt-innocence phase of trial establishing petitioner and Hanan ever struggled over petitioner's gun, the fatal shot was fired at close range, or petitioner's pistol misfired or discharged accidentally.[200] The petitioner did not testify at the guilt-innocence phase of trial. Moreover, the evidence at the guilt-innocence phase of trial included photographs of petitioner aiming his gun at Hanan and the gun firing while Hanan was falling a few feet away from petitioner.[201] Finally, there is the fact the fatal shot pierced Hanan's sternum and ripped through Hanan's heart.[202] Given the overwhelming and largely uncontroverted eyewitness testimony, physical evidence, and photographic evidence establishing petitioner aimed his fully-loaded pistol directly at Hanan's heart and pulled the heavy trigger of his pistol, there was no evidence before the jury at the guilt-innocence phase of petitioner's trial from which a rational jury could have found petitioner acted only with a conscious disregard of a substantial and unjustifiable risk to Hanan's life. Consequently, petitioner was not entitled to a jury instruction on the lesser-included offense of involuntary manslaughter, and the state trial court's denial of petitioner's request for same did not violate petitioner's federal constitutional rights. D. Trial Court's Refusal to Give Petitioner's Definition of "Deliberately" In his fourth ground for federal habeas relief, petitioner complains the state trial court refused to give the entire definition of the term "deliberately" requested by him as a part of the jury instructions at the punishment phase of petitioner's trial.[203] The petitioner's state trial court defined the term "deliberately" in its punishment phase jury instructions as having "a meaning different and distinct from the word `intentionally' as that word is defined below" and then set forth the appropriate definition of "intentionally."[204] Petitioner has identified no error in that definition of "deliberately" under applicable Texas law nor has petitioner cited any authority holding the additional language included in defense counsel's requested definition of "deliberately" was required under applicable state law.[205] Further, the Fifth Circuit has repeatedly held a Texas trial court's refusal to give definitions of the terms "deliberately" and "deliberateness" does not violate a Texas capital murder defendant's 1062 constitutional rights.[206] Alternatively, petitioner does not cite to any authority existing at the time his conviction became final which mandated the precise language included in petitioner's requested definition of "deliberately" as a matter of constitutional principle. Thus, adoption of the new requirement urged by petitioner in his fourth ground for federal habeas relief would run afoul of the non-retroactivity doctrine recognized in Teague v. Lane.[207] Federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review.[208] Under Teague, a "new rule" is one which was not dictated by precedent existing at the time the defendant's conviction became final.[209] Under this doctrine, unless reasonable jurists hearing the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review.[210] This non-retroactivity doctrine applies equally to a novel application of an old rule.[211] Adoption of the rule suggested by petitioner would violate the non-retroactivity doctrine of Teague. Petitioner's fourth ground for federal habeas corpus relief is also denied. E. Alleged Failure to Provide Exculpatory Evidence: Brady Claim In his fifth ground for federal habeas relief, petitioner argues the prosecution withheld from defense counsel a copy of a transcript from an evidentiary hearing held on April 27, 1981, in state district court in Nolan County, Texas. The evidentiary hearing was held in connection with petitioner's entry of a guilty plea to a charge of aggravated robbery, and during the hearing, petitioner's counsel expressed his opinion that petitioner was not competent to enter a guilty plea.[212] 1063 The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.[213] Impeachment evidence also falls within the Brady rule.[214] Even inadmissible evidence may be material for Brady purposes.[215] There are three elements to a valid Brady claim: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense.[216] Undisclosed evidence is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.[217] A reasonable probability of a different result is shown when nondisclosure puts the case in a different light so as to undermine confidence in the jury verdict.[218] If materiality is established, no harmless error analysis is employed.[219] Petitioner's Brady claim fails for at least three reasons. First, there is nothing in the record before this Court establishing the prosecution ever withheld, suppressed, or concealed from petitioner's trial counsel either the fact that a hearing relating at least tangentially to petitioner's competence was held in state district court in April, 1981, or that one of the subjects of that hearing was petitioner's competence. In fact, petitioner as well as petitioner's mother testified at that hearing, and must, therefore, have had personal knowledge of both the fact that such a hearing was held in April, 1981, as well as the subjects of that hearing. Petitioner does not allege he failed to advise his own trial counsel of either of those subjects or that he concealed from his own trial counsel information relating to that hearing. By definition, information already within the personal knowledge of a criminal defendant cannot be "suppressed or withheld" from the defense.[220] Moreover, as pointed out by the state habeas court in its factual findings, the information which petitioner now alleges was "suppressed or withheld" by the prosecution was in the form of a public record.[221] A Brady violation does not 1064 arise if the defendant, using reasonable diligence, could have obtained the information.[222] Petitioner has alleged no facts establishing he was unaware a hearing had been held in Nolan County on April 27, 1981, or that he was unable to obtain a transcript of same despite the exercise of reasonable diligence on his part. Second, petitioner has not established there was any "favorable" information contained in the hearing transcript. At the Nolan County hearing on April 27, 1981, (1) petitioner's criminal defense counsel expressed his opinion petitioner was not competent to stand trial,[223] (2) petitioner's mother, Mrs. Frances Ruth Davis, was sworn and testified (a) petitioner suffered a "nervous breakdown" after the death of his maternal grandmother, (b) on an unspecified occasion, petitioner suffered a head injury in a horseback-riding accident and later had a metal plate placed in his head, (c) petitioner was sent to the Austin State School and stayed there initially for nine months and then returned there for a second, six-week stay on another occasion, (d) petitioner behaves irrationally at times, (e) petitioner does not know right from wrong, (f) while hospitalized, petitioner was declared insane, (g) petitioner's head injury occurred prior to his entry into junior high, (h) petitioner had not been hospitalized for his mental problems since 1968, (i) subsequent to his head injury, petitioner completed the tenth or eleventh grade in school and held a number of jobs, (j) at some point petitioner was prescribed valium but petitioner last took that medication in 1973, (k) petitioner has not seen a psychiatrist since 1973, (l) despite the foregoing, she has spoken with her son and believed he understood the nature of the charge that was then pending against him, (m) she believed petitioner was competent to communicate effectively with his attorney, (n) she had no disagreement with the trial court's ruling petitioner was competent to enter a guilty plea, and (o) she wanted the trial court to accept petitioner's plea,[224] (3) petitioner himself testified (a) he understood the nature of the aggravated robbery charge then pending against him arising out of petitioner's armed robbery of a convenience store on August 16, 1980, (b) he had taken the purse and automobile of Linda Davidson during that robbery, (c) he had previously been convicted of forgery in Gonzales County, and of burglary of a building, passing a forged check, and theft in Bexar County, and (d) he was guilty of the aggravated robbery charge against him,[225] and (4) the state trial court found petitioner competent to enter a guilty plea to that charge and accepted same.[226] Thus, at best, the April 27, 1981 1065 hearing transcript established (1) petitioner's defense counsel had raised a question as to petitioner's competence to enter a guilty plea on that date, (2) petitioner's mother provided information as to petitioner's head injury and mental problems, her opinion concerning petitioner's ability to tell right from wrong and his ability to effectively communicate with his counsel and understand the charge against him, information on petitioner's academic success following the head injury, his employment history, and the fact petitioner had not had any mental problems since 1973, (3) petitioner testified he understood the nature of the charge against him and the factual basis for his guilty plea thereto, and (4) the state trial court found petitioner competent to enter a guilty plea and petitioner had entered a voluntary plea to the charge then pending against him. "Favorable" evidence is either exculpatory or impeaching evidence which, if disclosed and used effectively, may make a difference between conviction or acquittal.[227] None of the information included in the April 27, 1981 hearing transcript satisfies this standard.[228] Finally, petitioner has alleged no facts establishing any of the information contained in the April 27, 1981 hearing transcript was "material" for Brady purposes. As explained above, the ultimate outcome of the April 27, 1981 hearing was that the state trial court found petitioner competent to enter a guilty plea to a charge of aggravated robbery committed with a firearm and accepted petitioner's voluntary guilty plea to that charge. Although petitioner's mother testified at the April 27, 1981 hearing about petitioner's history of head injuries and her belief that petitioner did not know right from wrong, petitioner testified he understood the nature of the charges against him and the consequences of his guilty plea. The state trial court found petitioner mentally competent and capable of entering a voluntary guilty plea. Moreover, the prosecution had available to it at petitioner's capital murder trial the same records from the Austin State School which petitioner's trial counsel had reviewed and found to undermine both an incompetence defense and any effort to assert that petitioner's head injuries mitigated his moral culpability for his crime. Also, Dr. Costello's report effectively negated any contention petitioner was mentally incompetent at the time of his capital murder trial or that he was incapable of planning and executing a scheme such as the robbery of the CNB. Petitioner himself testified at great length during the punishment phase of his capital murder trial and demonstrated a clear understanding of the evidence which had been introduced at trial as well as a high degree of familiarity with many items of evidence his trial counsel had successfully excluded during the guilt-innocence phase of trial.[229] Under these circumstances, the hearing transcript from petitioner's 1066 April 27, 1981 guilty plea hearing was not "material" within the meaning of Brady. There is no reasonable probability that, had the April 27, 1981 hearing transcript been furnished to the defense by the prosecution, the result of either the guilt-innocence or punishment phase of petitioner's trial would have been different.[230] For the foregoing reasons, petitioner's complaints in his fifth ground for relief about the prosecution's failure to furnish petitioner's trial counsel with a copy of the April 27, 1981 hearing transcript do not satisfy any of the three Brady criteria discussed above and do not warrant federal habeas relief. F. Invalid Prior Conviction In his sixth ground for federal habeas relief, petitioner argues his death sentence was based, in part, upon an invalid prior conviction, to wit, petitioner's April 27, 1981 state court conviction in Nolan County for aggravated robbery committed with a firearm.[231] Respondent points out, however, the state habeas corpus court specifically held petitioner had procedurally defaulted on this claim by failing to object at trial to the introduction of evidence concerning this same prior conviction. 1. Procedural Default The Fifth Circuit has repeatedly held that a finding by a Texas appellate court that a criminal defendant failed to comply with the Texas contemporaneous objection rule constitutes an independent and adequate basis for a federal habeas court's refusal to address the merits of a claim for federal habeas corpus relief.[232] When a state law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.[233] Generally speaking, in order for a claim of procedural default to preclude federal review of a habeas petitioner's claim, the last state court issuing a reasoned decision must have clearly and unequivocally relied upon the procedural default as an independent and adequate ground for denying relief.[234] When a state court finds a federal claim is procedurally barred but goes on to reach the merits of that claim in the alternative, the state court's reliance on the procedural default still constitutes an independent and adequate ground which bars federal habeas review.[235] A state procedural rule is 1067 adequate for purposes of procedural default in a federal habeas proceeding only if it is firmly established at the time it is applied, i.e., it is strictly or regularly applied evenhandedly to the vast majority of similar claims.[236] Ordinarily, the mere fact a federal habeas corpus claimant failed to abide by a state procedural rule does not, in and of itself, prevent federal review of a claim; the state court must actually have relied upon the procedural bar as an independent basis for its disposition of the case.[237] A federal claimant's procedural default usually precludes federal habeas review only if the last state court rendering a judgment in the case rests its judgment on the procedural default.[238] The federal courts presume there is no independent and adequate state ground for a state court decision when (1) the decision fairly appears to rest primarily on federal law, (2) the decision fairly appears to be interwoven with the federal law, or (3) the adequacy and independence of any possible state law ground is not clear from the face of the opinion.[239] When the last state court to write a reasoned opinion rests its decision on a claim for relief on state procedural grounds, the petitioner may obtain federal habeas review of that same claim only if he can show cause and actual prejudice for his procedural default or that a failure to address the merits of the federal claim would result in a miscarriage of justice.[240] In order to satisfy the "miscarriage of justice" test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence.[241] To satisfy the "factual 1068 innocence" standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt.[242] In petitioner's case, the state trial court expressly concluded in its Order issued January 9, 1995, on petitioner's state habeas corpus application that petitioner had procedurally defaulted on his complaints regarding the validity of his April 27, 1981 aggravated robbery conviction and the admission of evidence concerning that conviction at the punishment phase of petitioner's trial by failing to make a contemporaneous objection to the admission of evidence concerning the conviction during petitioner's capital murder trial.[243] The Texas Court of Criminal Appeals expressly adopted that conclusion in its per curiam Order issued February 21, 1995.[244] Therefore, the holding by petitioner's state habeas corpus court precludes review by this Court of the petitioner's sixth ground for federal habeas corpus relief unless petitioner can establish either cause and actual prejudice for his procedural default or that a failure to address the merits of the federal claim would result in a miscarriage of justice.[245] While petitioner did assert a multifaceted ineffective assistance claim in this federal habeas corpus proceeding, he did not allege as a part of the claim his trial counsel rendered ineffective assistance by failing to object to the admission of evidence regarding petitioner's April 27, 1981 state court conviction for aggravated robbery. Nor has petitioner alleged any other facts sufficient to establish both cause and actual prejudice for his trial counsel's failure to make a contemporaneous objection to the admission of evidence regarding petitioner's April 27, 1981 state court conviction. Further, as the detailed discussion of the evidence introduced at petitioner's trial set forth above demonstrates, petitioner has alleged no facts which establish petitioner is "factually innocent" of either the capital murder offense for which he was convicted or the sentence of death imposed upon him.[246] Thus, petitioner has procedurally defaulted on his sixth ground for federal habeas corpus relief, and this Court may not review the merits of that claim. For the foregoing reasons, petitioner's sixth ground for federal habeas relief does not warrant same. 2. Harmless Error Alternatively, even if this Court were to consider the merits of petitioner's sixth ground for federal habeas corpus relief, the matters about which petitioner complains in his sixth ground for relief, at best, present only harmless error. Any error committed by the state trial court in admitting evidence at the punishment phase of petitioner's capital murder trial regarding petitioner's April 27, 1981 state criminal conviction for aggravated 1069 robbery was harmless beyond a reasonable doubt. The test for harmless error in a federal habeas corpus action brought by a state prisoner is "whether the error had substantial and injurious effect or influence in determining the jury's verdict."[247] Petitioner argues the evidence relating to his April 27, 1981 aggravated robbery conviction should have been excluded not because petitioner was incompetent at the time he committed the robbery but rather because petitioner was mentally incompetent at the time he entered his guilty plea to that charge. This is a significant distinction because petitioner's arguments in support of his sixth ground for federal habeas relief go not to the admissibility at the punishment phase of the petitioner's capital murder trial of evidence regarding petitioner's criminal conduct on August 16, 1980, but only to the admissibility of evidence concerning petitioner's ensuing criminal conviction on April 27, 1981. To recapitulate, petitioner pleaded guilty on April 27, 1981, to an aggravated robbery committed on August 16, 1980. Evidence concerning that robbery was introduced at the punishment phase of petitioner's trial[248] as well as other evidence establishing petitioner had (1) committed a separate armed robbery of a different convenience store in August, 1980,[249] (2) robbed a bank in Hurst, Texas, on August 21, 1986,[250] (3) been previously convicted of burglary of a building, forgery of a check, and passing a forged check,[251] (4) been stopped and arrested while driving a stolen pickup truck,[252] and (5) once shot a man.[253] During his own testimony at the punishment phase of his capital murder trial, petitioner admitted to the armed robbery of convenience stores, admitted to his prior convictions for burglary, forgery, and passing a forged check, admitted the idea of robbing banks came to him while he was incarcerated but denied robbing the bank in Hurst and claimed he merely took the pickup truck after he found the keys inside that vehicle.[254] Even assuming petitioner was mentally incompetent on April 27, 1981, when he entered his guilty plea to the aggravated robbery charge in Nolan County, Texas, there is no specific factual allegation, much less any 1070 evidence, now before this Court establishing petitioner was mentally incompetent when he robbed the convenience store on August 16, 1980. The Fifth Circuit has repeatedly held that, under the Texas capital sentencing scheme, the admission of evidence of extraneous, unadjudicated offenses at the punishment phase of a Texas capital murder trial does not violate a defendant's constitutional rights.[255] Also, the federal courts routinely make use of evidence of other criminal conduct, including unadjudicated offenses, in the course of sentencing convicted criminal defendants.[256] Thus, even assuming petitioner's April 27, 1981 conviction was invalid due to petitioner's mental incompetence to enter a valid guilty plea on that date, the prosecution could still have introduced evidence at the punishment phase of petitioner's capital murder trial establishing the petitioner had committed an armed robbery on August 16, 1980.[257] Given the overwhelming body of evidence establishing the petitioner had, in fact, committed an armed robbery on August 16, 1980, including petitioner's admission to same during his testimony at the punishment phase of his trial, any error committed by the state trial court in admitting evidence of petitioner's April 27, 1981 conviction for that offense was harmless beyond a reasonable doubt. Even if petitioner had never been convicted of the offense of aggravated robbery on April 27, 1981, evidence regarding his commission of the offense of armed robbery on August 16, 1980, would have been admissible at the punishment phase of petitioner's capital murder trial. Because the admission of evidence of petitioner's April 27, 1981 conviction had no substantial and injurious effect or influence in determining the jury's verdict at the punishment phase of petitioner's capital murder trial, petitioner's sixth ground for federal habeas relief does not warrant same. G. Racially-Motivated Use of a Peremptory Challenge: Batson Claim In his seventh ground for federal habeas corpus relief, petitioner argues his constitutional rights were violated when the prosecution used a peremptory challenge to strike the sole remaining black member of the jury venire.[258] The Supreme Court first held in its opinion in Batson v. Kentucky[259] that a prosecutor's use of peremptory challenges could violate equal protection principles. Petitioner argues the prosecution violated those principles when it struck venireperson Sharon Diane King, the lone remaining black person on the panel, during the course of exercising its peremptory challenges. Petitioner's trial counsel made a timely objection to the prosecution's exercise of a peremptory challenge to venireperson 1071 King.[260] Thereafter, the state trial court held a hearing in chambers on the matter. Assistant Bexar County Criminal District Attorney Jamie Boyd testified during the hearing that (1) Ms. King had not arrived on time earlier that day but had to be escorted to the courthouse by a deputy sheriff approximately one and one-half hours after the time she was supposed to have arrived,[261] (2) it was unclear what explanation, if any, Ms. King had given for her tardiness,[262] (3) he viewed the fact Ms. King had to be brought to the courthouse by a deputy sheriff as something that might prejudice her against the State,[263] (4) the court coordinator had informed the other jurors the delay in commencing that day's proceedings was caused by Ms. King's tardiness,[264] (5) Ms. King had given a noncommittal answer to a question in the juror questionnaire asking whether she believed there should be a death penalty,[265] (6) he tended to place greater trust in the answers given by members of the venire to the questionnaires rather than to the answers they gave in open court while the attorneys were talking to them,[266] (7) Ms. King had indicated in response to a question on her juror questionnaire she believed the proper role or aim of punishment was rehabilitation and explained her answer by writing "most crimes that are committed are done at a moments notice which means there was no clear thought of what was going on during the crime,"[267] (8) Ms. King's answers to those questions, together with the fact she had earned a substantial amount of college credit in psychology, made him leery of having a "pseudo expert in psychology" on the jury,[268] (9) he was concerned Ms. King would be unable to distinguish between a knowing and intentional killing,[269] and (10) he noticed Ms. King had smiled during her voir dire questioning when asked about capital murder, and she gave an answer during her voir dire which led him to believe she was ambivalent about the death penalty.[270] A three-step inquiry is necessary to determine whether a party has violated Batson, i.e., used peremptory challenges in a way that violates the Equal Protection Clause. First, the opponent of the strike must make a prima facie showing the proponent of the strike exercised it on the basis of a juror's cognizable racial background; second, the burden then shifts to the proponent of the strike to articulate a race-neutral explanation for removing the potential juror in question; and third, the trial court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination.[271] A prerequisite to the foregoing inquiry is, of course, a timely objection to the strike in question.[272] In this case, 1072 petitioner's trial counsel made a timely Batson objection. Thus, the burden then shifted to the proponent to articulate a race-neutral explanation for the strike. Assistant District Attorney Boyd's testimony at the Batson hearing, summarized above, provides a plethora of race-neutral reasons for the prosecution's decision to exercise a peremptory challenge against venireperson King, among them her college training in psychology, her ambivalent answers regarding the death penalty both in her questionnaire answers and during her voir dire examination, and the fact she had to be escorted to the courthouse by a deputy sheriff. The Fifth Circuit has accepted a wide range of reasons for peremptory strikes as race-neutral.[273] Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason given will be deemed race-neutral.[274] A race-neutral reason for the prosecution's striking of a member of the petitioner's jury venire need not be plausible.[275] A prosecutor's explanation for a peremptory strike need not rise to the level of a challenge for cause; it merely must contain a clear and reasonably specific articulation of legitimate reasons for the strike.[276] The prosecutor's explanation need not be quantifiable and may include intuitive assumptions upon confronting a potential juror.[277] Prosecutor Boyd's testimony and clear articulation of several race-neutral reasons for striking Ms. King from the jury more than satisfied the prosecution's burden at the Batson hearing. Petitioner argues the prosecution's proffered reasons for striking Ms. King 1073 were pretextual, pointing out that several other jurors had also been tardy in arriving at the courthouse that same day, Ms. King's father was a police officer, she had another relative who was a judge, and suggesting Ms. King's answers during her voir dire examination established she believed in the death penalty. However, there appears to be no genuine dispute Ms. King was the only member of the venire whose presence at the courthouse was compelled on the date in question with the assistance of a deputy sheriff. Further, Ms. King's written answers to questions 55 and 57 on her juror questionnaire revealed not just an ambivalence about the death penalty but also a clear predisposition in favor of the exact position the defense took during both the guilt-innocence and punishment phases of petitioner's trial, i.e., the argument that because of the brief time sequence between Vernon Hanan's lunge at petitioner and petitioner's firing of the fatal shot, petitioner had acted neither intentionally nor deliberately in shooting Vernon Hanan. Thus, the prosecution's proffered explanations for its strike of Ms. King were facially race-neutral and neither inherently implausible nor overtly pretextual. Finally, the state trial court's ruling on petitioner's timely Batson objection was primarily a credibility determination made after first-hand observation of the prosecutor during his testimony and cross-examination at the Batson hearing.[278] The state trial court's implicit factual finding on that credibility determination is entitled to deference from this Court in this federal habeas corpus proceeding.[279] "Federal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record."[280] Both implied and explicit fact findings fall within the ambit of Section 2254(d).[281] Even an ambiguous record entitles state court fact findings to the presumption of correctness.[282] Prosecutor Boyd's testimony at the Batson hearing furnished several plausible, even compelling, race-neutral reasons for the prosecution's use of a peremptory challenge to strike venireperson King. Thus, the state habeas court's implicit factual finding as to the credibility of prosecutor 1074 Boyd's testimony in overruling petitioner's timely Batson objection is fully supported by the record in this case, and this Court may not reject that finding.[283] Petitioner has failed to carry his burden of showing the prosecution's action in striking venireperson King was racially-motivated.[284] Under such circumstances, petitioner's seventh ground for federal habeas relief does not warrant same. H. Improper Admission of Reputation Testimony In his eight, ninth, and tenth grounds for relief, petitioner argues his state trial court erred in admitting, at the punishment phase of petitioner's capital murder trial, testimony from three San Antonio Police Officers that petitioner's reputation for being peaceful and law-abiding was bad.[285] While petitioner argues the admission of this reputation testimony violated his constitutional rights, he does not cite to any authority other than state court opinions interpreting state evidentiary rules. The primary problem with these arguments is that, in the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court.[286] A state prisoner seeking federal court review of his conviction pursuant to 28 U.S.C. § 2254 must assert a violation of a federal constitutional right.[287] Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented.[288] Therefore, the question before a federal habeas corpus court is not whether the state court correctly applied its own interpretation of state law; rather, the question is whether the petitioner's federal constitutional rights were violated.[289] When a federal district court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is "in custody in violation of the Constitution or laws or treaties of the 1075 United States." The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter.[290] Thus, the issue before this Court is not whether the trial court properly applied state law principles during petitioner's trial or whether the Texas Court of Criminal Appeals correctly affirmed petitioner's conviction and sentence and correctly denied petitioner's state habeas corpus application. The issue is whether petitioner's federal constitutional rights have been violated. When a federal court reviews state court evidentiary rulings on a petition for habeas corpus, it will grant relief only if the state court error is sufficiently egregious as to render the entire trial fundamentally unfair.[291] "A state court's evidentiary ruling presents a cognizable habeas claim only if it runs afoul of a specific constitutional right or renders the trial fundamentally unfair."[292] The challenged evidence must be a crucial, critical, or highly significant factor in the context of the entire case.[293] The test to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability that the verdict might have been different had the trial been properly conducted.[294] As explained above, at the punishment phase of petitioner's trial, the jury heard testimony and saw documentary evidence establishing that petitioner had previously been convicted of (1) two separate armed robberies of convenience stores, (2) robbery of a bank in Hurst, Texas, (3) forgery, (4) passing a forged check, and (5) burglary of a building. More specifically, the evidence at the punishment phase of petitioner's trial also established (1) petitioner shot Lloyd Joe McGrew in the head on May 12, 1974, during an altercation between petitioner and one of McGrew's brothers,[295] (2) petitioner was arrested on November 19, 1978, for unlawfully carrying a handgun and booked under the name "Paul Brown,"[296] (3) petitioner was arrested in San Antonio, Texas, on September 28, 1979, while in the course of burglarizing a store,[297] (4) petitioner robbed a convenience store at gun point in Sweetwater, Texas, on August 16, 1980, demanded the lone female store clerk's car keys and purse, ripped the telephone off the wall before he left the store, and threatened to shoot the clerk if she left the store within ten minutes of petitioner's departure,[298] (5) in August, 1980, petitioner robbed another lone female convenience store clerk at gun point in Abilene, Texas,[299] (6) on August 20, 1980, petitioner was arrested while driving a pickup truck that had been stolen just hours before from a residence in Amarillo, Texas, after an unknown person burglarized the residence 1076 and took the keys to that vehicle,[300] (7) on August 21, 1986, petitioner robbed the Sunbelt Savings branch office in Hurst, Texas, by handing an employee a note containing almost verbatim the same death threats contained in the note petitioner used in his robbery of the Continental National Bank ["CNB"] in San Antonio on January 28, 1988,[301] (8) during his robbery of the Sunbelt Savings branch, petitioner wore a brace over his forearm and wrist similar to the one he wore on January 28, 1988, when he robbed the CNB,[302] (9) the wrist brace concealed a prominent and noticeable tatoo on the back of petitioner's hand,[303] and (10) the note which petitioner gave to Patricia Martinez at the CNB on January 28, 1988, was written in two different colors of ink and showed signs it had been drawn with a straight-edge and portions of it had been re-touched.[304] Petitioner testified at the punishment phase of his trial and admitted to most of the foregoing criminal conduct except he claimed McGrew had been armed when he shot him, denied he had robbed the bank in Hurst, Texas, and denied he had burglarized a residence to obtain the keys to the stolen truck he was driving when arrested on August 20, 1980.[305] Other than some rather vague allusions to the Sixth Amendment's Confrontation Clause, petitioner has identified no specific federal constitutional right which he claims was violated by the admission of the bad reputation testimony given by the three San Antonio Police Officers in question. Moreover, petitioner has identified no federal constitutional authority barring the admission of reputation testimony at the punishment phase of a state capital murder trial, and this Court's independent research has disclosed none.[306] The Confrontation Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant even though the admission of the statement might be thought to violate the literal terms of that Clause.[307] Thus, the issue before this Court 1077 is whether the admission of the testimony at the punishment phase of the trial by the three witnesses regarding petitioner's bad reputation rendered the petitioner's trial "fundamentally unfair."[308] For the reasons set forth below, it did not. In rejecting petitioner's complaints about the admission of this same testimony during petitioner's direct appeal, the Texas Court of Criminal Appeals specifically held that evidence of an accused's character may be offered under Texas law at the punishment phase of a criminal trial, and a reputation witness's testimony may be based on discussions with other police officers.[309] Thus, at best, petitioner's eighth, ninth, and tenth grounds for federal habeas relief consist of nothing more than claims that petitioner's trial court and the Texas Court of Criminal Appeals erroneously applied applicable Texas rules of evidence. As discussed, such arguments do not furnish a basis for federal habeas relief.[310] Given the wealth of evidence establishing petitioner's long track-record for violent and criminal behavior, admission of the reputation testimony in question did not render petitioner's trial fundamentally unfair. Even assuming the admission of this reputation testimony violated applicable state evidentiary rules, there is no reasonable probability the verdict might have been different had the trial been conducted properly. The evidence of petitioner's criminal record introduced at the punishment phase of trial was long and detailed. Furthermore, petitioner testified extensively, and the jury had the opportunity firsthand to review his demeanor and to determine not only whether petitioner would pose a continuing threat of violence to society but also whether petitioner's testimony that his shooting of Vernon Hanan was not deliberate was credible. Finally, any error in admitting the reputation testimony in question at the punishment phase of petitioner's trial was harmless beyond a reasonable doubt.[311] Given the wealth of evidence concerning petitioner's violent history and criminal record, admission of the reputation testimony in question did not have a "substantial and injurious effect or influence in determining the jury's verdict."[312] In petitioner's case, there is absolutely no reasonable possibility the reputation testimony given by the three San Antonio Police Officers at the punishment phase of petitioner trial had any impact whatsoever on the outcome of petitioner's trial. Therefore, petitioner's eighth, ninth, and tenth grounds for federal habeas relief do not warrant same. I. Jury Instructions Deprived Jury of Opportunity to Make a Reasoned Response to Mitigating Evidence: Penry Claims In his eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth grounds for relief, petitioner argues the jury was unable to give proper consideration to the mitigating evidence he presented at the punishment phase of trial, and the state trial court erred 1078 in denying petitioner's requests for supplemental jury instructions regarding the manner in which the jury could give effect to that same mitigating evidence.[313] More specifically, petitioner argues the jury was unable to give full effect to his mitigating evidence petitioner's testimony he had not intended to kill Vernon Hanan and he felt remorse for his actions. In essence, petitioner complains his state trial court refused to give instructions like those mandated by the Supreme Court's opinion in Penry. The Supreme Court and Fifth Circuit have each emphasized that a jury in a capital murder trial must be permitted to examine the defendant's character and record as well as the circumstances of the particular offense in determining whether to impose the death penalty: [I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.[314] Therefore, a sentencing jury in a capital murder trial may not be prevented from considering any mitigating evidence presented by the defendant which relates to the defendant's character or the circumstances of the offense.[315] In other words, the jury at petitioner's trial must have been afforded adequate opportunity to give effect to petitioner's mitigating evidence of his character and background, as well as his evidence of the circumstances surrounding his offense. The state trial court did not give petitioner's jury any special instructions such as the one suggested by the Supreme Court's opinion in Penry and denied petitioner's requests for similar instructions regarding mitigating evidence. Thus, the question before this Court is whether the absence of such an instruction in petitioner's case violated constitutional principles. The Fifth Circuit has held a Penry instruction is only required in those instances in which the major mitigating thrust of the evidence is substantially beyond the scope of all the special issues under the Texas capital sentencing scheme.[316] The Fifth Circuit has recognized a wide range of potentially mitigating evidence can be considered within the scope of the Texas capital sentencing special issues without the necessity for a Penry instruction.[317] The Supreme Court and Fifth 1079 Circuit have each held that the Texas capital sentencing special issues allow adequate consideration 1080 of the mitigating effects of evidence of a defendant's youth so as to negate the necessity for a Penry instruction on such evidence.[318] Likewise, the Fifth Circuit has repeatedly held that the Texas capital sentencing special issues are sufficiently broad to permit adequate consideration of evidence the accused was voluntarily intoxicated at the time of his offense.[319] The Fifth Circuit has held that in order to constitute mitigating evidence for Penry purposes, evidence of a defendant's background and character must relate to and diminish the defendant's moral culpability for the offense with which he is charged.[320] Thus, the first inquiry in a Penry claim is whether the mitigating evidence is relevant, i.e., does the evidence implicate the basic concern of Penry that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. In order to meet this relevance standard, the evidence must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own and (2) the criminal act was attributable to this severe permanent condition.[321] A properly preserved Penry claim will only prove meritorious if two requirements are met: first, the evidence proffered at trial must actually be "mitigating," i.e., it must relate to the defendant's character or background or to the circumstances of the offense and be sufficient to lead a reasonable juror to impose a penalty less than death; second, the evidence proffered at trial must have been beyond the "effective reach" of the jury, i.e., there must be a reasonable likelihood the jury applied the Texas special issues in a way that prevented consideration of the constitutionally relevant mitigating evidence.[322] A failure to satisfy either prong of this analysis 1081 renders a Penry claim meritless. Furthermore, Penry does not require a sentencer be able to give effect to a defendant's mitigating evidence in whatever manner or to whatever extent the defendant desires.[323] A jury need only be provided one fair vehicle for considering mitigating evidence,[324] and the State can "structure" the jury's consideration of mitigating evidence.[325] In this case, petitioner's "mitigating" evidence consisted of expressions of remorse and testimony that after he shot Vernon Hanan, he stood over him for a few seconds to see how badly Hanan had been injured. However, petitioner's evidence of his remorse after his offense could be properly and adequately considered by the jury without the necessity of a Penry instruction.[326] Thus, petitioner was not entitled to supplemental instructions like those mandated in Penry for the purpose of enabling his jury to consider his evidence of remorse. Additionally, because trial counsel made a tactical decision not to introduce evidence of petitioner's childhood head injury and troubled childhood, petitioner was not entitled to Penry-like instructions with regard to this other potentially mitigating evidence which was not actually introduced into evidence at his trial.[327] A defendant cannot base a Penry claim on evidence that could have been but was not proffered at trial;[328] such a claim is procedurally barred.[329] For the foregoing reasons, petitioner's eleventh through sixteenth grounds for federal habeas relief do not warrant same. J. Exclusion of Testimony Re Settlement of Civil Lawsuit In his seventeenth ground for federal habeas relief, petitioner argues the state trial court erred in excluding testimony regarding the fact the CNB had settled a civil negligence lawsuit brought against it by the Vernon Hanan family.[330] More specifically, petitioner argues the settlement of that civil lawsuit constituted an admission on the part of CNB that its teller was at least partially responsible for the fatal shooting of Vernon Hanan. The evidence petitioner sought to introduce before the jury at the guilt-innocence phase of petitioner's trial consisted of testimony by attorney Williams Stolhanske that (1) he represented the family of Vernon 1082 Hanan in a civil lawsuit against the CNB, (2) the lawsuit included allegations of negligence and that CNB teller Patricia Martinez had not been properly trained in handling robberies, (3) the lawsuit had been settled, (4) although the settlement included certain settlement concessions, the terms of the settlement were confidential, and (5) Patricia Martinez had not been a party to that lawsuit.[331] On direct appeal, the Texas Court of Criminal Appeals ruled the state trial court had not abused its discretion in excluding the testimony.[332] The court held that "theories of `contributory negligence' or `comparative negligence' are not applicable in the context of determining guilt or innocence on a criminal charge of capital murder."[333] As explained above in connection with petitioner's eighth through tenth grounds for relief, a state court's evidentiary ruling presents a cognizable federal habeas claim only if it "runs afoul of a specific constitutional right or renders the trial fundamentally unfair."[334] When a federal court reviews state court evidentiary rulings on a petition for habeas corpus, it will grant relief only if the state court error is sufficiently egregious as to render the entire trial fundamentally unfair.[335] The challenged evidence must be a crucial, critical, or highly significant factor in the context of the entire case.[336] The test to determine whether a trial error makes a trial fundamentally unfair is whether there is a reasonable probability the verdict might have been different had the trial been properly conducted.[337] This Court agrees with the Texas Court of Criminal Appeals that the testimony in question did not make the issue of petitioner's intentional conduct any more or less probable. The proffered testimony of William Stolhanske established only that the family of Vernon Hanan had been compensated to an unknown extent by the CNB in settlement of a civil lawsuit. There is no indication in either the record of petitioner's trial or in the record now before this Court that petitioner was named as a defendant in that civil lawsuit or that the settlement entered into by CNB in connection with that civil lawsuit included any specific admissions of fault by it or any of its employees in connection with petitioner's fatal shooting of Vernon Hanan. Thus, there is no indication the civil lawsuit in question was a true effort to assign fault among all the relevant parties in a comparative negligence setting. Furthermore, a civil proceeding with its diminished burden of proof and in which the criminal defendant was not a party is not an appropriate setting in which to resolve issues of petitioner's criminal culpability.[338] A criminal defendant may possess the right to introduce testimony in his defense, but a state trial court retains the authority to exclude irrelevant, immaterial, or prejudicial evidence.[339] Accordingly, the state trial court properly excluded the evidence in question. 1083 Furthermore, even assuming the state trial court erred in excluding the testimony in question, that exclusion did not violate a specific constitutional right or render petitioner's trial fundamentally unfair. The evidence in question was of dubious relevance at best. Even without the excluded testimony of William Stolhanske, petitioner was able to present evidence supporting his position that the behavior of CNB teller Patricia Martinez on January 28, 1988, had been a contributing cause of the fatal shooting of Vernon Hanan.[340] For the foregoing reasons, especially in view of its highly dubious relevance and the other evidence already before the jury, the excluded testimony of William Stolhanske was not a critical, crucial, or highly significant factor in the context of the entire case and its exclusion did not render petitioner's trial fundamentally unfair. Alternatively, the exclusion of the proffered testimony of William Stolhanske, even if erroneous, was harmless beyond a reasonable doubt. The testimony of FBI Special Agent Kelvington furnished petitioner with an evidentiary basis upon which to argue to the jury that petitioner's fatal shooting of Vernon Hanan had resulted, at least in part, from the conduct of CNB teller Patricia Martinez. For this reason, and the other reasons discussed above, this Court concludes the exclusion of the proffered testimony of William Stolhanske had no substantial and injurious effect or influence in determining the jury's verdict at the guilt-innocence phase of petitioner's capital murder trial. Therefore, petitioner's seventeenth ground for federal habeas relief does not warrant same. K. "Forced" Medication Claim In his eighteenth ground for federal habeas relief, the petitioner argues he was medicated regularly with phenobarbital and dilantin during his capital murder trial and this "forced" medication deprived him of his right to be heard in his own defense, to be present at trial, to remain free from self-incrimination, and to show his "true" mental condition at trial.[341] Respondent admits petitioner received the medications in question but claims the petitioner has alleged no specific facts showing he was "forced" during his trial to take any of those medications against his will or that the medications in question actually interfered with his mental functioning during trial. The state trial court found in the course of petitioner's state habeas corpus proceeding that petitioner had failed to "present any evidence that he was in fact medicated during trial or that the medication was forcibly administered."[342] At the evidentiary hearing held November 21, 1994, in petitioner's state habeas corpus proceeding, petitioner's former trial counsel testified (1) he conferred many times with petitioner prior to trial, (2) he had petitioner examined by a psychiatrist who found nothing to indicate a motion challenging petitioner's competence to stand trial or asserting an insanity defense would have any efficacy, and (3) he never felt there was any basis in reality for a motion challenging petitioner's competence to stand trial.[343] Petitioner offered no evidence at that hearing establishing that any of the medications petitioner received during or prior to his capital murder trial were administered involuntarily or otherwise against the petitioner's will. 1084 Despite the implications contained in petitioner's complaints herein about "forced" medications, petitioner alleges absolutely no specific facts establishing that any of the medications he received during his state court trial were administered involuntarily. On the contrary, the few references to petitioner's medications included in the trial court record consist of statements by petitioner's trial counsel expressing thanks to the trial court for its assistance in obtaining petitioner's medications.[344] While an inmate has a constitutionally-protected interest in remaining free from the unwanted administration of antipsychotic medications,[345] petitioner has alleged no facts establishing that any of the anti-seizure medications he received during his state criminal trial were administered involuntarily. Thus, petitioner's situation is distinguishable from that in Riggins, which involved a criminal defendant who sought to have his medication, i.e., Mellaril, terminated during his trial. In contrast, petitioner herein never filed any motion requesting or otherwise making the state trial court aware of his desire to be permitted to continue trial without his anti-seizure medications. There is also no factual allegation before this Court establishing that, without the petitioner's anti-seizure medications, petitioner would have been rendered incompetent to stand trial. Thus, the factual situation in this case is distinguishable from those involved in the cases relied on by petitioner in support of his eighteenth ground for relief. Because there is no fact-specific allegation now before this Court establishing petitioner was forcibly or otherwise involuntarily medicated at any point during his trial, petitioner's eighteenth ground for federal habeas relief does not warrant same. L. Petitioner's Absence from a Portion of the Voir Dire In his nineteenth and twentieth grounds for federal habeas corpus relief, petitioner argues his constitutional rights were violated when the state trial court conducted a portion of the voir dire phase of his capital murder trial in petitioner's absence.[346] The record from petitioner's state court trial establishes that (1) at the close of the state trial court's business on April 4, 1989, petitioner's trial counsel informed the court the petitioner was feeling "sickly," did not know whether he would be able to attend court the following day, but wished the case to proceed in his absence if necessary,[347] (2) petitioner specifically affirmed to the trial court this was his position,[348] (3) the trial court advised the parties and bailiffs responsible for transporting petitioner that if petitioner wished to remain in jail the following morning, he should be permitted to do so,[349] (4) the following morning, petitioner informed the guards he did not feel well and wished to remain at the jail,[350] (5) the parties proceeded to conduct the individual voir dire of eight members of the venire, i.e., venirepersons Elia Pardo, Richard Myers, Felix Gonzalez, Dale Clark, Myra Bahme, Laura Tucker, Scott Stout, and Edward Gonzalez,[351] (6) the trial court granted petitioner's challenges for cause on venirepersons Pardo, Clark, and Stout,[352] (7) on April 6, 1989, the prosecution called to the trial court's attention Article 33.03 of the Texas Code of Criminal Procedure and the parties and trial court engaged in extensive discussions concerning 1085 the best course of action,[353] (8) on April 7, 1989, with petitioner again in attendance, the trial court ruled, over petitioner's objection, that it would recall all eight of the members of the venire in question and permit the attorneys to conduct a full voir dire of each in petitioner's presence,[354] (9) the results of that second round of voir dire were the same as before in that the trial court once again sustained petitioner's challenges for cause to venirepersons Pardo, Clark, and Stout,[355] and the five others were accepted as potential jurors by both parties, and (10) at the conclusion of voir dire, the prosecution used peremptory challenges against the five remaining members of the venire who had been examined outside the petitioner's presence.[356] Where the defendant is not actually confronting witnesses or evidence against him, the right to be present is protected by the Due Process Clause.[357] However, it has been clear for over a quarter century that a trial court may order a disruptive, obstreperous criminal defendant to be bound and gagged, cited for contempt, or removed from the courtroom until he promises to conduct himself properly.[358] Likewise, a criminal defendant's voluntary absence constitutes a waiver of the right to be present at trial.[359] Rule 43(b) of the Federal Rules of Criminal Procedure contains specific provisions for the continuation of a federal criminal trial in the absence of the defendant. In short, the right to be present at trial is not absolute and can be waived by the defendant.[360] Before determining whether to continue with a criminal trial in the defendant's absence, the trial court must inquire into the reason for the defendant's absence and determine whether it constitutes a voluntary waiver of the right to be present.[361] Whether a constitutional right has been voluntarily, knowingly, and intelligently waived must be determined according to the totality of the circumstances, including the background, experience, and conduct of the accused.[362] In this instance, petitioner was not unfamiliar with the criminal justice system. He had been convicted previously of two counts of armed robbery, one count of burglary of a building, and multiple charges of forgery. At the time petitioner requested to be excused from the remaining voir dire portion of trial, petitioner had already sat through the general voir dire and the individual voir dire of more than a dozen members of the venire. The petitioner and his counsel both advised the state trial court on April 4, 1989, petitioner might not appear the following day but petitioner wished the voir dire to continue in his absence.[363] Under such circumstances, the state trial court's decision to proceed with voir dire in petitioner's absence on April 5, 1989, implicitly included a finding petitioner had voluntarily waived his right to be present at the voir dire phase of his trial. While the ultimate determination as to whether petitioner effectively waived his right to be present at trial is a legal question, the state trial court's factual finding that 1086 petitioner acted voluntarily is entitled to great deference from this Court.[364] As previously discussed in Section G above, federal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record.[365] Both implied and explicit fact findings fall within the ambit of Section 2254(d).[366] Even an ambiguous record entitles state court fact findings to the presumption of correctness.[367] Petitioner has alleged no facts establishing he was unaware of the consequences his absence from the voir dire portion of trial would have on the ability of his trial counsel to protect petitioner's rights and to adequately represent petitioner's interests. As mentioned above, petitioner had already sat through several days of the individual voir dire of more than a dozen members of the venire at the time he sought to be excused. Moreover, petitioner had an extensive criminal record, was no stranger to the criminal justice system, and was familiar with the nature of the voir dire proceedings then before the state trial court. Petitioner was well aware his absence from the courtroom would make it impossible for his counsel to consult with him during that portion of the voir dire. Under the circumstances, especially in light of petitioner's own representations to the state court on April 4, 1989, this Court concludes petitioner voluntarily, intentionally, and knowingly waived his right to be present during the voir dire phase of his trial on April 5 and 6, 1989. The burden is on the habeas petitioner to establish by clear and convincing evidence the factual determinations of a state court were erroneous.[368] In this case, petitioner's own representations in open court support the state trial court's finding petitioner voluntarily, intentionally, and knowingly waived his right to be present during the portion of the voir dire in question. Thus, the state trial court's implicit factual findings are fully supported by the record in this case, and this Court may not reject those findings.[369] Insofar as petitioner complains the state trial court's decision to permit petitioner to voluntarily absent himself from trial prior to the final selection of the jury violated applicable state procedures, that argument does not provide a basis for federal habeas corpus relief. A state prisoner seeking federal court review of his conviction pursuant to Title 28 U.S.C. Section 2254 must assert a violation of a federal constitutional right.[370] Federal habeas corpus relief will not issue to correct 1087 errors of state constitutional, statutory, or procedural law unless a federal issue is also presented.[371] Because this Court concludes petitioner voluntarily, intentionally, and knowingly waived his right to be present at a portion of the voir dire phase of his trial, petitioner's complaints of alleged violations of state constitutional and procedural rules do not warrant federal habeas relief. Furthermore, the Court concludes any error committed by the state trial court in granting petitioner's request to be excused from a portion of the voir dire phase of petitioner's trial was, under the circumstances, harmless beyond a reasonable doubt. The state trial court recalled all eight members of the jury venire who had been examined outside petitioner's presence. The parties then conducted a full and unfettered reexamination of those same members of the venire in petitioner's presence. The trial court granted petitioner's motions to excuse for cause the same three persons whom it had excused in petitioner's absence. Finally, the prosecution exercised peremptory challenges against the five remaining members of the venire who initially had been examined outside petitioner's presence. Under such circumstances, the fact these eight members of the jury venire had been examined initially outside petitioner's presence did not have a "substantial and injurious effect or influence in determining the jury's verdict."[372] In addition, petitioner has alleged no facts showing his absence during a portion of the voir dire negatively impacted on his counsel's conduct of voir dire or had any adverse impact on the manner in which his counsel exercised peremptory challenges. For instance, petitioner has not alleged any facts showing his absence effectively prevented his counsel from successfully challenging any member of the venire for cause or had any adverse impact on defense counsel's ability to intelligently exercise the defense's peremptory challenges. Because none of the eight members of the venire ever sat on petitioner's jury or were ever subject to a peremptory challenge made by the defense and because the trial court granted each of petitioner's challenges for cause to the eight members of the venire against whom petitioner brought such challenges, there is no reasonable possibility petitioner's absence from a portion of the voir dire portion of his trial had a substantial and injurious effect or influence on the outcome of his trial. Under such circumstances, the state trial court's action in granting petitioner's request to voluntarily absent himself from a portion of the voir dire but then recalling the eight venire-persons who had been examined in petitioner's absence for re-examination in petitioner's presence did not have a "substantial and injurious effect or influence in determining the jury's verdict." For the foregoing reasons, petitioner's nineteenth and twentieth grounds for federal habeas relief do not warrant same. M. Petitioner's Competence to Stand Trial In his twenty-first and final ground for federal habeas relief, petitioner argues (1) the state trial court erred in failing to sua sponte order a hearing on petitioner's mental competence prior to trial and (2) he was legally incompetent to stand trial.[373] The Fifth Circuit has recently addressed the competency issue in Washington v. Johnson.[374] A criminal defendant may not be tried unless he is competent.[375] A criminal 1088 defendant is competent to stand trial if (1) he has sufficient ability at the time of trial to consult with his attorney with a reasonable degree of rational understanding and (2) he has a rational as well as factual understanding of the proceedings against him.[376] 1. State Trial Court's Failure to Hold Competency Hearing A criminal defendant has a procedural due process right to a competency hearing whenever the facts before the trial court raise or should raise a bona fide doubt concerning competence.[377] If the trial judge received information which, objectively considered, should reasonably have raised a doubt about the defendant's competence and alerted the trial judge to the possibility the defendant could neither understand the proceedings, nor rationally aid his attorney in his defense, the trial judge was obligated to make further inquiry into the defendant's competence to stand trial.[378] In determining whether a competency hearing is required, the trial judge must give consideration to (1) the existence of a history of irrational behavior, (2) the defendant's bearing and demeanor at the time of trial, and (3) prior medical opinions.[379] However, a competency determination is only necessary when the trial court has reason to doubt the defendant's competence.[380] A habeas petitioner asserting a claim the trial court erred in failing to hold a competency hearing bears the burden of making a clear and convincing showing of the existence of a real, substantial, and legitimate doubt as to his mental capacity.[381] The first part of petitioner's final ground for relief fails because petitioner has wholly failed to allege any facts showing the state trial court was ever made aware, either prior to or during petitioner's capital murder trial, of any facts or evidence raising "a real, substantial, and legitimate doubt as to the petitioner's mental capacity." In support of this argument, petitioner argues rather cryptically that petitioner's state trial court "was aware of many of these facts and circumstances raising a doubt" as to petitioner's competence.[382] Petitioner then identifies the following information as supporting the need for a competency hearing: (1) the fact petitioner suffered a head injury as a child and subsequently had a metal plate implanted in his skull, (2) petitioner suffered from epilepsy and a seizure disorder, (3) petitioner was then taking medications for that illness, (4) as a child, petitioner was sent to the Austin State School for unspecified "mental illness problems," and (5) a transcript existed from the April 29, 1981 Nolan County hearing in which petitioner's defense counsel raised a 1089 question as to petitioner's competence to stand trial.[383] This Court finds petitioner's arguments unpersuasive. Nothing in any of these arguments establishes that any evidence or factual information was ever presented to the trial judge who presided over petitioner's capital murder trial showing either that (1) petitioner had a history of irrational, as opposed to merely criminal behavior, (2) there was anything about petitioner's bearing or demeanor at the time of trial which would have raised "a real, substantial, and legitimate doubt" as to his mental capacity, or (3) any prior medical or psychological evaluation of petitioner had ever found him to be incompetent. On the contrary, petitioner's trial counsel had petitioner evaluated by Dr. Costello well in advance of trial but never filed any motions or made any statements on the record that would have raised a legitimate doubt as to petitioner's competence to stand trial. Petitioner identifies nothing which he either did or said in the presence of the trial judge which would have raised a doubt as to his competence. Moreover, there is not even a single instance in the record from petitioner's trial indicating petitioner ever behaved in an irrational manner in the presence of the trial judge.[384] Petitioner alleges no facts showing the trial judge was ever made aware of any history of irrational, as opposed to criminal, behavior by petitioner.[385] Petitioner also identifies no medical evaluations performed at or prior to the time of trial indicating he was incompetent. Contrary to the implications underlying this aspect of the petitioner's final ground for federal habeas relief, regardless of whether viewed individually or collectively, petitioner's history of head injury and epilepsy, the fact petitioner was then taking medications for his epilepsy, the fact petitioner had been examined or treated for unspecified "mental illness problems" almost twenty years before at the Austin State School, and the fact that eight years previously a trial attorney had raised a question as to petitioner's competence to stand trial simply did not raise "a real, substantial, and legitimate doubt as to petitioner's mental capacity" sufficient to warrant a competency hearing. For these reasons, this portion of petitioner's final ground for federal habeas relief does not warrant same. 2. Petitioner's Competence to Stand Trial As explained above, a criminal defendant is competent to stand trial if (1) he has sufficient ability at the time of trial to consult with his attorney with a reasonable degree of rational understanding and (2) he has a rational as well as factual understanding of the proceedings against him.[386] When federal habeas corpus relief is sought on the ground the defendant was incompetent to stand trial, the petitioner's initial burden is substantial; federal habeas courts will only consider claims of mental incompetence to stand trial when the facts are sufficient to positively, unequivocally, and clearly generate a real, substantial, and legitimate doubt as to the mental capacity of the petitioner.[387] The problems with petitioner's claim he was incompetent to stand trial are legion. 1090 First, the only facts which petitioner alleges in support of this claim are the same ones discussed above regarding his history of childhood head injury, history of epilepsy, stay at the Austin State School almost twenty years before his capital murder trial, and the April 29, 1981 hearing in Nolan County. However, petitioner alleges no facts establishing either that (1) he lacked sufficient ability at the time of his trial to consult with his attorney with a reasonable degree of rational understanding or (2) he lacked a rational as well as factual understanding of the proceedings against him. Second, petitioner's trial counsel testified at the evidentiary hearing held November 21, 1994, in petitioner's state habeas corpus proceeding that (1) he discussed the case numerous times with petitioner prior to trial, (2) he had petitioner evaluated by an independent psychiatrist and reviewed Dr. Costello's report of that evaluation, (3) he had no doubt about petitioner's competence to stand trial, and (4) he never felt there was any basis for a motion challenging petitioner's competence to stand trial.[388] Petitioner offered no evidence at that same hearing to refute this testimony and has alleged no facts before this Court which contradict the observations of petitioner's trial counsel. Furthermore, as a part of petitioner's state habeas corpus proceeding, the State obtained an affidavit from the then-retired state trial judge who presided over petitioner's capital murder trial in which the former judge stated (1) petitioner was well-behaved in court, (2) he never had the slightest suspicion petitioner lacked a rational and factual understanding of the proceeding against him, and (3) nothing was ever brought to his attention indicating petitioner lacked the ability to consult with his lawyer.[389] Petitioner has not alleged any facts controverting the trial judge's observations. In addition, nothing in either Dr. Costello's 1988 report or in the more recent report prepared by Dr. Robert Geffner and his associate Ron Roberts indicates that, at the time of his trial, petitioner lacked either sufficient ability to consult with his attorney with a reasonable degree of rational understanding or a rational, as well as factual, understanding of the proceedings against him. Finally, petitioner's own testimony given at the punishment phase of his trial amply demonstrates (1) petitioner was fully aware of the nature of the charge against him, (2) petitioner understood the factual basis for the charge against him, (3) petitioner understood the defense's strategy of asserting petitioner's fatal shooting of Vernon Hanan had not been intentional or deliberate, (4) petitioner understood the evidence that had been introduced at both the guilt-innocence and punishment phases of trial, as well as other evidence which his trial counsel had succeeded in excluding from the guilt-innocence phase of trial, (5) petitioner understood the nature and facts giving rise to each of the offenses for which he previously had been convicted as well as the facts surrounding each of the instances of unadjudicated criminal conduct which had been introduced at the punishment phase of trial, and (6) petitioner was fully capable of discussing all of the foregoing matters and responding intelligently to questions concerning same.[390] Under these circumstances, this Court concludes petitioner has failed to carry his burden to positively, unequivocally, and clearly generate a real, substantial, and legitimate doubt as to the mental capacity of petitioner at the time of trial. For the foregoing reasons, 1091 petitioner's final ground for federal habeas corpus relief does not warrant same. N. Petitioner's Request for an Evidentiary Hearing In a motion filed July 26, 1995,[391] petitioner requested this Court conduct an evidentiary hearing in this cause. A federal habeas corpus petitioner bears the burden of demonstrating the need for an evidentiary hearing on his claims for relief.[392] A federal habeas petitioner is entitled to an evidentiary hearing only where the petitioner has alleged facts which, if proved, would entitle the petitioner to relief and the petitioner did not receive a full and fair hearing in a state court.[393] No hearing is necessary where the record is complete and the evidence in the record is sufficient to provide full review of the petitioner's claims.[394] An evidentiary hearing is not required if the record is complete or the petitioner raises only legal claims that can be resolved without the presentation of additional evidence.[395] Likewise, a federal habeas corpus petitioner is not entitled to a federal evidentiary hearing on the basis of frivolous or incredible allegations.[396] A federal habeas court need not grant an evidentiary hearing on a claim of ineffective assistance of counsel when a petitioner fails to allege facts which, if proved, would entitle the petitioner to relief or when the state court record supports that court's disposition of the claim.[397] A federal habeas petitioner asserting a claim he was not competent to stand trial is not entitled to an evidentiary hearing unless he alleges facts sufficient to positively, unequivocally, and clearly generate a real, substantial, and legitimate doubt as to the mental capacity of the petitioner.[398] As explained above, petitioner has not met this standard. The uncontroverted testimony of petitioner's trial counsel during petitioner's state habeas proceeding, the affidavit of the trial judge, and petitioner's own trial testimony affirmatively refute any and all contentions petitioner was mentally incompetent to stand trial. For the many reasons discussed at great length above, petitioner's remaining grounds for federal habeas relief are without merit. For the foregoing reasons, petitioner's request for an evidentiary hearing in this Court will is DENIED. IV. Conclusion None of petitioner's grounds for federal habeas relief are sustainable, and petitioner has failed to allege sufficient facts to require an evidentiary hearing in this cause. Accordingly, it is hereby ORDERED that: 1092 1. All relief requested in Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996,[399] is DENIED. 2. Petitioner's motion for evidentiary hearing, filed July 26, 1995,[400] is DENIED. 3. This Court's Order staying the execution of petitioner's sentence, issued on May 4, 1995,[401] is RESCINDED, and the stay of execution contained therein is VACATED. 4. The Clerk shall immediately prepare and enter a Judgment in conformity with this Memorandum Opinion and Order. ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT Before the Court is petitioner's motion to alter or amend judgment, filed September 11, 1996.[1] Petitioner argues (1) this Court applied the wrong legal standard in its evaluation of petitioner's claim that he was entitled to an instruction on the lesser-included offense of felony murder at the guilt-innocence phase of his capital murder trial, (2) this Court erred in denying petitioner an evidentiary hearing on petitioner's claims of ineffective assistance by petitioner's trial counsel and forced medication, and (3) this Court erred in refusing to address the applicability of the Antiterrorism and Effective Death Penalty Act of 1996[2] ["AEDPA"] to petitioner's claims in this cause. Having reviewed petitioner's motion to alter or amend judgment, this Court finds nothing therein which warrants reconsideration or amendment of the analysis contained in this Court's Memorandum Opinion and Order issued August 27, 1996.[3] Therefore, petitioner's motion to alter or amend the judgment in this cause will be denied. Lesser-Included Offense Instruction Felony Murder Petitioner's argument regarding his right to have a jury instruction on the lesser-included offense of felony murder was discussed in detail in Section III.C.1. of this Court's Memorandum Opinion and Order issued August 27, 1996. Petitioner was entitled to a jury instruction on the lesser-included offense of felony murder at the guilt-innocence phase of his capital murder trial only if the evidence then before the jury would permit a jury rationally to find him guilty of the lesser offense and to acquit him of the greater.[4] Therefore, to require an instruction on felony murder under Texas law as a matter of constitutional principle, the evidence at petitioner's trial had to permit a rational jury to conclude that petitioner had intended merely to commit the underlying offense of robbery but, during the commission of or attempt to commit that robbery, petitioner actually caused the death of the decedent by committing an act clearly dangerous to human life without actually intending to kill the decedent.[5] However, as explained in this Court's Memorandum Opinion and Order, petitioner offered no direct testimony or other evidence at the guilt-innocence phase of his capital murder trial from which a rational jury could have inferred that petitioner had not intended to kill the decedent when petitioner aimed a fully loaded semiautomatic pistol at the decedent's 1093 heart and pulled the trigger. Petitioner did not testify at the guilt-innocence phase of his trial, and there was no evidence introduced at the guilt-innocence phase of trial establishing that either (1) the fatal shooting had been accidental, (2) the fatal shooting had been the product of anything other than petitioner's own intentional conduct, or (3) the petitioner did not intend to kill the decedent when the petitioner aimed a fully loaded pistol at the decedent and fired at point blank range. Contrary to the implications contained in petitioner's latest motion, neither the fact that petitioner shot only the decedent on the date in question nor the fact that petitioner failed to announce verbally before, during or after the fatal shooting that he intended to kill the decedent entitled petitioner to a jury instruction on the lesser-included offense of felony murder. Likewise, petitioner's testimony at the punishment phase of his trial regarding his mental state at the time of the shooting is wholly irrelevant to the issue of whether petitioner was entitled to a lesser-included offense instruction at the earlier, guilt-innocence phase of his capital murder trial. Adoption of petitioner's arguments would necessitate the giving of a jury instruction on the lesser-included offense of felony murder in every Texas capital murder trial; this, the Constitution does not require. Evidentiary Hearing A federal habeas corpus petitioner is entitled to an evidentiary hearing only where the petitioner has alleged facts which, if proved, would entitle the petitioner to relief, there is a genuine dispute as to the critical facts, and the petitioner did not receive a full and fair hearing in a state court.[6] No hearing is necessary where the record is complete and the evidence in the record is sufficient to provide full review of the petitioner's claims.[7] An evidentiary hearing is not required if the record is complete or the petitioner raises only legal claims that can be resolved without the presentation of additional evidence.[8] A federal habeas court need not grant an evidentiary hearing on a claim of ineffective assistance of counsel when a petitioner fails to allege facts which, if proved, would entitle the petitioner to relief or when the state court record supports that court's disposition of the claim.[9] Petitioner argues this Court should have held an evidentiary hearing to permit petitioner to develop and introduce evidence which, according to petitioner, established that (1) petitioner's trial counsel failed to interview petitioner's family members for the purpose of eliciting mitigating evidence regarding petitioner's childhood head injuries and psychological problems, (2) months after petitioner's trial, while a candidate for the office of Bexar County Criminal District Attorney, petitioner's trial counsel received a campaign contribution in the amount of one hundred dollars from a member of the decedent's 1094 family, and (3) petitioner was medicated during his trial court proceedings. Petitioner also argues he was not afforded a full and fair hearing on those same claims as a part of his state habeas corpus proceeding.[10] For a number of reasons, petitioner's arguments on these matters are insufficient to warrant an evidentiary hearing under the standard set forth above. 1. No Reliance Upon State Court Fact Findings First, this Court did not rely upon any express or implied fact findings made by petitioner's state habeas corpus court in the course of rejecting petitioner's ineffective assistance and mental incompetence claims. As explained below, petitioner has alleged no specific facts showing he was mentally incompetent to stand trial or that his trial counsel rendered ineffective assistance by failing to adequately investigate petitioner's mental health. Thus, any defects in petitioner's state habeas corpus proceedings are irrelevant to the merits of those aspects of petitioner's claims for federal habeas relief before this Court. 2. Investigation into Petitioner's Mental Health Second, as explained in this Court's Memorandum Opinion and Order, the failure of petitioner's trial counsel to investigate, develop, and present evidence relating to petitioner's childhood head injuries and psychological problems was not, per se, ineffective assistance.[11] The decision by petitioner's trial counsel not to further investigate petitioner's mental condition and background was a wholly reasonable one and was made after counsel had personally reviewed petitioner's medical records from the Austin State School and after petitioner had been evaluated by a psychiatrist at counsel's request. Under such circumstances, petitioner's trial counsel was not ineffective for failing to investigate further petitioner's psychiatric or psychological condition and background.[12] Petitioner's trial counsel made an informed strategic decision not to conduct further investigation into petitioner's mental health after counsel conducted a reasonable investigation into that subject. Informed strategic decisions by trial counsel are given a heavy measure of deference in federal habeas review.[13] An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law are virtually unchallengeable.[14] Counsel is required neither to advance every nonfrivolous argument nor to investigate 1095 every conceivable matter inquiry into which could be classified as nonfrivolous.[15] "The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources."[16] The strategic decision by petitioner's trial counsel not to interview petitioner's family members or to conduct other, additional investigation into petitioner's mental health and background did not fall outside an objective standard of reasonableness as defined by prevailing professional norms.[17] 3. Conflict of Interest: Campaign Contribution Third, petitioner has wholly failed to allege any specific facts establishing an actual conflict of interest arose because more than a year after petitioner's trial, petitioner's trial counsel allegedly accepted campaign contributions from a member of the decedent's family. More specifically, petitioner alleges in his motion to alter or amend judgment that campaign contributions were made to trial counsel by the family of the deceased complainant. In reviewing the exhibits attached to petitioner's second amended habeas corpus petition, the Court found, as no reference to this exhibit was made in the second amended petition or in the motion to alter or amend judgment, a copy of page 16 of a 37-page report of campaign contributions. The third person on the list is a person named "Linda Hanan" who in September of 1990, more than a year after petitioner's trial, made a contribution in the amount of one hundred dollars to the campaign of attorney Steven C. Hilbig for the office of Bexar County Criminal District Attorney. The Court takes judicial notice of the fact that by September of 1990, attorney Hilbig was the Republican party's nominee for the office of Bexar County Criminal District Attorney and that attorney Hilbig won that office in the November 1990 general election. There is no specific allegation of whether Linda Hanan is related to the decedent. A court need not blindly accept speculative and insubstantial claims as the basis upon which to order an evidentiary hearing.[18] To be entitled to an evidentiary hearing, the federal habeas petitioner must set forth specific allegations of fact, not mere conclusions.[19] Petitioner has alleged no facts establishing 1096 that his trial counsel's interests ever conflicted with or were adverse to petitioner's interests with regard to the outcome of petitioner's capital murder trial. While the petitioner has alleged that, more than a year after petitioner's trial, petitioner's trial counsel accepted a campaign contribution from a member of the complainant's family during said counsel's successful campaign for the office of Bexar County Criminal District Attorney, petitioner has alleged no specific facts establishing that either (1) petitioner's trial counsel ever sought or solicited such a contribution directly or indirectly from any member of the decedent's family, (2) petitioner's trial counsel was aware, at or near the time of petitioner's trial, of the possibility that such a contribution might be made by a member of the complainant's family, (3) petitioner's trial counsel ever agreed to engage in any act or omission in connection with his representation of petitioner in exchange for such a contribution or a promise of a campaign contribution from the decedent's family, or (4) the campaign contribution in question was made or intended as part of a quid pro quo for any act or omission by petitioner's trial counsel in connection with said counsel's representation of petitioner. In short, petitioner has alleged no specific facts showing that the campaign contribution in question was in any way related to, connected with or the product of an act or omission performed by attorney Hilbig during his previous representation of the petitioner. Petitioner has alleged no facts establishing that his trial counsel's interest ever conflicted with or were adverse to petitioner's interests with regard to the outcome of petitioner's capital murder trial. When there is a factual dispute that, if resolved in the petitioner's favor would entitle the petitioner to relief and the state has not afforded the petitioner a full and fair evidentiary hearing, a federal habeas corpus petitioner is entitled to discovery and an evidentiary hearing.[20] However, petitioner has failed to identify a genuine dispute as to any operative facts which, if resolved in petitioner's favor, would entitle petitioner to federal habeas corpus relief. Even assuming a member of complainant's family made a contribution to attorney Hilbig's election campaign in September of 1990, that fact, standing alone, would not support a finding of an actual conflict of interest on the part of attorney Hilbig relating to his representation of petitioner at petitioner's 1989 capital murder trial.[21] Petitioner has alleged no facts establishing a nexus between that contribution and any of the acts or omissions of attorney Hilbig during his representation of the petitioner. Thus, there is no genuine dispute which warrants an evidentiary hearing in this cause. Rule 6 of the Federal Rules Governing Section 2254 Cases in the United States District Courts expressly provides for discovery in habeas corpus proceedings if the petitioner shows "good cause" for discovery.[22] However, Rule 6 does not authorize "fishing expeditions."[23] While petitioner did file a motion requesting an evidentiary hearing to develop further his factual allegations regarding his ineffective assistance claim,[24] petitioner made no mention in that motion of a need or desire to develop further any facts concerning any campaign contributions made to attorney Hilbig. Petitioner's operative pleading, i.e., petitioner's second amended federal habeas corpus petition, contains no mention whatsoever of any conflict of interest arising from the receipt by attorney Hilbig's election campaign in September of 1990 of a contribution 1097 from a member of the complainant's family.[25] While petitioner does allege in his motion to alter or amend judgment that "campaign contributions were made to trial counsel by the family of the deceased complainant," which according to an exhibit attached to petitioner's second amended petition appears to be a person by the name of "Linda Hanan" who made a one hundred dollar contribution to attorney Hilbig's campaign in September of 1990, petitioner does not allege either that attorney Hilbig knew the "Linda Hanan" who made the contribution was a member of the complainant's family or that attorney Hilbig ever knew any member of the complainant's family had made such a contribution. Simply put, petitioner did not request leave, pursuant to Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts, to conduct discovery into the circumstances surrounding this campaign contribution nor has petitioner established "good cause" for conducting such discovery in this case.[26] Petitioner has alleged no facts linking the September, 1990 campaign contribution of "Linda Hanan" to anything attorney Hilbig either did or failed to do in connection with said counsel's representation of petitioner. Finally, the Court notes that petitioner was afforded a full and fair opportunity to examine attorney Hilbig on this matter during the evidentiary hearing held November 21, 1994, in petitioner's state habeas corpus proceeding. A federal evidentiary hearing is necessary in a habeas corpus proceeding only when the petitioner alleges specific facts which, if proved, would entitle him to relief, there is a genuine dispute as to operative facts in the record, and the state court has not provided a full and fair hearing on same.[27] Petitioner has repeatedly argued he was denied a fair opportunity to cross-examine attorney Hilbig at the hearing because the state court denied petitioner's requests for appointment of an expert psychiatrist or psychologist. However, petitioner did not need the assistance of a mental health expert to question attorney Hilbig concerning campaign contributions made to attorney Hilbig in September of 1990. During the November 21, 1994 evidentiary hearing held in state court, petitioner's counsel asked attorney Hilbig no questions concerning the September, 1990 campaign contribution made to attorney Hilbig's election campaign by Linda Hanan. For the reasons set forth above, petitioner is not entitled to an evidentiary hearing in this Court with regard to that contribution. 4. Petitioner's Medications Petitioner's final argument regarding the need for an evidentiary hearing is equally without merit. Petitioner has alleged no specific facts showing he received or was forced to take any medications against his will during his trial. While an inmate has a constitutionally-protected interest in remaining free from the unwanted administration of antipsychotic medications,[28] petitioner has alleged no facts establishing any of the anti-seizure medications which he received during his state criminal trial were administered involuntarily. On the contrary, petitioner's state trial court records reveal petitioner sought and obtained the state trial court's assistance in securing petitioner's epilepsy medications during trial. For the foregoing reasons, petitioner has failed to carry his burden of establishing the 1098 necessity for an evidentiary hearing to resolve petitioner's claims for federal habeas corpus relief in this cause. Antiterrorism and Effective Death Penalty Act Petitioner argues this Court must address the issue of whether the Antiterrorism and Effective Death Penalty Act of 1996[29] ["AEDPA"] applies to petitioner's claims for federal habeas corpus relief in this cause. However, as the Fifth Circuit has noted on at least two occasions, it is not necessary to address the applicability of the AEDPA to a federal habeas corpus petition pending at the time of the enactment of the AEDPA when that federal habeas corpus petition is without merit under the old, more permissive standards for granting federal habeas corpus relief.[30] As explained in this Court's Memorandum Opinion and Order, petitioner is not entitled to federal habeas corpus relief in this cause even when the former, more liberal standards of pre-AEDPA case law are applied to petitioner's claims herein. Accordingly, it is hereby ORDERED that all relief requested in petitioner's motion to alter or amend judgment, filed September 11, 1996,[31] is DENIED. NOTES [1] WILLIAM SHAKESPEARE, THE SECOND PART OF KING HENRY THE SIXTH act 4, sc. 2: Cade: I thank you, good people; there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord. Dick: The first thing we do, let's kill all the lawyers. III THE HISTORIES AND POEMS OF SHAKESPEARE 561 (Players Illus. ed., Spencer Press, Inc. (1955). [2] See docket entry no. 25. [3] See docket entry no. 18. [4] See docket entry no. 11. [5] See docket entry no. 17. [6] See docket entry no. 21. [7] The state court records this Court reviewed in the course of disposing of this cause include the numerous photographs admitted into evidence at petitioner's state court trial and the many pages of petitioner's medical records admitted into evidence at the evidentiary hearing held during petitioner's state habeas corpus proceeding. In Orders issued July 12 and July 18, 1996, this Court was compelled to direct the respondent to supplement the record in this cause with those additional documents and photographs when respondent failed to submit same as part of the state court records in this cause. See docket entry nos. 27 and 28. [8] Several eyewitnesses testified at the guilt-innocence phase of petitioner's state court trial to the details of the bank robbery and the events leading up to petitioner's fatal shooting of Vernon Hanan on January 28, 1988. See Statement of Facts from Petitioner's State Court Trial, Volume 17 of 27, Testimony of Judy K. Hilton, at pp. 5229-56; Volume 18 of 27, Testimony of Rita Perez, at pp. 5638-81; Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5683-5807; Volume 19 of 27, Testimony of Guadalupe Lozano, at pp. 5808-44 and 5850-78; Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6633-87; Volume 22 of 27, Testimony of Rudolph Kasper, at pp. 6728-48; Volume 22 of 27, Testimony of William McGinty, at pp. 6768-94; Volume 22 of 27, Testimony of Alvaro Gonzalez, at pp. 6794-6822; and Volume 22 of 27, Testimony of Celia Pena, at pp. 6823-63. It was uncontroverted at the guilt-innocence phase of petitioner's trial that a single shot had traveled through Vernon Hanan's right forearm before entering his chest, piercing his sternum, passing through one of the chambers of his heart, moving through the aorta, and moving through the left pulmonary vein before lodging in the soft tissue overlaying the spinal cord. See Statement of Facts from petitioner's state court trial, Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6489-6506. There was no dispute the wounds caused by this bullet actually caused Vernon Hanan's death. Id., Volume 20 of 27, Testimony of John Calhoun, at pp. 6214-23; and Volume 21 of 27, Testimony of Vincent DiMaio, at p. 6504. There was also no dispute the fatal bullet had been fired from petitioner's gun and petitioner's gun was at a distance of approximately two feet from Vernon Hanan's forearm when it was fired. Id., Volumes 20-21 of 27, Testimony of Richard Stengel, at pp. 6331-35 and 6348; and Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6490-91 and 6597-99. In his closing argument at the guilt-innocence phase of trial, petitioner's trial counsel admitted petitioner had robbed the bank and acknowledged petitioner had shot Vernon Hanan but argued petitioner had not done so intentionally and petitioner had not, as the prosecution had suggested in its opening argument, stood over a fallen Vernon Hanan and fired the fatal shot while Hanan was lying flat on his back. See Statement of Facts from petitioner's state court trial, Volume 23 of 27, at pp. 6920-69. At the punishment phase of his trial, petitioner admitted he had pulled the trigger of his gun but testified he had not intended to kill Vernon Hanan. Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7526-27, 7556, 7559, 7571-73, and 7605. [9] Copies of petitioner's indictment appear throughout the pleadings and state court papers now before this Court. See, e.g., Statement of Facts from petitioner's state court trial, Volume IA, at p. 2; Statement of Facts from petitioner's state habeas corpus proceeding, at p. 229. [10] See Statement of Facts from petitioner's state court trial, Volume 2 of 27, at pp. 87-96. Immediately prior to the commencement of the general voir dire, a pretrial hearing was held to address defense counsel's concerns about local media photographing or videotape recording the members of the venire as they entered the courtroom. Id. Immediately after that brief hearing, the general voir dire began. Id. at p. 96. [11] See Statement of Facts from petitioner's state court trial, Volume 17 of 27, at p. 5209. [12] See Statement of Facts from petitioner's state court trial, Volume 23 of 27, at p. 7005. [13] See Statement of Facts from petitioner's state court trial, Volume 26 of 27, at pp. 7698-7700. More specifically, the jury answered "Yes" in response to each of the three special issues submitted to it at the punishment phase of trial, i.e., questions asking whether (1) petitioner had acted deliberately in killing the decedent, (2) petitioner posed a continuing threat of violence to society, and (3) petitioner's action in killing the decedent was an unreasonable response to the decedent's conduct. [14] See Adanandus v. State, 866 S.W.2d 210 (Tex. Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1338, 127 L. Ed. 2d 686 (1994). In his appellate brief, petitioner presented some forty-seven grounds for relief, consisting of arguments that (1) the state trial court erred in refusing to dismiss the venire after conducting a portion of the voir dire in petitioner's absence, (2) the state trial court erred in conducting a portion of the voir dire in petitioner's absence, (3) the state trial court erred in denying petitioner's challenge for cause to venireperson George Jordan, (4) the state trial court erred in denying petitioner's challenge for cause to venireperson Thomas Cano, (5) the state trial court erred in overruling petitioner's objections to a hypothetical question asked during the individual voir dire of Amelia McDaniel, (6) the state trial court erred in refusing to dismiss the array based on the prosecution's violation of Batson equal protection principles in striking the lone remaining black member of the venire, Sharon King, (7) the state trial court erred in overruling petitioner's objection to the prosecution's definition of culpable mental states during voir dire, (8) the state trial court erred in admitting over petitioner's objection reputation testimony given by witnesses Frank Rodriguez, Harvey Jackson, and Danny Lewis, (9) the jury instructions prevented the jury from making a reasoned moral response to relevant mitigating evidence, (10) the state trial court erred in overruling petitioner's requested jury instructions on mitigating evidence, (11) the state trial court erred in denying petitioner's request for a jury instruction on the effect of a hung jury, (12) the state trial court erred in denying petitioner's request for a definition of "deliberately" in the punishment phase jury instructions, (13) the state trial court erred in denying petitioner's motion for mistrial after the prosecution asked an improper question of witness William McGinty, (14) the state trial court erred in excluding the testimony of defense witness William Stolhanske, (15) the state trial court erred in overruling petitioner's objection to the admission of State's Exhibits 132, 133, and 134, photographs containing irrelevant and inflammatory material, (16) the state trial court erred in denying petitioner's request for a jury instruction on voluntary conduct, (17) the state trial court erred in denying petitioner's requests for jury instructions on the lesser-included offenses of felony murder, voluntary manslaughter and involuntary manslaughter, (18) there was insufficient evidence establishing petitioner intentionally killed the victim, (19) there was insufficient evidence to support the jury's verdict on the first special issue at the punishment phase, i.e., the question whether petitioner's conduct in killing the decedent had been deliberate, (20) there was insufficient evidence to support the jury's verdict on the second special issue at the punishment phase, i.e., the question whether petitioner's conduct in killing the decedent was unreasonable in response to the decedent's conduct, (21) the state trial court erred in permitting the prosecution to introduce evidence of petitioner's unadjudicated criminal conduct at the punishment phase of trial, (22) the state trial court erred in denying petitioner's request for a jury instruction at the punishment phase of trial stating it was the prosecution's burden to establish each instance of petitioner's unadjudicated criminal conduct beyond a reasonable doubt, (23) petitioner's constitutional rights were violated by the admission of unadjudicated criminal conduct at the punishment phase of petitioner's criminal trial when such evidence is not admissible at the punishment phase of non-capital offenses, and (24) the state trial court erred in permitting the state to introduce evidence of unadjudicated criminal conduct without proper notice to petitioner. [15] See Adanandus v. Texas, 510 U.S. 1215, 114 S. Ct. 1338, 127 L. Ed. 2d 686 (1994). [16] See Statement of Facts from petitioner's state habeas corpus proceeding at pp. 1-27. In his initial state habeas corpus application, petitioner asserted six grounds for relief, consisting of claims that (1) petitioner's trial counsel had rendered ineffective assistance by failing to present mitigating evidence showing petitioner had suffered a head injury as a child, (2) the state trial court erroneously failed to define the term "reasonable doubt" in its jury instructions, (3) the state trial court erred in denying petitioner's requests for jury instructions on the lesser-included offenses of felony murder, voluntary manslaughter, and involuntary manslaughter, and (4) the state trial court erred in denying petitioner's request that a definition of "deliberately" be included in the punishment phase jury instructions. [17] Id. at pp. 43-113. In his amended application for state habeas corpus relief, petitioner presented numerous grounds for relief, numbered "IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XVI, XXVII, XXVIII, XXIX, XXX, and XXXI," consisting of arguments that (1) the state trial court erred in denying petitioner's requests for jury instructions on the lesser-included offenses of felony murder, voluntary manslaughter, and involuntary manslaughter, (2) the prosecution failed to provide exculpatory and mitigating evidence to the defense, (3) petitioner's sentence was based in part on an invalid prior conviction, (4) the state trial court violated state law and equal protection principles when it refused to dismiss the entire venire after the prosecution improperly exercised a peremptory challenge to dismiss the lone remaining black from the venire panel, (5) the state trial court erred in admitting testimony of three prosecution witnesses regarding petitioner's bad reputation for being peaceful and law abiding, (6) the jury instructions deprived the jury of the opportunity to make a reasoned moral response to relevant mitigating evidence, (7) the state trial court erred in denying petitioner's requests for jury instructions on mitigating evidence, (8) the state trial court erred in denying petitioner the right to call witness William Stolhanske, (9) petitioner's forced medication violated his constitutional rights, (10) the state trial court erred in dismissing the array after it conducted a portion of the voir dire in petitioner's absence, (11) the state trial court erred in conducting a portion of the voir dire portion of trial in petitioner's absence, (12) petitioner was legally incompetent to stand trial, and (13) the state trial court erred in permitting the State to introduce evidence of unadjudicated criminal conduct at the punishment phase of trial. [18] The Statement of Facts from the state trial court's November 21, 1994 evidentiary hearing in petitioner's state habeas corpus proceeding is included separately with the state court records from that proceeding submitted to this Court by respondent. In addition, the Statement of Facts from petitioner's state habeas corpus proceeding also includes the transcript from an evidentiary hearing held April 27, 1981, in state district court in Nolan County, Texas, at which the state court judge heard testimony regarding petitioner's competence to enter a guilty plea in an aggravated robbery case. See Statement of Facts from petitioner's state habeas corpus proceeding, at pp. 181-211. In the interim between petitioner's state court trial and the filing of petitioner's state habeas corpus application, more specifically in November, 1990, petitioner's lead trial counsel, attorney Steven C. Hilbig, was elected Criminal District Attorney of Bexar County, Texas. Therefore, in January, 1991, the state trial court appointed a District Attorney Pro Tem to represent the state in any further proceedings in petitioner's case. [19] See Statement of Facts from petitioner's state habeas corpus proceeding, at pp. 234-42. In its findings and conclusions, the state trial court held that (1) many of petitioner's grounds for state habeas corpus relief had been addressed and disposed of on the merits in the course of petitioner's direct appeal and, therefore, did not present a basis for state habeas corpus relief, (2) petitioner's trial counsel had made a tactical decision after reviewing petitioner's medical records not to introduce same into evidence, (3) the evidence which petitioner claimed the prosecution withheld from the defense was, in fact, a public record and, therefore, available to petitioner through the exercise of due diligence, (4) petitioner had failed to present any evidence establishing he was forcibly medicated at any time relevant to his trial, and (5) petitioner had failed to present any evidence showing he was incompetent to stand trial. Id. [20] See Ex parte Adanandus, Writ No. 27,875-01 (Tex.Crim.App. February 21, 1995). [21] See docket entry no. 1. [22] See docket entry no. 2. [23] See docket entry no. 3. [24] See docket entry no. 4. [25] See docket entry no. 5. [26] See docket entry no. 6. [27] See docket entry no. 11. [28] See docket entry no. 12. [29] See docket entry no. 17. [30] See docket entry no. 18. [31] See docket entry nos. 20 and 21, respectively. [32] See docket entry no. 22. [33] See docket entry no. 23. [34] See docket entry no. 24. [35] See docket entry no. 25. The listing of grounds for relief set forth in the text is a summary of the petitioner's claims and, at various points, groups together several related claims among the twenty-one grounds for relief asserted in petitioner's second amended federal habeas corpus petition. [36] Pub.L. No. 104-132, 110 Stat. 1214 (1996). The Fifth Circuit has already held that at least some portions of the Antiterrorism and Effective Death Penalty Act became effective on April 24, 1996. See Mendez-Rosas v. I.N.S., 87 F.3d 672, 674-76 (5th Cir.1996). [37] See docket entry no. 26. For the reasons discussed at length hereinafter, it is not necessary for this Court to resolve the issue of the applicability of this new federal statute to this cause. The provisions of this recent enactment raise considerable barriers and impediments to state prisoners seeking federal habeas corpus relief in death penalty cases. However, even if this Court applies the provisions of the law as it existed prior to the effective date of that recent enactment, petitioner is not entitled to federal habeas corpus relief in this proceeding. [38] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 7-17. [39] 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). [40] Darden v. Wainwright, 477 U.S. 168, 184, 106 S. Ct. 2464, 2473, 91 L. Ed. 2d 144 (1986); Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. at 2064; Andrews v. Collins, 21 F.3d 612, 621 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 908, 130 L. Ed. 2d 790 (1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S. 1056, 113 S. Ct. 1958, 123 L. Ed. 2d 661 (1993); Black v. Collins, 962 F.2d 394, 401 (5th Cir.), cert. denied, 504 U.S. 992, 112 S. Ct. 2983, 119 L. Ed. 2d 601 (1992). [41] See Strickland v. Washington, 466 U.S. at 687-91, 104 S.Ct. at 2064-66; Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1438, 134 L. Ed. 2d 559 (1996); Loyd v. Whitley, 977 F.2d 149, 156 (5th Cir.1992), cert. denied, 508 U.S. 911, 113 S. Ct. 2343, 124 L. Ed. 2d 253 (1993); Duff-Smith v. Collins, 973 F.2d at 1182; Drew v. Collins, 964 F.2d 411, 422 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3044, 125 L. Ed. 2d 730 (1993); Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992); Wilkerson v. Collins, 950 F.2d 1054, 1064 (5th Cir.1992), cert. denied, 509 U.S. 921, 113 S. Ct. 3035, 125 L. Ed. 2d 722 (1993); United States v. Smith, 915 F.2d 959, 963 (5th Cir.1990); Ellis v. Lynaugh, 873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 384 (1989); Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.), cert. denied, 479 U.S. 1021, 107 S. Ct. 678, 93 L. Ed. 2d 728 (1986). A federal habeas petitioner must carry the burden of demonstrating both counsel's deficient performance and resultant prejudice. Burnett v. Collins, 982 F.2d 922, 928 (5th Cir.1993); Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir.1983), cert. denied, 469 U.S. 1028, 105 S. Ct. 447, 83 L. Ed. 2d 373 (1984). [42] See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993); Burger v. Kemp, 483 U.S. 776, 789, 107 S. Ct. 3114, 3123, 97 L. Ed. 2d 638 (1987); Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065; United States v. Gaudet, 81 F.3d 585, 592 (5th Cir.1996); Belyeu v. Scott, 67 F.3d at 538; Williams v. Scott, 35 F.3d 159, 164 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 959, 130 L. Ed. 2d 901 (1995); Williams v. Collins, 16 F.3d 626, 631 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 42, 129 L. Ed. 2d 937 (1994); Loyd v. Whitley, 977 F.2d at 156; Lincecum v. Collins, 958 F.2d at 1278; Wilkerson v. Collins, 950 F.2d at 1064; McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir.1990); Ellis v. Lynaugh, 873 F.2d at 839; Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.), cert. denied, 493 U.S. 831, 110 S. Ct. 102, 107 L. Ed. 2d 66 (1989); Enriquez v. Procunier, 752 F.2d 111, 114 (5th Cir.1984), cert. denied, 471 U.S. 1126, 105 S. Ct. 2658, 86 L. Ed. 2d 274 (1985); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.1983). The deficiency prong of Strickland is judged by counsel's conduct under the law existing at the time of the conduct. Westley v. Johnson, 83 F.3d 714, 723 (5th Cir.1996) (citing Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844). [43] See Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066; Duff-Smith v. Collins, 973 F.2d at 1182; Drew v. Collins, 964 F.2d at 422; Wilkerson v. Collins, 950 F.2d at 1064-65; Bates v. Blackburn, 805 F.2d 569, 578 n. 7 (5th Cir. 1986), cert. denied, 482 U.S. 916, 107 S. Ct. 3190, 96 L. Ed. 2d 678 (1987); Martin v. McCotter, 796 F.2d 813, 816 (5th Cir.1986), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 985 (1987); Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S. Ct. 873, 93 L. Ed. 2d 827 (1987). [44] See Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir.1994) (citing Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066). [45] See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir.1995) ("Counsel cannot be deficient for failing to press a frivolous point."); United States v. Gibson, 55 F.3d 173, 179 (5th Cir.1995) ("Counsel is not required by the Sixth Amendment to file meritless motions."); Smith v. Collins, 977 F.2d 951, 960 (5th Cir.1992), cert. denied, 510 U.S. 829, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993) ("The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources."); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990) ("[C]ounsel is not required to make futile motions or objections."); Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir.1985) (holding defense counsel not required to investigate everyone whose name is mentioned by defendant); Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) ("Counsel is not required to engage in the filing of futile motions."). [46] Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; Bullock v. Whitley, 53 F.3d 697, 700 (5th Cir.1995). [47] Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066. [48] Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. at 2067. [49] 466 U.S. at 694, 104 S.Ct. at 2068; see also Loyd v. Whitley, 977 F.2d at 159; Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3045, 125 L. Ed. 2d 730 (1993); Drew v. Collins, 964 F.2d at 422; Black v. Collins, 962 F.2d at 401; Smith v. Puckett, 907 F.2d 581, 584-85 (5th Cir.1990), cert. denied, 498 U.S. 1033, 111 S. Ct. 694, 112 L. Ed. 2d 685 (1991); Crockett v. McCotter, 796 F.2d 787, 793-94 (5th Cir.), cert. denied, 479 U.S. 1021, 107 S. Ct. 678, 93 L. Ed. 2d 728 (1986). [50] See Lockhart v. Fretwell, 506 U.S. 364, 368-73, 113 S. Ct. 838, 841-45, 122 L. Ed. 2d 180 (1993); Vuong v. Scott, 62 F.3d 673, 685 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995); Armstead v. Scott, 37 F.3d 202, 207 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1709, 131 L. Ed. 2d 570 (1995). [51] Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844. Thus, prejudice is measured by current law and not by the law as it existed at the time of the alleged error. Westley v. Johnson, 83 F.3d at 723 (citing Lockhart v. Fretwell, 506 U.S. at 372-73, 113 S.Ct. at 844). [52] See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305 (1986); Darden v. Wainwright, 477 U.S. at 184, 106 S.Ct. at 2473; Williams v. Collins, 16 F.3d at 631; United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991). In the course of the latter portion of this inquiry, the Court must consider not merely whether the outcome of the defendant's case would have been different but also whether counsel's deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair. See Lockhart v. Fretwell, 506 U.S. at 368-73, 113 S.Ct. at 841-45; Armstead v. Scott, 37 F.3d at 207. [53] See, e.g., Martin v. McCotter, 796 F.2d at 816-17 (holding Strickland test applied to both trial and sentencing phases of criminal proceeding); Nealy v. Cabana, 764 F.2d 1173, 1178-80 (5th Cir.1985). An attorney's failure to investigate the case against the defendant and to interview witnesses can support a finding of ineffective assistance. Bryant v. Scott, 28 F.3d at 1415. However, in order to establish counsel was rendered ineffective by virtue of a failure to investigate the case against a defendant or to discover and present evidence, a convicted defendant must do more than merely allege a failure to investigate; he must state with specificity what the investigation would have revealed, what evidence would have resulted from that investigation, and how such would have altered the outcome of the case. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir.1993); United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989); Lockhart v. McCotter, 782 F.2d 1275, 1282-83 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S. Ct. 873, 93 L. Ed. 2d 827 (1987); Alexander v. McCotter, 775 F.2d 595, 603 (5th Cir.1985); Schwander v. Blackburn, 750 F.2d 494, 499-500 (5th Cir.1985); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.1983). [54] See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Randle v. Scott, 43 F.3d 221, 225 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 2259, 132 L. Ed. 2d 265 (1995); Armstead v. Scott, 37 F.3d at 206; Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir. 1994); Nelson v. Hargett, 989 F.2d at 850; United States v. Bounds, 943 F.2d at 544; Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir.1990); United States v. Smith, 915 F.2d 959, 963 (5th Cir.1990); Uresti v. Lynaugh, 821 F.2d 1099, 1101 (5th Cir.1987). To demonstrate prejudice in the context of a guilty plea, the defendant must show there is a reasonable probability that, but for the alleged errors of his attorney, he would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. at 58-59, 106 S.Ct. at 370; James v. Cain, 56 F.3d 662, 667 (5th Cir.1995); Randle v. Scott, 43 F.3d at 225; Armstead v. Scott, 37 F.3d at 206; Theriot v. Whitley, 18 F.3d at 313; Nelson v. Hargett, 989 F.2d at 850; United States v. Bounds, 943 F.2d at 544; Carter v. Collins, 918 F.2d at 1200; Czere v. Butler, 833 F.2d 59, 63 (5th Cir.1987). [55] See Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987); Belyeu v. Scott, 67 F.3d at 540-42 (applying both prongs of Strickland test to ineffective assistance claims regarding sentencing phase of capital murder trial); Andrews v. Collins, 21 F.3d at 623-25; Williams v. Collins, 16 F.3d at 631-32; Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.1993); Wilcher v. Hargett, 978 F.2d 872, 877 (5th Cir.1992), cert. denied, 510 U.S. 829, 114 S. Ct. 96, 126 L. Ed. 2d 63 (1993); Cantu v. Collins, 967 F.2d at 1016-17; Drew v. Collins, 964 F.2d at 422-23; Black v. Collins, 962 F.2d at 401-04; Duhamel v. Collins, 955 F.2d 962, 965-66 (5th Cir.1992); Wilkerson v. Collins, 950 F.2d at 1064-65; United States v. Hoskins, 910 F.2d 309, 310-11 (5th Cir.1990); Bell v. Lynaugh, 828 F.2d 1085, 1088 (5th Cir.), cert. denied, 484 U.S. 933, 108 S. Ct. 310, 98 L. Ed. 2d 268 (1987); Crockett v. McCotter, 796 F.2d at 791 n. 1. In a capital sentencing proceeding, the prejudice analysis focuses on whether there is a reasonable probability that, absent counsel's errors, the sentencer would have concluded that the balance of aggravating and mitigating factors did not warrant death. See Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. at 2069; Belyeu v. Scott, 67 F.3d at 538. [56] See Andrews v. Collins, 21 F.3d at 625; Williams v. Collins, 16 F.3d at 635; Cantu v. Collins, 967 F.2d at 1017; Duhamel v. Collins, 955 F.2d at 967-68; Sharp v. Puckett, 930 F.2d 450, 451 (5th Cir.1991); Lofton v. Whitley, 905 F.2d 885, 887-88 (5th Cir.1990); McCoy v. Lynaugh, 874 F.2d 954, 962-63 (5th Cir.1989); Ellis v. Lynaugh, 873 F.2d at 840; Wicker v. McCotter, 783 F.2d 487, 497 (5th Cir.), cert. denied, 478 U.S. 1010, 106 S. Ct. 3310, 92 L. Ed. 2d 723 (1986). But see Penson v. Ohio, 488 U.S. 75, 86-89, 109 S. Ct. 346, 353-55, 102 L. Ed. 2d 300 (1988) (holding prejudice prong of Strickland test does not apply in cases where appellate counsel withdraws without filing the brief suggested in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)); United States v. Riascos, 76 F.3d 93, 94 (5th Cir.1996) (holding complete denial of counsel on appeal, whether actual or constructive, creates presumption of prejudice); Moss v. Collins, 963 F.2d 44, 47 (5th Cir.1992), cert. denied, 506 U.S. 1055, 113 S. Ct. 983, 122 L. Ed. 2d 136 (1993) (holding actual or constructive denial of counsel on appeal is legally presumed to result in prejudice). [57] See Strickland v. Washington, 466 U.S. at 700, 104 S.Ct. at 2071; United States v. Seyfert, 67 F.3d 544, 547 (5th Cir.1995); Armstead v. Scott, 37 F.3d at 210; Spriggs v. Collins, 993 F.2d at 87; Black v. Collins, 962 F.2d at 401; United States v. Pierce, 959 F.2d 1297, 1302 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S. Ct. 621, 121 L. Ed. 2d 554 (1992); Buxton v. Lynaugh, 879 F.2d 140, 142 (5th Cir.1989), cert. denied, 497 U.S. 1032, 110 S. Ct. 3295, 111 L. Ed. 2d 803 (1990); Earvin v. Lynaugh, 860 F.2d 623, 627 (5th Cir.1988), cert. denied, 489 U.S. 1091, 109 S. Ct. 1558, 103 L. Ed. 2d 861 (1989); Thomas v. Lynaugh, 812 F.2d 225, 229 (5th Cir.), cert. denied, 484 U.S. 842, 108 S. Ct. 132, 98 L. Ed. 2d 89 (1987); see also Burnett v. Collins, 982 F.2d at 928 (holding defendant bears burden of proof on both prongs of Strickland test). [58] See United States v. Hoskins, 910 F.2d at 311; Thomas v. Lynaugh, 812 F.2d at 229-30. [59] See Black v. Collins, 962 F.2d at 401; United States v. Pierce, 959 F.2d at 1302; Carter v. Collins, 918 F.2d at 1203; Smith v. Puckett, 907 F.2d at 584; Bates v. Blackburn, 805 F.2d 569, 578 (5th Cir.1986), cert. denied, 482 U.S. 916, 107 S. Ct. 3190, 96 L. Ed. 2d 678 (1987); Martin v. McCotter, 796 F.2d at 821. [60] See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 660, 130 L. Ed. 2d 595 (1994) (holding petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief); Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (holding that without specific, affirmative showing of precisely what evidence or testimony was rendered unavailable due to trial counsel's failure to investigate, develop, and present same, i.e., a showing of exactly what the missing evidence or testimony would have been, court cannot even begin to apply Strickland analysis because it is very difficult to determine whether defendant was prejudiced by any such deficiencies in counsel's performance); United States v. Pineda, 988 F.2d 22, 23 (5th Cir.1993); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990); Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir.1989), cert. denied, 501 U.S. 1259, 111 S. Ct. 2909, 115 L. Ed. 2d 1073 (1991); United States v. Woods, 870 F.2d 285, 288 n. 5 (5th Cir.1989); Ross v. Estelle, 694 F.2d at 1011-12 & n. 2. [61] Westley v. Johnson, 83 F.3d 714, 723 (5th Cir.1996) (citing Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844). [62] Westley v. Johnson, 83 F.3d at 723 (citing Lockhart v. Fretwell, 506 U.S. at 372-73, 113 S.Ct. at 844). [63] See TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon 1981). In response to the Supreme Court's opinion in Penry v. Lynaugh, infra, the Texas Legislature amended the Texas capital sentencing scheme significantly effective September 1, 1991. See TEX. CODE CRIM.PROC.ANN. art. 37.071 (Vernon Supp.1996); Sawyers v. Collins, 986 F.2d 1493, 1497 n. 4 (5th Cir.), cert. denied, 508 U.S. 933, 113 S. Ct. 2405, 124 L. Ed. 2d 300 (1993). [64] See TEX.CODE CRIM.PROC.ANN. art. 37.071(b) (Vernon 1981). [65] See TEX.CODE CRIM.PROC.ANN. art. 37.071(d) (Vernon 1981). [66] See Act effective June 14, 1973, 63rd Leg., ch. 426, art. 3, § 1, amended by Act effective August 31, 1981, 67th Leg., ch. 725, § 1, amended by Act effective September 1, 1985, 69th Leg., ch. 44, § 2 (current version at TEX.CODE CRIM.PROC. art. 37.071(2)(g) (Vernon Supp.1996)). [67] 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). [68] Jurek v. Texas, 428 U.S. at 271, 96 S.Ct. at 2956. [69] See Jurek v. Texas, 428 U.S. at 272-73, 96 S.Ct. at 2956-57. In a more recent opinion, the Supreme Court has again emphasized the breadth of the Texas capital sentencing special issues: In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand. Johnson v. Texas, 509 U.S. 350, 363, 113 S. Ct. 2658, 2666, 125 L. Ed. 2d 290 (1993) (quoting Jurek v. Texas, 428 U.S. at 272-73, 96 S.Ct. at 2956-57). [70] 455 U.S. 104, 113-14, 102 S. Ct. 869, 876-77, 71 L. Ed. 2d 1 (1982). [71] 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). [72] See Penry v. Lynaugh, 492 U.S. at 309, 109 S.Ct. at 2941-42. Penry introduced evidence during his state court trial he suffered from organic brain disorder and mental retardation. Id. Penry also introduced expert testimony that these conditions made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law. Id. Finally, Penry introduced evidence that, when he was child, his mother frequently beat him over the head with a belt and he was routinely locked in his room without access to the toilet for long periods of time. Id. [73] See Penry v. Lynaugh, 492 U.S. at 322, 109 S.Ct. at 2948. [74] See Arave v. Creech, 507 U.S. 463, 470-71, 113 S. Ct. 1534, 1540-41, 123 L. Ed. 2d 188 (1993) (holding that to satisfy Eighth and Fourteenth Amendments, capital sentencing scheme must suitably direct and limit sentencer's discretion so as to minimize risk of wholly arbitrary and capricious action and limits on sentencer's discretion must constitute clear and objective standards that provide "specific and detailed guidance" and make rationally reviewable the process for imposing death penalty); Saffle v. Parks, 494 U.S. 484, 491-93, 110 S. Ct. 1257, 1261-63, 108 L. Ed. 2d 415 (1990) (holding that within certain parameters, State is free to channel or focus jury's consideration of defendant's mitigating evidence and emphasizing that "above all, capital sentencing must be reliable, accurate, and nonarbitrary"); Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990) (holding defendant must show more than that capital sentencing scheme might have resulted in jury being prevented from considering mitigating evidence; petitioner must show reasonable likelihood that such actually occurred). [75] See Graham v. Collins, 506 U.S. 461, 474, 113 S. Ct. 892, 901, 122 L. Ed. 2d 260 (1993). [76] See Johnson v. Texas, 509 U.S. 350, 368-69, 113 S. Ct. 2658, 2669-70, 125 L. Ed. 2d 290 (1993). The Supreme Court emphasized in Johnson that its previous opinions do not require that "a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant." Johnson v. Texas, 509 U.S. at 371-72, 113 S.Ct. at 2671. [77] See Johnson v. Texas, 509 U.S. at 371-72, 113 S.Ct. at 2671 (rejecting contention that Penry instruction is necessary in every case in which defendant offers mitigating evidence that has some arguable relevance beyond the special issues and emphasizing that its previous opinions do not require that jury be able to dispense mercy on basis of sympathetic response to defendant); Graham v. Collins, 506 U.S. at 476-77, 113 S.Ct. at 902 (rejecting contention that Penry instruction is necessary in every case in which defendant offers mitigating evidence that has some arguable relevance beyond the special issues). [78] A copy of Dr. Costello's report on his July 12, 1988 examination of the petitioner appears as Exhibit 6 attached to Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25. [79] See Exhibit 6 attached to Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25. [80] Id. [81] See Statement of Facts from the evidentiary hearing held November 21, 1994, in petitioner's state habeas corpus proceeding, Testimony of Steven C. Hilbig, at pp. 33-41. [82] Id. at pp. 34-35 and 40-41. [83] Id. at pp. 43-49. Contrary to the suggestions contained in petitioner's federal habeas corpus petitions, attorney Hilbig testified during the hearing in petitioner's state habeas corpus proceeding that the petitioner's medical records which he reviewed had been obtained by the defense investigator Charles Lowe, not from the Bexar County District Attorney. Id. at p. 43. [84] Id. at pp. 44-49. Petitioner's medical records from the Austin State School, which attorney Hilbig reviewed prior to trial and which were also in the possession of the prosecution, reveal petitioner had a long history of violent and aggressive behavior before he suffered his head injury in a horseback-riding accident in March, 1969. More specifically, those records reveal (1) petitioner burned his hands with lighter fluid shortly after his mother's wedding to petitioner's stepfather Namon Davis in 1965, (2) as early as 1966, petitioner began to skip school and get into enough trouble at school to be periodically suspended, (3) between ages 11 and 13 he grew destructive of teachers' property and fought with other children in school, (4) on an unspecified date he stole a bicycle and fell, was struck by a car, hospitalized for eleven days, and underwent unspecified surgery, (5) at age 12 he stole pencils from school and was warned by juvenile authorities, (6) in grade seven he was expelled from school, (7) in grade eight he went to school only four months, bought knives with his lunch money, threatened other students, and directed profanity at teachers, (8) at age 13, he kept stealing to buy knives and grew more oppositional, and (9) shortly before Easter, 1969, he left school, tried to ride horses, hit his head, subsequently had two operations, and ignored doctor's advice to abstain from football and other heavy sports. The foregoing is a summary of some of the information included in the September 25, 1970 admissions evaluation report on petitioner prepared upon his admission to the Austin State School and a March 13, 1971 social service survey included among petitioner's medical records from the Austin State School. [85] A copy of that report appears as Exhibit 5 attached to Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25. [86] In view of the repeated references to anxiety, depression, low self-esteem, and a pessimistic attitude included in petitioner's evaluation, it is indeed curious Dr. Geffner made virtually no mention in his report of the possible psychological implications of the fact that, at the time of testing, petitioner had spent the past six years of his life on death row. [87] See Exhibit 5 attached to Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25. [88] Westley v. Johnson, 83 F.3d at 723 (citing Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844). [89] See Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066; Duff-Smith v. Collins, 973 F.2d at 1182; Drew v. Collins, 964 F.2d at 422; Wilkerson v. Collins, 950 F.2d at 1064-65; Bates v. Blackburn, 805 F.2d at 578 n. 7; Martin v. McCotter, 796 F.2d at 816; Lockhart v. McCotter, 782 F.2d at 1279. [90] See Smith v. Collins, 977 F.2d at 960 ("The defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources."). [91] See Statement of Facts from petitioner's state court trial, Volume 17 of 27, Testimony of Judy K. Hilton, at pp. 5230-37; Volume 18 of 27, Testimony of Rita Perez, at pp. 5640-52; Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5685-5718; Volume 20 of 27, Testimony of John Calhoun; Volume 20 of 27, Testimony of Richard Stengel, at pp. 6311-51; Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6475-99 and 6505-24; Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6636-52; and Volume 22 of 27, Testimony of Celia Pena, at p. 6853. At least some of the prosecution's eyewitnesses testified Vernon Hanan was lying flat on his back when petitioner fired the fatal shot. Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5718 and 5791; and Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6644-47 and 6673-77. A defense witness testified he heard a shot and turned to see Hanan falling with Hanan's buttocks almost in contact with the floor and Hanan's legs on the floor. Id., Volume 22 of 27, Testimony of Rudolph Kasper, at pp. 6734 and 6738-41. Another eyewitness called by the defense testified she saw Hanan fall to the ground after the shot was fired. Id., Volume 22 of 27, Testimony of Celia Pena, at pp. 6836-37, 6844, and 6848. The medical examiner testified the decedent's wounds did not display evidence of close-range firing and in his opinion, the fatal shot was probably fired while Hanan was falling toward a sitting position but still one to two feet off the floor. Id., Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6490-91, 6514-22, 6546-66, 6573-74, and 6598-6600. The firearms expert who examined petitioner's gun and the other physical evidence testified petitioner's gun was fired at least two feet away from Hanan's forearm. Id., Volume 20 of 27, Testimony of Richard Stengel, at pp. 6348-51. The confusion in the eyewitness testimony at the guilt-innocence phase of trial over the exact position of Hanan's body when petitioner fired the fatal shot might be explained by the petitioner's testimony at the punishment phase of trial that, after he shot Hanan, he looked down at Hanan for four or five seconds. Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7562 and 7565-66. [92] Westley v. Johnson, 83 F.3d at 723 (citing Lockhart v. Fretwell, 506 U.S. at 372-73, 113 S.Ct. at 844). [93] See Statement of Facts from petitioner's state court trial, Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6645-50; Volume 22 of 27, Testimony of William McGinty, at pp. 6780-81; Volume 22 of 27, Testimony of Alvaro Gonzales, at pp. 6805-09 and 6820; and Volume 22 of 27, Testimony of Celia Pena, at pp. 6850. [94] Id., Volume 22 of 27, Testimony of Rudolph Kasper, at pp. 6735-36. [95] Id., Volume 19 of 27, Testimony of Melody Tuttle, at pp. 5915-17. [96] Id., Volume 19 of 27, Testimony of Guadalupe Lozano, at pp. 5822-44; Testimony of Mark Molden, at pp. 5989-99. [97] Id. [98] Id. [99] Id. [100] Id., Volume 17 of 27, Testimony of John Carroll, at pp. 5377-84; Volume 19 of 27, Testimony of Delbert Horne, at pp. 5884-5898; Volume 19 of 27, Testimony of Edward Adame, at pp. 6017-36; Volume 19 of 27, Testimony of Lionel F. Solis, at pp. 6040-55; Volume 20 of 27, Testimony of T.J. Jagge, at pp. 6078-6120; Volume 20 of 27, Testimony of Garland Gaston, at pp. 6235-96. [101] Id., Volume 20 of 27, Testimony of Garland Gaston, at pp. 6251-52. [102] Id., at pp. 6265-94. [103] Id., Volume 17 of 27, Testimony of Trinidad Noyola, at pp. 5371-74; Volume 20 of 27, Testimony of James Holguin, at pp. 6141-52; Volume 20 of 27, Testimony of Garland Gaston, at pp. 6272 and 6289. [104] Id., Volume 17 of 27, Testimony of Trinidad Noyola, at pp. 5341-42 and 5366-69; Volume 20 of 27, Testimony of Richard Stengel, at pp. 6328-35. [105] Id., Volume 17 of 27, Testimony of Trinidad Noyola, at pp. 5341-42 and 5366-69; Volume 20 of 27, Testimony of Richard Stengel, at pp. 6328-35; Volume 21 of 27, Testimony of Vincent DiMaio, at p. 6499. [106] The medical examiner testified the decedent's wounds did not display evidence of close-range firing and in his opinion, the fatal shot was probably fired while Hanan was falling toward a sitting position but still one to two feet off the floor. Id., Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6490-91, 6514-22, 6546-66, 6573-74, and 6598-6600. The firearms expert, who examined petitioner's gun and the other physical evidence, testified the petitioner's gun was fired at least two feet away from Hanan's forearm. Id., Volume 20 of 27, Testimony of Richard Stengel, at pp. 6348-51. [107] Westley v. Johnson, 83 F.3d at 723 (citing Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844). [108] As will be discussed in greater detail hereinafter, petitioner's trial counsel requested several jury instructions at the punishment phase of trial relating to the jury's consideration of mitigating evidence, all of which were rejected by the trial court. Given the state of the law in Texas in May, 1989, the eventual denial of petitioner's requests for those punishment phase jury instructions were readily foreseeable to petitioner's trial counsel, even prior to the commencement of the punishment phase of trial. Thus, at the commencement of the punishment phase of trial, attorney Hilbig faced the very real prospect the only instructions petitioner's jury would have before it when it retired at the end of the punishment phase of trial would be those defining the terms used in the three special punishment issues outlined above. [109] See Exhibit 6 attached to Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25. [110] Smith v. Collins, 977 F.2d at 960. [111] In fact, during the punishment phase of petitioner's trial, the prosecution expressly threatened to introduce additional evidence showing other acts of misconduct by the petitioner if petitioner attempted to present mitigating evidence in the form of petitioner's medical or mental health records. See Statement of Facts from petitioner's state court trial, Volume 25 of 27, at p. 7522. [112] See Statement of Facts from evidentiary hearing held November 21, 1994, in petitioner's state habeas corpus proceeding, Testimony of Steven Hilbig, at pp. 45-49. [113] See Statement of Facts from petitioner's state court proceeding, Volume 25 of 27, Testimony of Lloyd Joe McGrew, at pp. 7344-51. [114] See Statement of Facts from petitioner's state court trial, Volume 24 of 27, Testimony of Valentine Lopez, at pp. 7189-95; Testimony of Everett Mann, at pp. 7195-7207; Testimony of Cruz Morua, at pp. 7208-18. [115] See Statement of Facts from petitioner's state court trial, Volume 24 of 27, Testimony of Larry Bodiford, at pp. 7106-19. [116] Id., Volume 24 of 27, Testimony of Linda Eileen Davidson, at pp. 7158-69. [117] Id., Volume 24 of 27, Testimony of Lucille McGee, at pp. 7178-86. [118] Id., Volume 25 of 27, Testimony of Odell McGroan, at pp. 7442-52 and 7510-11; Testimony of Reed McDonald, at pp. 7454-62; Testimony of L.J. Dulin, at pp. 7464-71. [119] Id., Volume 24 of 27, Testimony of Helen Marie Horsley, at pp. 7254-78; Testimony of David Smith, at pp. 7285-88; Testimony of Lisa Boley, at pp. 7290-7303. [120] See Statement of Facts from petitioner's state court trial, Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5707-08; Volume 24 of 27, Testimony of Helen Marie Horsley, at p. 7276; Volume 24 of 27, Testimony of Lisa Boley, at p. 7296. [121] Id., Testimony of Dwight Dwayne Adanandus, at pp. 7529-30. [122] Id., Volume 24 of 27, Testimony of Marvin Morgan, at pp. 7221-35. [123] See Statement of Facts from petitioner's state trial court proceedings, Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7526-7610. [124] See Exhibit 6 attached to Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25. [125] While this Court acknowledges that such appeals to jury sympathy by a capital murder defendant's family members have proven successful in at least some recent trials held in Bexar County, the decision to make such an appeal falls within the broad range of tactical decisions by defense counsel to which this Court must give deference. [126] Westley v. Johnson, 83 F.3d at 723 (citing Lockhart v. Fretwell, 506 U.S. at 372-73, 113 S.Ct. at 844). [127] See Harris v. Johnson, 81 F.3d 535, 539 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 1863, 134 L. Ed. 2d 961 (1996) (holding no Penry instruction necessary where no evidence showing defendant's borderline intelligence bore nexus to his criminal actions); Allridge v. Scott, 41 F.3d 213, 223 (5th Cir.1994), cert. denied, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995) (holding no Penry instruction necessary in absence of evidence showing defendant's criminal conduct was attributable to mental illness and abuse defendant suffered during a previous incarceration); Lackey v. Scott, 28 F.3d 486, 489 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995) (holding evidence of defendant's low intelligence and history of childhood abuse not relevant for Penry purposes where no evidence showing defendant's criminal act attributable to same); Madden v. Collins, 18 F.3d 304, 307-08 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1114, 130 L. Ed. 2d 1078 (1995) (holding evidence defendant suffered from anti-social personality, dyslexia, and troubled childhood not relevant for Penry purposes absent showing defendant's criminal conduct attributable to same); Barnard v. Collins, 958 F.2d 634, 638-39 (5th Cir.1992) (holding that in order to warrant Penry instruction, evidence defendant had troubled childhood must be accompanied by evidence defendant's childhood experiences had psychological effect on defendant, i.e., defendant's criminal conduct was attributable to his disadvantaged background); Graham v. Collins, 950 F.2d 1009, 1033 (5th Cir.1992), (holding that "mitigating" evidence must be able to raise inference "that the crime is attributable to the disability"); see also Barnard v. Collins, 958 F.2d at 639 (holding evidence from lay witnesses that defendant had drinking problem and was intoxicated at time of his offense insufficient to permit jury to conclude defendant therein suffered from alcoholism or drug addiction or some other "uniquely severe permanent handicap" through no fault of his own). [128] Harris v. Johnson, 81 F.3d 535, 539 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 1863, 134 L. Ed. 2d 961 (1996); Davis v. Scott, 51 F.3d 457, 460 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 525, 133 L. Ed. 2d 432 (1995). [129] See Statement of Facts from petitioner's state court trial, Volume 24 of 27, Testimony of Marvin Morgan, at pp. 7223-35; and Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7553-55. [130] Id., Volume 22 of 27, Testimony of Celia Pena, at p. 6853. [131] Id., Volume 20 of 27, Testimony of James Holguin, at pp. 6144-48; and Volume 20 of 27, Testimony of Richard Stengel, at pp. 6311-20; and Volume 21 of 27, Testimony of Richard Stengel, at pp. 6433-45. [132] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7529-30. [133] Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5705, 5777-79, and 5799. [134] Id., Volume 18 of 27, Testimony of Rita Perez, at pp. 5649-50. The plaintiff can plainly be seen reaching into the waistband of his pants to remove his pistol in State's Exhibits 99-39 through 99-43, photographs of the petitioner's robbery introduced into evidence at the guilt-innocence phase of petitioner's trial. [135] Id., Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6640-42. [136] Id., Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6643 and 6671. [137] Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5717-18; and Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6642-45. [138] Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5717-18; Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6642-45; Volume 20 of 27, Testimony of Richard Stengel, at pp. 6318-23, 6331-36, and 6345-51; and Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6483-99, 6504-06, 6514-24, 6546-66, 6573-74, and 6598-99. Eyewitnesses Patricia Martinez and Nehemiah Cantu both testified petitioner pointed his gun at Hanan. Id., Volume 18 of 27, Testimony of Patricia Martinez, at p. 5718; and Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6645. Petitioner admitted during his testimony at the punishment phase of trial he had pulled the trigger of his gun. Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at p. 7572. State's Exhibit 99-95 and a blow-up of same introduced as State's Exhibit 160 were identified by a prosecution expert witness as showing the instant the petitioner fired the fatal shot. See Id., Volume 20 of 27, Testimony of Richard Stengel, at p. 6351; and Volume 21 of 27, Testimony of Richard Stengel, at pp. 6392 and 6445-53. [139] Id., Volume 18 of 27, Testimony of Patricia Martinez, at p. 5718; Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6645. [140] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at p. 7572. [141] Id., Volume 20 of 27, Testimony of Richard Stengel, at pp. 6318-23. [142] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7526-27, 7556, 7559, 7571, 7573, and 7605. Petitioner also expressed remorse for his actions during his testimony at the punishment phase of trial. Id., at p. 7550. [143] Id., at p. 7572. [144] Id., at p. 7570. [145] Id., at pp. 7564, 7568, and 7581-82. Petitioner claimed during his testimony he returned to the lobby of the bank to retrieve the bag primarily because it contained documents which could identify him. Id. [146] Id., at p. 7571. [147] Id., at p. 7550. [148] As explained above, the admissions evaluation report prepared September 25, 1970, upon petitioner's admission to the Austin State School details a long history of behavioral problems exhibited by petitioner prior to the date petitioner suffered his initial head injury in March, 1969. This report was included among the medical records introduced at the evidentiary hearing held November 21, 1994, in petitioner's state habeas corpus proceeding and is also included in petitioner's medical records submitted to this Court on July 31, 1996, by respondent. Petitioner's trial counsel could reasonably have believed any effort to present "mitigating" evidence relating to petitioner's head injury at the punishment phase of petitioner's trial would have been so completely refuted and undermined by the contents of petitioner's records from the Austin State School the defense would have lost credibility with the jury in its efforts to obtain one negative answer to the special sentencing issues. This belief was a rational and realistic one given the fact petitioner's records from the Austin State School indicate petitioner was exhibiting behavioral problems of sufficient severity to get him periodically suspended from school as early as 1966, three years before petitioner suffered his horseback-riding accident and initial head injury. [149] See Lockhart v. Fretwell, 506 U.S. at 368-73, 113 S.Ct. at 841-44; Vuong v. Scott, 62 F.3d at 685; Armstead v. Scott, 37 F.3d at 207. [150] Lockhart v. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844. [151] In a capital sentencing proceeding, the prejudice analysis focuses on whether there is a reasonable probability that, absent counsel's errors, the sentencer would have concluded that the balance of aggravating and mitigating factors did not warrant death. See Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. at 2069; Belyeu v. Scott, 67 F.3d at 538. [152] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at p. 12. [153] Id. [154] Id., at p. 13, citing Statement of Facts from Petitioner's State Court Trial, Volume 26 of 27, at pp. 7666 and 7670-72. [155] 65 F.3d 1258 (5th Cir.1995) (en banc), cert. denied, ___ U.S. ____, 116 S. Ct. 1547, 134 L. Ed. 2d 650 (1996). [156] See Beets v. Scott, 65 F.3d at 1268 (holding not every potential conflict, even in multiple representation cases, is "actual" conflict for Sixth Amendment purposes). [157] 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). [158] See Beets v. Scott, 65 F.3d at 1268-71. [159] See Beets v. Scott, 65 F.3d at 1271 (quoting Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986)). [160] See United States v. Placente, 81 F.3d 555, 558 (5th Cir.1996); Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir.1996); Bullock v. Whitley, 53 F.3d 697, 702 (5th Cir.1995) (quoting Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718). [161] See Beets v. Scott, 65 F.3d at 1270-71. The presumption of prejudice which petitioner seeks to invoke through his assertion of a conflict of interest applies only when an "actual" conflict exists. An "actual conflict" exists when an attorney represents two clients whose interests in the outcome of a matter are different. Perillo v. Johnson, 79 F.3d at 447. To establish an actual conflict, "[t]he petitioner must specifically identify instances in the record that reflect that his counsel made a choice between possible alternative courses of action." Id. However, despite the length and breadth of petitioner's pleadings in this cause, petitioner has not identified with the requisite specificity any instances in which his trial counsel was forced to make such a choice during petitioner's trial. Thus, petitioner has failed to establish the existence of an "actual conflict." [162] See Perillo v. Johnson, 79 F.3d at 447 (holding "actual" conflict of interest exists when attorney represents two clients whose interests in outcome of matter are different); Zuck v. State of Alabama, 588 F.2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833, 100 S. Ct. 63, 62 L. Ed. 2d 42 (1979) (holding conflict of interest must be actual rather than speculative before constitutional guarantee of effective assistance of counsel is implicated and actual conflict of interest occurs only when defense counsel places himself in situation inherently conducive to divided loyalties, i.e., if attorney owes duties to party whose interests are adverse to those of defendant). [163] See Anderson v. Collins, 18 F.3d at 1221; United States v. Pineda, 988 F.2d at 23; Koch v. Puckett, 907 F.2d at 530; Russell v. Lynaugh, 892 F.2d at 1213; United States v. Woods, 870 F.2d at 288 n. 5; Ross v. Estelle, 694 F.2d at 1011-12 & n. 2. [164] See Bullock v. Whitley, 53 F.3d at 702 (rejecting as frivolous petitioner's argument that conflict of interest existed by virtue of fact his defense counsel also served as part-time mayor of the small town in which petitioner's murder trial was held because petitioner had not alleged any facts showing his counsel's representation of petitioner hampered by performance of said counsel's duties as mayor). [165] See Statement of Facts from Petitioner's State Court Trial Volume 26 of 27, at pp. 7665-74. [166] See Beets v. Scott, 65 F.3d at 1268-73 (holding that despite ethical issues raised by defense counsel's taking of a contract for media rights in full satisfaction of his fee, petitioner required to show contract actually hindered her attorney's performance or prejudiced petitioner by rendering result of trial fundamentally unreliable). [167] Thus, petitioner's situation is distinguishable from the one in Zuck v. State of Alabama, 588 F.2d at 439. In Zuck, the law firm defending Zuck at trial also represented the prosecuting attorney who tried Zuck. The Fifth Circuit found the prosecutor and Zuck's defense counsel were adversaries for purposes of Zuck's criminal trial and, therefore, an actual conflict of interest existed warranting a new trial for Zuck. In contrast, petitioner has alleged no facts showing his interests were ever adverse to those of his trial counsel or that petitioner's trial counsel was ever subject to the type of conflict involved in Zuck. Instead, petitioner's conflict of interest claim herein is more analogous to the claim found to be frivolous in Bullock v. Whitley, 53 F.3d at 702 (rejecting as frivolous complaint that defense counsel had conflict of interest arising from his service as part-time mayor of town in which case tried). [168] 820 S.W.2d 154 (Tex.Crim.App.1991). [169] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 18-21. [170] Thompson v. Lynaugh, 821 F.2d 1054, 1061 (5th Cir.), cert. denied, 483 U.S. 1035, 108 S. Ct. 5, 97 L. Ed. 2d 794 (1987). [171] See Lackey v. Scott, 28 F.3d 486, 491 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995). [172] Id. (citing Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994)); Thompson v. Lynaugh, 821 F.2d at 1060-61. [173] Retroactive application of the new rule announced in Geesa, a rule which had been rejected by both Texas state courts and the federal courts located in Texas for many years prior to that decision, might very well have necessitated the re-trial of thousands of criminal cases by the already over-burdened Texas court system. Therefore, it was not irrational for the Texas Court of Criminal Appeals to have refused to give that new rule retroactive effect, especially given its holding that a definition of reasonable doubt was necessary despite the absence of a request therefor. [174] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 21-27. [175] See Hopper v. Evans, 456 U.S. 605, 611-12, 102 S. Ct. 2049, 2052-53, 72 L. Ed. 2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 2389-90, 65 L. Ed. 2d 392 (1980). [176] See East v. Scott, 55 F.3d 996, 1005 (5th Cir.1995); Mann v. Scott, 41 F.3d 968, 976 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1977, 131 L. Ed. 2d 865 (1995); Allridge v. Scott, 41 F.3d 213, 218-19 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995); Kinnamon v. Scott, 33 F.3d 462, 464-65 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 660, 130 L. Ed. 2d 595 (1994); Andrews v. Collins, 21 F.3d 612, 629 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 908, 130 L. Ed. 2d 790 (1995); Cantu v. Collins, 967 F.2d 1006, 1013 (5th Cir.1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3045, 125 L. Ed. 2d 730 (1993); Lincecum v. Collins, 958 F.2d 1271, 1275 (5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992); Montoya v. Collins, 955 F.2d 279, 285-86 (5th Cir.), cert. denied, 506 U.S. 1036, 113 S. Ct. 820, 121 L. Ed. 2d 692 (1992); Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.), cert. denied 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed. 2d 932 (1988). [177] Id. [178] See East v. Scott, 55 F.3d at 1005-06; Mann v. Scott, 41 F.3d at 976-78; Cantu v. Collins, 967 F.2d at 1013-14 (examining state law to determine whether a capital murder defendant was entitled to instructions on the lesser included offense of voluntary manslaughter); Lincecum v. Collins, 958 F.2d at 1275-77 (examining state law to determine whether capital murder defendant entitled to jury instructions on lesser included offenses of murder and voluntary manslaughter). [179] See Adanandus v. State, 866 S.W.2d at 230-31. [180] See Adanandus v. State, 866 S.W.2d at 230; Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.App.), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993); Creel v. State, 754 S.W.2d 205, 211 (Tex.Crim.App.1988). [181] See Adanandus v. State, 866 S.W.2d at 230. [182] This is a round-about way of explaining the constitutional issue in this case, i.e., whether petitioner's jury could have rationally acquitted petitioner of the capital offense while convicting petitioner of the non-capital offense. See East v. Scott, 55 F.3d at 1005; Mann v. Scott, 41 F.3d at 976. [183] Rousseau v. State, 855 S.W.2d at 674. [184] See Garcia v. State, 887 S.W.2d 862, 869 (Tex.Crim.App.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995); Adanandus v. State, 866 S.W.2d at 215 (quoting Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim. App.1986)); Thompson v. State, 691 S.W.2d 627, 630 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S. Ct. 184, 88 L. Ed. 2d 153 (1985). [185] See Statement of Facts from petitioner's state court trial, Volume 20 of 27, Testimony of James Holguin, at pp. 6144-48; and Volume 20 of 27, Testimony of Richard Stengel, at pp. 6311-20; and Volume 21 of 27, Testimony of Richard Stengel, at pp. 6433-45. [186] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7529-30. [187] Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5705, 5777-79, and 5799. [188] Id., Volume 18 of 27, Testimony of Rita Perez, at pp. 5649-50. The plaintiff can plainly be seen reaching into the waistband of his pants to remove his pistol in State's Exhibits 99-39 through 99-43, photographs of the petitioner's robbery introduced into evidence at the guilt-innocence phase of petitioner's trial. [189] Id., Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6640-42. [190] Id., Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6643 and 6671. [191] Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5717-18; and Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6642-45. [192] Id., Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5717-18; Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6642-45; Volume 20 of 27, Testimony of Richard Stengel, at pp. 6318-23, 6331-36, and 6345-51; Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6483-99, 6504-06, 6514-24, 6546-66, 6573-74, and 6598-99. Eyewitnesses Patricia Martinez and Nehemiah Cantu both testified petitioner pointed his gun at Hanan. Id., Volume 18 of 27, Testimony of Patricia Martinez, at p. 5718; Volume 21 of 27, Testimony of Nehemiah Cantu, at pp. 6645. Petitioner admitted during his testimony at the punishment phase of trial he had pulled the trigger of his gun. Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at p. 7572. State's Exhibit 99-95 and a blow-up of same introduced as State's Exhibit 160 were identified by a prosecution expert witness as showing the instant the petitioner fired the fatal shot. See Id., Volume 20 of 27, Testimony of Richard Stengel, at p. 6351; Volume 21 of 27, Testimony of Richard Stengel, at pp. 6392 and 6445-53. [193] See Adanandus v. State, 866 S.W.2d at 231. [194] See Adanandus v. State, 866 S.W.2d at 215; Godsey v. State, 719 S.W.2d at 580-81. [195] See Adanandus v. State, 866 S.W.2d at 231-32. [196] See Adanandus v. State, 866 S.W.2d at 231; Vuong v. State, 830 S.W.2d 929, 938 (Tex.Crim. App.), cert. denied, 506 U.S. 997, 113 S. Ct. 595, 121 L. Ed. 2d 533 (1992); Marquez v. State, 725 S.W.2d 217, 223-24 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987); former Section 19.04(a), Texas Penal Code Annotated (Vernon 1989). The Texas Penal Code provision defining the offense of "voluntary manslaughter," i.e., former Section 19.04, was repealed effective September 1, 1994, and former Section 19.05 was redesignated as new Section 19.04. See Act approved June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 TEX.GEN.LAWS. The former offense of "voluntary manslaughter" is now treated by Texas law as an issue which may be raised by the defendant at the punishment phase of a murder trial in mitigation of punishment. See TEX.PENAL CODE ANN. § 19.02(d) (Vernon 1994). [197] See Adanandus v. State, 866 S.W.2d at 231; Vuong v. State, 830 S.W.2d at 939; Harris v. State, 784 S.W.2d 5, 10 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1837, 108 L. Ed. 2d 966 (1990) (victim's action in shooting defendant could not rise to level of adequate cause where victim's action in shooting defendant was attempt to prevent defendant from kidnapping a third party); Lincecum v. State, 736 S.W.2d 673, 679 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 936 (1988) (holding victim's action in stabbing her assailant could not rise to level of adequate cause where stabbing was not only an act of self-defense but also attempt to protect victim's son). [198] See Adanandus v. State, 866 S.W.2d at 232. [199] See Adanandus v. State, 866 S.W.2d at 232; former Section 19.05(a), Texas Penal Code Annotated (Vernon 1989). The Texas Penal Code provision defining the former offense of "involuntary manslaughter," i.e., former Section 19.05, was redesignated as new Section 19.04 and retitled "Manslaughter" effective September 1, 1994. See Act approved June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 TEX.GEN.LAWS. [200] See Adanandus v. State, 866 S.W.2d at 231; Statement of Facts from petitioner's state court trial, Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6483-99, 6504-06, 6514-24, 6546-66, 6573-74, and 6598-99. [201] See State's Exhibit 160. State's Exhibit 99-95 and a blow-up of same introduced as State's Exhibit 160 were identified by a prosecution expert witness as showing the instant the petitioner fired the fatal shot. See Id., Volume 20 of 27, Testimony of Richard Stengel, at p. 6351; and Volume 21 of 27, Testimony of Richard Stengel, at pp. 6392 and 6445-53. This is one instance in which a picture is truly worth a thousand words. [202] See Statement of Facts from petitioner's state court trial, Volume 21 of 27, Testimony of Vincent DiMaio, at pp. 6483-99, 6504-06, 6514-24, 6546-66, 6573-74, and 6598-99. [203] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 27-30. [204] See Statement of Facts from petitioner's state court trial, Volume IB, at p. 446. [205] In support of his request for the additional definition, the focus of this ground for relief, petitioner relies primarily upon a dissenting opinion issued by one judge of the Texas Court of Criminal Appeals more than a decade ago. See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no., 25, at p. 29. [206] See Russell v. Collins, 998 F.2d 1287, 1293 (5th Cir.1993), cert. denied, 510 U.S. 1185, 114 S. Ct. 1236, 127 L. Ed. 2d 580 (1994) (holding a Texas trial court's failure to define term "deliberately" as used in the first Texas capital sentencing special issue did not prevent jury from giving effect to any of defendant's mitigating evidence); James v. Collins, 987 F.2d 1116, 1120 (5th Cir.), cert. denied, 509 U.S. 947, 114 S. Ct. 30, 125 L. Ed. 2d 780 (1993) (holding terms "deliberately," "probability," "criminal acts of violence," and "continuing threat to society," have a common-sense core of meaning that criminal juries should be capable of understanding); Barnard v. Collins, 958 F.2d 634, 641 (5th Cir.1992), cert. denied, 506 U.S. 1057, 113 S. Ct. 990, 122 L. Ed. 2d 142 (1993) (holding terms "deliberateness," "probability," and "society" not so vague as to deprive jury of meaningful guidance in its deliberations); Ellis v. Lynaugh, 873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 384 (1989) (holding term "deliberately" sufficiently clear to permit jury to decide the first Texas capital sentencing special issue). [207] 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). [208] See Teague v. Lane, 489 U.S. at 310, 109 S.Ct. at 1075; Johnson v. Scott, 68 F.3d 106, 111 n. 10 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 1358, 134 L. Ed. 2d 525 (1996); Lackey v. Scott, 52 F.3d 98, 100 (5th Cir.), stay granted and cert. dism'd, ___ U.S. ____, 115 S. Ct. 1818, 131 L. Ed. 2d 741 (1995); Davis v. Scott, 51 F.3d 457, 466-67 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 525, 133 L. Ed. 2d 432 (1995); Mann v. Scott, 41 F.3d 968, 976 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1977, 131 L. Ed. 2d 865 (1995); Crank v. Collins, 19 F.3d 172, 175 (5th Cir.), cert. denied, ___ U.S. ____, 114 S. Ct. 2699, 129 L. Ed. 2d 825 (1994); Motley v. Collins, 18 F.3d 1223, 1230 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 418, 130 L. Ed. 2d 333 (1994); Webb v. Collins, 2 F.3d 93, 95 (5th Cir.1993); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1416, 128 L. Ed. 2d 87 (1994); Cordova v. Collins, 953 F.2d 167, 173 (5th Cir.), cert. denied, 502 U.S. 1067, 112 S. Ct. 959, 117 L. Ed. 2d 125 (1992). [209] See Davis v. Scott, 51 F.3d at 459-60; Mann v. Scott, 41 F.3d at 976; Crank v. Collins, 19 F.3d at 175; Motley v. Collins, 18 F.3d at 1230. [210] Id. [211] See Stringer v. Black, 503 U.S. 222, 227-29, 112 S. Ct. 1130, 1134-36, 117 L. Ed. 2d 367 (1992); Butler v. McKellar, 494 U.S. 407, 414-15, 110 S. Ct. 1212, 1217-18, 108 L. Ed. 2d 347 (1990); Lackey v. Scott, 52 F.3d at 100. [212] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 30-32. A copy of the transcript from the April 27, 1981 hearing in state district court in Nolan County appears among the state court papers submitted by respondent relating to petitioner's state habeas corpus proceeding at pp. 181-211. [213] Brady v. State of Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963); Kopycinski v. Scott 64 F.3d 223, 225 (5th Cir. 1995); Allridge v. Scott, 41 F.3d 213, 217 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995); Williams v. Scott, 35 F.3d 159, 163 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 959, 130 L. Ed. 2d 901 (1995). [214] See United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985); Kopycinski v. Scott, 64 F.3d at 225; East v. Scott, 55 F.3d at 1002. [215] See Spence v. Johnson, 80 F.3d 989, 1005 n. 14 (5th Cir.1996). [216] See Spence v. Johnson, 80 F.3d 989, 994 (5th Cir.1996); East v. Scott, 55 F.3d at 1002; Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir.1995); Wilson v. Whitley, 28 F.3d 433, 435 (5th Cir. 1994), cert. denied, ___ U.S. ____, 115 S. Ct. 754, 130 L. Ed. 2d 653 (1995); Blackmon v. Scott, 22 F.3d 560, 564 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 671, 130 L. Ed. 2d 604 (1994); Drew v. Collins, 964 F.2d 411, 419 (5th Cir. 1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3044, 125 L. Ed. 2d 730 (1993). [217] See Wood v. Bartholomew, ___ U.S. ____, ____, 116 S. Ct. 7, 10, 133 L. Ed. 2d 1 (1995); United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; Kopycinski v. Scott, 64 F.3d at 225; East v. Scott, 55 F.3d at 1002; Allridge v. Scott, 41 F.3d at 217; Williams v. Scott, 35 F.3d at 159; Blackmon v. Scott, 22 F.3d at 564. In recent opinions, both the Supreme Court and Fifth Circuit have analogized the "materiality" standard under Brady to the "prejudice" standard under Strickland. See Kyles v. Whitley, ___ U.S. ____, ____, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995); Johnson v. Scott, 68 F.3d 106, 109 n. 5 (5th Cir.1995). [218] Kyles v. Whitley, ___ U.S. at ____, 115 S.Ct. at 1566; Spence v. Johnson, 80 F.3d at 994; Kopycinski v. Scott, 64 F.3d at 226. [219] See Kyles v. Whitley, ___ U.S. at ____ _ ____, 115 S.Ct. at 1566-67; Kopycinski v. Scott, 64 F.3d at 226. [220] See United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988) (holding government is not required to furnish defendant with information he already has or can obtain with reasonable diligence). [221] See Statement of Facts from petitioner's state habeas corpus proceeding, at p. 240. Because the April 27, 1981 hearing in state district court in Nolan County was transcribed by a court reporter, it was fully available to petitioner and his counsel pursuant to applicable state law at least as early as September 1, 1985. See TEX. GOV'T CODE ANN. § 52.047(a) (Vernon 1988). That statutory provision was amended in 1991 with regard to the fees that could be charged for official court transcripts but not in any manner relevant to this cause. The current version of that statute appears at TEX.GOV'T CODE ANN. § 52.047(a) (Vernon Supp. 1996). [222] See Williams v. Scott, 35 F.3d 159, 163 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 959, 130 L. Ed. 2d 901 (1995); May v. Collins, 904 F.2d 228, 231 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S. Ct. 770, 112 L. Ed. 2d 789 (1991); United States v. Newman, 849 F.2d at 161. [223] See Transcript from the hearing held on April 27, 1981, in cause no. 5173 in the state district court for Nolan County, Texas, included among the state court papers relating to petitioner's state habeas corpus proceeding now before this Court, at p. 183. [224] Id., Testimony of Frances Ruth Davis, at pp. 185-205. It should be noted Mrs. Davis all but recanted the initial portion of her testimony regarding her son's alleged incompetence after a brief recess during which the benefits of the plea bargain offered to her son by the prosecution in that cause were apparently discussed with her. Id., at pp. 204-05. Mrs. Davis also testified at the April 27, 1981 hearing that she was unaware her son had previously been convicted of four felonies or that petitioner had been sentenced to serve a term in the penitentiary as a result of those prior convictions. Id., at p. 197. [225] Id., Testimony of Dwight Dwayne Davis, at pp. 207-210. [226] Petitioner's pen packet, introduced into evidence at the punishment phase of petitioner's capital murder trial established (1) on April 27, 1981, petitioner entered a guilty plea in the 32nd Judicial District Court, Nolan County, Texas, to a charge of aggravated robbery committed with a firearm arising out of an offense committed on August 16, 1980, (2) petitioner was sentenced that same date to serve a fifteen and one-half year term of imprisonment, and (3) the state trial court found petitioner was mentally competent to enter that plea and he did so voluntarily. See State's Exhibit 192 at pp. 28-30, included in Statement of Facts from petitioner's state court trial, Volume 27 of 27. [227] See United States v. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. [228] The determination of whether evidence is "favorable" for Brady purposes must necessarily include a review of that evidence in light of the other evidence then available. Mrs. Davis' rather cryptic testimony at the April 27, 1981 hearing that petitioner had once been declared "insane" is refuted by petitioner's records from the Austin State School, records which had been examined by petitioner's trial counsel. Thus, petitioner's trial counsel could not have introduced testimony from Mrs. Davis regarding petitioner's alleged insanity in 1981 without either suborning perjury or opening the door to the admission of testimony along the lines of that contained in Dr. Costello's report establishing petitioner was not mentally incompetent. At best, the April 27, 1981 hearing transcript revealed an expression of doubt as to petitioner's competence to enter a guilty plea by petitioner's attorney, ambiguous testimony from petitioner's mother as to petitioner's competence, but also petitioner's own clear and straight-forward testimony admitting to an understanding of the nature of the charge against him and the accuracy of the factual basis therefor. Thus, at best, the April 27, 1981 hearing transcript, when viewed in its entirety, constituted "neutral" evidence. Such evidence cannot form the basis for a valid Brady claim. See United States v. Dillman, 15 F.3d 384, 390 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 183, 130 L. Ed. 2d 118 (1994) (holding that although exculpatory and impeaching evidence falls within rule in Brady, neutral evidence does not). When viewed in its entirety, the April 27, 1981 hearing transcript contained neither exculpatory nor impeaching evidence in connection with petitioner's capital murder trial. [229] See Statement of Facts from petitioner's state court trial, Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7560-82. [230] See Wood v. Bartholomew, ___ U.S. ___, ___, 116 S. Ct. 7, 10, 133 L. Ed. 2d 1 (1995) (holding evidence "material" under Brady only where there exists reasonable probability that, had the evidence been disclosed, the result of trial would have been different); United States v. Bagley, 473 U.S. at 682; Kopycinski v. Scott, 64 F.3d at 225; East v. Scott, 55 F.3d at 1002; Allridge v. Scott, 41 F.3d at 217; Williams v. Scott, 35 F.3d at 159; Blackmon v. Scott, 22 F.3d at 564. [231] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 32-35. [232] See Rogers v. Scott, 70 F.3d 340, 342 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1881, 135 L. Ed. 2d 176 (1996); Nichols v. Scott, 69 F.3d 1255, 1278 n. 44 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 2559, 135 L. Ed. 2d 1076 (1996); Amos v. Scott, 61 F.3d 333, 338-45 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995). [233] See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S. Ct. 2590, 2593, 115 L. Ed. 2d 706 (1991); Murray v. Carrier, 477 U.S. 478, 485-92, 106 S. Ct. 2639, 2643-48, 91 L. Ed. 2d 397 (1986); Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir.), cert. denied, 508 U.S. 933, 113 S. Ct. 2405, 124 L. Ed. 2d 300 (1993). [234] See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989) (holding adequate and independent finding of procedural bar will bar federal habeas review of federal claim unless habeas petition can show "cause" for default and "prejudice attributable thereto" or demonstrate that failure to consider federal claim will result in "fundamental miscarriage of justice"); Moore v. Roberts, 83 F.3d 699, 702 (5th Cir.1996); Reed v. Scott, 70 F.3d 844, 846 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1452, 134 L. Ed. 2d 570 (1996); Amos v. Scott, 61 F.3d at 338-39; see also Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557, 115 L. Ed. 2d 640 (1991) (holding federal court may address federal claim on which there has been finding of state procedural default if last state court opinion disposing of claim appears to rest primarily upon federal law, or to be interwoven with federal law, or when adequacy and independence of any possible state law ground is not clear from face of opinion); Ylst v. Nunnemaker, 501 U.S. at 803-04, 111 S.Ct. at 2594-95. [235] See Harris v. Reed, 489 U.S. at 264 & n. 10, 109 S.Ct. at 1044 & n. 10; Rogers v. Scott, 70 F.3d at 342; Sawyers v. Collins, 986 F.2d at 1499. Where it is unclear whether the state court's judgment rests on state procedural grounds or on the merits of the federal claim, the basis for the state court judgment is identified by the following analysis: (1) where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting that same claim rest upon the same ground; (2) if an earlier opinion "fairly appears" to rest primarily upon federal law, we presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place; and (3) where the last reasoned opinion on the claim explicitly imposes a procedural default, the presumption is that a later decision rejecting the claim did not silently disregard that bar and consider the merits but this presumption can be overcome by strong evidence that the subsequent rejection of the claim was based on an analysis of the merits of the federal claim. See Sawyers v. Collins, 986 F.2d at 1499-1500. In petitioner's case, the Texas Court of Criminal Appeals issued only a brief, one-page order on February 21, 1995, adopting the findings and conclusions issued by the state trial court in petitioner's state habeas corpus proceeding. Thus, the last, and only, reasoned opinion in petitioner's state habeas corpus proceeding is the state trial court's Order issued January 9, 1995, setting forth that court's findings of fact and conclusions of law. Therefore, we look to that state trial court Order of January 9, 1995, on petitioner's state habeas corpus application for any holding by a Texas court on state procedural default issues. As an aside, the Court notes the rule in Harris referenced above is inapplicable where the federal habeas corpus claim was never presented to the state courts. See Teague v. Lane, 489 U.S. 288, 299, 109 S. Ct. 1060, 1069, 103 L. Ed. 2d 334 (1989); Nichols v. Scott, 69 F.3d at 1280. In this case, however, petitioner did exhaust available state remedies on all of his grounds for federal habeas relief herein. [236] See Reed v. Scott, 70 F.3d at 846; Amos v. Scott, 61 F.3d at 339. [237] Harris v. Reed, 489 U.S. at 261-62, 109 S.Ct. at 1042. [238] Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043; Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S. Ct. 2633, 2638-39, 86 L. Ed. 2d 231 (1985). [239] Coleman v. Thompson, 501 U.S. at 734-35, 111 S.Ct. at 2556-57. [240] See Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043; Moore v. Roberts, 83 F.3d at 702. [241] See Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S. Ct. 2514, 2517, 120 L. Ed. 2d 269 (1992); May v. Collins, 955 F.2d 299, 308 (5th Cir.), cert. denied, 504 U.S. 901, 112 S. Ct. 1925, 118 L. Ed. 2d 533 (1992); Sawyer v. Whitley, 945 F.2d 812, 815 (5th Cir.1991), aff'd, 505 U.S. 333, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992). These opinions discuss the "miscarriage of justice" exception to the cause and prejudice test for successive federal habeas petitions. Basically, that exception provides that reconsideration of a ground for relief that was disposed of on the merits in a prior federal habeas proceeding is permissible only when the petitioner establishes a "fair probability" that, in light of all the evidence, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. See Sawyer v. Whitley, 505 U.S. at 339 & n. 5, 112 S.Ct. at 2518-19 & n. 5; May v. Collins, 955 F.2d at 308; Sawyer v. Whitley, 945 F.2d at 817. [242] See Sawyer v. Whitley, 505 U.S. at 335-40, 112 S.Ct. at 2516-19 (holding that to show "factual innocence" in context of capital sentencing scheme, one must show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found petitioner eligible for death penalty under applicable state statute and "factual innocence" means fair probability that, in light of all the evidence, trier of facts would have entertained a reasonable doubt as to defendant's guilt); Kuhlmann v. Wilson, 477 U.S. 436, 455 n. 17, 106 S. Ct. 2616, 2627 n. 17, 91 L. Ed. 2d 364 (1986); Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir.1992), cert. denied, 507 U.S. 1007, 113 S. Ct. 1652, 123 L. Ed. 2d 272 (1993); May v. Collins, 955 F.2d at 308; Sawyer v. Whitley, 945 F.2d at 817. [243] See Statement of Facts from petitioner's state habeas corpus proceeding, at p. 240. [244] See Ex parte Adanandus, Writ No. 27,875-01 (Tex.Crim.App. February 21, 1995). [245] See Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043; Moore v. Roberts, 83 F.3d at 702. [246] See Sawyer v. Whitley, 505 U.S. at 335-40, 112 S.Ct. at 2516-19 (holding that to show "factual innocence" in context of capital sentencing scheme, one must show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found petitioner eligible for death penalty under applicable state statute and "factual innocence" means a fair probability that, in light of all the evidence, trier of facts would have entertained reasonable doubt as to defendant's guilt); Kuhlmann v. Wilson, 477 U.S. at 455 n. 17, 106 S.Ct. at 2627 n. 17; Johnson v. Hargett, 978 F.2d at 859-60; May v. Collins, 955 F.2d at 308; Sawyer v. Whitley, 945 F.2d at 817. [247] See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993); Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir.1996) (holding that to satisfy harmless error standard announced in Brecht, defendant must show there is more than mere reasonable possibility that error contributed to verdict); Cupit v. Whitley, 28 F.3d 532, 538-39 (5th Cir. 1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1128, 130 L. Ed. 2d 1091 (1995) (discussing difference for purposes of harmless error analysis between structural and mere trial errors); Ward v. Whitley, 21 F.3d 1355, 1365 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1257, 131 L. Ed. 2d 137 (1995); Vanderbilt v. Collins, 994 F.2d 189, 199 (5th Cir.1993). However, the Brecht harmless error standard does not require that for the error to be harmful, there be a reasonable probability the result would have been different. See Woods v. Johnson, 75 F.3d at 1027 (citing Kyles v. Whitley, ___ U.S. ____, ____ _ ____, 115 S. Ct. 1555, 1566-67, 131 L. Ed. 2d 490 (1995)). Likewise, if the court finds the evidence on the question of the harmlessness of the error is evenly balanced, federal habeas relief must be granted. See Woods v. Johnson, 75 F.3d at 1026 (citing O'Neal v. McAninch, 513 U.S. 432, ____, 115 S. Ct. 992, 994, 130 L. Ed. 2d 947 (1995)). Determination of whether the erroneous admission of evidence is "harmless" depends on a host of factors, including (1) the importance of the evidence in the prosecution's case, (2) whether the evidence was cumulative, (3) the presence or absence of other evidence corroborating or contradicting the evidence in question, and (4) the overall strength of the prosecution's case against the defendant. See Cupit v. Whitley, 28 F.3d at 539. Of these factors, the strength of the prosecution's case is probably the most important in determining whether the error was harmless. Id. [248] See Statement of Facts from petitioner's state court trial, Volume 45 of 27, Testimony of Linda Eileen Davidson, at pp. 7158-76. [249] Id., Testimony of Lucille McGee, at pp. 7177-88. [250] Id., Testimony of Helen Marie Horsley, at pp. 7252-83; and Testimony of Lisa Boley, at pp. 7288-7308. [251] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7538-48. [252] Id., Volume 25 of 27, Testimony of Reed McDonald, at pp. 7454-63; and Testimony of L.J. Dulin, at pp. 7464-72. [253] Id., Volume 25 of 27, Lloyd Joe McGrew, at pp. 7343-51. [254] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7527-7600. [255] See Harris v. Johnson, 81 F.3d 535, 541 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 1863, 134 L. Ed. 2d 961 (1996); Montoya v. Scott, 65 F.3d 405, 421 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 1417, 134 L. Ed. 2d 542 (1996); Kinnamon v. Scott, 33 F.3d 462, 466 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 660, 130 L. Ed. 2d 595 (1994); Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 432, 130 L. Ed. 2d 344 (1994); Duff-Smith v. Collins, 973 F.2d 1175, 1184 (5th Cir. 1992), cert. denied, 507 U.S. 1056, 113 S. Ct. 1958, 123 L. Ed. 2d 661 (1993); Landry v. Lynaugh, 844 F.2d 1117, 1121 (5th Cir.), cert. denied, 488 U.S. 900, 109 S. Ct. 248, 102 L. Ed. 2d 236 (1988); Williams v. Lynaugh, 814 F.2d 205, 207-08 (5th Cir.), cert. denied, 484 U.S. 935, 108 S. Ct. 311, 98 L. Ed. 2d 270 (1987); Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 323 (1985). [256] See, e.g., United States v. Vital, 68 F.3d 114, 118 (5th Cir.1995) (affirming sentencing court's consideration for sentencing purposes of unadjudicated offenses which occurred after offense of conviction); United States v. Wittie, 25 F.3d 250, 260 (5th Cir.1994), aff'd, ___ U.S. ____, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995). [257] See Montoya v. Scott, 65 F.3d at 421; Kinnamon v. Scott, 33 F.3d at 466; Clark v. Collins, 19 F.3d at 966; Duff-Smith v. Collins, 973 F.2d at 1184; Landry v. Lynaugh, 844 F.2d at 1121; Williams v. Lynaugh, 814 F.2d at 207-08; Milton v. Procunier, 744 F.2d at 1097. In each of these opinions, the Fifth Circuit held evidence of unadjudicated criminal conduct is admissible at the punishment phase of a Texas capital murder trial. [258] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 35-40. [259] 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). [260] See Statement of Facts from petitioner's state court trial, Volume 16 of 27, at pp. 5058-59. [261] Id., Testimony of Jamie Boyd, at pp. 5070-72 and 5145. [262] Id., at pp. 5072-74. [263] Id., at pp. 5078-79, 5117, and 5145. [264] Id., at pp. 5079 and 5128-29. [265] Id., at pp. 5094-97. State's Exhibits 1 and 2 introduced during the evidentiary hearing on petitioner's Batson objection consisted of copies of Ms. King's juror questionnaire. In response to question 55, which asked whether she believed there should be a death penalty, Ms. King wrote "unsure, because I feel what facts are give [sic] through the media is unjust [sic] and facts are important." [266] Id., at pp. 5095-96. [267] Id., at pp. 5098-5100. [268] Id., at pp. 5100 and 5112-15. [269] Id., at pp. 5100-01. [270] Id., at pp. 5109-11, 5114-16, and 5129-32. [271] See Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991); United States v. Huey, 76 F.3d 638, 640-41 (5th Cir.1996); United States v. Fields, 72 F.3d 1200, 1206 (5th Cir.), petition for certs. filed, 64 U.S.L.W. 3709 (U.S. Apr. 8, 1996) (No. 95-1639), and (U.S. Jun. 26, 1996) (No. 95-9441). [272] See United States v. Krout, 66 F.3d 1420, 1428 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 963, 133 L. Ed. 2d 884 (1996) (holding Batson objections must be raised before venire dismissed); Thomas v. Moore, 866 F.2d 803, 805 (5th Cir.), cert. denied, 493 U.S. 840, 110 S. Ct. 124, 107 L. Ed. 2d 85 (1989) ("A timely objection and the corresponding opportunity to evaluate the circumstances of the jury selection process are essential to a trial court's reasoned application of the limitations placed on peremptory challenges by the Batson holding."). [273] See United States v. Fike, 82 F.3d 1315, 1320 (5th Cir.1996) (holding Afro-American venireman's expression of distrust in justice system was sufficient race-neutral reason for striking that venireman); United States v. Moeller, 80 F.3d 1053, 1060 (5th Cir.1996) (holding venireman's lack of education was proper race-neutral reason for exercise of peremptory strike in complex conspiracy case); United States v. Jimenez, 77 F.3d 95, 100-01 (5th Cir.1996) (upholding striking of a black member of venire against Batson challenge where prosecution pointed out venireman in question was young, uneducated, had not worked in a company setting, and had no religious preference, upholding striking of hispanic venireman because close relative had been convicted of DWI, and upholding striking of another hispanic venireman because he was unhappy with prosecutions in two cases in which close family members were killed); United States v. Fields, 72 F.3d at 1206 (upholding striking of black female member of venire because she was young, had avoided eye contact with prosecution, and had looked at defendants in flirtatious manner); United States v. Jackson, 50 F.3d 1335, 1341 (5th Cir.1995) (holding prosecutor's statement that potential juror had given him "hostile look" when prosecutor pointed out to court that jurors were seated out of order and requested juror change places with juror seated next to him was sufficiently race-neutral reason to support peremptory strike and overcome Batson objection); United States v. Seals, 987 F.2d 1102, 1108-09 (5th Cir.), cert. denied, 510 U.S. 853, 114 S. Ct. 155, 126 L. Ed. 2d 116 (1993) (upholding against Batson objections strikes of two black members of venire based on prosecution's observations that primary activities of one of the black men struck consisted of reading the Bible and watching television and fact other person struck worked with the mentally retarded); Polk v. Dixie Ins. Co., 972 F.2d 83, 85-86 (5th Cir.1992), cert. denied, 506 U.S. 1055, 113 S. Ct. 982, 122 L. Ed. 2d 135 (1993) (holding eye contact is legitimate race-neutral reason for exercising peremptory strike); United States v. Hinojosa, 958 F.2d 624, 632 (5th Cir.1992) (holding venireman's disinterested demeanor or inattentiveness are race-neutral valid reasons for exclusion); United States v. Clemons, 941 F.2d 321, 325 (5th Cir. 1991) (holding venireperson's age, hairstyle, dress and general appearance are legitimate race-neutral reasons for exercising peremptory strike); United States v. Terrazas-Carrasco, 861 F.2d 93, 94-95 & n. 1 (5th Cir.1988) (holding age, eye contact, body language, length of residence in community, marital status, and having same name as person prosecutor previously convicted all legitimate race-neutral reasons for exercising peremptory strike). [274] Purkett v. Elem, ___ U.S. ____, ____, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995); Hernandez v. New York, 500 U.S. at 360, 111 S.Ct. at 1866; United States v. Fike, 82 F.3d at 1320; United States v. Fields, 72 F.3d at 1206; United States v. Clemons, 941 F.2d at 325. [275] See Purkett v. Elem, ___ U.S. at ____, 115 S.Ct. at 1771 (holding any race-neutral reason will suffice to defeat Batson claim even if reason less plausible); United States v. Huey, 76 F.3d at 640-41 n. 12. [276] See United States v. Fields, 72 F.3d at 1206; United States v. Hinojosa, 958 F.2d at 632; United States v. Clemons, 941 F.2d at 325. [277] See United States v. Hinojosa, 958 F.2d at 632; United States v. Clemons, 941 F.2d at 325; United States v. Terrazas-Carrasco, 861 F.2d at 94. [278] See Hernandez v. New York, 500 U.S. at 364, 111 S.Ct. at 1868-69 (recognizing trial court's ultimate decision on question of discriminatory intent is factual finding entitled to great deference); United States v. Moeller, 80 F.3d at 1060 (recognizing trial court's ruling on timely Batson objection essentially one of credibility); United States v. Seals, 987 F.2d at 1109 (holding trial court's determination on Batson objection entitled to great deference); Polk v. Dixie Ins. Co., 972 F.2d at 86 (recognizing Batson findings largely will turn on evaluations of credibility of counsel's explanations); United States v. Terrazas-Carrasco, 861 F.2d at 94 (giving deference to trial judge's credibility choice and recognizing valid reasons for exercise of peremptory challenge include intuitive assumptions based on prosecution's confrontation of venireperson). [279] See 28 U.S.C. § 2254(d); Burden v. Zant, 498 U.S. 433, 436-37, 111 S. Ct. 862, 864, 112 L. Ed. 2d 962 (1991); Sumner v. Mata, 449 U.S. 539, 551, 101 S. Ct. 764, 771, 66 L. Ed. 2d 722 (1981); Amos v. Scott, 61 F.3d 333, 346 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995); Gilley v. Collins 968 F.2d 465, 469 (5th Cir.1992); Smith v. Collins, 964 F.2d 483, 485 (5th Cir.1992); Lincecum v. Collins, 958 F.2d at 1278-79; Barnard v. Collins, 958 F.2d at 636; King v. Collins, 945 F.2d 867, 868 (5th Cir.1991); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir.1990); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990). "A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. A federal court may not overturn such determinations unless it concludes that they are not `fairly supported by the record.'" Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225, 109 L. Ed. 2d 762 (1990). State court factual findings are entitled to this presumption absent one of eight statutory exceptions. Cantu v. Collins, 967 F.2d 1006, 1015 (5th Cir.1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3045, 125 L. Ed. 2d 730 (1993). [280] Loyd v. Smith, 899 F.2d at 1425; see also Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225, 109 L. Ed. 2d 762 (1990); Wainwright v. Witt, 469 U.S. 412, 426, 105 S. Ct. 844, 853, 83 L. Ed. 2d 841 (1985); Monroe v. Collins, 951 F.2d 49, 51 (5th Cir.1992). [281] See Marshall v. Lonberger, 459 U.S. 422, 433-34, 103 S. Ct. 843, 850-51, 74 L. Ed. 2d 646 (1983); Cantu v. Collins, 967 F.2d at 1015; McCoy v. Cabana, 794 F.2d 177, 182 (5th Cir. 1986). [282] See Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir.1995); James v. Whitley, 39 F.3d 607, 610 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1704, 131 L. Ed. 2d 565 (1995). [283] See Burden v. Zant, 498 U.S. at 436-37, 111 S.Ct. at 864; Marshall v. Lonberger, 459 U.S. at 432-36, 103 S.Ct. at 849-52 (holding federal habeas court should not overturn state court findings of fact if findings have "fair support" in record); Harris v. Johnson, 81 F.3d at 539 (recognizing federal habeas corpus court must ordinarily accept implicit fact findings made by state trial court in ruling on Batson objection); Monroe v. Collins, 951 F.2d at 51. "A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. A federal court may not overturn such determinations unless it concludes that they are not `fairly supported by the record.'" Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 2225, 109 L. Ed. 2d 762 (1990). State court factual findings are entitled to this presumption absent one of eight statutory exceptions. Cantu v. Collins, 967 F.2d at 1015. [284] See Purkett v. Elem, ___ U.S. at ____, 115 S.Ct. at 1771 (holding opponent of strike bears burden of proving racial motivation underlying strike). [285] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 40-45. [286] "[F]ederal courts do not sit as courts of appeal and error for state court convictions." Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.1986); Bridge v. Lynaugh, 838 F.2d 770, 772 (5th Cir.1988). This Court does not review a state prisoner's federal habeas corpus petition to determine whether the state appellate courts correctly construed and applied state law. Federal habeas corpus relief does not lie for errors of state law. See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 489-80; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874; Pemberton v. Collins, 991 F.2d at 1223; Lavernia v. Lynaugh, 845 F.2d at 496; Rault v. Butler, 826 F.2d at 302 n. 1; Neyland v. Blackburn, 785 F.2d at 1293. [287] Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir.1994); Gray v. Lynn, 6 F.3d 265, 268 (5th Cir.1993); Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir.1993). [288] See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 479-80, 116 L. Ed. 2d 385 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75, 79 L. Ed. 2d 29 (1984); Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir.), cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 596 (1993); Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir.1988); Rault v. Butler, 826 F.2d 299, 302 n. 1 (5th Cir.), cert. denied, 483 U.S. 1042, 108 S. Ct. 14, 97 L. Ed. 2d 803 (1987); Neyland v. Blackburn, 785 F.2d 1283, 1293 (5th Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 399, 93 L. Ed. 2d 352 (1986). [289] See Neyland v. Blackburn, 785 F.2d at 1289. [290] Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 2554, 115 L. Ed. 2d 640 (1991). [291] Pemberton v. Collins, 991 F.2d at 1226; Jernigan v. Collins, 980 F.2d 292, 298 (5th Cir. 1992), cert. denied, 508 U.S. 978, 113 S. Ct. 2977, 125 L. Ed. 2d 675 (1993); Edwards v. Butler, 882 F.2d 160, 164 (5th Cir.1989); Bridge v. Lynaugh, 838 F.2d at 772; Mullen v. Blackburn, 808 F.2d 1143, 1145 (5th Cir.1987); Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.1986). [292] Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1128, 130 L. Ed. 2d 1091 (1995); Pemberton v. Collins, 991 F.2d at 1226; Trussell v. Estelle, 699 F.2d 256, 259 & 262 (5th Cir.), cert. denied, 464 U.S. 853, 104 S. Ct. 168, 78 L. Ed. 2d 153 (1983). [293] Jernigan v. Collins, 980 F.2d at 298; Bridge v. Lynaugh, 838 F.2d at 772; Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir.), cert. denied, 484 U.S. 842, 108 S. Ct. 132, 98 L. Ed. 2d 89 (1987); Mullen v. Blackburn, 808 F.2d at 1145. [294] See Guidroz v. Lynaugh, 852 F.2d 832, 835 (5th Cir.1988); Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir.1988). [295] See Statement of Facts from petitioner's state court proceeding, Volume 25 of 27, Testimony of Lloyd Joe McGrew, at pp. 7344-51. [296] See Statement of Facts from petitioner's state court trial, Volume 24 of 27, Testimony of Valentine Lopez, at pp. 7189-95; Testimony of Everett Mann, at pp. 7195-7207; and Testimony of Cruz Morua, at pp. 7208-18. [297] See Statement of Facts from petitioner's state court trial, Volume 24 of 27, Testimony of Larry Bodiford, at pp. 7106-19. [298] Id., Volume 24 of 27, Testimony of Linda Eileen Davidson, at pp. 7158-69. [299] Id., Volume 24 of 27, Testimony of Lucille McGee, at pp. 7178-86. [300] Id., Volume 25 of 27, Testimony of Odell McGroan, at pp. 7442-52 and 7510-11; Testimony of Reed McDonald, at pp. 7454-62; and Testimony of L.J. Dulin, at pp. 7464-71. [301] Id., Volume 24 of 27, Testimony of Helen Marie Horsley, at pp. 7254-78; Testimony of David Smith, at pp. 7285-88; and Testimony of Lisa Boley, at pp. 7290-7303. [302] See Statement of Facts from petitioner's state court trial, Volume 18 of 27, Testimony of Patricia Martinez, at pp. 5707-08; Volume 24 of 27, Testimony of Helen Marie Horsley, at p. 7276; and Volume 24 of 27, Testimony of Lisa Boley, at p. 7296. [303] Id., Testimony of Dwight Dwayne Adanandus, at pp. 7529-30. [304] Id., Volume 24 of 27, Testimony of Marvin Morgan, at pp. 7221-35. [305] Id., Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7527-7610. [306] The Sixth Amendment's right to confrontation does not perforce preclude the admission of any hearsay testimony at a state criminal trial. See Cupit v. Whitley, 28 F.3d at 536 (citing Johnson v. Blackburn, 778 F.2d 1044, 1051 (5th Cir. 1985)). For the admission of hearsay evidence to violate the Confrontation Clause, the improperly admitted evidence must have been not only inadmissible but also material, i.e., a crucial, critical, or highly significant factor in the framework of the entire trial. Cupit v. Whitley, 28 F.3d at 537. As explained above, however, when viewed in the context of petitioner's entire trial, including petitioner's own testimony at the punishment phase of his trial, the reputation testimony of the three San Antonio Police Officers was almost totally superfluous. The jury was made aware of petitioner's entire criminal record, most of which petitioner readily admitted during his testimony, and was fully aware of the details of petitioner's capital offense from the testimony at the guilt-innocence phase of trial. Given the largely undisputed evidence regarding petitioner's extensive criminal record, the jury could not have helped but assume petitioner's reputation for being peaceful and law-abiding was poor. The reputation testimony in question was, therefore, not crucial, critical, or significant with regard to any of the three special sentencing issues before the jury at the punishment phase of petitioner's capital murder trial. [307] Sherman v. Scott, 62 F.3d 136, 140 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 816, 133 L. Ed. 2d 760 (1996) (quoting Idaho v. Wright, 497 U.S. 805, 813, 110 S. Ct. 3139, 3145, 111 L. Ed. 2d 638 (1990)). If the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule and the Confrontation Clause do not bar admission of the statement at trial. See Sherman v. Scott, 62 F.3d at 140. As explained above, given the largely undisputed evidence regarding petitioner's extensive criminal record, the jury could not have helped but assumed petitioner's reputation for being peaceful and law-abiding was poor. Thus, even assuming the state trial court's admission of the reputation testimony in question somehow violated hearsay principles, the record before the jury at the punishment phase of petitioner's capital murder trial was such that cross-examination of those persons who had commented to the three San Antonio Police Officers in question on petitioner's reputation for being peaceful and law-abiding would have been of only marginal utility. [308] See Cupit v. Whitley, 28 F.3d at 536; Pemberton v. Collins, 991 F.2d at 1226. [309] See Adanandus v. State, 866 S.W.2d at 225-26 (citing Turner v. State, 805 S.W.2d 423, 429 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991)). [310] See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 479-80; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874-75. [311] Harmless error analysis is appropriately applied to Confrontation Clause claims. See United States v. Alexius, 76 F.3d 642, 646-47 (5th Cir. 1996); Offor v. Scott, 72 F.3d 30, 33-34 (5th Cir.1995); United States v. McCormick, 54 F.3d 214, 219 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 264, 133 L. Ed. 2d 187 (1995); Cupit v. Whitley, 28 F.3d at 537-42; Shaw v. Collins, 5 F.3d 128, 132-33 (5th Cir.1993). In each of the foregoing opinions, the Fifth Circuit applied harmless error analysis to a Confrontation Clause Claim. [312] See Woods v. Johnson, 75 F.3d at 1026 (holding to satisfy harmless error standard announced in Brecht, defendant must show there is more than mere reasonable possibility error contributed to verdict). [313] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 45-53. [314] Sawyers v. Collins, 986 F.2d 1493, 1497 (5th Cir.1993), cert. denied, 508 U.S. 933, 113 S. Ct. 2405, 124 L. Ed. 2d 300 (1993) (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976)). [315] Sawyers v. Collins, 986 F.2d at 1497. The Fifth Circuit's opinion in Sawyers must be read in conjunction with the Supreme Court's two most recent opinions addressing the former Texas capital sentencing statute. See Johnson v. Texas, 509 U.S. at 372-73, 113 S.Ct. at 2671-72 (rejecting contention that Penry instruction is necessary in every case in which defendant offers mitigating evidence that has some arguable relevance beyond the special issues and emphasizing its previous opinions do not require jury be able to dispense mercy on basis of sympathetic response to defendant); Graham v. Collins, 506 U.S. 461, 475-76, 113 S. Ct. 892, 902, 122 L. Ed. 2d 260 (1993) (rejecting contention Penry instruction is necessary in every case in which defendant offers mitigating evidence that has some arguable relevance beyond the special issues). [316] See Nethery v. Collins, 993 F.2d 1154, 1161 (5th Cir.1993), cert. denied, ___ U.S. ____, 114 S. Ct. 1416, 128 L. Ed. 2d 87 (1994); Bridge v. Collins, 963 F.2d 767, 770 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3044, 125 L. Ed. 2d 729 (1993); Holland v. Collins, 962 F.2d 417, 419-20 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3043, 125 L. Ed. 2d 729 (1993); White v. Collins, 959 F.2d 1319, 1322 (5th Cir.), cert. denied, 503 U.S. 1001, 112 S. Ct. 1714, 118 L. Ed. 2d 419 (1992); Barnard v. Collins, 958 F.2d 634, 637 (5th Cir.1992), cert. denied, 506 U.S. 1057, 113 S. Ct. 990, 122 L. Ed. 2d 142 (1993); Graham v. Collins, 950 F.2d 1009, 1030-33 (5th Cir.1992), (en banc), aff'd, 506 U.S. 461, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993). [317] See Nichols v. Scott, 69 F.3d 1255, 1267-68 & 1278 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 2559, 135 L. Ed. 2d 1076 (1996) (holding that neither evidence defendant was not triggerman nor evidence showing defendant's good character warranted Penry instruction); Briddle v. Scott, 63 F.3d 364, 377 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 687, 133 L. Ed. 2d 531 (1995) (holding evidence of defendant's remorse and voluntary intoxication did not warrant Penry instruction); Lackey v. Scott, 28 F.3d 486, 489 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995) (holding evidence of defendant's intoxication did not warrant Penry instruction); Crank v. Collins, 19 F.3d 172, 175 (5th Cir.), cert. denied, ___ U.S. ____, 114 S. Ct. 2699, 129 L. Ed. 2d 825 (1994) (holding evidence of defendant's good character did not require Penry instruction); Nethery v. Collins, 993 F.2d 1154, 1161 (5th Cir.1993), cert. denied, ___ U.S. ____, 114 S. Ct. 1416, 128 L. Ed. 2d 87 (1994) (holding the Texas special issues sufficiently broad in themselves to allow jury to give meaningful consideration to accused's voluntary intoxication); James v. Collins, 987 F.2d 1116, 1121-22 (5th Cir.), cert. denied, 509 U.S. 947, 114 S. Ct. 30, 125 L. Ed. 2d 780 (1993) (holding the Texas special issues alone permit adequate consideration by jury of accused's voluntary intoxication, impoverished and abusive family history, redeeming character traits, including his remorse for his actions, his cooperation with law enforcement authorities, and his positive familial ties); Jernigan v. Collins, 980 F.2d 292, 295 (5th Cir.1992), cert. denied, 508 U.S. 978, 113 S. Ct. 2977, 125 L. Ed. 2d 675 (1993) (holding the Texas capital sentencing special issues adequate, despite absence of Penry instruction, to permit jury to consider and give effect to defendant's mitigating evidence that he was a kind, gentle person who had rededicated his life to God); Stewart v. Collins, 978 F.2d 199, 201 (5th Cir.1992), cert. denied, 507 U.S. 1053, 113 S. Ct. 1951, 123 L. Ed. 2d 656 (1993) (holding the Texas capital murder special issues permitted jury to consider and weigh mitigating evidence that defendant was not triggerman during the murder); Demouchette v. Collins, 972 F.2d 651, 653-54 (5th Cir.), cert. denied, 505 U.S. 1246, 113 S. Ct. 27, 120 L. Ed. 2d 952 (1992) (holding first Texas special issue permits adequate consideration by jury of evidence defendant suffered from antisocial personality disorder); Cantu v. Collins, 967 F.2d 1006, 1012-13 (5th Cir.1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3045, 125 L. Ed. 2d 730 (1993) (holding Texas capital sentencing special issues permit jury to give adequate consideration to mitigating aspects of defendant's youth without need for supplemental Penry instruction); Drew v. Collins, 964 F.2d 411, 420-21 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3044, 125 L. Ed. 2d 730 (1993) (holding Texas special issues permit adequate consideration by jury of mitigating evidence that defendant had troubled childhood, had chronic drinking problem, was under influence of alcohol and marijuana at the time he committed the crime, was only 23 years old at the time of the offense, and did not strike the fatal blow); Bridge v. Collins, 963 F.2d 767, 769-70 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3044, 125 L. Ed. 2d 729 (1993) (holding the Texas capital sentencing special issues adequately permitted jury to consider mitigating effects of defendant's evidence that his accomplice actually shot the victim, he was intoxicated at time of offense, he did not plan the robbery, he was operating under influence of others during the offense, he expressed extreme remorse following the offense, he was young and immature at time of the offense, and he had no previous history of violence); Holland v. Collins, 962 F.2d 417, 419-20 (5th Cir.1992), cert. denied, 509 U.S. 925, 113 S. Ct. 3043, 125 L. Ed. 2d 729 (1993) (holding mitigating effect of evidence of defendant's positive personality traits could be considered by jury without Penry instruction); Black v. Collins, 962 F.2d 394, 404-05 (5th Cir.), cert. denied, 504 U.S. 992, 112 S. Ct. 2983, 119 L. Ed. 2d 601 (1992) (holding no Penry instructions needed to permit jury to consider defendant's mitigating evidence of his good character, military service, and work with Boy Scouts); White v. Collins, 959 F.2d 1319, 1324 (5th Cir.), cert. denied, 503 U.S. 1001, 112 S. Ct. 1714, 118 L. Ed. 2d 419 (1992) (holding Texas capital murder special issues permitted jury to give adequate consideration to defendant's youthful age at the time of his offense); Lincecum v. Collins, 958 F.2d 1271, 1282-84 (5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992) (holding Texas special issues need not be accompanied by instructions in order for jury to adequately consider accused's troubled childhood and his emotional turmoil at the time of offense); Barnard v. Collins, 958 F.2d 634, 638-39 (5th Cir.1992), cert. denied, 506 U.S. 1057, 113 S. Ct. 990, 122 L. Ed. 2d 142 (1993) (holding Texas special issues permitted jury to give adequate consideration to defendant's evidence of his head injury, troubled childhood, drug and alcohol abuse, good character, work history, carpentry skills, and familial responsibility and support); Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.), cert. denied, 502 U.S. 1067, 112 S. Ct. 959, 117 L. Ed. 2d 125 (1992) (holding no Penry instruction necessary to permit jury to adequately consider defendant's testimony of his voluntary intoxication at time of his offense); Graham v. Collins, 950 F.2d 1009, 1032-33 (5th Cir.1992), (en banc), aff'd, 506 U.S. 461, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993) (holding Texas capital sentencing special issues permitted consideration of mitigating effect of evidence that defendant was of normal or good character, respected his mother and stepfather, cared for and was close to his mother, was never violent, never had weapons, helped out around the house without being asked, went to school and church regularly, loved "The Lord", and worked and contributed to the support of his two children); Green v. Collins, 947 F.2d 1230, 1232 (5th Cir.), cert. denied, 502 U.S. 954, 112 S. Ct. 412, 116 L. Ed. 2d 433 (1991) (holding Texas capital sentencing special issues permitted consideration of mitigating effects of evidence that defendant was a good worker, had been a foreman, would have been re-employed by his former employer had he not been incarcerated, was highly intelligent, optimistic, and had the mental capacity to address small details). [318] See Johnson v. Texas, 509 U.S. 350, 365-70, 113 S. Ct. 2658, 2667-70, 125 L. Ed. 2d 290 (1993); Drew v. Collins, 964 F.2d at 420-21; Barnard v. Collins, 958 F.2d at 637-38; Wilkerson v. Collins, 950 F.2d 1054, 1060-61 (5th Cir. 1992), cert. denied, 509 U.S. 921, 113 S. Ct. 3035, 125 L. Ed. 2d 722 (1993); Graham v. Collins, 950 F.2d at 1030-32. [319] See Briddle v. Scott, 63 F.3d at 377; Lackey v. Scott, 28 F.3d at 489; Anderson v. Collins, 18 F.3d at 1214 n. 5; Nethery v. Collins, 993 F.2d at 1161; James v. Collins, 987 F.2d at 1121; Sawyers v. Collins, 986 F.2d at 1502 n. 14; Drew v. Collins, 964 F.2d at 420; Bridge v. Collins, 963 F.2d at 770; Barnard v. Collins, 958 F.2d at 639; Cordova v. Collins, 953 F.2d at 170; Graham v. Collins, 950 F.2d at 1029. [320] See Harris v. Johnson, 81 F.3d 535, 539 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 1863, 134 L. Ed. 2d 961 (1996) (holding no Penry instruction necessary where no evidence showing defendant's borderline intelligence bore nexus to his criminal actions); Allridge v. Scott, 41 F.3d 213, 223 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995) (holding no Penry instruction necessary in absence of evidence showing defendant's criminal conduct attributable to the mental illness and abuse defendant suffered during a previous incarceration); Lackey v. Scott, 28 F.3d 486, 489 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995) (holding evidence of defendant's low intelligence and history of childhood abuse not relevant for Penry purposes where no evidence showing defendant's criminal act attributable to same); Madden v. Collins, 18 F.3d 304, 307-08 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1114, 130 L. Ed. 2d 1078 (1995) (holding evidence defendant suffered from anti-social personality, dyslexia, and a troubled childhood not relevant for Penry purposes absent showing defendant's criminal conduct attributable to same); Barnard v. Collins, 958 F.2d at 638-39 (holding that, in order to warrant a Penry instruction, evidence defendant had troubled childhood must be accompanied by evidence defendant's childhood experiences had psychological effect on defendant, i.e., defendant's criminal conduct attributable to his disadvantaged background); Graham v. Collins, 950 F.2d at 1033 (holding "mitigating" evidence must be able to raise inference "that the crime is attributable to the disability"); see also Barnard v. Collins, 958 F.2d at 639 (holding evidence from lay witnesses defendant had drinking problem and intoxicated at time of his offense insufficient to permit jury to conclude defendant suffered from alcoholism or drug addiction or some other "uniquely severe permanent handicap" through no fault of his own). [321] Harris v. Johnson, 81 F.3d 535, 539 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 1863, 134 L. Ed. 2d 961 (1996); Davis v. Scott, 51 F.3d 457, 460 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 525, 133 L. Ed. 2d 432 (1995). [322] Madden v. Collins, 18 F.3d 304, 308 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1114, 130 L. Ed. 2d 1078 (1995); Russell v. Collins, 998 F.2d 1287, 1292 (5th Cir.1993), cert. denied, 510 U.S. 1185, 114 S. Ct. 1236, 127 L. Ed. 2d 580 (1994). [323] Marquez v. Collins, 11 F.3d 1241, 1248 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 215, 130 L. Ed. 2d 143 (1994); White v. Collins, 959 F.2d 1319, 1322 (5th Cir.), cert. denied, 503 U.S. 1001, 112 S. Ct. 1714, 118 L. Ed. 2d 419 (1992). [324] Harris v. Collins, 990 F.2d 185, 189 (5th Cir.), cert. denied, 509 U.S. 933, 113 S. Ct. 3069, 125 L. Ed. 2d 746 (1993); White v. Collins, 959 F.2d at 1322-23. [325] See Rogers v. Scott, 70 F.3d 340, 343 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 1881, 135 L. Ed. 2d 176 (1996) (citing Johnson v. Texas, 509 U.S. 350, 362, 113 S. Ct. 2658, 2666, 125 L. Ed. 2d 290 (1993)). [326] See Briddle v. Scott, 63 F.3d 364, 377 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 687, 133 L. Ed. 2d 531 (1995) (holding evidence of defendant's remorse did not require Penry instructions); Callins v. Collins, 998 F.2d 269, 275 (5th Cir.1993), cert. denied, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (holding evidence of defendant's remorse toward and consideration for his victim could be adequately considered by jury under Texas capital sentencing special issues); James v. Collins, 987 F.2d at 1122 (holding evidence defendant showed signs of remorse for his actions was within scope of second special issue); Bridge v. Collins, 963 F.2d at 769-70 (holding evidence defendant in tears immediately after offense could be adequately considered by jury in answering Texas capital murder special issues); Wilkerson v. Collins, 950 F.2d at 1060 (holding evidence defendant accepted responsibility for his criminal actions could be considered adequately within jury's deliberations on second special issue). [327] See Marquez v. Collins, 11 F.3d at 1248 (holding deliberate failure to introduce mitigating evidence as tactical decision not within requirements announced in Penry); May v. Collins, 904 F.2d at 232 (holding same). [328] See Briddle v. Scott, 63 F.3d at 377; Allridge v. Scott, 41 F.3d at 223; Crank v. Collins, 19 F.3d at 176; Anderson v. Collins, 18 F.3d at 1213-14; Barnard v. Collins, 958 F.2d at 637; Wilkerson v. Collins, 950 F.2d at 1061; May v. Collins, 904 F.2d at 232; DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989). [329] See Mann v. Scott, 41 F.3d at 979; Motley v. Collins, 18 F.3d at 1228; Black v. Collins, 962 F.2d at 407; Lincecum v. Collins, 958 F.2d at 1282. [330] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 53-55. [331] See Statement of Facts from petitioner's state court trial, Volume 22 of 27, Testimony of William Stolhanske, at pp. 6750-62. [332] See Adanandus v. State, 866 S.W.2d at 228. [333] See Id. [334] See Cupit v. Whitley, 28 F.3d at 536; Pemberton v. Collins, 991 F.2d at 1226; Trussell v. Estelle, 699 F.2d at 259 & 262. [335] Pemberton v. Collins, 991 F.2d at 1226; Jernigan v. Collins, 980 F.2d at 298; Edwards v. Butler, 882 F.2d at 164; Bridge v. Lynaugh, 838 F.2d at 772; Mullen v. Blackburn, 808 F.2d at 1145; Dillard v. Blackburn, 780 F.2d at 513. [336] See Jernigan v. Collins, 980 F.2d at 298; Bridge v. Lynaugh, 838 F.2d at 772; Thomas v. Lynaugh, 812 F.2d at 230; Mullen v. Blackburn, 808 F.2d at 1145. [337] See Guidroz v. Lynaugh, 852 F.2d at 835; Rogers v. Lynaugh, 848 F.2d at 609. [338] Had the parties to that civil lawsuit entered into binding stipulations that petitioner was solely and exclusively responsible for the death of Vernon Hanan and that petitioner had acted intentionally, petitioner would most certainly have urged the exclusion of evidence of such stipulations at his trial. The stipulations of private parties or the findings of a civil jury in a civil lawsuit regarding the criminal culpability of a non-party to that civil lawsuit are not binding in a subsequent criminal trial. [339] See Allridge v. Scott, 41 F.3d at 222-23 (holding state trial court's refusal to permit capital murder defendant to introduce evidence at punishment phase of his trial regarding his likely ineligibility for release in the future on parole did not violate defendant's constitutional rights). [340] At the guilt-innocence phase of his capital murder trial, petitioner presented evidence, in the form of cross-examination testimony, supporting his position that the behavior of the CNB teller had been a contributing cause of the fatal shooting of Vernon Hanan. FBI Special Agent James Kelvington testified (1) he taught and gave speeches to bank employees on how to handle robberies, (2) he advises bank employees not to bring attention to the fact a robbery is going on, not to aggravate the robber, and not to do what the CNB teller did on January 28, 1988, and (3) his purpose in giving such advice is to minimize the likelihood the robber will do harm to someone. See Statement of Facts from petitioner's state court trial, Volume 18 of 27, Testimony of James Kelvington, at pp. 5534-42. [341] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 56-58. [342] See Statement of Facts from petitioner's state habeas corpus proceeding, at p. 240. [343] See Statement of Facts from the hearing held November 21, 1994, in petitioner's state habeas corpus proceeding, Testimony of Steven C. Hilbig, at pp. 33-41. [344] See Statement of Facts from petitioner's state court trial, Volume 5 of 27, at pp. 1209-10. [345] See Riggins v. Nevada, 504 U.S. 127, 133-34, 112 S. Ct. 1810, 1814, 118 L. Ed. 2d 479 (1992); Washington v. Harper, 494 U.S. 210, 221, 110 S. Ct. 1028, 1036, 108 L. Ed. 2d 178 (1990). [346] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 59-66. [347] See Statement of Facts from petitioner's state court trial, Volume 5 of 27, at p. 1209. [348] Id., at pp. 1209-10. [349] Id., at p. 1211. [350] Id., at p. 1213. [351] Id., Volume 5 of 27, at pp. 1219-1438; and Volume 6 of 27, at pp. 1439-1709. [352] Id., Volume 5 of 27, at p. 1227 (Pardo excused); Volume 5 of 27, at p. 1436 (Clark excused); and Volume 6 of 27, at pp. 1655-56 (Stout excused). [353] Id., Volume 7 of 27, at pp. 1711-48. [354] Id., Volume 7 of 27, at pp. 1749-87. [355] Id., Volume 7 of 27, at p. 2034 (Pardo excused); Volume 8 of 27, at p. 2172 (Clark excused); Volume 8 of 27, at p. 2317 (Stout excused). [356] Id., Volume 15 of 27, at pp. 5030-31. [357] See Vuong v. Scott, 62 F.3d 673, 683 n. 12 (5th Cir.), cert. denied, ___ U.S. ____, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995). [358] See Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 1061, 25 L. Ed. 2d 353 (1970). [359] See Clark v. Scott, 70 F.3d 386, 389-90 (5th Cir.1995), cert. denied, ___ U.S. ____, 116 S. Ct. 1444, 134 L. Ed. 2d 564 (1996). [360] See Clark v. Scott, 70 F.3d at 390; United States v. Davis, 61 F.3d 291, 301 (5th Cir.1995), cert. denied sub nom. Jefferson v. United States, ___ U.S. ____, 116 S. Ct. 961, 133 L. Ed. 2d 883 (1996); United States v. Alikpo, 944 F.2d 206, 208-09 (5th Cir.1991). [361] See United States v. Davis, 61 F.3d at 302. However, an on-the-record balancing test is not required by the Constitution. See Clark v. Scott, 70 F.3d at 389-90. [362] See Mann v. Scott, 41 F.3d 968, 974 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S. Ct. 1977, 131 L. Ed. 2d 865 (1995). [363] See Statement of Facts from petitioner's state court trial, Volume 5 of 27, at pp. 1209-11. [364] See 28 U.S.C. § 2254(d); Burden v. Zant, 498 U.S. at 436-37, 111 S.Ct. at 864; Sumner v. Mata, 449 U.S. at 551, 101 S.Ct. at 771; Amos v. Scott, 61 F.3d at 346; Gilley v. Collins 968 F.2d at 469; Smith v. Collins, 964 F.2d at 485; Lincecum v. Collins, 958 F.2d at 1278-79; Barnard v. Collins, 958 F.2d at 636; King v. Collins, 945 F.2d at 868; Carter v. Collins, 918 F.2d at 1202; Loyd v. Smith, 899 F.2d at 1425. "A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. A federal court may not overturn such determinations unless it concludes that they are not `fairly supported by the record.'" Demosthenes v. Baal, 495 U.S. at 735, 110 S.Ct. at 2225. State court factual findings are entitled to this presumption absent one of eight statutory exceptions. Cantu v. Collins, 967 F.2d at 1015. [365] See also Demosthenes v. Baal, 495 U.S. at 735, 110 S.Ct. at 2225; Wainwright v. Witt, 469 U.S. at 426, 105 S.Ct. at 853; Monroe v. Collins, 951 F.2d at 51; Loyd v. Smith, 899 F.2d at 1425. [366] See Marshall v. Lonberger, 459 U.S. at 433-34, 103 S.Ct. at 850-51; Cantu v. Collins, 967 F.2d at 1015; McCoy v. Cabana, 794 F.2d at 182. [367] See Teague v. Scott, 60 F.3d at 1170; James v. Whitley, 39 F.3d at 610. [368] Sumner v. Mata, 449 U.S. at 551, 101 S.Ct. at 771. [369] See Burden v. Zant, 498 U.S. at 436-37, 111 S.Ct. at 864-65; Marshall v. Lonberger, 459 U.S. at 432-36, 103 S.Ct. at 849-52 (holding federal habeas court should not overturn state court findings of fact if findings have "fair support" in record); Monroe v. Collins, 951 F.2d at 51. "A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. A federal court may not overturn such determinations unless it concludes that they are not `fairly supported by the record.'" Demosthenes v. Baal, 495 U.S. at 735, 110 S.Ct. at 2225. State court factual findings are entitled to this presumption absent one of eight statutory exceptions. Cantu v. Collins, 967 F.2d at 1015. [370] Lawrence v. Lensing, 42 F.3d at 258; Gray v. Lynn, 6 F.3d at 268; Lowery v. Collins, 988 F.2d at 1367. [371] See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874-75. [372] See Brecht v. Abrahamson, 507 U.S. at 637, 113 S.Ct. at 1721; Woods v. Johnson, 75 F.3d at 1026 (holding to satisfy harmless error standard announced in Brecht, defendant must show more than mere reasonable possibility error contributed to verdict). [373] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at pp. 66-69. [374] 90 F.3d 945, 949-52 (5th Cir.1996). [375] Cooper v. Oklahoma, ___ U.S. ____, ____, 116 S. Ct. 1373, 1377, 134 L. Ed. 2d 498 (1996); Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321 (1993); Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903-04, 43 L. Ed. 2d 103 (1975) ("a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."); Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815 (1966); Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir.1996); Wheat v. Thigpen, 793 F.2d 621, 629 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566, 94 L. Ed. 2d 759 (1987). [376] See Godinez v. Moran, 509 U.S. at 396, 113 S.Ct. at 2685; Drope v. Missouri, 420 U.S. at 172, 95 S.Ct. at 904; Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 788, 4 L. Ed. 2d 824 (1960); Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir.1996); DeVille v. Whitley, 21 F.3d 654, 656 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 436, 130 L. Ed. 2d 348 (1994); United States v. Sparks, 2 F.3d 574, 584 (5th Cir.1993), cert. denied sub nom. Tucker v. United States, ___ U.S. ____, 114 S. Ct. 1548, 128 L. Ed. 2d 198 (1994); McCoy v. Lynaugh, 874 F.2d 954, 960 (5th Cir.1989). [377] See Drope v. Missouri, 420 U.S. at 172, 95 S.Ct. at 904; Pate v. Robinson, 383 U.S. at 384-86, 86 S.Ct. at 841-43; Wheat v. Thigpen, 793 F.2d at 629; Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir.1984), cert. denied, 471 U.S. 1126, 105 S. Ct. 2658, 86 L. Ed. 2d 274 (1985). [378] See Wheat v. Thigpen, 793 F.2d at 629; Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980). [379] See Enriquez v. Procunier, 752 F.2d at 113; Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert. denied, 444 U.S. 983, 100 S. Ct. 487, 62 L. Ed. 2d 410 (1979). [380] See Godinez v. Moran, 509 U.S. at 401 n. 13, 113 S.Ct. at 2688 n. 13; DeVille v. Whitley, 21 F.3d at 657. [381] See Washington v. Johnson, 90 F.3d 945, 950 (5th Cir.1996); Wheat v. Thigpen, 793 F.2d at 629; Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973). [382] See Petitioner's Second Amended Petition for Post-Conviction Writ of Habeas Corpus, filed June 25, 1996, docket entry no. 25, at p. 68. [383] Id. [384] In fact, the affidavit of former state district judge Phil Chavarria, Jr., filed in connection with petitioner's state habeas corpus proceeding, categorically refutes any contention the state trial judge was ever placed on notice of any information raising a question as to the petitioner's competence to stand trial. See Statement of Facts from petitioner's state habeas corpus proceeding, at pp. 226-27. [385] Petitioner has not alleged any facts showing the state trial judge who presided over the petitioner's capital murder trial was ever (1) made aware of the fact that on April 29, 1981, petitioner's state court defense counsel raised a question as to the petitioner's competence to stand trial or (2) furnished with a copy of the transcript from the April 29, 1981 hearing in state district court in Nolan County. [386] See Godinez v. Moran, 509 U.S. at 396, 113 S.Ct. at 2685; Drope v. Missouri, 420 U.S. at 172, 95 S.Ct. at 904; Dusky v. United States, 362 U.S. at 402, 80 S.Ct. at 788; Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir.1996); DeVille v. Whitley, 21 F.3d at 656; United States v. Sparks, 2 F.3d at 584; McCoy v. Lynaugh, 874 F.2d at 960. [387] See Washington v. Johnson, 90 F.3d 945, 950 (5th Cir.1996); Enriquez v. Procunier, 752 F.2d at 114; Bruce v. Estelle, 483 F.2d at 1043. [388] See Statement of Facts from the hearing held November 21, 1994, in petitioner's state habeas corpus proceeding, Testimony of Steven C. Hilbig, at pp. 33-41. [389] See Affidavit of Phil Chavarria, Jr., included among the state court papers from petitioner's state habeas corpus proceeding, at pp. 226-27. [390] See Statement of facts from petitioner's state court trial, Volume 26 of 27, Testimony of Dwight Dwayne Adanandus, at pp. 7527A-7610. The fact petitioner denied he had robbed the bank in Hurst, despite the testimony of two eyewitnesses and the introduction of a photograph taken by a bank security camera, and denied he had burglarized the McGroan residence in Amarillo in August, 1980, despite considerable circumstantial evidence of a burglary and the fact petitioner was arrested while driving a truck stolen from the McGroan residence, does not provide evidence establishing petitioner was mentally incompetent to stand trial. [391] See docket entry no. 11. [392] See United States v. Tubwell, 37 F.3d 175, 179 (5th Cir.1994). "To receive a federal evidentiary hearing, the burden is on the habeas corpus petitioner to allege facts which, if proved, would entitle him to relief." Id. (quoting Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 384 (1989); Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir.1992), cert. denied, 508 U.S. 978, 113 S. Ct. 2977, 125 L. Ed. 2d 675 (1993)). [393] See Kopycinski v. Scott, 64 F.3d 223, 225 n. 2 (5th Cir.1995); Wilcher v. Hargett, 978 F.2d 872, 877 (5th Cir.1992), cert. denied, 510 U.S. 829, 114 S. Ct. 96, 126 L. Ed. 2d 63 (1993); Wiley v. Puckett, 969 F.2d 86, 89 (5th Cir.1992); Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992) ("A federal evidentiary hearing on a constitutional claim must be held only where the state court has not provided a hearing, where the petitioner alleges facts which, if proved, would entitle him to relief, and where the record reveals a genuine factual dispute."). [394] See Wilcher v. Hargett, 978 F.2d at 877; Skillern v. Estelle, 720 F.2d 839, 850-51 (5th Cir. 1983), cert. denied, sub nom. Skillern v. Procunier, 469 U.S. 873, 105 S. Ct. 224, 83 L. Ed. 2d 153 (1984). [395] Lawrence v. Lensing, 42 F.3d 255, 259 (5th Cir.1994); United States v. Tubwell, 37 F.3d at 179; Ellis v. Lynaugh, 873 F.2d at 840. [396] See Young v. Herring, 938 F.2d 543, 561 (5th Cir.1991), cert. denied, 503 U.S. 940, 112 S. Ct. 1485, 117 L. Ed. 2d 627 (1992). [397] Mangum v. Hargett, 67 F.3d 80, 83-84 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 957, 133 L. Ed. 2d 880 (1996); Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995). [398] See Washington v. Johnson, 90 F.3d 945, 950 (5th Cir.1996); McCoy v. Cabana, 794 F.2d 177, 180 n. 1 (5th Cir.1986); Enriquez v. Procunier, 752 F.2d at 114; Bruce v. Estelle, 483 F.2d at 1043. [399] See docket entry no. 25. [400] See docket entry no. 11. [401] See docket entry no. 6. [1] See docket entry no. 33. [2] See Pub.L. No. 104-132, 110 Stat. 1214. [3] See docket entry no. 31. [4] See East v. Scott, 55 F.3d 996, 1005 (5th Cir. 1995); Mann v. Scott, 41 F.3d 968, 976 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1977, 131 L. Ed. 2d 865 (1995); Allridge v. Scott, 41 F.3d 213, 218-19 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995); Kinnamon v. Scott, 33 F.3d 462, 464-65 (5th Cir.), cert. denied, ___ U.S. ____, 115 S. Ct. 660, 130 L. Ed. 2d 595 (1994); Andrews v. Collins, 21 F.3d 612, 629 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 908, 130 L. Ed. 2d 790 (1995); Cantu v. Collins, 967 F.2d 1006, 1013 (5th Cir.1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3045, 125 L. Ed. 2d 730 (1993); Lincecum v. Collins, 958 F.2d 1271, 1275 (5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992); Montoya v. Collins, 955 F.2d 279, 285-86 (5th Cir.), cert. denied, 506 U.S. 1036, 113 S. Ct. 820, 121 L. Ed. 2d 692 (1992); Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S. Ct. 2832, 100 L. Ed. 2d 932 (1988). [5] See East v. Scott, 55 F.3d at 1005; Mann v. Scott, 41 F.3d at 976. [6] See Harris v. Johnson, 81 F.3d 535, 540 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 1863, 134 L. Ed. 2d 961 (1996); Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir.1996); Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1358, 134 L. Ed. 2d 525 (1996); Kopycinski v. Scott, 64 F.3d 223, 225 n. 2 (5th Cir.1995); Amos v. Scott, 61 F.3d 333, 346 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995); Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1257, 131 L. Ed. 2d 137 (1995); Wilcher v. Hargett, 978 F.2d 872, 877 (5th Cir.1992), cert. denied, 510 U.S. 829, 114 S. Ct. 96, 126 L. Ed. 2d 63 (1993); Wiley v. Puckett, 969 F.2d 86, 89 (5th Cir.1992); see also Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.), cert. denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992). "A federal evidentiary hearing on a constitutional claim must be held only where the state court has not provided a hearing, where the petitioner alleges facts which, if proved, would entitle him to relief, and where the record reveals a genuine factual dispute." Lincecum, 958 F.2d at 1278. [7] See West v. Johnson, 92 F.3d 1385, 1399-1400 (5th Cir.1996); Wilcher v. Hargett, 978 F.2d at 877; Skillern v. Estelle, 720 F.2d 839, 850-51 (5th Cir.1983), cert. denied, sub nom. Skillern v. Procunier, 469 U.S. 873, 105 S. Ct. 224, 83 L. Ed. 2d 153 (1984). [8] See Lawrence v. Lensing, 42 F.3d 255, 259 (5th Cir.1994); Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 384 (1989). [9] See West v. Johnson, 92 F.3d at 1399-1400 (5th Cir.1996); Mangum v. Hargett, 67 F.3d 80, 83-84 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 957, 133 L. Ed. 2d 880 (1996); Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995). [10] More specifically, petitioner argues that the state trial court repeatedly denied petitioner's motions requesting appointment of a mental health expert who could assist the petitioner's counsel in evaluating petitioner's mental health records and in cross-examining petitioner's trial counsel regarding trial counsel's tactical and strategic decisions not to present any evidence regarding petitioner's psychomotor and psychological problems at trial. [11] See West v. Johnson, 92 F.3d at 1399-1400 (5th Cir.1996); Woods v. Johnson, 75 F.3d 1017, 1034-35 (5th Cir.1996); Andrews v. Collins, 21 F.3d at 623-25. [12] See West v. Johnson, 92 F.3d at 1399-1400 (5th Cir.1996); Andrews v. Collins, 21 F.3d at 623, (holding that because trial counsel had no reason to believe that pursuing further investigation into the defendant's mental health or background would be useful, counsel's failure to pursue those investigations was reasonable). [13] See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir.1996). [14] See West v. Johnson, 92 F.3d 1385, 1408-09 (5th Cir.1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); Boyle v. Johnson, 93 F.3d 180, 187-88 & n. 14 (5th Cir.1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir.1994) (citing Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066; Andrews v. Collins, 21 F.3d 612, 623 (5th Cir.1994)) (holding that counsel acted reasonably in failing to further pursue defendant's mental capacity or background where counsel had no reason to believe that further investigation would be useful). [15] See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir.1995) ("Counsel cannot be deficient for failing to press a frivolous point."); United States v. Gibson, 55 F.3d 173, 179 (5th Cir.1995) ("Counsel is not required by the Sixth Amendment to file meritless motions."); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990) ("[C]ounsel is not required to make futile motions or objections."); Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir.1985) (holding that defense counsel is not required to investigate everyone whose name is mentioned by defendant); Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984) ("Counsel is not required to engage in the filing of futile motions."). [16] Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992), cert. denied, 510 U.S. 829, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993). [17] See West v. Johnson, 92 F.3d at 1408-09 (5th Cir.1996); Boyle v. Johnson, 93 F.3d at 187-88 (5th Cir.1996). Petitioner also argues he should have been afforded an opportunity to present evidence at an evidentiary hearing held in this Court showing that his trial counsel failed to meet adequately with petitioner prior to trial. However, as explained at length in this Court's Memorandum Opinion and Order, petitioner has alleged no facts establishing that any such failure on the part of petitioner's trial counsel "prejudiced" petitioner within the meaning of Strickland. Absent specific factual allegations showing that petitioner's trial counsel could have obtained additional exculpatory evidence or have developed additional defensive theories from further pretrial conferences with petitioner, petitioner's complaints of infrequent pretrial conferences with his counsel do not satisfy the prejudice prong of Strickland. As explained above, petitioner's trial counsel made a reasonable strategic decision not to further investigate the petitioner's mental health or to present evidence regarding same at trial. It was not ineffective for petitioner's trial counsel to have failed to anticipate the Supreme Court's decision in Penry. See West v. Johnson, 92 F.3d at 1409 n. 45, (5th Cir.1995); Woods v. Johnson, 75 F.3d at 1034-35. [18] See West v. Johnson, 92 F.3d at 1399-1400 (5th Cir.1996) (citing Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 384 (1989)). [19] See West v. Johnson, 92 F.3d at 1399 (5th Cir.1996) (quoting Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1358, 134 L. Ed. 2d 525 (1996)); Harris v. Johnson, 81 F.3d at 540. [20] See Harris v. Johnson, 81 F.3d at 540; Perillo v. Johnson, 79 F.3d at 444; Ward v. Whitley, 21 F.3d at 1367. [21] An "actual conflict" exists when an attorney represents two clients whose interests in the outcome of a matter are different. Perillo v. Johnson, 79 F.3d at 447. To establish an "actual conflict," the petitioner must specifically identify instances in the record that reflect that his counsel made a choice between possible alternative courses of action. Id. [22] See Harris v. Johnson, 81 F.3d at 540 & n. 19; East v. Scott, 55 F.3d at 1001. [23] Harris v. Johnson, 81 F.3d at 540; Perillo v. Johnson, 79 F.3d at 444; Ward v. Whitley, 21 F.3d at 1367. [24] See docket entry no. 11. [25] Petitioner did attach to his second amended federal habeas corpus petition a one-page exhibit consisting of a copy of what petitioner now represents to be a page from the campaign finance records of attorney Hilbig's successful 1990 campaign. However, petitioner made no reference to that exhibit anywhere in the discussion of petitioner's ineffective assistance claims contained in the petitioner's second amended petition. Likewise, nowhere in his second amended petition did petitioner identify the "Linda Hanan" listed on that exhibit as a member of the complainant's family or suggest any nefarious motive was connected with that contribution. [26] See East v. Scott, 55 F.3d at 1002 (holding that even if allegations are sufficient to warrant discovery under Rule 6, those same allegations might not be sufficient to warrant an evidentiary hearing thereon). [27] See Harris v. Johnson, 81 F.3d at 540; Johnson v. Scott, 68 F.3d at 112; Amos v. Scott, 61 F.3d at 346. [28] See Riggins v. Nevada, 504 U.S. 127, 133-34, 112 S. Ct. 1810, 1814-15, 118 L. Ed. 2d 479 (1992); Washington v. Harper, 494 U.S. 210, 221, 110 S. Ct. 1028, 1036, 108 L. Ed. 2d 178 (1990). [29] See Pub.L. No. 104-132, 110 Stat. 1214. [30] See Boyle v. Johnson, 93 F.3d at 188-89; Callins v. Johnson, 89 F.3d 210, 216 (5th Cir.1996). [31] See docket entry no. 33.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1707523/	540 So. 2d 749 (1989) Kenneth WILSON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. 87-1565. Supreme Court of Alabama. March 10, 1989. 750 T.J. Carnes of Carnes & Carnes, Albertville, for appellants. Randy Beard of Beard & Beard, Guntersville, for appellee. SHORES, Justice. The facts out of which this litigation arose are stipulated and are set out in Guaranty National Insurance Co. v. Marshall County Board of Education, 540 So. 2d 745 (Ala.1989). That case was concerned with liability under a general liability policy. This case arose when State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") filed an action for declaratory judgment against Marshall County Board of Education (hereinafter "the Board") and the same supervisory individuals as those involved in Guaranty National, i.e., Kenneth Wilson, Tony Simmons, James Burkes, and Dewey Drain. State Farm is the insurer on a fleet policy insuring over 100 vehicles owned by the Board. The underlying lawsuit by the personal representative of Talley Hayes, Sr., against the Board and the four individuals alleged that while Mr. Hayes was acting within the line and scope of his employment he experienced an accident and a resulting injury from which he later died. Count One alleges that Hayes was driving a mini-van that was caused to explode and that he was fatally injured as a result of the explosion. It further alleges that the defendants (the Board, Wilson, Simmons, Burkes, and Drain) had the duty to provide Hayes "a safe place to work and/or a reasonably safe work environment" and that they failed to do so, etc. Count Two is by the widow of Hayes and is based on the same theory of liability as Count One. Count Three alleges that the defendants "each expressly and/or impliedly warranted that the conditions under which the plaintiff's decedent was working were safe" and that they each "negligently, wantonly and/or willfully breached their duty by failing to provide plaintiff's decedent a safe place to work and/or a reasonably safe work environment." Hayes was driving a mini-van that was an insured vehicle under the State Farm policy. State Farm sought a judgment declaring that it had no liability to defend the underlying lawsuit or to pay any damages awarded in that lawsuit. Coverage A under the fleet policy states that State Farm will pay damages that "an insured becomes legally obligated to pay because of: a bodily injury to others...." An "insured" under coverage A is: "1. you [Marshall County Board of Education]; ". . . . 751 "4. any other person while using such a car if its use is within the scope of consent of you or your spouse; and "5. any other person or organization liable for the use of such a car by one of the above insureds." There is no coverage: "2. FOR ANY BODILY INJURY TO: ". . . . "b. ANY EMPLOYEE OF AN INSURED ARISING OUT OF HIS OR HER EMPLOYMENT." State Farm acknowledges that the Board is the named insured under 1. above; that Talley Hayes, Sr., was insured under 4. above; and that "any other person liable for the use of such a car by one of the above named Insureds" would mean that the employee-supervisors (Wilson, Simmons, Burkes, and Drain) of the "named insured" are insured under 5. above. The policy distinguishes between "named insured" and "insured." State Farm argues, however, that the exclusion set out above applies because Talley Hayes, Sr., was an employee of the named insured (the Board). He was not, however, an employee of the employee-supervisors who are also insureds under the policy. The trial court agreed with State Farm and entered judgment accordingly. The employee-supervisors appealed. We reverse and remand. The employee-supervisors insist that State Farm's reliance on this Court's holding in Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So. 2d 920 (1960), is misplaced. They argue that the facts in this case require us to follow the Court's reasoning in United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So. 2d 367 (1970), which distinguished, if it did not overrule, Michigan Mutual. In United States Fire Ins. Co., as here, an individual employee of the named insured was also an insured who was sued by two other employees of the named insured. There, as here, the insurance company argued that it was under no duty to defend or afford coverage to the individual insured defendant because, it argued, the employee exclusion applied where the plaintiffs were employees of the named insured (a corporation), although they were not employees of the individual defendant. In that case, the insurance company advanced the same argument that State Farm makes here: that an exclusion as to claims of injury made by an employee of the named insured operates to exclude a claim made against an additional insured claiming coverage under the policy if the injured party is an employee of any insured under the policy. The Court rejected that argument and said: "The term `insured' as used in coverages A and B of Policy No. CAG 18 09 67 is defined by the insurer to include any executive officer, director or stockholder of the corporation while acting within the line and scope of his duties as such. It is undisputed that McCormick, Baird and Bodiford were, on June 26, 1962, the president, vice-president and sewer foreman, respectively, of Mac's [one of two named insureds]. In the amended bill of complaint, sub-paragraph F of paragraph XIII would seem to preclude any argument to the contrary: "`F. That the alleged negligence of McCormick, Bodiford or Baird, is in their supervisory capacity as executive * * .' [Emphasis added.] ". . . . "The language used in a policy of insurance is framed by the insurer and is to be construed favorably to the insured. Colonial Life & Acc. Ins. Co. v. Shotts, 267 Ala. 525, 103 So. 2d 181." 286 Ala. at 536-37, 243 So.2d at 371-72. The Court rejected the insurance company's reliance on Michigan Mutual in the following language: "We think we have demonstrated that McCormick, as a named insured, and Baird and Bodiford, as additional insureds, are entitled to defense and coverage under the policy, unless barred by exclusion (h), which we now proceed to discuss. "Appellant argues in brief that (underscoring omitted) ` * * where a public liability policy contains an exclusion as to claims for injury made by an employee of *752 the insured, such exclusion applies as to claims made against an additional insured claiming coverage under the policy if the injured party is an employee of any person insured under such policy; and, further, that where a public liability policy contains an exclusion as to any claim for which the insured or his insurer may be held liable under workmen's compensation, such exclusion operates to exclude an additional insured as well as the named insured from coverage under the policy as to liability for injuries to an employee of the named insured.' "In support of its contention, appellant cites and relies heavily on the decision of this court in Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So. 2d 920, wherein we stated the question presented for decision as follows: "`Where an additional insured under a public liability policy negligently injures the employee of the named insured, is the additional insured prevented from claiming coverage under the policy because of a provision in the policy which excludes from coverage all injuries to an employee of the "insured"?' "In the Michigan Mutual case, supra, we refused to adopt appellant's contention that the phrase, `employee of the insured,' should be construed to mean the `employee of the insured against whom suit is being brought,' citing a number of cases in support of our position. However, there are distinguishing characteristics between that case and the case at bar; (1) that case involved a dispute between two insurance companies and the favorable presumption in favor of the insured in resolving ambiguities did not apply; and (2) there was no severability of interests clause in that case such as is present in the instant case. Also see American Fidelity and Casualty Co. v. St. Paul-Mercury Indemnity Co., 5th Cir., 248 F.2d 509. ". . . . "There is a decided split of authority among the jurisdictions which have considered the question. Some have construed the exclusion strictly against the insurer and held that an employee of an insured, other than the insured who seeks protection, is not within the language of such an exclusion. Others have held that if the injured party is an employee of any person who is insured under the policy, the exclusion is applicable, although he may not have been an employee of the person committing the tort. We need not cite the different cases, but they are cited and discussed in 50 A.L.R. 2d 78 and Later Case Service, Vol. 5, p. 82, and cases cited therein. Also see Risjord & Austin, Who is `The Insured?', 24 U. of Kansas City L.R. 65; Risjord & Austin, Standard Family Automobile Policy, 411 Ins.L.J. 199 (1957); Breen, The New Automobile Policy, 388 Ins.L.J. 328 (1955); Thomas, The New Standard Automobile Policy, Other Provisions (Declarations and Conditions), 393 Ins.L.J. 653 (1955); Risjord & Austin, `Who is "The Insured'" Revisited, 28 Ins. Counsel J. 100 (1961); Brown and Risjord, Loading and Unloading: the Conflict Between Fortuitous Adversaries, 29 Ins. Counsel J. 197 (1962)." 286 Ala. at 538-39, 243 So.2d at 373-74. We do not think that the decision in United States Fire Ins. Co. turned on the fact that the policy contained a severability of interests clause that said, "The term `the insured' is used severally and not collectively...." The addition of this clause does not eliminate the ambiguity that exists in the exclusion where there are multiple insureds and the injured party is an employee of one or some, but not all. The ambiguity in the exclusion remains, whether or not the policy contains this clause. We hold that the trial court erred in holding that State Farm had no duty to defend the Hayes lawsuit against the employee-supervisor defendants. REVERSED AND REMANDED. HORNSBY, C.J., and ADAMS, HOUSTON and KENNEDY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1720550/	676 So. 2d 557 (1996) James Billy Ray FONTENOT, et al. v. CHEVRON U.S.A. INC., Dantzler Boat and Barge Co., and Aetna Casualty and Surety Co. No. 95-C-1425. Supreme Court of Louisiana. July 2, 1996. 558 Darryl M. Phillips, New Orleans, Gainsburg, Benjamin, David, Meunier, Noriea & Warshauer, J. Michael Placer, Lafayette, for Applicant. Ben E. Clayton, New Orleans, Lefant & Associates, for Respondent. CALOGERO, Chief Justice.[] The issue in this case is whether the Louisiana Oilfield Anti-Indemnity Act, La. RS 559 9:2780, applies in determining the validity and interpretation of a waiver of subrogation clause in a worker's compensation insurance policy. Hercules Offshore Drilling Company entered into a workover contract with Chevron, USA, Inc. for "remedial well services" and the performance of drilling or workover operations on several Chevron platforms located in the Gulf of Mexico. In its contract with Chevron, Hercules agreed to provide its employees with federal Longshore and Harbor Workers' Compensation insurance and further agreed to a blanket and unrestricted waiver of its right, and consequently its insurer's right, to subrogation for reimbursement of such worker's compensation benefits as it or its insurer might be required to pay. Specifically, the Workover Contract provided: CONTRACTOR [Hercules] agrees that its Workmen's Compensation insurance policy shall be endorsed to designate OPERATOR [Chevron] as an alternate employer and as a statutory employer, and shall be endorsed to provide a blanket and unrestricted waiver of its underwriter's or insurer's rights of subrogation. (emphasis added.) Aetna Casualty and Surety Company provided a policy of worker's compensation insurance to Hercules. Responsive to the contractual obligation of Hercules, Aetna waived its right to subrogation in its contract of worker's compensation insurance with Hercules. The contract of insurance states in pertinent part: WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule.... This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. Schedule "FOR COVERAGE OBTAINED THROUGH THE LOUISIANA WORKERS COMPENSATION INSURANCE PLAN, THE COMPANY SHALL AS APPLICABLE INDICATE A PREMIUM CHARGE OF 1% OF THE TOTAL STANDARD PREMIUM SUBJECT TO A MINIMUM CHARGE OF $250, AND A MAXIMUM CHARGE OF $1,500." "ALL PERSONS OR ORGANIZATIONS THAT ARE PARTIES TO A CONTRACT THAT REQUIRES YOU TO OBTAIN THIS AGREEMENT, PROVIDED YOU EXECUTED THE CONTRACT BEFORE THE LOSS." Hence, this waiver applied to Chevron, and an increase in premium was charged by Aetna and paid by Hercules in exchange for Aetna's waiving these compensation subrogation rights. After a Hercules employee was injured in the course and scope of his employment, Aetna paid worker's compensation benefits and then intervened in the employee's state court lawsuit which raised claims of negligence and a breach of Civil Code article 2317 against Chevron and two other defendants. The employee, James Billy Ray Fontenot, settled his lawsuit, as explained further below, and then filed a motion for summary judgment against Aetna, arguing that Aetna was not entitled to reimbursement because it had waived its right of subrogation in its policy with Hercules (which, of course, it had). Aetna then filed a cross motion for summary judgment, arguing that such a waiver of subrogation was prohibited, and unenforceable under the Anti-Indemnity Act, La. RS 9:2780.[1] In response, the employee argued that federal maritime law, which allowed indemnity and waiver of subrogation clauses, was alone applicable and it superseded Louisiana's Anti-Indemnity Act. Hence, 560 the waiver of subrogation provision was valid and Aetna's recovery barred. The trial court granted Aetna's cross motion for summary judgment, determining that Aetna was entitled to receive the full amount of its intervention, and to be reimbursed for the monies paid in worker's compensation benefits, presumably based upon a legal conclusion that Aetna's waiver of subrogation was invalid because of Louisiana's Anti-Indemnity Act. The Court of Appeal affirmed. The record does not reflect a judgment on the employee's motion for summary judgment filed against Aetna, although by implication it has surely been denied. We granted writs to consider the applicability of Louisiana's Anti-Indemnity Act in these circumstances. After reviewing the record and the pertinent law, we conclude that Aetna's waiver of subrogation of its claim for reimbursement of worker's compensation benefits paid to plaintiff is enforceable because Louisiana's Anti-Indemnity Act does not apply in this situation. James Billy Ray Fontenot, an employee of Hercules, was assigned as a crane operator to Chevron South Pass 62A Platform, a fixed or stationary oil platform located in South Pass 62 A off Venice, Louisiana. On July 31, 1989, Chevron was forced to evacuate the platform because of an approaching hurricane. The majority of employees were evacuated by helicopter, or by use of a personnel basket which was used to transfer employees from the platform to the M/V BIG CHIP, a transport vessel allegedly owned pro hac vice, operated, chartered, managed and/or controlled by Dantzler Boat and Barge Co.[2] Fontenot operated the crane which transferred the personnel basket from the platform to the waiting vessel. The vessel was brought alongside the platform but was not moored or anchored. As there was no one available to work the crane when it was Fontenot's turn to evacuate the platform, he was instructed to board the M/V BIG CHIP by swinging on a rope from the platform to the vessel. Because of the rough seas, his first swing rope transfer attempt failed, and he was forced to swing back to the platform. He then made a second attempt and fell to the deck of the vessel, injuring his back, hip and other parts of his body. His injuries later required surgery. Fontenot and his wife, individually and on behalf of their two children, filed suit against Chevron as owner of the platform, Dantzler as owner and operator of the vessel M/V BIG CHIP, and a Chevron representative (who was later dismissed). Suit was brought pursuant to the provisions of the "savings to suitors" clause, 28 U.S.C. § 1333(1), which allowed Fontenot to bring his claims in state court. Fontenot and his family alleged that defendants were negligent in forcing him to evacuate the platform by swing rope transfer onto an unmoored vessel in rough seas. Mrs. Fontenot and the two children filed loss of consortium claims. Chevron filed a cross claim against Dantzler. Aetna intervened, seeking subrogation for medical and wage compensation benefits it had paid to Fontenot as Hercules' worker's compensation insurer.[3] As earlier indicated, prior to trial Fontenot settled his claim against Chevron and Dantzler for $437,500 without the participation or consent of Aetna. Cross-motions for summary judgment were filed by plaintiff Fontenot and intervenor Aetna on the issue of whether Aetna was 561 entitled to subrogation and reimbursement of the compensation payments made to Fontenot out of the proceeds received by Fontenot in settlement of his claims against Chevron and Dantzler, notwithstanding the waiver of subrogation in Aetna's insurance contract with Hercules. The trial court granted Aetna's motion for summary judgment and the Court of Appeal affirmed. Fontenot, Chevron and Dantzler appealed. In affirming the trial court, the Court of Appeal rejected appellants' argument that this case was governed by 33 U.S.C. Section 905(c), a federal statute which provides for suits by certain persons allegedly injured by the "negligence of a vessel" and which specifically sanctions the enforcement of indemnity provisions.[4] The Court of Appeal noted that this statute refers only to indemnity agreements which exist between the employer and a vessel, and in this case, there is no evidence of any indemnity agreement between the employer, Hercules, and the operator of the vessel, Dantzler. Thus, the Court of Appeal concluded that even if 33 U.S.C. Sec. 905(c) is inconsistent with Louisiana's Anti-Indemnity Act as appellants argue (because it expressly authorizes the type of indemnity agreements which Louisiana's Anti-Indemnity Act prohibits), it does not displace or supersede the state statute because it does not apply under the facts of this case.[5] The appellate court then turned to La. RS 9:2780(B) of Louisiana's Anti-Indemnity Act, which invalidates certain indemnity agreements, and concluded that the statute would make any waiver of subrogation by Aetna unenforceable. The Court of Appeal further held that even if the waiver of subrogation against Chevron were valid, the result would be the same because appellants cannot show a waiver of subrogation in favor of co-defendant Dantzler. So Aetna would still be entitled to seek recovery on its subrogated claim against Dantzler. Thus, the Court of Appeal affirmed the trial court's granting Aetna's motion for summary judgment. One member of the Court of Appeal panel dissented.[6] 562 Fontenot, Chevron and Dantzler applied for writs in this Court, assigning as errors the appellate court's failure to invoke federal maritime law to a claim cognizable in admiralty, its purportedly erroneous conclusion that under Herb's Welding, Inc. v. Gray, 470 U.S. 414, 105 S. Ct. 1421, 84 L. Ed. 2d 406 (1985), a workover contract is a non-maritime contract, and its finding that the workover contract was subject to Louisiana's Anti-Indemnity Act, a finding which is allegedly inconsistent with prior jurisprudence and interferes with the uniformity of federal maritime law. Appellants invite us to frame the issue in this case as whether federal maritime or state law applies, proposing that the workover contract is maritime in nature and thus that federal maritime law, which sanctions the enforcement of indemnification clauses, applies in this case and displaces Louisiana's Anti-Indemnity Act. We do not agree that this is the proper approach. We will begin, instead, with an examination of whether the Anti-Indemnity Act is applicable in the factual situation before us. If it is applicable, it is only at that point that a consideration of the maritime or non-maritime nature of the contract is necessary. If the Anti-Indemnity Act is not applicable, we need proceed no farther. It is important to keep certain principles of judicial interpretation of statutes in mind when we consider the applicability of the Anti-Indemnity Act to this case. As we stated in Touchard v. Williams, 617 So. 2d 885, 888 (La.1993), the paramount consideration for statutory interpretation is the ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. However, "[w]hen the literal construction of a statute produces absurd or unreasonable results `the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.'" Green v. Louisiana Underwriters Insurance Co., 571 So. 2d 610, 613 (La.1990). La. Civil Code art. 9 instructs that a clear and unambiguous law shall be applied as written "when its application does not lead to absurd consequences." Our task, then, is to interpret the Anti-Indemnity Act in accordance with the intent of the legislature, keeping in mind the spirit of the law and the avoidance of an absurd or unreasonable result. We turn then to an examination of Louisiana's Anti-Indemnity Act. As explained by commentators, [E]nacted at a time when offshore competition was fast and fierce, that Act sought to remedy the perceived inequity foisted upon certain contractors by agreements which purported to grant indemnification to the oil companies for their own negligence or strict liability. [fn omitted] This legislation was prompted by service companies who feared that unless they absorbed the costs of the oil companies' liabilities, they would be excluded from the oilfield market. Panagiotis, Offshore UpdateFive Years After Passage: Contractual Indemnity, Defense and Insurance under the Louisiana Oilfield Indemnity Act, 10 Maritime Lawyer 203, 204 (1985). The Act itself is very clear in its statement of purpose found at La. RS 9:2780(A): A. The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee. 563 As we stated in Rodrigue v. Legros, 563 So. 2d 248, 254 (La.1990), the "purpose of the legislature [sic], and thus the policy interest of the state, is to protect certain contractors, namely those in oilfields, from being forced through indemnity provisions to bear the risk of their principals' negligence.... This is an exception to general Louisiana contract law that allows a principal to be indemnified against his own negligence so long as that intent is clearly expressed." Thus, it is clear that Louisiana's Anti-Indemnity Act arose out of a concern about the unequal bargaining power of oil companies and contractors and was an attempt to avoid adhesionary contracts under which contractors would have no choice but to agree to indemnify the oil company, lest they risk losing the contract. It is also clear from the specific language of this Subsection A that the Anti-Indemnity Act was designed not only to protect oilfield contractors but also their employees. Subsection B of La. RS 9:2780 incorporates the purpose of the legislation, providing: Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indemnitee. (emphasis added.) In Meloy v. Conoco, Inc., 504 So. 2d 833, 838 (La.1987), we confirmed that such agreements are voided only to the extent that they purport to require indemnification and/or defense where there is negligence or fault on the part of the indemnitee; otherwise, they are enforceable just as any other legal covenant.[7] Other provisions of Louisiana's Anti-Indemnity Act expound on Subsection B's prohibitions. Subsection G specifically addresses waiver of subrogation and additional named insured endorsements: G. Any provision in any agreement arising out of the operations, services, or activities listed in Subsection C of this Section of the Louisiana Revised Statutes of 1950 which requires waivers of subrogation, additional named insured endorsements, or any other form of insurance protection which would frustrate or circumvent the prohibitions of this Section, shall be null and void and of no force and effect. In discussing this prohibition on waivers of subrogation, one commentator noted that the prohibition should directly benefit the injured employee because "[p]resumably, under this new law, the employer will invoke his subrogation rights, thereby placing himself 564 side by side with his injured worker in trying to recover from the third party tortfeasor." Preis, Broussard, The Louisiana Oilfield Indemnity Act of 1981, 29 La.Bar.J. 179, 180 (1981). To determine the applicability of Louisiana's Anti-Indemnity Act, courts have engaged in a two-step test. See Transcontinental Gas v. Transportation Ins. Co., 953 F.2d 985, 991 (5th Cir.1992). First, there must be an agreement that "pertains to" an oil, gas or water well. Second, the agreement must be related to exploration, development, production, or transportation of oil, gas, or water. The workover contract, which the contracting parties describe as "a contract for remedial well services," passes these two tests. Subsection I of the Act broadens its coverage to "certain provisions contained in, collateral to or affecting agreements ..." covered by the Act. Hence, the insurance contract which is ancillary to the workover contract also satisfies these requirements for the Act's applicability.[8] Therefore, we need to examine specifically whether the waiver of subrogation clause contained in the insurance contract falls within the scope of the Act, and if so, whether invalidation of such waiver promotes the purposes of the Anti-Indemnity Act. We first examine Subsection B of the Act (quoted earlier in this opinion). On its face, Subsection B addresses only provisions which purport to or which do provide for "defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons" caused by negligence or fault of the indemnitee. The waiver of subrogation clause in the insurance contract at issue does not fall within these prohibitions because it does not require indemnification or the shifting of liability from the tortfeasor to another party. Rather, the waiver of subrogation clause only prohibits the worker's compensation insurer from asserting any claims it may have for reimbursement of monies paid in compensation benefits. Subsection G of the Anti-Indemnity Act specifically addresses waivers of subrogation, stating that any provision "which requires waivers of subrogation, additional named insured endorsements, or any other form of insurance protection which would frustrate or circumvent the prohibitions of this Section (emphasis added)" are null and void and of no force and effect. At first glance, this provision may appear to answer the question raised in this case and invalidate Aetna's waiver of subrogation clause. However, upon closer examination of the purpose of Subsection G and the Anti-Indemnity Act in its entirety, we reach a different conclusion. Although the insurance contract does contain a waiver of subrogation which violates Subsection G, in this case the waiver does not frustrate or circumvent the prohibitions of the Act. First, the Act's prohibition of a waiver of subrogation clause only benefits the oil company, or indemnitee, when it is applied in conjunction with an indemnification clause, which is not the case at bar. As explained by a commentator, Subsection G of the Act is aimed toward preventing the use of insurance contracts to circumvent the Act. [fn omitted] In the past, oilfield service companies were required to have their insurers waive their subrogation rights against the oil companies. This waiver of subrogation, acting in conjunction with the indemnity provisions of standard drilling contracts, resulted not only in the loss of compensation payments made by the service company's insurer, but also in the service company picking up the tab for both the cost of defense and the amount of damage obtained from the oil company. Instead of being liable for either tort damages or workers compensation, the service company was liable for both. (emphasis added). Panagiotis, supra at 247. The indemnification clause and the waiver of subrogation clause, when used together, fit 565 hand in glove. They offer two distinct advantages to an oil company contracting with an oilfield service contractor. The indemnification clause allows the oil company to shift liability to the oilfield service contractor. The waiver of subrogation supplements this shifting of liability by assuring that the oil company will not be exposed to an action for reimbursement of compensation payments. When the waiver of subrogation clause is used alone, there is no shifting of liability to "supplement". And by itself, a waiver of subrogation clause does not shift the oil company's liability. This shift of liability only occurs when the two clauses are used together. Thus, voiding a waiver of subrogation clause only achieves the purpose of the Anti-Indemnity Act when such a clause is sought to be enforced in conjunction with the enforcement of an indemnification clause. Second, under the facts of this case, the waiver of subrogation does not "frustrate or circumvent the prohibitions" of the Act, as Subsection G requires. In this case, we are considering the validity of a waiver of subrogation clause standing alone and not such a clause used together with an indemnification clause in an attempt to shift tort liability from the tortfeasor oil company to the employer. Does it make sense to void a waiver of subrogation clause where there is no indemnification clause sought to be enforced or where the oil company is not found to be negligent or strictly liable? We think not. The whole purpose of inclusion of the prohibition of waivers of subrogation in the Anti-Indemnity Act is to prevent use of insurance contracts to frustrate or circumvent the Act. Panagiotis, supra at 247. Where a waiver of subrogation clause does not shift liability from a tortfeasor oil company back to the oilfield service contractor, the purposes of the Act are certainly not frustrated or circumvented. In this case, not only does Chevron not seek to enforce the indemnification clause, but it has also not been adjudicated at fault (because it did not admit fault or liability, plaintiff's recovery being by way of compromise) and thus would not be liable in any way whatsoever for the payment of the employee's damages or reimbursement to the employer or his insurer for the employee's worker's compensation benefits. Thus, the waiver of subrogation does not act to shift any liability on the part of the oil company back to the oilfield service contractor employer, and therefore, the waiver of subrogation does not frustrate or circumvent the prohibitions of the Act. In addition to Subsection B and Subsection G of the Act, Subsection I also delineates what is covered by the Act, referring to provisions "contained in, collateral to or affecting agreements" in connection with oil and gas activities "which are designed to provide indemnity to the indemnitee for all work performed between the indemnitor and the indemnitee in the future". While arguably this paragraph may sweep insurance contracts into the scope of the Act, such a sweep is limited to activities "which are designed to provide indemnity to the indemnitee". Hence, Subsection I does not specifically include waivers of subrogation in the Act's prohibitions. We therefore conclude that nothing on the face of the Anti-Indemnity Act requires us to invalidate the waiver of subrogation clause contained in the insurance contract between Aetna and Hercules. Our conclusion is further bolstered by a consideration of the purpose of the Anti-Indemnity Act. Does application of Louisiana's Anti-Indemnity Act to the insurance contract between Hercules and Aetna foster the purposes of the Act? We think not. If bargaining inequities existed between Hercules and Chevron which gave rise to inclusion of the indemnity provision and the waiver of Hercules' and its insurer's subrogation rights in the workover contract, applying Louisiana's Anti-Indemnity Act to the insurance contract in this case will have no effect on these inequities. Applying Louisiana's Anti-Indemnity Act to the insurance contract will not nullify the indemnity clause in the workover contract between Hercules and Chevron, and thus will not accomplish the stated purpose of the Act. Such application would only allow Aetna to escape from a contractual obligation which it voluntarily undertook in exchange for an increased premium. Such an interpretation of the statute 566 would lead to an absurd and unreasonable result that favors Aetna, the insurance company which was compensated for the waiver it now seeks to avoid, over Fontenot, the employee who the Anti-Indemnity Act was specifically designed to protect. While it may be true that the indemnity clause and the required waiver of subrogation in the workover contract are invalid vis a vis Hercules and Chevron, that is of no moment here for several reasons. First, we are not concerned today with the workover contract but rather we are only addressing the insurance contract between Aetna and Hercules. Second, Hercules was the party which undertook the obligations of indemnification and waiver of subrogation in the workover contract, but Hercules is not before us at this time asking for any relief. Third, the party which is asking for relief, Aetna, was not a party to the workover contract, and fourth, Aetna received compensation for waiving its subrogation rights. The Act's purposes are not served by giving the benefit of the waiver of subrogation to Aetna which was paid for its waiver. Our conclusion might be otherwise if we were considering Hercules' request for relief from any of the obligations it undertook in the workover contract because of the statutory invalidity of these obligations. In response to an argument that invalidation of the waiver may discourage oil companies in the future from requiring such a waiver, we note that the merit of such a position must be balanced against the fact that Aetna has been paid for its waiver of subrogation. Hercules' purchase of this waiver from Aetna created a benefit for the employee, notwithstanding that this might not have been Hercules' principal motivation in purchasing the waiver. In the process of acquiring the waiver, Hercules provided a collateral source, facilitating double recovery (since the employee will not be required to return the worker's compensation benefits he received and will have received his tort recovery from the third party tortfeasor). Under Civil Code arts. 1978-1981, Fontenot is a third party beneficiary of the agreement between Hercules and Aetna for Aetna to waive its subrogation rights. Fontenot clearly manifested an intent to avail himself of the benefit of this waiver. Thus, the stipulation cannot be revoked without the consent of Fontenot. Furthermore, it is the employee who would be damaged by striking the waiver of subrogation, contrary to the statute's stated purpose of protecting the employee. Chevron, which has settled its exposure by payment, will not be required to pay one cent more to the employee or any other party if the waiver is invalidated. Moreover, and most importantly, there was no inequality in bargaining power between Hercules and Aetna, unlike the historical inequality in bargaining power between oil companies and oilfield contractors which Louisiana's Anti-Indemnity Act sought to rectify. In fact, unlike the prohibited indemnity clauses in contracts between oil companies and contractors, in this contract Aetna bargained for and received a benefit in exchange for its waiver of subrogation. That benefit was an increased insurance premium. Aetna received payment for its waiver of its subrogation rights, unlike the adhesionary contracts between oil companies and contractors in which the contractors presumably receive no special compensation for agreeing to an indemnity requirement. On balance, any limited purpose served by invalidation of the waiver in this case is far outweighed by the damage caused by exonerating the insurance company which seeks to avoid an obligation for which it has been paid. Further, invalidation of the waiver will lead to the absurd result of allowing Aetna to be unjustly enriched at the expense of Hercules, which paid for the waiver, and Fontenot, the employee who the Act was designed to protect and who is a third party beneficiary of the waiver. Under the circumstances before us today (where Aetna received a premium in exchange for the waiver of subrogation, where oil company Chevron is not seeking to enforce the indemnification clause, where Chevron has paid monies to the employee in settlement, and where Chevron has not been found at fault), we believe the purposes of the Anti-Indemnity Act and Louisiana's public policy as expressed in the Act 567 are not offended by upholding the waiver of subrogation. The circumstances before us today simply do not evidence the evils which Louisiana's Anti-Indemnity Act was designed to eradicate. We also note that plaintiff settled his claims against Chevron and Dantzler. According to Aetna's brief, the settlement totalled $437,500, of which Chevron paid $237,500 and Dantzler paid $200,000. Chevron agreed to pay this amount in settlement rather than attempt to enforce the indemnification clause against Hercules. Evidently, Chevron was motivated to settle, at least in part, by the Anti-Indemnity Act's prohibiting the indemnity clause which it used in its contract with Hercules. Thus, the purpose of the Act has been satisfied by Chevron's settling while foregoing its contractual indemnity which, if enforced, would have allowed it to shift its liability to the employer. And, of course, there has been no determination that Chevron, the contractual indemnitee, was at fault. Under these circumstances, what purpose does it serve to allow Aetna to collect half of plaintiff's tort recovery? Allowing Aetna to recover in this case only allows Aetna to escape its contractual obligation to waive its rights of subrogation in spite of the fact that it collected premiums in compensation for the waiver. In sum, we conclude that Louisiana's Anti-Indemnity Act does not apply to the waiver of subrogation contained in the insurance contract between Hercules and Aetna. What is involved here is simply Aetna's attempt to seize almost one-half of plaintiff's tort recovery, notwithstanding its earlier waiver of such right, upon the strength of a provision in a statute enacted to protect oilfield contractors, and where application of Louisiana's Anti-Indemnity Act to void the waiver of subrogation would do nothing to accomplish the purpose of the Act or to address the evils the Act was designed to cure. Further, granting Aetna such relief, especially when it has been compensated in exchange for waiving its subrogation rights, does nothing to correct the inequities foisted upon Hercules at the outset when it was forced to agree to indemnify Chevron, and waive, as well as have its insurer waive, its rights to subrogation. Aetna cannot have it both ways. It cannot be compensated to waive a right and then claim that the waiver is prohibited by law. Invalidating the waiver will not promote the purposes of Louisiana's Anti-Indemnity Act, yet it might very well do damage to basic concepts of contract law (agreement for payment in exchange for the waiver, normally a valid contractual provision). Thus, we conclude that the waiver of subrogation in the contract of worker's compensation insurance between Aetna and Hercules, which benefitted the employee Fontenot, is valid. Aetna argues in the alternative that even if its waiver of subrogation is valid regarding claims against Chevron, there is in the record no established waiver of subrogation claims against Dantzler Boat and Barge Co. Thus, Aetna argues it did not waive any claims for reimbursement against Dantzler, presumably because Dantzler was not specifically included in the "Schedule" listed in the waiver in the insurance contract. We agree with the Court of Appeal dissent that resolution of this argument at this stage is premature. Summary judgment is improper on this issue because it is not evident from this record that a contract exists between Hercules and Dantzler under which Dantzler would require Hercules to include Dantzler in Hercules' worker's compensation policy and under which Dantzler would become a party listed in the "Schedule" in the worker's compensation insurance policy against whom Aetna's subrogation rights had been waived. This is an unresolved issue of material fact, and the matter is accordingly remanded to the trial court for further proceedings consistent with this opinion. DECREE For the foregoing reasons, we reverse the decision of the court of appeal, reverse the trial court's granting of Aetna's summary judgment, and remand this matter to the trial court for further proceedings consistent with this opinion. REVERSED, REMANDED TO THE DISTRICT COURT. 568 LEMMON, J., concurs and assigns reasons. JOHNSON, J., additionally concurs for the purpose of expressing that she would have appellants prevail for in her opinion maritime law, rather than state law, applies in this case. KIMBALL, J., concurs in result and assigns reasons. VICTORY, J., dissents and assigns reasons. LEMMON, Justice, concurring. Chevron's requiring Hercules to waive, in the workover contract, Hercules' right to subrogation for payment of worker's compensation benefits frustrated the prohibitions of the Louisiana Oilfield Indemnity Act and clearly violated La.Rev.Stat. 9:2780G. Accordingly, if this action had gone to trial on the merits of plaintiff's claim, Hercules could have pleaded Chevron's violation of the Act to overcome any objection by Chevron to the assertion of a subrogation claim by Hercules or Hercules' insurer. However, Hercules, the party to the workover contract whom the Act was intended to protect, is not a party to this action and has not in any way raised the issue of Chevron's violation of the Act in the workover contract with Hercules. Rather, it is Hercules' insurer (Aetna) who, although not a party to the workover contract, attempts to assert the illegality of the subrogation waiver, required by the workover contract, as a basis for enforcing Hercules' subrogation right that Hercules had paid to Aetna to waive. Aetna's claim for subrogation, asserted by intervention in plaintiff's action against Chevron, should be denied on a combination no right of action/estoppel defense. Aetna had no real and actual interest under La.Code Civ.Proc. art. 681 in intervening in plaintiff's action to assert the subrogation right it had charged plaintiff's employer an additional premium to waive.[1] Only Hercules, the party coerced by Chevron into executing the illegal waiver of subrogation provision in the workover contract, had a real and actual interest in asserting that illegality as a bar to Chevron's enforcement of the waiver. Moreover, since Aetna accepted a premium from Hercules for its contract to pay Hercules' compensation obligation to plaintiff as well as for its waiver of the subrogation right it would have otherwise received for paying such compensation, Aetna is estopped from repudiating its waiver under the insurance contract whose validity is not in dispute. KIMBALL, Justice, concurring in result only. The validity of the waiver of subrogation clause contained in the Aetna policy issued to Hercules is, at least initially, dependent upon the resolution of the issue presented to this Court (but not squarely addressed in the majority opinion), i.e., "does federal maritime law apply to Aetna's claim for subrogation?" In my view, under the particular facts of this case, it does. Though Fontenot was on the Chevron platform and, prior to his accident, performing workover activities pursuant to a workover contract between Chevron and Hercules which might, for many other purposes and in many other circumstances be characterized as a "non-maritime" contract, at the time Fontenot was injured he was evacuating the Chevron platform by swinging over the side of the platform on a rope to a vessel. In the course of utilizing this method of evacuating the platform, Fontenot fell from the rope to the deck of the Dantzler vessel, sustaining injuries in the fall. Fontenot's activities at the time of his accident satisfy both the situs (on navigable waters) and the status (maritime 569 nexus requirement) tests for claims cognizable in admiralty, as Fontenot was swinging from a rope over the Gulf of Mexico attempting to board an unmoored, unanchored vessel during evacuation of a platform due to an approaching hurricane. See Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 894-98 (5th Cir.1994). Recognizing as much, Hercules, through its Longshore and Harbor Workers Compensation Act insurer, Aetna, voluntarily paid benefits and medical expenses to Fontenot for his injuries. Fontenot, as he had a right to do under the Longshore and Harbor Worker's Compensation Act, then sued Chevron, the platform owner and charterer of the vessel, and Dantzler, the vessel owner, under general maritime law for negligence. In this regard, Fontenot's claim against Chevron, pro hac vice, was a general maritime negligence action against a time-charterer for its negligent land-based decision to evacuate the platform by waterborne vessel during obviously rough weather conditions, a claim which is clearly cognizable in admiralty. Id. at 898-900. Aetna, asserting its non-statutory subrogation claim for recovery of benefits paid, intervened in Fontenot's suit against Chevron and Dantzler, and Fontenot's claim against Chevron and Dantzler was later compromised without notice to or consent by Aetna, in violation of 33 U.S.C. 933(g). In my view, the primary error of the majority opinion's analysis, as well as the primary error of the lower courts' analyses in this case, is the focus on the contract of insurance between Aetna and Hercules, which contains the waiver of Aetna's right of subrogation. Aetna's asserted right of subrogation is not contractual; it is a non-statutory federal maritime law claim which Aetna waived in its contract of insurance with Hercules. Fontenot sued Chevron and Dantzler for negligence under general maritime law, i.e., Fontenot asserted a federal maritime claim of negligence against Chevron and Dantzler. Aetna asserted its federal non-statutory right of subrogation and indemnification to recover benefits it had paid on behalf of Hercules to Fontenot under the Longshore and Harbor Worker's Compensation Act, a federal Act. See Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 538, 103 S. Ct. 1991, 1996, 76 L. Ed. 2d 120 (1983) ("[E]ven without a statutory assignment of the longshoreman's claims, an employer can seek indemnification from negligent third parties for payments it has made to the longshoreman."); Francis J. Gorman, Indemnity and Contribution Under Maritime Law, 55 Tul.L.Rev. 1165 (1981) (explaining the differences between contractual and restitution based indemnification claims). As such, Aetna intervened in a suit brought under federal maritime law to assert a federal non-statutory claim for indemnification of benefits it had paid pursuant to a policy issued to cover its insured's liability under a federal Act. "There is admiralty jurisdiction over claims for contribution and indemnity if jurisdiction exists over the underlying cause of action. If there is admiralty jurisdiction, the substantive and legal rights of the parties are determined by federal maritime law, not state law." Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-18 (2d ed. 1994). Both Fontenot's claim's against Chevron and Dantzler as well as Aetna's claimed right of subrogation are based on and governed by federal law. Therefore, under the particular facts of this case, it matters not that Aetna's waiver of its federal right of subrogation occurred in the context of a contract which might be construed to be non-maritime in some other situation, e.g., if Fontenot had been injured while performing workover activities on the platform, the Chevron workover contract with Hercules as well as the Aetna contract of insurance with Hercules might well be considered non-maritime. See Herb's Welding, Inc. v. Gray, 470 U.S. 414, 105 S. Ct. 1421, 84 L. Ed. 2d 406 (1985). However, that is not what happened in this case. Instead, Fontenot was injured on navigable waters beyond Louisiana's territorial limits while performing a traditional maritime activity, boarding a vessel. Federal maritime law therefore governs, and the nature of the document in which Aetna waived this claim as well as the law which governs the interpretation of that document under some other factual setting is simply of no import in the instant case. There is therefore no need, as the majority does in the instant case, to determine the effect of the Louisiana Oilfield Anti-Indemnity Act on 570 such a waiver as the Anti-Indemnity Act has no application in this case: the case, including Aetna's ability to assert its right of subrogation as well as Aetna's waiver of that right of subrogation, is governed by federal maritime law. Furthermore, even if the majority were correct in this case in its determination that federal maritime law does not govern Aetna's claim for subrogation and, instead, Louisiana law applies, I cannot agree with the majority's interpretation of the Louisiana Oilfield Anti-Indemnity Act's provisions against indemnification agreements of the sort contained in the workover contract and the Aetna policy. As the majority acknowledges, ante at 564, the Act explicitly covers insurance contracts collateral to or affecting agreements pertaining to a well for oil or gas. See La.R.S. 9:2780(B), (C), (D), and (G). The Aetna policy at issue herein is clearly collateral to and pertains to the Hercules workover contract with Chevron. As such, if federal maritime law does not apply in this case, the Louisiana Oilfield Anti-Indemnity Act specifically invalidates the waiver of subrogation clause contained in the Aetna policy. The majority, though acknowledging "the insurance contract does contain a waiver of subrogation which violates Subsection G," ante at 564, nevertheless decides that "in this case the waiver does not frustrate or circumvent the prohibitions of the Act." Id. This analysis is both a non-sequitur and incorrect as a matter of fact. Contrary to the majority's assertion that "[t]he waiver of subrogation clause in the insurance contract at issue does not fall within these prohibitions because it does not require indemnification or the shifting of liability from the tortfeasor to another party," ante at 564, the waiver of subrogation clause at issue specifically requires a shifting of liability from Chevron, the tortfeasor, to Aetna, the compensation carrier subrogated to Hercules', its insured's, rights. By requiring Hercules to cause its insurer to waive its right of subrogation in exchange for an increased premium, which Hercules, of course, had to pay, Chevron has effectively avoided liability at the expense of its subcontractor, Hercules. This is exactly what the Louisiana Oilfield Anti-Indemnity Act was designed to prevent. In my view, the majority's analysis of the pertinent provisions of the Louisiana Oilfield Anti-Indemnity Act will henceforth allow oil companies to circumvent the prohibitions contained in the Act by simply requiring their contractors to provide them with the same indemnification agreements prohibited in the Act through insurance agreements procured by the contractor at the contractor's expense. As this is the exact evil the legislature sought to remedy when it made the provisions of the Act applicable to insurance agreements collateral to or pertaining to agreements concerning oilfield work, I cannot agree with the majority's analysis of the Act. For the reasons stated herein, I would hold that Aetna's claim for subrogation is governed by federal maritime law, which allows both Aetna's claim and the waiver of such a claim. As Aetna has waived its right of subrogation, it may not now assert that same right in these proceedings. VICTORY, Justice, dissenting. I respectfully dissent. The majority's opinion guts an important provision of the Louisiana Oilfield Anti-Indemnity Act, La. R.S. 9:2780(G), which clearly and unambiguously declares a waiver of subrogation like this "null and void and of no force and effect." As a result the plaintiff gets a "double recovery." There is no requirement in the law that Hercules seek to nullify the waiver for it to be null and void. Nothing in the statute suggests that Aetna may not claim nullity because it was paid for the waiver. (I assume any insurer would require a higher premium for giving up its right to subrogate). Further, Aetna's waiver clearly provides it will not "operate directly or indirectly to benefit anyone not named in the schedule." Fontenot was not named in the schedule. Thus, presumably, Aetna received a premium for waiving subrogation only against Chevron, not Fontenot. If the waiver were declared null and void, Hercules might be entitled 571 to a refund of the additional premium charged for the waiver. NOTES [] Because of the vacancy created by the resignation of Dennis, J., now a judge on the United States Court of Appeals for the Fifth Circuit, there was no justice designated "not on panel" under Rule IV, Part II, § 3. Panel included Chief Justice Calogero and Justices Marcus, Watson, Lemmon, Kimball, Johnson and Victory. [1] As will be explained further below, La. RS 9:2780, the Louisiana Anti-Indemnity Act, was enacted to alleviate inequities between oil companies and oilfield contractors. The Act invalidates certain agreements between oil companies and oilfield contractors which require indemnity or defense for death or bodily injury in certain circumstances. [2] In Fontenot's Petition for Damages, he alleges that "[t]he MV-BIG CHIP was, owned pro hoc [sic] vice, operated, chartered, managed, leased and/or controlled by defendant, Dantzler Boat and Barge Co." Par. 13. Fontenot also alleges, "[i]n the alternative, the MV-BIG CHIP was owned pro hoc [sic] vice, operated, chartered, managed, leased and/or controlled by defendant Chevron U.S.A., Inc." Par. 14. An "owner pro hac vice" is one who assumes by charter or otherwise exclusive possession, control, command, and navigation of a vessel for a specific period of time; owner pro hac vice has complete, though perhaps only temporary, dominion over vessel entrusted to him. Hae Woo Youn v. Maritime Overseas Corp., 605 So. 2d 187 (La.App. 5th Cir.1992). [3] The Petition of Intervention does not state a specific amount claimed for reimbursement. In its motion for summary judgment, Aetna claims the right to recover $145,802.05. Correspondence in the record indicates that the amount claimed in reimbursement was $139,589.31. The trial court entered judgment granting Aetna's motion for summary judgment entitling Aetna "to receive the full amount of their intervention or $139,589.31." [4] 33 U.S.C. Section 905(c) provides in pertinent part: In the event that the negligence of a vessel causes injury to a person entitled to receive benefits under the Act by virtue of section 4 of the Outer Continental Shelf Lands Act, (43 U.S.C. 1333), then such person or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel in accordance with the provisions of subsection (b) of this section. Nothing contained in subsection (b) of this section shall preclude the enforcement according to its terms of any reciprocal indemnity provision whereby the employer of a person entitled to receive benefits under this Act by virtue of section 4 of the Outer Continental Shelf Lands Act (43 U.S.C. 1333) and the vessel agree to defend and indemnify the other for cost of defense and loss or liability resulting from death or bodily injury to their employees. [5] A recent United States Fifth Circuit decision supports this conclusion. In Wagner v. McDermott, Inc., 79 F.3d 20 (5th Cir.1996), a welder was injured when he slipped and fell aboard a barge owned by the contractor engaged in the construction of an offshore platform. The contractor filed a third-party claim against the subcontractor for indemnity. The Court affirmed the district court's conclusion that the contract was not maritime in nature and further affirmed the dismissal of the contractor's claim for indemnity under 33 U.S.C. Section 905(c) of the Longshoremen and Harbor Workers' Compensation Act, finding that this provision only applied to claims by covered workers brought against a negligent vessel. The Fifth Circuit instructed that 33 U.S.C. Section 905(c) only applies where the contracting entity is entering into the contract in its capacity as the vessel, not as a party who incidentally utilizes a vessel in other operations. In the case at bar, there is no "vessel" that is party to the workover or insurance contracts, nor did Chevron enter into the workover contract in the capacity of a vessel. [6] Aetna had argued that under Herb's Welding, Inc. v. Gray, 470 U.S. 414, 105 S. Ct. 1421, 84 L. Ed. 2d 406 (1985), oil and gas exploration is not maritime commerce and thus the workover contract here is non-maritime and not subject to maritime law. The majority agreed. However, the dissenting judge disagreed, pointing out that the issue in Herb's Welding was not whether oil and gas exploration constitutes maritime commerce for all purposes, but rather, whether operations coincident with oil and gas exploration constituted maritime "employment," an issue he believed to be irrelevant to resolution of the instant case. Contrary to the majority opinion, the dissent concluded that the indemnity provisions of the workover contract were permissible under 33 U.S.C. § 905(c), which preempts the Anti-Indemnity Act. The dissent also opined that it was premature for the majority to resolve at this stage the issue of whether Aetna's waiver of subrogation was valid against Dantzler because it presented an unresolved issue of fact; that is, whether Hercules and Dantzler had entered into any type of contract that might contain such an indemnity provision. [7] Numerous Louisiana courts of appeal have cited Meloy, supra, for the proposition that indemnity clauses are void only to the extent that they purport to require indemnification and/or defense where there is negligence or fault on the part of the indemnitee. In this case, the plaintiff settled his lawsuit with Chevron and Dantzler and so there has been no finding of negligence or fault on the part of Chevron, the indemnitee. Arguably, since there has not been a finding of negligence or fault by Chevron, the prohibition against enforcement of the indemnity clause should not be applicable. However, we concede that the United States Court of Appeals for the Fifth Circuit has reached the opposite conclusion. In Tanksley v. Gulf Oil Corp., 848 F.2d 515, 518 (5th Cir.1988), because the parties entered into a settlement, there was no judicial finding that the indemnitee was "free from fault and thus outside the scope of the Act." The Court concluded that such an affirmative finding of "freedom from fault" was necessary to determine that an indemnification clause was enforceable; thus, an indemnification clause should be considered null and void unless there is a specific finding that the indemnitee is free from fault. The Fifth Circuit recognized that its finding conflicted with public policy favoring voluntary settlements, but reasoned "[i]n the future, in this type legal situation, the impact of settlement on an existing indemnity agreement need only be factored into the determination of a fair and reasonable settlement." Id., at 518. We see the logic in both positions, but under the circumstances of this case (where no party seeks to enforce the indemnification clause), it is not necessary for us to either adopt or reject the Tanksley conclusion. [8] The Fifth Circuit Court of Appeals has found that "subsection I brings collateral agreements, such as insurance, within the reach of the Anti-Indemnity Act's prohibitions." Babineaux v. McBroom Rig Building Service, Inc., 806 F.2d 1282, 1284 (5th Cir.1987). [1] Aetna's claim is really asserted against plaintiff, who was in possession of the settlement funds paid by the two tortfeasors as well as the compensation paid by Aetna. Presumably, the settlement value of plaintiff's claim in this action was the total of the settlement funds paid by Chevron and Dantzler plus the compensation already received. If so, plaintiff is not obtaining a "double recovery," as the majority suggests. Rather, Chevron is paying less than its full obligation by taking advantage of the compensation already paid by Aetna (as insurer of Hercules' compensation obligation). Chevron thus is probably benefitting from the waiver of subrogation it illegally forced upon Hercules. The question, nevertheless, is whether Aetna, in its position as Hercules' compensated insurer, has a real and actual interest in asserting that illegality.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2584168/	172 P.3d 274 (2007) 216 Or. App. 308 STATE of Oregon, Plaintiff-Respondent, v. Travis Alan RIDER, aka Travis Rider, aka Travis Allen Rider, Defendant-Appellant. 040633499, A128863. Court of Appeals of Oregon. Argued and Submitted October 31, 2007. Decided November 28, 2007. 275 Ryan T. O'Connor, Deputy Public Defender, argued the cause for appellant. On the brief were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Jamesa J. Drake, Deputy Public Defender, Office of Public Defense Services. Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges. ROSENBLUM, J. Defendant appeals from a conviction for one count of first-degree burglary. ORS 164.225. Much of the evidence at defendant's trial was the product of a search that defendant consented to after the police had initiated a check to see if defendant had any outstanding warrants. Before trial, defendant unsuccessfully moved to suppress that evidence. He argues on appeal that he was unlawfully stopped during the warrant check and that his consent to the search and the evidence derived therefrom were products of exploitation of the unlawful stop. The state concedes that the police did not have reasonable suspicion of criminal activity when they initiated the warrant check, but it contends that the warrant check did not elevate the encounter between defendant and the police to a stop, so defendant's consent was not the product of exploitation of any police illegality. Even if defendant was stopped, the state argues further, his consent was not a product of the stop. We review the trial court's denial of the motion to suppress for errors of law, State v. Woodall, 181 Or.App. 213, 217, 45 P.3d 484 (2002), and reverse. The facts are not in dispute. In the course of investigating a series of burglaries, the Portland police learned that a man named Como was likely involved and that he was residing in room number four of a particular motel in Portland. They also learned that Como had an outstanding arrest warrant. Seven or eight police officers went to the motel to arrest Como. When they approached the motel, they recognized Como standing in the open doorway of room number four. When Como saw the police, he ran away. All of the officers except Detective Anderson chased him. Anderson was dressed in plain clothes but was wearing a bulletproof vest, and his badge and gun were visible, so he was readily identifiable as a police officer. He went to the open door where Como had been standing. Defendant and three other people were inside the room. Anderson told 276 them that the police had a warrant for Como's arrest and that they would catch him. Anderson stayed outside, engaging the people in the room in "small talk." He asked them why Como had run away and open-ended questions such as, "What's going on?" After three or four minutes, Anderson heard on his radio that the other officers had arrested Como. He then asked if he could enter the motel room. The woman who had rented the room, Tomlin, allowed him to come in. According to Anderson, the room was very small and everyone could hear everything that was said. Once inside, Anderson engaged in further small talk and then asked the occupants for their names, dates of birth, and addresses. He wrote the information in his notebook. After several minutes, one of the other officers, Davis, came into the room. Anderson handed her his notebook and asked her to perform a warrant check on the names listed. Davis left the room to use a radio in the parking lot. Anderson then questioned each of the occupants of the motel room, questioning defendant last. Defendant was sitting on a couch with a backpack and schoolbooks; he appeared to be doing homework. Defendant was sweating profusely and was obviously nervous. Anderson asked him why he was there. Defendant responded that he had "a meth problem" and that he had come there after making a "meth connection." Anderson asked defendant for permission to search his backpack and a duffel bag that belonged to defendant. Defendant consented. In the duffel bag, Anderson found a number of silver coins that appeared to be collectible. Anderson knew from experience that such coins were often stolen in burglaries. He asked defendant, "What's up with all this?" Defendant told him that he and Como shared the bag and that some of the items in it belonged to Como. Anderson continued to search the duffel bag and found more coins. Anderson then obtained consent from Tomlin and the other woman in the room to search their belongings. When he finished that search, he asked Tomlin to step outside to talk in more detail. While they were outside the room, another detective informed Anderson that the other officers had searched Como and had found a large number of coins that were similar to those Anderson had found in the duffel bag. Anderson then asked defendant to step outside the room, where he told defendant that he was investigating Como in connection with some burglaries. Defendant denied that he was a burglar, but he admitted that he had acted as a lookout for Como during a recent burglary. Anderson arrested defendant and took him to the police station. There, defendant explained that he and Como had been walking around in the early morning hours the day before when Como suggested that they commit a burglary. He said that he and Como broke into a house and stole a large number of coins. Defendant agreed to show Anderson where the house was. Anderson showed the coins that he had retrieved from defendant to the homeowner, who identified them as his. Defendant was indicted for first-degree burglary. Before trial, he moved to suppress the evidence on the ground that Anderson had stopped him without reasonable suspicion when he asked Davis to run the warrant check and that the subsequently discovered evidence was a product of that unlawful stop. The trial court denied the motion, concluding that defendant had not been stopped until Anderson asked him to step outside the motel room and that, at that point, Anderson had reasonable suspicion to believe that defendant was involved in a burglary. Following a bench trial, the court then found defendant guilty. On appeal, defendant renews his argument that Anderson effected a stop without reasonable suspicion when he asked Davis to perform a warrant check. In response, the state acknowledges that Anderson did not develop reasonable suspicion to believe that defendant had committed a crime until after he searched the duffel bag, and it thus concedes that, if Anderson effected a stop before asking for defendant's consent to search the bag, the stop was unlawful. The state argues, 277 however, that Anderson's request to Davis to perform a warrant check did not effect a stop.[1] The state points out that Anderson never told defendant that he was not free to leave or that he was under suspicion of criminal activity, and did not take from defendant any formal piece of identification. The state argues further that, even if Anderson stopped defendant before asking for his consent to search the duffel bag, defendant's consent did not derive from the unlawful stop. We first address whether Anderson stopped defendant before obtaining his consent for the search. Under Article I, section 9, of the Oregon Constitution, a stop occurs when (a) "a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances." State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991). Both this court and the Supreme Court have repeatedly held that, when an officer retains a person's identification for investigatory purposes during questioning, the person is restrained from leaving. See, e.g., State v. Hall, 339 Or. 7, 19, 115 P.3d 908 (2005) ("When [the officer] took defendant's identification card and radioed the police dispatch for a warrant check, * * the consensual nature of that encounter dissipated, and the encounter evolved from a `mere conversation' encounter into a restraint upon defendant's liberty of movement."); State v. Harper, 197 Or.App. 221, 235, 105 P.3d 883 (2005) ("[A]n officer's retention of a person's identification for investigatory purposes during questioning restrains the person from leaving and, therefore, constitutes a stop."). In this case, as the state points out, Anderson did not ask for, let alone retain, any physical form of identification. That fact, however, is not dispositive. The Supreme Court explained in Hall that retention of identification is not necessary to effect a stop if the person is aware that the officer is investigating whether the person is the subject of any outstanding arrest warrants. 339 Or. at 19, 115 P.3d 908. In that case, a police officer had taken the defendant's identification card, called for a warrant check on his radio, and then immediately returned the card. While the officer was waiting for the results of the warrant check, he asked for the defendant's consent to search him. The court found it "difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check." Id. The state does not dispute the fact that defendant heard Anderson ask Davis to perform a warrant check. In light of Hall, we conclude that, when Anderson ordered the warrant check, the encounter evolved into a restraint on defendant's liberty. In other words, the encounter evolved into a stop. Given the state's concession with which we agree that Anderson lacked reasonable suspicion to stop defendant at that point, the stop was unlawful. We turn to the state's argument that defendant's consent did not derive from the unlawful stop. To show that evidence is a product of exploitation, a defendant must establish "the existence of a minimal factual nexus that is, at minimum, the existence of a `but for' relationship between the evidence 278 sought to be suppressed and prior unlawful police conduct * ." Id. at 25, 115 P.3d 908. Relying on our opinion in State v. Atkin, 190 Or.App. 387, 78 P.3d 1259 (2003), rev den, 339 Or. 230, 119 P.3d 790 (2005), the state argues that defendant did not establish a "but for" relationship between the stop and Anderson's request for consent to search. In Atkin, a police officer unlawfully stopped the defendant. During the stop, the defendant consented to allow the officer to search her purse, where he found methamphetamine. Id. at 389, 78 P.3d 1259. The defendant argued that evidence of the methamphetamine was the product of exploitation of the unlawful stop. The trial court denied her motion to suppress, and, on appeal, we affirmed. We held that the defendant could not establish the necessary connection between the illegal stop and the request for consent to search her purse. Id. at 392, 78 P.3d 1259 ("In fact, defendant cannot even establish a `but-for' relationship between the illegal stop and the request."). We noted that, although it was true that the officer's observation of the purse, and therefore his request to search it, occurred during the illegal stop, there was no evidence that it occurred as a result of it. Id. According to the state, the same is true here. The state's reliance on Atkin is misplaced. Our holding was based on a legal assumption that the Supreme Court rejected in Hall. In Atkin, we stated that "[e]xploitation occurs when police use information or knowledge gained as a result of their illegal activity in order to obtain consent." 190 Or.App. at 392, 226 P.2d 297. In Hall, the Supreme Court stated that its previous decisions did not "stand for the proposition that suppression is required only if the unlawful police conduct had allowed the discovery of inculpatory evidence that led to a request for consent. Instead, this court's case law * * makes clear that Article I, section 9, also requires the consideration of the effect of the unlawful police conduct upon the defendant's decision to consent * * *." 339 Or. at 32, 115 P.3d 908. It is clear from our opinion in Atkin that we considered only whether the unlawful stop had yielded information that the police then used to obtain the defendant's consent. In light of Hall, our analysis was unduly limited, so Atkin is not good law.[2] We reject the state's argument that defendant failed to establish a "but for" relationship between the unlawful stop and his consent to the search. The state does not advance any argument that some other fact or circumstance severed the causal connection between the stop and defendant's consent. See Hall, 339 Or. at 25, 115 P.3d 908 (once the defendant establishes a "but for" relationship, the state may show that the link is too tenuous, that the parties inevitably would have discovered the evidence through lawful means, or that the police obtained the evidence independently of the violation). Accordingly, we conclude that the evidence that defendant seeks to suppress is the unattenuated product of exploitation of the unlawful stop. It follows that the trial court erred in denying defendant's motion to suppress.[3] Reversed and remanded. NOTES [1] The state also argues that, as a factual matter, defendant may not have known that he was the subject of a warrant check. At the suppression hearing, Anderson testified that, when Davis came into the room, "I had a list of names and the first thing I said, Hey, could you run these people for me on the radio, so check them for warrants." According to the state, the phrase "so check them for warrants" was not part of what Anderson actually said to Davis, but was merely an explanation to the court of what he meant by "run these people for me on the radio." The state takes the position that the statement "run these people for me on the radio" would not have alerted defendant to the fact that Anderson was instructing Davis to check for warrants. We disagree. In our view, any reasonable person would have understood what Anderson meant. Our view is supported by the fact that, at the suppression hearing, it was implicit in the arguments of both the prosecutor and defense counsel that Anderson's statement to Davis conveyed that he was requesting a warrant check. Nothing that the trial court said indicates that it took a different view of the facts. [2] The state points out that the Supreme Court denied review of our decision in Atkin after it issued its opinion in Hall. According to the state, Atkin therefore remains good law. We disagree. Because the Supreme Court denied review without issuing an opinion, we do not know its reasons for the denial. It is clear, however, that our analysis in Atkin conflicts with Hall. [3] We note that the Supreme Court announced its decision in Hall several months after the trial court ruled on defendant's motion to suppress, so the trial court did not have the benefit of Hall in making its ruling.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2576836/	490 F. Supp. 2d 968 (2007) Mark DUWE, Andrew Bourdo, Mary Strosin, James Dragani, Rita Dragani, Amy Gehrke, Mary Baxa, Michael Baxa and Wisconsin Right to Life, Inc., Plaintiffs, v. James C. ALEXANDER, Larry Bussan, Ginger Alden, Donald Leo Bach, Jennifer Morales, John R. Dawson, Gregory A. Peterson, William Vander Loop, Michael R. Miller, James Haney and Keith L. Sellen, Defendants. No. 06-C-766-S. United States District Court, W.D. Wisconsin. May 29, 2007. 969 970 Thomas J. Balistreri, Assistant Attorney General, Madison, WI, for Defendants. MEMORANDUM AND ORDER SHABAZ, District Judge. Plaintiff Wisconsin Right to Life, Inc., a non-profit organization interested in surveying candidates for Wisconsin judgeships and publishing results of those surveys, commenced this action against members of the Wisconsin Judicial Commission to declare unconstitutional several Wisconsin Supreme Court Rules which regulate the conduct of candidates for judicial office. Individual plaintiffs are voters interested in seeing survey results. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343(a). The matter is presently before the Court on defendants' motion to dismiss the complaint and plaintiffs' motion for summary judgment. The only factual dispute relates to whether plaintiffs have standing. All facts relevant to the merits of plaintiffs' claims are undisputed. BACKGROUND The conduct of Wisconsin judges and candidates for judicial office is regulated by the Wisconsin Code of Judicial Conduct, Chapter 60 of the Wisconsin Supreme Court Rules, which includes the following provisions: SCR 60.04, A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. (1) in the performance of the duties under this section, the following apply to adjudicative responsibilities: * * * (b) A judge shall be faithful to the law and maintain professional competence in it. A judge may not be swayed by partisan interests, public clamor or fear of criticism. * * * (4) Except as provided in sub. (6) for waiver, a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial: * * * (f) The judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to any of the following: 1. an issue in the proceeding. 2. the controversy in the proceeding. * * * SCR 60.05. A Judge Shall so Conduct the Judge's Extra-Judicial Activities as to minimize conflict with Judicial Obligations (1) Extra-judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do none of the following: 971 (a) Cast reasonable doubt on the judge's capacity to act impartially as a judge. * * SCR 60.06. A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity. * * * (3) Campaign Conduct and Rhetoric. * * * (b) Promises and commitments. A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. Judges and lawyers who violate these rules are subject to disciplinary action by the Wisconsin Judicial Commission and the Wisconsin Office of Lawyer Regulation, respectively. The Wisconsin Judicial Advisory Committee is authorized by the Wisconsin Supreme Court to render formal advisory opinions to judges and judicial candidates on whether their conduct complies with the ethical rules. However, these advisory opinions are not binding on the Judicial Commission or the Supreme Court. On October 20, 2006 the Judicial Advisory Committee rendered opinion 06-1R addressing the following question: May a judge publicly express a personal opinion as to the fairness, efficacy and wisdom of the death penalty which is the subject of an advisory referendum being presented to the citizens of Wisconsin? The Committee determined that a judge expressing an opinion on these aspects of the death penalty would violate SCR 60.04(1)(b), 60.04(4), 60.05(1)(a) and 60.06(3)(b). Plaintiff Wisconsin Right to Life is a non-profit organization that wishes to gather information from judicial candidates by sending them surveys and publishing the candidate responses. The individual plaintiffs are voters who wish to see the results of the surveys. In 2006 and 2007 plaintiff Wisconsin Right to Life sent surveys to each Wisconsin candidate for judicial office. A copy of the 2007 survey form is attached as exhibit A. In both years several candidates returned the survey but declined to answer, checking a box on the survey and by reference adopting the statement that they were precluded from answering by SCR 60.06(3)(b) and 60.04(4)(f). One 2006 respondent wrote after each question: "Pursuant to SCR 60.06(3)(b)." One 2007 respondent wrote "I would answer if the law permitted." One judge who was a 2007 judicial candidate testified by affidavit that he was willing to answer all questions on the survey but believed he was prohibited by the provisions set forth above. MEMORANDUM Initially, defendants move to dismiss the complaint for lack of jurisdiction because plaintiffs lack standing. Assuming plaintiffs are able to establish standing, the parties raise no factual dispute relating to the merits of the constitutional challenge to the Supreme Court Rules, making resolution of the constitutional challenge a matter for summary judgment. Standing Plaintiffs are not regulated by the challenged rules. Rather, they assert their First Amendment right as listeners to receive the speech of others. King v. Federal Bureau of Prisons, 415 F.3d 634, 638 (7th Cir.2005). In order to establish 972 standing to challenge a provision which limits speech, a would-be "listener" must demonstrate that there is a speaker who wishes to engage in the allegedly prohibited speech. Spargo v. New York State Comm'n of Judicial Conduct, 351 F.3d 65, 83-84, n. 19 (2d Cir.2003). To overcome a challenge to their standing plaintiffs must demonstrate by a preponderance of the evidence that there was a candidate willing to respond to the Wisconsin Right to Life survey at the time they filed the original complaint. Perry v. Village of Arlington Heights, 186 F.3d 826, 829-830 (7th Cir. 1999). The facts before the Court are ample to establish that it is probable that candidates for judicial office were willing to answer the survey at the time this action was commenced. Most persuasive is the direct testimony of judge Alan White that he would answer all questions on the survey but believed he was precluded from doing so by the rules at issue. Defendants argue that this testimony is irrelevant because it comes after the case was filed and because the 2007 survey was not distributed until after the case was filed. The argument misapprehends the inquiry. The question is not whether the evidence was gathered after commencement of the case but whether a willing speaker existed at that time. It appears virtually certain that judge White was a willing speaker at the time the complaint was filed. Furthermore, the combined responses to the 2006 and 2007 surveys support the conclusion that some minority of candidates would be willing to answer the survey questions in each election cycle. Although it is undoubtedly true that some candidates who refused to answer used the ethical rules as a handy justification, or simply adopted defendant's footnote without thought. Enough of the respondents affirmatively wrote their belief that they could not answer in light of the rules. It is likely that in any state wide judicial election there will be a willing speaker who is genuinely chilled by potential enforcement of the rules. The threat that the rules impose a chilling effect on to candidate speech existed in 2006, at the time of the filing of this action and will likely recur during the 2008 election because the relationship between the parties has remained intact over that period. See Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 491 (7th Cir.2004)(ongoing threat ended by altered legal relationship between the parties). Accordingly, plaintiffs have demonstrated by a preponderance of the evidence that there are willing speakers who support their standing to raise a constitutional challenge to the rules. Constitutionality The challenges to Wisconsin's Supreme Court Rules governing the speech of judicial candidates requires a balancing between the First Amendment interests of candidates to express themselves on matters of interest to the electorate and the state's interest in assuring that its judges are impartial in the sense that they do not prejudicially favor one party to a controversy and that they remain open minded to decide cases in accordance with the law. Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 227 (7th Cir.1993); Republican Party of Minnesota v. White, 536 U.S. 765, 776-778, 122 S. Ct. 2528, 153 L.Ed.2d 694(2002). The first step in analyzing the constitutionality of a provision is to discern its meaning. White, 536 U.S. at 770, 122 S. Ct. 2528. This involves interpreting the language of the rule itself and considering any meaning placed on the language by the Wisconsin Supreme Court. Id. at 771, 122 S. Ct. 2528. The interpretation issue is complicated by Wisconsin Judicial Advisory Committee opinion 06-1R, which addresses 973 the meaning of several rules a tissue. While this opinion is not binding on the Wisconsin Supreme Court, the committee is appointed and authorized by the Court to interpret the rules. The parties vigorously dispute the degree of deference to be afforded the opinion. The proper level of deference for such opinions was addressed by the Eighth Circuit which noted that the relationship between the body and the Supreme Court makes it somewhat likely that the Court would adopt the holding and that at least it is a straw in the wind indicating the likely direction of the Supreme Court. Republican Party of Minnesota v. Kelly, 247 F.3d 854, 882 (2001)(issue mooted by Minn. Supreme Court adoption of interpretation prior to appeal to U.S. Supreme Court). Following this approach, the Court finds that the advisory opinion is relevant as a possible indicator of the direction of the Wisconsin Supreme Court's interpretation of the rule. The appropriate inquiry is whether on a particular issue, the Supreme Court would be likely to defer to the commission's opinion. To the extent the interpretation reveals that a rule prohibits speech on the basis of its content and burdens speech about the qualifications of a candidate for public office the strict scrutiny test applies to determine its constitutionality. Id. at 774. To survive a challenge governed by strict scrutiny, defendants must prove that the challenged provisions are "(1) narrowly tailored, to serve (2)a compelling state interest." Id. at 775. SCR 60.04(1)(b). "In the performance of . . . adjudicative responsibilities: . . . A judge may not be swayed by partisan interests, public clamor or fear of criticism." This provision imposes no burden on a judicial candidate's right to speak freely during a judicial campaign. It addresses only conduct during the performance of "adjudicative responsibilities" which clearly would not include campaign activities. The obvious intent of the rule is to exhort judges to decide cases before them without considering prevailing public opinion and outcry regarding the case. Not only is this a valid and compelling state interest, it imposes no restriction outside of that context, and particularly does not restrict speech. To the contrary, a judge's propensity to decide cases consistent with statements made or opinions expressed during a campaign tend to demonstrate that he or she is acting on personal principles previously stated and not deciding the pending case on the basis of "partisan interests, public clamor or fear of criticism." The portion of opinion 06-1R addressing this provision is very limited and entirely unpersuasive. It can be summarized as follows: a judge expressing an opinion on the death penalty might be viewed as swayed by public opinion. Of course, this could be said of any statement on any issue or indeed any ruling on an issue in a case, since there is by definition conflicting public opinion and choosing one side leaves open the possibility that the decision was swayed by that interest. It is not a reasonable application of the rule, and almost certainly would not be adopted by the Wisconsin Supreme Court. The rule does not affect candidates' ability to respond to the Right to Life survey and is not facially unconstitutional. SCR 60.05(1)(a) A judge shall conduct all of the judge's extra-judicial activities so that they do [not] cast reasonable doubt on the judge's capacity to act impartially as a judge. This provision imposes a general prohibition against conduct that demonstrates that a judge lacks the ability to be impartial. The key interpretation issue is the meaning of the term "capacity to act impartially 974 as a judge." Viewing the rule in context and in light of the Wisconsin Supreme Court's comment to the rule, it becomes clear that this provision does not regulate or restrict speech on legal issues, but applies to conduct that impugns the judge's general capacity for impartiality. The language of the provision itself is directed not toward impartiality in a particular case but to a general capacity to act impartially in the first sense explored in White: a lack of prejudice or bias against a person or class of people who might come before the court. This meaning is confirmed by the official comment: "Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may raise reasonable doubt on the judge's capacity to act impartially as a judge." The comment then refers to SCR 6.03(1) and (3) which preclude a judge from membership in organizations that discriminate on the basis of race, gender, religion or national origin and require a judge to comply with the law and act in a manner that promotes public confidence in the judiciary. These references are consistent with the language that goes to the general reputation of a judge for integrity and impartiality, none of which are threatened by the expression of opinions on legal issues. Furthermore, in the context of the Rule as a whole, it is apparent that the provision is not intended to and does not regulate statements on legal issues. The other subparts of SCR 60.05(1) preclude conduct that demeans the judicial office and interferes with the performance of judicial duties, both of which concern the judge's general conduct and would not implicate regulation of statement on legal issues. The immediately subsequent section of Rule 60.05 expressly authorizes judges to speak on legal issues, "subject to the requirements of this chapter." The quoted phrase being a reference to, inter alia, Rule SCR 60.06(3) regulating campaign rhetoric. Accordingly, there is no doubt that regulation of speech on legal issues is not the subject of SCR 60.05(1). Given the meaning of the Rule as confirmed by the official comment and overall context, it poses no threat to a judicial candidate's ability to express a position on legal issues or, more specifically, to respond to the Wisconsin Right to Life survey. Such statements or responses certainly would not be "expressions of bias or prejudice" as contemplated in the comment and would in no way cast doubt on the judge's general character for impartiality and integrity which is the subject of the Rule. At the same time the Rule protects a fundamental interest of the state in preserving the general impartiality and the appearance that its judges are impartial in the sense that they treat all parties coming before them equally. The minimal discussion involving the Rule contained in advisory opinion 06-1 is unpersuasive and contradicted by the comment language. In light of its brevity and of the advisory opinion analysis on the issue, there is no reason to believe it would be persuasive to be adopted by the Wisconsin Supreme Court. Properly understood, the Rule poses no threat to a candidate's interest in expressing a personal opinion on legal issues or plaintiffs' interest in hearing such speech. Rather, the rule protects a fundamental interest in protecting state courts from the appearance of inherent bias against a party. SCR 60.04(4). A judge shall recuse himself or herself . . . when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably 975 question the judge's ability to be impartial. Plaintiffs do not pursue a facial challenge to the constitutionality of this provision. In fact, similar rules have been widely upheld as Constitutional. Indiana Right to Life, Inc. v. Shepard, 463 F. Supp. 2d 879, 887 (N.D.Ind.2006)(upholding similar Indiana rule and collecting similar cases from other jurisdictions). There is also no indication that the provision has been or will be applied to respondents to the Wisconsin Right to Life survey. This is particularly true in light of the far more specific rules directly governing the propriety of a judge making statements on legal issues during judicial campaigns. Contrary to plaintiffs assertion, advisory opinion 06-1R did not suggest that the general provision in 60.04(4) would apply to the survey. Rather the opinion depended upon the specific requirement of 60.04(4)(a) relating to "personal bias or prejudice," a provision manifestly inapplicable to the survey. SCR 60.06(3)(b). A judge, judge-elect, or candidate for judicial office shall not make, . . . with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. There is little ambiguity in the language of this provision. Most importantly, it is clear that the provision requires an actual commitment to rule a certain way on a case, controversy or issue likely to come before the court. The provision presents the precise question left open by White, whether a state may constitutionally prohibit a candidate from promising to decide an issue in a particular way if elected. 536 U.S. at 770, 122 S. Ct. 2528. More particularly, the issue is whether the state has a compelling interest in judicial openmindedness of the type fostered by the rule and whether the rule is narrowly tailored to serve that interest. The Supreme Court implied that the interest is a compelling one. A third possible meaning of "impartiality" (again not a common one) might be described as openmindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he is willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary. . . . White, 536 U.S. at 778, 122 S. Ct. 2528. The Seventh Circuit has similarly indicated its belief that states may legitimately forbid judicial promises to rule a particular way. Buckley, 997 F.2d at 230. There is a very real distinction between a judge committing to an outcome before the case begins, which renders the proceeding an exercise in futility for all involved, and a judge disclosing an opinion and predisposition before the case. A disclosure of a predisposition on an issue is nothing more than acknowledgment of the inescapable truth that thoughtful judicial minds are likely to have considered many issues and formed opinions on them prior to addressing the issue in the context of a case. Id. at 779, 122 S. Ct. 2528. The Rule on its face is narrowly tailored to serve this openmindedness interest. The language of the rule avoids the successful vagueness, overbreadth, under inclusiveness and over inclusiveness challenges against other versions of rules purporting 976 to ban pledges and promises by judicial candidates. Whether a statement is a pledge, promise or commitment is objectively discernable. It requires affirmative assurance of a particular action. It is a predetermination of the resolution of a case or issue. It is not a statement of belief or opinion. Absent a statement committing the speaker to decide a case, controversy or issue in a particular way, the speaker can be confident that the rule is not violated. The rule differs in a critical way from the predecessor ABA rule invalidated in Shepard: it eliminates the phrase "appears to commit." The vagueness of that phrase converts the provision into an alternate version of the announce clause condemned by White, because while a forceful opinion on an issue may "appear to commit" someone to an outcome, it is not a true commitment. The difference is not merely semantic. People are practiced in recognizing the difference between an opinion and a commitment (which explains why politicians typically stop short of the latter). A promise, pledge or commitment typically includes one of those three words or phrases like "I will" or "I will not." Phrases like "I believe" or "It is my opinion" signal the absence of commitment. The distinction between a commitment and an announced position on an issue is relevant to the health of the judiciary. One presumes that a person is likely to decide in accordance with an opinion or belief, but will only rely upon an actual commitment. As a result, reaction to breaking a commitment or promise is far stronger than to a decision that contradicts an opinion or belief. A genuine commitment creates a different expectation and poses afar greater threat to the impartiality and appearance of impartiality of the judiciary. The rule is neither over or under inclusive because it is appropriately directed only to judges and candidates. These are the only categories of persons who are in a position to make a promise to decide a case in a particular way. It makes no sense for individuals who are not judges or candidates to promise to decide cases in a particular way. The rule applies only to commitments which are inconsistent with the "impartial performance of adjudicative duties." Impliedly, a commitment to decide a case or issue in a particular way is offered in exchange for votes, a process which makes no sense for a non-candidate. Additionally, anon-candidate statement simply does not pose the same threat to the judiciary. An attempted regulation of _hypothetical commitments by lawyers to rule a certain way if they were judges would be beyond the legitimate interest of the state to regulate and would unconstitutionally impinge on free speech rights. Although the provision is not unconstitutional on its face, the apparently conflicting provisions of the Supreme Court comments and the opinion of the advisory committee present the possibility that the rule might be applied against those who respond to plaintiffs' survey. While the official comment first indicates that the rule prohibits only "statements that commit the candidate" it later uses the phrase "may reasonably be viewed as committing," leaving open the possibility that the Rule might be applied in an unconstitutionally overbroad manner. Responses to the Wisconsin Right to Life survey do not constitute promises, pledges or commitments such that they could be constitutionally restricted or sanctioned in the interest of judicial openmindedness. Responses to these questions are announcements constituting speech protected by the First Amendment as applied in White. 536 U.S. at 779, 122 S. Ct. 2528. SCR 60.06(3)(b) would be unconstitutional as applied to a judicial candidate who responded 977 to the Wisconsin Right to Life survey. SCR 60.04(4)(f). a judge shall recuse himself or herself in a proceeding when.. the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to any of the following: 1. an issue in the proceeding. 2. the controversy in the proceeding. Unlike SCR 60.06(3)(b), the existence of the phrase "appears to commit" in SCR 60.04(4)(f) has the effect of requiring recusal in any case where a judge previously announced a position on an issue in the case. The inclusion of the phrase in a direct regulation of speech renders the provision unconstitutionally overbroad and vague, and indistinguishable from the announce clause condemned by White. See Shepard, 463 F.Supp.2d at 889-90. Defendants suggest two possible ways to distinguish the rule and save it from facial unconstitutionality. First, SCR 60.04(4)(f) is a recusal statute and therefore does not directly regulate speech. Second, defendants argue that the recusal rule is parallel to 60.06(3)(b) and that its more narrow scope should be imported by reference. Neither argument is persuasive. While it is true that the recusal requirement is not a direct regulation of speech, the chilling effect on judicial candidates is likely to be the same. Although a candidate would not fear immediate repercussions from the speech, the candidate would be equally dissuaded from speaking by the knowledge that recusal would be mandated in any case raising an issue on which he or she announced a position. As to the second argument there is no basis to ignore the language of the SCR 60.04(4)(f) based on the direct speech regulation of 60.06(3)(b). The provisions do not contain parallel language and therefore it must be presumed that they were intended to have a different reach. It would not be irrational to permit a judge to speak, but to require recusal in the event the issue came before him or her. In any event, this Court is without authority to rewrite the language of the rule and as it is written it is unconstitutionally vague and overbroad. ORDER IT IS ORDERED that defendants' motion to dismiss is GRANTED as it concerns plaintiffs' challenges to SCR 60.04(1)(b), 60.04(4) and 60.05(1)(a) and is in all other respects DENIED. IT IS FURTHER ORDERED that plaintiff's motion for summary judgment is GRANTED insofar as it seeks a determination that SCR 60.04(4)(f) is unconstitutional on its face and that SCR 60.06(3)(b) is unconstitutional as applied to judicial candidates based on their having responded to plaintiff Wisconsin Right to Life, Inc.'s survey and is in all other respects DENIED. IT IS FURTHER ORDERED that judgment be entered declaring that SCR 60.04(4)(f) is facially unconstitutional, and enjoining enforcement of SCR 60.06(3)(b) against judicial candidates based on their having responded to the questions of plaintiff Wisconsin Right to Life, Inc.'s survey.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1688219/	894 S.W.2d 401 (1994) UNION PACIFIC RESOURCES COMPANY, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Allianz Insurance Company, Allianz Underwriters, Inc., American Home Assurance Company, California Union Insurance Company, Central National Insurance Company of Omaha, Century Indemnity Company, Certain London Market Insurance Companies, Certain Underwriters At Lloyd's London, Employers Surplus Lines Insurance Company, Fidelity & Casualty Company of New York, First State Insurance Company, Forum Insurance Company, Gibraltar Casualty Company, Granite State Insurance Company, Harbor Insurance Company, Insurance Company of the State of Pennsylvania, International Insurance Company, International Surplus Lines Insurance Company, Landmark Insurance Company, Lexington Insurance Company, National Union Fire Insurance Company, Pacific Insurance Company, St. Paul Mercury Insurance Company, Stonewall Surplus Lines Insurance Company, Appellees. No. 2-93-219-CV. Court of Appeals of Texas, Fort Worth. December 14, 1994. Rehearing Overruled April 13, 1995. 402 Cantey & Hanger, L.L.P., and Ralph H. Duggins, Sloan B. Blair, Gould, Broude & Nelson, P.C., and Jonathan D.F. Nelson, Fort Worth, Jenner & Block, Theodore R. Tetzlaff, John H. Mathias, Jr., Barbara S. Steiner, Robert S. Markin, John D. Shugrue, Chicago, IL, for appellant. Susman Godfrey L.L.P., and Mark L.D. Wawro, Michael L. Cohen, Houston, for appellee Aetna Cas. & Sur. Co. Crowell & Moring, and Andrew H. Marks, Amy L. Schreiber, Washington, DC, Locke, Purnell, Rain & Harrell, and Robert W. Mowrey, Stewart H. Thomas, Dallas, for appellee California Union Ins. Co., Cent. Nat. Ins. Co. of Omaha, Century Indem. Co., and St. Paul Mercury Ins. Co. Shannon, Gracey, Ratliff & Miller, L.L.P., and Kleber C. Miller, David P. Cotten, Fort Worth, Lord, Bissell & Brook, and Thomas J. Strueber, Paul L. Fields, Jr., Atlanta, GA, for appellee Certain Underwriters At Lloyd's, London and Certain London Market Ins. Companies. Brief of Amici Curiae (RECEIVED BUT NOT FILED PER TEXAS RULES OF APPELLATE PROCEDURE 20) Mid-America Legal Foundation, Quantum Chemical Corp., Sterling Electronics Corp., and Texas Chem. Co.Anderson, Kill, Olick & Oshinsky, and Eugene R. Anderson, Jordan S. Stanzler and John A. MacDonald, New York City, and Covington & Burling, and Christopher N. Sipes, of Washington, DC. Before HILL, C.J., and FARRIS and HICKS, JJ. OPINION FARRIS, Justice. Appellant, Union Pacific Resources Company (UPRC), brought a declaratory action to determine the extent of coverage under comprehensive general liability policies issued by appellees, and sued appellees for damages after appellees denied coverage for pollution claims against UPRC because of its deposit of materials at Operating Industries, Inc., an industrial waste landfill. The trial court denied discovery to UPRC regarding the interpretation of the pollution exclusions. The trial court granted appellees summary judgment, holding policy pollution exclusions barred coverage for the liabilities UPRC incurred due to its disposal of waste at the landfill. We reverse the trial court's grant of judgment because, as a matter of law, UPRC's routine waste disposal at the landfill is not the relevant "occurrence" for determining policy coverage and because a material fact issue exists as to whether any property damage occurred due to a release of waste into the surrounding environment. We further hold the court abused its discretion in not allowing UPRC sufficient discovery on 403 the interpretation of the pollution exclusions before granting summary judgment for the appellees. For more than three years UPRC routinely disposed of potentially polluting wastes from its oil drilling and refining operations by sending them to an industrial landfill. Dumping these wastes at the landfill was a legal and accepted method of disposal. After UPRC discontinued use of the landfill, the United States Environmental Protection Agency (EPA) sued UPRC and others to recover cleanup costs at the landfill site, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9607(a) (West 1983). UPRC entered into a partial consent decree, agreeing to participate in the cost of remedying pollution hazards at the landfill. UPRC alleges it has incurred liability for damages arising from the landfill operation and it has received third party claims concerning the landfill and anticipates further claims. UPRC notified appellees of the landfill claims, but appellees denied coverage. The appellees' motion for summary judgment asserted there can be no liability because the policies are unambiguous and the pollution exclusions "bar UPRC's claims relating to the cleanup of the [landfill] because UPRC's routine and deliberate discharges of wastes into the [landfill] over a period of several years were neither `sudden and accidental' nor `sudden, unintended and unexpected.'" The appellees' ground for summary judgment does not involve a factual dispute, but turns on the interpretation of policy language. Appellees' comprehensive general liabilities policies obligate them to pay sums on behalf of UPRC which it is legally obligated to pay because of property damage caused by an occurrence. The policies define "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured." The several insurance policies each include one of two types of pollution exclusions, a "sudden and accidental" exclusion or a "sudden, unintended and unexpected" exclusion. Those policies containing a "sudden and accidental" pollution exclusion exclude liability for property damage arising out of the discharge, dispersal, release, or escape of waste materials, or other irritants, contaminants or pollutants into or upon land, the atmosphere, or any water course or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. Those policies containing a "sudden, unintended and unexpected" pollution exclusion exclude liability for property damage directly or indirectly caused by seepage, pollution, or contamination, provided the exclusion shall not apply to liability for property damage where the seepage, pollution or contamination is caused by a sudden, unintended and unexpected happening. At the trial level, the appellees asserted there was no genuine issue of material fact and claimed their entitlement to summary judgment as a matter of law. Specifically, appellees argued the pollution exclusions in their policies bar UPRC's claims relating to the cleanup of the landfill because UPRC's routine and deliberate discharges of wastes into the landfill over a period of years were neither "sudden and accidental" nor "sudden, unintended and unexpected." In essence, appellees contended UPRC's liability for cleanup under CERCLA was its dumping of wastes at the landfill, and because that dumping was intentional, it was not an accident. UPRC argued the occasion which gave rise to the pollution claims against it was not its disposal of wastes but the actual and potential penetration of those wastes into neighboring land and ground water. The trial judge concluded, and appellees' counsel agreed, that to grant summary judgment he would have to find the occurrence at issue was the dumping at the landfill.[1] We first review UPRC's general point of error that the trial court erred in granting 404 summary judgment. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). The standard of review for a summary judgment requires the movant to show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; evidence favorable to the nonmovant will be taken as true; and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Mgt., 690 S.W.2d 546, 548-49 (Tex. 1985). In reviewing this point of error, we must first determine whether the occurrence at issue is the waste disposal or the leakage into the environment for purposes of coverage under the policy. Both policies at issue define "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured." [Emphasis added.] Courts from other jurisdictions that have interpreted the term "occurrence" are split on the issue of what constitutes an occurrence under a policy where pollution damage has occurred. The analysis of the term "occurrence" rests on whether the activity was expected or intended from the standpoint of the insured. See Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex.1976). The language is unequivocal in the definition of "occurrence." It is the property damage, and not the accident, which is neither expected nor intended. Other language in the policy supports this conclusion. The phrase "seepage, pollution or contamination" in the "sudden, unintended or unexpected" exclusions and the phrase "discharge, dispersal, release or escape" in the "sudden and accidental" exclusions do not encompass the disposal of wastes. All these terms connote the substance leaving the location of placement. None of these terms is normally used to describe the placement of a substance into an area. See Queen City Farms, Inc. v. Central National Ins. Co. of Omaha, 124 Wash.2d 536, 882 P.2d 703, 719 (1994). Based on the definition of "occurrence," and the language in the pollution exclusion clauses, we hold it is the consequence rather than the event itself which must be neither expected nor intended. UPRC's deposit of pollutants into a landfill cannot be the triggering event. See id. Rather, the subsequent escape of pollutants from the disposal site is the critical inquiry for purposes of determining coverage. Id.; Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 180 Ill. Dec. 691, 709, 607 N.E.2d 1204, 1222 (1992). The pertinent "occurrence" is the migration or emanation of wastes from the point of deposit that results in property damage. The relevant inquiry in interpreting both types of policies presented here, then, is whether the policy holder expected the landfill to discharge the waste into the surrounding environment. See Patz v. St. Paul Fire & Marine Ins. Co., 15 F.3d 699, 704 (7th Cir.1994). We hold the trial court erred in granting summary judgment as a matter of law. UPRC's routine waste disposal at the landfill is not the relevant "occurrence" for determining policy coverage. We hold where material has been deposited in a place which was believed to serve as a landfill for such waste, the polluting "occurrence" is the "discharge, dispersal, release, or escape" or "seepage, pollution or contamination" of toxic material into the environment. We sustain UPRC's first point of error. Because we reverse the trial court's grant of summary judgment, we need not address the specific grounds for reversal asserted by UPRC in the second, fourth, and fifth points of error. As for the third point of error, we review whether the trial court abused its discretion in denying UPRC the right to take discovery on the purpose, usage, and interpretation of the pollution exclusions. See Bruner v. Exxon Co., U.S.A., 752 S.W.2d 679, 682 (Tex.App.Dallas 1988, writ denied). The purpose of discovery is to allow the parties to obtain the fullest knowledge of facts and issues prior to trial. West v. Solito, 563 S.W.2d 240, 243 (Tex.1978). The rules governing discovery should be liberally construed. Martinez v. Rutledge, 592 S.W.2d 398, 399 (Tex.Civ.App.Dallas 1979, writ ref'd n.r.e.). 405 We review the denial of discovery in this case in light of the rules governing the interpretation of insurance policies. Insurance policies are contracts and as such their interpretation is controlled by the rules of contract construction. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). Whether a policy is ambiguous is a question of law for the court. See Yancey v. Floyd West & Co., 755 S.W.2d 914, 917 (Tex.App. Fort Worth 1988, writ denied). In determining whether an insurance contract is ambiguous, the contract language is to be given its "ordinary and generally accepted meaning." Security Mut. Cas. Co. v. Johnson, 584 S.W.2d 703, 704 (Tex.1979). The court's primary concern is to give effect to the written expression of the parties' intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). Where, after considering the wording of the policy, a question relating to its meaning is presented, the court is to take the wording of the instrument, consider the same in the light of the surrounding circumstance, apply the pertinent rules of construction thereto and thus settle the meaning of the contract. Aetna Life & Cas. Co. v. Gunn, 628 S.W.2d 758, 760 (Tex.1982). Evidence of surrounding circumstances may be consulted to determine the parties' intent. Coker v. Coker, 650 S.W.2d 391, 394-95 (Tex.1983); Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex.1981); Commonwealth Lloyds Ins. Co. v. Downs, 853 S.W.2d 104, 110 (Tex.App.Fort Worth 1993, writ denied). In review of the surrounding circumstances, the standard of interpretation is "the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean." Sun Oil Co., 626 S.W.2d at 731 n. 5 (citing City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968)) (emphasis in original). With the insurance business regulated and the policy forms proscribed by a state insurance commission, "the actual intent involved in the precise words is as much or more the intent of the Insurance Commission which prescribes the wording of the policy as it is the intent of the parties." United States Ins. Co. v. Boyer, 153 Tex. 415, 269 S.W.2d 340, 341 (1954); Dairyland County Mut. Ins. Co. v. Wallgren, 477 S.W.2d 341, 342 (Tex.Civ.App.Fort Worth 1972, writ ref'd n.r.e.). Courts from jurisdictions across the country are split as to the interpretation of pollution exclusion clauses. The interpretation of pollution exclusions for purposes of insurance coverage is a novel one in Texas. Both sides argue conflicting views of the interpretation of the pollution exclusion. Neither conflicting views of coverage, nor disputation, is sufficient to create an ambiguity. Forbau, 876 S.W.2d at 134. To give effect to the parties' intent, discovery is necessary to determine the "meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages " of insurance policy language from the standpoint of the insured. See Sun Oil Co., 626 S.W.2d at 731 n. 5 (emphasis in original). Therefore, the trial court should have permitted discovery to determine the intent of the parties from drafting history, regulatory history, and relevant action of the State Board of Insurance, as well as other circumstances surrounding the making of the policy. Like the court in CBI Industries, Inc. v. National Union Fire Ins. Co., 860 S.W.2d 662, 666-67 (Tex.App.Houston [1st Dist.] 1993, writ granted), we conclude that, under the facts of this case, the trial court improperly denied UPRC the right of discovery regarding the interpretation of the pollution exclusions in the policies at issue. We hold the trial court abused its discretion in not allowing UPRC sufficient discovery before granting summary judgment for the appellees. Accordingly, we sustain UPRC's third point of error. In analyzing this case, this court prefers to take a rudimentary approach like that taken by the Washington Supreme Court in Queen City Farms, Inc. v. Central National Ins. Co. of Omaha, 126 Wash.2d 50, 882 P.2d 703 (1994). Published opinions support virtually all the arguments made by the insurers and insured in this case, as well as the many amici curiae who have provided briefing. We *406 make no attempt to catalogue all the decisions, nor cite to all the published cases available as support for a proposition. See Queen City Farms, Inc., 882 P.2d at 716. Persons interested in researching the law in this area will find ample guidance in the cited sources. We note appellees cite to a number of unpublished opinions, violating Tex.R.App.P. 90(i). We have disregarded those cases cited by appellees which are not published authority, and rely only on the merit of published opinions. See Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 501 (Tex.App.Austin 1991, writ denied). We reverse the decision of the trial court on the motion for summary judgment. We also reverse the trial court's decision to deny UPRC the right of discovery regarding the interpretation of the pollution exclusion in the policies at issue. We remand the case for further proceedings consistent with this opinion. HILL, C.J., recused. NOTES [1] The trial court's conclusion is in the statement of facts from the hearing on the appellees' motions for summary judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1140524/	551 So. 2d 25 (1989) Philip Joseph DEAGRACIAS, III v. Elmo CHANDLER, d/b/a Chandler Dozer Service, et al. No. 89-C-1414. Court of Appeals of Louisiana, Fourth Circuit. September 28, 1989. Denis Paul Juge, Lynda L. Simpson, Brian J. Miles, New Orleans, for appellant. Wiley J. Beevers, Curtis Gordon, Gretna, for appellee. Before GARRISON, CIACCIO and WARD, JJ. CIACCIO, Judge. We granted certiorari in this case following the trial judge's denial of defendant's motion for summary judgment. The issue is whether plaintiff can bring an action in tort against his employer under a theory of products liability. Plaintiff's suit stems from an injury that occurred on March 10, 1988 while plaintiff was in the course and scope of his employment with Elmo Chandler d/b/a Chandler Dozer Service. Defendant Chandler was also the manufacturer of the bucket on the backhoe which plaintiff was operating at the time of his accident. Plaintiff alleges that the backhoe bucket failed, thereby causing his injuries. He seeks to hold defendant liable under a theory of "products liability" and he argues that the workmen's compensation statute, La.R.S. 23:1032, excludes only ordinary tort liability and not products liability. Defendant, relying on the exclusivity of the workmen's compensation statute moved for summary judgment which was *26 denied by the trial judge. Since Chandler could not appeal from the court's refusal to render summary judgment, La.C.C.P. art. 968, its only available remedy was to apply for a writ of certiorari. See, Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La.1981). In his opposition to the motion for summary judgment, plaintiff argues that his suit is an exception to the exclusivity of the workmen's compensation statute under two theories: (1) plaintiff's injury arises out of an intentional act on the part of his employer which constitutes an exception to the exclusive remedy of La.R.S. 23:1032; and (2) defendant can be sued in its "dual capacity" as employer and manufacturer, citing Ducote v. Albert, 521 So. 2d 399 (La. 1988). Plaintiff's original Petition for Damages and First Supplemental and Amending Petition include allegations of negligence and products liability. The plaintiff makes no allegations of any intentional acts in his pleadings. Mere allegations of fact raised for the first time on a motion for summary judgment are not sufficient to defeat the motion. Under the circumstances outlined above, we find that there has been no showing of a genuine issue of material fact as to intentional acts on the part of the employer. In support of his dual-capacity argument, plaintiff relies on Ducote v. Albert, 521 So. 2d 399 (La.1988). In that case, the Supreme Court held that in a medical malpractice action, a company doctor is not immune from tort liability under the workmen's compensation statute. A company doctor has characteristics of an employee and of an independent contractor, and the Court held he may be sued in tort in his "dual capacity" as an independent contractor. The Court concluded that under the circumstances of that case, the company doctor was not a co-employee of the plaintiff entitled to immunity from tort liability. Ducote v. Albert, supra, 521 So.2d at 400. We find that the Ducote rationale is not controlling in the case at bar. The holding of Ducote specifically involves an action for medical malpractice and does not apply to a suit against an employer for products liability. Rather, there is a long line of jurisprudence which directly holds that products liability actions are not exempt from the exclusivity of the worker's compensation statute. Atchison v. Archer-Daniels-Midland Co., 360 So. 2d 599 (La.App. 4th Cir.), writ denied, 362 So. 2d 1389 (La. 1978); Tomasich v. United States Fidelity & Guaranty Co., 415 So. 2d 1002 (La.App. 4th Cir.), writ denied, 420 So. 2d 446 (La. 1982); Smith v. AMF Tuboscope, Inc., 442 So. 2d 679 (La.App. 1st Cir. 1983). We are not persuaded by plaintiff's argument that the narrow holding in Ducote overrules this line of cases. Based on the above-cited jurisprudence, we find that defendant is entitled to summary judgment. Accordingly, the judgment of the trial court is reversed and Chandler's motion for summary judgment is granted. There is judgment in favor of defendant, Elmo Chandler, d/b/a Chandler Dozer Service, and against plaintiff Philip Joseph Deagracias, dismissing his suit against Chandler at his cost. REVERSED AND RENDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1667513/	891 F.Supp. 568 (1995) UNITED STATES of America, Plaintiff, v. Raul GARCIA-SALAZAR, Defendant. Crim. No. 95-20033-01 GTV. United States District Court, D. Kansas. June 9, 1995. John M. Duma, Kansas City, KS, David J. Phillips, Office of Federal Public Defender, Topeka, KS, for Raul Garcia-Salazar. Charles R. Harvey, Overland Park, KS, for Tobias Verduzco. Robert S. Streepy, Office of U.S. Atty., Kansas City, KS, for U.S. MEMORANDUM AND ORDER VAN BEBBER, Chief Judge. This case is before the court on defendant Raul Garcia-Salazar's motion to dismiss Count III of the indictment. Count III charges Garcia-Salazar with possession with intent to distribute 20 pounds of marijuana within 1000 feet of an elementary school, a violation of 21 U.S.C. § 860,[1] sometimes referred to as the Drug-Free 569 School Zones Act. The defendant contends, in view of the Supreme Court's recent decision in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), that § 860 is an unconstitutional exercise of Congress' power under the Commerce Clause.[2] In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act, 18 U.S.C. § 922(q), which prohibited possession of a firearm within 1000 feet of a school. Speaking for the majority, Chief Justice Rehnquist began with a historical overview of Commerce Clause law. It is well established that under the Commerce Clause, Congress "may regulate the use of the channels of interstate commerce"; may "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce"; and may regulate "activities that substantially affect interstate commerce."[3] ___ U.S. at ___-___, 115 S.Ct. at 1629-30 (citations omitted). The Court determined Congress was empowered to enact the Gun-Free School Zones Act only if the Act regulated an activity substantially affecting interstate commerce. Examples of congressional acts the Court has upheld as substantially affecting interstate commerce include "regulation of intrastate coal mining," "intrastate extortionate credit transactions," "restaurants utilizing substantial interstate supplies," "inns and hotels catering to interstate guests," and "production and consumption of home-grown wheat." Id. at ___, 115 S.Ct. at 1630. Chief Justice Rehnquist characterized the wheat case, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity." Lopez, ___ U.S. at ___, 115 S.Ct. at 1630. At issue in Wickard was the Agricultural Adjustment Act of 1938, which was "designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices." Lopez, ___ U.S. at ___, 115 S.Ct. at 1630. A farmer was assessed a penalty under the act for exceeding by 12 acres his acreage allotment for wheat production. After harvesting his 23-acre crop, the farmer sold some wheat, kept some for feed and home consumption, and used the remainder for seed. The Wickard court upheld application of the Act to the farmer's activity, reasoning: "One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat could have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the 570 market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce." Lopez, ___ U.S. at ___, 115 S.Ct. at 1630 (quoting Wickard, 317 U.S. at 128, 63 S.Ct. at 90). Chief Justice Rehnquist then contrasted the Gun-Free School Zones Act with Wickard, concluding: Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Lopez, ___ U.S. at ___ _ ___, 115 S.Ct. at 1630-31. The statute also did not require that a nexus be shown, on a case-by-case basis, between interstate commerce and possession of the gun at issue. Id. at ___, 115 S.Ct. at 1631. Additionally, in cases in which the regulated activity's impact upon interstate commerce is not "visible to the naked eye," specific or formal congressional findings, although not required, enable the Court "to evaluate the legislative judgment that the activity in question substantially affected interstate commerce." Id. at ___, 115 S.Ct. at 1632. With regard to the enactment of § 922(q), no such findings existed. The Court rejected the Government's contention "that Congress has accumulated institutional expertise regarding the regulation of firearms through previous enactments" because "`section 922(q) plows thoroughly new ground and represents a sharp break with the long-standing pattern of federal firearms legislation.'" Id. (quoting United States v. Lopez, 2 F.3d 1342, 1366 (5th Cir.1993), aff'd, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)). The Court found unpersuasive the Government's "costs of crime" and "national productivity" arguments. The Government argued that possessing a gun in a school zone could trigger violent crime, which impacts the national economy through spreading of insurance costs and through individuals' unwillingness to travel to areas perceived unsafe. The Government also argued guns at school adversely influence the national economy because such activity threatens the educational process and a handicapped learning environment results in less productive citizens. The Court acknowledged prior case law gave "great deference to congressional action," but the Court declined to further expand Congress' power pursuant to the Commerce Clause. Id. at ___, 115 S.Ct. at 1634. Acceptance of the Government's arguments, according to the Court, would allow Congress to regulate all activity potentially producing violent crime or impacting an individual's economic productivity. Accordingly, there would be no limits on the type of activity Congress could oversee, including areas in which States historically have governed such as education and family law. The end result would convert "congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. The Court concluded "possession of a gun in a local school zones is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. Here, too, if 21 U.S.C. § 860 can withstand a Commerce Clause challenge, it is because the regulated activity substantially affects interstate commerce. According to the Government, however, the similarity between the two statutes ends there. The Government contends the Drug-Free School Zones Act is distinguishable from the Gun-Free School Zones Act in that the former "directly regulates commerce in drugs." (Govt.'s Response, at 3.) The Government points out the existence of a large interstate market for illegal drugs and Congress' power to regulate that market as well as food and drugs in general. See, e.g., Minor v. United States, 571 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 289 n. 13, 24 L.Ed.2d 283 (1969) ("a flat ban on certain [narcotic drug] sales ... is sustainable under" the Commerce Clause); Reina v. United States, 364 U.S. 507, 511, 81 S.Ct. 260, 263, 5 L.Ed.2d 249 (1960) (in context of a Tenth Amendment challenge to grant of immunity section of Narcotic Control Act of 1956, Court referred to Congress' "undoubted power to enact the narcotics laws"); United States v. Walsh, 331 U.S. 432, 434, 67 S.Ct. 1283, 1284, 91 L.Ed. 1585 (1947) ("The Federal Food, Drug, and Cosmetic Act [of 1938] rests upon the constitutional power resident in Congress to regulate interstate commerce."); Yee Hem v. United States, 268 U.S. 178, 183, 45 S.Ct. 470, 471, 69 L.Ed. 904 (1925) ("The authority of Congress to prohibit the importation of opium in any form and, as a measure reasonably calculated to aid in the enforcement of the prohibition, to make its concealment with knowledge of its unlawful importation a criminal offense, is not open to doubt."); McDermott v. Wisconsin, 228 U.S. 115, 128, 33 S.Ct. 431, 433, 57 L.Ed. 754 (1913) ("no longer open to question" that Congress has full and ample power to regulate food and drugs). It matters not whether the congressional purpose was noncommercial in nature, e.g., to legislate against moral wrongs, or whether the activity was intrastate in character so long as the regulated activity substantially affects interstate commerce. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257-58, 85 S.Ct. 348, 357-58, 13 L.Ed.2d 258 (1964). Additionally, when enacting the Comprehensive Drug Abuse Prevention and Control Act of 1970, of which 21 U.S.C. § 860 is now a part, Congress found drug trafficking, whether interstate or intrastate in character, substantially affected interstate commerce.[4] The parties do not direct the court to any congressional findings concerning the 1984 enactment of 21 U.S.C. § 845a (now codified at 21 U.S.C. § 860). It seems likely Congress made no such findings. See Comprehensive Crime Control Act of 1984, Pub.L. 98-473, § 503, 1984 U.S.C.C.A.N. (98 Stat. 2069) 3182, 3440-42. Congress is not required to make such findings. It is only if the substantial connection is not readily apparent that the findings take on import. See Lopez, ___ U.S. at ___-___, 115 S.Ct. at 1631-32 (citing Perez v. United States, 402 U.S. 146, 156, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971); Katzenbach v. McClung, 379 U.S. 294, 304, 85 S.Ct. 377, 383, 13 L.Ed.2d 290 (1964)). Here, the substantial effect upon interstate commerce is readily apparent. Additionally, it is the opinion of this court that the Drug-Free School Zones Act, unlike the Gun-Free School Zones Act, does not plow new ground or represent a sharp break with previous drug trafficking legislation. The Lopez decision does not mandate this court find § 860 unconstitutional; 18 U.S.C. § 922(q) and 21 U.S.C. § 860 are distinguishable. Section § 922(q) punishes pure possession of a firearm near a school, whereas 572 § 860 prohibits drug trafficking, e.g., distributing, possessing with intent to distribute, and manufacturing, near a school. Drug trafficking is inherently commercial in nature; firearm possession is not. In contrast to the firearm possession at issue in Lopez, drug trafficking in a local school zone is an economic activity that, through repetition elsewhere, substantially affects interstate commerce. Prior to Lopez, the Ninth Circuit considered and rejected a Commerce Clause challenge to 21 U.S.C. 845a, reasoning: Congress has stated and we have confirmed that drug trafficking is a national concern which affects interstate commerce. This is true wherever it occurs, whether it be on or near a school yard or elsewhere. The fact that Congress also sought to protect children from the sale of drugs will not render unconstitutional its otherwise constitutional efforts to regulate drug trafficking. United States v. Thornton, 901 F.2d 738, 741 (9th Cir.1990). The Ninth Circuit confirmed this rationale in United States v. McDougherty, 920 F.2d 569, 572 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1119, 113 L.Ed.2d 227 (1991), stating "[i]t would be highly illogical to believe that such trafficking somehow ceases to affect commerce when carried out within 1000 feet of a school." The McDougherty court further explained: The schoolyard statute does not in any way regulate the schools themselves: it merely increases the punishment for those who sell drugs near the school. Drug trafficking is surely not a purely local concern, and in fact is already a federal crime, even in the absence of the schoolyard provision. Id. at 572 n. 2. The Lopez decision does not disturb the holding and rationale of the Thornton and McDougherty decisions with which this court agrees. The court finds 21 U.S.C. § 860 is a constitutional exercise of congressional authority under the Commerce Clause. IT IS, THEREFORE, BY THE COURT ORDERED that Raul Garcia-Salazar's motion to dismiss Count III of the indictment (Doc. 34) is denied. Copies of this order shall be mailed to counsel of record for the parties. IT IS SO ORDERED. NOTES [1] That statute provides in pertinent part: Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is ... subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana. 21 U.S.C. § 860(a). [2] The Constitution empowers Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. [3] The Lopez Court acknowledged: Within this final category, admittedly, our case law has not been clear whether an activity must "affect" or "substantial affect" interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause. We conclude, consistence with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity "substantially affects" interstate commerce. ___ U.S. at ___, 115 S.Ct. at 1630 (citations omitted). Previously, the Tenth Circuit Court of Appeals only required a de minimis impact upon interstate commerce. See United States v. Esch, 832 F.2d 531, 540 (10th Cir.1987) ("Congress has the inherent power to prohibit criminal activity under the Commerce Clause even though the effect of such activity on interstate commerce may be de minimis."), cert. denied, 485 U.S. 908, 991, 108 S.Ct. 1084, 1299, 99 L.Ed.2d 242, 509 (1988). [4] Congress found in pertinent part: (2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people. (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because (A) after manufacture, many controlled substances are transported in interstate commerce, (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and (C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession. (4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances. (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate.... (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic. 21 U.S.C. § 801; see Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 1970 U.S.C.C.A.N. (84 Stat.) 4566, 4595-96.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1138726/	315 So. 2d 842 (1975) Luther BENOIT, Plaintiff-Appellee, v. ACADIA FUEL & OIL DISTRIBUTORS, INC., Defendant-Appellee. GULF OIL CORPORATION, Defendant-Third-Party Plaintiff-Appellant, v. W. J. CLEVELAND, Third-Party Defendant-Appellee. No. 5041. Court of Appeal of Louisiana, Third Circuit. July 3, 1975. Rehearing Denied July 24, 1975. Writ Refused September 26, 1975. 843 Davidson, Meaux, Onebane & Donohoe, by James R. Lewis, Lafayette, for defendant-appellant. Reggie & Harrington, by Oscar W. Boswell, II, Crowley, for 3rd party defendant-appellee. Pugh, Buatt, Landry & Pugh, by H. Wayland Vincent, Crowley, for plaintiff-appellee. Noble M. Chambers, Jr. of Aaron, Aaron & Chambers, Crowley, for defendant-appellee. Before FRUGE, MILLER and DOMENGEAUX, JJ. DOMENGEAUX, Judge. Plaintiff brought this suit to recover damages for the alleged wrongful removal by the defendants of an H-frame lift, air compressor, and three electric gasoline pumps from a service station located on his property. The damages sought by plaintiff included, among other things, the replacement cost of the items removed. The defendants subsequently answered, denying liability, with Gulf Oil Corporation also filing a third party action against William 844 J. Cleveland (former owner of the property on which the service station is located). Following a trial on the merits, the district court rendered judgment in plaintiff's favor against the defendantGulf Oil Corporation, awarding damages of $1,744.00 as the value of the abovementioned lift and air compressor. Plaintiff's other demands were denied, as well as Gulf's third party action against William J. Cleveland. Only the defendant, Gulf Oil Corporation, has appealed. The other parties involved in the suit neither appealed nor answered the appeal. The facts leading up to this suit are as follows: W. J. Cleveland was the owner of two adjacent lots within the city limits of Crowley, Louisiana. In 1950 or 1951 Cleveland had a service station built on one of these lots. Included in the equipment installed at the time of construction were the following items: an air-driven lift, an air compressor used to operate the lift, and three underground gasoline storage tanks. These articles were the property of Gulf Oil Corporation. Representatives of Gulf also subsequently installed three electric gas pumps. The record is unclear as to what arrangement the oil company had at this early date with Cleveland or any lessees insofar as the use of the equipment was concerned. Evidence does reflect, however, that in 1969 Gulf executed form agreements with each of its station operators when the oil company had equipment on the respective premises. A like agreement would subsequently be drawn up with a new operator. Provided in said agreement was also an "Owner's Consent" under which the landowner (if different from the operator) consented to the installation of the equipment on his property and further agreed that he would never assert title to the property, that the agreement would survive the present occupier's occupancy until he gave Gulf ten days written notice to remove the equipment, and that Gulf had the right to remove their property at any time as provided in the agreement and lease. In 1969 the station was leased by Cleveland, under an oral agreement, to C. G. Hulsey, d/b/a Acadia Fuel and Oil Distributors, Inc., the local distributor for Gulf Oil products. In August, 1969, Hulsey agreed with one Merel Spell that the latter would operate the station. In turn Gulf entered into one of the aforesaid agreements with the operator and Cleveland, the landowner signing same on November 19, 1970. Prior to this suit, one Dalton Hanks replaced Spell as the station operator. In May, 1972, Gulf replaced the aforementioned air-driven lift with an H-frame hydraulic lift. On July 19, 1973, the plaintiff, Luther Benoit, purchased from Cleveland the lot on which the service station was located, "together with all buildings and improvements situated thereon". On or about August 1, 1973, the plaintiff sent notice to Acadia Fuel, through an attorney, to vacate the premises as of September 1, 1973. On August 19, 1973, Gulf deeded the three underground storage tanks to the plaintiff. Subsequently, during the week of August 23-30, Gulf hired a contractor to remove from the station the three gas pumps, hydraulic lift, and air compressor, in addition to a number of signs and lights. This suit followed. The defendant Acadia Fuel answered denying that it had anything to do with removal of the property in question. The defendantGulf Oil also denied liability alleging that the property was its own and that it had authority to remove same. Alternatively, it filed a third party action against Cleveland alleging the landowner did not comply with the ten days written notice, as provided in the aforementioned "Owner"s Consent" agreement, in order that it could remove its property before the sale of same to the plaintiff, and as a result was liable for any damages which Gulf might be held liable. Gulf further contended Cleveland was liable under Civil Code Article 508 and the theory of unjust enrichment. 845 Subsequent to trial the district judge, in transcribed oral reasons, concluded that under Louisiana Civil Code Article 464 the hydraulic lift was an immovable by nature and as a result transferred in the act of sale by the inclusion therein of the wording "together with all buildings and improvements situated thereon". He further held that the air compressor was also transferred since it was an integral part of the operation of the hydraulic lift. The court assessed a value of $1,744.00 for the two items (the figure used by the defendantGulf in its answer,[1] representing the value of the property and the price of workmanship for installing same). The court further concluded plaintiff had no interest in the three gas pumps and failed to show other damages allegedly sustained. In respect to Gulf's third party demand against Cleveland, the judge held that Cleveland was not bound by the agreement signed on September 19, 1970, since the instrument provided that Gulf promised to furnish and to install the equipment, i.e. in the future, while in fact the compressor had been placed on the property some twenty years before, and the H-frame hydraulic lift in question two years after, this agreement. He further held inapplicable Civil Code Article 508 since Cleveland was not owner of the land in question at the time of suit or at trial. DefendantGulf Oil appeals assigning as error essentially the following actions of the trial court: (1) In not considering parol evidence to show the plaintiff had knowledge that the items in question actually belonged to Gulf and had no intention to acquire title thereto; (2) In holding that the lift and air compressor were immovables by nature; (3) In failing to give force to the "Owner's Consent" agreement; (4) In failing to apply Civil Code Article 508; (5) In failing to hold that Cleveland had wrongfully converted Gulf property by selling it to the plaintiff and had unjustly enriched himself in so doing. The initial question to be determined on appeal is the status of both the hydraulic lift and air compressor. If in fact the items are "immovable by nature" the plaintiff acquired clear title to them by virtue of their legal "accession" to the property. Louisiana Civil Code Articles 498, 504. American Creosote Company, Inc. v. Springer, 257 La. 116, 241 So. 2d 510 (1970). This is despite any knowledge on the part of the plaintiff that the equipment actually belonged to Gulf rather than his predecessor in title, W. J. Cleveland. For it is clear under our jurisprudence that the purchaser is entitled to rely on the public records and is not bound or barred by unrecorded claims against the property. Herein, although an agreement existed between the former landowner and Gulf, showing the true ownership of the property in question, the plaintiff was neither a party to that transaction nor was it recorded.[2] As a result it has no effect on plaintiff's title. Louisiana Civil Code Article 2266, American Creosote Company, Inc. v. Springer, supra; Westwego Canal & Terminal Co., Inc. v. Pizanie, 174 La. 1068, 142 So. 691 (1932); McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909); Industrial Outdoor Displays v. Reuter, 162 So. 2d 160 (La.App. 4th Cir. 1964), writ refused 246 La. 348, 164 So. 2d 352 (1964). As a result, it is of no consequence whether or not parol evidence was allowed to show that plaintiff allegedly knew of the true ownership of the equipment prior to the sale of the property. 846 STATUS OF THE HYDRAULIC LIFT At the outset we will consider the question of whether the hydraulic lift was an immovable by nature. Civil Code Article 464 provides that: "Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature." Immovability by nature has been characterized as a creation of the law based on practical considerations and on inherent characteristics of the things concerned. What is a building or other construction qualifying as an immovable under Article 464 is left for judicial determination according to prevailing notions and society. Bailey v. Kruithoff, 280 So. 2d 262 (La.App. 2nd Cir. 1973); Yiannopoulos, Louisiana Civil Law Treatise, Vol. 2, Property, Sections 42, 45, 48. Plaintiff contends the hydraulic lift should be considered an "other construction" within the meaning of Article 464. We agree. The jurisprudence of this state has in the past found "other constructions" to include a cistern,[3] a corn mill,[4] a gas tank,[5] a barbed wire fence,[6] an outdoor advertising sign,[7] and a railroad track.[8] Three criteria that are often mentioned in decisions by our courts, when faced with the question of what is an "other construction" within the meaning of Article 464, and therefore immovable by nature, are (1) size of the structure, (2) a certain degree of integration or attachment to the soil, and (3) some degree of permanency. Bailey v. Kruithoff, supra. See also Yiannopoulos, "Railroad Tracks as Immovables by Nature, Ruminations on American Creosote Company v. Springer", 19 La. Bar J. 37, 40 (June, 1971). In the present case the original air-driven lift, as well as the replacement hydraulic lift, were imbedded in concrete. Testimony indicates that a hole (approximately eight feet in depth) was first dug, and about a foot of concrete placed in the bottom as "padding". Thereafter the lift was inserted in the hole, with six or so feet of dirt placed around it, and four inches of concrete poured at the top of the lift, level with the floor. In order to remove the lift the concrete had to be broken and the lift pulled out of the ground. Thus, both the requirement of permanency and some degree of integration or attachment to the soil is met. Accordingly we conclude the lift was an immovable by nature as an "other construction" under Civil Code Article 464. STATUS OF THE AIR COMPRESSOR The next issue raised is whether the air compressor also is an immovable. Plaintiff-appellee contends the object is a component part of the immovable lift and therefore likewise immovable by nature. The trial judge agreed with this contention and so held. Appellee further alleges that the compressor can be classified as an immovable by nature under Civil Code Article 467. We disagree with both contentions. Our jurisprudence recognized in Industrial Outdoor Displays v. Reuter, supra, the principle that component parts of "other constructions" under Civil Code Article 464 are also immovable. In Industrial Outdoor Displays the court concluded that 847 sign faces and other equipment (including electrical apparatus and time clocks, which were attached to concrete-imbedded, steel "H" beams, making up an outdoor display sign) were component parts of the object in question since if they were removed the object would be destroyed or rendered useless. They analogized same to a door of a house.[9] In the present case the air compressor was bolted to several boards which in turn sat on, i.e. not bolted or attached to, the concrete floor of the filling station. The only connection from the compressor to the lift was a 3/8 or ½ inch pipe transmitting the air to the hydraulic lift. To disconnect same it was only necessary to unscrew the pipe union and remove the piece of equipment. Although we readily agree that the hydraulic lift cannot be operated without the use of the air compressor, we, nevertheless, conclude that it is not a component part of the lift. Certainly it does not meet the "size, integration, and permanency" tests which our jurisprudence has used as criteria for determining whether an "other construction" can be classified as immovable by nature under Article 464. Primarily, however, practical considerations dictate holding same to be movable. Using only the test "that the `other construction' could not be operated without the questioned object" could lead to consequences, beyond the bounds of reason. Likewise, the air compressor cannot be considered immovable by nature by reason of it being a component part of a building under Civil Code Article 467. The Article clearly requires that the object be "connected with or attached to the building by the owner . . . ." Richardson v. Item Co., 172 La. 421, 134 So. 380 (1931); Edwards v. S. & R. Gas Co., 73 So. 2d 590 (La.App. 2nd Cir. 1954); Yiannopoulos, Louisiana Civil Law Treatise, Vol. 2, Property, Section 47. There is no question herein but that Gulf, rather than the owner of the station, W. J. Cleveland, placed the compressor on the premises. Accordingly, the judgment of the trial court should be reversed in this particular. THIRD PARTY DEMAND AGAINST W. J. CLEVELAND The next issue raised is whether W. J. Cleveland is liable[10] to Gulf Oil for the amount awarded because of the wrongful removal of the hydraulic lift, by reason of the abovementioned "Owner's Consent" agreement, Civil Code Article 508, or otherwise. We find Civil Code Article 508 applicable to the facts of this case, and as a result need not consider the various other arguments asserted in this regard. See: Prevot v. Courtney, 241 La. 313, 129 So. 2d 1 (1961); Cloud v. Cloud, 145 So. 2d 331 (La.App. 3rd Cir. 1962), cert. denied December 10, 1962; Comments, 28 L.L.Rev. 584 (1968). Civil Code Article 508 provides in pertinent part: "When plantations, constructions and works have been made by a third person, and with such person's own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same. 848 . . . . . . If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby." We conclude that under the law W. J. Cleveland is deemed to have elected to keep the immovable lift at the time he sold his property to plaintiff "with all buildings and improvements situated thereon", without either indicating in the act of sale that same was not conveyed therein, or giving Gulf notice to remove same prior to the sale. Blocker v. Mizell, 202 So. 2d 357 (La.App. 1st Cir. 1967), writ refused 251 La. 230, 203 So. 2d 559 (1967). As a result, Gulf is entitled to reimbursement of the "value and of the price of workmanship" of the lift. The fact that Cleveland was not owner of the land at the time of trial, i.e. the reason given by the trial judge for disregarding the codal provision, has no effect upon the application of Civil Code Article 508. The time in question is the time of the sale of land from Cleveland to the plaintiff. VALUE OF WRONGFULLY REMOVED LIFT The next question raised is the value of the lift which is to be assessed as damages against Gulf Oil, in favor of the plaintiff herein, for its wrongful removal, and in turn to be assessed against W. J. Cleveland, in favor of Gulf on the latter's third party demand. As aforementioned, the lift in question was installed in May, 1972, only fifteen months before its removal by Gulf in August, 1973. It was stipulated by counsel for plaintiff and Gulf Oil that the replacement value of the lift amounted to $1,644.30. Considering the object in question and the practicality of obtaining and installing a similiar aged lift, we conclude that this latter amount is the measure of damages sustained by the plaintiff, that is, he had to replace the wrongfully removed lift in order to operate the station. For the above and foregoing reasons the judgment of the trial court is reversed in regard to the air compressor, and it is hereby ordered, adjudged, and decreed that the same is a movable and thereby rightfully removed from the premises by its owner, Gulf Oil. Further, the judgment is hereby amended so as to award the plaintiff the sum of $1,644.30 (i.e. the replacement value of the lift) to be paid by the defendantGulf Oil Corporation. The judgment is further reversed insofar as Gulf's third party demand is concerned and it is hereby ordered, adjudged, and decreed that same be granted against the Estate of William J. Cleveland, in the sum of $1,644.30. In all other respects the judgment of the trial court is affirmed. Costs at trial and on appeal are assessed in equal portions to the defendant, Gulf Oil Corporation, and the third party defendant (now substituted)the Estate of William J. Cleveland. Affirmed in part, amended in part, reversed in part, and rendered. FRUGE, J., dissents in part, concurs in part with written reasons. FRUGE, Judge (dissenting in part and concurring in part). I respectfully dissent from the portion of the decree which finds the third party defendant, the estate of William J. Cleveland, liable. In my opinion the trial court was correct in denying the third party demand. In all other respects I concur in the decree. NOTES [1] The answer was subsequently amended claiming the sum of $3,600.00 as the value of the two items, plus installation. [2] As pointed out in American, Creosote Company, Inc. v. Springer, 257 La. 116, 241 So. 2d 510, 515 (1970), recordation of the instrument would have protected the oil company herein. [3] Pohlman v. De Bouchel, 32 La.Ann. 1158 (1880). [4] Bigler v. Brashear, 11 Rob. 484 (1845). [5] Monroe Auto & Supply Co. v. Cole, 6 La.App. 337 (La.App. 2nd Cir. 1927). [6] Bailey v. Kruithoff, 280 So. 2d 262 (La.App. 2nd Cir. 1973). [7] Industrial Outdoor Displays v. Reuter, 162 So. 2d 160 (La.App. 4th Cir. 1964), writ refused 246 La. 348, 164 So. 2d 352 (1964). [8] American Creosote Company, Inc. v. Springer, 257 La. 116, 241 So. 2d 510 (1970). [9] Under the jurisprudence as it now stands, with the holding in Industrial Outdoor Displays to the effect that component parts of an "other construction" (and therefore an immovable by nature) under Civil Code Article 464 need not be placed on the property by the owner thereof, there seems to be an obvious lack of congruity insofar as Civil Code Article 467 is concerned. For a component part of a building, the latter being considered an immovable by nature under Article 464, must be, among other things, "connected with or attached to the building by the owner" (emphasis added) according to Article 467. [10] Subsequent to trial the Estate of William J. Cleveland was substituted as Third Party Defendant in lieu of William J. Cleveland, now deceased.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1447638/	797 F. Supp. 497 (1992) UNITED STATES of America v. SWANK CORPORATION, et al. No. CR 92-59. United States District Court, E.D. Virginia, Richmond Division. July 2, 1992. 498 S. David Schiller, G. Wingate Grant, Asst. U.S. Attys., Richmond, Va., for plaintiff. Brodnax Haskins, and Thomas W. Williamson, Jr., Richmond, Va., for defendants. MEMORANDUM OPINION RICHARD L. WILLIAMS, District Judge. This matter is before the Court on the Defendant's Motion to Modify the Restraining Order entered by the Court on April 20, 1992. Also pending is the Receiver's Application for Determination of Authority to Pay Legal Expenses. For the reasons stated below, the Defendant's motion is denied in part and granted in part. In addition, the Receiver is instructed to not pay the legal expenses of the Swank Defendants out of corporate funds. FACTUAL BACKGROUND In 1972, Donald Swank, Sr. founded the Swank Corporation, an office supplies sales 499 business, and he remains its president and sole stockholder. By the late 1980's, the Swank Corporation had over 600 accounts with businesses, law firms, and other customers situated throughout the eastern portion of the United States, from Philadelphia to Atlanta. It earned gross annual sales of several million dollars per annum. On April 20, 1992, Swank and eleven of the Corporation's sales representatives were indicted for conspiracy, mail fraud, bank fraud and money laundering. On May 19, 1992, a superseding indictment added additional counts of money laundering and witness tampering. Counts 36-41 of the superseding indictment allege six violations of 18 U.S.C. § 1956(a)(1)(A)(i), which total $4,982,369 in laundered money. Each of these counts demands that the Defendants "forfeit all property ... involved in said offense and all property traceable to such property" pursuant to 18 U.S.C. § 982. Upon the Government's motion, the Court entered an ex parte order on April 20, 1992, which, inter alia, restrained and enjoined the Swank Defendants from "transferring, conveying, liquidating, encumbering, wasting, secreting, modifying the terms of or otherwise disposing of any real or personal property described in the Indictment in this case or any other property in which they have an interest...." (emphasis added.) The Restraining Order contains only one proviso for relief from its restraint: In the event that a defendant desires to transfer, convey, liquidate or encumber any property and if the United States consents to such transfer, the transfer may be made upon condition that all sales proceeds shall be placed in escrow in an account(s) approved by counsel for the government. In the event that forfeiture is ultimately ordered, any funds received from the sale of property for the actual property forfeited shall be substituted for the actual property and such funds shall also be available to satisfy an order forfeiting substitute assets pursuant to 21 U.S.C. § 853(p) and 18 U.S.C. § 982(b)(1)(A).... By Order dated June 9, 1992, leave of Court was granted to Thomas Williamson, Jr. for a special appearance to make the instant motion. The sole purpose of the motion is to permit the release of assets to Mr. Swank to enable him to retain counsel of his choice namely, the law firm of Williamson & Stoneburner. Swank seeks the entry of an order modifying the Restraining Order for the purpose of permitting Swank to alienate, transfer, convey, liquidate or encumber real estate owned by Donald Swank personally and acquired prior to 1987. ARGUMENT AND DISCUSSION OF AUTHORITY I. MOTION TO MODIFY RESTRAINING ORDER A. Applicable Law: The Substantial Connection Standard Criminal forfeiture proceedings are actions in personam. United States v. Amend, 791 F.2d 1120, 1128 (4th Cir.1986). Thus, forfeiture is imposed "directly on an individual as part of a criminal prosecution rather than in a separate proceeding in rem against the property subject to forfeiture." United States v. Huber, 603 F.2d 387, 396 (2d Cir.1979). The Government must allege forfeiture in the indictment and must carry the burden of proof beyond a reasonable doubt. Fed.R.Crim.P. 7(c)(2). The applicable federal criminal forfeiture sections set forth the statutory requisites. 18 U.S.C. § 982(a)(1), provides in pertinent part, as follows: The Court, in imposing sentence on a person convicted of an offense in violation of ... section 1956 or 1957 of this Title, shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such offense. This provision goes on to state that property subject to forfeiture under § 982(a)(1), any seizure or disposition thereof, or any judicial proceeding in relation thereto, shall be governed by sections (c) and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 500 1970 (21 U.S.C. § 853). Id. at § 982(b)(1)(A). Section 982(a)(1) of Title 18 U.S.C. has been construed as authorizing forfeiture of an entire bank account or business which was used to "facilitate" the laundering of money in violation of 18 U.S.C. § 1956. See, e.g., United States v. All Monies ($477,048.62) in Account No. XX-XXXX-X, 754 F. Supp. 1467, 1473 (D.Haw.1991). The Fourth Circuit has interpreted this concept of "facilitation" to require that the forfeited property be used in "substantial connection" with the criminal activity. To be forfeitable, there must be a substantial connection between the property and the illegal activity. United States v. Schifferli, 895 F.2d 987, 989-990 (4th Cir.1990). There must be more than an incidental connection between the property and the illegal activity, but the property need not be indispensable to the commission of the offense. United States v. Premises Known as 3639-2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir.1989). Nor does the property need to be exclusively used for illegal activities. Schifferli, 895 F.2d at 991. If a portion of the property is used to facilitate the offense, then all of the property is forfeitable. United States v. Santoro, 866 F.2d 1538, 1542 (4th Cir.1989). In sum, any property involved in illegal activity may be said to "facilitate" the criminal activity, and thereby causes such property to be forfeitable. B. Property Acquired Prior to 1987 Under the "substantial connection" standard, the property in question must be used or intended to be used to commit a crime, or must facilitate the commission of a crime. Schifferli, 895 F.2d at 990. The earliest year in which the Swank Defendants are alleged to have committed criminal offenses is 1987. Prior to 1987, Swank had acquired a number of parcels of real estate. These properties, Swank argues, were not "involved" in the alleged offenses of money laundering nor do they constitute property "traceable to such property." Accordingly, Swank contends that these parcels of real estate are not subject to forfeiture pursuant to 18 U.S.C. § 982 and should not, therefore, be subject to pretrial restraint. Because there is no "substantial connection" between the restrained property and the criminal activity, Swank maintains that the Restraining Order obtained by the Government works an impermissible restriction on real estate or other property which was purchased or obtained by the Swank Defendants prior to the alleged date of the commission of the specified unlawful activity. In short, Swank asks that be allowed to use such assets as he sees fit, including retaining legal counsel of his choice. C. Restraint of Pre-1987 Property as "Substituted Assets" The Government does not disagree with Swank's contention that the assets held by Swank in his individual capacity and acquired prior to 1987 have no "substantial connection" with Mr. Swank's alleged illegal activity. However, with one exception, the Government objects to modifying the Restraining Order. The United States argues that the date of acquisition of Swank's properties is immaterial, as the whole purpose of the statutory provision providing for substitution of assets is to enable the government to satisfy an order of forfeiture out of property which is not otherwise subject to forfeiture. 21 U.S.C. § 853(p); see In re Billman, 915 F.2d 916, 921 (4th Cir.1990) ("the purpose of § 1963(d)(1)(A) is to preserve pending trial the availability for forfeiture of property that can be forfeited after trial"),[1]cert. denied, ___ U.S. ___, 111 S. Ct. 2258, 114 L. Ed. 2d 711 (1991). 21 U.S.C. § 853(p) states in full: If any of the property described in subsection (a), as a result of any act or omission of the defendant 501 (1) cannot be located upon the exercise of due diligence; (2) has been transferred or sold to, or deposited with a third party; (3) has been placed beyond the jurisdiction of this court; (4) has been substantially diminished in value; or (5) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any property of the defendant up to the value of any property described in paragraphs (1) through (5). The superseding indictment charges six discrete counts of money laundering which total $4,982,369 in laundered money. This money is alleged to have been laundered through the corporate accounts of the Swank Corporation. Of the amount of money alleged to have been laundered, $1,482,369 is money that presumably has long since been spent, either through payment of salaries or expenses of the corporation, and any of that money which Donald Swank personally received has likewise been dissipated. The balance of $3,500,000 is within the custody of the Court but, as is discussed below, cannot be used to satisfy an order forfeiting substitute assets. If Mr. Swank is convicted of counts 36-41, he will be personally liable to the United States in a judgment for $4,982,369. The United States maintains that the Court has no choice but to continue to restrain assets worth at least that amount if there is to be any reasonable likelihood that an order of forfeiture against Donald Swank could ever be satisfied. The Government's position is strongly supported by the recent Fourth Circuit opinion of In re Billman, 915 F.2d 916 (4th Cir.1990). In Billman, a RICO case that involved similar forfeiture provisions to those of the instant case, a third party petitioned the court to release from restraint certain funds that had been given the third party by the defendant. In releasing the funds from restraint, the district court held that the forfeiture statute provides authority to restrain prior to trial "only those assets which the government proves are connected to the [defendant's] alleged racketeering activity." Id. at 917. Based on the inferences drawn by the district court, the Fourth Circuit assumed that the funds in question were not the product of illegal activity. Id. at 920. Despite this assumption, the Fourth Circuit overruled the trial court. The Billman court noted that forfeiture is an in personam proceeding and that forfeiture constitutes partial punishment for the offense. Id. (citing United States v. Conner, 752 F.2d 566, 576 (11th Cir.1985)). Thus, "a forfeiture money judgment can be satisfied out of any of the defendant's assets." Billman, 915 F.2d at 920 (citing United States v. Ginsburg, 773 F.2d 798, 800-03 (7th Cir.1985)). Consequently, after a conviction on a forfeiture count, the district court may order forfeiture of the defendant's substitute assets. The Billman Court then examined the question of whether substitute assets could be restrained pending trial and ruled in the affirmative. 915 F.2d at 920-21. With an eye to the remedial purposes of the forfeiture statute, the court read the provision allowing for a restraining order in connection with the substitute assets provision as calling for the preservation and restraint of substitute assets pending trial. Id. at 921; see also United States v. Skiles, 715 F. Supp. 1567 (N.D.Ga.1989) (holding in the drug trafficking context that the government is allowed to restrain "additional" assets, pre-trial, to ensure sufficient assets for forfeiture). The Fourth Circuit in Billman relied on United States v. Monsanto, 491 U.S. 600, 109 S. Ct. 2657, 105 L. Ed. 2d 512 (1989), in concluding that the statute should be construed to authorize pre-trial restraint of substitute assets. 915 F.2d at 921. The Supreme Court in Monsanto had stated that "[p]ermitting a defendant to use assets for private purposes that, under [21 U.S.C. § 853(c)], will become the property of the United States if a conviction occurs, cannot be sanctioned." 109 S.Ct. at 2665. Lastly, the Fourth Circuit held that the pre-trial restraint of substitute assets violates 502 neither the defendant's Sixth Amendment right to counsel nor the Due Process Clause of the Constitution. Billman, 915 F.2d at 922. The Defendant labels Billman a "result-oriented" decision and asks this Court to limit the holding in that case to its particular facts. However, while the crime underlying the Billman case may be more serious than that alleged here, this Court cannot casually disregard the statutory construction and general principles set forth by the court in Billman, as the Defendant requests. Furthermore, the cases cited by the Defendant, United States v. Chinn, 687 F. Supp. 125 (S.D.N.Y.1988) and United States v. Jackson, 718 F. Supp. 1288 (N.D.W.Va.1989) as support for its argument are inapposite and unpersuasive. First, both decisions pre-date the Fourth Circuit's opinion in Billman. In addition, the Billman Court expressly criticized the reasoning of Chinn.[2] 915 F.2d at 919. The Defendant also stands on shaky ground in relying on Jackson. In that case, the reason why the district court declined to grant a pre-trial order restraining the defendant's substitute assets was because the criminal activity was alleged to have taken place before the effective date that 21 U.S.C. § 853(p) (the substitute assets provision) was incorporated by reference into 18 U.S.C. § 982(b). 718 F.Supp. at 1292. The court in Jackson expressly reserved to a later time a ruling on the question that is now before the Court regarding Mr. Swank. Id. at 1293. In its initial brief, the Defendant makes the following statement: The government may contend the pre-1987 real estate may be restrained as `substituted assets.' ... However, the other assets restrained by the Restraining Order should be sufficient to satisfy any forfeiture verdict. (Def.Br. at 11.) This statement appears to reflect a misunderstanding as to the operation and interplay of the substitute assets provision and outright forfeiture of assets used to facilitate criminal behavior. See 21 U.S.C. § 853(p); 18 U.S.C. § 982. The indictment alleges that the Corporation is "property involved in" the offense of money laundering and 18 U.S.C. § 982(a)(1) mandates the forfeiture of such property. The Government claims that the corporate bank accounts were used to conduct financial transactions involving the proceeds of monies which represent the proceeds of mail fraud activity in violation of 18 U.S.C. § 1956(a)(1), and, if the jury so finds, this requires forfeiture of the Corporation itself. The ability to forfeit a business entity which is used to facilitate the offense of money laundering is well established. See, e.g., United States v. South Side Finance Inc., 755 F. Supp. 791, 797-98 (N.D.Ill.1991) (a business through which laundered money is moved is forfeitable as property involved in the money laundering offense). Accordingly, any particular asset of the Swank Corporation, including the $3.5 million in cash, will be forfeited upon conviction, and, therefore, must be restrained in order to preserve the asset for forfeiture. 21 U.S.C. § 853(e)(1); see Billman, 915 F.2d at 921. If the Defendants believe that assets of Swank Corporation could be used to satisfy any judgment of forfeiture directed to Donald Swank personally, they are mistaken; such a result would not be possible if the jury also forfeits the Swank Corporation as "property involved in" the illegal transactions. Under the relation back doctrine of 21 U.S.C. § 853(c), all "right, title, and interest in property [subject to forfeiture] vests in the United States upon the commission of the act giving rise to forfeiture ..." Thus, assuming a favorable jury verdict for the prosecution, the Corporation will be deemed to be property of the United States as of some point in time long before any money judgment of forfeiture is imposed on Mr. Swank personally. Any order 503 of forfeiture for substitute assets would have to be satisfied out of something which was not itself subject to forfeiture. Any other construction would allow one to satisfy a substitute forfeiture judgment with property that belongs to the United States and thereby render meaningless the substitute asset provision of the statute. In short, if Swank Corporation is forfeited as property involved in the offense, and if Donald Swank is found guilty of violating 18 U.S.C. § 1956 and ordered to forfeit the money involved in those transactions, nothing held by Swank Corporation could be used to satisfy the personal money judgment against Mr. Swank. The Defendant disputes the fact that the entire Swank Corporation may be subject to forfeiture as property involved in the offense under 18 U.S.C. § 982(a)(1). The Defendant reasons that because the amounts alleged to have been laundered through the corporate accounts are de minimis in relation to the value of the assets and the extent of legitimate business of the Swank Corporation, it would be unjust for the entire corporation to be forfeited. This argument, however, has been rejected by the courts of this circuit and others. Even if a portion of the property sought to be forfeited is used to "facilitate" the alleged offense, then all of the property is forfeitable.[3] Moreover, the facilitation of a single felony offense is sufficient to justify forfeiture. See United States v. Santoro, 866 F.2d 1538, 1542 (4th Cir.1989). The so-called "substantial connection" test is not a measure of the amount of money laundered, and the proportionality between the value of the forfeitable property and the severity of the injury inflicted by its use is irrelevant. See United States v. Premises Known As 3639-2nd St. N.E., 869 F.2d 1093, 1096 (8th Cir.1989). In other words, the quantity of money laundered can be relatively small, so long as the quality of the relationship between the forfeitable property and the crime is substantial. See id. at 1098 (Arnold, C.J. concurring). In this case, the Government alleges that the Defendants cleared the proceeds of specified mail fraud activity through the Swank Corporation's bank accounts. Limiting forfeiture under these circumstances to the proceeds of the initial fraudulent activity would effectively undermine the purpose of the forfeiture statute. Criminal activity such as money laundering largely depends upon the use of legitimate monies to advance or facilitate the scheme. It is precisely the commingling of tainted funds with legitimate money that facilitates the laundering and enables it to continue. See United States v. Certain Funds on Deposit in Account No. XX-X-XXXXX, 769 F. Supp. 80, 84-85 (E.D.N.Y.1991). D. Partridge Hill Farm The Government states that Donald Swank personally owns at least three parcels of improved real estate and three parcels of land. These are 2934 Everleigh Way, Fairfax; 3147 Ellenwood Drive, Fairfax; 166 Kirkbride Road, Vorhees NJ; and land in the Columbia area of Goochland County. Because of the need to restrain sufficient assets which could be available to satisfy an order forfeiting substitute assets, the United States believes that the Court should maintain the restraint on these properties. Indeed, this appears to be the only property of Donald Swank which could be used to satisfy a substitute asset order. However, with respect to the property known as Partridge Hill Farm, the Government does not oppose modification of the Restraining Order so as to release this property from any restraint associated with this case. Since the time the Restraining Order was entered, the Government has learned that this property is held as tenants by the entirety by Donald Swank and Betty Swank, and not as an individual asset of Mr. Swank. Because of the practical considerations associated with forfeiture of property held as tenants by the entirety, 504 the Government does not object to a modification of the Restraining Order to release this one property from restraint. Inquiry to the Goochland tax assessor's office indicates that the assessed value of Partridge Hill Farm is $367,000. Thus, it is possible that Mr. Swank's one-half interest in the property would be sufficient to allow him to borrow against the equity in the farm a sufficient sum of money which could be used to retain counsel of his choice. E. Conclusion In this case, the Government has identified the theories upon which the various assets are subject to forfeiture, i.e., outright in the case of the Corporation, and as potential substitute assets in the case of most property Swank owns personally. Assets that have been targeted and restrained as potentially forfeitable cannot be used to pay legal fees. Mr. Swank's real property holdings are potentially forfeitable as substitute assets. Thus, the Restraining Order will not be modified to allow Mr. Swank to sell off his assets. The only exception to this ruling is Partridge Hill Farm, which will be removed from restraint and which can be used by Mr. Swank to pay his legal fees. The Court is frankly concerned by the scope and breadth of the potential forfeiture judgment which may be rendered against Mr. Swank. As president and sole stockholder of the Swank Corporation, Mr. Swank stands to lose millions if his corporation is forfeited as property involved in the offense of money laundering. Above and beyond this loss, Mr. Swank could be called upon personally to satisfy a forfeiture claim of almost $5 million. While the Court realizes that the federal forfeiture provisions are purposely broad remedies, it is certain that they were not intended to provide an unconstitutional windfall for the government. Thus, the Court wishes to make clear that nothing in the Court's opinion today forecloses the possibility that a given use of the forfeiture statutes may violate the Excessive Fines Clause of the Eighth Amendment. Forfeiture under section 853 is clearly "punishment" as that term is used in the Eighth Amendment. Moreover, the Supreme Court has held that the Eighth Amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). This Court recognizes that a district court must avoid unconstitutional results by fashioning forfeiture orders that stay within constitutional bounds. Although this question is not now before me, the Court recognizes that before forfeiture is ultimately ordered, a district court must make a determination, based upon appropriate findings, that the interest ordered forfeited is not so grossly disproportionate to the offense committed as to violate the Eighth Amendment. If, at a later date, the Defendant raises a claim that the full force of permissible forfeiture under 18 U.S.C. § 982 and 21 U.S.C. § 853 may be grossly disproportionate to the offense committed, this Court will discharge its constitutional function by giving the matter careful scrutiny. II. RECEIVER'S APPLICATION FOR DETERMINATION OF AUTHORITY TO PAY LEGAL EXPENSES The Receiver, Kevin Huennekens, also asks the Court to make a determination as to whether the Receiver is authorized to pay certain legal expenses of the Swank Corporation. On May 1, 1992, the Receiver was presented with a number of invoices requesting payment of certain retainers and other legal expenses incurred by Swank Defendants in connection with this case. Since this date, the Receiver has received additional requests for payment of legal fees and for reimbursement of legal fees incurred. More such requests are likely to be forthcoming. The Receiver has located a corporate resolution dated September 12, 1991, approving reimbursement of expenses incurred by certain of Swank Corporation's employees in connection with this case. But for the forfeiture action pending against the company and the Restraining Order previously 505 entered, it would appear that the invoices represent legal obligations of the company. The Receiver seeks advice as to whether to pay these invoices or not.[4] The Government opposes the payment of any of the matters set forth in the application by the Receiver. The Receivership Order has allowed the Corporation to stay in business, but nothing in that Order was intended to permit the corporation's assets to be used to pay expenses that were incurred by individual employees of the Corporation. The fact that the Corporation purportedly passed a resolution authorizing advancement of legal expenses in connection with the criminal case does not change the fact that the asset (the Corporation) out of which those expenses are sought to be paid is subject to forfeiture. The Supreme Court has specifically held that property subject to forfeiture may not be used to pay counsel fees. Caplin & Drysdale v. United States, 491 U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989). Clearly, the corporate defendant has no right to diminish the asset to be forfeited, the corporation itself, for attorney's fees or any other expense. In agreeing to the Receivership Order, the Government only consented to allowing the Corporation to continue to do business. It did not agree to letting assets which are subject to forfeiture to be used by the Defendants to pay off legal debts. Caplin & Drysdale has made this issue very clear. The Government is correct assets subject to forfeiture cannot be used to pay legal fees. Thus, the Receiver is instructed not to pay the legal invoices. In the event that this case does not result in an order of forfeiture, the Corporation will be free to pay such of its debts as it chooses. Should the Corporation be forfeited to the United States, there exist two potential mechanisms whereby individuals who have a claim against the Corporation may seek redress. First, any person asserting a legal interest in property that has been forfeited may petition the Court for a hearing to adjudicate the validity of his interest in the property. In appropriate instances, the Court may grant relief. 21 U.S.C. § 853(n). Secondly, a person adversely affected by a forfeiture may seek relief through a petition for remission or mitigation directed to the Attorney General. Section 853(i) provides that the Attorney General is authorized to grant petitions for mitigation or remission of forfeiture or take any other action to protect the rights of innocent persons which is in the interests of justice. 21 U.S.C. § 853(i). CONCLUSION For the reasons stated above, the Defendant's motion to modify the Restraining Order is denied for the most part, with the exception that Partridge Hill Farm will be removed from the purview of the Order. In addition, the Receiver be instructed to not pay the legal expenses of the Swank Defendants out of corporate funds. NOTES [1] Section 1963(d)(1)(A) is essentially identical to 21 U.S.C. § 853(e)(1)(A) which is applicable in this proceeding as incorporated by 18 U.S.C. § 982(b)(1)(A). In fact, the Fourth Circuit has recognized the "analogous provisions dealing with forfeiture arising out of trafficking in drugs" in Billman. 915 F.2d at 921. [2] The Fourth Circuit in Billman stated that: The district court's decision is consistent with the only reported case that deals with pretrial restraint of substitute assets in the hands of a third person. United States v. Chinn, 687 F. Supp. 125 (S.D.N.Y.1988). The Fourth Circuit then proceeded to reverse the district court's decision. [3] "Facilitating" property occurs when the property as used makes the underlying criminal activity less difficult or "more or less free from hindrance." United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.1990). [4] The Court has dealt with this issue before. On May 5, 1992, Defendant Arrington filed a motion for relief from the Restraining Order in which he sought permission to have payment of counsel fees made to his attorney, Mr. Dohnal, with a provision that such fees be not subject to forfeiture. Counsel for Defendants Belcher and Clark orally joined in this motion. The Court's Order of May 13, 1992 resolved these claims against Messrs. Arrington, Belcher, and Clark.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1169735/	931 P.2d 511 (1996) ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Thomas H. JUNIEL and Vernon E. Green, Defendants-Appellants. No. 95CA0471. Colorado Court of Appeals, Div. IV. July 11, 1996. Rehearing Denied August 8, 1996. Certiorari Denied February 18, 1997. 512 Holland & Hart, Brian Muldoon, Steven C. Choquette, Denver, for Plaintiff-Appellee. Fogel, Keating & Wagner, P.C., William L. Keating, Steven R. Polidori, Kristin D. Sanko, Denver, DiManna & Jackson, Gary M. Jackson, Denver, Breit, Bosch, Levin & Coppola, P.C., John L. Breit, Bradley A. Levin, Denver, for Defendants-Appellants. Opinion by Judge DAVIDSON. In this action for declaratory relief regarding the criminal acts exclusion clause of an insurance policy, defendants, Thomas H. Juniel (insured) and Vernon E. Green (neighbor), appeal from a judgment of the trial court ruling that plaintiff, Allstate Insurance Co. (insurer), had no duty to defend or indemnify the insured. We affirm. Unsatisfied after confronting a neighbor who was shooting fireworks into his yard, the insured went into his house, retrieved a handgun with a loaded clip, hid the gun in the waistband of his pants, and returned outside. After he again confronted his neighbor about the fireworks, the neighbor approached insured in a threatening manner. Insured then drew the gun, loaded a round into the chamber, and pointed it at the ground. In an attempt to grab the gun from the insured, the neighbor was seriously injured when the gun discharged. 513 Insured pled guilty to second degree felony assault and misdemeanor menacing. See §§ 18-3-203 & 18-3-206, C.R.S. (1986 Repl.Vol. 8B). Neighbor subsequently sued insured for recklessly and negligently causing him physical injury, specifically citing these two crimes in his complaint. Insurer refused to pay or to defend insured in the suit and sought a declaratory judgment to define its obligations under insured's homeowner's policy. As pertinent here, neighbor and insured stipulated to a judgment in favor of neighbor and insured agreed to litigate this action with insurer. On cross-motions for summary judgment, the trial court ruled that the criminal exclusion clause was unambiguous, not void as against public policy, and, consequently, that insurer had no duty either to defend or to indemnify the insured. I. On appeal, defendants contend that the trial court's ruling is in error. Defendants assert that the policy's criminal acts exclusion does not exclude neighbor's injuries from coverage because the clause is ambiguous and, if interpreted as they suggest, neighbor's injuries would be within the terms of policy coverage. We disagree. An insurer's duty to defend arises from allegations in the complaint which, if sustained, would impose upon the insured liability within the policy coverage. Whether coverage is ultimately available under the policy is a question of fact for the trier of fact. But, since the duty to defend is broader than the duty to indemnify, see Hecla Mining Co. v. New Hampshire Insurance Co., 811 P.2d 1083 (Colo.1991), there is no liability if there is no duty to defend. Thus, insurer has no duty either to defend or to indemnify if insurer can establish that the factual allegations in the complaint reveal a situation that is solely and entirely within an exclusion in the insurance policy, and that the exclusion is not subject to any other reasonable interpretation. Hecla Mining Co. v. New Hampshire Insurance Co., supra. Here, the coverage grant clause of insured's homeowner's policy provides that: Subject to the terms, limitations and conditions of this policy, [insurer] will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy. The criminal acts exclusion provides: We do not cover bodily injury or property damage resulting from: (a) A criminal act or omission. A. First, defendants argue, the criminal acts exclusion is ambiguous because the term "criminal acts" is susceptible to more than one interpretation. Defendants assert that the term could fairly be interpreted to mean either acts which are crimes under the relevant criminal code or, alternatively, acts that the general population considers to be "criminal" in nature. However, if we assume that "criminal acts" could, in the abstract, be interpreted in more than one way, such a potential does not create an ambiguity here. When a policy does not define a term such as "criminal acts," interpretation of that term is dependent on whether the phrase is used ambiguously in the context of the policy's exclusionary clause. However, although a term used in a contract is ambiguous when it is susceptible to more than one reasonable interpretation, Hecla Mining Co. v. New Hampshire Insurance Co., supra, a mere potential for more than one interpretation of such term considered in the abstract, does not create an ambiguity. To the contrary, whether a policy term is ambiguous is not determined in a vacuum, but by use of an objective standard within the context of circumstances at issue. Regional Bank of Colorado v. St. Paul Fire & Marine Insurance Co., 35 F.3d 494 (10th Cir.1994) (applying Colorado law). That is, terms are construed "as they would be understood by a person of ordinary intelligence," State Farm Mutual Auto. Insurance Co. v. Nissen, 851 P.2d 165, 167 (Colo.1993); see also L. Russ, Couch on Insurance 3D § 22.38 at 22-83 (1995) (terms of insurance 514 contract given meaning of "reasonably intelligent person"), evaluating policy language and the factual circumstances to which the terms are applied. See American Family Mutual Insurance Co. v. Johnson, 816 P.2d 952 (Colo.1991) (interpreting intentional injury exclusion); see also Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Insurance Co., 5 Cal. 4th 854, 21 Cal. Rptr. 2d 691, 855 P.2d 1263 (1993) (in malpractice policy ambiguity is not determined in the abstract or in some hypothetical circumstance); Youngwirth v. State Farm Mutual Auto. Insurance Co., 258 Iowa 974, 140 N.W.2d 881 (1966) (ambiguity is a relative term; single term may be ambiguous under one factual situation and unambiguous when applied to another). Hence, the fact that "terms of a policy of insurance may be construed as ambiguous where applied to one set of facts does not make them ambiguous as to other facts which come directly within the purview of such terms." L. Russ, Couch on Insurance 3D § 21.14 at 21-26 (1995); see American Family Mutual Insurance Co. v. Johnson, supra (holding that identical intentional acts exclusion language interpreted in Chacon v. American Family Mutual Insurance Co., 788 P.2d 748 (Colo.1990), was not controlling under different circumstances). Here, insured argues, "criminal acts" might be variously interpreted, for example, as statutorily defined crimes or as actions of a "criminal nature" as regionally perceived. Even so, considering the conduct at issue in this caseassault and menacingwe conclude that any "objectively reasonable" interpretation of "criminal acts" would exclude insured's actions from coverage under the policy. Thus, the term "criminal acts" is unambiguous under the circumstances at issue in which injuries were sustained as the result of insured's recklessly drawing a loaded gun on a neighbor. Indeed, a variety of jurisdictions have found identical or substantially similar criminal acts exclusion language to be unambiguous under the particular circumstances at issue. See Castro v. Allstate Insurance Co., 855 F. Supp. 1152 (S.D.Cal.1994) (unqualified exclusion for criminal acts unambiguous as to first degree murder); Horace Mann Insurance Co. v. Drury, 213 Ga.App. 321, 445 S.E.2d 272 (1994) (criminal act exclusion unambiguous in its applicability to illegal firecracker possession); Ideal Mutual Insurance Co. v. Winker, 319 N.W.2d 289 (Iowa 1982) ("resulting from a criminal act" unambiguous in excluding coverage for first degree murder); New Mexico Physicians Mutual Liability Co. v. LaMure, 116 N.M. 92, 860 P.2d 734 (1993) (criminal acts exclusion in malpractice policy subject to only one interpretation where act was violent felony). B. Alternatively, defendants maintain that the policy is ambiguous when the criminal acts exclusion, as written, is read in conjunction with the coverage grant clause of the policy, which provides that insurer will pay damages for injuries "arising from an accident." Specifically, defendants argue, in order to give effect to the coverage grant clause, the criminal acts exclusion should be narrowly interpreted to exclude only "injuries which the insured either intended or reasonably expected to result from criminal acts." This interpretation, defendants assert, would mean that neighbor's injuries, resulting from one of the parties "accidentally" pulling the trigger during a scuffle for the gun, would be within the policy's coverage. We disagree. 1. First, the policy is not ambiguous when the coverage grant and exclusion clause are read together. Contrary to defendants' contention, the exclusion clause does not conflict directly with the coverage grant clause. The grant clause of insured's homeowners' policy explicitly provides that payment of damages arising from an accident is subject to "terms, limitations and conditions of this policy." Thus, the policy is clear that not all injuries arising from accidents will be covered. Secondly, in the insurance context, the language of the exclusion"injuries resulting from [an action]"has been interpreted as meaning injuries "caused by or contributed 515 to" by the action, regardless whether the party causing the injuries either intended to cause injury or even knew how the accident which caused the injuries occurred. Ackerman v. Hilton's Mechanical Men, Inc. 914 P.2d 524 (Colo.App.1996) (interpreting workers' compensation benefit reduction for injuries resulting from intoxication). Further, if the policy was intended to qualify this general meaning such that only reasonably expected or intentional injuries would be excluded, the clause could have explicitly so stated. See Butler v. Behaeghe, 37 Colo. App. 282, 548 P.2d 934 (1976) (interpreting phrase "bodily injury intended or expected"). Courts cannot, however, rewrite an unambiguous insurance contract or "torture the unambiguous language of the exclusion provision in order to create an intent requirement." Broderick Investment Co. v. Hartford Accident & Indemnity Co., 954 F.2d 601, 607 (10th Cir.1992), cert. denied, 506 U.S. 865, 113 S. Ct. 189, 121 L. Ed. 2d 133 (1992) (where policy excludes coverage of "intended discharge" court will not infer that injury must also be intended); see also Federal Deposit Insurance Corp. v. American Casualty Co., 843 P.2d 1285 (Colo.1992); compare Allstate Insurance Co. v. Brown, 16 F.3d 222 (7th Cir.1994) (clause explicitly excluded only "reasonably expected" injuries) and Allstate Insurance Co. v. Barnett, 816 F. Supp. 492 (S.D.Ind.1993) (clause explicitly excluded "reasonably expected" injuries) with Castro v. Allstate Insurance Co., supra (clause excluded all injuries "resulting from"). In addition, defendants' proposal to qualify the exclusion with the term "intentional" would make the exclusion partially redundant of another policy exclusionthe intentional acts exclusion. See Pepcol Manufacturing Co. v. Denver Union Corp., 687 P.2d 1310 (Colo.1984) (in interpreting a clause, the court must attempt to harmonize and give effect to all provisions so that none will be rendered meaningless); see also Cheyenne Mountain School District # 12 v. Thompson, 861 P.2d 711 (Colo.1993); cf. Hooper v. Allstate Insurance Co., 571 So. 2d 1001 (Ala.1990) (for clause excluding coverage of injuries reasonably expected to occur from "intentional or criminal acts," the term "criminal acts" is not modified by any culpability requirement; citing similar cases from Florida, Nevada, California, Alaska, New Jersey, and Oregon). Moreover, courts of various jurisdictions support the trial court's determination that a generally worded criminal exclusion, as here, eliminates from coverage more than just intentional crimes or injuries intended or reasonably expected. See Liebenstein v. Allstate Insurance Co., 517 N.W.2d 73 (Minn.Ct.App.1994) (exclusion for damages resulting from criminal act applied to accidental, unintended injury to police officer by detainee resisting arrest); Allstate Insurance Co. v. Barnett, supra (intent not a prerequisite of criminal exclusion where intentional injuries are separately excluded); Allstate Insurance Co. v. Norris, 795 F. Supp. 272 (S.D.Ind.1992) (general criminal act exclusion); Allstate Insurance Co. v. Sowers, 97 Or.App. 658, 776 P.2d 1322 (1989) (policy excluding damages "reasonably expected to result from intentional or criminal acts" barred coverage for injury resulting from resisting an arrest even though injury was unintended). Because we perceive no conflict between the clauses that produces an ambiguity, the exclusion clause need not be qualified, as defendants suggest, by anyone's subjective intent or reasonable expectations. See Castro v. Allstate Insurance Co., supra (absence of qualification clarifies rather than obscures the scope of the exclusion); Podiatry Insurance Co. v. Isham, 65 Wash.App. 266, 828 P.2d 59, 62 (1992) (holding exclusionary clause not ambiguous because clause "interpreted in the context of the entire policy is not fairly susceptible to more than one reasonable interpretation"). The rule that "contracts of insurance are to be strictly construed in favor of the insured ... applies only when there is, in fact, a need to construe the contract." L. Russ, Couch on Insurance 3D § 21.11 at 21-19 (1995). Hence, while ambiguous language must be construed in favor of the insured and against the insurer who drafted the policy, see Hecla Mining Co. v. New Hampshire *516 Insurance Co., supra, "courts will not force an ambiguity in order to resolve it against an insurer." Martinez v. Hawkeye-Security Insurance Co., 195 Colo. 184, 188, 576 P.2d 1017, 1019 (Colo.1978). 2. Further, to the extent that defendants argue that the exclusion clause would violate public policy if it were not interpreted narrowly as they suggest, we also disagree. An unambiguous clause may be void and unenforceable if it violates public policy by attempting to "dilute, condition, or limit statutorily mandated coverage." Farmers Insurance Exchange v. Dotson, 913 P.2d 27, 30 (Colo.1996) (finding exclusion violative of public policy as expressed in No-Fault Act). Here, however, there is no statute which either explicitly or implicitly proscribes the type of clause at issue. Furthermore, while public policy may also be derived from legal precedent, see Federal Deposit Insurance Corp. v. Bowen, 824 P.2d 41 (Colo.App.1991), rev'd on other grounds, Federal Deposit Insurance Corp. v. American Casualty Co., 843 P.2d 1285 (Colo.1992), Colorado courts have not found criminal acts exclusions to violate public policy. And, indeed, other jurisdictions have determined that a general criminal exclusion clause does not, per se, violate public policy. See Nash v. Durapau, 592 So. 2d 504 (La.App.1991) (clause excluding damages resulting from criminal act does not violate public policy); Allstate v. Norris, supra (general criminal exclusion clause not violative of public policy although clause interpreted to exclude unintentional injuries); New Mexico Physicians Mutual Liability Co. v. LaMure, supra (sexual assault falls within criminal act exclusion, supports public policy of refusing to indemnify an insured for an intentional wrong); Podiatry Insurance Co. v. Isham, supra (no assertion that malpractice policy, excluding injuries due to "violation of any law or ordinance," was contrary to public policy). Here, we perceive no violation of public policy because, as discussed, the policy's coverage grant and exclusion clause are consistent, and the criminal act exclusion does not eviscerate the grant clause, but merely excludes a reasonable subset of injuriesthose resulting from criminal acts. See Allstate Indemnity Co. v. Gonzales, 902 P.2d 953 (Colo.App.1995) (policy can exclude motorcycles; even when a statute does establish public policy, an exclusion is not necessarily void as against public policy simply because it narrows the circumstances under which coverage applies); New Mexico Physicians' Mutual Liability Co. v. LaMure, supra, 860 P.2d at 737 (exclusion valid when it is "not so broad or nebulous that it swallows and effectively nullifies a broad insuring clause"). II. And finally, we perceive no error in the trial court's exclusion of extrinsic evidence proffered to establish that either the criminal exclusion clause or the policy as a whole was ambiguous. Although a court may conditionally admit extrinsic evidence such as evidence of local usage to determine whether a clause is ambiguous, see Pepcol Manufacturing Co. v. Denver Union Corp., supra, the court may not consider the parties' own extrinsic expressions of intent. K N Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769 (Colo.1985), cert. denied, 472 U.S. 1022, 105 S. Ct. 3489, 87 L. Ed. 2d 623 (1985). Further, terms of a policy are to be interpreted as understood by an ordinary person, not by one engaged in the insurance business. 13 J. Appleman, Insurance Law & Practice § 7386 (1976). Consequently, here, the trial court properly excluded extrinsic evidence which consisted of depositions, insurer's internal memoranda, and communications with insurance officials. Because the trial court properly found that insurer had no duty to defend and no liability under the policy, we need not address defendants' other contentions. The judgment is affirmed. STERNBERG, C.J., and BRIGGS, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1504461/	891 S.W.2d 20 (1994) NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Appellant, v. NATIONAL CONVENIENCE STORES, INC. and Cathie L. Carbajal, Appellees. No. 04-94-00005-CV. Court of Appeals of Texas, San Antonio. December 30, 1994. Michael W. Huddleston, Dana Harbin, Copper, Huddleston & Aldous, Dallas, for appellant. J. Vince Hightower, Law Office of J. Vince Hightower, Damon Ball, Ball & Weed, P.C., San Antonio, for appellees. Before BUTTS, CATHERINE STONE and PRESTON H. DIAL, Jr., JJ. OPINION PRESTON H. DIAL, Jr., Justice (Assigned).[1] This is an appeal from a declaratory judgment action concerning an insurer's duty to defend an insured. Cathie Carbajal filed the underlying suit against her prior employer, National Convenience Stores (NCS) on multiple causes of action. NCS brought this suit for a declaratory judgment as to the duty of its insurer National Union Fire Insurance Company of Pittsburgh to defend the suit. After a bench trial, the trial court held the cause of action for negligence alleged in the underlying suit was covered by the terms of the pertinent policies but that the other causes of action alleged were not covered. National Union appeals the judgment holding that the negligence cause of action is covered by the policy. National Union brings five points of error. We only address point of error one as necessary to final disposition of the appeal. TEX. R.APP.P. 90. Under point one National Union contends that the trial court erred in rendering judgment for NCS and entering Conclusion of Law No. 4 because it is legally erroneous. Conclusion of Law No. 4 stated: "There is coverage for the alleged cause of action entitled `negligence' in the underlying suit." An insurance company's duty to defend the lawsuit is determined by the allegations in the plaintiff's petition considered in the light of the policy provisions without regard to the truth or falsity of the plaintiff's allegations. Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.1973). The parties stipulated that the allegations 21 raised in Carbajal's fourth amended petition were the factual basis for determining coverage. In her petition Carbajal alleged that she was employed by NCS and her direct supervisor was Michael Fischer. On more than one occasion Fischer took advantage of his supervisory role and used physical superiority to grab or embrace Carbajal during working hours on company premises against her will. During a Christmas office party on company property, she was struck in the back by Fischer with his closed fist and again with his forearm. Carbajal further alleged that NCS promoted Fischer and his assistant Jimmy Hartnett to supervisory positions without adequately investigating their educational and emotional capacities to supervise subordinate employees. NSC failed to investigate Fischer's lack of supervisory background, capacity and qualifications. NCS failed to provide Fischer and Hartnett with any training, guidance, support or supervision to prepare them to adequately supervise employees. Fischer fired Carbajal when she complained of a job-related injury. NCS owed Carbajal the duty to be supervised by a competent, thoroughly trained and emotionally stable supervisor, and NCS breached that duty. NCS was further negligent in not investigating the circumstances of Carbajal's termination. The pertinent National Union liability policies contain the following provisions: "I. COVERAGE ABodily Injury Liability COVERAGE BProperty Damage Liability The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgment or settlements. Exclusions This insurance does not apply: ... (j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury; but this exclusion does not apply to liability assumed by the insured under an incidental contract." We assume without deciding that Carbajal alleged in her petition that she received bodily injury "caused by an occurrence," to which the insurance applied. We conclude that the insurance does not apply to the bodily injury alleged because it arose "out of and in the course of Carbajal's employment by the insured NCS. In order to have a covered cause of action, Carbajal had to allege negligence on the part of NCS that was causally connected to the damages she suffered. The negligence alleged was causally connected to Carbajal's damages only through Fischer's conduct. All of the acts alleged that arguably resulted in bodily injury occurred on the defendant company's premises and during office hours or during an office party. Based on Carbajal's own pleadings, any bodily injury she suffered arose out of and in the course of her employment by NCS. It follows that coverage for the conduct alleged is excluded by the terms of the policy. Fidelity & Guar. Ins. Underwriters, Inc. v. McManus, 633 S.W.2d 787, 789 (Tex.1982). We use the same logic and reach the same result as those cases involving a cause of action for negligent entrustment, where coverage was excluded for the operation of an automobile or a recreational motor vehicle. Id. at 790; Centennial Ins. Co. v. Hartford Accident and Indem. Co., 821 S.W.2d 192 (Tex.App.Houston [14th Dist.] 1991, no writ). We reverse the judgment of the trial court to the extent that it holds that the negligence 22 cause of action was covered by the policy. We render judgment that appellant has no duty to defend the negligence cause of action pled by Carbajal in her fourth amended petition. The judgment is in all other respects affirmed. NOTES [1] Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to TEX.GOV'T CODE ANN. § 74.003(b) (Vernon 1988).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1638268/	910 S.W.2d 156 (1995) Clifford and Vickie PEERENBOOM, Individually and as Next Friends of JoAnn Peerenboom, a minor, Appellants, v. HSP FOODS, INC., d/b/a Jack in the Box, Appellee. No. 10-95-089-CV. Court of Appeals of Texas, Waco. November 1, 1995. 159 Shane M. Sanders, Adams, Brantley, Holt & Sanders, P.L.L.C., College Station, Lane D. Thibodeaux, James & Thibodeaux, P.L.L.C., Bryan, for appellants. Ché D. Williamson, Munisteri, Sprott, Lefevre & Rigby, Houston, for appellee. Before THOMAS, C.J., and CUMMINGS and VANCE, JJ. OPINION VANCE, Justice. This is a premises liability case. Clifford and Vickie Peerenboom sued Jack in the Box as next friends of JoAnn Peerenboom, their daughter. They alleged that an off-duty employee of the company, David Wester, assaulted JoAnn, also an off-duty employee, on its premises on October 16, 1992. At the time of the incident Wester was twenty-seven and JoAnn was sixteen. According to the Peerenbooms, after JoAnn completed her shift at about 11:00 p.m., Wester "lured" her to a dumpster enclosure behind the restaurant where he sexually assaulted her. The Peerenbooms asserted claims against Jack in the Box of negligence, negligence per se, and gross negligence. Jack in the Box filed a motion for summary judgment on grounds that JoAnn was a trespasser at the time and place of the alleged assault, or alternatively, that it was not the cause in fact of the assault, which was not foreseeable. Summary judgment was entered for Jack in the Box. The Peerenbooms complain in four points that the court erred in granting summary judgment because genuine issues of material fact exist as to whether JoAnn was an invitee, licensee, or trespasser at the time and place of the incident; whether Jack in the Box breached its corresponding duty to her; and whether Jack in the Box proximately caused the alleged assault. We conclude that: 1) the summary-judgment proof establishes as a matter of law that JoAnn was a trespasser at the time of the alleged incident; 2) genuine issues of fact exist as to whether Jack in the Box breached its duty to JoAnn as a trespasser; and 3) genuine issues of fact exist as to whether Jack in the Box's conduct was the proximate cause of the Peerenbooms' injuries. Thus, we reform the summary judgment to a partial summary judgment as to JoAnn's status as a trespasser, and reverse and remand for a trial on the merits. STANDARD OF REVIEW In reviewing the summary judgment, we must determine whether Jack in the Box met its burden by establishing that no genuine issue of material fact exists. See Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). As defendant, Jack in the Box bears the burden of proving its entitlement to the summary judgment as a matter of law by conclusively negating one of the essential elements of each of the Peerenbooms' claims. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (1991); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). We must accept all evidence favorable to the Peerenbooms as true, indulging every reasonable inference and resolving all doubts in 160 their favor. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). We will consider evidence which favors Jack in the Box only if it is uncontroverted. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). SCOPE OF REVIEW The parties disagree as to what we should consider as summary-judgment evidence. Jack in the Box argues that the affidavits of Jackie Campbell and Michael E. Mackey, which comprise a large portion of the Peerenbooms' summary-judgment evidence, were not properly before the trial court and should not be considered. Jack in the Box objected to the form of these affidavits at the summary-judgment hearing on December 7, 1994.[1] The Peerenbooms asked for an opportunity to cure the defects,[2] and the hearing was reset for December 27. However, the Peerenbooms waited until that day to file the amended affidavits, and leave to file was not granted. According to Rule 166a(c), "[e]xcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex.R.Civ.P. 166a(c). Jack in the Box argues that the Peerenbooms failed to comply with Rule 166a and, thus, the amended affidavits are presumed to be disallowed and are not entitled to evidentiary consideration. See INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex.1970); Kotzur v. Kelly, 791 S.W.2d 254, 255-56 (Tex.App.Corpus Christi 1990, no writ). The Peerenbooms argue in response that, since Jack in the Box failed to obtain a ruling on its objections or obtain a written order signed by the trial judge and entered of record, the objections are waived and the original affidavits remain a part of the summary-judgment record. See Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex.App.Dallas 1994, no writ); Eads v. American Bank, N.A., 843 S.W.2d 208, 211 (Tex.App.Waco 1992, no writ). The resolution of this argument depends on the type of defect at issue. A defect in substance, such as the absence of proper authentication, cannot be waived by failing to object or obtain a written order. Kotzur, 791 S.W.2d at 256. "This objection may be raised for the first time on appeal because an unsworn statement is not an affidavit and, therefore, not competent summary judgment proof." Id. Thus, if the Peerenbooms' original affidavits are substantively defective, Jack in the Box is correct in arguing that the affidavits are not entitled to evidentiary consideration, despite its failure to obtain a written order on its objections. On the other hand, "[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." TEX.R.CIV.P. 166a(f) (emphasis added). Further, even if properly objected to, affidavits will remain part of the summary-judgment evidence unless an order sustaining the objection is "reduced to writing, signed, and entered of record." Eads, 843 S.W.2d at 211. Thus, if the original affidavits are defective in form, the Peerenbooms are correct in arguing that Jack in the Box waived its objections because it failed to obtain a written order. Consequently, those affidavits would remain part of the summary-judgment record. In this case, Jack in the Box objected to the original Campbell and Mackey affidavits primarily because they did not establish the competency of the affiants under Rule 166a(f). TEX.R.CIV.P. 166a(f). Even the title 161 of Rule 166a(f), "Form of Affidavits; Further Testimony," suggests that competency defects are matters of form that are easily cured. Id. (emphasis added); see Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex.1978); Wyatt v. McGregor, 855 S.W.2d 5, 17-18 (Tex.App.Corpus Christi 1993, writ denied); Jones v. McSpedden, 560 S.W.2d 177, 179 (Tex.Civ.App.Dallas 1977, no writ). We conclude that Jack in the Box waived its objections to the original Campbell and Mackey affidavits by failing to secure an order that was "reduced to writing, signed, and entered of record." Eads, 843 S.W.2d at 211. Thus, we will consider both original affidavits as part of the summary-judgment record. JOANN'S STATUS To prevail on its motion for summary judgment, Jack in the Box must conclusively negate one of the essential elements of each of the Peerenbooms' claims for negligence. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). The common-law duty of negligence consists of three essential elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The duty owed by a premise owner or occupier is determined by the status of the complaining party at the time and place of injury. Graham v. Atlantic Richfield Co., 848 S.W.2d 747, 751 (Tex.App.Corpus Christi 1993, writ denied). We first examine whether there is a genuine issue of material fact as to JoAnn's status at the time and place of the incident. Jack in the Box argued in its motion for summary judgment that JoAnn was a trespasser at the time of the alleged assault, and that it had only a duty not to willfully injure her. See Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954). In response, the Peerenbooms argued that JoAnn was an invitee at the time of the alleged assault and that Jack in the Box owed her a duty of reasonable care to protect her from foreseeable injuries. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975). DIVISION OF PREMISES A person can enter property as an invitee or licensee as to one part of the property and become a trespasser as to another part of the property. Burton Constr. & Shipbuilding Co., 273 S.W.2d at 602; Hopkins v. Texas Power and Light Co., 514 S.W.2d 143, 148 (Tex.Civ.App.Dallas 1974, no writ); Crum v. Stasney, 404 S.W.2d 72, 75 (Tex.Civ.App.Eastland 1966, no writ); Fitzgerald v. Andrade, 402 S.W.2d 563, 566 (Tex.Civ.App.Austin 1966, writ ref'd n.r.e.). The status of an invitee or licensee, who has permission to be on part of the premises, decreases to that of a trespasser when he makes an unforeseen departure to another part of the premises uninvited. Williams v. Bill's Custom Fit, Inc., 821 S.W.2d 432, 435 (Tex.App.Waco 1991, no writ). For example, a plaintiff who has a license to cross railroad tracks at a private railroad switching yard becomes a trespasser when sleeping in the rail yard, because the license to cross the tracks does not include the license to sleep in the yard. Texas & N.O.R. Co. v. Daft, 120 S.W.2d 481, 484 (Tex.Civ.App.El Paso 1938, no writ). However, an invitee or licensee does not become a trespasser if the owner can reasonably foresee that the invitee or licensee will use part of the premises without permission, or for a purpose other than the one permitted. See Fisher Constr. Co. v. Riggs, 320 S.W.2d 200, 205-06 (Tex.Civ.App.Houston) (general contractor should reasonably anticipate that employees of its subcontractors might take a shortcut through store space), rev'd on other grounds, 160 Tex. 23, 325 S.W.2d 126 (1959); Bohn Bros. v. Turner, 182 S.W.2d 419, 421-22 (Tex.Civ.App.Austin 1944, writ ref'd w.o.m.) (store should anticipate that some customers may enter the wrong door and fall down basement stairs after being invited to use the restroom). INVITEE An invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit. Texas Power & Light Co. v. Holder, 385 S.W.2d 162 873, 885 (Tex.Civ.App.Tyler 1964), writ ref'd n.r.e. per curiam, 393 S.W.2d 821, 822 (Tex.1965). The test to determine whether a person is an invitee at the time and place of the injury is "whether the owner of the premises should have anticipated the presence of someone such as the plaintiffs at that particular place on the premises." Amoco Chemicals Corp. v. Sutton, 551 S.W.2d 459, 462 (Tex.Civ.App.Eastland 1977, writ ref'd n.r.e.); see Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 62 (1953). It is undisputed that JoAnn was an invitee during her shift as a Jack in the Box employee. The question is whether the scope of her invitation was broad enough to include the off-duty use of the dumpster enclosure for the purpose for which she used it. Triangle Motors of Dallas, 258 S.W.2d at 62. This depends on whether Jack in the Box could reasonably have anticipated that such use or a similar use would be made of the dumpster enclosure by someone in JoAnn's position. See id. It is undisputed that JoAnn was not performing any duty on behalf of Jack in the Box at the time and place of the incident. She admits to voluntarily accompanying Wester to the back of the restaurant and into the relative privacy of the dumpster enclosure. According to JoAnn's account of the event to police, Wester then kissed her and fondled her breasts. It is unclear what, if anything, took place beyond that. JoAnn's deposition testimony is, "I don't remember." However, JoAnn's therapist, Bets McSpadden, Ph.D., testified that, after meeting with JoAnn, she "believed she was raped." Dr. McSpadden reached this conclusion without reviewing any medical records. The Peerenbooms direct us to two sources of evidence to argue that Jack in the Box should have anticipated the presence of someone such as JoAnn at the dumpster: the affidavit of Jackie Campbell and the deposition testimony of Russell McMillian. Both were employed by Jack in the Box at the time of the alleged incident. Relevant portions of Campbell's affidavit state that restaurant policies prohibiting access to the dumpster after 7:00 p.m. and requiring off-duty employees to wait for transportation in the break room were "virtually never followed" and that "employees who had completed their shift routinely waited for their rides in places other than the break room, for example either in the dining room area or in front of the restaurant." This evidence does not present a reasonable inference that off-duty employees such as JoAnn would be present inside the dumpster enclosure. McMillian was regularly scheduled to work the "graveyard shift" between 10:00 p.m. and 6:00 a.m. Relevant portions of his deposition testimony are as follows: Q: Okay. Had you been back [to the dumpster]how many times had you been back there after approximately 7:00 o'clock at night? A: Well, I go out there, like, every night, you know, you know, almost every night to takelike a whole lot of, you know, like boxes and stuff out there to the dumpster. . . . . . Q: You say you do it on a nightly basis or every time that you worked? A: Well, almost every time. . . . . . Q: When you took those boxes back to the dumpster two or three times a week, was that on instructions by people at Jack in the Box, your shift manager? A: No. It was because the boxes was, you know, blocking the back door. They were, you know, like, they was in the way. While McMillian's testimony might raise a fact issue as to whether Jack in the Box should anticipate the presence of employees performing their duties at the dumpster enclosure, it raises no fact issue as to whether Jack in the Box should have reasonably anticipated that off-duty employees would use the dumpster enclosure for personal reasons after hours. Thus, we conclude that the scope of JoAnn's invitation was not broad enough to include her off-duty use of the dumpster enclosure for the purpose for which she used it. 163 LICENSEE We next consider JoAnn's possible status as a licensee. A licensee is a person who is privileged to enter and remain on the premises by the express or implied permission of the owner. Smith v. Andrews, 832 S.W.2d 395, 397 (Tex.App.Fort Worth 1992, writ denied). The difference between a licensee and an invitee is that an invitee is present for the mutual benefit of himself and the owner, while a licensee is on the premises only for his own purposes, not because of any business dealings with the owner. Id. In the absence of a relationship that inures to the mutual benefit of the entrant and the owner, an entrant is considered a licensee. Weaver v. KFC Mgmt, Inc., 750 S.W.2d 24, 26 (Tex.App.Dallas 1988, writ denied). For example, a plaintiff who slips on chicken grease while cutting across the parking lot of a chicken restaurant on his way to the drug store is a licensee because his presence does not provide mutual aid to the restaurant. See id. It is undisputed that JoAnn was a licensee when she clocked out after her shift; she was expressly permitted to wait in the employee break room until her transportation arrived. McMillian's testimony establishes summary-judgment evidence that Jack in the Box employees occasionally disposed of trash after 7:00 p.m., despite a policy to the contrary. However, conditional consent to enter the dumpster enclosure to dispose of trash creates a privilege to do so only to that extent. See Brown v. Dellinger, 355 S.W.2d 742, 746 (Tex.Civ.App.Texarkana 1962, writ ref'd n.r.e.). Accordingly, on-duty Jack in the Box employees who have a license to dispose of trash after 7:00 p.m. become trespassers when they enter the dumpster enclosure after work for personal reasons, because the license to dispose of trash while at work after 7:00 p.m. does not include the license to use the dumpster enclosure for personal reasons after work. See Texas & N.O.R. Co. v. Daft, 120 S.W.2d 481, 484 (Tex.Civ.App.El Paso, no writ). We conclude that, since JoAnn made an unforeseen departure from the part of the restaurant where she was a licensee to another part of the premises without license or invitation, her status at the time and place of the alleged injury decreased to that of a trespasser. Having so decided, we must now determine whether Jack in the Box conclusively established as a matter of law that there is no genuine issue of fact as to whether it breached its legal duty to JoAnn as a trespasser. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). BREACH OF DUTY TRESPASSER Owners or occupiers of premises have a duty to refrain from injuring trespassers wilfully, wantonly, or through gross negligence. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 602-03 (1954). Jack in the Box has no affirmative duty to keep the dumpster enclosure safe for trespassers. Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 210 (1943). Trespassers must therefore take those premises as they find them. Id. Gross negligence includes two elements: 1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and 2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994) (emphasis added). Determining whether the act or omission involves an extreme degree of risk requires an examination of the events and circumstances from Jack in the Box's viewpoint at the time the event occurred, without viewing the matter in hindsight. Id. "[T]he `extreme risk' prong is not satisfied by a remote possibility of injury or even a high probability of minor harm, but rather `the likelihood of serious injury' to the plaintiff." Id. at 22. In evaluating the first prong of the test for gross negligence in this summary-judgment context, we ask: Did Jack in the Box conclusively establish that there is no 164 genuine issue of fact as to whether its conduct created an extreme degree of risk to JoAnn? See id. The second prong of the test requires Jack in the Box to conclusively establish that there is no genuine issue of fact as to whether it had actual subjective knowledge of an extreme risk of serious harm. See id. The Peerenbooms direct us to the affidavit of Michael Lee Mackey, a private security specialist, to argue that Jack in the Box injured JoAnn through gross negligence by failing to provide adequate security and lighting, failing to enforce its policy of limiting access to the dumpster, and failing to tell her that Wester talked with Jack in the Box management about "messing with a sixteen year old." Relevant portions of Mackey's affidavit state: I have review[ed] ... Bryan Police Department records including reports of assaults from January 1990 to April 1994 [which occurred in the area of the restaurant]. In all, approximately 97 reported assaults took place during this time period, including approximately 57 assaults during the time period of 1990 to 1992. I have also reviewed reports of criminal activity to the Bryan Police Department for ... the street address of the restaurant.... From the time period of 1990 to the date of the incident there were 13 reported incidents of criminal activity at the restaurant, including 5 reported assaults. . . . . . It is also my opinion that because the restaurant management had prior knowledge and notice of Wester's intentions to "mess" with a 16 year old (which I assume was Plaintiff) that [its] actions and omissions were grossly negligent. In addition, the restaurant's actions were actively negligent because it knew of Wester's intentions, knew such impending conduct by Wester was unlawful but did nothing to warn Plaintiff's family.... The presence of a security guard on the premises and, to a lesser extent, superior lighting in the area would have deterred Wester from the incident. Accepting this evidence as true, and indulging every reasonable inference in the Peerenbooms' favor, we believe this constitutes some evidence that Jack in the Box created an extreme degree of risk or a likelihood of serious injury. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). It is also some evidence that Jack in the Box had a subjective knowledge of that risk. Thus, it creates a genuine issue of fact as to whether Jack in the Box breached its duty to refrain from injuring JoAnn through gross negligence. PROXIMATE CAUSE Finally, the Peerenbooms contend that Jack in the Box failed to conclusively establish as a matter of law that there is no genuine issue of fact as to whether its conduct was the proximate cause of the incident. Thus, our task in determining the propriety of the summary judgment in this appeal is not completed. We will reverse the judgment if the summary-judgment evidence is insufficient to establish, as a matter of law, that Jack in the Box's conduct was not a proximate cause of the harm alleged by the Peerenbooms. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Ordinarily, proximate cause is a fact question incapable of conclusive proof. McGuire v. Overton Memorial Hosp., 514 S.W.2d 79, 85 (Tex.Civ.App.Tyler 1974), writ ref'd n.r.e. per curiam, 518 S.W.2d 528 (Tex.1975); Springall v. Fredericksburg Hosp. and Clinic, 225 S.W.2d 232, 234 (Tex. Civ.App.San Antonio 1949, no writ) (the issue of proximate cause "is one of fact and is generally determinable by a jury"). Even if the facts are undisputed, the determination of proximate cause is still a jury issue if reasonable minds may draw conflicting inferences from those facts. Springall, 225 S.W.2d at 234. CAUSE IN FACT Proximate cause consists of cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). The test for cause in fact is whether the defendant's act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 165 S.W.2d 156, 161 (Tex.1995). Cause in fact is not shown if the defendant's conduct did no more than furnish a condition which made the injury possible. See Bell v. Campbell, 434 S.W.2d 117, 120 (Tex.1968). At some point in the causal chain, the defendant's conduct may be too remotely connected with the plaintiff's injury to constitute legal causation. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). The Peerenbooms assert that the following acts or omissions by Jack in the Box were substantial factors in bringing about their alleged injuries: failure to provide adequate security and lighting; failure to enforce its policies and procedures; and failure to report and actively fire or restrain Wester after learning of his intention to "mess with a sixteen year old." Mackey's affidavit states: Wester was an employee and knew of the lack of enforcement of policies and procedures implemented for the "safety" of employees and also knew of the lack of a security guard on the premises.... The presence of a security guard on the premises and, to a lesser extent, superior lighting in the area would have deterred Wester from the incident. Additionally, it is also my opinion that the lack of adequate enforcement of "passive" security measures, including allowing a minor employee to work past 7:00 p.m. and the enforcement of policies and procedures as well as "active" security measures, namely the employment of a security guard, were causes in fact of the incident. We conclude that a reasonable inference exists that, but for Jack in the Box's failure to provide adequate security and lighting, this incident would have never taken place. Mackey's affidavit presents some evidence that Jack in the Box's conduct was a substantial factor in bringing about the alleged injuries and prevents Jack in the Box from establishing as a matter of law that its conduct was not the cause in fact of the incident. FORESEEABILITY The test for foreseeability is whether a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 549-50 (Tex.1985). The danger of injury is foreseeable if its "general character ... might reasonably have been anticipated." Id. at 551 (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939). The question of foreseeability asks whether the injury "might reasonably have been contemplated" as a result of the defendant's conduct. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980). It requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant's conduct brings about the injury. See Restatement (Second) of Torts § 435(2) (1965). The Peerenbooms claim that evidence of previous crimes on or near the premises of Jack in the Box and prior notice of Wester's intention to "mess with a sixteen year old" make the incident a foreseeable result. According to Mackey's affidavit, "the number of reported crimes, both at the restaurant location and in the general area surrounding the restaurant, made this incident foreseeable as well." Considering the summary-judgment evidence of prior crimes at the restaurant address and in the restaurant area, we find that a material fact question exists as to the foreseeability of the alleged incident. According to the Supreme Court, "Evidence of specific previous crimes on or near the premises raises a fact issue on the foreseeability of criminal activity." Nixon, 690 S.W.2d at 550. CONCLUSION The Peerenbooms have asserted in the following four points that summary judgment was improper because a genuine issue of material fact exists as to: 1. what JoAnn's status was at the time and place of the alleged incident; 2. whether Jack in the Box's conduct proximately caused their alleged injuries; 166 3. what Jack in the Box's corresponding duty was toward her at the time and place of the alleged incident; and 4. whether Jack in the Box's conduct constituted gross negligence. Having found that the evidence conclusively establishes as a matter of law that JoAnn was a trespasser at the time and place of the alleged incident, we overrule points one and three. Concluding that material fact questions exist as to gross negligence and proximate cause, we sustain points two and four. Because the court was correct in determining JoAnn's status as that of a trespasser, we reform the summary judgment to a partial summary judgment that JoAnn's status was that of a trespasser at the time and place of the incident and that the duty Jack in the Box owed her was to refrain from injuring her willfully, wantonly, or through gross negligence. Having found genuine issues of material fact as to the elements of gross negligence and proximate cause, we reverse and remand for a trial on the merits as to those issues. NOTES [1] Jack in the Box objected to Jackie Campbell's affidavit because: [it] only states that "My name is Jackie Campbell." There is no other information on the face of the affidavit to qualify it as sworn and competent testimony. Specifically an affidavit must show that the person is competent to testify by stating the person is over the age of 18 and of sound mind. It also objected to all statements of hearsay within her affidavit. Jack in the Box objected to Lee Mackey's affidavit because: [it] merely states that "I am competent in all ways to make this affidavit." This statement does not meet the requirements of TRCP 166a(f) in that [it] does not demonstrate the facts necessary to establish the competency of the witness to give sworn testimony.... In addition mere conclusions are not competent summary judgment evidence. [2] This request was tacitly approved by Jack in the Box and the court. No order was entered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2987401/	Order filed, March 21, 2013. In The Fourteenth Court of Appeals ____________ NO. 14-13-00021-CR ____________ SELMAN HALILI, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Co Crim Ct at Law No 5 Harris County, Texas Trial Court Cause No. 1825518 ORDER The reporter’s record in this case was due January 22, 2013. See Tex. R. App. P. 35.1. On February 1, 2013, this court ordered the court reporter to file the record within 30 days. 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 Ramona Sonnier, the official 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 Ramona Sonnier 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	01-03-2023	09-23-2015
https://www.courtlistener.com/api/rest/v3/opinions/1566641/	440 S.W.2d 398 (1969) Olues V. OLIVIER, Appellant, v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee. No. 7023. Court of Civil Appeals of Texas, Beaumont. April 3, 1969. Motion for Rehearing Overruled May 8, 1969. Ernest L. Sample, Beaumont, for appellant. Orgain, Bell & Tucker, Beaumont, for appellee. PARKER, Chief Justice. The plaintiff, Olues V. Olivier, sued Life and Casualty Insurance Company of Tennessee 399 and Texas Lathing Plastering Contractors Association, jointly and severally, for medical and surgical expenses resulting from an injury alleged to have occurred on November 18, 1964, asserting that, under the terms of a group insurance policy issued by said insurance company, such plaintiff was entitled to recover such expenses from such defendants. Trial was to a jury. Each defendant moved for instructed verdict, with each motion being granted by the trial court. Judgment was entered that plaintiff take nothing as against each defendant. Plaintiff has appealed. Judgment of the trial court is affirmed. The appellant, Olivier, has no point of error complaining of the instructed verdict and judgment that Olivier take nothing against Texas Lathing Plastering Contractors Association. Olivier's sole Point of Error is: "POINT 1 "THE ERROR OF THE COURT IN INSTRUCTING A VERDICT FAVORABLE TO THE LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, BECAUSE THERE WAS EVIDENCE THAT THE MEDICAL EXPENSES AND SURGICAL BENEFITS INVOLVED IN THIS SUIT WERE MADE NECESSARY BY A SICKNESS OR INJURY WHICH DID NOT ARISE OUT OF OR IN THE COURSE OF ANY EMPLOYMENT FOR COMPENSATION OR PROFIT, AND FOR WHICH THE PLAINTIFF WAS NOT ENTITLED TO BENEFITS UNDER ANY WORKMEN'S COMPENSATION LAW OR OCCUPATIONAL DISEASE LAW." The insurance policy was not in the possession of the plaintiff. The undisputed evidence is that the insurance policy was delivered by the insurance company to Texas Lathing Plastering Contractors Association. The policy is not in evidence. A copy of a brochure issued by the insurance company was mailed to and in the possession of appellant, Olivier, stating he would receive a certificate explaining the details of his coverage. The brochure contains: "GENERAL EXCLUSIONS: Except for the Group Life Insurance, no coverage is extended for accidental injury arising out of employment for compensation or profit or disease entitling the insured to benefits under Workmen's Compensation, or any similar law." The certificate was issued to Olivier, being No. GLM-1515-259, dated July 1, 1964, certifying he was covered by the original insurance policy. In the certificate, the following appears: "DEFINITIONS "For all purposes of this policy: "1. The term `employee' means a person directly employed on a full time basis in the regular business of, and compensated for services by, the Employer. If the employer is a proprietorship or partnership, the individual proprietor or each of the partners whose principal occupation is the conduct of the Employer's business shall be deemed an employee and while engaged in the regular business of the Employer shall be deemed in the employment of the Employer. No director of a corporate employer shall be deemed an employee solely because of such directorship. * * * * * "3. The terms `actively at work' and `active work' mean the active expenditure of time and energy in the service of the Employer, except that an employee shall be deemed actively at work on each day of a regular paid vacation, or on a regular non-working day, on which he is not disabled provided he was actively at work on the last preceding regular working day." 400 The insurance company agreed to pay hospital and ambulance, surgical, and inhospital medical expenses, limited as to amounts, subject to being incurred by Olivier, "as a result of (a) any accidental bodily injury (i) which does not arise out of or in the course of any employment for compensation or profit and (ii) for which he is not entitled to benefits under any Workmen's Compensation law * * the Insurance Company agrees to pay, subject to the terms and conditions hereof, * " the expenses above as to matters above detailed. In the insurance company's Second Amended Original Answer, there was a general denial and as defenses it alleged: "11. "For further defense, defendant would show the court that plaintiff cannot recover because his policy provides that no payment will be made for injury arising out of or in the course of any employment for compensation or profit. "12. "For further defense, defendant would show this court that plaintiff has failed to furnish proper proof of loss and the defendant is thus in no way obligated to plaintiff." This suit arose out of the alleged accidental injury sustained by appellant from a fall on November 18th, 1964. He is a plastering contractor and had contracted in writing with M. L. Osborne to do the plastering work on the Merchant's National Bank for a fixed price. Olivier testified that he usually had several jobs going at one time at different locations. He had a foreman in charge of the work at the bank. His employees were paid each week whether or not they worked. Should they not work for a few hours, he lost money. Olivier himself worked five days a week from 8:00 a. m. to 4:30 p. m., with a half hour off for lunch; that his injury occurred during his regular working hours at the bank job; he had gone there because he had heard that there had been a work stoppage, and he needed to see about it. When he arrived at this job site, he learned that the iron workers had left some bolts out of the steel work, preventing his employees from working. The bolts had been inserted and his men were working. He remembered climbing up on a scaffold and that is the last thing he remembered. He admitted the climbing up on the scaffold was in the scope of his employment and occupation. Otherwise, all else in his testimony was hearsay. Appellee promptly moved the court to strike all testimony of Olivier as to what happened after he climbed the scaffold which the court took under advisement. Such hearsay is incompetent and cannot form the basis of a finding of fact. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941). In his pleadings and in this court, appellant contends the insurance policy is ambiguous due to the fact that Olivier was an employer and not actually an employee on his own job. The provisions in the certificate are not ambiguous. They are similar to the provisions in such a policy this court held to be certain in Metropolitan Life Ins. Co. v. Wilson, 102 S.W.2d 454 (Beaumont Tex.Civ.App., 1937, no writ). Olivier was an employer whose principal occupation was his plastering contract business. On the occasion of his injury, he was actively at work in his own employment for compensation. Under the policy, he was not covered. Appellant's Point of Error is overruled. What has been said before disposes of the sole point of error brought forward by the appellant. However, in the motion for peremptory instruction filed below, there were other and additional grounds set forth. The trial court granted the motion without specification of the ground, or grounds, upon which the action was taken. The failure to assign error as 401 to all of the grounds upon which the court's action might have been based amounts to a waiver thereof. We recently had occasion to write upon the subject in LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44, 49 (Beaumont Tex.Civ.App., 1966, error ref. n. r. e.), and it is unnecessary to restate our views on the subject. For this additional reason, the trial court's judgment is sustained. The judgment of the trial court being correct, it is in all things affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1741763/	385 So. 2d 1233 (1980) DEPARTMENT OF CULTURE, RECREATION & TOURISM of the State of Louisiana, v. FORT MACOMB DEVELOPMENT CORPORATION, Chef Enterprises, Inc. and National American Bank of New Orleans. No. 10767. Court of Appeal of Louisiana, Fourth Circuit. May 13, 1980. Rehearing Denied August 5, 1980. 1234 William J. Guste, Jr., Atty. Gen., Ernest R. Eldred, and Warren E. Mouledoux, Sp. Asst. Attys. Gen., Baton Rouge, and Gerard H. Schreiber, Sp. Asst., New Orleans, for plaintiff-appellant. Legier, McEnerny, Waguespack, Kuhner, Scoggin & Strong, Guy B. Scoggin, New Orleans, for defendant-appellee, National American Bank of New Orleans. Sidney M. Bach, New Orleans, for appellees, Edmond G. Miranne, Sr., et al. Before SAMUEL, BOUTALL and GARRISON, JJ. SAMUEL, Judge. Plaintiff, the Department of Culture, Recreation & Tourism of the State of Louisiana (now the Louisiana State Parks & Recreation Commission), filed suit to evict Fort Macomb Development Corporation and Chef Enterprises, Inc. from Fort Macomb, an historical site in eastern Louisiana, for non-payment of rent. Plaintiff also sued to cancel the lease to Fort Macomb, a sublease to Chef Enterprises, Inc. of a portion of the leased premises, a mortgage of the lease in favor of defendant, National American Bank, and an assignment of the lease from Fort Macomb Development Corporation to National American Bank. Defendants answered, denying plaintiff's right to the relief requested. In addition, the defendant bank affirmatively pled the defense of estoppel. The trial judge found the rent to be in arrears and Fort Macomb to have violated an audit provision in a separate compromise agreement sufficient to justify eviction, but nevertheless dismissed the state's suit for eviction on the basis of estoppel. Plaintiff has appealed. The record reveals that in 1965 Fort Macomb was in a state of total disarray, grown over with vegetation, and inaccessible to the public. Plaintiff wished to reestablish it as a landmark and to use it as a tourist attraction but lacked funds to make the necessary repairs. By special legislation,[1] plaintiff was authorized to lease the fort and the 16.03 acres around it. In pertinent part this legislation reads as follows: "The commission may: Lease lands belonging to the state of Louisiana and/or State Parks Commission known as Fort Macomb, located in 1235 the vicinity of U.S. Highway 90 and Chef Menteur, under its jurisdiction when it believes it advantageous to the state to do so in the most orderly development and improvement of state parks; such lease may be made after publishing an advertisement in the official journal of Orleans Parish setting forth a description of the lands to be leased, the time when bids therefor will be received and a short summary of the terms, conditions and purposes of the lease to be executed, which advertisement shall be published for a period not less than fifteen days and at least once a week during three consecutive weeks; however, such lease may not be entered into for a period in excess of twenty-five years with an option to renew for an additional twenty-five years; and further, the lease shall not be contrary to the terms of any other contract the commission has already entered into." On February 24, 1966, plaintiff leased the property to Fort Macomb Development Corporation expressly under the authority of Act 158 of 1965. At the same time plaintiff and Macomb entered into an agreement for development of the property, with improvements to the fort, dredging of a harbor, and construction of docks and boathouse facilities. To finance the project, Macomb borrowed $275,000 from defendant, National American Bank. This loan was executed on July 9, 1971, and to secure the Loan Macomb mortgaged its lease to the National American Bank. In addition, Macomb assigned the lease to the bank.[2] Plaintiff intervened in both the mortgage and the assignment of the lease. The mortgage contained the following provision: "... and the said State Park and Recreation Commission does covenant further that should there be any default by Fort Macomb Development Corporation in the performance of any obligation under this mortgage or under its lease obligation during the term of the mortgage, or while any sum be due or remain to be paid under this mortgage, the State Park and Recreation Commission will take no action as lessor prejudicial to the interest of mortgagee nor will it take any action which decreases the value of the security hereunder, or fail to take any action necessary to protect mortgagee's interest in such security." A resolution by the State Park & Recreation Commission had been previously passed to authorize this action. The bank loaned Macomb $275,000 which was used for improvements on plaintiff's land, including the dredging of a waterway and construction of thirty-eight boathouses. Plaintiff attempts to have the mortgage of the lease cancelled on the theory that it was extinguished by confusion under Article 2217 of the Civil Code when the bank acquired the lease by assignment. However, the wording of the assignment was limited in its terms to exist "so long as the mortgage or any portion thereof remains unpaid ..." The assignment was also conditioned on the agreement by Macomb that "during the term of such lease it [Macomb] will undertake to perform all of the conditions and obligations of such lease for the account of National American Bank at the expense of assignor." The wording of the lease, and the testimony adduced at the trial below, clearly shows that all parties treated this assignment of lease as a security device only, and at no time was it regarded as an absolute assignment to the bank. Through both law suits and negotiations between the State and Macomb, the lease was treated as though Macomb still owned it, and on some occasions the bank was not notified of or allowed to participate in negotiations and litigation involving the leased premises. Article 2217 of the Civil Code provides: "When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation." LSA-C.C. Art. 2217. In order for a mortgage to be extinguished by confusion, either the principal 1236 obligation securing it must be extinguished by confusion or the mortgaged property must be acquired by the mortgagee. However, there is no concept in Louisiana of partial extinguishment of an obligation by incomplete confusion of a principal obligation, nor where the mortgaged property is only acquired in part by the mortgagee.[3] In Langley v. Police Jury of Parish of Calcasieu,[4] the court stated at page 305: "`For confusion to occur the same person must acquire the full and perfect ownership of both sides of the obligation by a conveyance which is translative of title.'" The assignment of the lease was not an act translative of title; it merely represented a security device in order to further secure the advance of money by the bank. Under such circumstances, confusion did not occur by the mortgagee bank's acquiring ownership of the mortgaged thing. Next, plaintiff argues the mortgage and assignment of the lease were prohibited by Section 12, Article IV of the Louisiana Constitution of 1921.[5] This section prohibits the loan, pledge or grant of the funds, credit, property, or things of value of the state. The answer to this argument is that in the present case the state has not loaned, pledged or granted anything. Macomb in fact mortgaged its lease rights to the bank, and as such did not affect the state's property. The state merely intervened for the purpose of subordinating its leasehold rights to the bank's mortgage of the lease. The state did not loan, pledge or grant its lease rights. The action of the state did not violate the constitutional provision relied on by plaintiff.[6] Next, the state argues the lease was void ad initio because it violates the general state leasing law, R.S. 41:1211, et seq., which provides any lease granted by the state "shall not be subject to mortgage, pledge, hypothecation, or seizure and sale." However, these restrictions are only applicable to "all leases made under the terms of this Part." that is, under the provisions of the general state leasing statute. The lease now before the court was executed pursuant to the authority granted by Act 158 of 1965, and nowhere in the general provisions on the leasing of state lands does it appear that the legislature in any way changed the provisions or validity of this special legislation applicable only to Fort Macomb.[7] The state next argues the trial judge incorrectly applied the doctrine of estoppel in the present case. Estoppel has been approved by the courts of this state, and it has been held that the doctrine applies equally to the state as to individuals.[8] The doctrine of estoppel has been applied in Louisiana in both common law terminology and in civil law concepts. Under the common law doctrine equitable estoppel is defined as the effect of the voluntary conduct of a party by which he is barred from asserting rights against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance. Consequently, there are three elements of estoppel: (1) a representation by action or word; (2) justifiable reliance on the representation; and (3) a change in 1237 position to one's detriment because of the reliance.[9] The doctrine was discussed in civil law terminology in Burk v. Livingston Parish School Board,[10] in terms of unjust enrichment under Article 1965 of the Civil Code and under the concept that one cannot accept the benefits of an act and repudiate its obligations.[11] Using either common law or civil law terminology, all the elements of estoppel have been met in the present case. The state, by its actions and words, did many things to encourage the defendant bank to advance $275,000 to be used for improvements on the state's property. The state enriched itself to that extent at the expense of the bank. The state acted by intervening in the mortgage in order to subordinate its rights and to further covenant that it would take no action which would prejudice the bank's mortgage. The state went so far as to agree to take all action necessary to protect the bank's interest in the security. The testimony leaves little doubt the bank would not have made the loan without the state's guarantee to perform its part of the contract, and there is no evidence that the state raised the question of the validity of the lease or the bank's mortgage throughout all negotiations leading to the eventual $275,000 loan. On the contrary, the actions of the state indicate it considered all documents valid and binding between the parties. If the trial court had allowed cancellation of the lease, the state would have been able to claim the benefits of its contract and at the same time escape its contractual obligations. Such a consequence cannot be allowed. Finally, the state argues it cannot be estopped to contest unauthorized actions by its officers. This argument is not valid. All actions taken by the director of the Louisiana State Park & Recreation Commission were authorized in advance by the commission. When he intervened in the act of mortgage to subordinate state park's rights in the lease to the bank's mortgage, he did so with the authority granted to him by virtue of a resolution of the commission passed by a unanimous vote of its members, and the language contained in the intervention by plaintiff is copied directly from this resolution of the committee, which resolution was attached to the act by which the state subordinated its rights to the bank's mortgage on the lease. For the reasons assigned, the judgment appealed from is affirmed. AFFIRMED. NOTES [1] Act 158 of 1965, R.S. 56:1690. [2] This assignment to the bank poses one of the issues for our decision. [3] See 36 Tul.L.Rev. 521, at 531. [4] 201 So. 2d 300. [5] This provision was carried forward in the 1974 Constitution as Section 14, Article 7. [6] See also Emery v. Orleans Levee Board, 207 La. 386, 21 So. 2d 418, and Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So. 2d 362. [7] However, even if the state's position were correct, it should be noted state leases may be subleased, transferred or assigned by the original lessee, its sublessees, heirs or assigns with written approval of the state. R.S. 41:1216(B). [8] See Reeves v. Leche, 194 La. 1070, 195 So. 542; State v. Register of State Land Office, 193 La. 883, 192 So. 519; Clark v. City of Opelousas, 147 La. 1, 84 So. 433. [9] See State v. Gulf, Mobile & N.R. Co., 191 La. 163, 184 So. 711; American Bank & Tr. Co. v. Trinity Universal Ins. Co., La.App., 194, So.2d 164, Affirmed, 251 La. 445, 205 So. 2d 35; and Babin v. Montegut Insurance Agency, Inc., La. App., 271 So. 2d 642. [10] 190 La. 504, 182 So. 656. [11] See Succession of Monette, 26 La.Ann. 26; Theriot v. Michel, 28 La.Ann. 107; Sherer-Gillett Co. v. Bennett, 153 La. 304, 95 So. 777; and Horne v. Beattie, 167 La. 647, 120 So. 38.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1767139/	830 S.W.2d 305 (1992) JOSEPHINE E. ABERCROMBIE INTERESTS, INC. and Mercado Partners II, Appellants, v. CITY OF HOUSTON, Appellee. No. 13-91-236-CV. Court of Appeals of Texas, Corpus Christi. April 30, 1992. Rehearing Overruled June 4, 1992. 306 H. Lee Godfrey, Jeffrey Chambers, Houston, for appellants. J. Eugene Clements, Evelyn V. Keyes, Houston, for appellee. Before KENNEDY, DORSEY, and GILBERTO HINOJOSA, JJ. KENNEDY, Justice. Appellants, Josephine E. Abercrombie Interests, Inc. and Mercado Partners II (the Developers), appeal from a summary judgment granted in favor of the City of Houston (the City). Appellants assert that the summary judgment based on governmental immunity was granted improperly because in a transaction between the City and appellants, the City was engaged in a proprietary rather than a governmental function. We reverse the summary judgment and remand to the trial court for further proceedings. This case involves the Mercado del Sol in Houston, Texas. The Mercado was a community development project designed to revitalize Houston's economically deprived Fourth Ward. Development of the Mercado was partially funded by federal funds pursuant to Title I of the federal Housing and Community Development Act of 1974 and the Texas Community Development Act of 1975. Title I and the Texas Community Development Act authorize municipalities like the City to seek federal funding for projects that fulfill certain criteria specified in the statutes as serving the public welfare. These types of projects are designed to be funded by a combination of federal Community Development Block Grant (CDBG) loans to private developers and by private capital supplied by developers. If the project is a success, the developers make a profit after paying back the federal loan. In 1987, following lengthy negotiations in which both appellants and appellee were represented by counsel, the Developers purchased the Mercado and the parties executed a Memorandum of Understanding detailing the parties' obligations for the project development. Under the terms of the Memorandum, the City agreed to provide the Developers a low-cost CDBG loan not to exceed five million dollars. The parties agreed that the City would, upon conditions set out in the Memorandum, subordinate the CDBG loan to a third-party loan. Additionally, the parties agreed that the City would have a first lien position on the property. The allocation of federal CDBG funds to the Developers pursuant to their agreement with the City was approved by the Houston City Council on September 30, 1987. The Developers closed on the CDBG loan in March, 1988, 307 and began working on the Mercado. Within just over one year, the Developers drew approximately $3,108,000, of the available $5,000,000, CDBG funding. The record reflects that in June, 1989, the City received a letter from HUD setting out its findings in reviewing the Community Development Block Grant Program administered by the City. The letter, in pertinent part, showed that the City failed to comply with the federal requirement that it determine whether CDBG funding was necessary or appropriate when the Developers reduced their proposed investment from $8.3 million to $5.3 million. The record reflects that on October 10, 1989, the City sent the Developers a letter acknowledging the Developers' request to subordinate the CDBG loan to a third-party loan. The City pointed out that subject to the Memorandum of Understanding, it needed assurance that the third party did not have a common identity with the principals and owners of the Developers. Additionally, by the letter, the City expressed concern that the Developers had not resolved several financial and accountability matters that they were obligated to perform under the terms of the Memorandum. Along with the letter, the City enclosed a Notice of Default and Demand and Notice of Intent to Accelerate the CDBG loan made by the City for the Mercado project. The notice stated that the Developers failed to provide statements and meet certain obligations set out in the Memorandum of Understanding, and thus, were in default on the CDBG loan. If the Developers failed to cure the defaults, and failed to provide statements and assurances within thirty days of receiving the notice, the City would accelerate the loan note and the entire amount due plus interest. Subsequently, the City, pursuant to the Memorandum of Understanding, which gave the City a first lien position, foreclosed on the Mercado. The Developers sued the City alleging fraud, negligent misrepresentation, constructive fraud, wrongful foreclosure, breach of fiduciary duty and breach of express and implied warranties and covenants. The Developers asserted that the City was liable for damages, interest, costs of suit, and attorney's fees. The Developers alleged that the City induced them to purchase the Mercado by a fraudulent promise to loan money for the Mercado's development despite the City's alleged knowledge that the loan violated HUD lending requirements. The Developers also alleged that the City induced them to give the City a first lien position on the Mercado property with the promise that the City would subordinate its position to any third-party financing. The Developers assert that when they arranged third-party financing, the City refused to subordinate its first lien position. The Developers assert that because of the City's fraud, 1) HUD ultimately cut off funding to the City for the Mercado project, then 2) the City asserted its first lien position, which the Developers claim it had no legal right to do, and 3) the City then wrongfully foreclosed on the Mercado. In response to the Developers' suit, the City filed a motion for summary judgment asserting that it is a municipal corporation, and as such, is entitled to immunity from all claims arising from the performance of its governmental functions except those permitted by the Texas Tort Claims Act. Tex.Civ.Prac. 101.002, et seq. (Vernon 1986). The City asserted in its motion that the loan of CDBG funds is a quintessential governmental function that is not waived by the Texas Tort Claims Act. Therefore, the City asserts, it is shielded from the Developers' claims as a matter of law and the Developers' pleadings fail to state a cause of action for which relief may be granted. The Developers responded to the summary judgment motion, asserting that the City was unable to meet its burden to show the defense of governmental immunity as a matter of law and failed to show that there were no factual issues concerning the defense. The Developers assert that the City was acting in a proprietary capacity when agreeing to loan" CDBG funds to them for the development of the Mercado. The Developers contend that the primary purposes 308 of the Mercado project were to create and maintain jobs for low and moderate income residents of Houston and to stimulate economic development in the area surrounding the Mercado. Therefore, the Developers contend, the loan of CDBG funds was a proprietary function performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the municipality. See City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987). They assert that the City is not required to make CDBG fund loans, and if it chooses to do so, in its discretion, for the benefit of the inhabitants of the City, it is making a proprietary decision. Accordingly, the Developers assert that the City is not immune from liability for its tortious act. After considering the motions and supporting summary judgment evidence, the trial court granted summary judgment in favor of the City. Following the court's overruling a motion for new trial, the Developers appeal. The standard for reviewing summary judgment evidence is well established. Defendants moving for summary judgment must expressly present and conclusively prove all essential elements of their affirmative defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovants will be taken as true and every reasonable inference will be indulged in favor of the nonmovants with any doubts resolved in their favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1979). By point one, the Developers assert that the trial court erred by granting summary judgment in favor of the City based on governmental immunity because the City's acts complained of were proprietary, and thus the City may be liable for its wrongful acts in furtherance of those proprietary functions. Under the Texas Tort Claims Act, proprietary functions are defined as those acts a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality. Tex.Civ.Prac. & Rem. Code Ann. § 101.0215(b) (Vernon Supp. 1992); Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex.1986). Under the Texas Tort Claims Act, governmental functions are defined as those functions that are enjoined on a municipality by law and are given by the State as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public. Tex.Civ. Prac. 101.0215(a) (Vernon Supp. 1992); Gates, 704 S.W.2d at 738-39; City of Schertz v. Parker, 754 S.W.2d 336, 340 (Tex.App.San Antonio 1988, no writ). When the statute does not waive immunity for governmental functions, immunity remains the rule. McCord v. Memorial Medical Center Hosp., 750 S.W.2d 362, 363 (Tex.AppCorpus Christi 1988, no writ). Unlike governmental functions, for which municipal corporations have traditionally been afforded some degree of immunity, proprietary functions have subjected municipal corporations to the same duties and liabilities as those incurred by private persons and corporations. Gates, 704 S.W.2d at 739 (citing Turvey v. City of Houston, 602 S.W.2d 517, 519 (Tex.1980)). When addressing whether a function is governmental or proprietary, the difficulty lies not in stating the governing principles of law, but rather in applying those rules to a particular factual situation. The powers and duties of municipal corporations are of two-fold character; the public as regards the State at large, insofar as municipalities are the State's agents in government; the other private, insofar as municipalities provide the local necessities and conveniences for their own citizens. 18 McQuillin, Municipal Corporations, § 53.29 (3rd Ed. 1984). Under Texas law, governmental functions are those functions enjoined upon a municipality by law and are given by the State as part of its sovereignty. Tex. Civ. Prac. 101.0215(a) (Vernon Supp. 1992). Where statutory terms are not defined they are to be given their ordinary meaning. Tex.Gov't.Code Ann. § 311.011(a) (Vernon 1988). "Enjoined" 309 means to order, to require, to command, to urge or impose with authority, or positively direct. Black's Law Dictionary, 276 (5th ed. 1979); Webster's New Twentieth Century Dictionary 604 (2d ed. 1979). When a municipality acts, but not in connection with duties imposed upon it under powers conferred to it as a legal agency of the State, or as the representative of the State's sovereignty, its acts are proprietary, and it is liable for torts committed by its officers or agents in performing them. City of Schertz, 754 S.W.2d at 340. Under Texas Local Government Code, Sections 373.004 and 373.005, a municipality may adopt a community development program by ordinance or resolution. Additionally, under Texas Local Government Code, Section 374.002, the Texas Legislature made findings as to the intent of the Urban Renewal Statutes. Under Section 374.002(c), it is the intent of the legislature that private enterprise be encouraged to participate in accomplishing the objectives of urban renewal projects. In reading the related statutory language, we find nothing whereby the State enjoins a community development program upon the City of Houston. The language lacks the element of command necessary for enjoining a function on a municipality. Additionally, we note that the Memorandum of Understanding executed by the parties recites that the stated purpose of the Mercado project was to create jobs for low and moderate income residents of Houston, and to stimulate economic development in the area surrounding the Mercado property. This fits squarely within the statutory definition of a municipal proprietary function. Thus, we conclude the City was performing a proprietary function when it engaged in loaning CDBG funds to the Developers for the Mercado project. This determination may seem to discourage public/private partnerships. Our concern is that this may result in undermining the enthusiasm of cities for these partnerships. Additionally, we recognize that without these types of public subsidies, private developers may hesitate to undertake comprehensive urban renewal projects because of the risks involved and the lack of economic incentives for entering into these types of projects. We acknowledge that the tendency to characterize municipal actions as governmental or proprietary influences the outcome of disputes, yet, we feel constrained by the law that defines these functions. In order for us to find that the City is subject to governmental immunity, we would have to conclude 1) that the loaning of CDBG funds is an act that is enjoined upon the City as part of the State's sovereignty, and 2) that the function is to be exercised in the interest of the general public. Both conditions must be met in order to invoke governmental immunity. Additionally, we find a lack of statutory language specifically providing municipalities engaged in providing these types of funds with governmental immunity. Failing to find the above, we conclude that the City engaged in a proprietary act when it loaned the funds to the Developers. Accordingly, the City failed to show it was entitled to governmental immunity as a matter of law. We sustain point one. Having addressed all points of error necessary for disposition of this case, we reverse and remand to the trial court for further proceedings. Tex.R.App.P. 90(a).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1646297/	834 F.Supp. 191 (1993) Vernon A. LEWIS, et ux Peggy Lewis v. KEYES 303, INC. (F/K/A Keyes Offshore, Inc.), et al. Civ. A. No. G-92-631. United States District Court, S.D. Texas, Galveston Division. October 21, 1993. 192 193 Ernest H. Cannon, Ernest Cannon & Associates, John W. Stevenson, Stevenson, Parker & St. John, Houston, TX, for plaintiffs. James Richard Watkins, Royston Rayzor Vickery & Williams, Galveston, TX, Christopher L. Evans, Meyer Orlando & Evans, Houston, TX, for defendants. Ervin A. Apffel, Jr., Patricia McGarvey Rosendahl, McLeod Alexander Powel & Apffel, P.C., Galveston, TX, for third-party defendant. ORDER GRANTING THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT KENT, District Judge. Before the Court is the motion of Third-Party Defendant Completion Services, Inc. ("CSI") for summary judgment on the third-party claim for contractual indemnity asserted against it. Because the contract at issue as applied to this case is void as a matter of law, summary judgment is GRANTED. Background The underlying lawsuit here concerns personal injuries sustained by Plaintiff Vernon Lewis while working aboard a jack-up drilling rig, the Marine 17. Lewis is an employee of CSI. At the time of his injuries, Defendant Marine Drilling Company owned the Marine 17, and Defendant Unocal Exploration Corporation had use of the vessel under contract. The well on which Mr. Lewis was working is located forty miles south of Freeport, Texas, on the Outer Continental Shelf ("OCS"). Lewis sued the vessel, its owners, Third-Party Plaintiff Union Oil Company of California ("Union Oil"), and Unocal Exploration (and related entities) for negligence under the general maritime law and the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. Mr. Lewis and another CSI employee were aboard the Marine 17 to perform well completion services. Although the evidence before the Court strongly suggests that CSI was hired for this purpose by Unocal Exploration (the rig's charterer), Union Oil claims that it actually hired CSI. At the time, Unocal Exploration was Union Oil's wholly-owned subsidiary. Sometime after Mr. Lewis' accident, Unocal Exploration completely merged into Union Oil, ceasing to exist as a separate entity. Back in 1975, Union Oil and CSI entered into a "blanket services contract" ("BSC") designed to provide the terms and conditions governing contemplated future true contracts between these parties. Under this compact, CSI agreed to indemnify and defend Union Oil against any liability for injuries sustained by CSI employees. Union Oil claims that this BSC entitles it to full indemnity from CSI in this case. However, CSI has paid Lewis worker's compensation benefits under the LHWCA. CSI therefore asks for summary judgment on this claim, on the grounds that the indemnity clause is void under the LHWCA because CSI is Lewis' LHWCA employer, and Union Oil is a "vessel" within the meaning of that statute. Summary Judgment Summary judgment is appropriate if no genuine issue of material fact exists and 194 the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is material if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if there is a genuine issue for trial that must be decided by the trier of fact. Id. See also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In ruling on a Motion for Summary Judgment, the Court must accept the evidence of the nonmoving party and draw all justifiable inferences in his favor. Credibility determinations, the weighing of the evidence, and the drawing of reasonable inferences are left to the trier of fact. Anderson v. Liberty Lobby, supra, 477 U.S. at 255, 106 S.Ct. at 2513. Under Fed.R.Civ.P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, supra, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987). Where the moving party has met it Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, supra, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)) (emphasis original). Indemnity and the LHWCA As a floating, movable jack-up drilling rig, the Marine 17 is a "vessel" for the purposes of admiralty law. Marathon Pipe Line v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (5th Cir.1985). Because Mr. Lewis was not a seaman,[1] his personal injury claims are governed by the LHWCA for two independent reasons. First, he is a covered "employee" as defined by the LHWCA itself, as he was working on a vessel in navigable waters in a non-crew capacity. 33 U.S.C. § 902(3) (1986); see Herb's Welding, Inc. v. Gray, 470 U.S. 414, 416 n. 2, 105 S.Ct. 1421, 1423, 84 L.Ed.2d 406 (1985) (non-crew workers on floating rigs are covered by LHWCA). Secondly, the LHWCA applies by adoption under the Outer Continental Shelf Lands Act ("OCSLA"), because Mr. Lewis' injuries occurred on the OCS while he was employed in the exploration for oil. 43 U.S.C. § 1333(b) (1986); see Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980) (OCSLA extends full panoply of LHWCA benefits to OCS oil field workers, regardless of whether engaged in "maritime employment"); Herb's Welding, 470 U.S. at 422 n. 8, 105 S.Ct. at 1426 n. 8 (same). The no-fault compensation provided by the LHWCA is a worker's exclusive remedy against his employer.[2]Doucet v. Gulf Oil Corp., 783 F.2d 518, 525 (5th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986). However, under § 905(b) an employee may sue the vessel on which he was injured for negligence, and this is the employee's exclusive remedy against the vessel. Furthermore, this section provides that "the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void." 33 U.S.C. § 905(b). Hence indemnity contracts between 195 the vessel and the employer are void. 783 F.2d at 525.[3] For the purposes of the LHWCA, the term "vessel" includes a vessel's "owner, owner pro hac vice, agent, operator, charter [sic] or bare boat charterer...." 33 U.S.C. § 902(21). The courts of this circuit have consistently held that the term "charter" in the statute is a misprint of "charterer," and that the time charterer of a vessel is liable for negligence as the "vessel" under § 905(b), to the extent that he exercises control over the vessel. Kerr-McGee Corp. v. Ma-Ju Marine Serv. Inc., 830 F.2d 1332, 1338 (5th Cir.1987); Balfer v. Mayronne Mud & Chemical Co., 762 F.2d 432, 435 (5th Cir. 1985); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1041 (5th Cir.1983); Randall v. Chevron U.S.A., Inc., 788 F.Supp. 1398, 1405 (E.D.La.1992). Therefore, when a LHWCA-covered contractor's employee sues an oil company in negligence for injuries sustained on a floating drilling rig chartered to the oil company, any indemnity agreement between the oil company and the injured worker's employer is void. Meredith v. A & P Boat Rentals, Inc., 414 F.Supp. 788 (E.D.La.1976) (Alvin B. Rubin, J.); Tenneco, Inc. v. Loomis Int'l, Inc., 730 S.W.2d 96 (Tex.App. Houston [14th Dist.] 1987, no writ); see Aucoin v. Pelham Marine, Inc., 593 F.Supp. 770 (W.D.La.1984) (time charterer's indemnity claim against LHWCA employer is barred); Boudreaux v. American Workover, Inc., 680 F.2d 1034, 1036 n. 2 (5th Cir.1982) (noting that, had the drilling-vessel injury at issue taken place on the OCS, the operator's indemnity claim against the injured contractor's employer would clearly have been barred by the LHWCA), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983). Unocal as Charterer? To avoid this rule Union Oil first claims that the LHWCA anti-indemnity provision does not apply to this case because the contract under which it used the Marine 17 was not a "charter" within the meaning of the LHWCA. In support of this contention, Union Oil points to the title of the contract, under which the agreement is termed an "Offshore Daywork Drilling Contract." Union Oil argues that because this form contract pertains to drilling equipment generally, whether land-based or offshore, it is not a "charter." This argument engenders deep empathy in this Court for the frustration Socrates must have felt with the Sophists. Union Oil offers utterly no facts which might distinguish its arrangement with the subject vessel from that of a typical charter, beyond the title of the contract and the fact that a similar form is used to gain the use of (the "charter" of?) land-based rigs. Indeed, a mere cursory glance at the contract reveals that the "form" portion governs only the business relationship of the parties, while the objects of that form are described in the much more extensive appendices. These describe an OCS drilling site, a marine drilling vessel's specification, the required ship's crew, the vessel's American Bureau of Shipping certification, the vessel's Coast Guard certification, and certification of marine hull insurance. Black's defines "charter": The term "charter party" or "charter agreement", often shortened to "charter," designates the document in which are set forth the arrangements and contractual engagements entered into when one person (the "charterer") takes over the use of the whole, or a substantial portion, of a ship belonging to another (the "owner"). Black's Law Dictionary 236 (6th ed. 1990). "In a typical time charter, the charterer obtains use of the ship and the owner maintains control of the ship and provides the crew." Tenneco, 730 S.W.2d at 97. These definitions describe precisely the relationship of Unocal Exploration to the Marine 17. While Marine Drilling Company provided the crew, under its "Offshore Daywork Drilling Contract" Unocal Exploration gained the exclusive use of the drilling vessel for the period needed to drill one or more wells. Unocal 196 Exploration directed the location of the vessel's operations and ultimately controlled the manner in which they were conducted. Unocal Exploration kept a "company man" on board the vessel to oversee these operations. It is unequivocally indisputable that Unocal Exploration was the "charterer" of the Marine 17 at the time of Mr. Lewis' accident, bringing Unocal Exploration within the definition of "vessel" for purposes of the LHWCA. Union Oil as Charterer Union Oil next contends that Unocal Exploration's status as charterer of the Marine 17 does not proscribe the indemnity agreement between Union Oil and CSI because Unocal Exploration was, at the time of the accident, a separate and distinct entity. Under the scenario as Union Oil attempts to describe it, Unocal Exploration chartered the Marine 17, but Union Oil hired CSI to work on the vessel. In other words, Union Oil hired CSI to work on somebody else's chartered vessel, so Union Oil is not the "vessel" and the § 905 prohibition of vessel/employer indemnity is inapplicable to their contract with CSI. Careful analysis renders this suggestion ridiculous. At the outset, the Court notes that Union Oil's description of the transaction is wholly unsupported by the record. Rather, the only reasonable inference that can be drawn from the uncontroverted evidence is that Unocal Exploration hired CSI to work on its rig.[4] Therefore, Union Oil's only apparent potential liability for Mr. Lewis' injuries lies in its role as corporate successor to Unocal Exploration, the charterer of the Marine 17.[5] Union Oil does not offer, and this Court cannot envision, any alternative characterization of its role which might lead to liability on its part. Furthermore, even if as Union alleges Union Oil hired CSI to work on a separate entity's chartered vessel, then it must have acted as that entity's agent in this respect. Section 905's indemnity proscription would be but a minor legal distraction if it could be 197 circumvented so easily. Every carrier and exploration company would simply charter vessels through paper subsidiaries and require contractors to sign indemnity contracts with the parent company, knowing that any potential plaintiff against the "actual" charterer would be forced to sue the asset-laden parent in order to secure recovery. The statute, however, voids any indemnity contracts which would make the employer liable to the vessel "directly or indirectly." 33 U.S.C. § 905(b). Because Union Oil's BSC with CSI would allow indirect indemnification of the charterer by an LHWCA employer, as applied here this provision is void. See Gaudet v. J. Ray McDermott & Co., 568 F.Supp. 795, 798 (E.D.La.1983) (§ 905 forbids indemnity by employer to non-vessel oil company, where oil company's sole liability is indemnity to vessel). * * * * * * In sum, Union Oil's third-party indemnity claim against CSI is barred by the LHWCA, as Union Oil stands in the shoes of the charterer of the vessel on which CSI's employee, the Plaintiff in this case, was injured. Therefore, CSI's motion for summary judgment is GRANTED. It is further ORDERED that the parties file no further pleadings on this issue in this Court, including motions to reconsider and the like. Instead, the parties are instructed to seek any further relief to which they feel themselves entitled in the United States Court of Appeals for the Fifth Circuit, as may be appropriate in due course. IT IS SO ORDERED. NOTES [1] Mr. Lewis does not claim status as a Jones Act seaman in his First Amended Complaint, and the evidence before the Court indicates such a claim would be insupportable. [2] According to uncontroverted summary judgment evidence, Mr. Lewis has received LHWCA benefits from CSI for the injuries complained of here. [3] Section 905(c) removes this proscription to the extent that indemnity agreements between vessels and employers on the OCS are reciprocal. Union Oil, however, has presented no evidence that the subject agreement was reciprocal. [4] Union Oil's own summary judgment evidence includes the following excerpts from the deposition of one George T. Armistead who, though otherwise unidentified, appears to be or to have been a Union Oil employee: Q: In March of 1991, did Unocal Exploration Corporation request services of Completion Services Inc. to be performed on the MARINE 17 rig? A: Yes. . . . . . Q: Was it your understanding that the company that had contracted for the services of Completion Services Inc. on the MARINE 17 drilling rig was Unocal Exploration Corporation? A: Not really. I mean, as the way I go the way I understand it is Union Oil Company of California was the is as I understand it and I'm very confused, is the managing general partner for Unocal Exploration Corporation. In other words, employees of Union Oil Company of California, we we think of in effect have been [sic] contracted by Union Exploration Corporation that's the way I mean, I think of it, is to provide the management and the supervision of all the projects for Unocal Exploration Corporation properties. So in other words, Unocal Exploration Corporation is nothing more than properties, leases and assets and oil and gas in the ground and platforms. . . . . . Q: So to some degree, is it possible that Unocal Exploration Corporation was using your services with respect to the contract it entered into with Completion Services Inc.? A: That's the way I think of it, yes. Union Oil has also attempted to mislead this Court on this issue with the inclusion of page 30 of the deposition of one Curtis Shroyer, a Union Oil employee who was the "company man" aboard the Marine 17 at the time of the accident. On said page 30, Shroyer testified that he currently works for Union Oil. Union Oil neglected to include page 29 of this deposition, in which Shroyer testified: Q: Okay. Are you the person who is overall in charge of the rig? A: Yes, I am. Q: And you, at the time, were an employee of Unocal Exploration Corporation? A: Yes, ma'am. Furthermore, Unocal Exploration owned the lease on which the Marine 17 was drilling, and all of CSI's invoices and work orders were addressed to "Unocal Exploration," "Unocal," or "Union Exploration." Hence the inescapable conclusion supported by the evidence is that Unocal Exploration, not Union Oil, hired CSI. [5] Since Unocal hired CSI, it is also questionable whether the BSC between Union Oil and CSI even applies to this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/327707/	516 F.2d 591 UNITED STATES of America, Plaintiff-Appellee,v.Van Wert MULLIN et al., Defendants-Appellants. Nos. 74-1874, 74-1876. United States Court of Appeals,Seventh Circuit. Argued April 7, 1975.Decided May 27, 1975. Robert G. Mann, Steven H. Frank, Indianapolis, Ind., for defendants-appellants. Stanley B. Miller, U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before PELL and SPRECHER, Circuit Judges, and PERRY, Senior District Judge.* SPRECHER, Circuit Judge. 1 The only substantial question raised by this appeal is whether a "numbers" or policy operation involved the requisite five-or-more persons. 2 Seven persons (Mullin, Herring, Canady, Williams, Bryant, Bigsbee and Pasley) were charged in the indictment with conducting an illegal gambling business of pool-selling, policy and numbers contrary to State of Indiana laws in violation of 18 U.S.C. § 1955. At the beginning of the trial defendant Williams was dismissed from the case. Upon a bench trial, the remaining six defendants were found guilty. Bryant and Bigsbee each received a sentence of one year's probation and did not appeal. 3 Mullin and Herring were sentenced to six months' imprisonment and two and one-half years' probation. Canady was sentenced to 60 days' imprisonment and 34 months' probation. Pasley was sentenced to 60 days' imprisonment and 22 months' probation. Mullin, Herring, Canady and Pasley have appealed. 4 18 U.S.C. § 1955(a) provides that "(w)hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both." Section 1955(b) provides in part that: 5 (1) "(I)llegal gambling business" means a gambling business which 6 (i) is a violation of the law of a State or political subdivision in which it is conducted; 7 (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and 8 (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. 9 (2) "(G)ambling" includes but is not limited to pool-selling . . . policy . . . or numbers games . . .. 10 Defendants Mullin, Canady and Herring admitted that the three of them conducted a numbers business in Indianapolis. In fact their brief candidly conceded that "(t)he evidence established that . . . Mullin was a numbers banker and that he employed . . . Herring and Canady as runners." What the four appealing defendants contended on appeal, however, was that the government failed to connect defendant Pasley or Pasley's admitted employee, Burney, to the operation involving the other three. 11 Several witnesses testified as to the method of operation of the numbers business enterprise. A bettor would select, at random, any four numbers from "0" through "9". He would place his bet with a writer. The writer would write a bet slip including the following information: his code in the upper right hand corner, the number bet, the amount and the date. The writer would then turn in the bet slips and 75 percent of the amounts of the bets to the pickup man. The pickup man would retain ten percent of the gross amount of the bets, and the remaining 65 percent of the bets and the bet slips would be delivered to the banker. The winning number would depend on the results of the stock market for the day that is, the number of stocks which advanced in price, declined in price and remained the same. The winning dollar bet would receive a maximum prize of $2,250. 12 The evidence consisted primarily of hundreds of betting slips, adding machine tapes and so-called "bank pads," which were bound note pads from which the betting slips had been detached leaving a record for the writer of the bets. This evidence had been collected during searches of the residences of Mullin, Canady and Bryant on April 15, 1974, pursuant to search warrants. This documentary evidence established that the numbers enterprise was in existence at least from January 2, 1974, through April 12, 1974. Betting paraphernalia for this entire period appeared without any differences in form for particular times or periods within the three and one-half month term. This evidence further established that there were 50 or 60 separate bet writers during the period. 13 The appealing defendants' argument regarding the lack of connection between Mullin-Herring-Canady on the one hand and Pasley-Burney on the other, was based primarily on Mullin's statements to law enforcement officers that he began to bank this particular numbers operation in March 1974, and that he did not desire to do business with Pasley. 14 In regard to Mullin's statements about his commencing his participation in the enterprise in March, a calendar pad (Gov't Ex. 1) was obtained from Mullin's residence, showing the winning numbers for each day (except Saturdays and Sundays) from January 2 to April 12, 1974. The fact-finder, who was the district judge in this case, could have concluded that the numbers, particularly a very distinctive style of writing the number "4", were written throughout the period by the same person in the same handwriting. So-called "cut cards" with betting data, dated December 10 (Gov't Exs. 6 and 7) were also found in Mullin's possession. A notebook with betting information obtained in Canady's residence (Gov't Ex. 32) contained dates ranging from February 4 to April 15. When considered together with the massive quantities of uniform paraphernalia covering the entire period of January-April, the judge could have concluded that Mullin was involved in the enterprise throughout that entire period. 15 In regard to Pasley's connection with Mullin-Herring-Canady, the witness Burney testified that she was employed at $15 per day by Pasley in the numbers business during the period January-April 1974. She further testified that during January and February 1974, she turned her bets over to Pasley at 1434 Herschell Street in Indianapolis where defendant Herring would also be present. On occasion, Pasley would not be there and she and Herring would wait together for him. 16 In addition to Burney's testimony, a government agent testified that during surveillances he observed Mrs. Burney at 1434 Herschell with Herring on February 7 and 21. On the 21st, Pasley's automobile was observed parked across the street from 1434 Herschell. On February 22, Pasley was also observed at the Herschell address. 17 There was no denial by Pasley that he was engaged in a numbers operation with Burney as his employee. He argued, however, that the February dates linking him to Herring occurred before Mullin commenced his participation in March. As we have noted, the court below heard evidence sufficient to connect Mullin with the enterprise during the entire January-April period. Consequently, the February evidence connecting Pasley and Burney with Mullin's associate, Herring, was sufficient to indicate that Pasley's operation was part of the Mullin-Herring-Canady operation. United States v. Hunter, 478 F.2d 1019, 1022 (7th Cir.,), cert. denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107 (1973). This being so, the five-or-more persons requirement was met. 18 In addition, witness Primus testified that he was a writer or runner for Canady during the period involved. Defendant Bigsbee testified that for the period in question he acted as the driver for his grandfather, Canady, while he picked up bets and that he knew the function Canady was performing in the gambling operation. 19 We have held that runners, ticket sellers, telephone clerks, salesmen, lay-off bettors and watchmen may be counted to reach the required number of participants. United States v. McHale, 495 F.2d 15, 18 (7th Cir. 1974); United States v. Manson, 494 F.2d 804, 807 (7th Cir.), cert. denied, 419 U.S. 994, 95 S.Ct. 304, 42 L.Ed.2d 266 (1974); United States v. Hunter, supra at 1021-22. Primus was a runner or ticket seller or salesman. Bigsbee was a driver or chauffeur with knowledge that he was aiding and abetting an illegal gambling operation. 20 The record supports the conclusion that a well-organized and widespread gambling operation was conducted for at least three and one-half months. The evidence is sufficient to confirm a link between each defendant and at least four other conductors involved in the gambling business. 21 The judgments of conviction are affirmed. * Senior District Judge Joseph Sam Perry of the Northern District of Illinois is sitting by designation	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1679804/	588 F.Supp. 912 (1984) Barbi SARGENT, Plaintiff, v. AMERICAN GREETINGS CORP., Defendant. No. C 82-1465. United States District Court, N.D. Ohio, E.D. May 30, 1984. 913 Christopher B. Fagan, Patrick R. Roche, Fay & Sharpe, Cleveland, Ohio, for plaintiff. Charles M. Kennedy, George J. Moscarino, Kathleen B. Burke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for defendant. MEMORANDUM OPINION AND ORDER LAMBROS, District Judge. This action for copyright infringement was initiated by plaintiff Barbi Sargent against defendant American Greetings Corporation on June 7, 1982. Plaintiff states in her complaint that in 1977 she created original works of art entitled "Strawberry Girl." Appended to the complaint are six (6) water color paintings and twelve (12) pencil sketches for which on May 14, 1982 she obtained copyright registration VAu 34-113. Plaintiff essentially claims that defendant has infringed her copyright by manufacturing and marketing various products that display a character entitled "Strawberry Shortcake." Plaintiff also states in her complaint that defendant has licensed the "Strawberry Shortcake" character to various manufacturers for display on a wide variety of products produced by the licensees. She claims that defendant has "aided, abetted, participated in, contributed to, authorized or benefited from the infringing acts" of the various licensees. In addition to her copyright infringement claim, plaintiff claims that defendant breached a confidential relationship between them and misappropriated her "Strawberry Girl" artwork. She asserts that she has been an independent commercial artist since 1970, and in 1977 presented her "Strawberry Girl" artwork to defendant. She further alleges: At the time of the creation of the Strawberry Girl Artwork in 1977, Plaintiff and Defendant were engaged in a business relationship whereby Plaintiff, Barbi Sargent, reposed her trust and confidence in Defendant, American Greetings, for fair dealing in the treatment of her original works by American Greetings. As a result of this business relationship, Defendant, American Greetings, gained a resulting influence and superiority over the Plaintiff, Barbi Sargent, concerning the rights in her original works. Complaint ¶ 17. The basis of this pendent state law claim is that defendant breached the confidential relationship by misrepresenting to plaintiff the value of her "Strawberry Girl" artwork and then misappropriating to its own use her rights in the "Strawberry Girl" artwork. In its answer, defendant denies the substance of plaintiff's claims and raises numerous defenses. Defendant also sets forth two counterclaims. In its first counterclaim, 914 defendant avers that plaintiff knowingly made misrepresentations in her application for copyright registration and seeks a declaration that plaintiff's copyright registration VAu 34-113 is invalid. Defendant also asserts that the artwork that is the subject of registration VAu 34-113 is not subject matter copyrightable by plaintiff. In its second counterclaim, defendant avers that in 1977 it created a series of drawings of a character entitled "Strawberry Shortcake" (originally entitled "Strawberry Patches"). Defendant further avers that on and after June 12, 1980 it obtained various certificates of copyright registration for the artwork depicting "Strawberry Shortcake," including registrations TX 480-048, dated June 12, 1980, and TX 709-889, dated June 8, 1981. Defendant claims that after it created detailed line drawings of the "Strawberry Shortcake" character, it "assigned plaintiff to copy said character and drawings and to produce color finishes pursuant to defendant's instructions for the purpose of review and possible purchase by defendant." Defendant asserts that the parties understood and agreed that any artwork produced by plaintiff in connection with her color finish assignments was work made for hire and that all rights vested in defendant. Defendant specifically alleges that the "Strawberry Girl" artwork appended to the complaint was copied from its detailed line drawings and was created by plaintiff in connection with a color finish assignment. The thrust of defendant's second counterclaim is succinctly set forth: Plaintiff has threatened to, and on information and belief intends to, infringe defendant's copyrights by selling to others the artwork attached to the Complaint and/or other copies of defendant's Strawberry Shortcake character, and/or by licensing others to use copies of said character on products made or sold by them. Answer and Counterclaims ¶ 41. Defendant claims it will be irreparably injured in the event plaintiff publishes, assigns, or licenses its "Strawberry Shortcake" character and therefore seeks to enjoin any such publication, assignment, or license. In her reply to defendant's counterclaims, plaintiff denies the substance of the counterclaims. She also sets forth a number of detailed affirmative assertions concerning her involvement in the development of the "Strawberry Shortcake" character. With respect to defendant's averment that in 1977 it created a series of wholly original drawings of the "Strawberry Shortcake" character, plaintiff states that she created four (4) pieces of color finished art depicting "Strawberry Shortcake" (then known as "Strawberry Patches") in early July 1977 and that the four pieces of artwork were transferred to defendant on July 7, 1977. Plaintiff further asserts: Any drawings allegedly created by Defendant in 1977 and prior to the completion by Plaintiff of her Strawberry Shortcake finished artwork (in July, 1977) were preliminary, rough sketches in black pencil, which did not constitute a creation of Strawberry Shortcake (then known as Strawberry Patches). Plaintiff further states that any finished artwork allegedly created by Defendant prior to the creation of Strawberry Shortcake (then called Strawberry Patches) by Plaintiff in July, 1977, did not constitute a creation of Strawberry Shortcake. [Materials submitted in connection with pending motions indicate that defendant approached two other artists to color the line drawings before contacting plaintiff.] Such finished art was unsatisfactory to Defendant, was rejected by Defendant and was never again used by Defendant. The creation of Strawberry Shortcake by Plaintiff is documented in the invoice of Plaintiff to Defendant dated July 7, 1977 .... Reply to Counterclaims ¶ 6. A photocopy of the July 7, 1977 invoice is appended to the reply as an exhibit. With respect to defendant's averments concerning its copyright registration of various works of art depicting "Strawberry Shortcake," plaintiff states: 915 Plaintiff notes that Defendant's copyright Reg. No. TX 480-048 was amplified on July 2, 1981 in Reg.No. TX 714-081. Defendant's Reg. No. TX 480-048 dated June 12, 1980 stated a date of first publication of Strawberry Shortcake as September 18, 1979. That registration also noted that there were no pre-existing works on which the registration was based. This statement was later amplified in Reg. No. TX 714-081 on July 2, 1981 to recite the fact that, among other works, a greeting card identified as "Darling Daughter 25B2437K" constituted pre-existing material that the Strawberry Shortcake publication either incorporated or was based on. [A black and white photocopy of the] published artwork identified as "Darling Daughter" has been [appended to the reply as an exhibit.] Plaintiff states that the "Darling Daughter" finished art was created by her in September, 1973 and that she retained all rights thereto by virtue of her contract dated May 10, 1973 with Defendant, American Greetings. Reply to Counterclaims ¶ 7. The May 10, 1973 contract is appended to the reply as an exhibit. With respect to defendant's claim that it assigned plaintiff to copy its detailed line drawings of the "Strawberry Shortcake" character and to produce finished color artwork, plaintiff states that in June 1977 she received such an assignment. She asserts that the assignment was completed in early July 1977 and that she tendered to defendant on July 7, 1977 four (4) "leader cards" depicting the "Strawberry Shortcake" character in full color. (Leader cards are used by defendant for consumer test purposes.) Plaintiff further states: The right and title to the Strawberry Shortcake (then known as Strawberry Patches) artwork and the Strawberry Shortcake character created by the leader card project are governed by the Agreement between the parties dated May 1, 1976 .... The [May 1, 1976 agreement] follows in time earlier Agreements entered into by the parties dated May 10, 1973 and April 1, 1970 .... Whereas, the 1970 Agreement provided, at paragraph 5, that American Greetings purchased the exclusive copyright rights of the Plaintiff in each original finished design executed by the Plaintiff, the 1973 and 1976 Agreements provided for no such transfer of copyright. Rather, the 1973 and 1976 Agreements provided a reservation of rights by Plaintiff. At the time of the creation of Strawberry Shortcake (then known as Strawberry Patches) in 1977 by Plaintiff, there was no Agreement in force between the parties other than that dated May 1, 1976 .... The check endorsement [that defendant asserts effected a transfer of all rights in plaintiff's "Strawberry Girl" artwork to it] was neither an extension of or a substitution for the Agreement of May 1, 1976. The check endorsement was, in fact, ignored by both Plaintiff and Defendant insofar as their business dealings. Contrary to the assertions of Defendant, the 1977 leader card project was not a "work made for hire" but, rather, was governed by the [May 1, 1976 agreement], which provided a reservation of rights in the Plaintiff. Reply to Counterclaims ¶ 9 (emphasis in original) Plaintiff further addresses defendant's assertions of originality and her assignment to produce finished color artwork: Plaintiff states that whatever black pencil line drawings were allegedly provided Plaintiff prior to her completion of the leader card assignment in July, 1977, constituted nothing more than preliminary, rough sketches. Such rough sketches did not constitute a creation of Strawberry Shortcake. The birth of Strawberry Shortcake occurred in early July, 1977 when the four (4) leader cards of Plaintiff were delivered to Defendant and immediately accepted by Defendant. Defendant has, itself, acknowledged the creation of Strawberry Shortcake by Barbi Sargent in its copyrighted publication entitled, "Strawberry Shortcake The First $100 Million". 916 Id. Plaintiff then quotes excerpts from the publication, which is appended to the reply as an exhibit and which is the subject of defendant's copyright registration TX 709-889, dated June 8, 1981. Lastly, plaintiff asserts that the "Strawberry Girl" artwork appended to her complaint was completed by her in December 1977 and incorporated the "Strawberry Shortcake" (then known as "Strawberry Patches") character she had created in July 1977. The following four motions are pending, each of which shall be addressed separately: 1) Defendant's motion for summary judgment; 2) Defendant's renewed motion for preliminary injunction; 3) Plaintiff's motion for leave to file an amended complaint; and 4) Plaintiff's motion to have "Strawberry Shortcake" licensing income placed in escrow. I. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The primary thrust of defendant's motion for summary judgment on plaintiff's copyright infringement claim is that plaintiff's artwork is not copyrightable by her. Defendant advances three reasons why plaintiff has no copyrightable interest in her artwork and argues that each of the reasons is alone sufficient to defeat her claim. Defendant first asserts that plaintiff's artwork is not original with her because she copied the "Strawberry Shortcake" character from artwork provided to her by defendant. Defendant maintains that it conceived and created the "Strawberry Shortcake" character prior to any involvement by plaintiff and that plaintiff's alleged contributions, which were essentially color, are not copyrightable subject matter as a matter of law. Federal copyright law underwent a general revision with the passage of the Copyright Revision Act of 1976, 17 U.S.C. § 101, et seq. (the "New Act"). The New Act, which became effective on January 1, 1978, replaced the Copyright Act of 1909 (the "Old Act") and various principles of common law copyright. With respect to certain issues raised in defendant's motion for summary judgment, the parties dispute whether the Old Act or the New Act governs; in connection with those issues the question of which of the Acts governs will be addressed. With respect to originality, however, the New Act "incorporate[d] without change the standard of originality established by the courts under the [Old Act]." House Report No. 94-1476, 94th Cong., 2d Sess. 51, reprinted in [1976] U.S.Code Cong. & Ad.News 5659, 5664. Moreover, based on the precedent cited in the parties' briefs, it appears that for the most part they essentially agree on the standard to be applied in resolving the originality issue. Their disagreement centers on the application of the standard. The cases discussed in the parties' briefs focus on the standard of originality necessary to support a copyright in a "derivative work." The New Act specifically defines "derivative work": A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work". 17 U.S.C. § 101. The genesis of the standard may be found in the opinion of the United States Court of Appeals for the Second Circuit in L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) (en banc), cert. denied 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976). In Batlin, the defendant-appellant had arranged for the design and manufacture of a plastic Uncle Sam bank. The plastic bank was based on a cast metal Uncle Sam bank that was in the public domain. The plaintiff-appellee, who was also in the novelty business, had also arranged for the manufacture and import of a plastic Uncle Sam bank. When the 917 United States Custom Service notified the plaintiff-appellee that its plastic banks were covered by the defendant-appellant's copyright, the plaintiff-appellee initiated suit to have the defendant-appellant's copyright declared invalid. The Second Circuit affirmed the grant of a preliminary injunction restraining the enforcement of the defendant-appellant's copyright and requiring the defendant-appellant to cancel the recordation of the copyright with the Customs Service. The standard for originality upon which the Court relied was expressly articulated: Originality is, however, distinguished from novelty; there must be independent creation, but it need not be invention in the sense of striking uniqueness, ingeniousness, or novelty, since the Constitution differentiates "authors" and their "writings" from "inventors" and their "discoveries." .... Originality means that the work owes its creation to the author and this in turn means that the work must not consist of actual copying .... The test of originality is concededly one with a low threshold in that "[a]ll that is needed ... is that the `author' contributed something more than a `merely trivial' variation, something recognizably `his own.'" 536 F.2d at 490 (citations and footnote omitted). The Court concluded that the differences between the cast metal bank and the defendant-appellant's plastic bank were trivial variations inherent in and attributable to the translation to the medium of plastic from the medium of metal. Therefore, the plastic bank could not be copyrighted. The Court stated: [T]o support a copyright there must be at least some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium. Id. at 491. In Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir.1980) the Second Circuit applied the originality standard set forth in Batlin to derivative works based on copyrighted preexisting works. 630 F.2d at 909. The Court set forth the following test: [T]o be copyrightable a work must "contain[] some substantial, not merely trivial, originality ...." Although novelty, uniqueness and ingenuity are not required, independent creation is ... Independent creation, in turn, means that a work must not consist of actual copying .... This test of originality, which has been aptly characterized as "modest," "minimal," and as establishing a "low threshold," is the sine qua non of copyrightability .... Particularly important for decision of the case before us is the explicit rejection in Batlin of the contention that the originality requirement of copyrightability can be satisfied by the mere reproduction of a work of art in a different medium, or by the demonstration of some "physical" as opposed to "artistic" skill. Id. at 910 (citations omitted). The Court affirmed a grant of summary judgment in favor of the plaintiff on the defendant's counterclaims for infringement. The basis of the decision was that the plaintiff's plastic wind-up toys, which depicted various Walt Disney characters, lacked the necessary originality to support a copyright. Thus, the mere reproduction of the Disney characters in plastic, even though the adaptation of the preexisting works to this medium undoubtedly involved some degree of manufacturing skill, does not constitute originality as this Court has defined the term. Id. In Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27 (2d Cir. 1982) the Second Circuit applied the standard developed in Batlin and Durham to a fictional cartoon character. Eden Toys, Inc. (Eden) brought suit for the infringement of a derivative work of a now-famous children's character identified as "Paddington Bear." As the exclusive licensee of the original character, Eden had created a chain of two derivative works. Illustrations of the three levels of artwork are set forth in the Court's opinion. 697 F.2d at 918 31-32. Among Florelee's defenses to Eden's claim of infringement of the third level artwork (the "Eden/Gibson Drawing") was lack of originality. The district court had concluded that Eden's copyright in the "Eden/Gibson Drawing" as a derivative work was invalid because the variations from the preexisting work were too insignificant to qualify the drawing as original. In reversing the district court's entry of summary judgment against Eden, the court stated: [T]he district court applied a test that erroneously mingled the standard for sufficient originality and the test for infringement. The standard for sufficient originality is whether a work contains "some substantial, not merely trivial, originality." .... The standard for copyright infringement, by contrast, is whether the defendant's work is "substantially similar" to the plaintiff's work .... The difference between these two tests is not merely academic. A work which makes non-trivial contributions to an existing one may be copyrighted as a derivative work and yet, because it retains the "same aesthetic appeal" as the original work, render the holder liable for infringement of the original copyright if the derivative work were to be published without permission from the owner of the original copyright. Id. at 34 (citations omitted; emphasis in original). Applying the standard for originality, the Court held that the derivative works were sufficiently original to support Eden's copyright: The numerous changes made by Gibson the changed proportions of the hat, the elimination of individualized fingers and toes, the overall smoothing of lines combine to give the Eden/Gibson drawing a different, cleaner "look" than the Ivor Wood sketch on which it is based. Such a contribution satisfies the minimal requirements of originality for registration under the Copyright Act. Id. at 35, citing Durham Industries v. Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980). Defendant's position is that at the time of plaintiff's assignment, it provided her with detailed pencil line drawings, color samples, and instructions concerning color. It argues that plaintiff copied the line drawings and followed its color instructions and that her artwork is therefore "no more original ... than is a colored-in `paint-by-numbers' canvas." Defendant also maintains that plaintiff's addition of color to the pencil line drawings is, as a matter of law, a "trivial variation" within the meaning of the above-mentioned cases. Lastly, defendant argues that "color per se does not constitute copyrightable subject matter as a matter of law because colors are, by their very nature, in the public domain and available for use by all." Although defendant correctly points out that color is in the public domain, its assertion that color is therefore per se eliminated from consideration when evaluating originality is incorrect. In Pantone, Inc. v. A.I. Friedman, Inc., 294 F.Supp. 545 (S.D.N.Y.1968), the plaintiff had developed a color matching system that was embodied in a copyrighted booklet entitled "Pantone Matching System." The system was designed to coordinate communications between artists, manufacturers, designers, and printers with respect to color. The goal of the system was to prevent errors and to insure understanding and proper reproduction of shades of colors for specific uses and media. The court described the plaintiff's booklet: It consists of 72 pages, each bearing a series of bands of carefully selected colors which are arranged in a fashion or plan designed, through variation of certain basic colors, to provide an extensive range of selection derived from use of eight basic colors plus black and transparent white. Plaintiff's selection of the eight basic colors and of blends of these colors to provide a range of acceptable color values, presented in attractive gradations moving from one basic hue and 919 its variations into another, was the product of a great deal of effort which required careful consideration of numerous artistic factors including the aesthetic attributes of each shade and its use in the commercial art field. 294 F.Supp. at 547. The Court reviewed several decisions setting forth the requisite standard for originality and articulated its understanding of the test: [T]he test for determining copyrightability is originality (i.e., independent creation or individuality of expression) rather than novelty, and that originality of even the slightest degree, even if it amounts to no more than a re-arrangement of age-old ideas, is sufficient. Id. at 548 (citations omitted). Applying the test, the court accepted the plaintiff's argument and concluded that the arrangement and mode of expression embodied in the booklet constituted sufficient originality to qualify it for copyright: Although the mere portrayal of a series of gradations of color shades, standing alone, would present a doubtful case for copyright protection, the arrangement here possessed the already described unique quality .... Id. It therefore appears that an original method of organizing or arranging matters in the public domain is copyrightable. See also Trebonik v. Grossman Music Corp., 305 F.Supp. 339, 345-46 (N.D.Ohio 1969) (Lambros, D.J.; Copyright infringement action in which this Court concluded that the plaintiff's original method of organization and depiction of guitar chords in a dial-type teaching device was copyrightable.) Defendant's argument that color is per se excluded from consideration in evaluating originality is rejected. With respect to defendant's position that plaintiff's addition of color to the preexisting pencil line drawings constitutes trivial variations as a matter of law, it appears that defendant argues that the differences between the pencil line drawings and the full color finish artwork are inherent in and attributable to the color used by plaintiff. There is no question that changes from a preexisting work inherent to construction in a new medium, i.e. changes that are not attributable to independent artistic skill and endeavor, are trivial variations and are not copyrightable. L. Batlin & Son, Inc. v. Snyder, supra. The evidentiary materials submitted in connection with defendant's motion indicate that defendant rejected the color finish artwork of two color artists before approaching plaintiff. Therefore, it cannot be said that the color embodied in plaintiff's artwork is inherent to the medium in which she and the two previous color artists worked. Furthermore, whether a change from a preexisting work constitutes a trivial variation presents a factual question. Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d at 35. Although the appellate court in Eden Toys resolved the factual question itself, this is an action in which plaintiff has demanded a trial by jury. Inasmuch as it is the province of the jury to resolve issues of fact, this Court concludes that there exist questions of material fact for trial concerning the originality of plaintiff's artwork. The second ground upon which defendant moves for summary judgment on the infringement claim is that plaintiff's artwork was "work made for hire" and that the copyright to the artwork was at all times vested in defendant. A threshold question that must be resolved before examining the merits of this issue is whether the Old Act or the New Act governs. Plaintiff argues that the New Act applies, while defendant's position is that the Old Act is applicable. Plaintiff's position is predicated on § 301 of the New Act: (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether 920 published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. § 301(a) (emphasis added). Plaintiff essentially argues that because the alleged infringing activities upon which this action is based took place after January 1, 1978, her claims are governed by the New Act, including its provisions governing works made for hire. In Roth v. Pritikin, 710 F.2d 934 (2d Cir.1983), the Second Circuit specifically addressed the retrospective application of the work made for hire provisions of the New Act. June Roth, a free-lance writer specializing in food and health matters, had been approached by a free-lance journalist named Patrick McGrady to explore whether she would be interested in creating recipies for a book McGrady was writing about Nathan Pritikin's diet and exercise program. The parties reached an agreement that Roth would receive a $3,000.00 flat fee, and in October 1977 she delivered the recipies. Published in the Spring of 1979, the book was entitled The Pritikin Program for Diet & Exercise. The book was a success, and Roth sought additional compensation from McGrady. After refusing an offer for an additional $2,000.00, Roth initiated suit, claiming that she had never entered into a valid contract for the sale of the recipies and, alternatively, that any agreement was rendered invalid by the passage of the New Act. Roth particularly relied on § 301(a) of the New Act to support her position concerning retrospective application. The district court, following a non-jury trial, found that the contract was valid and concluded that Roth had no copyright interest in the recipies pursuant to the law governing works made for hire extant at the time of the agreement. The Second Circuit affirmed the decision of the district court not to apply the work made for hire provisions of the New Act retrospectively: Fairly read, § 301 merely provides the rights accruing to the owner of a copyright, those "specified in section 106," are defined pursuant to the 1978 Act, rather than prior law. Whoever holds an interest in a copyright on or after January 1, 1978, has a right to the protections afforded by the new statute, although the creative work may previously have been governed by the 1909 Act or the common law. Section 301 does not, however, purport to determine who holds a copyright for works created before January 1978. It merely clarifies the rights of individuals owning copyrights on that date, whomever they may be. 710 F.2d at 938. Having evaluated the parties' arguments concerning the retrospective application of the work made for hire provisions of the New Act, and in particular the decision of the Second Circuit in Roth, this Court concludes that the Old Act governs the work made for hire issue in this action. With respect to the merits of the work made for hire issue, defendant's primary position is that plaintiff was its employee and that the copyright to her artwork vested in it by operation of law. Alternatively, defendant assumes arguendo that plaintiff was an independent contractor and argues as follows: 1) work performed by an independent contractor may constitute a work made for hire; 2) two factors determine whether the work of an independent contractor is a work made for hire (a) that the work is created at the behest of the hiring party, and (b) that the hiring party has the power to direct and control the manner of the independent contractor's work ; and 3) plaintiff could retain the copyright to her artwork only by an express contractual provision, which defendant asserts she has not done. Defendant cites several decisions for the proposition that when one engages an independent contractor to create a work of an artistic nature, in the absence of an express contractual reservation of the copyright in the independent contractor, a presumption arises that the mutual intent of the parties is that the copyright vests in the commissioning party. E.g., Murray v. Gelderman, 921 566 F.2d 1307 (5th Cir.1978); Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213 (2d Cir.1972); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565 (2d Cir.1966); and Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298 (9th Cir.1965). The genesis of the proposition for which defendant cites the above-mentioned cases may be found in Yardley v. Houghton Mifflin Co., Inc., 108 F.2d 28 (2d Cir.1939). In Yardley, the plaintiff's deceased brother had been commissioned by the City of New York to paint a mural on a wall of a newly-constructed high school. The written contract between the plaintiff's deceased brother and the City made no mention of copyright ownership, and the plaintiff was claiming ownership as an assignee of her deceased brother's estate. The court set forth the general rule of law it considered applicable: If [an artist] is solicited by a patron to execute a commission for pay, the presumption should be indulged that the patron desires to control the publication of copies and that the artist consents that he may, unless by the terms of the contract, express or implicit, the artist has reserved the copyright to himself. 108 F.2d at 31 (emphasis added). After recognizing that the terms of the agreement pursuant to which the plaintiff's deceased brother had painted the mural were not in evidence and could not be ascertained, the court applied the presumption: There is no evidence as to the precise terms of the agreement made by [plaintiff's deceased brother] when he accepted the employment. In the absence of such evidence we must infer that whatever agent of the city negotiated with [plaintiff's deceased brother] did his duty and obtained for the city all that its contract for the building required; in other words, that [plaintiff's deceased brother's] contract of employment did not reserve the copyright. Id. (emphasis added). Of the decisions cited by defendant, only in the Brattleboro Publishing Co. case did the court correctly recognize that the presumption established in Yardley applies only in the absence of evidence of the parties' intent: [The work made for hire doctrine] is applicable whenever an employee's work is produced at the instance and expense of his employer. In such circumstances, the employer has been presumed to have the copyright.... We see no sound reason why these same principles are not applicable when the parties bear the relationship of employer and independent contractor. "Whether the copyright resides in the person thus commissioning the work or in the independent contractor creating the work will always turn on the intention of the parties where that intent can be ascertained." [Nimmer on Copyright 244 (1964)] Where that intent cannot be determined, the presumption of copyright ownership runs in favor of the employer. Ibid. Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d at 567-68 (certain citations omitted; emphasis added). The court proceeded to discuss the Yardley case as an example of a situation in which the parties' intent could not be determined. Upon a careful study of the Yardley decision and its progeny, it becomes clear that the presumption on which defendant predicates its argument operates only in the event it is not possible to ascertain the express or implied contractual intent of the parties. Furthermore, the United States Court of Appeals for the Sixth Circuit has specifically articulated the rule in this circuit: An author is not necessarily precluded from copyrighting a work produced under contract with another person; the intent of the parties as to which of them shall have the right to copyright is decisive. Where a contract of employment is silent, there may be an implication in favor of the employer. But in the present case plaintiff was an independent contractor, rather than an employee; moreover, it may properly be inferred that the parties did not intend plaintiff to 922 surrender a copyright in consideration of a sum less than the bare cost of the work. W.H. Anderson Co. v. Baldwin Law Pub. Co., 27 F.2d 82, 88 (6th Cir.1928) (emphasis added). This is not a situation in which the intent of the parties cannot be ascertained. Plaintiff and defendant had a contractual business relationship for several years. The relationship spanned several contracts, and the parties have submitted considerable evidence concerning their relationship and the nature of their relationship. Having reviewed this evidence, this Court concludes that there exist questions of material fact for trial concerning the precise nature of the parties' business relationship. In addition, there exist questions of material fact for trial concerning the parties' intent with respect to the ownership of the copyright to plaintiff's artwork and whether the parties intended plaintiff's artwork to be considered work made for hire. The third basis upon which defendant moves for summary judgment on plaintiff's copyright infringement claim is that plaintiff assigned to defendant any copyright interest she may have had in her artwork. Defendant argues initially that the sale of the artwork operated as an assignment of the copyright in the artwork. Defendant also argues that plaintiff assigned both the artwork and the copyright by virtue of an endorsement that appeared on the checks plaintiff received from defendant. Defendant relies primarily on Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir.1939) (cited above in connection with defendant's work made for hire argument) and Franklin Mint Corporation v. National Wildlife Art Exchange, Inc., 195 U.S.P.Q. 31 (E.D.Pa.1977) for the proposition that a sale of artwork operates as a transfer of the seller's copyright interest in the artwork. As previously noted, in Yardley, the plaintiff's deceased brother had been commissioned by the City of New York to paint a mural. The plaintiff was claiming a copyright interest in the mural as an assignee of her deceased brother's estate. After concluding that there was no evidence concerning the terms of the agreement between the plaintiff's deceased brother and the City, the Court applied the rule that, absent an express or implied contractual reservation of the copyright in the artist, the copyright in the artwork is presumed to vest in the commissioning party. As part of its articulation of the general rule of law it applied, the court stated: We believe, therefore, that the general rule is applicable and that the right to copyright should be held to have passed with the painting, unless the plaintiff can prove that the parties intended it to be reserved to the artist. Dielman v. White, C.C.Mass., 102 F. 892. 108 F.2d at 31 (emphasis added). As noted above in connection with defendant's work made for hire argument, this action presents a situation in which there exist questions of material fact with respect to the parties' intent concerning copyright ownership. Therefore, it cannot be said that, as a matter of law, the copyright in plaintiff's artwork is vested in defendant pursuant to the rule articulated in Yardley. In the Franklin Mint decision, the dispute focused on the ownership of the copyright in a water color painting entitled "Cardinals on Appleblossom." The artist orally agreed with the commissioning party to prepare a water color painting of cardinals with the understanding that the commissioning party, if he did not approve of the painting, would have no financial obligation to the artist. On August 25, 1972 the commissioning party approved the painting and delivered a check made payable to the artist in the amount of $1500.00. The following legend was placed on the back of the check by the commissioning party: "For Cardinal painting 20 × 24 including all rights reproduction, etc." On August 26, 1972 the artist and the commissioning party met to discuss further the details of their proposed transaction. The commissioning party made a series of notes during the meeting, and he was to present the notes to his lawyer so that a formal agreement could be drafted. The draft 923 agreement was then to be reviewed by the artist's lawyer. On August 28, 1972 the artist endorsed the check, including the legend, and deposited it. The formal agreement that was to have been prepared from the commissioning party's notes was never consummated. Defendant correctly points out that during its discussion the court in Franklin Mint stated, "Except in California and New York, it is generally accepted that purchase of a work of art includes all rights to copyright unless otherwise specified. Nimmer on Copyright, Page 541 (1976 ed.)." Nevertheless, the court recognized Professor Nimmer's criticism of such a rule and in substance focused on the parties' intent as evidenced by the check endorsement: Although [the artist] testified that he intended to reserve copyrights in himself, he either should have done so by specific written agreement or not negotiated the check with the above-quoted endorsement which specifically included "all rights-reproduction".... While [the artist] denies that he knew of the endorsement when he accepted the check and testified he first learned of it on August 28, 1972, he still could have protected himself by insisting on a check from [the commissioning party] without the endorsement or with a clarified endorsement. ... Therefore, I find as a fact and conclude that entitlement to all copyrights to "Cardinals on Appleblossom" passed to [the commissioning party] by virtue of the $1,500 check and the endorsement contained on the reverse side. 195 U.S.P.Q. at 36. It is apparent that in Franklin Mint the check endorsement was the sole manifestation of the parties' intent concerning copyright ownership. The court recognized that the endorsement transferred "all rights" in the painting and reached its conclusion accordingly. In this action, however, the check endorsement involves only the "exclusive right to publish." Furthermore, as previously noted, there exist a series of contracts between plaintiff and defendant with respect to their business relationship. The contracts, the check endorsements, and the relationship between the contracts and the check endorsements present questions of material fact with respect to the parties' intent concerning copyright ownership. Defendant has also moved for summary judgment on plaintiff's pendent claim for breach of a confidential relationship and misappropriation. Defendant essentially argues that such a claim is preempted by § 301(a) of the New Act. The preemption provision of the New Act preempts and abrogates all legal and equitable rights arising under the common law or state statutes that are equivalent to any of the exclusive rights within the general scope of copyright in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright, whether created before or after January 1, 1978. 17 U.S.C. § 301(a); Mitchell v. Penton/Industrial Publishing Company, Inc., 486 F.Supp. 22 (N.D.Ohio 1979) (Thomas, J.). As plaintiff points out, however, it is necessary to read § 301(a) of the New Act in connection with the provisions of § 301(b) of the New Act. Plaintiff specifically relies on § 301(b)(3) to support her position that the pendent claim is not preempted: (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to * * * * * (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106. 17 U.S.C. § 301(b)(3). Plaintiff essentially argues that her breach of confidential relationship and misappropriation claim involves violations of rights that are distinct from the exclusive rights enumerated in § 106 of the New Act. It appears that plaintiff's pendent claim is recognized in Ohio, is not redundant, and involves elements that distinguish 924 it from her claim for copyright infringement. Smith v. Patterson, 33 Ohio St. 70 (1877). Plaintiff's claim for breach of confidential relationship and misappropriation is therefore not preempted by the New Act. Alternatively, defendant assumes arguendo that the pendent claim is not preempted and argues that summary judgment should be entered in its favor on the merits of the claim. Defendant's position is that the evidence is uncontroverted and that there is no question that it neither breached a confidential relationship nor misappropriated plaintiff's artwork. As previously noted, however, there exist questions of material fact concerning the nature of the relationship between the parties. For the foregoing reasons, defendant's motion for summary judgment is denied. II. DEFENDANT'S MOTION FOR A PRELIMINARY INJUNCTION Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, defendant American Greetings has moved to enjoin various courses of conduct on the part of plaintiff Barbi Sargent. Portions of the discovery undertaken in this action have been performed pursuant to a stipulated protective order filed on August 30, 1982. The first paragraph of the protective order generally provides that artwork and other materials exchanged by the parties during discovery "shall be retained by such counsel and shall be used by such counsel for the purposes of trial preparation and trial of this action and shall not be used for any other purpose...." The second paragraph carves out a specific exception for plaintiff's leader card artwork: Copies of three pieces of artwork to be produced by defendant pursuant to pretrial discovery and identified by defendant as "Strawberry Patches Leaders (Barbi Sargent Finish)" shall also be subject to the restrictions of Paragraph 1 with the exception that plaintiff is not prohibited from filing an application for copyright registration as to said pieces of artwork provided that, prior to the filing of any such application, plaintiff has given notice to defendant of her intent to file said application and the Court has ruled in plaintiff's favor on defendant's motion for protective order or other application to oppose or prevent plaintiff's use of said copies for the filing of such an application. Plaintiff is not prohibited from filing such a copyright application in the absence of a Court order in its favor if defendant has not, within thirty days after receiving plaintiff's notice, moved or applied to the Court for a protective order or other order to prevent plaintiff's use of said copies for the filing of such an application. Nothing in this Paragraph shall prevent defendant from moving for such a protective or restrictive order prior to receiving any notice from plaintiff of her intent to file for copyright registration. On September 7, 1982 plaintiff formally notified defendant of her intent to register the leader cards, and defendant timely moved to enjoin any such registration. In addition, defendant has supplemented its original motion for a preliminary injunction and also seeks to enjoin plaintiff "from registering or attempting to register with the United States Copyright Office any artwork, or copies of artwork, produced by her pursuant to assignment from defendant and/or under contract with defendant." The second portion of defendant's motion concerns plaintiff's copyright registration VAu 34-113, which covers the artwork appended to the complaint. Defendant seeks an order requiring plaintiff to cancel the registration on the ground that it was improperly and wrongfully obtained. The third aspect of defendant's motion for a preliminary injunction concerns plaintiff's authorizing, selling, or licensing copies of the "Strawberry Shortcake" character. The fourth part of the motion is aimed at plaintiff's representations to others that she is the creator of the character and that she holds the copyright to the character. 925 Defendant seeks to restrain plaintiff from these activities. The United States Court of Appeals for the Sixth Circuit has set forth the following four factors to be considered when evaluating an application for preliminary injunctive relief: 1) whether the movant has demonstrated a strong or substantial likelihood or probability of success on the merits; 2) whether the movant has demonstrated irreparable harm; 3) whether the issuance of the injunction would cause substantial harm to others; and 4) whether the issuance of the injunction would serve the public interest. Mason County Medical Assn. v. Knebel, 563 F.2d 256 (6th Cir. 1977). Defendant initially seeks to enjoin plaintiff from registering with the Copyright Office her leader card artwork. In light of the broad range of questions of material fact for trial identified above in connection with the denial of defendant's motion for summary judgment, it cannot be said that defendant has demonstrated the requisite likelihood of success on the merits. The first aspect of defendant's motion is therefore denied, and plaintiff shall be entitled to register with the Copyright Office her leader card artwork. In reaching this conclusion, this Court notes that registration is not a condition of copyright protection, 17 U.S.C. § 408(a), but is a condition precedent to maintaining an infringement suit. 17 U.S.C. § 411. Therefore, by allowing plaintiff to register her leader card artwork, the entire dispute between the parties concerning the "Strawberry Shortcake" and "Strawberry Girl" artwork will be presented and resolved. Furthermore, in the event defendant prevails on the merits and it is determined that plaintiff's copyright registrations are improper, it is within the power of this Court to order the cancellation of the improper registrations. See L. Batlin & Son, Inc. v. Snyder, supra. Lastly, to the extent that defendant seeks to enjoin the registration of artwork other than "Strawberry Shortcake" or "Strawberry Girl" artwork, this Court notes that such other artwork is not at issue in this action and concludes that an order of this Court with respect to such other artwork would constitute an advisory opinion. Defendant's request to enjoin the registration of artwork other than "Strawberry Shortcake" or "Strawberry Girl" artwork is therefore denied. Secondly, defendant seeks an order compelling plaintiff to cancel her copyright registration VAu 34-113. Again, however, in light of the questions of material fact in this action, defendant has failed to demonstrate the necessary likelihood of success on the merits. The second aspect of defendant's motion for preliminary injunction is therefore denied. The third and fourth portions of defendant's motion involve plaintiff's assertions of ownership and threatened selling or licensing of the "Strawberry Shortcake" or "Strawberry Girl" character. On January 4, 1983, pursuant to an agreement of the parties, this Court ordered that plaintiff shall not, until ordered otherwise, attempt any commercial exploitation of the "Strawberry Shortcake" or "Strawberry Girl" character. Nothing indicates plaintiff has or might breach that agreement and violate that order. Therefore, the concerns raised by the third and fourth aspects of defendant's motion appear to have been alleviated. Summarizing, as to its first and second portions, defendant's motion for preliminary injunction is denied. As to the third and fourth aspects of the motion, the concerns therein have been alleviated by a prior agreement between the parties and a corresponding order of this Court. III. PLAINTIFF'S MOTION TO HAVE PLACED IN ESCROW DEFENDANT'S STRAWBERRY SHORTCAKE LICENSING INCOME Plaintiff has moved to have placed in escrow pending the outcome of this action the income of defendant attributable to its licensing the Strawberry Shortcake character to third parties. She maintains that she has demonstrated a reasonable likelihood *926 of success on the merits of this action and, in the event she prevails on her infringement claim, is entitled to recover the profits generated by defendant as the result of the infringement. Plaintiff asserts that among defendant's most substantial infringing activities is its licensing of the character to various manufacturers for display on products produced by the licensees. Plaintiff admits that this motion presents an unusual request, but argues that placing the licensing income in escrow will preserve the status quo and is the only way she can be assured of obtaining satisfaction in the event judgment is entered in her favor. Defendant opposes plaintiff's motion. Initially, defendant argues that the precedent upon which plaintiff relies involving the escrow of patent royalties is inapposite. Defendant also argues that plaintiff has no evidentiary support for her assertion that defendant will be unable to pay the amount of a judgment entered in her favor. Appended to defendant's brief is a copy of its 1982 Annual Report. Having reviewed the evidence submitted by the parties in connection with defendant's motions for summary judgment and for a preliminary injunction, it cannot be said that either party has demonstrated the necessary likelihood of success on the merits to justify any form of preliminary relief. Furthermore, a study of defendant's annual report indicates that it is financially healthy. Plaintiff's concerns with respect to defendant's ability to satisfy a judgment entered in her favor appear unfounded. Plaintiff's motion to place defendant's Strawberry Shortcake licensing income in escrow is denied. IV. PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT Plaintiff seeks leave to amend her complaint to conform to matters she has learned during the discovery process. In opposition to her motion, defendant characterizes plaintiff's claims as "frivolous" and asserts that this motion is merely an attempt to prolong this action and to avoid an award of summary judgment against her. As previously noted, however, there exist many questions of material fact for trial in this action. Furthermore, by permitting plaintiff to amend her complaint, the entire dispute between the parties will be presented and will be resolved. Plaintiff's motion for leave to amend her complaint is granted. V. CONCLUSION Defendant's motion for summary judgment is denied. The first and second aspects of defendant's motion for a preliminary injunction are denied; the third and fourth aspects of the motion have been resolved by a prior agreement between the parties and a corresponding order of this Court. Plaintiff's motion to have placed in escrow defendant's Strawberry Shortcake licensing income is denied. Plaintiff's motion for leave to file a first amended complaint is granted. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1877336/	829 F. Supp. 875 (1992) Troy ARMSTRONG, Plaintiff, v. CITY OF DALLAS, Defendant. Civ. A. No. 3-91-CV-2458-H. United States District Court, N.D. Texas, Dallas Division. December 18, 1992. Kenneth W. Byford, Byford and Associates, Dallas, TX, for plaintiff. Detra G. Hill, Dallas City Attys. Office, Dallas, TX, defendant. MEMORANDUM OPINION AND ORDER SANDERS, Chief Judge. Before the Court are Defendant's Motion for Summary Judgment, filed November 3, 1992; Plaintiff's Response, filed November 12, 1992; and Defendant's Reply, filed November 24, 1992. I. Background In 1987, the Dallas Fire Department ("DFD") instituted a Physical Fitness Weight Program to "establish standard operational procedures of the Dallas Fire Department regarding body weight control." See Defendant's Brief at 1. Troy Armstrong, a 6' 3", 400 pound African-American man, claims that the City used this program to harass, reprimand, and retaliate against him in a racially discriminatory manner after he complained about racial incidents at the DFD. The City explains its actions by stating 876 that Armstrong failed to achieve periodic weight loss goals, thus compromising his ability to perform his firefighting duties. Believing that he was the victim of unlawful retaliation, Armstrong filed this action, alleging that the City retaliated against him for the fact that he filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") beginning in 198°. Armstrong asserts two claims: (1) discriminatory retaliation in violation of § 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a), and the Texas Fair Employment Practices Act; and (2) breach of contract for the City's alleged failure to abide by the terms of a settlement agreement which disposed of Plaintiff's 1988 EEOC complaint. In its motion for summary judgment, the City argues that Plaintiff has failed to adduce any evidence which shows a causal connection between the City's actions and Plaintiff's charges with the EEOC. Armstrong responds by stating that sufficient evidence exists to present a genuine issue of fact regarding all elements of Plaintiff's claims. II. Summary Judgment "Summary judgment reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5th Cir.1986). Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment or partial judgment as a matter of law. See Fed.R.Civ.P. 56. Before a court may grant summary judgment, the moving party must demonstrate that it is entitled to judgment as a matter of law because there is no actual dispute as to an essential element of the nonmovant's case. See Topalian v. Ehrman, 954 F.2d 1125 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). The threshold inquiry, therefore, is "whether ... there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Of course, "the substantive law will identify which facts are material." Id. at 248, 106 S.Ct. at 2510. The Supreme Court has explained that a movant for summary judgment need not support the motion with evidence negating the opponent's case; rather, once the movant establishes that there is an absence of evidence to support the non-movant's case, the burden is on the non-movant to make a showing sufficient to establish each element as to which that party will have the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 2552-54, 91 L. Ed. 2d 265 (1986). Once the moving party shows that it is entitled to summary judgment, the burden shifts to the nonmoving party to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (emphasis in original) (quoting Rule 56(e)); see also Fontenot, 780 F.2d at 1195-98. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Stated another way, "[i]f the record, taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.1991) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356). However, all of the evidence must be viewed in the light most favorable to the motion's opponent. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir.1990). III. Analysis A. Questions of Fact According to the City, the undisputed material facts relevant to this motion are as follows: 1) Pursuant to Chapter XIII, Section 2(1) of the Dallas City Charter, the chief of the fire department has exclusive control over the fire force, under such rules and regulations as may be established by the city manager 877 or according to the ordinances of the City. See Exhibit 1. 2) Pursuant to Chapter XIII, Section 2(4) of the Dallas City Charter, the chief of the fire department is empowered to make rules for the regulation and discipline of the fire department and its employees. See id. 3) Armstrong, an African-American, began working for the DFD in June of 1970. See Exhibit 2 at 12. 4) During his tenure with the DFD, Plaintiff rose from an entry level fire and rescue officer position to the rank of second driver. At the time leading up to the events involved in this lawsuit, Armstrong was assigned to the C shift at Station 49. See id. at 16. 5) The DFD adopted a physical fitness weight program in January of 1987. See Exhibit 3 at 3-9. 6) On January 11, 1988, Plaintiff was issued a memorandum from his immediate supervisor informing him that he was listed in the "very poor" category under the DFD weight program because he was 78.2% over his ideal weight. At the time, Plaintiff was 6' 3" tall and weighed 360 pounds. Plaintiff's ideal weight under the program was 176-202 pounds. The letter informed Plaintiff that he needed to lose sufficient weight to bring himself within the "good" classification by January 1, 1989. See id. at 10. 7) In May of 1988, Plaintiff was transferred to the A shift at Station 49. See Exhibit 2 at 16. 8) On May 20, 1988, the DFD sent Plaintiff a letter of counseling because his weight was in violation of the physical fitness weight program. See Exhibit 3 at 11. 9) On July 22, 1988, Plaintiff was placed on temporary non-firefighting status pending an evaluation of his physical condition and the determination of an acceptable weight loss schedule. 10) On July 29, 1988, Plaintiff filed a discrimination claim with the EEOC in which he alleged racial discrimination and harassment. In this complaint, Armstrong stated that he was transferred and assigned unfair duties, and that he was told that he could not perform his job because of his weight. See Exhibit 7. 11) On August 8, 1988, Plaintiff received a letter which stated that the July 22, 1988 reassignment and evaluation was requested "due to your excessive weight, 426 pounds, and the concern of personnel in your chain of command for your physical well being." See id. at 12-13. The letter stated that Armstrong could be reassigned to his firefighting post if he reached a short term target weight of 395 pounds. The letter also established a long range goal for Plaintiff to weigh in at 288 pounds, and indicated that this weight loss "should be accomplished at an average rate of 2-3 pounds per week." Finally, the letter directed Armstrong to report his weight biweekly. 12) On November 16, 1988, Plaintiff entered into an agreement with the DFD to lose 3-5 pounds a month. According to this agreement, if a 3 to 5 pound weight loss was not met for two consecutive months, Plaintiff would be reassigned to a non-firefighting assignment. See Exhibit 3 at 14. 13) On November 22, 1988, weighing 381 pounds, Plaintiff was reassigned to a firefighting assignment. See Exhibit 3 at 15. 14) On January 13 and 20, 1989, the parties executed a settlement agreement regarding Plaintiff's 1988 EEOC complaint. In the settlement, the City agreed that it would not penalize Plaintiff in any manner "because of having filed a previous charge with the [EEOC]." See Exhibit 4. 15) On August 7, 1989, Plaintiff signed another agreement with the DFD, pledging to lose weight. See Exhibit 3 at 16-17. This agreement also detailed some of Plaintiff's weight history in the period of time since the November 16, 1988 weight loss agreement. The letter indicated that after meeting his weight loss goals in January and February of 1989, Armstrong reported a weight gain on March 1, 1989. After receiving a new starting weight in March, Armstrong met his weight reduction goal in April and May of 1989, but then failed to lose weight in June and July, weighing in at 407.5 pounds on July 21, 1989 (representing a weight gain of 11.5 pounds since March). 878 The August 7, 1989 agreement established that Plaintiff would weigh 381 pounds by August 16, 1989, and maintain an average weight loss of 3 pounds per month until he reached his goal of 288 pounds. Moreover, Plaintiff agreed that if he failed to meet his goal, he would automatically be reassigned to a non-firefighting assignment, and could be subject to disciplinary action that could result in suspension, demotion, or dismissal. 16) On September 30, 1989, Plaintiff was given a letter of counseling for losing his firefighting coat. The City states that this letter was issued pursuant to the Dallas Fire Department Manual of Procedures, Volume 2, Rules and Regulations, Section 5-2.34. See id. at 18. 17) On October 9, 1989, Plaintiff received letter of reprimand for violating his August 7, 1989 weight loss agreement and the Dallas Fire Department Manual of Procedures, Volume 2, Rules and Regulations, Section 5-2.27. This letter indicated that Plaintiff weighed 394 pounds at the time, a 13 pound increase in his weight since August 15, 1989. See id. at 19. 18) On October 16, 1989, Plaintiff was transferred to a non-firefighting position. See Exhibit 5. 19) On October 19, 1989, the DFD reported to the Dallas Civil Service Department that Plaintiff had an unsatisfactory performance. See Exhibit 3 at 20. 20) On October 24, 1989 Plaintiff filed another claim with the EEOC, alleging retaliation for previously filing a discrimination charge with the EEOC. See Exhibit 5. 21) Plaintiff worked his last shift for the DFD in January of 1990. See Exhibit 2 at 151. 22) Plaintiff applied for and received an on-duty disability retirement pension on July 31, 1991. See Exhibit 6. However, Plaintiff argues that other facts prevent the conclusion that Defendant is entitled to judgment as a matter of law. Armstrong states that at all times during his employment with the DFD, he passed all of his physical examinations, received excellent performance reviews, and provided excellent service. He also asserts that he received a letter of counseling for noncompliance with the DFD weight program in early 1988 at the same time that he became a spokesman for black firefighters working on the Station 49 C shift and complained about certain alleged racial incidents at work. Armstrong argues that the City repeatedly used the issue of his weight against him in an attempt to punish him for having lodged an internal complaint for racial discrimination and for having filed a complaint with the EEOC. More specifically, Plaintiff forwards the following facts in opposition to the City's motion for summary judgment: 1) At no time did Armstrong's weight interfere with his ability to perform his duties. See Armstrong Deposition at 169. 2) The physical fitness weight program itself contains no provisions regarding disciplinary action.[1] 3) Plaintiff complied with the weight program in 1987. 4) Plaintiff states that he was counseled about his weight and later transferred in retaliation for the fact that he had brought certain racial incidents at the Station 49 C shift to the attention of the City. See id. at 24-26; 43. 5) Plaintiff states that shortly after the racial incidents referred to above, he received the May 20, 1988 letter of counseling. See Defendant's Exhibit 3 at 11. Plaintiff contends that this letter is erroneous because, although the letter counsels him for failing to lose the required amount of weight during 1987, the letter admits that Plaintiff had in fact lost 30 pounds in 1987. Plaintiff explains that the letter is erroneous because the DFD weight program calls for weight loss at the rate of 2-3 pound per month. Having lost 30 pounds in 1987, Plaintiff concludes 879 that he lost weight at the required rate. 6) The August 8, 1988 letter to Armstrong indicates that on July 26, 1988, Plaintiff was evaluated by a City physician, Dr. Kelly, who found Plaintiff to be in good physical condition, but indicated that he needed to lose weight. See Armstrong Deposition at 66-68; Exhibit 3 at 12. 7) In July of 1988, Plaintiff was reassigned to a non-firefighting position despite the fact that he had passed a physical agility test. See Armstrong Deposition at 61-2. 8) Plaintiff argues that he continued to be harassed about his weight despite Dr. Kelly's determination that Plaintiff could perform his duties at a weight of 395 pounds. 9) Plaintiff contends that the City compelled him to enter several weight loss arrangements which required him to lose weight at rates well above those established by the Physical Fitness Weight Program. Specifically, Plaintiff complains that the August 8, 1988 weight reduction plan required him to lose weight at a rate of 2-3 pounds per week and to report his weight biweekly. Plaintiff observes that the Physical Fitness Weight Program indicated that overweight personnel should lose 2-3 pounds per month. See id. at 125; Defendant's Exhibit 3. 10) Plaintiff also states that no other firefighter was singled out for a special weight loss program of this nature, or held to standards higher than those set out in the DFD's standard policy. See Armstrong Deposition at 142-143. 11) Plaintiff notes that in November 16, 1988, he was presented with yet another weight loss program which required Plaintiff to lose weight at a rate of 3-5 pounds per month, again in excess of that required by the Weight Program. See Exhibit 3 at 14. 12) On March 1, 1989, after Plaintiff's EEOC claim was settled, Plaintiff asserts that the DFD retaliated against him and breached the settlement agreement by cutting Armstrong's efficiency rating because he was overweight. See Exhibit C. Plaintiff contends that he had complied with the November 1988 weight loss program at this time. Furthermore, Plaintiff notes that in a conversation regarding Plaintiff's lowered efficiency grade, the subject of another EEOC complaint arose. Plaintiff stated that Chief Willeford informed him that he would not prevail on an EEOC complaint. See Armstrong Deposition at 114. 13) Plaintiff asserts that the DFD further breached the Settlement Agreement by continuing to require Plaintiff to lose weight pursuant to the August 7, 1989 weight loss agreement which specified a weight loss rate above that set by the Physical Fitness Weight Program. See Defendant's Exhibit 3 at 16-17. 14) On September 30, 1989, Defendant issued Plaintiff a letter of counseling for Plaintiff's loss of his firefighting coat. However, Plaintiff states that he had fully complied with the DFD's policies and procedures, and that the loss was not due to any fault of his own. See Armstrong Deposition at 147-149. 15) Plaintiff alleges that he was singled out for the October 9, 1989 reprimand regarding his weight and, he states, was the only firefighter who was required to enter into a weight loss agreement and to be subject to disciplinary action if he failed to lose weight consistently. See id. at 142-43; 143-46. 16) Finally, Plaintiff observes that at the time of his October 16, 1989 transfer to a non-firefighting position, Plaintiff weighed 394 pounds, less than the 395 pound limit for firefighting duty previously set by Dr. Kelly in 1988. See Defendant's Exhibit 5. B. Issues of Law Defendant argues that two issue of law control the outcome of this case: 1) whether Plaintiff has established any causal connection between actions taken by the DFD regarding Plaintiff's weight and the EEOC charges; and 2) whether Defendant breached the settlement agreement entered into between Plaintiff and Defendant. 1. The Discrimination Claim To establish a Title VII violation, Armstrong must ultimately demonstrate a causal connection between his race and any discriminatory 880 retaliation. See generally United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983). However, as many courts have noted, proving employment discrimination or retaliation is often a difficult matter. Thus, "[t]o ease the evidentiary burden on employment discrimination plaintiffs, courts have fashioned special rules of proof in order `progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.'" Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633 (5th Cir. 1985) (Goldberg, J.) (citation omitted). Initially, a plaintiff may make out a rebuttable presumption of discrimination by establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). In retaliation cases, the Fifth Circuit has stated that to make out a prima facie case, Armstrong must establish 1) that he was engaged in an activity protected by Title VII; 2) that an adverse employment action occurred; and 3) that there was a causal connection between the participation in the protected activity and the adverse employment decision. See De Anda v. St. Joseph Hosp., 671 F.2d 850, 856 (5th Cir.1982); Carter v. South Central Bell, 912 F.2d 832, 842-43 (5th Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2916, 115 L. Ed. 2d 1079 (1991). Once an employee establishes a prima facie case, the burden of production shifts to the employer. In order to rebut the presumption of discrimination, the employer must articulate some nondiscriminatory reason why the plaintiff was adversely treated; otherwise the factfinder is required to find for the plaintiff. Once the employer forwards a neutral explanation for its action, the plaintiff must come forward with evidence that the explanation is pretextual. Pretext can be shown either by presenting direct evidence of retaliation, or by showing that the City's proffered explanation is unworthy of credence. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207 (1981). To prevail in this summary judgment motion on the grounds that Plaintiff failed to establish a prima facie case, Defendant must prove that no genuine issue of fact exists with respect to a material element of Plaintiff's prima facie case, and that it is entitled to judgment as a matter of law. Armstrong, however, must merely demonstrate that issues of material fact exist with respect to the elements of the prima facie case. This analysis is the same when Plaintiff states that the City's neutral explanation is pretextual: the City must show that no genuine issue of fact exists with respect to Armstrong's charge that the city's neutral explanation forwarded to justify its actions is pretextual. Plaintiff must only show a fact issue regarding pretext. See Thornbrough, 760 F.2d at 646; Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1506-07 (5th Cir.1988); Florence v. Frank, 774 F. Supp. 1054, 1059 (N.D.Tex. 1991). Analyzing Plaintiff's prima facie case, it is plain that Armstrong engaged in protected activity when he filed a charge of discrimination with the EEOC in 1988. Plaintiff has also sufficiently alleged adverse employment actions. These include 1) receiving a letter of reprimand for his failure to lose weight; 2) receiving a transfer to a non-firefighting job; 3) having his efficiency grade in the areas of performance in an emergency and job knowledge cut; 4) being reported to the Civil Service Department for having an unsatisfactory performance; 5) being informed that he could be terminated for failing to lose weight as agreed; and 6) receiving a letter of counseling for his loss of his firefighter's coat. Finally, the Court assumes that, for the purposes of his prima facie case, Plaintiff sufficiently alleged a causal connection between the EEOC complaint and the adverse employment actions because of the proximity in time of some of the alleged retaliatory actions and the date of the EEOC complaint. See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir.1991); Mitchell v. Baldrige, 759 F.2d 80 (D.C.Cir.1985); see also McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). The City's non-retaliatory explanation for its actions is that it was properly applying the requirements of the Physical Fitness Weight Program to Plaintiff. The City 881 states that its physical fitness weight program was instituted to ensure quality firefighting services and public safety. According to the City, any firefighter who failed to meet the minimum standard of fitness within a specified time period would be issued a letter of counseling. See Defendant's Brief at 10. The DFD notes that its Rules and Regulations also require physical fitness, and justify punishment of those who do not comply with those rules. See Exhibit 3 at 21-53, DFD Manual of Procedure Vol. 2, 5-2.27. Given this non-retaliatory explanation of the City's actions, the burden shifts back to Plaintiff to come forward with direct evidence showing that this explanation is pretextual, or to demonstrate that the City's explanation is unworthy of credence. See Bienkowski, 851 F.2d at 1507. The Court concludes that Plaintiff cannot meet this burden. Plaintiff has produced no direct evidence of retaliation or racial animus in the City's decision to counsel, reprimand, or transfer Plaintiff. In an attempt to do so, Plaintiff conclusorily asserted that the City "really wanted [Armstrong] gone." See Armstrong Deposition at 130. However, Plaintiff has forwarded no direct evidence to support this assertion, other than his own speculation. Such conjecture is insufficient to overcome a properly supported motion of summary judgment. See Patterson v. General Motors Corp., 631 F.2d 476, 482 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S. Ct. 1988, 68 L. Ed. 2d 304 (1981). Moreover, Plaintiff has not shown that the City's proffered explanation is unworthy of credence. Instead, it appears that the City acted consistently throughout the period in question: the actions taken by the DFD were related to Plaintiff's weight and his failure to comply with the physical fitness program. First, Plaintiff complains about the May 20, 1988 letter of counseling. Although Plaintiff correctly notes that he had lost weight in 1987, Armstrong was overweight at the time he received the letter. Moreover, the DFD observes that Plaintiff was not the only firefighter to receive a letter of counseling for being over the weight guidelines. At least six other firefighters received letters of counseling for violations of the physical fitness program. See Exhibit 3 at 54-62. Plaintiff also complains about his transferred to a non-firefighting job on July 22, 1988. In his complaint to the EEOC soon thereafter, Armstrong alleged that his transfer was discriminatory because no other employee had been treated similarly. However, the DFD states that no other firefighters' weight classification was as "very poor", the worst possible rating. Thus, the City states that he was transferred because "Plaintiff's weight was much more of an immediate threat to the public, other firefighters, as well as himself." See Defendant's Brief at 11. Plaintiff has produced no evidence to show that this explanation is unworthy of credence. Indeed, Armstrong was the only person to fall within the "very poor" category; hence, he cannot show that other, similarly situated firefighters were treated differently. The City then notes that Plaintiff was reassigned to Station 49 on November 22, 1988, after he entered into the November 11, 1988 agreement with the DFD to lose weight. More generally, the DFD argues that several weight loss agreements were executed between the parties in order to allow Plaintiff to lose weight without suffering disciplinary action. See Exhibit 2 at 122-23. Defendants contends that after all of these agreements failed to achieve the desired results, the DFD sent Plaintiff a letter of reprimand for violating the weight loss agreement, transferred Plaintiff to a non-firefighting position, and took other adverse actions about which Plaintiff complains. Plaintiff also complains that he received a letter of counseling for losing his coat. Plaintiff does not deny losing the coat; instead, he argues that since the coat was returned, he should not have been disciplined. However, Plaintiff has shown no causal connection between Plaintiff's discipline for losing his coat and the filing of his EEOC complaint. Indeed, DFD regulations make all DFD personnel responsible and accountable for department equipment. Moreover, DFD records indicate that other firefighters *882 were similarly disciplined for loss of equipment. See Exhibit 3 at 64-67. This fact precludes any inference of retaliatory treatment based upon the letter of counseling about the lost firefighter's coat. Both parties agree that Title VII does not insulate an employee from disciplinary action simply because he has filed an EEOC claim. See Brown v. Ralston Purina Co., 557 F.2d 570, 572 (6th Cir.1977); Smith v. Texas Department of Water Resources, 818 F.2d 363 (5th Cir.1987), cert. denied, 484 U.S. 1059, 108 S. Ct. 1012, 98 L. Ed. 2d 977 (1988). Essentially, Plaintiff complains that the City's actions were unreasonable because the weight loss required of him exceeded the DFD's physical fitness weight program policy. However, the reasonableness of the weight policy is not at issue here. Indeed, in the Age Discrimination in Employment Act context, the Fifth Circuit has stated that civil rights laws do not protect Plaintiffs from "erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated." Bienkowski, 851 F.2d at 1508. Challenges to the reasonableness of an employer's neutral justification of its actions do not create a fact issue regarding pretext. Id. Although Plaintiff claims that he was singled out for special treatment, he has not produced any evidence that others were treated differently. Other firefighters received letters for losing equipment, and others received letters for being overweight. Finally, as noted above, Armstrong was the only person to fall within the "very poor" category; hence, he cannot show that other, similarly situated firefighters were treated differently. The Court has concluded that Plaintiff has not adduced any direct evidence of retaliation. Moreover, Plaintiff has failed to forward evidence which shows that the City's neutral explanation of its actions is unworthy of credence. It follows that Plaintiff has failed to show that there is a material fact which precludes summary judgment on Plaintiff's Title VII claim. Furthermore, Plaintiff can show no violation of the Texas Fair Employment Act, Tex. Rev.Civ.Stat.Ann. Article 5221k, § 5.01(1) (Vernon Supp.1992), on this set of facts because Plaintiff has provided no indication that the state statute is broader in scope than the parallel federal statute. 2. The Contract Claim In Plaintiff's second claim for relief, Armstrong states that the City breached the settlement agreement the parties executed by continuing to request that Plaintiff lose weight and by cutting Plaintiff's efficiency grade. However, the agreement entered into by the parties only prohibited the City from retaliating against Armstrong for filing the EEOC claim. Given the Court's conclusion that the City did not retaliate against Plaintiff, the City did not breach the agreement. IV. Conclusion Defendant's Motion for Summary Judgment is GRANTED. SO ORDERED. FINAL JUDGMENT This Judgment is entered pursuant to the Court's Memorandum Opinion and Order filed December 18, 1992. It is ORDERED, ADJUDGED and DECREED by the Court that Plaintiff take nothing by his suit against Defendant City of Dallas, and that this suit be, and it is hereby, DISMISSED with prejudice at Plaintiff's cost. NOTES [1] However, the Court notes that the DFD Manual of Procedures requires firefighters to stay "within the acceptable weight limits proportional to their height as set by Department regulations," see Exhibit 3 at 35, and that the Manual of Procedures also authorizes various levels of punishment for breaches of its rules. See id. at 48.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1396177/	859 F. Supp. 434 (1994) LARSEN OIL COMPANY, an Oregon corporation, dba Red Hot Oil Company, Plaintiff, v. FEDERATED SERVICE INSURANCE COMPANY, a Minnesota corporation, Defendant. Civ. No. 93-1098-JO. United States District Court, D. Oregon. June 21, 1994. Norman L. Lindstedt, Lindstedt Buono & Gordon, Portland, OR, for plaintiff. Dianne K. Dailey, Ronald E. Bailey, Bullivant Houser Bailey Pendergrass & Hoffman, Portland, OR, Thomas H. Crouch, Charles E. Spevacek, Meagher & Geer, Minneapolis, MN, for defendant. 435 OPINION AND ORDER ROBERT E. JONES, Judge: This disposition resolves cross-motions for summary judgment on whether defendant Federated Services Insurance Company (Federated) had a duty to defend plaintiff Larsen Oil Company (Larsen) in an underlying action. Larsen claims the duty to defend arose when Carson Oil Company and Columbia Heating & Cooling, Inc., defendants in the underlying action, filed third-party claims against Larsen for contribution and indemnification. Bernice R. Lynch v. Carson Oil Company, Inc., Columbia Heating & Cooling, Inc., Defendants and Third-Party Plaintiffs v. Larsen Oil Company dba Red Hot Oil Company, Third-Party Defendant, Case No. 9210-06834, Circuit Court for the State of Oregon, County of Multnomah (Lynch v. Carson). Larsen initially claimed that Federated had both a duty to defend and a duty to indemnify the underlying action. However, subsequent to filing the complaint in the present action, the third-party claims against Larsen in the underlying action were dismissed on Larsen's motion for summary judgement. Larsen's claim regarding the duty to indemnify is therefore moot, and the remaining issues concern the duty to defend. In addition to seeking declaratory relief, Larsen claims defense costs of $20,648.35, and has indicated that it will seek attorney fees for the present action under Oregon Revised Statute 742.061. Whether Federated had a duty to defend depends on whether the pollution exclusions in Larsen's two insurance policies with Federated apply to the underlying action. Because the pollution exclusions do apply, Federated did not have a duty to defend Larsen in the underlying action and Federated's motion for summary judgment is granted. Larsen's complaint also sought punitive damages in the amount of $200,000 on the basis that defendant's denial was in bad faith and without just cause. Because Federated did not have a duty to defend, Larsen's claim for punitive damages is also dismissed. BACKGROUND AND FACTS The following is based on the parties' stipulation of facts. 1. Lynch v. Carson Bernice Lynch initiated an action in the Circuit Court for the State of Oregon, County of Multnomah, entitled Bernice R. Lynch v. Carson Oil Company, Inc., Columbia Heating & Cooling, Inc., Case No. 9210-06834. The Second Amended Complaint in Lynch v. Carson made the following allegations: (1) Lynch contracted with Columbia to dismantle her oil furnace and replace it with a gas furnace. (2) In the course of performing the services, Columbia cut the fuel oil intake pipe to accommodate the removal of unused fuel from the tank. (3) Columbia did not remove, cap, or otherwise incapacitate the intake pipe. (4) Lynch notified Carson, and Carson acknowledged in writing that Lynch had had her oil furnace replaced with a gas furnace. (5) On or about November 23, 1991 a Carson oil truck pumped 873 gallons of heating oil into the intake end of the fill pipe. (6) Because the pipe had been severed, the oil did not reach the tank, but spilled into the basement and soil beneath Lynch's house. (7) As a result of the spill, the house became uninhabitable due to the odor and presence of hydrocarbon particles throughout the living areas of the house. Based on these allegations, Lynch made claims against Carson and Columbia based on strict liability, negligence, intentional tort, breach of contract, trespass, and intentional trespass. Lynch claimed damages resulting in part from both personal injury and property damage. 2. The Third-Party Complaints Carson and Columbia filed third-party complaints against Larsen, the plaintiff in the current action. The third-party complaints alleged that Larsen had cut the oil fill pipe, and that Larsen was negligent in either 436 failing to remove the fill pipe, failing to cap the fill pipe, or failing to warn Lynch that the fill pipe had been severed. Based on these allegations, Carson and Columbia sought contribution and indemnification from Larsen. Larsen's motion for summary judgment in the third-party action was granted on the basis that there was no evidence that Larsen had cut the fill pipe. Order Regarding Third-Party Defendant Larsen Oil Company's Motions for Summary Judgment, Case No. 9210-06834, Oct. 4, 1993. 3. The Insurance Policies For the period October 1, 1991 to October 1, 1992, Federated, defendant in the current action, issued to Larsen, plaintiff in the current action, two policies: a commercial general liability policy, and a commercial umbrella liability policy. Both policies were subject to similar pollution exclusions. The commercial general liability policy did not apply to: "Bodily injury" or "property damage" which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, release or escape of pollutants at any time.[1] The parties have stipulated that the heating oil spilled onto Bernice Lynch's property is a pollutant. Federated's motion for summary judgment is based on the assertion that the duty to defend under the policies did not arise, because the damages sought in Lynch v. Carson would not have occurred but for the discharge, dispersal, release or escape of a pollutant, heating oil. Therefore, Federated argues that the liability from the underlying action falls squarely within the pollution exclusions of the two policies. Plaintiff argues that it is entitled to summary judgment on the basis that the pollution exclusions only apply to discharges of pollution by the insured, and because plaintiff did not discharge any pollutants, the exclusions do not apply. STANDARD OF REVIEW Summary judgment may be granted when there is no genuine dispute of any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A party opposing summary judgment bears the burden of producing facts that create a genuine issue for trial, and if that party is unable to do so, then summary judgment is proper. Lindahl v. Air France, 930 F.2d 1434, 1436-37 (9th Cir.1991). Summary judgment is proper in the present case, because the parties have stipulated to material facts, and have filed cross-motions for summary judgment. The remaining issue, interpretation of the pollution exclusions, is a question of law suitable for disposition through summary judgment. DISCUSSION The pollution exclusions at issue are referred to as "absolute" pollution exclusions. They are broader exclusions than "sudden and accidental" pollution exclusions, because they do not contain an exception for injury or damage arising out of a discharge of pollution that is sudden or accidental. By their terms, the pollution exclusions in Larsen's two policies exclude from coverage any "`property damage' which would not have occurred in whole or in part but for the ... discharge ... of pollutants." Larsen argues that the exclusions are intended to apply only in situations where the insured discharges pollution, not, as in the present case, where a third party causes the discharge of pollution. Larsen urges that the pollution exclusions be interpreted as if the words "by the insured" were inserted at the end of each exclusion. Larsen attempts to show that the terms of the pollution exclusions are ambiguous by comparing the commercial liability pollution exclusion with another exclusion (exclusion f(2)) from the same policy. The pollution exclusion states that the insurance does not apply to: 437 property damage which would not have occurred in whole or in part but for ... discharge ... of pollutants at any time. Exclusion f(2) states that the insurance does not apply to: any loss ... arising out of any request, demand or order that any insured or others ... clean up ... or in any way respond to, or assess the effects of pollutants. Exclusion f(2) incorporates the phrase "by the insured or others," while the pollution exclusion does not. Larsen contends that the absence of this phrase from the pollution exclusion means that it does not apply to discharges "by the insured and others," but only to discharges by the insured[2]. Federated asserts that the pollution exclusions do not explicitly reference discharges of pollution "by the insured" nor "by the insured and others," because the exclusions were meant to apply without limitation, including situations where no active discharger exists, such as when property damage results from a leaking underground storage tank. Federated contends that the terms of the exclusions are not ambiguous and that it should be interpreted according to its express terms, to exclude any property damage resulting from a discharge of pollution, regardless of the cause. Federated argues that the interpretation asserted by Larsen places a limitation on the exclusion that was not intended under the policy. Under Oregon law, which controls in this diversity action, an insurer's duty to defend is determined by the allegations of the complaint in the underlying action. Allstate Ins. Co. v. Belezos, 744 F. Supp. 992, 995 (D.Or. 1990), aff'd, 951 F.2d 358 (9th Cir.1991); Delta Sand & Gravel v. General Ins. Co. of America, 111 Or.App. 347, 350, 826 P.2d 82, rev. denied, 314 Or. 175, 836 P.2d 1344 (1992). In this case, the allegations that determine whether there was a duty to defend are those in Carson's and Columbia's third-party complaints. Also, because Carson and Columbia sought contribution and indemnity, the allegations in Lynch's complaint are also relevant to determining whether there was a duty to defend. Lynch's complaint alleged, "[b]ecause the pipe was severed beneath the house, the oil spilled without reaching the tank. The oil seeped into the soil under a crawl space and through the concrete floor of the finished basement into the earth below." Second Amended Complaint for Damages, ¶ 8, Lynch v. Carson. Lynch's complaint also claims property damage resulting from the discharge of oil into her basement. Id. ¶ 15. Lynch's complaint, therefore, seeks compensation for property damage that would not have occurred but for the discharge a pollutant, heating oil. This is precisely the type of liability excluded by the pollution exclusions found in Larsen's two policies with Federated. The exclusions at issue are not ambiguous. Similar pollution exclusions have been interpreted to unambiguously preclude indemnification for property damage arising out of pollution. See, e.g., Great Northern Ins. Co. v. Benjamin Franklin Federal Savings and Loan Ass'n, 793 F. Supp. 259 (D.Or.1990), aff'd, 953 F.2d 1387 (table) (9th Cir.1992); Hydro Systems v. Continental Ins. Co., 717 F. Supp. 700 (C.D.Cal.1989), aff'd, 929 F.2d 472 (9th Cir.1991). Where the terms of the policy are unambiguous, the contract should be enforced according to its terms. Garrett v. State Farm Mutual Ins. Co., 112 Or.App. 539, 829 P.2d 713, rev. denied, 313 Or. 627, 835 P.2d 916 (1992). Courts will not apply a strained meaning to unambiguous language to create an ambiguity where none exists. Mortgage Bancorporation v. New Hampshire Ins. Co., 67 Or.App. 261, 677 P.2d 726, rev. denied, 297 Or. 339, 683 P.2d 1370 (1984). Furthermore, courts cannot change the parties' contract and create coverage 438 where coverage is plainly excluded. Allstate Ins. Co. v. State Farm Mutual Auto. Ins. Co., 67 Or.App. 623, 679 P.2d 879 (1984). Cases cited by Larsen in support of the assertion that pollution exclusions do not apply when the insured is not the discharger have not been widely followed. Niagara County v. Utica Mutual Ins., 80 A.D.2d 415, 439 N.Y.S.2d 538 (1981), which held that a sudden and unexpected pollution exclusion did not apply to discharges of pollutants by persons or entities other than the insured, has not been followed within its jurisdiction. See Powers Chemco, Inc. v. Federal Ins. Co., 144 A.D.2d 445, 533 N.Y.S.2d 1010 (1988). In declining to follow Niagara County, the court stated, "[t]he clear and unambiguous language of the pollution exclusion makes no exception for pollution caused by someone other than the insured...." Powers Chemco, 144 A.D.2d at 446-47, 533 N.Y.S.2d 1010. Likewise, Covington Township v. Pacific Employers Ins. Co., 639 F. Supp. 793 (M.D.Pa.1986) which held that a pollution exclusion did not apply when the discharge was caused by someone other than the insured, has also not been followed. See Federal Ins. Co. v. Susquehanna Broadcasting Co., 727 F. Supp. 169, 177 (M.D.Pa.1989), aff'd 928 F.2d 1131 (3rd Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 86, 116 L. Ed. 2d 58 (1991). Larsen also relies on Payne v. United States Fidelity & Guaranty Co., 625 F. Supp. 1189 (S.D.Fla.1985), which held that a sudden and unexpected pollution exclusion did not apply when the insured did not expect nor intend to discharge pollution. The reasoning in Payne, however, has also not been followed. See Industrial Indemnity Ins. Co. v. Crown Auto Dealerships, Inc., 731 F. Supp. 1517, 1519-20 (M.D.Fla.1990). That the exclusion applies to any property damage caused by the discharge of pollution, regardless of the cause, is consistent with case law interpreting similar pollution exclusions. See, e.g., Park-Ohio Industries, Inc. v. The Home Indemnity Co., 975 F.2d 1215, 1219 (6th Cir.1992) ("The pollution exclusion places no limitation on how the discharge is to be made or by whom.") Transamerica Ins. Co. v. Sunnes also supports Federated's interpretation of the pollution exclusion. 77 Or.App. 136, 711 P.2d 212 (1985), rev. denied, 301 Or. 76, 717 P.2d 631 (1986). Although Sunnes did not address a situation where the discharge was made by a third-party as in the present case, Sunnes supports defendant's interpretation in that it rejected the notion that pollution exclusions only apply if the insured is an "active polluter." Id. at 141, 711 P.2d 212. It is the type of damage, not the cause of damage, that controls whether the exclusion applies. See Montee v. State Farm Fire and Casualty Co., 99 Or.App. 401, 405, 782 P.2d 435 (1989), rev. denied, 309 Or. 521, 789 P.2d 1386 (1990) (interpreting exclusion for damage caused by settling cause of losses has no bearing on whether losses consist of excluded kinds of damage). It is unfortunate that Larsen had to expend litigation costs to defend third-party claims that appear to have been filed without merit. However, because the complaints in the underlying action alleged a claim for property damage that would not have occurred but for the discharge of pollution, the pollution exclusions clearly applied and the insurer had no duty to defend the insured. Defendant's motion for summary judgment (# 17) is granted. Plaintiff's motion for summary judgment (# 23) is denied. NOTES [1] The commercial umbrella liability policy did not apply to: "Bodily injury" or "property damage" which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, release or escape of pollutants from other than an `automobile' at any time.... [2] Larsen also argues that, because Federated offers no insurance to cover discharges by someone other than the insured on property not owned by the insured, such coverage must be available under the policies in question. While evidence of other insurance available may be considered in determining the nature of the insurance actually purchased (Fisher v. California Insurance Co., 236 Or. 376, 388 P.2d 441 (1964)), Larsen's argument fails to consider that the duty to defend is determined by the allegations of the complaint, not by facts subsequently determined. Because the third-party complaints alleged that the insured caused a discharge of pollutants, it is irrelevant whether Federated offers insurance for discharges of pollution by third parties.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2376552/	943 F. Supp. 685 (1996) Boyd L. RICHIE, et al, Plaintiffs, v. The AMERICAN COUNCIL ON GIFT ANNUITIES, et al, Defendants. Civil Action No. 7:94-CV-128-X. United States District Court, N.D. Texas, Wichita Falls Division. September 30, 1996. 686 Lonny D. Morrison, Morrison & Shelton, Wichita Falls, TX, Ronald D Wells, Milner Lobel Goranson Sorrells Udashen & Wells, Dallas, TX, Scott Robert Jacobs, Akin Gump Strauss Hauer & Feld, Dallas, TX, Robert Elkin, Phillip N. Smith, Jr., Charles Watson Cunningham, McKool Smith, Dallas, TX, for Boyd L. Richie. Glynn Purtle, Fillmore & Purtle, Wichita Falls, TX, Judy C. Norris, George C. Chapman, Gregory S. Huffman, William Mayer Katz, Jr, Thompson & Knight, Dallas, TX, for The American Council On Gift Annuities, Inc. George C. Chapman, Gregory S. Huffman, Thompson & Knight, Dallas, TX, Walter Franklin Williams, David Wayne Prasifka, Lorance & Thompson, P.C., Houston, TX, Stephen Morris Briley, Banner Briley & White, Wichita Falls, TX, Richard T. McCarroll, Brown McCarroll & Oaks Hartline, Austin, TX, Walter Hiram Mizell, Brown McCarroll & Oaks Hartline, Dallas, TX, Walter F. Williams, III, Lorance & Thompson, P.C., Houston, TX, for The Lutheran Church-Missouri Synod. Richard T. McCarroll, Brown, McCarroll & Oaks Hartline, Austin, TX, Walter Hiram Mizell, Brown, McCarroll & Oaks Hartline, Dallas, TX, Roy T. Sparkman, Sparkman & Davison, Wichita Falls, TX, for Lutheran Church Missouri Synod Texas District, Lutheran Foundation of Texas. Walter Franklin Williams, David Wayne Prasifka, Lorance & Thompson, P.C., Houston, TX, Stephen Morris Briley, Banner Briley & White, Wichta Falls, TX, Walter F. Williams, Lorance & Thompson, P.C., Houston, TX, for Concordia Lutheran College. Richard T. McCarroll, Brown, McCarroll & Oaks Hartline, Austin, TX, Walter Hiram Mizell, Brown, McCarroll & Oaks Hartline, Dallas, TX, Roy T Sparkman, Sparkman & Davison, Wichita Falls, TX, for Gerald Bryan Kieschnick, Glenn Pittsford, Carl A. Heckmann, Glenn O'Shonney. Walter Franklin Williams, David Wayne Prasifka, Lorance & Thompson, P.C., Houston, TX, Stephen Morris Briley, Banner Briley & White, Wichita Falls, TX, for Fred A. Bleeke. Rod Phelan, Baker & Botts, Dallas, TX, Richard G. Braman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, for Gray, Plant, Mooty, Mooty & Bennett. Charles Murray Barnard, Law Office of Charles M Barnard, Wichita Falls, TX, Alexander Halpern, Caplan and Earnest L.L.C., Boulder, CO, for University of Colorado Foundation, Inc. George Randle Earle, Biggers Beasley Earle & Hightower, Dallas, TX, Patrick Ray Cowlishaw, Robert M. Cohan, Kurt Allen Schwarz, Cohan Simpson Cowlishaw & Wulff, Dallas, TX, for amicus curiae, Salvation Army. George Walter Bramblett, Jr., Noel M.B. Hensley, Kerry McHugh Breaux, Haynes & Boone, Dallas, TX, for Baptist Foundation of Texas. 687 Robert C. Walters, Russell Ray Yager, Scott Wayne Breedlove, Vinson & Elkins, Dallas, TX, Richard Thomas Sutherland, Law Office of Richard T. Sutherland, Wichita Falls, TX, for American Bible Society, The Moody Bible Institute of Chicago. Robert Richard Roby, James Allen Harrison, Russell Hendrix Roden, Gwinn & Roby, Dallas, TX, James D. Jordan, Guenther & Jordan, Nashville, TN, for Southern Baptist Convention. Mark W. Bayer, William G. Whitehill, Elaine A. Murphy, Gardere & Wynne, Dallas, TX, Robert J. Brookhiser, Jr., Howrey & Simon, Washington, D.C. for U.S. Susan Abbott Schwartz, Robin Foret, Landau Omahana & Kopka, Dallas, TX, for General Conference Corporation of Seventh-Day Adventists, Loma Linda University. John Hess McElhaney, Susan Louise Karamanian, Michael James Boydston, Locke Purnell Rain & Harrell, Dallas, TX, for Anderson University, Inc., Mount Holyoke College, Smith College, Vassar College, St. Olaf College. William Gray Compton, Arter Hadden Johnson & Bromberg, Dallas, TX, Oldrich Foucek, III, Tallman, Hudders & Sorrentino, P.C., Allentown, PA, for Good Shepherd Home Foundation. Geraldine M. Alexis, Kirby H. Lewis, Sidley & Austin, Chicago, IL, Van Jackson Hooker, Jay Vogelson, Stutzman & Bromberg, Dallas, TX, for Northwestern University. Thomas D. Graber, Hutcheson & Grundy, Dallas, TX, Charles Imlay Appler, Bennett & Weston, Dallas, TX, for American Baptist Foundation, American Baptist Foreign Mission Society, Evangelical Lutheran Church In America. James Donald Blume, Law Office of James D. Blume, Dallas, TX, Donald C. Clark, Jr., Clark & DeGrand, Chicago, IL, for United Church of Christ. Judy C. Norris, George C. Chapman, Gregory S. Huffman, Thompson & Knight, Dallas, TX, for Planned Giving Services, Inc, Planned Giving Resouces, Prerau & Teitell. Robert C. Walters, Vinson & Elkins, Dallas, TX, for American Leprosy Missions. Patricia Jane Villareal, Chrysta Osborn Castaneda, Jones Day Reavis & Pogue, Dallas, TX, for Hay-Huggins Company, Inc. John Hess McElhaney, Susan Louise Karamanian, Michael James Boydston, Locke Purnell Rain & Harrell, Dallas, TX, Roger E. Bloomfield, Law Office of Roger E. Bloomfield, Dayton, OH, for Wittenberg University. George Walter Bramblett, Jr, Noel M.B. Hensley, Kerry McHugh Breaux, Haynes & Boone, Dallas, TX, for Baptist Foundation of Texas. Robert Richard Roby, James Allen Harrison, Russell Hendrix Roden, Gwinn & Roby, Dallas, TX, for Southern Baptist Convention. Patricia Jane Villareal, Chrysta Osborn Castaneda, Jones Day Reavis & Pogue, Dallas, TX, for Hay-Huggins Co., Inc. James Donald Blume, Law Office of James D. Blume, Dallas, TX, Donald C. Clark, Jr., Clark & DeGrand, Chicago, IL, for United Church of Christ. Rod Phelan, Baker & Botts, Dallas, TX, Richard G. Braman, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, for Gray, Plant, Mooty, Mooty & Bennett. MEMORANDUM OPINION AND ORDER KENDALL, District Judge. Now before the Court are: 1) Plaintiff's February 13, 1996 Motion for Leave to File Fourth Amended Class Action Complaint; 2) Defendants' December 14, 1995 Motion to Dismiss; 3) Defendant's August 27, 1996 Renewed Motion for Relief; 4) Defendant Northwestern University's January 26, 1996 Motion for Summary Judgment[1]; 688 5) Defendant Lutheran Foundation of Texas's October 26, 1995 Motion to Reconsider the May 3, 1995 Order Granting Partial Summary Judgment; and 6) Defendant American Council on Gift Annuities's and Defendant Lutheran Church-Missouri Synod's November 22, 1995 Motion for Partial Summary Judgment on Texas Statutory Claims. After having considered these motions and all responses, replies, and surreplies thereto, the motions are hereby DENIED IN PART, GRANTED IN PART, unless otherwise stated, as follows. I. This case involves a claim that the American Council on Gift Annuities, its members, and various other charities in the United States have been involved in a mass price-fixing conspiracy setting the maximum rates of return with regard to charitable gift annuities. In essence, the plaintiffs claim that these entities collusively fix prices to restrain competition between the various sellers of charitable gift annuities. On December 8, 1995, the Charitable Gift Annuity Antitrust Protection Act[2] and the Philanthropy Protection Act[3] were enacted. These new federal statutes retroactively changed, not "clarified," the laws upon which Plaintiff's federal claims were (and are) based.[4] On December 14, 1996, less than a week after passage of these new amendments, Defendants collectively moved the Court to dismiss[5] Plaintiff's two federal claims, as set forth in Plaintiff's Third Amended Complaint, pursuant to Fed. R.Civ.P. 12(b)(1), 12(b)(6), and 12(c) in view of these new statutory exemptions, and to remand his supplemental state-law claims. On February 13, 1995, Plaintiff moved the Court for leave to file his Fourth Amended Class Action Complaint which, inter alia, would abandon his federal claim under the Investment Company Act of 1940 and his Texas Free Enterprise and Antitrust Act claim, but which would retain his other federal claim under the Sherman Act and his allegations concerning Defendants' illegal sale of annuities and operation of trust businesses. Defendants' Response to that motion argued, in part, that Plaintiff should not be permitted to amend his Complaint because its filing would be futile since Plaintiff's Fourth Amended Class Action Complaint would still fail to state a claim upon which relief can be granted in light of the newly-enacted, retroactive antitrust exemption.[6] Since, however, Defendants have not established "beyond doubt that Plaintiff can prove no set of facts in support of his claim that would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957), i.e., since there still exists the possibility that Defendants will not be able to prove that they qualify for the new 689 antitrust exemption, Defendants' Motion to Dismiss Plaintiff's Sherman Act claim pursuant to Rule 12(b)(6) must be denied. Consequently, Plaintiff's proposed amendment is not futile since his Fourth Amended Complaint alleges facts which could potentially state a claim, even given the new statutory exemption; therefore, his Motion for Leave to File Fourth Amended Class Action Complaint is granted in all respects. II. Section 2(a) of the Charitable Gift Annuity Antitrust Relief Act ("Antitrust Relief Act"), which amends state and federal antitrust laws, provides as follows: (a) EXEMPT CONDUCT. Except as provided in subsection (b)[7], it shall not be unlawful under any of the antitrust laws, or under a State law similar to any of the antitrust laws, for 2 or more persons described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) that are exempt from taxation under section 501(a) of such Code to use, or to agree to use, the same annuity rate for the purpose of issuing 1 or more charitable gift annuities. The "antitrust laws" to which this provision refers are defined in § 3 of the Antitrust Relief Act, and § 4 of the Antitrust Relief Act makes this exemption retroactively applicable. As with any statutory question, the Court begins with the language of the statute. Kellogg v. United States (In re West Texas Marketing Corp.), 54 F.3d 1194, 1200 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 523, 133 L. Ed. 2d 430 (1995). In determining a statute's plain meaning, it is assumed that, absent any contrary definition, "Congress intends the words in its enactments to carry their ordinary, contemporary, common meaning." Pioneer Investment Services v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 388, 113 S. Ct. 1489, 1495, 123 L. Ed. 2d 74 (1993) (internal quotation marks omitted). As the Supreme Court has stated: "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S. Ct. 3245, 3250, 73 L. Ed. 2d 973 (1982) (internal quotation marks omitted). Where the statutory language is clear, as it is here, "the inquiry should end." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989). Since Defendants maintain that "Congress used the language `described in section 501(c)(3)' and `exempt from taxation under section 501(a)' as a traditional shorthand reference to 501(c)(3) organizations not as distinct factual elements of the exemption granted by the new legislation"[8], the plain meaning of this statute is called into question. However, only if the statutory language is ambiguous are courts to proceed beyond the language as written. Ron Pair Enterprises, Inc., 489 U.S. at 241, 109 S. Ct. at 1030. Here, the literal language of the statutory text unambiguously specifies two requirements for the Act's antitrust exemption: (1) an entity described in 26 U.S.C. § 501(c)(3) that is tax exempt under § 501(a); and (2) use of, or agreement to use, the same annuity rates with another such organization. Defendants' contention that this first requirement simply means "having a 501(c)(3) determination letter" is not the statute's plain meaning, but merely their subjective twist on the text's plain language commonly understood meaning. If it were, it could have been easily included. The Court cannot conclude that Congress meant one thing while saying another. Because the language of the new exemption is unambiguous, "the sole function of the court is to enforce it according to its terms." Ron Pair Enterprises, Inc., 489 U.S. at 241, 109 S. Ct. at 1030 (internal quotation marks omitted). Although floor debate may indicate that the new legislation was clearly meant to dispose 690 of this lawsuit[9] and the American public, if polled by Gallup or Harris, would probably resoundingly want to put the kibosh to this lawsuit, the Court resists the temptation to "read into" the statute what "everyone clearly intended." To do so would, in the Court's opinion, be to engage in the very sort of judicial activism that so many proponents of this legislation disdain. The Court cannot get from the legislative history what the language of the statute unambiguously denies. As the Fifth Circuit paraphrased Justice Oliver Wendell Holmes, "we do not inquire what Congress meant; we only ask what it said." Guilzon v. C.I.R., 985 F.2d 819, 823 n. 11 (5th Cir.1993). Furthermore, the Court must strictly construe this plain qualifying language in the § 2(a) exemption in the Antitrust Relief Act since exemptions from the antitrust laws must be construed narrowly. E.g., Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 126, 102 S. Ct. 3002, 3007, 73 L. Ed. 2d 647 (1982); Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S. Ct. 1067, 59 L. Ed. 2d 261 (1979). Antitrust exemptions must be applied in a way that minimizes the risk that unprotected activity will escape remedy, thereby jeopardizing national competition policy.[10] Thus, the Court cannot treat § 2(a)'s phrases "described in section 501(c)(3)" and "exempt from taxation under section 501(a)" as "mere shorthand references" used by Congress, as Defendants urge. Instead, the Court will follow the law as written, i.e., Plaintiff's Sherman Act claim is not subject to dismissal until Defendants have proven that they qualify for the § 2(a) exemption, the same way any other law would be applied. If a Defendant can prove that it meets the new test, the legislative intent is clear that the claim should, and will, be dismissed as to that entity. To make that determination, however, the Court must first make the necessary subsidiary findings on the factual elements of the exemption, e.g., the Court must determine whether the statutory criteria described in 691 501(c)(3)[11] are met for each Defendant. On this score, I.R.S. 501(c)(3) determination letters, which are administrative determinations based on information supplied by applicants for such letters, do not necessarily establish that a Defendant is a bona fide organization "described in section 501(c)(3)" and "exempt from taxation under section 501(a)," which in turn would qualify a Defendant to benefit from the new antitrust exemption. See, e.g., Geisinger Health Plan v. C.I.R., 985 F.2d 1210, 1214 (3d Cir.1993); Phi Delta Theta Fraternity v. C.I.R., 887 F.2d 1302, 1308 (6th Cir.1989); 16 C.F.R. § 3.82(b) (1995); 1 C.F.R. § 315.306 (1995). The new statute makes no reference at all to an I.R.S. 501(c)(3) determination letter but rather references provisions of the Internal Revenue Code. As such, Defendants bear the burden of proving that they are "described in section 501(c)(3)" and "exempt from taxation under section 501(a)" for the exemption to apply to them, e.g., Seasongood v. K and K Ins. Agency, 548 F.2d 729, 732 (8th Cir.1977): self-definition or self-declaration does not pass muster. Even so, Plaintiff's Fourth Amended Complaint has alleged facts that, if proved, would defeat the new exemption, e.g., Plaintiff has alleged that the American Council on Gift Annuities ("Council"), if it has been determined to be a 501(c)(3) organization, obtained its 501(c)(3) status through material misrepresentations and omissions to the I.R.S. If true, which is how the Court is required to take allegations under a Rule 12(b)(6) motion, the Council would not be entitled to the new antitrust exemption. Walker Process Equip. Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174-77, 86 S. Ct. 347, 348-50, 15 L. Ed. 2d 247 (1965). Additionally, if the Council proves not to be exempt, any Defendant that conspired with the Council to fix the prices or rates of charitable gift annuities would also lose its exemption, even if it has satisfied the prerequisites of the new exception. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 782-83, 113 S. Ct. 2891, 2902-03, 125 L. Ed. 2d 612 (1993). The new exemption in this case has both status-based ("persons described in section 501(c)(3) and exempt from taxation under section 501(a)") and conduct-based ("use or agreeing to use the same annuity rate" for purposes of issuing charitable gift annuities) elements similar to the Capper-Volstead exemption, 7 U.S.C. § 291. Even if the Rule of Forfeiture did not apply (which it does), the new exemption certainly does not exempt or otherwise authorize conspiracies with nonexempt entities. Consequently, to avoid needless expense and delay to all other Defendants, the Court will decide the Council's exempt status before determining other Defendants' statuses. Therefore, all discovery will remain abated except as to whether the Council is entitled to the new antitrust exemption. If during dispositive motion practice the Council proves not to be exempt, then class certification issues will be subsequently addressed.[12] III. Defendants' contention that "this Court lacks jurisdiction to evaluate Defendants' 501(c)(3) status" is legally incorrect. (Reply at page 3) 26 U.S.C. § 7428[13], the tax 692 exception to the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201[14], does not "give exclusive jurisdiction over disputes involving an organization's 501(c)(3) status to the Tax Court, the Claims Court, and the D.C. district court" as Defendants' argue at page nine of their Reply, and this Court does not lack jurisdiction to "de novo review" or otherwise litigate an entity's 501(c)(3) status to determine Defendants' eligibility for this new antitrust exemption. Neither 26 U.S.C. § 7428 nor the DJA, 28 U.S.C. § 2201, are jurisdictional statutes. Section 7428 only involves pre-assessment, pre-collection claims for declaratory relief regarding tax liability and neither creates exclusive jurisdiction nor supplants district court jurisdiction over tax refund actions. See e.g., American Ass'n of Christian Schools Voluntary Employees Beneficiary Ass'n Welfare Plan Trust v. United States, 850 F.2d 1510 (11th Cir.1988) (district court found church insurance trust to not be a 501(c)(3) entity). More to the point, neither § 7428 nor the DJA are implicated in this case. This is not an action to confer tax liability upon any of the defendants. In enacting § 7428, Congress did not limit jurisdiction to apply the Internal Revenue Code, but only limited jurisdiction to enter certain relief that would interfere with tax collection. This case merely involves a tax-status-related issue that does not implicate tax liability or the assessment and collection of taxes. Moreover, the dispute in this case that is connected with 501(c)(3) classification is to allow the Court to review 501(c)(3) statuses in order to make the subsidiary findings necessary to determine the applicability of the new antitrust exemption. Otherwise, all an antitrust defendant would need do is allege the exemption and thus deprive every district court in the country, save one, of antitrust jurisdiction. This clearly is not the law. Accordingly, this Court concludes that it is not divested of subject matter jurisdiction to determine whether the 501(c)(3) and 501(a) elements of Congress's new antitrust exemption are met. See Stern & Co. v. State Loan & Fin. Corp., 205 F. Supp. 702 (D.Del.1962); Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965). Although Defendants assert that Youngblood v. FDIC, 29 F.3d 225, 228-29 (5th Cir.1994), requires federal courts to defer to I.R.S. determination letters, that case is distinguishable in several important aspects from the instant case. The issue in Youngblood was whether the Texas legislature contemplated that its own courts would independently determine whether a retirement plan is "qualified" under the Internal Revenue Code, especially when the I.R.S. had made a contrary determination. The Fifth Circuit reasoned that the state legislature likely did not intend for conflicts to develop between state courts and the I.R.S. in such a complex, specialized area of federal law, noting state court inexperience with federal tax matters. Youngblood involved a bankruptcy court's application of a state statute that referred to federal law, not the interpretation of federal law by an Article III court, and did not address I.R.S. determination letters with respect to 501(c)(3) status. IV. Defendant Lutheran Foundation of Texas's October 26, 1995 Motion to Reconsider the May 3, 1995 Order Granting Partial Summary Judgment, Ozee v. American Council on Gift Annuities, 888 F. Supp. 1318 693 (N.D.Tex.1995), is DENIED. Soon after the Court's May 3, 1995 Order, the Texas Legislature, on May 23, 1995 and June 16, 1995, "clarified" that the provisions in the Texas Insurance Code, Texas Deceptive Trade Practices Act, Texas Banking Code, and Texas Non-Profit Corporation Act that existed when this lawsuit was filed provided no basis for any of Plaintiff's Texas statutory claims. The Texas Legislature explicitly stated that it was not changing the laws undergirding the May 3, 1995 Order, but merely "clarifying" them. The Court considers the Texas Legislature's "clarifications" irrelevant. Again, the Court is bound by what the Legislature said. As it stands, "clarifications" of pre-existing law (as the new state amendments refer to themselves) cannot serve as a basis for reconsideration of the Court's Order since they did not expressly state that they wanted to retroactively change pre-existing law. The Court presumes every word was used for a reason and that every word not chosen was excluded for a reason. Absent a clear and unambiguous expression that Texas statutes on which the Court's May 3, 1995 Order was based, are retroactively changed, these "clarifications" are meaningless. Construction of prior law is the sole prerogative of the courts. Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, ___, 114 S. Ct. 1439, 1452, 128 L. Ed. 2d 119 (1994); Federal Crude Oil v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56, 63 (1932); Amplifone Corp. v. Cameron County, 577 S.W.2d 567, 570 (Tex.Civ.App. Corpus Christi 1979, no writ). The Court finds no cases which even remotely suggest that courts may or should abdicate their judicial responsibility to a lawmaking body. The Court also finds no cases which suggest that the judiciary is bound, when the Legislature declares that a prior law said "red," to give effect to a subsequent Legislature's "clarification" that the law should be construed to say "green," which is exactly the argument advanced by Defendants' Motion to Reconsider. Clearly, addition of such new specific exemptions from broad statutes does precisely that when they directly contradict the plain wording of the prior statutes, as they do in this instance. Insofar as it makes a contrary interpretation, the Court considers any persuasive or non-controlling state law authority on this issue (of which the Court is only aware of two state trial court opinions) to be unpersuasive. Accordingly, Defendant Lutheran Foundation of Texas's and Defendant Lutheran Church-Missouri Synod's October 26, 1995 Motion for Partial Summary Judgment seeking declarations contrary to the foregoing and Defendant American Council on Gift Annuities's and Defendant Lutheran Church-Missouri Synod's November 22, 1995 Motion for Partial Summary Judgment are DENIED. * * * For these reasons, Defendants' Motion to Dismiss and Renewed Motion for Relief are GRANTED as to Plaintiff's Investment Company Act of 1940 claim and as to Plaintiff's Texas Free Enterprise and Antitrust Act claim; are DENIED as to Plaintiff's Sherman Act claim; and are DENIED as to Plaintiff's state-law claims. NOTES [1] The Court has also read and considered Defendant Northwestern University's separate Reply, filed January 26, 1996, on these issues and its separate Motion, in the alternative, for Summary Judgment, also filed on January 26, 1996. References herein to "Defendants' Motion to Dismiss" include and apply to Defendant Northwestern University's Motion for Summary Judgment since it is also predicated on the new antitrust exemption. Since Defendant Northwestern University's qualification for this exemption raises material fact issues and because of the conclusory nature of its supporting affidavits, its alternative Motion for Summary Judgment is DENIED. See Fed.R.Civ.P. 56 and 52(c). [2] Pub.L. No. 104-63, 109 Stat. 687 (WESTLAW US-PL 104-63, HR 2525, December 8, 1995, Slip Copy). [3] Pub.L. No. 104-62, 109 Stat. 682 (WESTLAW US-PL 104-62, HR 2519, December 8, 1995, Slip Copy). The Court need not address the applicability of the Philanthropy Protection Act since Plaintiff's Fourth Amended Complaint abandons its claim pursuant to the Investment Company Act of 1940. [4] If nothing else, this case has underscored in this judge's mind the wisdom of the founding fathers' decision to separate the powers of government into three distinct "branches," with one of those branches being an independent judiciary with life tenure to insulate judicial decisions from the pressures of political activity and public opinion. Despite all the obvious activity of lobbyists, public relations persons, and other assorted spin doctors, this case is not as simple and easy as many would like to believe. [5] Defendant Northwestern also moves, in the alternative, for summary judgment on these same legal issues pursuant to Fed.R.Civ.P. 56(c). [6] See Avatar v. Exploration Inc. v. Chevron U.S.A., Inc., 933 F.2d 314, 321 (5th Cir.1991); Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th Cir.1980). [7] Subsection (b) relates only to State statutes passed after the effective date of the Charitable Gift Annuity Antitrust Relief Act. [8] Defendants' Reply at page 3. [9] "[A]n ominous class action lawsuit in a Federal court in Texas has put American philanthropy in jeopardy. Specifically, this lawsuit disingenuously attempts to apply securities and antitrust laws meant to govern commercial enterprises to fundraising and money-management techniques of charities. This is an application of Federal law never contemplated by Congress." 141 Cong.Rec. S17828 (daily ed. November 29, 1995) (statement of Senator Pressler). Senator Pressler's message has been received and the Court is acutely aware that the new legislation was directed at this suit. The Court is also not unaware of or unsympathetic to the realities of the adverse effects this lawsuit may have on legitimate charities that do much good. All lawsuits have a negative effect on all defendants. In fact, this Court has over 400 of them, and most if not all of those defendants want their cases heard so the negative effects of their lawsuits can be removed. Nevertheless, this Court may not do what it believes is "right," but must do what the law explicitly requires. And, even though the Court has no doubt as to what Congress wanted to accomplish, applying what they wrote to trigger the exemption, however, is slightly more problematic. In February, when the Court indicated that a ruling on these issues would be forthcoming in April, the Court meant what it said. Unfortunately, soon afterward, the Court was deluged with motions in the record-breaking number of cases filed this year. This time-crunch was exacerbated by the Court's criminal docket (which takes precedence), Congress's recent penchant for federalizing traditional state crimes, the hours involved in calculating sentencing guidelines, not to mention the six year vacancy of a judgeship position in the Northern District of Texas. All things considered, this case has been given exceptional attention, contrary to what is implied in footnote one of Defendants' Renewed Motion for Relief, e.g., no motion, of the hundreds of motions filed in this case, has had to be reported on the Court's six month pending motion list despite the fact that this case is only two years old and approximately half of the Court's other cases are older. Defendants can rest assured in the fact that the Court has not sat around staring out the window in boredom waiting for the next filing in the Richie matter to come in. Nonetheless, the Court will continue its efforts in the future to see that this case gets tried as soon as possible. [10] See Abbott Laboratories v. Portland Retail Druggists Ass'n, Inc., 425 U.S. 1, 11-12, 96 S. Ct. 1305, 1313-14, 47 L. Ed. 2d 537 (1976) (antitrust laws are "to be construed liberally, and ... exceptions ... are to be construed strictly."); Federal Maritime Comm'n v. Seatrain Line, Inc., 411 U.S. 726, 734-35, 93 S. Ct. 1773, 1779-80, 36 L. Ed. 2d 620 (1973) (antitrust laws are "fundamental national policy"); Chicago Professional Sports Ltd. Partnership v. National Basketball Ass'n, 961 F.2d 667, 671 (7th Cir.1992). [11] Section 501(c)(3) provides for tax exempt status for: "corporations ... organized and operated exclusively for religious, charitable, ... or educational purposes ... no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation ..." [12] By Order entered this same day, the Court has decertified all previously certified classes in this case. [13] 26 U.S.C. § 7428 provides in pertinent part as follows: In a case of actual controversy involving (1) a determination by the Secretary (A) with respect to the initial qualification or continuing qualification of an organization described in section 501(c)(3) which is exempt from tax under section 501(a) or as an organization described in section 170(c)(2), (B) with respect to the initial classification or continuing classification of an organization as a private foundation ..., or (C) with respect to the initial classification or continuing classification of an organization as a private operating foundation ..., or (2) a failure by the Secretary to make a determination with respect to an issue referred to in paragraph (1), ..., the United States Tax Court, the United States Claims Court, or the district court of the United States for the District of Columbia may make a declaration with respect to such initial classification or continuing qualification or with respect to such initial classification or continuing classification. Any such declaration shall have the force and effect of a decision of the Tax Court or a final judgment or decree of the district court or the Claims Court, as the case may be, and shall be reviewable as such.... [14] 28 U.S.C. § 2201(a) (the Declaratory Judgment Act) states as follows: In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, ... any court of the United States, ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2624722/	248 P.3d 277 (2011) In the Matter of Michael R. McINTOSH n/k/a Atif Michael Mcintosh Abdel-Khaliq, Petitioner. No. 83,037. Supreme Court of Kansas. March 22, 2011. ORDER OF REINSTATEMENT On October 29, 1999, this court suspended the petitioner, Michael R. McIntosh, n/k/a Atif Michael McIntosh Abdel-Khaliq, from the practice of law in Kansas for an indefinite period of time. See In re McIntosh, 268 Kan. 73, 75-76, 991 P.2d 403 (1999). Before reinstatement, the petitioner was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and undergo a hearing pursuant to Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370). On June 16, 2009, McIntosh filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On July 6, 2010, a hearing *278 was held before a hearing panel of the Kansas Board for Discipline of Attorneys to consider McIntosh's request for reinstatement. On August 25, 2010, the panel filed its report setting out the circumstances leading to McIntosh's suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that McIntosh's petition for reinstatement to the practice of law in Kansas be granted. The panel further recommended that McIntosh's reinstatement be conditioned on the following items: "a. Within 30 days of the date of this report, the Petitioner shall provide the Disciplinary Administrator with documentation from the Kansas Department of Revenue and the Internal Revenue Service establishing that the Petitioner does not continue to owe the taxing entities for taxes, interest, or penalties. "b. The Petitioner [shall] work with the Disciplinary Administrator to locate an attorney that is mutually agreed upon by the Petitioner and the Disciplinary Administrator who is appropriate to supervise the Petitioner's re-entry into the practice of law. The Petitioner shall work with this attorney for at least two years to set up and maintain the business side of his law practice. The attorney should assist the Petitioner in establishing an attorney trust account; assist the Petitioner in setting up a system to reconcile and maintain the attorney trust account; assist the Petitioner in understanding legal and ethical ways to finance and cash flow Petitioner's practice; and ensure that all taxes are properly paid to the state and federal governments. "c. The Petitioner shall successfully complete at least 10 hours of education on law office management, to be approved by the Disciplinary Administrator, within 120 days of the date of this report. "d. The Petitioner shall present documentary proof of CLE payments in full." The petitioner has satisfied the conditions recommended by the panel. The court, after carefully considering the record, accepts the findings and recommendations of the panel that the petitioner be reinstated to the practice of law in Kansas. IT IS THEREFORE ORDERED that McIntosh be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. Upon the report to the Clerk of the Appellate Courts that the petitioner has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the Clerk is directed to enter petitioner's name upon the roster of attorneys engaged in the practice of law in Kansas. IT IS FURTHER ORDERED that this order of reinstatement for McIntosh shall be published in the Kansas Reports and the costs of the reinstatement proceeding are assessed to the petitioner.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2444491/	5 A.3d 491 (2010) 298 Conn. 931 STATE of Connecticut v. Tavorus L. FLUKER. Supreme Court of Connecticut. Decided October 14, 2010. Heather M. Wood, deputy assistant public defender, in support of the petition. Michael L. Regan, state's attorney, in opposition. The defendant's petition for certification for appeal from the Appellate Court, 123 Conn.App. 355, 1 A.3d 1216 (2010), is denied. EVELEIGH, J., did not participate in the consideration of or decision on this petition.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1715225/	402 So. 2d 389 (1981) In the Matter of INTEREST ON TRUST ACCOUNTS. Nos. 51182, 60350 and 60351. Supreme Court of Florida. July 16, 1981. Rehearing Denied, Opinion Clarified August 5, 1981. Russell Carlisle, President, Florida Bar Foundation, Fort Lauderdale, and Henry G. Zapruder of Cohen & Uretz, Washington, D.C., on behalf of the Florida Bar Foundation, Inc. and sixty-seven active members of The Florida Bar. John F. Harkness, Jr., Executive Director, Tallahassee, Leonard H. Gilbert, President, Tampa, Samuel S. Smith, President-elect, Miami Beach, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, Bill Wagner of Wagner, Cunningham, Vaughan and McLaughlin, Tampa, Chairman for the Florida Bar Integration Rule and Bylaws Committee, and Ben H. Wilkinson, Chairman, Special Committee, Tallahassee, on behalf of the Board of Governors of The Florida Bar. Roderick N. Petrey and Randall C. Berg, Jr. of the Florida Justice Institute, Inc., Miami, on behalf of: American Civil Liberties Union, Common Cause of Florida, Florida Audubon Society, Florida Clearinghouse on Criminal Justice, Florida Conference of NAACP Branches, Florida Institutional Legal Services, Inc., Florida Legal Services, Inc., Florida Public Defender Association, Governor's Commission on Advocacy for Persons With Developmental Disabilities, Project Directors' Association, Southern Christian Leadership Conference, and Southern Legal Counsel, Inc. Sara-Ann Determan, Chairperson, Special Committee on Public Interest Practice, Washington, D.C., on behalf of: the American Bar Association. L. Orin Slagle, Dean, Florida State University College of Law, Tallahassee, on behalf of: Florida State University College of Law, the University of Florida, Spessard L. Holland Law Center, Nova University for the Study of Law, and Stetson University College of Law. Robert M. Curtis, Fort Lauderdale, Henry P. Trawick, Jr., Sarasota, and Gerald L. Brown, Pensacola, Responding to Petition. ENGLAND, Justice. This proceeding emerges from the Court's 1978 program designed to generate interest on lawyers' trust accounts for the improvement of the administration of justice in Florida.[1] The original plan, permitting voluntary participation by lawyers and law firms, was once amended to meet technical requirements of the Internal Revenue Service (IRS) and to accommodate The Florida Bar's request that we remove a requirement that compliance certificates be prepared for attorneys by certified public accountants.[2] Notwithstanding these alterations, the program has never been implemented for its intended purposes due to delays in resolving with IRS the appropriate federal income tax treatment of the earnings, payable to the Florida Bar Foundation, Inc., to be generated on clients' funds held in lawyers' accounts. Representing that tax considerations could be favorably resolved with IRS by a minor amendment to the program, the Foundation, joined by the Bar, has proposed amendments to the program for that purpose. In doing so, the Foundation has also asked that the program be made mandatory for all Florida attorneys, a position made possible by recent changes in the banking laws. In light of the latter proposal, the Foundation asked that we announce the changes and solicit comments from all interested parties. Promptly after the change proposals were submitted we did just that, simultaneously suspending the original program until further order of the 390 Court.[3] We have received responses and comments on the Foundation's proposals in abundance, and spirited oral argument was held on June 2. I The response to our request for comments was an outpouring of mail and filings, predominantly hostile to the proposed changes.[4] In addition to communications from the Foundation explaining the changes proposed, and from the Bar (presenting a catalogue of unanswered concerns), we have heard from attorneys, law firms, bar associations, bar committees, law schools, the Florida Bankers' Association, and various public interest law organizations. All these materials have been extremely helpful to us. They properly and candidly raise moral, legal and practical problems that inhere in the Foundation's proposals, and they express the sentiments of many attorneys, both on their own behalf and on behalf of their clients generally. Interestingly, the federal problems which necessitated submission of program changes attracted almost no interest from those who communicated with us. Some concern was expressed about the uncertainty and vagueness of the terms which IRS deems essential to describe the categories of clients' funds brought within the ambit of this trust account program those "held for a short period of time" or "nominal in amount." But those concerns present neither an impediment to the adoption of a revised program nor an occasion for more specificity, for the plan we adopted in 1978 always contemplated precisely the same "nominal" and "short" standards, which have classicly and historically governed attorneys in their trust account practices.[5] Changes which are said to be necessary to make the program acceptable to IRS revolve around the federal income tax concept known to tax practitioners as the "assignment of income" doctrine. That doctrine, which is an outgrowth of a graduated, federal income tax rate structure, was first articulated in Lucas v. Earl, 281 U.S. 111, 50 S. Ct. 241, 74 L. Ed. 731 (1930). It evolved to prevent persons who generate income by their services or with their property from shifting that income to other persons in whose hands the income either would not be taxed or would be taxed at significantly lower rates. Classic income assignment situations involve conscious, tax avoidance schemes by taxpayers in high income brackets. Over the years the common elements of prohibited income assignment have been a tax avoidance motive and a scheme or device for shifting income to related or controlled taxpayers. See, e.g., United States v. Basye, 410 U.S. 441, 93 S. Ct. 1080, 35 L. Ed. 2d 412 (1973); Commissioner v. First Security Bank of Utah, 405 U.S. 394, 92 S. Ct. 1085, 31 L. Ed. 2d 318 (1972); Helvering v. Horst, 311 U.S. 112, 61 S. Ct. 144, 85 L. Ed. 75 (1940); Poe v. Seaborn, 282 U.S. 101, 51 S. Ct. 58, 75 L. Ed. 239 (1930). In its efforts to enforce the tax laws and prevent erosion of the nation's tax base, the Internal Revenue Service has always been wary of plans with tax connotations which, although not designed for tax avoidance, might create precedent capable of being used for that purpose. Thus, any tax-shifting proposal submitted to IRS for approval invariably receives special scrutiny, not only for its motivations but as well for any incidental or implicit precedential potential. This Court's 1978 program for the generation of income on client's accounts, seen by IRS as involving a conceptual reassignment of interest income from clients to the Foundation, raised concerns within IRS that the 391 program could become a breeding ground for yet unborn tax avoidance schemes. As a result, hesitancy existed to approve taxability to the Foundation of the interest generated on lawyers' commingled trust accounts. IRS acknowledged that, unlike all prior, prohibited assignment of income situations, the Court's program did not in any way involve taxpayer-initiated, tax evasion among related or controlled taxpayers. Indeed, it was noted that the Service had approved income transfer plans fraught with far more tax avoidance risk as precedent than the Court's program.[6] Nonetheless, the Service was slow to rule approvingly on the Court's program as originally adopted, and because the feasibility of implementing the program depended upon the earned income on trust accounts being treated as taxable to the Foundation rather than to individual clients, the withholding of approval effectively barred implementation of the program. Eventually, tax counsel was able to obtain firm assurances from IRS that the tax treatment being sought for the program would be approved so long as clients could in no way and to no degree control the creation or destiny of earnings generated on their attorney-held funds.[7] The linchpin of approval was removal of all client control over the placement or non-placement of funds at interest that is, elimination of the client's veto over the investment of funds from which he could never benefit because the amounts on deposit were either too small in amount or to be held for only a short duration. On the basis of IRS' proposal for approval, and despite the continued belief by the Foundation's tax counsel both that no client "income" ever existed under the program and that the principles of Lucas v. Earl were in no wise implicated, the Foundation proposed that we amend the program to eliminate all client control and, in the process, reaffirm the "nominal in amount" and "short in time" standards for program applicability. This we now do. But it was not the tax aspects of the Foundation's proposal which raised the brouhaha which attended its submission to the Court. The Foundation's other proposal that the program be converted from a voluntary to a mandatory plan has evoked the most vehement response from bar members. The range of comments on this point run from respectful disagreement to hyberbolic outrage.[8] Specific objections can be categorized as concerns that the Foundation's revised program will have these effects: 1. burden attorneys with new record-keeping responsibilities and costs; 392 2. be unfair to clients, or deprive them of their earnings; 3. adversely affect (or some say, further erode) the public image of the legal profession; 4. generate potential disciplinary problems for attorneys, due to the absence of specific guidelines or standards for handling clients' accounts; 5. produce undetermined effects on professional liability insurance premiums; 6. discriminate unfairly, because NOW accounts are not available to incorporated attorneys under current banking regulations; 7. require that attorneys monitor compliance with the payment and reporting requirements of financial institutions; 8. essentially mandate contributions from attorneys to the Foundation, since commingled trust accounts contain unearned legal fees and fees which have been earned but not yet withdrawn; 9. interfere with traditional attorney-client relationships, whether no explanation is made to clients concerning the use of account earnings (thus creating a conflict of interest between client and the Foundation), or whether an explanation is offered (thus choosing, in effect, the Foundation as the charity to which the proceeds of the client's fund will be paid); 10. interfere with attorney-banker relations, to the point that a change of institutions would be required in cases where banks do not pay interest on demand accounts; 11. confiscate clients' funds, in violation of the "taking" provisions of the federal Constitution[9] (noting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S. Ct. 446, 66 L. Ed. 2d 358 (U.S. 1980)); 12. increase clients' demands for more individual, interest-bearing accounts; and 13. discourage placing any funds in escrow with attorneys. In addition to this plethora of concerns, we have been peppered with euphemisms ranging from declarations of the most current principles of Republicanism ("justices, too, read the election returns") to restatements of the traditions of an early frontier era ("leave us alone"). It has been suggested that the Foundation's proposal is not only outside our constitutional authority, being a legislative function (taxation), but is unconstitutional (taxation without representation, among other reasons), is unwarranted (because some attorneys can now get interest for their clients on their individual accounts), is unwise (because the Foundation is selected as sole recipient of any earnings which are generated), and is unjust (bankers complain that they cannot even earn interest on their own funds which are escrowed with attorneys). And as if these were not sufficient concerns for our ingestion, we have been told that the Foundation's proposals involve so many unresolved problems such as uncertainty in application to Florida attorneys who practice out of the state or to multistate law firms, unrepresentativeness of the Foundation's currently authorized governing board, and uncertainty as to the treatment of service charges from financial institutions that the only sensible thing to do is to appoint a study committee to examine the matter further. Quite obviously, the Foundation's proposal has struck a nerve in the legal profession, and the focus of pain is the mandatory nature of the proposal. The original idea of creating a program of this type brought some negative views, but no comparable outcry attended the initiation and development of our original, voluntary program. We cannot ignore the response of our bar. Indeed, we requested comments and criticisms precisely because we did not deign ourselves capable of discerning all possible 393 problems, legal and practical, or all reasonable objections to the Foundation's proposal. In its persistently careful effort to bring about a trust account interest program which can at last see the light of day, the Foundation has filed a response with the Court which has met virtually every legitimate concern and problem with either an answer, an accommodation, or an acknowledgment of the difficulties. It urges us, nonetheless, not to send the program back into studied oblivion.[10] On this point we are in complete accord with the Foundation. The time has come either to implement this concept, or to scrap it. We choose to implement.[11] In attempting to do so, of course, we have carefully confronted the responsible concerns of the program's philosophical opponents and friends, as described below. But first, a note of frustrated fatalism is clearly in order. If we have failed in any constitutional or tax sense to resolve the obstacles to implementation, and we do not believe that we have, it appears to us that we have done our best and should end our labors here. Thus, if we are further forestalled from advancing the public good through the program outlined below, it seems to us that the program will simply have to be written off as one of those good ideas whose time has not yet come. Our decision today, subject only to any technical difficulties properly and promptly brought to our attention, is our last endeavor in this field. II Two dominating considerations shape our implementation methodology. First, we acknowledge that the banking laws in Florida today are not what they were in 1978, and that the changes are sufficiently profound as to warrant reconsideration of the original plan. Second, the public and institutional responses we have received underscore what we earlier knew in approving a voluntary plan; namely, that Florida is not wholly like the provinces and countries which have implemented trust account interest programs in the homogeneity of its banking institutions,[12] in the centralization of its attorney populace, or in the forms of governmental control exercised over its legal profession.[13] In addition to these matters, a new consideration which affects the program in light of the Foundation's request that we make it make it mandatory is the Supreme Court's 1980 decision in Webb's Fabulous Pharmacies, Inc. v. Beckwith. That consideration is whether the earnings on clients' funds are "property" of the clients which constitutionally cannot be taken from them without compensation. The dictates of the fifth and fourteenth amendments to the United States Constitution, as articulated in Webb's, obviously cannot be ignored in framing any program involving a state-directed use of income generated on private funds. III Taking all factors into account, we adopt these concepts for a voluntary program designed to generate interest on lawyers' trust accounts, effective as of September 1 unless modified by intervening order the Court: (1) We now reaffirm the goals of our 1978 program, including the payment of interest under the program to the Florida Bar Foundation, Inc., and we reaffirm our commitment to their accomplishment with all possible speed. (2) We now reaffirm our initial decision that interest be made available under the program only on a voluntary basis that is, 394 on the basis of willing participation by attorneys and law firms, whether proprietorships, partnerships, or professional corporations. (3) We accede to the concerns of IRS with regard to a possible erosion of the "assignment of income" doctrine, and we direct the application of this program to all clients of electing, participating attorneys or firms whose funds on deposit are either nominal in amount or to be held for a short period of time.[14] (4) We reaffirm these cardinal principles concerning clients' funds held in trust accounts by attorneys and firms who elect NOT to participate in the program: (a) no earnings from the funds may be made available to the attorneys or firms;[15] (b) upon request of a client, earnings may be made available to the client whenever possible on deposited funds which are neither nominal in amount nor to be held for a short period of time;[16] provided however, inasmuch as traditional attorney-client relationships do not compel attorneys either to invest clients' funds or to advise clients to make their funds productive, no charge of ethical impropriety or other breach of professional conduct shall attend a failure to invest or to advise of the possibility of investing clients' funds of whatever amount or duration held;[17] (c) clients' funds which are nominal in amount or to be held for a short period of time, and for which individual income generation and allocation is not arranged with a financial institution, must be retained in a non-interest bearing, demand trust account; and (d) the determination of whether a client's funds are nominal in amount or to be held for a short period of time rests exclusively in the sound judgment of each attorney or law firm, just as it has from time immemorial, and no charge of ethical impropriety or other breach of professional conduct shall attend an attorney's exercise of judgment in that regard. (5) We reaffirm these principles concerning clients' funds which are held by attorneys and firms who elect TO participate in the program: (a) no earnings from the funds may be made available to the attorneys or firms; (b) upon request of a client, earnings may be made available to the client whenever possible on deposited funds which are neither nominal in amount nor to be held for a short period of time; provided however, inasmuch as traditional attorney-client relationships do not compel attorneys either to invest clients' funds or to advise clients to make their funds productive, no charge of ethical impropriety or other breach of professional conduct shall attend a failure to invest or to advise of the possibility of investing clients' funds of whatever amount or duration held;[18] (c) clients' funds which are nominal in amount or to be held for a short period of time shall be retained in an interest bearing checking or savings trust account, with the interest (net of any service charges or fees) made payable to the Florida Bar Foundation, Inc., and (d) the determination of whether a clients' funds are nominal in amount or to be held for a short period of time rests exclusively in the sound judgment of each attorney or law firm, and no charge of ethical impropriety or other breach of professional conduct shall attend an attorney's exercise of judgment in that regard. 395 (6) We reject the Foundation's proposals for mediating claims against attorneys.[19] (7) We note and approve the Bar's withdrawal of its proposed addition of a new paragraph (f) to Integration Rule 11.02(4).[20] (8) We remove as unnecessary under current banking laws those provisions of our original program which were designed to assure the immediate availability of clients' funds held at interest.[21] (9) We remove the notice requirement provisions of our original program.[22] (10) We now reaffirm the general, governing principles for implementation of a trust account program which are set forth in paragraphs 1 through 5 of section VIII of our original opinion.[23] IV We envision extensive participation by lawyers and law firms in this voluntary program. We have deliberately made the program simple and inexpensive by: (i) omitting any burdensome or costly accounting and record-keeping requirements; (ii) approving and continuing traditional attorney-client relationships and responsibilities; (iii) approving and continuing existing practical and ethical procedures concerning either the investments of clients' funds or investment advice, including the abolition of any requirement that clients be notified of the program; and (iv) providing that the Foundation shall absorb any financial institution's special charges or fees for participation in the program, by directing that interest payments shall be net of such charges and fees. With respect to constitutional concerns regarding the program, we see none that bars implementation. There are many distinguishing features between the program today implemented for the generation of interest on lawyers' trust accounts, and the legal requirements of state law which led the United States Supreme Court to invoke the fifth amendment "taking" clause for the protection of private property in its Webb's decision. The most relevant distinction, plainly, is the fact that no client is compelled to part with "property" by reason of a state directive, since the program creates income where there had been none before, and the income thus created would never benefit the client under any set of circumstances. We know from Webb's, 101 S.Ct. at 450, that [p]roperty interests ... are not created by the constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law... . 396 It follows that no client has a "property interest," in the constitutional sense, which is being taken from him by this program. Of course, another vast difference from Webb's is the voluntary nature of this program, for the program today approved is not abusive of the rights, interests or funds of clients. It is volitional not only from the perspective of attorneys but, in the most practical sense, from the will of clients, for no attorney or firm will participate in the program in the face of a strenuous objection from its clients. Nor should Florida attorneys jeopardize clients or client relations by dogmatically insisting on participation in the program in the face of announced opposition of a serious nature. We doubt that client concerns will prohibit broad participation in the program, however, since only clients with nominal funds or those to be held for short durations that is, clients who cannot themselves benefit from investing are in effect providing the pooled income source. In this sense of client acquiescence to program participation, any argument based on the "taking" aspect of Webb's is attenuated beyond tenability. We reiterate that notification to clients whose funds are nominal in amount or to be held for a short period of time is unnecessary for those attorneys and firms who choose to participate in the program. That is not to suggest that many will not want to notify their clients of their participation in the program in some fashion. Plainly, there is no impropriety in an attorney or firm advising all clients of their willingness to advance the administration of justice in Florida beyond their individual abilities and in conjunction with other public-spirited members of their profession. But participation in the program will involve no more than an affirmative desire to participate, coupled with the attorney's or firm's communication of that desire to an authorized financial institution. That communique should contain only an expression of the attorney's or firm's desire to participate in the program and, if the institution has not already received appropriate notification, advice regarding IRS' approval of the taxability of earned interest or dividends to the Foundation.[24] We urge the Bar to encourage participation in this program, and in furtherance of that end to assist Florida financial institutions and Florida attorneys with as much information and aid as may be necessary to establish and maintain simple and inexpensive compliance procedures. The foremost objective of our 1978 program was to enhance the capability of the legal profession to deliver legal services to the poor.[25] The broad delivery of legal services has long been a cherished commitment of this Court.[26] At a time in this nation when existing governmental resources for this purpose are drastically threatened,[27] our revisitation to this program provides a propitious occasion to reemphasize our commitment and to revalidate our methodology. We urge all Florida lawyers who are able to participate in the program to do so. We trust they will follow the example of the Foundation's leaders, whose perseverance and patience has marked the road toward an expanded access to justice throughout our state.[28] The following, revised provisions of Rule 11.04(d) are hereby adopted, effective on 397 September 1, 1981, unless modified by intervening order of this Court. It is so ordered. SUNDBERG, C.J., and OVERTON, ALDERMAN and McDONALD, JJ., concur. BOYD, J., dissents with an opinion. ADKINS, J., dissents. Integration Rule 11.02(4)(d) (strike-throughs indicate deleted material; underscoring indicates added material.) (d) Interest-bearing Trust Savings Accounts. A member of The Florida Bar who elects to create or maintain an interest-bearing trust a trust savings account for clients' funds which are nominal in amount or to be held for a short period of time shall comply with the following provisions: (i) A trust savings An interest-bearing trust account may be established with any bank or savings and loan association authorized by federal or state law to do business in Florida and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation. Funds in each interest-bearing trust account shall be subject to withdrawal upon request and without delay. (ii) Except as otherwise required by law, funds in each trust savings account shall be subject to withdrawal, or to transfer to a trust checking account, upon request and without delay. Any depository institution permitted by law to require advance notification (30 or 60 days) before allowing withdrawal of savings deposits is nonetheless eligible to act as a depository for trust savings accounts under this rule if it meets the requirements of paragraph (i) above, provided the institution has not acted to delay the withdrawal of deposited funds (other than for the clearance of deposited deposited funds or for good cause attributable to the circumstances of the particular depositor rather than the institution's financial needs or general policy) at any time during the past five years. An otherwise qualified institution which has not been in existence for five full years may serve as a trust savings account depository if it has met the requirements of this subsection throughout its existence. (iii) An institution shall cease to be eligible for the receipt of trust savings funds at such time as it fails to qualify under paragraphs (i) or (ii). Any lawyer or law firm maintaining a trust savings account against which immediate withdrawal rights are refused shall immediately notify the Florida Bar Foundation, Inc. of the name and address of the depository institution and the date of such refusal. (iv) If, pursuant to governing law or banking regulations, a depository institution requires notice in writing for an intended withdrawal not less than 30 days before such withdrawal is made, the lawyer or law firm may certify to The Florida Bar Foundation, Inc. that the client's funds detained as a result of the depository institution's notification requirement are needed immediately for the client's affairs. (A) Upon receiving such certification, the Foundation shall be authorized to advance to the certifying lawyer or law firm, from the interest earned on trust savings accounts, an amount of money necessary to meet the client's emergency needs subject, however, to limitations expressed in subparagraph (C). (B) Simultaneously with certification, the lawyer or law firm shall direct the depository institution in writing, with a copy to the Foundation, that upon the expiration of the notification period detained funds equal to the amount advanced by the Foundation shall be remitted directly to the Foundation. (C) The Board of Directors of the Foundation may adopt rules of procedure reasonably necessary to implement the authority provided in subparagraph (A) and to assure full reimbursement of sums advanced. Periodically the Board may set dollar limitations on the amount of money which may be advanced to meet the emergency needs of any client in the event a notification requirement is imposed by a depository institution. 398 (ii) (v) The rate of interest payable on any interest-bearing trust savings account shall not be less than the rate paid by the depository institution to regular, non-attorney savings depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minima, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm on some or all of deposited funds so long as there is no impairment of the right to withdraw or transfer principal immediately. (except as accounts generally may be subject to statutory notification requirements), even though interest may be sacrificed thereby. (iii) (vi) Lawyers or law firms electing to deposit client funds in a trust savings account shall direct the depository institution: (A) to remit interest or dividends, as the case may be, on the average monthly balance in the account, at least quarterly, to the Florida Bar Foundation, Inc.; (B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and (C) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, and the average account balance for each month of the period for which the report is made., and any remittances to the Foundation made during that period pursuant to subparagraph (iv) (B). (vii) Lawyers and law firms electing to deposit client funds in a trust savings account shall transmit to each client for whom trust funds are now held, and to each new client for whom funds are to be held, a copy of the notice reproduced below. The Florida Bar shall print and maintain a supply of this notice, and distribute copies without charge to those who may request them. The Bar's costs for printing and distribution shall be treated as a cost of administering the program, and shall be reimbursed to the Bar by the Foundation from interest earned on trust accounts. Important Notice to Clients For your protection, the Florida Supreme Court requires that all funds of a client which are held by an attorney must be deposited in a trust account separate from the attorney's, and must be kept available for immediate withdrawal. Because most clients' funds which come into the hands of attorneys are relatively small in amount or are to be held for relatively short periods of time, it is impractical for attorneys to establish a separate account for each client or to invest each client's funds to earn interest. For this reason client funds are held in a common trust checking account on which the depository bank pays no interest. Under a new program approved by the Florida Supreme Court, attorneys are now permitted to deposit clients' common trust funds in savings accounts. Due to the expense and complexity which would attend any attempt to compute or distribute the interest attributable to each client's funds, it is not feasible to pay to individual clients the earnings on their proportionate share of common trust savings accounts. Of course, no attorney is permitted to receive the earnings on a client's funds, either. Rather under the Supreme Court's new directive, the interest income from clients' deposits will be used to fund programs designed to benefit the general public. The goals of the Court's program are to improve the administration of justice in this state and to expand the delivery of legal services to the poor. We have sent you this explanation, at the direction of the Florida Supreme Court, to advise you that we are participating in the Court's new program and that the funds you have entrusted to us for your affairs (other than attorneys' fees) will be deposited in an interest bearing trust savings account unless you specifically give us written instructions to the contrary. A directive not to allow such use of your funds will not produce income for your. Your funds will simply be placed in a non-interest-bearing trust checking account until needed. BOYD, Justice, dissenting. I concurred in the opinion of the Court when we originally decided to attempt to fund the Florida Bar Foundation with interest earned on lawyers' trust accounts. In re Interest on Trust Accounts, 356 So. 2d 799 (Fla. 1978). In view of the difficulties that have delayed the implementation of the program, however, I have approached the instant rule-amendment proceeding with an open mind on the question whether "to implement this concept," to study it further, "or to scrap it." Opinion of the Court at 8. While the objective sought to 399 be achieved by the plan the funding of the Florida Bar Foundation is highly commendable, the serious unresolved problems brought to our attention by the many members of the Bar who participated in this proceeding compel me to withhold my approval. Unlike the majority, I find that a significant number of the responses we received did raise questions about the "assignment of income" problem. While not discussing the problem in the technical language of the tax practitioner, many lawyers expressed a strong, common-sense feeling that income earned from the investment of trust funds simply must be deemed in the first instance to be the property of the owners of the funds. Some lawyers expressed concern that the Internal Revenue Service will treat such income as taxable to the owners. Without a requirement for notice to clients of the investment of their funds, some attorneys are worried that such clients may be charged income they never knew they received. The majority opinion discusses the resolution of the problems of income assignment and taxability without documenting the statements made regarding the approval or assurances of the Internal Revenue Service. Unless we receive a definitive and binding ruling from the Service regarding the tax liability of the owners of trust funds, the attorneys entrusted with them, and the Foundation, it is unwise to implement the plan. The same common-sense considerations that prompt concern on the question of who will be deemed to earn the income generated by clients' funds leads some members of our Bar to question whether the channeling of the income to the Foundation without the actual consent of the trust fund owners violates the Fifth Amendment ban on deprivation of property without due process of law. I find merit to this argument. The majority's answer to the "taking" argument is inadequate. The Court says that the program creates income where there was none before, so no property is actually taken from the owners of the trust funds. But the majority also recognizes that when trust funds are kept in non-interest-bearing accounts, the beneficiaries are the depository banks. The point is that there is almost always income from properly invested capital. If a lawyer keeps a client's funds in an office safe or in a shoe box, there is no income. But once deposited with a financial institution, the money, within the limits of the applicable banking laws and regulations, is put to work earning income. If the depository institution pays no interest to the depositor, the institution benefits financially. But if interest is paid, the depositor receives income. The majority acknowledges that it may now be possible for a financial institution to provide interest allocation for multiple depositors in single trust accounts, even though the individual clients' funds may be nominal in amount or to be held for a short period of time. Yet the Court still insists that to direct the income to the Foundation without notice to and consent of the owners does not affect their property interests. This is inconsistent. I also believe that the lack of a requirement for actual notice to and consent of persons whose property will generate the income that is to fund the plan will create a conflict of interest between the Foundation and owners of the affected trust funds. Many protesting members of the Bar have argued that the lack of notice will also adversely affect the public image of the legal profession in Florida. The plan adopted by the Court today will put grave pressures on the attorney-client relationship. While it is recognized in a most general sense that lawyers should hold trust funds that are greater than nominal in amount or to be held for more than a short period of time in interest-bearing accounts, it is left to the unfettered and unguided discretion of attorneys to decide whether a particular client's property meets these criteria. Despite the attempt to exonerate in advance a lawyer's decision on this matter that may eventually be shown not to have been in the client's best interest, I predict that controversies and charges of ethical impropriety will arise from lawyers' participation in the program. I am sympathetic to the goals of the Florida Bar Foundation, and would be willing to concur in the result of the majority opinion were it not for the serious problems I have just discussed. But at the same time I have been deeply affected by the communications of protest we have received from many members of the Bar. I note in particular the letter of Mr. Jay H. Beckerman, who writes in part: Any attorney or client who chooses ... to contribute to the Florida Bar Foundation, Inc., has been and should be free to do so. That foundation or any other *400 form of a charity or eleemosynary entity or purpose should be required to attract donations on its merits, and not be enriched by a funneling scheme with which the coerced donors do not agree and did not choose of their own free will. With the plan for charitable use of interest on lawyers' trust accounts in its present posture, I must respectfully dissent. ORDER OF CLARIFICATION ENGLAND, Justice. In accordance with our request that technical difficulties in the trust account program be brought to our attention promptly, The Florida Bar has filed a petition requesting two changes to the Integration Rule by which the program is implemented. The Bar advises us that not all depository institutions utilize an average monthly balance method for computing interest or dividends, and it requests that we modify Rules 11.02(4)(d)(iii)(A) and (C) appropriately. The Bar's request is granted, and the operative language of Rule 11.02(4)(d)(iii) which will become effective on September 1, 1981, as amended on July 16, 1981, is further amended to read: (iii) (vi) Lawyers or law firms electing to deposit client funds in a trust savings account shall direct the depository institution: (A) to remit interest or dividends, as the case may be, on the average monthly balance in the account or as otherwise computed in accordance with an institution's standard accounting practice, at least quarterly, to the Florida Bar Foundation, Inc.; (B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and (C) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, and the average account balance for each month of the period for which the report is made. It is so ordered. SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur. NOTES [1] In re Interest on Trust Accounts, 356 So. 2d 799 (Fla. 1978). [2] Matter of Interest on Trust Accounts, 372 So. 2d 67 (Fla. 1979). [3] In the Matter of Interest on Trust Accounts, 396 So. 2d 719 (Fla. 1981). [4] Over sixty identical "form" letters expressing dissatisfaction with the program were filed from attorneys in the Dade County area. Most of these mailings appear to originate from small or one-man law firms. Not all communiques were adverse to the Foundation's proposals, however. Support for the changes come from four Florida law schools and from various public interest law committees and organizations. [5] See 356 So.2d at 802 & n. 20, 804. [6] Rev.Rul. 479, 1976-2 C.B. 20 (members of medical staff of hospital who assign right to receive income from teaching cases to research and educational foundation as a condition precedent to being member of staff not taxable on fees for treating teaching cases because they have "no control over the fees charged, or the collection and disbursement of such fees."); Rev.Rul. 274, 1969-1 C.B. 36 (faculty physicians of a medical school who provide medical services to indigent patients at a hospital are not required to include in their gross income fees collected and remitted to the university in accordance with university policy and agreement where "[u]nder this arrangement, no individual physician would ever have control of the funds collected."). [7] Under the Court's original program, of course, clients could prevent the realization of income but they could not benefit from their action. No income would be earned for the Foundation if an individual client took affirmative steps to notify his attorney that he did not want income paid to the Foundation. In that case, the funds on deposit with the attorney would be placed in a non-interest bearing checking account from which no interest income would be generated. The client's choice, consequently, was a negative one, to prevent the creation of income, in the absence of which the Foundation would benefit. Tax counsel argued unsuccessfully to IRS that because clients with funds on deposit could in no way "realize" income in the tax sense, there was no transfer or shift of income among taxpayers, except in the conceptual sense that "income" would inhere on unearning deposits for the benefit of depository commercial banks. [8] Many comments reflect a complete misunderstanding of the program's operation, the role of attorneys in its implementation, or the federal tax implications and tax return requirements of the program. In light of our action today, there is no need to correct those misapprehensions here. [9] U.S.Const. amend. V. [10] The notion of generating interest on lawyers' trust accounts in Florida began in 1971. In re Interest on Trust Accounts, 356 So. 2d 799, 800 (Fla. 1978). [11] Disagreement with the general wisdom of improving the administration of justice with the earnings on clients' funds, which runs through many of the adverse filings, has already been considered and resolved in our 1978 decision. Id. at 805-07. We refuse the invitation to turn back. [12] 356 So.2d at 807 n. 44. [13] Id. at 803-04 nn. 28-30. [14] We have knowingly added the words "to be" as part of the temporal standard, rather than continue the former standard of time shortness in fact. The significance lies in allowing attorneys to test for shortness when the funds are received, and not require a hindsight reexamination based on duration in fact. We cannot require attorneys to be seers, and we see no value in allowing the program or any attorney to be jeopardized by an ex post facto audit. [15] 356 So.2d at 800-01. [16] Id. at 802 n. 20. [17] Of course, a failure to comply with a client's investment directives may give rise to a legal liability for damages. [18] See note 17, above. [19] The rejected proposal was reproduced as new paragraphs (vii) and (viii) to Integration Rule 11.02(4)(d) in In the Matter of Interest on Trust Accounts, 396 So. 2d 719, 722 (Fla. 1981). [20] This proposal was also reproduced in the Court's opinion soliciting commentary. Id. [21] Fla. Bar Integr.Rule, art. XI, Rule 11.02(4)(d)(ii)-(iv). [22] Fla. Bar Integr.Rule, art. XI, Rule 11.02(4)(d)(vii). [23] Those principles, as they appear in 356 So.2d at 807, are: 1. Implementation will be effected through the Integration Rule rather than through by-laws alone; 2. Interest earned on trust accounts will be remitted to the Foundation rather than the Bar, at least quarterly, for distribution among the agencies which will provide approved services; 3. Clients' trust funds may be invested in savings accounts of qualified financial institutions, but not in U.S. government or other securities; 4. No filing of any sort with the Bar will be required other than a certificate of annual compliance with minimum trust account procedures, and no accounting and record-keeping requirements shall be imposed on plan participants other than those minimum requirements expressed in the new rules; 5. In lieu of special name designations for attorney trust accounts, all accounts in which clients' funds are deposited will, as they are now, simply be identified as "trust accounts." To avoid unforeseeable problems of rigidity, we authorize the Foundation to approve periodic remittances less frequently than quarterly from any participating financial institution which cannot feasibly, in accordance with its standard banking and accounting practices, remit interest payments to the Foundation at least quarterly. [24] IRS approval is anticipated promptly upon our readoption of this program. The Bar and the Foundation can promptly communicate the details of approval, together with the Foundation's tax identification number, to Florida associations representing appropriate financial institutions. [25] 356 So.2d at 811. [26] Our most recent exhortation on the subject appears in The Florida Bar v. Furman, 376 So. 2d 378, 381-82 (Fla. 1979). [27] For example, continued funding for the Legal Services Corporation is a matter of intense debate in Washington, D.C. [28] A special note of appreciation is in order for the efforts of Henry Zapruder, of the Washington law firm of Cohen and Uretz, whose skill and diligence as tax counsel to the Foundation has proved invaluable to the Foundation, to the Court, and to the citizens of Florida.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3350508/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This is an administrative appeal under UAPA C.G.S. 4-166, et seq. CT Page 3048 Plaintiff is the son of an incompetent person appealing the decision of a Fair Hearing Officer designated by the Commissioner of Income Maintenance under C.G.S. 17-2a. The question at issue is whether the sum of $800.00 per month which is paid as alimony under a Superior Court decree can lawfully be deducted from his father's income for Title XIX purposes. Plaintiff's parents were married in 1947. In 1983 his father was diagnosed as having Alzheimer's disease which he still has and for which, with other infirmities of mind and body, he has been institutionalized. In November, 1989, his wife instituted dissolution of marriage proceedings in Superior Court. In December, 1989, plaintiff was appointed conservator by the probate court and appeared as conservator for his father. The court dissolved the marriage and adjudged a separation agreement between the parties as "fair and equitable" and incorporated it by reference in the judgment. (C.G.S. 46b-66.) It provided "as alimony" for $9,600.00 a year to be paid by the incompetent defendant at the rate of $800.00 a month. The decree also provided that neither party can modify the terms of the agreement, and the amount of alimony, including its duration, shall not be modifiable. It also provided that the parties had previously divided their assets in a mutually satisfactory manner and the defendant incompetent had irrevocable assigned to his wife a 60% interest in his Exxon pension plan. A qualified domestic relations order (QDRO) was executed and ordered by the court on July 9, 1991. The separation agreement was dated January 20, 1990 and on February 20, 1990, plaintiff as conservator for his father, Patricia Berlin, guardian ad litem for the plaintiff, and Elinor Heck signed a separation agreement awarding a monthly alimony payment of $800.00 and a 60% interest in plaintiff's Exxon pension plan to Elinor Heck. The Exxon pension is a monthly annuity that plaintiff received in the sum of $1,192.33, sixty per cent of which is $715.40. This provision gave Elinor Heck a monthly payment of $1,515.40 out of a total of plaintiff's monthly income of $1,900.00, which consisted of $798.60 gross social security income and $1,192.33 gross Exxon pension. This agreement, heavily weighted in the wife's favor, was incorporated by the court in its QDRO on the representation by plaintiff's representative that he expected plaintiff's medical needs to be taken care of by the State under the medical assistance program. The court reserved jurisdiction to approve and modify the QDRO issued on July 9, 1990. On May 17, 1990, plaintiff, through his son and conservator, applied to the Department for medical assistance when he was a patient at the VA hospital in West Haven where he CT Page 3049 had resided since December 14, 1989. The Department denied the application partly because plaintiff's income for the first six months of the coverage period exceeded the allowable income limit and partly because plaintiff's assets after the first six months exceeded the allowable asset limit. Plaintiff through his conservator then requested a fair hearing claiming the Department was treating income as available to him when it was not available to him. The hearing was ultimately held, after being rescheduled at plaintiff's request, on January 9, 1991. The Department calculated post-eligibility deductions by refusing to allow the $800.00 monthly alimony plaintiff paid to the defendant under the QDRO because the amount was available to the plaintiff who had directly received the $800.00 and no deduction of such payment was provided for in the Uniform Policy Manual (UPM). On October 12, 1990, plaintiff received a retroactive VA check for $8,118.00 and was granted a monthly VA benefit of $902.00. On December 14, 1989, plaintiff was admitted to a VA hospital with pneumonia and was not expected to survive his illness. In early 1990 his health improved and the hospital declared he needed custodial care. On June 22, 1990, he was placed in a long-term care facility and the VA paid for three months of his care there. Meantime, plaintiff's son and conservator was paying to his mother Elinor Heck $800.00 monthly alimony pursuant to the QDRO and decree under a threat of prosecution for contempt of court by plaintiff's attorney. Plaintiff's attorney contended that (a) income diverted to meet the needs of a non-member of the assistance unit, viz., the plaintiff's ex-spouse, and (b) the excluded income claimed was court ordered and (c) the income was inaccessible to plaintiff because of the court order, and on each of these grounds the income was not available to pay for his debt to the convalescent facility. The Fair Hearing Officer (FHO) found the dates and sequence of events as set forth above. He also found (a) that plaintiff suffers from Alzheimer's disease:(b) the income received directly by plaintiff is subject to post-eligibility deductions for residents of long-term care facilities under UPM 5035.20, (c) the $800.00 alimony payment to plaintiff's ex-spouse cannot be deducted from the unearned income received by the plaintiff as part of his post-eligibility deductions as neither departmental policy nor federal regulation allows for consideration of alimony payments as deductible expense. II The scope of the Court's review is very limited under CT Page 30504-183 (i) and (j). Facts cannot be retried and credibility of witnesses is in the province of the administrative agency. Under UPM 5005(A), "available income" is considered available if it is (1) received directly by the assistance unit or (2) received by someone else on behalf of the assistance unit and the unit fails to prove it is inaccessible or (3) deemed by the Department to benefit the assistance unit. The FHO found plaintiff's income consisted of direct Social Security benefits, VA benefits and pension benefits from an annuity plan. UPM 5015.10 specifies what specific types of income are excludable income for applicants for medical assistance under the MAABD program. Nowhere are Social Security, VA or pension payments mentioned. Also under UPM 5035.20, an exhaustive list of allowable monthly deductions does not include alimony payments made by plaintiff for his medical assistance in a long-term care facility. Under this section the assistance recipient must contribute a portion of his income toward the cost of his care. C.G.S. 17-134 (a) and (e) provide that the UPM on the Connecticut Assistance Program must be promulgated in strict compliance with Federal statutes and regulations governing states' participation in the federal Medicaid program. Thus the Connecticut legislature recognized the primacy of the federal law. Clark v. Commissioner of Income Maintenance, 209 Conn. 390,396, 397. It is therefore futile for plaintiff to argue that federal law does not apply. See 42 U.S.C. § 1396 (a)(17)(B). Plaintiff cites Department of Health Services v. Secretary of Health Human Services, 823 F.2d 323, [823 F.2d 323], (9th Circ.) and Emerson v. Wynia, 754 F. Sup. 705 (D.C.Mn.) to support his interpretation but Clark, though urged to follow these federal citations, declined to do, though they were brought to the Court's attention. Instead it ruled that42 C.F.R. § 435.832 was controlling. See Clark at 405, n. 16.).42 C.F.R. § 435.832 (c) specifically lists only the following four amounts that any agency may deduct from a needy applicant's total income: (1) a personal needs allowance: (2) an at home spousal allowance: (3) an at home family allowance: and (4) medical and remedial expenses not paid by third parties. No deduction is permitted for alimony payments to an ex-spouse. Therefore a court order for an ex-spouse's alimony cannot be deducted. Clark, at 397. Clark, footnote 8, p. 397, points out the Medicare Catastrophic Coverage Act (MCCA) of 1988, codified at 42 U.S.C. § 1396r-5, was enacted to comprehensively treat the income of institutionalized spouses, effective October 1, 1989. MCCA allowed community property states to apply their community CT Page 3051 property laws in determining income and assets of institutional spouses. It established a uniform national method for counting income and liberalized pre-existing law regarding deductions from the institutionalized spouse's income for the support of a community spouse. In determining the income of an institutionalized spouse or community spouse for purposes of post-eligibility determination, if payment of income is made solely in the name of the institutionalized spouse or the community spouse, "the income shall be considered available only to that respective spouse." See 42 U.S.C. § 1396r-5 (b)(2)(A)(1). Support obligations toward a community spouse are not considered. (Moreover, in the instant case, plaintiff is not married (because of the decree of dissolution) and does not fall within the definition of an "institutionalized spouse," nor does his ex-wife fall within the definition of a "community spouse.") As Clark, supra, states at 405, "the legislative concern (is) that the medicaid program would be at fiscal risk if applicants were permitted to divert income in ways not sanctioned by law." Unfortunately, sympathy for those with minimal resources for medical care is an insufficient basis for approving a recovery based on a theory inconsistent with law. See Clark, supra, 406. III The FHO's omission to explain why plaintiff's alimony obligation was not inaccessible under UPM 5005(B) is not a valid ground of appeal because that regulation applies to inaccessible income and an alimony obligation is an expense rather than income. As such expense it must qualify for deductibility under UPM 5035.20. The FHO found that it did not. In response to plaintiff's contention that the Court should "look to the realities of the situation," the defendant replies that the reality of the situation discloses a plaintiff's son and conservator entering into a lopsided separation agreement that ignored his father's medical needs. He then persuaded the Court to adopt that agreement on the assertion and assumption that his father's medical needs would be taken care of by the State without ascertaining first the Medicaid law regarding eligibility. It may be because of the misapprehension of what such law contained that plaintiff may be able to seek some adjustment of the amount of alimony support ordered under the dissolution decree, but such an adjustment cannot be achieved in this litigation through an interpretation of federal and state law. The Court must therefore and does hereby dismiss this appeal. THE COURT CT Page 3052 BY GEORGE A. SADEN STATE TRIAL REFEREE	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3349280/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS TO SUPPRESS In these cases, the defendants, who are charged with narcotics violations,1 seek to suppress the fruits of a search of their home. The search was conducted by officers assigned to the Statewide Narcotics Task Force under the authority of a warrant issued on August 22, 1989. The applicants for the warrant, the affiants on the underlying affidavit, were Trooper Norcia and Detective Pompano. The defendants' claim is that the warrant was void because its description of the premises to be searched failed to meet constitutional standards. At an evidentiary hearing, the court received testimony from the defendants, Trooper Norcia, Detective Pompano and Inspector Solomita of the Waterbury State's Attorney's office. Also documentary evidence was submitted by both the defendants and the State. Presented by the defendants were a letter and a copy of an assessment CT Page 151 card from the Naugatuck assessor's office, a map of the Platts Mill Road area, and copies of all the warrant papers. Submitted by the State were a map of Naugatuck area streets and a videotape of the Platts Mill Road area that Inspector Solomita had prepared. I From the testimonial and documentary evidence, the court finds that the facts set forth below were established. On August 31, 1989, when the warrant was executed, the defendants resided at 101 Platts Mill Road in Naugatuck and had lived there for several years. Their house is a distinctive one in the neighborhood, being a large two-story victorian structure that at one time had been used as a convalescent home. A distinguishing feature of the house is a boarded up door on the front facade of the second floor with no outside stairway. The house was used as a one-family dwelling and occupied by Davino, DeBarros and Davino's children. In front of the house was a mailbox with the defendants' names and the number 101 on it. The house lot extended from Platts Mill Road to Radnor Avenue. As positioned on the lot, the house was approximately 60-75 feet from Platts Mill Road and approximately 150 feet from Radnor Avenue. On the east side of the house was a paved driveway running the length of the lot and providing ingress from and egress to both streets. The Radnor Avenue end of the driveway was erected between utility poles #522 and #523. The front door on the first floor of the house was kept locked and not used by the occupants. One of Davino's children occupied the front room on the first floor as a bedroom. Entry into the house was by a door on the east side adjacent to the driveway. Prior to August 10, 1989, Trooper Norcia had conducted surveillances of the house on at least six occasions. On some of these occasions, Trooper Norcia was accompanied by Officer Murillo. Detective Pompano had also participated in surveillances and had seen the mailbox in front of the house. Pompano resided in Naugatuck about one mile from Platts Mill Road. In June, 1981, Pompano had been inside the house when he brought his brother there for a party. At the time, the house was occupied by a family named Elderkin. The documentation sent by the Naugatuck assessor's office on November 30, 1989, and placed in evidence by the defendants, lists Robert C. Elderkin as the owner of the property. On August 10, 1989, there was a "controlled buy" at the house. The informant entered the property from Radnor Avenue. The controlled buy was surveilled by Trooper Norcia and Officer Murillo. Before obtaining the warrant, Detective Pompano performed a CT Page 152 security check. He made inquiry of the Naugatuck assessor's office, the Southern New England Telephone Company and the post office. He learned the name of the owner and that the telephone was listed in the name of Michelena Davino. In preparing the papers, Trooper Norcia wrote things out on a yellow legal pad. Then she and Detective Pompano "split" the typing. He typed pages 1 and 5 which are the application for the warrant and the warrant itself. In both instances, the property was described as follows: The residence at #121 Platts Mill Road, Naugatuck, Connecticut, described as being a two story multi family dwelling with only occupants living on the first floor. The second floor of this dwelling is currently being used for storage by the occupants on the first floor and is accessible at all times to the first floor occupants. The house is beige in color with brown trim and is located on the east side of Platts Mill Road with a paved driveway approximately seventy-five feet north of Willow Lane. This house is set back approximately one hundred fifty feet off the roadway with the driveway located between utility poles #522 #523. In the five paragraph affidavit which was typed by Trooper Norcia, the premises to be searched are referred to as both 101 Platts Mill Road and 121 Platts Mill Road. Paragraph 2 of the affidavit recites in part that: Michelena Davino resides at #101 Platts Mill Road in Naugatuck, Connecticut with a black male known as "Pete". . . . The informant further stated that Michelena Davino and "Pete" have use of the second floor of their residence at #121 Platts Mill Road in Naugatuck, Connecticut. . . . Paragraph 3, describing Pompano's security check, and Paragraph 4, describing the controlled buy, however, identify the property by its correct address 101 Platts Mill Road. Both affiants testified that "121" was a typographical error. There was no address known as 121 Platts Mill Road. After the warrant was signed, Trooper Norcia led the search party. Officer Murillo and Detective Pompano followed in other cars. On arriving at the premises, Trooper Norcia went to the same door of the house that she had seen the informant use. In the Statewide Narcotics Task Force, the officers who obtain search warrants always execute them. There are also disputes concerning the colors of the house and CT Page 153 the use of utility poles #522 and #523 as proper locators. The application, affidavit and warrant describe the house as beige with brown trim. The defendants testified that the house was light yellow with black trim and needed a painting. Inspector Solomita walked through the area on February 3, 1990, carrying a videocamera. In the film, the colors are dull and from watching the film it cannot be determined whether the colors were as testified to by the defendants or as stated in the warrant, the application or the underlying affidavit. The heretofore mentioned two utility poles as locators are included in both the application and the warrant. Neither document places the poles on Radnor Avenue. What the warrant (and the application) does recite is that the house has "a paved driveway approximately seventy-five feet north of Willow Lane [and that] this house is set back approximately one hundred fifty feet off the roadway located between utility poles #522 and #523" Willow Lane intersects with Radnor Avenue and does not go through to Platts Mill Road. On February 3, 1990, when Inspector Solomita took his walk, he had a copy of the search warrant papers. Inspector Solomita went to the intersection of Willow Lane and Radnor Avenue and from there he had no difficulty in locating the two poles. The fourth amendment to the Constitution of the United States provides in part that "no warrants shall issue, but. . . particularly describing the place to be searched, and the persons or things to be seized." Likewise, Articles first seven of the Constitution of Connecticut States that "no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be." In fourth amendment jurisprudence, the particularity requirement as to place is governed by the following statement from Steele v. United States No. 1, 267 U.S. 498, 45 S.Ct. 414,69 L.Ed. 109 (1925).2 "It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." 267 U.S. at 503. And neither the State nor the defendants have offered any suggestion of differing treatment for the comparable language in the Connecticut constitution. What the statement from Steele v. United States, supra, means is that an error in description is not automatically fatal. United States v. Prout, 526 F.2d 380, 387 (5th Cir.) cert. denied 429 U.S. 840,97 S.Ct. 114, 50 L.Ed.2d 109 (1976). Rather, the test for determining the sufficiency of the description of the place to be searched is whether the place is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched. United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979). In this case, the fact that there was no 121 Platts Mill Road CT Page 154 effectively forecloses that probability. Three purposes have been identified as standing behind the constitutional requirement of particularity in description: (1) to prevent general searches; (2) to prevent the seizure of objects in the mistaken belief that they are within the scope of the issuing magistrate's order; and (3) to prevent the issuance of warrants on vague or doubtful factual bases. State v. Santiago, 8 Conn. App. 290,304 (1986). Viewing the particularity requirement in the light of its three purposes has led courts to recognize an exception to the general rule that the warrant itself must describe with sufficient particularity the place to be searched and the items to be seized. If the description in the warrant is inadequate, a reviewing court may look to the description appearing in the warrant application or affidavit if it is clear that the executing officers were in a position to be aided by these documents, as where they were attached to the warrant and incorporated therein by reference. Id. at 304-05. In the present case, the warrant certainly incorporates by reference the contents of the application and affidavit. The warrant begins by referring to "the foregoing application and affidavit." The warrant then continues with "[f]rom said affidavit, the undersigned finds that there is probable cause . . . to believe that the property described . . . is within or upon . . . the place . . . described in the foregoing affidavit and application." Problems, however, exist with applying this exception to the general rule. From a reading of the affidavit, it is unclear whether "101" or "121" was the correct address for the parties' residence. The application, as well as the warrant, mentions only the incorrect address of 121 Platts Mill Road. Further, it is doubtful that the application and affidavit were attached to the warrant when it was executed. In this regard, the evidence is that the issuing judge, upon application by the affiants, dispensed with the requirement that a copy of the affidavit be given to the occupants within forty-eight hours of the search. See General Statutes Section 54-33c. If the two addresses in the affidavit were the only factors for consideration, the court would grant the defendants' motions, but there is more. The affidavit also recites that during the week of August 10, 1989, there was a controlled buy at 101 Platts Mill Road under the surveillance of Trooper Norcia. Testimony established other surveillances by Norcia, Pompano and Murillo. In short, officers who had watched the house at 101 Platts Mill Road were the affiants and the executors of the warrant. "Courts have taken into account facts known by the executing officer but not specifically stated in the affidavit as where the executing officer was also the affiant and the affidavit shows that the affiant had previously been to the premises intended to be covered by the warrant." 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2d Ed. 1987) Section 4.5(a). CT Page 155 The statement from Steele v. United States, supra, has been described as embodying a rule of practical accuracy rather than technical nicety. United States v. Gomez, 42 F.R.D. 347 (S.D. N.Y. 1967). Where an incorrect street address has appeared in a warrant, courts have upheld searches based on the familiarity of the executing officers with the intended location of the search. See e.g. United States v. Prout, supra at 388; State v. Walters, 230 Neb. 539,432 N.W.2d 528, 534 (1988); Gumina v. State, 166 Ga. App. 592,305 S.E.2d 37, 38-39 (1983); State v. Daniels,217 A.2d 610, 615 (N.J. 1966); United States v. Pisano,191 F. Sup. 861 (S.D. N.Y. 1961). Three factors considered to be important by United States v. Gitcho, supra at 371-72, are all present here — the incorrect address describes a place not in existence; the other parts of the description in the affidavit which are correct, limit the place to be searched to the defendants' residence; and, most important, the premises intended to be searched had previously been surveilled by the officers who executed the warrant. Accordingly, the motions to suppress are denied. BARNETT, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3349283/	The finding of facts may be summarized as follows: On December 3, 1968, James H. Nilsson, the John Romano Construction Co., and the defendant executed a bond for deed providing for the sale to the defendant of ten acres Page 641 of land located at the easterly intersection of route 5 and North Road in the town of East Windsor. The bond for deed contained clauses providing: (1) that the buyer would not use the premises as a retail shopping center and that the sellers would not permit a restaurant on other lands of the sellers for a ten-year period, which provision was to survive the conveyance; (2) that the sellers would deliver a good and sufficient warranty deed free and clear of all encumbrances to the buyer; and (3) that the agreement would be binding on the parties, their heirs, administrators, successors and assigns. This bond for deed was recorded in the East Windsor land records on December 20, 1968. On April 17, 1969, the defendant purchased the property. On January 21, 1972, the plaintiff and the defendant executed an agreement wherein the plaintiff, for a consideration of $3000, was given a ninety-day option to purchase the ten acres of land from the defendant for the price of $200,000. The option agreement contained a clause providing that the plaintiff could exercise his option to purchase the real estate within a ninety-day period, and the defendant agreed to convey the real estate "by good and sufficient warranty deed free and clear of all encumbrances, according to the Connecticut Bar Association Standards of Title, as of record appear, except building, building line, zoning restrictions, and such a state of facts as an actual inspection or accurate survey would show." At the time the plaintiff executed the option agreement, he was not aware of any restrictions on the use of the premises. About March 21, 1972, after a title search, the attorney for the plaintiff requested a release of the restriction on the use of the property as a retail shopping center. The attorney for the defendant made it clear that he would not obtain a release of the use restriction and thereafter did not even Page 642 attempt to obtain one. On or about March 22, 1972, the plaintiff, by virtue of personal funds and a bank commitment, had the ability to pay the entire purchase price, but he did not exercise his option, in part, owing to the use restriction on the property. The option agreement expired on April 21, 1972. The defendant refused to return the $3000 consideration after a request for it had been made by the plaintiff. The defendant has appealed from the judgment for the plaintiff assigning numerous claims of error. Those which have not been briefed are considered abandoned. State v. Crawford, 172 Conn. 65, 66; Gebrian v. Bristol Redevelopment Agency, 171 Conn. 565,570. In his brief, the defendant claims that the court erred (1) in finding facts which were inconsistent and in using language of doubtful meaning; (2) in rendering judgment for the plaintiff when the conclusions reached by the court are not supported by the subordinate facts; and (3) in failing to adopt the defendant's claims of law. We have examined these claims and conclude that they lack merit, that the finding of subordinate facts amply supports the conclusions reached and that no erroneous rule of law was applied by the trial court in rendering judgment for the plaintiff. The defendant claims inconsistencies between the trial court's finding and its memorandum of decision. The memorandum of decision establishes no facts. Wagner v. Zoning Board of Appeals,153 Conn. 713, 714. "Where a conflict exists between a memorandum of decision and a finding, the cause is to be decided upon the facts found, rather than upon those appearing in the memorandum of decision." Laske v. Hartford, 172 Conn. 515, 517. The plaintiff contends that the provision contained in the recorded bond for deed, that the premises shall not be used as a retail shopping Page 643 center, is a restrictive covenant running with the land which must be released. On the other hand, the defendant contends that this restrictive provision is a personal covenant not running with the land and need not be released. "Whether a promise with respect to the use of land is a covenant real as distinguished from a personal covenant depends upon the intent of the parties to the promise, to be determined in the light of the attendant circumstances. If it touches the land involved to the extent that it materially affects the value of that land, it is generally to be interpreted as a covenant which runs with the land." Carlson v. Libby, 137 Conn. 362, 367. To determine whether the restrictive covenant runs with the land, we seek the intention of the parties. The bond for deed recites that the "agreement shall be binding on the parties hereto, their heirs, administrators, successors and assigns." It further recites that "this provision shall survive the conveyance." The insertion of these two provisions in the bond for deed, in view of the language used, indicates that it was the intention of the parties that the restrictive covenant run with the land. The court found that the purpose of the restrictive language in the bond for deed was to protect the viability of the Geisler shopping center approximately one mile from the subject property. Geisler was Nilsson's father-in-law. Both Nilsson and Geisler had a proprietary interest in the Geisler shopping center. The owners of this center were fearful that the defendant would develop a retail shopping center in competition with them. The circumstances surrounding the incorporation of the restrictive covenant in the bond for deed, which circumstances are an important element in determining the nature of the restriction, support the position that it was intended that the restriction run with the land. Page 644 "A covenant in a deed which restrains the use to which the land may be put in the future as well as in the present and which might very likely affect its value, touches and concerns the land." Dick v. Sears-Roebuck Co., 115 Conn. 122, 125. III the matter at bar, the restrictive use materially affects the value of the land. We conclude that the intent of the parties and the nature, form and language of the restrictive covenant establish that it is a covenant real and runs with the land. The trial court found that the defendant made it clear that he would not obtain a release of the restriction and that he did not even attempt to obtain one. A release of the restriction was necessary to furnish a title "free and clear of all encumbrances" as called for in the option agreement. By refusing to obtain the release, the defendant voluntarily put it out of his power to furnish the plaintiff the deed called for in the option agreement. The plaintiff would have been bound to tender the balance of the purchase money, as a condition precedent, if the defendant had not waived such a tender by his absolute refusal to do anything more regarding the restriction on the title. Under the circumstances, a tender would have been useless. Nothe v. Nomer, 54 Conn. 326,329. Although the defendant claims that a different rule should apply to an option contract as compared to a contract of sale, the weight of authority indicates to the contrary. If the option requires the conveyance of a good title and the title is defective or subject to an encumbrance which it is the duty of the owner to remove, the holder of the option may rescind and recover the consideration paid for the option. 77 Am.Jur.2d, Vendor and Purchaser, 47. An outright refusal by the owner to convey *Page 645 land in accordance with the terms of the option, which has been communicated to the option bidder before expiration of the option period, makes it unnecessary for the holder to exercise the option in order to preserve his rights. Behrman v. Max,102 Fla. 1094, 1099; Fritts v. Gerukos, 273 N.C. 116,120. The plaintiff was excused from tendering full performance on his part as a condition to recovery. Lunde v. Minch, 105 Conn. 657, 663. The law does not require a party to undertake a futile act. Soldate v. McNamara, 94 Conn. 589, 591. A final claim of the defendant is that as the warranty deed to the defendant contained no use restrictions, the restriction contained in the bond for deed was extinguished. The defendant relies on the presumption that a grantor conveys his land free from any reservations except such as he has expressed in his own grant. 23 Am.Jur.2d, Deeds, 270. The presumption is, however, rebuttable and in light of the insertion in the bond for deed that the use restriction recited therein "shall survive the conveyance" of the land, the trial court was justified in finding that the presumption was rebutted. There is no error. In this opinion PARSKEY and D. SHEA, Js., concurred.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3349288/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION On February 5, 1993, the plaintiffs (Douglas B. Fournier and Michael P. Solenski) were the owners of a parcel of land (the plaintiffs' land) in the town of Enfield. On that day, the defendant (Enfield), exercising powers granted by Conn. Gen. Stat. sections 48-6 and 48-12, acquired by condemnation interests in the following three portions of the plaintiffs' land: (1) a fee-simple interest in one portion, hereinafter designated as Portion FS; (2) a permanent drainage-easement interest in another portion, hereinafter designated as Portion PD; and (3) a temporary right-to-grade-easement interest in a third portion, hereinafter designated as Portion R, which is the portion of the plaintiffs' land remaining after Portion FS was acquired. Before Enfield acquired the three interests, the plaintiffs' land consisted of about 5.21 acres at the intersection of the east side of Elm Street with the north side of Moody Road; it was vacant land except for a small (approximately 627 square feet) single-family residence on Portion R; it had 635.49 feet of frontage along Moody Road and 220 feet of frontage along Elm Street; it was encumbered by a 33-foot-wide gas pipeline easement and a 25-foot-wide sanitary-sewer easement; and it was traversed by a brook (Freshwater Brook). About 66% of the plaintiffs' land was within the 100-year flood plain, and about 50% was inland-wetlands soils and watercourses subject to inland-wetlands regulations. The gas pipeline easement was located almost entirely within the wetland and flood plain area, and the sanitary-sewer easement was located entirely within the wetlands and flood plain area. All of the plaintiffs' land was in an I-1 Industrial Zone. In that zone, permitted uses include the use of the land as sites for: offices; a wide variety of industrial activities; CT Page 7781 laboratories; and warehouses. The permitted uses were the highest and best uses for the land. The following public utility services were available to the land: electricity, telephone, water, sanitary sewer and gas. Under the regulations relating to inland wetlands and flood plain areas, approximately 75% of the plaintiffs' land was subject to a requirement that permits be obtained from the Enfield Wetlands Agency before activities could be undertaken in the wetlands area and, also, that permits or approvals, or both, be obtained from the Enfield Planning and zoning Commission, the Wetlands Agency and the U.S. Army Corps of Engineers before any of the flood plain could be filled. I Portion FS consists of 1.885 acres; the condemnation of that portion reduces the size of the plaintiffs' land from 5.21 acres to 3.325 acres and reduces the length of its frontage from 885 front feet to 653 front feet. This portion is irregular in shape, varying in width from 6.26 feet at the northeasterly corner to 148.79 feet at the southwesterly corner. Exhibit A, which is hereby incorporated into and made part of this Memorandum of Decision, shows the shape and dimensions of Portion FS. Exhibit A also shows the location of Portion PD at the south-western corner of Portion R. Portion PD consists of .175 acres and is encumbered by a continuation of the same 25-foot-wide sanitary-sewer easement that Portion FS was encumbered by. The right-to-grade-easement interest over Portion R is a temporary interest, and the plaintiffs make no claim regarding that interest, Similarly, the plaintiffs make no claim regarding the residence; a set-back variance, necessitated by the reduced area between the residence and the new frontage line, was obtained by Enfield, in accordance with the provisions of Conn. Gen. Stat. sec. 48-24. The highest and best use of the plaintiffs' remaining land continues to be the uses permitted in the I-1 Industrial Zone, and the remaining land continues to be in that zone. The remaining land also continues to have available the same public utility services that were available before the condemnation. II By an appeal filed on April 5, 1993, the plaintiffs appealed from a Statement of Compensation that Enfield had filed on February 5, 1993, regarding Enfield's condemnation of the interests in Portion FS, Portion PD CT Page 7782 and Portion R. That Statement of Compensation determined that $13,700 is the amount of damages sustained by the plaintiffs as a result of Enfield's condemnation of those interests. In their appeal, the plaintiffs allege that they are "aggrieved" by the Statement of Compensation and apply for a review, by the court, of that Statement. The appeal has been referred to me, as a state trial referee, for a hearing and judgment. In the course of the hearing, the court received a report from the appraiser for the plaintiffs (Exhibit B) and two reports from the appraiser for Enfield (Exhibit 1 and Exhibit C) and heard testimony from the appraisers and one of the plaintiffs. The court also had the benefit of viewing the premises and of the briefs submitted by the parties. Annexed to the brief of Enfield is a revision of pages 30 and 37 of Exhibit 1. III "`The owner of land taken by condemnation is entitled to be paid just compensation. Conn. Const. art. I 11. If the taking is partial, the usual measure of damages is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained of it thereafter.' Lynch v. West Hartford,167 Conn. 67, 73, 355 A.2d 42 (1974)." Minicucci v. Commissioner of Transportation, 211 Conn. 382, 384, 559 A.2d 216 (1989). The same before-and-after rule applies whether the "partial taking" is the taking of a fee-simple interest or an easement-interest. "It is one of the general rules governing the right of eminent domain, that just compensation for taking a part of a parcel of land, or an easement in such a part, is to be ascertained by comparing the value of the entire parcel before the taking with the value of what remains after the taking, and in view of the new conditions created by the taking. If the latter of these two values be less that the former, the amount of the difference measures the damages to be paid." New York, N. H. and H.R. Co. v. New Haven81 Conn. 581, 583, 71 A. 780 (1909). Because, as noted previously, the plaintiffs make no claim regarding the residence on Portion R, the court will consider damages resulting from the condemnation of only the land. In appraising those damages, both appraisers made their appraisals on the basis of an average price per acre, and not on the basis of assigning different values to different sections of the land. The average price per acre of the plaintiffs' land could then be compared with the average price per acre, adjusted for differences, in market sales of land the appraisers considered comparable. "[T] best test is ordinarily that of market sales." Sibley v. Middlefield, 143 Conn. 107, 120 A.2d 77 (1956). In the present case, the inland wetlands and the flood plain areas, although regulated and of different value from the unregulated area, increased the value of CT Page 7783 the unregulated area because the inland wetlands and flood plain areas are available to satisfy zoning requirements relating to: frontage; minimum area; minimum front, side and rear yards; and maximum lot coverages. This symbiotic relationship between regulated and unregulated areas justifies the use of average-price-per-acre appraisals even though different sections are of different values and had explicit judicial recognition in Greenfield Development Co. v. Wood, 172 Conn. 446, 449, 374 A.2d 1084 (1977). In Enfield's brief, Enfield claims that events and cases subsequent to Greenfield have weakened its force as a precedent, but the court is of the opinion that the holding in that case would be followed if the same issue were to arise now. Both appraisers agree that the highest and best use of the plaintiffs' land, both before and after the condemnation, is its use for uses permitted in the I-1 Industrial Zone. They do not agree, however, on the before-condemnation average price per acre of the plaintiffs' land. As the basis for his appraisal, the plaintiffs; appraiser used the sales of four comparables, all in Enfield. Of these four sales, only Sale No. 1, hereinafter referred to as "87 Moody Road," is the same sale used as a comparable by Enfield's appraiser. The plaintiff' appraiser valued 87 Moody Road at $33,565 per acre, after adjustments. The four sales occurred between April 27, 1989, and April 29, 1992. They were all sales of vacant land that, since the sale, was improved and used for I-1 Industrial Zone uses. These sales and their subsequent I-1 Industrial Zone uses evidence a definite demand for industrial-zone land in Enfield. Consistent with that demand, "Enfield has one of the lowest industrial availability rates in Hartford County." (Report of Enfield's appraiser, Exhibit 1, p. 10.) After analyzing the four comparables in detail, the plaintiffs' appraiser states (Exhibit B, p. 35.), "The adjusted indications range in value from $27,000 per acre to $33,565 per acre . . . The estimate of land value is $27,500 per acre, which times 5.21 acres equals $143,275." As the basis for his appraisal, Enfield's appraiser used the sales of three comparables. One of these is in Vernon and the other, East Windsor. These two are of little probative value. "In determining values by comparison, the properties must be similarly located and of like character." Thaw v. Fairfield, 132 Conn. 173, 179, 43 A.2d 79 (1945). The third comparable, Sale No. 2 of the comparables of Enfield's appraiser, is the comparable that is the same as Sale No. 1 of the comparables of the plaintiffs' appraiser; accordingly, this third comparable of the defendant's appraiser will also hereinafter be referred to as "87 Moody Road." Enfield's appraiser initially valued 87 Moody Road at $19,817 an CT Page 7784 acre, after adjustments. He valued the before-condemnation plaintiffs' land at $20,000 an acre. Because of the small difference between the $19,817 an acre and the $20,000 an acre, the court infers that the valuation of 87 Moody Road by Enfield's appraiser was a significant element in his appraisal of the plaintiffs' land. For that reason, the court deems it worthwhile to examine the basis for the appraisal of 87 Moody Road by Enfield's appraiser. In his initial appraisal of 87 Moody Road, Enfield's appraiser made a negative time-adjustment of 18% for the period from April 29, 1992, through February 5, 1993. This adjustment was made to reflect the opinion of Enfield's appraiser that that period was a period of declining prices for industrial land. On cross examination, he admitted that the amount of the adjustment was incorrect and said that the adjustment should be 14%; the 14% negative time-adjustment appears in the revision of page 30 of his report, annexed to Enfield's brief. Enfield's appraiser offered no documentary evidence to support his opinion about that negative time-adjustment. Other evidence, however, persuades the court that not negative time-adjustment should have been made. That other evidences is Exhibit C, which is a "Value Finding Appraisal" prepared for Enfield by Enfield's appraiser in January, 1992. In Exhibit C, Enfield's appraiser found the damages resulting from the taking of 1.88 acres of the plaintiffs' land to be $13,700 (the identical amount in the Statement of Compensation). Yet, in Exhibit 1 (p. 32) , Enfield's appraiser values the plaintiffs' land at $20,000 an acre on February 5, 1993. The change in the value of the plaintiffs' land during the period from January, 1992 to February 5, 1993, is not attibutable [attributable] to any changes in the amount or location of the condemned land. It is attributable, therefore, only to an increase in the market value of the plaintiffs' land during the period from January, 1992, to February 5, 1993. It is obvious that the $20,000 valuation for one acre in February, 1993, has to represent an increase in value in comparison with the $13,700 valuation for 1.88 acres in January, 1992. With reference to a time adjustment, the plaintiffs' appraiser states (Exhibit B, p. 34), "A time adjustment is not warranted based on the available information." On the basis of the evidence available to the court, the court finds that, at least, a negative time-adjustment is not warranted. If the negative time-adjustment is omitted from the 89 Moody Road Appraisal of Enfield's appraiser, that appraisal is revised as follows, using the same sale price and percentages used by Enfield's appraiser: sales price (1.08 acre) $72,500; 10% assemblage negative adjustment, $7,250, making "adjusted price" of $62,250; apply to the "Adjusted price" a 30% negative adjustment for smaller-lot-size and a 30% negative adjustment for wetlands and flood plain, a total additional CT Page 7785 negative adjustment of 60% or $39,150; deducting the $39,150 from the adjusted price of $62,250 yields $26,100 as the net revised adjusted price per acre for 89 Moody Road. This substantial upward revision in the adjusted price per acre for 89 Moody Road, in the absence of any other Enfield comparable used by Enfield's appraiser, renders the $20,000 per acre appraisal of Enfield's appraiser of little probative value in comparison with the probative value of the $27,500 per acre appraisal of the plaintiff's appraiser. After viewing the plaintiffs' land and considering the reports and testimony of the appraisers, and the briefs of the parties, the court is of the opinion, and finds, that the appraisal of the plaintiffs' appraiser is both credible and persuasive; that the fair market value per acre of the plaintiff's land before condemnation is $27,500 per acre; and that the fair market value of the plaintiffs' land, consisting of 5.21 acres before condemnation, is $143,275. With respect to the after-condemnation value of the plaintiffs' land, Enfield's appraiser made an initial finding of $89,862, which was rounded to $90,000. That figure, however, included an error in the computation, which valued the PD parcel twice, once at $26,000 an acre and once at $3412. The necessary correction reduced the appraisal by $4550, making $85,450 the corrected after-condemnation valuation of the plaintiffs' land by Enfield's appraiser. The plaintiffs' appraiser arrived at his after-condemnation valuation by multiplying the remaining 3.325 acres by the per acre value of $27,500, yielding $91,438, and then deducting from that figure $1,200, rounded from $1,203, representing the lessened value of Portion PD because of the drainage easement. Those computations result in a valuation of $90,238, rounded to $90,275, as the after-condemnation value of the plaintiffs' land. The difference between the before-condemnation value of $143,275 and the after-condemnation value of $90,275 is $53,000. The court finds both credible and persuasive this method of evaluating the difference between the before-condemnation value of the plaintiffs' land and its after-condemnation value and finds that difference to be $53,000. IV Enfield's Statement of Compensation, previously referred to, lists Mobil Pipe Line Company (Mobil) and Town of Enfield as "persons having a record interest" in the land being condemned. That listing is required by Conn. Gen. Stat. sec. 8-129 (Conn. Gen. Stat. sections 8-128 through 8-133 being made applicable to the present proceeding by Conn. Gen. Stat. sec. 48-12). "The obvious purpose of [Conn. Gen. Stat. sec.8-129; is to protect an incumbrancer of land taken for public use. . ." Palo CT Page 7786 v. Rogers, 116 Conn. 601, 604, 165 A. 803 (1933). In the present case, on motion of the plaintiffs, the $13,700 deposited with the Clerk of Court was paid to the plaintiffs, but the judgment or order provided for in Conn. Gen. Stat. sections 8-130 and 8-132a, to determine the equity of each of the "persons" having an interest in the deposit or compensation, has not been entered. Under Conn. Gen. Stat. sec. 8-130, "(T)he court shall enter judgment against the municipality for the amount of the deficiency," i.e. for the amount by which the damages exceed the deposit. The court will enter that judgment, but because the equities of Mobil and Enfield have not yet been determined, the judgment will have to provide that the deficiency be paid to the Clerk of the Superior Court for the Judicial District of Tolland. Conn. Gen. Stat. sec. 48-21, which provides for that procedure, does not specifically apply to proceedings under Conn. Gen. Stat. sections 48-6 and 48-12, but the court can accomplish the purpose of the notice requirements in Conn. Gen. Stat. sec. 8-129 by providing for payment of the deficiency in the manner set forth in Conn. Gen. Stat. 48-21. V The damages to which the plaintiffs are entitled being greater in amount than the amount determined in the Statement of Compensation, the plaintiffs are entitled to have the costs include appraisal fees, under the provisions of Conn. Gen. Stat. sec. 8-133. The court finds that reasonable appraisal fees for the appraiser for the plaintiffs are $1,900. Although Conn. Gen. Stat. sec. 48-26 refers to fees for "expert testimony," Conn. Gen. Stat. sec. 8-133 does not refer to fees for "expert testimony." In this conflict between a statute of general application (Conn. Gen. Stat. sec. 48-26) and one of specific application Conn. Gen. Stat. sec. 8-133), the general rule is that the statute of specific application will control. Budkofsky v. Commissioner of Motor Vehicles 177 Conn. 588, 592, 419 A.2d 333 (1979). The court makes no award for expert testimony by the appraiser for the plaintiffs. In sum, the court finds that the plaintiffs have sustained as a result of the taking by Enfield of the fee-simple interest in Portion FS, the permanent drainage-easement interest in Portion PD, and the temporary right-to-grade easement interest in Portion R damages of $53,000. The court finds that the after-condemnation value of the plaintiffs' land is $90,275 and that the before-condemnation value of the plaintiffs' land was $143,275, and that, therefore, the after-condemnation value of the plaintiffs' land is $53,000 less than the before-condemnation value of the plaintiffs' land. Judgment may enter, therefore, against Town of Enfield in the amount of $53,000, less the amount of $13,700 already paid, a deficiency of $39,300, with interest at the statutory legal rate, from the CT Page 7787 date of taking to the date of payment, on such deficiency, and costs (which shall include appraisal fees of $1,900); and judgment may further enter that Town of Enfield pay the deficiency of $39,300, and interest thereon, to the Clerk of the Superior Court for the Judicial District of Tolland, the deficiency and interest to be held by said Clerk of Court subject to the further orders of the court. Rubinow, State Trial Referee	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3349278/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ORDERS RE: DISCOVERY The plaintiff, Biddle Sawyer Corporation, and the defendant, Devchem International, Inc. (Devchem), formed a joint venture, Devchem Biddle International, L.L.C., to import certain chemicals. They had a dispute which caused the plaintiff to sue Devchem, certain officers thereof, and also Development International, Inc. (Development), a new company formed by individuals associated with Devchem. On February 24, 2009, the action was stayed as to the two individual defendants, Loretta Lau and John Kovac, because they were the subject of criminal charges, but the action remains pending as to the two corporations. CT Page 4208 On April 14, 1999, the plaintiff obtained a prejudgment remedy of attachment against the defendant corporations for approximately $500,000. The plaintiff subsequently learned that Devchem and/or Development had stored a number of barrels of pseudoephedrine at a warehouse owned by Kaster Moving Co., Inc. (Kaster). On an application by the plaintiff to modify its prejudgment remedy, this court signed a temporary injunction dated June 18, 1999, enjoining the defendants from removing these barrels of chemical products from Kaster's warehouse until further order of the court. This order was served on Kaster on June 21, 1999, but was not served on the defendants until July 2, 1999. Between June 23, 1999 and July 1, 1999, the defendants removed approximately 127 barrels of the chemical from the Kaster warehouse. On November 15, 1999, the plaintiff moved (#161, 162, 163, and 164) to hold Kaster in contempt for permitting the chemicals to be removed and the other defendants for removing the chemicals from the Kaster warehouse. Although agreeing that the defendants removed the barrels of chemical from the warehouse before they were actually served with a copy of the temporary injunction, the plaintiff contends that the defendants knew of the order and were obliged to obey it. Kaster claims it is not a party to the underlying action and was not named in the temporary injunction and therefore cannot be held in contempt. A hearing on this motion for contempt was held on several dates, including August 4, 2000, at which time the hearing was adjourned sine die because the parties agreed that certain outstanding motions to quash, to compel, for protective orders, etc., needed to be resolved before the contempt hearing should be resumed. Motion #179 to Compel. This motion and #180 both seek the same relief and were filed by the plaintiff on April 3, 2000 to compel Development to produce documents in response to the plaintiff's request for production dated October 4, 1999. The defendant resists production on the ground that it involves Loretta Lau, the president of Development. As noted, the action is stayed as to this individual and her deposition need not go forward until further order. However, the request for production is directed against the two corporations. The objections to the request, including #186, were not filed timely and they are therefore overruled and the motion to compel is granted. Motion #190 for Protective Order. This motion dated June 12, 2000 is by the defendant Development and CT Page 4209 seeks to prevent the taking by the plaintiff of a deposition of Southern New England Telephone Company. As noted previously, the plaintiff contends that the defendants knew of the temporary injunction even before they were served and hence are bound by its terms. The plaintiff seeks to demonstrate that the law firm of Bello, Lapine and Cassone spoke with Development and/or Lau during the period between June 18, 1999 and July 1, 1999, when the last of the chemical product was removed from the Kaster warehouse. The plaintiff is not seeking the substance of any conversations between these parties or any information regarding legal advise, if any, given by the attorney to the client, but only to determine whether in fact the law firm spoke with the corporations and/or individuals during that period. Thus, the motion for protective order is denied as the proposed deposition does not implicate the attorney-client privilege. Motion # 191 for Protective Order and to Quash Subpoena. This motion was filed by Kaster on June 19, 2000, and seeks to prevent the plaintiff from taking Kaster's deposition and to quash a subpoena duces tecum. The plaintiff seeks the telephone records of Kaster and its attorney, L.D. Church, during the period mentioned in the above motion to learn whether or not they communicated during that time period. The motion is denied for the same reason set forth in #190, viz., that the plaintiff does not seek the substance of the conversation between attorney and client, which would involve the attorney-client privilege, but only the fact of whether any conversations occurred during the time period in question. Motion #192 to Quash Subpoena. This motion was filed by Development and Loretta Lau and seeks to quash a subpoena duces tecum served on June 13, 2000 on the law firm, Bello, Lapine and Cassone, in connection with a proposed deposition by the plaintiff of said law firm. The plaintiff seeks the firm's legal invoices, bills and records evidencing communications, oral or written, in the time period in question between the law firm and Devchem, Development, Kovac, Lau or Attorneys Church and W W. Ward. The fact of whether there was any such communications during the relevant time period may be inquired into, including telephone records, but the balance of the subpoena is quashed as it seeks information such as legal bills that appear to involve the attorney-client privilege. Motion #193 for Protective Order and to Quash. This motion, filed on June 26, 2000 by Kaster, pertains to a proposed deposition of its private counsel, Attorney Church, includes a request to CT Page 4210 quash a subpoena duces tecum calling for the production of certain documents. The disposition of this motion is controlled by motion #191, also involving the deposition of Attorney Church, because again the deposition does not purport to involve the attorney-client privilege, but only whether Kaster and Attorney Church did or did not communicate during the relevant time period, not what, if any, legal advise was sought or given. All other arguments in this motion are not persuasive. Motion #194 for Protective Order and to Quash Subpoena. Attorney Ward filed this motion on June 22, 2000, seeking a protective order prohibiting the taking of his deposition, and also quashing the subpoena duces tecum served in connection with the proposed deposition. This motion is similar to #192 in that it seeks, in addition to communications between Attorney Ward and Devchem, Development, Kovac, Lau and Attorneys Church and Cassone, "legal invoices, billing records or other documents." The subpoena is quashed as to the latter but the fact of communications during the relevant time period may be inquired into at the deposition of Attorney Ward. Motion #195 for Protective Order. This motion, which was filed by Attorney Ward on June 26, 2000, relates to a deposition of the Southern New England Telephone Company and seeks telephone records pertaining to Attorney Ward's communications during the relevant time period with the corporate and individual defendants and also with Attorneys Church and Cassone. This motion is similar to motion #190 by Development and Lau and results in the same ruling, i.e., the motion is denied. So Ordered. Dated at Stamford, Connecticut, this 27 th, day of March, 2001. William B. Lewis, Judge T.R.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1878048/	285 So. 2d 40 (1973) Richard Earl GOURLEY, Appellant, v. STATE of Florida, Appellee. No. 72-721. District Court of Appeal of Florida, Fourth District. November 9, 1973. Richard L. Jorandby, Public Defender, and Norman J. Kapner, Asst. Public Defender, West Palm Beach, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. On petition for writ of habeas corpus we granted petitioner delayed appellate review of his conviction and sentence on the charge of first degree murder. Having now considered the briefs and record, we find no error, and therefore affirm the judgment and sentence and deny the writ. WALDEN, CROSS and DOWNEY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2600683/	186 P.3d 263 (2008) 2008 OK CIV APP 53 PUBLIC SUPPLY COMPANY and Old Republic Public Insurance Company, Petitioners/Appellants, v. Tim E. STEENBOCK and The Workers' Compensation Court, Respondents/Appellees. No. 104,265. Court of Civil Appeals of Oklahoma, Division No. 2. April 25, 2008. C. Scott Beuch, C. Scott Beuch & Associates, Oklahoma City, OK, for Petitioners. David H. Bower, Bower & Bower, Oklahoma City, OK, for Respondent. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. JERRY L. GOODMAN, Presiding Judge. ¶ 1 Employer, Public Supply Company, appeals the trial court's January 11, 2007, order awarding Employee, Tim Steenbock, more than eight (8) weeks of temporary total disability (TTD) benefits, arguing the order is in violation of 85 O.S.2001 and Supp.2006, § 22(3)(d). We review this legal issue de novo, conclude no error occurred, and sustain the order under review. FACTS ¶ 2 Employer denied Employee suffered a work-related cumulative trauma injury, as alleged in Employee's September 26, 2006, Form 3. A hearing was held on the issues of compensability of the injury, continued medical treatment, and the award of TTD benefits. All other issues, including the award of 265 permanent partial disability (PPD) benefits were reserved. Employer stipulated at trial that Employee was injured, but alleged as a defense the major cause of the injury was not work-related. In the event the trial court found Employee was entitled to TTD benefits, Employer contended those benefits were limited to eight-weeks' duration. ¶ 3 Employee's medical records and expert medical opinion were offered without objection by Employer, and Employer's expert medical opinion was admitted over Employee's probative value objection. The trial court found the cumulative trauma injury was job-related; found the cumulative trauma injury was aggravated by a specific injury occurring on September 7, 2006; denied Employer's major cause defense; awarded Employee TTD benefits for at least fifteen (15) weeks, not to exceed fifty-two (52) weeks; and ordered continued medical treatment be provided. ¶ 4 Employer appeals, raising a single legal issue: whether recent amendments to the workers' compensation laws regarding the award of benefits for a soft tissue injury reflect a legislative intent to limit those benefits to eight (8) weeks under these facts. We hold they do not and sustain the trial court's award. STANDARD OF REVIEW ¶ 5 The issue presented is one of statutory construction, which is a question of law. Therefore, we review the court's decision de novo, or without deference to the trial court's reasoning. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-23. THE STATUTES ¶ 6 At issue is the interpretation of the following two statutory-and allegedly conflicting-provisions: 85 O.S.2001 and Supp.2006, § 22(2)(c) and 85 O.S.2001 and Supp.2006, § 22(3)(d). ¶ 7 Section 22(2)(c) states: Temporary Total Disability . . . With respect to injuries occurring on or after November 1, 1997, total payments of compensation for temporary total disability may not exceed a maximum of one hundred fifty-six (156) weeks in the aggregate except for good cause shown, as determined by the Court. Total payments of compensation for temporary total disability, inclusive of consequential injuries, may not exceed a maximum of three hundred (300) weeks in the aggregate. (Emphasis added.) ¶ 8 In apparent conflict, § 22(3)(d) was recently amended by the Legislature and now states: Permanent Partial Disability. . . . With respect to injuries occurring on or after January 1, 2003, in case of disability, partial in character but permanent in quality, the compensation shall be seventy percent (70%) of the employee's average weekly wages, and shall be paid to the employee for the period prescribed by the following schedule: . . . Soft Tissue Injury: In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks. A claimant who has been recommended by a treating physician for surgery for a soft tissue injury may petition the Court for one extension of temporary total compensation and the court may order such an extension, not to exceed sixteen (16) additional weeks, if the treating physician indicates that such an extension is appropriate or as agreed to by all parties. In the event the surgery is not performed, the benefits for the extension period shall be terminated. For purposes of this section, "soft tissue injury" means damage to one or more of the tissues that surround bones and joints. "Soft tissue injury" includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears. Cumulative trauma is to be considered a soft tissue injury. "Soft tissue injury" does not include any of the following: 266 (1) Injury to or disease of the spine, spinal disks, spinal nerves or spinal cord, where corrective surgery is performed; (2) Brain or closed-head injury as evidenced by: 1. a. sensory or motor disturbances, b. communication disturbances, c. complex integrated disturbances of cerebral function, d. episodic neurological disorders, or e. other brain and closed-head injury conditions at least as severe in nature as any condition provided in subdivisions a through d of this division; or (3) Total knee replacement. In all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality. In determining the existence of such an abnormality, the Court may consider if there is credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired. (Emphasis added.) THE PARTIES' CONTENTIONS ¶ 9 Employer argues the two sections are in conflict because § 22(2)(c) is a general statutory provision permitting an injured party to receive TTD benefits up to a maximum of three hundred (300) weeks, while § 22(3)(d) is a specific statute limiting TTD benefits for soft tissue injuries to eight (8) weeks. Employer argues the specific governs the general and the trial court erred when it awarded more than eight (8) weeks of disability. Employer cites this Court's recent opinion in Sysco Food Service of Oklahoma v. Cunningham, 2007 OK CIV APP 52, 162 P.3d 973, as authority. ¶ 10 Employee argues the conflict between these two provisions was resolved by other divisions of the Court of Civil Appeals (COCA) in Gee v. All 4 Kids, Inc., 2006 OK CIV APP 155, 149 P.3d 1106 and Curling v. City Chevrolet, 2007 OK CIV APP 63, 164 P.3d 1141. In both those cases, COCA, using rules of statutory construction, essentially ignored the eight-week language of § 22(3)(d) as being superseded by that same provision's later reference to the limits in § 22(2)(c). This is the construction that is now urged by Employee. Both parties contend the two statutes are in conflict and tender the issue to this Court for resolution. ANALYSIS ¶ 11 We first hold Employer has waived any error on appeal regarding the fact of Employee's injury, his status as being temporarily totally disabled, or his need for surgical intervention. Employee's medical report, admitted into evidence without objection, stated that "he is certainly a surgical candidate for both the cervical spine, lumbar spine, right hand and left hand." His treating physician then referred him to a surgeon for further treatment. As of the date of the filing of this appeal, it appears surgery has not been performed. The trial court found that: [A]s a result of said injury, claimant has been temporarily totally disabled and . . . is . . . in need of further medical treatment, care and attention. . . . Compensation is due [for] 15 weeks and 2 days . . . not to exceed 52 weeks from the date of this order. ¶ 12 The trial court reserved the issue of PPD. Thus, the trial court found that Claimant has suffered a soft tissue injury, is temporarily totally disabled, is a surgical candidate, has not reached maximum medical improvement (MMI), and is not entitled to PPD benefits at this time. CONFLICTING AUTHORITIES ¶ 13 As mentioned above, there are three published COCA opinions cited by the parties addressing this precise issue. All three have held the eight-week limit is inapplicable, though that result is reached by two different analysis. ¶ 14 In Gee and Curling, those COCA divisions interpreting § 22(2)(c) and § 22(3)(d) held that: 267 The eight-week limit of § 22(3)(d) directly conflicts with the 300-week limit of § 22(2)(c). As a matter of statutory construction, we must construe the various provisions as a harmonious whole if possible. See, e.g., City of Tulsa v. Smittle, 1985 OK 37, ¶ 12, 702 P.2d 367, 370. "In construing a statute, the whole must be considered and all parts given their obvious intended meaning, and no part stricken down, unless in irreconcilable conflict with the remainder." Earnest, Inc. v. LeGrand, 1980 OK 180, ¶ 6, 621 P.2d 1148, 1151. More importantly, "if it be considered that there is a conflict between one provision of a section of statu[t]e and another, one matter to consider is that the last in order or position and arrangement possibly should prevail." Id. Section 22(3)(d) first imposes an eight-week limit on soft tissue injuries, but then specifies that, "[i]n all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in" § 22(2)(c), which permits aggregate TTD benefits of up to three hundred weeks. In our view, the provisions of §§ 22(2)(c) and 22(3)(d), adopted in the same legislative session, cannot be reconciled without resort to the rules of statutory construction. Because § 22(3) is last in position, and the reference to § 22(2) is last in subsection 3, we hold that the reference of § 22(3) to § 22(2) controls, and that § 22(2) permits an aggregate award of up to three hundred weeks of TTD in soft tissue cases. As applied in the present case, the uncontroverted medical evidence demonstrated Claimant's TTD from and after the date of the injury and continuing until completion of rehabilitation. As we construe § 22(2) and (3), the trial court was not constrained by § 22(3) to award a maximum of eight weeks TTD for Claimant's soft tissue back injury, but was statutorily authorized to award TTD to the extent allowed by § 22(2). Gee, at ¶¶ 10-13, 149 P.3d at 1109-10; Curling, at ¶¶ 7, 9, 164 P.3d at 1143 (footnotes omitted). ¶ 15 Thus, the determination that the eight-week limit was a legal nullity was based upon a rule of statutory construction that suggested that the last provision adopted by a legislative body in a series of provisions would prevail over earlier, conflicting language contained in the same passage. We note the dissent in Curling pointed out that the construction "rule" used in Gee and Curling was less a hard and fast axiom as much as a suggested guideline to interpretation. See, Earnest, Inc. v. LeGrand, 1980 OK 180, 621 P.2d 1148. Gee and Curling support Employee's position and the trial court's order. ¶ 16 This Court, in Sysco, was asked the same legal question, albeit under slightly different facts. In Sysco, the employee suffered soft tissue injury to his shoulder, and had undergone surgical repair. The trial court awarded more than twenty-four (24) weeks of benefits, an action the employer appealed. This Court affirmed the trial court and cited Gee without comment. However, we made the following observation: Even if the Gee Court's conclusion were incorrect, we would still reach the same result here. Section 22(3)(d) provides that a claimant with "nonsurgical" soft tissue injuries is limited to eight weeks of benefits, and a claimant "who has been recommended" for surgery by a treating physician may receive one 16-week extension, but if surgery is not performed then the benefits for the extension period shall be terminated. The statutory language fails to specifically address or limit available TTD benefits after a claimant has surgery. In this case, Claimant had surgery. Id. at ¶ 12, 162 P.3d at 975 (emphasis added). We went on to hold: Employer asserts that the § 22(3)(d) language authorizing one 16-week extension for a surgical injury shows legislative intent to put a 24-week cap on cases where surgery is performed. We disagree. A more reasonable view is that § 22(3)(d)'s failure to specifically address post-surgical claimants means that the subsection was 268 not intended to disturb the § 22(2) benefit period. This construction is reinforced by § 22(3)(d)'s later reference to § 22(2) benefits. In other words, a more logical construction is that § 22(3)(d) is intended to give claimants who have sustained non-surgical injuries eight weeks of benefits, claimants who have been recommended for surgery an additional 16 weeks of benefits between the time surgery is recommended and the time it is performed or declined, and claimants who have received surgery up to 300 weeks of benefits in accordance with § 22(2). Id. at ¶ 13, 162 P.3d at 975 (italics in original) (emphasis added). ¶ 17 Upon reconsideration of this issue under slightly different facts, we now refine our analysis. HARMONIZING THE CONFLICTING AUTHORITIES ¶ 18 The effect of interpreting the two statutes using the approach taken in Gee, Curling, and Sysco, to the degree that it relies on Gee, renders § 22(3)(d) meaningless. By using this approach, the intent of the Legislature to limit the PPD award for a soft tissue injury to between eight-to-twenty-four weeks' compensation is frustrated. Keeping in mind the purpose of statutory construction is to harmonize conflicting provisions, we proceed with the following interpretive analysis. ¶ 19 We first note § 22(3)(d)'s "soft tissue injury" provision is not placed in § 22(2)'s provisions regarding TTD awards, but is located in that section dealing with specific injuries such as a hernia, loss of use of an eye, a finger or other member, and deafness. Those specific injuries are deemed to be permanent and partial in nature, and are compensated either by a fixed dollar amount or for a fixed period of time, which is measured using TTD rates. As this Court recently held in Urrutia v. Wendy's Old Fashioned Hamburgers, 2007 OK CIV APP 104, 171 P.3d 915, this was done for a reason. In Urrutia, we held: By placing the "Soft Tissue Injury" provision in paragraph 3 of section 22, immediately following the Hernia provision, and providing compensation for soft tissue injury that is strikingly similar to the compensation provided for hernia injuries, we find the legislature intended for soft tissue injury to be compensated as a "specific injury" and "the special grant of an award for [such] injuries [to be] exclusive of other provisions of the Workers' Compensation Act as to temporary disability." Speer [v. Petrolite Specialty Polymers Group], 1996 OK CIV APP 55, ¶ 12, 918 P.2d [92] at 94 (citation omitted). The exclusive nature of the compensation provided for special injuries in § 22(3) controls even when evidence establishes a period of temporary total disability far in excess of the period provided for a particular special injury. Knight v. Allied Signal, 1999 OK CIV APP 21, ¶ 10, 977 P.2d 373, 375. Id. at ¶ 5, 171 P.3d at 916, 917. Urrutia implicitly rejects the analysis used in Gee and Curling because Urrutia presumes the constitutionality of § 22(3)(d), does not ignore it completely, and recognizes the Legislature's effort to establish an additional category of compensable specific injuries. ¶ 20 Proceeding from the recognition that § 22(3)(d) is neither unconstitutional nor conflicting with existing statutes, we conclude the nature of the award sought determines the remedy awarded. By adding a "soft tissue injury" to the list of specific injuries to be compensated at a fixed rate for purposes of PPD, and yet leaving intact those provisions permitting more extensive TTD awards for a soft tissue injury, the Legislature intended that a claimant with an injury may receive TTD benefits as part of the recuperative period pursuant to § 22(2). However, once the healing period has ended, the Legislature intended to limit the claimant's award of PPD benefits for soft tissue injuries as follows. ¶ 21 A claimant seeking temporary total disability benefits for an injury, including a soft tissue injury, under 85 O.S.2001 and Supp.2006, § 22(2)(c), may, upon proper proof, be entitled to those benefits listed for a maximum of three hundred (300) weeks. A claimant's TTD award is in no way limited by the provisions of § 22(3)(d); those limits only 269 apply when seeking PPD benefits for a "Soft Tissue Injury" as that injury is defined in § 22(3)(d).[1] ¶ 22 When a claimant reaches MMI, or is otherwise no longer considered to be temporarily totally disabled, and who now seeks PPD benefits, such claimant may seek, in addition to his § 22(2)(c) TTD benefits, PPD benefits for a soft tissue injury. A "soft tissue injury" is now classified as a specific type of injury for purposes of a PPD award and is now compensated at a fixed rate, similar to those awards for a hernia or loss of a body member. See § 22(3)(d). The amount of such award is determined by the following analysis. ¶ 23 Though we have earlier set out § 22(3)(d) in its entirety above, this provision, distilled to its essence, provides as follows: Soft Tissue Injury: In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks. A claimant who has been recommended by a treating physician for surgery for a soft tissue injury may petition the Court for one extension of temporary total compensation and the court may order such an extension, not to exceed sixteen (16) additional weeks. . . . In all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality. . . . ¶ 24 A different sequencing of these clauses as an aid to interpretation renders this section more understandable. ¶ 25 Unless "there is objective medical evidence of a permanent anatomical abnormality" as defined in § 22(3)(d), a claimant with a soft tissue injury receives no PPD benefits, and his compensation is limited to the necessary and reasonable medical treatment he has received to date, plus the amount of TTD benefits previously awarded under § 22(2)(c). This is so because: In all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 [§ 22(2)(c)] of this section unless there is objective medical evidence of a permanent anatomical abnormality. . . . (Emphasis added.) ¶ 26 If, however, a claimant's soft tissue injury results in a "permanent anatomical abnormality" as defined in § 22(3)(d), PPD benefits are no longer limited only to "necessary medical care and temporary total disability" under § 22(2)(c). When an injury reflecting a "permanent anatomical abnormality" exists, the next question to be asked is this: was surgery performed or recommended to be performed as treatment for this injury? If no surgery was performed and none is recommended or scheduled, the claimant is limited to a PPD award consisting of eight (8) weeks' benefits calculated at his TTD rate ("In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks."), plus the necessary and reasonable medical treatment completed to date, plus the TTD benefits awarded him under § 22(2)(c). In short, the restrictions limiting PPD benefits to only medical treatment and TTD benefits under § 22(2)(c) are lifted once a permanent anatomical abnormality is proven. ¶ 27 If, however, surgery on the soft tissue injury was performed, or is recommended to be performed, a claimant may receive sixteen (16) additional weeks of compensation, for a total of twenty-four (24) weeks, measured by his TTD rate, as his award of PPD benefits. This amount is in addition to the necessary and reasonable medical treatment to date, plus the TTD benefits awarded him under § 22(2)(c). ¶ 28 Comparing this analysis to that used in both Gee and Curling, the claimants suffered soft tissue injuries and had not reached MMI. They sought TTD benefits under § 22(2)(c), but the trial court awarded only 270 eight (8) weeks of benefits under § 22(3)(d). COCA vacated the orders and ordered benefits consistent with § 22(2)(c), using the analysis recited in their opinions. While we agree with that result, we disagree with their analysis. Under our analysis, those claimants would be awarded the same benefits without concluding the statutes were in conflict, without ignoring one provision at the expense of another, and still recognizing the validity and presumed constitutionality of § 22(3)(d). ¶ 29 In Sysco, we sustained the trial court's award of one hundred fifty-six (156) weeks of TTD benefits awarded under § 22(2)(c), partially for the reason that unlike the claimants in Gee and Curling, the Sysco claimant had undergone surgery, and partially for the reason that Sysco's claimant was not seeking PPD, but rather TTD benefits. We were not presented the issue of the amounts of PPD to which that claimant may be entitled because that issue was not before this Court. The language discussing the prospective benefits available to the post-surgical claimant under the PPD provisions in § 22(3)(d) is dictum. It is instructive in that it highlights a deficiency in the statutory language chosen, but does not directly affect the issue tendered in Sysco, nor the issue tendered to us today. SUMMARY ¶ 30 To summarize, a claimant seeking TTD benefits for a soft tissue injury under 85 O.S.2001 and Supp.2006, § 22(2)(c) may, upon proper proof, be entitled to those benefits listed therein for a maximum of three hundred (300) weeks. A claimant's TTD award is in no way limited by the provisions of § 22(3)(d), which only apply when seeking PPD benefits for a "Soft Tissue Injury" as that injury is defined in § 22(3)(d). ¶ 31 When a claimant reaches MMI, or is otherwise no longer considered to be temporarily totally disabled, and who now seeks PPD benefits, such claimant may seek, in addition to his § 22(2)(c) TTD benefits, PPD benefits for a soft tissue injury. A "soft tissue injury" is now classified as a specific type of injury for purposes of measuring a PPD award and is now compensated at a fixed rate, similar to those awards for a hernia or loss of a body member. See § 22(3)(d). The amount of such award is determined by the following analysis. ¶ 32 If a claimant's soft tissue injury does not result in a "permanent anatomical abnormality" as defined in § 22(3)(d), he receives no PPD benefits, and his compensation is limited to the necessary and reasonable medical treatment he has received to date, plus the amount of TTD benefits previously awarded under § 22(2)(c). ¶ 33 If a claimant's soft tissue injury results in a "permanent anatomical abnormality" as defined in § 22(3)(d), the next question to be asked is this: was surgery performed or recommended to be performed as treatment for this injury? If no surgery was performed and none is recommended or scheduled, the claimant is limited to a PPD award consisting of eight (8) weeks' benefits calculated at his TTD rate, plus the necessary and reasonable medical treatment completed to date, plus the TTD benefits awarded him under § 22(2)(c). ¶ 34 If, however, surgery on the soft tissue injury was performed, or is recommended to be performed, a claimant may receive sixteen (16) additional weeks of compensation, for a total of twenty-four (24) weeks, measured by his TTD rate, as his award of PPD benefits. This amount is in addition to the necessary and reasonable medical treatment to date, plus the TTD benefits awarded him under § 22(2)(c). ¶ 35 This analysis recognizes the Legislature's intent to limit the amount of PPD benefits for soft tissue injuries without eviscerating the chosen statutory language completely, as was done in Gee and Curling. To the extent our analysis here differs from those cases, we agree with their result but for totally different reasons. ¶ 36 In conclusion, the trial court awarded Claimant TTD benefits under § 22(2)(c), and was not limited to the benefits set out for *271 PPD under § 22(3)(d). We find no error, and the trial court's award is sustained. ¶ 37 SUSTAINED. WISEMAN, J., and FISCHER, J., concur. NOTES [1] This principle was recognized in this Court's recent non-published opinion, styled Binger Nursing Home v. Cox, Appeal No. 103,830, issued October 12, 2007.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1878125/	285 So. 2d 431 (1973) MONROE COUNTY, Florida, a Political Subdivision of the State of Florida, et al., Appellants, v. Alfred GUSTINGER, Jr., Appellee. No. 73-771. District Court of Appeal of Florida, Third District. November 13, 1973. Stuart Simon, Co. Atty., and Gail P. Fels, Asst. Co. Atty., for appellants. Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellee. Before BARKDULL, C.J., and CHARLES CARROLL and HENDRY, JJ. PER CURIAM. By this interlocutory appeal, the appellants seek review of an order of the trial court refusing to dismiss an action challenging a 1972 tax assessment of certain lands owned by the taxpayer. The principal basis of error urged is that the taxpayer failed to exhaust his administrative remedies and bring his suit, as provided in § 194.171, Fla. Stat., F.S.A. We find this point to be well taken and reverse the order here under review, with directions to dismiss so much of the taxpayer's cause of action seeking to attack the 1972 assessment. Henry v. County of Dade, Fla.App. 1963, 149 So. 2d 89; Harvey W. Seeds Post No. 28, Amer. Leg. v. Dade County, Fla.App. 1970, 230 So. 2d 696; Dade Drydock Corp. v. Broward County, Fla. App. 1971, 250 So. 2d 286; Askew v. MGIC Development Corporation of Florida, Fla. App. 1972, 262 So. 2d 227. Reversed and remanded, with directions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2529106/	953 N.E.2d 682 (2011) Virginia GARWOOD and Kristin Garwood, Petitioners, v. INDIANA DEPARTMENT OF STATE REVENUE, Respondent. No. 82T10-0906-TA-29. Tax Court of Indiana. August 19, 2011. 683 Stacy K. Newton, Rudolph, Fine, Porter & Johnson, LLP, Evansville, IN, Attorney for Petitioners. Gregory F. Zoeller, Attorney General of Indiana, Andrew W. Swain, Chief Counsel, Tax Section, John D. Snethen, Jessica E. Reagan, Lynne D. Hammer, Deputy Attorneys General, Indianapolis, IN, Attorneys for Respondent. ORDER ON PARTIES' MOTIONS FOR SUMMARY JUDGMENT WENTWORTH, J. On June 29, 2009, Virginia and Kristin Garwood (the Garwoods) initiated an original tax appeal, challenging the Indiana Department of State Revenue's (Department) issuance of sixteen jeopardy tax assessments for portions of the 2007 through 2009 tax years.[1] The Garwoods and the Department subsequently filed motions for summary judgment.[2] In their motion for summary judgment, the Garwoods assert that the jeopardy assessments are void as a matter of law because the Department failed to provide them with an administrative hearing following their protest of the assessments, violating their procedural due process rights guaranteed under the Fourteenth Amendment to the United States Constitution. (See Petrs' Br. Supp. Mot. Summ. J. at 2-4, Nov. 22, 2010.) In its motion, the Department claims it is entitled to judgment as a matter of law because the Tax Court lacks subject matter jurisdiction over the Garwoods' appeal,[3] the use of jeopardy assessments was warranted, and the use of best information available assessments (BIA assessments) was 684 reasonable.[4] (See Resp't Mem. Supp. Mot. Summ. J. (hereinafter, "Resp't Mem.") at 20-24, Mar. 3, 2011 (footnotes added).) When, as here, a case can be resolved on either constitutional grounds or statutory/regulatory construction grounds, the Court will decide only the latter. See Southern Ind. Gas & Elec. Co. v. Ind. Dep't of State Revenue, 804 N.E.2d 877, 882 n. 6 (Ind. Tax Ct.2004) (citing Indiana Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm'n, 695 N.E.2d 99, 108 (Ind.1998)), review denied. Accordingly, the Court restates the dispositive issue as whether the Department properly issued jeopardy assessments to the Garwoods. FACTS The following facts are undisputed. The Garwoods have operated a family-owned dairy farm in Mauckport, Indiana for nearly thirty years. In 2007, the farm was on the brink of insolvency due to both the soaring price of grain and the declining price of milk. As a result, Virginia decided to supplement her family's income by breeding and selling dogs. Virginia purchased a pregnant cocker spaniel in July 2007. The cocker spaniel had four puppies in August, and Virginia sold them for a total of $400.00. In addition, one of the Garwoods' farm dogs, an Australian shepherd, had several puppies, and Virginia sold two of them for a total of $150.00. Virginia purchased approximately thirty-four other dogs for breeding purposes in 2007; however, she could not immediately breed them because several of the dogs were unhealthy. At some point in 2008, Virginia purchased additional breeding stock and acquired several puppies for purposes of resale, and by November 2008, about fifty-two had been sold for an estimated $4,144.00. Then, in both December 2008 and January 2009, an acquaintance of the Garwoods who was closing his breeding business gave Virginia some of his breeding stock. Some of his dogs were undesirable breeds and others were extremely unkempt, but Virginia had them treated by a veterinarian, groomed them, and sold them, giving most of the sales proceeds to her acquaintance. On or about October 16, 2008, a Harrison County Animal Control Officer received a consumer complaint concerning the Garwoods' treatment and sales of their dogs. The next day, the Officer went to the Garwoods' residence to investigate the complaint. He met Virginia in her driveway and asked to speak to the person who sold the puppy to the customer; Virginia indicated that the person was not there and asked him to leave. The Officer gave Virginia a copy of an Animal Control Ordinance and left the premises. Over the course of the next three months, the Animal Control Officer received two other complaints regarding the Garwoods' dog sales, and as a result, he contacted the Office of the Indiana Attorney General (the OAG) to report that the Garwoods may be operating a puppy mill.[5] In February 2009, the OAG and the Department commenced a joint investigation 685 to determine whether the Garwoods were remitting Indiana income and sales tax due on their sales of dogs. The investigation found that the Garwoods routinely placed advertisements in two local newspapers between 2007 and 2009, offering to sell adult dogs and puppies for between $100 and $400 each. The investigation also revealed that the Garwoods were not registered retail merchants, had never remitted sales tax or filed sales tax returns, and had not reported the income derived from or tax due on their income from dog sales. Approximately two months later, in April 2009, two of the OAG's special investigators purchased two puppies from the Garwoods for a total of $550.00 in cash. The Garwoods did not issue receipts in either transaction and, in one instance, verbally indicated the purchase price included sales tax.[6] The next month, on May 29, the Department generated sixteen documents (two each of Records of Jeopardy Finding, Jeopardy Assessment Notices and Demands (Jeopardy Assessments), Claim Vouchers for clerk costs, and Warrants for Collection of Tax (Jeopardy Tax Warrants)) related to its jeopardy assessment procedurehalf directed to Virginia and the other half to Kristin. Three days later, the Deputy Commissioner of Enforcement for the Department executed the several Investigation Summaries[7] and Resident Individual Tax Computations forms. The following day, June 2, a tumultuous series of events took place as an unspecified number of individuals from the OAG and the Department went to the Garwoods' residence just after 7:00 a.m. to serve the jeopardy assessment documents and demand immediate payment of the tax, interest, and penalties allegedly owed. An investigator from the Department's special investigation unit explained to each of the women individually that the amount she owed was $142,367.94 and that without immediate payment, the State would then and there "levy [her] personal property to satisfy the taxes due[.]"[8] (Resp't Des'g Evid. Ex. K ¶¶ 6-7, Jan. 31, 2011 (footnote added).) When first Virginia and then Kristin stated that she could not pay that amount immediately, the investigator served each with the Jeopardy Tax Warrants and the associated Investigation Summaries. The Department and the OAG, assisted by the Indiana State Police and sixty volunteers from the United States and Missouri Humane Societies, seized all 240 dogs on the premises, including the Garwoods' house pets and farm dogs. Other property seized from the Garwoods included $1,260 in cash, business records showing the Garwoods received $25,274.31 from their dog sales, un-cashed checks totaling $1,325 (two containing dog sale notations), and copies of Virginia's 2005, 2007, and 2008 federal and state income tax returns.[9] Later the same day, 686 the Department and the OAG filed with the Harrison Circuit Court all of the Jeopardy Tax Warrants and a Verified Petition for a Post-judgment Restraining Order and Injunction that sought to enjoin the Garwoods from doing business in Indiana until their tax liabilities were satisfied. That afternoon, the Attorney General held a television press conference and newspaper interview, publicizing the seizure of the Garwoods' dogs. The next day, the OAG (on behalf of the Department) sold all of the 240 dogs seized to the Humane Society of the United States for a total of $300.00. Then on June 4, the Harrison Circuit Court entered the parties' agreed order that, among other things, stayed all collection efforts by the Department to allow the Garwoods to pursue all available remedies regarding the Jeopardy Assessments. In accordance with 45 IAC 15-5-8 and the written notice on the Department's Jeopardy Assessment Notice and Demand forms, the Garwoods timely filed a written protest with the Department on June 10, 2009. The Department, in a letter issued June 22, 2009, declined to hold a hearing on their protest and advised the Garwoods to seek relief through the Harrison Circuit Court. The Garwoods subsequently initiated this original tax appeal. Additional facts will be supplied as necessary. STANDARD OF REVIEW Summary judgment is proper only when the designated evidence demonstrates that no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). When both parties move for summary judgment, as here, this standard remains unaltered. See Indiana Farmers Mut. Ins. Co. v. N. Vernon Drop Forge, Inc., 917 N.E.2d 1258, 1266 (Ind.Ct.App.2009) (citation omitted), trans. denied. LAW AND ANALYSIS The Department has the primary responsibility for administering, collecting, and enforcing Indiana's listed taxes,[10] and in fulfilling its duties, it may exercise any power conferred on it under Indiana Code § 6-8.1-1 et seq. See IND.CODE § 6-8.1-3-1(a) (2007) (footnote added). To execute these duties, the Indiana Legislature has granted the Department authority to employ the powerful tool of jeopardy assessment in exceptional circumstances. Indeed, the use of a jeopardy assessment is an extraordinary measure because it allows the state to deprive a taxpayer of property without first providing constitutionally guaranteed notice or an opportunity to be heard. Clifft v. Ind. Dep't of State Revenue, 660 N.E.2d 310, 317-18 (Ind. 1995). As a result, our Legislature very narrowly tailored the Department's jeopardy assessment power to further the essential state interest of exercising its power to tax when collection is at risk. See Adams v. State, 762 N.E.2d 737, 741 (Ind.2002) (explaining that jeopardy tax warrants "typically can be issued only when the Department concludes that the taxpayer intends to take some action that would jeopardize the state's ability to collect the tax"). Unlike controlled substance excise tax (CSET) assessments, which are per se jeopardy assessments under Indiana Code § 6-7-3-1 et seq., the general jeopardy assessment statute, Indiana Code § 6-8.1-5-3, requires that specific exigent circumstances exist before a jeopardy assessment may be imposed: circumstances identifying the line between fair tax administration 687 and oppression. See id., at 741, 744. To that end, Indiana Code § 6-8.1-5-3 provides that one of four circumstances must exist for the Department to issue a jeopardy assessment: If at any time the department finds that a person owing taxes intends to [1] quickly leave the state, [2] remove his property from the state, [3] conceal his property in the state, or [4] do any other act that would jeopardize the collection of those taxes, the department may declare the person's tax period at an end, may immediately make an assessment for the taxes owing, and may demand immediate payment of the amount due, without providing the notice required in IC 6-8.1-8-2. IND.CODE § 6-8.1-5-3(a) (2007).[11] The Department claims it properly exercised its statutory authority under Indiana Code § 6-8.1-5-3 in issuing jeopardy assessments to the Garwoods. (See Resp't Mem. at 21.) The Garwoods assert, however, that the Department's use of the jeopardy assessment procedure against them exceeded statutory authority. (See Petrs' Resp. Br. Opp'n Resp't Mot. Summ. J. (hereinafter, "Petrs' Resp.") at 6-9, Mar. 29, 2011.) The Garwoods are correct. 1. Intent to quickly leave the state The Department may issue a jeopardy assessment when it determines a person owing taxes intends to quickly leave the state thereby avoiding tax collection. I.C. § 6-8.1-5-3(a). The Department does not claim that the Garwoods were flight risks. (See, e.g., Resp't Mem. at 21-24.) In fact, the Garwoods were community fixtures, having lived in Harrison County their entire lives and having operated the same dairy farm there for nearly thirty years. (See Petrs' Des'g Evid. Vol. 1, Ex. B at 19-21, Mar. 29, 2011; see also Petrs' Resp. at 8.) Accordingly, this is not a basis for the Department's use of jeopardy assessments in this case. 2. Intent to remove property from the state The Department may issue a jeopardy assessment when it determines a person owing taxes intends to remove property from the state to avoid the collection of tax. I.C. § 6-8.1-5-3(a). The Department does not claim that the Garwoods intended to remove property from the state. (See, e.g., Resp't Mem. at 21-24.) Moreover, the nature of the Garwoods' Indiana property (such as real property, farm animals and equipment, breeding dogs and their puppies, dog cages, etc.) augers against it easily being moved. Accordingly, this is not a basis for the Department's use of jeopardy assessments in this case. 3. Intent to conceal property in the state The Department may issue a jeopardy assessment when it determines a person owing taxes intends to conceal property in the state to avoid the collection of tax. I.C. § 6-8.1-5-3(a). The Department claims its investigation revealed evidence of this intent that is documented in its designated sales and income tax Investigation Summaries: "Further, as the taxpayer previously refused the officer of the Harrison County Animal [C]ontrol access to their property, the taxpayer maintains the appearance that they are attempting to 688 conceal property in the state." (See, e.g., Resp't Des'g Evid. Ex. K, Ex. 4B at 2, Jan. 31, 2011.) Virginia's refusal to allow the Harrison County Animal Control Officer on her property in response to a consumer complaint is not evidence of her attempt to conceal property in the state within the meaning of Indiana Code § 6-8.1-5-3(a). In fact, it is not reasonable to infer that her intent was to conceal property to avoid paying taxes because one would not normally expect an Animal Control Officer, who typically investigates matters involving animals, to be the emissary of the tax collector. The Department further argues that because the Garwoods purchased large numbers of breeding animals, they could as easily sell the dogs in bulk to conceal them, or that "[d]ogs, by virtue of being four-legged animals, could easily run away if set free." (See Resp't Mem. at 21 n. 28; see also Resp't Mot. Summ. J. ¶ 4 (citing Resp't Des'g Evid. Ex. GG, Mar. 3, 2011).) These arguments are speculative. Indeed, there is no evidence that indicates the Garwoods would sell all their dogs or release them to avoid paying tax. The evidence shows instead that the Garwoods took in, kept, and attempted to care for several unhealthy dogs. (See, e.g., Petrs' Des'g Evid. Vol. 1, Ex. A ¶¶ 4, 10, Ex. B at 39-40, 53-54.) Specious non sequiturs are not probative evidence of an intent to conceal property. Accordingly, this is not a basis for the Department's use of jeopardy assessments in this case. 4. Intent to do any other act that would jeopardize the collection of taxes Finally, the Department may issue a jeopardy assessment when it determines a person owing taxes intends to "do any other act that would jeopardize the collection of [] taxes." I.C. § 6-8.1-5-3(a) (emphasis added). The Department promulgated its interpretation of this statutory language in regulation 45 IAC 15-5-8, explaining that the use of a jeopardy assessment is permissible when "the taxpayer does any other act tending to prejudice or render wholly or partly ineffective proceedings to compute, assess, or collect any tax levied by the state." 45 IND. ADMIN. CODE 15-5-8(a)(3) (2007) (see http://www. in.gov/legislative/iac/) (emphasis added).[12] First, the Department designated all of the jeopardy assessment Investigation Summaries, each of which stated in the Explanations of Adjustments that the Department deemed the Garwoods' actions to have jeopardized the collection of taxes. (See, e.g., Resp't Des'g Evid. Ex. K, Ex. 4B 689 at 2, Jan. 31, 2011.) (See also Hr'g Tr. at 102-03, May 4, 2011; Resp't Mem. at 21.) The actions recited include, among those discussed above, the advertisement of dogs for sale in local newspapers, the breeding and sale of dogs, the failure to register as a retail merchant, the failure to prepare and file sales tax returns, and the failure to report income earned from the retail sales of animals on their individual income tax returns. (See, e.g., Resp't Des'g Evid. Ex. K, Ex. 4B at 2, Jan. 31, 2011.) None of these actions alone constitute a litmus test for properly issuing a jeopardy assessment. Furthermore, taken as a whole, these actions suggest that the Garwoods were not properly reporting and paying taxes allegedly due, not that they intended not to pay, or preserve the wherewithal to pay, their taxes.[13] The absence of facts demonstrating the Garwoods' intent to thwart collection is palpable. Next, the designated facts show the Garwoods filed annual income tax returns prepared by an income tax professional. In fact, Virginia's tax preparer included income from the sale of dogs in her 2008 income tax return. (See Resp't Des'g Evid. Ex. E ¶ 21, Jan. 21, 2011.) Virginia stated that because her tax preparer never told her she should be collecting sales tax on her sales of dogs, she assumed, albeit incorrectly, that her sales of dogs, like her sales of livestock, were exempt from sales tax. (See Petrs' Des'g Evid. Vol. 1, Ex. A ¶ 7.) While, the Garwoods' reliance on a tax specialist does not relieve them of personal responsibility to get their taxes right,[14] it does not indicate their intent to thwart the tax system and circumvent the collection of taxes through regular proceedings. Thus, this is not a basis for the Department's use of jeopardy assessments in this case. The Court holds that the Department did not show the presence of the statutorily prescribed exigent circumstances that the Garwoods' intended to quickly leave the state, remove their property from the state, conceal their property in the state, or do any other act that would jeopardize the collection of taxes. The Court's holding is consistent with the Indiana Supreme Court's explanation of the contours of jeopardy assessments. See generally, e.g., Indiana Dep't of State Revenue v. Adams, 762 N.E.2d 728, 730-33 (Ind.2002); Adams, 762 N.E.2d at 740-46; Bryant v. State, 660 N.E.2d 290, 295-300 (Ind.1995); Clifft, 660 N.E.2d at 313-19. Indeed, in distinguishing the State's power to tax from its power to punish crimes, Indiana's Supreme Court explained that the power to issue jeopardy assessments "is part of the State's power of the purse, not its power of the sword[.]" See Adams, 762 N.E.2d at 732-33. It cannot reasonably be inferred that the jeopardy assessment procedure was used in this case to protect the State's fiscal interests. For example, the day after the Garwoods' 240 dogs were seized, the Department sold them all to the Humane 690 Society for a total of $300.00, yet logic dictates that the dogs had a value far greater than just over $1.00 each. The Department's sale of the dogs for this nominal price is in stark contrast to the Department's previous purchase of two dogs from the Garwoods for a total of $550.00 as well as its estimate that each dog's value was $300.00 in calculating the BIA assessments. (See Resp't Des'g Evid. Ex. BB ¶¶ 15-16, Mar. 3, 2011; Resp't Des'g Evid. Ex. E ¶¶ 13-17, Jan. 31, 2011; Resp't Des'g Evid. Ex. 11 ¶ 8, Dec. 20, 2010.) Moreover, a media circus roiled on the very day the Department and the OAG served the jeopardy assessments, jeopardy tax warrants, and seized the Garwoods' assets. Within hours of the raid, individuals from the OAG were interviewed on television and by newspapers about shutting down a "puppy mill." (See Petrs' Des'g Evid. Vol. 1, Ex. ¶¶ 14-15.) (See also, e.g., Resp't Des'g Evid. Ex. L at 1-3, Jan. 31, 2011.) The unusual occurrence of this media hype in conjunction with the Department's sale of the Garwoods' property for a nominal sum demonstrate that the Department wielded the power of jeopardy assessments as a sword to eliminate a socially undesirable activity and close down a suspected "puppy mill,"[15] not to fill the State's coffers with the tax liabilities the Garwoods purportedly owed. Jeopardy assessments are a powerful collection tool that, when properly used, further the important state interest of collecting state tax revenue needed to pay for critical governmental services and conducting the business of the state. The designated evidence shows that the Garwoods did not remit the proper amount of tax due to the state on their sales, a fact the Garwoods have repeatedly acknowledged. Nonetheless, the Department overstepped its authority in this case by issuing jeopardy assessments without having shown the exigent circumstances required by Indiana Code § 6-8.1-5-3 and 45 IAC 15-5-8. Consequently, the Court holds that the sixteen jeopardy assessments issued to the Garwoods for all or part of the 2007 though 2009 tax years are void as a matter of law.[16] CONCLUSION For all the foregoing reasons, the Court DENIES the Department's motion for summary judgment in its entirety and GRANTS summary judgment in favor of the Garwoods. The Court REMANDS the matter to the Department and ORDERS it to void all of the Garwoods' jeopardy assessments and take any other actions necessary to give full effect to this Order. The parties shall bear their own costs. SO ORDERED. NOTES [1] The Department assessed the Garwoods with income tax liabilities for the 2007 and 2008 tax years and sales tax liabilities for the tax periods ending on December 31, 2007, through April 30, 2009. (See generally Resp't Des'g Evid. Ex. B, Jan. 31, 2011.) [2] The parties have designated certain evidence as confidential; therefore, the Court's order will provide only that information necessary for the reader to understand its disposition of the issues presented. See generally Ind. Administrative Rule 9. [3] Previously in this matter, the Department filed a motion to dismiss for lack of subject matter jurisdiction, which the Court denied on December 21, 2010. Garwood v. Ind. Dep't of State Revenue, 939 N.E.2d 1150 (Ind. Tax Ct.2010). Thereafter, the Department filed an Original Action in the Indiana Supreme Court seeking writs of mandamus and prohibition to halt this Court from exercising jurisdiction, which the Supreme Court declined to review. In its motion for summary judgment, the Department claims for the third time that the Court lacks subject matter jurisdiction. (See Resp't Mem. Supp. Mot. Summ. J. (hereinafter, "Resp't Mem.") at 20-21.) The Court maintains that it has subject matter jurisdiction and incorporates by reference the rationale previously articulated in both its Order issued December 21, 2010, and its March 10, 2011, preliminary response brief filed in the Original Action with the Supreme Court. [4] Due to the disposition of this matter on other grounds, the Court need not address whether the Department's use of BIA assessments was reasonable. [5] At the time of these events, Indiana's statutes and regulations neither defined the term "puppy mill" nor criminalized certain breeding or dog selling activities. (Cf., e.g., Petrs' Des'g Evid. Vol. 2, Ex. J at 1 (acknowledging that "[t]here is no legal definition for the term `puppy mill'"), Mar. 29, 2011 with IND.CODE § 15-21-1 et seq. (2010) (commercial dog breeding statutes).) [6] Kristin gave one of the investigators a piece of notebook paper merely stating: "4-15-09, I sold a male puppy wormed from 2 weeks until you picked it up. Shot at 6 weeks." (See Resp't Des'g Evid. Ex. E ¶ 14, Jan. 31, 2011.) [7] An Investigation Summary, Form AD-7IA, documents the findings of the Department's investigation and includes a written Explanation of Adjustments. [8] The Jeopardy Tax Warrants actually provide that Virginia's total liability was $142,409.52 and Kristin's total liability was $142,326.36. (See generally Resp't Des'g Evid. Ex. K, Ex. 4A, Jan. 31, 2011.) [9] The Garwoods' dogs were seized pursuant to the Jeopardy Tax Warrants. See IND.CODE § 6-8.1-5-3(c) (2011). In contrast, it appears that the Garwoods' other property was seized pursuant to a search warrant issued by the Marion County Superior Court. (See Resp't Des'g Evid. Ex. 1, Ex. 5 ¶¶ 20-22, Ex. 8, Dec. 20, 2011; Resp't Des'g Evid. Ex. E ¶¶ 20-22, Jan. 31, 2011.) [10] Indiana's listed taxes include both the income tax and the sales tax. See IND.CODE § 6-8.1-1-1 (2007). [11] The Department may also issue a jeopardy assessment to a taxpayer "[i]f [it] has sent a notice of proposed assessment under [Indiana Code § 6-8.1-5-1] to [a] taxpayer by United States mail and the notice is returned to the department because the taxpayer has moved and the department is unable to determine the taxpayer's new address[.]" I.C. § 6-8.1-5-3(b). [12] The Department explains that it refers to the Internal Revenue Service's (IRS) jeopardy assessment manual to determine which activities satisfy the "any other act" requirement of Indiana Code § 6-8.1-5-3. (See Resp't Mem. at 16-17.) Reliance on IRS guidelines is misplaced, however, because 1) Indiana Code § 6-8.1-5-3 and 45 IAC 15-5-8 provide Indiana-specific guidance, 2) the Legislature has not incorporated IRS authority into the jeopardy assessment statute, and 3) the Department has not incorporated IRS authority into its regulation. Cf., e.g., I.C. § 6-8.1-5-3 and 45 IND. ADMIN. CODE 15-5-8 (2007) (see http://www.in.gov/legislative/iac/) with IRM 5.17.15.2.1, 2007 WL 7063015. Even if the Department's reliance on the IRS manual was proper it failed to document or designate facts that would validate the use of a jeopardy assessment thereunder: e.g., there were no large sums of money, highly liquid assets, or illegal/underground business operations, etc. See, e.g., Thompson v. United States, No. 10 C 4455, 2010 WL 3893806, at * 5-6 (N.D.Ill. 2010); Wellek v. United States, 324 F.Supp.2d 905, 907-13 (N.D.Ill.2004); Guillaume v. Comm'r, 290 F.Supp.2d 1349, 1353-55 (S.D.Fla.2003); Magluta v. United States, 952 F.Supp. 798, 801-03 (S.D.Fla.1996); Mesher v. United States, 736 F.Supp. 233, 234-36 (Dist.Ct.Or.1990) (all explaining whether assessments were reasonable given the presence of certain facts). [13] The Department has regular proceedings to ensure and enforce the computation, assessment, and collection of taxes, such as auditing taxpayers to confirm or compute tax due, issuing proposed assessments if adjustments are determined, issuing demand notices if proposed assessments are unpaid or unchallenged, and filing tax warrants to enforce collection of unpaid tax due. See generally IND.CODE §§ 6-8.1-5-1, -4, -8-2, -3 (2007). [14] The Garwoods have taken responsibility for their actions, both having pled guilty to failure to collect or remit sales tax for one or more months in 2008. In addition, Virginia pled guilty to falsifying or omitting profits or losses from her sales of dogs on her 2007 through 2009 Indiana income tax returns. See Hr'g Tr. at 102-03, May 4, 2011; Petrs' Resp. Br. Opp'n Resp't Mot. Summ. J. (hereinafter, ("Petrs' Resp.") ¶ 17, Mar. 29, 2011.) [15] See Petrs' Des'g Evid. Vol. 2, Ex. J at 1, 4 (article written by Andrew W. Swain, Tax Ills Behind the Millsthe Advancement of Puppy Protection, stating "[s]o far, using its state tax laws, Indiana has successfully closed two puppy mills and prosecuted their operators for various tax crimes") and (citing "`Puppy Mill Busted: Dogs Taken from Harrison County Farm to New Albany Warehouse,' Ind. Law Blog (June 3, 2009), available at http:// indianalawblog.com/archives/2009/06/ind_law_puppy_m.html (discussing the Virginia Garwood case").) [16] This holding does not preclude the use of other available tax collection methods with respect to the Garwoods. Specifically, Indiana Code § 6-8.1-5-1 provides that "[i]f the department reasonably believes that a person has not reported the proper amount of tax due, the department shall make a proposed assessment of the amount of the unpaid tax due on the basis of the best information available to [it]." IND.CODE § 6-8.1-5-1 (2007). In turn, Indiana Code § 6-8.1-5-2 details the timeframes under which such assessments may be issued.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3350511/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This matter was commenced by the plaintiff's complaint dated March 18, 1994 with a return date of April 26, 1994. The defendant filed an answer on August 9, 1994. The matter was claimed for a court trial on August 18, 1994. This is a Home Improvement Construction case. The plaintiff, Donald Yanovich, owns property at 30 Southwick Avenue, Waterbury, Connecticut. The defendant is Fred Shahen dba Shahen Remodeling and he is a Home Improvement Contractor. The plaintiff and defendant signed a contract on January 7, 1991 whereby the defendant was going to construct a 16 foot by 12 foot room addition onto the plaintiff's home at 30 Southwick Avenue, Waterbury, Connecticut. (Exhibit A). The cost of this contract was $18,500.00. The plaintiff stated that he believed he paid the contract price in cash. The defendant stated that he believed the plaintiff paid for the contract with a $3,000.00 check and $15,500,000 in cash. The defendant commenced work shortly after the contract was signed and finished in four or five months according to the plaintiff's testimony. The plaintiff testified that the city Building Inspector CT Page 12597 stopped work because no one had taken out a building permit for the job. The plaintiff testified that he did not know that he needed a building permit until he got a letter about it from the Assistant Building Inspector for the city. The plaintiff then got the necessary permit (Exhibit F). The defendant testified that he did not get a building permit for the job because the defendant told him he would get the permit. The defendant testified that he was licensed by the State of Connecticut in January 1991 but that he did not know if he had a Certificate of Registration from the Commissioner of Consumer Protection at the time as required by Connecticut General Statute § 20-420. Eugene Graveline, an Assistant Building Inspector for the city testified that you have to be a licensed contractor to get a permit for someone else. The plaintiff testified that according to item 12 in the subject contract the defendant was supposed to construct a whole new deck for him on the subject premises. He testified that the defendant did not completely tear down the old deck. The defendant claimed that the plaintiff agreed to allow him to use a portion of the old deck and in return he agreed to build a privacy wall which was not called for in the contract. The plaintiff said he had no such agreement and he would not have agreed to that because he did not want two different colored woods in the deck. The new addition had aluminum siding down to the ground when the building code stated it should be eight inches from the ground. However, there is no claim for damages for this problem. The defendant testified that he did not know this was a code violation. The assistant building inspector visited the premises on February 13, 1992 and sent a letter dated February 18, 1992 to the plaintiff which outlined the items that had to be finished as of that date (Exhibit B). The defendant stated he corrected the handrail problem on the back deck and the guards required on the open side of the stairs from the rear porch as set forth in Exhibit B. As to the other items in Exhibit B, the defendant stated that he did not pour the concrete footing, that the building inspector approved the hangers for the floor joist for the new portion of the deck and did not require them on the old portion thereof and finally the rear door light was the plaintiff's responsibility. However, when the Assistant Building Inspector Eugene Graveline testified, he did not say anything about deleting the requirement of the hangers on the floor joist for the old deck CT Page 12598 that remained. The plaintiff also stated that he had to have his brother and a contractor repair and rebuild the front steps and railings which were installed by the defendant. He stated he paid Thomas Carlin $318.00 for this work. (Exhibit C) The defendant stated he made the front steps but that they were supposed to be an extra for which he was never paid. The plaintiff stated that one of the skylights that the defendant installed started leaking two or three months after the defendant left the job and that water from the leak stained the new oak floor in the new addition. The plaintiff testified that he and his brother put tar around the skylight but that it still leaks in heavy rains. When the court viewed the premises with the parties and the plaintiff's attorney at the conclusion of the trial, it did see evidence of a skylight water leak, in that there was a cracked ceiling therefrom and stains were visible on the floor from water leaking from the skylight. Also the plaintiff testified the defendant did not finish the electrical work as set forth in the contract. The plaintiff stated he paid $484.76 for electrical fixtures and plugs that the defendant was to provide. When the defendant left the job site, the plaintiff testified that he left the wires for the electrical fixtures and plugs just hanging there. The plaintiff testified a friend of his did the electrical work at no cost to him. He also testified that he and the defendant were going to pick out and install the lighting together and that he was going to pay something toward this cost if it was not exorbitant. Thomas Carlin, a home improvement contractor, testified that he gave the plaintiff an estimate of what it would cost to finish and repair the addition on the subject home. That estimate was for $4,685.00 (Exhibit D). That figure is broken down as follows: 1. Pour concrete pillars for deck in accordance with the building code. $830.00 2. Use 6 x 6 inch pressurized support columns instead of the 4 x 4 inch columns the defendant used $400.00 CT Page 12599 3. Install approximately 80 2 x 10 joist hangers into crossorm plates $1,350.00 4. Refinish floor $475.00 5. Reflash two skylights which are leaking $590.00 6. Retape ceiling — 3 coats $300.00 7. Stainkill water stains on ceiling $150.00 8. Popcorn spray entire ceiling on new addition $295.00 9. Finish upstairs hall window $295.00 Thus the plaintiff is claiming total damages of $5,487.76. Thomas Carlin testified if there were joist hangers already installed on the new portion of the deck then the costs of installing them on the old portion thereof would be one-half of the estimate cost or $675.00. When the court viewed the premises, it found that there were joist hangers on the new portion of said deck. Mr. Carlin also testified that the deck was very heavy and that he always used 6 x 6 inch beams to support the deck and not the 4 x 4 inch beams the defendant used on the plaintiff's deck. He did say that the 4 x 4 inch that the defendant used on the deck were probably within the specifications of the building code. Mr. Graveline the Assistant Building Inspector made no mention of any problem with the use of the 4 x 4 inch beams. The defendant claims the plaintiff owes him $400.00 for the following: 1. Shingling the existing roof $100.00 2. Construction of front stairs $200.00 3. Changing the bar in the new addition to circular from L shape $100.00 After hearing the evidence and viewing the premises, the court finds that the plaintiff has sustained his burden of proof CT Page 12600 on the first count of his complaint. The court orders that the plaintiff shall recover damages from the defendant in the amount of $4,412.76 plus costs. The damages are arrived at as follows: Repair to front stairs $318.00 Exhibit C Electrical fixtures $484.76 Exhibit E Concrete Pillars for deck $830.00 Install joist hangers into crossorm plates $675.00 Refinish floor $475.50 Reflash skylights $590.00 Retape ceiling $300.00 Stainkill water stains in ceiling $150.00 Popcorn spray entire ceiling $295.00 Finish upstairs hall window $295.00 Judgment may enter accordingly. WILLIAM J. SULLIVAN, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3350512/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff, Malcolm McRae, seeks to collect the balance of a promissory note dated December 18, 1988, and executed by the defendant, Valerie H. Free, in the principal amount of $100,000, plus annual interest of 10%. The case was assigned for trial before an attorney trial referee, but on October 9, 1998, at a pretrial settlement conference, the parties entered into a stipulation which, on November 9, 1998, on motion of the plaintiff, was entered as a judgment of this court, Karazin, J. The stipulation for judgment provided that the debt owed by the defendant was $192,684.81 as of October 9, 1998, but that the plaintiff would accept $75,000 in full satisfaction of the judgment "provided that Plaintiff's counsel receives a sworn financial affidavit confirming the defendant's inability to pay a greater portion of the debt." On or about October 28, 1998, the defendant paid the plaintiff the sum of $75,000, which he accepted, and she also filed a financial affidavit which is the source of the controversy between the parties. This financial affidavit has three parts, the first of which sets forth the defendant's net monthly income of $2,892. The second part is entitled "liquid assets" and pertains to bank accounts in the amount of $6,693. The third part of the affidavit refers to the defendant's monthly expenses in the amount of $3,280, and includes $1,673 for a mortgage, real estate taxes, utilities and household maintenance. Assets and liabilities were not included. The plaintiff claims that the affidavit is false and misleading because it does not include the value of the defendant's real estate on Valleywood Road in Cos Cob, a section of Greenwich, the equity in which could have been used to satisfy the debt in its entirety. Furthermore, the plaintiff contends that the defendant, through counsel, represented that although the value of her home was approximately $500,000, it was encumbered by a mortgage in the approximate amount of $400,000. Moreover, the plaintiff claims that the defendant fraudulently represented that she did not have sufficient assets to pay more than $75,000 to settle the plaintiff's action. The plaintiff contends that a title search indicated that the mortgage on the defendant's home was for $75,000 only, which is confirmed by the small monthly mortgage payment indicated on the defendant's affidavit.1 The defendant contends that the affidavit is accurate because the intent of the parties when they entered the stipulation was that the defendant would file an affidavit demonstrating that her current liquid assets were insufficient to pay more than $75,000 on the debt. Moreover, the defendant claims that the parties never discussed her fixed or non-liquid assets, such as real estate, and never contemplated that they would be used to satisfy her debt to the plaintiff in full. CT Page 8836 The plaintiff filed a judgment lien on the defendant's Valleywood Road property on December 2, 1998. In January of 1999, the plaintiff sought a bank execution in an attempt to collect the full amount of the debt, $192,684.81, less, of course, the $75,000 previously paid by the defendant. The defendant filed a motion (#116) captioned "To Enforce Stipulated Settlement" dated February 3, 1999, which is the subject of the present proceedings.2 The plaintiff's attorney succinctly and accurately stated: "The purpose of this hearing is to determine what the intent of the parties was at the time of the settlement conference in 1998." The motion seeks to compel the plaintiff to: (i) file; a satisfaction of judgment; (ii) release a judgment lien filed against the defendant's real estate on Valleywood Road, Cos Cob; (iii) cease efforts to execute on the defendant's bank accounts; and (iv) stop attempting by way of post judgment interrogatories to collect the full amount of the judgment. The wording of the stipulation is ambiguous. The plaintiff argues that it was meant to include all the defendant's assets, including real estate, whereas the defendant contends that the affidavit was not meant to include her real estate, but only liquid assets. The wording of the stipulation does not resolve this issue. Because the agreement does not contain "definitive contract language," and there is "doubt as to the relevant surrounding circumstances," the court is guided by TallmadgeBrothers, Inc. v. Iroquois Gas Transmission System, 252 Conn. 479, 495,746 A.2d 1277 (2000). In short, it cannot be said that in this stipulation "the parties meant what they said and said what they meant." Id., 497. Thus, the contract "must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and circumstances connected with the transaction." (Internal quotation marks omitted.) Id. 498. At this hearing, several things stood out starkly. First, the affidavit filed by the defendant uses the words "liquid assets" and the plaintiff did not immediately protest the failure to include the real property belonging to the defendant. Rather, the plaintiff waited from October 28, 1998, when the affidavit was filed and the $75,000 accepted, until December 2, 1998, when his lawyer protested to the defendant's lawyer about the accuracy of the affidavit. On that same day the plaintiff filed a judgment lien on the defendant's realty. Second, the affidavit explicitly includes mortgage payments and other household expenses, so the defendant was not hiding the fact that she owned a home. In addition, there does not seem to be any doubt that the plaintiff and defendant were-well acquainted, so to speak, and that the CT Page 8837 plaintiff knew about the defendant's home.3 An additional reason that the defendant should prevail is that the plaintiff drew up the stipulation of settlement and, therefore, could have easily inserted some language stating that the defendant should include all assets, fixed as well as liquid, or that the defendant's realty should be included. See Rund v. Melillo, 63 Conn. App. 216, 222,772 A.2d 774 (2001) ("When there is ambiguity, we must construe contractual terms against the drafter.") Moreover, in order to pay $75,000 to the defendant, the plaintiff sold all her stock and closed out her IRA and Keogh accounts. Sale of the defendant's real estate was not mentioned at the pretrial settlement conference. The stipulation provided that the $75,000 had to be paid in one month, i.e., by November 9, 1998, and a sale or refinancing would have been difficult to accomplish that quickly. The court finds, therefore, that it is reasonable to infer that the parties had in mind the sale of liquid assets only. Furthermore, this is confirmed by the fact that the defendant did not include her automobile in her affidavit because, as she testified, it was not a liquid asset. For these reasons, the court concludes that the intent of the parties in entering into the stipulation was to exclude the defendant's real estate in her affidavit. It appears by the weightier or better evidence that the plaintiff wanted to know the total amount of liquid assets in order to be sure that the defendant did not have sufficient liquid assets to satisfy the full amount of the debt, or at least to pay more than $75,000, but without resorting to a sale or refinancing of her home. Accordingly, the defendant's motion to enforce the stipulated settlement in the amount of $75,000 is granted and the plaintiff shall file a satisfaction of judgment and a release of his judgment lien. So Ordered. Dated at Stamford, Connecticut, this 6thday of July, 2001. William B. Lewis Judge T.R.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3350514/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff Town of West Hartford brings this proceeding, by way of a citation for contempt, to have this court find the defendant in contempt for allegedly violating an injunction and impose an appropriate penalty. The injunction issued by the court, per Judge John Maloney, was "the defendant is permanently enjoined from using the building in question as a dwelling after the present tenant, if any, has vacated the premises, and in no event after December 15, 1987." The trial court's judgment was affirmed on appeal. West Hartford v. Gelina, 18 Conn. App. 688 (1989). The building in question lies behind a three-family residence on Park Road in West Hartford. Pursuant to a building permit issued by the town, it was constructed as a garage in 1925. Some time between 1925 and 1961 an owner prior to the defendant, altered the garage so it could be used as a small residence, without obtaining a building permit, certificate of occupancy, or other authorization from the town. In 1966 the town building inspector notified the defendant that the conversion of the garage to a dwelling violated the town's zoning ordinance, but the matter was not further pursued. In 1986 the town zoning compliance officer ordered the defendant to cease and desist using the premises as a dwelling. This court, per Judge John Maloney, found that a tenant was living in the building at the time of the trial, found such a use violated town zoning ordinances when no building permit or certificate of occupancy had been obtained, and issued the injunction prohibiting the defendant from using the building as a dwelling after December 15, 1987. The evidence adduced at this contempt proceeding was that after December 15, 1987 the defendant rented the premises to a tenant for storage of tools and later for conducting a fingernail business. The plaintiff stipulated in open court that the building since December 15, 1987 has not been used as a dwelling. The plaintiff contends that this court should look to the complaint in the injunction action and to the judge's memorandum of decision to determine the purpose of the action and if it finds the defendant's conduct after the injunction violates that purpose, the defendant should be found in contempt. This court did look to the complaint and determines its essence is the allegation that defendant violated CT Page 1822 zoning ordinances by altering the garage into a dwelling unit without a building permit and allowing it to be so used without a certificate of occupancy. Judge Maloney's memorandum of decision likewise rests the issuance of his injunction upon those violations The plaintiff's contention that defendant violated the injunction when it leased the premises after December 15, 1987 for any other purpose than a garage is not supported by the complaint, the memorandum of decision, or the injunction itself. The purpose of the action was to prohibit the building's use as a dwelling and the injunction expressly so states The Supreme Court has recognized that the contempt remedy is particularly harsh and must be founded on a clear and express direction. The reason for clarity is that the party against whom the injunction is issued "may readily know what he can or cannot do thereunder, seeing the consequence of a breach may subject him to loss of property and impairment." Baldwin v. Miles, 58 Conn. 496, 502 (1890). As stated in Blayden [Blaydes] v. Blayden [Blaydes], 187 Conn. 464, 467 (1982), "Recognizing those basic tenets, most courts, in deciding whether a contempt has occurred, have refused to expand judgments by implication beyond the meaning of their terms." Here the plaintiff failed to prove the defendant used the premises in question as a dwelling after the issuance of the injunction. Consequently plaintiff's application to find the defendant in contempt is denied. Robert Satter, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1212798/	26 Cal.3d 912 (1980) 610 P.2d 1038 164 Cal. Rptr. 709 COMMERCIAL UNION ASSURANCE COMPANIES et al., Plaintiffs and Appellants, v. SAFEWAY STORES, INCORPORATED, Defendant and Respondent. Docket No. S.F. 24083. Supreme Court of California. April 14, 1980. 915 COUNSEL George A. Weinkauf, Jr., for Plaintiffs and Appellants. Leonard M. Friedman as Amicus Curiae on behalf of Plaintiffs and Appellants. Pillsbury, Madison & Sutro, Walter R. Allan, Bernard Zimmerman, Donald J. Putterman-Crigger and Wendell H. Goddard for Defendant and Respondent. OPINION THE COURT. We granted a hearing herein in order to resolve a conflict between Court of Appeal opinions in this case and the earlier case of Transit Casualty Co. v. Spink Corp. (1979) 94 Cal. App.3d 124 [156 Cal. Rptr. 360]. After an independent study of the issue, we have concluded that the thoughtful opinion of Justice Sabraw (assigned) for the Court of Appeal, First Appellate District, in this case correctly treats the issues, and that we should adopt it as our own opinion. That opinion, with appropriate deletions and additions,[] is as follows: This case presents the question of whether an insured owes a duty [] to its excess liability insurance carrier which would require it to accept a settlement offer below the threshold figure of the excess carrier's exposure where there is a substantial probability of liability in excess of that figure. Facts: At all times relevant herein Safeway Stores, Incorporated (hereafter Safeway) had liability insurance coverage as follows: (a) Travelers Insurance Company and Travelers Indemnity Company (hereafter Travelers) insured Safeway for the first $50,000 of liability. 916 (b) Safeway insured itself for liability between the sums of $50,000 and $100,000. (c) Commercial Union Assurance Companies and Mission Insurance Company (hereafter conjunctively referred to as Commercial) provided insurance coverage for Safeway's liability in excess of $100,000 to $20 million. One Hazel Callies brought an action against Safeway in San Francisco Superior Court and recovered judgment for the sum of $125,000. Thereafter, Commercial was required to pay $25,000 of said judgment in order to discharge its liability under the excess insurance policy. Commercial, as excess liability carrier, brought the instant action against its insured Safeway and Safeway's primary insurance carrier, Travelers, to recover the $25,000 which it had expended. Commercial alleged that Safeway and Travelers had an opportunity to settle the case for $60,000, or possibly even $50,000, and knew or should have known that there was a possible and probable liability in excess of $100,000. It was further alleged that said defendants had a duty to settle the claim for a sum less than $100,000 when they had an opportunity to do so. Commercial's complaint attempts to state two causes of action against Safeway and Travelers, one in negligence and another for breach of the duty of good faith and fair dealing. Safeway demurred to the complaint on the grounds of failure to state a cause of action. The court sustained the demurrer with 20 days' leave to amend. When Commercial failed to amend its complaint, the complaint was dismissed as to Safeway. Commercial now appeals from the judgment of dismissal.[] The present case is unusual in that the policyholder, Safeway, was self-insured for liability in an amount below Commercial's initial exposure. While this status may explain Safeway's reluctance to settle, it remains to be determined if the insured owes an independent duty to his excess carrier to accept a reasonable settlement offer so as to avoid exposing the latter to pecuniary harm. [Both of Commercial's theories of recovery, negligence and breach of good faith, depend upon the existence of such a duty.] (1) It is now well established that an insurer may be held liable for a judgment against the insured in excess of its policy limits where it has 917 breached its implied covenant of good faith and fair dealing by unreasonably refusing to accept a settlement offer within the policy limits (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 429 [58 Cal. Rptr. 13, 426 P.2d 173]; Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 661 [328 P.2d 198, 68 A.L.R.2d 883]). The insurer's duty of good faith requires it to "settle within policy limits when there is substantial likelihood of recovery in excess of those limits." (Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 941 [132 Cal. Rptr. 424, 553 P.2d 584].) Although an insurance policy normally only carries an express statement of a duty to defend, an insurer's duty to settle is derived from the implied covenant of good faith and fair dealing which is part of any contract (see 4 Witkin, Summary of Cal. Law (8th ed., 1974) § 754, p. 3050, and cases collected therein). This duty was first recognized in Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d 654. The rationale for the "Comunale duty" was articulated by [] [us] at page 659: "It is common knowledge that a large percentage of the claims covered by insurance are settled without litigation and that this is one of the usual methods by which the insured receives protection. (See Douglas v. United States Fidelity & Guaranty Co., 81 N.H. 371 [127 A. 708, 712]; Hilker v. Western Automobile Ins. Co., supra.) ... "The insurer, in deciding whether a claim should be compromised, must take into account the interest of the insured and give it at least as much consideration as it does to its own interest. (See Ivy v. Pacific Automobile Ins. Co., 156 Cal. App.2d 652, 659 [320 P.2d 140].) When there is great risk of a recovery beyond the policy limits so that the most reasonable manner of disposing of the claim is a settlement which can be made within those limits, a consideration in good faith of the insured's interest requires the insurer to settle the claim. Its unwarranted refusal to do so constitutes a breach of the implied covenant of good faith and fair dealing." (2) It has been held in California and other jurisdictions that the excess carrier may maintain an action against the primary carrier for [] [wrongful] refusal to settle within the latter's policy limits (Northwestern Mut. Ins. Co. v. Farmer's Ins. Group (1978) 76 Cal. App.3d 1031 [143 Cal. Rptr. 415]; Valentine v. Aetna Ins. Co., 564 F.2d 292; Estate of Penn v. Amalgamated General Agencies (1977) 148 N.J. Super. 419 [372 A.2d 1124]). This rule, however, is based on the theory of equitable subrogation: Since the insured would have been able to recover from 918 the primary carrier for a judgment in excess of policy limits caused by the carrier's wrongful refusal to settle, the excess carrier, who discharged the insured's liability as a result of this tort, stands in the shoes of the insured and should be permitted to assert all claims against the primary carrier which the insured himself could have asserted (see Northwestern Mut. Ins. Co. v. Farmers' Ins. Group, supra, 76 Cal. App.3d at pp. 1040, 1049-1050). Hence, the rule does not rest upon the finding of any separate duty owed to an excess insurance carrier. Commercial argues that the implied covenant of good faith and fair dealing is reciprocal, binding the policyholder as well as the carrier (see Liberty Mut. Ins. Co. v. Altfillisch Constr. Co. (1977) 70 Cal. App.3d 789, 797 [139 Cal. Rptr. 91]). It is further contended, in effect, that turnabout is fair play: that the implied covenant of good faith and fair dealing applies to the insured as well as the insurer, and thus the policyholder owes a duty to his excess carrier not to unreasonably refuse an offer of settlement below the amount of excess coverage where a judgment of liability above that amount is substantially likely to occur. This theory, while possessing superficial plausibility and exquisite simplicity, cannot withstand closer analysis. We have no quarrel with the proposition that a duty of good faith and fair dealing in an insurance policy is a two-way street, running from the insured to his insurer as well as vice versa (Liberty Mut. Ins. Co. v. Altfillisch Constr. Co., supra, 70 Cal. App.3d at p. 797; Crisci v. Security Ins. Co., supra, 66 Cal.2d at p. 429). However, what that duty embraces is dependent upon the nature of the bargain struck between the insurer and the insured and the legitimate expectations of the parties which arise from the contract. (3) The essence of the implied covenant of good faith in insurance policies is that "`neither party will do anything which injures the right of the other to receive the benefits of the agreement'" (Murphy v. Allstate Ins. Co., supra, 17 Cal.3d at p. 940, quoting from Brown v. Superior Court (1949) 34 Cal.2d 559, 564 [212 P.2d 878]). One of the most important benefits of a maximum limit insurance policy is the assurance that the company will provide the insured with defense and indemnification for the purpose of protecting him from liability. Accordingly, the insured has the legitimate right to expect that the method of settlement within policy limits will be employed in order to give him such protection. 919 (4) No such expectations can be said to reasonably flow from an excess insurer to its insured. The object of the excess insurance policy is to provide additional resources should the insured's liability surpass a specified sum. The insured owes no duty to defend or indemnify the excess carrier; hence, the carrier can possess no reasonable expectation that the insured will accept a settlement offer as a means of "protecting" the carrier from exposure. The protection of the insurer's pecuniary interests is simply not the object of the bargain. As [] [we have] stated: "The duty to settle is implied in law to protect the insured from exposure to liability in excess of coverage as a result of the insurer's gamble on which only the insured might lose." (Murphy v. Allstate Ins. Co., supra, 17 Cal.3d at p. 941.) Similar considerations do not apply where the situation is reversed: where the insured is fully covered by primary insurance, the primary insurer is entitled to take control of the settlement negotiations and the insured is precluded from interfering therewith (see Shapero v. Allstate Ins. Co. (1971) 14 Cal. App.3d 433, 437-438 [92 Cal. Rptr. 244], quoting from Ivy v. Pacific Automobile Ins. Co. (1958) 156 Cal. App.2d 652, 659-660 [320 P.2d 140]). Where, as here, the policyholder is self-insured for an amount below the beginning of the excess insurance coverage, he is gambling as much with his own money as with that of the carrier. The crucial point is that the excess carrier has no legitimate expectation that the insured will "`give at least as much consideration to the financial well-being'" of the insurance company as he does to his "`own interests'" (Shapero, supra, 14 Cal. App.3d at p. 438), in considering whether to settle for an amount below the excess policy coverage. In fact, the primary reason excess insurance is purchased is to provide an available pool of money in the event that the decision is made to take the gamble of litigating. With these principles in mind, it becomes clear that the case of Liberty Mut. Ins. Co. v. Altfillisch Constr. Co., supra, 70 Cal. App.3d 789, upon which Commercial bases its argument, is easily distinguishable. In Liberty, the insurance policy contained the standard clauses giving the company the right of subrogation against third parties, plus a provision which expressly prohibited the insured from doing anything which would prejudice such right (id., at p. 796). The insured leased the equipment covered in the policy to a third party under a contract which effectively released that party from liability for damage, thus cutting 920 off the company's right of subrogation. The court held that the reciprocal covenant of good faith and fair dealing in the insurance policy was breached by the insured, since its act had destroyed "Liberty's expectation of opportunities to subrogate in the event of payment of a loss caused by the negligence of a third party." (P. 797.) In the instant case, whether Commercial could harbor any legitimate expectation that its insured would settle a claim for less than the threshold amount of the policy coverage must be determined in the light of what the parties bargained for. The complaint makes no reference to any language in the policy which would give rise to such expectation. We must therefore ask the question: Did Safeway, when it purchased excess coverage, impliedly promise that it would take all reasonable steps to settle a claim below the limits of Commercial's coverage so as to protect Commercial from possible exposure? Further, did Commercial extend excess coverage with the understanding and expectation that it would receive such favorable treatment from Safeway under the policy? We think not. At this point, two recent appellate decisions which bear upon this issue, deserve mention. First, in the case of Kaiser Foundation Hospitals v. North Star Re-insurance Corp. (1979) 90 Cal. App.3d 786 [153 Cal. Rptr. 678], the Court of Appeal for the Second District, Division Five, concluded that the relationship between an insured and primary carrier vis-a-vis the excess carrier was governed by an implied covenant of good faith and fair dealing (p. 792). That decision, however, dealt with a situation where the insured and its primary carrier acted in collusion to wrongfully allocate certain dates of loss so as to maximize the liability of the excess carrier. It appears that the aggravated conduct on the part of the insured and the primary carrier in taking advantage of the excess carrier prompted the Court of Appeal to invoke the basic principles of good faith and fair dealing in order to give proper redress to the excess carrier. It is to be noted that the opinion takes careful pains to emphasize that in speaking of a good faith and fair dealing duty owed by the insured to the excess carrier under these circumstances, it was expressly not amplifying on the nature of such duty: "[W]e make no attempt to define precisely what rights and duties that entails in a case such as this. Such questions are best decided in the light of concrete facts ..." (p. 794). 921 We acknowledge that equity requires fair dealing between the parties to an insurance contract. We view the Kaiser and Liberty cases as pointing up a recognition in the law that the insured status as such is not a license for the insured to engage in unconscionable acts which would subvert the legitimate rights and expectations of the excess insurance carrier. However, we are unable to derive from this sound principle, the precipitous conclusion that the covenant of good faith and fair dealing should be extended to include a "Comunale duty" that is, a duty which would require an insured contemplating settlement to put the excess carrier's financial interests on at least an equal footing with his own. Such a duty cannot reasonably be found from the mere existence of the contractual relationship between insured and excess carrier in the absence of express language in the contract so providing. We observe that an apparently contrary conclusion has been reached by the Third District in the recent case of Transit Casualty Co. v. Spink Corp. [] [supra] 94 Cal. App.3d 124. [] [We disapprove that case] insofar as it holds that an insured's duty of good faith and fair dealing to his excess carrier compels him to accept a settlement offer or proceed at his peril where there is a substantial likelihood that an adverse judgment will bring excess insurance coverage into play. (5) In conclusion, we hold that a policy providing for excess insurance coverage imposes no implied duty upon the insured to accept a settlement offer which would avoid exposing the insurer to liability. Moreover such a duty cannot be predicated upon an insured's implied covenant of good faith and fair dealing. If an excess carrier wishes to insulate itself from liability for an insured's failure to accept what it deems to be a reasonable settlement offer, it may do so by appropriate language in the policy. We hesitate, however, to read into the policy obligations which are neither sought after nor contemplated by the parties. (End of Court of Appeal opinion.) The judgment is affirmed. NEWMAN, J. I concur in the court's opinion. I believe, though that the aims of California Rules of Court, rule 29(a)(1) would more effectively have been furthered had this matter been handled by depublishing the Transit Casualty case (ante, see above), 94 Cal. App.3d 124 [156 Cal. Rptr. 360]. 922 BIRD, C.J. I concur in the opinion, but I must respectfully dissent from the form of that opinion for the reasons outlined in my concurring and dissenting opinion in In re Perrone C. (1979) ante, at page 58 [160 Cal. Rptr. 704, 603 P.2d 1300]. NOTES [] Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor's parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. (Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal. Rptr. 754, 537 P.2d 874].)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3350515/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION On May 17, 1996, the plaintiff, Yale Church of Truth, Ralph J. Lombardi, Trustee, filed a complaint alleging that the defendant, the Town of Windsor Locks, in its 1989 revaluation of town properties, "excessively assessed" two church properties. The plaintiff alleges that he learned of the revaluation on July 31, 1990, and subsequently, has received' limited relief from town appeals boards." On August 23, 1996, the defendant filed the present motion to dismiss accompanied by a memorandum of law. On September 3, 1996, the plaintiff filed an objection to the motion to dismiss. I "[T]he court, in deciding a motion to dismiss, must consider the allegations of the complaint in their most favorable light." Savage v. Aronson, 214 Conn. 256, 264,571 A.2d 696 (1990). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees,207 Conn. 59, 62, 539 A.2d 1000 (1988). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . ."Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13,668 A.2d 1314 (1995). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong."Figueroa v. C S Ball Bearing, 237 Conn. 1, 4,675 A.2d 845 (1996). "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Woodward v.Woodward, 44 Conn. App. 99, 102, 683 A.2d 1010 (1997); see also Cross v. Hudon, 27 Conn. App. 729, 733, 609 A.2d 1021 (1992) ("[a] trial court should make every effort to CT Page 703 adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal"). II The defendant argues that the court does not have jurisdiction in this case because the plaintiff failed to file the tax appeal within the two month period prescribed by statute. Specifically, the defendant argues that the plaintiff is statutorily mandated to file an appeal with the Superior Court within two months of the mailing of notice of action by the board of tax review, and his alleged failure to timely file statutorily bars this action.1 The defendant also contends that the plaintiff failed to summon the proper party, the board of tax review, and that he failed to provide the statutorily required recognizance. The plaintiff responds that the complaint was timely filed on May 17, 1996, within two months of the notice of decision by the Town of Windsor Locks Board of Assessment Appeals (the "board") dated March 22, 1996. He has provided (Exhibit A) copies of two letters of decision addressing the 1995 tax assessment received from the board dated March 22, 1996. The plaintiff further responds that the town is the proper defendant, and that recognizance was provided.2 "[T]he legislature has established two primary methods by which taxpayers may challenge a town's assessment or revaluation of real property. First, any taxpayer claiming to be aggrieved by an action of an assessor may appeal, pursuant to General Statutes § 12-111, to the town's board of tax review. The taxpayer may then appeal, pursuant to General Statutes [§ 12-117a], an adverse decision of the town's board of tax review to the Superior Court. The second method of challenging an assessment or revaluation is by way of General Statutes § 12-119." Wilson v. Kelly,224 Conn. 110, 117-18, 617 A.2d 433 (1992). General Statutes § 12-117a "allows a taxpayer to challenge the assessor's valuation of his property."Pauker v. Roig, 232 Conn. 335, 340, 654 A.2d 1233 (1995);Tyler's Cove Assn., Inc. v. Middlebury, 44 Conn. App. 517, CT Page 704 526, 690 A.2d 412 (1997). Section 12-119 allows a taxpayer to assert a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of real property. Case law makes it clear that a mere claim of an excessive assessment is insufficient to support an action under this provision. Rather, § 12-119 requires an allegation that something more than mere valuation is at issue. Tyler'sCove Assn., Inc. v. Middlebury, supra, 44 Conn. App. 526;Pauker v. Roig, supra, 232 Conn. 340-41. "The focus of § 12-119 is whether the assessment is illegal." Tyler'sCove Assn,. Inc. v. Middlebury, supra, 44 Conn. App. 527. The plaintiff in this matter is pro se. It is the policy of the court to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party." Mozzochi v.Freedom of Information Commission, 44 Conn. App. 463, 464-65,688 A.2d 363, cert. denied, 241 Conn. 919, 696 A.2d 986 (1997). Also, the court must consider the allegations of the complaint in their most favorable light; Savage v.Aronson, supra, 214 Conn. 264; and must indulge every presumption favoring jurisdiction. Woodward v. Woodward, supra, 44 Conn. App. 102. Consistent with these principles, the court, for the purpose of this motion, views the plaintiff's complaint as an appeal of the board's March 22, 1996 decisions regarding the assessments resulting from the 1989 revaluation. The issue is whether the plaintiff's appeal of the 1995 tax assessment, based on the 1989 revaluation, was brought in a timely fashion pursuant to General Statutes § 12-117a. § 12-117a provides in pertinent part: "Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals . . . may,within two months from the date of the mailing of notice ofsuch action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the CT Page 705 superior court . . . which shall be accompanied by acitation to such town or city to appear before said court. . . . The authority issuing the citation shall take fromthe applicant a bond or recognizance to such town or city, with surety, to prosecute the application . . . . If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review or board of assessment appeals . . . to make such amendment effective." (Emphasis added.) The record in the present case reflects that the plaintiff filed his complaint within two months from the date of the mailing of the board's decision regarding the 1995 assessment; the complaint was made against, and accompanied by a citation to, the town; and, a $250 recognizance by Charles A. Burke was provided within the summons. See: Hughes v. Stamford, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 140001 (March 24, 1995, Karazin, J.) (13 Conn. L. Rptr. 615, 616) (holding that the $250 recognizance provided in the summons complied with the provisions of § 12-117a, and that an "initial failure to provide a proper bond that complied with § 12-117a was an amendable defect which did not deprive the court of jurisdiction"). In a recent Supreme Court decision, Jupiter Realty Co.v. Board of Tax Review, 242 Conn. 363, 698 A.2d 312 (1997), the court addressed the issue of "whether, pursuant to General Statutes . . . §§ 12-111 and 12-117a, a taxpayer can challenge an assessor's decennial revaluation, conducted pursuant to General Statutes . . . § 12-62, in an interim year between decennial revaluations." Id., 364-65. In Jupiter, the plaintiff appealed to the Superior Court from the refusal of the defendant board of tax review to reduce its tax assessment on the list of October 1, 1992, claiming that the assessment, which was based upon the 1991 revaluation, was excessive. During the pendency of the appeal, the plaintiff amended its appeal to include the assessments for the subsequent years 1993, 1994 and 1995. The court in Jupiter held that "in the years intervening between decennial valuations, a taxpayer may . . . challenge an assessment on the ground that the CT Page 706 decennial revaluation overvalued the taxpayer's property." Id., 365. The court agreed with the plaintiff "that neither § 12-62 nor any other statutes bearing on tax appeals preclude a property owner from bringing an appeal that challenges the decennial revaluation in a year subsequent to the revaluation year." The court held that: we decline to read our statutes so as to limit appeals of allegedly inaccurate valuations to the year of the revaluation because such a rule would generate severe inequities." Id., 371. "[A] challenge to the decennial revaluation in a subsequent year seeks only to correct an already existing revaluation." Id., 374-75. The Jupiter court also considered the argument that the action was time barred under the statute. "Last, the board claims that the tax appeals statutes themselves bar the plaintiff's action because the time during which the plaintiff could challenge the decennial revaluation of October 1, 1991, has passed. The board, however, misreads the appeals statutes in reaching this conclusion. Section12-111 provides that `any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review . . . . The specific doing of the assessor' from which the plaintiff appealed was the 1992 yearly assessment and not the decennial revaluation. Any time bar to this action; see §§ 12-111 and 12-117a; therefore, must use as its initial reference point the 1992 assessment and not the decennial revaluation. The fact that the decennial revaluation is the basis of the yearly assessments . . . is of no consequence to the question of whether the appeal was taken timely." (Citations omitted.) Id., 374. In the present case, the appeal is from the decision rendered on March 22, 1996 in which the board ruled specifically on the question of the 1995 assessment. The plaintiff's appeal was timely and, as the pro se complaint fairly states, the appeal puts in issue taxes assessed in 1995 based on the decennial revaluation of 1989.3 Pursuant to General Statutes § 12-62, "we must allow a taxpayer to challenge a decennial revaluation whenever it is used as the basis for a yearly assessment." Jupiter Realty Co. v.Board of Tax Review, supra, 242 Conn. 368. Based on the foregoing, it is concluded that the CT Page 707 plaintiff has satisfied the statutory requirements for bringing this action. The defendant's motion to dismiss is denied. Mulcahy, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2376329/	943 F. Supp. 771 (1996) Barbara GUNERATNE v. ST. MARY'S HOSPITAL. No. G-95-676. United States District Court, S.D. Texas, Galveston Division. November 1, 1996. 772 Anthony P Griffin, Galveston, TX, for Barbara Guneratne. A Martin Wickliff, Jr., Laura A Sapsowitz, Wickliff & Hall, Houston, TX, for St. Mary's Hospital. ORDER GRANTING SUMMARY JUDGMENT KENT, District Judge. In this action, Plaintiff Barbara Guneratne claims that she was subject to unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 12101-12117 and 12201-12213 (also known as the Americans with Disabilities Act of 1990, the "ADA") and in violation of the Rehabilitation Act of 1973. Plaintiff also claims that she was subject to retaliation in violation of the Texas Worker's Compensation Act for filing a worker's compensation claim. Plaintiff seeks to recover compensatory and punitive damages. Now before the Court is the Defendants' Motion for Summary Judgment, dated September 27, 1996, and Plaintiff's Motion for Summary Judgment, dated October 10, 1996. For the reasons set forth below, the Defendant's Motion for Summary Judgment is hereby GRANTED, and the Plaintiff's Motion for Summary Judgment is hereby DENIED. I. FACTUAL BACKGROUND Plaintiff is a registered nurse who began working for St. Mary's Hospital in 1989. She held several different positions during her tenure at the hospital. While working as a clinical relief nurse, on August 15, 1993, Plaintiff claims that she injured her back while attempting to lift a patient. Plaintiff sought medical treatment for her injuries and did not attempt to return to work at the hospital until June, 1994. At that time Plaintiff submitted to St. Mary's a release with restrictions from her physician, Dr. J. Pat Kearney. In that release, Dr. Kearney specified that Guneratne's activity was restricted to "no lifting or bending greater than 5 lbs." Defendant's Ex. A, p. 103, lines 20-23. A second release by Dr. Kearney, submitted on July 27, 1994, stated that Guneratne should "avoid heavy lifting." Defendant's Ex. A, p. 120, lines 11-23. Plaintiff did not return to work at St. Mary's following her alleged injury. Nor did she submit any other releases to the hospital other than the two obtained from Dr. Kearney. 773 Plaintiff was advised by the hospital that its Return to Work Policy required that she present a physician's release to full duties with no restrictions. To determine whether a release was sufficient to enable an employee to return to work, the Policy further required that any restrictions noted on the release had to be measured against the ADA physical requirements for the employee's job. That is, Plaintiff had to be able to perform the essential functions of her job as a clinical relief nurse with or without accommodation in order to return to work. The ADA physical requirements for the job of a clinical nurse included the activity of lifting or carrying weight up to 40 lbs. 61-100% of the time, and over 40 lbs. 31-60% of the time. For example, nurses at St. Mary's were often required to lift and/or move patients in order to "turn" patients, assist them to walk, lift patients in and out of wheel-chairs, help them to bathe, etc., or to lift and/or move weighty equipment or furniture to assist in patient comfort. Many of these demanding lifting tasks are necessary in emergency situations in which the nurse must react quickly. St. Mary's argues that because the two releases submitted by Dr. Kearney did not allow Plaintiff to engage in this essential function of lifting, Plaintiff was not able to return to work. Plaintiff argues, on the other hand, that St. Mary's had a policy of not allowing any employee who has an injury or disability to return to work unless there had been a 100% release, which is a per se violation of the ADA. II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56. Rule 56(e) requires that when a motion for summary judgment is made, the nonmoving party must set forth set forth specific facts showing that there is a genuine issue for trial. Id.; See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). III. THE ADA CLAIMS[1] To establish a prima facie case of employment discrimination under the ADA, the Plaintiff must show that she: (1) was "disabled" as that term is defined by the ADA, (2) is qualified, with or without accommodation, for the position sought, (3) was subject to adverse employment action, and (4) was replaced by a non-disabled person or was treated less favorably than non-disabled employees. E.E.O.C. v. Texas Bus Lines, 923 F. Supp. 965, 969 (S.D.Tex.1996), citing Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 254 (5th Cir.1990); EEOC v. Brown & Root, Inc., 688 F.2d 338, 340-41 (5th Cir. 1982). Assuming, arguendo, that Guneratne is able to establish that she has a "disability" as defined by the ADA,[2] she cannot establish 774 a prima facie case of discrimination under the ADA because she cannot show that she is a "qualified individual." In determining whether a plaintiff is a "qualified individual" with a disability, the Court must first determine whether the plaintiff can perform the essential functions of the job she holds. Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1386, 128 L. Ed. 2d 61 (1994); see also Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1263, 134 L. Ed. 2d 211 (1996). If the Court concludes that the plaintiff is not able to perform the essential functions of the job, the Court must then determine whether any reasonable accommodation by the employer would enable the plaintiff to perform those functions. Chandler, 2 F.3d at 1394-94. If no reasonable accommodation would enable the plaintiff to perform the essential functions of her position, then she is not a "qualified individual" with a disability and is not subject to the protection afforded by the ADA. Tyndall v. National Education Centers, Inc., 31 F.3d 209, 212-13 (4th Cir.1994). "Essential functions" are those functions that bear more than a marginal relationship to the job at issue. Chandler, 2 F.3d at 1393. Physical criteria, such as the ability to lift heavy loads, must be necessary and substantially related to a person's ability to perform the essential functions of the job. Evidence of whether a particular function is essential includes, but is not limited to: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience or past incumbents on the job; and/or (7) the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3) (1995). The Court concludes that the Plaintiff in this case is unable to perform the essential functions of her job as a clinical nurse at St. Mary's Hospital. The hospital had a written job description for the job of Clinical Nurse, in which the category "Working Conditions and Physical Requirements" referred the reader to the "ADA Survey of Physical Requirements" for the job of Clinical Nurse. The ADA Survey of Physical Requirements for the job of Clinical Nurse required, among other things, that the nurse be physically able to lift or carry weight up to 40 lbs 61-100% of the time, and over 40 lbs. 31-60% of the time. These physical requirements are an essential function of the job because nurses must be prepared to immediately react in emergency situations, which Plaintiff herself suggests occur "possibly once a week or once every four or five days" on the unit where she worked. See Defendant's Ex. A, p. 82, lines 14-19. Furthermore, nurses are also involved in physically demanding lifting tasks including turning patients, helping them walk, lifting patients in and out of wheel-chairs, and helping them bathe. Guneratne herself admits that only thirty to forty-five minutes of an average eight to twelve hour shift are spent doing something other than physical activity. See Defendant's Ex. A., p. 82, lines 1-13. Thus, the Plaintiff's own description of the job of clinical nurse makes it clear to this Court that physically demanding duties are an essential function of that position. Although these tasks may not be essential to the work performed by a trained registered nurse, the summary judgment record is clear that these tasks were performed by the clinical nurses at St. Mary's and were an integral part of patient care. As the Court has concluded that the Plaintiff is unable to perform the essential functions of her job, the Court now turns to the question of whether any reasonable accommodation by the employer would enable the Plaintiff to perform those essential functions. Chandler, 2 F.3d at 1393-94. However, the ADA does not require an employer to eliminate or reallocate essential functions of a position in order to provide accommodation. Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922, 925 (5th Cir.1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 389 (1994); see 775 also 29 C.F.R. § 1630.2(o) (1995). "Such redefinition exceeds reasonable accommodation." Bradley, 3 F.3d at 925. The Plaintiff has suggested that, as an accommodation, she should have been allowed to avoid heavy lifting and/or permitted to request assistance in situations where heavy lifting was required. Such an accommodation would eliminate or reallocate an essential function of Guneratne's job, which the ADA does not require. Bradley, 3 F.3d at 925. Additionally, such an accommodation could pose a risk to the health and welfare of St. Mary's patients in the event of an emergency situation which would require immediate action. Daugherty, 56 F.3d at 698 (holding that an individual is not qualified for a job if there is a genuine substantial risk that she could be injured or could injure others and the employer cannot modify the job to eliminate that risk); see also 29 C.F.R. § 1630.2(r). Therefore, the Court concludes that Guneratne cannot perform the physical duties of nursing care which are an essential function of the position of a clinical nurse. There is no accommodation that St. Mary's Hospital could have made that would enable her to perform those duties. As Plaintiff has failed to state a prima facie case pursuant to the ADA, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Summary Judgment is DENIED as to the ADA and Rehabilitation Act claims. Accordingly, Plaintiff's ADA and Rehabilitation Act claims are DISMISSED WITH PREJUDICE. IV. THE WORKER'S COMPENSATION RETALIATION CLAIMS The Texas Labor Code provides that a person may not discharge or in any other manner discriminate against an employee because the employee has in good faith filed a worker's compensation claim. TEX.LAB.CODE ANN. § 451.001 (Vernon Supp. 1995). To establish a claim under this statute, the plaintiff has the burden of establishing a causal nexus between her filing of a worker's compensation claim and any adverse action by her employer. Parham v. Carrier Corporation, 9 F.3d 383, 386 (5th Cir.1993). "The plaintiff need not prove that his quest for worker's compensation was the sole reason for [any adverse action], but he must establish that it was a determining factor." Id. The Plaintiff has failed to show a causal nexus between her filing of a worker's compensation claim and the hospital's decision to not allow her to return to work. Guneratne has offered no evidence to substantiate her claim that her filing of a worker's compensation claim was a factor, let alone a determining factor with respect to any of the hospital's actions. In fact, the Court has already concluded that the overwhelming evidence supports the fact that the Plaintiff was not able to return to work because she was physically unable to perform the essential functions of her job. See Parham, 9 F.3d at 388-89 (finding that plaintiff had failed to establish a causal nexus where the objective evidence showed that the reason the plaintiff did not return to work was that he was not physically able to perform his job). Therefore, the Court GRANTS Defendant's Motion for Summary Judgment as to the Texas Workers' Compensation Act retaliatory discharge claims,[3] and those claims are hereby DISMISSED WITH PREJUDICE. V. CONCLUSION For the reasons stated above, this Court GRANTS the Defendant's Motion for Summary Judgment as to all claims, and DENIES the Plaintiff's Motion for Summary Judgment as to all claims. Furthermore, Defendant's request for costs to be assessed against the Plaintiff is hereby DENIED. All parties are to bear their own costs incurred herein to date. IT IS SO ORDERED. DONE this 31st day of October, 1996, at Galveston, Texas. NOTES [1] Plaintiff's claims under the Rehabilitation Act are subject to the same standards as her ADA claims. See Rehabilitation Act Amendments of 1992, Public Law No. 102-569, § 506, 106 Stat. 4344, 4428 (1992) (codified at 29 U.S.C. § 794(d)) ("the standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under Title I of the Americans with Disabilities Act of 1990"). [2] Pursuant to the ADA, an individual is considered to have a disability if that individual either has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," or has "a record of such impairment," or is "regarded as having such an impairment." 42 U.S.C. § 12102(2). [3] Plaintiff's Motion for Summary Judgment is silent as to the Texas Workers' Compensation Act retaliatory discharge claims; however, to the extent that Plaintiff has made a Motion for Summary Judgment as to those claims, that Motion is hereby DENIED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2395320/	702 A.2d 889 (1997) STATE v. Jose Nicolas RIOS. No. 97-47-C.A. Supreme Court of Rhode Island. November 6, 1997. Aaron L. Weisman, Andrea J. Mendes, Providence, for Plaintiff. David A. Cooper for Defendant. Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ. OPINION PER CURIAM. This case came before the court for oral argument October 14, 1997, pursuant to an order that had directed both parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The State of Rhode Island has appealed from an order entered by a justice of the Superior Court granting a motion to suppress evidence obtained during a search of the apartment of defendant, Jose Nicolas Rios. This search was carried out pursuant to a warrant issued by a judge of the District Court based upon an affidavit submitted by Detective David Neill, a member of the Rhode Island State Police. A copy of this affidavit is attached hereto and made a part hereof. At the outset it is necessary to determine the standard, by which this court now reviews a decision by a justice of the Superior Court holding that probable cause either exists or does not exist based upon the justice's examination of a warrant or a determination of the reasonableness of a warrantless search. In our past cases we have given deferential review to a Superior Court justice's holdings on the issue of probable cause. State v. Collins, 543 A.2d 641, 650 (R.I.1988); State v. Beaumier, 480 A.2d 1367, 1375 (R.I. 1984). However, in light of the recent decision by the Supreme Court of the United States in Ornelas v. United States, 517 U.S. 690, , 116 S. Ct. 1657, 1662, 134 L. Ed. 2d 911, 919 (1996), appellate courts have been directed to review questions of the existence or the nonexistence of probable cause or reasonable suspicion de novo in order that uniformity may be encouraged and police may be provided with a defined set of rules 890 upon which they can reasonably rely. Consequently our clearly erroneous standard of review as set forth in Collins, 543 A.2d at 650; Beaumier, 480 A.2d at 1375, and prior cases is no longer applicable. However, a trial justice, in reviewing the issuance of a warrant by a District Court judge or other issuing magistrate, must review the determination to issue the warrant with great deference, see, e.g., State v. Pratt, 641 A.2d 732, 736-37 (R.I.1994); State v. Baldoni, 609 A.2d 219, 220 (R.I.1992); State v. Ricci, 472 A.2d 291, 298 (R.I.1984). This deferential review of the decision of an issuing magistrate has been emphasized by the Supreme Court of the United States in Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527, 547 (1983). When we examine the affidavit submitted by Detective Neill, we are of the opinion that the statements made under oath in that affidavit not only establish probable cause under the relaxed standards of Illinois v. Gates but actually also meet the more stringent tests set forth in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In essence the SpinelliAguilar test requires that the affidavit contain facts from which the issuing magistrate may determine that the confidential informant is reliable and credible. Spinelli, 393 U.S. at 415-16, 89 S. Ct. at 588-89, 21 L.Ed.2d at 643; Aguilar, 378 U.S. at 114-15, 84 S. Ct. at 1514, 12 L.Ed.2d at 729. Here the affidavit clearly does contain such facts. The officer's affidavit discloses that the informant has given reliable information in the past that resulted in both arrests and convictions. Second, the test requires that the affidavit contain facts from which the issuing magistrate may determine the source of the informant's knowledge of the presence of contraband in the premises to be searched. This affidavit includes such facts. Indeed, the affidavit contains a statement that the informant actually observed the presence of an amount of cocaine at the suspect's residence at 2930 Pawtucket Avenue, apartment 4, in East Providence. These statements alone would support a finding of probable cause to believe that defendant possessed a controlled substance in his apartment and would meet the Spinelli-Aguilar requirements. In addition to these unequivocal statements establishing reliability and the source of the informant's knowledge, the corroborative detail set forth by the detective served the purpose of enhancing the credibility of the informant. The controlled purchase by a third person, though a corroborative circumstance, was not in this case necessary to the determination of probable cause. Consequently a critical review of the reliability of this purchase by a third person and the turning over by that person of a quantity of cocaine to the informant did nothing to destroy the probable cause established by the statements of the informant and by the corroborative detail that enhanced the informant's credibility. The suggestion that one portion of the affidavit contained stale information relating to the detective's recognizing defendant when he saw him depart from the El'Castillo Restaurant on Mineral Spring Avenue in Pawtucket may have been true but had little bearing on the principal establishment of probable cause by reason of the recent observations both of the informant and of the police. We have often stated that probable cause need not reach the standard of proof beyond a reasonable doubt or even proof that might establish a prima facie case sufficient to be submitted to a jury. Pratt, 641 A.2d at 736; Baldoni, 609 A.2d at 220; State v. Doukales, 111 R.I. 443, 449, 303 A.2d 769, 773 (1973). In the case at bar the Superior Court justice did not give adequate deference to the decision of the issuing magistrate and reviewed the affidavit with a skepticism that was inappropriate in the circumstances. For the reasons stated, the state's appeal is sustained and the order of the Superior Court justice granting the motion to suppress is hereby vacated. Under our de novo review we determine that the affidavit established probable cause for the issuance of the search warrant. The papers in the case may be remanded to the Superior Court for further proceedings consistent with this opinion. 891 ATTACHMENT ATTACHMENT AFFIDAVIT I, Detective David Neill do under oath depose and say; I have been a member of the Rhode Island State Police for the past eight and one-half years. I am presently assigned to the Narcotics Division. My duties include, but are not limited to investigating violations of Rhode Island's Uniform Controlled Substance Acts. During the beginning of the 1994 calendar year your affiant began receiving information regarding a Colombian male distributing cocaine and heroin in the State of Rhode Island. Information revealed that this male was known as; Nicholas and that he frequently responded to the State of New York and returned to Rhode Island with large amounts of cocaine and smaller amounts of heroin. Your affiant has spoken to other members of law enforcement who have acknowledge that they have gathered information regarding Nicholas and his involvement in distributing cocaine and heroin. During the month of February 1995 your affiant was contacted by a confidential and previously reliable informant. This informant has provided your affiant with information in the past which has resulted in at least five subjects being arrested and convicted for violating Rhode Island's Uniform Controlled Substance Acts. These arrest are purposely being omitted to protect the identity and well-being of this source. This informant shall be referred to in the remainder of this text in the masculine gender and as source one. According to source one he is familiar with the Colombian male known as Nicholas. Source one believes that Nicholas's real name is Jose Rios. Source one describes Nicholas as being approximately five feet eleven inches, light skinned, approximately 200 pounds and balding. Source one also advised your affiant that Jose Rios alias Nicholas operates Rhode Island registration HC-934 attached to a color gold Volkswagen Jetta. Source one also advises that Jose Rios sometimes operates a color brown Buick. Source one informed your affiant that Jose Rios was residing in East Providence, Rhode Island. Your affiant met with source one and responded to 60 Village Green North, East Providence, Rhode Island. Source one informed your affiant that Jose Rios was residing at this location. Your affiant conducted independent investigations apart from source one and learned that Jose Rios did on fact reside at this location. Source one informed your affiant that Jose Rios did in fact store, hold and conceal cocaine and heroin along with United States Currency derived from the illegal sales of narcotics at this location. Source one also advises that Jose Rios pays someone in the Pawtucket area to hold, store and conceal cocaine and heroin. Source one advises that he is unaware of who this person is and where they are residing. Your affiant checked Rhode Island registration and learned that it was registered to Jose N. Rios DOB: 4-17-60 of 60 Village Green North, East Providence, Rhode Island. A check of license files revealed the same information and that Jose has an active license bearing number 8616041. Your affiant checked motor vehicles files and learned that Jose Rios has been stopped in the State of New York for moving violations. A check with the Bureau of Criminal Identification revealed that Jose Rios had no arrest in the State of Rhode Island. Several similarities were obtained in the National Criminal Identification Center. Your affiant checked was contacted during this month by source one and informed that Jose Rios was presently at El'Castillo restaurant on Mineral Spring Avenue in Pawtucket. Your affiant responded to this location and met with source one. Shortly thereafter a male fitting the description provided by source one exited the establishment and source one identified him as Nicholas alias Jose Rios. Upon observing this male your affiant realized that this male has been observed while conducting previous narcotic investigations. This male has been observed during previous investigations regarding individuals of the Colombian race. This male had been observed meeting with Rodrigo Lopez of Barett Street, North Providence, *892 Rhode Island. Subsequent to this meeting your affiant arrested Mr. Lopez for possession of cocaine over one ounce under one kilogram. Mr. Lopez was later arrested by the Providence and North Providence police for possession of cocaine over one ounce under one kilogram and possession of two pipe bombs. During the beginning of March 1995 your affiant learned from source one that Jose Rios was residing at 2930 Pawtucket Avenue, apartment four, East Providence, Rhode Island. Source one advised your affiant that he had been present at this location and had observed an amount of cocaine. Your affiant responded to this location with source one and observed Rhode Island registration HC934 parked at same. Your affiant later made several inquiries and learned that Jose Rios was in fact residing at this location. Your affiant along with Detective James Demers maintained a surveillance position at this location and observed Jose Rios alias Nicholas alias John Doe exit and enter into his motor vehicle. Your affiant requested source one to make a controlled purchase of cocaine from Jose Rios, but source one advised your affiant that he would not. Source one advised that he feared Jose Rios due to his higher position in the chain of distribution of narcotics and his ties to the country of Colombia. Source one advised that he feared for his life and the life of relatives in Colombia. During the past three days your affiant was contacted by source one and informed that a person friendly with source one was attempting to purchase cocaine from Jose Rios. Source one advised that this individual would be meeting Jose Rios in the Pawtucket area. Source one advised your affiant that he would be able to obtain a small amount of the cocaine purchased and provide it to your affiant. Your affiant and Detective James Demers responded to the dwelling of Jose Rios. A short time later your affiant and Detective Demers observed Jose leave operating his motor vehicle. Jose was followed to the Pawtucket area and was observed entering an establishment. Jose remained in the establishment for a period of time and was then observed leaving. After he left the establishment source one responded to your affiant and turned over a color white rocklike substance, which later field tested positive for the presumptive presence of cocaine. Source one advised that Jose Rios sold the cocaine to an unidentified party and that this second party provided the cocaine to source one. Based on the aforementioned information and independent investigations by your affiant and Detective James Demers your affiant reasonably believes that Jose Rios is holding, storing and distributing cocaine from his dwelling described as apartment four at 2930 Pawtucket Avenue, East Providence, Rhode Island. Your affiant therefore request to search said apartment for cocaine, heroin, packaging materials and instruments, ledgers, pagers, United States currency derived form the illegal sales of narcotics and any paperwork showing possession and ownership if the residence. Providence SC. 3-16-95 DATE /s/ Det. David Neill Affiant In Pawtucket this 16th, day of March 1995 Detective David Neill did appear before me and made oath to the truth of foregoing. [Signature] Judge	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1486399/	972 F. Supp. 1042 (1996) James E. GRANT, Jr. v. UOP, INC. and Claude Clary. Civil Action No. 95-1240. United States District Court, W.D. Louisiana, Shreveport Division. October 4, 1996. 1043 1044 Allison Anne Jones, John S. Hodge, Shreveport, LA, for Plaintiff. Edwin H. Byrd, III, John T. Cox, Jr., J. David Garrett, Blanchard, Walker, O'Quin & Roberts, Shreveport, LA, for Defendant UOP. 1045 Joel M. Sermons, Shreveport, LA, for Defendant Claude Clary. MEMORANDUM RULING STAGG, Senior District Judge. Before the court is UOP, Inc.'s ("UOP") motion for summary judgment, Claude Clary's ("Clary") motion for summary judgment, and James E. Grant, Jr.'s ("Grant") motion for partial summary judgment. Based on the following, UOP's motion for summary judgment is GRANTED; Clary's motion for summary judgment is GRANTED; and Grant's motion for summary judgment is DENIED. Grant's claims against UOP and Clary are to be DISMISSED WITH PREJUDICE. I. FACTS Grant began working at UOP in June of 1992. He was hired by Harlan M. Phelps ("Phelps"), UOP's Human Resource Manager, and was assigned to the labor department. Clary had been on sick leave when Grant was hired and became Grant's supervisor upon his return in September of 1992. Grant claims that during a conversation with Clary in September of 1992, Clary used the expression "cotton patch niggers" when referring to the wearing of apparel of two other employees. In response, Grant told Clary he did not appreciate the comment. See Grant deposition Vol. I at 172. In September of 1992, Clary required Grant to use a gas powered grass trimmer around a pond on UOP property for approximately two weeks. Grant requested to do another job, but Clary told him everyone else was busy and that he did not want to interrupt their work by trying to switch out jobs. See Grant deposition Vol. I at 171. At some point before December 1993, Grant was required to use a "swing blade" to cut grass. In 1992 or 1993 Grant was required by Clary to dig a 16 foot deep hole with a white co-worker using shovels. The job was eventually finished by using a "backhoe." See Grant deposition Vol. I at 185, 190. On April 15, 1994, Grant was admitted to CPC Brentwood Hospital for psychiatric treatment. He returned to work on May 23, 1994. On April 11, 1995, Grant made a written complaint to Vernon Chance, Plant Manager, regarding three alleged instances of racial discrimination. They are listed as follows: 1) On March 30, 1995, Grant accused Larry Bell ("Bell"), a co-worker who had no supervisory authority over Grant, of saying "niggers can't weld" and the phrase "nigger please" in Grant's presence. Bell admitted saying "nigger please," but denied saying "niggers can't weld"; 2) Grant claimed that on April 3, 1995, Jimmy Don Blaine ("Blaine"), also a co-worker of Grant's, said to Grant regarding a karate match in which Grant was participating, that Grant's opponent probably was thinking to himself that "this damned nigger is gonna whip my ass." Blaine denied making the statement; 3) On April 11, 1995, Clary asked Grant if he knew the difference between a "nigger" and a "black man." Clary admitted saying this and attempted an apology the next day. At the time this statement was made Clary was not Grant's supervisor, nor was he working with Grant at UOP. On May 16, 1995, Phelps was made aware of additional claims by Grant that were not made to UOP on April 11, 1995. Many of these claims were alleged against Clary. On May 19, 1995, Clary was suspended until his forced retirement on May 31, 1995. Grant also makes a claim for retaliatory discipline and failure to promote. Facts relevant to these claims are listed as follows: 1) On March 11, 1994, Grant was given an oral warning by W.B. Gasway for absenteeism; 2) He was also given an oral warning for absenteeism on September 28, 1994; 3) He was given a written warning on November 23, 1994; 4) When cited again for an unacceptable absenteeism rate for the period of January 15, 1995, through April 15, 1995, this culminated in a three day suspension for Grant starting on April 18, 1995. Grant filed a claim with the Louisiana Human Rights Commission on April 18, 1995. He filed a claim with the EEOC on April 20, 1995. This suit was filed on July 7, 1995. Grant makes claims against UOP for violations of Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, violations of La R.S. 23:1006 and 51:2256, and a claim for intentional 1046 infliction of emotional distress. Grant makes the same claims against Clary individually with the exception of the Section 1981 claim which Grant concedes he does not have against Clary. See Grant's Memorandum in Opposition to Summary Judgment at 19. II. LAW AND ANALYSIS A. Summary Judgment Standard Summary judgment is proper pursuant to F.R.C.P. 56 "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). "Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an essential element of that party's case, and on which that party will bear the burden of proof at trial." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995). If the movant demonstrates the absence of a genuine issue of material fact, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. Where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, then summary judgment should be granted. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993). B. Title VII Hostile Work Environment Claims Title VII makes it unlawful "for an employer ... to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The phrase "terms, conditions, or privileges of employment" has been interpreted by the courts to provide a cause of action to a person who works in a discriminatorily hostile environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 20, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993); Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S. Ct. 2058, 32 L. Ed. 2d 343 (1972).[1] According to the Court in Harris, a discriminatorily hostile workplace is one which is permeated with "discriminatory intimidation, ridicule, and insult," that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,".... Harris, 510 U.S. at 21, 114 S.Ct. at 370, quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49 (1986) (citations omitted). This standard does not make actionable any conduct that is merely offensive.... As we pointed out in Meritor, "mere utterance of an ... epithet which engenders offensive feelings in a[n] employee" does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment an environment that a reasonable person would find hostile or abusive is beyond Title VII's purview. Id. Grant cites Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993), and cases from other circuits, for the proposition that the use of the term "nigger", or racial epithets containing that term, are essentially discrimination per se and should always amount to a hostile work environment under Title VII. Brown does not hold that use of this term constitutes a hostile work environment per se. Brown holds that use of this term is sufficient to shift the burden to the employer under the burden shifting analysis 1047 of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In Vaughn v. Pool Offshore Company, 683 F.2d 922 (5th Cir.1982), the Fifth Circuit did not find a hostile work environment in an employment situation where Vaughn was called "nigger," "coon," and "black boy" by co-workers. Additionally, co-workers used the word "nigger" in Vaughn's presence on two other occasions. The court found that Vaughn also used racial slurs along with his co-employees and that all persons on this particular offshore oil rig were subjected to the same "obnoxious treatment." Id. at 925. The cases cited above clearly do not establish that the law of the Fifth Circuit dictates that the occasional use of this opprobrious epithet in an employment setting equates to a hostile work environment per se. The incidents of alleged discrimination relevant to the hostile environment determination are those involving Larry Bell, Jimmy Don Blaine, and Claude Clary.[2] Based on the totality of the circumstances, these incidents, though not acceptable in modern society and obviously offensive to Grant, could not lead a reasonable juror to conclude that Grant has met the Harris standard of hostile work environment. Grant's work environment was not permeated with discriminatory insult and intimidation. This conduct was not pervasive so as to create an objectively hostile work environment. These were isolated events perpetrated by different people. The work environment of Grant was not replete with racial slurs, but rather on these isolated occasions this term was used and it surely "engendered offensive feelings" in Grant. See Harris, 510 U.S. at 21, 114 S.Ct. at 370. C. Prompt Remedial Action Under Title VII Even if the above conduct could be said to establish a hostile work environment for Grant, UOP took prompt remedial action "reasonably calculated" to end the harassment in question. Garcia v. Elf Atochem North America, 28 F.3d 446, 451 (5th Cir. 1994). What is appropriate remedial action will necessarily depend on the particular facts of the case the severity and persistence of the harassment, and the effectiveness of any remedial steps. Id., citing Waltman v. Int'l Paper Co., 875 F.2d 468, 479 (5th Cir.1989). Title VII does not require that an employer use the most serious sanction available to punish an offender, particularly where, as here, this was the first documented offense by an individual employee. Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992), affirmed, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). When Grant reported Bell on April 11, 1995, Phelps, the Human Resource Manager, quickly interviewed Bell regarding this incident. Bell was instructed by Phelps, in the presence of Leone Roberts, Maintenance Coordinator, that use of this term was a serious offense at UOP and that a future incident would be grounds for termination. A written warning notice regarding this incident was placed in Bell's personnel file. There were no further complaints levied against Bell after this warning. When Grant reported Blaine by way of his letter on April 11, 1995, Phelps quickly began an investigation and appointed Leon Roberts to aid in the investigation. Roberts interviewed all of the employees alleged to have heard the statement allegedly made by Blaine. Roberts then reported back to Phelps that all persons interviewed denied hearing the statement allegedly made by Blaine. Phelps then called Grant into his office while Blaine was present. Blaine denied making the statement and Grant insisted that the statement was made. See Phelps deposition at 94-95. Based on the reports of other employees and Blaine's denial during the investigation, Phelps felt that the comment was not made by Blaine. Id. at 96. Nevertheless, Phelps took remedial action by warning Blaine that this was a serious matter, that it was against company policy to make racial slurs, and that another incident would be grounds for termination. Id. at 96. 1048 Phelps then reported the results of his investigation and remedial action to Vernon Chance, Plant Manager. There were no further allegations of such conduct by Blaine after this warning. In both cases Phelps quickly began an investigation, interviewed the appropriate people, and considering the severity and persistence of the harassment, gave adequate reprimands to both Bell and Blaine. Not only was this action "reasonably calculated" to end the harassment in question, the evidence shows that it did end the harassment. Bell and Blaine were not reported for such conduct again. As stated in Landgraf, Phelps did not have to use the most serious sanction available to punish these employees, considering these were isolated events and were the first documented offense of their kind by Bell and Blaine. The action taken by Phelps was swift, reasonably calculated to end the harassment, and actually did end the harassment. Indeed, in Garcia, 28 F.3d at 451, an employee was verbally reprimanded for quite severe sexual misconduct and told that similar conduct in the future would result in termination. There the action was prompt and actually ended the harassment. The Fifth Circuit held that such action was prompt remedial action sufficient to allow the employer to prevail on summary judgment. The court now turns to UOP's discipline of Clary. Grant reported Clary's comment on April 11, 1995, by a letter to Chance. Chance ordered an investigation by Phelps and also ordered that Bill Gasway ("Gasway") become involved because Clary was in his department. Chance asked Gasway to get all the facts and report back to Chance. After meeting with Clary, Gasway told him to apologize to Grant regarding the incident. Clary was also given a verbal warning by Gasway. No similar conduct by Clary was reported after this warning. Just over a month after this, on May 16, 1995, UOP received a copy of the letter sent by Grant to the Louisiana Human Rights Commission. In that letter Grant made allegations regarding Clary that were not made in the April 11, 1995 letter and were not known by UOP until May 16, 1995. On May 18 or 19, 1995, Phelps investigated the allegations in the letter by questioning Clary regarding each allegation. See Phelps deposition at 116-118. Clary denied each and every allegation. At that point Phelps went to Chance and they decided to suspend Clary. Based on the information received in the letter, and Phelps' investigation, Clary was suspended on May 19, 1995. In Clary's case UOP took prompt remedial action reasonably calculated to end the harassment. Likewise the action taken by UOP did end the harassment. After Clary's verbal warning, there were no other reported incidents against Clary. Despite the fact that Clary was no longer being reported for misconduct, UOP further disciplined Clary after its receipt of the May 16, 1995 letter. This action was swift and also calculated to end the harassment. Additionally, it sent a message to all UOP employees that conduct such as that alleged would not be tolerated. It is clear that UOP took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigation. Holding a company such as [UOP] liable after it has taken such action would produce truly perverse incentives benefitting no one, least of all actual or potential victims of [] harassment. Sims v. Brown & Root Indus. Services, Inc., 889 F. Supp. 920, 929 (W.D.La.1995) (Stagg, J.), citing Carmon v. Lubrizol Corp., 17 F.3d 791, 795-796 (5th Cir.1994). Therefore, UOP is not liable for the conduct of Bell, Blaine, or Clary as depicted above. D. Disparate Treatment Claims That Are Time Barred Grant claims Clary also treated him differently from other employees solely because of his race. He cites events in the years 1992 and 1993 as evidence of this claim. Grant's claims for the actions complained of are time barred. Grant claims that in September of 1992 Clary used the term "cotton patch niggers" in Grant's presence. Also in that same month Grant alleges the aforementioned event with the gas powered grass trimmer. 1049 At some time before December 1993 Grant was required to use a "swing blade" to cut grass. Sometime in 1992 or 1993 Grant and a white co-worker were required to dig a deep hole with shovels. During this time Grant alleges that Clary treated him like a "kid" by always watching over Grant while he was working. In order to sustain a Title VII claim a plaintiff must file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(d); Waltman, 875 F.2d at 474. The limitations period commences on the date that the discriminatory act occurred. Id. Claims under Louisiana state laws against discrimination must be filed within one year of the alleged act of discrimination. Bustamento v. Tucker, 607 So. 2d 532 (La. 1992), citing Williams v. Conoco, Inc., 860 F.2d 1306, 1307 (5th Cir.1988). The statute of limitations for Grant's Section 1981 claim is adopted from the most appropriate or analogous state statute of limitations. Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987). Under this standard Grant has one year from the alleged act of discrimination within which to file his claim for Section 1981 violations. Based on the foregoing authorities, the following deadlines are applicable in this case. Grant filed his EEOC charge on April 20, 1995, making the bar date for all of his Title VII actions October 20, 1994, six months before the charge was filed. Thus, Grant's claims against Bell, Blaine, and Clary referred to in Section II, parts B and C of this opinion were timely. Grant's claims for the events occurring in September of 1992 and in 1993 are barred because he did not file his claim with the EEOC within 180 days of these acts. Grant's Section 1981 claims and state law claims of discrimination as to the acts of September 1992 and 1993 are barred because they occurred before July 7, 1994, one year before suit was filed. Grant argues that his claim for the actions of Clary in 1992 and 1993 are not time barred because they are part of a continuing violation culminating in acts that occurred within the statute of limitations for these claims. Namely, the actions of Bell, Blaine, and Clary in March and April of 1995 served to bring his claims for the conduct of 1992 and 1993 under the continuing violation theory. The continuing violation theory is an equitable exception which arises where the unlawful employment practice manifests itself over time, rather than as a series of discrete acts. Waltman, 875 F.2d at 474. The factors to consider in determining whether a claim for a continuing violation exists are as follows: ... The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of the most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependant on a continuing intent to discriminate? Id. at 475, quoting Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971, 981 (5th Cir.1983), cert. denied, 479 U.S. 868, 107 S. Ct. 232, 93 L. Ed. 2d 158 (1986). Grant alleges four events by Clary that occurred between September of 1992 and December of 1993, when Clary was no longer Grant's supervisor. Grant does not allege any acts of discrimination against him from December 1993, until Bell's comments on March 30, 1995. These alleged acts taken as a whole were not "recurring" as contemplated by Waltman. Indeed, the actions of Clary in 1992 and 1993 were more in the nature of isolated work assignments or employment decisions. See Waltman, 875 F.2d at 475. Grant wrote a letter in October of 1994 that indicated that he felt the actions he experienced in 1992 and 1993 were acts of discrimination against him. Regarding the 1050 degree of permanence, Grant's allegation of Clary's use of the term "cotton patch niggers" should have immediately triggered Grant's awareness and duty to assert his rights. In fact, Grant's complaint on April 11, 1995, was regarding comments very similar to this one. The acts of Clary in 1992 and 1993 were sufficient to trigger Grant's awareness that he felt he was the object of discrimination. The acts of March and April 1995, some two years later than the earlier acts, were not the only acts that indicated a degree of permanence such that Grant's awareness to assert his rights should have triggered. Therefore, Grant's claims for events occurring in 1992 and 1993 are timed barred because they do not constitute part of a continuing violation. E. Alleged Disparate Treatment Not Due To Grant's Race UOP points to the lack of evidence that Clary's requirement that Grant use the gas trimmer, dig the deep hole, use a swing blade, and was called "kid"[3] by Clary, was done because of Grant's race. Grant has not met his burden of producing evidence that these acts were due to his race. The fact that these tasks were required of Grant, a black man, is not evidence, in-and-of-itself, that there was a racial motivation for Clary's requests. Indeed, the evidence in one incident contradicts Grant's claim. Grant was required to dig the hole by shovel with a white co-worker. Even if taken as true that both Grant and the white co-worker were in disfavor with Clary, this does not point to disparate treatment of Grant due to his race. Mere argument and innuendo on this issue will not suffice to allow Grant to survive summary judgment. Grant must meet his burden with evidence, which he has not produced in this case. Grant also claims Clary unduly monitored Grant's work progress and absenteeism, but not that of other white employees. Grant has produced no evidence that this was due to Grant's race. It likely could have been due to Grant's alleged high absenteeism rate. F. Retaliatory Discipline On April 18, 1995, Grant was suspended for three days due to an excessive absenteeism rate. Grant claims this was in retaliation for his discrimination complaint made on April 11, 1995. In Moore v. Eli Lilly, 990 F.2d 812 (5th Cir.), cert. denied, 510 U.S. 976, 114 S. Ct. 467, 126 L. Ed. 2d 419 (1993), the court provides the burden shifting analysis for this claim. The plaintiff must first establish a prima facie case of discrimination. Id. at 815. Once the plaintiff has met its burden, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its action. Id. If the employer meets its burden and provides sufficient evidence to support the reason articulated, then the burden is on the employee to prove that the employer's proffered reasons are pretextual. Id. The plaintiff may prove pretext by either showing that a discriminatory reason motivated the employer or by showing that the proffered reason is unworthy of credence. Id. To prove a genuine issue of material fact as to pretext, the employee's summary judgment proof must consist of more than "a mere refutation of the employer's legitimate nondiscriminatory reason." Id. The employee must do more than "cast doubt on whether [the employer] had just cause for its decision"; he or she must "show that a reasonable fact finder could conclude that [the employer's] reason [ ][is] unworthy of credence." Id. at 815-816. Grant was suspended on April 18, 1995, just a week after his complaint of discrimination. UOP has produced three separate 1051 warnings levied against Grant for previous absenteeism. All of these warnings occurred prior to his April 11 complaint. Thus, UOP has articulated a legitimate nondiscriminatory reason for Grant's suspension, his previous absenteeism and the absenteeism cited at his suspension. UOP has also provided documentary proof of the previous warnings and Grant's suspension as evidence supporting their articulated reasons. In order to prevail, Grant must have come forth with sufficient evidence to show that UOP's reasons are pretextual. Grant has not met the burden set forth in Moore. Grant has produced what he claims to be "absentee records" in support of his allegation that white employees had more absences than he, but were never disciplined. The submitted documents are labeled as "schedules" and are not verified as to their source, authenticity, or veracity. The information contained therein is also hearsay, and no evidence has been submitted allowing the documents to fall within the business records exception to the hearsay rule. Additionally, there is no affidavit or deposition by any UOP employee to establish how these records are kept or how they are to be interpreted. Grant proposes that these are records for the year 1994. The purported year of these records, however, is hand written on the document. This portion of the document is also hearsay. Its source is not known and it is not reliable for that reason. The court finds this "evidence" unacceptable as a basis for finding that Grant has met the standard set forth in Moore. Additionally, it is not admissible evidence. Grant has done no more than cast tenuous doubt, at best, on whether UOP had just cause for its decision. The proffered "evidence" does not show that a reasonable fact finder could conclude that UOP's reason is unworthy of credence. Essentially, Grant has not produced proper evidence to support a finding that UOP's proffered reasons for suspension were pretextual. In further support of the court's decision regarding the "evidence" submitted by Grant, the court cites Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995), where the court made the same type of decision regarding evidence submitted to the district court. The court cited the proffered evidence as providing "little value." Id. at 1090. Based on the slight value of the proffered evidence, the court found that the "evidence could not support a reasonable juror's finding that the plaintiff was treated differently from white employees." Id. The decision made in Mayberry fully comports with the decision of this court to reject Grant's proffered "evidence" on this issue. G. Failure To Promote The same burden shifting analysis used in Moore is applicable for this claim. Grant claims he was passed over on all 32 "bids" that Grant made for promotions. UOP's legitimate nondiscriminatory reason is that in 30 of the 32 bids, Grant was not the senior employee, which was a UOP policy basis for denying a promotion to Grant. See Phelps affidavit at paragraph 15. In the other two situations, where Grant had seniority, Grant was denied the promotions because of disciplinary measures taken against him within twelve months of his bid for the promotion. Id. at paragraph 15, 16. Additionally, one of the non-senior employees that received the promotion over Grant was a black male. Id. UOP has articulated a legitimate nondiscriminatory reason for its action and has provided Phelps' deposition in support. Grant has not, however, provided evidence to show pretext. Grant claims the discipline that prevented his promotions was applied due to discrimination. This issue has been addressed in part E above. Based on the above decision regarding Grant's discipline, and a lack of any new evidence to show pretext by UOP as to these facts, Grant's claim for failure to promote is also denied. H. Clary's Individual Liability Clary was Grant's supervisor from September 1992 until March 3, 1994. After March 3 Clary had very little working contact with Grant. As to Clary's individual liability, Grant concedes that he does not have a Section 1981 claim against Clary. Grant claims that Clary is individually liable under Title VII as an "agent" of 1052 UOP. In the Fifth Circuit the courts have accorded this phrase a "liberal construction." Garcia, 28 F.3d at 451. Under this liberal construction, immediate supervisors are employers when delegated the employer's traditional rights, such as hiring and firing. Id. Grant implies in his memorandum in opposition to summary judgment that his affidavit states that Clary had the power to hire and fire Grant. Nowhere in Grant's affidavit does he make this sworn statement. There is no evidence submitted by Grant that UOP had delegated the traditional role of hiring and firing to Clary. In fact, Clary did not hire Grant and was on sick leave when Grant was hired. There is no evidence that Clary had the power or authority to hire, fire, promote, or determine Grant's position at UOP. Clary supervised Grant's day-to-day work done as a member of the labor department at UOP. In fact, the evidence suggests that Clary could not even discipline Grant for his alleged absenteeism. All written warnings of Grant's absenteeism were produced by other employees of UOP. Additionally, when Clary was accused of making the statement on April 11, 1995, he was no longer Grant's supervisor. Therefore, it stands to reason that Clary was not an agent of UOP as defined in Garcia as this definition applies to supervisors. At the time Clary made this statement, under Garcia, he was not an "agent" for Title VII purposes. I. Intentional Infliction Of Emotional Distress For Grant to recover for intentional infliction of emotional distress, he must establish (1) that the conduct of the defendants was extreme and outrageous; (2) that his emotional distress was severe; and (3) that the defendants desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from its conduct. White v. Monsanto Co., 585 So. 2d 1205, 1209 (La.1991). In White, the court explained: The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort; on the contrary, "some safety valve must be left through which irascible tempers may blow off relatively harmless steam." Id. at 1209, quoting Restatement (Second) of Torts § 46, comment d; Prosser and Keaton, The Law of Torts, § 59 (5th ed.1984). Intentional infliction of emotional distress is often seen in the workplace because of the authority an employer inherently possesses over his employee. Id. at 1209-10. Thus, an employee is given greater protection from one with authority over him than if he were a stranger. [D]isciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily actionable. Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time. Id. at 1210. In any event, the distress suffered must be so extreme that no reasonable person could be expected to endure it. Id. In Bustamento v. Tucker, 607 So. 2d 532 (La.1992), the Louisiana Supreme Court recognized that conduct which, standing alone, would not give rise to an intentional emotional distress claim, can become actionable "because of its continuous, cumulative, synergistic nature...." Bustamento, 607 So.2d at 542. The allegations made by Grant regarding the alleged statements made by Bell, Blaine, and Clary do not meet the standards set forth in White or in Bustamento. By this ruling the court is careful to note what it does not hold. The court does not hold that use of the term "nigger" or any other similar racial epithet is condoned in today's society or in the workplace. The court does not hold *1053 that use of this term does not seriously offend any person of the African-American race. This court does hold, however, only under these specific circumstances, based only on the evidence before it, that the three statements made in the presence of Grant do not meet the heightened standards of White or Bustamento. Though truly offensive, the use of this term three times in Grant's presence does not raise its use in this particular context to a tort. Therefore, Grant's claims against UOP and Clary individually for intentional infliction of emotional distress are DENIED. NOTES [1] The Louisiana statutes regarding racial discrimination are similar in scope to the anti-discrimination prohibitions of Title VII. Thus, in addressing Grant's Title VII claims, this court is also deciding Grant's state law discrimination claims. See Sims v. Brown & Root Indus. Services, Inc., 889 F. Supp. 920, 925 n. 3 (W.D.La. 1995) (Stagg, J.), affirmed, 78 F.3d 581 (5th Cir.1996). [2] In September of 1992 Grant alleges that Clary used the term "cotton patch niggers" in Grant's presence. Although a claim for this alleged act of discrimination is time barred, the court also considers this incident relevant to its hostile environment determination. [3] The court recognizes that Grant claims in his affidavit that Clary also referred to him as "boy" on a particular occasion. See Grant affidavit at paragraph 3. As UOP points out in its Motion to Strike, Grant's deposition testimony of this incident does not include the derogatory term "boy" in Clary's response to Grant's answer. Grant points out that his affidavit is to clarify or amplify his prior deposition testimony. This court does not find the addition of the term "boy" directed at a black man to be mere supplementation or clarification. It directly contradicts Grant's previously given testimony on a genuine issue. Therefore, the court uses Grant's previously given deposition testimony at Vol. I, page 173, lines 3-7, of his deposition in its analysis of this issue.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1497713/	577 F. Supp. 446 (1983) ASTRO RESOURCES CORPORATION, Plaintiff, v. IONICS, INC., Defendant. Civ. A. No. G-83-300. United States District Court, S.D. Texas, Galveston Division. December 2, 1983. David Garner, League City, Tex., for plaintiff. 447 John E. O'Neill, Porter & Clements, Houston, Tex., for defendant. MEMORANDUM AND ORDER HUGH GIBSON, District Judge. This cause was originally filed by plaintiff Astro Resources Corporation in the 212th Judicial District Court of Galveston County, Texas. Plaintiff's original complaint alleged that defendant's protest letter to various officials at the National Aeronautics and Space Administration (NASA) contained false and defamatory statements concerning the plaintiff. The defendant, Ionics, Inc., a Massachusetts corporation, removed the cause to this Court on grounds of diversity jurisdiction. Now before the Court is defendant's motion to dismiss plaintiff's suit on the grounds that the allegedly libelous statements contained in defendant's protest letter were absolutely privileged under the law of Texas as a communication made in the course of a quasi-judicial proceeding. In an action for defamation, absolute privilege is a complete defense. Zarate v. Cortinas, 553 S.W.2d 652, 654 (Tex. Civ.App.Corpus Christi 1977, no writ). When a statement is accorded an absolute privilege, no defamation action will lie, even though the statements are false and maliciously uttered. Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex.Civ.App.Houston [1st Dist.] 1982, writ ref'd n.r.e.). Texas law provides that communications made in judicial or quasi-judicial proceedings are absolutely privileged against a claim of libel. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942). A proceeding before an administrative agency, board or officer is quasi-judicial when the agency, board or officer exercises quasi-judicial power. Parker v. Holbrook, supra at 695; Putter v. Anderson, 601 S.W.2d 73, 76 (Tex.Civ.App.Dallas 1980, writ ref'd n.r.e.). "Quasi-judicial power may briefly be described as the power or duty to investigate and to draw a conclusion from such investigation." Id. The NASA Procurement Regulations, article 2.407-8, 41 C.F.R. Chap. 18, establish a procedure by which the award of a NASA contract may be protested by a disappointed bidder, such as the defendant in the instant cause. Article 2.407-8(a)(1) specifies that: Contracting officers shall consider all protests or objections to the award of a contract, whether received before or after award. If the protest is oral and the matter cannot otherwise be resolved, written confirmation of the protest shall be requested. The protester shall be notified in writing of the final decision on the written protest." Article 2.407-8(a)(6) requires that: When a protest affects another bidder, a contractor, or any other party having a legitimate interest, the contracting officer normally should give prompt notice of the protest to such parties in order that they may take appropriate action on their own behalf.... Affected parties shall be advised that such a notice of protest in no way relieves them of any obligations, under a contract or otherwise, but is intended primarily to afford them a fair opportunity to be heard by, and to present evidence for the consideration of, the agency which will render a decision in the case. The regulations further specify the procedure by which the contracting officer resolves the protest: Every effort shall be made to resolve protests at the installation. It is the responsibility of the contracting officer to decide whether a protest has a valid basis [and] to take appropriate action when possible without referral to NASA Headquarters. Such action may be taken only with the concurrence of local counsel and shall be followed by a written explanation to NASA Headquarters accompanied by a copy of any pertinent correspondence...." Article 2.407-8(a)(2). When a contracting officer opts to refer a protest to NASA Headquarters, the officer shall submit a completely documented case including "a 448 statement signed by the contracting officer setting forth his findings, actions, and recommendations in the matter, together with any additional information and evidence considered to be necessary in determining the validity of the protest." Article 2.407-8(a)(3)(vii). This Court is of the opinion that a review of the NASA Procurement Regulations listed above clearly establishes that a NASA contracting officer exercises quasi-judicial powers when investigating and acting upon a bid protest. Because a NASA contracting officer exercises quasi-judicial powers, the protest against contract award procedure is a quasi-judicial proceeding and any communications published in the course of the proceeding are therefore absolutely privileged. This Court is also of the opinion that the defendant's protest letter substantially complied with the criteria and procedure specified in the NASA Procurement Regulations. Therefore, this Court finds that the allegedly libelous statements contained in the defendant's protest letter to NASA were absolutely privileged under the law of Texas as a communication made in the course of a quasi-judicial proceeding. Accordingly, it is ORDERED, ADJUDGED and DECREED that defendant's motion to dismiss is GRANTED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1879536/	790 F. Supp. 719 (1990) Frank J. KELLEY, Attorney General of the State of Michigan, and the State of Michigan, Plaintiffs and Counter Defendants, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; Richard E. Thomas; and Grand Trunk Western Railroad Company, Defendants. GRAND TRUNK WESTERN RAILROAD CO., Counter Plaintiff and Cross-Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; and Richard E. Thomas, Cross-Defendants. THOMAS SOLVENT COMPANY and Richard Thomas, Counter Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD, Counter Defendant and Third Party Plaintiff, v. Richard E. THOMAS as Trustee of the Richard E. Thomas Living Trust, the Richard E. Thomas Living Trust, and Letha Thomas, Third Party Defendants. UNITED STATES of America, Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; Richard E. Thomas; and Grand Trunk Western Railroad Company, Defendants. GRAND TRUNK WESTERN RAILROAD COMPANY, Cross-Plaintiff, v. THOMAS SOLVENT COMPANY; Thomas Development, Inc.; Thomas Solvent Company of Detroit, Inc.; Thomas Solvent Company of Muskegon, Inc.; Thomas Solvent, Inc. of Indiana; TSC Transportation, Inc.; and Richard E. Thomas; Cross-Defendants. THOMAS SOLVENT COMPANY and Richard Thomas, Counter Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Counter Defendant and Third Party Plaintiff, v. Richard E. THOMAS as Trustee of the Richard E. Thomas Living Trust; the Richard E. Thomas Living Trust; and Letha Thomas, Third Party Defendants. Nos. K86-164, K86-167. United States District Court, W.D. Michigan. September 24, 1990. 721 Frank J. Kelley, Atty. Gen. by Robert P. Reichel, Asst. Atty. Gen., Environmental Protection Div., Lansing, Mich., for plaintiffs and counter defendants. Foster, Swift, Collins & Coey, P.C. by Charles E. Barbieri, John L. Collins, Lansing, Mich., for Thomas Solvent Co. and Richard E. Thomas. Sullivan, Hamilton & Schulz by James M. Sullivan, Battle Creek, Mich., for Thomas Solvent Co. of Detroit, Inc., Thomas Solvent, Inc. of Indiana, TSC Transp. Inc., Thomas Solvent Co. of Muskegon, Inc. and Thomas Development, Inc. Bodman, Longley & Dahling by Frederick J. Dindoffer, R. 722 Craig Hupp and Mary P. Sclawy, Detroit, Mich., for Grand Trunk Western R. Co. John S. Smietanka, U.S. Atty. by Julie Ann Woods, Asst. U.S. Atty., Grand Rapids, Mich., Joel M. Gross and Steven J. Willey, Environmental Enforcement Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C. (Roger Grimes and Jesse A. Goldfarb, Asst. Regional Counsel, U.S. E.P.A., Chicago, Ill., of counsel), for U.S. Bremer, Wade, Nelson & Alt by Michael D. Wade, Grand Rapids, Mich., for Great American Surplus Lines Ins. Co. Farr & Oosterhouse by Kenneth R. Oosterhouse, Grand Rapids, Mich., amicus curiae, for General Foods Corp., Essex Group, Inc., BASF Corp., Tyler Refrigeration Corp., G.F. Corp., Clark Equipment Co., Reichold Chemical, Inc., Miles Laboratory, Inc., Hoover Universal, Inc., Starcraft Corp., Lear Siegler, Inc., Twin Y Corp. and Acme Printing Ink Co. Patton, Boggs & Blow by J. Gordon Arbuckle, John C. Martin and David J. Farber, Washington, D.C., amicus curiae, for General Foods Corp., Essex Group, Inc. and BASF Corp. OPINION ENSLEN, District Judge. This case is before the Court on five motions relating to United States' claims for response costs and other costs involving the contamination at the Verona Well Field and surrounding areas. On January 7, 1988, the United States filed a motion for a ruling as to the appropriate standard and scope of review of agency action under CERCLA. Defendant Grand Trunk Western Railroad responded on February 8, 1988, with a counter-motion for a declaration as to the appropriate standard and scope of review. Defendants Thomas Solvent and Richard Thomas joined in Grand Trunk's motion. Later in the year, defendants Thomas Solvent and Richard Thomas filed a motion for partial summary judgment as to certain United States' claims for cost reimbursement. The United States then filed a motion for partial summary judgment as to other specific claims for cost reimbursement. The specific costs at issue are limited to those incurred prior to August 1987, as per this Court's Conditional Order of Bifurcation, filed July 26, 1988. Background In the main action, which has been consolidated for pretrial and trial proceedings, plaintiffs, the United States and the State of Michigan, seek recovery under CERCLA of costs expended to clean up and contain the spread of hazardous substances discovered in the Verona Well Field and surrounding areas. The substances had allegedly been released by defendants on three nearby properties and had penetrated the soil, entered the groundwater, and contaminated a substantial number of wells at the Verona Well Field. The Verona Well Field serves as a public water supply for approximately 35,000 residents and businesses of the City of Battle Creek, Michigan. The three properties are: the Raymond Road facility, the Annex, and the Grand Trunk Marshalling Yard. The complaint alleges that in August 1981, the Michigan Department of Public Health identified 10 of 31 wells at the Verona Well Field that were contaminated with various organic solvents. Since 1981, the United States Environmental Protection Agency (EPA) has undertaken, and continues to undertake, various response actions at and around the Verona Well Field to determine the extent, nature, and source of the contamination and to prevent the further migration of the contamination with the goal of protecting the public health, welfare, and environment. At this time, EPA's costs well exceed 4.5 million dollars. The United States' current motion for summary judgment seeks over $875,000. Plaintiffs seek to hold Grand Trunk Western Railroad (Grand Trunk), Thomas Solvent Company (Thomas Solvent), Thomas Development Company (Thomas Development), Richard Thomas, and the offshoot Thomas Solvent companies liable for cleaning up the Raymond Road site. I found Thomas Solvent and Thomas Development 723 jointly and severally liable for plaintiffs' response costs on December 13, 1989. Plaintiffs and Grand Trunk Western Railroad entered a partial consent agreement on June 5, 1989. Appropriate Standard and Scope of Review The parties request the Court to rule on the appropriate standard and scope of review that the Court will apply in evaluating United States' selection of response actions at or in the vicinity of the Verona Well site. Plaintiff United States argues that its response actions should be reviewed on the basis of the administrative record under an arbitrary and capricious standard. Defendants Grand Trunk, joined by Thomas Solvent and Richard Thomas, argue that because the arbitrary and capricious standard and the provision limiting scope of review to the administrative record were not adopted until the SARA amendments in 1986,[1] they should not apply to administrative decisions made by the Environmental Protection Agency (EPA) in this case in 1983, 1984, and 1985. Should the Court find, however, that the SARA standard and scope of review do apply to the agency actions in this case, defendants argue in the alternative that the SARA provisions should apply only to four specific decisions those that involve selection of the type of response or remedial actions to be taken, but not including those decisions made to implement the chosen course of action. The remaining decisions, defendants argue, should be reviewed de novo by the Court under a preponderance of the evidence test. Declaratory Judgments None of the movants have expressly requested the Court to make a final declaratory judgment under Federal Rule of Civil Procedure 57 on the issue of the scope and standard of review this Court will apply when evaluating the government's right to reimbursement for costs expended in response to the hazardous waste at the Verona Well Field. Viewing the motions liberally, I may view them as a Rule 57 demand and exercise my discretion to issue a final judgment.[2] However, none of the movants sought declaratory judgment relief in their complaint and the Rule provides explicitly that "[t]he procedure for obtaining a declaratory judgment ... shall be in accordance with these rules." Fed.R.Civ.Proc. 57. Even if a party does not have to plead declaratory relief for the court to grant such relief, I believe a declaratory judgment is not warranted on this issue. Allowing adversaries a right of action for a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, "is intended to minimize the danger of avoidable loss and the unnecessary accrual of damages and to afford one threatened with liability an early adjudication without waiting until his adversary should see fit to begin an action after the damage has accrued." Wright, Miller & Kane, Federal Practice and Procedure § 2751, at 569 (1983) (footnote omitted). "The court however, in the exercise of the discretion that it always has in determining whether to give a declaratory judgment, properly may refuse declaratory relief if the alternative remedy is better or more effective." Id. § 2758, at 621-23 (footnotes omitted); see also Maryland Casualty Co. v. Faulkner, 126 F.2d 175, 178 (6th Cir.1942) (court may refuse to issue declaratory judgment if it will not settle rights of parties). In this case, the motions are brought as part of an action in the midst of litigation and the opportunity for minimizing losses has passed. As part of an action for liability and reimbursement, these motions are most expeditiously dealt with by issuing an interlocutory order, not appealable until the Court issues a final judgment on liability and reimbursement. Statutory Framework Congress enacted the Comprehensive Environmental Response, Compensation, and 724 Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., in 1980 to institute a national list of hazardous waste sites, to authorize the Environmental Protection Agency (EPA) to take emergency removal or remedial action in response to the release of hazardous substances, and to provide the funds for such action. "The legislation ... also establish[es] a Federal cause of action in strict liability to enable the Administrator to pursue rapid recovery of the costs ... of such actions undertaken by him from persons liable therefor." Comprehensive Environmental Response, Compensation and Liability Act of 1980, House Report No. 96-1016, at 17, reprinted in 1980 Code Cong. & Admin.News 6119, 6120. In order to increase the effectiveness of the legislation, Congress amended CERCLA with the Superfund Amendments and Reauthorization Act of 1986 (SARA).[3] SARA provides national cleanup standards for hazardous waste sites on the National Priority List and enhances the EPA's "response and enforcement authority." Superfund Amendments and Reauthorization Act of 1986, House Report No. 99-253(I), at 54, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2836. Section 9613(j) provides that judicial review concerning the adequacy of any EPA response action must be limited to the administrative record. 42 U.S.C. § 9613(j)(1). "In considering objections raised in any judicial action under this chapter, the court shall uphold the President's[4] decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious." Id. § 9613(j)(2) (footnote added). a. Retroactivity The general rule in civil cases is that the court should apply the law in effect at the time of rendering its decision. Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S. Ct. 2006, 2016, 40 L. Ed. 2d 476 (1974). The only exceptions to this rule are if such application would result in "manifest injustice" or is contrary to statutory authority or legislative history. Id. Defendant's argument that section 9613(j) should not be retroactive is that retroactive application is not explicitly provided for in the statute or in the legislative history and would be "manifestly unjust." Grand Trunk's Motion for Declaration of Standard of Review, Feb. 8, 1988, at 9. However, as the government has noted, there is some evidence in the legislative history that the provision was merely clarifying the standard of review previously applied to response reimbursement actions brought under CERCLA prior to the 1986 SARA amendments. See, e.g., United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 748 (8th Cir. 1986); United States v. Ward, 618 F. Supp. 884, 900 (E.D.N.C.1985). Since SARA was enacted, apparent conflict exists among the courts regarding retroactive application. Compare, e.g., United States v. R.W. Meyer, 889 F.2d 1497, 1506 (6th Cir.1989); United States v. Seymour Recycling Corp., 679 F. Supp. 859 (S.D.Ind.1987); United States v. Rohm and Haas Co., Inc., 669 F. Supp. 672 (D.N.J.1987), with, e.g., United States v. Ottati & Goss, Inc., 900 F.2d 429, 433 (1st Cir.1990); United States v. Hardage, 663 F. Supp. 1280, 1283 (1987). However, those courts that have determined that SARA should not be applied retroactively have done so only under section 7003 that relates to court review of requests for mandatory injunctive relief, which traditionally are subject to de novo review with full discovery. The issues here do not involve injunctive relief, but rather a review of costs expended for response actions. The Sixth Circuit's rationale and holding in Meyer, 889 F.2d at 1506, in which it addressed the retroactivity of the prejudgment interest provision, is controlling. Because of the 725 court's view of "SARA as reauthorizing and clarifying the congressional intent underlying CERCLA, because of CERCLA's retroactive application, and because of the broad remedial purposes underlying CERCLA and SARA," it concluded that Congress did not intend SARA's provisions only to have prospective effect. Id. Defendants have not shown in any specific way how manifest injustice would result from retroactive application of the amendment. Thus, there is no reason for this Court not to apply section 9613 as the law currently in effect. b. Scope of § 9613(j) The next issue is what constitutes the administrative record. Defendant appears to presume that United States is arguing that only the "Records of Decision" constitutes the administrative record. However, United States concedes that the Records of Decision merely memorializes the agency's selection of a response action. The actual administrative records reflecting the investigation and selection of the response actions undertaken at the Verona Well Field and the surrounding area consist of more than 40 volumes. I find that the administrative record referred to in section 9613 consists of the full 40 volumes. Defendants argue that if section 9613 does have retroactive application, its scope must be limited in a number of ways: 1) section 9613 applies only to "selection" responses, as opposed to the day-to-day ministerial decisions implementing the selected courses of action, which are reviewed by de novo review; 2) where the administrative record is inadequate or incomplete, de novo review is required; and 3) where there are procedural errors, de novo review is required. Defendants' contention that section 9613 applies only to selection or discretionary responses is without merit. Neither the language of the statute nor the legislative history indicate such a limitation. Section 9613 provides in relevant part: "[J]udicial review of any issues concerning the adequacy of any response action taken or ordered ... shall be limited to the administrative record." 42 U.S.C. § 9613(j)(1). As the government points out, the wording of the statute is that the response taken will be reviewed not the response chosen. Thus, it was the intent of Congress that in general, the court should limit its review of the implementation choice to the administrative record. There are no cases discussing the discretionary vs. ministerial decision distinction under CERCLA or SARA, but in other contexts, the administrative record should be supplemented only if there is a showing of "bad faith or improper behavior" or if "the bare record does not disclose the factors" considered or that should have been considered in the decision-making process. Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S. Ct. 814, 825, 28 L. Ed. 2d 136 (1971). Defendants argue that the record will not disclose the public concerns that should be included in agency decisions having such a significant impact on public welfare. Such a blanket accusation, however, can hold no weight as to the adequacy of the entire record. Accordingly, this Court will adopt the standard and scope of review prescribed in section 9613(j) of SARA, as sought by United States. Response actions taken by the EPA shall be reviewed on the administrative record and upheld unless shown on the administrative record to be arbitrary and capricious. I will address defendants' specific objections to the adequacy of the record and the propriety of the procedural steps followed as I review the particular response costs sought by the government. Partial Summary Judgment on Costs Plaintiff United States seeks a motion for partial summary judgment on certain response costs claimed pursuant to section 9607(a) of CERCLA, 42 U.S.C. § 9607(a), against defendants Thomas Solvent Co., Richard Thomas, Thomas Development Corp., Thomas Solvent of Muskegon, Inc., Thomas Solvent of Detroit, Inc., Thomas Solvent Inc., of Indiana, and TSC Transportation, Inc. United States seeks costs totalling 726 $877,704.78 along with a determination that defendants must pay prejudgment interest. Defendants, Thomas Solvent and Richard Thomas move for summary judgment in their favor on some of the same response costs and others. Standard of Review for Summary Judgment In reviewing a motion for summary judgment, this Court should only consider the narrow questions of whether there are "no genuine issues as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ. Proc. 56(c). On a Rule 56 motion, the Court cannot try issues of fact, but is empowered to determine only whether there are issues in dispute to be decided in a trial on the merits. Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987); In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). The crux of the motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986); see Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir.1989). A motion for summary judgment requires this Court to view "`inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion.'" Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962)), quoted in Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989). The opponent, however, has the burden to show that a "rational trier of fact [could] find for the non-moving party [or] that there is a `genuine issue for trial.'" Historic Preservation, 896 F.2d at 993 (quoting Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356). As the Sixth Circuit has recognized and heartily supported, recent Supreme Court decisions have encouraged the granting of summary judgments. Historic Preservation, 896 F.2d at 993 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The Courts have noted that the summary judgment motion may be an "appropriate avenue for the `just, speedy and inexpensive determination' of a matter." Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2555). Consistent with the concern for judicial economy, "the mere existence of a scintilla of evidence in support of the [non-moving party's] positions will be insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. "Mere allegations do not suffice." Cloverdale, 869 F.2d at 937. "[T]he party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact." Id. Statutory Standard for Response Actions and Cost Reimbursement Section 9604 authorizes the President to respond to a release or threatened release of a hazardous substance into the environment by taking removal or remedial actions consistent with the national contingency plan (NCP). 42 U.S.C. § 9604(a)(1). "Respond or response" includes "removal, remedy and remedial action." 42 U.S.C. § 9601(25). "Removal" includes cleanup as well as necessary actions to "monitor, assess and evaluate" and to "prevent, minimize, or mitigate damage to the public health or welfare or to the environment." Id. § 9601(23). "Remedial action" or "remedy" refers to "those actions consistent with permanent remedy taken ... to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment." Id. § 9601(24). The Sixth Circuit has summarized the government's powers under CERCLA, as amended by SARA, as such: "Essentially, Congress has authorized the government to utilize Superfund money to take direct response actions 727 that are consistent with the NCP and to recover all response costs from all persons responsible for the release of a hazardous substance." United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1500 (6th Cir.1989) (citing 42 U.S.C. § 9607(a)) (emphasis in original). The responsible parties bear the burden of demonstrating that the costs sought are inconsistent with the NCP. Id. at 1508. Thus, as the parties bearing the burden of proof in this case, defendants must demonstrate that there are genuine issues of fact as to the costs sought in order to defeat United States' motion for summary judgment. Defendants must show that there are issues of fact about whether "the EPA's decision to incur the challenged costs was `arbitrary and capricious.'" Id. I am well aware that this is a very high standard and must presume that Congress wisely balanced the risks when it granted to the executive branch such broad discretion in responding to hazardous waste contamination. United States' Motion for Summary Judgment United States has asked for summary judgment as to 16 separate cost items, totalling $877,704.78, that it alleges are part of its response costs reimbursable under CERCLA and SARA. Defendants only object to three of the cost items explicitly (items five, six, and fifteen) and also argue that United States has no right to prejudgment interest on costs incurred. Defendants argue extensively about the importance of providing the full administrative record to the Court for its reference in determining the cost issues in these motions. United States filed the full record with the Court. However, none of the movants have given page references to the administrative record. Rather, all parties have relied on depositions, affidavits, and some attached documents. The administrative record consists of about 40 volumes. I must presume that if there were a golden needle in this haystack, the parties would have guided me to it. Without such guidance, I rely on the parties' documents referred to specifically and attached to their briefs. 1) Carbon Treatment Contract with Pedco Environmental, Inc. As part of its Initial Remedial Measure, the United States undertook measures to block the spread of contamination in the Verona Well Field. It contracted with Pedco, under the national Emergency Response Contacting System (NARCS) contract, to perform some of the services it deemed necessary to halt the spread. Defendants object to that part of the Pedco contract that was associated with the carbon treatment system.[5] Defendants' argument is based on two theories. First, defendants argue that the contract violated 41 U.S.C. § 252, which imposes a competitive bidding requirement for federal contracts unless exigent circumstances exist. The Pedco contract, like others made as part of the ERCS contract, was not obtained by competitive bidding and defendants argue that exigent circumstances did not require the specific services that Pedco provided. Second, defendants argue that the carbon treatment services provided by Pedco were not "cost-effective, reasonable or consistent with the NCP." Brief of Defendants Thomas Solvent Company and Richard Thomas in Response to United States' Motion for Partial Summary Judgment, Dec. 2, 1988, at 11. I assume that defendants only object to the carbon treatment services portion of the contract because those are the only services that they contend were not immediately required. The government responds that the contract was legal as part of the EPA approved ERCS contract. The EPA had determined advertising was not "feasible or practicable" for these procurement services because "the nature of the requirement makes it impossible to draft for an invitation for bids adequate specifications or any other adequately detailed 728 description" of the services required. Reply Memorandum of the United States in Support of Motion for Partial Summary Judgment on Cost Issues, Dec. 27, 1988, at 8-9, n. 3. Thus, the EPA procured the ERCS contract according to Request for Proposal requirements of 41 U.S.C. §§ 253 and 254. Memorandum of the United States in Opposition to Motion of Thomas Solvent Company for Partial Summary Judgment on Cost Issues, Dec. 12, 1988, at 24-25. Defendants did not rebut the government's contention that the contract was procured legally under the Request for Proposal requirements. Even if it weren't, however, defendants have not come forth with evidence showing a lack of exigent circumstances. Thus, I find that United States did not act arbitrarily or capriciously in deciding to forego competitive bidding for the Pedco contract. Defendants' expert testified that he believes the carbon treatment services were "unreasonable" because other effective alternatives were available at the time and the carbon treatment units "did not provide any meaningful health benefit and should not have been used." Roy Ball Deposition, Oct. 29, 1987, at 28-29, 33-35. The expert discussed his rationale in some detail, the scientific basis for which I cannot assess, but it seems evident that he was not basing his conclusions merely on findings gained from hindsight. His opinion is that even under those dangerous circumstances, at that time, the government's response action was not reasonable. However, he admits that "the use of granular carbon to treat contaminated water is certainly not fundamentally irrational." Id. at 44. Unreasonable action or decision-making is not necessarily arbitrary and capricious, but it may be if undertaken with no thought for or research of the effectiveness, other available alternatives, and the consequences. It is undisputed that this carbon treatment system was merely a temporary measure undertaken for a few months until the final decision was made about which remedial measure to select and implement. United States argues in part that the ultimate success of the remedial measure justifies the choice of the temporary measure. Reply Memorandum of the United States in Support of Motion for Partial Summary Judgment on Cost Issues, Dec. 27, 1988, at 10. This justification alone is inadequate to rebut defendants' charge that the choice of the temporary measure was unreasonable. However, United States also provides expert testimony that the choice of and installation of the carbon treatment units was reasonable because they were necessary and successful in blocking the spread of contamination while the final remedial response action was selected. Affidavit of Jonas Dikinis, E.S.E. 73. The government contends that it was faced with the risk of losing the Well Field altogether and that the carbon units were successful in treating the purged water. Memorandum of the United States In Opposition to Motion of Thomas Solvent Company for Partial summary Judgment on cost Issues, Dec. 12, 1988, at 13-14. The government does not have to prove the reasonableness of its response actions. Defendants have to provide concrete evidence that raise a genuine issue of fact as to whether the actions were arbitrary and capricious. Defendants have not fulfilled this burden. I find that defendants have not demonstrated a genuine issue of fact as to whether the carbon treatment services portion of the Pedco contract was arbitrary and capricious. The fact that the carbon units may not have been the best choice or, viewing their expert's testimony in its most favorable light, the fact that the units were not successful, does not mean that they were installed arbitrarily or capriciously with no thought as to their effectiveness. 2) Technical Assistance Team Contract with Weston, Inc. United States seeks summary judgment as to costs expended to provide technical and field oversight assistance of the blocking well operation at the Verona Well Field between 1984 and 1987. The carbon treatment units, as discussed above, were a temporary measure instituted as part of this operation for a relatively short time 729 until the air stripper could be constructed. Defendants argue that the technical assistance team costs for supervising the carbon treatment units were unreasonable and unnecessary insofar as the carbon treatment units themselves were unreasonable. Given my finding that defendants have not satisfied their burden as to the carbon units, I find that they have not satisfied their burden of showing that the response actions giving rise to these costs were arbitrary and capricious. 3) Travel Costs United States seeks reimbursement for the travel costs necessitated by the needs for EPA monitoring, assessment, and oversight. Defendants contest these costs in so far as they relate to expenses involved with the carbon treatment units. Again, I find that defendants have not satisfied their burden of demonstrating a genuine issue of fact. 4) Prejudgment Costs In addition to the response costs incurred, United States seeks prejudgment interest on its costs. Defendants' argument is that CERCLA did not provide for prejudgment interest and the SARA provision for prejudgment interest should not apply retroactively to the response costs in this case. As discussed above, I find that SARA amendments apply retroactively to the response costs in this case. United States v. Meyer, Inc., 889 F.2d 1497, 1506 (6th Cir.1989). Section 9607 provides that recovery of costs shall include prejudgment interest from "the later of: i) the date payment of a specified amount is demanded in writing, or ii) the date of the expenditure concerned." 42 U.S.C. § 9607(a)(4). I hold that defendants are liable for prejudgment interest as provided for in SARA. 5) Costs Not Objected To United States has moved for summary judgment on numerous other response costs claimed in its complaint and defendants have not responded at all. I grant summary judgment as to those costs to United States because defendants have come forth with not even a scintilla of evidence raising a genuine issue of fact. Defendants' Motion for Summary Judgment Defendants contest in their summary judgment motion costs other than those claimed by the United States in its motion. I will address those costs here. 1) Indirect Costs Defendant argues that CERCLA only provides for cost reimbursement of removal, remedial, or enforcement costs related to a specific site. They contend that costs related to the general operation of the program, including expenses for rent, utilities, administrative offices, personnel, supplies, and equipment, constitute indirect costs for which no right of reimbursement is provided. This proposition has not been upheld by the courts. The Sixth Circuit has ruled that "indirect costs are part and parcel of all costs of the removal action." Meyer, 889 F.2d at 1502-03; accord United States v. Ottati & Goss, Inc., 900 F.2d 429, 444-45 (1st Cir.1990). In so far as the indirect costs are attributable to the overhead expenses needed to support the government's cleanup of the Verona Well Field and surrounding areas, they are reimbursable under CERCLA. I find that as a matter of law, defendants' motion as to the United States' claim for indirect costs is denied. 2) Double-Lined Pipe Defendants argue that because United States elected not to use a double-lined pipe, in opposition to the State of Michigan, plaintiff should not be allowed reimbursement for the cost of its installation.[6] United States has conceded this 730 point and asserts that it has subtracted the cost of installation from the reimbursement it seeks. Defendants contend United States should have subtracted more because the amount subtracted was based on an estimate that did not include design, cost overruns, supervision, and management of the double-lined pipe project, which defendants contend was borne by United States. Defendants' Reply to United States Opposition to Defendants Richard Thomas and Thomas Solvent Company's Motion for Summary Judgment on Cost Issues, Dec. 23, 1988, at 7-9. United States argues that it incurred no additional costs from the installation of a double-lined pipe as opposed to a single pipe. Memorandum of the United States in Opposition to Motion of Thomas Solvent Company for Partial Summary Judgment on Cost Issues, Dec. 12, 1988, at 19-23. Defendant has proffered no evidence that United States' determination of the amount to be deducted was arbitrary or capricious. United States determined with its experts the incremental difference between manufacturing and installing a double-lined pipe and a single pipe and charged that difference to Michigan. In deciding which type of pipe to use, it seems reasonable that the government would look at the various designs available. As a result, I find that the government has raised a genuine issue as to material fact as to defendants' claim for additional deductions for the cost of the double-lined pipe. 3) Carbon Treatment System Costs for Raymond Road Site Defendants raise essentially the same argument they did regarding the carbon treatment system costs at the Verona Well Field, as discussed above. They contend that the carbon treatment system installed at the Raymond Road site was unreasonable because it was ineffective. United States again presents reasonable grounds for instituting this system and thereby raises a genuine issue of fact. I thus deny defendants' motion on this claim. 4) Non-Well Field Expansion Costs for Initial Remedial Measure Defendants seek summary judgment as to costs expended for the use of purge wells and the installation of a barrier system at the Verona Well Field because their expert contends that these actions resulted in the spread of contamination. Ball Deposition, Oct. 29, 1987, at 28-29, 33-35. United States provides reasons for its choice of the Initial Remedial Measure, supported by its expert in technical detail. Dikinis Affidavit, E.S.E. 73. Factors influencing its decision were: imminent risk of the entire well field being jeopardized and not being able to meet the city's water demand. I find that the government has raised issues of fact as to this claim as well and thus deny defendants' motion for summary judgment denying these costs. CONCLUSION United States' motion for a ruling as to the appropriate standard and scope of review of agency action is granted in accordance with its view of the law. Defendants' motion for a declaration of standard of review is denied. United States' motion for summary judgment on response costs valued at $877,704.78 is granted. Defendants Thomas Solvent and Richard Thomas's motion for partial summary judgment on United States' claims for cost reimbursement is denied. NOTES [1] Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. § 9601 et seq.). [2] Rule 57 provides that "[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Fed.R.Civ.Proc. 57. [3] Pub.L. No. 99-499, 100 Stat. 1613 (1986). [4] The President has delegated most of his authority under CERCLA and SARA to the Administrator of the EPA. See Executive Order No. 12,580, 52 Fed.Reg. 2923 (Jan. 23, 1987), reprinted in 42 U.S.C. § 9615 App. at 179-83 (West Supp.1990). [5] Defendants seem to argue that Pedco performed the carbon treatment services under the ERCS contract and thus object to the total contract price which they contend was $536,153.20. Plaintiff claims that contract price was $475,627.90 and that it involved other services as well. [6] The State of Michigan has submitted a brief arguing in part that reimbursement for the cost of the double-lined pipe itself is proper because the pipe was not inconsistent with the NCP. I do not reach this issue today because it is not part of defendants' motion. The issue at hand is the cost of installation only.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1130343/	537 So. 2d 593 (1988) Barbara DERRER and Thomas Derrer Her Husband, Appellants, v. GEORGIA ELECTRIC COMPANY and Bryant Electric Company, Appellees. Nos. 87-1156, 87-2314. District Court of Appeal of Florida, Third District. November 1, 1988. Rehearing Denied February 15, 1989. Joe N. Unger, Kopplow & Flynn, Miami, for appellants. Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson and G. William Bissett, Jr., Miami, for appellees. Before HUBBART, BASKIN and JORGENSON, JJ. PER CURIAM. This is an appeal by the plaintiffs Barbara and Thomas Derrer from an adverse final judgment entered by the trial court upon defendants Georgia Electric Co. and Bryant Electric Co.'s motion for judgment notwithstanding the verdict in a negligence *594 action arising out of an intersectional automobile accident. The jury had previously returned a verdict in favor of the plaintiffs, finding the defendants 70% negligent and the plaintiff Barbara Derrer 30% comparatively negligent. We affirm the final judgment under review upon a holding that the defendants' negligence herein in causing an intersectional traffic control signal to become inoperable was not, as a matter of law, a proximate cause of the ensuing automobile collision in the intersection and the resultant injury to the plaintiffs. We are inclined to agree with the plaintiffs that the subject negligence was a cause-in-fact of the aforesaid collision because arguably the female plaintiff would have seen the traffic control signal in question had it been operating, would have realized that she was approaching an intersection, and, consequently, might have avoided hitting the automobile which entered the intersection from her left. We conclude, however, that her oblivious behavior in not realizing she was entering an intersection was not a reasonably foreseeable consequence of the defendant's negligence in causing the traffic light to become inoperable. Surely, inoperable intersectional traffic lights do not, in the range of ordinary human experience, cause automobile drivers to miss seeing the entire intersection where the light is located; such a bizarre occurrence is, in our view, beyond the scope of any fair assessment of the danger created by the inoperable traffic light. This being so, the trial court correctly concluded that the defendants' negligence herein was not a proximate cause of the plaintiffs' injuries. Stahl v. Metropolitan Dade County, 438 So. 2d 14, 17-22 (Fla. 3d DCA 1983); see Department of Transp. v. Anglin, 502 So. 2d 896, 899-900 (Fla. 1987); Metropolitan Dade County v. Colina, 456 So. 2d 1233, 1235 (Fla. 3d DCA 1984), rev. denied, 464 So. 2d 554 (Fla. 1985); Pope v. Cruise Boat Co., 380 So. 2d 1151, 1153 (Fla. 3d DCA 1980). AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1130342/	537 So. 2d 1027 (1988) Vincent ANTONELLI and Mary Ann Antonelli, Appellants, v. Ken NEUMANN, Appellee. No. 88-1085. District Court of Appeal of Florida, Third District. December 27, 1988. 1028 Harold A. Turtletaub, for appellants. Frigola, DeVane & Wright and James J. Dorl, Marathon, Fla., for appellee. Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ. BASKIN, Judge. Vincent and Mary Ann Antonelli appeal a final judgment entered in an action Ken Neumann brought to recover sums evidenced by two promissory notes executed in conjunction with a $100,000 loan from Neumann to the Antonellis. Following a non-jury trial, the trial court found that appellants failed to establish their usury defense by clear and convincing evidence and entered judgment in favor of Neumann. This appeal ensued. We reverse. The Florida Supreme Court, in Tibbs v. State, 397 So. 2d 1120 (Fla. 1981), aff'd, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982), stated: As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Tibbs, 397 So.2d at 1123; see, e.g., Cuna Mut. Ins. Soc'y v. Adamides, 334 So. 2d 75 (Fla. 3d DCA 1976); Biscayne Mfg. Corp. v. Sandav Corp., 323 So. 2d 315 (Fla. 3d DCA 1975). We apply that principle to the case before us. The four prerequisites for proving a usurious transaction are: 1) an express or implied loan; 2) an understanding between the parties that the money must be repaid; 3) an agreement to pay a rate of interest in excess of the legal rate; and 4) a corrupt intent to take more than the legal rate for the use of the money loaned. Dixon v. Sharp, 276 So. 2d 817 (Fla. 1973); Rollins v. Odom, 519 So. 2d 652 (Fla. 1st DCA), review denied, 529 So. 2d 695 (Fla. 1988); Rebman v. Flagship First Nat'l Bank, 472 So. 2d 1360 (Fla. 2d DCA 1985); Bermil Corp. v. Sawyer, 353 So. 2d 579 (Fla. 3d DCA 1977). On March 3, 1981, the parties executed two agreements: 1) an agreement in which Neumann consented to deposit $100,000 in the trust account of the Antonellis' attorney, to be held in trust until the parties executed two promissory notes for loans totaling $100,000, and 2) an agreement whereby Neumann would perform landscape consulting work on the Antonellis' condominium project. Neumann loaned appellants $100,000; the Antonellis executed two $50,000 notes at the statutory legal interest limit of 18% per annum. § 687.03, Fla. Stat. (Supp. 1980). The Antonellis remitted timely interest payments in addition to payments equal to 2% of the 1029 loan amount. The Antonellis marked each 2% check "landscape consultant fee." Subsequently, the Antonellis ceased making payments. At issue is whether the parties agreed that Neumann would receive a higher rate of interest than the 18% stated on the notes. Where, as here, the notes appeared to require the legal rate of interest, the borrower has the burden of proving that the parties employed a corrupt device to conceal a usurious transaction and that it was in the full contemplation of the parties. See Davanzo v. Miami Nat'l Bank, 301 So. 2d 797 (Fla. 3d DCA 1974), cert. denied, 315 So. 2d 185 (Fla. 1975). "The requisite corrupt or purposeful intent ... is satisfactorily proved if the evidence establishes that the charging or receiving of excessive interest was done with the knowledge of the lender," Dixon, 276 So.2d at 821, and "is determined by a consideration of all the circumstances surrounding the transaction." Rollins, 519 So.2d at 657. In determining whether an agreement is usurious, the court may disregard the form of the agreement and consider the substance of the transaction. Growth Leasing, Ltd. v. Gulfview Advertiser, Inc., 448 So. 2d 1224 (Fla. 2d DCA 1984); May v. U.S. Leasing Corp., 239 So. 2d 73 (Fla. 4th DCA 1970); Kay v. Amendola, 129 So. 2d 170 (Fla. 2d DCA 1961). Thus, notations on the checks describing the payments as consulting work are not dispositive of the issue. Cf. American Acceptance Corp. v. Schoenthaler, 391 F.2d 64 (5th Cir.) (although discount charged is not set forth in note, note was device to avoid usury and did not constitute actual transaction), cert. denied, 392 U.S. 928, 88 S. Ct. 2287, 20 L. Ed. 2d 1387 (1968). "Where ... an illogical and spurious transaction is entered into for the purpose of making that which is usurious appear otherwise, the lenders will not be excused from the penalties of the usury statute by pleading ignorance of the law or that they did not intend usury." Lee Constr. Corp. v. Newman, 143 So. 2d 222, 225 (Fla. 3d DCA), cert. denied, 148 So. 2d 280 (Fla. 1962). In the case before us, the record contains a letter dated October 4, 1981, from Neumann to the Antonellis. In that letter Neumann states: Please acknowledge the two photostatic documents herein as verification of the two promissory notes as well as the date of departure from Joliet. The dates appearing on the promissory notes will iniciate [sic] the point from which the interest will be accrued. Have you found a way around paying the 20% as agreed, or will you have to pay the 18% and the additional 2% under a different pretext? If my my [sic] calculations are accurate at a 20% rate, the monthely [sic] interest due is $833.00, and the monthly interest due for 18% is $750.00. Multiplied by 5 month intervals, the interest due would be $4165.00 and $3750.00 respectively. Of course the 20% rate sounds better, but if complications are a sure result, we can work out further details later. Please note that the note dated on April 20 is now due on September 20, 1981, and the note dated on May 19, 1981 will be due on October 19, 1981. Consequently, please remit the one check as quickly as possible and the other on the 19 of October. My financial obligations on this end to the bank definately [sic] require punctuality. Thank you for your cooperation on this matter, and don't foreget [sic] to send me a set of prints of the project. The letter reflects Neumann's intention to require more than the legal rate of interest. The description of the Antonellis' payments of an additional 2% as landscape consulting fees for their condominium project was merely a contrivance to conceal a usurious transaction.[1] The trial court *1030 inferred that the 2% payments were credits against the landscape agreement, but a review of the evidence fails to support that conclusion. Thus, we hold that the trial court's decision was clearly erroneous. Additional indicia of usury appear in the record. First, the landscape consulting agreement, executed contemporaneously with the loan agreement, provided that Neumann would be paid $1,000 per unit and 5% of amounts exceeding $150,000 "upon the closing of the sale of each individual apartment." The 2% payments, purportedly for consulting fees, however, were made simultaneously with each interest payment. Thus, the payments were made in advance of the condominium sales, contrary to the agreement. Second, Neumann admitted that he received payment prior to commencing consulting duties. Cf. Williamson v. Clark, 120 So. 2d 637 (Fla. 2d DCA 1960) (where lender conducted cursory inspections, purported inspection fee mere cloak for exacting illegal interest). Third, although Neumann testified that the 2% payments were for landscape consulting work, he did not testify that these payments were to be credited against the total consulting fee. Neumann's testimony failed to verify that these payments were made pursuant to the written landscape consulting agreement, but Antonelli testified that the 2% payments were definitely not made under the landscaping agreement. Finally, the 2% payments conveniently constitute the difference between the 18% legal rate and the 20% referred to in the October 4th letter, presenting further proof that intent behind the the 2% payments was to circumvent the usury law. See In re Marill Alarms Sys., Inc., 81 B.R. 119 (Bankr.S.D.Fla. 1987) (court found that commissions paid to corporation were usurious interest payments where, among other circumstances, corporation created on same date as loan arranged, payments to corporation made on same date as payments to creditor, and amounts paid as purported commission curiously tied-in to the amount of actual loan payments), aff'd, 861 F.2d 725 (11th Cir.1988). For these reasons, we hold that no competent substantial evidence supports the judgment. REVERSED AND REMANDED. SCHWARTZ, C.J., concurs. JORGENSON, Judge, dissenting. I respectfully dissent. There is substantial competent evidence, albeit disputed, to support the decision of the trial court following the non-jury trial. Marsh v. Marsh, 419 So. 2d 629 (Fla. 1982). The majority, having first admonished itself "not to retry a case or reweigh conflicting evidence," has proceeded to do both. It is not the role of an appellate court to reevaluate evidence and substitute its judgment for that of the fact finder. Helman v. Seaboard Coast Line R.R., 349 So. 2d 1187 (Fla. 1977). I would affirm. NOTES [1] Relying on Atwood v. Fisher, 330 So. 2d 62 (Fla. 3d DCA), cert. denied, 341 So. 2d 1079 (Fla. 1976), Neumann argues that the letter is irrelevant to show intent at the time of the execution of the documents. In Atwood, this court stated that "[t]here must exist an intent on the part of the lender at the time of the loan agreement is executed to get more than the legal interest and if the agreement is usurious at that time no subsequent transaction will purge it." Atwood, 330 So.2d at 63. Although the letter is dated several months after the execution of the loan documents, it serves to impeach Neumann's testimony that the 2% payments were for landscaping fees and that prior to execution of the documents Neumann abandoned the parties' tentative agreement to pay 20% interest.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1130347/	537 So. 2d 667 (1989) SHOP & GO, INC. and Gab Business Services, Appellants, v. Naomi J. HART, Appellee. No. 87-2083. District Court of Appeal of Florida, First District. January 18, 1989. David J. Williams, of Lane, Trohn, Clarke, Bertrand & Williams, Lakeland, for appellants. L. Mark Kaylor, of Kaylor & Kaylor, Winter Haven, and Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for appellee. SHIVERS, Judge. The employer/carrier (E/C) in this workers' compensation case appeal an order entered by the deputy commissioner (DC) and raise three arguments: (1) that the DC's finding of permanent impairment was not supported by competent substantial evidence; (2) that the DC's finding of date of maximum medical improvement (MMI) was not supported by competent substantial evidence; and (3) that the DC erred in ordering an orthopedic evaluation of the claimant. We affirm in part, reverse, and remand. Following the industrial accident in this case, the claimant was examined by three different physicians Dr. Sharpe (her treating physician), and Drs. Arey and Carifi (general surgeons to whom the claimant was referred by Dr. Sharpe). Of these three physicians, Dr. Sharpe alone was of 668 the opinion that the claimant had sustained a permanent impairment. According to Sharpe, however, the American Medical Association's Guides to the Evaluation of Permanent Impairment did not cover the claimant's particular medical problems, and his opinions regarding permanent impairment were based on experience and on his treatment of the claimant. We find Sharpe's testimony to constitute competent substantial evidence to support the DC's finding of permanency. This court has repeatedly held that where the AMA Guides do not adequately address impairment, as in the instant case, the DC may properly rely on "a physician's qualified expert opinion, which utilizes experience in treating a claimant, and that such an opinion will suffice without reliance on a medical manual or guide." Patterson v. Wellcraft Marine, 509 So. 2d 1195 at 1197 (Fla. 1st DCA 1987); United General Construction v. Cason, 479 So. 2d 833 (Fla. 1st DCA 1985); Martin County School Board v. McDaniel, 465 So. 2d 1235 (Fla. 1st DCA 1985). Cf. Maggard v. Simpson Motors, 451 So. 2d 529 (Fla. 1st DCA 1984). As in Martin County School Board v. McDaniel, supra, the treating physician in the instant case monitored the claimant's complaints for an extended period of time (two and one half years) and his records indicate an evaluation of the pattern of claimant's subjective symptoms, a program of medication, and testing as a foundation for his opinion of permanent impairment. In Maggard, supra (in which the DC's finding of no permanent impairment was affirmed), the claimant's treating physician's opinion of permanency was based solely on the claimant's complaints of chronic pain, from which the physician assumed that the claimant had aggravated a preexisting back condition. We find it necessary to reverse the DC's finding regarding MMI. Despite Dr. Sharpe's testimony that MMI was reached on March 12, 1986, and Dr. Carifi's testimony that it was reached at some point between February 19, 1985 and June 4, 1985, the DC found the claimant to have reached MMI on February 5, 1987, stating: In making my finding as to this date of maximum medical improvement, it was necessary that I consider my personal view and observation of the Employee. Any conflict with this finding as compared to the medical testimony has been resolved by me on the basis of the testimony of the Employee and my observations of her. Magic City Bottle & Supply, Co. v. Robinson, 116 So. 2d 240 (Florida 1959); Hernandez v. DeCarlo, 116 So. 2d 420 (Florida 1959); Star Fruit Company v. Canady, 159 Fla. 488, 32 So. 2d 2 (1947); and Crowell v. Messana Contractors, 180 So. 2d 329 (Florida 1965). As this court held in Ardmore Farms, Inc. v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981), the question of whether a claimant has reached MMI is essentially a medical question and, although a claimant's testimony may be considered on the question, it may not replace a treating physician's expert opinion. See also Sanlando Utility Corp. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982); Gilbarco, Inc. v. LeRoux, 411 So. 2d 1031 (Fla. 1st DCA 1982). The question of when a claimant reaches MMI must not be confused with the question of when a claimant is able to return to work in some capacity, which is a mixed question involving both medical evidence and the claimant's own testimony. Ardmore Farms, supra. We thus find that the DC erred in accepting claimant's testimony over that of Drs. Sharpe and Carifi on the issue of MMI, and remand for a redetermination of MMI based on the medical evidence. We also reverse the DC's authorization of Dr. Sharpe to "refer this patient to any specialist he deems appropriate in treating the Employee," inasmuch as it may refer to remedial treatment. Remedial treatment may not be awarded after the date the claimant reaches MMI. Sanlando Utility Corp., supra; Lake County Commissioners v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982); Killebrew Manufacturing Co. v. Dawson, 401 So. 2d 876 (Fla. 1st DCA 1981). 669 Accordingly, we affirm in part, reverse, and remand. BOOTH and THOMPSON, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1235498/	533 P.2d 867 (1975) MELEMANU WOODLANDS COMMUNITY ASSOCIATION, INC., Plaintiff-Appellant, v. George KOGA, Individually and in his capacity as Chairman of the City Council of the City and County of Honolulu, et al., Defendants-Appellees. No. 5459. Supreme Court of Hawaii. April 9, 1975. 868 David W. Hall, Honolulu (Hart, Sherwood, Leavitt & Blanchfield & Hall, Honolulu, of counsel), for plaintiff-appellant. Robert M. Rothwell, Deputy Corp. Counsel, Honolulu (Richard K. Sharpless, Corp. Counsel, City and County of Honolulu, Honolulu, of counsel), for defendants-appellees. Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and FONG, Circuit Judge, assigned by reason of vacancy. OGATA, Justice. This is an appeal by plaintiff, a nonprofit corporation, from a judgment of the court below in favor of defendants and against the plaintiff. For the reasons hereinafter set forth, we vacate the judgment and dismiss the complaint. On October 4, 1972, the planning commission of the city and county of Honolulu (hereinafter commission) held a public hearing on the application of Headrick Development, Inc., (hereinafter HDI) for Melemanu Woodlands, Unit II, planned development housing situate in Waipio, Oahu.[1] Just before the public hearing was opened, but after the report of the planning director had been presented to the commission which report recommended the approval of the development plan, subject to certain modifications and conditions as set forth in the planning director's report, the chairman of the commission openly announced to the audience that the commission will receive testimony on Unit II, but that it will not receive any testimony on the merits or faults of Unit I. The chairman further stated that "the primary reason for this [such exclusion] being there are aspects of the first unit which are under litigation. Therefore, upon the advice of the corporation counsel, these would be ruled out of order at this meeting." The president of plaintiff association, who was the first person to speak at the public hearing, then informed the chairman of the commission that Unit II, the proposed development under consideration, was also involved in litigation. In response to such information, the chairman was advised by the deputy corporation counsel that Unit II was not a part of the litigation. The deputy corporation counsel further assured that he will investigate as to whether Unit II is also involved in legal proceedings and report to the chairman later during the hearing. After the fourth speaker had completed her presentation, 869 the chairman of the commission declared that the deputy corporation counsel in charge of the litigation concerning Unit I was not available to advise him whether or not Unit II is subject to litigation. The chairman of the commission also remarked that he was sure that no restraining order had been issued to halt the public hearing and that therefore "we will continue to receive testimony regarding the second unit application." He then concluded this statement by reiterating his earlier proscription that because Unit I "is under litigation, the chair will not receive testimony on the merits or problems of that particular development." The public hearing was conducted along this guideline. Thereafter on October 6, 1972, the planning department of the city and county of Honolulu transmitted to HDI a letter which propounded numerous inquiries which arose during the public hearing. Two of these questions related to whether or not Unit II is a part of the pending litigation mentioned during the public hearing and whether or not HDI would be able to legally dedicate Waikalani Drive, the access road, after it has been improved to the city and county of Honolulu. These questions were then referred by HDI to its attorneys who responded by letter dated October 13, 1972, addressed to HDI. On October 16, 1972, HDI wrote to the planning department in answer to its letter of October 6, 1972. Copies of these communications were submitted by the planning department to the commission for its consideration prior to November 1, 1972. No similar inquiries were submitted to the plaintiff for response and the corporation counsel was not consulted on any of these subjects. On November 1, 1972, the commission recommended its approval of this development with certain modifications or restrictions. This recommendation was thereafter submitted to the mayor for transmission to the city council of the city and county of Honolulu for its consideration and action as it deemed proper.[2] On November 30, 1972, before the city council was able to consider and act upon the application based upon the recommendation of the commission, the plaintiff association instituted this action to enjoin defendants, George Koga and George Akahane,[3] individually and in their respective capacities as chairman of the city council and as chairman of the planning committee of the city council, from considering and acting on the application of HDI for Melemanu Woodlands, Unit II, planned development housing. Plaintiff association sought to have such action enjoined until the commission shall adopt rules and regulations consistent with HRS § 91-2 concerning the conduct of public hearings which it is required by law to hold as well as the procedures that will govern such commission after the public hearings, and also until another public hearing can be held on this project before the commission at which members of plaintiff and others can be afforded a reasonable opportunity to be heard concerning the applicant's past performance on Unit I which is relevant to Unit II. It is plaintiff's contention in regard to the last mentioned prayer for relief that the chairman of the commission had denied to members of plaintiff association during the public hearing of October 4, 1972, their statutory right to a reasonable opportunity to be heard as provided in subparagraph 870 2 of section 5-515 of the charter of the city and county of Honolulu.[4] On January 15, 1973, after HDI was allowed to intervene as a party defendant,[5] the court below proceeded to consider the motions to dismiss filed by defendants and HDI, each of which was denied. Thereafter, the court tried this cause without a jury and rendered judgment in favor of the defendants and against the plaintiff. We agree with the court below that the instant action is premature[6] since it is only concerned with the validity of an advisory action on the part of the commission which recommended to the city council the approval of an application for a planned development housing project. Such advisory determinations or actions by administrative agencies are not final orders which may be appealed to the circuit court for judicial review. Cf. Traders Development Corp. v. Zoning Board of Appeals of Peoria County, 20 Ill. App. 2d 383, 156 N.E.2d 274 (1959); Milton Point Association v. Clark, 14 Misc. 2d 633, 179 N.Y.S.2d 624 (1958). Moreover, we have already held that an appeal to the circuit court may be taken from an order of an administrative board only to the extent specifically authorized by statute. In re Charley's Tour & Transp. Inc., 55 Haw. 463, 522 P.2d 1272 (1974); Mahelona Hosp. v. Kauai Civ. Ser. Com., 46 Haw. 260, 377 P.2d 703 (1962); Gustetter v. City and County Etc., 44 Haw. 484, 354 P.2d 956 (1960). Of course, we appreciate that this is an injunctive action rather than one based upon statute. It is admitted by plaintiff that the city council is free to either grant the application with or without modification or to deny the same.[7] We think further that based upon the published intent of the city council to hold a public hearing on the proposed development project before the council will grant the application with or without modification or deny such application, that there is still an adequate remedy available to plaintiff. We do not know how the city council will treat and dispose this application. Members of the plaintiff association as well as others interested in the application may be permitted to present any relevant data to the council during such public hearing. The presentations of the members of plaintiff association to the council at the public hearing may be so persuasive that the council may deny approval of the application. If this should occur, all issues urged by plaintiff in this action would become moot. Beard v. Stahr, 370 U.S. 41, 82 S. Ct. 1105, 8 L. Ed. 2d 321 (1962). If the council should grant the application, against all protestation by members of plaintiff association, and the land involved in the application is redesignated by ordinance as a planned development district, 871 it will be time enough for the plaintiff association to institute judicial proceedings to review the validity of the ordinance because of the alleged due process infirmities of its underpinnings, including defects in the planning commission's proceedings. Dalton v. City and County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969). Judgment vacated and complaint dismissed. RICHARDSON, C.J., and KOBAYASHI, MENOR and FONG, JJ., concur. NOTES [1] The site for this proposed planned development housing is located in Waikakalaua Gulch, Waipio, Oahu, one mile northwest of Kamehameha Highway. HDI is the owner-developer of another planned development housing designated as Melemanu Woodlands, Unit I, which is located next to the same highway on its north side. There are 43 one acre lots situated between Unit I and the proposed Unit II, and homes have been built on 18 of these lots. Eleven of these homes are owned and occupied by members of plaintiff association. [2] The creation of a planned development housing is authorized under article 10 of ordinance No. 3234 of the city and county of Honolulu. Section 21-104(c) thereof provides: "Within 30 days after receiving the Director's report, the Planning Commission shall hold a public hearing on the application, notice of which shall be published at least 10 days prior to such hearing. Within 30 days after such hearing the Commission shall submit its recommendations to the Mayor for transmittal to the City Council. The Commission may recommend approval in whole or in part, with or without modifications, or recommend disapproval." [3] In addition to these two members of the city council, Rev. Eugene B. Connell and Robert R. Way, individually and in their respective capacities as chairman of the commission and as planning director of the city and county of Honolulu, and the city and county of Honolulu, a municipal corporation, were named as defendants. [4] The then applicable provisions of subparagraph 2 of section 5-515 of the charter of the city and county of Honolulu read as follows: "2. Prior to recommending the adoption of the general plan and any development plan or any subdivision or zoning ordinance or any amendments thereto, and prior to the adoption of subdivision regulations or any amendments thereto, the planning commission shall hold a public hearing thereon at which interested persons shall be afforded a reasonable opportunity to be heard. Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in a daily newspaper of general circulation in the city." [5] In this appeal HDI was also an appellee and a cross-appellant. After the argument before us, HDI withdrew by stipulation of all of the parties which stipulation was approved by this Court. [6] The following conclusion of law appears in the trial court's findings of fact and conclusions of law: "5. Until the City Council shall refuse to allow members of the Plaintiff to be heard on matters relevant to Headrick's application, this action is premature." [7] Section 21-104(d) of ordinance No. 3234 of the city and county of Honolulu provides: "The City Council shall either grant the application, with or without modification, or deny such application. If the application is granted, the area of land involved shall be redesignated as a planned development district by ordinance and such ordinance shall incorporate the Plan, including any condition or restriction that may be imposed by the Council."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1314603/	207 Ga. 345 (1950) 61 S.E.2d 485 FLANNAGAN v. CLARK. 17214. Supreme Court of Georgia. October 10, 1950. 347 Clarence Bell and Noah J. Stone, for plaintiff in error. Saul Blau, contra. ATKINSON, Presiding Justice. (After stating the foregoing facts). 1-4. Headnotes 1 to 4 require no elaboration. 5. By the first ground of the amended motion, error is alleged on the following charge: "She prays the relief of the court, that the contract be rescinded, and that she recover of the defendant the sum of money she alleged she paid, and that the security deed and the notes given by her be canceled." The petition did not specifically pray that the contract be rescinded. It is asserted that so charging the jury was prejudicial to the defendant. She alleged and proved that she was induced to enter into the partnership contract by fraudulent representations; and she prayed for a judgment covering the amount of money which she paid, and for cancellation of the security deed and notes which she executed to cover the balance of the agreed price. Whether a verdict in her favor would automatically cancel the contract need not here be determined. But the mere fact that the court charged that she sought rescission of the contract could not have been prejudicial to the defendant. We are not here concerned with a question where the decree contains something not covered by the pleadings, as the decree here makes no reference to rescission of the contract. 6. The second ground of the amended motion complains of the following charge: "I charge you that suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case." The objection thereto was that there was no pleading or evidence to authorize it. We cannot concur in this contention, as there was evidence to authorize this charge as to suppression of facts. 7. Under the third ground of the amended motion exception 348 is taken to the following charge: "That in order for the plaintiff to recover, she must show to your satisfaction, by a preponderance of the evidence, the following: 1. That the alleged contract was made; second, that Mr. Flannagan made to her the alleged misrepresentations as to existing facts or promises of future conduct which the promisor, Mr. Flannagan, at that time did not intend to perform." The objection thereto is that there was no pleading or evidence to authorize the charge as to future conduct. There was such evidence, and the ground is not meritorious. 8. Under the fourth and fifth grounds of the amended motion, error is assigned on the admission of testimony. The evidence showed that the deed and notes were delivered on June 7, 1947, that she learned the place could not be used for the purposed business on July 26, 1947, and that the suit was not filed until May 26, 1948. The plaintiff was asked the following question: "Would you tell what transpired between you and Mr. Flannagan, if anything, in regard to your not bringing suit?" Answer: "Mr. Flannagan asked me if I would have patience and wait for a few weeks that he would raise the money and return my money to me. .. He repeatedly told me each time I called him up, and I called him up on an average of once a week up until the period that I started this case. . . He said that he did not have the money, that as soon as he raised it he would give it to me if I would just have patience and wait awhile. That is the reason I did not bring the suit until the time I filed the petition." The objection was: "I object to that on the ground it would be an attempt to compromise, and under the Code section it is not admissible, it's incompetent, irrelevant, and harmful to the defendant. . . [Also] it is a self-serving declaration." This is neither a self-serving declaration, nor a proposition made with a view to compromise under Code § 38-408, but is evidence of an admission of liability. Teasley v. Bradley, 110 Ga. 497 (6) (35 S.E. 782); McBride v. Georgia Ry. & Electric Co., 125 Ga. 515 (3) (54 S.E. 674); Hening & Hagedorn v. Glanton, 27 Ga. App. 339 (2) (108 S.E. 256). The evidence was admissible to negative laches, under Code § 37-119, by explaining the reason for delay in not proceeding more promptly after the discovery of the misrepresentations. *349 Benson v. May, 149 Ga. 555 (2) (101 S.E. 177); Jones v. Hogans, 197 Ga. 404 (3) (29 S.E. 2d, 568). 9. Exceptions to the charge of the court in ground six of the amended motion are without merit. Judgment affirmed. All the Justices concur, except Almand, J., who is disqualified.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2300034/	380 Pa. 90 (1955) Kuntz, Appellant, v. Lanbar Hotel Co., Inc. Supreme Court of Pennsylvania. Argued November 10, 1954. January 3, 1955. Before STERN, C.J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ. 91 Daniel F. Metzman, for appellants. John W. Fawcett, III, with him Richard E. McDevitt and Montgomery, McCracken, Walker and Rhoads, for appellee. OPINION BY MR. JUSTICE ALLEN M. STEARNE, January 3, 1955: The appeals are from an order of a court of common pleas opening a default judgment. Plaintiffs, husband and wife, instituted an action in trespass against defendant, a hotel company, alleging that both of them were injured through the negligence of defendant. It is averred that the steps on which plaintiffs fell were not maintained by defendant in a safe condition. Damages were claimed aggregating $30,000.00. The accident occurred November 1, 1953. Suit was commenced February 5, 1954 and the complaint served on defendant the same day. Plaintiffs entered judgment against defendant for want of an appearance, on March 9, 1954. On the following day, March 10, 1954, defendant's attorney filed an order for appearance, but learned that judgment had been entered by default. On March 11, 1954, defendant filed a petition and rule to show cause why the judgment should not be opened. Plaintiffs answered the petition, averring New Matter. This "New Matter" mentioned many instances where plaintiffs' counsel was said to have negotiated 92 with a representative of defendant's insurance carrier, not counsel for defendant. Plaintiffs entered the judgment after a ten-day extension of time had been granted to the insurance carrier to file an appearance. The rule to open was made absolute. When a default judgment is opened the inquiry is whether or not the court abused its discretion. In Glass v. Farmers National Bank of Watsontown, Trustee, 364 Pa. 186, 70 A.2d 356, this Court, speaking through Mr. Justice JONES, said (p. 190): "The crucial question, then, is whether the action of the learned court below constituted an abuse of discretion. That an exercise of discretion, relieving from a judgment entered by default, is reviewable only for an abuse is so firmly established in the law as to require little citation of authority. In Scott v. McEwing, 337 Pa. 273, 274-275, 10 A.2d 436, we observed that `The power of a court to grant relief from a judgment entered by default due to a mistake or oversight of counsel is one frequently exercised in the interest of justice, and we have repeatedly said that this Court will not interfere with the lower court's action unless it is clearly shown that its discretion has been abused: [citing cases].' Furthermore, the propriety of the relief is to be adjudged on the basis of equitable principles; such proceedings are equitable in nature and are to be ruled accordingly: see Horn v. Witherspoon, 327 Pa. 295, 296, 192 A. 654, and cases there cited. In the present instance, the learned court below found on substantial evidence, which it justifiably accepted as credible, that the delay in not having the plaintiff's complaint ready for filing until two days after the day certain fixed by the court's order for that purpose was due to unusual exactions upon counsel's time and upon his clerical facilities; and that the delay was excusable. The plaintiff's application for the relief was prompt. 93 In fact, it was almost immediate. In such circumstances, we could not properly say that the court abused its discretion in striking off the default judgment." See also: Myers v. Harrisburg Taxicab and Baggage Co., Inc., 368 Pa. 20, 82 A.2d 14. Appellants complain that the court exercised its discretion merely upon petition and answer. The petition to open judgment was executed by Richard E. McDevitt, Esq., a reputable member of the Philadelphia County Bar. There are no substantial questions of fact raised. The determination of the issue by the court below rests upon conclusions of fact and law. No useful purpose would be served in requiring the taking of depositions where, as here, there is no substantial factual dispute. In Vallish v. Rapoport, 364 Pa. 25, 70 A.2d 616, this Court, speaking through Justice LINN, said (p. 27): "In proceedings to open judgment the practice by petition and answer is well established. `When the answer was filed, defendant had the choice of taking depositions, limited, of course, to the issues made by the pleadings (Fisher v. King, 153 Pa. 3 [25 A. 1029 (1893)]; Bauer v. Hill, 267 Pa. 559, 563 [110 A. 346 (1920)]), and then having the application heard on petition, answer and depositions; or of having it heard on petition and answer alone, in which event the averments of the answer, so far as they were responsive to those of the petition, would have to be taken as true: Kelly et al. v. International Clay Products Co., 291 Pa. 383 [140 A. 143 (1928)]. This is the established practice, entirely aside from the applicable rule of the court below, which was quoted in appellee's brief.' M.A. Long Co. v. Keystone Portland Cement Co., 302 Pa. 308, 315-316, 153 A. 429 (1931). The issue to be tried should be made by the petition and the answer: State Camp etc. v. Kelley et al., 267 Pa. 49, 110 A. 339 (1920); Miller v. Mastrocola et al., 94 133 Pa. Super. 210, 2 A.2d 550 (1938); Warren Sav. Bank & T. Co. v. Foley, 294 Pa. 176, 144 A. 84 (1928)." There is no reason to require petitioners to show a defense on the merits in a trespass case before a default judgment is opened, where the equities are otherwise clear. This is, of course, required in an assumpsit action where an answer on the merits is necessary to put the case at issue. See Scott v. McEwing, 337 Pa. 273, 275, 10 A.2d 436. We have carefully examined the record and are of opinion that the learned court below did not abuse its discretion in opening the judgment. The order is affirmed. Costs to abide the event.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1878153/	285 So.2d 442 (1973) Catherine H. CARTER, Managing Trustee of the Howarth Trust, Appellant, v. Mary S. HOWARTH, Appellee. No. U-35. District Court of Appeal of Florida, First District. November 20, 1973. *443 Gordon H. Harris and Phillip R. Finch, of Gray, Adams, Harris & Robinson, Orlando, for appellant. Robert A. Meade, Jr., of Duffett, Barry & Seps, Ormond Beach, and Sidney H. Taylor, De Land, for appellee. JOHNSON, Acting Chief Judge. This interlocutory appeal seeks reversal of the trial court's order granting defendant-appellee's motion to add certain named persons as parties defendants. In her capacity as managing trustee of the Howarth Trust, appellant instituted the present action by seeking a restraining order to forestall litigation affecting trust assets. By an amended restraining order, the trial court permitted defendants to file any defenses, answers, motions, counter- or cross-claims, notices or other such pleadings. Thereafter, defendant moved to add certain persons as parties defendants upon the ground that the central issue of the case as embraced in the pleadings subsequently filed by appellee, is the validity of the trust itself. The trial court granted appellee's motion to add as parties those persons named as beneficiaries of the Howarth Trust and certain persons who had purchased property from said Trust. Appellant now contends that this ruling was erroneous. We do not agree. In light of the well-known principles that all persons materially interested in the subject matter of a suit should be made parties thereto and that all persons whose rights or interests may be affected by the cancellation of an instrument are proper and necessary parties, we do not believe that the trial judge abused his discretion in granting appellee's motion to add parties defendants. The appellant having failed to demonstrate an abuse of discretion on the part of the trial court in entering the order appealed herein, the same is accordingly affirmed. SPECTOR, J., and YAWN, THERON A., Associate Judge, concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3107979/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTION Cause number: 01-13-00963-CV Medical Discount Pharmacy, L.P., LifeChek Rosenberg GP, Inc., Style: LifeChek, Inc., and Bruce V. Gingrich v State of Texas Date motion filed*: March 18, 2014 Type of motion: Motion for extension of time to file the reporter’s record Party filing motion: Court reporter Document to be filed: Reporter’s record If motion to extend time: Original due date: December 17, 2013 Number of prior extensions: 3 Current Due date: March 19, 2014 Date Requested: April 19, 2014 Ordered that motion is:  Granted in part If document is to be filed, document due:  The Court will not grant additional motions to extend time  Denied  Dismissed (e.g., want of jurisdiction, moot) The record was originally due on December 17, 2013. We have granted three extensions for filing the record and have previously stated that no further extensions would be granted. Accordingly, we deny the motion. If the record is not filed within 14 days of the date of this order, we may require the court reporter to appear and show cause why the record has not been filed. Judge's signature: /s/ Chief Justice Sherry Radack  Panel consists of ____________________________________________ Date: March 20, 2014 November 7, 2008 Revision	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2478584/	366 F. Supp. 2d 927 (2005) NORTH PACIFICA, LLC, Plaintiff, v. CITY OF PACIFICA, et al., Defendants. No. C-01-4823 EMC. United States District Court, N.D. California. April 28, 2005. Jaquelynn C. Pope, Mark D. Warshaw, Hermosa Beach, CA, for Plaintiff. Kevin Drake Siegel, Benjamin Louis Stock, Megan Holt Matthew, Michelle Marchetta Kenyon, Natalie Elsa West, Oakland, CA, Cecilia Quick, Pacifica, CA, Mark L. Armstrong, Patrick Joseph McMahon, Danville, CA, for Defendant. 928 ORDER DENYING DEFENDANT CITY OF PACIFICA'S MOTION TO DISMISS BASED ON CLAIM AND/OR ISSUE PRECLUSION CHEN, United States Magistrate Judge. Plaintiff North Pacifica LLC ("NP") filed suit against Defendant the City of Pacifica ("City" or "Pacifica"), alleging that the City violated NP's right to equal protection by imposing on NP's development project a condition of approval, known as Condition 13(b), that was more onerous than that imposed on similarly situated development projects. The Court bifurcated the trial on the equal protection claim into a liability phase and a damages phase. See Docket No. 198 (order, filed on 7/7/03). Because neither party had demanded a trial by jury, the action proceeded to a bench trial, with the liability phase beginning on July 28, 2003, and ending on August 1, 2003. On October 23, 2003, the Court issued findings of fact and conclusions of law on liability, determining that the City had violated NP's right to equal protection by imposing Condition 13(b) on NP's development project. See Docket No. 264 (order, filed on 10/23/03). The damages phase of the trial was scheduled to begin on February 7, 2005. As part of its pretrial filings for the damages phase, the City submitted a trial brief in which it argued that NP's lawsuit is barred by claim and/or issue preclusion. Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel and the supplemental briefs, the Court hereby DENIES the City's motion to dismiss based on claim and/or issue preclusion. I. DISCUSSION A. Waiver of Preclusion Defense As a preliminary matter, the Court addresses NP's contention that the Court already considered and rejected the City's preclusion argument during the liability phase of trial. The Court does not agree. During the liability phase, the City did raise the matter of issue preclusion in a motion in limine, see Docket No. 185 (City's Motion in Limine No. 1, filed on 7/2/03); however, the argument in that motion was different from the argument now presented to the Court. In the prior motion in limine, the City argued that NP was precluded by the doctrine of collateral estoppel from challenging the constitutionality of Condition 13(b) because a state court had previously held that NP failed to challenge the conditions of approval, including Condition 13(b), within the statute of limitations. See Liability Ex. P (order of San Mateo County Superior Court in Case No. 429148, filed on 6/20/03). Now, the City contends that there is preclusion-claim preclusion as well as issue preclusion not based on the state court decision but rather based on the decision of the City Council to approve Condition 13(b), which NP failed to challenge via an administrative writ. In support of this argument, the City relies on the Ninth Circuit case Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir.1994), and its progeny. In Miller, the Ninth Circuit concluded that, where a state agency acts in a judicial capacity to resolve disputed issues of law and fact properly before it, and the parties have had an adequate opportunity to litigate those issues, a federal court must give the state agency's fact-finding and legal determinations the same preclusive effect that they would have if they were litigated in state court.[1]See Miller, 39 F.3d at 1032-33. 929 Although the Court concludes that it did not, as argued by NP, previously address the Miller preclusion argument, it finds that the City's failure to raise the argument until now is not without consequences. As noted above, the City previously argued preclusion at the liability phase based on a prior state court decision. After the Court rejected this particular preclusion argument, the City never at any point during the liability proceedings made another preclusion argument. Moreover, after the Court's liability decision on October 23, 2003, the City never moved for summary judgment on the basis of any preclusion defense even though it twice sought dismissal of the suit on other grounds. See, e.g., Docket No. 283 (City's motion to dismiss or, in the alternative, for summary judgment on damages, filed on 2/11/04); Docket No. 389 (City's request for immediate stay, filed on 12/23/04). The first time that the City brought the Miller preclusion argument to this Court was with its trial brief for the damages phase of the case, which was filed only a few weeks before the damages trial was scheduled to begin. See Def.'s Trial Br. at 11-17. Given the above circumstances, the Court agrees with NP that the City's delay led NP as well as the Court to believe that the issue of preclusion was resolved and no longer at issue in this case. In other words, because the City failed to raise the Miller preclusion argument until now, there has been unfair surprise to NP. Cf. Boston Sci. Corp. v. Schneider (Eur.) AG, 983 F. Supp. 245, 254 (D.Mass.1997) (in discussing whether defendant waived a preclusion argument because of a failure to assert the defense in the answer, addressing whether plaintiff was unfairly surprised and unduly prejudiced by late assertion of preclusion argument at summary judgment). Moreover, case law indicates that a party who "delay[s] too long" in asserting a preclusion argument may lose the defense. 18-131 Moore's Fed. Prac. Civ. § 131.50[1] (discussing whether defendant waives preclusion argument because of a failure to assert the defense in the answer, noting that a defendant who "delay [s] too long in asserting claim or issue preclusion may lose the defense"). For example, in Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730 (9th Cir.1988), the defendant argued that the plaintiff was barred by res judicata from proceeding with its case, but the Ninth Circuit disagreed because the defendant had delayed in raising the argument. The court noted first that the defendant had failed to raise the preclusion defense in its original answer to the plaintiff's complaint. See id. at 735. Although the court in other cases had "allowed a party to raise res judicata after the initial pleadings by construing the attempt as a motion to file a supplemental answer, ... we have always required that it be raised before trial." Id. Here, the defendant did not make the preclusion argument until after the end of the trial more specifically, until seven months after the lower court ruled in the plaintiff's favor on liability. See id. at 735 & n. 2. The Ninth Circuit also emphasized that the defendant failed to make the preclusion argument even though the prior court proceeding to which the defendant attributed preclusive effect was decided two years earlier. See id. The Court finds Kern Oil persuasive. Although the instant case is arguably different 930 from Kern Oil to the extent that the City listed preclusion as an affirmative defense in its answer, its allegation was conclusory and failed to provide clear notice of the particular nature of the preclusion argument now advanced. More fundamentally, the reasoning in Kern is still applicable i.e., that undue delay should not be rewarded. Like the defendant in Kern Oil, the City failed to assert the preclusion argument until months after the liability decision was made-indeed, until more than a year after the liability decision.[2] Further, like the defendant in Kern Oil, the City did not argue preclusion until more than a year after the earlier proceeding to which it attributed preclusive effect.[3] Notably, the City has never tried to justify its delay or explain why it could not have moved for Miller based preclusion earlier, e.g., when it moved for preclusion during the liability phase on the basis of the prior state court decision. Given the unfair surprise to NP and the undue delay by the City, the Court finds it appropriate to deem the Miller preclusion argument waived. This conclusion is buttressed by the purposes underlying the preclusion rules, namely, "conserving judicial resources and protecting parties from `the expense and vexation' of relitigating issues that another party previously has litigated and lost." Harvey v. United Transportation Union, 878 F.2d 1235, 1243 (10th Cir.1989); see also Disimone v. Browner, 121 F.3d 1262, 1267 (9th Cir.1997) ("The purposes of preclusion doctrines are to `conserve judicial resources, protect litigants from multiple lawsuits, and foster certainty and reliance in legal relations.'"). In this case, because the City did not assert the Miller preclusion defense until after the liability phase was completely litigated and until the trial on damages was just about to begin, allowing the City to make the preclusion argument does nothing to vindicate either purpose. A vast amount of judicial resources, not to mention NP's resources, have already been expended. Thus, the City's delay not only works an unfair surprise upon NP, it undermines the purposes underlying the preclusion rules by wasting resources of the parties and the Court, thereby prejudicing NP. B. Merits of Preclusion Defense Even if the Court did not find a waiver of the Miller based preclusion defense by the City, the City would be no better off because the defense fails on the merits. As noted above, the City argues for both claim preclusion and issue preclusion based on the Ninth Circuit's opinion in Miller. However, in Miller, the Ninth Circuit emphasized that, whether based on claim or issue preclusion, "unreviewed findings of a state administrative tribunal are entitled to preclusive effect in a subsequent § 1983 action in federal court" only if the fairness requirements of United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966), are met, namely "(1) that the administrative agency act in a judicial capacity, (2) that the agency resolve disputed issues of fact properly before it, and (3) that the parties have an adequate opportunity to litigate." Miller, 39 F.3d at 1032-33; see also Utah Constr., 384 U.S. at 422, 86 S. Ct. 1545 ("When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an 931 adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."). The thrust of the Utah Construction factors is to ensure that the "administrative proceeding was conducted with sufficient safeguards `to be equated with a state court judgment'" entitled to preclusive effect. Miller, 39 F.3d at 1033; see also University of Tenn., 478 U.S. at 798, 106 S. Ct. 3220 ("`Where an administrative forum has the essential procedural characteristics of a court, ... its determinations should be accorded the same finality that is accorded the judgment of a court.'"). In Plaine v. McCabe, 797 F.2d 713 (9th Cir.1986), the Ninth Circuit determined that a hearing held by the California Corporations Commissioner "was conducted similarly to a court proceeding" and so satisfied the Utah Construction test. Id. at 720. For example, the hearing was an adversary proceeding in which opposing parties were present and represented by counsel and were allowed to call, examine, cross-examine, and subpoena witnesses. Under the applicable sections of the California Administrative Code, testimony was to be submitted under oath or affirmation and a verbatim transcript was required. The parties received a written decision setting forth the Commissioner's reasons for [the decision]. Id. Similarly, in Eilrich v. Remas, 839 F.2d 630 (9th Cir.1988), the Ninth Circuit determined that a hearing met the Utah Construction requirements as it resembled a trial: "[B]oth sides were entitled to call, examine and cross-examine witnesses under oath or affirmation. At the hearing, both parties were represented by counsel, twenty-one sworn witnesses testified, subpoenas were issued, and both parties presented oral argument and written memoranda." Id. at 634. In contrast, in Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir.1986), the Ninth Circuit found that the Utah Construction test was not satisfied. "[B]ecause of the nature of the proceedings, the parties did not have an adequate opportunity to litigate Mack's age discrimination claims before the Unemployment Insurance Appeals Board. The ALJ made no specific findings concerning Mack's age discrimination claim and the record does not disclose whether evidence was ever presented on the issue." Id. at 1283-84. Likewise, in Guru Nanak Sikh Soc'y of Yuba City v. County of Sutter, 326 F. Supp. 2d 1128 (E.D.Cal.2003), the district court determined that the requirements of Utah Construction were not met: "It is true that prior to Miller, the Ninth Circuit accepted the parties' agreement that claim preclusion could apply to review of a land use application by a county board of supervisors. Here, however, defendants have made no effort to show that any of the three Utah Construction fairness requirements were met in proceedings before the Board and, in any event, the allegations of the complaint do not suggest that they were." Id. at 1134. The City argues that, in the instant case, NP had "ample" opportunity to litigate the matter of Condition 13(b) at the administrative hearings before both the Planning Commission and the City Council, noting that NP was represented at both hearings by Mr. Fromm, who is not only a member of NP but also an attorney. Def.'s Trial Br. at 16. The City also claims that NP could have not only argued its case regarding Condition 13(b) at the hearings but also presented evidence. The Court, however, is not persuaded that the administrative proceedings before the Planning Commission and the City Council "`ha[d] the essential procedural characteristics of a court [such that 932 their] determinations should be accorded the same finality that is accorded the judgment of a court.'" University of Tenn., 478 U.S. at 798, 106 S. Ct. 3220. Although NP was given some time to present an oral argument at the City Council hearing of August 12, 2002, nothing in the record establishes that NP could have presented evidence or subpoena, call, or cross-examine witnesses under oath. Cf. Pacific Lumber Co. v. California State Water Resources Control Board, 116 Cal. App. 4th 1232, 1249, 11 Cal. Rptr. 3d 378 (2004) (stating that, before administrative decision may be given preclusive effect, administrative proceeding must be "evaluated to determine whether it is sufficiently judicial in nature to support an estoppel"; concluding that California Department of Forestry's approval of timber harvest plan lacked judicial characteristics because there was no adversarial proceeding, testimony was not submitted under oath, there was no opportunity to call or cross-examine witnesses, subpoena witnesses, or present oral argument). Nor could NP have subpoenaed documents in the hands of the City material to its constitutional equal protection claim. The City Council hearing on the permits bore no resemblance to the adjudicatory process before this Court in addressing the equal protection claim. Material evidence presented to the Court in this case included internal documents and testimony pertaining to how NP was treated compared to other similarly situated developers, the reason the joint and severability language was inserted, and the possible rationale for Condition 13(b). The City Council did not and could not reasonably have been expected to marshal such evidence and apply legal analysis to NP's constitutional claim. Rather, its focus was on land use concerns vis-a-vis, e.g., the City's General Plan and other applicable ordinances. The fact that NP could have appealed the administrative decisions of the Planning Commission and the City Council to a state court (via an administrative writ) does not mean that NP was thereby given an adequate opportunity to litigate as required by Utah Construction. Although in Wehrli v. County of Orange, 175 F.3d 692 (9th Cir.1999), the Ninth Circuit stated that "`the issue of a "full and fair" opportunity to litigate includes the possibility of a chain of appellate review,'" Id. at 695 (quoting Crossroads Cogeneration v. Orange & Rockland Utils., Inc., 159 F.3d 129, 137 (3d Cir.1998)), the court did not hold such a possibility is sufficient to render an otherwise inadequate opportunity into one which satisfies Utah Construction. Rather, Wehrli simply stands for the converse proposition that, without the procedural safeguard of appellate review, there could be no full and fair opportunity to litigate as required by Utah Construction. In any event, in the instant case, the possibility of a mandamus proceeding did not in fact give NP an adequate opportunity to litigate the equal protection question. Judge Wilken's decision in Embury v. King, 191 F. Supp. 2d 1071 (N.D.Cal.2001), is illuminating in this respect. There, the plaintiff argued that he was denied an adequate opportunity to litigate because a committee made the decision to fire him "without testing any evidence through the adversarial process and without holding any hearing at all." Id. at 1083. The defendants asserted that, "despite the failings of the administrative proceeding, an adequate opportunity to litigate was afforded... by virtue of California's mandamus procedure." Id. (citing California Code of Civil Procedure § 1094.5). But, as Judge Wilken explained, under § 1094.5, "`[t]he general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative 933 agency.'" Id. "Because the writ procedure is effectively limited to the administrative record, it is an insufficient remedy when Plaintiff alleges that he was denied any opportunity to present his case at the administrative level." Id. at 1084. While the circumstances in Embury are more severe than those in the instant case (i.e., in Embury, no administrative hearing was held at all), the reasoning of the case is still applicable to the case at bar. NP was not given the opportunity to have a "full evidentiary hearing" at the administrative level e.g., to present evidence, to cross-examine witnesses, subpoena documents, and so forth. Id. at 1083. Nor did the administrative writ procedure governed by § 1094.5 give NP the opportunity to have a full evidentiary hearing because the procedure limited NP to the already established administrative record. The Court acknowledges that augmentation of the administrative record is possible under California law, but this is true only in limited circumstances. See Pomona Valley Hosp. Med. Ctr. v. Superior Court, 55 Cal. App. 4th 93, 101, 63 Cal. Rptr. 2d 743 (1997) (noting that augmentation of an administrative record is permitted "only within the strict limits set forth in section 1094.5, subdivision (e)"). Under § 1094.5(e), Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case. Cal.Code Civ. P. § 1094.5(e). Given this restriction on evidence and the limited nature of City Council hearings on permit approvals, an administrative writ proceeding cannot even with remand convert a City Council hearing on NP's permit into a full and fair adjudication of its constitutional claim so as to satisfy Utah Construction. Thus, because the Utah Construction factors have not been satisfied, the City's preclusion argument must fail. The Court also rejects the City's preclusion argument for an additional reason. Miller was predicated on the fact that the plaintiff therein chose to have his claim heard by an administrative agency and thus was bound to the determination made when he did not seek appellate review thereof. In Miller, the plaintiff was employed by a county sheriff's department for some eight years but was terminated after several disciplinary actions. See Miller, 39 F.3d at 1031. The plaintiff was not required to but made the election to contest his dismissal before the county's Civil Service Commission. See id. The Ninth Circuit emphasized: "California has made it quite clear that a discharged civil servant who elects an administrative forum for review of his or her termination must succeed in overturning that administrative decision through the judicial mandamus review procedure prior to filing a suit for damages on claims arising out of the termination." Id. at 1038 (emphasis in original). This element of choice was key to the Ninth Circuit's holding. The court pointed out that, under Patsy v. Board of Regents of Florida, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), the plaintiff was not required to exhaust his administrative remedies before he could file suit under § 1983. See id. at 501, 102 S. Ct. 2557 (stating that "exhaustion [of state judicial or administrative remedies] is not a prerequisite *934 to an action under § 1983"). However, "[n]o exhaustion requirement has been imposed on Miller. It is Miller's election to pursue his claim initially in an administrative forum, and to forego his right to seek judicial review in state court, which requires us to determine whether that decision is binding on all that was, or could have been, determined there." Miller, 39 F.3d at 1034 n. 3. Thus, under Miller, if a party chooses to take an administrative route, then it must pursue that route to its ultimate conclusion or else be precluded. However, a party cannot be forced to follow the administrative route and then have that administrative determination preclusive of any federal court suit lest effectively circumventing the Supreme Court's holding in Patsy. In the instant case, after the Planning Commission approved NP's permits subject to, inter alia, Condition 13(b), NP did have the choice between seeking relief through an administrative process (i.e., an appeal to the City Council) or through an alternative route (i.e., a civil action in federal court). NP was never given the chance to exercise that choice. Instead, John Curtis, an individual opposed to the project, initiated the administrative process on his own by filing an appeal of the Planning Commission's decision with the City Council. Because Mr. Curtis and not NP made the decision to pursue the administrative route, NP cannot be charged with the consequences of exhausting that administrative route and then being held to its preclusive effect which would essentially bar a federal court action. Absent NP's exercise of a choice in voluntarily seeking relief through the administrative process, NP's access to the federal court cannot be barred by the doctrine of preclusion. See Patsy, 457 U.S. at 503-04, 102 S. Ct. 2557 (noting that "`[the] very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights'" and that Congress "intended § 1 [the precursor to § 1983] to `throw open the doors of the United States courts' to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, and to provide these individuals immediate access to the federal courts notwithstanding any provision of state law to the contrary"). II. CONCLUSION For the foregoing reasons, the Court concludes that the City has waived the Miller preclusion defense and that, even if the defense were not waived, on the merits, NP is not precluded from seeking damages for the equal protection violation at issue. Accordingly, to the extent the City has asked the Court to dismiss NP's suit based on claim and/or issue preclusion, the motion is denied. IT IS SO ORDERED. NOTES [1] Pursuant to 28 U.S.C. § 1738, federal courts are required to give preclusive effect to state court judgments. While § 1738 does not apply to administrative agency decisions that have not been first reviewed by a state court, the Supreme Court has "frequently fashioned federal common-law rules of preclusion in the absence of a governing statute." University of Tenn. v. Elliott, 478 U.S. 788, 794, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986). [2] As noted above, the Court issued its findings of fact and conclusions of law on October 23, 2003. The City did not present the Miller preclusion argument until January 18, 2005. [3] The City Council made its decision regarding NP's permits on August 12, 2003.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2583863/	56 N.Y.2d 251 (1982) In the Matter of Henry Camperlengo, Appellant, v. Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents. Court of Appeals of the State of New York. Argued April 2, 1982. Decided June 10, 1982. Dennis B. Schlenker for appellant. Robert Abrams, Attorney-General (Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for respondents. Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur. 253Chief Judge COOKE. The physician-patient privilege does not absolutely protect a doctor's records of treatment of Medicaid patients from a subpoena of the State Department of Social Services issued in an investigation of billing practices. The order of the Appellate Division, therefore, should be affirmed. Petitioner is a psychiatrist whose patients include a number of Medicaid recipients. The State Department of Social Services discovered that petitioner had submitted 254 consecutive billing dates for certain Medicaid patients. Considering such billing unusual, the department sought access to petitioner's records to determine if there had been unnecessary treatment or fraud in billing procedures. Petitioner's co-operation was inadequate and the department eventually issued a subpoena duces tecum requiring petitioner to produce his records concerning 35 Medicaid patients. The subpoena sought: "1) all patient records including, but not limited to treatment plans, periodic evaluations and any other treatment or diagnostic or prognostic records. 2) Any other miscellaneous medical data relating to the patient's physical or mental condition. 3) Records of any payments by third parties for medical services rendered to the patients." Petitioner moved pursuant to CPLR 2304 to quash the subpoena. Supreme Court denied the motion and the Appellate Division affirmed (83 AD2d 661). On this appeal, petitioner asserts that the material sought by the subpoena is protected by the physician-patient privilege set forth in CPLR 4504 (subd [a]). That statute provides that, unless the patient waives the privilege, a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." The physician-patient privilege is a purely statutory creation, in derogation of the common-law rule that a physician could be compelled to disclose information acquired in the treatment of a patient (see People v Al-Kanani, 33 N.Y.2d 260, 264, cert den 417 US 916; Steinberg v New York Life Ins. Co., 263 N.Y. 45, 48; see, generally, Richardson, Evidence [10th ed Prince], §§ 426-444). First enacted in New York in 1828, the privilege is designed "to protect those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment, or disgrace to patients" (Steinberg v New York Life Ins. Co., supra, pp 48-49; see, also, Pierson v People, 79 N.Y. 424, 433). This provision of confidentiality encourages the patient to seek medical treatment and to be frank in describing his or her 255 symptoms to the physician so that the most effective treatment can be obtained. Although the privilege serves an important social function, in certain instances the Legislature has abrogated this privilege to effectuate some other public policy, such as the detection and prevention of child abuse (Family Ct Act, § 1046, subd a, par [vii]) or the treatment of narcotic addiction (Public Health Law, § 3373). The question here is whether and to what extent the State and Federal regulatory provisions of the Medicaid program have also created an exception to the privilege. The Medicaid program uses public funds to help provide medical services to needy persons. For this program to be carried out effectively, "the public must be assured that the funds which have been set aside for this worthy purpose will not be fraudulently diverted into the hands of an untrustworthy provider of services" (Schaubman v Blum, 49 N.Y.2d 375, 379). To this end, the Medicaid program requires that certain information be made available to those charged with administering the program. The Federal Government requires that States participating in Medicaid "provide for agreements with every person or institution providing services under the State plan under which such person or institution agrees (A) to keep such records as are necessary fully to disclose the extent of the services provided to individuals receiving assistance under the State plan, and (B) to furnish the State agency or the Secretary with such information, regarding any payments claimed by such person or institution for providing services under the State plan, as the State agency or the Secretary may from time to time request" (US Code, tit 42, § 1396a, subd [a], par [27]). New York State regulations require that such information be kept by Medicaid providers for a minimum of six years after payment and made available to the appropriate agencies (18 NYCRR 540.7 [a] [8]). Although there is no express statutory exception to the privilege for Medicaid-related records, the Federal and State record-keeping and reporting requirements evidence a clear intention to abrogate the physician-patient privilege to the extent necessary to satisfy the important public 256 interest in seeing that Medicaid funds are properly applied. Of course, this exception to the privilege is intended to be no broader than necessary for effective oversight of the Medicaid program. Thus, the use of information obtained pursuant to the record-keeping requirements is restricted to purposes directly connected with administering the Medicaid program, and disclosure is otherwise prohibited (US Code, tit 42, § 1396a, subd [a], par [7]; Social Services Law, §§ 136, 367-b, subd 4; § 369, subd 3). Continued confidentiality is assured and any adverse impact on the policy underlying the privilege is kept to a minimum. Petitioner therefore cannot avail himself of the physician-patient privilege with respect to the department's subpoena of the treatment records of Medicaid patients. Although the exception to the privilege is limited in scope, it is broad enough to permit the department to ascertain whether Medicaid funds are properly applied.[] Petitioner also argues that the information sought by the department is protected by the right to privacy embodied in the United States Constitution. This claim was not raised below, however, and therefore should not now be considered by this court (see Tumolillo v Tumolillo, 51 N.Y.2d 790; Di Bella v Di Bella, 47 N.Y.2d 828). Accordingly, the order of the Appellate Division should be affirmed, with costs. Order affirmed. NOTES [] Inasmuch as petitioner abandons on this appeal any claim that the department's subpoena was overly broad, this court has no occasion to delineate the precise boundaries of the exception.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1369112/	130 S.W.3d 373 (2004) Lorrie FRAZIN, Appellant, v. William J. HANLEY and Jane A. Hanley, Appellees. No. 05-03-00110-CV. Court of Appeals of Texas, Dallas. February 27, 2004. 375 Gary N. Schepps, Dallas, for Appellant. John Leslie Thompson, Dallas, for Appellee. Before Justices MORRIS, FRANCIS, and LANG-MIERS. OPINION Opinion by Justice MORRIS. Following a trial without a jury, Lorrie Frazin appeals the judgment against her and in favor of appellees William J. Hanley and Jane A. Hanley on their counterclaim for breach of contract. Appellant presents eighteen issues. She complains of the trial court's failure to make findings of fact and conclusions of law, the striking of her expert witnesses as untimely designated, and the denial of her motion for new trial. Additionally, she challenges the legal sufficiency of the evidence to support certain elements of appellees' cause of action, the amount of the trial court's damage award, pre- and post-judgment interest assessments, and the imposition and amount of the attorney's fees awarded against her. We conclude the evidence is legally sufficient to support the trial court's judgment. We further conclude, however, that appellant's expert witnesses were timely designated and, thus, the trial court abused its discretion in striking these witnesses. We therefore reverse the trial court's judgment and remand this matter to the trial court for further proceedings. I. The parties' dispute arises out of appellant's refinancing of real property on which appellees' held a $75,000 real estate lien note. Appellant purchased the property from a third party who had previously bought it from appellees. Appellees financed a portion of the third party's purchase price through a $75,000 interest-only promissory note. When appellant bought the property, she assumed the $75,000 note. She and appellees later signed a modification of the note authorizing an extension of the note's maturity date and a change in payments that would amortize both the principal loan amount and interest. Years later, appellant decided to refinance the property. During the refinancing process, a disagreement arose between appellant and appellees with respect to the balance owed on the note. Although the closing on the refinancing proceeded, appellees never received the note's payoff amount or, alternatively, the next monthly payment that was due on the note. Instead, appellant filed this lawsuit and obtained a temporary restraining order enjoining any disbursement from the refinancing proceeds to appellees. The case was scheduled for trial on August 20, 2002. On July 11, 2002, appellees filed a counterclaim. They sought the balance due on the note, alleging appellant breached their agreement to pay off the note in exchange for the release of their lien on the property. On July 19, 2002, appellant supplemented her discovery responses to include the names of three experts she expected to testify at the trial. Appellees moved to exclude these experts 376 from testifying asserting they were untimely designated. The trial court agreed with appellees and struck all three of appellant's expert witnesses. Appellant ultimately caused all of her affirmative claims to be dismissed leaving appellees' counterclaim for breach of contract the only remaining claim at issue in the case. At the conclusion of the trial on appellees' breach of contract claim, the trial court rendered judgment against appellant for $28,095.86 in actual damages, $12,900 in attorney's fees, plus conditional attorney's fees totaling $6,000 in the event of unsuccessful appeals to an intermediate appellate court and the Texas Supreme Court. The trial court also assessed post-judgment interest at the rate of twelve percent compounded annually. Appellant then timely filed this appeal. II. Generally, when a party presents multiple grounds for reversal on appeal, appellate courts first address those issues that would require rendition. Natural Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188, 201, 47 Tex. Sup.Ct. J. 153, 162 (Tex., 2003). We therefore begin our analysis with appellant's fourth and fifth issues that challenge the legal sufficiency of the evidence to support the trial court's judgment. See id. Specifically, appellant complains the trial court erred in granting judgment on appellees' breach of contract claim because there is no evidence of contract formation or substantial performance by appellees. When reviewing a legal sufficiency challenge, we limit our consideration to the evidence and inferences that support the trial court's finding, disregarding all contrary evidence and inferences. See Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). We reject a legal sufficiency challenge if there is anything more than a scintilla of evidence to support the finding. Id. The elements of a breach of contract cause of action are: (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages to the plaintiff resulting from the breach. Kay v. North Texas Rod & Custom, 109 S.W.3d 924, 927 (Tex.App.-Dallas 2003, no pet.). Appellant initially challenges the evidentiary support for the first element of appellees' cause of action, namely, the existence of a valid contract. She asserts there was no evidence that appellees' offer to release the lien in exchange for the note's payoff was ever accepted by appellant. We disagree. At trial, William Hanley testified that after appellant called him to say she was refinancing the property, he received communications from a lending institution and a title company asking if he would release the lien on the property and asking for the amount due on the note at that time. According to Hanley, he was told that appellant wanted to refinance, but as a condition to the refinance, he would have to release the lien. Hanley testified that he sent via e-mail the requested payoff amount, daily interest rate, and agreed to release the lien. This is more than a scintilla of evidence to support the formation of a contract between the parties. In reaching this conclusion, we necessarily reject appellant's contention that there was no evidence that either the lending institution or the title company had authority to bind appellant to the alleged agreement or that William Hanley was authorized to enter an agreement on behalf of his wife Jane with whom he jointly held the lien. The evidence indicates that the lending institution and title company contacted Hanley on appellant's behalf pursuant to her request that her loan with appellee be refinanced. 377 Consequently, these entities could be seen as having apparent authority to bind appellant. See BML Stage Lighting, Inc. v. Mayflower Transit, Inc., 14 S.W.3d 395, 401 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (apparent authority exists "when a principal clothes its agent with the semblance of authority such that a reasonably prudent person would be justified in believing that the agent has the power the person assumes he has"). Moreover, Hanley testified that he represented his wife in the negotiations with respect to appellant's note. We conclude appellant's fourth issue is without merit. In her fifth issue, appellant asserts there was no evidence of appellees' substantial performance of the alleged agreement because no release was offered into evidence and there was no evidence that Jane Hanley signed any release or document purporting to release the lien. Hanley testified that he released the lien by e-mail. Moreover, there was evidence that the refinancing loan was closed. In light of Hanley's testimony that the refinancing was conditioned upon appellees' release of the lien, it can be reasonably inferred that appellees did in fact release their lien. Accordingly, we conclude there is more than a scintilla of evidence showing that appellees performed or tendered performance. We resolve appellant's fifth issue against her. Having determined that appellant is not entitled to a reversal and rendition on her legal sufficiency issues, we next turn to her second issue in which she complains about the trial court's exclusion of her defensive and rebuttal expert witnesses. Appellant argues that she timely designated these experts within eight days after appellees first filed their counterclaim against her and before the end of the discovery period. Appellees contend appellant has waived this issue by failing to cite any authority in her brief to support her position. The Rules of Appellate Procedure require the argument portion of a brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App. P. 38.1(h). We liberally construe the briefing rules. Tex. R.App. P. 38.9. Appellant's brief devotes over two pages of argument on this issue in which she sets forth her reasoning and makes appropriate references to the record. Although she has not cited any case law under this issue, she has cited to various discovery rules in The Texas Rules of Civil Procedure to support her contention. We will address the merits of this issue. We review the trial court's exclusion of an expert because of an improper designation under an abuse of discretion standard. See Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex.1994). A trial court abuses its discretion when it acts arbitrarily, unreasonably or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). In the absence of a court order specifying otherwise, the rules of civil procedure set forth the following mandatory schedule for the designation of expert witnesses: a party seeking affirmative relief must designate ninety days before the end of the discovery period; all other parties must designate sixty days before the end of the discovery period. Tex.R. Civ. P. 195.2. Supplemental discovery responses relating to expert testimony, however, are governed by Rule 193.5(b). Such responses must be made "reasonably promptly after the party discovers the necessity for such a response." Tex.R. Civ. P. 193.5(b). A response made less than thirty days before trial is presumed to be not reasonably promptly made. Id. 378 As noted above, this case was scheduled for trial on August 20, 2002. The parties agree the discovery period ended on July 21, 2002. See Tex.R. Civ. P. 190.3(b)(1)(B). The deadline for designating defense expert witnesses was therefore May 22, 2002. See Tex.R.App. P. 195.2(b). Appellees, however, filed their counterclaim about fifty days after this deadline had passed. Appellant supplemented her discovery naming three expert witnesses eight days after appellees' counterclaim was filed. She designated her first expert to testify on "proper accounting of loan balance." Appellant's second expert's testimony was expected to encompass "atty fees and the reasonableness and necessity thereof, ... his training, experience and knowledge of customary fees charged by attorneys practicing in Dallas county in like cases. [The expert] is further expected to testify as to proper accounting of loan balance interest, etc. and Tex.R. Civ. P. 13." The third expert was also expected to testify with respect to attorney's fees. Appellees' counterclaim was filed only forty days before the scheduled trial date, making it impossible for appellant to comply with the general rule applicable to designating defense witnesses. Appellant submitted her supplemental discovery response disclosing the three experts, however, only eight days after appellees' counterclaim was filed and thirty-one days before the trial date. Based on the record before us, we conclude appellant's supplemental disclosure identifying the defense experts was reasonably promptly made. There was no evidence that appellant delayed disclosing these witnesses. In fact, her obligation to disclose defense witnesses did not even arise until appellees filed their counterclaim against her. Once filed, appellant supplemented her discovery responses disclosing the experts within eight days. Accordingly, the trial court abused its discretion in excluding these experts from testifying on behalf of appellant as defense witnesses. Moreover, because the testimony of these experts was the only evidence appellant had to dispute appellees' calculation of damages and attorney's fees, appellant was necessarily harmed by their exclusion. To the extent appellees argue that two of appellant's experts were designated to testify as experts only on appellant's affirmative claims and not as rebuttal or defense experts, our review of appellant's supplemental discovery responses reveals her designation was not so limited. We also reject appellees' contentions that appellant failed to disclose "expert related documents" or the "general substance of the expert's mental impressions and opinion's and a brief summary of the basis for them." Appellant's supplemental disclosure referred to attached documentation and the documentation attached to plaintiff's original disclosure responses. There is no indication in the record before us that these responses were inadequate. Because we conclude the trial court abused its discretion in excluding her defense experts as untimely designated, we resolve appellant's second issue in her favor. Our resolution of this issue is dispositive and makes it unnecessary to address appellant's remaining issues. See Natural Gas Pipeline, 124 S.W.3d 188, 201, 47 Tex. Sup.Ct. J. at 162. We reverse the trial court's judgment and remand this matter for further proceedings.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2579232/	631 F. Supp. 2d 844 (2009) WELLS FARGO BANK, N.A., Trustee, Plaintiff, v. WEST COAST LIFE INSURANCE COMPANY, Defendant. Civil Action Nos.: 3:08-CV-1742-M, 3:08-CV-1743-M, 3:08-CV-1744-M, 3:08-CV-1745-M, 3:08-CV-1746-M, 3:08-CV-1747-M, 3:08-CV-1749-M, 3:08-CV-1846-M. United States District Court, N.D. Texas, Dallas Division. June 30, 2009. 845 Ernest Martin, Jr., Charles C. Keeble, Jr., Haynes & Boone LLP, Dallas, TX, John E. Failla, Lisa A. Bauer, Nathan Lander, Proskauer Rose LLP, New York, NY, for Plaintiff. Michael D. Mulvaney, C. Andrew Kitchen, Maynard Cooper & Gale PC, Birmingham, AL, Michael Vincent Fitzpatrick, Roland K. Johnson, Harris Finley & Bogle, Fort Worth, TX, for Defendant. ORDER BARBARA M.G. LYNN, District Judge. Before the Court are the Motions to Transfer in Favor of Prior Pending Federal Lawsuit, and Alternative Motions to Stay or Dismiss, filed in the following cases (the "Wells Fargo cases"): 1. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1742-M [Docket Entry # 11]; 846 2. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1743-M [Docket Entry # 11]; 3. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1744-M [Docket Entry # 11]; 4. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1745-M [Docket Entry # 11]; 5. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1746-M [Docket Entry # 11]; 6. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1747-M [Docket Entry # 11]; 7. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1749-M [Docket Entry # 10]; 8. Wells Fargo Bank N.A. v. West Coast Life Insurance Company, 3:08-cv-1846-M [Docket Entry # 13]. Having considered the Motions, the parties' briefing, and the applicable law, the Court finds that the Motions should be GRANTED, insofar as they request TRANSFER of these cases to the Southern District of Florida, where related Civil Action No. 08-80897 is pending before United States District Judge Kenneth L. Ryskamp. Defendant West Coast Life Insurance Company ("West Coast") moves this Court to transfer the Wells Fargo cases to the United States District Court for the Southern District of Florida under the first-to-file rule. The first-to-file rule is a discretionary doctrine, about which the Fifth Circuit has stated: Under the first-to-file rule, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially overlap. The rule rests on principles of comity and sound judicial administration. "The concern manifestly is to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result."[1] The first-to-file rule is a forward-looking doctrine used to "maximize judicial economy and minimize embarrassing inconsistencies by prophylactically refusing to hear a case raising issues that might substantially duplicate those raised by a case pending in another court."[2] Upon motion invoking the doctrine, the court must determine "the likelihood of substantial overlap" between the suit before it, and the suit previously filed. The rule in the Fifth Circuit is that the court in which an action is first filed is the appropriate court to determine how subsequently filed cases, involving substantially similar issues, should proceed, if at all. "[T]he `first to file rule' not only determines which court may decide the merits of substantially similar issues, but also establishes which court may decide whether the second suit filed must be dismissed, stayed or transferred and consolidated."[3] As a result, once a district court determines that issues in the suits 847 might substantially overlap, the proper course of action is for the court to transfer the case to the first-filed court to determine which case should, in the interests of sound judicial administration and judicial economy, proceed.[4] West Coast filed an action for declaratory judgment in the United States District Court for the Southern District of Florida on August 13, 2008 (the "West Coast suit"). The Wells Fargo cases were filed in the Northern District of Texas on October 1, 2008. This Court must determine if there is a likelihood of substantial overlap between the issues raised in the Wells Fargo cases, and the West Coast suit. If so, then this Court should transfer the Wells Fargo cases to the Florida district court for that court to determine how to proceed. The Court finds that there is substantial overlap between the Wells Fargo cases and the West Coast suit, as the relief sought by the suits is the same. The West Coast complaint states: An actual controversy exists between the parties as to whether the Policies are void ab initio because Insureds materially misrepresented the true facts in the Policies' applications and/or the Policies were procured by fraudulent means. Such misrepresentations and/or omissions constitute a failure of condition precedent for coverage under the Policies. Moreover, pursuant to state law, including Fla. Stat. § 627.409(1), the misrepresentations are grounds for rescission of the Policies. A declaratory judgment on this issue will completely resolve the controversy among the parties.[5] The Wells Fargo Complaints before this Court state: West Coast has attempted to rescind and cancel this Texas policy wrongfully, by filing suit in Florida, based on assertions of misrepresentations, fraud, and lack of an insurable interest. Plaintiff seeks a declaration that, under Texas law, West Coast may not rescind or cancel the policies on these grounds, that the application for the policy was truthful and correct, that any issues or concerns that West Coast may have were either known by or the action of West Coast's agent, and that the policy remains in full force and effect.[6] In addition to seeking the same relief, the suits are based on the same life insurance policies, and the same facts surrounding the applications for these policies. The suits also involve many of the same parties, as all of the Plaintiffs in the Wells Fargo cases are named as defendants in the West Coast complaint, along with other defendants. Finally, the suits involve the same legal issuesthe validity of the life insurance policies based on alleged misrepresentations in the applications, and based on the structure of the life insurance policies' ownership and transferability. Given these similarities, it is clear that the suits substantially overlap. Wells Fargo appears to concede the relatedness of the actions, but argues that this Court should make an exception to the first-to-file rule because West Coast is engaging in impermissible "forum shopping," and is attempting to deprive Texas, the forum with the greatest interest in the litigation, of its ability to resolve the dispute. Wells Fargo also argues that it is the "true plaintiff," because it is the party attempting to enforce its contractual rights, and that West Coast is the true 848 defendant, acting as a plaintiff through the declaratory judgment statute. Therefore, Wells Fargo's forum selection should trump the first-to-file rule. The Court finds these arguments to be without merit.[7] Wells Fargo asserts the same "interests of justice" arguments relating to Texas's interest in the litigation in a motion to transfer, which is currently pending before the Florida district court in the related case. Such a motion is the proper course for handling a forum dispute, rather than filing a subsequent lawsuit based on the same facts and involving the same parties in a different forum in order to force a change of venue. As the court in which the first suit was filed, the Florida district court is entitled to determine which forum should hear this dispute. It may grant the motion to transfer to the Northern District of Texas if it agrees that the interests of justice so mandate. The Florida court is also fully capable of applying Texas law to the legal issues in the suits, if it determines that such choice of law is appropriate. The instant case is a classic example of the duplicative and inefficient expenditure of judicial resources that occurs when more than one court is asked to hear the same dispute, and this Court will not further perpetuate such waste by maintaining these suits in the Northern District of Texas. In short, this Court's analysis is limited to which suit was filed first, and whether substantial overlap between the suits exists. Finding that it does, this Court hereby GRANTS the Motions to Transfer the Wells Fargo cases to the Southern District of Florida for further disposition. The Court further finds that consolidation of the Wells Fargo cases is proper under Federal Rule of Civil Procedure 42(a), which states: "If actions before the court involve a common question of law or fact, the court may . . . consolidate the actions." Accordingly, Civil Action Nos. 3:08-CV-1743-M, 3:08-CV-1744-M, 3:08-CV-1745-M, 3:08-CV-1746-M, 3:08-CV-1747-M, 3:08-CV-1749-M, and 3:08-CV-1846-M shall be consolidated with Civil Action No. 3:08-CV-1742-M. Pursuant to N.D. Tex. Civ. R. 42.1, all pleadings, motions, or other papers will be filed in Civil Action No. 3:08-CV-1742-M, and bear 849 only the caption of that case, together with the legend required by Rule 42.1. NOTES [1] Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir.1999) (citations omitted) (quoting West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir.1985)). [2] Cadle Co., 174 F.3d at 606. [3] Id. [4] Id. [5] See Southern District of Florida Complaint at 22. [6] See Northern District of Texas Complaints at 2. [7] The Court notes that its decision in Paragon Industries, L.P. v. Denver Glass Machinery, Inc., No. 3:07-CV-2183, 2008 WL 3890495 at 5 (N.D.Tex. Aug. 22, 2008) (Lynn, J.) is distinguishable from the instant case. In Paragon, this Court decided the defendant's motion to transfer under 28 U.S.C. § 1404(a), and granted the transfer on the grounds that the plaintiff anticipatorily filed suit in Texas. The Court's decision was based on the presence of pre-litigation communications that alerted the plaintiff to the possibility of suit. Specifically, the Court found that Paragon filed the lawsuit before its deadline to respond to Denver Glass's demand to desist infringing activities had expired. As a result, the nature of the anticipatory declaratory judgment action devalued Paragon's choice of forum, which justified transfer to the defendant's choice of forum as the true plaintiff. The same facts are not present in this case. Both the Wells Fargo complaints and the West Coast action seek a declaration regarding the validity of the life insurance policies, and both allege that they are victims of the other party's wrongful actions. Unlike Paragon, there is no clear "true plaintiff" or "true defendant" in these cases. There is also no evidence that West Coast knew that Wells Fargo intended to file suit in Texas, and raced to the Florida courthouse to defeat its ability to do so. Finally, Paragon decided a motion to transfer filed under 28 U.S.C. § 1404(a). It did not decide between two competing lawsuits as the instant Plaintiff is asking this Court to do. Wells Fargo's pending motion to transfer in the Florida court seeks the same relief as the defendant in Paragon, and if the Florida court determines that the suit should be heard in Texas in the interests of justice, it can grant the motion to transfer and make it so.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2752628/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1665 BEATTIE B. ASHMORE, in his Capacity as Court Appointed Receiver for The Three Hebrew Boys, Plaintiff - Appellee, v. FELEICIA COOK, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, Senior District Judge. (3:13-cv-01449-MBS) Submitted: November 14, 2014 Decided: November 18, 2014 Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Feleicia Cook, Appellant Pro Se. Lauren Price, Lewis Walter Tollison, III, TOLLISON LAW FIRM, Greenville, South Carolina; Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Feleicia Cook appeals the district court’s order denying her Fed. R. Civ. P. 59(e) motion for reconsideration of the court’s order granting summary judgment to the Plaintiff. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Ashmore v. Cook, No. 3:13-cv-01449-MBS (D.S.C. June 24, 2014). We grant Cook leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	11-18-2014
https://www.courtlistener.com/api/rest/v3/opinions/2579223/	631 F. Supp. 2d 106 (2009) Victor KOSSOY, Plaintiff, v. State of MAINE, Defendant. No. CV-08-263-B-W. United States District Court, D. Maine. July 1, 2009. 107 Victor Kossoy, Old Town, ME, pro se. Paul Stern, Assistant Attorney General, Augusta, ME, for Defendant. ORDER ON PLAINTIFF'S POST-JUDGMENT MOTIONS JOHN A. WOODCOCK, JR., Chief Judge. Applying Supreme Court precedent, the Court denies the Plaintiffs post-judgment motions. I. STATEMENT OF FACTS On August 8, 2008, Victor Kossoy, acting pro se, filed a complaint with this Court, seeking relief against the state of Maine. Compl. (Docket # 1). In the complaint, Mr. Kossoy stated that on or about July 30, 2008, he received several pages from the Maine State Police, "requesting `compliance' with the `New & Revised' Maine State Title 34 A, MRSA, Chapter 15, Sects: 11201-11256."[1]Id. ¶ 1. Mr. Kossoy said that to comply with these documents would abrogate his inalienable rights protected by the United States Constitution, including the Bill of Rights. Id. ¶ 2. Further, he claimed that by enforcing the statute, the state of Maine, acting under color of law, was violating his civil rights. Id. ¶ 4. He requested "Immediate Relief, by the Issuance of an Injunction, against the enforcement of the Unconstitutional state law, described above." Id. ¶ 6. On October 16, 2008, Mr. Kossoy filed a nine-page document styled a "Motion by the Plaintiff for Issuance of the Requested Injunction Relief; With Prayer for Court Cost Reimbursement; and an Indemnity Award for the Injury of Duress Inflicted." Supplemental Compl. (Docket #2). In this pleading, he noted that the state of Maine had not responded to his complaint and he demanded a default judgment; he then reiterated his claim of unconstitutional actions by the state of Maine, and sought a "Federal Court Injunction" as well as compensatory and punitive damages. Id. ¶¶ 1-3, 10, 12. Citing the familiar four-factor test for the issuance on an injunction, the state of Maine answered on November 12, 2008, asking that the motion for injunctive relief be denied because the Plaintiff had failed to demonstrate a probability of success on the merits. Specifically, the state posited three bases for denial: (1) that it had never been properly served with the original 108 complaint; (2) that the state of Maine cannot be sued in federal court for injunctive relief in view of the Eleventh Amendment; and, (3) that with certain exceptions, the state of Maine cannot be sued in federal court for money damages and this case does not fit within the exceptions. State Defs.' Mem. in Opp'n to "Mot. by the Pl. for Issuance of the Requested Injunction Requested" (Docket # 4). On November 19, 2008, Mr. Kossoy replied to the State's response. Pl.'s Resp. Mem. to State's Mem. of Nov. 12, 2008; in Opp'n to Injunctive Relief Request of Pl., in Oct. 16, 2008 Mot. for such Relief (Docket # 5). Mr. Kossoy declaimed the four-factor test as "nothing but a sterile linguistic (legalistic) smoke screen, exploiting public fear & mistrust; and specifically designed to obscure, the outstanding rights issues, raised by the Plaintiff; instead magnifies the `Fear-factor' interests; on behalf of public safety & security." Id. at 2. On November 19, 2008, the Magistrate Judge issued an Order, terminating the Plaintiff's motion for injunctive relief. In the Order, she concluded that the motion for injunctive relief is intended to supplement the Plaintiffs original complaint. Order (Docket # 6). She observed that the original complaint demanded injunctive relief and there had been no request for a preliminary injunction and none would be granted. Id. She denied Mr. Kossoy's demand to issue a default against the state of Maine and directed the Clerk to set an answer deadline for the State in view of the executed waiver of service of summons. Id. On November 24, 2008, Mr. Kossoy appealed the Magistrate Judge's Order, arguing that he had not consented to her ruling and that the Order violated his right to procedural due process. Pl.'s Mot. to District Court Judge, to Vacate Order of the Magistrate dated Nov. 19, 2008 (Docket # 7). On December 11, 2008, the state of Maine filed a memorandum in opposition to the Plaintiffs motion to vacate. State Defs.' Mem. in Opp'n to "Pl.'s Mot. to District Court Judge, to Vacate Order of Magistrate Dated Nov. 19, 2008" (Docket # 8). On December 18, 2008, the Plaintiff replied. Pl.'s Mem. to Affirm Vacation of Magistrate's Order of Nov. 19, 2008, and To Disregard State's Opp'n to such Action As Stated in State's Mem. of Dec. 11, 2008 (Docket # 9). On January 7, 2009, the Court issued an Order denying the Plaintiffs motion to vacate the Magistrate Judge's Order. Order on Pl.'s Mot. to District Court Judge (Docket # 10). Shortly after the January 7, 2009 Order, the state of Maine moved to dismiss the case on the ground that Mr. Kossoy's cause of action against the state of Maine demands injunctive relief, which is not available against the state, and money damages, which are also not available against the state. State's Mot. to Dismiss at 2 (Docket # 11). Mr. Kossoy filed both an initial and amended response. Pl.'s Mot. to Disregard State's Mot. to Dismiss (Docket # 12); Pl.'s Am. Mot. to Deny State's Mot. to Dismiss of Jan. 9, 2009 (Docket # 13). On February 18, 2009, the Magistrate Judge issued a recommended decision in which she recommended that the Court grant the state's motion to dismiss. Recommended Decision on Mot. to Dismiss at 3, 2009 WL 424565 (Docket # 14). On March 3, 2009, Mr. Kossoy objected. Pl.'s Qualified Obj. to Magistrate's "R & R" of Feb. 18, 2009 (Docket # 15). On March 20, 2009, the state responded. State's Resp. to Obj. to Recommended Decision (Docket # 16). On March 24, 2009, the Court affirmed the Recommended Decision over the objection of the Plaintiff, and judgment was entered the same day. Order Affirming the Recommended 109 Decision of the Magistrate Judge, 2009 WL 799470 (Docket # 17); J. (Docket # 18). On April 6, 2009, Mr. Kossoy filed a new pleading. Pl.'s Obj. to Court Ruling/Order to Dismiss Pl.'s Case Against Entity Presently Called State of Maine, Comprised of All Named, or yet Unnamed Defendants of The Case Incorporation; pursuant to F.R. Civ. P. Rule 46, and Rule 5.1(d) (No Forfeiture;) with Incorporated Mot. to Strike, pursuant to F.R. Civ. P. 12(f); and To Re-Open Access to ALL Procedural AND Substantive Rights of Due Process, pursuant to Amendments Five and XIV of the U.S. Constitution (Docket # 19) (Pl.'s Obj. and Mot. to Strike). On May 26, 2009, he filed another pleading. Pl.'s Mot. for Relief from J./Order, (And Court's Denial of Pl.'s Obj. to Same J./Order, of April 3, 2009;) as pursuant to F.R. Civ. P. Rules 60(a) thru (e) (Docket # 20) (Pl.'s Obj.). Finally, while these two new pleadings were pending, on June 19, 2009, Mr. Kossoy filed a notice of appeal of the Court's judgment of dismissal.[2]Notice of Appeal to a Court of Appeals from Judgment or Order of a District Judge (Docket # 21). II. DISCUSSION Mr. Kossoy's April 6, 2009 objection and motion to strike can be characterized as a frontal assault against the dismissal of his cause of action, citing numerous provisions of the federal rules, multiple provisions of the United States Constitution, former Congressman Peter W. Rodino, and former Attorney General Ramsey Clark. Pl.'s Obj. and Mot. to Strike. His motion for relief from judgment runs in a similar vein, reaching back into history to cite examples of tyrannical rule ranging from "Mad King Geo." to Robespierre. Pl.'s Obj. The language in Mr. Kossoy's pleading leaves no doubt that he most strongly feels that a dismissal of his lawsuit against the state of Maine would work a serious injustice. The Court acknowledges that a layman such as Mr. Kossoy might find it difficult to understand why a citizen cannot file a lawsuit in federal court against a state demanding injunctive relief and money damages. But, the Magistrate Judge cites the cases of the United States Supreme Court that are binding on the lower courts and bar such lawsuits under the Eleventh Amendment to the Constitution. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S. Ct. 2219, 144 L. Ed. 2d 605 (1999); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997); Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996); Will v. Mich. Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). This Court is mandated by the Constitution to apply Supreme Court precedent, 110 Mr. Kossoy's heartfelt and vigorously expressed contentions notwithstanding.[3] III. CONCLUSION The Court DENIES the Plaintiffs Objection to Court Ruling/Order to Dismiss Plaintiffs Case Against Entity Presently Called State of Maine, Comprised of All Named, or yet Unnamed Defendants of The Case Incorporation; pursuant to F.R. Civ. P. Rule 46, and Rule 5.1(d) (No Forfeiture;) with Incorporated Motion to Strike, pursuant to F.R. Civ. P. 12(f); and To Re-open Access to ALL Procedural AND Substantive Rights of Due Process, pursuant to Amendments Five and XIV of the U.S. Constitution (Docket # 19) and Plaintiffs Motion for Relief from Judgment/Order, (And Court's Denial of Plaintiffs Objection to Same Judgment/Order, of April 3, 2009;) as pursuant to F.R. Civ. P. Rule 60(a) thru (e) (Docket # 20). SO ORDERED. NOTES [1] Collectively, these statutory sections are commonly known as the Sex Offender Registration and Notification Act of 1999. 34-A M.R.S.A. § 11201. [2] The procedural consequences of Mr. Kossoy's post-judgment activities merit a brief word. Had Mr. Kossoy not filed his first post-judgment motion within ten days of judgment, his notice of appeal would have been untimely as it was filed almost three months after judgment. Fed. R. App. P. 4(a)(1)(A). However, his first post-judgment motion is properly viewed as a timely motion to alter or amend judgment under Rule 59, Aybar v. Crispin-Reyes, 118 F.3d 10, 14 n. 3 (1st Cir.1997), and by filing it, he postponed to today the running of the thirty days in which he may file a notice of appeal. Fed. R. App. P. 4(a)(4)(A)(iv). Moreover, "[i]f a party files, as here, a notice of appeal after the entry of judgment but before the entry of orders disposing of timely motions to alter or amend a judgment, the notice of appeal becomes effective after the order disposing of those motions." Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 67 (1st Cir.2005) (citing Fed. R. App. P. 4(a)(4)(B)(i)). [3] As the Magistrate Judge pointed out in her recommended decision, the Supreme Court has recognized that the Eleventh Amendment does not bar certain suits seeking injunctive relief against state officials in their individual capacities. See, e.g., Coeur d'Alene Tribe, 521 U.S. at 269, 117 S. Ct. 2028 (citing Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908)). She noted, however, that Mr. Kossoy was unable to take advantage of Young and its progeny because he had sued and served only the state of Maine. Rec. Dec. at 2-3. Mr. Kossoy's practice of listing on the cover of his filings several state officials as "Defendants" does nothing to change the fact that he did not sue these officials in their individual capacities.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2579225/	631 F. Supp. 2d 690 (2009) VERIZON MARYLAND INC. v. CORE COMMUNICATIONS, INC., et al. Civil No. JFM-08-503. United States District Court, D. Maryland. June 30, 2009. 691 Kirsten M. Eriksson, Miles and Stockbridge PC, David Anthony Hill, Verizon Maryland Inc., Baltimore, MD, for Verizon Maryland Inc. Louis J. Rouleau, Cathy A. Hinger, Womble Carlyle Sandridge and Rice PLLC, Joseph Paul Bowser, Arent Fox LLP, Washington, DC, Douglas R.M Nazarian, Maryland Public Service Commission, Baltimore, MD, for Maryland Public Service Commission, Steven B. Larsen, Harold D. Williams, Allen M. Freifeld and Susanne Brogan Lawrence Brenner. MEMORANDUM J. FREDERICK MOTZ, District Judge. Plaintiff Verizon Maryland Inc. ("Verizon"), formerly known as Bell Atlantic-Maryland, Inc., filed this complaint for declaratory and injunctive relief, alleging that defendant Maryland Public Service Commission ("PSC") issued orders in a proceeding brought by Core Communications, Inc. ("Core") that violated the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 ("1996 Act"). Now pending is Verizon's motion for summary judgment. 692 The issues have been fully briefed and no hearing is necessary. Local Rule 105.6. I. Prior to 1996, local telephone companies, also known as local exchange carriers ("LECs"), operated exclusive franchises within their local service areas. The 1996 Act sought to replace this monopoly with a competitive marketplace for local telephone services. To foster competition, the 1996 Act requires incumbent LECs ("ILECs") in local markets to make their existing facilities and networks available to potential competitors. See Verizon Maryland Inc. v. Pub. Ser v. Comm'n of Maryland, 535 U.S. 635, 638, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002). Specifically, as relevant here, the ILEC must "provide . . . interconnection with" its existing network to new local carriers, referred to as Competitive LECs ("CLECs"). 47 U.S.C. § 251(c)(2). Interconnection allows callers who subscribe to a competitor's service to receive calls from, and place calls to, individuals who subscribe to the incumbent's service. Under Section 251(c)(2) of the governing statute, interconnection must be "at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection," permitted by the incumbent "at any technically feasible point within the carrier's network," and provided "on rates, terms, and conditions that are just, reasonable, and nondiscriminatory." Id. § 251(c)(2)(B)-(D). To fulfill their duties under the Act, ILECs are required to enter into contractstermed interconnection agreements ("ICAs")with CLECs. The parties have a "duty to negotiate in good faith" the terms and conditions of the agreement. Id. § 251(c)(1). A proposed ICA must then be submitted to the state commission for its review and approval. Id. § 252(e)(1)-(2). Any party aggrieved by a "determination" of a state commission under Section 252 may bring an action in the appropriate federal district court "to determine whether the agreement or statement meets the requirements" of Sections 251 and 252. Id. § 252(e)(6). Defendant Core, a CLEC, sought entry into the Maryland local telecommunications market, where plaintiff Verizon was the ILEC. Rather than negotiating and submitting a new ICA, Core opted-in to an existing, Commission-approved ICA between Verizon and another CLEC, then known as American Communication Services of Maryland, Inc. ("ACSI"). The ICA between Core and Verizon consisted of a short-form adoption agreement in addition to the preexisting ICA. (Pl.'s Ex. B.) Under Definitions, the ICA states, "Interconnection is As Described in the Act, and means the connection of separate pieces of equipment or transmission facilities within, between, or among networks. The architecture of Interconnection may include, but is not limited to, Collocation Arrangements, entrance facilities, and Mid-Span Meet arrangements." (Id. § 1.33.) Section 4.0, entitled "Interconnection Pursuant to Section 251(c)(2)," contains various provisions about how the parties will interconnect, including the architecture of the facilities and equipment. (Id. § 4.0.) It states that interconnection "shall be established . . . in accordance with the standards set forth in subsection 10.2." (Id.) Subsection 10.2, in turn, provides, "Unless otherwise agreed to by the Parties, Interconnection shall be equal in quality to that provided by each of the Parties to itself or any subsidiary, affiliate, or third party." (Id. § 10.2) The ICA defines "equal in quality" as "the same or equivalent interface specifications, provisioning, installation, maintenance, testing and repair intervals for the same or equivalent 693 services under like circumstances." (Id.) Because Core was not yet ready to interconnect with Verizon when the ICA was adopted, the "Initial Network Implementation Schedule for Maryland" lists all dates, including "Interconnection Activation Date," as "TBD," or to be determined. (Id. at Schedule 3.0.) Similarly, the location of interconnection points ("IPs") on each carrier's network are "TBD." (Id. at Schedule 4.0.) On July 7, 1999, Core obtained certification from the PSC as a facilities-based local exchange carrier. (Pl.'s Ex. C, at 8.) On July 27, 1999, Core requested interconnection and an activation date of September 10, 1999forty-five days following the date of the letter. (Pl.'s Ex. D, at 1.) As required by the ICA, Core provided Verizon with forecasts of Core's trunking requirements and routing information. (Id.) The letter stated, "Please confirm in writing if the requested interconnection activation date is acceptable, or, if it is not acceptable, please propose an alternate date, together with an explanation why such alternate date is appropriate." (Id.) Verizon did not respond in writing. The parties met on August 11, 1999, to discuss interconnection. The parties agreed to adopt the "entrance facility" model of interconnection.[1] (Pl.'s Ex. C, at 10.) Entrance facilities are "dedicated transmission facilities that connect ILEC and CLEC locations." United States Telecom Ass'n v. FCC, 359 F.3d 554, 585 (D.C.Cir.2004). An entrance facility consists of two multiplexers[2] with a fiber transport between them. (See Pl.'s Ex. N, at 16.) Verizon describes four major steps for provisioning initial interconnection with Core using the entrance facility method: 1) constructing the physical interoffice facility between the Verizon and Core networks, 2) provisioning DS-3 transport circuits from Verizon's Tandem to Core's Wire Center, 3) provisioning DS-1 transport circuits riding on the DS-3s, and 4) establishing interconnection trunks between Verizon's switch and Core's switch over the DS-1 transport. (Id. at 2 n. 2.) Core requested interconnection at its Wire Center on the tenth floor of the Court Square Building. The Court Square Building, located about three blocks from Verizon's central office, is known as a "carrier hotel" because many carriers (including Verizon) have facilities there. (Pl.'s Ex. C, at 6, 7.) The Court Square Building was already "on-net" with Verizon, meaning that the building was physically connected to Verizon's central office through underground fiber feeder cables. (Id. at 7.) Certain facilities existed in the building prior to Core's interconnection request on July 27, 1999. A fiber riser was installed by Verizon to bring fiber from the basement of the Court Square Building to the tenth floor. (Id. at 8.) Verizon also installed 694 a fiber patch panel in the Wire Center to terminate the riser cable and provide for cross connects. (Id.) In May 1999, an OC-12 multiplexer ("OC-12 Mux") was installed in the Wire Center and connected to the fiber patch panel. (Id.) In June 1999, Verizon "turned up" an existing OC-12 capacity ring ("Existing OC-12 Loop Ring") in the Wire Center, meaning that physical construction was complete, the optical signals were transmitting, and the ring was service-ready. (Id. at 7-8.) At some point, however, the OC-12 Mux was disconnected from the Existing OC-12 Loop Ring.[3] (Id. at 12.) At the August 11 meeting, Core proposed interconnection using the Existing OC-12 Loop Ring and the OC-12 Mux for interconnection, as this would eliminate the need for Verizon to build new facilities. Verizon representatives agreed that using the Existing OC-12 Loop Ring would be technically feasible. (Id. at 11.) Core then requested an interconnection activation date of September 18, 1999. (Id. at 10; Pl.'s Ex. D, at 45.) Verizon, however, indicated that the provision of entrance facilities would require twelve to fourteen weeks, rather than the forty-five day period requested by Core.[4] (Pl.'s Ex. D, at 45.) The parties agree that the Existing OC-12 Loop Ring had sufficient capacity to support Core's initial request for interconnection. (Pl.'s Ex. C, at 11.) However, on August 31, 1999, Verizon informed Core that as a matter of policy, Verizon would not use the Existing OC-12 Loop Ring for interconnection purposes, whether or not it was technically feasible. (Id. at 12.) Verizon stated that instead of using the existing ring, it would need to construct a new OC-12 interoffice facility ring ("New OC-12 IOF Ring"), which would be completed by November 16, 1999. (Id. at 12-13; Pl.'s Ex. A, at 5.) Meanwhile, around August 15, 1999, Verizon had informed Core that the OC-12 Mux Core desired to use for interconnection was assigned to another customer and therefore could not be used. (Pl.'s Ex. C, at 11.) Verizon would not provide this customer's name to Core, but it was later revealed that Core itself (in an end-user retail capacity, according to Verizon) was the customer of record. (Pl.'s Ex. A, at 6.) Verizon later agreed to use this multiplexer, but stated to Core on September 7, 1999, that the OC-12 Mux would have to be "reinventoried" as a "carrier" facility in order to use it for interconnection purposes. (Pl.'s Ex. C, at 12.) At that time, Verizon informed Core that the standard interval for delivering an entrance facility was four to six months. (Pl.'s Ex. D, at 25.) On September 15, 1999, Verizon anticipated a completion date of November 16, 695 1999. (Id. at 52.) Core responded on September 24, 1999, that the November 16 date was not acceptable, and that Verizon had not yet articulated a reasonable justification for refusing to use the existing multiplexer for interconnection. (Id. at 56.) Verizon asserts it completed the New OC-12 IOF Ring by November 16, 1999, while Core maintains that Verizon did not complete it until November 30, 1999. (Pl.'s Ex. C, at 13.) Once the New OC-12 IOF Ring was "turned up," the subsequent steps in the interconnection process (DS-3, DS-1, and trunking design) were completed within twenty-four days, by December 23, 1999, just over four months after the initial meeting between Core and Verizon on August 11, 1999. (Id.) In October 1999, Core filed a complaint with the PSC based on Verizon's alleged wrongful delay of interconnection. (Id. at 2.) Core filed an amended complaint on January 18, 2001. (Id.) The matter was docketed as Case Number 8881 and delegated to the Hearing Examiner Division. (Id.) Core asserted five counts against Verizon. (Def. Core's Ex. 2.) In Count I, Core alleged that Verizon "breached section 4.4.4 of the Interconnection Agreement with Core by failing to provide interconnection within the requested 45-day interval, and by refusing to negotiate an alternative interval." (Id. ¶ 24.) In Count II, Core alleged that Verizon "breached section 27.1 of the Interconnection Agreement by refusing to provide Core with interconnection on terms and conditions that VZ-MD provides to itself and others." (Id. ¶ 32.) Count III alleged that Verizon "breached Section 27.1 of the Interconnection Agreement with Core by refusing to permit interconnection at a technically feasible point." (Id. ¶ 43.) In Count IV, Core alleged that Verizon "breached Section 27.1 of the Interconnection Agreement with Core by imposing unjust and unreasonable terms and conditions on the interconnection process." (Id. ¶ 52.) Finally, Count V alleged that Verizon "breached its duty of good faith and fair dealing under the Interconnection Agreement with Core by refusing to provide interconnection within a commercially reasonable time." (Id. ¶ 56.) On March 25, 2002, the Hearing Examiner dismissed Count I of Core's Amended Complaint, ruling that Verizon was not required under the Interconnection Agreement to provide interconnection to Core within forty-five days of Core's request. (Pl.'s Ex. L.) This decision was not appealed. On August 8, 2003, after extensive briefing and a two-day evidentiary hearing, the Hearing Examiner issued a Proposed Order finding in Core's favor on Counts II through V. (Pl.'s Ex. C, at 38.) The Hearing Examiner stated that Core's separate counts "all boil[ed] down to the assertion that Verizon wrongfully delayed its interconnection with Core." (Id. at 33.) Core argued "that Verizon's refusal to use its existing infrastructure to interconnect with Core, and Verizon's insistence on granting Core access only to newly constructed, dedicated facilities, resulted in over a three-month delay in interconnection." (Id. at 35.) The Hearing Examiner agreed with Core "that Verizon did not provide interconnection to Core in as timely a fashion as it reasonably would have provided interconnection to any of its own customers." (Id. at 38.) Pointing to the FCC's statement that an incumbent LEC is not just and reasonable when it provides interconnection "in a manner less efficient than an incumbent LEC provides itself," the Hearing Examiner found that the "central inquiry" in resolving Core's complaint was "whether Verizon did in fact interconnect with Core on terms less efficient than it would have offered to one of its own customers." (Id. at 35.) The Hearing Examiner 696 thus interpreted the word "itself" to mean "its customers." The Hearing Examiner found "by a preponderance of the evidence that Verizon's failure to reasonably respond to Core's clear signals that it desired speedier interconnection was unreasonable and contrary to Verizon's responsibilities under the Act." (Id. at 38.) The Hearing Examiner's discussion of the merits focused on Verizon's "passive[ ] adhere[nce] to its own interpretation of the parties' Interconnection Agreement." (Id. at 35.) Amendment was a permissible way for the parties to achieve faster interconnection than described in the ICA, according to the Hearing Examiner. (Id. at 36.) Addressing Verizon's argument that Verizon would have violated the ICA had it provided interconnection using the Existing OC-12 Loop Ring, given the lesser quality, the Hearing Examiner stated that "[q]uality specifications and Verizon's liability concerns could have been negotiated and addressed in a redrafted Agreement." (Id. at 37.) According to the Hearing Examiner, "Verizon must not impede competition by rigid adherence to an amendable agreement that a CLEC wishes to amend." (Id. at 39.) The Hearing Examiner found that "when a CLEC makes known to Verizon, as Core did here, that it desires accelerated interconnection, Verizon cannot reasonably decline to offer to negotiate appropriate changes to interconnection agreements or other documents, or to work with the CLEC to achieve interconnection in a manner acceptable to both." (Id.) On appeal to the PSC, Verizon asserted that the Hearing Examiner reached the legally impermissible conclusion that Verizon was liable because it rigidly adhered to the terms of the ICA. (Pl.'s Ex. M, at 1.) Verizon emphasized the Hearing Examiner's purportedly faulty conclusion that even though Verizon was contractually obligated to provide interconnection over the higher quality IOF facilities, Verizon was required under the Act to offer to negotiate an amendment to accommodate Core's request to interconnect over lesser quality loop facilities. (Id. at 1-2.) Verizon claimed that the Hearing Examiner erred by imposing upon Verizon a general duty to offer to negotiate changes to interconnection agreements when requested. (Id.) at 8.) On February 26, 2004, the PSC affirmed the Hearing Examiner's Proposed Order in conclusion that Verizon wrongfully delayed interconnecting with Core by refusing to interconnect over the Existing OC-12 Loop and multiplexer facilities. (Id.) at 5, 7.) The PSC concluded it was "clear that interconnection of Core over the existing facility was proposed by Core and could have been accomplished in an expeditious manner, apparently sometime around mid-September 1999 as requested by Core, but Verizon refused to do so until construction of new facilities which did not result in interconnection until apparently December 23, 1999." (Id. at 6.) In support of this conclusion, the PSC found that "capacity was available and connection technically feasible on an existing Verizon OC-12 loop ring and OC-12 multiplexer, which Core proposed to service the interconnection." (Id. at 5.) The PSC concluded that Core's proposal to utilize the Existing OC-12 Loop constituted Core's acceptance of that facility as compliant with the ICA. (Id. at 6-7.) The PSC found that Verizon did not inform Core of the concern that the Existing OC-12 Loop would be of "lesser quality" and in violation of the ICA until the hearing before the Hearing Examiner. (Id.) Nor did Verizon inform Core that the other customer assigned to the Existing OC-12 Loop was in fact Core. (Id. at 6.) The PSC found that this showed a lack of full disclosure and a 697 failure to deal in good faith on the part of Verizon, as well as improper delay that could have been avoided had Verizon agreed to use the existing facilities as proposed by Core. (Id. at 7.) Verizon filed a motion for reconsideration and rehearing. Verizon challenged the PSC's finding that Verizon did not inform Core until the hearing before the Hearing Examiner that the Existing OC-12 Loop Ring could not be used because of its lesser quality. Verizon also moved the PSC to reconsider its conclusion that Verizon denied Core's request to use the existing multiplexer on the grounds that it was assigned to someone else. (Pl.'s Ex. N, at 7-14.) In addition to challenging those findings, Verizon reasserted that it acted in good faith to achieve interconnection, that there was no independent cause of action for breach of an implied duty of good faith and fair dealing, and that the PSC erred in concluding that Verizon constructed a separate "loop ring" to interconnect with Core. (Id.) On July 9, 2004, the PSC issued Order Number 79259, denying Verizon's petition and reaffirming the Proposed Order. (Pl.'s Ex. K.) In response to Verizon's claims that Order Number 78989 contained "additional, unwarranted and erroneous factual findings beyond those it asserts were already made in the [Proposed Order]," the PSC found that "[w]hile in Order No. 78989 the Commission elaborated to a greater extent than the Hearing Examiner did with regard to the transactions between Verizon and Core, the discussion by the Commission is fully supported by the record." (Id. at 2.) The only argument the PSC addressed on the merits was whether Maryland law provided an independent cause of action for breach of an implied duty of good faith and fair dealing. (Id.) The PSC did not explicitly rule on this issue, but stated that Verizon's duty could be construed as an implied duty of fair dealing as well as a duty under the ICA; in any event, Verizon fulfilled neither duty. (Id. at 3.) The PSC "affirm[ed] the Hearing Examiner's findings that Verizon breached the Interconnection Agreement and also failed to negotiate in good faith." (Id.) Verizon seeks review of the PSC's Orders. II. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On review of state commission decisions, "general standards for judicial review of agency action apply." GTE S., Inc. v. Morrison, 199 F.3d 733, 745 (4th Cir.1999). Factfindings made by the state commission are reviewed under the substantial evidence standard. In applying this standard, the court does not "sit as a super public utilities commission," and is "`not free to substitute its judgment for the agency's.'" Id. at 745-46 (quoting AT & T Wireless PCS, Inc. v. City Council of City of Virginia Beach, 155 F.3d 423, 430 (4th Cir.1998)). Instead, the court "must uphold a decision that has `substantial support in the record as a whole' even if it might have decided differently as an original matter." AT & T Wireless, 155 F.3d at 430 (quoting NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997)). The state commission's interpretations of federal law, including the 1996 Act, are reviewed de novo. GTE S., 199 F.3d at 745. However, even under the de novo standard of review, "an order of a state commission may deserve a measure of respect in view of the commission's experience, 698 expertise, and the role that Congress has given it in the Telecommunications Act." BellSouth Telecomms., Inc. v. Sanford, 494 F.3d 439, 447 (4th Cir.2007). The amount of respect given "will vary in accordance with `the degree of the agency's care, its consistency, formality, and relative expertness,' as well as `the persuasiveness of the agency's position.'" Id. at 448 (quoting United States v. Mead, 533 U.S. 218, 228, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001)). Therefore, the court must review the decisions of the state commission "with a respect for the Commission's special role in the regulatory scheme, its freedom to maneuver in that role, its expertise and experience, and the care it has taken in the particular task of forming its orders." Id. at 449. III. In this appeal, Verizon asserts that the PSC based its conclusion that Verizon breached the ICA and wrongfully delayed interconnection with Core on erroneous interpretations of federal law. Verizon specifically challenges the PSC's finding that federal law and the ICA required it to connect with Core using loop facilities. Verizon alleges that the PSC reached this conclusion by erroneously creating a duty for Verizon to negotiate an amendment to the ICA, or, alternatively, by erroneously finding that Core had consented to a valid modification to the ICA. A. "Equal in Quality" Standard Verizon claims that the PSC misconstrued federal law when it assessed the "equal in quality" standard using services provided to retail customers as a comparison. Verizon argues, as it did before the Hearing Examiner and the PSC, that federal law and the ICA require interconnection equal in quality not to that provided to retail customers, but to interconnection provided to itself and other carriers. I agree. The 1996 Act requires ILECs to provide interconnection to requesting CLECs "that is at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection" and is provided "on rates, terms, and conditions that are just, reasonable, and nondiscriminatory." 47 U.S.C. § 251(c)(2)(D). The rule promulgated by the FCC implementing this standard states that interconnection is required "at a level of quality that is equal to that which the incumbent LEC provides itself, a subsidiary, an affiliate, or any other party. At a minimum, this requires an incumbent LEC to design interconnection facilities to meet the same technical criteria and service standards that are used within the incumbent LEC's network." 47 C.F.R. § 51.305(a)(3). Before the Hearing Examiner, Core argued that the "equal in quality" interconnection standard required Verizon to provide interconnection on the same time twenty business-day time interval Verizon provided for retail customers requesting DS-3 special access circuits, which Core asserted were technically identical to the DS-3 interconnection circuit requested by Core. (Pl.'s Ex. C, at 14.) The Staff of the PSC agreed, arguing in the proceedings below that the "equal in quality" standard required a comparison to Verizon's retail customers, and consequently Verizon should have provided interconnection over the Existing OC-12 Loop Ring. (Id. at 20-21.) Verizon claims that a connection over a loop facility, such as the Existing OC-12 Loop Ring Core requested to use, is lesser in quality than interconnection over IOF.[5]699 Interoffice facilities (IOF) consist of two fiber multiplexers with a fiber transport between them, creating a dedicated path between the two networks. Loop facilities, in contrast, can connect multiple end user customer locations with numerous multiplexers within a wire center to the ILEC central office.[6] Verizon Maryland used only interoffice facility configurations for its own interoffice trunks and for trunk interconnection with other carriers. (Pl.'s Ex. N, at 17.) Verizon asserts that had it followed Core's request to provide interconnection over the lesser quality Existing OC-12 Loop Ring, it would have been in violation of Section 251 and the ICA.[7] The PSC erred by evaluating "equal in quality" using Verizon's provision of services to large retail customers as a comparator. Using an ILEC's provision of services to retail customers to determine whether an ILEC has provided interconnection that is "equal in quality" does not comport with the clear language of the statute. The FCC's regulation reaches the same conclusion, providing that "[a]t a minimum" the ILEC must provide interconnection with the same level of quality that is used within its own network. 47 C.F.R. § 51.305(a)(3). Indeed, were the statute to permit ILECs to connect with potential competitors using the inferior facilities provided to retail customers, ILECs could stifle competition by refusing to provide the same quality to potential competitors that it provides to itself. Core next argues that the ICA is broader than the statute and allows a comparison of retail customers to evaluate the equal in quality standard. Section 10.2 of the ICA provides that interconnection must be "equal in quality to that provided by each of the Parties to itself or any subsidiary, affiliate, or third party." Core claims that "third party" can mean "large retail customers." (Core Mem. 20-21.) However, other provisions in the ICA make clear the contract's meaning. The very next sentence of Section 10.2 provides that "`equal in quality' means the same or equivalent interface specifications, provisioning, installation, maintenance, testing and repair intervals for the same or equivalent services under like circumstances." (Pl.'s Ex. B § 10.2 [emphasis added].) Services provided to retail customers are not "the same" as or "equivalent" to interconnection. Indeed, Verizon does not "interconnect" with retail customers. Moreover, the ICA between Verizon and Core 700 expressly incorporates the statute and regulations, providing: "[Verizon] shall provide the Interconnection ... in accordance with the performance standards set forth in Section 251(c) of the Act and the FCC Regulations, in particular the rules set forth in 47 Code of Federal Regulations §§ 51.305(a)(3) to (a)(5)...." (Id. § 27.1.) Additionally, the ICA provision governing joint implementation and grooming process states that the parties shall define "standards to ensure that Interconnection trunk groups experience a grade of service, availability and quality which is comparable to that achieved on interoffice trunks within [Verizon]'s network and in accord with all appropriate relevant industry-accepted quality, reliability and availability standards." (Id. § 10.1(a) [emphasis added].) It is evident that the use of the word "third party" in Section 10.2 of the ICA refers to third parties provided "the same, or equivalent services" by Verizonnamely, other carriers to which Verizon interconnects. Therefore, I find that the PSC misconstrued federal law and the ICA in evaluating the "equal in quality" interconnection standard against Verizon's end-user retail customers.[8] Given that the PSC's finding of a violation of the ICA was largely based on Verizon's refusal to connect with Core over the existing loop facility, the PSC's Orders are vacated. B. Duty to Amend or Negotiate Amendments Verizon alleges that the PSC ruled, contrary to federal law, that Verizon had a duty to and should have amended its interconnection agreement with Core to allow interconnection using lesser-quality loop facilities. Verizon also asserts that the PSC misconstrued federal law by finding that the duty to negotiate interconnection agreements in good faith, a requirement under Section 251(c) of the 1996 Act, also encompasses a duty to negotiate amendments to interconnection agreements. It is difficult to discern whether the PSC in fact adopted the portion of the Hearing Examiner's Proposed Order finding that Verizon should have offered to amend the ICA. The PSC Order states, "While the Proposed Order contains references to possible amendment of the ICA to achieve the interconnection, the facts as presented (and not in dispute) show Core's proposal to utilize the existing loop interconnection to meet its time objective would essentially constitute Core's acceptance of the shared facility as being in compliance under the ICA." (Pl.'s Ex. A, at 6-7.) Somewhat contradictory is the PSC's Order on Reconsideration, which affirmed "the Hearing Examiner's findings that Verizon ... failed to negotiate in good faith." (Pl.'s Ex. K, at 3.) In so affirming, the PSC cited to the portions of the Hearing Examiner's Order that concerned amending the agreement. (See id. at 3 n. 7 [citing Pl.'s Ex. C at 35-38].) It is unclear the basis for which the PSC found a duty to negotiate in good faith amendments at the unilateral request of Core, if the PSC indeed intended to adopt that portion of the Hearing Examiner's opinion. 701 The PSC's finding that Verizon breached the ICA necessarily includes a finding that Verizon was required under the ICA to connect with Core in the way Core requested. If that were true, no amendment would be necessary. Indeed, Core asserts that it "never claimed that Verizon was required to amend the ICA." (Core Mem. 28.) Moreover, Section 251(c) "does not mandate that incumbent LECs cater to every desire of every requesting carrier." Iowa Utils. Bd. v. FCC, 120 F.3d 753, 813 (8th Cir.1997), aff'd in part and rev'd in part on other grounds by 525 U.S. 366, 119 S. Ct. 721, 142 L. Ed. 2d 835 (1999). Verizon was under no obligation to amend the ICA to allow interconnection through lesser-quality facilities. C. Duty of Good Faith and Fair Dealing The PSC found that Verizon breached its duty to provide interconnection in a commercially reasonable mannerin other words, its duty of good faith and fair dealing. (Pl.'s Ex. C, at 29.) Core based this claim in the proceedings before the PSC on Verizon's withholding of the "true nature of Verizon's objections to Core's requested interconnection," which made it impossible for Core to address Verizon's concerns. (Id. at 30.) Core maintained that Verizon "made every attempt to prevent Core from achieving interconnection within a reasonable time frame," by failing to inform Verizon of the reasons for its refusal to interconnect using the Existing OC-12 Loop Ring and OC-12 Mux. (Id.) Core points specifically to Verizon's statement that the multiplexer had been assigned to a "customer of record" other than Core, when in fact the customer of record was Core itself. (Id.) Core also points to Verizon's later statement that the equipment needed to be reinventoried from customer to carrier facility. (Id. at 30-31.) Verizon correctly challenges the PSC's conclusion in its original order that there is an independent cause of action under Maryland law for breach of an implied duty of good faith and fair dealing. As the PSC appeared to recognize upon reconsideration, while a negotiated contract contains an implied duty of good faith and fair dealing, "Maryland law does not recognize an independent cause of action for breach of the implied covenant of good faith and fair dealing. A breach of that implied covenant simply supports `another cause of action at law, e.g., breach of contract[.]'" Cutler v. Wal-Mart Stores, Inc., 175 Md.App. 177, 927 A.2d 1, 11 (Md.Ct.Spec.App.2007) (quoting Mount Vernon Props., LLC v. Branch Banking & Trust Co., 170 Md.App. 457, 907 A.2d 373, 381 (Md.Ct.Spec.App.2006)) (alteration in original). In its reconsideration order, the PSC based its finding of liability instead on a contractual duty found in the ICA. As discussed above, the duties under the contract may need to be reevaluated given my determination that the "equal in quality" standard is assessed using other carriers and Verizon itself as a comparator, not Verizon's retail customers. For the foregoing reasons, summary judgment is granted for plaintiff and PSC Orders 78989 and 79259 are vacated.[9] A separate order implementing this ruling follows. 702 ORDER For the reasons stated in the accompanying Memorandum, it is, this 30th day of June 2009, ORDERED: 1. Plaintiff Verizon Maryland Inc.'s motion for summary judgment is granted; 2. Maryland Public Service Commission Order Nos. 78989 and 79259, In re Complaint of Core Communications, Inc. v. Verizon Maryland Inc., Case No. 8881, are vacated; and 3. Judgment is entered in favor of plaintiff against defendants. NOTES [1] The contract provides that Core has the sole right and discretion to specify any of three methods for interconnection at any of the Verizon IPs: (1) a physical or virtual collation facility established by Core at Verizon's IP; (2) a physical or virtual collation facility established separately at Verizon's IP by a third party with whom Core has contracted with for that purpose; or (3) an entrance facility and transport leased from Verizon (and any necessary multiplexing), extending to Verizon's IP from a mutually agreed upon point on Core's network. (Pl.'s Ex. B § 4.2.2.) In turn, Verizon has the sole right and discretion to specify any of three methods for interconnection at any of Core's IPs. (Id. § 4.2.5.) [2] According to the Hearing Examiner's Proposed Order, a "multiplexer is a device that combines digital channels of one size, such as a DS-1, into a digital channel of a larger size, such as a DS-3. Multiplexing also occurs on optical facilities. For example, a mux ["multiplexer"] is necessary to transition from an OC-1 to an OC-12 facility." (Pl.'s Ex. C, at 8.) [3] It is disputed whether the ring was disconnected at the time of Core's interconnection request. According to the Proposed Order, "Verizon's witness Albert testified that he believed that the OC-12 Mux was disconnected from the OC-12 loop ring sometime between June 7 and August 11, 1999. Core witness Mingo maintains that the exact date of the disconnection is a red herring, and in any event, the disconnection occurred substantially after the August 11 Meeting." (Pl.'s Ex. C, at 12-13.) [4] Throughout these discussions, Core was under the mistaken impression that Verizon was required under the ICA to interconnect with Core within forty-five days. The Hearing Examiner found that the contract provision relied upon by Core in support of this alleged forty-five day obligation did not in fact apply to initial interconnection, and even if it did, the contract language clearly stated that "the interconnection data in a new LATA [Local Access and Transport Area] shall not be earlier than forty-five days after receipt by [Verizon] of all complete and accurate trunk orders and routing information." (Pl.'s Ex. L, at 17 [emphasis added].) [5] As a factual matter, Core asserts that Verizon has not established that it provides a lesser quality of service to its retail customers. (Core Commc'ns, Inc.'s Opp'n to Pl.'s Mot. for Summ. J. ["Core Mem."] 24.) No factual finding was made before the Commission on this issue. I note that a letter written by the PSC in another proceeding accepts Verizon's assertion that loop facilities are of lesser quality than IOF facilities. (Pl.'s Ex. J, at 6.) [6] The PSC recounts in its Order that "Verizon indicated it would construct a new loop ring as a dedicated facility for Core." (Pl.'s Ex. A, at 5.) The language used by the PSC is troubling, as it reflects a fundamental misunderstanding of the key issue disputed by the parties: Verizon claims it was required to construct a new interoffice entrance facility, which contributed to the delay, because the existing loop ring was of lesser quality than the interoffice facilities Verizon itself uses. Verizon did not claim, as the language in the Order would indicate, that it was constructing a new lesser-quality loop facility [7] Core alleges that Verizon did not mention the quality concern regarding the loop facility until it initiated the litigation against Verizon; therefore, Core did not know that it should request a modification of the Agreement. (Core Mem. 23-25.) In response, Verizon points to a September 7, 1999 e-mail to Core stating that Verizon must build an entrance facility with two multiplexers. (Pl.'s Ex. D, at 25 ["As I've explained to Mr. Mingo on more than one occasion, a single entrance facility consists of two muxes and a facility between them. Thus, even if we can use the muxes at Core's POPs, for each entrance facility we will still need to build a second mux at the [Verizon] central office."].) [8] The PSC seemed to indicate that even if the ICA required interconnection over an interoffice facility, a modification of the contract was achieved because "Core's proposal to utilize the existing loop interconnection to meet its time objective would essentially constitute Core's acceptance of the shared facility as being in compliance under the ICA." (Pl.'s Ex. A, at 6-7.) However, concerning modifications of the ICA, the contract provides: "No modification, amendment, supplement to, or waiver of the Agreement or any of its provisions shall be effective and binding upon the Parties unless it is made in writing and duly signed by the Parties." (Pl.'s Ex. B § 29.19.) According to its terms, the contract could not have been modified by Core's unilateral request. [9] This court has no authority to remand this action for further proceedings. If Core or the PSC believe further proceedings are necessary given the interpretations of federal law stated in this opinion, they should proceed accordingly. For example, further factual findings related to the "equal in quality" standard may be needed. (But see Pl.'s Ex. J, at 6.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2583833/	56 N.Y.2d 158 (1982) In the Matter of Bradford Central School District, Appellant, v. Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents. Court of Appeals of the State of New York. Argued March 26, 1982. Decided May 11, 1982. Robert H. Plaskov for appellant. Paul E. Sherman, Jr., Robert D. Stone and Jean M. Coon for Gordon M. Ambach, respondent. Robert D. Clearfield for Gerrie A. Yanch, respondent. Henry F. Sobota for New York State School Boards Association, Inc., amicus curiae. Chief Judge COOKE and Judges JONES, WACHTLER and FUCHSBERG concur; Judges GABRIELLI and MEYER taking no part. 161JASEN, J. The question raised by this appeal is whether the Commissioner of Education acted in excess of his statutory authority when he granted a permanent teaching certificate to an employee of petitioner, Bradford Central School District. Before reaching that substantive issue, a threshold procedural question must be addressed. That question is whether the school district, as employer, has standing to challenge the commissioner's determination. 162The facts of this case are not in dispute. Since the fall of 1972, respondent Gerrie A. Yanch has been employed as a music teacher by the Bradford Central School District. She was granted tenure at the end of her three-year probationary period. Although her supervisors had expressed dissatisfaction with her work in recent years, no formal charges were pending against her at the time this dispute over the status of her certification arose. In July of 1979, school officials realized their records did not indicate that Yanch had ever received permanent certification from the Commissioner of Education. Therefore, they requested verification of her status from the commissioner. At the same time, Yanch applied for permanent certification from the commissioner. The commissioner notified Yanch that she did not qualify for permanent certification because her training did not include student teaching experience, but that one year of paid full-time teaching experience could be substituted for that requirement on the recommendation of the administrator of the employing school district. The superintendent of the Bradford Central Schools refused to give Yanch the required recommendation despite her seven years of teaching experience in that district. She then requested that the commissioner waive the recommendation requirement. The commissioner determined that the superintendent of the school district was unreasonably withholding his recommendation; that "fair and equitable treatment" required that the student teaching requirement be waived for a teacher employed seven years by the same school district; and that Yanch was entitled to permanent certification. The school district commenced this article 78 proceeding seeking to annul the commissioner's determination on the ground that it was arbitrary and capricious because the commissioner lacks the authority to waive any requirement imposed by regulation. The applicable regulation allows "[o]ne year of paid, full-time teaching experience" to be accepted as a substitute for the student teaching experience "when such experience carries the recommendation of the employing school district administrator." (8 NYCRR 163 80.17 [c].) Petitioner argues that without specific authorization from the Board of Regents allowing the commissioner to waive such requirements, he is bound to strictly adhere to the dictates of the regulations. Trial court agreed with petitioner's arguments and annulled the determination of the Commissioner of Education on the ground that he was bound by the requirements of the regulation. Prior to reaching the substantive issue, the trial court found that the board of education was more than a "concerned bystander" and did have standing to challenge the commissioner's determination. Citing the school board's statutory obligation to employ only qualified teachers (Education Law, § 1709, subd 16; § 3010), the court described the commissioner's determination as one which "directly and immediately affects matters which are the legitimate concern of the Board of Education." The Appellate Division reversed and dismissed the petition on the ground that the school board did not have standing because it was not aggrieved by the commissioner's determination. Furthermore, the court noted that questions of certification relate to a person's "right to be licensed generally * * and does not directly concern the district in its employer-employee relationship". We now hold the board of education, as employer of the teacher granted permanent certification, has standing to challenge the commissioner's determination, and we further hold that the determination of the commissioner should be upheld. Since we reach the same result as the Appellate Division, but for different reasons, the order of the Appellate Division dismissing the petition brought by the Bradford Central School District should be affirmed. A school board is responsible for insuring that only qualified persons, as defined by sections 3001 and 3006 of the Education Law and the regulations promulgated thereunder, are employed to teach. A teacher who is not certified by the State is unqualified as a matter of law and cannot be employed or paid by a public school board of education. (Education Law, §§ 3001, 3010.) Thus, to have retained respondent Yanch as a teacher if in fact she was not certified would have meant that the school board was 164 violating its statutory duty to hire only qualified teachers. The individual members of the school board would have been subject to both civil and criminal sanctions for breaching that duty. (Education Law, § 3010.) A board of education, therefore, as a teacher's employer, has a legitimate interest in determining whether or not a teacher is properly certified. That interest in hiring qualified teachers means that the board of education comes within the "zone of interest" necessary to establish standing. (Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6, 9.) But in determining standing, it is also necessary to "carefully examin[e] the relevant statutes and precedents, [to ascertain] the presence or absence of a legislative intention to preclude review." (Matter of Dairylea Coop. v Walkley, supra, at p 11.) In this case, there is no indication that the Legislature intended to preclude in any way school boards from seeking judicial review of decisions rendered by the Commissioner of Education. Indeed, the responsibility imposed on school boards and their individual members to hire only qualified teachers indicates otherwise. The final requirement to establish standing is that the petitioner show "that the administrative action will * * have a harmful effect on the petitioner." (Matter of Dairylea Coop. v Walkley, supra, at p 9.) In this case, the injury arises by virtue of the commissioner's interpretation of this regulation. The wording of the regulation indicates that school boards, through their administrators, are to have an input in determining whether the student teaching requirement should be waived. When the commissioner interprets his regulations, as he did in this case, in a manner which arguably interferes with the discretion granted by those regulations to local school boards, there is sufficient injury to justify conferring standing. Furthermore, it is proper to grant standing in this case under the reasoning of Boryszewski v Brydges (37 N.Y.2d 361). As in that case, a "failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny." (Boryszewski v Brydges, supra, at p 364.) In a case such as this, if the board of education does not bring an action to review the Commissioner of Education's 165 determination awarding a teacher permanent certification, no judicial scrutiny of that determination will be available. Clearly, the other concerned parties the teacher and the Commissioner of Education will not seek a review of the commissioner's determination. Having thus determined that the board of education does have standing, we cannot agree with the board's contention that the commissioner abused his discretion by waiving the requirement of a recommendation and granting this teacher permanent certification. Although the applicable regulation indicates that a recommendation from the employing school district administrator must be obtained before one year's teaching experience will be substituted for student teaching, it was within the discretion of the Commissioner of Education to waive that requirement. It was uncontroverted that this teacher had taught this subject for seven years and had been granted tenure by the Bradford Central School District. It was thus reasonable for the commissioner to determine that the school district officials were unreasonably withholding their recommendation and that "fair and equitable treatment" required him to grant respondent Yanch permanent certification. The Commissioner of Education is authorized by section 3004 of the Education Law to prescribe regulations, with the approval of the Board of Regents, governing certification of teachers and to award certification to those meeting the requirements. He is also charged with the duty of enforcing all laws related to education in the State and executing educational policy. (Education Law, § 305.) In carrying out those duties, it is within the commissioner's authority to reasonably interpret the regulations promulgated by him with the approval of the Board of Regents. The commissioner's discretion in interpreting these regulations is required to be rational and must, of course, comport with the intent of those regulations. It cannot be said, as a matter of law, that, on the facts of this case, the commissioner's determination that respondent Yanch had met the requirements for permanent certification was either irrational or in violation of the intent of the regulation. It was clear this tenured teacher who had taught for 166 seven years in the same district had completed at least one year's paid full-time teaching experience. The commissioner properly determined that the regulation's requirement of a recommendation was satisfied by proof that the school district had granted her tenure. Accordingly, the order of the Appellate Division should be affirmed, with costs. Order affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1696998/	859 So.2d 167 (2003) NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company, Norfolk and Western Railway Company, the Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and the Cincinnati, New Orleans and Texas Pacific Railway Company v. CALIFORNIA UNION INSURANCE COMPANY and Certain Underwriting Members of Lloyd's, et al. Nos. 2002 CA 0369, 2002 CA 0371, 2002 CA 0372. Court of Appeal of Louisiana, First Circuit. September 12, 2003. Writ Denied December 19, 2003. 171 Cory R. Cahn, Benjamin R. Slater, Jr., Benjamin R. Slater, III, New Orleans, Carmack M. Blackmon, Baton Rouge, Counsel for Plaintiffs-Appellees Norfolk Southern Corporation, et al. 172 H. Alston Johnson III, Michael D. Hunt, Freddie Pitcher, Jr., Jane H. Barney, Baton Rouge, Richard N. Dicharry, New Orleans, Counsel for Defendants-Appellants Certain Underwriting Members of Lloyd's. Before: FOIL, KUHN, and CLAIBORNE,[1] JJ. CLAIBORNE, J. The Norfolk Southern Corporation and certain of its affiliated railroad companies (collectively Norfolk)[2] filed this lawsuit for declaratory judgment and damages against various underwriting members of Lloyd's of London and certain London Market Insurance Companies (collectively the London Insurers).[3] In its original and amended petitions, Norfolk sought a declaration that it had coverage under several excess comprehensive general liability policies subscribed to by the London Insurers from 1969 to 1986 for the costs of cleaning up various polluted sites around the United States, including three sites located in St. Tammany parish, Louisiana: (1) the Pearl River site; (2) the Bayou Bonfouca site; and (3) the Southern Shipbuilding site.[4] Three judgments dealing with (1) coverage, (2) allocation method among various policies, and (3) designation of policy in accord with judgment (2), are challenged in separate appeals numbered 2002 CA 0369, 2002 CA 0371, and 2002 CA 0372, respectively.[5] I. BACKGROUND A. Pearl River Site The Pearl River site consists of several acres of land in St. Tammany parish that had been owned by Norfolk since 1882.[6] In 1963, Norfolk leased the site, consisting of approximately 16.5 acres, to the Pearl River Wood Preserving Company (PRWPC) for use in its wood-treating operations. 173 In connection with this lease, the parties also entered into an agreement providing for the construction and operation of railroad tracks into the site to allow Norfolk to provide rail service to PRWPC. In its wood-preserving operations, PRWPC initially used pentachlorophenol (penta) as a preservative but later switched to creosote. When the wood-treating facility was constructed in 1963, PRWPC dug two unlined, earthen pits near the facility in order to contain wastewater from its operations. Creosote, penta, and water were deposited into the pits and on the ground during the normal course of operations. The creosote, which was heavier than water, ultimately sank to the bottom of the pits, where some of it was occasionally recovered and used again in the wood-treating operations. At times, these pits would overflow, and the wastewater, including creosote and penta components, would flow across the site toward a low-lying wooded area at the edge of the property. From there, the wastewater would continue beyond the property boundaries, underneath Interstate 59 to a nearby bayou, and then on to the Pearl River. Aerial photos of the site taken in the 1960s demonstrate extensive environmental damage in this low-lying area, such as stains and large unvegetated areas covered with dead trees, which resulted from contact with creosote and other wood preservatives. In 1971, the predecessor entity of the Louisiana Department of Environmental Quality (LDEQ) directed the PRWPC to construct a levee in the low-lying area of the property in order to prevent this wastewater from running off site. Once the levee was constructed, the wastewater began to collect against the levee forming what was later referred to as the large surface impoundment. The wastewaters that collected here were periodically pumped to another lagoon at the northern end of the site, where they were disposed of through evaporation. PRWPC closed the Pearl River facility and moved its creosoting operations into Mississippi in late 1973 or 1974. The unlined pits were subsequently filled in with soil, and in 1977, Norfolk leased part of the property to E.M. McIntire, who operated the Pear River Chemical Company on the site. Norfolk also leased part of the property to Pearl River Transport Company for use as a cement factory. In 1980, Norfolk sold the property to Pearl River Transport, which assumed McIntire's lease. Pearl River Transport subsequently sold one-half of the property to Pearl River Chemical Company (now Chemlink). Throughout all periods, Norfolk retained a right of way along the railroad tracks in order to continue to provide rail service to the businesses at the site. Norfolk built new tracks into the site in 1982, and continued to provide rail service there at the time of trial. In 1983, Norfolk notified the EPA of suspected hazardous materials releases on the site. In 1985, the LDEQ collected and analyzed samples of material from the Pearl River site and ultimately determined that these samples contained hazardous waste substances that could present an imminent and substantial endangerment to health or the environment. On September 22, 1987, the LDEQ issued an order naming PRWPC, Norfolk, Atlantic Richfield Company (ARCO), and others as potentially responsible parties (PRPs) in connection with the results of this analysis and required that they submit a remedial work plan for the site.[7] 174 Testing revealed that the groundwater at the site had been contaminated with wood preservative components, and that this contamination had migrated beyond the property boundaries. The LDEQ believed that the large surface impoundment was a significant source of this groundwater contamination, as well as a threat to trespassers and children who might enter the site, and ordered Norfolk and the other PRPs to remediate that area. In 1994, Norfolk began excavating the contaminated soils from the impoundment and shipped them to a hazardous waste landfill. This cleanup operation took approximately eight months to complete. The excavated area was then filled in with clean soil.[8] The LDEQ also ordered an investigation of the two earthen pits on the site. The investigation revealed a highly contaminated area around the old process unit near the pits, as well as groundwater contamination that was moving off the site. Therefore, in 1995, the LDEQ ordered the removal of that source of contamination. The remediation of this area of the site began in June 1998, and was completed approximately one month later. The site has been remediated at a total cost to Norfolk of $5,335,688.49.[9] B. Bayou Bonfouca Site The Bayou Bonfouca site is comprised of approximately 55 acres of land and 4,000 feet of navigable water located in Slidell. The site was operated as a wood-preserving facility from 1882 to 1972. Creosote was used throughout this period in the normal operations of the facility, which included treating wooden railroad ties, pilings, and telephone poles. In 1976, the United States Coast Guard discovered creosote in the sediments of the Bayou Bonfouca waterway. Subsequent investigation of the site by the United States Environmental Protection Agency (EPA) and other entities confirmed the existence of high levels of creosote contamination on the surface of the site, as well as in the bayou sediments and groundwater on the site. Based on these findings, the site was placed on the National Priorities List in 1983, thus identifying it as one of the facilities at which releases or threatened releases of hazardous substances are found to present threats to public health, welfare, or the environment. After additional investigation of the site, the EPA began remediation procedures, including the construction of a groundwater treatment facility on the site in 1990. In 1996, the EPA filed a cost recovery action regarding the site pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) against The Alabama Great Southern Railroad Company (AGS) and others. AGS was named as a defendant in the proceedings as the successor to the New Orleans & Northeastern Railroad (NO & NE). According to the EPA, NO & NE, which was merged into AGS on January 31, 1969, had built and operated the creosote facility on the site in the 1880s. The EPA set forth three theories of liability against AGS: (1) the railroad had owned the site from 1882 to 1902; (2) the railroad had operated the site from 175 1882 to 1884; and (3) the railroad had control of the site as an owner/operator until 1972 by virtue of various track agreements with the creosote companies that conducted operations at the site.[10] According to the EPA's suit, the site became contaminated during its years of operations due to numerous substantial releases of creosote caused by operations and disposal practices that remained essentially unchanged throughout the period of the operation of the facility. In addition, the EPA alleged that an unknown amount of creosote was released onto the ground and into the bayou when a holding tank on the site ruptured during a fire at the site.[11] The site was fully cleaned up under the direction of the EPA. As part of the removal action, the EPA decided to dredge the sediments in the bayou and bring them on site. The EPA also excavated the highly contaminated soils on the site and began to pump and treat the groundwater. An incinerator was brought onto the site, and all of the contaminated soils and sediments were incinerated. A landfill was constructed on the site, and the treated soil was placed there. By 1996, most of the work on the site was completed, but remediation of the groundwater contamination had not yet been completed. At the time of the jury trial in this action between Norfolk and the London Insurers, the underlying CERCLA suit regarding the site had not been resolved; however, the government had spent approximately $140,000,000 to remediate the site.[12] Norfolk has since settled the underlying suit with the government for $13,000,000.[13] C. Southern Shipbuilding Site This site has been operated by various companies as a shipbuilding, repair, painting, and cleaning operation since approximately 1917. The property damage at the site consisted mostly of soil contamination, and there was no evidence of groundwater contamination. The various companies that operated at the site cleaned barges and the holds of ships with solvents and other degreasing materials. The first general area of concern involved the washout generated from these cleaning operations. Beginning in the late 1930s or 1940s, the washout was pumped into two pits, where it contaminated the soil. The other general area of contamination involved the painting operations conducted on site, which resulted in heavy metals and paint materials contamination of soil. The EPA sent Norfolk notification in 1994 that it might be a PRP and requested 176 information from Norfolk about its connection to the site. The notification did not direct Norfolk to take any action with regard to the site other than provide the requested information. In the notice, the EPA specifically alleged that Norfolk held at least one contract for the servicing of a vessel with one of the companies operating on the site. According to the EPA, the servicing of the vessel or vessels may have resulted in the disposal of hazardous substances at the site. Although Norfolk did provide rail service to the site beginning in approximately 1938, no allegations of liability were made against Norfolk concerning the existence of these tracks. Norfolk responded to this notice by advising the EPA that it had confused Norfolk with another company, and that whatever services had been provided to Norfolk at the site had not resulted in the production or disposal of hazardous waste. At the time of the jury trial in this matter, Norfolk had not received any additional communication from the EPA and had not been ordered to take any action in connection with the site. Furthermore, neither the EPA nor any other entity has filed suit against Norfolk or ordered Norfolk to take any action regarding the site. The EPA began its investigation into the contamination at this site in 1987. The EPA decided to remediate the site by excavating the contaminated materials and moving them off site. The contaminated materials were then sent to the incinerator at the Bayou Bonfouca site, and the excavated areas were filled in with clean soil. D. The Insurance Policies Pursuant to the various policies in effect from 1969 to 1986, the London Insurers agreed as follows: To indemnify the Assured for any and all sums which the Assured shall be legally liable to pay and shall pay as damages and expenses as more fully defined by the term "ultimate net loss" on account of personal injury and property damage as herein defined arising out of occurrences happening during the policy period as stated in the schedule forming part of this policy and due to the conduct of the Assured's business.[14] The term "occurrence" was most commonly defined in the policies as "one happening or series of happenings, arising out of or due to one event."[15] The policies further defined "property damage" to exclude damage to property owned by the assured or property in the care, custody, or control of the assured.[16] All of the policies provided excess insurance coverage in successive layers above a substantial self-insured retention (SIR) in accordance with the terms of the policies. Southern Railway Company (now known as Norfolk Southern Railway Company) obtained the first of these policies on April 11, 1969, and obtained subsequent policies for distinct periods at various excess layers until October 25, 1982. Most of the policies were for one-year periods, but certain policies did extend for a three-year period 177 from 1972-1975.[17] Prior to 1969, Southern Railway was self-insured, except for certain hazardous cargo insurance not at issue here. In 1982, Southern Railway Company and Norfolk and Western Railway Company merged to form Norfolk Southern Corporation, which then obtained three-year excess policies lasting from July 11, 1982 to July 11, 1985, and five-month policies from December 31, 1985 to May 31, 1986. The London Insurers did not provide any excess coverage to Norfolk between July 11, 1985 and December 31, 1985. Throughout all policy periods, Norfolk chose to self-insure at the primary level and maintained SIRs of at least $1,000,000 per occurrence.[18] II. PROCEDURAL HISTORY Norfolk sought a declaration that these policies afforded coverage for the cost of remediating the environmental sites and also sought indemnification from the London Insurers to the extent Norfolk had expended funds to clean up the sites.[19] In response, the London Insurers argued that Norfolk was not entitled to coverage because many of the losses Norfolk sustained were due to damage existing before the first policy took effect in 1969. The London Insurers further contended that any losses Norfolk suffered due to occurrences happening after 1969 did not exceed the SIRs Norfolk maintained under the policies. The basic issues relating to coverage at the Louisiana sites proceeded to a jury trial in September 1998. The jury ultimately returned a verdict finding coverage in globo under the policies subscribed to by the London Insurers, and the trial court entered a judgment on this verdict on February 19, 1999 (the coverage judgment). In this judgment, which was designated final and appealable, the trial court explicitly retained jurisdiction over several issues and reserved those issues for its determination. The London Insurers filed a timely motion for judgment notwithstanding the verdict and alternative motion for new trial. After a hearing, the trial court took the post-trial motions under advisement. In October 1999, while the post-trial motions pertaining to the coverage judgment were still under advisement, the trial court conducted a bench trial to address some of the issues over which it had retained jurisdiction in the coverage judgment. These issues included: (1) the amount of costs Norfolk incurred for each site; (2) the London Insurers' "late-notice" defense; (3) the exhaustion of SIRs underlying the policies; and (4) the appropriate allocation methodology, if any, to be applied to the insurance coverage found by the jury's verdict.[20] 178 On February 12, 2001, the trial court signed a judgment (the allocation judgment) quantifying Norfolk's "ultimate net losses" as $5,335,688.49 at Pearl River and $15,626,418.93 at Bayou Bonfouca. Norfolk did not present any evidence of loss at the Southern Shipbuilding site. The trial court judgment also determined that Norfolk was entitled to full indemnification for its losses at those sites from the policies subscribed to by the London Insurers in any triggered policy period chosen by Norfolk. This indemnification was subject only to the policy limits and payment by Norfolk of a single SIR for the period, without regard to when the damage or damage-causing occurrence actually took place.[21] Although the post-trial motions challenging the coverage judgment had not yet been ruled on, the London Insurers filed motions for orders of suspensive appeal regarding both the coverage judgment and the allocation judgment. The London Insurers also applied for writs to this court seeking review of the allocation judgment. On July 19, 2001, this court directed the trial court to respond to the post-trial motions, which had been pending since 1999, as well as the motions for orders of appeal filed by the London Insurers.[22] The trial court responded by denying the post-trial motions pertaining to the coverage judgment and granting suspensive appeals from the coverage and allocation judgments. In July 2001, Norfolk made an ex parte submission to the trial court seeking to designate specific policy periods to satisfy the allocation judgment. In the submission, Norfolk designated three policies, allegedly in effect from April 11, 1969 to April 11, 1970, to satisfy the judgment. On August 21, 2001, while the coverage and allocation judgments were on suspensive appeal, the trial court signed a new judgment (the designation judgment) designating the three policies Norfolk had chosen to satisfy the allocation judgment. The designation judgment further found that Norfolk was entitled to recover $9,898,410.71 from the London Insurers in connection with the Louisiana sites, plus pre-judgment and post-judgment interest. The trial court did not require a contradictory hearing or any supporting proof prior to signing the designation judgment. In addition to the pending appeals of the coverage and allocation judgments, the London Insurers have filed a suspensive appeal of the designation judgment.[23] Norfolk has not appealed any of the judgments or answered any appeal of the London Insurers. The coverage judgment (2002 CA 0369), the allocation judgment (2002 CA 0371), and the designation judgment (2002 CA 0372) are all currently before us on suspensive appeal. Although the cases have not been consolidated for appeal, the record in the coverage appeal was designated as a master record. Because many of the issues pertaining to each appeal are interrelated, we address them in a single opinion. III. CONFLICT OF LAWS Prior to any trial in this matter, the London Insurers filed a motion requesting the trial court to apply the law of Virginia, the state of Norfolk Southern Corporation's domicile, to the claims. After a 179 hearing, the trial court denied the motion and ruled that Louisiana law would govern Norfolk's claims regarding the Louisiana sites.[24] The London Insurers' writ to this court seeking review of that decision was denied.[25] On appeal, Norfolk again argues that a conflict of laws analysis requires the application of Virginia law to the circumstances of this case. A review of the relevant law of Virginia and Louisiana indicates that there is a genuine conflict between the laws of the two states concerning the issue of the effect of late notice to the insurance company. Under Virginia law, the requirement of timely notice of an accident or occurrence is a condition precedent to an insurance company's liability coverage and requires substantial compliance by the insured. When the failure to provide such notice is "substantial and material," the insurance company is not required to demonstrate that it was prejudiced by the lack of timely notice. See State Farm Fire and Casualty Co. v. Walton, 244 Va. 498, 504, 423 S.E.2d 188, 192 (1992). By contrast, under Louisiana law, a failure to provide timely notice does not act as a bar to coverage absent a showing of prejudice to the insurer. See Kinchen v. Dixie Auto Insurance Company, 343 So.2d 263, 265 (La.App. 1st Cir.), writ denied, 344 So.2d 1057 (La.1977). According to the London Insurers, application of Virginia law to the claims would result in dismissal of at least some of the claims due to Norfolk's failure to provide timely notice under the terms of the policies. Specifically, the London Insurers contend that Norfolk did not provide notice of the claims regarding the Pearl River site until at least four years after Norfolk was aware of the nature of the claims and the potential liability exposure. The London Insurers further allege that Norfolk failed to provide any notice whatsoever regarding the Pearl River site under certain policies issued to the Norfolk Southern Corporation. Louisiana's conflict of laws provisions are set forth in Book IV of the Civil Code and provide guidance as to which state's law should apply. Article 3515 of the Civil Code provides the general rule as follows: Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. Norfolk has sued the London Insurers seeking a declaratory judgment defining the parties' relative contract rights and obligations pertaining to insurance coverage. The conflict of laws rule applicable to such conventional obligations is found in La. C.C. art. 3537, which provides: 180 Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other. Application of these factors to the circumstances of this case demonstrates that the law of Virginia is applicable to certain issues in this matter. Virginia clearly has the more significant contacts with the parties and the transactions at issue in this case. The London Insurers issued the insurance policies in favor of Southern Railway Company and Norfolk Southern Corporation.[26] Southern Railway Company was organized under the laws of Virginia in 1894, and Norfolk Southern Corporation was incorporated in Virginia in 1982. Norfolk and Western Railway Company, which merged with Southern Railway to form Norfolk Southern Corporation, is also a Virginia corporation.[27] All of these companies do business in Virginia. In addition, Norfolk's main casualty and insurance claims offices are located in Virginia, and Norfolk provided notice of its claims regarding these insurance policies from its offices in Virginia. The remaining plaintiffs are all subsidiaries or controlled companies of Norfolk Southern Corporation incorporated in various places throughout the United States. Although some of these parties conduct business in Louisiana, none is incorporated in Louisiana or has its principal place of business in the state. Moreover, Virginia was the site of the negotiation and delivery of many of the policies at issue here. Norfolk was represented in the negotiations concerning these policies by its brokers in Virginia, Missouri, and London. All of the policies were delivered to Norfolk in either Virginia or Washington, D.C. No negotiations took place in Louisiana, and no policies were delivered to Norfolk in Louisiana.[28] 181 Virginia has a compelling interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. The fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests that this is a legitimate public purpose. Zuviceh v. Nationwide Insurance Company, 00-0773, p. 7 (La.App. 1st Cir.5/11/01), 786 So.2d 340, 346, writ denied, 01-2141 (La.11/9/01), 801 So.2d 373. In addition, we note that the circumstances of this case are entirely distinguishable from those of In re Combustion, Inc., 960 F.Supp. 1056 (W.D.La.1/15/97), on which Norfolk relies. That suit involved a class action by several thousand individuals seeking damages for both personal injury and property damage arising out of the operations of a CERCLA Superfund hazardous waste site in Livingston Parish. The plaintiffs filed suit against numerous generators and transporters allegedly responsible for the contamination at the site and their insurers. The defendants also filed cross-claims against their insurers. The court determined that the public policy of Louisiana and the circumstances of the case required that Louisiana law apply to all actions brought pursuant to the Direct Action Statute. In re Combustion, Inc., 960 F.Supp. at 1057. Specifically, the court focused on La. R.S. 30:2002, which declares the maintenance of a healthy and safe environment for the people of Louisiana "a matter of critical state concern." In addition, the court considered certain circumstances of the case to be crucial to the analysis, including the direct effect the contamination had on Livingston Parish and its citizens.[29]In re Combustion, Inc., 960 F.Supp. at 1068. The case before this court, however, does not involve a direct action by injured Louisiana residents against the insurance companies. The only plaintiffs in this suit are the insureds themselves, and the court is only called on to decide issues concerning the interpretation of contracts between the parties to those contracts. We note that the In re Combustion, Inc. court itself distinguished cases such as this one involving a dispute only between insureds and insurers from those involving direct actions by injured parties. In re Combustion, Inc., 960 F.Supp. at 1070-1071. Moreover, the insurance policies at issue here are comprehensive general liability policies intended to provide indemnity to Norfolk for liability arising out of the conduct of its business, regardless of the location of the risk. It is true that Norfolk's losses at issue in these appeals occurred in 182 Louisiana and that Louisiana has an interest in ensuring that its environmental sites are remediated;[30] however, no private actions have been filed against Norfolk with respect to any of the Louisiana sites. There is no evidence that any Louisiana resident would be affected by a denial of coverage in this suit, since Norfolk is simply seeking reimbursement for costs it has already paid as response costs ordered by a governmental entity. There is also no evidence that any Louisiana resident has been injured by the contamination at the sites. Therefore, Louisiana's interest in this case only arises because a Virginia corporation, along with certain of its subsidiaries and controlled companies, has filed suit in Louisiana seeking indemnity under insurance policies delivered entirely outside of Louisiana (and primarily in Virginia) to recover payments it has already made as compensation for damage caused to property located in Louisiana. Such an interest is not sufficient to override the compelling interest Virginia has in regulating its insurance contracts. See Shell Oil Company v. Hollywood Marine, Inc., 97-106, 97-611, p. 8 (La.App. 5th Cir.10/15/97), 701 So.2d 1038, 1041. This conflict of laws analysis notwithstanding, Norfolk contends that Louisiana law should apply in this matter because the London Insurers contractually agreed to the application of the law of the forum in the policies.[31] In so arguing, Norfolk focuses on the following language found in the policies: It is agreed that in the event of the failure of [the London Insurers] to pay any amount claimed to be due hereunder, [the London Insurers] hereon, at the request of the insured (or reinsured), will submit to the jurisdiction of any Court of competent jurisdiction within the United States of America and will comply with all requirements necessary to give such Court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such Court.[32] Norfolk, relying on Capital Bank and Trust Co. v. Associated Int'l Ins. Co., 576 F.Supp. 1522 (M.D.La.1984), contends that the phrase "and all matters arising hereunder shall be determined in accordance with the law and practice of such Court" means that both the substantive and procedural law of Louisiana are applicable to any action brought in Louisiana by Norfolk to seek recovery under the policies. Such an interpretation would allow an insured to choose the substantive law to be applied to his complaint simply by choosing the forum. Norfolk's reliance on Capital Bank is misplaced. In Capital Bank, the court was called on to determine whether or not a similar service of suit clause constituted a waiver of the defendant's right of removal to federal court after it had been sued in a state forum chosen by the plaintiff. The clause at issue in that case provided, in pertinent part: It is agreed that in the event of the failure of the company to pay any amount claimed, to be due, the company at the request of the insured, will submit to the jurisdiction of any court of competent jurisdiction within the United States and will comply with all requirements necessary to give such court jurisdiction. Capital Bank, 576 F.Supp. at 1524. Noticeably, the clause did not contain the 183 phrase "and all matters arising hereunder shall be determined in accordance with the law and practice of such Court" on which Norfolk relies. The Capital Bank court determined that the purpose of such a clause was to allow a policyholder to compel the insurer to submit to the forum of the policyholder's choice in an action to recover proceeds under the policy. The court further reasoned that the insurance company had waived its right to defend the suit in federal court by agreeing to submit to a state forum pursuant to this clause. Capital Bank, 576 F.Supp. at 1524-1525. The court then attempted to distinguish the clause at issue in its case from others, such as the one before this court, containing the language on which Norfolk relies. The court opined that clauses containing the additional language are not only "choice of forum" clauses but also "choice of law" clauses, which give the insured the additional right to choose the substantive law to be applied to the complaint. Capital Bank, 576 F.Supp. at 1525. At the outset, we note that any comments by the Capital Bank court regarding the interpretation of the phrase "and all matters arising hereunder shall be determined in accordance with the law and practice of such Court" are dicta, as the clause before that court did not contain that language. Nevertheless, the court did reference two cases in which it believed the service of suit clause at issue, which did contain the additional language, was both a "choice of forum" and "choice of law" clause. See Perini v. Orion Insurance Company, 331 F.Supp. 453 (E.D.Cal. 1971); General Phoenix Corporation v. Malyon, 88 F.Supp. 502 (S.D.N.Y.1949). Despite the court's reference to those cases, however, neither of them even addressed, much less decided, the issue of whether or not the service of suit clause was a "choice of law" clause. The only issue before the Perini and General Phoenix courts was whether or not the clause prevented the defendant from removing the case to federal court from a state forum chosen by the plaintiff. Furthermore, there is nothing in the clause before us that would indicate that the "law and practice of such Court" does not include the conflict of laws rules of the forum. Under Norfolk's proposed interpretation of the clause, the court chosen by the insured would be required to apply its substantive laws to the dispute without performing an analysis pursuant to its conflict of laws rules. Such an interpretation would have the undesirable effect of allowing the objectionable practice of forum shopping to proceed unchallenged by allowing an insured to simply pick the forum based on the law it believes to be most favorable to its case, without regard for whether or not the forum has any connection to the dispute or the parties. Therefore, we determine that the service of suit clause in the London Insurers' policies at issue here is not a "choice of law" clause, and we are thus compelled to apply Louisiana's conflict of laws rules.[33] As the analysis outlined above demonstrates, Virginia law is applicable to the issue of late notice under the circumstances of this case.[34] 184 Application of Virginia Law In the coverage judgment, the trial court reserved the issue of the London Insurers' late notice defense for its determination. The London Insurers subsequently filed a post-trial brief concerning this issue; however, the trial court never ruled on the issue prior to signing the allocation or designation judgments.[35] A review of the evidence in the record demonstrates, however, that Norfolk did substantially comply with its notice requirements under the policies. In most of the policies, Norfolk was required to give notice to the London Insurers in compliance with the following clause: The assured shall immediately give written notice as stated in item 7 of the schedule of underwriters' representatives of any occurrence or claim which could reasonably be anticipated by the assured to involve an amount in excess of the underlying limits should the assured be ultimately held legally liable for the occurrence or claim. Solely for the purpose of reporting claims or occurrences, the assured shall in all instances consider himself legally liable for such claims or occurrences. Unlike provisions in other policies that provide simply that the notice must be immediate, the policies at issue here required that notice be provided when the assured could reasonably anticipate that the claim or occurrence would involve an amount in excess of a certain threshold.[36] The London Insurers contend that Norfolk was aware of problems at the Pearl River site as far back as 1974, when it received complaints from certain residents around the site. In addition, the London Insurers argue that Norfolk provided notice of the existence of the site to the EPA in 1983, but failed to provide notice to the London Insurers until 1987, four years later. According to the London Insurers, these events demonstrate that Norfolk was aware of the problems at Pearl River and could have reasonably anticipated that its liability at the site would exceed the notice thresholds established by the policies for many years prior to the time Norfolk actually provided notice to the London Insurers. We disagree. While the record does indicate that certain residents did complain to Norfolk about the operation of the Pearl River facility in the 1970s, there is no evidence in the record that any resident initiated any legal action against Norfolk or PRWPC in connection with these complaints.[37] Moreover, although Norfolk notified the EPA of a potential problem at the site in 1983, the LDEQ did not issue any order directing Norfolk to participate in the remediation of the site until 1987, and Norfolk provided notice to the London Insurers shortly after the order was issued. Although the four-year 185 period from Norfolk's notification of the EPA to the notification of the London Insurers was certainly not "immediate," there is simply no evidence in the record to establish that Norfolk could have or should have been able to value its liability exposure as greater than the thresholds established in the policies at any point prior to the time Norfolk actually provided notice to the insurers. The evidence in the record indicates, therefore, that Norfolk has adequately complied with the notice requirements of the policies. IV. JUSTICIABLE CONTROVERSY (As to Bayou Bonfouca and Southern Shipbuilding Sites) Norfolk petitioned for a declaratory judgment on the issue of coverage under the policies, as well as for indemnity to the extent it had expended funds to remediate the sites. At the time of the jury trial, Norfolk had not expended any funds for the remediation of the Bayou Bonfouca and Southern Shipbuilding sites and was only seeking declaratory relief regarding those sites. In American Waste & Pollution Control Company v. St. Martin Parish Police Jury, 627 So.2d 158, 161 (La.1993), the Louisiana Supreme Court discussed the use of declaratory judgment as follows: Due to its nature, declaratory relief makes it possible to adjudicate a grievance at an earlier time than would otherwise be allowed. The purpose of the judgment is to settle and afford relief from uncertainty and insecurity... before damages arise and the need for traditional remedies occurs. Like actions for conventional judgments, basic to the exercise of procedures for declaratory relief, the action must present a justiciable controversy. [Citations omitted.] In Abbott v. Parker, 259 La. 279, 249 So.2d 908, 918 (1971), the Louisiana Supreme Court defined justiciable controversy in the context of an action for declaratory relief as follows: A `justiciable controversy' connotes... an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further... the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. A declaratory judgment cannot generally be maintained unless it involves some specific adversary question or controversy based on an existing state of facts. Tugwell v. Members of Board of Highways, 228 La. 662, 679, 83 So.2d 893, 899 (1955). A court must refuse to entertain an action for a declaration of rights if the issue presented is based on a contingency that may or may not arise. Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. American Waste & Pollution Control Company, 627 So.2d at 162; See also Jordan v. Louisiana Gaming Control Board, 98-1122, 98-1133, 98-1134 (La.5/15/98), 712 So.2d 74; Perschall v. State, 96-0322 (La.7/1/97), 697 So.2d 240; Lifemark Hospitals v. St. Jude Hospital of Kenner, La., Inc., 98-476 (La.App. 5th Cir.10/28/98), 720 So.2d 1244, writ denied, 98-2940 (La.1/29/99), 736 So.2d 831. The testimony at trial was that Norfolk had received one letter from the EPA seeking information about Norfolk's connection to the Southern Shipbuilding site. The letter alleged only that Norfolk might be a PRP in connection with the site 186 because it may have had some vessels serviced at the site at some unknown time in the past. Norfolk conceded that it may have owned a couple of fire boats and platform barges that may have been serviced at the facility, but denied that this servicing resulted in the production of any hazardous materials. Moreover, it was not clear when, or if, the vessels had actually been serviced at the facility. In addition, Norfolk had advised the EPA that it had confused Norfolk with another company and had not received any further communication from the EPA regarding the site at the time of trial. No claim has been filed against Norfolk in connection with this site by the EPA or any other entity. Clearly, the claims regarding the Southern Shipbuilding site are too hypothetical and abstract to allow the granting of declaratory relief. The only facts alleged in support of Norfolk's potential liability at the site are speculative at best. Furthermore, no entity has sought to hold Norfolk liable in connection with the site, and no entity may ever seek to impose liability. Therefore, the question of insurance coverage is based on a contingency that may never occur and is not of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. American Waste & Pollution Control, 627 So.2d at 162. In addition, the facts allegedly supporting Norfolk's liability at the site would not be sufficient, even if proven, to demonstrate that an "occurrence" had taken place during any policy period. Because a justiciable controversy is lacking, we reverse the trial court judgment finding coverage in connection with the Southern Shipbuilding site, and dismiss the portion of the petition seeking declaratory relief for the site as failing to state a cause of action. See American Waste & Pollution Control, 627 So.2d at 162. On the other hand, we believe that Norfolk's claim for declaratory relief in connection with the Bayou Bonfouca site is proper. At the time of the jury trial in this matter, the EPA had filed a cost recovery action under CERCLA against Norfolk regarding the site. That action alleged specific facts and specific theories of liability upon which Norfolk's potential liability was based. Although there was a hypothetical component to the claims since Norfolk's liability pursuant to those facts had not yet been determined, the jury was allowed to determine whether or not coverage would exist if Norfolk were held liable for the remediation of the site pursuant to the theories of liability propounded by the EPA. Therefore, we believe that the controversy was sufficiently certain and immediate to allow its resolution by declaratory relief. IV. INSURANCE COVERAGE The trial court signed the coverage judgment on February 19, 1999, based on the jury verdict rendered in September 1998. The signed judgment incorporated the interrogatories provided to the jury on the verdict form, as well as the jury's responses. In challenging this judgment, the London Insurers have focused largely on alleged deficiencies in the jury verdict form. A. Jury Verdict Form The verdict form required the jury to answer two questions concerning each of the three Louisiana sites. Specifically, the jury was asked the following questions about each site: (1) Do you find that the policies which defendants sold to plaintiffs provided coverage to plaintiffs for the costs that plaintiffs incurred, or may incur in the future, for the remediation and clean up of the [site]; and (2) Do you find that the policy years between 187 1969 and 1985 provide coverage for the plaintiffs' loss at the [site].[38] The jury was only allowed to answer the questions with either "yes" or "no." There was no provision in the interrogatories to allow the jury to determine whether any portion of the damage existed prior to the effective date of the first policy, despite the fact that the issue was raised in the pleadings, the pre-trial order, the evidence at trial, and the jury instructions given by the trial court. The London Insurers contend that the failure of the trial court to allow the jury to decide this issue is reversible error. We agree. In order to establish its claim, Norfolk was required to demonstrate by a preponderance of the evidence that the property damage for which it sought coverage was due to occurrences taking place during a policy period.[39] In this case, there was no question that some contaminating activities and property damage had occurred at the sites prior to April 11, 1969, the effective date of the first insurance policy. Norfolk's fourth amending petition had alleged that relevant contaminating activities had taken place at all three sites prior to the first policy period. In addition, Norfolk's risk manager, David Fries, acknowledged at trial that the contamination at the sites dated back to the time when the facilities began their operations. Mr. Fries further testified that Norfolk was seeking to recover the costs it had paid to remediate all of the property damage, regardless of when the damage or the damage-causing occurrence took place. The London Insurers, on the other hand, contended that any damage that pre-existed the first policy period was not covered because it could not have arisen out of an occurrence happening during a policy period. Despite the obvious importance of the issue to the parties' claims and the repeated objections of the London Insurers, the trial court did not include any interrogatories in reference to the issue on the verdict form presented to the jury.[40] Instead, the jury was presented with an "all or nothing" choiceeither all of the property damage was covered or none of it was. The jury was not allowed to distinguish between damage resulting from occurrences happening during uninsured years and damage resulting from occurrences happening during policy years. In addition, the second interrogatory regarding each site allowed the jury only an affirmative or negative response to the question of whether policy years between 1969 and 1985 covered Norfolk's losses at the sites. Such an interrogatory is clearly confusing because the jury may properly answer in the affirmative if coverage is found in all policy years, as well as if coverage is found in only one policy year. By requiring the jury to answer the interrogatory with a simple "yes" or "no," the jury verdict form did not contemplate all possible responses; therefore, we are unable to determine the jury's intent. Moreover, the confusing and misleading nature 188 of the jury interrogatories was exacerbated when the trial court instructed the jury that the London Insurers bore the burden of proof in apportioning the damages in the dispute with Norfolk, without providing a mechanism by which the jury could carry out the apportionment.[41] A special jury verdict requiring a jury to return a special written finding on each issue of fact requires adequate jury interrogatories that fairly and reasonably point out the issues and guide the jury in reaching a verdict. If the trial court submits a verdict form to the jury with misleading or confusing interrogatories, just as when it omits to instruct the jury on an applicable essential legal principle, such interrogatories do not adequately set forth the issues to be decided by the jury and may constitute reversible error. Lewis v. Wal-Mart Stores, Inc., 546 So.2d 267, 274 (La.App. 3d Cir.1989). Because of the deficiencies in the verdict form, we find that the jury interrogatories were so inadequate that the jury was unable to reach a verdict based on the law and facts. Accordingly, we are compelled to interdict the entire jury verdict.[42] See Diez v. Schwegmann Giant Supermarkets, Inc., 94-1089, p. 7 (La.App. 1st Cir.6/23/95), 657 So.2d 1066, 1070, writ denied, 95-1883 (La.11/17/95), 663 So.2d 720. As an appellate court we now have the option of remanding the case for a new trial or deciding the case on the record. In order to exercise the option correctly, we must review the record before us. When an appellate court finds that a reversible legal error or clear error of material fact was made in the trial court, it is required, whenever possible, to review the case de novo from the entire record and render a judgment on the merits. Ferrell v. Fireman's Fund Ins. Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. When a preponderance of the evidence cannot be determined fairly from the cold record, such as when there is a substantial conflict in the testimony that cannot be determined without deciding on the credibility of the witnesses, remand is proper. Diez, 94-1089, p. 7, 657 So.2d at 1070-1071; Citgo Petroleum Corporation v. Yeargin, Inc., 95-1574, p. 8 (La.App. 3d Cir.2/19/97), 690 So.2d 154, 161, writs denied, 97-1223, 97-1245 (La.9/19/97), 701 So.2d 169, 170. In the present case, we find that the record is such that we can fairly find a preponderance of the evidence from the record on appeal; therefore, we will render a judgment on the record. 189 B. Pre-existing Damage An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. La. Civ.Code art.1983. The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy. Peterson v. Schimek, 98-1712, p. 4 (La.3/2/99), 729 So.2d 1024, 1028. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the insured and insurer as reflected by the words in the policy. La. Civ.Code art.2045; Succession of Fannaly v. Lafayette Insurance Co., 01-1144, 01-1343, 01-1355, 01-1360, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, the court must enforce the contract as written and may make no further interpretation in search of the parties' intent. La. Civ.Code art.2046; Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991). In determining the meaning of the words of an insurance policy, the words are to be given their generally prevailing meaning. When the meaning of the words is clear, the court should look no further in determining the intent of the parties. Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy's provisions are couched in unambiguous terms. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty, 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 764. Furthermore, an insurance contract should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or restrict its provisions beyond what is reasonably contemplated by unambiguous terms or to achieve an absurd conclusion. Valentine v. Bonneville Ins. Co., 96-1382, p. 3 (La.3/17/97), 691 So.2d 665, 668; Reynolds v. Select Properties, Ltd., 93-1480, p. 3 (La.4/11/94), 634 So.2d 1180, 1183. That is, the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express the parties' intent with sufficient clarity. Ledbetter v. Concord Gen. Corp., 95-0809, pp. 3-4 (La.1/6/96), 665 So.2d 1166, 1169, amended by, 95-0809 (La.4/18/96), 671 So.2d 915. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Louisiana Ins. Guar. Ass'n, 630 So.2d at 763. As previously noted, the policy language provided that the London Insurers would indemnify Norfolk for the amounts Norfolk was legally liable to pay as damages due to "property damage... arising out of occurrences happening during the policy period." The term "occurrence" was most commonly defined in the policies as "one happening or series of happenings arising out of or due to one event." The term "property damage" referred to damage to, or destruction or loss of property not owned by or in the care, custody, or control of Norfolk. The policies did not require that the property damage take place during the policy period in order for it to be covered; however, the unambiguous language of the policies clearly required that the "occurrence" giving rise to the property damage must have taken place during the policy period. 190 Norfolk argues that the policies cover all losses due to property damage it suffered at the sites, regardless of whether the damage pre-existed the effective date of the first policy. No reasonable interpretation of this provision would consider property damage already in existence at the time the first policy came into effect to have been caused by an occurrence happening during any policy period. Such an interpretation would have the absurd consequence of allowing the property damage to, in effect, pre-exist its causative event. To interpret the provision in this manner would be a perversion of the clear and unambiguous language of the policy and would enlarge coverage beyond what the parties could reasonably have expected. Therefore, we find there can be no coverage for property damage that existed prior to April 11, 1969, the effective date of the first policy.[43] C. Trigger of Coverage[44] A review of the record indicates that the property damage for which Norfolk sought coverage at the Bayou Bonfouca and Pearl River sites was the contamination arising out of the long-term wood-preserving operations carried out at the site over the course of many years. The evidence is clear that the contaminating activities at Bayou Bonfouca began in 1882, and ended by 1972, when the facility was closed. Similarly, the contaminating activities at Pearl River began in 1963, and ended by 1974, when the creosoting operations were moved to Mississippi. The operations at both sites resulted in the routine deposit of contaminants onto the ground and into waterways throughout the periods that the facilities were in operation. The contaminants were not removed from the sites for many years after the facilities were closed. Thus, the contaminants continued to travel across the surface of the land and leach into the soil and groundwater for years after the time they were initially deposited. Fixing the date of an injurious occurrence is crucial to determining which of several insurers in a company's history must bear the liability for an environmental incident. Injuries from toxic wastes usually evolve slowly, and thus it is difficult to define the date on which an occurrence triggers liability for insurance purposes. Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 450, 650 A.2d 974, 980 (1994). Therefore, in long-term environmental damage and other complex causation cases, courts have utilized various theories to determine when an insurance policy has been triggered.[45] The four primary theories 191 developed by the courts are: (1) the exposure theory, in which the policy is triggered by the mere exposure to the harmful conditions during the policy period (i.e. when the toxin is deposited in the landfill during the policy period);[46] (2) the manifestation theory, in which the policy is triggered when the injury becomes reasonably apparent or known to the claimant;[47] (3) the continuous trigger theory, in which all policies in effect during the entire injurious process will be triggered and required to respond (i.e. when the environment is first exposed to the toxic chemical, at the time the damage first becomes apparent, and at all times in between);[48] and (4) the injury-in-fact theory, in which the policy is triggered when there is evidence of actual injury during the policy period regardless of when exposure took place or the injury became manifest.[49] Louisiana courts have never addressed the issue of trigger of coverage in the context of long-term environmental damage; however, in the context of asbestosis or long-latency disease cases, the Louisiana Supreme Court has adopted the exposure theory. Cole v. Celotex, Corp., 599 So.2d 1058, 1076 (La.1992).[50] In doing so, the court discussed the difficulties inherent in trying to apply traditional tort liability doctrines to long-latency diseases: The difficulties in asbestosis cases arise because, unlike in traditional personal injury cases in which the damage results from a single identifiable act causing traumatic injury, in asbestosis cases the damage results from a continuous processa slow development of this hidden disease over the years. Compounding the problem, asbestosis cases are characterized by a lengthy latency periodtypically ranging a decade or twoand, consequently, a tortious conduct and the appearance of injury. This lengthy latency period renders efforts to pinpoint the date on which the disease was contracted virtually impossible, medically and legally. Cole, 599 So.2d at 1065-1066. [Citations omitted.] The court then went on to conclude that the "key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious 192 exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later." Cole, 599 So.2d at 1066. These same concerns apply to matters involving long-term environmental damage. In such cases, the property damage is generally not due to a single catastrophic event, but to numerous releases and discharges taking place over an extended period of time. The property damage may or may not be apparent immediately, and it is virtually impossible to determine the specific damage in existence at any given time or the specific cause of any particular damage. Therefore, considering the characteristics of long-term environmental damage, the relevant policy language, and the facts of this case, we believe the exposure theory is applicable to determine which policies, if any, were triggered. Under the facts of this case, wood-preserving operations occurred in every year from 1882 to 1972 at the Bayou Bonfouca site, and every year from 1963 to 1974 at the Pearl River site. The London Insurers provided excess liability coverage to Norfolk from 1969 to 1986. Therefore, application of the exposure theory would result in triggering the policy periods from 1969 to 1972 in connection with the Bayou Bonfouca site, and the policy periods from 1969 to 1974 in connection with the Pearl River site. After the facilities were closed, there were no new occurrences giving rise to the relevant property damage. We must also resolve the question of the number of occurrences taking place in each policy period. The evidence indicates that there were numerous releases, drips, and spills as a normal part of the wood-preserving operations in each year the sites were operational; however, it is not known how many took place in each year. In the asbestos context, the Louisiana Supreme Court has addressed the issue of how to determine the number of occurrences when the victim is repeatedly injured during multiple policy years. In Cole, the court applied the exposure theory to find that the inhalation of asbestos fibers causes bodily injury as defined in the policies. The court then held that an employee suffered bodily injury from an occurrence when the employee inhaled asbestos fibers during a policy period, and all subsequent inhalation during that policy period arose out of the same occurrence. The court went on to find that when the employee inhaled asbestos during the next policy period, the employee again suffered bodily injury from an occurrence. Therefore, there was one occurrence per policy period, and the employee suffered injury from an occurrence during each year in which he inhaled the asbestos fibers. Cole, 599 So.2d at 1075-1080. We believe the same rule would apply to the facts of this case. Like Cole, we have applied the exposure theory to determine when a policy has been triggered by an occurrence. Moreover, we believe this interpretation comports with a literal reading of the policy language defining an "occurrence" as "one happening or series of happenings arising out of or due to one event." To the extent that the releases, drips, and spills were due to the wood-preserving operations in one policy period they are to be considered as one occurrence. Therefore, a single occurrence took place in each policy period from 1969 to 1972 at the Bayou Bonfouca site, and a single occurrence took place in each policy period from 1963 to 1971 at the Pearl River site; however, a single additional occurrence took place at the Pearl River site in the policy period covering the period from 1972 to 1974, because the policies covering that period were three-year policies. See Society of the Roman Catholic 193 Church v. Interstate Fire & Casualty Co., 26 F.3d 1359, 1366 (5th Cir.1994). D. Coverage in Triggered Years Finding that a policy has been triggered does not end the inquiry into whether or not coverage exists under that policy. We must now consider additional policy terms, including any limitations, exclusions, or defenses the insurer may have. 1. Owned Property Exclusion The London Insurers agreed to indemnify Norfolk for damages and expenses due to property damage. The policies defined property damage to exclude damage to property owned by Norfolk or in its care, custody or control. There is no dispute that Norfolk owned the property comprising the Pearl River site from approximately 1882 until 1980.[51] The purpose of owned property exclusions in general liability policies is to effectuate the intent that liability insurance is designed to provide compensation for damages to property not owned or controlled by the insured. It does not provide first party coverage for losses sustained by the insured on its own property. The exclusion is applied because there may be some advantage to the insured in falsifying or exaggerating a loss to its own property; a moral hazard not contemplated or contracted for in a commercial general liability insurance policy. Reynolds v. Select Properties, Ltd., 93-1480 at p. 5, 634 So.2d at 1184. The property damage at the site consisted primarily of soil and groundwater contamination. While the soil contamination appears to have been contained within the boundaries of the property, the groundwater contamination extended beyond those boundaries and across Interstate 59. Norfolk installed various wells to monitor the condition of the groundwater but did not actually treat the contaminated groundwater. In addition, Norfolk excavated and removed the contaminated soils in the areas of the earthen pits and the large surface impoundment, both of which were located on the property that had been owned by Norfolk. These areas were the two main source areas of contamination at the site. Ownership of groundwater has not been clearly established in Louisiana law; however, at least one Louisiana court has treated groundwater as a fugitive subsurface mineral, which is not owned by the owner of the land. Adams v. Grigsby, 152 So.2d 619, 623 (La.App. 2d Cir.), writ refused, 244 La. 662, 153 So.2d 880 (1963). Therefore, it appears that costs expended in connection with efforts to remediate damage to the groundwater, whether it was below Norfolk's property or third-party property, would not be excluded from coverage pursuant to the owned property exclusion because such groundwater is not owned by the insured. This determination does not resolve the question of to what extent the remediation efforts involving the contamination on Norfolk's property would be covered under the policies. Louisiana courts have never addressed this issue; however, courts in other jurisdictions have, on occasion, found that the owned property exclusion does not defeat coverage of the remediation of an insured's property undertaken to eliminate or mitigate a threat to third-party property. 194 Courts in other jurisdictions have abrogated the owned property exclusion in certain cases where there is evidence of a verifiable, actual, and imminent threat to groundwater or adjacent property not owned by the insured. In Intel Corp. v. Hartford Accident & Indemnity Co., 952 F.2d 1551, 1565 (9th Cir.1991), the court opined that an insured covered for damage to third-party property would reasonably expect coverage for efforts to mitigate that damage, even when the source of the problem emanates from the insured's own property. Even in such cases, however, the courts have abrogated the exclusion only to the extent that the costs were incurred either to remedy existing damage to third-party property or to prevent future damage to such property. Costs incurred solely to remediate damage to the insured's property were not covered. Intel Corp., 952 F.2d at 1566; Figgie International, Inc. v. Bailey, 25 F.3d 1267, 1273-1274 (5th Cir.6/29/94).[52] Other courts, however, have determined that the owned property exclusion does operate to preclude recovery for costs expended to prevent only threatened harm to third-party property, even if future harm to third-party property was prevented. See e.g. State v. Signo Trading International, Inc., 130 N.J. 51, 612 A.2d 932, 938-939 (1992). The court further determined that the insurer's obligation did not extend to prospective monetary damages for some undefined and speculative future loss. The court did acknowledge, however, that where there had been actual injury to third-party property, the costs of measures intended to prevent imminent or immediate future damage to that property would not be excluded from coverage. Signo Trading, 612 A.2d at 939. The London Insurers acknowledge that a portion of the costs Norfolk expended to remediate the site was spent in conducting groundwater investigations and installing the monitoring wells.[53] The London Insurers contend, however, that the remaining costs of remediation were incurred only to improve Norfolk's own property and are, therefore, excluded from coverage by the owned property exclusion. We disagree. There is clear evidence in the record of actual damage to third-party property as the groundwater both on-site and off-site had been contaminated. The evidence further indicated that the groundwater contamination emanated from the earthen pits and the large surface impoundment as the contaminants in those two areas continued to leach through the soil and into the groundwater. At trial, Norfolk contended that the first step in any remediation effort is to remove the source areas of contamination and that all of the costs it incurred were for the purpose of addressing the groundwater contamination and removing the sources of contamination. It is only logical to conclude that if the source were not removed, the contamination, which had already caused damage to third-party property, would continue to migrate off-site and cause additional damage to third-party property. Therefore, under the circumstances of this case, we hold that the remediation costs expended in removing the source areas of contamination on Norfolk's property were intended to prevent imminent or immediate damage to the groundwater. The evidence in the record is clear that actual third-party 195 property damage had occurred and that the costs expended by Norfolk were spent to prevent future damage from occurring, rather than solely to repair damage to Norfolk's own property. Norfolk's costs in connection with the Pearl River site are not excluded from coverage pursuant to the owned property exclusion. Because actual damage to third-party property was demonstrated, we need not address the situation in which remediation is undertaken in response to the mere threat of damage to third-party property. 2. Conduct of the Assured's Business The London Insurers also contend that Norfolk is not entitled to indemnity because the losses Norfolk suffered were not "due to the conduct of the Assured's business." We disagree. Norfolk's liability in connection with the Pearl River site is based on its position as the owner of the property at the time hazardous wastes were disposed of at the site.[54] Norfolk's real estate counsel, Jerry Causey, testified at the jury trial that Norfolk often leased vacant property to other companies, such as PRWPC, in order to obtain customers for Norfolk's rail service. Such leases were usually for a very small amount to attract industry that would utilize the railroad. Similarly, at the Bayou Bonfouca site, Norfolk's liability was based in part on its ownership of a right-of-way into the site. This right-of-way allowed Norfolk to provide rail service to the industries at the site, which in turn allowed Norfolk to obtain freight business. Therefore, we find that Norfolk's liability at the sites arose out of the conduct of its business. V. ALLOCATION METHOD After the jury entered its verdict on coverage, the trial court conducted a bench trial to determine how coverage would be allocated among the various triggered policies in light of the jury verdict. Norfolk contended that the court should apply the "all sums" or "pick-a-year" method of allocation by which Norfolk would be allowed to obtain full indemnification for all its losses in connection with the Louisiana sites from any triggered policy it chose, subject only to the policy limits and the payment of one SIR for the period. The London Insurers argued, on the other hand, that the proper method of allocation was a pro rata approach based on each insurers' time on the risk and degree of risk assumed. The trial court took the matter under advisement and ultimately determined that the "all sums" method was the appropriate method of allocation to be applied to this matter. Norfolk ultimately chose to satisfy its losses from the policies in effect from April 11, 1969 to April 11, 1970, and obtained the ex parte designation judgment to that effect. On appeal, the London Insurers argue that the "all sums" method is contrary to the policy language and the law. We agree and hereby reverse.[55] 196 A. Policy Language Requires Pro Rata Approach The trial court did not issue any oral or written reasons for its decision to apply the "all sums" method of allocation, but it appears that the court may have focused on the "all sums" portion of the coverage grant to the exclusion of the remaining language, which required that the property damage for which indemnity was sought must have arisen out of an occurrence taking place during the policy period.[56] The well-established rules of contract interpretation do not allow such a construction of the terms of the policy. An insurance contract must be construed as a whole, and each provision in the policy must be interpreted in light of the other provisions so that each is given meaning. One portion of the policy should not be construed separately at the expense of disregarding other provisions. La. Civ.Code art.2050; Peterson, 98-1712 at p. 5, 729 So.2d at 1029. In this case, the unambiguous language of the policies clearly demonstrates that the policies are triggered by an occurrence that causes property damage. Moreover, each policy triggered by an occurrence within its policy period covers only the property damage arising from that occurrence. An interpretation of the coverage grant that would require any of the policies to respond to property damage caused by occurrences happening outside the policy period would be an unreasonable enlargement of the terms of the policy. B. Louisiana Law Requires Pro Rata Approach Although the trial court purportedly applied Louisiana law to the issue, it did not cite any Louisiana authority in support of its determination that the "all sums" method of allocation was appropriate. Moreover, despite advocating the application of Louisiana law, Norfolk has relied primarily on a line of cases from other jurisdictions that have been expressly rejected by Louisiana courts. Many of the authorities on which Norfolk relies have their roots in the approach taken by the court of appeals for the District of Columbia in Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981). In Keene, the court applied the continuous trigger theory in the context of long-latency occupational disease and found that all insurance policies in effect from the injured party's initial exposure to asbestos, through the period of exposure in residence, to the manifestation of the disease were triggered. Keene, 667 F.2d at 1047. The court went on to hold that the insurers' liability to the plaintiff was joint and several, such that the plaintiff was entitled to select one of the triggered policies and collect the full amount of indemnification from that policy. Once the plaintiff had been fully compensated, the insurers were responsible for allocating the loss among themselves. Keene, 667 F.2d at 1049-1050. Although Keene and its progeny appear to provide support for the "all sums" method, Louisiana courts have expressly rejected Keene 197 and its application of the continuous trigger theory and joint and several liability in the context of long-latency occupational diseases. Cole, 599 So.2d at 1079; Ducre v. Mine Safety Appliances, Co., 645 F.Supp. 708, 712-713 (E.D.La.1986), aff'd 833 F.2d 588 (5th Cir.1987). In Cole, the Louisiana Supreme Court considered a suit filed by refinery workers against their employer and its insurer based on the employees' exposure to asbestos during the time of their employment. The court affirmed the decision of the third circuit, which had applied the exposure theory to determine that multiple policies had been trigged throughout the full period of exposure. The supreme court then rejected the insurer's attempt to allocate the entire loss to one policy year pursuant to Keene and quickly distinguished Keene based on its application of a continuous trigger theory rather than the exposure theory employed by Louisiana courts. In making this distinction, the court focused on the policy considerations underlying the exposure theory and stated: The general economic effect of the exposure theory is to spread losses back over numerous years of primary insurance coverage, with the result that manufacturers, particularly those which are no longer in the asbestos business, will not be faced with increased liability insurance costs. It is also, however, a clear benefit to the more recent excess insurers, which will not be forced to make indemnity payments since all applicable primary limits will not be exhausted as rapidly as they would be under a manifestation approach. Cole, 599 So.2d at 1079. Prior to Cole, Louisiana federal courts had addressed these issues as well. In Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981), the fifth circuit accepted the exposure theory as the law of Louisiana and ordered the matter before it remanded to the district court for proration of liability. The fifth circuit guided the district court in the manner of proration by reference to Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1225 (1980), in which the federal sixth circuit held that liability should be prorated among all insurance carriers based on the number of years each provided coverage; however, the court specified that an insurer would not be liable for any period in which there had been no exposure to asbestos manufactured by the insured. See Porter, 641 F.2d at 1145. In Ducre, injured employees filed suit for damages arising out of exposure to silica dust over a period of many years. The court rejected the insurance company's attempt to telescope coverage into one policy period pursuant to Keene and held that liability would be prorated on a yearly basis. Under such an approach, each insurance company would be on the risk for each plaintiff asserting a claim, for each policy period that the plaintiff was exposed to silica dust. Ducre, 645 F.Supp. at 712-713. The court further determined that this allocation would be carried out by dividing the amount of the judgment by the total number of years of a plaintiff's exposure to obtain a judgment amount per year. Ducre, 645 F.Supp. at 714. Both Porter and Ducre were relied upon by the Louisiana Supreme Court in Cole. Louisiana courts have never addressed the issue of allocation in the context of long-term environmental damage; however, there is no relevant distinction between the cumulative nature of the bodily injuries in long-latency occupational diseases and that of the property damage in long-term environmental contamination. Therefore, as we have already applied the exposure 198 theory to these matters, we now adopt the logically consequent rule of proration of liability for the insurance carriers on the risk during the periods of exposure to contaminating activities. See Porter, 641 F.2d at 1145. In addition, we believe that this liability should be allocated on a pro rata basis over all periods in which contaminating activities took place, including those in which Norfolk was uninsured.[57] Underlying the holdings in the Louisiana cases addressing allocation in long-term losses spanning multiple policy periods is the concept that insurers may limit their liability to discrete and finite periods. The exposure theory, upon which the Louisiana allocation approach is based, relies on the principle that an insurer will only be responsible within the terms of its policy for those damages arising out of the period the policy is in effect. In short, each insurer is responsible, up to the limits of its policy, for all damages emanating from occurrences taking place during the insurer's policy period. All damages emanating from occurrences taking place outside the policy period are covered by the insurer on the risk at the time the occurrence took place. Society of the Roman Catholic Church, 26 F.3d at 1366. To the extent Norfolk's damages arose out of occurrences taking place during a period in which no insurer is on the risk, the logical approach is to treat Norfolk as an insurer for that period and assign it a pro rata share. We note that in Forty-Eight Insulations, on which many of the relevant Louisiana authorities are based, the sixth circuit recognized that an insured must pay a pro rata share of the damages for the periods in which it was self-insured. To hold otherwise, the court reasoned, would have the illogical result of placing an insured that had purchased insurance coverage for only one year of the twenty years of exposure in the same position as an insured who had purchased insurance coverage continuously throughout the exposure period. Forty-Eight Insulations, 633 F.2d at 1225. If the number of releases and discharges were known and the damages arising from each one proven, we could allocate the loss according to the actual damage arising out of each occurrence. Unfortunately, there is no measure of the amount of damage caused by occurrences during any given period. This leaves us with only one avenue under the language of the policies, which is to allocate the loss based on the policy periods and all periods of self-insurance. See Society of the Roman Catholic Church, 26 F.3d at 1366-1367. C. Bayou Bonfouca Site Under the facts of this case, the ultimate net loss of $15,626,418.93 suffered by Norfolk in connection with the Bayou Bonfouca site must be allocated among all years from 1882 to 1972, for a total of ninety-one years.[58] This results in a per year allocation of $171,718.89. Norfolk is responsible for those amounts allocable to the periods from 1882 through April 10, 1969, when it was not insured. In addition, Norfolk must meet its SIR in every policy period from April 11, 1969 through 1972, as required by the terms of the policy. It is clear, however, that the amount allocable to each of the policy periods 199 is not sufficient to exceed even one SIR.[59] Norfolk contends on appeal that the fire on the site that occurred in 1970 or 1972 fully accounts for the costs of remediation. We reject this argument for a variety of reasons. First, we note that the date of the fire has not been proven with any certainty, thus preventing the allocation to one policy period of the costs associated with the fire.[60] Furthermore, this assertion is contrary to the testimony of Norfolk's witnesses that it was not possible to determine when certain damage occurred or to which "occurrence" it was attributable. Finally, the evidence in the record points to the cause of the contamination being more from a long-term process of contamination rather than a one-time event. Therefore, under the facts of this case and considering the per year judgment amounts calculated above, the London Insurers do not owe any indemnification with regard to the Bayou Bonfouca site. D. Pearl River Site Allocation in connection with the Pearl River site is slightly different because in addition to various one-year policies, a three-year policy running from April 11, 1972 to April 11, 1975, has been triggered by the contaminating activities carried out at the site; however contaminating activities did not take place throughout that three-year period. The record indicates that the Pearl River Wood Preserving facility operated for a total of 127 months, with approximately 71 months of operations having occurred by April 11, 1969. Therefore, approximately 56 months of the facility's operations were carried out during periods in which there was coverage. Norfolk alleges that its ultimate net loss in connection with this site is $5,335,688.49, which averages out to $42,013.30[61] per month of operations. Norfolk is responsible for those costs allocable to the 71 months of operations that took place prior to the effective date of the first policy. This total comes to $2,982,943.95. The sum of $504,159.54 is allocable to each of the three one-year policy periods running from April 11, 1969 to April 11, 1972. Finally, the sum of $840,265.90 is allocable to the one three-year policy period during which the remaining 20 months of operations took place.[62] The policies each had SIRs of $1,000,000 per occurrence, and as the calculations make clear, the amount allocable to each policy period does not exceed the relevant SIR. Therefore, the London Insurers do not owe Norfolk any indemnification in connection with the Pearl River site.[63] Because we have determined that 200 the London Insurers do not owe any indemnification in connection with the Louisiana sites, we must also reverse the designation judgment, which was rendered and signed on August 21, 2001. CONCLUSION For the foregoing reasons, we reverse the coverage judgment of the trial court, and judgment is hereby rendered in favor of the plaintiffs, Norfolk Southern Corporation, Norfolk Southern Railway Company, Norfolk and Western Railway Company, The Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and The Cincinnati, New Orleans and Texas Pacific Railway Company finding coverage under the policies from 1969 to 1972 with regard to the Bayou Bonfouca site, and from 1969 to 1974 with regard to the Pearl River site. We further find that there is no coverage for the property damage at either site under the remaining policies, and that there is no coverage under the policies for damage that pre-existed the policies. We further affirm that part of the allocation judgment finding the plaintiffs' ultimate net loss at the Bayou Bonfouca site to be $15,626,418.93, and the ultimate net loss at the Pearl River site to be $5,335,688.49; however, we reverse that part of the decision allocating the losses utilizing the "all sums" theory, and judgment is hereby rendered ordering the allocation of the losses on the basis of each insurers' time on the risk and degree of risk assumed. Judgment is further rendered in favor of the defendants, Certain Underwriting Members of Lloyd's and Certain London Market Companies, finding that pursuant to the allocation method applied they do not owe any indemnity with regard to the Bayou Bonfouca or Pearl River sites. In connection with this judgment, the designation judgment allocating the losses at both sites to the policies in effect between April 11, 1969 and April 11, 1970, is hereby reversed. Finally, we deny the plaintiffs'/appellees' motion to strike assignment of error as moot. 2002 CA 0369: MOTION TO STRIKE DENIED; JUDGMENT REVERSED AND RENDERED. 2002 CA 0371: JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND RENDERED. 2002 CA 0372: JUDGMENT REVERSED. NOTES [1] Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court. [2] In addition to Norfolk Southern Corporation, the plaintiffs in this action are Norfolk Southern Railway Company, Norfolk and Western Railway Company, The Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and The Cincinnati, New Orleans, and Texas Pacific Railway Company. Except where reference to the specific entity is necessary for clarity, we will refer to the plaintiffs collectively as Norfolk. [3] The London Insurers refer to themselves in their answer more specifically as "Certain Underwriting Members of Lloyd's, London subscribing to certain policies of insurance issued to certain plaintiffs and at issue in plaintiffs' Fourth Amending Petition for Declaratory Judgment and for Damages, each for himself only and no other, and those London Market Insurance Companies listed in Exhibit A [of the answer], each for itself only and no other." Norfolk named numerous other insurance companies as defendants in its various petitions; however, by the time the matter proceeded to trial, the London Insurers were the only defendants remaining in the lawsuit. [4] Norfolk's fourth amending petition sought coverage for numerous environmental sites in Louisiana (3 sites), Tennessee (3 sites), Ohio (1 site), Georgia (4 sites), Virginia (7 sites), West Virginia (4 sites), Kentucky (1 site), South Carolina (2 sites), Florida (1 site), Illinois (2 sites), North Carolina (1 site) and Arkansas (1 site). The sites proceeded to trial either separately or in groups of sites located in the same state. These appeals deal only with the judgments concerning the Louisiana sites. [5] All judgments were designated final and appealable. [6] The Pearl River site was actually part of a larger tract that extended into Mississippi. The tract was originally purchased by the New Orleans and Northeastern Railroad (NO & NE) in 1882. NO & NE continued to own the property until 1969, when it was merged into plaintiff, The Alabama Great Southern Railroad Company. [7] ARCO owned Chemlink, as well as one-half of the land on which the large impoundment was situated in 1987. [8] Removal of the soils also involved removal of tree stumps, concrete, polymer sludges, and other items left over from operations of the chemical companies and cement company on the site. [9] The site actually cost a total of $10,969,682.16 to remediate; however, ARCO contributed a substantial portion of those costs, and PRWPC paid Norfolk and ARCO $500,000 each in connection with the remediation. [10] The EPA also alleged in the petition that the railroad had disposed of hazardous materials, or arranged for their disposal at the site. That theory appears to have been abandoned, and the evidence in the record indicates that the creosote brought into the site was delivered by barge. [11] The date of this fire is unclear. The EPA alleged in its petition that the fire occurred in 1972; however, the EPA reports discussing the fire set the date in 1970. At trial, Norfolk's witnesses asserted that the fire had occurred in 1972, despite the conflicting reports. On appeal, however, Norfolk contends that the fire actually occurred in 1970. The jury made no specific finding as to the date of the fire. [12] The London Insurers tried to have Norfolk's claims regarding the Bayou Bonfouca site severed from the trial of the Pearl River and Southern Shipbuilding sites until the underlying CERCLA action was resolved. The trial court denied this request, however. [13] The settlement was divided between the EPA, which received $11,700,000, and the LDEQ, which received $1,300,000. [14] With minor changes, this coverage grant remained constant throughout the policies. [15] Certain of these policies defined an "occurrence" as "an accident and/or happening or series of accidents and/or happenings arising out of one event." Other policies defined the term to mean "an accident and/or happening or series of accidents and/or happenings arising out of one event neither expected nor intended from the standpoint of the Assured." [16] Some of the policies placed these restrictions within the definition of "property damage," whereas others placed the restrictions in the exclusions section of the policy. [17] One policy extended from November 12, 1969 to November 12, 1972, and provided $5,000,000 in coverage above an underlying limit of $11,000,000. In addition, certain policies extended from July 26, 1973 to July 26, 1976 and June 26, 1973 to June 26, 1976. The lowest underlying limit under those policies was $16,000,000. [18] The minimum SIR per occurrence was $1,000,000 from April 11, 1969 to May 25, 1975; $1,500,000 from May 25, 1975 to July 11, 1982; $2,000,000 from July 11, 1982 to July 11, 1985; and $3,000,000 from December 31, 1985 to May 31, 1986. (P-673). [19] Norfolk's suit was for declaratory judgment and indemnity only. It was undisputed that the policies did not contain a duty to defend. (R. Vol.26, p. 5981). [20] Although the issue was not explicitly reserved in the coverage judgment, the trial court also retained jurisdiction over the issue of the application of the pollution exclusions contained in certain of the policies beginning in 1976 at a hearing on a motion in limine prior to the jury trial. [21] This judgment was designated final and appealable on March 28, 2002. [22] 2001 CW 0567 and 2001 CW 0778. [23] On March 28, 2002, the trial court designated this judgment final and appealable. [24] This ruling only applied to the trials concerning the three sites located in Louisiana. The London Insurers later attempted to have Virginia law applied to the remaining sites located in various states outside Louisiana. The trial court ultimately ruled that the substantive law of the state in which each environmental site was physically located would apply. That ruling is not presently before us. [25] 1998 CW 2015. [26] The policies between 1969 and 1982 were issued in favor of Southern Railway Company and its associated, affiliated, or controlled companies. The policies between 1982 and 1986 were issued in favor of Norfolk Southern Corporation, a Virginia corporation, which owns Norfolk and Western Railway Company and the Southern Railway Company, and their controlled and affiliated and/or subsidiary or associated companies. Norfolk and Portsmouth Belt Line Railroad Company was also named as an additional assured on some of these policies after 1982; however, this company is not a plaintiff in this matter. [27] Beginning in 1974, the policies also named Norfolk Southern Railway Company, which was incorporated under Virginia law in 1894, as an additional assured. Norfolk Southern Railway Company was later renamed Carolina and Northwestern Railway Company, and it merged into Southern Railway Company under that name in 1988. Southern Railway Company was subsequently renamed Norfolk Southern Railway Company in 1990. [28] In reaching its conclusion that Louisiana law should apply to this matter, the trial court relied, in part, on a belief that at least one of the defendants had its principal place of business in Louisiana and that one of the contracts was formed in Louisiana. Although an original defendant, Audubon Indemnity Company, did have its principal place of business in Louisiana, it had settled with the plaintiffs on July 10, 1998, prior to the trial court's ruling on this issue. Audubon was released from the litigation by a judgment signed January 14, 1999. Moreover, even if Audubon had remained in the litigation, the formation of one of numerous relevant insurance contracts in Louisiana does not rival the multiple contacts Virginia has with the parties and the transactions. [29] Specifically, the court considered the following factors: (1) the entire population of Livingston parish was effectively included in the class definition, with over 14% of the population having filed proofs of claim; (2) members of the plaintiffs' class had died or were subject to increasing medical problems with a bleak prognosis related to the contamination at the site; (3) Louisiana's public medical facilities must provide care for injuries arising out of the contamination at the site; and (4) the business reputation of Livingston parish had suffered as a result of its being the location of a CERCLA Superfund site. In re Combustion, Inc., 960 F.Supp. at 1068. [30] La. R.S. 30:2002. [31] The trial court did not address this issue. [32] With minor variations, this language is contained in all relevant policies. [33] We believe that our determination is also in line with the decisions of courts in other jurisdictions that have addressed the issue. See Chesapeake Utils. Corp. v. American Home Assurance Co., 704 F.Supp. 551 (D.Del.1989); Singer v. Lexington Ins. Co., 658 F.Supp. 341 (N.D.Tex.1986); W.R. Grace & Co. v. Hartford Accident and Indemnity Co., 407 Mass. 572, 555 N.E.2d 214 (1990). [34] We apply Virginia law only to the issue of late notice because the parties have failed to demonstrate an actual conflict between Louisiana and Virginia law with regard to any other issue. See Favaroth v. Appleyard, XXXX-XXXX, p. 4, (La.App. 4 Cir. 5/2/01), 785 So.2d 262, 265, writ denied, 01-1945 (La.11/9/01), 801 So.2d 375. [35] A written judgment silent as to an issue is construed as a rejection of the relief requested on that issue. Danzey v. Evergreen Presbyterian Ministries, 95-167, p. 3 (La.App. 3d Cir.6/7/95), 657 So.2d 491, 494. [36] All of the policies required immediate notice of the occurrence or claim, but qualified that requirement by establishing a monetary threshold triggering the requirement for notice. The lowest threshold was found in certain policies requiring that the notice be immediately provided regarding all incidents that the assured's claims-legal department valued at $250,000 or more. [37] The record indicates that a small number of residents may have complained of unpleasant odors emanating from the creosote facility. [38] The policies actually continued until May 31, 1986. [39] In an action on an insurance policy, the insured has the burden of proving facts that bring his claim within the coverage of the policy. Central Louisiana Elec. Co. Inc., 579 So.2d 981, 986, n. 11 (La.1991); Gandy v. United Services Auto. Ass'n, 97-1095, p. 6 (La.App. 5th Cir.10/14/98), 721 So.2d 34, 36, writ denied, 98-2836 (La.1/15/99), 736 So.2d 208. [40] Norfolk argues that the London Insurers have waived the right to challenge the verdict form on appeal because they did not properly object to the form in the trial court. A review of the record, however, demonstrates that the London Insurers properly preserved their right to challenge the verdict form. [41] Norfolk contends that the issue of pre-policy damage and apportionment of the damage was never presented to the jury for determination because the parties had stipulated that the issue would be reserved to the trial court for its determination in a subsequent bench trial. Interestingly, Norfolk originally argued just the opposite to the trial court during the bench trial on allocation. When the London Insurers attempted to raise the issue again at the allocation trial, citing their pending motion for judgment notwithstanding the verdict and new trial, Norfolk objected and claimed that the jury had already considered and rejected the London Insurers' argument. In any event, a review of the record does not reveal any such stipulation, and the London Insurers' numerous objections to the omission of the issue from the jury verdict form demonstrate the incorrectness of Norfolk's contentions. [42] The London Insurers had also challenged the validity of the jury verdict by asserting on appeal that the trial court had violated La. Code Civ. P. art. 1796 by communicating with the jurors after they had retired for deliberations without notifying the parties. Norfolk filed a motion with this court seeking to strike this assignment of error. Because we have decided that the jury's verdict was improper on other grounds, we need not address this issue. Therefore, Norfolk's motion to strike is denied as moot. [43] Norfolk argues that the issue of pre-existing damage is moot because of the allocation method chosen by the trial court. This argument overlooks the fact that damage must be covered before it can be allocated to a policy period. We have not yet addressed the issue of the amount of pre-existing damage; however, to avoid repetition, we will discuss this issue in the section on allocation below. [44] We apply Louisiana law to this issue because the London Insurers have failed to demonstrate an actual conflict between the laws of Louisiana and Virginia. Favaroth, 00-0359 at p. 4, 785 So.2d at 265. According to Morrow Corp. v. Harleysville Mutual Ins. Co., 110 F.Supp.2d 441, 448 (E.D.Va.2000), the Virginia Supreme Court has not determined which trigger, if any, it will apply in environmental damage cases. [45] The trigger of coverage is the event or condition that determines whether or not a policy responds to a specific claim. Cole v. Celotex Corp., 599 So.2d 1058, 1075, n. 50 (La.1992). The fact that a policy has been triggered means that there may be liability coverage under that policy, subject to the policy's terms, the application of any exclusions in the policy, and any other defenses the insurer may raise. Public Service Co. of Colorado v. Wallis and Cos., 986 P.2d 924, 938, n. 11 (Colo.1999). [46] See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), reh'g granted, in part, clarified, 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1981), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981), reh'g denied, 455 U.S. 1009, 102 S.Ct. 1649, 71 L.Ed.2d 878 (1982); South Carolina Ins. Co. v. Coody, 813 F.Supp. 1570, 1576 (M.D.Ga.1993). [47] See Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 523 F.Supp. 110 (D.C.Mass.1981), modified, 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). [48] See Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875, reh'g denied, 456 U.S. 951, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982); South Carolina Ins. Co. v. Coody, 813 F.Supp. 1570, 1576 (M.D.Ga.1993). [49] See American Home Prod. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485 (S.D.N.Y.1983), modified, 748 F.2d 760 (2d Cir.1984). [50] By contrast, Louisiana courts have often adopted the manifestation theory when addressing issues of coverage for property damage other than long-term environmental damage. See Oceanonics, Inc. v. Petroleum Distributing Co., 292 So.2d 190 (La.1974); St. Paul Fire and Marine Ins. Co. v. Valentine, 95-0649 (La.App. 1st Cir.11/9/95), 665 So.2d 43, writ denied, 95-2961 (La.2/9/96), 667 So.2d 534. [51] Norfolk no longer owned the Pearl River site property at the time the site was remediated; however, Norfolk did own the property during all periods in which contaminating activities occurred (1963 to 1974), as well as during all periods in which the insurance policies were triggered (1969 to 1974). The issue of the owned property exclusion was not raised in connection with the Bayou Bonfouca site. [52] See also Compass Ins. Co. v. Cravens, Dargan & Co., 748 P.2d 724, 730 (Wyo.1988); U.S. v. Conservation Chem. Co., 653 F.Supp. 152, 200 (W.D.Mo.1986). [53] Norfolk alleges that only $118,500.56 of the total of $5,335,688.49 expended by Norfolk at the site was connected to groundwater contamination. [54] 42 U.S.C.A. § 9607 [55] Again, we apply Louisiana law to this issue because the London Insurers have failed to demonstrate an actual conflict between the laws of Virginia and Louisiana. Just as in the issue of which coverage trigger applies, Virginia law is unsettled on the issue of allocation. See Morrow Corp. v. Harleysville Mutual Ins. Co., 101 F.Supp.2d 422, 427, n. 5 (E.D.Va. 2000). In that case, a Virginia federal court speculated that Virginia would employ a pro rata allocation approach. In doing so, the court cited with the approval the Colorado case of Public Service Co. of Colorado v. Wallis and Cos., 986 P.2d 924 (Colo.1999) in which such an approach was employed. The Morrow court acknowledged, however, that it was not called on to decide that issue at the time. By contrast, Norfolk has cited two cases purportedly applying Virginia law (one from Virginia and one from Florida) that allegedly hold that Virginia would apply the "all sums" method; however, neither of these cases is published, and such cases are not to be cited or used as precedent in any other matter. Uniform Rules-Courts of Appeal Rule 2-16.3; L.M. v. J.P.M., 97-1215, p. 4 (La.App. 5th Cir.5/13/98), 714 So.2d 809, 811, n. 5, writ denied, 98-1615 (La.9/25/98), 725 So.2d 487. [56] The coverage grant has been cited many times and provides in part that the London Insurers will indemnify Norfolk for "all sums" due to "property damage...arising out of occurrences happening during the policy period." [57] We have already determined that the policies do not provide coverage for pre-existing damage. [58] For purposes of this opinion, we accept the amounts alleged by Norfolk as the ultimate net loss it sustained for each site. [59] The policies run for one-year intervals from April 11, 1969 to April 11, 1972. Additional policies run from April 11, 1972 to April 11, 1973, and April 11, 1972 to April 11, 1975. Each policy has an SIR of $1,000,000. [60] Indeed, Norfolk's own allegations about the date of the fire have changed from the time of trial to the appeal. [61] The monthly average is actually $42,013.295. All future calculations will be made using this extended figure. [62] Although Ducre suggests that the total judgment should be divided by the number of years in order to determine a per year judgment amount, we have chosen to calculate a per month judgment because of the specificity of the information that we have. As the court noted in Society of the Roman Catholic Church, 26 F.3d at 1366-1367, such allocation methods are useful when more specific information is not available. In this case, however, we do have more specific information with which we may make a more precise allocation. [63] We are aware that the large surface impoundment at this site resulted from the levee constructed in 1971 to prevent the contaminated wastewaters from leaving the site. An argument could be made that the costs for remediating that portion of the site should only be allocated to the policy periods from 1971. We reject this approach, however, because the evidence in the record is clear that the damage to the area that later became this impoundment, including the soil contamination and other environmental impacts, had begun in 1963, and continued throughout all periods that the facility was in operation.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2156815/	11 Cal.App.3d 144 (1970) 89 Cal. Rptr. 625 CALIFORNIA STATE COUNCIL OF CARPENTERS et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; STROM DRYWALL CONTRACTORS, INC., et al., Real Parties in Interest. Docket No. 10189. Court of Appeals of California, Fourth District, Division One. September 8, 1970. 149 COUNSEL Levy & Van Bourg, Abe F. Levy and Howard Berman for Petitioners. No appearance for Respondent. Richard A. Perkins and Dudley Gray for Real Parties in Interest. OPINION WHELAN, J. By their petition for a writ of prohibition, California State Council of Carpenters and its Orange County subsidiary (the union) challenge the jurisdiction of the Superior Court of Orange County (respondent court) to entertain and try an action there pending, #167366, brought by real parties in interest Strom Drywall Contractors and others (Strom) as plaintiffs against the union and others. The complaint filed in action #167366 alleges that Strom is a party to a collective bargaining agreement between the union and California Drywall Contractors Association, of which Strom is a member, and which is named as a defendant. The agreement covers all members of the union engaged in the drywall industry within the State of California; its term is from August 1, 1968, to and including July 31, 1971. The complaint further alleges the inclusion within the agreement of the following provisions: "ARTICLE V "STRIKES, LOCKOUTS "... The Union ... shall have the right to withdraw or refuse to refer men with respect to any Contractor who has ... violated the prohibition against ... payment of piece rates or bonuses specified in this Agreement.... The withdrawal or refusal to refer men under the conditions specified in this Article shall not be deemed a violation of this Agreement. Any Contractor who believes that the Union has violated the provisions of this Agreement by withdrawing or refusing to furnish men as specified herein must exhaust the grievance and arbitration remedies provided in this Agreement." The contract provided that there should not be any right to strike except as provided in Article V. Article VII of the contract provided that the rates of compensation should be the hourly rates fixed by the contract, with some leeway for workmen 150 of exceptional skill. Compensation based upon piecework bonuses, units of production or work quotas are forbidden. Article VIII provided in part: "Section 1. Subject to the exceptions provided for in Article V of this Agreement, any dispute, grievance or question concerning the application or interpretation of this Agreement shall be determined in accordance with the provisions of this Article and the rules and procedures of the Joint Adjustment, Joint Arbitration and Joint Appeals Boards as they may be amended from time to time. "Any grievance or dispute may be presented to the Joint Adjustment Board.... ".... .... .... .... ... "Wherever the Union has the right pursuant to the terms of this Agreement to withdraw or refuse to refer men such right shall co-exist with the right to proceed under any stage provided for under the provisions of this Article. ".... .... .... .... ... "Section 2.... ".... .... .... .... ... "j. The decision of the Joint Adjustment Board Panel, the Joint Appeals Board or the Joint Arbitration Board shall be final and binding upon the parties to this Agreement and shall have the effect of a legal judgment. The impartial arbitrator shall not have the authority to modify, vary, change, add to, or remove any of the terms or conditions of this Agreement." Article XXI repeated the prohibition against compensation on a piecework basis. It then provided that should the Joint Adjustment Board, upon which the union and the employers have equal representation, find a violation of that provision, it should assess liquidated damage for each infraction, stating: "(6) ... The parties recognize and acknowledge that proper payment of wages is essential to the maintenance of the Agreement, the health and safety of workmen, and fairness to all employees in the industry, and that it would be extremely difficult if not impracticable to fix the actual expense and damage to the workmen and the industry from any failure to pay wages in accordance with the provisions of this Agreement. Therefore, the amount of damage resulting from any such failure shall be presumed to be the sum of Two Hundred and Fifty Dollars ($250.00) for each infraction for each employee, for each week in which the infraction occurs...." 151 The complaint in the court below alleged that the provision against piecework and for an hourly rate of wage as fixed by the contract had been waived and that petitioners should be estopped to attempt to enforce it; that the provision is contrary to public policy and void; that the provisions for permitting an award of liquidated damages was in fact for a penalty; and that the petitioners have failed and been unable to furnish workmen in adequate number and should not be permitted to enforce those provisions so long as they fail to perform their obligation to furnish workmen. The complaint alleges additionally: "On and after June 2, 1969, plaintiffs have repeatedly called on the Unions to refer competent employees to them for work, but the Unions have always replied that they have no employees available to refer, and none have been referred. Also, a number of plaintiffs' employees who did report for work June 2, 1969, engaged in a slowdown and refused to perform a full day's work at contract hourly wage rates. "The result of the foregoing developments is this: competent employees in sufficient numbers are not willing to work at contract hourly wage rates; the Union is evidently unable or unwilling to comply with its contractual obligation to furnish employees as needed; ..." After a hearing, a preliminary injunction issued by which the union was enjoined from: "(a) Threatening, attempting, or committing any act, or testifying before the `Drywall Joint Adjustment Board' referred to in the `Drywall Master Agreement,' a copy of which is attached to the complaint herein, or filing any declaration or application before said Board, in any proceeding against any of the plaintiffs herein arising out of any alleged violation of any of the paragraphs of Article XXI of said agreement, except Paragraphs 1 and 3 thereof; or "(b) Withdrawing any employee from, or refusing to furnish or refer any men to, any of the plaintiff employers for any reason arising out of a claim that the plaintiff employer has violated the so-called prohibition against piecework, which is contained in Section 1 of Article XIV of said agreement; or "(c) Taking any action in furtherance of the processing or collection of any now existing or outstanding penalties or orders made to this date by said `Drywall Joint Adjustment Board' against any of the plaintiffs herein, which penalties or orders arose out of actual or alleged violations of any and all the paragraphs of Article XXI of the Drywall Master Agreement except paragraphs 1 and 3, and any actual or alleged violations of the so-called prohibition against piecework, which is contained in Section 1 of Article XIV of said agreement." 152 The petition alleges, which allegation is undenied, that Strom and California Drywall Contractors Association are employers subject to the jurisdiction conferred by statute on the National Labor Relations Board. The response to the petition for prohibition sets up the matters alleged in the complaint in action #167366; among other additional matters, it alleges: "(c) The procedure of said purported arbitration tribunal is unfair in that counsel for the unions, whose accusations of contract violations are prosecuted against employers before said tribunal, also acts as attorney for said tribunal and has influenced said tribunal to accept his contention that the unions' noncompliance with their contractual obligation to supply competent workmen in sufficient number on request as needed is immaterial to a proceeding against an employer, so that any employer who is forced to pay contractually-excessive wages is automatically subject to the imposition of penalties as a contract violator, regardless of the pressures which he may be under as a result of the unions' noncompliance, the employees' wage demands, and his liability to others for performance of construction contracts ... ".... .... .... .... . "The instant petition for writ of prohibition ostensibly claims jurisdiction for other tribunals. Actually, however, its object is to take the controversy out of the rule of law entirely and subject it to union dictates, either directly imposed by means of economic coercion or (by a kind of elegant variation) registered by a private tribunal which cannot furnish effective relief and which in any event the unions control to their satisfaction." If the content of the preliminary injunction reflects the purpose of the action in which it was granted, the plaintiffs therein have sought to prevent on the one hand a union-directed work stoppage or strike for a violation of the contract provisions against piecework and wage bonuses based on production, and on the other hand to prevent the operation of the procedures for arbitration of alleged violations of those provisions and for awards of damages for such violations. (1) Prohibition is a proper remedy to restrain the superior court from hearing or taking proceedings in a civil action to enjoin the enforcement of certain provisions relating to wages of a collective bargaining agreement, the parties to which are engaged in interstate commerce. (Heavy, Highway Bldg. & Constr. Teamsters Committee v. Superior Court, 203 Cal. App.2d 591 [21 Cal. Rptr. 840].) (2) In those areas of labor relations that are the subject of federal preemption, a writ of prohibition will issue to prevent a state court from enjoining union conduct which falls within the preempted area. (Directors 153 Guild of America, Inc. v. Superior Court, 64 Cal.2d 42 [48 Cal. Rptr. 710, 409 P.2d 934].) The policy in this state is to favor arbitration. (Firestone Tire & Rubber Co. v. United Rubber Workers, 168 Cal. App.2d 444, 451 [335 P.2d 990]; Myers v. Richfield Oil Corp., 98 Cal. App.2d 667, 671 [220 P.2d 973]; United States Plywood Corp. v. Hudson Lbr. Co., 124 Cal. App.2d 527 [269 P.2d 93]; Forrest v. Hotel Conquistador, Inc., 193 Cal. App.2d 503, 508 [14 Cal. Rptr. 349].) (3) Both federal and California law favor arbitration as the means to achieve industrial peace. (Posner v. Grunwald-Marx, Inc., 56 Cal.2d 169, 180 [14 Cal. Rptr. 297, 363 P.2d 313]; Leon Handbag Co. v. Local 213, 276 Cal. App.2d 240, 242-243 [81 Cal. Rptr. 63].) (4) Where an employer is engaged in interstate commerce, the issue of the arbitrability of the dispute in question must be resolved by the application of the substantive federal law fashioned by the federal courts under the mandate of section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (1964). (Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95 [7 L.Ed.2d 593, 82 S.Ct. 571]; Butchers' Union Local 229 v. Cudahy Packing Co., 66 Cal.2d 925, 930-931 [59 Cal. Rptr. 713, 428 P.2d 849]; Leon Handbag Co. v. Local 213, supra, 276 Cal. App.2d 240, 241-242.) (5) Federal law "... commands a state court to order arbitration unless, after resolving all doubts in favor of that procedure, it can determine `with positive assurance' that the dispute is not covered by the arbitration clause." (Butchers' Union Local 229 v. Cudahy Packing Co., supra, at p. 927.) The federal policy favoring arbitration of labor disputes goes so far as to declare that under a collective bargaining agreement providing for arbitration of grievances, where a right to strike is not specifically reserved to the union for claimed violation of an arbitrable contract term, a condition will be implied that there is no right to strike, and a strike called to enforce compliance with the term allegedly violated will give rise to a cause of action for damages enforceable in the state courts. (Local 174, Teamsters, etc. v. Lucas Flour Co., supra, 369 U.S. 95 [7 L.Ed.2d 593, 82 S.Ct. 571].) In the case last cited the court stated: "[I]n a case such as this, incompatible doctrines of local law must give way to principles of federal labor law. We further hold, however, that application of such principles to this case leads to affirmance of the judgment before us. 154 "It was apparently the theory of the Washington court, that, although Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, requires the federal courts to fashion, from the policy of our national labor laws, a body of federal law for the enforcement of collective bargaining agreements, nonetheless, the courts of the States remain free to apply individualized local rules when called upon to enforce such agreements. This view cannot be accepted. The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy. ".... .... .... .... . "The collective bargaining contract expressly imposed upon both parties the duty of submitting the dispute in question to final and binding arbitration. In a consistent course of decisions the Courts of Appeals of at least five Federal Circuits have held that a strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement. The National Labor Relations Board has reached the same conclusion. W.L. Mead, Inc., 113 N.L.R.B. 1040. We approve that doctrine. To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbitral process as a substitute for economic warfare. See United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409." (82 S.Ct. at pp. 576, 577-578.) The scope of the policy was enlarged in Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 [26 L.Ed.2d 199, 90 S.Ct. 1583], which held that notwithstanding the Norris-La Guardia Act and the court's prior holding in Sinclair Refining Co. v. Atkinson, 370 U.S. 195 [8 L.Ed.2d 440, 82 S.Ct. 1328], the United States District Court, at the suit of an employer who desired to arbitrate a dispute, could enjoin a strike called in violation of the compulsory arbitration provisions of the collective bargaining agreement, which provided: "`Matters subject to the procedures of this Article shall be settled and resolved in the manner provided herein. During the term of this Agreement, there shall be no cessation or stoppage of work, lock-out, picketing or boycotts, except that this limitation shall not be binding upon either party hereto if the other party refuses to perform any obligation under this Article or refuses or fails to abide by, accept or perform a decision or award of an arbitrator or board.'" 155 The power of the state courts to grant injunctive relief in such a situation had already been recognized. (McCarroll v. L.A. County etc. Carpenters, 49 Cal.2d 45 [315 P.2d 322]; cert. den. 355 U.S. 932 [2 L.Ed.2d 415, 78 S.Ct. 413].) In the Boys Market case, supra, the court said: "As we have previously indicated, a no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. See Textile Workers Union v. Lincoln Mills, supra, at p. 455. Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated.... "Even if management is not encouraged by the unavailability of the injunction remedy to resist arbitration agreements, the fact remains that the effectiveness of such agreements would be greatly reduced if injunctive relief were withheld. Indeed, the very purpose of arbitration procedures is to provide a mechanism for the expeditious settlement of industrial disputes without resort to strikes, lock-outs, or other self-help measures. This basic purpose is obviously largely undercut if there is no immediate, effective remedy for those very tactics which arbitration is designed to obviate.... ".... .... .... .... . "... We deal only with the situation in which a collective bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance." Strom's alleged cause of action in the court below should be examined preliminarily in its relationship to the statutory plan to promote compliance with voluntary agreements to arbitrate disputes between the contracting parties. Code of Civil Procedure section 1281.2 provides in part as follows: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement." If, therefore, the union had filed with respondent court a petition under Code of Civil Procedure section 1281.2 to compel arbitration, Strom could 156 successfully have resisted such petition only by showing the existence of a waiver of the right to compel arbitration or that the agreement containing the arbitration provisions is itself subject to revocation. (6) A party to an agreement for arbitration may not, by taking the first step into court, obtain an injunction against the arbitration process unless he shows the existence of one of the grounds upon which he might have resisted a petition under Code of Civil Procedure section 1281.2 to compel arbitration. (7) A party to a collective bargaining contract calling for arbitration of disputes can waive the right to arbitration and it is for the court to determine whether there has been such waiver. (Sawday v. Vista Irr. Dist., 64 Cal.2d 833, 836 [52 Cal. Rptr. 1, 415 P.2d 816]; Local 659, I.A.T.S.E. v. Color Corp., 47 Cal.2d 189, 194 [302 P.2d 294]; Grunwald-Marx, Inc. v. Los Angeles Joint Board, Amalgamated Clothing Workers, 192 Cal. App.2d 268, 277 [13 Cal. Rptr. 446]; Squire's Dept. Store, Inc. v. Dudum, 115 Cal. App.2d 320 [252 P.2d 418].) It has not been any part of Strom's contention that the union has waived its right to proceed under the arbitration provisions of the agreement. Its claim of waiver is only as to the clauses prohibiting compensation on a piecework basis. Nor has Strom contended that the union has authored or inspired a strike. Whether, if the union elected to resort to its right to strike specifically reserved to enforce the clauses against piecework, it would thereby waive its right to have the question of violations of those clauses submitted to arbitration we do not attempt to pass upon. Strom has not claimed that the collective bargaining agreement is subject to revocation, but seeks rather to enforce the no-strike provisions of the contract, claiming that a strike to enforce the clauses prohibiting piecework would be illegal because such clauses are illegal. (8) Where the basic contract is illegal, an award of arbitrators thereunder will be set aside. (Loving & Evans v. Blick, 33 Cal.2d 603 [204 P.2d 23].) The alleged illegality of a contract provision against piecework and compensation based upon production is a main base of plaintiffs' alleged cause of action. In making such claim, however, plaintiffs have not claimed the entire contract to be invalid. Our courts have held that the basis of the arbitral authority is a legal contract, and that a contract wholly illegal in its inception can confer no jurisdiction on arbitrators to enforce the contract terms. (Loving & Evans v. 157 Blick, supra, 33 Cal.2d 603, 610; Franklin v. Nat C. Goldstone Agency, 33 Cal.2d 628, 632 [204 P.2d 37].) In Loving & Evans v. Blick, supra, the court said, at page 610: "[T]he power of the arbitrator to determine the rights of the parties is dependent upon the existence of a valid contract under which such rights might arise. [Citations.] In the absence of a valid contract no such rights can arise and no power can be conferred upon the arbitrator to determine such nonexistent rights. The question of the validity of the basic contract being essentially a judicial question, it remains such whether it is presented in a proceeding `for an order directing ... arbitration' under section 1282 of the Code of Civil Procedure or in a proceeding `for an order confirming' or `vacating an award' under sections 1287 and 1288 of said code. If it is presented in a proceeding under said section 1282 and it appears to the court from the uncontradicted evidence that the contract is illegal, the court should deny the petition `for an order directing the parties to proceed to arbitration.' If it is presented in a proceeding under said section 1287 or 1288 and similar uncontradicted evidence is offered, the court should deny confirmation and should vacate any award granting relief under the illegal contract upon the ground that the arbitrator exceeded his powers in making such award." (9) In the preliminary stages arbitration under an illegal contract may not be ordered by the court. (Bianco v. Superior Court, 265 Cal. App.2d 126 [71 Cal. Rptr. 322].) There is no reason to doubt that a party to such illegal agreement might obtain injunctive relief against threatened arbitration proceedings. (10) We are of opinion that illegality in a contract containing a provision for arbitration, in order to vitiate such provision, must be such as renders the entire contract illegal and unenforceable; and that a claim of illegality of one of the incidental clauses of the contract that falls short of affording ground for revocation of the contract is itself subject to arbitration. (11) The jurisdiction to pass upon the question of the illegality of a subordinate provision of the contract does not permit the making of an award the carrying out of which would require or permit the commission of a crime or an illegal act. (Black v. Cutter Laboratories, 43 Cal.2d 788 [278 P.2d 905]; International Union, U.A.A. & A.I. Workers v. W.M. Chace Co., 262 F. Supp. 114, 117.) In Black v. Cutter Laboratories, supra, 43 Cal.2d 788, an award of arbitrators made against an employer under a collective bargaining agreement was set aside because, as stated by the court: "[H]ere the very award itself is illegal in that it orders reinstatement as an employe of one whose dedication 158 to and active support of Communist principles and practices stands proved and unchallenged in the record. [P. 800.] ".... .... .... .... ... "... A private employer, particularly one largely engaged in supplying manufactured products to the government, to its armed forces, and to retailers for distribution through hospitals and doctors to the public at large, should not be required by state action through its courts [citations] to retain in or restore to employment a person who would not be entitled to state employment and who is known to have dedicated herself to the service of a foreign power and to the practice of sabotage to the end of overthrowing our government." [P. 804.] Thus in Black v. Cutter Laboratories, supra, it must have been within the competence of the arbitrators to refuse reinstatement because the discharged employee was engaged in communist activity. Pac. Fire etc. Bureau v. Bookbinders' Union, 115 Cal. App.2d 111 [251 P.2d 694], has been cited as holding that the question of the illegality of a contract provision may not be the subject of arbitration. The case is not authority for that proposition. It held only that the question of the illegality of the contract provision was not among the issues submitted to the arbitrator, and that the National Labor Relations Board had exclusive jurisdiction of what are unfair labor practices under the National Labor Relations Act. (12) The question whether there is illegality in a subordinate clause of a contract containing provisions for mandatory arbitration is only a question of law. Questions of law may be decided by arbitration. (Lang v. Badger, 157 Cal. App.2d 345 [320 P.2d 906]; Morris v. Zuckerman, 257 Cal. App.2d 91 [64 Cal. Rptr. 714]; Crofoot v. Blair Holdings Corp., 119 Cal. App.2d 156, 185 [260 P.2d 156]; Olivera v. Modiano-Schneider, Inc., 205 Cal. App.2d 9, 14 [23 Cal. Rptr. 30].) In Morris v. Zuckerman, supra, 257 Cal. App.2d 91, 95, the court rejected the contention that a refusal to arbitrate was proper because the matter sought to be arbitrated, viz.: the right to partition real property, "as a matter of law ... would not affect the future development of the property ..." In Daly v. Komline-Sanderson Engineering Corp., 40 N.J. 175 [191 A.2d 37], there were explicitly involved the questions whether an award of attorney's fees made by arbitrators included an allowance of fees in obtaining a loan from a federal agency in excess of an amount permitted by the 159 rules of that agency, and whether the award included an allowance for services in a matter in which the attorney was disloyal to his client. The resolving of those issues of legality was held to be within the competence of the arbitrators. (13) The question whether there has been a violation of a no-strike clause is subject to arbitration. (Charles J. Rounds Co. v. Joint Council of Teamsters, 8 Cal. App.3d 830, 833 [86 Cal. Rptr. 825].) (14) Arbitrators may give equitable relief. (Straus v. North Hollywood Hospital, Inc., 150 Cal. App.2d 306, 311 [309 P.2d 541].) They may pass upon questions of the right to equitable relief such as rescission. (Atlas Floor Covering v. Crescent House & Garden, Inc., 166 Cal. App.2d 211, 219 [333 P.2d 194].) (15) Arbitrators may base their decisions on broad principles of justice and equity and every intendment of validity must be given the award. (Grunwald-Marx, Inc. v. L.A. Joint Board, 52 Cal.2d 568, 589 [343 P.2d 23]; Case v. Alperson, 181 Cal. App.2d 757, 761 [5 Cal. Rptr. 635].) They may decide whether there has been a waiver of a certain provision of a contract. (Grunwald-Marx, Inc. v. L.A. Joint Board, supra, 52 Cal.2d 568, 576.) (16) The question whether the union has waived any provision of the contract other than the provision for arbitration itself is such a dispute as is subject to the arbitration procedure and within the competence of the arbitrators to decide. It is equally an arbitrable dispute and one within the competence of the arbitrators to decide whether the union is estopped to attempt to enforce the clauses prohibiting piecework. (17) We proceed, however, to consider whether the provision against compensation based upon piecework is illegal or against the policy of the overall national plan for the promotion of collective bargaining to further industrial peace, and conclude that it is not. Scofield v. N.L.R.B., 394 U.S. 423 [22 L.Ed.2d 385, 89 S.Ct. 1154], explicitly recognizes that the elimination of piecework pay systems is an historic and legitimate union objective which does not violate the Taft-Hartley Act. In Scofield, a union rule forbade union members to exceed a certain daily ceiling of compensation for piecework and provided a fine for violations. The rule was upheld. That ceiling was fixed by the collective bargaining agreement. The court noted: "The company has repeatedly sought an 160 agreement eliminating the piecework ceiling, an agreement which, had it been obtained, unquestionably would have been violated by the union rule. But the company could not attain this. Although, like the union, it could have pressed the point to impasse, Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 209-215, 85 S.Ct. 398, 402-405, 13 L.Ed.2d 233 (1964), followed by strike or lockout, it has never done so. Instead, it has signed contracts recognizing the ceiling, has tolerated it, and has cooperated in its administration by honoring requests by employees to bank their pay for over-ceiling work. We discern no basis in the statutory policy encouraging collective bargaining for giving the employer a better bargain than he has been able to strike at the bargaining table. [89 S.Ct. at p. 1159.] ".... .... .... .... ... "... Since Congress has addressed itself to the problem specifically and left a broad area for private negotiation, there is no present occasion for the courts to interfere with private decision. Indeed, there is no claim before us that the rule violates § 8 (b) (6). If the company wants to require more work of its employees, let it strike a better bargain. The labor laws as presently drawn will not do so for it. "This leaves the possible argument that because the union has not successfully bargained for a contractual ceiling, it may not impose one on its own members, for doing so will discriminate between members and those others who are free to earn as much as the contract permits.... [89 S.Ct. at p. 1160.] ".... .... .... .... ... "The union rule here left the collective bargaining process unimpaired, breached no collective contract, required no pay for unperformed services, induced no discrimination by the employer against any class of employees, and represents no dereliction by the union of its duty of fair representation. In light of this, and the acceptable manner in which the rule was enforced, vindicating a legitimate union interest, it is impossible to say that it contravened any policy of the Act. "We affirm, holding that the union rule is valid and that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8 (b) (1) (A)." [89 S.Ct. at p. 1161.] The damages awarded may be pursuant to a provision for liquidated damages if the requirements of section 1741 Civil Code are met. (18) "[A] valid agreement may be made for the payment of liquidated damages, whereas an agreement for the payment of a penalty is invalid. 161 (19) Under the law generally the parties are allowed to contract for liquidated damages if it is necessary to do so in order that they may know with reasonable certainty the extent of liability for a breach of the agreement. Where the parties exercise their business judgment in providing that it is impracticable and extremely difficult to fix the damages which may result from the defendant's failure to render its service such a provision is not controlling as to the actual difficulty in fixing damages, although it is entitled to some weight." (Better Food Markets, Inc. v. American Dist. Tel. Co., 40 Cal.2d 179, 184 [253 P.2d 10, 42 A.L.R.2d 580].) (20) In determining under California law the question whether it is impracticable or extremely difficult to fix the actual damage (Civ. Code, § 1671), the trier of fact: "... should place itself in the position of the parties at the time the contract was made and should consider the nature of the breaches that might occur and any consequences that were reasonably foreseeable." (Better Food Markets, Inc. v. American Dist. Tel. Co., 40 Cal.2d 179, 185 [253 P.2d 10, 42 A.L.R.2d 580].) (See also McCarthy v. Tally, 46 Cal.2d 577, 583 [297 P.2d 981].) In Maisel v. Sigman, 123 Misc. 714 [205 N.Y.S. 807, 821], a collective bargaining agreement contained a clause fixing liquidated damages of $3,000 for a breach by the employer, which was awarded by the arbitrator provided for by the agreement. Of the employer's claim the liquidated damage clause was illegal, the court said: "The provisions of the nineteenth clause of the agreement fixing $3,000 as the amount of the liquidated damages in the event of a breach by plaintiff of the contract or agreement do not create a new liability on the part of the employer. They but liquidate a liability implied by law. Nor is there anything in that clause to exempt the union from its corresponding liability for breach of the agreement on its part. The only difference in the position of the two parties is that in one case the damage, being impossible of computation, is liquidated by agreement, while in the other the damage is left to be proven by computation. The parties have a right to enter into such an agreement, and the same is valid and binding upon them in the light of the surrounding circumstances." (21) Unlike California law, the law of the United States allows recovery of liquidated damages upon mere proof of an explicit contractual undertaking to that effect. (Sun Printing & Publishing Assn. v. Moore, 183 U.S. 642 [46 L.Ed. 366, 22 S.Ct. 240]; Byron Jackson Co. v. United States, 35 F. Supp. 665, 667.) (22) There is no federal policy against the liquidated damages provision in labor contracts. Under the Fair Labor Standards Act, in actions to recover unpaid minimum wages or unpaid overtime compensation, an employee 162 is entitled to recover an additional equal amount as liquidated damages. (29 U.S.C. § 216(b).) The Supreme Court has stated that provision is not penal, but constitutes compensation for retention of a workingman's pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages. (Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697 [89 L.Ed. 1296, 65 S.Ct. 895].) Their assessment does not violate due process. (Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 [86 L.Ed. 1682, 62 S.Ct. 1216].) (23) Accordingly, we hold that unless it should appear as a matter of law that the provision for liquidated damages does not come within the criteria of section 1671 Civil Code, the arbitrators, rather than the court, in the first instance should pass upon the question whether it was impracticable or extremely difficult to fix the actual damages arising from a breach of the condition against compensation for piecework. It cannot be said from the nature of the case that as a matter of law the criteria of Civil Code section 1671 have not been met. (See Dyer Bros. Golden West Iron Works v. Central Iron Works, 182 Cal. 588 [189 P. 445]; Anaheim Citrus Fruit Assn. v. Yeoman, 51 Cal. App. 759 [197 P. 959].) The arbitrators may award damages against the union for breach of a contract obligation. (Grunwald-Marx, Inc. v. L.A. Joint Board, 52 Cal.2d 568, 590.) (24) If the arbitration provisions permit the submission of the employer's grievances, the arbitrators may award damages in his favor for breach of the contract. (Drake Bakeries, Inc. v. Local 50, American Bakery, 370 U.S. 254 [8 L.Ed.2d 474, 82 S.Ct. 1346].) (25) By the contract under scrutiny, any grievance or dispute may be submitted for arbitration. It is clear from Article VIII, section 1(g) of the contract under consideration that a money award may be made against either party. The crux of the controversy between Strom and the union may be whether the claimed failure of the union to furnish an adequate supply of workmen has resulted from the union's decision to act upon the right reserved in the first two sentences of Article V of the contract because of Strom's possible anterior violation of the prohibition against piecework, or whether there is merit in Strom's claim that the method of compensation by piecework has been forced upon the employers by the union's failure to supply workmen. (26) It is clear that the resolution of such a problem is one subject to the *163 arbitration procedure and within the competence of the arbitrators to decide. It is of the very nature of the arbitration process that it should not be halted upon the claim the arbitrators will make an illegal award. It is only where grounds exist under Code of Civil Procedure section 1281.2 for the denial of arbitration that the court should interfere with the arbitration process before it has gotten under way. There will then remain the question whether the award that might be made should be affirmed. (27) Apart from the specified grounds for denying a petition to arbitrate, any matter that might be thought to be cause to halt the arbitration process should properly be urged against the affirmance of the award when made.[1] (28) The quoted provision that the arbitrator shall not have authority to modify, vary, change, add to or remove any of the terms and conditions means only that the arbitrator is not to make a new contract for the parties. It cannot have the effect of divesting the arbitrator of discretion and of the duty and power to make decision. The suggestion in response to the petition for writ of prohibition that the arbitration board was subject to the influence of the union's attorney is unsubstantiated.[2] Nothing appears in the record before us to impeach the impartiality of any member of the arbitration board. (See Cecil v. Bank of America, 107 Cal. App.2d 38 [236 P.2d 408].) Let a peremptory writ of prohibition issue as prayed for. Brown (Gerald), P.J., and Ault, J., concurred. A petition for a rehearing was denied October 2, 1970, and the petition of the real parties in interest for a hearing by the Supreme Court was denied November 5, 1970. NOTES [1] "[I]f the court has erred in wrongfully construing the arbitration clause of the contract, or in assuming that the litigation grows out of that contract, this petitioner is afforded a complete remedy by appeal from the judgment which may subsequently be rendered upon application to affirm whatever award the arbitrator may make." (Snyder v. Superior Court, 24 Cal. App.2d 263, 271 [74 P.2d 782].) [2] At the hearing on the application for preliminary injunction, the trial judge stated: "[A]s far as the determination of this proceeding is concerned you can assume that I feel that all is fair and square and equal and on the up and up and that there's no undue influence or improper advice or anything of that nature and that the arbitration agreement is at least for the purpose of this proceeding equitably written."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2583874/	83 A.D.2d 507 (1981) Alvin Dworman et al., Respondents, v. Gerald Lee et al., Defendants, and Arthur Andersen & Co., Appellant Appellate Division of the Supreme Court of the State of New York, First Department. July 9, 1981 Concur Murphy, P. J., Birns, Ross and Markewich, JJ. In this action by plaintiffs for damages, we are of the opinion that Special Term was in error in denying motion of defendant Arthur Andersen & Co. to dismiss the complaint. Although the plaintiffs alleged that they became sureties under an international construction contract executed in 1977 in reliance upon the consolidated financial statements prepared by defendants for the years 1973-1976, none of the causes of action contained in the supplemental complaint submitted to Special Term take this appeal outside of the rule enunciated in Ultramares v Touche (255 N.Y. 170), which held that accountants may be liable in negligence only to persons with whom they are in privity. Plaintiffs allege five causes of action. All are insufficient. The third, fourth and fifth causes of action charge defendants with negligence, and the first and second with fraud. Notwithstanding the nomenclature of the first and second causes sounding in fraud and the language in the third cause of action that defendants "knew or should have known the falsity of their representations", we find that the first, second and third causes essentially plead negligence. These causes are not transformed into causes of action in fraud merely by pleading conclusory allegations of fraud. Contrary to the view expressed by Special Term, there can be no doubt that the rule in Ultramares remains authoritative, as it was in fact reaffirmed in White v Guarente (43 N.Y.2d 356). There, the Court of Appeals simply allowed limited partners of the limited partnership which had contracted with defendant accountant to sue for alleged negligence by the accountant. The court (pp 361, 363) stressed that the limited partners were not members of an indeterminate class dealing with the limited partnership in reliance on the audit, but were members of "a settled and particularized class among the members of which the [accountants'] report would be circulated for the specific purpose of fulfilling the limited partnership agreed upon arrangement". By contrast, plaintiffs in their own complaint concede they are merely members of the public relying on the financial statements certified by Andersen. It is also to be noted that Federal securities law has no impact on plaintiffs' situation as their transactions with the concern whose obligations they guaranteed involved no issuance or sale of securities. Further, accountants' liability for negligence to third-party members of the public under Federal securities law is extremely doubtful (see Ernst & Ernst v Hochfelder, 425 US 185).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2580820/	559 F. Supp. 2d 740 (2008) MASS ENGINEERED DESIGN, INC. and Jerry Moscovitch, Plaintiffs v. ERGOTRON, INC., Dell Inc., CDW Corporation, and Tech Data Corporation, Defendants. No. 206 CV 272. United States District Court, E.D. Texas, Marshall Division. March 13, 2008. 743 Max Lalon Tribble, Jr., Stephen Frederick Schlather, Susman Godfrey LLP, Gregory Loren Maag, Conley Rose, Houston, TX, Andrew Thompson Gorham, Charles Ainsworth, Parker Bunt & Ainsworth, Deborah J. Race, Otis W. Carroll, Jr., Ireland Carroll & Kelley, Robert Christopher Bunt, Robert M. Parker, Parker, Bunt & Ainsworth, P.C., Tyler, TX, Elizabeth L. Derieux, Sidney Calvin Capshaw, III, Brown McCarroll, Longview, TX, Justin Adatto Nelson, Susman Godfrey, LLP, Seattle, WA, for Plaintiffs. Kurt J. Niederluecke, Lora Mitchell Friedemann, Matthew Graham, Fredrikson & Byron PA, Minneapolis, MN, Roger Brian Craft, Eric Hugh Findlay, Ramey & Flock, Tyler, TX, Brian Alden Dietzel, Wilson Sonsini Goodrich & Rosati, Jeffrey Michael Whiting, Marvin Craig Tyler, Scott Taylor Morris, Wilson Sonsini Goodrich & Rosati PC, Austin, TX, Charles Edward Juister, Mark H. Izraelewicz, Thomas L. Duston, Marshall Gerstein & Borun, Andrea M. Augustine, Foley & Lardner, Chicago, IL, Stefan V. Stein, Holland & Knight, Tampa, FL, Ryan Goldstein, Quinn Emanuel Urquhart Oliver & Hedges, Los Angeles, CA, Samuel Eugene Stubbs, Pillsbury Winthrop, Houston, TX, Edward F. O'Connor, The Eclipse Group, Irvine, CA, Guy N. Harrison, Attorney at Law, Longview, TX, for Defendants. MEMORANDUM OPINION AND ORDER LEONARD DAVIS, District Judge. Before the Court is Dell Inc.'s Motion for Summary Judgment for Failure to Comply with 35 U.S.C. § 112, ¶ 2 (Indefiniteness) (Docket No. 137) and the claim construction of the disputed terms in U.S. Patent Nos. RE 36,978 (the "'978 patent") and 5,673,170 (the "'170 patent"). For the reasons stated in the "Angled toward each other to a desired degree & Angles relative to each other to a desired degree" constructions, the Court DENIES Dell's Motion for Summary Judgment (Docket No. 137). BACKGROUND The patents in suit involve the mounting of multiple displays to increase a computer user's potential viewing area. Both patents' technologies focus on expanding the potential viewing area while minimizing the impediment to the user's desk space. The patents teach various ways to mount 744 multiple displays so the user may conveniently position them during use. MASS Engineered Design Inc. and Jerry Moscovitch (collectively "MASS") contend that Ergotron, Inc., Dell Inc., CDW Corporation, and Tech Data Corporation (collectively "Defendants") infringe the '978 patent. Dell Marketing L.P. and Dell Inc. (collectively "Dell") contend that MASS infringes the '170 patent. APPLICABLE LAW "It is a `bedrock principle' of patent law that `the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed.Cir.2004)). In claim construction, courts examine the patent's intrinsic evidence to define the patented invention's scope. See id.; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed.Cir.2004); Bell Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed.Cir.2001). This intrinsic evidence includes the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed.Cir.2003). The claims themselves provide substantial guidance in determining the meaning of particular claim terms. Phillips, 415 F.3d at 1314. First, a term's context in the asserted claim can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the claim's meaning because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15. "[C]laims `must be read in view of the specification, of which they are a part.'" Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc)). "[T]he specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed.Cir.2002). This is true because a patentee may define his own terms, give a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor's lexicography governs. Id. Also, the specification may resolve ambiguous claim terms "where the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words alone." Teleflex, Inc., 299 F.3d at 1325. But, "`[a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims.'" Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed.Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed.Cir.1988)); see also Phillips, 415 F.3d 745 at 1323. The prosecution history is another tool to supply the proper context for claim construction because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics, Inc., v. LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir.2004) ("As in the case of the specification, a patent applicant may define a term in prosecuting a patent."). Although extrinsic evidence can be useful, it is "`less significant than the intrinsic record in determining the legally operative meaning of claim language.'" Phillips, 415 F.3d at 1317 (quoting CR. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition is entirely unhelpful to a court. Id. Generally, extrinsic evidence is "less reliable than the patent and its prosecution history in determining how to read claim terms." Id. The patents in suit also contain means-plus-function limitations that require construction. Where a claim limitation is expressed in "means plus function" language and does not recite definite structure in support of its function, the limitation is subject to 35 U.S.C. § 112, ¶ 6. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed.Cir.1997). In relevant part, 35 U.S.C. § 112, ¶ 6 mandates that "such a claim limitation be construed to cover the corresponding structure' ... described in the specification and equivalents thereof Id. (citing 35 U.S.C. § 112, ¶ 6). Accordingly, when faced with means-plus-function limitations, courts "must turn to the written description of the patent to find the structure that corresponds to the means recited in the [limitations]." Id. Construing a means-plus-function limitation involves multiple inquiries. "The first step in construing [a means-plus-function] limitation is a determination of the function of the means-plus-function limitation." Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir.2001). Once a court has determined the limitation's function, "the next step is to determine the corresponding structure disclosed in the specification and equivalents thereof." Id. A "structure disclosed in the specification is `corresponding' structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim." Id. Moreover, the focus of the "corresponding structure" inquiry is not merely whether a structure is capable of performing the recited function, but rather whether the corresponding structure is "clearly linked or associated with the [recited] function." Id. ANALYSIS[1] U.S. Patent No. RE 36,978 Base member The Court construes "base member" as the "lowermost portion of the system that supports the arm assembly above a surface." Both parties agree that the term's plain and ordinary meaning applies, but they disagree as to what that plain and ordinary meaning is. Defendants proposed construction is "the portion of the display system that 746 provides support for the display system from a surface." Defendants proposed construction is overly broad and fails to give meaning to the term "base." Even though Defendants agree that the plain and ordinary meaning applies, they fail to account for that meaning in their construction. See Phillips, 415 F.3d at 1312-13 (words of a claim should generally be given their plain and ordinary meaning). MASS proposes that "base member" means "the lowermost portion of the system for resting on a work surface and that supports the arm assembly above the work surface." MASS relies on both intrinsic and extrinsic evidence for its construction. MASS claims the prosecution history limits the base to "resting on a work surface." See MASS'S Opening Brief, Ex. C. During prosecution, the inventor stated, "this [base] is used to support the arm assembly above a work surface." Id. However, the prosecution history does not reference where the base must rest; thus, MASS'S construction is incorrect in limiting base to "resting on a work surface." MASS's limit of "lowermost portion" incorporates "base's" plain and ordinary meaning. The dictionary defines "base" as "1 a (1): the lower part of a wall, pier, or column considered as a separate architectural feature (2): the lower part of a complete architectural design b: the bottom of something considered as its support." MASS'S Opening Brief, Ex. E (emphasis in original). When the base component is illustrated, the base component is shown as the lowermost portion of the system. See '978 patent, Figs. 1-6 (showing base 12 as the lowermost portion); 12-16 (showing base 102 as the lowermost portion); 1718 (showing base 156 as the lowermost portion). As one of ordinary skill in the art would understand that the "base" is the lower or lowermost part of the structure, that limitation must be included. Both parties agree that the base is used to support the system. Accordingly, the Court construes "base member" as "the lowermost portion of the system that supports the arm assembly above a surface". Electronic displays At the Markman, the parties agreed that "electronic displays" should be construed as "electronic devices that represent information in visual form." The Court adopts their construction. Positioning means for positioning displays The Court construes the phrase as "apparatus used to position the displays." The parties dispute whether the phrase is governed by Section 112, ¶ 6. "While the use of the word `means' gives rise to a presumption that § 112, paragraph 6 applies, the presumption is overcome by the recitation of the structure needed to perform the recited function." TI Group Auto. Sys. (N. Am.), Inc. v. VDO N. Am., L.L.C., 375 F.3d 1126, 1135 (Fed.Cir.2004). Defendants contend that the claim language lacks sufficient structure to overcome this presumption as the purported structure includes additional means-plus-function limitations. The claim language recites sufficient structure.[2] The claim states "positioning means for ... comprising:" an arm assembly, "support means ...," "mounting means ...," and "means for adjusting...." '978 patent, Col. 11:10-12:2. Although the recited structure includes means-plus-function limitations, there is sufficient structure in the claim language 747 such that Section 112, ¶ 6 does not apply. British Tel. PLC v. Prodigy Commc'ns Corp., 189 F. Supp. 2d 101, 110 (S.D.N.Y. 2002); see also Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359-60 (Fed.Cir.2004) ("we have held that it is sufficient if the claim term is used in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers abroad class of structures and even if the term identifies the structures by their function"). Here, the structure is identified by both specific components (e.g. arm assembly) and functions (e.g. mounting means for mounting and supporting means for supporting). "The structure of the component parts is present-it is just found in a different part of the patent, in the specification, rather than in the claim language." British Tel. PLC, 189 F.Supp.2d at 110. Accordingly, the term is not a means-plus-function limitation. One of ordinary skill in the art would understand "positioning means" as an "apparatus used to position displays." Therefore, the Court construes the term accordingly. Arm assembly The Court construes "arm assembly" as "a structure having one or more constituent parts connected to and projecting from the support means." At the hearing, the parties identified that the main dispute was whether "assembly" required a minimum of one or two constituent parts. Defendants contend that the plain and ordinary meaning of "assembly" requires two or more parts. However, such a construction would contradict unasserted dependent claim 6, which states "an arm assembly is an elongate telescopic member." '978 patent, Col. 9:25; see Phillips, 415 F.3d at 1314 (unasserted claims can help determine the meaning of a term as claim terms are usually used consistently). Claim 6 clearly defines that an arm assembly may be made up of one part, "an elongate telescopic member." The written description further supports a minimum of one constituent part. The Abstract refers to a particular embodiment where the arm assembly is "a single telescopic member." '978 patent, Abstract. The Summary of the Invention also states "an arm assembly which supports the displays and which may comprise a single rotary arm, a pair of arms rotating about separate axes, a single arm locatable in two desired orientation [sic] or interchangeable arms of different length." Id., Col. 1:3034. Accordingly, the arm assembly does not require two parts. Therefore, the Court construes "arm assembly" as "a structure having one or more constituent parts connected to and projecting from the support means." Support means for supporting & Support means having a base for supporting Claims 16 and 17 contain the terms "support means for supporting the arm assembly from the base member" and "support means having a base for supporting the arm assembly above a support surface," respectively. The parties agree that the terms are means-plus-function limitations governed by 35 U.S.C. § 112 ¶ 6. The parties agree that the function should be the same for both terms, but the parties disagree on what the function is. Defendants propose that the function should be "`supporting the arm assembly from the base member,' meaning the structure allows the electronic displays to be selectively positioned in a vertically registered relationship." Defendants insert limitations not cited in the claim, which is improper. See Wenger Mfg., Inc. v. Coating Mach. Sys., Inc., 239 F.3d 1225, 1233 748 (Fed.Cir.2001) (a court may not import functional limitations that are not recited in the claim). Accordingly, the function is "supporting the arm assembly from the base member" as recited in the claims. The parties agree that both Figure 7 and Figure 19 depict possible structure. In Figure 7, the parties agree that the structure includes upright 20, circular recess 34, washer 36, and bolt 38. See '978 patent, Col. 3:29-40. The parties disagree on whether cylindrical recess 44, ball 46, and biasing spring 48 are necessary structure. Figure 7 depicts a rotary joint "configured to perform two functions: to support the arm 18 for rotation about a generally horizontal axis 26 through the upright 20, and to define distinct vertical and horizontal arm positions." Id. at 3:29-34. As stated above, the claimed function is supporting the arm assembly not defining "two distinct vertical and horizontal arm positions." Importing "structural limitations from the written description that are unnecessary to perform the claimed function" is improper. Wenger, 239 F.3d at 1233. Although the specification teaches that the cylindrical recess 44, ball 46, and biasing spring 48 perform the second function of the rotary joint locking the arm in vertical or horizontal positions it never references that the three components support the arm. '978 patent, Col. 3:44-53. Accordingly, the necessary structure depicted in Figure 7 is upright 20, circular recess 34, washer 36, and bolt 38. See '978 patent, Col. 3:29-40.[3] In Figure 19, the parties agree that upright 158, plug 208, and bolt 210 are included as structure. See '978 patent, Col. 7:43-54. The parties disagree on whether socket 206 is necessary. The specification is clear that socket 206 is necessary structure. The specification teaches "upright 158 has a socket 206 with a tapered square chamber aligned with a circular cylindrical chamber." '978 patent, Col. 7:44-46. Socket 206 receives the plug 208, and the connector is attached using bolt 210, which inserts through a clearance hole in socket 206 and threads into plug 208. Id., Col. 7:48-54. Thus, socket 206 is necessary structure as detailed in the written description. Accordingly, the corresponding structure is either upright 20, circular recess 34, washer 36, and bolt 38 as depicted in Figure 7 or upright 158, socket 206, plug 208, and bolt 210 as depicted in Figure 19.[4] Support surface The Court construes "support surface" as "surface that supports the base." As the intrinsic evidence does not provide a special meaning for "support surface," its plain and ordinary meaning applies. Enercon GmbH v. Int'l Trade Comm'n, 151 F.3d 1376, 1384 (Fed.Cir.1998). MASS proposes the term means "work surface that supports the base." MASS relies on a statement made during prosecution, "this [base] is used to support the arm assembly above a work surface." MASS'S Opening Brief, Ex. C. MASS contends that it defined "support surface" as a "work surface." However, neither the claim language nor specification mentions a "work surface." The specification states that in one embodiment the base stands on a horizontal surface, but it does not refer to, nor require it to be, a "work surface." '978 patent, Col. 3:2122. Furthermore, MASS's proposed construction is ambiguous 749 and would be unhelpful to the fact-finder, as "work surface" is not defined. Defendants propose "the support surface is an area for supporting a display system." The specification describes the support surface as the horizontal surface on which the base stands. See id. Thus, it is more accurate to state that the support surface supports the base. Accordingly, one of ordinary skill in the art would understand that "support surface" means a "surface that supports the base." Mounting means for mounting the displays to the arm assembly Claims 16 and 17 contain the term "mounting means." The parties agree that the term is a means-plus-function limitation governed by 35 U.S.C. § 112 ¶ 6, and they agree that the function is "mounting the displays to the arm assembly."[5]See Dell's Response Brief at 16. The parties also agree that Figures 8, 9, and 20 illustrate the structure but disagree on whether the structure includes certain components shown in those figures. From Figures 8 and 9, the parties agree that the parts of the structure shown are a ball joint with a ball 56, shaft 58, and socket 60, plus equivalents.[6]See '978 patent, Col. 3:63-65. The parties disagree on whether the structure should include openended slots pairs 62, 64 (the "slots") and cylindrical projection pairs 66, 68 (the "projections"). From Figure 20, the parties agree that the parts of the structure shown are the ball joint having ball 172, shaft 174, socket 170 with flat surface 190, shell 184 with flat 192, plate 182, screws 186, plus equivalents.[7]See '978 patent, Col. 6:66-7:13. The parties dispute whether the slots and projections[8] should be included as structure for the mounting means. Defendants contend that the slots and projections must be included as the embodiments always describe the ball joint as having projections and slots. While the preferred embodiments do include the projections and slots, the claim language and specification make clear that the projections and slots are preferred structure and not necessary. For one embodiment, the specification states "the ball joint 126 is preferably configured with pins and slots like the ball joint described above [Figures 8 and 9] to provide limiting tilting of the display 106, but such a configuration has not been illustrated in FIG. 13." '978 patent, Col. 5:57-60. The specification makes clear that the projections and slots are preferable, which denotes they are not required. '978 patent, 750 Col. 5:57-58. The specification also teaches that these components are used to limit tilting of the display but makes no reference to them being used to mount the displays. Id. at Col. 5:58-60. Importing "structural limitations from the written description that are unnecessary to perform the claimed function" is improper. Wenger, 239 F.3d at 1233. The specification does not associate the projections and slots with performing the mounting means function. Accordingly, the projections and slots are not necessary structure. The parties also disagree on whether the display 152 should be included. The specification teaches that the arm mounts to the back of the display. See '978 patent, Col. 7:9-11 ("The plate is then fastened with screws (such as the screw 188) to the back of the display 152."); see also, id., Col. 3:63-66 ("The mounting structure 50 includes a ball joint comprising a steel ball 56 formed on a steel shaft 58 supported from the arm 18 and a plastic socket 60 supported from the rear of display 16."). The figures illustrate that the mounting means attaches to the rear of the display. Id., Figures 16, 1218, and 20. Defendants offer no evidence that would support the mounting means attaching to a location other than the rear of the display. The specification makes clear that the mounting means is limited to being attached to the back of the display. Accordingly, the structure includes "the rear of the display 152." Thus, the Court construes the function as "mounting the displays to the arm assembly." The necessary structure is either "ball 56, shaft 58, and socket 60, plus equivalents" (Figures 8 and 9) or "ball 172, shaft 174, socket 170 with flat surface 190, shell 184 with flat 192, plate 182, screws 186, rear of the display 152, plus equivalents" (Figure 20). Means for adjusting the angular orientation of each of the displays relative to the arm assembly Claims 16 and 17 contain the phrase "means for adjusting." The parties agree that the phrase is a means-plus-function limitation governed by 35 U.S.C. § 112, H 6, and they agree that the function is "adjusting the angular orientation of each of the displays relative to the arm assembly."[9]See Dell's Response Brief at 23. At the Markman, the parties also agreed that the structure for this limitation is the same structure for "mounting means" discussed above. Markman Tr. p. 59, 11. 2-21. Angled toward each other to a desired degree & Angles relative to each other to a desired degree Defendants contend that the term "desired degree" is indefinite, or in the alternative, Defendants agree that the phrase does not need construction. A claim is invalid under 35 U.S.C. § 112, ¶ 2 if it fails to particularly point out and distinctly claim the subject matter that the applicant regards as the invention. The party seeking to invalidate a claim as indefinite under 35 U.S.C. § 112, ¶ 2 must show by clear and convincing evidence that one skilled in the art would not understand the scope of the claim when read in light of the specification. Intellectual Prop. Dev., Inc. v. UAColumbia Cablevision of Westchester, Inc., 336 F.3d 1308, 1319 (Fed.Cir.2003). 751 "Close questions of indefiniteness in litigation involving issued patents are properly resolved in favor of the patentee." Bancorp Services, L.L.C. v. Hartford Life his. Co., 359. F.3d 1367, 1371 (Fed.Cir.2004). Defendants fail to meet this high burden. Relying on Datamize, LLC v. Plumtree Software, Inc., Defendants contend that the term "desired degree" depends solely on the user's subjective opinion. See 417 F.3d 1342, 1350 (Fed.Cir. 2005). In Datamize, the court found that the term "aesthetically pleasing" was indefinite because it depended solely on a subjective opinion. Id. at 1350. The court held that a definition cannot depend on an undefined standard. Id. at 1352-53. However, "desired degree" does not present such a situation. "Desired degree" must be considered in the context of the claim language. Datamize, 417 F.3d at 1348. The term is used in Claims 16 and 17 and relates to how far the displays may be angled toward or relative to each other. See '978 patent, Col. 11:15-12:2 ("mounting means for mounting the displays to the arm assembly, the mounting means comprising means for adjusting the angular orientation of each of the displays relative to the arm assembly to thereby permit said displays to be angled toward each other to a desired degree"); 12:10-16 ("mounting means for mounting the displays to the arm assembly, the mounting means comprising means for adjusting the angular orientation of each of the displays relative to the arm assembly about a generally vertical axis to thereby permit said displays to be angled relative to each other to a desired degree"). The context relates to adjusting or angling the displays, and this context helps to suggest a meaningful definition for desired degree. It is important to note that using the word "desired" does not make the phrase per se indefinite. Although a term requires a user's foreknowledge of certain facts, this does not make the term indefinite as long as the term can be objectively verified. Datamize, 417 F.3d at 1355-56 (finding that the term "`desired,' which requires foreknowledge and even intent on the part of the person practicing the invention" did not make the claim indefinite.) The use of the term "desired degree" is objectively verifiable. Viewed in context of the claim, the phrase is directed at adjusting the displays to preferred viewing angles. Defendants focus on the actual range of the degrees claimed by the '978 patent, contending that one range of degrees might lead to infringement while another range may not. However, this argument is a nonstarter. Neither claim 16 nor 17 are directed at limiting the apparatus to a certain range of angling; rather the claim language focuses on whether the apparatus allows the user to adjust the angular orientation of the display. One of ordinary skill in the art would understand that users' preferences would vary depending on the circumstances. For example, viewers' preferences may change depending on certain facts such as glare and seat height. Thus, the inventor is not required to limit the angle adjustment to a particular range of degrees. See Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1575-76 (holding that the term "so dimensioned" was not indefinite as it was as specific as the facts allowed). Although "desired degree" requires foreknowledge on the part of the user, the resulting adjustment is objectively verifiable. The term "degree" is used in a mathematical sense; thus, it is confined to a lower limit of zero degrees and an upper limit of 360 degrees. Due to the mathematical nature, the resulting adjustment can be verified. Therefore, the term is not indefinite, and the Court DENIES Defendants' 752 Motion for Summary Judgment. Accordingly, the Court adopts the parties' view that no construction is necessary. U.S. Patent No. 5,673,170 Pivotally connected to, Movably connected to, & Rotatably connected to The Court construes "pivotally connected to" to mean "a connection between two bodies allowing the bodies to change positions relative to one another around or about at least one point," "movably connected to" to mean "a connection between two bodies allowing the bodies to change positions relative to one another," and "rotatably connected to" to mean "a connection between two bodies allowing the movement of the bodies relative to one another around or about an axis." At the Markman, MASS stated that the only dispute remaining was the meaning of "connected to."[10] MASS'S proposed construction for "connected to" is "the secondary display is supported from and directly hinged [or joined] to the primary display."[11] MASS attempts to import limitations from certain embodiments, which is improper. See Phillips, 415 F.3d at 1323. MASS requires that the connection be a hinge and that the secondary display be supported by the primary display via the hinge. Neither of these limitations finds support in the intrinsic evidence. The term "connected to" has its plain and ordinary meaning. Although MASS insists that this term be narrowly construed to mean "directly hinged," neither the intrinsic nor extrinsic evidence supports such a narrow construction. While the specification does describe direct connections associated with certain embodiments, at least one embodiment implements an indirect connection. In Figure 4, the secondary display is neither directly hinged nor directly connected to the primary display, it is indirectly connected via two arms. See '170 patent, Fig. 4; Col. 4:14-20 (stating that the secondary display is pivotally connected to arms, which are connected to a hinge). Thus, "connected to" is not limited to a direct connection, and the plain and ordinary meaning applies, which is simply a "connection." As neither the specification nor prosecution history provides special definitions for the terms, the plain and ordinary meaning of "pivotally," "movably," and "rotatably" applies. See Enercon, 151 F.3d at 1384. Dell's constructions advance how one skilled in the art would understand each of the three terms. MASS does not offer competing meanings for the terms; therefore, the Court adopts Dell's constructions, which incorporate the terms ordinary and plain meanings. Primary display The Court adopts Dell's construction and construes "primary display" to mean "a first display in a multi-display system." The only dispute relates to the meaning of "primary." MASS proposed the term be construed as "the original, principal electronic display supported by the computer's main chassis and supplying a visible display area of a given size." MASS offers no intrinsic support for requiring the primary display 753 to be the "original, principal" display. MASS ignores its own extrinsic evidence's definition of "primary;" instead, it relies on the definition of "secondary" for support.[12] MASS also requires the display to be supported by the computer's main chassis, which is an improper attempt to import a limitation from a preferred embodiment.[13]See Phillips, 415 F.3d at 1323. As with the "connected to" terms, neither the specification nor claim language provide a special meaning for "primary"; thus, its plain and ordinary meaning applies. See Enercon, 151 F.3d at 1384. As MASS'S own extrinsic evidence confirms, "primary" ordinarily means of "first rank" or "first in order of time." See MASS'S Response Brief, Ex. H. Also, the inventor implicitly adopted Dell's proposed ordinary meaning by using the term "first" and "primary" interchangeably to describe display. See '170 patent, Col. 6:50-51 ("system of claim 20 ... adjacent said first display"). Dell's proposed construction properly incorporates this ordinary meaning. Accordingly, the Court construes "primary" to mean "a first display in a multi-display system." Secondary display The Court construes "secondary display" to mean "a second display in a multi-display system." MASS proposes that "secondary display" means "the subsidiary, subsequent flat panel electronic display that is not physically interchangeable with the primary display, and that supplements the display area of the primary display by increasing the total overall display area." MASS attempts to limit the secondary display by stating it is "not physically interchangeable" with the primary display. However, the claim language contradicts such a limitation. In claim 15, the secondary display is described as a "flat panel display." '170 patent, Col. 6:19-29. Dependent claim 18 requires the primary display to be a "flat panel display." See id., Col. 6:38-39. The intrinsic evidence does not suggest that the primary flat panel display of claim 18 cannot be interchangeable with the secondary flat panel display of claim 15. Thus, MASS'S limitation is improper. As with "primary display," "secondary display" is not given a special meaning. In the claim language, the inventor uses the term "secondary" and "second" interchangeably. See id., Col. 6:54-55 (referring to the system of claim 20, dependent claim 21 states "in said secondary position" when it previously refers to that position as the "second position"). Also, MASS'S extrinsic evidence defines "secondary" as "of second rank" or "of, relating to, or being the second order or stage in a series." See MASS'S Response Brief, Ex. 4. Dell's proposed construction encapsulates the plain and ordinary meaning of "secondary," as shown by the claim language and MASS'S extrinsic evidence. Accordingly, the Court construes "secondary" as "a second display in a multi-display system." 754 First and second positions relative to said primary display The Court construes the phrase to mean "two different positions relative to the primary display." MASS proposes that the phrase means "a first position for viewing by a user while the primary and secondary displays are in use, and a second position in which the secondary display is retracted to lie flat against the primary display when not in use." MASS is attempting to narrow the independent claims by incorporating limitations from dependent claims. "Claim differentiation ... is clearly applicable when there is a dispute over whether a limitation found in a dependent claim should be read into an independent claim, and that limitation is the only meaningful difference between the two claims." Wenger, 239 F.3d at 1233. MASS'S proposed "second position" is a limitation found in claim 21, which depends on claim 20. See '170 patent, Col. 6:50-56 ("a top edge of said secondary display extends along a side of said primary display for compactness"). The only "meaningful difference" between independent claim 20 and dependent claim 21 are claim 21's requirements for "first position" and "second position."[14]See id. Thus, a strong presumption exists that claim 20 does not include claim 21's position limitations. MASS has not overcome this presumption. As discussed above, the first and second positions required in independent claims 15 and 20 are broader than the dependent claims. The written description describes the first and second positions as "during and before use." See id., Abstract; Col. 1:65-2:1. As no special meaning is ascribed to either term; their plain and ordinary meanings apply. See Enercon, 151 F.3d at 1384. Here, the descriptors "first" and "second" simply refer to two distinct positions, but those positions are not specifically defined. Accordingly, the Court construes "first and second position relative to the primary display" as "two different positions relative to the primary display." Rotation of said secondary display between first and second positions relative to said primary display The Court construes the phrase as "movement of the secondary display about an axis between a first and second position relative to the primary display." As the Court previously construed most of the terms in this phrase, the remaining disputed term is "rotation." MASS proposes the phrase means "adjusting the secondary display from a position viewed by a user while the two displays are in use to a position in which the secondary display is retracted to lie flat against the primary display when not in use." MASS'S proposed construction reads out the "rotation" limitation and replaces it with a broader term "adjusting." Dell's construction encapsulates rotation's plain and ordinary meaning. Dell provides several dictionary definitions that support Dell's construction of the term. Each of the dictionaries define rotation as "to turn about an axis or center." See Dell's Reply Brief, Exs. AC. Dell's construction, "movement of the secondary display about an axis" is consistent with the term's plain and ordinary meaning. Accordingly, the Court construes the phrase as "movement of the secondary display 755 about an axis between a first and second position relative to the primary display." Enabling movement between first and second positions relative to said primary display The Court construes the phrase as "allowing a secondary display to move between a first and second position relative to said primary display." As with "rotation of ... to said primary display," the Court previously construed all the terms except for "enabling movement." MASS and Dell agree that the terms' plain and ordinary meanings apply. Both parties agree that the term "movement" should be construed as "to move." MASS proposes "enabling" be construed as "permitting," and Dell proposes it be construed as "allowing." Both parties' constructions are commonly known synonyms. Accordingly, the Court construes the phrase as "allowing a secondary display to move between a first and second position relative to said primary display." Primary display controller & Secondary display controller The Court construes "primary display controller" to mean "circuitry for interfacing a primary display with a computer" and "secondary display controller" to mean "circuitry for interfacing a secondary display with a computer." At the hearing, both parties agreed that "display controller" should be construed as "circuitry for interfacing a display with a computer." The only dispute is over the use of the word "first" versus "primary" and "second" versus "secondary" to modify "display." As the Court already construed both "primary display" and "secondary display," it is unnecessary to re-construe the terms here. Therefore, the Court adopts the parties agreed language and construes "primary display controller" as "circuitry for interfacing a primary display with a computer" and "secondary display controller" as "circuitry for interfacing a secondary display with a computer." CONCLUSION For the foregoing reasons, the Court interprets the claim language in this case in the manner set forth above. For ease of reference, the Court's claim interpretations are set forth in Appendix B. The claims with the disputed terms in bold are set forth in Appendix A. So ORDERED. APPENDIX A U.S. Patent No. RE 36,978 16. A display system comprising: a base member: a pair of electronic displays; positioning means for positioning the displays, the positioning means comprising: (a) an arm assembly for supporting the displays; (b) support means for supporting the arm assembly from the base member; and (c) mounting means for mounting the displays to the arm assembly, the mounting means comprising means for adjusting the angular orientation of each of the displays relative to the arm assembly to thereby permit said displays to be angled toward each other to a desired degree. 17. A display system, comprising: a pair of electronic displays; positioning means for positioning the displays, the positioning means comprising: 756 (a) an arm assembly for supporting the displays; (b) support means having a base for supporting the arm assembly above a support surface; and (c) mounting means for mounting the displays to the arm assembly, the mounting means comprising means for adjusting the angular orientation of each of the displays relative to the arm assembly about a generally vertical axis to thereby perm it said displays to be angled relative to each other to a desired degree. U.S. Patent No. 5,673,170 15. A computer incorporating a secondary display system, the computer comprising: a main chassis; a primary display interfaced to said main chassis via a primary display controller;, a secondary display comprising a flat panel display interfaced to said main chassis via a secondary display controller, said secondary display being pivotally connected to said primary display for enabling rotation of said secondary display between first and second positions relative to said primary display. 18. The computer of claim 15 wherein said primary display is a flat panel display. 19. The computer of claim 15 wherein said secondary display is a liquid crystal display module. 20. A display system for a computer, the system comprising: a primary display interfaceable to a main chassis of a computer; a secondary display interfaceable to said main chassis and movably connected to said primary display for enabling movement between first and second positions relative to said primary display. 22. The system of claim 20 wherein said secondary display is rotatably connected to said primary display. APPENDIX B -------------------------------------------------------------------------------------------------- U.S. Patent No. RE 36,978 -------------------------------------------------------------------------------------------------- Disputed Claim Terms Court's Construction -------------------------------------------------------------------------------------------------- base member the lowermost portion of the system that supports the arm assembly above a surface (Claim 16) -------------------------------------------------------------------------------------------------- base [AGREED] same meaning as "base member" (Claim 17) -------------------------------------------------------------------------------------------------- electronic displays [AGREED] electronic devices that represent information in visual form (Claims 16 and 17) -------------------------------------------------------------------------------------------------- positioning means for positioning displays apparatus used to position the displays (Claims 16 and 17) -------------------------------------------------------------------------------------------------- arm assembly a structure having one or more constituent parts connected to and projecting from the support means (Claims 16 and 17) -------------------------------------------------------------------------------------------------- 757 -------------------------------------------------------------------------------------------------- U.S. Patent No. RE 36,978 -------------------------------------------------------------------------------------------------- Disputed Claim Terms Court's Construction -------------------------------------------------------------------------------------------------- support means for supporting the arm assembly Function: supporting the arm assembly from the base member from the base member Structure: upright 20, circular recess 34, washer 36, and bolt 38 (Figure 7) OR upright 158, socket 206, plug 208, and bolt (Claim 16) 210 (Figure 19) -------------------------------------------------------------------------------------------------- support means having a base for supporting [AGREED] Function: Same as "support the arm assembly above a support surface means for supporting the arm assembly from the base member" [AGREED] Structure: Same as "support means for supporting the arm assembly from the base member" (Claim 17) -------------------------------------------------------------------------------------------------- support surface surface that supports the base (Claim 17) -------------------------------------------------------------------------------------------------- mounting means for mounting the displays to Function: mounting the displays to the arm the arm assembly assembly Structure: ball 56, shaft 58, and socket 60, plus equivalents (Figures 8 and 9). OR ball 172, shaft 174, socket 170 with flat surface 190, shell 184 with flat 192, plate 182, screws 186, rear of the display 152, plus (Claims 16 and 17) equivalents. -------------------------------------------------------------------------------------------------- means for adjusting the angular orientation [AGREED] Function: adjusting the angular of each of the displays relative to the arm orientation of each of the displays relative to assembly the arm assembly [AGREED] Structure: Same as "mounting means for mounting the displays to the arm (Claims 16 and 17) assembly" -------------------------------------------------------------------------------------------------- angled toward each other to a desired degree [AGREED] No construction (Claim 16) -------------------------------------------------------------------------------------------------- angles relative to each other to a desired [AGREED] No construction degree (Claim 17) -------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------- U.S. Patent No. RE 36,978 -------------------------------------------------------------------------------------------------- Disputed Claim Terms Court's Construction -------------------------------------------------------------------------------------------------- pivotally connected to a connection between two bodies allowing the bodies to change positions relative to one another around or about at least one point (Claim 15) -------------------------------------------------------------------------------------------------- movably connected to a connection between two bodies allowing the bodies to change positions relative to one another 758 (Claim 20) -------------------------------------------------------------------------------------------------- rotatably connected to a connection between two bodies allowing the movement of the bodies relative to one another around or about an axis (Claim 22) -------------------------------------------------------------------------------------------------- primary display a first display in a multi-display system (Claims 15, 18, 20 and 22) -------------------------------------------------------------------------------------------------- secondary display a second display in a multi-display system (Claims 15, 19, 20, and 22) -------------------------------------------------------------------------------------------------- first and second positions relative to said two different positions relative to the primary display primary display (Claim 15 and 20) -------------------------------------------------------------------------------------------------- rotation of said secondary display between movement of the secondary display about an first and second positions relative to said axis between a first and second position relative primary display to the primary display. (Claim 15) -------------------------------------------------------------------------------------------------- enabling movement between first and second allowing a secondary display to move between positions relative to said primary display a first and second position relative to said primary display (Claim 20) -------------------------------------------------------------------------------------------------- primary display controller circuitry for interfacing a primary display with a computer (Claim 15) -------------------------------------------------------------------------------------------------- secondary display controller circuitry for interfacing a secondary display with a computer (Claim 15) -------------------------------------------------------------------------------------------------- interfaced [AGREED] "The establishment of a data communication connection" (Claim 15) -------------------------------------------------------------------------------------------------- interfaceable [AGREED] "Able to be connected to establish a data communication connection" (Claim 20) -------------------------------------------------------------------------------------------------- main chassis [AGREED] "The enclosure that houses the electronics of the computer" (Claims 15 and 20) -------------------------------------------------------------------------------------------------- NOTES [1] Appendix A contains the relevant claims with the disputed terms in bold. [2] Positioning means is used in both claim 16 and 17. This analysis applies with equal weight to both claims. [3] For Claim 17, the parties agree that the structure also includes a "base" as the claim language requires. See '978 patent, Col. 12:8-9. [4] The parties agree that Claim 17 also includes a base as structure. [5] As with "support means," Defendants attempt to add limitations to the construction of the function. Inserting limitations not included in the claim is improper. See Wenger, 239 F.3d at 1233 (a court may not import functional limitations that are not recited in the claim). Accordingly, the Court does not adopt Defendants' additional limitations. [6] Although in some instances the specification describes the specific materials for the components, the parties agree that the specific materials need not be included in the structure. [7] During the Markman, MASS originally stated that flat 190 should be excluded from the structure; however, during the same hearing, MASS later agreed to adopt Defendant's proposed structure except as to the slots and projections. Markman Tr. p. 45, 11. 5-17. Even if MASS'S agreement was inadvertent, the specification describes flat 190 as necessary to prevent rotation of the socket 170; thus, it is necessary structure for the mounting means. See '978 patent. Col. 7:11-13. [8] The slots are identified as numbers 62 and 64 in Figures 8 and 9 and as number 178 in Figure 20. The projections are identified as numbers 66 and 68 in Figures 8 and 9 and as number 180 in Figure 20. [9] As with "support means" and "mounting means," Defendants attempt to add limitations to the construction of the function. Adding limitations not included in the claim is improper. See Wenger, 239 F.3d at 1233 (a court may not import functional limitations that are not recited in the claim). Accordingly, the Court does not construe the function as including Defendants' additional limitations. [10] At the Markman, MASS stated that the only dispute was how to define "connected to." MASS stated it was "happy" with the way Dell defined the modifiers of "connected to." Markman Hr'g Tr. 99:12-20. [11] MASS proposes that the phrase needing construction is "said secondary display being pivotally connected to said primary display." However, as the Court construes both "primary" and "secondary" display below, there is no need to include those terms in the "pivotally connected to" construction. The same applies to "movably connected to" and "rotatably connected to." [12] MASS'S extrinsic support did not define "primary" as the "original." See MASS'S Response Brief, Ex. H. Instead, MASS extracts the word from the definition of "secondary." See id. [13] In dependent claim 4 and 11, the claim language requires that the primary display rest on the surface of the computer chassis. No such requirements exist in claim 15, claim 20, or their dependent claims. Thus, under the guidance of claim differentiation doctrine, MASS'S attempt to read in this limitation is improper. See Seachange Int'l, Inc. v. CCOR, Inc., 413 F.3d 1361. 1368 (Fed.Cir. 2005). [14] A similar situation is presented with independent claim 15 and its dependent claim 16. There, claim 16 requires the secondary display to be substantially orthogonal as opposed to lying flat against the primary display. See '170 patent, Col. 6:18-36.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2580833/	304 N.Y. 58 (1952) In the Matter of the Arbitration between Isidore Lipschutz et al., Appellants, and Albert Gutwirth, Respondent. Court of Appeals of the State of New York. Argued January 25, 1952. Decided April 17, 1952 Leon Finley and David S. Meyer for appellants. Max A. Gulack for respondent. LOUGHRAN, Ch. J., LEWIS, DYE, FULD and FROESSEL, JJ., concur with CONWAY, J.; DESMOND, J., dissents for the reasons stated by the Appellate Division in its Per Curiam opinion. 60CONWAY, J. This is an appeal, as of right, from an order of the Appellate Division, First Department, unanimously modifying on the law and the facts an order of Special Term of Supreme Court, New York County, directing that the parties proceed to arbitration and appointing an arbitrator. Appellants, Isidore Lipschutz and Charles Gutwirth, and respondent, Albert Gutwirth, nephew of Isidore and son of Charles, are parties to a partnership agreement. An arbitration clause in that agreement provides for the arbitration of disputes by three arbitrators "the First Party [Isidore Lipschutz] shall select his arbitrator, and the Second and Third Parties [Charles and Albert Gutwirth, father and son] jointly shall select their arbitrator; and the two arbitrators shall thereupon select a third arbitrator. * " Controversies arose between appellants and respondent due to the latter's alleged lack of concern for the welfare of the partnership. Pursuant to the arbitration clause Isidore demanded that the controversy be submitted to arbitration and designated his arbitrator. Albert and Charles could not, however, agree upon a joint arbitrator due, among other things, to Albert's insistence that he be permitted to select an arbitrator independently since the interests of Charles and Isidore in the controversy 61 were identical and adverse to his. Upon motion made by appellants and pursuant to sections 1450 and 1452 of the Civil Practice Act, Special Term appointed a joint arbitrator for Charles and Albert and directed that arbitration proceed. That joint arbitrator together with the arbitrator selected by Isidore chose a third person as provided by the agreement of the parties. Respondent thereupon appealed to the Appellate Division which was of the opinion that because of the change in alignment of the partners, not contemplated when the agreement was entered into, the contract providing for arbitration "should be construed as though no method [for appointing arbitrators] were provided therein." (278 A.D. 132, 133.) That court then entered an order appointing a single arbitrator and directing that arbitration proceed before such person. The sole question presented on this appeal is whether, under the circumstances presented, it was error for the Appellate Division to disregard the provisions of the contract of the parties which provided for the settlement of disputes by a panel of three arbitrators, one of whom was to be selected by appellant Isidore. Appellants contend that the Appellate Division, in appointing a single arbitrator, has rewritten the contract of the parties. Respondent, on the other hand, argues that the designation of a single arbitrator was a proper exercise of discretion, especially since appellants allegedly seek to deprive respondent of his interest in the firm. The present statutory provisions regarding arbitration are to be found in article 84 of the Civil Practice Act (L. 1937, ch. 341, as amd.). The purpose of that article is to give effect to contracts providing for the settlement of disputes before tribunals of the parties' own choosing by rendering such agreements irrevocable and, in effect, subject to specific enforcement. The provisions of article 84 are intended to strengthen not change the rights and obligations of parties to arbitration agreements. The law "does not bring the contract into being, but adds a new implement, the remedy of specific performance, for its more effectual enforcement." (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284, 293.) The spirit of the arbitration law being the fuller effectuation of contractual rights, the method for selecting arbitrators and 62 the composition of the arbitral tribunal have been left to the contract of the parties. Sections 1450, 1453, and 1462 of article 84 bear witness to the fact that the Legislature in enacting that article intended that the Supreme Court give due regard to the method and procedure prescribed by the contract of the parties. However, at times parties, for one reason or another, fail to make provision for a method of naming arbitrators or fail to designate in their contract the panel of arbitrators or the arbitrator who is to settle their dispute. An order directing the parties to agree on the matter in dispute would be impractical since an agreement, by its very nature, is dependent upon the concurrence of free wills and cannot be brought into existence by coercion. Moreover, even though a method has been provided, a party may refuse to avail himself of his right, under the contract, to select an arbitrator. In the absence of statutory provision for the appointment of arbitrators under those circumstances, the plan for arbitration could be thwarted and the right of the other party or parties rendered valueless. Section 1452 of the Civil Practice Act, conferring power upon the Supreme Court to designate arbitrators, was enacted to cover such situations. It is apparent from a reading of section 1452 that it is but part of the overall plan of article 84 of the Civil Practice Act to honor the contractual rights and obligations of the parties. That section is entitled, "Provision in case of failure to name arbitrator or umpire" and provides: "If, in the contract for arbitration * * provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or for any reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then, upon application by either party to the controversy, the supreme court, or a judge thereof, shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said contract * * * with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided, the arbitration shall be by a single arbitrator." From the plain wording of that section it will be seen that if the parties have provided for a method of naming or appointing 63 an arbitrator the Supreme Court shall follow such method and is empowered to designate an arbitrator only if "any party thereto shall fail to avail himself of such method, or for any reason there shall be a lapse in the naming of an arbitrator or arbitrators * ." It is also clear that the power of the court to provide for arbitration by a single arbitrator is limited to those cases where the parties have not provided otherwise "unless otherwise provided, the arbitration shall be by a single arbitrator." (Emphasis supplied.) The right to have disputes adjusted by several rather than one arbitrator is not to be lightly regarded. The widespread practice of parties to arbitration agreements of making provision for those rights indicates the value placed upon them. Our appellate systems are a result of the general view that there is less possibility for error where the question for decision is to be considered by a tribunal consisting of more than one person. Here the contract of the parties provides for a panel comprised of three persons. Appellant Isidore has the contract right to appoint one arbitrator. Appellant Charles and respondent Albert have the contract right to appoint a second arbitrator. The two arbitrators thus selected have the contract power to select a third arbitrator. Despite those facts the Appellate Division has sought to compel the parties to submit their controversy to a single arbitrator. Clearly since Charles and Albert cannot agree upon an arbitrator the Supreme Court, under the provisions of section 1452, has the statutory power to appoint an arbitrator for Charles and Albert jointly. However, that is the limit of the court's power. The arbitrator so selected and the one chosen by Isidore will select a third. Undoubtedly the Supreme Court in acting in arbitration matters does act as a court of equity it applies equitable principles and enjoys a certain latitude of discretion. (Matter of Feuer Transp., Inc. [Local No. 445], 295 N.Y. 87; Western Union Tel. Co. v. Selly, 295 N.Y. 395.) Furthermore, it is familiar law that equitable relief may be tailored to the demands of circumstances and that the granting of the remedy of specific performance rests in the broad discretion of the court. (2 Story, Equity Jurisprudence [14th ed.], §§ 1026-1027, pp. 407-408.) However, it is also well established that equitable discretion is limited to the necessities of the situation. In addition in matters 64 arising under article 84 that discretion must be exercised in consonance with the agreement made by the parties and to that extent it may be said that the discretion of the court in arbitration matters is not as broad and untrammeled as that of equity generally. The court should, unless there exists a real probability that injustice will result, adhere to the method established by the contract and forego the rewriting of the contract for the parties. No such probability exists here. Let us assume for the purpose of discussion a situation where a dispute arises and the alignment remains the same as that supposedly contemplated at the time the contract was drawn viz., Charles and his son Albert arrayed against Isidore. It is conceivable that Charles and Albert, though their interests in the dispute be identical, would be unable to agree on the joint arbitrator. Upon petition of one of the parties, the court acting under section 1452 would, presumably, appoint a joint arbitrator for Charles and Albert. The effect would be the same as that resulting from Special Term's order in the instant matter: One "side" Isidore would be permitted to choose one arbitrator and the other arbitrator would be appointed by the court. If in that situation the court could appoint a single arbitrator the result would be that Isidore's right to appoint an arbitrator and to have disputes decided by three arbitrators for which he had contracted could be defeated at any time by his partners' actual or feigned inability to agree upon their joint arbitrator. Certainly under those circumstances the court would not have the power to so disregard the contract of the parties. We are unable to perceive any good reason why the result should be any different simply because the alignment of the partners has changed. The fact that one "side" will be able to appoint its arbitrator whereas the other "side" will be required to accept the court's choice does not work such injustice that contractual rights may be disregarded. The view that an arbitrator chosen by a party is merely that party's agent and will act in a partial manner, as suggested by respondent, may not be accepted. Under section 1455 of the Civil Practice Act arbitrators swear "faithfully and fairly to hear and examine the matters in controversy and to make a just award according to the best of their understanding * * ." If that oath be violated and an award procured by 65 fraud or corruption or if an award be tainted by partiality or interest of an arbitrator, it will be vacated. (Matter of Shirley Silk Co. [American Silk Mills], 260 A.D. 572; Matter of Friedman, 215 A.D. 130; Civ. Prac. Act, § 1462.) Upon a showing that there is reason to believe that an arbitrator is incapable of discharging his duties in an impartial manner he may be removed. (Western Union Tel. Co. v. Selly, 295 N.Y. 395, supra.) Thus it is clear that the law provides adequate protection for the interests of Albert. Of course the right to designate an arbitrator is as valuable to Albert as it is to Isidore. But Isidore contracted for the right to do so independently and Albert did not. We do not see that harm may result from honoring the contractual right of Isidore to select an arbitrator or that any useful purpose will be served by altering the framework within which the parties have agreed that their disputes be settled. The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. Ordered accordingly.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2984893/	Order filed January 30, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-13-00172-CV ____________ CASTLE HILLS PHARMACY, LLC AND MICHAEL WARD, Appellants V. JOSEPH A. TRIAL, Appellee On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1002800 ABATEMENT ORDER After a non-jury trial, appellant brings this appeal from a judgment signed February 25, 2013. Appellants timely requested findings of fact and conclusions of law and timely reminded the trial court when the findings and conclusions were overdue. In their brief, appellants assert the trial court did not file the requested findings and conclusions, and the failure hinders their ability to argue their appeal. When an appellant timely files a request for findings of fact and conclusions of law and a timely notice of past due findings, the trial court’s error in failing to file findings of fact and conclusions of law is generally presumed to be harmful, unless the record before the appellate court affirmatively shows that the complaining party has suffered no injury. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Electronic Power Design, Inc., v. R.A. Hanson Co., Inc., 821 S.W.2d 170, 171 (Tex. App.—Houston [14th Dist.] 1991, no writ). In this case, we cannot say that the record affirmatively discloses no injury. Because the trial judge continues to serve on the district court, the error in this case is remediable. See TEX. R. APP. P. 44.4. The proper remedy is to abate the appeal and direct the trial court to correct its error. See Zeiba v. Martin, 928 S.W.2d 782, 786 (Tex. App.—Houston [14th Dist.] 1996, no writ). Accordingly, we ORDER the appeal abated and direct the trial court to file findings of fact and conclusions of law on or before February 20, 2014. Within ten days after the trial court has filed findings of fact and conclusions of law, any party may file a request for specified additional or amended findings or conclusions. The trial court shall file any additional or amended findings that are appropriate within ten days after such a request is filed. The trial court’s findings of fact and conclusions of law, and any additional and amended findings or conclusions, shall be included in a supplemental clerk’s record to be filed with this court on or before March 20, 2014. The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s record is filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate the appeal on its own motion. PER CURIAM 2	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2377741/	837 F. Supp. 771 (1992) Pamela S. LAWRENCE, Plaintiff, v. JACKSON MACK SALES, INC., Northbrook Insurance Company and Southern Marketing Services, Defendants. Civil A. No. J89-0573(L). United States District Court, for the S. District Mississippi, Jackson Division. November 2, 1992. 772 773 774 775 Paul Koerber, Jackson, MS, William Featherston, Ridgeland, MS, for plaintiff. Steven H. Begley, Wells, Wells, Marble & Hurst, Keith Ralston, Heidelberg & Woodliff, Jackson, MS, for defendants. MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. Plaintiff Pamela S. Lawrence brought the present action seeking benefits pursuant to an employee benefit plan covered by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(e), as amended by the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161 et seq., and damages relating to the failure to pay such benefits as were allegedly due, including statutory penalties for failure to provide notice of her COBRA rights. The case is now before the Court on the motion of defendant Jackson Mack Sales, Inc. (Jackson Mack) for partial summary judgment, the motions of defendants Northbrook Life Insurance Company (Northbrook) and Southern Marketing Services (Southern Marketing) for summary judgment and Northbrook's motion for summary judgment as to the cross-claim asserted against it by Jackson Mack. Plaintiff Pamela S. Lawrence has responded to defendants' motions, and Jackson Mack has responded to Northbrook's 776 motion. The court, having considered the motions and responses, along with memoranda of authorities and attachments thereto, is of the opinion that defendants' motions for summary judgment as to Lawrence's claims should be granted in part and denied in part and that Northbrook's motion as to Jackson Mack's cross-claim should be denied. FACTS AND PROCEDURAL HISTORY On November 1, 1985, Jackson Mack established an employee welfare benefit plan for its employees and their dependents.[1] The plan, with effective dates of November 1, 1985 to December 31, 1988, was funded through group insurance coverage issued by Northbrook to the Trustee of the Northbrook Multiple Employer Trust for the Retail Industry. The group insurance coverage provided life insurance, accidental death, dismemberment, weekly indemnity and major medical insurance benefits to Jackson Mack employees and their beneficiaries. Southern Marketing processed and paid eligible claims under the Group Plan. Phillip B. "Tiny" Lawrence, Jr., a managerial employee of Jackson Mack and Pamela Lawrence's former husband, participated in the plan maintained by Jackson Mack, and plaintiff and her children, as Tiny Lawrence's dependents, were covered under the plan from the time coverage was extended to Tiny Lawrence in November 1985. On December 25, 1986, over a year after the inception of the employee benefit plan, Tiny Lawrence informed his wife that he wanted a divorce and approximately a month later, on February 9, 1987, Pamela and Tiny Lawrence filed a joint complaint for divorce in the Chancery Court of Madison County, Mississippi. The divorce was finalized on May 6, 1987. At some point after plaintiff and her husband filed for divorce but prior to the entry of the divorce decree, plaintiff consulted with her divorce attorney about whether she could continue coverage under the benefit plan after her divorce. Her attorney advised her to contact Jackson Mack to determine if the plan provided a continuation or conversion policy that would allow her to remain a plan beneficiary. Lawrence asserts that in accordance with her attorney's advice, she contacted the insurance clerk at Jackson Mack, Bonny Kelly, who, in response to plaintiff's inquiry, informed her that coverage under the plan and insurance policies would cease upon the finalization of her divorce and that plaintiff could not continue the coverage by paying premiums for the coverage.[2] Following her conversation with Kelly, plaintiff communicated with an insurance clerk for Southern Marketing, who confirmed to plaintiff that her coverage would not continue after plaintiff's divorce from her husband. On or about May 30, 1987, plaintiff's coverage under the health insurance policy of the employee benefit plan was terminated. Soon after her divorce from Tiny and the termination of her insurance coverage, plaintiff began experiencing health problems. In August 1987, she collapsed while on a trip to Dallas, Texas, and later learned from her physician that she had suffered a heart attack. In late November of that year, she underwent a heart catherization and in January 1988, plaintiff had triple bypass cardiovascular surgery. Subsequently, she developed rheumatic fever due to an infection at the graph site and further treatment was required. Without insurance coverage, Lawrence was unable to pay her medical expenses and on 777 May 25, 1988, filed for bankruptcy protection under Chapter 7 of Title 11 of the United States Code. In re Pamela A. Lawrence, Bankruptcy Case No. 8801547 (Bankr. S.D.Miss.1988). By order of the bankruptcy court, plaintiff was released from all dischargeable debts on October 14, 1988. On October 6, 1989, Lawrence filed suit against defendants Jackson Mack, Northbrook and Southern Marketing[3] and on October 4, 1990 filed the amended complaint that is the basis of the motions presently under consideration.[4] PLAINTIFF'S CAUSES OF ACTION Plaintiff alleges in count 1 of her amended complaint that following the enactment of COBRA, defendants failed to provide her a "general COBRA notification" apprising Lawrence of her right to continuation coverage under the employee benefit plan and thus violated COBRA's notification requirements set forth in 29 U.S.C. § 1161. For this alleged violation, she seeks an award of statutory penalties provided by 29 U.S.C. § 1132(c)(1).[5] In count 2, she alleges that after receiving notice of plaintiff's divorce, a "qualifying event" under 29 U.S.C. § 1163(3), defendants failed to offer to continue or convert her insurance coverage, as mandated by 29 U.S.C. § 1162. As damages for this alleged violation, Lawrence seeks to recover (1) all benefits which would have been due under a continued or converted insurance policy, pursuant to 29 U.S.C. § 1132(a)(1)(B); (2) all relief which may be granted under 29 U.S.C. § 1132(a)(2) for breach of fiduciary duties imposed by 29 U.S.C. §§ 1104 and 1109; (3) $1 million as incidental and consequential damages, pursuant to 29 U.S.C. § 1132(a)(3); (4) future benefits under the plan which will be due on medical and medically-related expenses, pursuant to 29 U.S.C. § 1132(a)(1)(B); (5) all amounts necessary to restore her to the position she held prior to defendants' alleged breaches, pursuant to 29 U.S.C. § 1132(a)(3); (6) attorneys' fees pursuant to 29 U.S.C. § 1132(g); (7) equitable relief pursuant to 29 U.S.C. § 1132(a)(3); and (8) prejudgment interest. Count 3 of plaintiff's amended complaint alleges that defendants breached their duties as fiduciaries or co-fiduciaries by failing to comply with 29 U.S.C. §§ 1104 and 1105, and demands actual damages of $250,000 in accordance with 29 U.S.C. § 1132(a)(3), as well as an accounting. In this count, plaintiff charges that for all of the breaches of the duties owed to her, defendants are jointly and severally liable as provided by 29 U.S.C. § 1109. In addition to her ERISA claims, Lawrence asserts in count 4 a state law claim of tortious interference with her contractual and statutory rights to continuation or converted insurance coverage, for which she seeks actual damages in the amount of $200,000 and punitive damages of $1 million. Jackson Mack has moved for partial summary judgment and Northbrook and Southern Marketing have moved for summary judgment as to plaintiff's claims.[6] COBRA On July 1, 1986, the Consolidated Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161 et seq., became effective. COBRA, which amended ERISA, mandated that employers sponsoring group health plans which are part of ERISA employee benefit plans provide continuation or conversion insurance coverage to beneficiaries who would 778 otherwise lose coverage as a result of a "qualifying event," such as death of a covered employee, divorce from a covered employee, or termination from employment. 29 U.S.C. § 1161(a).[7] COBRA includes two notification requirements, both of which are relevant to the present action. First, COBRA requires that at the inception of a group health plan, beneficiaries be provided a "general notification" of their right to elect to continue or convert their coverage under the plan. 29 U.S.C. § 1166(a)(1).[8] In addition, upon being notified by the employee or beneficiary of the occurrence of a "qualifying event" under 29 U.S.C. § 1163, which includes "divorce ... of the covered employee from the employee's spouse," the plan administrator must apprise the beneficiary or employee of his or her entitlement to continuation coverage. 29 U.S.C. 1166(a)(4)(B).[9] EFFECT OF BANKRUPTCY ON PLAINTIFF'S ERISA CLAIMS As indicated, plaintiff's various claims in this lawsuit are based upon her contention that defendants failed to provide her notice of her rights under COBRA, as required by 29 U.S.C. § 1166(a)(1) and (4), and thus deprived her of insurance coverage to which she was entitled under COBRA. Allegedly as a result of defendants' failure to afford her such coverage, plaintiff was forced to file for protection under the Bankruptcy Code on May 25, 1988. A final bankruptcy decree discharging her debts was entered on October 14, 1988. Defendants contend in their present motions that all of the claims asserted by Lawrence in this action which accrued prior May 25, 1988, the date of her filing for protection under the Bankruptcy Code, may not now be pursued by plaintiff since all such claims were assigned by operation of law to her bankruptcy estate. The court's first task in resolving the pending motions is to determine the effect of plaintiff's bankruptcy petition on the claims she is asserting in this lawsuit.[10] Specifically, the court must determine whether plaintiff may pursue the claims she has asserted or whether those claims must be pursued, if at all, by the bankruptcy trustee. 779 The filing of a bankruptcy petition creates a bankruptcy estate. The property of which a bankruptcy estate is comprised is listed at 11 U.S.C. § 541(a), which provides in pertinent part: (a) The commencement of a case under section 301, 302 or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. Section 541(a)(1), therefore, provides that legal or equitable interests held by a debtor at the commencement of a bankruptcy case become the property of the bankruptcy estate. Courts have uniformly held that the phrase "legal or equitable interests" encompasses causes of action. See, e.g., Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir.1988), cert. denied, 489 U.S. 1079, 109 S. Ct. 1531, 103 L. Ed. 2d 836 (1989) ("`interests of the debtor in property' include `causes of action'") (citations omitted); Louisiana World Exposition v. Federal Ins. Co., 858 F.2d 233, 245 (5th Cir.1988) ("The scope of the term `property of the estate' is very broad. Section 541(a)(1)'s reference to `all legal or equitable interests of the debtor in property' includes causes of action belonging to the debtor at the time the case is commenced.") (citations omitted); In re Ozark Restaurant Equip. Co., 816 F.2d 1222, 1225 (8th Cir.), cert. denied, 484 U.S. 848, 108 S. Ct. 147, 98 L. Ed. 2d 102 (1987) (same); In re Mortgage America Corp., 714 F.2d 1266, 1274 (5th Cir.1983) ("Even on its face, section 541(a)(1) is all-encompassing, and Congress meant for it to be construed commensurately."); In re Smith, 640 F.2d 888, 890 (7th Cir.1981) (bankruptcy estate includes truth-in-lending causes of action). Causes of action need not be formally filed prior to the commencement of a bankruptcy case to become property of the bankruptcy estate. See, e.g., Wissman v. Pittsburgh Nat'l Bank, 942 F.2d 867, 869 (4th Cir.1991) ("possible claim" not pending at time of filing of bankruptcy petition became property of the estate upon filing of petition); Miller v. Shallowford Community Hosp., Inc., 767 F.2d 1556, 1561 (11th Cir. 1985) (cause of action for personal injury protection insurance existed at time of filing of bankruptcy petition, even though debtor had not formally filed action); In re Cottrell, 82 B.R. 45, 46 (W.D.Ky.1987) (tort action involving automobile accident that occurred prior to filing of bankruptcy petition existed at time of filing of petition, even though action was not formally commenced at time of bankruptcy petition filing); In re Bell & Beckwith, 64 B.R. 144, 147 (Bankr.N.D.Ohio 1986) ("[A]ny cause of action which has accrued to the Debtor as of the filing of the petition is property of the estate and may only be prosecuted on behalf of the estate."). Accordingly, a cause of action belonging to a debtor that existed at the time of the filing of a bankruptcy petition becomes property of the bankruptcy estate and may only be prosecuted by the trustee of the bankruptcy estate, the real party in interest under Rule 17(a) of the Federal Rules of Civil Procedure. The issue to be decided, therefore, is whether some or all of plaintiff's claims accrued prior to her discharge in bankruptcy.[11] Those 780 which did, if any, are property of the bankruptcy estate and may only be prosecuted by the bankruptcy trustee.[12] The Fifth Circuit has held that an ERISA cause of action pursuant to 29 U.S.C. 1132(a)(1)(B) does not accrue for statute of limitations purposes until a claim for benefits has been denied. Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir.1990) (noting "the general rule that no cause of action accrues under ERISA until ... an application is actually filed and denied"); Paris v. Profit Sharing Plan, 637 F.2d 357, 361 (5th Cir.), cert. denied, 454 U.S. 836, 102 S. Ct. 140, 70 L. Ed. 2d 117 (1981) ("[A] cause of action does not become a presently enforceable demand until a claim is denied.... We hold that for purposes of ERISA a cause of action does not accrue until an application is denied.").[13] This case, however, is not limited to the denial of a claim for benefits, but rather is predicated upon an alleged failure or refusal to provide insurance coverage which is mandated by law. Accordingly, the accrual rule premised on claims denial would not appear applicable. Instead, the appropriate rule would seem to be that plaintiff's cause of action accrued at the time that she, in the exercise of reasonable diligence, discovered or should have discovered her claim. See Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123 (1st Cir.1987) (applying federal accrual rule to securities fraud claim).[14] Plaintiff contends the first knowledge she had concerning her COBRA rights came in late October or early November 1988, while talking about her ordeal with a friend who happened to work with and have substantial familiarity with employee benefit plans.[15] According to Lawrence, that was when she first learned that she had been entitled under COBRA to continuation and conversion coverage, and that she had been misinformed and misled by defendants about her rights. Thus, she maintains that her claims did not accrue until that time and therefore never became the property of the bankruptcy estate. Even accepting as true plaintiff's version of the events as to when she came to learn of her COBRA rights, that 781 does not settle this issue. That is because actual knowledge of one's cause of action is not a prerequisite to the accrual of her claim. Rather, the claims accrued when she knew or in the exercise of due diligence should have known that she had the claims. On this point, there is a great deal of controversy. According to plaintiff, in June 1987 she was told in no uncertain terms that her coverage had lapsed and that there was nothing she could do to secure continued coverage, whether under her husband's policy or an individual policy. She made several attempts to obtain coverage through defendants because a number of people, including an attorney, told her she should do so,[16] but her efforts were unavailing as defendants repeatedly informed her that she could not remain covered after her divorce became final. Thus she suggests that despite her diligent efforts, she failed to learn of her rights, in large part due to defendants' having misrepresented to her that she had no rights. Defendants take the position that even if Lawrence did not discover the legal basis of her claims until late 1988, she nonetheless was aware of the facts giving rise to her claim prior to her filing of a petition in bankruptcy and the claims had accrued regardless of plaintiffs lack of awareness of the legal consequences of defendants' alleged omissions. They further argue that she did not exercise "due diligence" to learn of her claims. The general rule is that a claim accrues when the plaintiff knows or has reason to know of the facts which give rise to her claim. Plaintiff here knew the "facts" that she was to be divorced from a Tiny Lawrence, a covered employee, and that defendants had refused to provide her with insurance coverage. However, according to her allegations, she did not know of her legal right to continued coverage in the event of her divorce, nor did she know of the "fact" that defendants had violated their legal duty to advise her of her rights since defendants not only failed to comply with their legal duty to advise her of her rights but went further and explicitly advised her time and time again that she had no rights. That is, either negligently or intentionally, they provided her with not merely misleading but false information regarding her rights, effectively concealing her claims. To permit such alleged conduct by defendants to deprive plaintiff of the opportunity to pursue her claim would, in the circumstance here presented, operate to frustrate the policies underlying COBRA generally and its notice requirements in particular, the very purpose of which is to apprise benefit plan participants of their rights to coverage.[17] Further, contrary to defendants' assertions, it could reasonably be concluded from the evidence of record that plaintiff exercised due diligence to discover her rights, but through no fault of her own, was unsuccessful in doing so.[18] While the question whether the plaintiff should have discovered her claim is governed by an objective standard, "the determination of whether a plaintiff actually exercised reasonable diligence 782 requires a more subjective inquiry focusing upon the circumstances of the particular case," including the existence of a fiduciary relationship, the nature of the wrong alleged, the plaintiffs opportunity to discover the wrong, and the subsequent actions of the defendants. Rodriguez v. Banco Central, 727 F. Supp. 759 (D.P.R.1989) (citing Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 128 (1st Cir.1987). The court is unable to conclude at this juncture that the plaintiff did not exercise due diligence to discover her claims or that based on the information she acquired, she should have known of the existence of her claims. Consequently, the court cannot determine at this time that Lawrence's claims accrued prior to her filing bankruptcy and thus cannot conclude that the claims became the property of the bankruptcy estate. GENERAL NOTIFICATION CLAIM Defendants maintain that even if plaintiff is not precluded from asserting her claims by reason of her having filed for bankruptcy protection and having secured a discharge, she is nevertheless barred from recovery based on the undisputed facts of record. Regarding her claim for defendants' alleged failure to provide her with general COBRA notification, defendants contend that the unrefuted evidence establishes that the general notification mandated by COBRA was, in fact, sent to each employee of Jackson Mack by first class mail and that accordingly, plaintiff's claim premised on the failure to provide such notice must fail. In this regard, Bonny Kelly, Jackson Mack's insurance clerk at the time COBRA became effective, testified by deposition that in October or November of 1986, notice advising of the enactment of COBRA and setting forth the obligations of Jackson Mack, Southern Marketing and employees and beneficiaries with regard to COBRA benefits and notification requirements was mailed by first class mail to Jackson Mack employees and their families at the latest address on file.[19] Lawrence and her former husband take the position that they never received any notification concerning COBRA. COBRA contains no specific requirements as to the manner in which notice must be given. The courts that have addressed the issue of the manner in which the notices required by § 1166 may be communicated have held that "a good faith attempt to comply with a reasonable interpretation of the statute is sufficient." Jachim v. KUTV, Inc., 783 F. Supp. 1328, 1333 (D.Utah.1992); Branch v. G. Bernd Co., 764 F. Supp. 1527, 1534 n. 11 (M.D.Ga.1991), aff'd, 955 F.2d 1574 (11th Cir.1992) ("courts have generally validated methods of notice which are calculated to reach the beneficiary"); see also H.R.Rep. No. 453, 99th Cong., 1st Sess. 563 (stating that pending the promulgation of regulations defining what will constitute adequate notice, "employers are required to operate in good faith compliance with a reasonable interpretation" of COBRA's requirements). Methods of notification which are reasonably calculated to reach the employee or beneficiary are considered to conform to the standard of good faith compliance with the statute. Jachim, 783 F.Supp. at 1333; Dehner v. Kansas City Southern Indus., Inc., 713 F. Supp. 1397, 1400 (D.Kan.1989) (notices under § 1166 must be reasonably calculated to reach those to whom they were directed; hand delivery deemed sufficient). In the case at bar, the issue is not whether Jackson Mack's chosen method for notifying employees and beneficiaries of their rights and obligations under COBRA was an adequate method of notification, for it has been recognized that "[a]n employer or plan administrator 783 who sends proper notice by first class mail to the covered employee's last known address is deemed to be in good faith compliance" with the notice requirements of § 1166. Truesdale v. Pacific Holding Co./Hay Adams Div., 778 F. Supp. 77, 81 (D.D.C. 1991); see also Jachim, 783 F.Supp. at 1333; Dehner, 713 F.Supp. at 1400. The question here concerns the adequacy of Jackson Mack's proof that such notices were in fact mailed. In Truesdale, the court observed that "correspondence which is addressed and mailed properly, is presumed to have been received," Truesdale, 778 F.Supp. at 81 (citing Legille v. Dann, 544 F.2d 1 (D.C.Cir.1985), and where this presumption of receipt arises, the plaintiff's claim that she never received the correspondence will not be sufficient to rebut it. The plaintiff in Truesdale claimed that she had rebutted the presumption of receipt by her testimony of non-receipt coupled with the fact that the defendant had failed to include her complete address on the notices. The court, though, rejected her claim because the defendant, in addressing the notices to plaintiffs "last known address," had utilized the precise address which the plaintiff had provided on her employment application and on an employee data card which she filled out after she was hired. Thus, the court deemed that the employer's good faith reliance on information provided by the plaintiff was sufficient, and concluded that the plaintiff was not entitled to benefit from her own error. 778 F. Supp. at 81. In Jachim, the employer presented proof, in the form of the affidavit of its manager of human resources, that she prepared a letter to the plaintiff advising him of his termination from employment and of his COBRA right to continue medical coverage. The affidavit stated that in accordance with the company's standard office procedure, she had addressed the letter to the employee's last known address (which address was apparently recited in the affidavit), and placed the letter into the company's mail bin, from which letters were regularly retrieved and delivered to the United States Post Office by KUTV employees. The employee, however, denied that he ever received the notices. Unlike the court in Truesdale, the Jachim court was unconcerned with the question whether any presumption of receipt arose, since in that court's view, the issue was not whether the employee had received the notice, but rather was whether the employer caused the notice to be sent in a good faith manner reasonably calculated to reach the employee. 783 F. Supp. at 1333-34. The court found that the affidavit described tended to show that the company did cause the notice to be mailed. And it found an absence of any evidence from the plaintiff to indicate that notice was not mailed, stating: Jachim, on the other hand, does not offer any evidence challenging Cobbledick's testimony that she prepared the letter and mailed it in accordance with KUTV's standard procedures. Nor does Jachim offer any evidence that the letter was not retrieved from KUTV's mail bin and delivered to the United States Postal Service. Id. at 1334. Thus, the court concluded that, as a matter of law, the company had satisfied its obligations under § 1166. This court shares the view of the Jachim court that § 1166 does not require proof that the notices required by that section be received. The court thus limits its consideration of the proof solely to the question of whether there is a genuine issue of material fact concerning Jackson Mack's assertion that the notice was mailed. In contrast to the proof presented in Jachim and Truesdale, Bonny Kelly's testimony concerning the circumstances of the alleged mailing of COBRA notices to employees and their families in the case at bar is not sufficient, standing alone, to demonstrate that the notices were "addressed and mailed properly." Truesdale, 778 F.Supp. at 81. Kelly testified only that "[w]e mailed [the notice] first class mail to the employee home address; that was the latest home address they had on file, we sent to that address." She could not recall how the notices were addressed and did not relate the address of the Lawrences to which she claimed to have mailed the notice. Further, she offered no information concerning the company's standard mailing procedures or the procedures which were utilized in the 784 case of these particular notices.[20] Based on the current state of the record, the court is compelled to conclude that there exists a genuine issue as to whether the notices were mailed, thus making summary judgment inappropriate.[21] QUALIFYING EVENT NOTIFICATION CLAIM COBRA requires that in the event of a divorce, the benefit plan participant is responsible for notifying the employer of the occurrence of that qualifying event; only in the event this notification is given does the employer have an obligation to provide notification to that participant of her rights to continuation or conversion coverage. 29 U.S.C. § 1166(a)(4)(B). In the instant case, Lawrence claims that prior to her divorce, she repeatedly advised defendants that a divorce was imminent and that she wished to continue her coverage, and she further maintains that immediately following her divorce, she continued to communicate with defendants with specific reference to the effect of her recent divorce on her insurance coverage. Additionally, Lawrence contends that many employees of Jackson Mack, including Bonny Kelly, the insurance clerk, were generally aware of the fact that she and Tiny were separated and would be divorced.[22] Plaintiff claims that despite her having made defendants well aware of the fact of this "qualifying event," defendants nevertheless failed to provide her with the qualifying event notification required by COBRA. Defendants dispute that plaintiff provided them with any notice of her divorce, but contend that even if she did provide oral notification, as she claims, that notice would not be sufficient to trigger the requirements of § 1166. That is, defendants argue that the notice of a qualifying event must be in writing to be effective. In support of their position, defendants cite Treasury Department Regulations § 1.162.26, 26 C.F.R. pt. 1, which provide that if notice is not "sent" within sixty days of the occurrence of a qualifying event or the date that coverage would lapse due to the qualifying event, qualifying event notification need not be given. This argument was rejected in Swint v. Protective Life Ins. Co., 779 F. Supp. 532 (S.D.Ala.1991) ("That notification, which, significantly, is not required to be in or to assume any particular form, then triggers notification obligations on the part of the plan administrator.") (emphasis in original), because, as the court noted: Although the regulation uses the word "sent" in reference to the qualified beneficiary's 785 notice of election, thus implying that the notice must be in writing, the regulation does not require or so imply that the notice to the employer or plan administrator of the occurrence of a qualifying event must be in writing. Id. at 554 n. 56. The court concludes that Lawrence was not required to provide written notification of her divorce; and if, as she contends, she did give defendants oral notice of that qualifying event, then defendants' duty to in turn give Lawrence notice of her rights to continued coverage upon that divorce was breached. Clearly, there exist genuine issues of material fact as to this claim which preclude entry of summary judgment.[23] BREACH OF FIDUCIARY DUTIES In her amended complaint, plaintiff alleges that defendants breached their fiduciary duties by failing to comply with statutory notice requirements and for this alleged omission, she seeks actual damages pursuant to 29 U.S.C. §§ 1109 and 1132(a)(2).[24] Defendants maintain that Lawrence's breach of fiduciary duties claim must be dismissed since she, as an individual plan beneficiary, is not authorized by ERISA to pursue a claim for money damages under either § 1109 of § 1132(a)(2) for alleged breaches of fiduciary duties. It is clear that § 1109, one of the ERISA provisions under which plaintiff seeks to recover damages for defendants' alleged breaches of fiduciary duties, cannot be utilized as a basis for recovery. That section provides in relevant part as follows: (a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.... In Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S. Ct. 3085, 87 L. Ed. 2d 96 (1985), the Supreme Court addressed the question "whether, under [ERISA], a fiduciary to an employee benefit plan may be held personally liable to a plan participant or beneficiary for extracontractual compensatory or punitive damages caused by improper or untimely processing of benefit claims." After first noting the section's apparent "emphasis on the relationship between the fiduciary and the plan as an entity," id. at 140, 105 S. Ct. at 3089, the Court was persuaded by the text of § 1109 that "Congress did not intend that section to authorize 786 any relief except for the plan itself," id. at 144, 105 S. Ct. at 3091. [T]he structure of the entire statute, and its legislative history all support the conclusion that in [§ 1109(a)] Congress did not provide, and did not intend the judiciary to imply, a cause of action for extracontractual damages caused by improper or untimely processing of benefit claims. Id. at 148, 105 S. Ct. at 3093; see also Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir.1992) (Russell held that § 1109 "authorized only actions on behalf of the plan as a whole, not individual beneficiaries, for losses to the plan"). While Russell is dispositive of plaintiff's claim for damages under § 1109, it does not similarly resolve her claim for damages under § 1132(a)(3). Indeed, because the plaintiff in Russell relied entirely on § 1109 as the basis for her entitlement to recovery and expressly disclaimed reliance on § 1132(a)(3), the Court deliberately left open the question whether "any other provision of ERISA authorizes recovery of extracontractual damages." Id. 473 U.S. at 139 n. 5, 105 S. Ct. at 3088 n. 5. The Fifth Circuit explained in Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir.1992), that "[w]hen a beneficiary simply wants what was supposed to have been distributed under the plan, the appropriate remedy is § 502(a)(1)(B)...." Corcoran, 965 F.2d at 1335. Thus, to the extent that plaintiff seeks to recover the benefits and coverage which she would have received had defendants complied with their statutory duties, § 1132(a)(1)(B) provides a basis for her recovery.[25]See Larsen v. NMU Pension Plan Trust, 767 F. Supp. 554 (S.D.N.Y.1991) (finding breach of fiduciary duty by reason of fiduciary's failing to provide statutorily required information concerning pension and providing materially misleading information to employee as to availability of pension and awarding damages to plan beneficiary for such breaches.) "Damages that would give a beneficiary more than he or she is entitled to receive under the strict terms of the plan are typically termed `extracontractual.' Section 502(a)(3) by its terms permits beneficiaries to obtain `other appropriate equitable relief to redress (1) a violation of the substantive provisions of ERISA or (2) a violation of the terms of the plan." Id. The question is whether additional damages, "extracontractual damages," are available for the alleged breaches. In this regard, plaintiff seeks to recover "incidental and consequential damages" for defendants' alleged violations of ERISA, including their alleged breaches of fiduciary duties. More specifically, she seeks to recover damages for her loss of credit status, loss of financial stability, embarrassment, humiliation and menace, severe mental and emotional distress and anxiety, and loss of enjoyment of life.[26] 787 In Pilot Life Ins. Co. v. Dedeuax, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987), the Supreme Court held that 29 U.S.C. § 1132 provides the exclusive remedies for violations of ERISA. Although the statute provides at subsection (3)(B) that an action may be brought "to obtain other appropriate equitable relief," the question of what constitutes "other appropriate equitable relief" has been the subject of much discussion and disagreement among the courts. The courts have uniformly held that the section does not permit an award of punitive damages. See, e.g., Sommers Drug Stores v. Corrigan Enterprises, 793 F.2d 1456 (5th Cir.1986), cert. denied, 479 U.S. 1089, 107 S. Ct. 1298, 94 L. Ed. 2d 154 (1987). Some courts have concluded that the relief referenced by § 1132(a)(3) is limited to declaratory or injunctive relief and does not include damages of any kind. Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 824 (1st Cir.), cert. denied, 488 U.S. 909, 109 S. Ct. 261, 102 L. Ed. 2d 249 (1988); Sokol v. Bernstein, 803 F.2d 532, 538 (9th Cir.1986). Some have found that such consequential injuries as emotional distress are not available as "appropriate equitable relief." See United Steelworkers of America v. Connors Steel Co., 855 F.2d 1499 (11th Cir.1988), cert. denied sub nom, H.K. Porter Co. v. United Steelworkers of America, 489 U.S. 1096, 109 S. Ct. 1568, 103 L. Ed. 2d 935 (1989); Powell v. Chesapeake & Potomac Tele. Co., 780 F.2d 419 (4th Cir.1985), cert. denied, 476 U.S. 1170, 106 S. Ct. 2892, 90 L. Ed. 2d 980 (1986). And others have suggested that such extracontractual damages as are necessary to restore the plaintiff to the condition she occupied prior to the alleged breach may be recoverable. See Warren v. Society Nat'l Bank, 905 F.2d 975 (6th Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2256, 114 L. Ed. 2d 709 (1991). The Fifth Circuit considered whether punitive damages were available under either § 1109 or § 1132(a)(3) for breach of fiduciary duties in Sommers Drug Stores v. Corrigan Enterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), reh'g denied en banc, 797 F.2d 977 (5th Cir.1986). Initially, the court addressed the question whether the phrase in § 1109 "other equitable or remedial relief" included punitive damages, and concluded that it did not, because: "Equitable or remedial" relief generally includes all of the kinds of relief available to restore the plaintiff's losses or protect him from future harm recission, e.g., Gilliam v. Edwards, 492 F. Supp. 1255, 1267 (D.N.J.1980), removal of the trustee, e.g., Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir.), cert. denied, 469 U.S. 1072, 105 S. Ct. 565, 83 L. Ed. 2d 506 (1984), appointment of a receiver, e.g., Marshall v. Snyder, 572 F.2d 894, 901 (2d Cir.1978), and other similar relief. Punitive damages do not fall within the broad category of "equitable or remedial" relief; rather than restoring the plaintiff's losses and protecting him from future harm, punitive damages are designed to punish the wrongdoer and deter others from similar misconduct. Id. at 1463. The court then concluded that punitive damages were similarly unavailable under § 1132(a)(3)(B), explaining: The Supreme Court left open in Russell the issue whether this provision permits recovery of extracontractual compensatory or punitive damages. See 105 S.Ct. at 3089 n. 5. For the reasons discussed at length in the preceding subsection, we conclude that it does not. In brief, the phrase "equitable relief," as it is used in the law of trusts, does not encompass punitive damages. Id. at 1464. Though the court in the last quoted passage from Sommers Drug made a reference to "extracontractual compensatory or punitive damages," the court's opinion actually discussed only whether punitive damages could be awarded for a breach of fiduciary duty under ERISA. No issue was raised concerning extracontractual damages and other than the one reference described, the court did not purport to address or resolve 788 any question concerning extracontractual damages under ERISA. More recently, the Fifth Circuit was called upon to address the relief available under ERISA for breaches of fiduciary duties. In Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir.1992), the court stated, "[t]he question whether extracontractual or punitive damages are available to a beneficiary under § 502(a)(3) has been left open by the Supreme Court ever since [Russell]." Id. at 1335.[27] The court in Corcoran was confronted, as is this court, with a contention by the plaintiff that an analysis suggested by Justice Brennan in his concurrence in Russell which would permit the recovery of certain types of extracontractual damages should be adopted by the court. The court explained Justice Brennan's concurrence as follows: In a concurrence joined by three other justices, Justice Brennan emphasized that he read the Court's reasoning to apply only to § 409(a), and that the legislative history of ERISA suggested that courts should develop a federal common law in fashioning "other appropriate equitable relief" under § 502(a)(3). Id. at 155-56, 105 S. Ct. at 3097. (Brennan, J., concurring in the judgment). Justice Brennan argued that Congress "intended to engraft trustlaw principles onto the enforcement scheme" of ERISA, including the principle that courts should give to beneficiaries of a trust the remedies necessary for the protection of their interests. Id. at 156-57. 105 S. Ct. at 3097-98. Consequently, he encouraged courts faced with claims for extracontractual damages first to determine to what extent state and federal trust and pension law provide for the recovery of damages beyond any benefits that have been withheld, and second to consider whether extracontractual relief would conflict with ERISA in any way. Id. at 157-58, 105 S. Ct. at 3098. With respect to the first inquiry, he indicated that any deficiency in trust law in the availability of make-whole remedies should not deter courts from authorizing such remedies under § 502(a)(3), for Congress intended in ERISA to strengthen the requirements of the common law of trusts as they relate to employee benefit plans. Id. at 157 n. 17, 105 S. Ct. at 3098 n. 17. Finally, Justice Brennan suggested, courts should keep in mind that the purpose of ERISA is the "enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and promotion of the best interests of participants and beneficiaries." Id. at 158, 105 S. Ct. at 3098. 965 F.2d at 1335-36. The Fifth Circuit ultimately found it unnecessary to determine whether "Justice Brennan's view of `other appropriate equitable relief as potentially encompassing make-whole relief' was a proper construction of § 1132(a)(3)(B), since the form of extracontractual damages sought by the plaintiffs, emotional distress damages, would have been unavailable even under such a construction. However, the court expressed implicit approval of Justice Brennan's view, stating: The characterization of equitable relief as encompassing damages necessary to make the plaintiff whole may well be consistent with the trust law principles that were incorporated into ERISA and which guide its interpretation. See Firestone, [Tire & Rubber Co. v. Bruch], 489 U.S. [101] at 110-11, 109 S.Ct. [948] at 953-54 [103 L. Ed. 2d 80 (1989)] (because ERISA is largely based on trust law, those principles guide interpretation); H.R.Rep. No. 533, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S.Code Cong. & Admin.News 4639; S.Rep. No. 127, 93d Cong. 1st Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4838 (indicating intent to incorporate the law of trusts into ERISA). Section 205 of the Restatement (Second) of Trusts allows for monetary damages as make-whole relief, providing that a beneficiary has "the option of pursuing a remedy which will put him in the position in which he was before the trustee committed the breach of trust" or "of pursuing a remedy which will put him in the position in which 789 he would have been if the trustee had not committed the breach of trust." In the context of breach of a trustee's investment duties, "the general rule [is] that the object of damages is to make the injured party whole, that is, to put him in the same condition in which he would have been if the wrong had not been committed.... Both direct and consequential damages may be awarded." G. Bogert & G. Bogert, The Law of Trusts and Trustees, § 701, at 198 (2d ed. 1982); see also Estate of Talbot, 141 Cal. App. 2d 309, 296 P.2d 848 (1956); In re Cook's Will, 136 N.J.Eq. 123, 40 A.2d 805 (1945). This view may also be consistent with the common law contract doctrine which assists us in interpreting ERISA. As the Court observed in Russell, ERISA was enacted "to protect contractually defined benefits." 473 U.S. at 148, 105 S. Ct. at 3093. Prior to the enactment of ERISA, the rights and obligations of pension beneficiaries and trustees were governed not only by trust principles, but in large part by contract law. Firestone, 489 U.S. at 112-13, 109 S. Ct. at 955; see also Hoefel v. Atlas Tack Corp., 581 F.2d 1, 4-7 (1st Cir.1978); Audio Fidelity Corp. v. Pension Benefit Guaranty Corp., 624 F.2d 513, 517 (4th Cir.1980); Rochester Corp. v. Rochester, 450 F.2d 118, 120-21 (4th Cir.1971). It is well established that contract law enables an aggrieved party to recover such damages as would place him in the position he would have occupied had the contract been performed, Restatement (Second) of Contracts § 347 comment a (1981), including those damages that could reasonably have been foreseen to flow from the breach. Id. § 351; see Warren v. Society Nat'l Bank, 905 F.2d 975, 980 (6th Cir. 1990) (§ 502(a)(3) allows for recovery of beneficiaries' increased tax liability after plan administrators failed to follow instructions regarding distribution), cert. denied, ___ U.S. ___, 111 S. Ct. 2256, 114 L. Ed. 2d 709 (1991). Id. at 1336-37. Given what could be construed as the Fifth Circuit's implicit approval of Justice Brennan's approach, this court cannot conclude that ERISA precludes the recovery of all extracontractual damages. Rather, it appears that it is incumbent on the court to analyze the types of extracontractual damages sought to be recovered by Lawrence for the purpose of determining whether any part of those damages would be available under the law of trusts to place her in the position she occupied prior to defendants' alleged breaches. In this regard, the Corcoran court held that damages for mental and emotional distress and anguish would not be recoverable under ERISA. Therefore, plaintiff's claim for "severe mental and emotional distress," for "embarrassment, menace and humiliation," and for "loss of enjoyment of life" are not recoverable in this action and defendants are entitled to summary judgment on her claims for such damages. The remaining extracontractual damages sought by plaintiff consist of damages for "loss of credit status" and "loss of financial stability" resulting from her having been forced to file for bankruptcy protection which, she alleges, was caused by defendants' alleged omissions. A number of courts have recognized that an award for damage to one's credit resulting from a breach of contract may be necessary to place that party in the position he occupied before the breach, but only if the loss of credit results in pecuniary loss, the amount of which is reasonably ascertainable. See, e.g., National Farmers Organization, Inc. v. Kinsley Bank, 731 F.2d 1464, 1472 (10th Cir.1984); In re Jackson, 92 B.R. 987, 995 (Bankr.E.D.Pa.1988). In the case at bar, plaintiff has not alleged, nor has she even suggested that the damage to her credit standing caused any pecuniary loss. Therefore, defendants are entitled to summary judgment on her claim for these damages. Consequently, should plaintiff prevail on her claims relative to defendants' alleged violations of ERISA, including the alleged violations of their fiduciary duties, plaintiff's recovery will be limited to the medical benefits and coverage which should have been made available to her by defendants under COBRA. TORTIOUS INTERFERENCE In addition to her claims under ERISA, plaintiff contends that Jackson Mack tortiously interfered with her contractual and statutory rights in regard to her obtaining 790 continuation or conversion coverage with Northbrook and to her obtaining prospective benefits under the employee benefit plan of Jackson Mack. The court is of the opinion that ERISA preempts plaintiff's claim of tortious interference. ERISA preempts all state laws which "relate to any employee benefit plan" except those "which regulate insurance, banking, or securities," Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987),[28] or which "affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law `relates to' the plan," Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S. Ct. 2890, 2901 n. 21, 77 L. Ed. 2d 490 (1983). Plaintiff's claim of tortious interference arises under state law and relates directly to the ERISA plan at issue. The claim is, therefore, preempted by ERISA.[29] Accordingly, defendants' motions for summary judgment will be granted as to plaintiff's claim for tortious interference.[30] POTENTIAL LIABILITY OF NORTHBROOK AND SOUTHERN MARKETING As an additional basis for summary judgment, Northbrook and Southern Marketing argue that plaintiff cannot recover against them because Jackson Mack was solely responsible for providing Lawrence with notification of her rights to continuation coverage upon her divorce. Section 1166(a)(4) places the responsibility for sending qualifying event notification on the plan administrator. And where no plan administrator is named, the plan sponsor becomes the administrator. Thonen v. McNeil-Akron, Inc., 661 F. Supp. 1252 (N.D.Ohio 1986) (plan sponsor is an administrator if administrator is not designated); Pension Benefit Guar. Corp. v. Greene, 570 F. Supp. 1483 (W.D.Pa.1983), aff'd, 727 F.2d 1100 (3d Cir.), cert. denied, 469 U.S. 820, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984) (defendant other than plan sponsor not liable for failure to provide information where plan did not name administrator and therefore plan sponsor was plan administrator). However, the Fifth Circuit suggested in Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir.1990), that the plan administrator named in the plan documents may delegate its responsibilities, and where it does so, the administrator's delegee can thereby become a de facto administrator and incur liability for its omissions. 791 Id. at 1077 ("argument that Metropolitan should be regarded as a de facto plan administrator has intuitive appeal."). There are indications of such a delegation in the case at bar. Most suggestive of such a delegation is the fact that the general COBRA notification letter prepared by Jackson Mack for distribution to employees identified Southern Marketing as the plan administrator. Jackson Mack and Southern Marketing each point to the other as the plan administrator. And Jackson Mack maintains that it acted in reliance on the representations and instructions of Northbrook, which was also responsible for the preparation of all plan forms. As there are these indications in the record that Northbrook and/or Southern Marketing may have acted as plan administrators at times, assuming or offering to assume some of the administrator's duties, the court will deny their motion for summary judgment as to plaintiff's qualifying event notification claim. Neither are these defendants entitled to summary judgment on Lawrence's claim for the alleged breach of the duty to provide general COBRA notification. The Fifth Circuit in Kidder v. H & B Marine, Inc., 932 F.2d 347, 356 (5th Cir.1991), expressly adopted an interpretation of 29 U.S.C. § 1166(a)(1)'s reference to "the group health plan" which places the general notification duty on all individual parties to the group plan. MOTION FOR SUMMARY JUDGMENT ON JACKSON MACK'S CROSS CLAIM Jackson Mack contends by its cross-claim that since all of its actions in connection with the ERISA plan at issue were taken at Northbrook's direction, then it is entitled to indemnification from Northbrook if Jackson Mack is found to be liable to Lawrence. More specifically, Jackson Mack argues that in performing its obligations in relation to the plan, it relied exclusively upon the information contained in the "administrative kit" sent to it by Northbrook to Jackson Mack. The court has considered Northbrook's and Southern Marketing's motion for summary judgment as to the cross-claim of Jackson Mack and concludes that it is well taken and should be granted as the court is of the opinion that Jackson Mack may not seek indemnity or contribution for its alleged failure to provide qualifying event notification. In Whitfield v. Lindemann, 853 F.2d 1298 (5th Cir.1988), the Fifth Circuit addressed the issue of indemnification as between a trustee and a nonfiduciary participant: In his role as trustee, Lindemann, a sophisticated businessman, owed the primary responsibility to the Plan. To say that he was derelict in the performance of his duties is to put it mildly. The benefits which ERISA was intended to achieve, and equitable principles as well, would be illserved if trustees such as Lindemann could avoid all liability for their derelictions by transferring such liability to the shoulders of others who, at best, could only have participated in the trustees' wrongdoing. We conclude that the district court erred in ordering such indemnification in the instant case. Id. at 1303 (citations omitted); cf. Kim v. Fujikawa, 871 F.2d 1427 (9th Cir.1989) (contribution is unavailable to ERISA fiduciaries who breach their ERISA duties). This reasoning is applicable in the present context as well. As the court held supra, Northbrook and Southern Marketing may be jointly liable with Jackson Mack under the facts of this case; but Jackson Mack is not entitled to indemnity. See Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 135, 105 S. Ct. 3085, 3086, 87 L. Ed. 2d 96 (1984) ("The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.").[31] Accordingly, the motion of Northbrook and Southern Marketing for summary judgment as to Jackson Mack's cross-claim is granted. JURY TRIAL Plaintiff seeks a jury trial on her ERISA claims. In the court's opinion, she is not entitled to a jury trial under ERISA. *792 See Calamia v. Spivey, 632 F.2d 1235 (5th Cir. Unit A 1980) (ERISA does not entitle plaintiff to a jury trial); Daniel v. Eaton Corp., 839 F.2d 263, 268 (6th Cir.1988) (same); Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 829-830 (7th Cir.1980). The Court therefore grants defendants' requests to strike plaintiff's demand for a jury trial. ATTORNEY'S FEES Plaintiff seeks to recover attorneys' fees pursuant to 29 U.S.C. § 1132(g). Defendants contend that she is not entitled to attorney's fees as the record reveals no evidence of bad faith. See Kidder, 932 F.2d at 357 (affirming denial of attorney's fees in absence of evidence of bad faith). In the instant case, though, it is alleged that defendants affirmatively misled plaintiff as to both her insured status and her COBRA rights. Accordingly, defendants' motions are in this respect denied. CONCLUSION In summary, Jackson Mack's motion for partial summary judgment and Northbrook's and Southern Marketing's summary judgment motion are granted as they pertain to plaintiff's claim for tortious interference and her demand for the recovery of damages for mental and emotional distress, humiliation, menace, and loss of credit standing and financial stability. Further, defendants' request to strike plaintiff's demand for a jury trial is granted. The remainder of defendants' motions for summary judgment as to plaintiff's claims are denied. Finally, defendants Northbrook's and Southern Marketing's motion for summary judgment as to Jackson Mack's cross-claim is granted.[32] NOTES [1] ERISA defines an "employee welfare benefit plan" as: any plan, fund or program ... established or maintained by an employer ... to the extent that such plan, fund or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.... 29 U.S.C. § 1002(1). It is undisputed that the plan provided by Jackson Mack, funded by Northbrook and for which claims were processed by Southern Marketing, was an employee benefit plan governed by the provisions of ERISA, and a review of the plan documents submitted indicates that the plan was indeed an ERISA plan. [2] According to Lawrence, she specifically asked Kelly if it was possible for her to pay premiums and keep the insurance coverage she enjoyed by virtue of her husband's plan, but was told that she could not and that her coverage would terminate at the end of the month in which the divorce was finalized. [3] Plaintiff also named as a defendant Bill Henley, an insurance agent who acted on behalf of Northbrook. Plaintiff's claims against Henley were dismissed without prejudice by order entered August 6, 1991. [4] Chief Judge William H. Barbour, to whom the case was initially assigned, previously denied plaintiff's motion to amend her complaint to assert a derivative action under ERISA, as amended by COBRA, on behalf of all plan participants and beneficiaries, and to join additional defendants. See Memorandum Opinion and Order, August 31, 1990. [5] That statute provides: Any administrator ... who fails to meet the requirements of paragraph (1) or (4) of section 1166 of this title ... with respect to a participant or beneficiary ... may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. [6] The court will treat separately Northbrook's motion for summary judgment as to Jackson Mack's cross-claim against it. See infra at p. 791. [7] Specifically, COBRA provides: The plan sponsor of each group health plan shall provide, in accordance with this part, that each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan. 29 U.S.C. § 1161(a). [8] Section 1166(a)(1) requires that "the group health plan ... provide, at the time of commencement of coverage under the plan, written notice to each covered employee and spouse of the employee (if any) of the rights provided under this subsection." (footnote omitted). [9] Section (a)(4)(B) provides that the administrator must notify "in the case of a qualifying event ... where the covered employee notifies the administrator ..., any qualified beneficiary with respect to such event, of such beneficiary's rights under this subsection." [10] In addition to her claim for recovery of the benefits that would have been provided had she been afforded the coverage to which she was entitled under COBRA, Lawrence has asserted claims for statutory penalties for defendants' alleged failure to provide her general COBRA notification and qualifying event notification of her rights to continue or convert her health insurance coverage. Generally, penalty claims do not become the property of the bankruptcy estate. See In re Wood, 643 F.2d 188 (5th Cir.1980). Though the Fifth Circuit has described the ERISA section at issue as a "penalty provision," see Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir.1990) (in deciding whether scribbled note constituted request for plan documents, court noted that "[a]s a penalty provision section 1132(c) must be strictly construed."), a review of case law describing penalty statutes for bankruptcy purposes leads the court to conclude that Lawrence's claim is not a penalty claim which would have been excepted from transfer to her bankruptcy estate. In Wood, 643 F.2d 188 (5th Cir.1980), the Fifth Circuit, in determining that a claim for statutory damages pursuant to the Truth in Lending Act, 15 U.S.C. § 1640(a), was remedial rather than penal and thus would survive the death of the debtor and be transferable to the bankruptcy estate, utilized the following test: The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual, according to the familiar classification of Blackstone: "Wrongs are divisible into two sorts of species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanors." 3 Bl.Com. 2. Wood, 643 F.2d at 191 (emphasis in original). As the statute at issue in the case sub judice was not enacted for the benefit of the public as a whole, but rather for a discrete group, benefit plan participants, Lawrence's claims for statutory damages would not have been transferable to the bankruptcy estate, unless they had not accrued as of the date of Lawrence's filing for bankruptcy protection. [11] Plaintiff contends that the causes of action asserted in the present action were abandoned by the bankruptcy trustee, such that she is now free to pursue them irrespective of when they accrued. 11 U.S.C. § 521(1) requires that the debtor "file a list of creditors, and unless the court orders otherwise, a schedule of assets and liabilities, a schedule of current income and current expenditures, and a statement of the debtor's financial affairs." And 11 U.S.C. § 554(c) provides: "Unless the court orders otherwise, any property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title. As Lawrence did not schedule the claims that she asserts in this action as assets in her bankruptcy petition in accordance with § 521(1), allegedly because she was unaware of their existence, the claims could not have been abandoned pursuant to § 554(c). [12] In Patterson v. Shumate, ___ U.S. ___, 112 S. Ct. 2242, 119 L. Ed. 2d 519 (1992), the Supreme Court held that pension benefits under ERISA could be excluded from the "otherwise broad definition of `property of the [bankruptcy] estate,'" 112 S. Ct. at 2246, by virtue of section 206(d)(1) of ERISA, an anti-alienation provision which states that "[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated." There being no similar provision preventing alienation of medical benefits, it follows that medical benefits can become property of the bankruptcy estate. Thus, if plaintiff's claim for medical benefits accrued prior to the filing of her bankruptcy petition, then that claim became part of the bankruptcy estate, at least so far as medical expenses occurring before the discharge date are concerned. [13] The court has located no authority to suggest that the usual accrual rules which apply in the statute of limitations context would not similarly apply in establishing the time of accrual for purposes of determining whether the claim became part of a bankruptcy estate. Cf. Soave v. Wiercioch, No. 92 C 2886, 1992 WL 247401, LEXIS No. 14481 (E.D.Ill. Sept. 24, 1992) (finding it unnecessary to decide whether determination of date of accrual of cause of action for statute of limitations purposes is the same as determination of accrual in bankruptcy context). [14] In any event and as is discussed in more detail infra, the evidence on the issue of whether plaintiff ever filed any claim for insurance benefits is far from clear. The defendants expressly deny that a claim was ever submitted. And plaintiff seems to suggest that a claim may have been submitted but was never paid or denied. Additionally, evidence has been presented by plaintiff which suggests that she was dissuaded by defendants from filing any claim, and on a number of occasions was actually denied claims forms by defendants who suggested to plaintiff that the filing of a claim would be fruitless, since she was no longer covered under any insurance policy. In short, the record reveals genuine issues of material fact which would preclude summary judgment even if the "claim denial" accrual rule were applicable. [15] According to Lawrence, during the course of a conversation about her difficulties, her friend remarked to Lawrence that she should have taken the continuation coverage offered at the time of her divorce. When Lawrence told the friend that Jackson Mack had refused to give her coverage, the friend then told Lawrence that a federal law required Jackson Mack to provide her continuation coverage. A few months later, Lawrence hired an attorney to pursue the matter and this suit ultimately resulted. [16] Plaintiff claims that in June 1987, after Jackson Mack's insurance clerk and a Southern Marketing insurance clerk had told her she would not be covered after the divorce, one of her physicians, Dr. Robert Calcote, told her she should still be covered by her husband's insurance. She thus again communicated with Jackson Mack and requested a claim form, but was advised that she was no longer covered by the insurance at issue and her request was denied. According to Lawrence, a subsequent attempt later that month to obtain a claim form likewise proved fruitless. Additionally, plaintiff contends that in June 1987, Dr. William Lotterhos' office attempted to secure a claim form for her and was advised that plaintiff was not covered. When a medical technician in Dr. Lotterhos' office again attempted to secure payment for Lawrence, she was told by someone at Jackson Mack that the claim would not be paid because, as plaintiff and her husband were divorced, plaintiff was no longer insured. [17] That is particularly so where plaintiff charges that defendants' alleged conduct resulted in plaintiffs failure to pay her medical bills which, in turn, resulted in her filing for bankruptcy protection. [18] According to plaintiff, she not only inquired of defendants concerning whether she could secure coverage, but she also inquired of her divorce attorney concerning her entitlement to continued coverage and received what that attorney now acknowledges was erroneous advice. [19] Plaintiff makes much of the fact that this notice listed the employer as Truck Center South rather than Jackson Mack. Plaintiff's husband, however, as well as other Jackson Mack employees, testified that referring to the company by the name Truck Center South was done in connection with the company's efforts to expand its business and that employees and their families should have been aware of this designation. Tiny Lawrence testified that by the time the letter was mailed on November 1, 1986, he would have had no "doubt or question about what Truck Center South referred to," and that plaintiff "should have" also known the meaning of the term "Truck Center South." In any event, since Pamela Lawrence denies ever having seen the notice, she was certainly not confused by the designation of her husband's employer as Truck Center South rather than Jackson Mack. [20] In an effort to establish that Jackson Mack's efforts at notification were inadequate, plaintiff has presented the affidavit of a purported COBRA expert who states that the notice to Truck Center South employees, see supra note 19, did not reasonably provide notice to employees of Jackson Mack and their families of the right to continuation coverage. Additionally, this expert opines that only documentation of Jackson Mack's alleged mailing of notices would constitute good faith compliance with the statutory mandate of section 1166(a)(1). Plaintiff's professed expert's contention as to what might be deemed the ideal method of giving notice is not of assistance "in determining a fact in issue," Fed.R.Evid. 702, since the issue is simply whether the notice that was given was reasonably calculated to reach its recipient. Further, the expert's opinion as to what might constitute appropriate documentation of efforts to give notice is certainly not relevant, for issues regarding the sufficiency of proof are not properly the subject of expert testimony. The testimony, therefore, has not been considered for purposes of the motions presently under consideration and will not be permitted at trial. [21] It does not follow from the fact that plaintiff's non-receipt of the notice is not the standard for liability under § 1166 that the testimony of Lawrence and her ex-husband that they did not receive any notice about COBRA from Jackson Mack is not relevant. Given the state of the evidence as it presently exists, it could be considered probative on the mailing issue. [22] It is undisputed that in April, prior to the divorce, Tiny Lawrence changed the beneficiary of his life insurance and changed his tax withholding status from married to single. Plaintiff asserts that these actions should have put Jackson Mack on notice that a qualifying event was about to occur. Bonny Kelly claims that she knew the Lawrences were separated, but states that employees often changed beneficiaries and withholding status regardless of their marital status. Even if Mr. Lawrence's activity should have put Kelly on "inquiry notice," that would not suffice as a basis for concluding that Lawrence had given notice to Jackson Mack of a qualifying event. Lawrence's testimony, however, is that she did in fact provide notice to Jackson Mack, so she is not relegated to relying on circumstantial proof of notice. [23] Another basis upon which defendants seek dismissal of plaintiff's qualifying event notification claim is their contention that the claim is barred by the one-year statute of limitations provided by Miss.Code Ann. § 15-1-33. While the court entertains serious doubts about the applicability of a one-year limitations period to the claim, the court need not reach that issue since, as discussed supra, if plaintiff's claim accrued in 1987, as defendants contend, she would be precluded from asserting it due to the fact of the bankruptcy discharge, and if it accrued in 1988, as plaintiff maintains, it would not be included in the bankruptcy estate and would have been timely filed under the one-year statute of limitations which defendants claim applies. [24] Plaintiff alleges that defendants breached 29 U.S.C. §§ 1104 and 1105. Section 1104 provides in pertinent part: (1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries ... .... (B) with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.... Section 1105 prescribes the circumstances in which "a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan." These include circumstances in which the fiduciary (1) knowingly participated in the breach by another fiduciary, (2) by its fiduciary omissions enabled such other fiduciary to commit the breach, or (3) has knowledge of the breach of the other fiduciary yet fails to make reasonable efforts to remedy the breach. [25] Section 1132 provides that [a] civil action may be brought (1) by a participant or beneficiary (A) for the relief provided in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; .... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.... [26] Citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 135, 145, 111 S. Ct. 478, 481, 486, 112 L. Ed. 2d 474 (1990), plaintiff argues that the Supreme Court has approved claims for compensatory and punitive damages in ERISA actions. While one court has read Ingersoll as giving the "green light" to claims for compensatory and punitive damages, as well as jury trials, see Blue Cross & Blue Shield v. Lewis, 753 F. Supp. 345, 347 (N.D.Ala.1990), this court does not construe that decision so broadly. A review of the Ingersoll opinion reveals that the Court there was concerned only with the preemption issue and held that the plaintiff could not avoid preemption simply by asserting that he was not claiming entitlement to "pension benefits." Ingersoll, 498 U.S. at 145, 111 S. Ct. at 486. The Court merely noted that plaintiff's putative claim was in the nature of a state law claim for which she sought to recover compensatory and punitive damages under tort and contract theories. It is clear that, contrary to plaintiff's suggestion, punitive damages are not equitable in nature and are therefore not available under § 1132(a)(3)(B). See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S. Ct. 1549, 1556, 95 L. Ed. 2d 39 (1987); Sommers Drug Stores v. Corrigan Enters., Inc., 793 F.2d 1456 (5th Cir.1986) (punitive damages not available under ERISA); Goodman v. S & A Restaurant Corp., 756 F. Supp. 966, 971 (S.D.Miss.1990) (punitive damages not recoverable under ERISA); Moffitt v. Blue Cross & Blue Shield, Inc., 722 F. Supp. 1391, 1394 (N.D.Miss. 1989) (§ 1132(A)(3) provides for equitable relief only). [27] The court in Corcoran discussed its previous opinion in Sommers at length in connection with a preemption issue which was presented. Inexplicably, however, the Corcoran court omitted any reference to Sommers in its discussion of the damages issue. [28] See also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990) (state law wrongful discharge claim preempted by ERISA); Brock v. Primedica, Inc., 904 F.2d 295, 297 (5th Cir.1990) (state law claims against an insurer and plan administrator for mental anguish, emotional distress and financial hardship preempted by ERISA); Lee v. E.I. DuPont de Nemours and Co., 894 F.2d 755, 757 (5th Cir. 1990) (state law claims against employer for misrepresentation and fraud preempted by ERISA); Degan v. Ford Motor Co., 869 F.2d 889, 893-95 (5th Cir.1989) (ERISA preemption of state law claims); Goodman v. S & A Restaurant Corp., 756 F. Supp. 966, 967-71 (S.D.Miss.1990) (state law claim for negligent handling of enrollment form preempted by ERISA); 29 U.S.C. §§ 1144(a) and 1144(b)(2)(A). [29] Plaintiff concedes in her response to defendants' motions that "state law claims are certainly preempted." [30] Lawrence asserts that in the event her state law claim is dismissed, she should be granted leave to file an amended complaint containing a claim pursuant to 29 U.S.C. § 1140. Section 1140 makes it unlawful for any person to discharge, fire, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter ..., or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter.... The primary purpose for Congress' enactment of this section was to prevent unscrupulous employers from discharging or in any manner harassing their employees in order to prevent them from obtaining vested pension rights; that is, it was intended to protect the employment relationship. West v. Butler, 621 F.2d 240 (6th Cir.1980); see also Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275 (5th Cir.1991) (§ 1140 "yields a claim not for wrongfully withheld benefits ... but for wrongful `discharge'"); Deeming v. American Standard, Inc., 905 F.2d 1124 (7th Cir.1990) (fundamental prerequisite to action under § 1140 is allegation that employer-employee relationship was changed in some discriminatory or wrongful way). As there is no suggestion that any employment relationship was affected by defendants' alleged failure to notify Lawrence of her right to continuation coverage, her request to amend her complaint to include a § 1140 claim will be denied on the basis of futility. [31] The court would note that documents sent to Jackson Mack by Northbrook following the enactment of COBRA specifically state that notification is the employer's responsibility. [32] Plaintiff initially demanded a detailed accounting as to which all defendants sought summary judgment. Plaintiff has at this point apparently abandoned this request and conceded that summary judgment is appropriate thereto since no mention of an accounting was made in response to the motions for summary judgment. In any event, the court concludes that Lawrence is not entitled to any such accounting.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2456862/	(2008) Eugene FRANZWA, Plaintiffs, v. CITY OF HACKENSACK, Erick Hedren, Larry Ciha, and Ron Johnston, Defendants. Civil No. 06-3739 (JRT/RLE). United States District Court, D. Minnesota. July 3, 2008. ORDER ADOPTING REPORT AND RECOMMENDATION JOHN R. TUNHEIM, District Judge. The above-entitled matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, dated May 28, 2008, all the files and records, and no objections having been filed to said Report and Recommendation. Based upon the Report and Recommendation of the Magistrate Judge, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that defendants' Motion for Summary Judgment [Docket No. 24] is granted. REPORT AND RECOMMENDATION RAYMOND L. ERICKSON, United States Chief Magistrate Judge. I. Introduction This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendants' Motion for Summary Judgment. A Hearing on the Motion was conducted on January 31, 2008, at which time, the Plaintiff appeared by Michael C. Mahoney, Esq., and the Defendants appeared by Pierre N. Regnier, Esq. For reasons which follow, we recommend that the Defendants' Motion be granted. II. Factual and Procedural Background This is an action brought under Title 42 U.S.C. § 1983 by a member of the City Council (the "Council") of the City of Hackensack, Minnesota (the "City"), who claims that his constitutional rights were violated when he was removed from his position on the Council based upon allegations that he was not a resident of the City. See, Complaint, Docket No. 1. In addition to his constitutional claims, the Plaintiff alleges that he was defamed by Erick Hedren ("Hedren"), who is the Mayor of the City, and by Council members Larry Ciha ("Ciha"), and Ron Johnston ("Johnston") (collectively, the "Individual Defendants"), in retaliation for his political views, and that the Individual Defendants violated an "Open Meeting Law" by holding secret meetings to discuss the removal of the Plaintiff from office. According to the Plaintiffs Complaint, although he has always maintained a legal residence in the City, in May of 2005, he purchased a second residence in Mountain Home, Arkansas, which was erroneously classified as his "homestead" by the authorities in Baxter County, Arkansas. Id. at ¶¶ 13-16. The Plaintiff claims that, in April of 2006, the Defendants discussed using the Plaintiffs Arkansas homestead as a pretext for his removal from the Council, id. at ¶¶ 21-22, and intentionally, failed to investigate allegations that had been made concerning the homestead status of the Plaintiffs Arkansas residence. Id. at ¶¶ 27-36. The Complaint further alleges that, at a Council meeting on May 1, 2006, Hedren falsely accused the Plaintiff of violating the law, by serving on the Council while failing to maintain a household in the City, and that the Council voted to remove the Plaintiff as a member, based upon its belief that he was not a legal resident of the City.[1]Id. at ¶¶ 20, 38-39. According to the Plaintiff, Hedren and the other Defendants also made defamatory statements, concerning the Plaintiff, to the local news media, and further defamed him by removing him from his position on the Council. Id. at ¶¶ 45-50. The Plaintiff was eventually returned to his seat on the Council, after he challenged his removal. Id. at ¶ 51. On August 27, 2007, the Plaintiff brought a Motion to Amend his Complaint in order to seek punitive damages, see, Docket No. 11, which we denied by Order dated January 2, 2008, see, Docket No. W, and that decision was affirmed by Order of the District Court, the Honorable John R. Tunheim presiding, dated April 17, 2008. See, Docket No. 55. On November 11, 2007, the Defendants filed a Motion for Summary Judgment, see, Docket No. 24, which the Plaintiff opposes. III. Discussion A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. See, Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 711 (8th Cir.2004), cert. denied, 544 U.S. 977, 125 S. Ct. 1860, 161 L. Ed. 2d 728 (2005). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. See, Eide v. Grey Fox Technical Servs. Corp., 329 F.3d 600, 604 (8th Cir.2003); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir.2003); United Fire & Casualty Co. v. Garvey, 328 F.3d 411, 413 (8th Cir.2003). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a Verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Planned Parenthood of Minnesota/South Dakota v. Rounds, 372 F.3d 969, 972 (8th Cir.2004); Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707, 711 (8th Cir.2003) As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256, 106 S. Ct. 2505; Eddings v. City of Hot Springs, Ark., 323 F.3d 596, 602 (8th Cir.2003). Moreover, the movant is entitled to Summary Judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra at 322, 106 S. Ct. 2548; see also, Forest Park II v. Hadley, 408 F.3d 1052, 1057 (8th Cir.2005); Mercer v. City of Cedar Rapids, 308 F.3d 840, 843 (8th Cir.2002); Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir.2000). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial" Celotex Corp. v. Catrett, supra at 323, 106 S. Ct. 2548; see also, Sallis v. University of Minnesota, 408 F.3d 470, 474 (8th Cir. 2005); Davis v. U.S. Bancorp, 383 F.3d 761, 768 (8th Cir.2004); Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir.1995). B. Legal Analysis. The Defendants seek Summary Judgment on all of the Plaintiffs claims. We address each claim separately. 1. The Plaintiff's Section 1983 Claims. In his Complaint, the Plaintiff alleges violations of his rights under the First, Fifth, and Fourteenth Amendments. In his responsive Memorandum, the Plaintiff explains that he is not alleging an Equal Protection violation,[2] but argues that he had a property right to remain on the Council, and that the Defendants violated his right to Due Process by holding a Hearing on his termination without affording him prior notice. In addition, the Plaintiff claims that, as a result of his suspension from the Council, he was deprived of his First Amendment right of free speech, and association, as an elected official. a. Due Process. The (Defendants argue that Summary Judgment is appropriate since the Plaintiff cannot establish a violation of his Due Process rights for the following reasons: 1) because he has an adequate remedy under State law; 2) because he did not have a property right to serve as an elected official; 3) because he was given notice and an opportunity to rebut the allegations against him; and 4) because the Defendants' actions did not "shock the conscience," or cause any injury to the Plaintiff. The Defendants argue, first, that the Plaintiff had an adequate remedy under State law, and that, therefore, the Court lacks jurisdiction to hear his Due Process claim. Specifically, the Defendants claim that, pursuant to the Parratt/Hudson doctrine, any adverse Council decisions must first be challenged in a State District Court through a Quo Warranto proceeding, or through a Writ of Prohibition. In Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), the Supreme Court held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." See also, Parratt v. Taylor, 451 U.S. 527, 538-44, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Our Court of Appeals has observed that the Parratt/Hudson doctrine applies to both procedural and substantive due process claims. See, Ali v. Ramsdell, 423 F.3d 810, 814 (8th Cir. 2005); see also, Skinner v. Missouri, 215 Fed.Appx. 555 (8th Cir.2007); Weimer v. Amen, 870 F.2d 1400, 1406 (8th Cir.1989). In response to the Defendants' claim, that the Plaintiff should not be permitted to bring a Due Process claim before this Court, without first challenging the Council's decision before a Minnesota District Court through a Quo Warranto proceeding, or by seeking a Writ of Prohibition, the Plaintiff argues that the State's post-deprivation remedies, which were available to him here, are inadequate. "The writ of quo warranto is a special proceeding designed to correct the unauthorized assumption or exercise of power by a public official or corporate officer." State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 318 (Minn.App.2007), citing State ex rel. Danielson v. Village of Mound, 234 Minn. 531, 48 N.W.2d 855, 863 (1951); see also, Rice v. Connolly, 488 N.W.2d 241, 244 (Minn.1992)(reinstating the Writ of Quo Warranto); State ex rel. Burnquist v. Village of North Pole, 213 Minn. 297, 6 N.W.2d 458, 461 (1942)(Writ of Quo Warranto requires an official to justify a challenged action before a Court of competent jurisdiction). Such a Writ essentially asks "by what right" the public authority acted. See, State ex rel. Danielson v. Village of Mound, supra at 863. In the case cited by the Defendants, in support of their claim that a Writ of Quo Warranto would be an appropriate remedy for the Plaintiff State v. Hays, 105 Minn. 399, 117 N.W. 615, 616 (1908)the Court held that the Writ was available to compel the removal of an official who was found to be improperly holding office, but was not contemplated as a means to protect or restore an official to office. Moreover, the Plaintiff has not challenged the authority of the Council to remove him from his position, but rather, he claims that the Council members failed to follow the proper preremoval procedure. Thus, a Quo Warranto proceeding would not provide the Plaintiff with the relief that he now seeks. As for the Writ of Prohibition, it is "an extraordinary remedy that may be issued if: 1) an inferior court or tribunal [is] about to exercise judicial or quasijudicial power; 2) the exercise of such power [is] unauthorized by law; and 3) the exercise of such power [will] result in injury for which there is no adequate remedy." State v. Deal, 740 N.W.2d 755, 769 (Minn. 2007), citing Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197 (Minn. 1986). State Courts have issued such a Writ in cases where a Court has ordered the production of evidence that is not clearly discoverable, and the party has no adequate remedy at law, so as to prevent an abuse of discretion, to settle a rule of practice that will govern all litigants, or to correct a lower Court's error of law. Id. [citing cases]. In support of their argument that the Plaintiff should have sought a Writ of Prohibition, the Defendants cite State v. Thompson, 91 Minn. 279, 97 N.W. 887 (1904). There, however, the Writ was sought, and ultimately granted, to challenge the authority of a city council, absent statutory authorization, to remove a mayor. Id. at 887. In contrast, here, the parties agree that the Council had the authority to remove the Plaintiff, but they disagree over the manner in which that removal was effected, and consequently, the Plaintiff could not have sought such a Writ. As neither of the remedies proposed by the Defendants would have provided the Plaintiff with adequate post-deprivation relief, the Defendants' argument, that the Plaintiffs Section 1983 claim is barred by the Parratt/Hudson doctrine, fails and we conclude that we have jurisdiction to hear the Plaintiffs Due Process claims. Turning to those claims, the Plaintiff alleges, first, that his right to procedural due process was violated when he was deprived of his property interest in his position on the Council. In determining whether there has been a deprivation of due process rights, a Court's first step is to determine whether there is a recognizable liberty or property interest at stake.[3] See, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Only if that threshold question is answered in the affirmative, do we then inquire as to whether the procedures attendant to that deprivation were constitutionally sufficient. See, Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989). "A protected property interest * * * is a `legitimate claim of entitlement * * * as opposed to a mere subjective expectancy.'" Bituminous Materials, Inc. v. Rice County, Minnesota, 126 F.3d 1068, 1070 (8th Cir.1997), quoting Batra v. Board of Regents of the University of Nebraska, 79 F.3d 717, 720 (8th Cir.1996), quoting, in turn, Board of Regents of State Colleges v. Roth, supra at 577, 92 S. Ct. 2701. "Property interests are not created by the Constitution, `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as state law.'" Cleveland Board of Education v. Loudermill, 470 U.S. 532, 540, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), quoting Board of Regents of State Colleges v. Roth, supra at 577, 92 S. Ct. 2701. However, "federal constitutional law determines whether that interest rises to the level of a `legitimate claim of entitlement' protected by the Due Process Clause." Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 757, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005), quoting Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978)[emphasis omitted]. "A person must have a legitimate claim of entitlement to his or her employment to have a property interest in it." Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir.1994), cert. denied, 513 U.S. 964, 115 S. Ct. 426, 130 L. Ed. 2d 340 (1994). The property interest is determined with reference to State law, and generally stems from contractual or statutory limitations on the employer's ability to terminate an employee. Id., citing Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). In Taylor v. Beckham, 178 U.S. 548, 576-77, 20 S. Ct. 890, 44 L. Ed. 1187 (1900), the Supreme Court noted that "[t]he view that public office is not property has been generally entertained in this country," and the fact that a statute or legislation may forbid the legislature from abolishing a public office, or reducing its salary, does not make such a position property. See also, Snowden v. Hughes, 321 U.S. 1, 7, 64 S. Ct. 397, 88 L. Ed. 497 (1944); Velez v. Levy, 401 F.3d 75, 85-87 (2d Cir.2005), citing cases; Sherer v. Carlson, 141 F.3d 1179, 1998 WL 133098 at * 1 (9th Cir.1998)[Table Decision]; cf., Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir.1979). The Plaintiff concedes that "[t]here is no constitutional right to be elected to a particular office," Parks v. City of Horseshoe, 480 F.3d 837, 840 (8th Cir.2007), however, he claims that he had a property interest in retaining his position on the Council once he was elected, that was created by his statutory right to a pre-removal Hearing from that position. In support of his position, the Plaintiff cites Cleveland Board of Education v. Loudermill, supra, and alleges that, like the employees in that case, he has a property interest in his position on the Council that was conferred by a statutory guarantee of a pre-termination Hearing. However, that is a misreading of the holding in Loudermill, supra at 539-541, 105 S. Ct. 1487, in which the Supreme Court found that the plaintiff school district employees had been given a property interest in their positions by a State statute which provided that they could only be terminated for cause, and that the legislature could not authorize the deprivation of that property interest without providing for appropriate procedural safeguards, such as notice and a pre-termination Hearing. Unlike the Loudermill civil servants, the Plaintiff is not a public employee, but is an elected official, and he has no statutory guarantee of continued employment absent cause for his termination, that would give rise to a property interest. Although Minnesota Statutes Section 351.02(4) does provide that the office of a public official becomes vacant when the incumbent ceases to be a resident of the city for which he was elected, the Section does not set forth any statutory protection that would support the Plaintiffs argument concerning a property right in his position, and the Handbook for Minnesota Cities likewise provides only that the "[residence [of a council member] is a factual question that the council must determine in each case," but does not set forth any procedural guidelines for that determination. See, Affidavit of Porten, supra at Exhibit 4. Moreover, Minnesota Statutes Section 412.191 provides that a city council "shall be the judge of the election and qualification of its own members," and "shall have the power to regulate its own procedure." Although we find that the Plaintiff did not have a property interest in his position on the Council, even if he had, we would find that he was afforded procedural due process by the actions that the Defendants took. Procedural due process requires that the Government provide fair procedures to give its citizens an opportunity to prevent a loss of life, liberty, or property. See, Birkenholz v. Sluyter, 857 F.2d 1214, 1216 (8th Cir.1988), citing Hurtado v. California, 110 U.S. 516, 531, 4 S. Ct. 111, 28 L. Ed. 232 (1884). "`In a procedural due process claim, it is not the deprivation of property or liberty which is unconstitutional; it is the deprivation of property or liberty without due process of lawwithout adequate procedures.'" Id., quoting Daniels v. Williams, 474 U.S. 327, 339, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)(Stevens, J., concurring)[emphasis in original]. The Plaintiff argues that he was denied due process during the Council meeting on May 1, 2006, because he was first presented with the Defendants' assertion, that he had given up residency in Minnesota, a half-hour before the start of that meeting, and was not provided with an opportunity to view the evidence against him, to respond in writing with rebuttal evidence, or to present evidence at a second Hearing, prior to his removal from the Council. See, Plaintiffs Memorandum, Docket No. 32, at pp. 17-18. However, as the Plaintiff admits, he was allowed to speak on his own behalf at the Council meeting on May 1, 2006, and his ability to defend himself was not cut short by any of the Defendants. See, Affidavit of Jessica E. Schwie ("Schwie"), Docket No. 27, Deposition of Eugene Franzwa ("Franzwa"), Exhibit A, at pages 159-163. Moreover, it is firmly established that notice of charges, and evidence contemporaneous with a pre-termination Hearing, is sufficient to satisfy due process requirements. See, Cleveland Board of Education v. Loudermill, supra at 546, 105 S. Ct. 1487 ("The essential requirements of due process * * * are notice and an opportunity to respond."); Winskowski v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006), cert. denied, ___ U.S. ___, 127 S. Ct. 435, 166 L. Ed. 2d 308 (2006), citing Coleman v. Reed, 147 F.3d 751, 754 (8th Cir.1998). The Court in Loudermill, supra at 546-47, 105 S. Ct. 1487, based its decision, in part, on the availability of a post-termination Hearing, and we note that, on May 18, 2006, following the Plaintiffs suspension or removal from office, he was given the opportunity to present evidence that he had retained his City residence at a Council meeting, with the result that he was reappointed to the Council on that date. In essence, the Plaintiff argues that the initial Hearing on May 1, 2006, would have been more fair if he had received more advance notice, which would have allowed him to present evidence to rebut the claims against him at the time of the Hearing. However, he cites no case law which establishes that such a procedure is necessary to satisfy the requirements of due process, and those cases, that he does cite, support the Defendants' position that the notice provided to him was adequate. See, e.g., Goss v. Lopez, 419 U.S. 565, 582, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975)(procedural due process rights of schoolchildren who are subject to disciplinary suspension are satisfied by notice at the time of the Hearing); Barry v. Barchi, 443 U.S. 55, 65, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979)(affirming practice of suspending horse trainers' licenses after a post-race blood test reveals a trace of drugs when a post-suspension Hearing was available). Accordingly, we find no procedural due process violation. The Plaintiff also claims that his substantive due process rights were violated by his removal from the Council. "`To establish a substantive due process claim, [a plaintiff] must show that the government action was truly irrational, that is, something more than * * * arbitrary, capricious, or in violation of state law.'" Graning v. Sherburne County, 172 F.3d 611, 617 (8th Cir.1999), quoting Anderson v. Douglas County, 4 F.3d 574, 577 (8th Cir.1993), cert. denied, 510 U.S. 1113, 114 S. Ct. 1059, 127 L. Ed. 2d 379 (1994). The government action in question must shock the conscience, or be otherwise offensive to notions of fairness and human dignity. See, Moran v. Clarke, 296 F.3d 638, 647 (8th Cir.2002); Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir.1998). The Supreme Court has held that, to meet the standard for a substantive due process violation, the conduct must be "intended to injure in some way unjustifiable by any governmental interest." Norris v. Engles, 494 F.3d 634, 638 (8th Cir.2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1655, 170 L. Ed. 2d 355 (2008), quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). Here, the Plaintiff does not contest that the Defendants had the right to suspend a Council member who had been found to have given up his Minnesota residency, and that the Defendants had obtained at least some evidence that suggested that the Plaintiff had established a homestead in Arkansas. As a consequence, the Plaintiff contends that we should find the failure of the Council members to obtain definite proof of his alleged homestead status, prior to confronting him at the meeting on May 1, 2006, or their failure to notify him of the allegations against him, prior to one half-hour before the meeting, to be "conscience shocking." However, "the theory of substantive due process is properly reserved for truly egregious and extraordinary cases," Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th Cir.1992), quoting Myers v. Scott County, 868 F.2d 1017, 1019 (8th Cir.1989), and the Plaintiff alleges merely negligent conduct on the part of the Defendants which, even if true, would not rise to the level of a due process violation. See, Brockinton v. City of Sherwood, Ark, 503 F.3d 667, 672 (8th Cir.2007)(allegations of negligence in an investigation "did not rise to the level of reckless that shocks the conscience"); James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir.2006)("Mere negligence or even recklessness by a public official is not enough to shock the judicial conscience."), citing S.S. v. McMullen, 225 F.3d 960, 964 (8th Cir.2000); Lund v. Hennepin County, 427 F.3d 1123, 1126 (8th Cir.2005). In sum, since the Plaintiff does not have a property interest in his position as a Council member, and the Council did not violate the Plaintiffs rights to procedural or substantive due process, we recommend that the Defendants' Motion for Summary Judgment on the due process claims should be granted. b. Free Speech and Association of an Elected Official. In his Complaint, the Plaintiff alleges that the Defendants removed him from office "in retaliation for [his] political views," which violated his right to free speech and association under the First Amendment. Complaint, Docket No. 1, at p. 7, ¶ 50. In his Memorandum, the Plaintiff clarifies his argument, and contends that he was denied the right to "vote and assemble freely" by the Defendants' decision to suspend or terminate his membership on the Council, and he specifically alleges that he was harmed by not having been able to present arguments, in support of the removal of the Police Chief, Mel Ratieke ("Ratieke"), at the Council meeting of May 1, 2006. In support of his claim that a legislator's freedom of association is a constitutional right that is protected under the First Amendment, the Plaintiff cites Camacho v. Brandon, 317 F.3d 153 (2d Cir.2003). In Camacho, supra at 157-58, a legislative aide to a city council employee brought a Section 1983 action against the city council of Yonkers, New York, alleging that he was terminated in retaliation for votes that were cast by a member of the city council, and basing his claim on an exercise of that council member's First Amendment rights. In considering his claim, the Court noted that, although choosing to affiliate oneself with a particular political party was protected by the First Amendment, "Courts that have examined First Amendment retaliation claims made by publicly elected officials against other publicly elected officials on the basis of political affiliation have * * * found no First Amendment violation when the plaintiff was a policymaker." Id. at 161, citing Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir.1996). The Court noted that, in Elrod v. Burns, 427 U.S. 347, 375, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 517-18, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Supreme Court had held that a government employer can take an adverse employment action against an employee for actions that would otherwise be protected under the First Amendment, if that employee held a confidential or policymaking position for which political loyalty was necessary for effective job performance, and acknowledged that, although the city council member "[did] not represent the typical Elrod/Branti plaintiff," he was "a quintessential policymaker," and "the policy rationales articulated in [Elrod and Branti] permitting a government employer to punish an unelected employee based on his political affiliation are equally applicableif not strongerwhere an individual or entity exercising governmental powers seeks to retaliate against a publicly elected official based on the letter's votes and political affiliations." Id. at 162. In a subsequent decision, Velez v. Levy, supra at 97, the Court clarified that its decision in Camacho was limited to situations in which the employee of a policymaker was terminated for his political affiliations, as long as the policymaker himself "remained free to express his political views in the council chamber, to cast votes, and to serve his constituents in his capacity as a member of the council even after his assistant was terminated." Specifically, the Court, in Velez, found that allowing a State official to "oust" an elected representative of the people on the basis of his views would be a violation of the First Amendment, and held that, rather than analyzing an elected representative's claim for removal from office for the exercise of his First Amendment rights under Elrod/Branti, such a claim was best understood to state a cause of action for retaliatory discharge. Id. at 97-98. As framed by the Court, in Velez, "in order to state a claim for ['First Amendment'] retaliation under § 1983, a plaintiff must show that (1) his actions were protected by the First Amendment; and (2) the defendant's alleged conduct was in response to that protected activity." Id. at 97, citing Friedl v. City of New York, 210 F.3d 79, 85 (2nd Cir.2000). As related by the Court, "[w]e cannot permit a state official to oust an elected representative of the people on the bald ground' that she voices unsympathetic political viewsthat is, that she engages in an activity that is at the core of what is protected by the First Amendment." Id. Nonetheless, Velez is distinguishable, since the "state official" who was responsible for the alleged First Amendment retaliation was an appointive, and not an elected official.[4] Consistent with Velez, our Court of Appeals has observed that it is well established that "the First Amendment restrains the government from retaliating against a public employee based on the employee's speech or associations." Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir.2008), citing Hughes v. Whitmer, 714 F.2d 1407, 1418 (8th Cir.1983). However, as we have noted, the Plaintiff is not a "public employee," but is an elected official. Nonetheless, "[restrictions on an elected official's ability to perform [his] duties implicate the interests of two distinct parties: the individual's First Amendment associational rights * * * and the voters' rights to be meaningfully represented by their elected officials." Peeper v. Callaway County Ambulance Dist., 122 F.3d 619, 623 (8th Cir.1997), cert. denied, 523 U.S. 1117, 118 S. Ct. 1794, 140 L. Ed. 2d 935 (1998). We find Peeper to be the closest decision bearing on the issues presented here. There, the plaintiff was a newly-elected member of an ambulance board of directors, whose husband was an emergency medical technician, and a supervisor of the ambulance district, over whom the board had oversight responsibilities. In view of what the board perceived as a conflict of interest, the other board members passed a resolution that limited the plaintiffs participation, as a member of the board, on a wide variety of topics. The District Court had denied the plaintiffs claim, viewing the resolution as "content-neutral," and "narrowly tailored to meet the significant government interests of preventing the appearance of government corruption and promoting the effective functioning of the District," while leaving "open alternative channels of communication for the [plaintiff]." Id. at 622. The Court of Appeals disagreed, but only as to the breadth of the limitations imposed by the resolution, while recognizing that "[legitimate state interests may warrant restrictions that are de minimis limitations of the officials participation." Id. at 623, citing Clements v. Fashing, 457 U.S. 957, 972-73, 102 S. Ct. 2836, 73 L. Ed. 2d 508 (1981). The Court ultimately concluded that, "[b]ecause provisions of the May resolution infringe upon Peeper's constitutional rights under the First and Fourteenth Amendments without being rationally related to a legitimate state interest, the May resolution cannot stand as written." Id. at 624. Under the analysis of Peeper, we can accept that the actions of the City Council members adversely impacted upon the Plaintiffs First Amendment interests, even though those actions were not directed at any political content in the Plaintiffs speech as a Council member. While the Plaintiff suggests that his opposition to Police Chief Ratieke was a motivating factor for the Council's action, he does not present any evidence to support a causal relationship between that opposition, and the Council's action.[5] In fact, the Plaintiff acknowledges that Ratieke submitted his resignation at the Council meeting of May 1, and that it was unanimously accepted by the Council members. Moreover, there is no suggestion that, at the time of that Council meeting, the Plaintiff was not allowed to speak as to Ratieke's resignation, or to any other issuehe simply left the meeting after the Council suspended his voting privileges. As was the case in Peeper, the limitation of an elected official's participation in political or government activity necessarily implicates First Amendment rights. See, Peeper v. Calloway County Ambulance District, supra at 623 ("Restrictions on an officeholder after election also infringe upon voters' rights to be represented even more severely than when a state similarly restricts candidacy."). "Having determined that the [Council's] resolution injures [the plaintiffs] First and Fourteenth Amendment rights, we evaluate the state's purported interests and whether the restrictions rationally serve those interests." Id. at 623-24. Under the circumstances here, we find that they do. The Defendants contend that, since they had evidence which established that the Plaintiff had a homestead in Arkansas, he was automatically disqualified from sitting as a Council member, and they believed that any vote that the Plaintiff was allowed to participate in could potentially be invalidated, should it be determined that the Plaintiff was, in fact, no longer a resident of the City. See, Affidavit of Schwie, supra at Exhibit B. As noted by the Defendants, the Council is empowered to judge the qualifications of its members at an open meeting, see, Minnesota Statutes Section 412.191, Subdivision 2, and, at the time that the Plaintiff was suspended from the Council, the remaining Council members adopted an amendment which provided that, "if satisfactory papers are presented from Arkansas within the next 30 days, [the Plaintiff] would be reinstated without prejudice." Id.; see also, Deposition of Johnston, Exhibit T, at pages 16-18. The Defendants were presented with evidence, which was unrefuted at that point, and which led the Defendants to conclude, albeit mistakenly, that the Plaintiff had given up his residency in the City by taking a homestead credit in Arkansas, and therefore, that the Plaintiff was no longer qualified to serve on the Council. Aside from his conclusory allegations, the Plaintiff has not provided any evidence that undermines, at the relevant time, the rationale offered by the Defendant Council members for the action they took. His assertion, that some or all of the Defendants were negligent in their investigation of his homestead status in Arkansas, does not refute the legitimate justification, that is supported by evidence in the Record, for the Plaintiffs brief suspension from the Council. Moreover, when evidence was presented to the Council which refuted the legitimacy of the Plaintiffs suspension, the Council restored the Plaintiff to his full capacity as a Council member. Accordingly, we find no sustainable violation of the Plaintiffs First Amendment rights, and we recommend that the Defendants' Motion for Summary Judgment, as to that claim, be granted. 2. The Plaintiffs Defamation Claim The Plaintiff has also brought a State law claim for defamation against the Defendants, and argues that he was defamed by their decision to accuse him, at the public Council meeting oil May 1, 2006, of unlawfully occupying his seat on the Council, and of doing so "in knowing contravention of the law." See, Plaintiffs Memorandum, supra at p. 23. In addition, the Plaintiff suggests that the act of removing him from the Council was itself defamatory, as it "stood as confirmation of his guilt."[6]Id. "A statement is defamatory under Minnesota law if it is communicated to a third party, is false, and tends to harm the plaintiffs reputation in the community." Aviation Charter, Inc. v. Aviation Research Group/ US, 416 F.3d 864, 868 (8th Cir.2005), citing Graning v. Sherburne County, 172 F.3d 611, 617 (8th Cir.1999), citing, in turn, Stuempges v. Parke Davis Co., 297 N.W.2d 252, 255 (Minn.1980); see also, Marchant Investment & Management Co., Inc. v. St. Anthony West Neighborhood Organization, 694 N.W.2d 92, 95 (Minn.App.2005). The Plaintiff, as a Council member, was a public official at all times relevant to his Complaint. See, Chafoulias v. Peterson, 668 N.W.2d 642, 649 (Minn.2003). In the landmark case of New York Times v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the Supreme Court established a heightened "actual malice" standard for cases in which a public official claims defamation, which was subsequently extended to cases involving the alleged defamation of public figures, see, Curtis Publishing Company v. Butts, 388 U.S. 130, 155, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), and limited purpose public figures. See, Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The actual malice standard requires that a plaintiff demonstrate, by clear and convincing evidence, that the statement at issue was made "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, supra at 280, 84 S. Ct. 710. Minnesota Courts have clarified that actual malice "does not mean that the defendant acted with ill-will or spite." Chafoulias v. Peterson, 668 N.W.2d 642, 654 (Minn.2003), citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 665-67, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989); see also, Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 329 (Minn.2000)(noting that actual malice "has nothing to do with motive or ill will in the publishing of otherwise defamatory statements."). Moreover, "[m]alice is more than mere negligence and `probably even more than highly unreasonable conduct,'" Gohman v. Equifax Information Services, LLC, 395 F. Supp. 2d 822, 829 (D.Minn. 2005), quoting Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn.1977), and "reckless disregard" requires "that a defendant make a statement while subjectively believing that the statement is probably false." Chafoulias v. Peterson, supra at 654-55, quoting Hirman v. Rogers, supra at 566, quoting, in turn, St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968)("Mere errors in judgment are not sufficient to constitute actual malice and a defamatory statement must have been made with an awareness of its probable falsity, as demonstrated by sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."). Merely "failing to investigate alone does not support a finding of actual malice." Campbell v. Citizens for an Honest Government, Inc., 255 F.3d 560, 570 (8th Cir.2001), citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989), citing in turn, St. Amant v. Thompson, supra at 731, 88 S. Ct. 1323; see also, Price v. Viking Penguin, Inc., 881 F.2d 1426, 1433 (8th Cir.1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990). Although the presence of malice is generally a fact question, see, Stuempges v. Parke, Davis & Co., supra at 257, Minnesota Courts have held that the question of whether the evidence is sufficient for a finding of malice can be decided as a matter of law. See, Bauer v. State, 511 N.W.2d 447, 450 (Minn.1994); see also, Harte-Hanks Communications, Inc. v. Connaughton, supra at 685, 109 S. Ct. 2678 ("The question of whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law."); Frankson v. Design Space International, 394 N.W.2d 140, 145 (Minn.1986)(finding that evidence of malice was not sufficient to give to a Jury); Buchanan v. Minnesota State Dept. of Health, 573 N.W.2d 733, 738 (Minn.App. 1998); Michaelson v. Minn. Mining & Mfg. Co., 474 N.W.2d 174, 182 (Minn.App.1991)(affirming Summary Judgment because an employer's letter to a plaintiff employee's supervisor alleging deficiencies in his job performance did not establish actual malice).[7] The Plaintiff alleges that the Individual Defendants acted with actual malice, as they recklessly disregarded the truth at the Council meeting on May 1, 2006, when they accused him of unlawful behavior in maintaining an Arkansas homestead. The Defendants contend that Summary Judgment is appropriate, since the Plaintiff has shown, at most, that the Defendants were negligent in their investigation of the allegations against the Plaintiff, which is insufficient, as a matter of law, to establish malice. In analyzing the Plaintiffs Motion for leave to amend his Complaint in order to add a claim for punitive damages, we considered the Record before us and found that the Plaintiff had failed to show, by clear and convincing evidence, that the Defendants had acted with actual malice. The Plaintiff has failed to present any evidence which alters that view. Of course, under the Summary Judgment standard, the evidence need not be "clear and convincing," but we find that the Plaintiff has failed to raise a genuine issue of material fact on the question of actual malice. At the Hearing, the Plaintiff argued that the Defendants defamed him by accusing him of being a "tax cheat." Although the Plaintiff has not cited to any passages in the Record, it appears that he is referring to statements by Hedren and Ted Mellby ("Mellby"), who is an attorney under contract with the City, that were made during the Council meeting on May 1, 2006, and quoted in the Pilot-Independent newspaper article dated May 3, 2006. See, Affidavit of Porten, supra at Exhibit 2. In that article, Hedren reportedly stated that the Plaintiff received homestead credit on his property in Arkansas in 2004, 2005, and 2006, and Mellby also accused the Plaintiff of maintaining two homesteads in two states in 2004 and 2005, stating "[i]t's on the tax statement * * * [n]o one can have two homesteads at the same time." Id. According to that article, Mellby added that "[e]ither Arkansas or Minnesota was getting short-changed," and noted that the Plaintiff "[could not] say that [he] didn't know, and [his] wife was writing the checks." Id. The Plaintiff argues that he sold his house in the City, and purchased his home in Arkansas in 2005, and so the statement, that he received the homestead credit in 2004 is categorically false, and that the Individual Defendants were aware that this statement was false at the time that it was made. Specifically, the Plaintiff alleges that, as a neighbor of the Plaintiff at his former residence in the City, Ciha should have known that the Plaintiff did not sell this residence until 2005, and so would have known that the Plaintiff was not receiving a homestead credit in Arkansas in 2004. The Plaintiff has offered the deposition of Ciha, see, Affidavit of Schwie, supra at Exhibit U, Deposition of Ciha, in which Chia testifies that he spoke with the Plaintiff, and that the Plaintiff had told him that he had purchased a home in Arkansas and was selling his house in the City, and that Ciha mentioned his conversation with the Plaintiff to Hedren, in March or April of 2006. However, at his deposition, Ciha does not provide a date for his conversation with the Plaintiff, or state when he understood that the Plaintiff had initially purchased the residence in Arkansas. In addition, at his deposition, the Plaintiff stated that, in June of 2005, he told the Defendants that he was selling his residence in the City, and had purchased a property in Arkansas, but he did not testify as to a specific date on which he told the Plaintiffs that he had purchased the Arkansas property. Id. at Exhibit A, Deposition of Franzwa, pages 44-45. Moreover, among the Exhibits that the Plaintiff submitted in opposition to the Motion for Summary Judgment is an e-mail dated April 14, 2006, from Elaine Quick ("Quick"), who is the Assessor of Baxter County, Arkansas, to Hedren, that states that "[t]he property of Eugene Franzwa [in Arkansas] has had a homestead credit on the property since 2004." Affidavit of Schwie, at Exhibit I [emphasis added]. The Plaintiff argues that this e-mail does not specifically state that he was the owner of the property at the time that it received the homestead credit in 2004. However, on the Record presented, we have found no evidence from which it can be reasonably inferred that any of the Defendants subjectively believed that the statement, that the Plaintiff owned a homesteaded property in Arkansas in 2004, was likely false, given Quick's e-mail and the Plaintiffs representations that, in 2005, the Individual Defendants were generally aware that he either had purchased, or was planning to purchase, a residence in Arkansas. The Plaintiff alleges that the Defendants were also aware that the statement, that he received a homestead credit in Arkansas for 2006, was false, but the evidence which was submitted by the Plaintiff similarly does not establish a genuine issue of material fact as to whether any of the Defendants acted with actual malice by allegedly making that assertion. Specifically, the Plaintiff notes that, on May 2, 2006, which was the day after the Council meeting at which Hedren and Mellby allegedly made the defamatory statements, he sent an e-mail to Quick, in which he asked about the homestead status of the Arkansas property, and on May 3, 2006, Quick e-mailed a reply, in which she stated that "[t]his email is to let you know it was this office's mistake of giving a homestead for 2005." Affidavit of Schwie, supra at Exhibit Q. Notably, Quick did not attempt to shift the blame, for her County's mistake on the homestead question, to the Defendants. At his deposition, the Plaintiff explained that he also telephoned Quick on May 2, 2006, and asked her to send him a copy of the 2005 tax assessment for the Arkansas property, which showed that the Plaintiff received a homestead tax credit for 2005, id. at Exhibit A, Deposition of Franzwa, at page 86, and the Plaintiff concedes that, as of May 1, 2006, he had received a homestead tax credit of $300.00 in Baxter County, Arkansas, and that he did not refund that amount until after the Council meeting on May 1, 2006. Id. at pages 94, 173. Given this Record, which is uncontroverted, we find that there are no genuine issues of material fact as to whether the Defendants could have believed that the Plaintiff received the homestead credit in Arkansas in 2006, when the Plaintiff, himself, concedes that Baxter County had his property recorded as homesteaded in May of 2006, and there is no evidence, in this Record, that goes to establish that any of the Defendants believed otherwise.[8] In sum, we find that there is no evidence in the Record before us, that would support a showing of actual malice which is necessary to establish defamation of a public figure and, as a result, we recommend that the Defendants' Motion for Summary Judgment, as to the Plaintiffs defamation claims, be granted. 3. The Minnesota Open Meeting Law Claim. Finally, the Defendants argue that the Plaintiffs claims, under the Open Meeting Law, Minnesota Statutes Section 13D.01 et seq., should be subject to summary adjudication, as the Defendants' actions did not violate that Statute. Section 13D.01 establishes that city council meetings must be open to the public, unless they are expressly closed on the record.[9] Section 13D.06, Subdivision 1, provides for personal liability, in the form of a civil fine of $300.00, for any person who intentionally violates the Open Meeting law. Subdivision 4 of that same Section allows a Court to award "reasonable costs, disbursements, and reasonable attorney fees of up to $13,000 to any party," and further clarifies that "[n]o monetary penalties or attorney fees may be awarded against a member of a public body unless the court finds that there was a specific intent to violate this chapter." See also. Brown v. Cannon Falls Tp., 723 N.W.2d 31, 41-42 (Minn.App.2006). In his Complaint, the Plaintiff alleges that the Individual Defendants violated the Open Meeting law by meeting privately to discuss the Plaintiffs removal from office, and by failing to hold those meetings at a publicly noticed date and time.[10] See, Complaint, supra at ¶¶ 72-74. Meetings subject to the requirements of the Open Meeting Law "are those gatherings of a quorum or more of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body." Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn.1983). Minnesota Statutes Section 412.191, Subdivision 1, defines a "quorum" as a majority of the members of a city council, which includes the mayor, the clerk, and the city council members. "Chance or social gatherings" are exempt from the Open Meeting law requirement, although a quorum may not assemble under the pretense of a social gathering. Id., quoting St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, supra at 7. In Moberg, the Court went on to note that each case must be evaluated individually, as it would be possible for members of a council, or of a board, to conduct serial secret meetings of a number of members insufficient to constitute a quorum for the purpose of avoiding public scrutiny. Id. However, it is generally not a violation of the Open Meeting law for a group of public officials to gather when they lack the capacity to actually transact business. See, Sovereign v. Dunn, 498 N.W.2d 62, 66 (Minn.App.1993), citing Minnesota Daily v. Univ. of Minn., 432 N.W.2d 189, 193 (Minn.App.1988). The facts, as alleged by the Plaintiff, do not rise to the level of a concerted attempt to hold serial meetings in violation of the Open Meeting law. The Plaintiff alleges that Council member Ciha approached Mayor Hedren, in March of 2006, and mentioned his belief that the Plaintiff might not be a resident of the City. See, Affidavit of Schwie, supra at Exhibit R, Deposition of Hedren, at page 8. After speaking with Mellby, who is not a Council member, Hedren then spoke with the City Clerk, Jody Knapp, to see if she could obtain information, from Arkansas, concerning the Plaintiffs residency status. Id. at pages 15-16. In April of 2006, Hedren also mentioned his concerns, as to the Plaintiffs residency status, to Council member Johnston. Id. at pages 45-46; see also, Affidavit of Schwie; supra at Exhibit T, Deposition of Johnston, at pages 9-10. As a consequence, the Plaintiffs claim is that, over the course of two (2) months, Hedren mentioned the potential issue of the Plaintiffs residency to two (2) other City Council members, and to the City Clerk, and discussed the implications of a Council member's residence status with the City Attorney. However, on the Record presented, there is no evidence that a "group consensus" was formed, during those conversations, see, Moberg v. Indep. Sch. Dist. No. 281, supra at 519, or that anything was discussed, other than the necessity to raise the question of the Plaintiffs residency at the next scheduled City Council meeting. While the Plaintiff was clearly dismayed at being confronted, at the Council meeting of May 1, 2006, with allegations that he had homesteaded in Arkansas, and therefore, was not entitled to retain his position on the Council, the Individual Defendants were entitled to investigate the Plaintiffs residency status, and to raise those concerns, for the first time, at an open Council meeting. The Record establishes that the issue of the Plaintiffs residency was raised at the meeting of May 1, 2006, for public discussion, and that the Plaintiff was permitted to advocate his position at that time, and that the decision to suspend the Plaintiffs membership on the Council was made at that time. Moreover, the Plaintiff was given thirty (30) days, after the meeting on May 1, 2006, to submit proof of his City residence, which he did at the next Council meeting, which was held on May 18, 2006, and which resulted in his reappointment to a position on the Council. Having found that there are no genuine issues of material fact, as to the Plaintiffs Open Meeting law claim, we recommend that the Defendants' Motion for Summary Judgment, as to that claim, be granted. NOW, THEREFORE, It is RECOMMENDED: That the Defendants' Motion for Summary Judgment [Docket No. 24] be granted. May 28, 2008. NOTES [1] Under Minnesota law, to serve as an elected official of a city, the elected official must live within that city. See, Minnesota Statutes Section 351.02(4). [2] In paragraphs 60 and 61 of his Complaint, see, Docket No. 1, at p. 8, the Plaintiff does allege an equal protection of the laws claim against the Defendants. Given his abandonment of that claim, we recommend that Summary Judgment be granted on the claim as it is now moot. [3] We note that, based upon his Complaint, and his argument at the Hearing, the Plaintiff no longer pursues a due process claim that arises from a liberty interest. See, Winskowski v. City of Stephen, 442 F.3d 1107, 1109-10 (8th Cir.2006)("An employee's liberty interests are implicated where the employer levels accusations at the employee that are so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges."), cert. denied, ___ U.S. ___, 127 S. Ct. 435, 166 L. Ed. 2d 308 (2006), quoting Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 900 (8th Cir.1994). As a result, we confine our analysis of the Plaintiff's due process claim to his argument that he has been deprived of a property interest. [4] Indeed, because the co-members of the school board, in Velez, were not directly responsible for the removal of the plaintiff from that board, and had not empowered the appointive official to do so, the Court found no First Amendment claim as alleged against the plaintiffs fellow board members. See, Velez v. Levy, 401 F.3d 75, 99 (2d Cir.2005). [5] In support of his claim, the Plaintiff asserts that Ciha is friends with Ratieke, and that they "protect one another," Affidavit of Schwie, Exhibit A, at pages 116-18, that Johnston was "also part of the police problem," id. at page 119, and that Hedren "is very jealous" of Council members who do things for the City, as "he doesn't like competition." Id. at page 120. These accusations are conclusory, however, and are not supported by any supportive evidence. The Plaintiff does not temporally relate any statement or action he undertook to the actions of the City Council on May 1, 2006, nor do we find any other evidence to causally relate those actions to any political views that the Plaintiff has espoused. While the Plaintiff may speculate as to the motives of the Defendants, he has failed to substantiate his speculation with any competent evidence. [6] In his Complaint, the Plaintiff also claims that he "is here forced to self-publish * * * false and misleading statements by Defendants to others, including disclosing the reasons for his termination from office." See, Complaint, Docket No. 1, at ¶ 68. While self-publication can be grounds for a defamation claim, see, Lewis v. Equitable Life Assurance Society of the United States, 389 N.W.2d 876 (Minn.1986)(adopting the doctrine of compelled self-publication), the Plaintiff's only claim appears to be that he felt that he was forced to publish false claims by bringing this lawsuit, which does not constitute self-publication. We have found no case in which a plaintiff may bootstrap a self-publication claim on nothing more than his filing a Complaint against the alleged defamer, and we doubt that such a claim could exist. Nonetheless, since we fail to find any actionable defamation, we do not further address the self-publication issue. [7] At the Hearing, the Plaintiff alleged that the Defendants' statements and behavior constituted defamation per se, because the Defendants accused him of either claiming tax credits in Arkansas to which he was not due, or of defrauding the City by lying about his residency. Statements are defamatory per se, and therefore, actionable without proof of actual damages, if they affect the plaintiff in his business, trade or office, see," Stuempges v. Parke Davis Co., 297 N.W.2d 252, 255 (Minn. 1980), and false accusations of criminal activity are defamatory per se. See, Becker v. Alloy Hardfacing & Engineering Co., 401 N.W.2d 655, 661 (Minn. 1987); see also, Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977). However, even if a statement is defamatory per se, the plaintiff still must establish that there was publication of a false statement to a third party to succeed in a defamation action. See, Keuchle v. Life's Companion P.C.A., Inc., 653 N.W.2d 214, 218 (Minn.App.2002), citing Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn.App.1989). Moreover, the requirement that actual malice be shown in defamation cases involving public officials applies even to statements that would be defamatory per se. See, Hunter v. Hartman, 545 N.W.2d 699, 705 n. 2 (Minn.App.1996). As we find that the Plaintiff has failed to establish that the Defendants acted with actual malice, we do not further address his claim that any of the alleged statements constituted defamation per se. [8] Although it is not clear from the pleadings, in his Memorandum, the Plaintiff appeared to also be claiming that the act of removing him from the Council was, by itself, defamatory. However, that claim must fail for, under Minnesota law, actions cannot, in themselves, be defamatory. See, Bolton v. Dept. of Human Services, 540 N.W.2d 523, 525 (Minn.1995)("Minnesota has never recognized defamation by conduct alone"); Landers v. Nat'l R.R. Passenger Corp., 2002 WL 832588 at *1 (D.Minn., April 26, 2002). [9] Section 13D.05, Subdivision 2, provides as follows: A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open. Minnesota Statutes Section J3D.05, Subdivision 2. [10] In his Memorandum, Docket No. 32, at p. 28, the Plaintiff clarifies that his sole Open Meeting claim is premised on those alleged private meetings, and not on the failure of the Council to place a notice regarding the residence issue on any meeting agenda forms.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2175111/	782 F.Supp.2d 1329 (2010) Mark SIBILIA, Plaintiff, v. MAKITA CORPORATION, et al., Defendants. Case No. 8:10-cv-1515-T-27A. United States District Court, M.D. Florida, Tampa Division. October 28, 2010. Aldo Bolliger, Bolliger Law Group, Tampa, FL, for Plaintiff. Frank D. Hosley, Kimberly E. Hosley, Seipp & Flick, LLP, Lake Mary, FL, for Defendants. ORDER JAMES S. MOODY, JR., District Judge. THIS CAUSE comes before the Court upon Plaintiffs Motion to Remand (Dkt. 9) and Defendant's Response to Plaintiffs Motion to Remand and Incorporated Memorandum of Law (Dkt. 10). The Court, having considered the motion, response, and being otherwise advised in the premises, concludes that the motion should be denied. DISCUSSION Plaintiff Mark Sibilia ("Plaintiff') originally filed this action in state court, alleging causes of action pursuant to Florida law for personal injuries suffered because of an alleged defective product manufactured and sold by Defendants (the "State 1330 Court Action"). On November 13, 2009, Defendant Makita U.S.A., Inc. ("Defendant") filed a notice of removal and removed the State Court Action to this Court (see 8:09-cv-2324-JSM-AEP; Dkt. 1). Plaintiff then moved to remand the case, arguing that remand was appropriate because Defendant failed to establish by a preponderance of the evidence that the amount in controversy exceeded $75,000. The Court agreed and remanded the case. Id. at Dkt. 12; 674 F.Supp.2d 1290 (M.D.Fla.2009). Notably, the Court stated in its order that "removal would be appropriate if Defendant had used an 'other paper' under 28 U.S.C. § 1446(b) to establish the jurisdictional amount, such as Plaintiffs answers to requests for admissions regarding the jurisdictional amount, interrogatory responses regarding the amount of Plaintiffs damages, deposition testimony, or even medical bills or invoices establishing the amount of Plaintiffs damages." Id. at n. 4 (emphasis added). Back in the State Court Action, Defendant received Plaintiffs amended response to Defendant's request for admissions admitting that Plaintiff was seeking more than the requisite amount in controversy.[1] Specifically, Plaintiff admitted that he was seeking damages in excess of $75,000.[2] Based on this amended response, Defendant filed a notice of removal for a second time and removed the State Court Action to this Court. This issue is now before the Court on Plaintiff's motion to remand. Plaintiff argues that this case should be remanded because Defendant's second notice of removal amounts to a "de facto appeal or reconsideration" of the Court's first remand Order. The Court disagrees because the amended answer to the request for admission serves as a different factual basis supporting re-removal. DISCUSSION As the Court noted in the first remand Order, the Eleventh Circuit Court of Appeals held in Lowery v. Alabama Power Co. that, under 28 U.S.C. § 1446(b), removal may be premised on either the plaintiffs initial pleading, such as a complaint, or "a copy of an amended pleading, motion, order or other paper." 483 F.3d 1184, 1212-13 (11th Cir.2007) (emphasis added).[3] Plaintiff, however, is correct that "a party is not entitled, under existing laws, to file a second petition for removal upon the same grounds, where, upon the first removal by the same party, the federal 1331 court declined to proceed and remanded the suit...." St. Paul & C. Railway Co. v. McLean, 108 U.S. 212, 217, 2 S.Ct. 498, 27 L.Ed. 703 (1883). But this language does not prevent successive removals provided that the subsequent removal petition alleges a different factual basis for seeking removal and otherwise meets the requirements of section 1446(b). Sudduth v. Equitable Life Assur. Society, No. 07-0436, 2007 WL 2460758, at 4 (S.D.Ala. Aug. 27, 2007) (holding that a deposition served as a source of "different factual basis" to support re-removal); see also Benson v. SI Handling Syst., Inc., 188 F.3d 780, 783 (7th Cir.1999) (holding that disclosure in discovery that the damages exceeded the jurisdictional amount justified re-removal). Thus, "section 1446(b) allows [a defendant] to file successive removals based on [a] different factual basis." Sudduth, 2007 WL 2460758, at 4. And this is precisely the situation here; Defendant's second removal is based on Plaintiffs amended response to the requests for admissions admitting the amount in controversy to establish federal court jurisdiction. This "other paper" was not available at the time of the first removal. Plaintiffs argument that Defendant's second removal is an inappropriate attempt to circumvent the Court's previous remand Order lacks merit. If the Court were to even entertain such an argument, it would reward Plaintiff for the gamesmanship he engaged in to circumvent federal court, which required two hearings in the State Court Action and two orders compelling him to admit or deny the request for admission before he finally admitted the amount in controversy was met. Such behavior should not be entertained, let alone rewarded. See Devore v. Howmedica Osteonics Corp., 658 F.Supp.2d 1372, 1380 n. 13 (M.D.Fla.2009) (noting that the court "does not countenance such gamesmanship"). It is therefore ORDERED AND AJUDGED that: 1. Plaintiffs Motion to Remand (Dkt. 9) is hereby DENIED. 2. Defendant's Motion to Strike (Dkt. 22) is hereby DENIED as moot. NOTES [1] Initially, Plaintiff objected to the request for admission that his damages exceeded the amount in controversy. After the state court held a hearing on the issue and compelled Plaintiff to admit or deny the request for admission, Plaintiff amended his response and stated that he could neither admit nor deny the request for admission, so it was therefore denied. After another hearing on the issue, and a second order compelling Plaintiff to either admit or deny the request for admission, Plaintiff amended his response, yet again, and admitted that his damages exceeded the amount in controversy. Notably, Plaintiff's counsel acknowledged during the second hearing that he purposefully did not provide a response because he wanted to prevent Defendant from removing the case to federal court. [2] As the Court noted in its prior Order remanding the case, Plaintiff's injuries and damages stemmed from "having been cut through the chest by a grinder, with a saw blade attached to the grinder by Plaintiff, to the extent that three ribs were cut through, that he was cut by the grinder/saw blade also across the stomach area and leg, that his thumb was nearly severed, and that he has never been able to return to employment in the same capacity as he was prior to the accident and that in the future he will not be able to return to employment in the same capacity as he was prior to the accident." See 674 F.Supp.2d 1290 (M.D.Fla.2009). [3] Although Lowery was decided in a Class Action Fairness Act ("CAFA") case, its holding is not limited to that context.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2590190/	5 P.3d 616 (2000) 2000 UT 19 John LYON, individually and as guardian of Matthew J. Lyon, a minor, and Chris Jacob Walker, individually and as guardian for Christopher Michael Walker, a minor, Plaintiffs, Appellants, and Cross-Appellees, v. Glen H. BURTON, Weber Fire District, and Weber County, Defendants, Appellees, and Cross-Appellants. Nos. 950515, 950516. Supreme Court of Utah. January 19, 2000. Order Modifying Opinion on Denied of Rehearing June 30, 2000. E. Scott Savage, Salt Lake City, for plaintiffs. Ray R. Christensen, David C. Richards, Salt Lake City, for Burton and Weber Fire District. Robert R. Wallace, Salt Lake City, for Weber County. Gary B. Ferguson, Salt Lake City, for North View Fire Department. 619 STEWART, Justice: I. FACTS ¶ 3 This case arose from the collision of an automobile driven by Chief Glen H. Burton of the Weber Fire District ("District") and an automobile in which Matthew J. Lyon and Christopher M. Walker were riding. Lyon and Walker, both minors, were severely injured and through their fathers, sued Chief Burton and the Weber Fire District. A jury found that defendants Burton and the District were 100 percent at fault in causing the accident and awarded Matthew Lyon $700,000 in general damages and $9,537.79 in special damages, and Christopher Walker $900,000 in general damages and $132,932.39 in special damages. ¶ 4 On the day of the accident, Chief Burton heard a report of a fire in the North View Fire District, which borders the Weber Fire District. After listening to additional reports on the fire's progress, Chief Burton decided to proceed to the fire. En route, he switched his Ford Explorer to "emergency" mode, which entailed turning on the vehicle's emergency lights and siren. Although the Explorer had intentionally not been accoutered to look like an emergency vehicle,[1] it was equipped with emergency lights mounted behind the grill, a siren mounted behind the front bumper, and a portable light that could be placed on the dashboard. ¶ 5 While proceeding in emergency mode, Chief Burton entered an intersection against a red light and collided with plaintiffs, who had the green light. He estimated that his speed immediately prior to the accident was from ten to fifteen miles per hour up to thirty-five to forty miles per hour. Both plaintiffs were severely injured. Matthew Lyon sustained a closed head injury for which relatively little medical treatment was required or possible but which resulted in significant and permanent brain damage. Christopher Walker sustained brain damage and also severe physical injuries. ¶ 6 Plaintiffs filed suit against Chief Burton and the District. Prior to trial, defendants moved to dismiss the action against Chief Burton in his individual capacity on the ground that he was acting within the scope of his duties for the District at the time the accident occurred. Thus, defendants argued that suit against Chief Burton was barred under Utah Code Ann. § 63-30-4 (1993)[2] of the Governmental Immunity Act (the "Act"), which gives total immunity to government employees for negligence in the course and scope of their employment. The trial court deferred ruling on this motion until after trial, and then granted it. ¶ 7 Both defendants also moved for summary judgment on the ground that the general waiver of governmental immunity for damage caused by negligence under section 63-30-10 was not applicable because subsection (18)(b) of section 63-30-10 retained governmental immunity for fire fighting activities. 620 Defendants maintained that Chief Burton was engaged in fire fighting activities at the time of the collision. The trial court did not formally deny the motion, but the case proceeded to trial. ¶ 8 Following the jury verdicts, the trial court granted defendants' pretrial motion to dismiss Chief Burton as a party defendant and the District's motion to limit the damages award against the District to $250,000 for each plaintiff pursuant to Utah Code Ann. § 63-30-34. The court denied plaintiffs' motions for judgment on the verdicts, prejudgment interest, and costs, but granted their motions for postjudgment interest. Thereafter, the District moved for a judgment notwithstanding the verdict (j.n.o.v.) on the ground that under subsection (18)(b) of section 63-30-10, the District was not liable for negligence in fire fighting activities. The court denied the motion. ¶ 9 Both parties appealed. Plaintiffs appealed (1) the order dismissing Chief Burton pursuant to section 63-30-4; (2) the limitation of their damages to $250,000 each pursuant to section 63-30-34; (3) the denial of prejudgment interest on their special damages under section 78-27-44; and (4) the denial of costs under Rule 54(d) of the Utah Rules of Civil Procedure. The District cross-appealed the trial court's denial of its motions for summary judgment and j.n.o.v. on the ground that it was entitled to complete immunity for fire fighting activities. II. GOVERNMENTAL IMMUNITY ¶ 10 Defendants claim that sections 63-30-3(1) and 63-30-10(18)(b) of the Utah Governmental Immunity Act provide complete immunity in this case. We address this claim first because plaintiffs' other claims are relevant only if the Act does not provide complete immunity. Moreover, some of plaintiffs' claims are based on constitutional challenges, and "`this Court should avoid addressing constitutional issues unless required to do so.'" World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 257 (Utah 1994) (quoting State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985)). ¶ 11 Defendants argue that the trial court erred in denying their motion for summary judgment and in denying the District's motion for j.n.o.v. Both motions were based on the argument that the District is immune from liability because sections 63-30-3(1) and 63-30-10(18)(b) together provide immunity to governmental entities that negligently cause injuries while engaged in "activities of . . . fighting fire." While the legal bases of both motions are the same, the standards by which the trial court is to evaluate the motions are different. Summary judgment "is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." State Farm Mut. Auto. Ins. Co. v. Clyde, 920 P.2d 1183, 1185 (Utah 1996). On the other hand, a motion for j.n.o.v. should be granted only when "viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict" as a matter of law. Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). We review a trial court decision on both a motion for summary judgment and a motion for j.n.o.v. for correctness. See Johnson v. Redevelopment Agency, 913 P.2d 723, 727 (Utah 1995) (summary judgment); Crookston, 817 P.2d at 799 (j.n.o.v.). A. Weber Fire District's Liability to Suit under Section 63-30-10 of the Governmental Immunity Act ¶ 12 The District contends that the trial court erred in ruling that it was not immune from suit. Generally, it is appropriate to address liability issues, particularly the issue of whether a defendant owes a plaintiff a duty of due care, prior to addressing the affirmative defense of the defendant's immunity from suit. See, e.g., Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1163-64 (Utah 1993); Rollins v. Petersen, 813 P.2d 1156, 1162 (Utah 1991). Here, however, defendants in effect admit that Chief Burton owed a duty of care to plaintiffs and that that duty was breached. For that reason, we proceed directly to the issue of governmental immunity. ¶ 13 Ledfors established a three-step analysis for determining whether a governmental 621 entity is entitled to immunity under the Act. First, was the activity the entity performed a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3? [Utah Code Ann. § 63-30-3(1).] Second, if the activity was a governmental function, has some other section of the Act waived that blanket immunity? Third, if the blanket immunity has been waived, does the Act also contain an exception to that waiver which results in a retention of immunity against the particular claim asserted in this case? Ledfors, 849 P.2d at 1164. ¶ 14 The first question, therefore, is whether driving an emergency vehicle to a fire is a "governmental function." This inquiry is mandated by section 63-30-3(1), which establishes the general principle of governmental immunity subject to certain exceptions. "Except as may be otherwise provided in this chapter, all governmental entities are immune from any injury which results from the exercise of a governmental function." Utah Code Ann. § 63-30-3(1) (emphasis added). The District qualifies for this blanket grant of immunity if Chief Burton was engaged in a "governmental function" at the time of the accident. See Utah Code Ann. § 63-30-2(4)(a). Under this statutory definition, we conclude that driving an emergency vehicle to the scene of a fire is a "governmental function" and is therefore presumptively cloaked with immunity by section 63-30-3 of the Act.[3]Cf. Rollow v. Ogden City, 66 Utah 475, 243 P. 791 (1926) (stating that doctrine of respondeat superior will not apply to municipality acting in governmental capacity like fighting fires). ¶ 15 The second issue under Ledfors is whether the Act provides an exception to that immunity. Section 63-30-10 provides a broad waiver of governmental immunity for negligent acts of an employee committed in the course and scope of employment. "Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment . . . ." Utah Code Ann. § 63-30-10. Given the jury verdict, this waiver applies in this case. ¶ 16 The next question is whether the Act contains an exception to that waiver. Section 63-30-10 has several subsections that exclude certain activities from the waiver and thereby retain immunity. Subsections 15 and 18(b) are two exceptions that are arguably applicable here. Section 10 states: Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of: . . .; (15) the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14; . . . ; or (18) the activities of: . . . ; (b) fighting fire . . . . Id. (emphasis added). These exceptions to the general waiver of immunity are in the alternative. Therefore, the District is immune from liability if either exception is satisfied. Although we have construed several of the exceptions in section 63-30-10 as to the waiver of immunity,[4] we have not previously addressed either subsection (15) or subsection (18). 622 ¶ 17 In construing these subsections, we apply long-standing rules of statutory construction. "This court's primary objective in construing enactments is to give effect to the legislature's intent." Gohler v. Wood, 919 P.2d 561, 562 (Utah 1996) (citation omitted). The plain language of a statute is generally the best indication of that intent. See Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1292 (Utah 1996). Therefore, "where the statutory language is plain and unambiguous, we do not look beyond the language's plain meaning to divine legislative intent." Horton v. Royal Order of the Sun, 821 P.2d 1167, 1168 (Utah 1991) (citation omitted). The plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and "with other statutes under the same and related chapters." Roberts v. Erickson, 851 P.2d 643, 644 (Utah 1993) (per curiam) (citation omitted); see also Silver v. Auditing Div., 820 P.2d 912, 914 (Utah 1991); Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980). Furthermore, where possible "we . . . construe statutory provisions so as to give full effect to all their terms." Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). Most pertinent here is the rule that a statute dealing specifically with a particular issue prevails over a more general statute that arguably also deals with the same issue. See Madsen v. Brown, 701 P.2d 1086, 1090 (Utah 1985). ¶ 18 Giving full effect to the language of subsections (15) and (18) and reading them in harmony with related statutes, it is apparent that only subsection (15) applies to the facts of this case. Subsection (15) applies to "the operation of an emergency vehicle," and that is precisely the activity in which Chief Burton was engaged at the time of the accident. Subsection (18)(b), on the other hand, is more general; it provides an exception to the waiver of immunity for "activities of . . . fighting fire." Standing alone, this provision could arguably apply to this case, but we conclude that because subsection (15) applies with greater specificity, it should govern. See Madsen, 701 P.2d at 1090. ¶ 19 This conclusion is bolstered by a detailed reading of subsection (15) and its reference to a provision of the Motor Vehicle Code. Subsection 63-30-10(15) provides that liability shall not attach for negligence if the injury arises out of "the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14." Utah Code Ann. § 63-30-10(15). At the time of the accident, section 41-6-14 provided: (1) The operator of an authorized emergency vehicle, when responding to an emergency call or when in pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges under this section, subject to Subsection (2). (2) The operator of an authorized vehicle may: (a) park or stand, irrespective of the provisions of this chapter; (b) proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; (c) exceed the maximum speed limits if the operator does not endanger life or property; or (d) disregard regulations governing direction of movement or turning in specified directions. (3) Privileges granted under this section to an authorized emergency vehicle apply only when the vehicle sounds an audible signal under Section 41-6-146, or uses a visual signal as defined under Section 41-6-132, which is visible from in front of the vehicle. (a) The privileges under this section do not relieve the operator of an authorized emergency vehicle from the duty to operate the vehicle with regard for the safety of all persons, or protect the operator from the consequences of an arbitrary exercise of the privileges. Id. § 41-6-14 (1988) (emphasis added). This section specifically refers to the privilege of driving an emergency vehicle through a red light when responding to a fire alarm. Because those are precisely the circumstances of this case, subsection 63-30-10(15), which 623 incorporates section 41-6-14, is the more specific provision and therefore controls over subsection 63-30-10(18)(b).[5] ¶ 20 But whether subsection (15) in fact provides an exception to the waiver depends on whether Chief Burton's conduct complied with the requirements of that section. For the District to be immune under subsection 63-30-10(15), it must show that plaintiffs' injuries arose out of "the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14." Id. § 63-30-10(15) (emphasis added). At the time of the accident, section 41-6-14 provided in pertinent part: "The operator of an authorized vehicle may . . . proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation . . . ." Id. § 41-6-14(2)(b) (1988) (emphasis added). Chief Burton, therefore, had the privilege of running the red light only if he slowed down as necessary for safe operation. This plainly presented a factual question for the jury. B. Defendant's Motion for Judgment Notwithstanding the Verdict ¶ 21 The District's motion for a j.n.o.v. raised the question of whether the evidence supported the jury verdict which implicitly found that Chief Burton did not qualify for the privilege of proceeding through a red light. Regarding plaintiffs' theories of negligence, the trial court instructed the jury as follows: In this case the plaintiffs claim the defendants were negligent in the following respects: 1. Glen Burton failed to yield the right of way at the intersection; 2. He entered the intersection at an unreasonably high speed under the circumstances; 3. He failed to keep a proper lookout; 4. He entered into the intersection against a red light in a vehicle that was not properly or adequately equipped to be an emergency vehicle. To return a verdict for the plaintiffs, you must find by a preponderance of the evidence that: i. The defendants were negligent in one or more of the particulars alleged by the plaintiffs; and ii. The defendants' negligence was a proximate cause of the plaintiffs' injuries. Concerning plaintiffs' second theory of negligence, the court instructed the jury that "[t]he operator of an authorized emergency vehicle, when responding to a fire alarm, may exercise privileges such as . . . proceed[ing] past a red or stop signal or stop sign, but only after slowing down as necessary for safe operation." To aid the jury in its resolution of plaintiffs' fourth theory of negligence, the trial court gave the jury a detailed instruction on the statutory requirements contained in sections 41-6-132 and 41-6-146 concerning how authorized emergency vehicles must be equipped. ¶ 22 The jury found that Chief Burton was negligent in causing the accident; however, the jury did not make separate findings as to each of plaintiffs' theories of negligence. When "the jury does not identify which theory or theories it relied on in reaching its verdict, we may affirm the verdict if the jury could have properly found for the prevailing party on any one of the theories presented." Billings v. Union Bankers Ins. Co., 918 P.2d 461,467 (Utah 1996) (citing Cambelt Int'l Corp. v. Dalton, 745 P.2d 1239, 1241-42 (Utah 1987) (additional citation omitted)). Thus, the general verdict finding Chief Burton negligent created a presumption that the jury found in favor of all of plaintiffs' theories of negligence. See Turnbull v. Byram, 235 Kan. 891, 684 P.2d 429, 624 433 (1984); Grumman Credit Corp. v. Rivair Flying Serv., Inc., 845 P.2d 182, 185 (Okla. 1992). Even if the evidence supports only one theory of negligence, that is sufficient to sustain the verdict. ¶ 23 The next question is whether there was evidence sufficient to support at least one of plaintiffs' theories of negligence submitted to the jury. On this issue, we "view[] the evidence in the light most favorable to the prevailing party." Crookston, 817 P.2d at 799. One possible factual basis for the jury's finding of negligence is that Chief Burton was driving too fast as he entered the intersection and therefore did not qualify for the exemption in subsection (15). Chief Burton gave conflicting testimony as to his speed as he entered the intersection, i.e., from ten to forty miles per hour. Because the jury was entitled to pick the higher figure, there was sufficient evidence to support a finding that he failed to comply with the requirement in subsection 41-6-14(2)(b) that he slow down "as may be necessary for safe operation" and was therefore negligent. The trial court properly denied the motion for a j.n.o.v. ¶ 24 We affirm the trial court's denial of defendants' motion for a j.n.o.v. III. CONSTITUTIONALITY OF SECTIONS 63-30-4 AND 63-30-34 ¶ 25 Based on Utah Code Ann. § 63-30-4(4), the trial court dismissed plaintiffs' negligence actions against Chief Burton, and based on Utah Code Ann. § 63-30-34, that court cut the damages the jury awarded plaintiffs and entered judgment against the District for the statutory limit of $250,000 for each plaintiff. Thus, plaintiffs were denied any remedy for their personal injuries against Chief Burton and given only a partial remedy against the District. The reason for plaintiffs' appeals, therefore, is that they have been denied the full amount of damages the jury awarded them for the severe injuries they suffered. They argue that (1) the abrogation of their remedy for damages against Chief Burton as an individual and (2) the limitation on the amount of damages awarded against the District are unconstitutional. Specifically, plaintiffs contend that Utah Code Ann. § 63-30-34, which sets a cap on damage awards against government agencies,[6] is unconstitutional under Article I, section 11, the open courts provision, and Article I, section 24, the uniform operation of the laws provision. Plaintiffs also contend that Utah Code Ann. § 63-30-4(4), which bars all actions for injuries inflicted by government employees in their individual capacities by way of negligence, gross negligence, and recklessness,[7] is unconstitutional under the same two provisions. ¶ 26 A just and peaceful society must secure by law the fundamental rights of all its citizens. Among the basic rights protected by the Utah Declaration of Rights are the 625 right to be free from physical harm inflicted by others, the right to acquire and own property, and the right of people to be free from injury to their reputations. The civil and criminal laws protect those interests in different ways. Criminal law sanctions are primarily designed to protect society at large. Those sanctions do not restore to a person wronged by another the losses inflicted on one's person or property. Imprisonment protects against further violations, and criminal fines inure to the benefit of the state, not the victim. Criminal law remedies do nothing to provide restorative or compensatory justice to persons wronged by others; that objective is left to the civil law to accomplish. Thus, while the criminal and civil law are separate bodies of law, they are also complementary components of a system of justice designed to safeguard the peace and safety of society. Ordinarily, restorative justice can be accomplished, even if only approximately, by money compensation for losses inflicted on one's person, property, or reputation. ¶ 27 Unless the law allows a person the right to vindicate in a court of law injuries to his person, property, and good name and status in the community, resort to self-help will inevitably occur and result in violence. Thus, the right to restorative or compensatory justice is indispensable to the security of the individual and the security of society itself. Under the Utah Constitution, that right is protected from arbitrary and unreasonably discriminatory laws. ¶ 28 Prior opinions of this Court have recounted the long Anglo-American history of the principles protected by Article I, section 11 of the Utah Declaration of Rights. The right of access to the courts and to a civil remedy to redress injuries, which Article I, section 11 protects, is fundamental in Anglo-American law. See Craftsman Builder's Supply v. Butler Mfg., 1999 UT 18, ¶¶ 32-54, 974 P.2d 1194 (Stewart, J., concurring); see also Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985). The importance of these rights and their roots in English law were examined by Lord Coke and Sir William Blackstone centuries ago. The principle that a person is entitled to access to the courts for a civil remedy is not only the basis of an individual right, but is also a keystone of the independence of the judiciary as a co-equal branch of government. See Craftsman, 1999 UT 18 at ¶¶ 32-54, 974 P.2d at 1203-10 (Stewart, J., concurring). ¶ 29 Indeed, that right is of increasing importance in the modern world. Politically powerful special interest groups pursuing their self-interests have from time to time sought to commandeer the law to advance their self-interests at the expense of a citizen's right to restorative justice by abrogating remedies essential to the protection of persons, property, and reputation. See id. The need to protect the right of access to the courts led the framers of the Utah and some thirty-eight other state constitutions to adopt open courts provisions, which had their origins in England and in this country in the constitutions of the first thirteen states. See id. ¶ 30 The legislative impetus to abrogate those rights has occurred from time to time because of majoritarian indifference and even hostility to the plight of those whose fundamental rights are harmed and whose only recourse is a judicial remedy. By and large, persons who suffer serious personal or property injuries are an isolated and unidentifiable minority who have little influence on legislative actions. These considerations were instrumental in the adoption of open courts clauses in a number of state constitutions. See id. As Justice Zimmerman trenchantly observed in his concurring opinion in Condemarin v. University Hospital, 775 P.2d 348, 367 (Utah 1989): The constitution's drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry, 717 P.2d at 676; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note, State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation). At any one time, only 626 a small percentage of the citizenry will have recently been harmed and therefore will need to obtain a remedy from the members of any particular defendant class. The vast majority of the populace will have no interest in opposing legislative efforts to protect such a defendant class because the majority will not readily identify with those few persons unlucky enough to have been harmed. And those few persons directly affected will, in all likelihood, lack the political power to prevent the passage of legislation that, in essence, requires every member of the citizenry who is injured by members of the defendant class to bear some or all of the cost of those injuries. Id. at 367. ¶ 31 In a somewhat similar vein, in a concurring opinion in Craftsman, Justice Stewart wrote: The Framers of the Utah Constitution included Article I, section 11 to anchor in the Constitution rights that originated in the English Magna Carta of 1215 and that are among those essential to a peaceful society. The purpose of those rights is to bar sovereign power, whether kingly, parliamentary, or legislative, from undermining an independent judiciary and arbitrarily abolishing remedies that protect the person, property, or reputation of each individual. Craftsman, 1999 UT 18 at ¶ 41, 974 P.2d 1194 (Stewart, J., concurring). A. Constitutionality of Cap on Damages of Weber Fire District ¶ 32 This Court has addressed the constitutionality of statutory limits or caps on compensatory damages in three cases. See Bott v. DeLand, 922 P.2d 732 (Utah 1996); McCorvey v. State Dep't of Transp., 868 P.2d 41 (Utah 1993); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989). Two cases have held the damage cap in Utah Code Ann. § 63-30-34 unconstitutional as applied. In Bott, a unanimous court held that provision unconstitutional insofar as it limited one's right under Article I, section 9 to a remedy for violation of the right to be free from unnecessary abuse. ¶ 33 Plaintiffs argue that the cap on damages as applied to the District is unconstitutional under Condemarin. Condemarin held unconstitutional under Article I, sections 11 and 24, a cap on damages awarded against the University of Utah Hospital, a government agency that the Court held performed a "proprietary" or "nonessential governmental" function of providing medical services. Plaintiffs in this case contend that fire fighting activities are not essential governmental activities under the standards stated in DeBry v. Noble, 889 P.2d 428 (Utah 1995), and that the cap is therefore unconstitutional under Condemarin. ¶ 34 In response, the District argues that fire fighting is an "essential governmental function" and that McCorvey controls. McCorvey held constitutional a cap on damages against a governmental agency performing the "essential governmental" function of highway design and maintenance. ¶ 35 Thus, whether Condemarin or McCorvey governs the constitutionality of the damage cap depends on the nature of the services performed, the government agency, and the effect of liability in rendering those services. See DeBry, 889 P.2d 428. DeBry held that the legal principles the Legislature established in the landmark Governmental Immunity Act of 1965, as construed in Standiford v. Salt Lake City Corp., 605 P.2d 1230 (Utah 1980), reflected the proper constitutional boundary between those governmental activities that are entitled to immunity under governmental immunity law (subject to legislative waiver) and are not subject to Article I, section 11 protections, and those governmental activities that are not subject to immunity and that are subject to the remedies protected by Article I, section 11.[8]See De-Bry, 889 P.2d at 440. 627 ¶ 36 Prior to the enactment of the Governmental Immunity Act of 1965, governmental immunity law in this state was entirely a product of judge-made case law. Under that case law, governmental activities deemed to be proprietary were not immune and governmental activities deemed to be "governmental" as opposed to proprietary were immune. See Standiford, 605 P.2d at 1231-35. The Governmental Immunity Act of 1965, 1965 Utah Laws 290 ch. 139, sought to rationalize the conflicting and chaotic case law that had developed under the governmental/proprietary test and other similar tests that the courts had applied. See De-Bry, 889 P.2d at 432-40. To that end, the Act enunciated basic principles to be applied in deciding what governmental activities were immune and what were not. As originally enacted, the 1965 Act did not address the common law doctrine of official immunity. Thus, the liability of government employees for their torts, remained wholly intact. This official immunity law was also almost wholly judge-made. ¶ 37 In this state, the governmental/proprietary test, which gave rise to highly confused legal analysis and inconsistent results, is no longer determinative of whether a governmental agency is entitled to governmental immunity. See DeBry, 889 P.2d 428; Madsen v. Borthick, 658 P.2d 627 (Utah 1983); Thomas v. Clearfield, 642 P.2d 737 (Utah 1982); Johnson v. Salt Lake City, 629 P.2d 432 (Utah 1981); Standiford, 605 P.2d 1230. The same is true in most other states. See Charles S. Rhyne, The Law of Local Government Operations 1142-44 (1980).[9] ¶ 38 Standiford, 605 P.2d 1230, was the first case to adumbrate the scope of governmental immunity as established by the principles enunciated in the 1965 Act. Standiford noted the inconsistent and chaotic status of governmental immunity case law as it existed prior to the Governmental Immunity Act of 1965. Standiford provided a new basis for distinguishing between governmental activities that were immune and those that were not. See DeBry, 889 P.2d at 436-42. ¶ 39 Following Standiford, DeBry for the first time addressed the inherent tension between Article I, section 11 rights and governmental immunity. In DeBry, this Court stated: [P]olicies favoring governmental immunity cannot be viewed in isolation from article I, section 11 and the harsh effect of denying individuals a remedy for what may be devastating injuries. In applying the Standiford test, the Court must, among other things, evaluate whether the effect of tort liability would promote public safety or defeat essential or core governmental activities and programs that are critical to the protection of public safety and welfare. DeBry, 889 P.2d at 440 (citations and footnotes omitted). ¶40 Rollow v. Ogden City, 66 Utah 475, 243 P. 791 (Utah 1926), held that fire fighting activities were "governmental" activities under the common law governmental/proprietary test and therefore immune from tort liability. Plaintiffs contend that under the test set out in DeBry fire fighting is not an essential governmental function entitled to immunity because fire protection can be and sometimes is offered by private organizations. However, DeBry rejected the proposition that just because an activity that is performed by government may be, or sometimes is, performed privately, that activity is therefore a nonessential governmental activity and not entitled to immunity. See DeBry, 889 P.2d at 441-42. Fire fighting, as well as most governmental activities, can be and sometimes is done by private organizations. Whether a particular function may be performed by nongovernmental entities is only one factor to be considered in determining whether that function is a governmental function and therefore immune. See id.; see 628 also Madsen, 658 P.2d 627; Thomas, 642 P.2d 737.[10] ¶ 41 There are compelling reasons why fire fighting activities historically have been, and should be, deemed an essential governmental activity. Fire fighting is essential to the safety of persons and property in a community. Those engaged in fire fighting activities, in discharging their necessary duties, undertake the highly hazardous activities necessary for the protection of persons and property. Fire fighting requires instantaneous decisions by persons in highly hazardous circumstances that involve the safety of firefighters themselves and the security of the community, or large parts of it. Imposing the potential for legal liability for injuries occurring to persons and property is incompatible with the inherent risks of fire fighting. After-the-fact judicial decisions assessing the propriety of a firefighter's decision could seriously impede effective fire fighting by promoting the value of caution over that of prompt action. Indeed, tort actions for injuries to persons or property based on untoward results in fire fighting could result in an "overall loss in safety, rather than greater safety and protection," even more so than is the case with respect to the enforcement of building regulations. See DeBry, 889 P.2d at 441. ¶ 42 For these reasons, the law holds that the security of the community as a whole as well as the security of individuals is more safe and secure with tort immunity for fire fighting than without it. In short, we hold, consistent with the law as it existed prior to the enactment of the Act and consistent with sound policy, that fire fighting activities are an essential and core governmental activity.[11] ¶ 43 It follows that fire fighting activities are core governmental activities under DeBry, and are immune from tort remedies, except insofar as the Legislature has waived that immunity, as it has with respect to the operation of emergency vehicles, such as fire fighting vehicles, while driven on public highways. It also follows that the limitation of the District's damages under Utah Code Ann. § 63-30-34 is constitutional under Article I, section 11 as construed in McCorvey, 868 P.2d 41. B. The Historic Liability of Government Employees for Wrongs They Commit in the Course of Their Employment ¶ 44 We turn now to the separate and distinct issue of Chief Burton's liability in his personal capacity. Utah Code Ann. § 63-30-4 abrogates all actions against government employees for injuries they cause to others in their person and property, unless the employee acts with fraud or malice. The immunity given government employees by the 1978 and 1982 amendments to the Act created a sharp break with the Act as it existed prior thereto and, more importantly, with prior law holding such employees liable for their civil wrongs. The law in Utah, as in most other states, had been that government employees, like all business employees and all other persons, were personally liable for civil wrongs that injured the persons or property of others. [T]he common law traditionally did not distinguish between public officials and private individuals for purposes of determining the scope of personal tort liability. In fact, courts that drew such a distinction often imposed a stricter standard of care on officials than on private individuals, holding them personally liable for the consequences of simple, non-negligent mistakes. George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. 629 L.Rev. 1175, 1178 (1977). Thus, government employees could be sued in their individual capacity for wrongful acts committed in the course of their employment, even when governmental immunity barred a suit against the government agency itself. Nevertheless, the law recognized an important exception to that general rule. If the liability of employees or agents could unduly and adversely affect governmental operations by making discretionary decisions subject to suit, no liability would attach. It has long been the law that government agents are not liable for injuries to persons or property that arise from the implementation of governmental discretion.[12] As Professor Bermann stated, the purpose of this qualified official immunity is to avoid making "public officials unduly fearful in their exercise of [discretionary] authority and discourag[ing] them from taking prompt and decisive action." Bermann, supra, at 1178. Officials exercising judicial, quasi-judicial, or legislative functions have broad immunity under somewhat different rules. See Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967) (judicial immunity); Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951) (legislative immunity). Accordingly, suits against government employees were limited to nonpolicy-making, nondiscretionary acts. ¶ 45 As in most jurisdictions, government employees in this state were personally liable for civil wrongs committed in a ministerial or operational capacity. See Frank v. State, 613 P.2d 517 (Utah 1980) (state-employed health care provider held subject to tort duty of due care in rendering medical treatment); Benally v. Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962) (police officer held liable for failing to exercise due care for safety of prisoner); Jensen v. Taylor, 2 Utah 2d 196, 271 P.2d 838 (1954) (driver of fire truck held liable for negligent operation of fire truck); Bowman v. Hayward, 1 Utah 2d 131, 262 P.2d 957 (Utah 1953) (police officer held liable for assault and battery on a prisoner); Richardson v. Capwell, 63 Utah 616, 176 P. 205 (1918) (jailer held subject to duty of due care for failing to provide prisoner with food, warmth, and proper sanitary conditions); Clinton v. Nelson, 2 Utah 284 (1877) (marshal held subject to damages for tortuous mistreatment of prisoner); see also Payne v. Myers, 743 P.2d 186 (Utah 1987). ¶ 46 A government agent or employee performing a ministerial function could be liable even if the agency itself was engaged in a governmental function and was immune from suit. For example, in Connell v. Tooele City, 572 P.2d 697 (Utah 1977), a court clerk was held liable for failing to docket the payment of a fine, a ministerial duty, even though the court itself was engaged in a governmental function. See also Cornwall v. Larsen, 571 P.2d 925 (Utah 1977); Benally, 14 Utah 2d 6, 376 P.2d 388; Jensen, 2 Utah 2d 196, 271 P.2d 838; Bowman, 1 Utah 2d 131, 262 P.2d 957; Geros v. Harries, 65 Utah 227, 236 P. 220 (1925).[13] ¶ 47 In keeping with these principles, prior to enactment of section 63-30-4 in its present form, a government employee who exercised governmental discretion in good faith was not personally liable for resulting civil wrongs. See Ross v. Schackel, 920 P.2d 1159 (Utah 1996) (prison employee exercising what Court held to be governmental discretion held not liable); Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367 (1968) (same); Hjorth v. Whittenburg, 121 Utah 324, 241 P.2d 907 (1952) (state road commissioner exercising discretionary powers held not liable for damages to property adjacent to highway); Garff v. Smith, 31 Utah 102, 86 P. 772 (1906) (official exercising what the common law deemed to be "quasi-judicial" authority held not liable). ¶ 48 Under these long-established principles, Chief Burton would be personally liable to plaintiffs for his negligent driving. Jensen, 2 Utah 2d 196, 271 P.2d 838, is squarely on point. Jensen suggests that the operation 630 of an emergency vehicle such as a fire engine does not involve the exercise of governmental discretion. On facts much like the instant case, Jensen held the driver of a city fire engine personally liable for negligently causing injuries to a passenger in a car hit by the fire engine, even though the city was immune from suit. Cornwall, 571 P.2d 925, held to the same effect with respect to a deputy sheriff's negligent driving while responding to an emergency situation. For similar cases, see also Day v. State, 980 P.2d 1171 (Utah 1999); Benally, 14 Utah 2d 6, 376 P.2d 388; Bowman, 1 Utah 2d 131, 262 P.2d 957. Compare Jensen, 2 Utah 2d 196, 271 P.2d 838, with Rollow, 66 Utah 475, 243 P. 791. This is also the general rule in a number of other jurisdictions with respect to the driving of fire engines. See, e.g., Indianapolis Traction & Terminal Co. v. Howard, 190 Ind. 97, 128 N.E. 35 (1920); Russell v. Nadeau, 139 Me. 286, 29 A.2d 916 (1943); Garrity v. Detroit Citizens' Street Ry. Co., 112 Mich. 369, 70 N.W. 1018 (1897); Frandeka v. St. Louis Public Serv. Co., 361 Mo. 245, 234 S.W.2d 540 (1950); Johnson v. Brown, 75 Nev. 437, 345 P.2d 754 (1959); Woods v. Public Serv. Co., 84 N.J.L. 171, 85 A. 1016 (1913); Siburg v. Johnson, 249 Or. 556, 439 P.2d 865 (1968); Ferraro v. Earle, 105 Vt. 243, 164 A. 886 (1933); Davis v. Cross, 152 W.Va. 540, 164 S.E.2d 899 (1968); see also Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304, 309 (1947) (highway patrolman). ¶ 49 In sum, in Utah, as elsewhere, the law provided a "remedy by due course of law" for personal injuries caused by the negligent operation of an emergency vehicle, although the standard of negligence has been modified to free such vehicles from compliance with certain traffic regulations. Under that law generally, and specifically under Jensen and Cornwall, which held drivers of emergency vehicles liable for the manner in which they drove, Chief Burton would be liable personally for the injuries he caused plaintiffs and plaintiffs would have had a remedy under the law as it existed prior to the 1982 amendment to Utah Code Ann. § 63-30-4. ¶ 50 The Governmental Immunity Act as initially enacted in 1965 did not affect the law of government employee liability in any way; indeed, it recognized and accepted it. See 1965 Utah Laws ch. 139. The Act specifically authorized governmental agencies to purchase insurance to indemnify employees for judgments against them for injuries they inflicted on the person and property of others. Section 33 of chapter 139, 1965 Laws of Utah, provided: A governmental entity may insure any or all of its employees against all or any part of his liability for injury or damage resulting from a negligent act or omission in the scope of his employment regardless of whether or not said entity is immune from suit for said act or omission, and any expenditure for such insurance is herewith declared to be for a public purpose. Thus, the Governmental Immunity Act of 1965 did not in any way affect government employees' liability for civil wrongs, but the Act did provide that government agencies could insure their employees against personal liability. Cornwall, 571 P.2d 925, described the state of the law after the Governmental Immunity Act was enacted in 1965: The Utah Governmental Immunity Act applies only to entities and does not include individuals (employees) and such was noted by the court in Sheffield v. Turner,. . . and the Act contains no language exempting employees from suit. . . . [L]egislative intent is clearly expressed in that portion of the Act which allows the entity to insure its employees against liability for their negligent acts. Cornwall, 571 P.2d at 927 (footnotes omitted). In light of the law stated above, plaintiffs would have had a remedy for their injuries prior to enactment of section 63-30-4 in its present form. C. Constitutionality of Abrogation of Remedies Against Government Employees ¶ 51 We turn now to the constitutionality of Utah Code Ann. § 63-30-4 under Article I, section 11. In 1978 and 1982, section 63-30-4 was amended to bar all actions against government employees for fault-based conduct except for fraud and malice. 631 ¶ 52 Whether the abrogation of those remedies violates Article I, section 11 depends on the application of the two standards enunciated in Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985): First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy "by due course of law" for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different. . . . Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective. Id. at 680 (citations omitted); see also Craftsman, 1999 UT 18, 974 P.2d 1194; Hirpa v. IHC Hospitals, 948 P.2d 785 (Utah 1997). 1. Is there an equal alternative remedy to the abrogated remedy against Chief Burton? ¶ 53 It stands to reason that under the first standard an abrogation of remedies is constitutional if there is "an effective and reasonable alternative remedy" that is "substantially equal in value or other benefit to the remedy abrogated." Berry, 717 P.2d at 680. To the extent that a person's damages are less than the damage limitation of $250,000 imposed by section 63-30-34, the remedy against the governmental agency, as a substitute for a remedy against government employees, is constitutional because it is in all respects a remedy of equivalent value to the remedy against the employee. However, to the extent the damages awarded by a court exceed the statutory limitation, as in this case, the substitute remedy is by definition not equal to the remedy abrogated. Thus, the specific issue we now address is whether the damage limitation is constitutional when it limits recovery in an action that is a substitute for an action against a government employee. ¶ 54 In this case, plaintiffs have an alternative to the remedy against Chief Burton in the form of an action against the District. That remedy, however, unlike the traditional remedy against the employee is subject to the damage limitation and, therefore, is not "substantially equal" to the preexisting remedy against the employee. 2. Is abrogation justified by a clear social or economic evil and is abrogation arbitrary? ¶ 55 However, the conclusion reached above that the limited remedy against the government agency is not an equal substitute for the remedy against the government employees does not necessarily mean that the abrogation is unconstitutional.[14] The second part of the Berry test holds that if there is no substitute or alternative remedy of substantially equal value, the abrogation may nevertheless be constitutional "if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary and unreasonable means for achieving the objective." Berry, 717 P.2d at 680. In Craftsman, 1999 UT 18, 974 P.2d 1194, we recently held constitutional a builder's statute of repose because the abrogation of a remedy by a statute of repose had a de minimus effect on the plaintiffs' actions against the builders and the statute of repose was justified by undue economic and other burdens. In a like vein, Hirpa, 948 P.2d 785, held constitutional the Good Samaritan Act, which immunized from personal injury actions doctors who provided professional care in emergencies to persons who were not their patients. In effect, the Court held that the abrogation of a remedy was justified by the 632 greater protection that injured persons would receive from doctors. ¶ 56 Defendants do not assert that the abrogation in this case is necessitated by some economic, social, or other evil. Defendants assert no factual or policy justification for the abrogation of remedies against government employees other than the saving of money. Indeed, Condemarin has already held that reducing the cost to government of assuming liability for certain types of liability was not a sufficient justification for requiring the most seriously injured persons to assume the whole of that cost. See Condemarin, 775 P.2d 348. ¶ 57 The Legislature has already provided the means for government agencies to protect their employees from the cost of liability. All government entities are authorized to insure their "employees against liability, in whole or in part, for injury or damage resulting from an act or omission occurring during the performance of an employee's duties . . . regardless of whether . . . that entity is immune from suit for that act or omission." Utah Code Ann. § 63-30-33(1)(a). And the insurer has no right of indemnification or contribution from either the government entity or the employee. See id. § 63-30-33(1)(c). ¶ 58 Furthermore, government employees are protected by the statutory right to have legal representation provided and by the right to indemnification from an agency if the employee is liable for an act occurring "during the performance of the employee's duties." Utah Code Ann. § 63-30-36(1). Thus, an employee is protected from financial loss as the law now stands. And the government agency itself can also be protected by insurance. In short, government agencies can spread the risk of loss in the same manner as private agencies can. ¶ 59 Defendants do not argue that there would be an undue financial burden on the government if government employees are held personally liable for torts committed on public highways. To the extent that the government experiences any financial burden from employee liability, it is only because the Legislature indemnifies employees for damages they incur in the course of their employment. But that is a burden that the Legislature voluntarily assumes; it has no legal obligation to do so. See Forseth v. Sweet, 38 Wis. 2d 676, 158 N.W.2d 370 (1968); Phillip E. Hassman, Annotation, Indemnification of Public Officer or Employee, 71 A.L.R. 3d 90 (1976). ¶ 60 Nor can the abrogation be justified on the ground that employee liability impedes or interferes with the performance of governmental responsibilities. Defendants do not so contend. Indeed, the common law barred actions against governmental officials when governmental operations would be impeded. That, indeed, is the policy underlying legislative and judicial immunity and the exception to liability for administrative and executive employees when exercising governmental discretion. See generally Bott, 922 P.2d 732. Nor do defendants contend that the abrogation of remedies is necessary to protect the public treasury from insolvency or unduly burdensome tax burdens, or that enforcement and implementation of government programs or policies would be jeopardized. Indeed, the existence of civil remedies against government employees for damage they cause by their wrongful conduct in almost all American jurisdictions strongly evidences the absence of a compelling justification for an across-the-board abrogation of remedies against government employees. ¶ 61 Furthermore, the cap operates in a capricious and insidiously discriminatory fashion. First, the cap insidiously discriminates by allowing those who are not seriously injured to recover full damages but denies full recovery to those who are most seriously injured and whose damages exceed the cap. Those who are most seriously injured must therefore bear the greatest burden in reducing government costs. The result is a vicious policy: those who most need a full remedy to deal with the devastation wreaked on their lives and families because of the severity of the injuries inflicted are denied that recovery and shoulder the entire burden of protecting the government's treasury, while those whose injuries are less life altering receive full compensation for their injuries and shoulder no burden at all. Thus, the cap 633 imposes on the few persons who are most seriously injured and impaired the cost of reducing governmental expenses. Chief Justice Bird of the California Supreme Court in addressing the constitutionality of a damage cap observed: [T]he $250,000 limit . . . is grossly underinclusive by any standard. Millions of healthcare consumers [i.e., taxpayers] stand to gain from whatever savings the limit produces. Yet, the entire burden of paying for this benefit is concentrated on a handful of badly injured victimsfewer than 15 in the year MICRA was enacted. Although the Legislature normally enjoys wide latitude in distributing the burdens of personal injuries, the singling out of such a minuscule and vulnerable group violates even the most undemanding standard of underinclusiveness. Fein v. Permanente Med. Group, 38 Cal. 3d 137, 211 Cal. Rptr. 368, 695 P.2d 665, 692 (Bird, C.J., dissenting), quoted in Condemarin, 775 P.2d at 355. ¶ 62 It was in part this kind of invidious discrimination that was the basis of the holding in Pfost v. State, 219 Mont. 206, 713 P.2d 495 (1985), which held unconstitutional a damage cap on actions against the state. A number of other courts have also held damage caps unconstitutional, albeit in statutes dealing with medical malpractice. See, e.g., Waggoner v. Gibson, 647 F. Supp. 1102, 1107 (N.D.Tex.1986); Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736, 743 (1976); Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 838 (1980) (state law capped amount insurance companies could pay to victims); Arneson v. Olson, 270 N.W.2d 125, 136 (N.D.1978); Simon v. St. Elizabeth Med. Ctr., 355 N.E.2d 903, 906-07 (Ohio Misc.1976) (dictum); Baptist Hosp. of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296, 298 (Tex.App. 1984); see also Smith v. Department of Ins., 507 So. 2d 1080 (Fla.1987); Jones v. State Bd. of Medicine, 97 Idaho 859, 555 P.2d 399, 416 (1976), cert. denied, 431 U.S. 914, 97 S. Ct. 2173, 53 L. Ed. 2d 223 (1977) (remanding for factual determination on whether medical malpractice crisis actually existed); Lucas v. United States, 757 S.W.2d 687 (Tex.1988). But see Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585, 601 (1980) (upholding limitations where there is partial alternative remedy). ¶ 63 Defendants rely on Masich v. United States Smelting, Refining & Mining Co., 113 Utah 101, 191 P.2d 612 (1948), for the proposition that the abrogation of a remedy against a government employee in this case is justifiable because the Legislature provided a limited alternative remedy against government agencies. We have held above that the alternative remedy is not a substantially equal remedy. Masich does not support an opposite position.[15] ¶ 64 The Legislature's concern for protecting the financial resources of the state, its subdivisions, and its municipalities is certainly justified. Those resources could be threatened by unexpected and unforeseeable events, and certainly the Legislature should take precautions to protect against events that might threaten those resources. Catastrophic events could have severe financial consequences for government if there were unlimited civil liability in such circumstances. The Congress of the United States recognized as much in enacting the Price Anderson Act of 1946, for example, which placed an overall cap on the total amount of damages that could be recovered as a result of a nuclear accident. See Duke Power v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978) (sustaining constitutionality of Price Anderson Act, 42 U.S.C. §§ 8, 2210). However, this is an ordinary personal injury action filed against a government employee or entity for injuries caused by the negligent operation of vehicles on public highways, and the actions are common, everyday experiences. All drivers of vehicles are held personally liable for negligence on the highways. For many decades, the high cost of medical expenses, lost wages, and property damages 634 resulting from such accidents has been mitigated by spreading those costs to the motoring public by insurance and by the doctrine of respondeat superior. Certainly, government agencies are similar to business establishments that spread the cost of legal liability incurred by their employees over a wide base. The assumption of such costs is uncomfortable for an agency that must pay, but ordinarily it is no more so than in the world of private business where business entities are required to accept liability as a cost of business for the injuries that are caused by those who act for and on behalf of the entity and in pursuit of its goals. ¶ 65 We recognize that governmental budgets may be affected by such liability, and the burden of such liability may fall more heavily on smaller governmental agencies and municipalities than on larger entities because of smaller tax bases.[16] However, the Legislature has taken highly farsighted action to allow such agencies to deal with those problems. ¶ 66 The traditional rationale for sustaining damage caps, and indeed the concept of governmental immunity as such, is the potentiality of bankrupting a government agency. The Legislature has provided, however, a reasonable means to cope with the financial burden of potentially large judgments. First, punitive damages are barred outright. See Utah Code Ann. § 63-30-22(1)(a). Second, Utah Code Ann. § 63-30-26 provides that any political subdivision may create and maintain a reserve fund for the purpose of purchasing liability insurance to protect the subdivision from money judgments. Third, section 63-30-24 provides that the payment of any claim or judgment against a political subdivision may be made by installment payments if funds during the current fiscal year are not adequate to pay the amount due. These provisions clearly make it possible for government agencies to be responsible for the injuries their employees inflict on private citizens without imperiling governmental operations. D. Response to Chief Justice Howe's and Justice Zimmerman's Opinions ¶ 67 Chief Justice Howe opines that section 63-30-34 does not violate section 11 of the Utah Declaration of Rights. He erroneously relies on Payne v. Myers, 743 P.2d 186 (Utah 1987), for the proposition that the damage cap is constitutional. Payne held generally that abrogation of a person's right to sue a state employee was constitutional because the injured person had a right to sue the state for the employee's negligence. See Payne, 743 P.2d at 190. Payne did not address at allindeed the issue was not even before the Courtwhether a cap on the remedy was constitutional as a full and fair substitute remedy for an action against a state employee. See id. at 186-90. ¶ 68 Chief Justice Howe wholly ignores the case law that requires a conclusion contrary to the one he reaches. He does not even cite Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989), which held that the damage cap in section 63-30-34 was unconstitutional as applied and that an injured person has a right to full damages, except when sovereign immunity applies. Nor does he cite Bott v. DeLand, 922 P.2d 732, 744 (Utah 1996), which held an injured person entitled to full damages and the cap unconstitutional. McCorvey v. State Department of Transportation, 868 P.2d 41 (Utah 1993), does not support Chief Justice Howe's argument either. It held that because the state had waived immunity partially, the cap was constitutional because the state could have refused to waive immunity altogether. McCorvey did not deal with the constitutionality of the cap with respect to a substitute remedy for a claim not subject to sovereign immunity at all, as in the instant case. ¶ 69 Justice Zimmerman also ignores both Bott and Condemarin, a case in which he wrote a concurring opinion strongly supporting Berry v. Beech Aircraft and our Article I, section 11 jurisprudence. He wrote: 635 But there is no reason to consider that issue in great detail today because this case is properly analyzed under the due process balancing approach that Berry indicated is applicable when considering article I, section 11 questions.1 The present case has given me a better appreciation of the wisdom of including article I, section 11's guarantee in Utah's basic charter. The constitution's drafters understood that the normal political processes would not always protect the common law rights of all citizens to obtain remedies for injuries. See Berry, 717 P.2d at 676; cf. Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1498-1502 (1982) (protection of majority from politically powerful minorities as an approach to state constitutional interpretation); Note, State Economic Substantive Due Process: A Proposed Approach, 88 Yale L.J. 1487, 1498 (1979) (perfunctory judicial review is inadequate to protect against special interest legislation). At any one time, only a small percentage of the citizenry will have recently been harmed and therefore will need to obtain a remedy from the members of any particular defendant class. The vast majority of the populace will have no interest in opposing legislative efforts to protect such a defendant class because the majority will not readily identify with those few persons unlucky enough to have been harmed. And those few persons directly affected will, in all likelihood, lack the political power to prevent the passage of legislation that, in essence, requires every member of the citizenry who is injured by members of the defendant class to bear some or all of the cost of those injuries. Admittedly, the interests of a majority of the populace are commonly overridden in the legislative process, and, indeed, such overriding may be essential to the responsible operation of a representative deliberative body. However, the very act of drafting a constitution such as ours, which does not bestow unlimited power on the legislature and which does reserve certain rights to the people, constitutes a recognition that there must be some limits on the legislature, that some interests of the people deserve special protection in the maelstrom of interest group politics that is the legislative process. Among the interests to which the Utah Constitution's drafters assigned a degree of sanctity are those mentioned in article I, section 11. 1 I cannot agree with the Chief Justice [i.e., Gordon Hall] that due process-type balancing analysis is inappropriate here. Plaintiffs have certainly raised the article I, section 11 issue in this case by arguing that the legislation infringes rights protected by that provision. While plaintiffs may have phrased some portions of this argument in terms of equal protection concepts, we are certainly not limited to so analyzing the issue. Berry teaches that it is precisely due process concepts, rather than those of equal protection, that are involved when rights protected by article I, section 11 are claimed to have been abridged. 717 P.2d at 675-81. Therefore, it is appropriate for us to use due process analytical methods when treating such claims, whatever approach the parties may have taken to the issues. Condemarin, 775 P.2d at 367-68. ¶ 70 Justice Zimmerman's current position in this matter is quite extraordinary. The fundamental issue he addresses was not raised, briefed, or argued in this Court. His opinion is a personal expression of a private opinion related to no issue properly before the Court. Indeed, in Craftsman, 1999 UT 18 at ¶ 108, 974 P.2d 1194, he argued the same point, although it was not raised, briefed, or argued. Because Justice Zimmerman's concurring opinion erroneously stated the law that has existed in Utah for over fifty years and has been concurred in by at least thirteen different justices, I responded in a lengthy concurring opinion rebutting his position point by point. See id. at ¶¶ 32-107, 974 P.2d 1194 (Stewart, J., concurring). The reader should refer to the concurring opinions in Craftsman for the full text of the arguments. See id. at ¶¶ 32-155, 974 P.2d 1174. ¶ 71 Until the last year or so, Justice Zimmerman was a foremost proponent of the due process-type test laid down in Berry, 717 P.2d 670, for construing Article I, section 11 jurisprudence. Indeed, he even went so far as to assert that statutes that abrogate remedies that are protected by Article I, section 11 should be presumed unconstitutional. See Condemarin, 775 P.2d at 368 (Zimmerman, J., concurring). No other member of this Court has ever gone that far. Yet now, he 636 asserts, as he did in Craftsman, that "the language of article I, section 11 . . . should be read as a procedural guarantee and that we should largely retreat from second-guessing the legislature on the substantive matters that [had been] within [the] reach . . . of Berry." Zimmerman op. at ¶ 90. The extraordinary attempt to rewrite the language in Article I, section 11 is fully discredited by the plain language of the provision itself, as pointed out in my opinion in Craftsman. See Craftsman, 1999 UT 18 at ¶¶ 56-63, 974 P.2d 1194 (Stewart, J., concurring). His position that Berry and its progeny have somehow constitutionalized the common law was likewise fully rebutted in that exchange. See id. at ¶¶ 32-34, 974 P.2d 1194. ¶ 72 Justice Zimmerman acknowledges that he carries a heavy burden under the doctrine of stare decisis in reversing his very own position. His assertion that he met that burden in his separate opinion in Craftsman, 1999 UT 18 at ¶¶ 108-155, 974 P.2d 1194 (Zimmerman, J., concurring in the result), is far wide of the mark. No one joined that position. My concurring opinion was joined by Associate Chief Justice Durham, and Justice Russon stated his agreement with that opinion in a footnote in his majority opinion. See id. at ¶ 15, 974 P.2d 1994. Moreover, thirteen justices of this Court have all taken the position that Article I, section 11 provides substantive rights to the citizens of Utah. Our case law to that effect extends over half a century, as I pointed out in Craftsman. Justice Zimmerman stands alone in the views he espouses. IV. PREJUDGMENT INTEREST ¶ 73 Plaintiffs argue that the trial court erred by not awarding them prejudgment interest pursuant to Utah Code Ann. § 78-27-44.[17] "A trial court's decision to grant or deny prejudgment interest presents a question of law which we review for correctness." Cornia v. Wilcox, 898 P.2d 1379, 1387 (Utah 1995) (citations omitted). ¶ 74 The trial court denied plaintiffs' request for prejudgment interest on the basis that prejudgment interest is properly classified as "damages" under section 63-30-34 and is therefore subject to that section's cap, which plaintiffs had already reached. Since section 63-30-34 is unconstitutional, the trial court was incorrect to deny plaintiffs' claims for prejudgment interest on the grounds given. The decision of the trial court denying prejudgment interest is reversed with instructions to reconsider the issue of prejudgment interest on remand. V. COSTS ¶ 75 Plaintiffs claim that the trial court erred in refusing to award them costs under Rule 54 of the Utah Rules of Civil Procedure. Rule 54(d) provides: (1) To whom awarded. Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; provided, however, where an appeal or other proceeding for review is taken, costs of the action, other than costs in connection with such appeal or other proceeding for review, shall abide the final determination of the cause. Costs against the state of Utah, its officers and agencies shall be imposed only to the extent permitted by law. 637 (2) How assessed. 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, and file with the court a like memorandum thereof duly verified stating that to affiant's knowledge the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. Utah R. Civ. P. 54(d) (emphasis added). The trial court denied plaintiffs' requests for costs on two different grounds. First, regarding the Lyons' request, the court denied costs because the Lyons did not satisfy the portion of Rule 54(d)(2) emphasized above, requiring the filing of a verified memorandum of costs within five days after the entry of judgment. Second, regarding the Walkers' request, the court denied costs because of the absence of statutory authority permitting the award of costs as required by the sentence in Rule 54(d)(1) emphasized above, conditioning the awarding of "[c]osts against the state of Utah, its officers and agencies." Id. The trial court's reasoning regarding the Lyons' request is correct, but the trial court erred when it denied the Walkers' request by applying the last sentence of Rule 54(d)(1) to the District. ¶ 76 We begin by stating the appropriate standard of review. Generally, "[t]he determination to award taxable costs is within the sound discretion of the trial court and will not be disturbed absent an abuse of the discretion." Ong Int'l (U.S.A.), Inc. v. 11th Ave. Corp., 850 P.2d 447, 460 (Utah 1993) (citations omitted). In this case, however, the reasons for the trial court's decisions to deny plaintiffs' requests for costs are legal determinations. As to the court's rationale for denying the Lyons' request, Rule 54(d)(2) commands that "[t]he party who claims his costs must within five days after the entry of judgment" file with the court a duly verified memorandum of costs. Utah R. Civ. P. 54(d)(2) (emphasis added). This mandatory language leaves no discretion to the court; therefore, we review this decision for correctness without deference to the trial court's conclusion.[18] The Walkers' request was denied on the basis of the trial court's conclusion that the District was an agency of the state and that no statute or court ruling permitted costs to be imposed against the District. We review this conclusion for correctness without deference. ¶ 77 The requirement in Rule 54(d)(2) that "the party who claims his costs must within five days after the entry of judgment" file with the court a verified memorandum of costs controls our disposition of the Lyons' request for costs. The trial court issued its judgment on July 11, 1995, and the Lyons did not file a verified memorandum of costs with the trial court until July 26. This is well beyond the five-day deadline of Rule 54(d)(2). As we stated in Walker Bank & Trust Co. v. New York Terminal Warehouse Co., failure to satisfy the requirement for filing a verified memorandum of costs is fatal to a claim to recover costs under Rule 54. See Walker Bank, 10 Utah 2d 210, 216, 350 P.2d 626, 630-31 (1960). Here, as in Walker Bank, the Lyons' failure to file the verified memorandum of costs within five days of the judgment prevents the award of costs. ¶ 78 The Lyons argue, however, that they preserved the issue of costs for appeal by objecting on July 6 to the lack of any provision for costs in the proposed judgment and the order of motions drafted by defendants for the trial court's use. This argument is without merit. Though the Lyons' objection does preserve the issue of costs for appeal, as we stated above, to be eligible to receive costs the Lyons had to satisfy the requirements of Rule 54(d)(2). They failed to do so; therefore, the trial court did not err by denying the Lyons' request for costs. ¶ 79 Whether the Walkers are entitled to recover their costs turns on the requirement of Rule 54(d)(1) that "[c]osts 638 against the state of Utah, its officers and agencies shall be imposed only to the extent permitted by law." To recover costs against "the state of Utah, its officers and agencies," the prevailing party must point to a statute or rule of court that expressly or by clear implication waives the common law rule that costs are not recoverable. For this restriction on awarding costs to be applicable here, the District must be an agency of the state. ¶ 80 Our review of enactments by the Legislature indicates that the District is not a state agency. Several statutes in the Utah Code juxtapose the state of Utah and its agencies with fire protection districts like the District. For example, in defining "public body," section 11-31-2(3) states: "Public body" means the state and any public department, public agency, or other public entity existing under the laws of the state, including, without limitation, any agency, authority, instrumentality, or institution of the state, and any county, city, town, municipal corporation, quasi-municipal corporation, state university or college, school district, special service district or other special district, improvement district, water conservancy district, metropolitan water district, drainage district, irrigation district, fire protection district, separate legal or administrative entity created under the Interlocal Cooperation Act or other joint agreement entity, redevelopment agency, and any other political subdivision, public authority, public agency, or public trust existing under the laws of the state. Utah Code Ann. § 11-32-2(7) (1999) (emphasis added); see also id. § 11-7-1(2)(d) ("Every incorporated municipality and every county may . . . contract to receive fire protection from any . . . fire district, state agency, or federal governmental agency . . . ."); id. § 11-34-1(2) (same as section 11-32-2(7)). This section defines "public body" as "any agency . . . of the state, and any . . . fire protection district," not as any agency of the state including any fire protection district. Thus, under the plain language of the statute, fire protection districts are categorized with other nonstate agency entities like counties, towns, and metropolitan water districts. If the District were an agency of the state, the separate reference to fire protection districts would be meaningless. Because the District is not an agency of the state, the trial court erred by denying the Walkers' request for costs on the basis of the requirement in Rule 54(d)(1) that "[c]osts against the state of Utah, its officers and agencies shall be imposed only to the extent permitted by law." The trial court's denial of the Walkers' request for costs is therefore reversed and remanded for a determination of what costs the Walkers should recover. ¶ 81 Associate Chief Justice DURHAM concurs in Justice STEWART's opinion. HOWE, Chief Justice: concurring in the result. ¶ 82 I concur in the remand for the purposes stated in the summary. I join in holding that section 63-30-34 is constitutional. In Payne v. Myers, 743 P.2d 186 (Utah 1987), we held that the 1978 amendment to section 63-30-4, which abrogated the right of an injured person to sue a state employee for negligence, did not violate article I, section 11 because the injured person was given the right to sue the state for the employee's negligence. Now, the plaintiffs in the instant case contend that that substitution is not an effective and reasonable alternative because the state's liability is capped as provided in section 63-30-34 at $250,000 for any one plaintiff. Plaintiffs argue this despite McCorvey v. State Department of Transportation, 868 P.2d 41 (Utah 1993), where we held that the damage cap did not violate article I, section 11, nor the due process clause or the uniform operation of laws clause in the Utah Constitution. ¶ 83 The Supreme Court of Oregon, in construing that state's open courts provision, which is almost identical to Utah's, held in Mattson v. Astoria, 39 Or. 577, 65 P. 1066 (1901), that the legislature may modify the remedy and former procedure and attach conditions precedent to the exercise of the right without violating the open courts provision. Thus the legislature should be accorded broad discretion in providing an alternative remedy. I believe that a $250,000 judgment against the state is an effective and reasonable substitution for a possibly greater judgment against a state employee. 639 I say this because experience has shown that large judgments against state employees for their negligence are often uncollectible. Typically, the employees have no insurance coverage for such a risk, have few personal unexempt assets, and are forced to seek a discharge of the judgment against them in bankruptcy. While the state currently indemnifies state employees, the legislature could repeal the statute providing for indemnification if large judgments against employees become burdensome to the state. A plaintiff who recovers a judgment against the state under our immunity act faces none of those problems of collectibility. In my opinion, the substitution of remedies is effective and reasonable. ¶ 84 Justice RUSSON concurs in Chief Justice HOWE's concurring in the result opinion. ZIMMERMAN, Justice, concurring in the result with Chief Justice HOWE and Justice RUSSON: ¶ 85 The other members of the court are equally divided on the merits of the central issue in this case. I am casting the deciding vote. I join Chief Justice Howe and Justice Russon in upholding the damage caps contained in section 63-30-34 of the Code. However, I do not join in their article I, section 11 rationale which purports to follow the two-step analysis of Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985). Before I explain my views on the merits of the constitutional challenge mounted under article I, section 11 of the Utah Constitution and Berry, I will recap the positions of the members of the court as a preface. ¶ 86 On the one side, Associate Chief Justice Durham has joined in an opinion authored by Justice Stewart that would employ the two-step analysis of Berry to strike down the $250,000 damage cap established by section 63-30-34 of the Code. Under the first prong of the Berry test, they would find that the cap does not provide a "reasonable alternative remedy" for the common law negligence special and general damage award that the plaintiffs would have been entitled to receive from a state employee absent the cap. For them, any reduction in the dollar amount available at common law appears unacceptable under Berry's first prong. Proceeding to the second prong, they would hold that there is no "clear social or economic evil to be eliminated" and that the abrogation of the common law damage remedy is an "arbitrary or unreasonable means for achieving" the legislature's declared objective. See Berry, 717 P.2d at 680; Stewart op. at ¶¶ 55-67. ¶ 87 On the other side, Justice Russon has joined in an opinion authored by Chief Justice Howe that would uphold the damage cap as satisfying the first prong of Berry. They reason that although the governmental liability is capped at $250,000, the plaintiffs receive something that they would not have had under the preexisting common lawa certain ability to collect any award up to the cap. Thus, by substituting a governmental entity for a governmental employee as the financially responsible party, the legislature has provided the plaintiffs with a "reasonable alternative remedy," albeit a potentially far smaller award of damages. ¶ 88 I do not join in either opinion on the article I, section 11 point. I would uphold the caps because I would overrule Berry and reject its two-step analytical model. I acknowledge that as one calling for the overruling of a precedent of this court, I carry a heavy burden under the doctrine of stare decisis. See State v. Menzies, 889 P.2d 393, 398-99 (Utah 1994). However, I believe I have met that burden, as explained in my separate opinion in Craftsman Builder's Supply, Inc. v. Butler Manufacturing, Co., 1999 UT 18, ¶¶ 108-155, 974 P.2d 1194 (Zimmerman, J., concurring in the result). ¶ 89 I will only summarize the main points from that lengthy opinion here: I concluded that Berry has proven unworkable and should be abandoned. The two step test it advances is without solid definition. In an effort to make sense of it, we have repeatedly shifted course over the fifteen years since Berry was decided. This had led us to effectively constitutionalize the common law, and, most recently, even legislative enactments, to put them beyond the reach of attempts by the legislature to reduce exposure to tort liability. See id. at ¶ 123, 974 P.2d 1194; 640 Day v. State ex rel. Dep't of Public Safety, 1999 UT 46, ¶ 54, 980 P.2d 1171 (Zimmerman, J., dissenting). As a result, Berry has distorted our constitutional relationship to the legislature and placed us in the position of having to review legislative policy judgments on a de novo basis and with a skepticism we employ nowhere else. See Craftsman, 1999 UT 18, ¶ 138, 974 P.2d 1194. These failures lead me to call for an abandonment of Berry's interpretation of article I, section 11. ¶ 90 In my Craftsman opinion, I offered my alternative interpretation of the language of article I, section 11, as I felt duty bound to do, and to which I adhere today. I concluded that article I, section 11 should be read as a procedural guarantee and that we should largely retreat from second-guessing the legislature on the substantive matters that we have brought within our reach through the use of Berry. I suggested that there were other provisions within the Utah Constitution that might act to constrain the legislature when it acts to severely limit rights to recover for damages, but I did not attempt to elaborate on how those might operate. See id. at ¶ 152, 974 P.2d 1194. As a final note, I observed that a majority of the court seemed to have been drifting away from the Berry test and the results that it mandates. See id. at 1224 n. 2. In fact, I found the result reached in Craftsman itself to be inconsistent with Berry. See id.[1] ¶ 91 No member of this court joined any portion of my opinion in Craftsman. Yet again today, the result reached departs from what Berry requires. Chief Justice Howe's opinion, although seeming to apply the Berry test, is inconsistent with any meaningful application of Berry, as, for example, a simple comparison of his reasoning with that set forth in Berry or Sun Valley Water Beds, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), or in Horton v. Goldminer's Daughter, 785 P.2d 1087 (Utah 1989), or in Justice Stewart's opinion today, will demonstrate. Today's decision, taken together with the result in Craftsman, plainly demonstrates that a majority of the court is no longer willing to use Berry as a standard by which to judge legislative limitations on civil damage remedies. Yet because of the apparent unwillingness of a majority to openly depart from Berry, no consensus has begun to emerge as to what, if anything, should take its place. In my Craftsman opinion, I suggested a purely procedural reading of article I, section 11 is appropriate and a retreat from intrusive oversight of the legislature, backstopped by possible reliance on other provisions of the constitution to check egregious abuses of legislative power. See Craftsman, 1999 UT 18 at ¶¶ 152-153, 974 P.2d 1194. But that approach seems to lack support among my colleagues, and they have proposed no other alternative. That being 641 the case, it is time for us to at least go so far as to publicly acknowledge that one fifteen-year odyssey to find a way to prevent the legislature from riding roughshod over the rights of those civilly wronged, an odyssey that began with our response in Berry to the legislature's sweeping attempt at limiting tort actions against manufacturers in the Utah Product Liability Act, has gone awry. Berry cannot carry the freight we attempted to place on it, and we have not even looked seriously at another vehicle. It may be that a majority of the court will want to continue along the path it started in Berry, but in a different vehicle and with a less ambitious objective. Or it may decide to abandon the venture altogether. But in either event, attention needs to be turned to developing a different analytical model for addressing these issues. ¶ 92 I call upon the bar and the members of this court to drop the fixation on Berry and to creatively address the problem of how, in a post-Berry world, this court can remain within its appropriate sphere, while giving meaning to the constitutional provisions that speak of the importance of remedies for civil wrongs. What understandable standards can be fashioned that are practically capable of predictable application? There are plenty of ideas in various opinions written by members of this court over the years addressing, inter alia, article I, section 7 (due process clause); article I, section 24 (uniform operation of laws); article I, section 22 (takings clause); and article XVI, section 5 (wrongful death actions), that could be useful. The various opinions in Condemarin, for example, contain a number of veins of thought that could be profitably mined. But wherever the ideas are found, the fact remains that this court needs creative and capable advocates to advance new approaches and to help the court find its way. 2000 UT 55 On Petition for Rehearing DURHAM, Justice. ¶ 1 Both plaintiffs and defendants have asked this court to reconsider various portions of its opinion in this case, issued on January 19, 2000. A majority of the court is unwilling to rehear any of the issues raised by plaintiffs' petition. However, defendants have identified an inconsistency between the "Summary" portion of our earlier opinion and the actual holding of the majority regarding the constitutionality of section 63-30-10(15) of the Utah Code and its implications for the trial court's decision on prejudgment interest. ¶ 2 The court's Summary noted, in sub-section (iii) of paragraph one, that all members of the court agreed with Justice Stewart's holding "that the trial court erred in denying plaintiffs prejudgment interest." Lyon v. Burton, 2000 UT 19, ¶ 1, 387 Utah Adv. Rep. 27 [hereinafter "Lyon I"]. That portion of Justice Stewart's opinion, however, was predicated on his view that the damages cap was unconstitutional and that the trial court therefore erred in holding that prejudgment interest was subject to the cap. Because a majority of the court declared the cap constitutional, it becomes necessary to consider whether prejudgment interest is property classified as "damages" under section 63-30-34 and therefore subject to the $250,000 cap. ¶ 3 Although I shared Justice Stewart's views on the constitutional question, I agree with defendants that, given the majority holding, prejudgment interest must, in fact, be considered part of the "judgment" the statute intended to limit. I therefore write for a reconstituted majority of the court[1] on the limited question of how to treat prejudgment interest in light of the statutory cap. We hold that section 78-27-44 clearly requires prejudgment interest to be "include[d]. . . in th[e] judgment," Utah Code Ann. § 78-27-44(2) (1996), and that section 63-30-34 therefore subjects it to the $250,000 limit. We agree with and adopt the reasoning of the court of appeals in Hart v. Salt Lake County Commission, 945 P.2d 125, 139-40 (Utah Ct.App.1997) on the subject. 642 ¶ 4 We therefore vacate subsection (iii) of paragraph one in Lyon I, and affirm the ruling of the trial court denying plaintiffs prejudgment interest. ¶ 5 Justices DURRANT and WILKINS do not participate herein.[2] ¶ 6 Chief Justice HOWE and Associate Chief Justice RUSSON concur in Justice DURHAM's opinion. NOTES [1] Chief Burton testified at trial that the Explorer had been disguised for two reasons. First, Chief Burton was authorized to use the vehicle for both personal use and to pick up supplies needed by the District, and the District was concerned that citizens would complain if they observed the vehicle parked at stores or while being used by Chief Burton for personal uses. Second, the District wanted to be able to use the vehicle for stakeouts during arson investigations. [2] All citations to Utah Code Annotated refer to the 1993 edition unless otherwise indicated. [3] For constitutional purposes, the scope of governmental immunity insofar as it may be subject to various provisions in the Declaration of Rights is a judicial, not a legislative, question. See DeBry v. Noble, 889 P.2d 428, 440 (Utah 1995). [4] See, e.g., Nelson v. Salt Lake City, 919 P.2d 568, 574-76 (Utah 1996) (interpreting discretionary function exception found in subsection 63-30-10(1) and natural condition exception found in subsection 63-30-10(11)); Tiede v. State, 915 P.2d 500, 502-03 (Utah 1996) (interpreting assault and battery exception found in subsection 63-30-10(2)); Nixon v. Salt Lake City Corp., 898 P.2d 265, 270-71 (Utah 1995) (interpreting inspection exception found in subsection 63-30-10(4)). [5] The conclusion that subsection (15) governs this case is also mandated by our duty to avoid interpreting a statute in a manner that renders portions of the statute, or related statutes, meaningless. See Schurtz, 814 P.2d at 1112; Olympia Sales Co. v. Long, 604 P.2d 919,921 (Utah 1979). If subsection (18)(b) applied here, the reference to responding to fire alarms in section 41-6-14 would not have any meaning in the context of subsection (15). Every time employees of a governmental entity drove to a fire in response to a fire alarm, subsection (18)(b) would be the governing exception, and there would be no need to look to the more specific exception for emergency vehicle operation found in subsection (15). This would render meaningless the reference to responding to fire alarms in section 41-6-14. [6] Section 63-30-34 states: (1) (a) Except as provided in Subsection (2), if a judgment for damages for personal injury against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $250,000 for one person in any one occurrence, or $500,000 for two or more persons in any one occurrence, the court shall reduce the judgment to that amount. (b) A court may not award judgment of more than $250,000 for injury or death to one person regardless of whether or not the function giving rise to the injury is characterized as governmental. (c) Except as provided in Subsection (2), if a judgment for property damage against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $100,000 in any one occurrence, the court shall reduce the judgment to that amount, regardless of whether or not the function giving rise to the damage is characterized as governmental. (2) The damage limits established in this section do not apply to damages awarded as compensation when a governmental entity has taken or damaged private property for public use without just compensation. [7] Section 63-30-4(4) states: An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice. [8] The 1965 Act abolished the prior distinction made by the case law between state immunity and municipal immunity, a development that was started by cases decided by this Court prior to enactment of the Act. In addition, the Act provided for governmental liability for the negligent conduct of governmental employees, whether state, county, or municipal, with some exceptions. [9] From the earliest days of state constitutions even before the adoption of the United States Constitutioninherent tension was observed between the doctrine of sovereign immunity and state constitutional rights of persons to civil law remedies for injuries to their persons and properties. For example, the Pennsylvania constitution provided an open courts remedies provision that also referred to sovereign immunity. See Craftsman, 1999 UT 18 at ¶ 46, 974 P.2d 1194 (Stewart, J., concurring). [10] Almost all, if not all, governmental functions can be performed by nongovernmental entities. The more an activity is revenue producing and especially profit making, the more likely this factor weighs in favor of its being nongovernmental. [11] We recognize that the Legislature in a 1983 amendment to the Governmental Immunity Act labeled all governmental activities as essential, core activities entitled to immunity unless the Legislature waives immunity. But governmental immunity is subject to the Constitution and whatever limitations it imposes on such immunity. See DeBry, 889 P.2d 428; Condemarin, 775 P.2d 348. It follows that the scope of the constitutional limitations is a judicial question under the doctrine of separation of powers. See DeBry, 889 P.2d at 440. [12] This immunity is characterized as "qualified," not absolute, because actions taken in bad faith or with malice are not immune. [13] In the instant case, the Legislature in effect specified the standard of legal care required by the operators of emergency vehicles. This standard is necessarily somewhat different from the standard of reasonable care that is required of all persons generally. This modification of the standard of care for emergency vehicles raises no substantial constitutional issues. [14] Sun Valley Water Beds, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), held that a claim for the same or similar damages against a different defendant was not an "alternative remedy" for Article I, section 11 purposes. That rule does not control here because the liability of an agency is predicated on the liability of the employee. If the relationship is not one of respondeat superior, it is certainly similar. [15] The District argues that the Legislature expanded governmental liability as a quid pro quo for eliminating employee liability for recklessness and negligence. This argument is historically incorrect. Defendants' attempt to fit this case into the mold of Masich is errant. [16] Although the purpose of sovereign immunity has been said to protect the public treasury from depletion, it is ironic that at common law the states enjoyed an absolute immunity, whereas actions against municipalities could be maintained in many instances, irrespective of the fact that municipalities' treasuries were considerably smaller than that of the state. See DeBry, 889 P.2d 428. [17] Section 78-27-44 states: (1) In all actions brought to recover damages for personal injuries sustained by any person, resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or willful intent of that other person, corporation, association, or partnership, and whether that injury shall have resulted fatally or otherwise, the plaintiff in the complaint may claim interest on the special damages actually incurred from the date of the occurrence of the act giving rise to the cause of action. (2) It is the duty of the court, in entering judgment for plaintiff in that action, to add to the amount of special damages actually incurred that are assessed by the verdict of the jury, or found by the court, interest on that amount calculated at the legal rate, as defined in Section 15-1-1, from the date of the occurrence of the act giving rise to the cause of action to the date of entering the judgment, and to include it in that judgment. (3) As used in this section, "special damages actually incurred" does not include damages for future medical expenses, loss of future wages, or loss of future earning capacity. Utah Code Ann. § 78-27-44 (1996). [18] By concluding that the trial court's decision regarding the five-day filing requirement is a legal determination, which we review for correctness, this author expressly disavows the conclusion in Watson v. Watson, 837 P.2d 1, 7 (Utah Ct.App.1992), that this decision is reviewed under an abuse of discretion standard. [1] In his two-judge opinion, Justice Stewart spends considerable time attacking my failure to adhere to Berry. This appears to be a continuation of the diatribe he launched in response to my separate opinion in Craftsman. See Craftsman, 1999 UT 18 at ¶ 108, 974 P.2d 1194 (Zimmerman, J., concurring), ¶ (Stewart, J., concurring). Given the fulsomeness of our opinions in Craftsman, I am not sure what his effort today is intended to accomplish, other than to vent his frustration with the obvious erosion of Berry. See id. at ¶ 108, 974 P.2d 1194. I make only two points in response. First, Justice Stewart attempts to portray me as a one-time strong supporter of his Berry analytical model by selectively quoting certain portions of my opinion in Condemarin. But the truth is that my Condemarin opinion did not rely on his two-step Berry analytical model. See Condemarin v. University Hosp., 775 P.2d 348, 366-69 (Utah 1989) (Zimmerman, J., concurring). I proposed a substantive due process approach, a position that Justice Durham also took and which Justice Stewart vigorously criticized in his own Condemarin opinion. See id., 775 P.2d at 369 (Stewart J., writing separately). I find it passingly strange that today Justice Stewart finds comfort for his Berry analytical model in my Condemarin opinion. But I suppose that for one piloting a sinking Berry ship, any port will do in a storm. Second, I agree with Justice Stewart that the opinions in Condemarin are instructive, but I draw a different lesson from them than does he. Considered as a whole, I think those opinions show that as long as ten years ago, some members of this court were not fully comfortable with the rather rigid Berry analytical model Justice Stewart has championed and continued to write into the law with such persistence over the past fifteen years and were searching for other more useable models. This debate between Justice Stewart and me is at an end. I trust that in the future, new solutions will be found to the real and knotty problem with which we have struggled for so long and with such vigor. [1] Justice Stewart retired and Justice Zimmerman resigned from the court shortly after the opinion in the case was handed down, leaving only myself, Chief Justice Howe, and Associate Chief Justice Russon with authority to consider the petition for rehearing. [2] Because we decided not to rehear the case, but only to modify part of the court's earlier opinion, no further action is required.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2984779/	Motion Granted; Opinion issued January 14, 2014, Withdrawn; Appeals Reinstated; Order filed February 11, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-13-00400-CR NO. 14-13-00401-CR ____________ JOHN DARIAN THOMAS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause Nos. 1317477 & 1373625 ORDER Appellant’s court-appointed counsel filed a brief in which he concludes these appeals are wholly frivolous and without merit. Appellant has made known to this Court his desire to review the records and file a pro se brief. See Anders v. California, 386 U.S. 738 (1967); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We GRANT appellant’s request, ORDER our opinion issued January 14, 2014, WITHDRAWN, our judgment of that date VACATED, and the appeals REINSTATED. Accordingly, we hereby direct the Judge of the 228th District Court to afford appellant an opportunity to view the trial record in accordance with local procedure; that the clerk of that court furnish the record to appellant on or before February 28, 2014; that the clerk of that court certify to this court the date on which delivery of the record to appellant is made; and that appellant file his pro se brief with this court within thirty days of that date. PER CURIAM 2	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1799516/	977 S.W.2d 713 (1998) Ex parte Robert D. TUCKER. No. 2-97-738-CR. Court of Appeals of Texas, Fort Worth. June 25, 1998. Discretionary Review Granted November 11, 1998. Michael Deegan, Fort Worth, for Appellant. Tim Curry, Criminal District Attorney, Charles M. Mallin, Tanya S. Dahoney, Jay Lapham, Leticia Martinez, Assistant District Attorneys, Fort Worth, for Appellee. Before DAY, LIVINGSTON, and BRIGHAM, JJ. OPINION DAY, Justice. This is an appeal following the trial court's denial of Appellant Robert Tucker's request for habeas relief pending his trial on two indictments for sexual abuse of a child. Tucker's two $20,000 bonds were revoked after he violated a condition of his release, and he was being held without bond when he filed his application for writ of habeas corpus. In his first point, Tucker contends that the trial court imposed illegal conditions on his bonds because those conditions were not expressly authorized by statute. In his second point, Tucker complains that the trial court abused its discretion in resetting his bonds in an excessive amount ($500,000 each) at the conclusion of the habeas hearing. Although Tucker's brief also included a third point, his appellate counsel waived that issue during oral argument.[1] Because the issue of excessive bail was not properly raised and because Tucker waived his third point, the sole issue that we must decide is whether a trial court has inherent authority to impose conditions on a defendant's 714 pre-trial bond that are not expressly authorized by statute. We conclude that it does not. BACKGROUND On September 17, 1996, a grand jury returned two indictments against Tucker. Both indictments charged him with aggravated sexual assault of a child and indecency with a child; the first indictment also alleged sexual performance by a child. Tucker's bonds were set at $50,000 for each indictment. At Tucker's request, the bonds were reduced to $20,000 each, subject to the following conditions: (1) no contact with the alleged victim, (2) no unsupervised contact with minors under age eighteen, and (3) no residing in a home with minors. On December 12, 1997, the State filed a motion to have Tucker's pre-trial bonds held insufficient. At a December 17 hearing on the motion, the State presented evidence that Tucker had violated the second condition of his release by having unsupervised contact with several minor boys who lived in his neighborhood. The magistrate granted the State's motion to hold the bond insufficient and ordered Tucker to be held without bond pending trial. The trial court signed orders adopting the magistrate's acts on December 17, 1997. Tucker subsequently filed an application for writ of habeas corpus, alleging that the pre-trial condition on his bond prohibiting unsupervised contact with children under age eighteen was unlawful and that he was being illegally restrained without bond. The court granted the writ and held an evidentiary hearing on December 23, 1997. At the hearing, Tucker's counsel argued that because the code of criminal procedure did not expressly authorize the trial court to set the condition that Tucker violated, the condition was illegal and should not have been the basis for revocation of his client's bond. As relief, Tucker's counsel requested that the trial court either set reasonable bond amounts or reinstate the $20,000 bonds, subject to conditions specifically authorized by law. At the close of the hearing, the trial court found that the bond condition prohibiting unsupervised contact with children under eighteen years of age was reasonably related to protecting the interests of the community and to increasing the likelihood that Tucker would appear in court. The court denied Tucker the relief he sought and set bond in each case at $500,000, subject to the three conditions previously imposed. The court also added conditions of electronic monitoring and home confinement. TEX.CODE CRIM. PROC. ANN. art. 17.44(a) (Vernon Supp.1998). Tucker raises three points in his appellate brief. First, he contends that the conditions imposed by the trial court that prohibit him from having unsupervised contact with a minor (other than the alleged victim) or living with a minor are illegal. Second, he alleges that the $500,000 bonds are excessive and an abuse of the trial court's discretion. Last, he argues that the trial court erred in holding his bond insufficient at the December 17 hearing because the trial court had no statutory authority to impose the condition that Tucker violated. Regarding the last point, Tucker's appellate counsel stated at oral argument that Tucker was not challenging the trial court's authority to set an agreed condition and noted that he was instead challenging the trial court's authority to set a pre-trial bond condition not explicitly authorized by statute where no agreement existed. In addition, Tucker's counsel stated that Tucker was only appealing the trial court's actions following the denial of his request for habeas relief. Accordingly, we find that Tucker waived his third point.[2] We turn next to Tucker's second point, in which he contends that the $1 million bond amount set at the habeas hearing was excessive and thus an abuse of the trial court's discretion. Although the State contends that Tucker's point should be overruled because he failed to carry his burden of proof 715 to demonstrate that the bonds set were excessive, see Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. [Panel Op.] 1981), we do not reach the merits of this point. An order denying habeas relief on the merits is appealable only with regard to those matters properly raised by the pre-trial habeas corpus petition and addressed by the trial court. See 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, § 47.40 (1995). In this case, Tucker was being held without bond at the time of the habeas hearing. He did not raise the issue of excessive bond in his application for habeas relief because the amount of bond was not set until after his request for habeas relief was denied. As a result, this matter was not properly addressed by the trial court and may not now be brought as a direct appeal. See Ex parte Gray, 564 S.W.2d 713, 714 (Tex.Crim. App. [Panel Op.] 1978) (proper method to challenge excessiveness of bail prior to trial is by application for writ of habeas corpus). Accordingly, we dismiss Tucker's second point for lack of jurisdiction. Having disposed of his second and third points, the only remaining issue is whether the trial court, after Tucker's request for habeas relief was denied, lacked authority to impose pre-trial bond conditions that were not expressly authorized by statute. We now turn to that point. PRE-TRIAL BOND CONDITIONS Before addressing the merits of Tucker's final point, we must determine, as we did with Tucker's complaint on the excessiveness of bond, whether the point on appeal was properly raised by Tucker and addressed by the habeas court. If not, we are without jurisdiction on this point as well. Because Tucker only challenges the conditions imposed by the trial court after it denied his relief, it could be argued that those new conditions, like the issue of excessive bond, were not challenged by Tucker in his petition and addressed by the habeas court. However, this is a hyper-technical distinction and one which we decline to draw. It is clear that the issue raised by Tucker on appeal the validity of the conditions imposed on bondwas also the basis of his request for habeas relief. More specifically, Tucker argued during his habeas hearing that the conditions of bail were illegally imposed. The trial court specifically addressed Tucker's contention, holding that article 17.41 of the code of criminal procedure did not provide an exhaustive list of bond conditions for cases involving child victims and that the bond condition prohibiting unsupervised contact with minor children did not violate the constitution or laws of the United States or Texas. Thus, in both his application for relief and his argument before the habeas court, Tucker asserted that the trial court lacked authority to impose conditions on his bond that were not authorized by statute. Because the legality of the conditions that Tucker challenged in his habeas petition are the same conditions that he now challenges on appeal, we find that the issue presented in his first point was properly raised and addressed by the trial court, and we have jurisdiction to address this point on its merits. A. Article 17.41 Chapter 17 of the Texas Code of Criminal Procedure governs the procedure for setting pre-trial bond for a criminal defendant, including conditions on that bond. TEX.CODE CRIM. PROC. ANN. arts. 17.01-.46 (Vernon 1977 and Supp.1998). Specifically, article 17.41 provides that: (a) This article applies to a defendant charged with an offense under any of the following provisions of the Penal Code, if committed against a child 12 years of age or younger: (1) Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses); (2) Section 25.02 (Prohibited Sexual Conduct); or (3) Section 43.25 (Sexual Performance by a Child). (b) A magistrate may require as a condition of bond for a defendant charged with an offense described by Subsection (a) of this article that the defendant not directly communicate with the alleged victim of the offense or go near a residence, school, or other location, as specifically described in the bond, frequented by the alleged victim. 716 Id. 17.41. Because article 17.41 authorizes a specific condition that may be imposed on a criminal defendant's pre-trial bond, Tucker contends that a trial court does not have inherent authority to impose a condition not expressly authorized. Moreover, because Chapter 17 does not include statutory provisions that expressly authorize the trial court to bar a defendant accused of sexually assaulting a child from living with or having unsupervised contact with a minor as a condition of bond, Tucker concludes that the second and third conditions imposed by the trial court following the denial of his habeas relief are illegal. The State, on the other hand, contends that article I, section 11 of the Texas Constitution vests trial courts with inherent power to impose reasonable pre-trial bond conditions. TEX. CONST. art. I, § 11. This section provides that "All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law." Id. The State also relies on article 17.15 of the code of criminal procedure, which sets forth the rules for fixing bail for criminal defendants: The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules: 1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. 2. The power to require bail is not to be so used as to make it an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered. 4. The ability to make bail is to be regarded, and proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be considered. TEX.CODE CRIM. PROC. ANN. art. 17.15 (Vernon Supp.1998). The State argues that the conditions set by a trial court are intertwined with the court's decision to set bond at a particular amount and that this "balancing" of the dollar amount and the bond conditions fulfills the goal of the Legislature to protect the safety of the victim and the community. See id. As a result, the State concludes that article 17.15 is an implicit grant of authority to the trial court to set reasonable conditions on bond. B. Analysis This issue is one of first impression.[3] The disposition of this controversy depends on whether the Texas Legislature intended the pertinent provisions in Chapter 17 of the Texas Code of Criminal Procedure to constitute an exclusive list of the conditions that may be imposed on a criminal defendant's pre-trial bond. Legislative intent is determined from reviewing a statute's language and "the context of the entire law in which it is written." Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Crim.App.1992). In construing a legislative enactment, we may not add or subtract from the statutory language. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991). In addition, we must presume that the entire statute is intended to be effective. See TEX. GOV'T CODE ANN. § 311.021(2) (Vernon 1988); Morris v. State, 928 S.W.2d 282, 285 (Tex.App.Fort Worth 1996, no pet.). We will not presume that the Legislature did a useless or vain thing by 717 enacting language that was mere surplusage or that was not intended to be effective. See Childress v. State, 784 S.W.2d 361, 364 (Tex. Crim.App.1990); Morris, 928 S.W.2d at 285. With these principles in mind, we now consider the Legislature's actions and the relevant provisions in Chapter 17 of the Texas Code of Criminal Procedure. In 1985, the Texas Legislature added article 17.41 to the code of criminal procedure. TEX.CODE CRIM. PROC. ANN. art. 17.41(a), (b) (Vernon Supp.1998). The Legislature has since added several other provisions that explicitly authorize the trial court to impose certain bond conditions. See, e.g., id. art. 17.44 (trial court may require defendant to submit to drug testing and home confinement with electronic monitoring as a condition of bond); id. art. 17.45 (trial court may require that a person charged with prostitution receive AIDS or HIV information as a condition of his or her bond); id. art. 17.46 (trial court may prohibit person charged with stalking from communicating with or going near alleged victim as condition of defendant's release). In Dallas v. State, the First Court of Appeals recently decided a similar issue. 945 S.W.2d 328 (Tex.App.Houston [1st Dist.] 1997, pet. granted). In Dallas, the defendant argued that the trial court lacked authority to impose conditions on his misdemeanor appeal bond that were not expressly authorized by statute. See id. at 329. In reaching its decision in favor of the appellant, the court noted that a basic rule of statutory construction is that the inclusion of one provision is the express exclusion of similar provisions. See id. Because section 44.04 of the code of criminal procedure (Bond Pending Appeal) expressly provided that in felony appeals, the trial court had discretion to set "reasonable conditions" on a defendant's bond, but included no such provision for misdemeanor appeals, the appellate court concluded that the Texas Legislature must have intended to give more control to trial courts in setting felony appeal bonds than in setting misdemeanor appeal bonds. See id. at 329-30. The court thus held that trial courts do not have inherent authority to set conditions on bonds pending the appeal of a misdemeanor conviction in the absence of an express statutory provision. See id. Although not directly on point, we find the logic of Dallas persuasive in the instant case. The language of article 17.41 contains an explicit grant of power to the trial court to impose a condition on a criminal defendant's pre-trial bond. If, as the State contends, the trial court has inherent authority to impose conditions not provided for by statute, then there was no need for the Legislature to enact article 17.41 (or the other statutes authorizing specific pre-trial bond conditions). Indeed, the State's argument reduces the language of article 17.41 to mere surplusage and would require us to find that the Legislature acted in vain. This we will not do. See Morris, 928 S.W.2d at 285. As a result, we find that the Legislature's express enumeration of the specific bond conditions included in Chapter 17 are an exclusive grant of authority to the trial court to condition a defendant's pre-trial release.[4] Accordingly, we hold that the trial court does not have inherent authority to impose conditions on a defendant's pre-trial bond that are not authorized by statute and further, that article 17.15 does not implicitly authorize other conditions not expressly stated. The trial court thus erred in setting conditions on Tucker's bond at the conclusion of the habeas hearing that restricted him from having unsupervised contact or living with children under age 18. CONCLUSION For the reasons set forth above, we sustain Tucker's first point and modify the trial court's order to remove the conditions prohibiting contact with minor children or residing with children under age eighteen other *718 than the alleged victim. See TEX.R.APP.P. 43.2(b). We do not disturb the conditions prohibiting contact with the alleged victim or imposing home confinement and electronic monitoring, which are expressly provided by statute, see TEX.CODE CRIM. PROC. ANN. arts. 17.41, 17.44 (Vernon Supp.1998), nor do we alter the bond amounts. The trial court's order denying Tucker's request for habeas relief is affirmed as modified. NOTES [1] Tucker argued that his original bonds never should have been revoked because the trial court had no statutory authority to impose the condition that he violated, which was the basis of the revocation. [2] Because Tucker does not argue that the trial court may not impose pre-trial bond conditions pursuant to an agreement with the defendant, we withhold consideration of that issue for another day and confine our holding to the facts before us. [3] We are aware of Justice Teague's comment in Ex parte King, in which he noted that, "There is no provision in our law permitting the trial court to impose pre-trial conditions on bail of an accused person as there is with bail on appeal." 613 S.W.2d 503, 504 n. 1 (Tex.Crim.App.1981). Although this would seem to settle the issue at hand, Justice Teague's comment was not germane to the disposition of that case. Because we are not bound by dicta, see Ex parte Alexander, 861 S.W.2d 921, 922 (Tex.Crim.App.1993); Cooper v. State, 917 S.W.2d 474, 476 (Tex.App.Fort Worth 1996, pet. filed), and additionally because the King case was decided before the Legislature enacted the pertinent provisions of Chapter 17, we respectfully find that Justice Teague's remark has no bearing on our decision in this case. [4] This conclusion is buttressed by the discretionary language of article 17. 41 ("[a] magistrate may require ....") and the other pertinent provisions in Chapter 17 of the code. If the language of these statutory provisions was mandatory where a defendant was charged with a particular offense, this would not impinge on any inherent discretionary authority of the trial court to impose other conditions in all other charged offenses. However, in light of the discretionary language of these provisions, we are unable to reconcile the State's position with the clear intent of the Legislature.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2350571/	115 N.H. 652 (1975) JOHN H. WALKER v. CHARLES DIPRIZIO & SONS, INC. & a. No. 7136. Supreme Court of New Hampshire. November 28, 1975. Shaines, Madrigan & McEachern and Sanford Roberts (Mr. Roberts orally) for the plaintiff. Wadleigh, Starr, Peters, Dunn & Kohls (Mr. Theodore Wadleigh orally) for the defendants. GRIFFITH, J. Plaintiff seeks workmen's compensation benefits from the defendant Charles DiPrizio & Sons, Inc. The commissioner of labor, after hearing, found that he had no jurisdiction in the matter and plaintiff appealed to the superior court. The Trial Court, Dunfey, J., found there was jurisdiction but dismissed the appeal after finding there was no employer-employee relationship between the defendant and the plaintiff. Plaintiff's exception to the decree of dismissal was reserved and transferred by the trial court. 653 In the late summer of 1972, Charles DiPrizio & Sons, Inc., entered into a written contract with Ivan Washburn, also named as a defendant, for the chopping, yarding and hauling of logs from the DiPrizio lot in Berwick, Maine, to the DiPrizio lumber mill in Union, New Hampshire. Washburn was primarily in the business of hauling timber and had done business with DiPrizio in similar lumbering operations for several years. The agreement provided for payment to Washburn at the rate of $30 per thousand feet for logs delivered to the lumber mill in Union. The complete responsibility for the cutting, hauling and yarding of the logs lay with Washburn to be accomplished as he should determine. Washburn entered into an oral agreement with the plaintiff to pay the plaintiff $18 per thousand feet to cut the timber on the DiPrizio lot and pile the logs at roadside for Washburn to pick up. On January 6, 1973, the plaintiff sustained severe injuries from a falling tree while working on the Berwick lot. The trial court found that the plaintiff owned all the equipment necessary to perform his agreement with Washburn and that two weeks before the accident he had purchased another skidder for fifteen thousand dollars. The plaintiff for a number of years had been regularly engaged in contract cutting operations for parties other than Washburn and Washburn did trucking for other parties besides DiPrizio. Both Washburn and the plaintiff considered themselves independent contractors and filed income tax returns as such. Washburn had no employees but the plaintiff hired and paid for employees, usually his sons, to assist him in cutting jobs. Both Washburn and the plaintiff understood they were to provide workmen's compensation insurance for their employees and while Washburn had no employees the plaintiff had been planning to see about insurance prior to the accident. Washburn had paid the plaintiff some ten thousand dollars for lumber cut before the accident, averaging about six hundred dollars a week. The trial court ruled "considering the totality of the circumstances, coupled with the relationship of the parties, (plaintiff) was not an employee of either the defendant DiPrizio or the defendant Washburn; nor was the defendant Washburn an employee of DiPrizio, but rather, he as well was a self-employed independent contractor." The plaintiff submitted requests for findings of fact and rulings of law including requests that the court find the defendant Washburn or DiPrizio had the right to control the manner in which the plaintiff performed his contract and that the defendants had the 654 right to fire the plaintiff. The trial court neither granted nor denied these requests but noted that they were covered in the other findings of the court. The blanket disposal of multiple requests in this fashion by a trial court is occasionally justified when such requests are not relevant to the ultimate result. However, the failure to rule specifically on requests for findings of fact fundamental to the verdict creates unfortunate problems on appeal. Plaintiff argues that the evidence required the court to find that either the defendant DiPrizio or Washburn had the right to control the manner in which the plaintiff performed his contract and that defendants had the right to fire the plaintiff. The plaintiff does not dispute the findings of fact made by the court and a review of the record indicates that they were supported by the evidence. There was no direct evidence of any right to control the manner in which the plaintiff performed his contract and the findings of fact by the court would not support a conclusion that the plaintiff was subject to right to control on the part of either defendant. The findings that resulted in the conclusion that the plaintiff and the defendants were both independent contractors would not support a conclusion that either defendant could terminate his contract except in accordance with the terms of the contract. Porter v. Barton, 98 N.H. 104, 95 A.2d 118 (1953). In Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243, 265 A.2d 15 (1970), we overruled McCarthy v. Souther, 83 N.H. 29, 137 A. 445 (1927), doing away with the requirement that in order for an employer-employee relationship to exist, it was necessary for the employer to have the right to control the manner and means of the performance of the work. We noted that determining the existence of an employer-employee relationship required consideration of multiple factors although under certain circumstances some factors would be more determinative than others. Restatement (Second) of Agency § 220 (1958). The trial court correctly ruled in this case that on the "totality of the circumstances" the plaintiff was not an employee of either Washburn or DiPrizio. Plaintiff urges us to abandon the common law test of employee-employer relationship and to adopt the "economic reality" approach. See 1A A. Larson, The Law of Workmen's Compensation § 43.40, 43.42 (1973). In substance, under this theory otherwise independent contractors are held to be employees within the meaning of the workmen's compensation law when their work is part of the regular manufacturing process, hazardous, with insufficient compensation to permit absorption of the *655 risk of injury and no possibility of distributing the risk through insurance. RSA 281:4-a (Supp. 1973) provides for this approach at least in part. It provides that contractors shall be liable for the payment of workmen's compensation for employees of their subcontractors and defines contractors as persons or organizations who contract to have timber cut and removed or contract to have a part of their regular and recurrent work or business done by a subcontractor. The trial court found that Washburn and Walker were independent contractors in their relationship to each other and DiPrizio. Accordingly DiPrizio could not be liable under the statute to Walker who was not an employee of his subcontractor Washburn nor was Washburn liable to Walker as the statute imposed liability only to employees of the subcontractor. The trial court correctly ruled that RSA 281:4-a (Supp. 1973) did not apply to the relationship between Walker, Washburn and DiPrizio. Plaintiff's exceptions overruled; judgment for the defendants. All concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1153279/	642 So. 2d 344 (1994) Vennie PEASTER, Natural Mother and Administratrix of the Estate of Jimmy Wilcoxson, Deceased; Brenda Wilcoxson Tacker, Vanessa Wilcoxson, Sheila Wilcoxson Vaughn (Buazard), and Kimberly Wilcoxson Blount v. DAVID NEW DRILLING CO., INC. No. 91-CA-00423. Supreme Court of Mississippi. May 12, 1994. Rehearing Denied September 29, 1994. Wayne E. Ferrell, Jr., Karla J. Pierce, Ferrell & Hubbard, Jackson, for appellant. Kenneth G. Perry, Shell Buford Bufkin Callicutt & Perry, Jackson, for appellee. Before PRATHER, P.J., and PITTMAN and SMITH, JJ. SMITH, Justice, for the Court: This appeal arises from an incident where decedent, Jimmy Wilcoxson, was assisting in moving a portable oil rig belonging to his employer, David New Drilling Co. Inc. The rig shifted and Wilcoxson was crushed to death. His family filed a wrongful death suit against his employer and four other third party defendants in The First Judicial District of Hinds County Circuit Court. The appellants in their complaint specifically referred to the negligence of David New Drilling and never raised facts supporting the commission of an intentional tort by the employer towards Wilcoxson. David New Drilling filed its answer, asserting as an affirmative defense that the action was barred by the exclusivity provisions of the Workers' Compensation Act. Miss. Code Ann. § 71-3-9 (1972, as amended). Subsequently, appellees filed a Motion for Summary Judgment based on the identical 345 grounds. The circuit court, Honorable Fred Banks presiding, overruled without prejudice David New Drilling's motion for summary judgment pending further discovery. Following completed discovery by both parties and further consideration, Judge Banks granted summary judgment in favor of David New Drilling and a final judgment was entered by Judge Robert Gibbs on March 20, 1991. Aggrieved, Wilcoxson's heirs appeal to this Court assigning the following as error: I. PLAINTIFFS' CAUSE OF ACTION AGAINST DAVID NEW DRILLING FALLS WITHIN THE INTENTIONAL TORT EXCEPTION TO THE EXCLUSIVE REMEDY PROVISIONS OF THE WORKMEN'S COMPENSATION ACT. II. IN THE ALTERNATIVE, THIS COURT SHOULD RECOGNIZE AN EXCEPTION TO THE EXCLUSIVE LIABILITY PROVISION WHERE THE EMPLOYER HAS KNOWINGLY PERMITTED HAZARDOUS CONDITIONS TO EXIST WHICH ARE SUBSTANTIALLY CERTAIN TO RESULT IN INJURY OR DEATH. After careful scrutiny of the record, we agree with the findings of Judge Banks. The appellants' claims are essentially that David New Drilling failed to maintain the brakes in good repair on the truck and trailer involved in the accident. These allegations in the complaint refer to the negligence of David New Drilling and not to an intentional tort. The appellants allege nothing that would remove this case from the exclusive remedy provisions of the Workers' Compensation Act. The appellants urge this Court to apply the exception to the exclusive liability provision of the Act. This argument is not original to the appellants but rather has been suggested for consideration on many occasions. Regardless, in the case sub judice, the appellants failed to plead or present evidence that would bring them within the exception, if recognized by this Court. We must affirm the trial judge. THE FACTS On September 7, 1984, eighteen-year-old Jimmy Wilcoxson was working at the well site known as Armstrong "WP" Well No. 1 near Sibley, Adams County, Mississippi. Wilcoxson, an employee of David New Drilling Co. Inc. since July 16, 1984, had worked at this particular rig since August 30, 1984. Wilcoxson, a "roustabout", had normal duties including "painting, cleaning, spraying grass, etc." On the day of the accident he was assisting in "rigging down" a drill rig manufactured by Spenser-Harris Machine & Tool Co. and owned by David New Drilling. The rig was being moved because of a "dry hole." To move the rig to a different site, the 85,000 pound drill rig, supported by a trailer, is lowered by a hydraulic jack onto a fifth wheel located on the bed of a truck. According to the appellants, Wilcoxson was instructed by his supervisor to place himself between the drill rig's goose neck and the rear end of the truck, in order to connect the fifth-wheel pin to the truck. During the course of the rig being lowered onto the trailer bed by the hydraulic jack, the drill rig shifted and caused the trailer to move forward. The engaged brakes on the trailer gave way and Wilcoxson was pinned between the trailer and the rear of the truck. Appellants maintain the brakes did not work. Wilcoxson died approximately an hour and a half later. Jimmy Wilcoxson was in the course and scope of his employment at the time of the accident and his death. David New Drilling furnished workers' compensation insurance coverage for its employees and paid Wilcoxson's funeral and medical expenses and satisfied its obligations under the Workers' Compensation Act. The appellants are the heirs of Jimmy Wilcoxson. On October 30, 1987, they filed a complaint in the First Judicial District of Hinds County Circuit Court against David New Drilling and four other third party defendants alleging inter alia that David New Drilling intentionally, willfully and in a grossly negligent manner caused the death of Jimmy Wilcoxson. Defendant Futrex Petroleum, Inc. was the owner of the well site. Defendant Spencer Harris Machine & Tool 346 Company was the manufacturer of the porta rig which was owned by David New Drilling, Inc. and which was being "down rigged" when the accident occurred. Defendants R.W. Delaney Construction Company, Royal Trucking Company and David New Drilling, Inc., according to the appellants, were the owners of the vehicles being utilized in the "down rigging" when the accident occurred. The appellants sought actual and punitive damages. The lawsuit against Spencer Harris Machine & Tool Company was settled for a substantial sum of money. David New Drilling answered and denied liability. David New Drilling subsequently filed a Motion for Summary Judgment, asserting the exclusive remedy of the Workers' Compensation Act. The appellants' counsel submitted an affidavit to which were attached the investigative reports of the Occupational Safety and Health Administration (OSHA), which showed numerous violations of OSHA regulations. The Circuit Court, Judge Fred Banks presiding, initially overruled the motion without prejudice on June 17, 1988, to allow for further discovery. After complete discovery by both parties and further consideration, the Circuit Court granted the Motion for Summary Judgment. The order granting summary judgment was signed by Judge Banks on June 2, 1989, and the final judgment entered by Judge Robert Gibbs on March 20, 1991. DISCUSSION I. PLAINTIFFS' CAUSE OF ACTION AGAINST DAVID NEW DRILLING FALLS WITHIN THE INTENTIONAL TORT EXCEPTION TO THE EXCLUSIVE REMEDY PROVISIONS OF THE WORKMEN'S COMPENSATION ACT. In order to avoid the exclusivity of the Workers' Compensation Act, this Court has set out the two elements that must be met: (1) the injury must be caused by the willful act of the employer or another employee acting in the course of employment and in the furtherance of the employer's business, and (2) the injury must be one that is not compensable under the act. Griffin v. Futorian Corp., 533 So. 2d 461, 463 (Miss. 1988), citing Miller v. McRae's Inc., 444 So. 2d 368, 371-372 (Miss. 1984). In the complaint it was alleged that David New Drilling "willfully" disregarded its duties to Jimmy Wilcoxson, "intentionally" failed to repair the brakes on the tractors and trailers, acted with "gross and reckless disregard for the rights and safety of the public in general and particularly of Plaintiffs' decedent" and with "knowledge of substantial certainty of injury." Despite these allegations, the overwhelming language and facts point to negligence, including gross negligence. The appellants cite to several cases in other jurisdictions for the proposition that the facts presented justify an inference of actual intent on the part of David New Drilling to injure Wilcoxson and thus the case should have been submitted to a jury. In McNees v. Cedar Springs Stamping Co., 184 Mich. App. 101, 457 N.W.2d 68 (1990), the plaintiff offered proof that the employer had actual knowledge that an injury was certain to occur at the press machine operated by the plaintiff and that the employer nevertheless instructed the plaintiff to operate the press. Subsequent to the accident, the employer destroyed all the defective foot pedals in the shop. The Michigan court held that summary judgment for the employer was improperly granted and that the allegation if proved would amount to "willfully forcing an employee to work in the face of a known and certain danger with respect to the specific machine that caused the accident." Id. 457 N.W.2d at 70. Under Michigan law, if the employer had actual knowledge that injury was certain to occur and willfully disregarded that knowledge, the employer was deemed to intend injury. In another case, Gulden v. Crown Zellerbach Corp., 890 F.2d 195 (9th Cir.1989), the plaintiffs alleged that their employer ordered them to scrub the floors of the employer's mill without protective clothing after a transformer failure that released toxic levels of polychlorinated biphenyls (PCBs) onto the floor of the mill and after attempts to reduce 347 the PCB level to non-toxic had been unsuccessful. The employees later discovered that they had acquired body levels of PCBs which were hazardous to their health. The court held that "a jury could conclude that the intent to injure ... was deliberate where the employer had an opportunity to weigh the consequence and to make a conscious choice among possible courses of action." Id. at 196-197. While noting that the exception to the exclusivity of the workers' compensation statute should be strictly construed, the court went on to say that this bar would not apply where "the evidence is sufficient to support an inference the employer deliberately instructed an employee to injure himself." Id. at 197. The appellants have also cited Mandolidis v. Elkins Ind., Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978), as support. That court consolidated three cases for consideration. Mandolidis was injured operating a 10-inch table saw not equipped with a safety guard. The employer had actual knowledge of the consequences of running the machine without a guard because of previous injuries as a result of a lack of the guard. It was well known that running the machine without the guard constituted a violation of federal and state safety laws and accepted industry standards. Mandolidis had objected to operating the saw without the guard and was told to operate it or be fired. After Mandolidis' injury, federal inspectors cited the employer for OSHA violations because there was no guard. In the second consolidated case, Snodgrass was injured when the platform he was working on became dislodged causing him to fall. Alleged were violations of numerous safety laws, rules and regulations and improper construction of the platform. The third case involved a Rule 12(b)(6) dismissal and is not relevant to this present case. In the rebuttal brief, the appellants also cite Fyffe v. Jeno's, Inc., 59 Ohio St. 3d 115, 570 N.E.2d 1108 (1991). The employee asserted that he was injured as a result of his employer deliberately removing a safety guard from a conveyer system which the employee was required to operate and which created a substantial risk of harm to the employee. The court noted that the Workers' Compensation statute that defined what constituted an intentional tort had been amended and, while the statute was not to be applied retroactively, it could be considered as a statement of public policy. Each of the cases cited has clear differences from the present case. The employers had been forewarned that the hazard to which they were exposing the employee had a strong potential for or certainty of injury. In Gulden, the employer knew without a doubt that the employees would be injured by exposure to PCBs. In that case the court distinguished that situation from cases where the employee was injured by improperly maintained machinery or by a truck with defective brakes. Gulden, 890 F.2d at 197. In Fyffe and Mandolidis the deliberate removal of safety devices constituted evidence of the requisite intent to injure. As noted in McNees, where an employer allows a braking system to become defective, provides inadequate safety features on equipment and/or supplies inadequate braking material, this constituted negligence only, not an intentional tort. 457 N.W.2d at 69. Mississippi cases also support the proposition that the present case does not come within any intentional tort exception to the rule. Griffin v. Futorian Corp., 533 So. 2d 461 (Miss. 1988), involved a tort action by an employee against his employer for injuries while operating a large lumber machine saw in the course and scope of his employment. Griffin alleged that the employer "willfully, consciously and intentionally ordered him to continue working in and around those dangerous conditions which were substantially certain to cause grievous and horrible injuries." Id. at 463. Griffin alleged that he had warned the plant manager of the unsafe working conditions. This Court found that the action against the employer was barred by the exclusive remedy provisions of the Act. The Court stated: Dunn, Mississippi Workmen's Compensation, (3d ed. 1982 & Supp. 1984), notes that in order for a willful tort to be outside the exclusivity of the Act, the employee's action must be done "with an actual intent to 348 injure the employee. It is not enough to destroy the immunity that the employer's conduct leading to the injury consists of aggravated negligence or even that the conduct goes beyond this to include such elements as knowingly permitting hazardous conditions to exist or willfully failing to furnish a safe place to work or knowingly ordering the employee to perform a dangerous job. [Footnote omitted]." Id. at § 22. 533 So.2d at 464. Griffin absolutely bars an intentional tort claim even where the probability of gross negligence exists. Thus, in the case sub judice, even if the appellants could prove that David New Drilling was guilty of gross negligence, such a finding would remain insufficient to create an intentional tort and accordingly remove the appellants' claim from under the Workmens' Compensation Act. A mere willful and malicious act remains insufficient to give rise to the exception under the Act. In Stevens v. FMC Corp., 515 So. 2d 928 (Miss. 1987), the employee was injured when a small chip of metal broke off the four pound hammer he was using to place parts into conveyor rollers. The employee had been ordered to grind out the hammer heads once they became mushroomed, although this was against the manufacturer's warnings. The Court held that Stevens had only asserted a cause of action for negligence and was barred by the provisions of the Workers' Compensation Act. In McCain v. Northwestern National Insurance Co., 484 So. 2d 1001 (Miss. 1986); Luckett v. Mississippi Wood, Inc. and The Western Casualty and Surety Co., 481 So. 2d 288 (Miss. 1985); and Southern Farm Bureau Casualty Insurance Co. v. Holland, 469 So. 2d 55 (Miss. 1984), this Court recognized exceptions to the exclusivity of the Act but only when based on tortious conduct subsequent to the work place injury. These cases involved bad faith refusal to pay benefits. Other instances in which this Court has found an intentional tort claim are also clearly different from the present case. See Royal Oil Co., Inc. v. Wells, 500 So. 2d 439 (Miss. 1986) (common law claims of alleged intentional torts allowed based on malicious prosecution, false imprisonment, false arrest and slander of a convenience store cashier on embezzlement charges which were "no billed" by the grand jury) and Miller v. McRae's, Inc., 444 So. 2d 368 (Miss. 1984) (intentional tort claim allowed for claim of false imprisonment where employer used threats of force to detain a cashier to question her about missing funds). Looking at the facts alleged in the light most favorable to the appellants, there is no evidence which establishes that the employer acted "with actual intent to injure." At most, the employer was guilty of gross negligence. There is no support for finding that this case involved an intentional tort and is outside the exclusive remedy of the Workers' Compensation Act. The appellants have not successfully shown that they can meet the first part of the test outlined in Miller that there was "a willful or malicious act of the employer." The appellants also fail in meeting the second part of Miller. In each of the cases where this Court has allowed a claim for intentional tort, the injury has been something other than physical injury or death, which are compensable under the Act. The appellants have not shown that the relief they are seeking is not of the kind for which compensation is normally granted under the Act. This assignment of error is without merit. II. IN THE ALTERNATIVE, THIS COURT SHOULD RECOGNIZE AN EXCEPTION TO THE EXCLUSIVE LIABILITY PROVISION WHERE THE EMPLOYER HAS KNOWINGLY PERMITTED HAZARDOUS CONDITIONS TO EXIST WHICH ARE SUBSTANTIALLY CERTAIN TO RESULT IN INJURY OR DEATH. The appellants urge this Court to "consider enlarging the scope of the intentional tort exception to include those acts which consist of the employer willfully permitting hazardous conditions to exist which are substantially certain, although perhaps not specifically 349 intended, to result in the injury or death of an employee." The appellants reference cases from Ohio which have adopted the meaning of "intent" set out in the Restatement, Second of Torts, Section 8A (1965). This same definition was urged on the Court in Stevens, 515 So.2d at 930-931: Mr. Stevens advances no novel argument of the definition of "intentional". Rather he submits that the definition contained in the Restatement, Second of Torts should control. Section A of the Restatement states: The word, "intent" is used throughout the Restatement of this subject denotes that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result in it. In Stevens, the Court in addition to applying the definition of intent from the Restatement also held that "an intentional tort is an act of intentional behavior designed to bring about the injury." 515 So.2d at 931, citing Mullins v. Biglane Operating Co., 778 F.2d 277, 279 (5th Cir.1985). See also, Southern Farm Bureau Casualty Insurance Co. v. Allard, 611 So. 2d 966, 968 (Miss. 1992). The appellant had argued that the construction of the Act "be sensible as well as liberal." 515 So.2d at 930, citing McCluskey v. Thompson, 363 So. 2d 256, 259 (Miss. 1978). In addition to this Court having already considered the definition of intent from the Restatement, as urged by the appellants, the standard adopted by the Ohio court would not help in the present case. In Van Fossen v. Babcock & Wilcox Co., 36 Ohio St. 3d 100, 522 N.E.2d 489 (1988), paragraph 6 was modified to read: To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he has in fact desired to produce the result. However, the mere knowledge and appreciation of a risk something short of substantial certainty is not intent. 570 N.E.2d at 1112. (emphasis added.) What the appellants propose is not particularly new or inconsistent with the previous decisions of this Court. As noted, this Court has previously considered the Restatement's interpretation of intent. The problem is that the allegations of the complaint and all evidence before the lower court fall far short of the substantial certainty which is required. The employer's conduct may have been reckless or grossly negligent, but this is not enough to remove this case from the exclusivity of the Workers' Compensation Act. The appellants have not persuasively shown that a more liberal interpretation is warranted. There is nothing novel about the approach suggested by the appellants of enlarging the scope of the exemption test. We have stated consistently our position on this issue. The legislature has had every opportunity to include into the Act such a liberal exception suggested by the appellants, yet failed to do so. If this Court were to include what the legislature did not, we would violate the "purpose, spirit and philosophy of the Workmen's Compensation Act". Brown v. Estess, 374 So. 2d 241, 242 (Miss. 1979). This issue is without merit. CONCLUSION The circumstances of this most unfortunate death of Jimmy Wilcoxson could possibly have been avoided or substantially reduced by his employer, David New Drilling. The employer's conduct may have been reckless, negligent, or grossly negligent, but that this not enough to remove this case as an "intentional tort" from the exclusivity of the Workers' Compensation Act. This Court has held repeatedly that the employer's action must be done "with an actual intent to injure the employee," and that "an intentional tort is an act of intentional behavior designed to 350 bring about the injury." We do not today choose to expand this Court's interpretation of what constitutes an intentional tort exception. Even had we elected to so enlarge the scope of the intentional tort exception, the appellants are not entitled to relief. We affirm the granting of Summary Judgment by the trial judge in favor of David New Drilling. JUDGMENT AFFIRMED. HAWKINS, C.J., and DAN M. LEE and PRATHER, P.JJ., and PITTMAN and JAMES L. ROBERTS, Jr., JJ., concur. McRAE, J., dissents with separate written opinion joined by SULLIVAN, J. BANKS, J., not participating. McRAE, Justice, dissenting: Nearly a decade ago, Jimmy Wilcoxson was crushed to death in an accident which occurred in the course of his employment with David New Drilling Co. Clearly, Workers' Compensation has not been the "quick fix" it was intended to be either for Wilcoxson's heirs or his employer. To add to the confusion, delay and inequity which has plagued our system of compensating on-the-job injuries, to the detriment of employers as well as workers, the majority now has thrown another curve in finding that gross negligence does not amount to an intentional tort. Because it defies logic to adopt a standard distinct from that employed, for example, in determining whether there is a basis for an award of punitive damages, I respectfully dissent. In Miller v. McRae's, Inc., 444 So. 2d 368 (Miss. 1984), we noted that "it was never the intention of the Workmen's Compensation Act to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act." Id. at 371. Where there is a question of whether workers' compensation is the exclusive remedy available to the claimant, the Miller Court articulated a two-part test; that is, "one must ask not only whether the injury arose out of and in the course of employment, but also, whether the injury is compensable under the Workmen's Compensation Act." Id. at 372, overruling Rico v. Precision Engineering and Manufacturing Co., 381 So. 2d 170 (Miss. 1980) (considering only whether injury arose out of course of employment). Thus the issue is whether the circumstances surrounding Jimmy Wilcoxson's death are such that they transcend the definition of compensable injury articulated in Miss. Code Ann. § 71-3-3(b) (1989 and Supp. 1993). The majority acknowledges that the employer could have been "reckless, negligent or grossly negligent" in failing to maintain properly the brakes on the truck involved in the accident. However, it finds that this alone does not remove it from the exclusivity of the Act as an intentional tort. In other areas of the law, such as punitive damages, we recognize that gross negligence and reckless conduct are distinct from simple negligence or even intentional torts. See e.g., Strickland v. Rossini, 589 So. 2d 1268, 1273 (Miss. 1991); Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 465 (Miss. 1983). If such conduct may give rise to an award of punitive damages in either tort or contract law, why should it not transcend the level of intentional torts in the context of workers' compensation? Today's decision illustrates vividly the basic failure of our system of workers' compensation. Despite the beneficent purposes of the Act, it benefits neither workers not their employers. Article 3, § 24 of the Mississippi Constitution provides that "every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay." However, ten years after his death, Jimmy Wilcoxson's heirs are still in court. Despite the relief it is intended to provide, workers' compensation all too often bars recovery of benefits an injured worker or his heirs might otherwise be entitled to receive. See e.g., Medders v. United States Fidelity and Guaranty Corp., 623 So. 2d 979 (Miss. 1993). Indeed, our workers have abridged certain of their constitutional rights as consideration, but workers' compensation has not delivered the "quick fix" it was intended to provide in return. *351 Workers' compensation, on the other side of the coin, has made employers liable for the payment of tremendous premiums for workers' compensation insurance which generally duplicates other coverage paid for by the employer for his employees. Today, unlike those policies available in 1948, when our workers' compensation laws were first passed, any disability, liability and health insurance coverage an employer provides for its employees offers benefits equal to or better than those provided by workers' compensation insurance. For example, disability policies generally provide a worker with two-thirds of his wages until he reaches the age of sixty-five, as distinguished from the four hundred fifty week maximum coverage afforded by workers' compensation insurance. Life insurance, too, pays greater benefits than those provided by workers' compensation. Employers further are required to carry liability insurance to cover acts of negligence. Of course, because of the exclusivity of workers' compensation, any such policy is rendered inapplicable when an employee is injured because of the negligence of the employer or a fellow employee. Thus, the employer is forced to pay separate premiums for duplicative policies, which may not even provide his employees with the intended coverage. Once a claim is filed with the Workers' Compensation Commission, both the employer and employee are subject to discrimination in the review process. The Commission, not an administrative law judge, is the finder of facts. Natchez Equipment Co., Inc. v. Gibbs, 623 So. 2d 270, 273 (Miss. 1993); Walker Manufacturing Co. v. Cantrell, 577 So. 2d 1243, 1246 (Miss. 1991); Hardin's Bakeries v. Dependent of Harrell, 566 So. 2d 1261, 1264 (Miss. 1990). By statute, one commissioner is to be classified as a representative of employers, while another is to serve as a representative of employees. Miss. Code Ann. § 71-3-85 (1989). In contrast, when seating a jury to serve as the finder of fact, we are often hesitant to allow an individual sympathetic to a litigant a friend, relative or business associate to serve, for fear a party may be prejudiced. Mhoon v. State, 464 So. 2d 77 (Miss. 1985); Mississippi Public Service Commission v. Collier, 183 So. 379, 183 Miss. 271 (1938). Why, then, should we create a statutory prejudice in the context of workers' compensation? Perhaps it is time for the legislature to take another look at workers' compensation to determine whether it is serving its intended purpose for the both employer and the employee. Employers across the state could save countless dollars and workers receive better coverage if the legislature would simply require any business which seeks to do business or obtain a license to business in Mississippi, and which, as required in the workers' compensation statute, employs five or more people, to provide life, health and disability insurance under specified terms. Workers' compensation could then be eliminated. Jimmy Wilcoxson died nearly ten years ago. Other workers' compensation cases now before this Court involve injuries which occurred in the late 1980s. Justice delayed is justice denied. Accordingly, I dissent. SULLIVAN, J., joins this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1731379/	357 S.W.2d 757 (1962) Clara Bell FREEMAN, Appellant, Joyce Ann Price, Appellant, Odessa King, Appellant, Gloria Ann Cumby, Appellant, v. The STATE of Texas, Appellee. Nos. 34539-34542. Court of Criminal Appeals of Texas. April 25, 1962. Rehearing Denied May 30, 1962. John McLean, Fort Worth (on appeal only), for appellant. Henry Wade, Criminal Dist. Atty., George Milner, Bill Watts, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State. MORRISON, Judge. The convictions are for felony theft of 35 cartons of cigarettes from Wyatt's Food Store in Grand Prairie, Texas; the punishment, three years each for appellants Price and Cumby, and five years for appellants Freeman and King. These are companion cases, and, although appellants were separately indicted, they agreed to be tried together, and the appeals are hereby consolidated. A. H. Martin, manager of Wyatt's Food Store at Grand Prairie, testified that at 10:30 A.M. on the date in question a clerk in the store called his attention to appellants, that he observed appellants leaving the store through a check-out counter that was not in operation, that they were each carrying long black bags, that none of them paid for any merchandise, and that they left the store together. He further testified that he took an inventory of his stock of cigarettes and discovered that 35 cartons were 758 missing, and later identified his store's mark on 35 cartons of cigarettes at the police station. He stated the cigarettes were valued at $2.65 per carton. R. D. Dodd, an employee of Safeway Stores in Grand Prairie, testified that he observed appellants leaving his store shortly after noon on the day in question and that they left in a two-tone Buick automobile after failing to respond to his request for them to stop. He stated further that he took down the license number of the Buick and gave it to the Grand Prairie police. Fred Conover, a member of the Grand Prairie police department, testified that on the date in question appellants passed his police car shortly after he had received a description of their car, that he turned on his red lights and proceeded after appellants' car, honking his horn; that several of the appellants turned around and looked at him, and then their automobile began to pick up speed; and that he was successful in stopping appellants after chasing them between fifteen and twenty blocks at speeds up to 85 miles per hour. He stated that some of the cigarettes were thrown out of appellants' automobile during the chase and that 55 cartons were found scattered around in their automobile and in the four large black purses. C. R. Roberts, a Grand Prairie police department detective, testified that after a proper warning he took voluntary confessions from the four appellants in which they recited that "each of us took several cartons of cigarettes. * " Each of the appellants testified in her own behalf that three of them (Cumby, Price and Freeman) had left Odessa King at a doctor's office in Arlington, that they then proceeded to the Wyatt's Food Store in Grand Prairie, that they then went into the store independently of each other and with no agreement to steal any cigarettes, that each of them stole several cartons of cigarettes by putting them into large bags they were carrying, and each of them denied any knowledge of the fact that the others were also stealing cigarettes. Appellant Price further testified, without objection, that they later went to the Safeway Store, and she stole six cartons of cigarettes there. Under a proper charge by the trial court on the law of principals, the jury found each of the appellants guilty, and we find the evidence sufficient to support a finding that appellants were acting in conjunction with each other in the commission of the theft of the 35 cartons of cigarettes. No brief has been filed in behalf of any of the appellants, and we shall discuss the contentions advanced by counsel in oral argument. Counsel on appeal contends that, although there was no objection to the question asked appellant Price or to the testimony she gave regarding the theft of the cigarettes from the Safeway Store, the trial court erred in not excluding this evidence of an extraeous offense on his own volition. It has long been the holding of this Court that where appellant fails to object to the introduction of testimony in the trial court he is in no position to assert on appeal that it was inadmissible. Long v. State, Tex.Cr. App., 339 S.W.2d 215; Madden v. State, Tex.Cr.App., 344 S.W.2d 690; Bowles v. State, Tex.Cr.App., 324 S.W.2d 841, and Barfield v. State, Tex.Cr.App., 323 S.W.2d 455. See also 5 Tex.Jur.2d, sec. 39, p. 61, and cases there cited. Counsel also contends that the trial court erred in admitting into evidence the confessions of appellants Price and Freeman without limitation because they were highly prejudicial to appellants King and Cumby. It is true that the confession by one of several defendants jointly tried, though admissible in evidence against the one who made it, is not admissible as evidence against his co-defendants and should be properly limited by the court. Morris v. State, Tex.Cr.App., 332 S.W.2d 326, and 759 Collins v. State, 24 White & W. 141, 5 S.W. 848. However, we find no objection to the court's charge nor a requested charge directing the jury's proper consideration of this evidence. The record further reflects that the confessions of appellants Cumby and King, which were identical in all material respects to the confessions of Price and Freeman here complained of, had already been introduced into evidence without objection (that they were not properly limited to the appellants who made them), and it has long been the rule that the improper admission of evidence does not constitute reversible error if the same facts were shown by evidence not objected to. Moseley v. State, 158 Tex. Crim. 578, 258 S.W.2d 331. See also 5 Tex.Jur.2d, sec. 446, p. 704, and cases there cited. No reversible error appearing, the judgments are affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1543968/	53 F.2d 599 (1931) THIRD NAT. BANK & TRUST CO. v. UNITED STATES. No. 5877. Circuit Court of Appeals, Sixth Circuit. November 11, 1931. 600 E. L. Mikesell, of Dayton, Ohio (Robert N. Brumbaugh, of Dayton, Ohio, on the brief), for appellant. C. L. Dawson, of Washington, D. C. (Haveth E. Mau and Frank Hier, both of Cincinnati, Ohio, Harry N. Routzohn, of Dayton, Ohio, William Wolff Smith, of Washington, D. C., and W. L. Metzger, of Cincinnati, Ohio, on the brief), for the United States. Before DENISON, MOORMAN, and HICKS, Circuit Judges. MOORMAN, Circuit Judge. This suit was filed by Thaddeus C. Stewart to recover the benefits of a contract of insurance issued under the War Risk Insurance Act (38 Stat. 711, as amended). While the case was pending in the District Court, the Third National Bank & Trust Company was appointed guardian for Stewart, and substituted as party plaintiff. The sole issue made in the pleadings was whether Stewart became totally and permanently disabled while the policy of insurance was in effect. Upon this issue, the jury returned a verdict for defendant, upon which there was a judgment. The first error assigned relates to the overruling of plaintiff's motion for a rule directing the defendant to produce the records of the Veterans' Bureau pertaining to Stewart for inspection by plaintiff's counsel in advance of trial. The question is not important in this case, but, as it has been made in other cases in this jurisdiction, we deem it advisable to state what we think is the proper rule with reference to such motions. Section 30 of the World War Veterans' Act 1924 (38 USCA § 456), while declaring that the files, records, and reports pertaining to any claim filed with the bureau shall be deemed confidential, expressly provides for the disclosure of the record concerning a claimant to the "claimant or his duly authorized representative," when in the judgment of the director such disclosure would not be injurious to the claimant's physical or mental health. The act also authorizes a disclosure where required by a process of a United States court, or where deemed necessary by the director in any suit or proceeding brought under the act. These exceptions to the general provision of "no disclosure" not only contemplate the use of a claimant's record in a suit brought by him, but obviously mean that he may have access to it at any time, if not deemed injurious to his health. It is not claimed that any injury would have resulted to Stewart from an inspection of his record, and if it was in possession of counsel for the government at the time the motion was made, as presumably it was, counsel for plaintiff should have been permitted to inspect it upon request. We assume that a request was made and refused, and hence the question whether upon plaintiff's motion the court should have compelled its production for inspection. Two grounds are advanced by the government in support of the court's ruling. One is that there was no affirmative showing that the record contained evidence pertinent to the issue in the case. Section 724 of Revised Statutes (section 636, title 28, USCA), which in the opinion of the trial court was the only authority under which it could act, does not specifically require that the moving party affirmatively show the pertinency of the evidence in the record, but merely confers upon courts of law the authority to require the production of a record if it contains evidence pertinent to an issue in the case. There are cases, no doubt, in which the pertinency 601 of the evidence can only be made to appear upon proofs offered by the moving party. But the essential thing is that the record contain evidence pertinent to the issue, and, when that fact is apparent on the face of the pleadings, it follows of course that there is no need for supporting evidence. In this case, the question at issue was the same as that determined in the bureau, and upon the making of the motion it was to be presumed that the facts upon which the bureau acted were pertinent to the issue in suit. Further affirmation was unnecessary. The other contention of the government is that the court was without power to compel the production of the record in advance of trial. This is the construction placed on section 724, Revised Statutes, in Carpenter v. Winn, 221 U.S. 533, 31 S. Ct. 683, 55 L. Ed. 842, and, if the only authority which the court had was conferred by this statute, there can be no doubt that the motion should have been overruled. But section 30 of the World War Veterans' Act gave to the plaintiff the right to examine the record pertaining to Stewart at any time, and the same act authorized its use in an action brought in his behalf. The purpose of this act, as well as all legislation dealing with compensation or insurance for war veterans, is to extend aid to the veteran who may justly claim it. A necessary concomitant of this purpose is to make it as convenient as possible for the veteran to obtain the facts in regard to his claim, and have them adjudicated according to right and justice. Massey v. United States (D. C.) 46 F.(2d) 78. It may be, and no doubt often is, necessary to the proper preparation of a claimant's case that he be given access, in advance of trial, to the bureau's record pertaining to his claim. We think it is a part of the policy of the government to grant him this privilege. So while Congress provided in the World War Veterans' Act that the bureau records should be confidential, it at the same time wrote into the act the governmental policy of aiding the veteran by providing that he should have the right to inspect the record pertaining to himself, and that a United States court might require it to be produced in any suit brought in his behalf. It was the purpose of these provisions, in our opinion, to confer upon the courts the power of compelling the production of a claimant's record for his examination in advance of trial. It is not to be understood from the conclusions stated that in every case where suit is filed it is the duty of the bureau to send its records to the claimant for inspection, or to do more than permit inspection at the bureau's convenience. What we hold is, that when suit has been filed and the record is in the possession of counsel for the government, it is within the power of the court to compel its production for examination in advance of trial. If in such case the record is not in the possession of counsel for the government but is in the files of the bureau, it would work no hardship on the bureau to furnish the record to its counsel in order that it might be inspected by counsel for claimant. This would extend to the claimant an opportunity, which in many cases could not otherwise be had, to obtain the data necessary to a proper preparation of his case. We conclude, therefore, that plaintiff's motion should have been sustained, and the defendant required to produce the record for inspection by plaintiff's counsel; but as it was produced at the trial, and there is nothing to show that the failure to produce it earlier resulted in prejudice, we further conclude that the overruling of the motion was not prejudicial error. In the course of the trial, the plaintiff offered in evidence the official reports of the physicians who examined Stewart for the bureau. These reports consisted of the findings of the physicians, based on their examinations, with the statements made to them by Stewart at the time the examinations were made. The court admitted the findings, but excluded the statements. As the physicians themselves were not available as witnesses, we do not doubt that the findings were admissible in evidence under established exceptions to the hearsay evidence rule. The basis of these exceptions is that the obligation of the officer, coupled with his lack of personal interest, gives to his findings a sufficient guaranty of trustworthiness to admit them in evidence. United States v. Cole, 45 F.(2d) 339 (6 Cow. C. A.); United States v. Wescoat (C. C. A.) 49 F.(2d) 193; Wigmore, vol. III, § 1630 et seq. There was, however, no such guaranty of impartiality in the statements of Stewart. They were essentially self-serving and were inadmissible even if Stewart himself had not testified. The cases cited by appellant do not hold differently. In United States v. Worley (C. C. A.) 42 F.(2d) 197, and United States v. Carlson (C. C. A.) 44 F.(2d) 5, the question was not passed on. The ruling in United States v. Stamey (C. C. A.) 48 F.(2d) 150, was based on earlier decisions in other circuits, none of which went further than to admit the facts disclosed by the examination. This is also the full import of United States v. Cole, supra. Runkle v. 602 United States (C. C. A.) 42 F.(2d) 804, and The Rosalia (C. C. A.) 264 F. 285, involved opinion evidence based upon facts ascertained by examination. In United States v. Tyrakowski (C. C. A.) 50 F.(2d) 766, the statements were made for the purpose of obtaining treatment and were admitted as subjective symptoms found on examination. United States v. Wescoat, supra, holds only that officials' records as to facts may be accepted in evidence where the persons making the entries are not available as witnesses. The same court in United States v. Wilson, 50 F.(2d) 1063, held that it was error to admit self-serving declarations contained in the reports of the bureau's physicians. The statements of Stewart, as we have said, were self-serving, and, as it was not contended by the government that his testimony on the trial was a fabrication of recent date (Ellicott v. Pearl, 10 Pet. 412, 439, 9 L. Ed. 475), we see no more reason to receive those statements in evidence than to receive statements made to a physician to qualify him to testify as an expert. These latter statements are clearly inadmissible. B. & O. R. R. Co. v. Mangus, 294 F. 761 (6 Cow. C. A.); Hardy-Burlingham Mining Co. v. Baker, 10 F.(2d) 277 (6 Cow. C. A.). Complaint is made of the refusal of the court to admit in evidence ex parte statements of physicians employed by the appellant to treat his disabilities. These statements were submitted to the bureau by Stewart in support of his pending claim and were part of the file which counsel for the government had in his possession at the trial. They were not official records in the sense that they contained reports and findings of officials of the bureau, and no showing was made that the physicians who made them were not available as witnesses. Without determining whether such documents may ever be received in evidence in a case of this kind, it is sufficient to say that, lacking a showing of the unavailability of the physicians as witnesses in this case, the court was quite right in not receiving their statements in evidence. The court refused to admit in evidence the findings or conclusions of the bureau touching Stewart's claim of total permanent disability based, in part at least, on the reports of the bureau's physicians. The complaint of appellant on this account is not supported by any evidence of the contents of the findings. It is difficult to believe that plaintiff could have derived any benefit from the admission in evidence of an adverse finding by the bureau on the question at issue. However that may be, counsel might have incorporated the findings into the bill of exceptions in order that this court could determine whether they had any evidential effect that made them admissible in evidence. This was not done, and, there being nothing in the record to indicate that plaintiff was prejudiced by the ruling, its claim of reversible error must be denied. In its general aspect, which we think calls for consideration because of other cases in which the question has been raised, it is our view that such findings, based upon official reports, are inadmissible. In reaching this conclusion, we assume that the findings are made by a board formed within the bureau and authorized finally to determine for the bureau whether the claimant is or is not totally and permanently disabled. We also assume that the board so acting bases its decision upon facts disclosed in the official reports in the files of the bureau. If in these circumstances the board is composed of officials who are not physicians, their decision is merely an administrative determination of the question which is at issue in the action at law. On the other hand, if the board consists of physicians who, in reaching their decision, consider the reports of other physicians, their decision is but an opinion based upon the findings, and to some extent the opinions, of other physicians. The findings of the examining physicians being themselves admissible in evidence in the law case, there is no reason, it seems to us, to admit administrative opinions or conclusions based thereon. While the administrative decisions of the bureau are a part of its records, and as such are evidence of what they purport to show, their admissibility in evidence in an action at law is subject to the rules of evidence relating to pertinency and probative value. Thus the finding of the bureau that Stewart was not totally and permanently disabled was not pertinent evidence touching that issue in an action at law which the statute (38 USCA § 445) authorized him to bring in the event of disagreement with the bureau. A suit brought under that statute, such as this suit, is not a proceeding to review as on appeal the decision of the bureau, but is an original action in which the issues must be tried like other fact issues in law cases. The findings of the bureau's physicians were admitted in evidence because they tended to prove facts pertinent to the issue in the case; total and permanent disability within the period covered by the policy. The findings of the bureau on that issue were but administrative interpretations 603 of the facts found by the physicians. Such administrative findings can have no probative effect upon the issue in the law case. Equitable Life Assur. Soc. v. Stinnett, 13 F.(2d) 820 (6 Cow. C. A.). There is nothing in McInerney v. United States (C. C. A.) 143 F. 729, and Evanston v. Gunn, 99 U.S. 660, 25 L. Ed. 306, which conflicts with this view. McGovern v. United States (D. C.) 294 F. 108, was based upon these two decisions and we think not only misconceives their meaning, but fails to take account of the rule that an official record is evidence only of what it purports to show, and, where the fact shown has no probative value or bearing on the issue, like other impertinent facts it is inadmissible. The other errors assigned relate to the admission and rejection of parts of the testimony of an expert medical witness, and to the duty of the jury to find in favor of the plaintiff. With respect to the testimony of the expert, it is sufficient to say that we find no error in the rulings of the court. The other question is one of fact on which there was a conflict of evidence, and it ought not to be necessary to say that it is not the province of this court to determine the weight of the evidence as between conflicting theories. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2369599/	938 S.W.2d 35 (1996) Walter BELL, Appellant, v. The STATE of Texas, Appellee. No. 71843. Court of Criminal Appeals of Texas, En Banc. November 20, 1996. Rehearing Denied February 5, 1997. 40 Douglas M. Barlow, Beaumont, for appellant. 41 John R. Dewitt, Assistant District Attorney, Beaumont, Matthew Paul, State's Attorney, Austin, for appellee. Before the court en banc. OPINION PER CURIAM. In March 1994 a jury convicted appellant of capital murder under Texas Penal Code § 19.03(a)(2). The offense, murder in the course of robbery or attempted robbery, was committed on July 19, 1974. At the punishment phase of the trial, the jury affirmatively answered the special issues submitted under Texas Code of Criminal Procedure Article 37.0711 §§ 3(b)(1) and (2),[1] and negatively answered the special issue prescribed by Article 37.0711 § 3(e).[2] The trial court accordingly sentenced appellant to death. Article 37.0711 § 3(g). Under Article 37.0711 § 3(j), direct appeal to this Court is automatic. Appellant raises twenty-seven points of error. We will affirm. A brief history of the case is helpful. Appellant was indicted separately in 1974 for the capital murders of Irene and Ferd Chisum, and was first tried, convicted, and sentenced to death for Irene's murder. We affirmed that conviction in Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3145, 69 L. Ed. 2d 995 (1981).[3] In 1982, appellant was convicted for the capital murder of Ferd Chisum and received a death sentence which we affirmed in Bell v. State, 724 S.W.2d 780 (Tex.Cr.App. 1986), cert. denied, 479 U.S. 1046, 107 S. Ct. 910, 93 L. Ed. 2d 860 (1987). On habeas review, this Court in 1991 reversed appellant's conviction and sentence pursuant to Penry v. Lynaugh 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (reversing Penry's sentence because Texas's capital sentencing statute did not provide vehicle for jury to consider mental retardation evidence as mitigating against imposition of death penalty). Ex parte Bell, No. 70,946 (Tex.Cr.App. November 6, 1991) (not designated for publication).[4] This is an appeal of appellant's second conviction and death sentence for the capital murder of Ferd Chisum. Sufficiency of the Evidence at Punishment Although appellant does not contest the sufficiency of the evidence to establish his guilt, he disputes the sufficiency of the evidence supporting his death sentence. In his eighth point of error, appellant contends that the evidence was insufficient to sustain a finding of future dangerousness under Article 37.0711 § 3(b)(2).[5] We disagree. In reviewing the sufficiency of the evidence at the punishment phase, we view the evidence in the light most favorable to the jury's finding and determine whether any rational trier of fact could have made the finding beyond a reasonable doubt. Moreno v. State, 858 S.W.2d 453, 457 (Tex.Cr.App.), cert. denied, 510 U.S. 966, 114 S. Ct. 445, 126 L. Ed. 2d 378 (1993). In our evaluation, we are mindful that the circumstances of the offense and the events surrounding it can be among the most revealing evidence of future dangerousness and alone may be sufficient to 42 support an affirmative answer to that special issue.[6]Id. at 457, 459. Viewed in the light most favorable to the jury's verdict, the evidence at guilt-innocence showed the following: Appellant worked at the Chisums' appliance repair business and had been fired approximately a week before the offense. After he was fired, appellant planned to attack and rob the Chisums at their home. In preparation for his crime, appellant assembled an "equipment kit" consisting of a sharpened knife, handcuffs, an electrical cord with the ends cut off, and some documents, and placed these items inside a bag. Appellant gained entry into the Chisums' home under the pretext of asking Mr. Chisum's help in applying to mechanic's school and used the papers he brought to support his ruse. At the end of the conversation, appellant pulled the knife on Mr. Chisum, handcuffed him, and bound his feet together with the extension cord. Appellant then called Mrs. Chisum into the room and tied her legs and hands with pieces of towel. After forcing Mr. Chisum to hop from the living room into a closet, appellant took Mrs. Chisum into the study. When Mr. Chisum escaped from the closet, appellant chased him down, beat him, and stabbed him in the chest. After returning to the study, appellant untied Mrs. Chisum, forced her to undress, gagged her with a towel, and raped her. Afterwards, he forced her to write out some checks to appellant under an alias. When Mrs. Chisum began making mistakes due to her nervousness, appellant grabbed a pillow and slashed it to show her that he was serious. After Mrs. Chisum signed the last check, appellant choked her to death with a towel and moved her body into a bathtub. He returned to Mr. Chisum, choked him, and dragged him to the bathtub. Appellant left the Chisums' house with some cash and the victims' watches, among other items. The next day, appellant bought some clothes, got a haircut, attempted to cash one of the checks, played pool, and drank beer. Appellant was arrested later that evening and signed a confession describing the details of the offense that was admitted into evidence at his trial.[7] At punishment, the State relied heavily on the facts of the offense to show future dangerousness. In addition, the State introduced evidence of two extraneous acts involving threats of violence. First, according to a prison disciplinary report from 1981, appellant told a prison guard who was strip searching him, "Don't look at me like this you mother fucker, next time you do this I'll cut your throat and any other peckerwood's throat that tries to strip me." Second, according to military records from appellant's service in the navy, he was court-martialed in 1973 for telling a corporal, "Shut your mouth or I'm going to kill your ass." In our affirmance of appellant's first conviction for Ferd Chisum's capital murder, we also reviewed the sufficiency of the evidence to support the jury's future dangerousness finding. Bell, 724 S.W.2d at 803-804. While we acknowledge that the "law of the case" doctrine does not apply to an evidentiary 43 sufficiency challenge,[8] we note that the aggravating evidence in both of appellant's trials was virtually identical. In Bell we looked at the same aggravating facts that were present in the instant case and commented that the facts of the offense alone "indicate[d] a propensity, perhaps even an appetite, for violence." Id. We held, "Considering this evidence alone, without the threats presented by the State in the punishment stage, we find sufficient support for the jury's affirmative finding to Special Issue Two." Id. Because the aggravating facts in both trials were basically identical, we see no reason to come to a different conclusion regarding the sufficiency of the evidence to support the jury's finding of future dangerousness. We cannot say the jury was irrational in believing appellant would commit criminal acts of violence which would constitute a continuing threat to society, and hold that the evidence was sufficient to support the jury's affirmative answer to the future dangerousness special issue. Appellant's eighth point of error is overruled. In his ninth point of error, appellant argues that the evidence is insufficient to support the jury's negative answer to the mitigation special issue under Article 37.0711 § 2(e).[9] In support of his contention, appellant points to his youth at the time of the offense,[10] his exemplary conduct in prison over the last two decades,[11] and his mental retardation.[12] Appellant first urges this Court to "engage in a de novo review of both the existence and the respective weight of aggravating and mitigating circumstances."[13] In the alternative, appellant continues, this Court should determine whether the jury's verdict was against the great weight and preponderance of the evidence. Cf. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Cr.App.1990) (defendant has burden of proving affirmative defense of insanity and appellate review should inquire whether verdict was against the great weight and preponderance of the evidence). In McFarland v. State, 928 S.W.2d 482 (Tex.Cr.App.1996), we held that appellate review of the jury's answer to the mitigation special issue is not constitutionally required. Id., at 499. We explained that we cannot review the jury's answer to the mitigation special issue, either in an independent de novo review,[14] or in a review of factual sufficiency, because it is a subjective determination 44 left exclusively to the jury. Id., at 498. See also Colella v. State, 915 S.W.2d 834, 845 (Tex.Cr.App.1995) (holding that because jury alone faces the task of evaluating mitigating evidence, we cannot review jury finding that, taking into consideration all evidence, there are no sufficient mitigating circumstances to warrant imposition of life imprisonment rather than the penalty of death). Because appellant raises no new arguments, we overrule his ninth point of error. In points of error ten and eleven, appellant agrees that meaningful appellate review of the sufficiency of mitigating evidence is impossible; however, he insists that because Article 44.251(a) and the federal constitution require such review, the Texas capital sentencing statute is unconstitutional.[15] First, appellate review of the jury's answer to the mitigation special issue, which is a practical impossibility, is not constitutionally required. McFarland, supra, at 499. See also Burns v. State, 761 S.W.2d 353, 356, n. 4 (Tex.Cr.App.1988) (citing Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 [1984] for the proposition that "it is doubtful [that] Eighth Amendment or Due Process considerations absolutely require this Court to reweigh punishment evidence ..."). Second, even if Article 44.251(a) were problematic, it would not affect the constitutionality of our capital punishment scheme. Lawton v. State, 913 S.W.2d 542, 557 (Tex.Cr.App.1995). So long as the jury is not precluded from hearing and giving effect to mitigating evidence, our capital punishment scheme is constitutional regardless of whether appellate review of the jury's mitigation verdict is possible. Id.; McFarland, supra, at 499. Because appellate review of the jury's finding regarding mitigating evidence is neither possible nor constitutionally required, we overrule appellant's tenth and eleventh points of error. Pretrial Appellant maintains in his twenty-fifth point of error that the trial court reversibly erred when it denied his motion for change of venue. Appellant's motion and accompanying affidavits allege that appellant could not get a fair trial in Jefferson County because of prejudicial and inflammatory pretrial publicity. Appellant filed his motion after the jury had been selected. At the venue hearing, appellant introduced copies of over one hundred fifty newspaper articles about appellant and the Chisum murders. All but eight of these appeared between 1974 and 1991. Five articles from 1993 chronicle the District Attorney's decision to retry appellant for Mr. Chisum's murder in the instant case, this Court's refusal to rehear its decision to set aside appellant's 1982 sentence and conviction, and appellant's life on death row. Three articles from 1994 cover jury selection in appellant's current capital murder trial. Appellant also submitted excerpts from nine television news broadcasts concerning appellant's retrial that aired on February 6, 7, and 8 of 1994.[16] Each segment, ranging from 40 seconds to one minute in length, mentions that appellant was facing his third capital murder trial in connection with the Chisum murders. Six of the broadcasts stated that appellant had received two death sentences which were both overturned, and three news stories attributed the reversals to "technicalities." At the hearing on his motion, four witnesses testified for appellant in favor of a change of venue. Melvin Boneau, an attorney practicing in Jefferson County, first testified that much of the community knew that appellant had confessed to the Chisum murders and had received the death penalty. Boneau felt that regardless of any instruction 45 from the trial court, a juror from Jefferson County would not be able to put aside his or her knowledge of appellant's prior capital murder convictions. Richard Lewis, a civil attorney practicing in Jefferson County, testified that, based on pretrial publicity and discussions with members of the community, he believed appellant could not receive a fair trial in Jefferson County. Thomas Roebuck, another lawyer practicing in Jefferson County, also testified that he did not think appellant could receive a fair trial in Jefferson County because of pretrial publicity. According to Roebuck, there was a public outcry concerning the length of time appellant's case had been involved in the appellate process. Raymond Scott, a Jefferson County minister and president of a local NAACP chapter, testified that based on conversations with community members and negative media attention, he felt appellant could not receive a fair trial in Jefferson County. Scott also felt "the atmosphere that exists here in Jefferson County is unhealthy for any African American to be in court."[17] In addition, appellant pointed out to the trial court that out of 60 veniremembers individually interviewed during voir dire, 36 had some knowledge of his case, six of whom were selected to serve on the jury.[18] Of these six, one juror stated she had seen a news report on television the night before her individual voir dire but did not pay attention to it and knew nothing about the facts of this case; one had seen recent newspaper headlines and had heard conversations about appellant and knew this was appellant's third trial, but could disregard that knowledge if selected as a juror; another had heard on a recent television news story that this was appellant's third trial but said he was not influenced by what he had heard; a fourth had heard on a recent television news broadcast only that appellant's capital murder trial was about to begin; a fifth juror recalled hearing about the case years ago and had recently learned from television and newspapers that the case had been overturned, but had not formed any opinions regarding appellant's guilt or innocence in this case and would not be influenced by information from outside sources. Finally, a sixth juror knew that both of appellant's death sentences had been overturned and knew the reasons for the reversals, but did not have a problem with the reversals because she did not believe that "people get out just on technicalities or loopholes." She further stated that any knowledge she had about appellant's prior convictions and sentences would not influence her if chosen to serve on the jury. None of these jurors was challenged for cause. Regarding other members of the jury panel who had heard something about the case,[19] appellant does not state whether any of these were biased against him, whether any were challenged, successfully or not, for cause, or if he used any of his peremptory strikes on them. Furthermore, to the extent that appellant asserts prospective jurors felt his death sentences had been overturned because of "technicalities," he provides us with no citations to the record. In addition to three controverting affidavits, the State offered testimony from one of the affiants, John Appleman, district clerk of Jefferson County. Appleman testified that he was familiar with the publicity surrounding appellant and the Chisum murders and felt that the publicity had been fair and accurate and not inflammatory or prejudicial. Appleman stated that he thought appellant could get a fair trial in Jefferson County, which had a population of 128,980 qualified potential jurors. Yet on cross-examination, Appleman admitted that having a juror with specific knowledge of appellant's case, including knowledge of why both of appellant's death sentences had been overturned, would probably prevent appellant from having a fair trial. He qualified this response under redirect questioning and stated that if such a juror were to swear he or she could be 46 impartial, any knowledge the juror had would not make a difference. Article 31.03(a)(1) provides that a change of venue may be granted on a defendant's motion if "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." When outside influences affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial. Henley v. State, 576 S.W.2d 66, 71 (Tex.Cr.App.1978). The trial court may use voir dire to help gauge the community climate; however, regardless of the successful qualification of a jury panel, the evidence adduced during the venue hearing may show that a change of venue is necessary to assure a fair trial. Id.; Black v. State, 816 S.W.2d 350, 359 (Tex.Cr.App.1991). An appellate court will not reverse a trial court's denial of a motion to change venue absent an abuse of discretion. Penry v. State, 903 S.W.2d 715, 727 (Tex.Cr.App.), cert. denied, ___ U.S. ___, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995). Even if it were possible to select a jury whose members were not challengeable for cause, appellant was entitled to a change of venue if he could show that there were community influences which could affect the answers on voir dire or the testimony of witnesses at trial, or that for any other reason a fair and impartial trial could not be had in Jefferson County. Henley, 576 S.W.2d at 72. The mere fact of media attention and publicity do not, however, automatically establish prejudice or require a change of venue; jurors do not have to be totally ignorant of the facts and issues of a particular case. Teague v. State, 864 S.W.2d 505, 509 (Tex.Cr.App.1993). Rather, publicity about the case must be pervasive, prejudicial, and inflammatory. Beets v. State, 767 S.W.2d 711, 743 (Tex.Cr.App.1987), cert. denied, 492 U.S. 912, 109 S. Ct. 3272, 106 L. Ed. 2d 579 (1989). The majority of the news coverage of which appellant complains occurred years before the instant trial. Of the few recent newspaper articles and television newsclips, most merely summarized the history of the case, including that appellant was facing his third capital murder trial after his two prior death sentences had been overturned. The only potentially inflammatory information came from one television station's broadcasts which, in reciting the case's history, stated that one or both of appellant's sentences had been overturned "on a technicality."[20] For the most part, however, the news articles and television broadcasts were accurate and objective and were not inflammatory, pervasive, or prejudicial. We do not agree with appellant that the media attention surrounding his case, viewed as a whole, was inflammatory and prejudicial. A review of the jury panel questionnaires and of the testimony from those jurors who had knowledge of appellant's case also supports the trial court's ruling. Using the jury selection process to gauge the tenor of the community as a whole, the trial court could have found there was no pervasive public prejudice against appellant. Finally, the testimony at the venue hearing also supports the trial court's ruling. Although appellant presented testimony and affidavits claiming appellant could not receive a fair trial in Jefferson County, such evidence mainly posited that there had been significant media attention regarding the case, and that many people in the community knew appellant had received two death sentences which had been overturned. Knowledge of this sort does not amount to per se prejudice against appellant. The State's affidavits and testimony adequately controverted appellant's assertions and countered that publicity surrounding appellant's case had been fair, not inflammatory, and had not fostered any hostile public attitude towards appellant. In short, the record supports the trial court's finding that appellant could have received a fair trial in Jefferson County. Accordingly, we hold that the trial court was 47 within its discretion is denying appellant's motion to change venue. Appellant's twenty-fifth point of error is overruled. In his twenty-sixth and twenty-seventh points of error, appellant contends that because the original indictment was not included in the appellate record, as per his specific request, Tex.R.App.Proc. 51(b), the record is incomplete and the trial court did not have jurisdiction in this case. Appellant was indicted for this offense in 1974. His 1994 re-trial was predicated upon the 1974 indictment. A copy of the 1974 indictment was forwarded to this Court in the transcript, pursuant to Rule 51(a), but not the original, as appellant had requested. In his objection to the appellate record appellant contended he has "an absolute right" to have the original of the indictment forwarded in the transcript for appeal. We observe, however, that Rule 51(a) expressly designates that "copies" of the indictment or information be included in the transcript. In any event, after appellant filed his brief, the original indictment was forwarded to this Court and filed as a supplemental transcript in the appellate record. Appellant presents no substantial basis for us to suspect the indictment has not been in the district clerk's file at all times since its presentment in 1974. Because appellant's arguments hinge upon the absence of the original indictment, the indictment's existence in the record renders them moot, and we overrule appellant's twenty-sixth and twenty-seventh points of error. Guilt-Innocence In his first and second points of error, appellant contends that his confession was erroneously admitted into evidence because it was an inadmissible, tainted fruit of both his illegal arrest and an ensuing illegal search and seizure.[21] We will first address his allegation that his statements were an inadmissible fruit of his illegal arrest. Appellant raised this identical argument in his first appeal of this case, which we resolved against him in Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986). We held that although appellant's warrantless arrest was illegal because there were no exigent circumstances, his confession was properly admissible for Fourth Amendment purposes because it was taken after the taint from his illegal arrest was removed. Id. at 786-787, 791-792. Under the doctrine of the law of the case, when a court of last resort has determined questions of law on a prior appeal, those determinations will generally govern a case throughout all of its subsequent stages. Penry, 903 S.W.2d at 746-747. As appellant acknowledges, none of the facts surrounding the confession has changed since this Court ruled on the legality of the confession during appellant's first appeal.[22]Satterwhite v. State, 858 S.W.2d 412, 430 (Tex.Cr.App.), cert. denied, 510 U.S. 970, 114 S. Ct. 455, 126 L. Ed. 2d 387 (1993). Moreover, the Court's analysis, which was based on the Brown factors regarding attenuation of taint after an illegal warrantless arrest, is still legally valid.[23]See Banda v. State, 890 S.W.2d 42, 68 (1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2253, 132 L. Ed. 2d 260 (1995); Johnson v. State, 871 S.W.2d 744, 750-751 (1994); Boyle v. State, 820 S.W.2d 122, 130-131 (1989), cert. denied, 503 U.S. 921, 112 S. Ct. 1297, 117 L. Ed. 2d 520 (1992). Appellant argues, however, that as a tainted fruit of an illegal search and seizure, his confession was erroneously admitted into evidence at the instant trial. He contends that this Court improperly applied its taint analysis in determining the admissibility of his confession, because we only addressed the ramifications of his illegal arrest and failed to take into account the effects of the allegedly illegal search and seizure. But at 48 both trials, appellant limited his objections to the issue of his illegal arrest only and the effect of that arrest on his confession. Appellant now raises the issue of a possibly illegal search and seizure, for the first time, in his brief on appeal. Appellant has not preserved this claim because he failed to raise it at either trial. See Tex.R.App.Proc. 52(a). We overrule appellant's first and second points of error. In his third point of error, appellant argues that the trial court erroneously refused to instruct the jury under Article 38.23, which states: (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. Appellant insists that because sufficient evidence existed to support a jury finding that appellant was illegally arrested, the jury could also have concluded that appellant's confession was "tainted fruit" of his illegal arrest and, therefore, inadmissible under Article 38.23. We disagree. Appellant was entitled to an Article 38.23 instruction only if the trial evidence raised a factual issue concerning whether the evidence was obtained in violation of the federal constitution or the Texas Constitution or any of its laws. Hamilton v. State, 831 S.W.2d 326, 331 (Tex.Cr. App.1992). Because there was no dispute regarding the facts surrounding appellant's arrest and confession, he was not entitled to the instruction. Id.; Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App.1986) (defendant only entitled to Article 38.23 instruction if there is fact dispute regarding how evidence was obtained). That the taint was sufficiently attenuated from the illegal arrest to allow for the admission of appellant's confession into evidence was a question of law decided by this Court against appellant in his prior appeal. See points of error one and two, ante. Because there was nothing for the jury to decide regarding the admissibility of his confession, the trial court correctly refused appellant's requested instruction. Appellant's third point of error is overruled. Punishment In his fourth point of error, appellant claims that the trial court erroneously allowed the State to characterize his mental retardation as an aggravating factor. Appellant relies on the Supreme Court's decision in Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), in support of his contention, but his reliance is misplaced. In Zant, the applicable statute assigned aggravating and mitigating labels to particular types of evidence. In Texas, however, the amount of weight each juror might give any particular piece of evidence is left to that juror's own range of judgment and discretion. Cordova v. State, 733 S.W.2d 175, 189 (Tex.Cr.App.), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L. Ed. 2d 946 (1988). Because what constitutes mitigating evidence is left to each juror's discretion, there is no per se mitigating evidence. Colella, supra, at 845. Regarding mental retardation evidence in particular, the Supreme Court noted in Penry v. Lynaugh, 492 U.S. at 323-324, 109 S. Ct. at 2949-2950, that it could have a mitigating or aggravating effect. The Court stated, "Penry's mental retardation and history of abuse is thus a two-edged sword: it may diminish his blame-worthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future." In addition to Penry, we have also cited Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993) for the proposition that "much of the evidence admitted during the punishment phase of a capital trial could potentially be either mitigating or aggravating." Morrow v. State, 910 S.W.2d 471, 472 (Tex.Cr.App.1995). Thus, because the jury could have considered appellant's mental retardation evidence as aggravating and/or mitigating, if at all, there was no error in allowing 49 the State to argue the evidence was relevant to appellant's future dangerousness. We overrule appellant's fourth point of error. In point of error five, appellant complains of punishment testimony from Luther Boone, a prison guard who testified on behalf of the State. Boone first testified that in 1981 appellant once threatened to cut the throat of another guard who was conducting a strip search of appellant. Although Boone had not heard appellant threaten anyone else after the incident, he testified that he had seen other death row inmates suddenly snap and become unexpectedly violent after a long periods of good behavior. Appellant objected at trial that Boone's testimony about other death row prisoners was irrelevant. During the punishment phase of a capital murder trial, evidence may be presented on any matter the trial court deems relevant to answering the special issues. Banda v. State, 890 S.W.2d 42, 61 (Tex.Cr. App.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2253, 132 L. Ed. 2d 260 (1995). See also Article 37.0711 § 3(a). A trial court's determination of relevancy is not disturbed absent an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1990)(Opinion on rehearing on Court's own motion). Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. Tex. R.Crim.Evid. 401. Although the questioned testimony may not have been very probative, the trial court was within its discretion in ruling that the evidence was at least marginally relevant to appellant's future dangerousness, because it tended to show that appellant could be violent again even after a lengthy period of peaceful behavior. Appellant also argues that the evidence was "highly prejudicial." However, as the State correctly asserts, because appellant did not raise a separate trial objection to the evidence based upon Rule 403, this issue is not properly presented for our review. Long v. State, 823 S.W.2d 259, 271 (Tex.Cr.App.1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992); Montgomery, 810 S.W.2d at 388. Appellant's fifth point of error is overruled. In his sixth point of error, appellant complains the trial court erroneously allowed police investigator Calise Blanchard, a rebuttal witness for the State at punishment, to testify in violation of "the Rule." See Tex. R.Crim.Evid. 613.[24] When the State expressed its intent to call Blanchard to testify as to appellant's mental abilities, appellant objected for the reason that Blanchard had been in the courtroom during appellant's presentation of his punishment evidence, which included detailed testimony about appellant's mental retardation. In response to the trial court's inquiry as to whether Blanchard was "a person whose presence is essential to the presentation of [its case,]" the State offered the following: Yes, your Honor, certainly throughout [the] punishment phase. I mean, the defense can talk about what the State has known. The defense has been able to go through the transcripts of both trials of this case. They know what Mr. Blanchard knows. They know that Mr. Blanchard is not going to testify that he knows Louis Allen or somebody else that's testified for the defense to be an outright liar. He's just going to testify to things he's testified to before in the trial of this cause. He is essential because of the age of this trial of this case. The trial court ruled, "Mr. Blanchard will be permitted to testify under Rule 613 but will remain outside the courtroom for the balance of the trial. So, the rule is invoked as to Mr. Blanchard." Defense counsel remarked that the rule had been invoked at the beginning of appellant's trial. Blanchard was a police investigator who had worked on the case when appellant was arrested for the Chisum murders in 1974. At punishment, Blanchard testified that, 50 based on certain facts surrounding the commission of the crime, he believed the crime was planned. Blanchard further stated that, in his experiences with criminals, he had encountered criminals who were "smart" in crime but not very smart "outside of the criminal element." It was Blanchard's opinion that the person who committed the Chisum murders "had gone to considerable length to prepare to commit this crime" and knew how to "clean it up." Finally, Blanchard testified that, based on appellant's physical condition at the time as well statements in his confession, appellant could have committed the crime alone. The purpose of placing witnesses in a proceeding under the sequestration rule, as stated in Cook v. State, 30 White & W. 607, 18 S.W. 412 (1892), is to prevent the testimony of one witness from influencing the testimony of another. Rule 613, which codifies the sequestration rule in the Texas Rules of Criminal evidence, requires a trial judge, at a party's request, to order witnesses excluded from the courtroom during the testimony of other witnesses. However, Rule 613 does not mention what, if any, sanctions a trial court should impose for violations of the rule. See Goode, Wellborn & Sharlot, Texas Practice: Texas Rules of Evidence: Civil and Criminal § 614.1, at 661 (2d ed.1993). Two possible sanctions a trial court may use are holding a witness who violates the exclusion order in contempt, and the more remedial sanction of refusing to allow the witness to testify. Id. Unlike the trial court's obligation to order witnesses excluded during other witnesses' testimony, the court's decision to allow testimony from a witness who has violated the rule is a discretionary matter. "It has been held that the ruling of the trial court on an objection to a witness testifying when he has remained in the courtroom after having been placed under the `rule' may not be relied upon as a ground for reversal unless an abuse of discretion is shown; and until the contrary has been shown, it will be presumed on appeal that such discretion was properly exercised."[25]Valdez v. State, 776 S.W.2d 162, 170 (Tex.Cr.App.1989), cert. denied, 495 U.S. 963, 110 S. Ct. 2575, 109 L. Ed. 2d 757 (1990). In reviewing the trial court's decision to allow the testimony, we look at whether or not the defendant was harmed or prejudiced by the witness's violation; that is, whether or not the witness's presence during other testimony resulted in injury to the defendant.[26] Two criteria that have been suggested for determining injury or prejudice in this situation are (a) whether the witness actually conferred with or heard testimony of other witnesses, and (b) whether the witness's testimony contradicted testimony of a witness from the opposing side or corroborated testimony of a witness he had conferred with or heard. Webb v. State, 766 S.W.2d 236, 240 (Tex.Cr.App.1989). In the case at bar, it is clear that Blanchard violated the rule. The trial court had invoked the rule prior to Blanchard's testimony at guilt-innocence, yet Blanchard remained in the courtroom after his testimony during guilt-innocence and, specifically, heard testimony from appellant's punishment witnesses. Contrary to appellant's contentions, however, the trial court did not violate the sequestration rule because, in accordance with the language of Rule 613, he ordered Blanchard excluded from the courtroom during the testimony of other witnesses, both at the beginning of trial and when appellant specifically objected to Blanchard's punishment testimony. Although Blanchard violated the rule when he remained in the courtroom and listened to other testimony, the decision to allow Blanchard to testify at punishment was within the trial court's discretion. Although Blanchard's testimony could potentially have been affected by having heard testimony from appellant's punishment witnesses, Blanchard's testimony and opinions 51 clearly were based upon his own experiences and investigations in the instant case, as well as on his experiences as a police investigator in general. Blanchard's opinions were not based upon any testimony from appellant's witnesses at punishment, nor did they contradict any testimony that appellant was mentally retarded, as appellant suggests. There is no evidence that the testimony Blanchard heard influenced his own testimony. In other words, Blanchard's presence in the courtroom during testimony from appellant's punishment witnesses did not color his own testimony. The trial court did not abuse its discretion in permitting Blanchard to testify. Because we do not find trial error in the court's decision to allow the testimony, we overrule appellant's sixth point of error. In point of error seven, appellant argues that his death sentence violates the federal constitutional guarantee of equal protection and prohibition against cruel and unusual punishment because the death penalty in Texas is administered in a racially discriminatory manner. As appellant acknowledges, the Supreme Court rejected similar arguments from a Georgia defendant in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). In that case, McCleskey relied on a statistical study purporting to show that African American defendants like himself have a slightly greater likelihood of receiving the death penalty than white defendants, and that defendants in general who are accused of killing white victims, as in McCleskey's case, have a significantly greater chance of receiving the death penalty than defendants charged with killing black victims. Regarding McCleskey's equal protection claim, the court held that in order to prevail, McCleskey needed to prove that the decision makers in his case acted with a discriminatory purpose. Id. at 292, 107 S. Ct. at 1767. The Court disagreed with McCleskey's contention that the study alone constituted sufficient proof of purposeful discrimination in his case. Id. at 297, 107 S. Ct. at 1770. Like McCleskey, appellant relies solely on studies suggesting disparities in sentencing due to the race of the victim and defendant and only adds references to Texas studies allegedly showing results similar to those from the Georgia study. Appellant fails to demonstrate how the Texas studies change the Supreme Court's analysis, nor does he suggest that these studies indicate discriminatory intent in his case any better than the Georgia studies indicated such intent in McCleskey's case. Appellant's reliance on these studies is insufficient to support any inference that any of the decision makers in his case acted with discriminatory intent. See id. at 297, 107 S. Ct. at 1770. Because appellant fails to direct us to any proof of purposeful prosecutorial or jury discrimination in his particular case, his equal protection claim, too, must fail. County v. State, 812 S.W.2d 303, 308 (Tex.Cr.App.1989). Appellant also raises the argument that the application of our death penalty scheme in a racially discriminatory manner violates the Eighth Amendment's protection against cruel and unusual punishment. In McCleskey, the Supreme Court held that evidence indicating sentencing discrepancies appearing to correlate with race did not demonstrate either that McCleskey's sentence was disproportionate, or that a constitutionally significant risk of racial bias affected Georgia's capital sentencing process. Id. at 308-309, 313, 107 S. Ct. at 1776, 1778. Again, appellant relies on McCleksey's arguments and only adds allusions to similar studies based on the Texas death penalty. This Court rejected a similar claim in Robinson v. State, 851 S.W.2d 216, 232 (Tex.Cr.App.1991), cert. denied, 512 U.S. 1246, 114 S. Ct. 2765, 129 L. Ed. 2d 879 (1994). Appellant does contend that McCleskey is distinguishable from his situation, however, because Georgia's sentencing scheme differs from that of Texas. Appellant points to "the pivotal role that the `future dangerousness' special issue has played in the capital sentencing determination in Texas in the post-Furman era" and asserts that the future dangerousness special issue is "inherently racially biased" because white jurors are more likely to perceive African Americans as future threats to society. Appellant provides no relevant support for his contention other than a Michigan law review article and a single instance of individual juror prejudice 52 in one Texas case. Because appellant has not convinced us to veer from the Supreme Court's holding in McCleskey, supra, and because he does not ask this Court to interpret the Texas Constitution to provide greater protection, we overrule his seventh point of error. In his twelfth point of error, appellant contends that the Fourteenth Amendment's Due Process clause requires a comparative proportionality review of death penalty verdicts to determine whether a particular death sentence is excessive or disproportionate as compared to other death sentences in other capital murder cases.[27] Appellant bases his claims exclusively on the United States Supreme Court's holding in Honda Motor Company, Ltd. v. Oberg, 512 U.S. 415, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994), that an amendment to the Oregon constitution, which effectively prohibited any judicial review of the size of punitive damage awards in civil cases, violated due process. The Court grounded its holding in common law existing at the time the Fourteenth Amendment's enactment which contemplated appellate review of the amount of punitive damages. Id., 512 U.S. at 419-426, 114 S. Ct. at 2335-2338. The common law requirement raised a presumption that a lack of appellate review of punitive damages for excessiveness violates due process, and that the presumption could only be overcome by some alternative state law mechanism adequate to protect against the danger of jury overreaching. Id., at 430, 114 S. Ct. at 2339. Because Oregon had no alternative safeguards, the Court held that due process required some form of appellate review. Id., at 432-33, 114 S. Ct. at 2341. The Court did not, however, specify what form of appellate review was required, even in the context of jury awarded punitive damages. Contrary to appellant's contention, we cannot interpret Honda to support the argument that due process specifically requires a comparative proportionality review of jury verdicts in capital murder cases when the death penalty is imposed.[28] Moreover, appellant's analogy between Honda's holding regarding jury awarded punitive damages and a jury's capital sentencing decisions is unsupported. Because appellant relies solely on Honda, he necessarily must follow the Court's reliance on the common law existing at the time the Due Process clause was enacted. However, appellant presents no caselaw or argument to support the proposition that when the Fourteenth Amendment was promulgated, the common law required every capital sentence to be measured on appeal against all other death sentences. Appellant fails to raise a presumption that without a comparative proportionality analysis, appellate review of capital sentences in Texas violates due process. Appellant's twelfth point of error is overruled. Point thirteen voices appellant's contention that it would violate the Eighth Amendment's prohibition against cruel and unusual punishment to execute appellant after he has spent "over two decades" on death row and after he has had "many"[29] execution dates scheduled. In his brief, appellant cites various authorities who have discussed the torturous and cruel effects of a lengthy stay on death row. With respect to his own suffering, appellant asserts that "[a]s a result of the abhorrent conditions to which he has been subjected during the last seventeen-and-a-half years, Appellant endured a needlessly lingering form of torturous psychological punishment." 53 The State responds that appellant has not preserved this issue for appellate review because he failed to raise it at trial and failed to include any facts in the record that pertain to his claim. It is true that appellant has not established a record supporting his claim of "lingering psychological anguish." If anything, the evidence he presented at punishment to show that during his years on death row he had become a peaceful, religious, trustworthy, and industrious model prisoner, seems to contradict his current claim. Because appellant's assertions of personal suffering are not supported by evidence in the record, we will not consider them. Franklin v. State, 693 S.W.2d 420, 431 (Tex.Cr.App.1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1238, 89 L. Ed. 2d 346 (1986) (mere assertions in a brief not supported by evidence in the record will not be considered on appeal). Furthermore, appellant does not allege that any delays in his case have been due to State tactics designed to prolong his wait and thereby increase his suffering. In fact, any delays have resulted from appellant's legitimate entitlement to the benefits of appellate review of his death sentence. The existence of delays in appellant's case have arguably been necessary to ensure that his conviction and sentence are proper and not inhumane. Although the federal constitution protects citizens against State abuses, it does not and cannot protect them against those costs which are necessary and inherent in the exercise of the rights it guarantees. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 376, 91 L. Ed. 422, 426-427 (1947) ("The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.") Unless appellant demonstrates to the contrary, we will view any time passage during the appellate process as necessary and will not hold any delays against either appellant or the State. Appellant bases his claims on the approximately twenty years that have elapsed since he was arrested for the murders in 1974. Although he acknowledges that prior to his first conviction for Ferd Chisum's murder in 1982, he was in prison for the murder of Irene Chisum, he contends that the entire time he has been in prison since 1974 should "count" because he has been on death row for a single criminal transaction. The history of appellant's case, with its multiple prosecutions and trials, illustrates the extreme difficulty of counting and determining a threshold number of years that would per se prevent imposition of the death penalty. If this Court were to hold that executing an inmate after a threshold amount of time on death row would per se violate the Eighth Amendment, such a holding would undoubtedly encourage inmates to delay their appeals as much as possible. Even assuming the torturous effects of appellate delay, the hope of a life sentence coupled with the torturous anxiety of waiting would arguably be preferable to a certain death. We refuse to encourage inmates to prolong their appeals on hope that they could receive a life sentence if they keep their appeals alive for a certain number of years. The arbitrary results that would follow such tactics, as well as the difficulties in discerning a threshold period of time, compound the problematic nature of appellant's claim. We decline to hold that, because of appellant's years spent awaiting his execution, his execution would violate the Eighth Amendment's ban against cruel and unusual punishment. See McKenzie v. Day, 57 F.3d 1493 (9th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 1840, 131 L. Ed. 2d 846 (1995); Fearance v. Scott, 56 F.3d 633 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2603, 132 L. Ed. 2d 847 (1995); Turner v. Jabe, 58 F.3d 924 (4th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2019, 131 L. Ed. 2d 1017 (1995). Appellant's thirteenth point of error is overruled. In his fourteenth and sixteenth points of error, appellant urges that the administration of the death penalty in Texas violates the Eighth Amendment's prohibition against cruel and unusual punishment. In support of his contention, appellant relies on Justice Blackmun's dissenting opinion in Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994), in which Justice Blackmun concluded that competing federal 54 constitutional requirements of "structured discretion," as stated in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and freedom to consider mitigating evidence, as expressed in Penry v. Lynaugh, supra, are ultimately irreconcilable. Appellant further complains that Texas's mitigation special issue unconstitutionally "permits the very type of open-ended discretion condemned by the Supreme Court in Furman." We have resolved this issue against appellant and have held that our statute properly narrows the eligibility decision during the guilt phase while permitting the jury at punishment the ability to determine a defendant's culpability. Lawton, 913 S.W.2d at 558. Contrary to appellant's contention, the federal constitution's requirement of definiteness in setting the parameters of death eligibility is not applicable to provisions allowing the jury to consider and give effect to mitigating evidence. Id. See also McFarland, supra, at 521. Rather, Furman concerns the untrammeled discretion to impose the death penalty, not the decision that circumstances exist which mitigate against the imposition of the death penalty. Id. at 558, 560. See also Gregg v. Georgia, 428 U.S. 153, 199, 96 S. Ct. 2909, 2937, 49 L. Ed. 2d 859 (1976); Tuilaepa v. California, 512 U.S. 967, 972-73, 114 S. Ct. 2630, 2635, 129 L. Ed. 2d 750, 761-762 (1994). Our broad selection determination, which allows individualized sentencing and accommodates relevant mitigating evidence, does not violate the Eighth Amendment. McFarland, at 520. Appellant's fourteenth and sixteenth points of error are overruled. In point of error fifteen, appellant argues that the death penalty in Texas has been arbitrarily imposed and is unconstitutional because of the different capital sentencing schemes that have been in effect since 1989. We addressed this identical argument in Lawton, 913 S.W.2d at 559-60. Appellant raises no novel argument to persuade us to revisit this holding. Therefore, we overrule his fifteenth point of error. Appellant argues in point seventeen that the statutory definition of mitigating evidence is facially unconstitutional because it limits jury consideration to factors that render a defendant less morally blameworthy for commission of the offense. Appellant asserts that mitigating evidence should also encompass "evidence relevant to a defendant's character, history, or circumstances of the crime that militates in favor of a life sentence." Like its counterpart in Article 37.071 § 2(e), Article 37.0711 § 3(e) directs the jury, after answering the first two special issues, to determine Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. Article 37.0711 § 3(f)(3) further provides that in answering the mitigation special issue, the jury shall be charged that it "shall consider mitigating evidence that a juror might regard as reducing the defendant's moral blameworthiness." We have held that these definitions singularly or in combination do not conflict with the United States Constitution. Lawton, 913 S.W.2d at 555. See also Penry v. Lynaugh, 492 U.S. at 319, 109 S. Ct. at 2947 (suggesting punishment should be directly related to the defendant's personal culpability). Because appellant raises no new arguments in support of his claim, we overrule his seventeenth point of error. In points of error eighteen and nineteen, appellant contends that the admission of unadjudicated extraneous offenses at punishment violated Article 37.07 § 3(a) and the Eighth and Fourteenth Amendments to the United States Constitution. Although appellant asserts he raised this claim at trial, his trial motion only requested the jurors to be instructed that they "must find unadjudicated offenses to have been proven beyond a reasonable doubt before they may consider such evidence in answering the special issues." An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Cr.App.1990). Furthermore, appellant did not voice his current objection when the complained of evidence was introduced 55 at trial. See Tex.R.App.Proc. 52(a). Because appellant has presented nothing for our review, we overrule points eighteen and nineteen.[30] In his twentieth point of error, appellant alleges the death penalty in Texas is arbitrarily applied and violates the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, appellant alleges that counties with large tax bases, such as Jefferson County, are able to seek the death penalty more frequently than smaller or rural counties, who "are unable to seek the death penalty in any case, no matter how worthy the prosecutor may believe that a particular capital defendant is for capital punishment," or in medium-sized counties, who often "are able to seek the death penalty in only a tiny fraction of eligible capital cases because of financial restraints." Appellant complains that if he had committed his offense in another Texas county, his chances of escaping the death penalty would have been greater than they were in Jefferson County. Aside from these generalizations, appellant presents us with nothing to support his allegations, and we decline to follow appellant's suggestion that we take judicial notice of his broad assertions of "fact." Because appellant provides no empirical data, caselaw, or other factual basis to support his claim, there is no foundation upon which we can make a determination regarding the merits of his claim. Therefore, we overrule appellant's twentieth point of error.[31] In his twenty-first point of error, appellant contends that his execution would violate the Eighth Amendment's ban against cruel and unusual punishment because he was mentally retarded at the time of the offense. He argues that because ten states have passed legislation banning execution of mentally retarded individuals, there is a growing "national consensus" against such executions. Appellant does not discuss any of these statutes and points to no relevant caselaw from Texas or from other states. As appellant acknowledges, the United States Supreme Court in Penry v. Lynaugh, 492 U.S. at 335-38, 109 S. Ct. at 2955-57, held that the Eighth Amendment does not preclude execution of mentally retarded persons. "So long as sentencers can consider and give effect to mitigating evidence," the Court explained, "an individualized determination of whether `death is the appropriate punishment' can be made in each particular case." Id. Although appellant introduced a great deal of mental retardation evidence at his trial, the jury chose not to give it sufficient weight to mitigate against imposition of the death penalty. This Court addressed appellant's claim in Penry v. State, supra, and held that because the jury was able to give mitigating weight to Penry's mental retardation evidence, his death sentence did not violate the Eighth Amendment. 903 S.W.2d at 766-767. Likewise, we hold that appellant's sentence does not violate the Eighth Amendment and overrule appellant's twenty-first point of error. In point of error twenty-two, appellant complains of testimony from the Chisums' two daughters during the punishment phase of his trial. He contends that their "victim impact statements" to the jury were irrelevant to any of the punishment special issues and were highly prejudicial. Specifically, appellant refers to testimony from one daughter that the murders of her parents led to medical problems and her divorce, and caused her relationship with her sister to grow apart. He also points to testimony from the second daughter that the murders caused her to lose her faith. The State argues that appellant did not preserve this point for review; alternatively, it asserts that the trial court properly deemed the sisters' testimony to be relevant to the punishment special issues. The record reflects that although appellant repeatedly and successfully objected to questions concerning the character of the deceased victim, he did not object to the specific 56 testimony of which he now complains on appeal. In contrast to his many objections to victim character evidence, appellant objected once to the daughters' victim impact testimony on relevance grounds when one of the daughters was asked what went through her mind every anniversary of the murders.[32] However, after his objection was overruled, appellant raised no further objections to victim impact testimony, nor did he ask for a running objection to such testimony. Appellant did not properly preserve this issue for appellate review. Tex.R.App.Proc. 52(a). Therefore, we overrule appellant's twenty-second point of error. In his twenty-third and twenty-fourth points of error, appellant alleges that because the jury deadlocked during punishment deliberations, the trial court erred by instructing the jury to continue deliberating instead of sentencing him to life imprisonment in accordance with Article 37.0711 § 3(g).[33] According to the record, after the jury had deliberated for about five hours and forty minutes, the foreperson sent a note to the trial judge requesting instructions, after stating that the vote on the second special issue, regarding future dangerousness, was eleven to one with "[n]o movement." The trial court answered, "Thank you for the information you have supplied. Under the law I must instruct you to continue your deliberations." Appellant objected to this instruction and argued that because the jury was deadlocked, the trial court must impose a life sentence. The trial court replied: If I was confronted with the situation contemplated by 37.0711, I would do what you said. But the jury has not reported that it is deadlocked. It just reports the score at the present time. So, I think it's appropriate to tell them to continue their deliberations. If they continue in the [sic] status, then further consideration will be given to what you were asking for. But at this time I don't think it's proper. So, it's overruled and denied. Four hours later, the jury sent a second note to the trial judge saying, "The vote is split 11 to 1 on issue number three [the mitigation special issue] along the same lines. Instruction requested." Appellant again objected, and the trial court again instructed the jury to continue deliberating. One hour and five minutes later, the jury announced its verdict, in which it answered the first two special issues "yes" and the third "no." The length of time the jury may be held for deliberation rests in the sound discretion of the trial judge, who will not be reversed on appeal absent a showing by appellant that discretion was abused. Green v. State, 840 S.W.2d 394, 407 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1020, 113 S. Ct. 1819, 123 L. Ed. 2d 449 (1993). In Green, we held that a trial judge did not abuse its discretion by ordering a jury to continue deliberations when, after six and one-half hours, the jury sent a note informing the judge that they could not unanimously agree on any of the special issues. Id. We noted that six and one-half hours of deliberations was clearly not excessive, given the serious nature of the potential sentence involved, and considering that the jury had to review five full days' worth of evidence from the guilt-innocence and punishment phases, including testimony from twenty-six witnesses. In the case at bar, punishment evidence alone encompassed more than four days of testimony from fourteen witnesses. We hold that requiring the jury to deliberate further, after five hours and forty minutes and then after another four hours, was not an abuse of discretion. Furthermore, contrary to appellant's suggestion that each charge was an improper "dynamite charge," the trial judge's charges in the case at bar were not coercive, in that they only directed the jury to continue deliberating and did not indicate that the disagreeing juror should defer to the opinion of the majority, or did not otherwise pressure 57 the jurors into reaching a verdict. Montoya v. State, 810 S.W.2d 160, 166-167 (Tex.Cr. App.1989), cert. denied, 502 U.S. 961, 112 S. Ct. 426, 116 L. Ed. 2d 446 (1991). Appellant's twenty-third and twenty-fourth points of error are overruled. Finding no reversible error, we affirm the judgment of the trial court. BAIRD, J., concurring. I disagree with the majority's treatment of appellant's points of error nine, ten and eleven for the reasons stated in Morris v. State, 940 S.W.2d 610 (Tex.Cr.App.1996) (Baird, J., dissenting). I concur in the disposition of the fifteenth point of error for the reasons stated in Green v. State, 912 S.W.2d 189, 196 (Tex.Cr.App.1995) (Baird and Overstreet, JJ., concurring). Accordingly, I join only the judgment of the Court. OVERSTREET, J., concurs. NOTES [1] Article 37.0711, § 1 provides: This article applies to the sentencing procedure in a capital case for an offense that is committed before September 1, 1991, whether the sentencing procedure is part of the original trial of the offense, an award of a new trial for both the guilt or innocence stage and the punishment stage of the trial, or an award of a new trial only for the punishment stage of the trial. For the purposes of this section, an offense is committed before September 1, 1991, if every element of the offense occurs before that date. [2] Unless otherwise indicated, all references to articles are to those in the Texas Code of Criminal Procedure. [3] In 1984 appellant's death sentence was commuted to life imprisonment after a federal district judge determined that appellant had not been adequately warned of his rights during an interview with a psychiatrist who testified during his 1974 trial. [4] Although we reversed because of punishment error only, appellant's conviction was reversed as well under the former version of Article 44.251. [5] Specifically, Article 37.0711 § 3(b)(2) instructs the jury at punishment to decide "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.]" [6] Other factors which a jury is entitled to consider when determining whether a defendant will pose a continuing threat to society include (1) the calculated nature of the defendant's acts; (2) the forethought and deliberateness exhibited by the crime's execution; (3) the existence of a prior criminal record, and the severity of the prior crimes; (4) the defendant's age and personal circumstances at the time of the offense; (5) whether the defendant was acting under duress or the domination of another at the time of the offense; (6) psychiatric evidence; and (7) character evidence. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987). [7] In his confession, appellant implicated a second party, Sheppard Watson, who was also indicted for capital murder. However, the indictment against Watson was dismissed after police decided there was no evidence to corroborate his confession. Other than appellant's confession, the evidence connecting Watson to the crime consisted of testimony that Watson at one point was wearing a shirt with bloodstains on it, and a bank employee's identification of Watson from a line-up as an individual who was with appellant when he attempted to cash Mrs. Chisum's check at the bank. The jury was free to disbelieve appellant's contention that Watson was involved in the murders. Moreover, even if the jury were to have believed that Watson had been involved in some way, there was no evidence that appellant was acting under the domination or direction of Watson. [8] Alexander v. State, 866 S.W.2d 1, 2-3 (Tex.Cr. App.1993), cert. denied, 511 U.S. 1100, 114 S. Ct. 1869, 128 L. Ed. 2d 490 (1994). [9] Article 37.0711 § 2(e) states: The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. [10] Appellant was twenty years old at the time of the murders. [11] At the punishment stage, appellant presented testimony from three death row prison guards and three religious advisors, all of whom asked the jury not to impose the death penalty and testified that appellant was an exceptionally well-behaved, non-threatening prisoner. [12] Appellant's I.Q. has been tested at various times, with scores ranging from 54, which was taken when appellant was nine years old, to a 1994 score of 69. [13] To the extent that appellant asks this Court to balance mitigating and aggravating factors, we note that the Supreme Court has held that the federal constitution does not require a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding. Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S. Ct. 2320, 2330, 101 L. Ed. 2d 155 (1988) (plurality opinion). The Supreme Court has also held that the Eighth Amendment does not require states to assign any specific weight to any particular factors to be considered by the jury, either aggravating or mitigating. Harris v. Alabama, 513 U.S. 504, ___, 115 S. Ct. 1031, 1035, 130 L. Ed. 2d 1004 (1995). It follows that the Texas scheme, which allows the jury to determine the weight of mitigating evidence, is not unconstitutional. [14] If we were to conduct an independent de novo review of the mitigating evidence, the jury's answer to the mitigation special issue would be rendered merely advisory. This approach would conflict with our usual practice of deferring to the jury's findings at the punishment phase of a capital trial. McFarland, supra, at 499. See also Burns v. State, 761 S.W.2d 353, 355-356, n. 4 (Tex.Cr.App.1988). [15] Article 44.251(a) states: The court of criminal appeals shall reform a sentence of death to a sentence of confinement in the institutional division of the Texas Department of Criminal Justice for life if the court finds that there is insufficient evidence to support an affirmative answer to an issue submitted to the jury under ... Section 3(b), Article 37.0711, of this code or a negative answer to an issue submitted to a jury under ... Section 3(e), Article 37.0711, of this code. (Emphasis added). [16] The trial judge instructed the jury panel on February 7 not to read, watch, listen to, or talk about anything regarding appellant's case, outside of hearing the evidence. [17] Appellant is African-American. [18] Appellant filed his motion for change of venue after the jury had been selected. [19] A review of the approximately 66 jury panel questionnaires included in the record shows that 25 indicated either at least slight familiarity with the facts of the case or some exposure to media coverage. [20] Appellant also refers this Court to an editorial cartoon from February 27, 1994. However, this cartoon is not part of the record and cannot be considered in our decision. [21] Appellant gave two confessions following his arrest. The first confession was held to be inadmissible in Bell v. State, 724 S.W.2d 780 (Tex.Cr. App.1986), and was not introduced into evidence during the instant trial. Unless otherwise indicated, any reference to appellant's confession is to appellant's second confession, which was admitted into evidence during this trial and is now the subject of this point of error. [22] During the pretrial suppression hearing at his present trial, appellant relied only on those arguments and objections raised during his prior trial and introduced no additional evidence. [23] Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). [24] At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of ... (3) a person whose presence is shown by a party to be essential to the presentation of his cause[.] [25] For a review of a trial court's decision to disallow testimony from a criminal defendant's witness who has violated Rule 613, see Webb v. State, 766 S.W.2d 236 (Tex.Cr.App.1989). [26] If it is determined that a trial court abused its discretion in allowing the testimony, then there is trial error subject to a harmless error analysis under Tex.R.App.Proc. 81(b)(2). Such error is reversible unless the allowed testimony from the offending witness, as opposed to the witness's presence during other witnesses' testimony, was harmless beyond a reasonable doubt. [27] In addition to advocating a "comparative proportionality review" comparing death sentences in different capital murder cases, appellant also reurges his contention that this Court should engage in a "proportionality review" by weighing aggravating evidence against mitigating evidence in each particular case. See point of error nine, ante, and n. 11, ante. [28] We note that our capital sentencing scheme in Texas currently includes appellate review for rationality of the jury's verdicts regarding guilt-innocence and the "future dangerousness" special issue at punishment. [29] Appellant suggests that this Court "can take judicial notice that at least seven execution dates have been scheduled and later stayed." However, appellant does not point to any place in the record that reflects this information. We decline to take judicial notice of these execution dates and do not include them in our determination of his point of error. [30] We observe that even if appellant had properly preserved these two points of error, they are without merit. Lawton, 913 S.W.2d at 560. [31] We note that the Capital Litigation section of the Texas Attorney General's office exists especially to aid smaller counties in prosecuting capital cases. [32] Appellant does not complain about this particular testimony on appeal. [33] If the jury ... is unable to answer any issue submitted under Subsection (b) or (e) of this section, the court shall sentence the defendant to confinement in the institutional division of the Texas Department of Criminal Justice for life.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1602788/	577 So.2d 372 (1991) David MAY and Donna L. May v. V.F.W. POST # 2539. No. 89-CA-0895. Supreme Court of Mississippi. March 6, 1991. Rufus H. Alldredge, Jr., Franke Rainey & Salloum Firm, Gulfport, for appellant. L. Christopher Breard, Bryant Colingo Williams & Clark, Gulfport, for appellee. Before HAWKINS, P.J., and ROBERTSON and BANKS, JJ. BANKS, Justice, for the Court: INTRODUCTION David and Donna May appeal to this Court from an adverse summary judgment on their claim against one of two defendants. The court below properly granted summary judgment. We affirm on the merits without hesitation. On November 2, 1984, David May and his wife Donna filed a complaint in the Harrison County Circuit Court against Ricky Triplett (Triplett) and VFW Post # 2539 (VFW). They alleged that they were business invitees attending a VFW-sponsored dance on September 1, 1984, when without warning or provocation, Triplett attacked David resulting in severe injuries to David. They further alleged that at the time of this incident, Triplett was an employee of the VFW, acting within the course and scope of his employment. Therefore, according to the Mays, VFW was negligent in the following respects: A. failing to exercise reasonable care for the safety of patrons on its premises; 373 B. failing to provide adequate security for the protection of its patrons; C. failing to prevent ... Triplett from attacking [May] when ... VFW knew, or in exercise of reasonable care, should have known, of the violent propensities of Triplett; and D. failing to provide adequate supervision of its security personnel. In their separate answers, VFW denied all allegations while Triplett denied some and admitted others. Affirmatively Triplett asserted that David was the culprit who attacked him without provocation or warning. In the following weeks the VFW propounded a set of interrogatories. After David May submitted his answers, VFW filed, on April 24, 1985, a Motion to Dismiss or Alternatively for Summary Judgment. Attached to this Motion was the affidavit of Clifford Horn, the Post Commander for the VFW. Horn asserted that Triplett was employed as a janitor during this time period. On the night in question, however, he was "not on duty and had no responsibility whatsoever to the VFW ... other than that expected of the general public." Moreover, the dance held on that night was not "organized, promoted, or encouraged in any way by the VFW ... but rather, the main hall area was donated to the organizers of the `benefit' for the stated purpose of underwriting certain medical expenses of a family member of the host and member of the community." The VFW received no revenue from the event other than incidental sales for drinks and ice to those attending the benefit according to Horn. Horn also denied that Triplett was a security guard. The trial court denied VFW's motion for Summary Judgment on July 10, 1985, and discovery continued. After completion of discovery, VFW filed its renewed motion for summary judgment on March 28, 1988; a hearing was held on this motion on April 4, 1989; and on June 7, 1989, the trial judge submitted his findings of fact and granted the summary judgment motion. An amended final order was entered on June 26, 1989, and, thereupon, the Mays filed their notice of appeal to this Court. Facts The facts revealed through discovery dictated the trial court's conclusion. On Labor Day, September 1, 1984, David and Donna May attended a "charitable benefit dance" at the VFW. The VFW had donated the hall to the organizers of the event for the purpose of raising money for a member of the community. The VFW neither sponsored nor organized the charitable event in any manner. Moreover, it did not have any control over the function except that a $50 deposit would not be returned to the organizers if they failed to clean-up the hall after the event. The sponsor, Dorothy Alexander, was responsible for the advertisement of the event, the entertainment and the security. During the event the VFW sold alcoholic and non-alcoholic beverages and ice to those attending. Near the end of the dance an altercation occurred between David May and Triplett. At the time of this altercation, Triplett was not on duty and had no responsibilities that night. He was not scheduled to clean up after this function because the sponsors were to clean up. According to Triplett, even when he was scheduled to clean up after a function, he would clean up early the following morning but never immediately following the function. In another portion of his deposition, however, Triplett did state that: "I'd clean up [the VFW] at night, like when the bar closed at ten, I clean up, and then I'd go home... ." Aside from any inference to be drawn from this statement, there was no dispute that on the night in question, he was present only as a customer. Triplett testified that he went to the VFW sometime after 11:30 p.m. He did not pay the admission fee to the dance, but he went into the bar, which is open to the public. "You don't have to pay to go into the bar." While in the bar, Triplett shot a game of pool and he "may have drank [sic] two beers or three beers." Jerry Weaver was the bartender/manager that night. According to Weaver, while Triplett was at the bar, he did not appear to be intoxicated. In the time that Weaver worked there, the 374 fight between Triplett and May was the first that occurred at the VFW. Moreover, according to Horn, no one at VFW had any difficulty with Triplett following instructions or was aware of Triplett having been in previous fights at the VFW or elsewhere. Prior to the altercation at the VFW, May and Triplett had been in a fracas some seven years previously. The parties' versions of that incident, like the one in the case sub judice, differed. Since that first encounter, Triplett and May had seen each other and even waved to each other and said "hello." According to Triplett, he had never really been in a fight before. He argued with another student in high school. Between the time he quit high school around 1975, and the time of this incident, he had one fight with his brother at home. He has never been involved in another fight or in any problems at a VFW. This testimony was undisputed. On the night of the incident, May and Triplett were in their mid-twenties. The hostility between the two resurfaced at the affair at the VFW. Who assaulted whom first is in dispute. What is not in dispute is that their differences had nothing to do with any of Triplett's duties with the VFW. May, when asked in his deposition what the VFW could have done to protect him that night, said, "I don't know." He continued, "You might've [sic] had more security guards there because it was a pretty big crowd for one man." According to Weaver, however, there were two security persons, who were also deputy sheriffs. One was in uniform and the other was in plain clothes. At least one of these guards was involved in breaking up the fight. Upon this evidence and after the hearing on the summary judgment motion, the trial court made the following findings: The moving force which caused the injury to Plaintiff was not a defect in the premises as such but was the independent act of another patron (Triplett). This is not to imply that a dangerous condition cannot consist of the unruly acts of an individual under specific circumstances, but there must be more to establish the knowledge of the owner than pure surmise speculation and conjecture. In this case, there is no evidence to support the argument that Triplett had known propensities to act in such a manner, as he apparently acted unprovoked. To hold a premises owner liable under these circumstances would be unconscionable and would establish the owner an insurer of the safety of all invitees, which is not the law of this State. It was argued that Triplett's status as a part-time employee created liability, yet there is no support that he was within the scope of this employment or acting as an agent or representative of the VFW. Therefore, based upon the spontaneous act of Triplett, the status enjoyed by David and Donna May in relationship to the VFW, and the VFW's lack of knowledge of any erratic propensities of Triplett, the inevitable conclusion is that there is no basis for establishing a causal relationship between the injury to the Plaintiff and the VFW... . ISSUES 1. Jurisdiction This Court is duty bound to take cognizance of its own jurisdiction or lack thereof. Although David and Donna May filed a claim against both VFW and Triplett, this appeal arose subsequent to the trial court's entry of summary judgment in favor of only one of the defendants, VFW. Accordingly, this appeal is governed by Miss.R. Civ.P. 54(b) which states: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. Miss.R.Civ.P. 54(b) (emphasis added). The purpose of Rule 54(b) is to "prevent piecemeal appeals in cases which should be 375 reviewed only as single units." Id. at 10. Additionally, the rule "allows judges to efficiently and fairly resolve separable claims before protracted litigation is finally resolved." Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss. 1987). Here, following entry of an order granting summary judgment, plaintiffs made an attempt at compliance with the Rule. They filed a motion for entry of an amended order to include the sentence: "This order is a final judgment as provided by Miss.R. Civ.P. 54." After entry of the amended order, plaintiffs moved for a continuance. As grounds for the relief sought, plaintiffs stated that Triplett was impecunious and that it would be unfair to require them to incur the expense of trial before determining whether they had a claim against a defendant with the ability to pay. The motion was granted. The wording of the amended order falls far short of what is required as can be readily seen from our discussion of the issue in Cox, supra, 512 So.2d at 899-900. The Court must determine "that there is no just reason for delay" and so state. Moreover, [w]hile we will not require a trial court to set forth specific reasons and findings prefatory to entering a Rule 54(b) judgment, we will look with disfavor on such judgment. Indeed, unless the reason the judgment was granted is clear from the record, we will not search for a justification, but will vacate the appeal. Cox, supra, 512 So.2d at 901. We will entertain this appeal only because the record is clear that Triplett, the remaining defendant, is alleged to be impecunious and we assume that by responding favorably to plaintiff's motion for continuance, the trial court so found. To require a trial on the separate claim against Triplett before an appeal is heard on the present issue does not serve the interests of justice and fails to use efficiently our judicial resources. We will, therefore, treat the trial court's entry of the amended order as a determination that there is no just reason for delay. See, First United Bank v. Philmont Corp., 533 So.2d 449, 453 (Miss. 1988). 2. Did the Trial Court Err in Granting Summary Judgment in Favor of the VFW? A. Was VFW Negligent? Because May brought a negligence claim against the VFW, he had to prove by a preponderance of the evidence: duty, breach of duty, proximate cause and damages. Foster v. Bass, 575 So.2d 967, 972 (Miss. 1990); Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354 (Miss. 1990); Phillips v. Hull, 516 So.2d 488, 491-92 (Miss. 1987). "Only when the first two items are shown is it possible to proceed to a consideration of proximate cause since a duty and breach of that duty are essential to a finding of negligence under the traditional and accepted formula." Foster, 575 So.2d at 972. At the hearing on the summary judgment motion and in its brief on appeal, the VFW relies appropriately on Grisham v. John Q. Long VFW Post, No. 4057, Inc., 519 So.2d 413 (1988), in arguing that its duty was limited at most to exercising reasonable care to protect May and the other party goers from reasonably foreseeable injury at the hands of other patrons. In Grisham, two ex-wives of the same man attended a dance at a VFW Post in Tupelo. The post sold beer and allowed patrons to bring their own spirits. As one of the women, Mabeline, exited the post, the other ex-wife, Hazel, standing outside of the door, struck her with a bottle enclosed in a paper bag. 519 So.2d at 414. A member of the band that was playing that night went to Mabeline's aid. The VFW officials then were informed of the matter, but responded that they were "too tied up to come out." Id. Subsequently, she filed suit against the VFW alleging that it was negligent for, inter alia, failing to keep the premises in a reasonably safe condition; failing to provide security personnel to protect guests from physical harm; failing to supervise and regulate the conduct of and activities so as to protect guests from physical harm; failing to assist her when members 376 were informed of her injury; failing to exercise ordinary care in the discharge of its responsibilities to prevent and protect patrons from such incidents; and allowing an atmosphere of violence to exist or develop on its premises. Id. at 414-15. The trial court entered a summary judgment order in the VFW's favor. This Court affirmed. Noting that the VFW was not an insurer of Mabeline's safety, this Court held that the limit of VFW's duty was to exercise reasonable care to protect Mabeline from reasonably foreseeable injury at the hands of another. Id. at 419 (emphasis added). Kelly v. Retzer and Retzer, 417 So.2d 556 (Miss. 1982)[1] More particularly, an owner may be liable for the acts of a third person only when he has cause to anticipate the wrongful or negligent act. Grisham, 519 So.2d at 417.[2] "The requisite `cause to anticipate' the assault may arise from 1) actual or constructive knowledge of the assailant's violent nature, or 2) actual or constructive knowledge that an atmosphere of violence exists [on or about the premises.]" Id. at 416-17. Nothing in the record demonstrates that the VFW could have been alerted to Triplett's impending actions. While he was at the bar, he did not appear to be drunk or boisterous. He only drank beer and shot pool and played other amusement games. The record does not support a conclusion that the VFW was the local "bar room brawl" type of establishment. See, e.g. Allen v. Babrab, Inc., 438 So.2d 356, 357 (Fla. 1983) (club had a history of fighting and other disturbances). Nonetheless, the VFW required the sponsors of the benefit to provide security. Consequently, the sponsors provided two security guards, and at least one of the guards broke up the fight between Triplett and May immediately. Furthermore, although May has insisted that the VFW was negligent in failing to provide adequate security, he failed to make a showing that an increased number of security guards would have prevented the attack. Grisham, 519 So.2d at 417. The fact that the attack or altercation happened in a quick and unexpected manner also strikes against May's assertion that the VFW was negligent. The actors both agree that the altercation occurred quickly. As a matter of fact, May explained: ... I felt somebody tap me on the shoulder, and said, do you remember the 7-11, and I leaned forward in my chair like that and turned around to see who it was, and that's when I saw him hit me and that's the last thing I remember because I went out. * * * * * * ... I didn't even get a chance to stand up or nothing. Supp.Vol. I, T. 23, 24. In Kelly, although this Court relied on the decedent's voluntary intervention into the affray in determining that the defendants could not be liable for his death on its premises, we noted that the encounter was "sudden and spontaneous." 417 So.2d at 561. Other courts similarly have considered this criterion in determining whether a defendant could be held liable for the actions of a third-party against one of its patrons. See, e.g., Papadimas v. Mykonos Lounge, 439 N.W.2d 280, 283 (Mich. App. 1989) (summary judgment appropriate because the "incident ... occurred suddenly, unexpectedly, and to the complete surprise of the witnesses."); Delgado v. Laboucherie, Inc., 508 So.2d 956, 957-958 (La. App. 1987) ("incident occurred very quickly, and that there was nothing that could have been done to prevent it * * * attack on 377 plaintiff was sudden and could not have been reasonably prevented by defendants or their employees ... [S]cuffle broke out quickly"); White v. HA, Inc. 782 P.2d 1125, 1131 (Wyo. 1989) (plaintiff "failed to make even the threshold showing that [defendant] was placed on notice of impending danger to him."). Because of the spontaneity of the event in question, it is inconceivable that the VFW reasonably could have protected May from Triplett's attack. From this evidence it is apparent that May has failed to establish a breach of the premises owner's duty to exercise reasonable care to protect May from reasonably foreseeable injury. B. Is the VFW liable because Triplett was an employee? May erroneously relies on several cases and insists that the VFW must be liable because Triplett was an employee, and he may have been at the benefit to perform his job. May asserts that because Triplett had cleaned up the hall on prior occasions on the night after an event that he may have come to do the same on this night. All of the evidence indicates otherwise. Triplett testified that he never cleaned up the dance hall at night immediately after a dance, but he did so the following morning. His other testimony revealed that he was not on call to clean up the hall on that night. Moreover, he never really had to clean up the area after a group had used the facilities because "[e]verybody always cleaned up after themselves." Moreover, even if Triplett was present to clean up the area, it does not follow the VFW would be liable. In Odier v. Sumrall, 353 So.2d 1370, 1372 (Miss. 1978), this Court discussed the liability of an employer for his employee's actions: It is of course established that the master is responsible for the torts of his servant only when they are committed within the scope of his employment. The test used in determining whether an employee's tortious act is within the scope of his employment is whether it was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master's business ... This Court again elaborated on these points in Seedkem South, Inc. v. Lee, stating that: [t]he test of the employer's liability for the act of an employee who departs from the employer's business for purposes of his own is whether he was engaged in his employer's business at the time of the accident, and not whether he purposed [sic] to resume it. The employee is, so long as he is engaged in affairs of his own or in pursuing some purpose unrelated to his master's business, acting as much outside the scope of his employment as he would be were his working day ended, or his task completed, and thus his employer is relieved from liability for the consequence of any tortious conduct committed by the employee during that period, however short it may be... . 391 So.2d 990, 995 (Miss. 1980) (citation omitted) (emphasis in original). Obviously, Triplett's fight with an adversary from years ago was not within the scope of his employment as a janitor. There is nothing whatsoever to suggest that his altercation with May was in anyway in furtherance of VFW's business. As the VFW asserts in its brief, "Triplett's presence at the V.F.W. hall on the night of the altercation was no different than that of the `bag boy' at the local Kroger who goes back to the grocery store after working hours to buy groceries and ends up in a fight with another customer in the frozen food section." C. Was Summary Judgment appropriate? This Court has reiterated the law of summary judgment in a litany of cases. In determining whether the trial court was proper in granting a motion for summary judgment, we conduct de novo review. The law governing the grant or denial of a motion for summary judgment is well established. The evidence must be viewed in the light most favorable to the party 378 against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied. In evaluating the evidence that was before the trial court, there can be but one conclusion. The V.F.W. was not negligent. It had no knowledge of what was to happen. Triplett never had exhibited a propensity for violence. He was not intoxicated. He showed no violent intentions or behavior prior to the incident. Moreover, the fight occurred in such a quick manner, the V.F.W. could not have done anything to prevent it. In addition, the security personnel acted promptly in breaking up the fight. See, Grisham, 519 So.2d at 417. Reviewing the evidence de novo, this Court must come to the same conclusion as the trial court. Based on the foregoing, we affirm. AFFIRMED. ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and McRAE, JJ., concur. NOTES [1] Although Kelly, involved the killing of a person in the parking lot of a McDonald's Restaurant, and the case sub judice involves the selling of alcoholic beverages, the distinction is inconsequential. In Kelly as in Grisham, this Court maintained that the duty owed to patrons is the same. That is, the owner must exercise reasonable care for the safety of his patrons. Kelly, 417 So.2d at 560. [2] May makes the disingenuous argument that Grisham's holding is limited because it controls the owner's duty to protect patrons from other patrons. This, however, can not be the case because the duty is to the patron no matter who is the third-party tortfeasor. "This duty arose out of the relationship between Mabeline and the V.F.W." Grisham, 519 So.2d at 417 (emphasis added).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2525709/	961 N.E.2d 1047 (2012) ADKINS v. STATE. No. 49A02-1107-CR-626. Court of Appeals of Indiana. February 3, 2012. CRONE, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. MAY, J., concurs. BROWN, J., concurs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1675167/	629 So.2d 932 (1993) STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Ida FINKELSTEIN, Alice Fox, and Tenneco Oil Company a/k/a TOC Retail, Inc., Appellees. No. 92-2501. District Court of Appeal of Florida, Fourth District. December 8, 1993. Rehearing Denied and Question Certified February 8, 1994. Thornton J. Williams, Gen. Counsel, and Gregory G. Costas, Asst. Gen. Counsel, Dept. of Transp., Tallahassee, for appellants. Charles M. Phillips, Jr., Dunedin, for appellees. JAMES C. DOWNEY, Senior Judge. This is a plenary appeal by the Florida Department of Transportation (DOT) from a final judgment in an eminent domain proceeding arising out of the construction of Interstate I-595 in Broward County. The Appellees, Ida Finkelstein and Alice Fox, were the fee simple title holders and Appellee, Tenneco Oil Company, a/k/a TOC Retail, Inc. (Tenneco), is the lessee of the property in question, parcel 269. The DOT filed a petition to condemn parcel 269 and other parcels, not involved herein, in March 1990, together with a declaration of taking which was subsequently amended, stating the appraised value of the property taken as $642,650.00. After a hearing on May 1, 1990, the court entered an order of taking in accordance with the motion and title passed to the DOT. The appellees answered in May and June of 1990 and the matter lay dormant, pleading-wise, until April 3, 1992, when a pretrial order setting the matter for trial was filed. 933 On June 12, 1992, the DOT filed a motion in limine alleging that the property in question was contaminated with petroleum hydrocarbon. The motion alleged the said conditions had required emergency decontamination necessitating that the DOT "conduct emergency clean-up operations through the State's Office of Environment in order to remediate the contamination of parcel 269, prior to construction." The motion advised the court that the parties were aware "that the subject property is an E.D.I. (Early Detection Incentive) site which qualifies for federal funding for the clean-up of the contamination." It was further alleged that the cost of clean-up and reimbursement was unknown at that time and would probably not be known for a year or more, but in any event, under Florida law, Tenneco should bear the responsibility for the reasonable clean-up cost. Furthermore, DOT asserted that "a buyer in the market would take into consideration the contamination issue in determining the value of the property to be purchased." It was therefore contended by DOT that in the absence of an agreement from Tenneco to assume responsibility for such costs, the introduction of evidence of the contamination and cost incurred to clean-up the property are relevant to the valuation process.[1] Tenneco argued that the motion should be denied because the proof sought to be introduced was irrelevant to the issue of value. DOT responded that all facts and circumstances are relevant which bear a reasonable relationship to and have an effect upon the value of the property in the mind of a buyer. The trial court denied the motion in limine and prior to the beginning of the actual trial, DOT made a proffer of its evidence having to do with the contamination and remediation of the property and its effect on the valuation thereof. Tenneco objected to the admission of the proffer and the objection was sustained. The case was tried as though the property was uncontaminated, which all concede was not the true factual situation, and the experts testified to the value as though it were uncontaminated. Consistent with that theory, all of the experts' comparable properties were uncontaminated properties. Since the parties had agreed on the value of the improvements on the property, the only question presented for the jury's determination was the value of the land as though it was unimproved. The trial was held in June 1992 while the taking occurred May 1, 1990. Nevertheless, in making its determination, the jury was never apprised of the fact that on May 1, 1990, the critical value date, the property was contaminated. As a result, the owners' experts' valuation of the land was $567,000 which together with the improvements of $350,000, resulted in a total valuation of $917,000. DOT's expert evaluated the land as worth $300,000 which added to the value of the improvements, amounted to a value of $650,0000. The jury found in favor of the property owners valuing the land at $525,000 making a total award of $875,000. The issue presented on this appeal is whether the trial court erred in its rulings on the motion in limine and the DOT's proffer of evidence to show the condition of the property on the date of taking which required the case to be tried as though the parcel was uncontaminated. We believe a reversal of the judgment appealed from and a remand for a new trial is required because the case was not properly tried under Florida law. It was tried, not by stipulation, but rather over DOT's objection, on an alleged factual basis which was known to be untrue. This is not to suggest that any fraud occurred, but rather that the trial proceeded upon an improper conception of the law. In condemnation cases, the value of the property being taken is determined as of the date of taking or the date of trial, whichever occurs first. § 73.071(2), Fla. Stat. (1989). If the property involved possesses 934 some characteristic affecting its value on the date of taking, how can it be said that such a characteristic is irrelevant as Tenneco claimed and the court ruled below? On the contrary, the trier of fact should consider any factor which impacts upon the market value of the property and is a proper basis for the expert's consideration. Florida Power & Light Co. v. Jennings, 518 So.2d 895, 899 (Fla. 1987). DOT sought to adduce proof that contamination and remediation of the property was a valid factor to be considered by the experts in determining the value of the property on May 1, 1990. Its expert supported that theory at the time of the proffer. Though Tenneco adduced no proof in that regard, its counsel stated, in opposition to the proffer, that it was irrelevant evidence and that his proof would show that was not a factor affecting the value of the property. We reject that argument, but in any event, if issue could be joined on that question it would be for the trier of fact to decide. In a fairly similar case, Redevelopment Agency v. Thrifty Oil Company, 4 Cal. App. 4th 469, 5 Cal. Rptr.2d 687 (1992), the agency sought to condemn property owned by Thrifty, an operating gasoline station. One of the main issues involved was the effect of the contamination of the property on the value thereof. Thrifty, as Tenneco did here, contended the contamination was not relevant. That argument was overruled and evidence was adduced as to the value of the property based on several approaches to value. All of the experts considered the contamination and remediation in arriving at the fair market value of the property and the appellate court affirmed the trial court's ruling. By way of footnote, in referring to the question of contamination and remediation, the court said: "As a characteristic of the property which would affect its value the remediation issue was properly before the trier of fact." Id. 5 Cal. Rptr.2d at 689. Having established that the contamination and cost of rectifying that condition was relevant evidence to be considered by the jury, we would point out that the mere cost of remediation is not the sole effect of contamination. In our judgment, the mere fact that the property is, or has been contaminated, may have a direct bearing upon the value of the property in the marketplace. Apropos of that consideration, we look to the case of Florida Power & Light Co. v. Jennings, 518 So.2d 895 (Fla. 1987), wherein the Supreme Court of Florida reviewed a condemnation judgment in favor of the property owner which involved the admissibility of evidence of the public's fear of high voltage electric transmission lines as they affect the market value of the remaining property. The court held: In conclusion, we hold that any factor, including public fear, which impacts on the market value of land taken for a public purpose may be considered to explain the basis for an expert's valuation opinion. Whether this fear is objectively reasonable is irrelevant to the issue of full compensation in an eminent domain proceeding. Id. at 899. Jennings teaches that characteristics of the condemned property are the things of which a real estate expert's opinion is made. They are the factors which influence a purchaser in determining how much to pay for a piece of property. Some of those characteristics are fear generated by high voltage electric transmission lines, contamination of property by gasoline hydrocarbon, and toxic waste of all kinds. Thus, the evidence which DOT attempted to offer relative to the contamination of the property and the cost of remediation was relevant to the value of the property on the date of taking, but it was also relevant regarding the effect which the stigma of contamination would have on its market value in the mind of the buying public. DOT's experts were prepared to offer evidence that the opinion of an interested buyer would be affected by the fact that the property had suffered contamination, as well as its present condition. The only question remaining is how the cost of remediation should be handled vis-a-vis the parties in view of the fact that there exists a governmental program which reimburses an owner who incurs the expense of remediating contaminated property that qualifies under the E.D.I. program. The record is somewhat vague regarding the status of the property with regard to the contamination and remediation at the time of *935 trial. As best we can determine, it appears that the property was unquestionably contaminated by gasoline hydrocarbonation on the day of taking. However, the record reflects that there exists the aforementioned program sponsored by the State Department of Environmental Affairs, which reimburses certain qualifying properties for remediation of contamination. In fact, it appears the owners had already commenced a remediation program when DOT took possession of the property. In view of their road building project, DOT was anxious to have the remediation completed so it proceeded with the cleansing work. How long it took and what was the reasonable cost thereof, is unknown on this record. In all probability, the remediation is completed and all of the factors necessary to render an equitable distribution of any governmental award are now available. Therefore, in a retrial of the case, those relevant characteristics of the property will be available for the jury's determination in fixing the fair market value of the property, including the remediation costs and the effects of contamination on the valuation. Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial in accordance with this opinion. REVERSED AND REMANDED. GUNTHER and FARMER, JJ., concur. NOTES [1] This argument seems to be supported by paragraph 8 of the Order of Taking entered May 1, 1990 which stated: Defendants will be responsible for and hold the State of Florida Department of Transportation harmless from any claims for environmental damages associated with any contaminants, including petroleum products, determined to be present or released, including by way of leak, discharge or seepage from the subject property while Defendants were in possession.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2586770/	240 P.3d 14 (2010) 2010-NMCERT-003 STATE v. ICKSTADT. No. 32,216. Supreme Court of New Mexico. March 10, 2010. Denials of Certiorari.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2588903/	42 N.Y.2d 104 (1977) State of New York, Appellant-Respondent, v. Princess Prestige Co., Inc., et al., Respondents-Appellants. Court of Appeals of the State of New York. Argued May 4, 1977. Decided June 14, 1977. Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Samuel A. Hirshowitz and James A. Neuberger of counsel), for appellant-respondent. Noel W. Hauser for respondents-appellants. Chief Judge BREITEL and Judges JASEN, GABRIELLI, WACHTLER, FUCHSBERG and COOKE concur. 106JONES, J. The disposition of the cross appeals in this case turns on the right of the Attorney-General, under subdivision 12 of section 63 of the Executive Law, to injunctive relief to prevent future violations of the Home Solicitation Sales Act (Personal Property Law, art 10-A) and to retrospective relief with regard to past violations. The Attorney-General instituted the present proceedings with allegations that the corporate respondent (whose management and policies were controlled by the individual respondent) was engaged in the business of selling housewares and electronic equipment through personal solicitation at the homes of prospective buyers on a deferred-payment basis within the ambit of the Home Solicitation Sales Act. The core charge was that respondents had committed repeated illegal acts in that they had not afforded their customers the cooling-off period and the right of cancellation required by the statute (Personal Property Law, § 428). There followed respondents' answer and the reply of the Attorney-General. Based on the pleadings and the affidavits and exhibits attached thereto, 107 Special Term granted prospective relief by way of an injunction against future violations and retrospective relief with regard to sales between September 1, 1970 and the date of the order by directing respondents to afford the buyers in such sales an opportunity to cancel their purchases. The Appellate Division affirmed the grant of prospective injunctive relief but held that there was no authority under subdivision 12 of section 63 to support the grant of retrospective relief. As to respondents' appeal, we are satisfied that there should be an affirmance. The record established that respondents by their conduct failed to comply with the statutory requirements as to home solicitation sales. This conclusion is not vitiated by the fact that the proceeding was initiated on the basis of 16 complaints out of what respondents tell us were some 3,600 transactions. Nor is it a defense that there were some cancellations and a few refunds in each of 1973, 1974 and 1975. No admissible proof is tendered that cancellation cards were regularly given to each purchaser as mandated by the statute. While the authority of the Attorney-General is restricted to seeking injunctive relief against repeated illegal or fraudulent acts, he is not required to establish a large percentage of violations. (Cf. Matter of Lefkowitz v E. F. G. Baby Prods. Co., 40 AD2d 364; Matter of People v Compact Assoc., 22 AD2d 129, affd 17 N.Y.2d 758.) Nor is there any substance to respondents' contention that the Home Solicitation Sales Act was "in a state of suspension" and thus afforded no predicate for the present proceeding. Their argument is grounded on section 426 (subd 2, par [b]) of the Personal Property Law which provided that the term "home solicitation sale" does not include a transaction "in which the buyer has a right of cancellation pursuant to federal law". The Federal Trade Commission Act, to which the argument appears to refer, while vesting enforcement authority in the commission, does not purport to create or authorize any private right of cancellation (cf. Holloway v Bristol-Meyers Corp., 485 F.2d 986; Alfred Dunhill, Ltd. v Interstate Cigar Co., 499 F.2d 232, 237). Additionally the Federal rule on which respondents would rely states explicitly that it is not intended to pre-empt State regulation (Federal Trade Commission, Trade Regulation Rules, Part 429 Cooling-Off Period for Door-to-Door Sales [promulgated Oct. 18, 1972, eff June 7, 1974], 16 CFR 429.1, n 2; cf. Federal Trade Commission Advisory Opinion, May 20, 1976, 44 USLW 2550). 108Finally there is no merit to respondents' other claims. No defense is available under subdivision (b) of section 349 of the General Business Law, inasmuch as this is not a proceeding under article 22-A of that law. The Statute of Limitations set forth in CPLR 215 is no obstacle to the present proceeding (State of New York v Cortelle Corp., 38 N.Y.2d 83). In the state of this record respondents were not entitled to an evidentiary hearing and the provision by Special Term for referee's hearings to determine the rights of individual consumers to cancellation and refund, contrary to respondents' assertions, were not to provide the basis for the relief granted the Attorney-General. On the appeal by the Attorney-General the order of the Appellate Division should be modified. In our view the authority to "direct restitution" should be read in the present context to embrace as well authority to order respondents to take affirmative action necessarily preliminary to establishment of the consumers' rights to restitution to give notice of that right and thus in practical effect to implement restitution. It would obviously have been inappropriate to order across-the-board restitution inasmuch as many or even most of respondents' customers may prefer not to cancel their purchases. Special Term required that respondents advise their customers that they had a right to cancel at their election. The conclusion of the Appellate Division, however, that this provision of the order of Special Term was beyond the purview of subdivision 12 of section 63 was erroneous. An application by the Attorney-General for remedial orders under subdivision 12 of section 63 is addressed to the sound judicial discretion of the court. On the record before us we cannot say either that it was an abuse of discretion as a matter of law for Special Term to have granted the relief which it did, or that, as a matter of law, the Attorney-General was entitled in the circumstances of this case to the order that he sought. A definitive disposition in our court could only be predicated on one or the other of such alternatives. The case should therefore go back to the Appellate Division for its review of the grant of retrospective relief as an exercise of discretion by Special Term. Accordingly, in sum, the order of the Appellate Division should be modified, with costs to the State, to the extent of remitting the case to the Appellate Division to review the directions contained in the order of Special Term with respect 109 to transactions since September 1, 1970 and prior to the date of that order, and as so modified, affirmed. Order modified, with costs to the State, and the matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3099169/	Order entered August 23, 2013 In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01085-CV MOMENTIS U.S. CORPORATION, ET AL., Appellants V. PERISSOS HOLDINGS, INC. ET AL., Appellees On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-03025-M ORDER The Court has before it appellants’ August 21, 2013 emergency motion to stay and appellees’ August 21, 2013 response to that motion. The Court GRANTS the motion and STAYS all proceedings in the trial court. This stay shall remain in effect until further order of this Court. /s/ ELIZABETH LANG-MIERS JUSTICE	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2587658/	12 N.Y.2d 276 (1963) William V. Bradley, as President of International Longshoremen's Association, et al., Appellants, v. Waterfront Commission of New York Harbor et al., Respondents. Court of Appeals of the State of New York. Argued January 22, 1963. Decided February 28, 1963. Osmond K. Fraenkel and Harold Krieger for appellants. Irving Malchman and William P. Sirignano for respondents. Chief Judge DESMOND and Judges DYE, BURKE, FOSTER and SCILEPPI concur with Judge FULD; Judge VAN VOORHIS dissents and votes to modify in an opinion. 278FULD, J. The Waterfront Commission Act became law in 1953. Its section 8 was thereafter challenged as invalid on grounds that the subject matter had been pre-empted by Federal legislation and that it violated the due process clause of the Fourteenth Amendment. Both this court and the United States Supreme Court, rejecting those arguments, upheld the section as constitutional. (De Veau v. Braisted, 363 U.S. 144, affg. 5 N Y 2d 236.) Some short time later, the Waterfront Commission concluded, on the basis of facts adduced at hearings which it conducted, that the provisions of the statute designed to eliminate the evils infesting the waterfront were being circumvented. It recommended corrective legislation and in 1961 the Legislature amended section 8 in order to remedy the situation (Waterfront Commission Act, §§ 8, 8-a, as amd. by L. 1961, ch. 211). The present action was brought by the International Longshoremen's Association (I. L. A.) and four individuals, suing on behalf of themselves and others similarly situated, for a declaratory judgment that several of the amendments are unconstitutional. The courts below held them valid and we agree with that determination; indeed, we consider such a result virtually dictated by the decision in the De Veau case. As originally enacted in 1953, section 8 prohibited the collection of any dues for or on behalf of any labor organization representing waterfront workers registered or licensed by the commission if any of its officers or agents had been convicted of a felony. The amendments enacted in 1961 extended the prohibition to any labor organization "which derives its charter from a labor organization" representing 100 or more employees registered or licensed by the Waterfront Commission "if any officer, agent or employee of such labor organization, or of a welfare fund or trust administered * * by such labor organization * * , has been convicted * * of a felony, any misdemeanor involving moral turpitude", or of any of a 279 number of specifically enumerated crimes. (Italics represent new matter.)[1] The claim of pre-emption based on sections 1 and 7 of the National Labor Relations Act (guaranteeing the right of employees "to bargain collectively through representatives of their own choosing") and section 504, subdivision (a), of the Labor-Management Reporting and Disclosure Act of 1959 (disabling persons convicted of certain felonies from serving in positions of influence in labor unions) is the same as that advanced when the statute in its original form was before the courts and what was then said in disposing of the contention is equally pertinent and decisive here. We take up first the claim that the provision of the National Labor Relations Act pre-empts the 1961 amendments. Two of them were enacted to plug loopholes found to exist in the 1953 legislation. It appeared that the provision aimed at prohibiting convicted felons from holding influential positions in waterfront unions was being circumvented either by giving them jobs as "employees", instead of continuing them as "officers" and "agents", or by shifting them to non-waterfront locals chartered by the I. L. A. Quite obviously, if the statute as it originally stood was not pre-empted, these provisions designed to prevent an evasion of them were not. The third amendment simply expanded section 8 so as to render it applicable to persons convicted of "moral turpitude" misdemeanors in addition to "felonies". Section 8 of the New Jersey Waterfront Commission Act contained this precise provision and Congress was not only aware of this when it gave its consent to the bi-State compact but it knew that its "approval of the compact * * would carry with it sanction of § 8" as passed by the New Jersey Legislature. (De Veau v. Braisted, 363 U.S. 144, 151, supra.) From all this, it seems clear that this claim of pre-emption is without basis. The course taken by Congress reflects no purpose 280 to pre-empt the State regulation contained in section 8 either in its original or amended form. With respect to the claim of pre-emption based on enactment of the Labor-Management Reporting and Disclosure Act of 1959, we need but refer to the Supreme Court's rejection of that argument in De Veau: "When Congress meant pre-emption to flow from the 1959 Act it expressly so provided. * * No such pre-emption provision was provided in connection with § 504(a). That alone is sufficient reason for not deciding that § 504(a) pre-empts § 8 of the Waterfront Commission Act. * * * And to make the matter conclusive, § 603(a) is an express disclaimer of pre-emption of state laws regulating the responsibilities of union officials" (363 U. S., at pp. 156-157). Nor is there merit to the objections urged by the plaintiffs on due process grounds. Barring convicted "felons" from serving as officers or agents of waterfront unions was recognized in the De Veau case as "a reasonable means for achieving a legitimate state aim, namely, eliminating corruption on the waterfront" (363 U. S., at p. 157). Since the amendatory legislation here challenged including that which extended the section's application to any person (whether union officer, agent or employee) convicted of a "misdemeanor involving moral turpitude"[2] did no more than effect such changes as were deemed necessary to achieve the original objectives of the statute, there is no warrant for the charge that the statute in its modified form offends against due process. The judgment appealed from should be affirmed, with costs. VAN VOORHIS, J. (dissenting). My view of this appeal is that which is taken by counsel to the Waterfront Commission of New York Harbor, viz., that with the exception of the extension of the Waterfront Commission Act to cover employees who have been convicted of felonies, the constitutional objections to section 8 as amended by chapter 211 of the Laws of 1961 are entirely 281 hypothetical. In this respect the Waterfront Commission's brief states as follows: "Section 8, as amended, is a statute with numerous aspects affecting persons in many different situations. Some persons will be affected by the 1961 amendments because they are employees; some because they have been convicted of misdemeanors involving moral turpitude; and some because they are connected with so-called uncovered locals. What plaintiffs herein seek to do is to present almost every constitutional question that may possibly arise under Section 8, as amended, whether or not involving persons actually before the Court and indeed whether or not involving persons who actually exist. "This blunderbuss attack upon Section 8, as amended, is contrary to every tenet of constitutional adjudication. For the courts will not decide constitutional questions in advance of the strictest necessity. Peters v. New York City Housing Authority, 307 N.Y. 519. It follows as a corollary that `constitutional questions are not to be decided hypothetically' and that this Court is `called upon to decide only the constitutional impact upon the statute as applied to the facts of this case.' People v. Merolla, 9 N.Y.2d 62, 68-69. In addition to these settled principles, there are two separability clauses that are applicable here (supra, pp. 6-7) and these require in effect that the constitutionality of Section 8, as amended, be adjudged only with respect to the facts actually put into issue herein by real persons properly before the Court." The absence of controversy shown by facts in the record before the court seems to me to offend against the principle also that jurisdiction is not entertained to render declaratory judgments in the absence of specific controversy that has actually arisen (Civ. Prac. Act, § 473; Rules Civ. Prac., rule 212; Red Robin Stores v. Rose, 274 A.D. 462, 466-469; Reed v. Littleton, 249 A.D. 310, 312; Leonard v. John Hancock Mut. Life Ins. Co., 281 A.D. 859; Standardbred Owners Assn. v. Yonkers Raceway, 1 A D 2d 882). Courts do not give advisory opinions unless a justiciable issue has been presented (Matter of State Ind. Comm., 224 N.Y. 13, 16; New Jersey v. Sargent, 269 U.S. 328). With the exception of the extension to employees of the disabilities imposed by the Waterfront Commission Act, where an 282 actual controversy is presented due to the prior felony convictions of plaintiffs, Condon, De Veau and Hennessey, the complaint in this action calls for the rendition of a merely advisory opinion by the courts. The circumstance that this is a controversial statute does not mean that an actual controversy is presented in court for adjudication. An important reason on account of which advisory opinions are not rendered is that it is impossible to know in advance the shape which controversies will take that will arise out of this statute, which contemplates a wide variety of possible situations the length and breadth of which it is only possible now to guess. Plaintiffs are doing small service to themselves and to those whom they represent, it appears to me, by asking for such a broad and sweeping determination in advance of the real contests, the exact facts and nature of which are now but dimly foreshadowed, and which in certain instances might be resolved in their favor if they had not obtained what amounts at the threshold to a blanket approval of anything that may be done under the terms of the act. For example, it is being decided by the majority that collection of funds is validly forbidden by the amended statute for unions having officers, agents or employees who have been convicted of "any misdemeanor involving moral turpitude". The only person mentioned who could possibly be bracketed under this description is plaintiff Di Brizzi, who, it is alleged, was once convicted of a misdemeanor "which, on information and belief, comes within the categories described in the 1961 amendment to Section 8." This allegation is denied in the answer for lack of knowledge or information sufficient to form a belief, nor has this allegation been supported by any affidavit on this motion for summary judgment stating what kind of a misdemeanor it was of which he was convicted. There is a triable issue concerning whether Di Brizzi was convicted of anything or, if so, of what. Nobody knows with certainty what misdemeanors do involve moral turpitude, which depends considerably upon the fluctuations and geography of public opinion or the personal attitude of the Judge. It is difficult to understand how some misdemeanors of that description could affect the qualification of a man to be an officer, agent or employee of a waterfront union. The quantity and variety of misdemeanors has multiplied so rapidly, and covers so large an area of human activity 283 in so many contexts of opinion, as to render almost anyone potentially subject to disqualification on that ground. For example, section 1142 of the Penal Law makes it a misdemeanor to sell or give away contraceptives or to give information as to how or where they may be obtained. A violation of this section of the Penal Law has been held to involve moral turpitude (Baretta v. Baretta, 182 Misc. 852; Halstead v. Nelson, 36 Hun 149). Would a conviction on that have any tendency to disqualify a man from working for a longshoreman's union at the harbor of New York? Is it the meaning of the pronouncement to be declared by the judgment in this case that no union could collect its dues if such a one were to be found upon its payroll? For anything that appears to the contrary, the single employee charged in the papers in the action with having been convicted of some misdemeanor involving moral turpitude may come within this or any of the categories of misdemeanors, except such as could be characterized beyond cavil as mala prohibita. The affidavit of the president of the International Longshoremen's Association (I. L. A.) questions the "disqualification * * for a large variety of non-felony offenses, with great doubt about the applicability of many misdemeanors because of the use of the vague term `moral turpitude.'" This doubt is very real and enters the picture not only on account of the uncertainty in labeling what misdemeanors do involve moral turpitude prior to a decision by the court of last resort, but also through the constitutional objection that in many instances it would impose restrictions upon a man's livelihood which are unrelated to his fitness to pursue his calling (Five Boro Elec. Contrs. Assn. v. City of New York, 12 N Y 2d 146). Serious difficulties would arise, for example, in determining what misdemeanors of the following kinds involve moral turpitude, and, if so, whether they could be found by the Legislature to have a bearing upon the performance of the occupation of officer, agent or employee of a longshoreman's union: tax convictions (i.e., income tax evasions contrasted with smuggling), housing violations, anti-discrimination offenses, sexual misdemeanors, communist activities, public intoxication once or repeatedly, driving while intoxicated with or without serious accidents, commercial offenses, criminal libel, criminal contempts of court or legislative committees, obscenity, offenses by public officials such as 284 retaining extra compensation or rewards, disturbing the peace, violation of the liquor laws as by sales to minors, or refusal to serve in the armed forces in time of war as conscientious objectors. These are only a few of the numberless situations which can arise concerning whether a particular misdemeanor involves moral turpitude or could be found to have a tendency to restrict within constitutional limits the pursuit of one's occupation or the earning of his livelihood. The 1961 amendment to section 8, in referring to misdemeanors involving moral turpitude, follows these words with "or any crime or offense enumerated in subdivision three (b) of section five-n". That section refers among others to those convicted of "petit larceny, where the evidence shows the property was stolen from a vessel, pier or other waterfront terminal". The thought in these words is to limit disqualifying convictions to such as would have a tendency to render the officer, agent or employee undesirable on the waterfront. Yet if, in the same breath, the statute disqualifies all persons who shall have been convicted of misdemeanors involving moral turpitude, as the majority opinion appears to say, it would refer to all cases of petit larceny and not be limited to such as relate to waterfront operations. If that had been the intention of the Legislature, why were so many words employed to limit the application of the term to waterfront operations when at the same time, as the decision now being made appears to hold, all kinds of petit larceny convictions were to stand in the way of these activities? And if the Legislature meant to confine such crimes to such as would naturally tend to disqualify a man from serving in these capacities on the waterfront, then we should not pass upon what would have been the constitutionality of the 1961 amendment as if it had been designed to cover all misdemeanors involving moral turpitude whatever that may mean. Before ruling on constitutionality, it is usual to construe a statute in order to ascertain what it provides before deciding whether what it provides transcends constitutional limitations. That is not possible in the present case since there is not opportunity to construe this statute in most of its ramifications in the absence of factual controversy. It is inappropriate, in my view, to ascribe to it over-all constitutional validity regardless 285 of how it may be construed in controversies hereafter to arise but which are not yet envisaged. As is likewise stated in the brief for the Waterfront Commission, the provision prohibiting the collection of dues by I. L. A. locals which function outside of the State of New York, such as the I. L. A. local in Puerto Rico or Bermuda, is not presented by any controversy before the court. If there are out-of-State locals which have criminals as officers, agents or employees, they are not before the court, nor is it perceived how their interest would be affected or the particular bearing which it would have on I. L. A. whose dues are not collected by its locals but directly by the employers under a check-off system. "Thus," continues the brief for the Waterfront Commission, "the only cases herein which are not hypothetical are those presented by plaintiffs, Condon, Hennessey and De Veau, all of whom have felony convictions and all of whom are union employees". In my view the judgment appealed from should be modified accordingly, and the court should decline to entertain jurisdiction respecting controversies under this severe and complicated statute which it is anticipated will arise but which have not yet been presented in court and the factual nature of which has not been disclosed. Judgment affirmed. NOTES [1] The plaintiffs challenge all of the 1961 amendments except that which makes the statute applicable to union welfare funds and trusts. Although the defendants have questioned the plaintiffs' standing, we are satisfied that the I. L. A., at least, has a sufficient interest to prosecute the action. Two of the amendments under attack limit, in effect, those whom that organization may properly hire, while the third makes it more difficult for the I. L. A. to retain its association with its non-waterfront locals and tends to inhibit or discourage other non-waterfront locals from affiliating with it. [2] It should be noted that the plaintiffs have not in this court argued that the quoted phrase is void for vagueness or lacks sufficiently definite standards. (Cf. Jordan v. De George, 341 U.S. 223, 229-230, where the Supreme Court observed that, although a similar phrase had been in the immigration laws for upwards of a half century and had also been used for many years "as a criterion" in other statutes, "No case has been decided holding that the phrase is vague, nor are we able to find any trace of judicial expression which hints that the phrase is so meaningless as to be a deprivation of due process.")	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2587678/	12 N.Y.2d 227 (1963) Motor Discount Corporation, Respondent, v. Scappy & Peck Auto Body, Inc., Appellant. Court of Appeals of the State of New York. Argued January 23, 1963. Decided February 21, 1963. Landon R. Zuckerman and Herbert A. Sulsky for appellant. Samuel Witte for respondent. Judges DYE, FULD, VAN VOORHIS, BURKE, FOSTER and SCILEPPI concur. 228Chief Judge DESMOND. After a trial of this suit for conversion plaintiff was awarded money damages against defendant, a repairer of automobiles. The theory of suit and recovery was that defendant, when it sold a certain automobile at auction to satisfy its lien thereon for an unpaid repair bill, acted unlawfully and to plaintiff's damage since the automobile was "owned" by plaintiff which had not ordered or authorized the repairs. One Caggiano had in June, 1957 bought the car new from Jericho Motors, Inc., and by signing a conditional sale contract in the usual form had agreed to pay the unpaid balance of the price in monthly installments. The contract, which expressed the usual reservation of title in the vendor until full payment, was duly filed in a City Clerk's office and was then assigned by Jericho to plaintiff. The assignment was not filed. No installment 229 payment on the contract was ever made but it remained in the possession of conditional vendee Caggiano. In August, 1957 the car suffered collision damage and at Caggiano's order defendant did $1,411.25 worth of repair work on it. When the repair bill went unpaid, defendant, claiming an "artisan's lien" under section 184 of the Lien Law, caused the car to be sold at auction in April, 1958 (the alleged conversion) and bought it in for $1,400. Notice of sale had been sent by registered mail to Caggiano (but not to plaintiff or its assignor) and had been published twice in a newspaper (see Lien Law, § 201). The failure to serve notice of sale on plaintiff or its assignor was mentioned during the trial and in the Trial Justice's opinion. However, the only basis for plaintiff's recovery as urged by it and specified by the trial court (Appellate Division affirmed without opinion) was that, since the conditional vendee had defaulted as to payment, absolute title to the automobile was in plaintiff as the conditional vendor's assignee and, therefore, defendant's rights under its artisan's lien were subordinate to plaintiff's. Or, as the Trial Justice put it: "Caggiano had mere naked possession of the vehicle without legal ownership when he left it with defendant and could not authorize the repairs without the consent or request of the owner". On the contrary, we think that Caggiano as a conditional vendee in possession could and did create a valid and prior lien in favor of defendant repairman under section 184 of the Lien Law which, among other things, says that: "A person keeping a garage * * * or place for the * * * repair of motor vehicles * * * and who in connection therewith * * * repairs any motor vehicle * * * at the request or with the consent of the owner, whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise, has a lien upon such motor vehicle * * * for the sum due for such * * * repairing of such motor vehicle * * * and may detain such motor vehicle * * * until such sum is paid". Section 184 has been authoritatively construed as meaning that a repairman's lien for work or services authorized by a conditional vendee or mortgagor has priority over the interest of a conditional vendor or chattel mortgagee (New York Yellow Cab Co. v. West Manhattan Garage Corp., 245 N.Y. 612; Commercial Credit Corp. v. Moskowitz, 142 Misc. 773, affd. 238 A.D. 831; 230 Courtlandt Garage & Realty Corp. v. New York Yellow Cab Co. Sales Agency, 217 A.D. 4). Decisions cited by the trial court (Manufacturers Trust Co. v. Stehle, 1 A D 2d 471; Bankers Commercial Corp. v. Mittleman, 21 Misc. 2d 1096) turned on different and controlling facts. A holding that the artisan's lien somehow disappears or is defeated because the conditional vendee in possession is behind in his payments would be inconsistent with the language and spirit of section 184 and with old and well-considered cases. The present controversy illustrates this. Despite his defaults the vendee was allowed to keep and drive the car and when it met with an accident he had it repaired. The statute in terms gave the repairman a lien for his work in putting the car back in usable and salable condition for the benefit of all concerned. In at least two other States there are decisions of their highest courts on statutes quite like ours, each of which decisions allows priority of such a lien over a pre-existing and filed chattel mortgage (Smith Auto Co. v. Kaestner, 164 Wis. 205; Mortgage Securities Co. v. Pfaffmann, 177 Cal. 109). Both these decisions emphasize that the possessory character of the lien logically and necessarily includes priority over those who claim ownership rights. Neither brief in this court argues that defendant's failure to give plaintiff notice of the auction sale made the sale a conversion. However, in one sense the question is in the case since the absence of notice was brought to the trial court's attention although no argument of law was made thereon. The only statutory requirement for notice seems to be section 201 of the Lien Law which requires service of notice personally on the "owner" if he can be found and if he cannot be found then on the person for whose account the chattel is held, but if he cannot be found then by mail to the latter, there being a requirement also of service of the notice of sale in similar manner "upon any person who shall have given to the lienor notice of an interest in the property subject to the lien". The quoted language apparently refers to those persons only who have given the lienor actual notice of their claimed interests in the car (see Commercial Credit Corp. v. Moskowitz, 142 Misc. 773, 775, affd. 238 A.D. 831, supra). 231The judgment should be reversed and the complaint dismissed, with costs in all courts. Judgment reversed, etc.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2587697/	119 P.3d 567 (2005) Laurence WOZNICKI, Plaintiff-Appellee, v. John D. MUSICK, Jr., and W/J Ranch, Inc., Defendants-Appellants. No. 03CA2505. Colorado Court of Appeals, Division I. April 7, 2005. Certiorari Granted September 6, 2005. 569 Stevens Littman Biddison Tharp & Weinberg, LLC, Mark E. Biddison, Boulder, Colorado, for Plaintiff-Appellee. Appel & Lucas, P.C., Garry R. Appel, Denver, Colorado, for Defendants-Appellants. PICCONE, J. Defendants, John D. Musick, Jr., and W/J Ranch, Inc., appeal the judgment entered upon a jury verdict for plaintiff, Laurence Woznicki. We affirm. This case involves a number of parties, two separate lawsuits, and several interwoven cross-claims. The trial court split its determination of the case into five phases. This is the appeal of Phase I, the forcible entry and detainer (FED) action. Musick was president of W/J Ranch. W/J Ranch and Musick entered into a contract to buy and sell real estate with Woznicki whereby W/J Ranch and Musick would sell and Woznicki would purchase the property located at 150 Bullwinkle Circle in Aspen. The 570 contract was summarized in the "W/J Deal Summary," which stated that W/J Ranch was selling the property to Woznicki; W/J Ranch had an option to repurchase the property from Woznicki within eighteen months of the sale; and the property was leased to W/J Ranch for up to eighteen months following the sale. The transaction was referenced as a sale in the W/J Deal Summary. Title to the property was transferred from W/J Ranch to Woznicki. W/J Ranch did not exercise its option to repurchase the property, and following the expiration of the lease, W/J Ranch and Musick remained in possession despite Woznicki's demand that they vacate the property and deliver possession to him. Since the expiration of the lease, neither W/J Ranch nor Musick has paid rent to Woznicki. Woznicki brought this FED action against W/J Ranch and Musick. The issues before the jury were whether the transaction between W/J Ranch and Musick and Woznicki was an equitable mortgage or a sale of property, or stated differently, who is the lawful owner of the property; who was entitled to possession of the property; and whether Woznicki was entitled to damages from W/J Ranch and Musick in the form of rent for the time during which they unlawfully detained the property. The jury found that Woznicki was the lawful owner of the property; W/J Ranch and Musick unlawfully detained the property for thirty-one months; and Woznicki was entitled to damages for that period. This appeal followed. I. Judgment Notwithstanding the Verdict W/J Ranch and Musick contend the trial court erred in denying their motion for judgment notwithstanding the verdict (JNOV). We disagree. C.R.C.P. 59(e) states in relevant part: A judgment notwithstanding verdict may be granted for either of the following grounds: (1) Insufficiency of evidence as a matter of law; or (2) No genuine issue as to any material fact and the moving party being entitled to judgment as a matter of law. See Bigby v. Big 3 Supply Co., 937 P.2d 794 (Colo.App.1996). When the motion for JNOV challenges the sufficiency of the evidence to support a verdict, it may be entered only if, after viewing the evidence and the inferences from it in the light most favorable to the nonmoving party, reasonable persons could not reach the same conclusion as the jury reached. Boulder Valley Sch. Dist. R-2 v. Price, 805 P.2d 1085, 1088 (Colo.1991), overruled in part by Cmty. Hosp. v. Fail, 969 P.2d 667 (Colo.1998); Nelson v. Hammon, 802 P.2d 452, 454 (Colo.1990); Raleigh v. Performance Plumbing & Heating, Inc., 109 P.3d 978 (Colo.App. No. 02CA1076, 2004 WL 963817, May 6, 2004). When reviewing a trial court's decision on a motion for JNOV, we must view the evidence in the light most favorable to the nonmoving party and must draw every reasonable inference that may legitimately be drawn from the evidence in favor of that party. Nelson, supra, 802 P.2d at 454. A. Equitable Mortgage We reject W/J Ranch and Musick's contention that their affirmative defense of equitable mortgage was established as a matter of law. Section 38-35-117, C.R.S.2004, Colorado's statute governing equitable mortgages, states: Mortgages, trust deeds, or other instruments intended to secure the payment of an obligation affecting title to or an interest in real property shall not be deemed a conveyance, regardless of its terms, so as to enable the owner of the obligation secured to recover possession of real property without foreclosure and sale, but the same shall be deemed a lien. The intention of the parties and the true nature of the transaction govern whether a transaction is an equitable mortgage or a conveyance. Rocky Mountain Gold Mines v. Gold, Silver & Tungsten, 104 Colo. 478, 93 P.2d 973 (1939). "The character of the transaction is fixed at its inception and is what the intention of the parties makes it. The form 571 of the transaction and the circumstances attending it are the means of finding out the intention." Taylor v. Briggs, 99 Colo. 89, 98-99, 60 P.2d 1081, 1085 (1936) (quoting 1 Jones on Mortgages § 314, at 380-81 (8th ed.)). Whatever the form of the contract, if the parties intend to create a security interest in real property, the contract gives rise to an equitable mortgage. Griffin v. United Bank, 40 Colo. App. 513, 580 P.2d 818 (1978), aff'd, 198 Colo. 239, 599 P.2d 866 (1979); see Crosby v. Gateway Motel, Inc., 163 Colo. 384, 431 P.2d 23 (1967); Rocky Mountain Gold Mines, supra. Intent may be inferred from the "totality of the circumstances surrounding the transaction." Restatement (Third) of Property: Mortgages § 3.2 cmt. e (1997). In this determination, the parol evidence rule "is usually deemed inapplicable . . . on the theory that the absolute deed was not intended to embody the complete agreement of the parties. Thus the oral agreement merely supplements the deed concerning a matter with which the latter did not purport to deal." Restatement, supra, § 3.2 cmt. c; see, e.g., Ver Straten v. Worth, 79 Colo. 30, 243 P. 1104 (1926)(oral testimony may be admitted concerning the true nature of the transaction); Baird v. Baird, 48 Colo. 506, 517, 111 P. 79, 82 (1910) (suggesting that court must look outside of document in deciding whether a transaction amounts to an equitable mortgage); see also Taylor, supra, 99 Colo. at 99, 60 P.2d at 1085 (quoting 1 Jones, supra, § 340, at 425: "It is a settled rule and practice of courts of equity to set aside a formal deed . . . upon proof, even by parol evidence, that the conveyance was not a sale, but merely a security for a debt, and therefore a mortgage."). Relevant factors which may be considered when determining whether a transaction is a sale or an equitable mortgage include the existence of a debt, the relationship between the parties, the availability of legal advice, the sophistication and circumstances of the parties, the adequacy of consideration, and the possession of the property. See 12 Thompson on Real Property § 101.08, at 503 (D. Thomas ed.1994); see also Restatement, supra, § 3.2 (intent may be inferred from, inter alia, statements of the parties). No one factor is determinative. See Restatement, supra, § 3.2 cmt e. Several Colorado cases, decided prior to the enactment of § 38-35-117, discuss factors that may be considered when determining whether a transaction is a sale or an equitable mortgage. These factors include the value of the property, see Taylor, supra; whether the "seller" remained in possession of the property, see Ver Straten, supra; and whether there was a covenant to reconvey, see Baird, supra, 48 Colo. at 517, 111 P. at 82 (covenant to reconvey may be one factor showing that the parties intended the deed to operate as a mortgage, but, "standing alone, it is not sufficient to work that result"). Woznicki presented evidence including the contract to buy and sell real estate; the W/J deal summary; a deed to him from W/J Ranch; a deed of trust from him to UFMC; a fax from Musick to Khoshabe regarding "sale Parcel II"; and a fax from Musick to Carmichael regarding the contract to buy and sell real estate. These documents classified the transaction as a sale. Viewing this evidence in the light most favorable to Woznicki, and drawing every reasonable inference in his favor, we conclude the jury could reasonably determine that the transaction was a sale, not an equitable mortgage. Further, the facts regarding whether the parties intended to create a mortgage were disputed. At trial Woznicki testified that he understood the transaction to be a sale, and the evidence included numerous documents characterizing the transaction as a sale. W/J Ranch and Musick urged that the parties did not intend the transaction to be a sale despite the language in the documents and that, in their view, such language was immaterial. Therefore, a determination as a matter of law could not be made. B. Unlawful Detainer W/J Ranch and Musick contend § 13-40-104(1)(c), C.R.S.2004, which defines unlawful detention as occurring when a tenant holds over, does not apply as a matter of law. Specifically, they assert they were in lawful possession of the property because the term 572 of W/J Ranch's lease had not yet expired when Woznicki filed this lawsuit. They also contend there was insufficient evidence to support the verdict on Woznicki's unlawful detainer claim. We disagree with both contentions. As an initial matter, Woznicki argues W/J Ranch and Musick's objections were not raised in the trial court. However, the record demonstrates that W/J Ranch and Musick made a specific, contemporaneous objection to the unlawful detainer claim instruction before it was given to the jury "for the reasons indicated in our motion for directed verdict." We conclude W/J Ranch and Musick preserved this issue for appeal. Under the W/J Deal Summary, W/J Ranch was to "quit possession of the property upon the date of the sale closing or the expiration of the 18 month period, whichever is earlier." Musick admitted that W/J Ranch was in possession of the premises and he resided there after the expiration of the lease. According to Musick, he was still residing at 150 Bullwinkle at the time of the trial. By the time W/J Ranch and Musick moved for a directed verdict, they had been in possession of the property well beyond the eighteen-month period. W/J Ranch and Musick have cited no authority, and we are aware of none, in support of their argument. Contrary to W/J Ranch and Musick's argument, § 13-40-104(1)(c) does not specify the timeframe in which an unlawful detention action may be filed. Section 13-40-104(1)(c) sets forth circumstances in which a party may "be guilty" of unlawful detention, and nothing more. We will not read a requirement into the statute that has not been set forth. Further, viewing this evidence in the light most favorable to Woznicki, we determine that the jury could have reasonably concluded that W/J Ranch and Musick had unlawfully detained the property. See Boulder Valley Sch. Dist., supra; see also Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681 (Colo.1998)(standard for an appellate court deciding a challenge to the sufficiency of the evidence is the same as trial court's standard in deciding whether to direct a verdict or grant a JNOV). Accordingly this contention fails. C. Damages W/J Ranch and Musick also contend there was insufficient evidence to establish the reasonable rental value of the property. We are not persuaded. In an unlawful detainer action, damages may be recovered against the party who unlawfully detained the property. Strauss v. Boatright, 160 Colo. 581, 587, 418 P.2d 878, 881 (1966). It is "well settled that the measure of such damages is the reasonable rental value for the time that possession was wrongfully withheld." Strauss, supra, 160 Colo. at 587, 418 P.2d at 881. Woznicki testified, and the W/J Deal Summary provided, that the contract rent for the property was $28,000 per month. This was the amount of the monthly payments that W/J Ranch and Musick had prepaid pursuant to the W/J Deal Summary. Musick testified that the property was in serious disrepair and was the "remodel project from hell" and that its reasonable rental value was nowhere near $28,000 per month. Counsel for W/J Ranch and Musick argued to the jury that the rental value of the property was less than $1,000 per month. The jury awarded Woznicki $7,500 per month on the unlawful detainer claim. Relying on Strauss, supra, and Grombone v. Krekel, 754 P.2d 777 (Colo.App.1988), W/J Ranch and Musick argue that evidence of the rent reserved in the lease, namely, the $28,000 figure contained in the W/J Deal Summary, is not sufficient to establish reasonable rental value. This argument ignores Woznicki's testimony and is premised on an overly broad reading of Strauss and Grombone. In Strauss, there was evidence that the tenant failed to pay the contract rent amount of $250 per month. Because the trial court had not awarded any rent to the owner, the supreme court remanded the case for a hearing to determine the reasonable rental value of the property. 573 In Grombone, the trial court awarded the owner the full contract value owed by the tenant, even though the owner had sought damages for unlawful detainer, not contract damages. Thus, the division remanded the issue of damages to the trial court to determine the reasonable rental value. Strauss and Grombone do not stand for the proposition that the contract rent cannot constitute some evidence of the reasonable rental value of a given property. See Didamo v. Tyrol Sport Arms Co., 680 P.2d 1328, 1330 (Colo.App.1984) (in the absence of evidence as to reasonable rental value, the trial court properly used rental payments set forth in the lease in assessing postjudgment damages in the FED action). Accordingly, we conclude the trial court was correct in denying W/J Ranch and Musick's motion for judgment notwithstanding the verdict. II. Jury Instruction W/J Ranch and Musick assert the instruction to the jury on their equitable mortgage affirmative defense was improper and that the trial court erred in not accepting their proposed instruction. We are not persuaded. The trial court has discretion to determine the form and style of the instructions to be given to the jury. We will not overturn a trial court's decision on a jury instruction absent an abuse of discretion. An abuse of discretion occurs when the trial court's decision is manifestly arbitrary, unreasonable, or unfair. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377-78 (Colo.App.1996). If an instruction misleads or confuses the jury, it amounts to error. However, language in a jury instruction cannot constitute grounds for reversal unless it prejudices the substantial rights of a party. "Prejudicial error in an instruction exists when the record shows that a jury might have answered differently if a proper instruction had been given." Williams, supra, 928 P.2d at 1378. Jury instructions must be read and considered together. If, collectively, they properly inform the jury of the law, no reversible error can be found. Williams, supra. When there are no Colorado pattern jury instructions on a particular subject, "the court shall instruct the jury as to the prevailing law applicable to the evidence in a manner which is clear, unambiguous, impartial and free from argument." C.R.C.P. 51.1(2). Instruction No. 17 given to the jury on the equitable mortgage affirmative defense states: The Plaintiff, Lawrence Woznicki, is not entitled to possession of the premises and cannot recover on his claim for unlawful detention if the Defendants, John Musick and W/J Ranch, prove their affirmative defense that the instruments between W/J Ranch and Mr. Woznicki were an equitable mortgage. Instruments intended to secure payment of an obligation affecting either title to real property or an interest in real property are not deemed to be a conveyance, regardless of what they say, but are deemed to be a lien and are therefore an equitable mortgage. The person who received the instrument in those circumstances is not entitled to recover possession of the real property without foreclosure and sale. Therefore, the fact that Plaintiff received a deed to the property from W/J Ranch, Inc. does not end the inquiry. If you find the instruments between W/J Ranch and Lawrence Woznicki were an equitable mortgage, then your verdict must be for the Defendants, John Musick and W/J Ranch, Inc. The jury also was instructed in Instruction No. 11 that "[i]n determining the intent of the parties you may consider their conduct, statements and writings." The parties agree the trial court's instruction on the equitable mortgage defense tracked the statutory language of § 38-35-117. Nonetheless, relying on Rice v. Wood, 82 N.C.App. 318, 346 S.E.2d 205 (1986), W/J Ranch and Musick argue the instruction given was erroneous because it failed to list the 574 factors the jury could take into account in deciding whether the transaction was an equitable mortgage. We reject this argument. The jury instruction used by the trial court in Rice is different from the instruction given here. In Rice, the instruction identified three factors the jury should consider in determining whether the transaction was an equitable mortgage. The North Carolina Court of Appeals determined that the trial court committed prejudicial error because the instruction omitted "a critical factor" for the jury's consideration"the crucial requirement of the creation and continued existence of a debt." Rice v. Wood, supra, 346 S.E.2d at 211-12. In light of the omitted "critical factor," the jury may have been misled. Rice v. Wood, supra, 346 S.E.2d at 212. W/J Ranch and Musick tendered an instruction that listed four factors for the jury to consider in deciding whether a deed is an equitable mortgage and then stated: "All of these factors need not be present for you to conclude that the deed was intended to be an equitable mortgage. The presence of one or more of these factors is indicative of an equitable mortgage." W/J Ranch and Musick do not cite any authority in Colorado, and we are aware of none, in support of either of these propositions. Here, the instruction given to the jury was not erroneous, because it adequately informed the jury of the law on the equitable mortgage defense. Further, Instruction No. 11 informed the jury of what it could consider in determining the parties' intent. Thus, the instructions given, when taken as a whole, did not prejudice the substantial rights of W/J Ranch and Musick. See Weicker Transfer & Storage Co. v. Bedwell, 95 Colo. 280, 35 P.2d 1022 (1934)(trial court's refusal to give the requested instruction was not error where the instruction actually given was sufficiently comprehensive to advise the jury as to the issue); see also Williams, supra. The trial court refused W/J Ranch and Musick's tendered instruction to avoid misleading or misinforming the jury. As the trial court noted, the rejected instruction included an incomplete list of factors that were "cherry pick[ed]" by W/J Ranch and Musick. Had the trial court given the jurors an instruction that included only some of the factors relevant in ascertaining whether there was an equitable mortgage, it would have risked misleading them by omitting other, perhaps more important or crucial, factors. The jury could have reached the erroneous conclusion that it could not consider other factors which may have been present. Under the circumstances here, the court properly gave an instruction that tracked the language of the statute, while allowing both parties to discuss in closing arguments the factors which they believed were pertinent to the jury's determination. Indeed, W/J Ranch and Musick's closing argument directed the jury's attention to all the factors enumerated in their proffered instruction, including the intent of the parties in making the transaction, whether there was an agreement to reconvey the property, and the fact that the property did not change hands after the transaction. Accordingly, the trial court properly rejected W/J Ranch and Musick's tendered instruction. III. Inconsistent Verdict W/J Ranch and Musick urge us to set aside the verdict and to order a new trial on the ground that the verdict is internally inconsistent and cannot be reconciled. Specifically, they contend the jury's finding in Special Interrogatory 5, that they were not tenants at will, is inconsistent with the jury's finding in Special Interrogatory 3, that they unlawfully detained the property. We decline to address this contention. A party cannot seek appellate review of the propriety of a jury instruction unless counsel objects prior to the court's presentation of the instructions to the jury. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo.1996). See C.R.C.P. 51. W/J Ranch and Musick did not object to the verdict forms, verdict instructions, or interrogatories prior to submission to the jury. In Bear Valley, the supreme court declined to review a claim related to inconsistent and *575 duplicative jury awards because the appellants had failed to object to the jury instructions and verdict forms before submission to the jury. The court stated that "[c]ounsel has the duty to examine the instructions, and his failure to detect errors and call the trial court's attention to them ordinarily operates as a waiver of the objection." Bear Valley, supra, 928 P.2d at 1330 (quoting Scheer v. Cromwell, 158 Colo. 427, 429, 407 P.2d 344, 345 (1965)). W/J Ranch and Musick argue that the problem here was not with the verdict forms or instructions, but with the answers given by the jury. Thus, in their view, no objection at trial was required. This argument begs the question. The instructions could have made it clear that the jury needed to decide whether W/J Ranch and Musick unlawfully detained the property only if it first found that they were tenants at will. The jury verdict instructions and forms, as drafted, allowed the jury to make inconsistent findings. See Bear Valley, supra, 928 P.2d at 1329 ("the record does not contain any evidence that the defendants entered objections to the verdict forms or instructions, prior to submission to the jury, on the basis that the instructions allowed the jury to assess inconsistent or duplicative damages"). IV. Expert Testimony Finally, W/J Ranch and Musick contend the trial court erred in excluding the testimony of their proffered expert witness. Specifically, they argue that the trial court erred in concluding that their C.R.C.P. 26(a)(2) disclosures were insufficient and that the proffered expert's testimony would be unfairly prejudicial under CRE 403. We disagree. With regard to opinions by specially retained experts, C.R.C.P. 26(a)(2) provides in pertinent part that "[t]he report or summary shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor [and] the data or other information considered by the witness in forming the opinions." If the party offering the testimony fails to provide sufficient information about the proposed expert's qualifications or opinions, the trial court has broad discretion to determine sanctions, including disallowing the expert's testimony. Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo.1999). We review the trial court's decision to preclude an expert witness from testifying for abuse of discretion. Svendsen v. Robinson, 94 P.3d 1204 (Colo.App.2004); see KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769 (Colo.1985), aff'g Great W. Sugar Co. v. N. Natural Gas Co., 661 P.2d 684 (Colo.App.1982). C.R.C.P. 37(c) provides for the preclusion of nondisclosed evidence unless the nondisclosing party establishes that its failure to disclose was either substantially justified or harmless. Svendsen, supra, 94 P.3d at 1206. In finding that W/J Ranch and Musick's disclosure of the proffered expert was insufficient, the court noted: "The rule requires that the disclosure be accompanied by a report or a summary with a complete statement of all opinions and the basis and the reasons therefor, and the basis and the reasons therefor simply are not there . . . ." Based upon our review of the record, we cannot say the trial court abused its discretion in disallowing the proffered testimony. See Great W. Sugar Co., supra. Because we conclude the trial court did not err in excluding the testimony on this ground, we do not address W/J Ranch and Musick's remaining contention. The judgment is affirmed. Judge MARQUEZ and Judge LOEB concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1522156/	820 S.W.2d 180 (1991) Scott Dwayne YOUNG, Appellant, v. The STATE of Texas, Appellee. No. 05-89-01374-CR. Court of Appeals of Texas, Dallas. August 16, 1991. 182 Edward Gray, Dallas, for appellant. Anne Wetherholt, Dallas, for appellee. Before WHITHAM, LAGARDE and KINKEADE, JJ. OPINION LAGARDE, Justice. Following Scott Dwayne Young's jury conviction for murder, the trial court assessed his punishment at life. On appeal, Young raises three points of error, all complaining that the trial court erred in admitting, before the jury, his written statement. He contends that his statement was inadmissible because it: (1) violated his Sixth Amendment right to counsel; (2) was obtained under false pretext and in violation of his Fifth Amendment right against selfincrimination; and (3) had been "massively" edited by the State. For reasons that follow, we conclude that the trial court erred in admitting Young's statement; however, because we further conclude that the error was harmless beyond a reasonable doubt, we affirm. Facts Relevant to Points of Error a. The Suppression Hearing Pursuant to article 38.22 of the code of criminal procedure and Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the trial court conducted a hearing outside the jury's presence on Young's oral motion to suppress, after which it admitted the written statement. The trial court[1] filed its written findings of fact and conclusions of law after this Court abated the appeal and ordered it be done. See Tex. Code Crim.Proc.Ann. art. 38.22 (Vernon 1979 McKittrick v. State, 535 S.W.2d 873, 875 (Tex.Crim.App. 1976). The evidence at the suppression hearing revealed that the deceased was killed on or about June 29, 1988, and appellant, under the name Scott Dwayne Young, was indicted for his murder on December 7, 1988. On December 22, 1988, Young was arrested on an unrelated aggravated assault charge. The Dallas County government offices were officially closed from December 23 to December 26. After Young was arrested and booked into jail, other pending charges and indictments were discovered: the murder indictment involved here (under the name Scott Dwayne Young); a cocaine possession/probation violation (under the name Michael Jones); another aggravated assault with a deadly weapon charge[2] and a "fugitive from New York" warrant (apparently under the name Mark Johnson). On December 26, 1988, Young (under the name Mark Johnson) was "magistrated"[3] by a Dallas County magistrate for the 183 above charges, including the murder charge now before us. During the 15.17 proceeding on December 26, the magistrate learned that Mark Johnson was also known as Scott Dwayne Young and Michael Jones. At that proceeding, the magistrate gave Young the required statutory warnings, including his right to an attorney. Young appeared to understand the warnings when given. The magistrate knew Young had been indicted on the murder charge but did not arraign him because he did not have a copy of the indictment. On January 3, 1989, upon returning from vacation, police detective Bob Alexander, who was in charge of James Earl Jackson's murder investigation, got Young out of the county jail at about 7:15 p.m. and took him to the "crimes against persons" office at the police department, a room about eight by ten feet, to question him about Jackson's murder. Prior to questioning him, Alexander gave Young his Miranda[4] warnings. Young indicated that he understood the warnings and told the detectives that he did not have an attorney. He did not ask to consult with an attorney or to terminate the interview. Alexander did not tell Young he had already been indicted. After being questioned, Young signed the written statement he now challenges. At the suppression hearing, the magistrate did not specifically recall the 15.17 proceeding, had no recollection whether Young requested an attorney, and had no notations in his file. He testified that if Young had requested counsel, an affidavit of indigency would have been in the district clerk's file in the murder case or in one of the other cases. The magistrate testified, in pertinent part: [PROSECUTOR]: What else is your usual practice when you arraign a defendant? [MAGISTRATE]: I have each person stand individually and tell them what they're charged with and ask them do they have a lawyer. If they don't have a lawyer, I ask them can they afford to hire an attorney. If they say no, I say would you like a court-appointed lawyer. .... [DEFENSE COUNSEL]: So you don't know whether or not he requested a lawyer, do you? [MAGISTRATE]: No. I don't know at this point whether or not he requested a lawyer but if he had requested a lawyer, I would have had him sign an affidavit of indigency at that time. .... [PROSECUTOR]: All right. If he had a lawyer, is it not your practice to make a notation of the name of the lawyer in your paperwork? [MAGISTRATE]: No, it is not the practice. It is the practice to make a notation of a lawyer if he has not been indicted because it's a part of the pre-indictment generation process. If he has not been indicted, we make a notation of a lawyer, but if a person has a lawyer and has been indicted, then we do not make a notation of the personof that lawyer's name. .... [PROSECUTOR]: Judge, if anyone coming before you, if they want a lawyer, they're going to file an affidavit of indigency at that time? [MAGISTRATE]: If they are charged with a felony offense and there is a warrant number assigned to that particular case and they request a court-appointed attorney and they answer the questions that I ask them in regard to whether or not they can afford to hire a lawyer, they will be allowed to sign an affidavit of indigency. .... [DEFENSE COUNSEL]: And if you had known that the Defendant was under indictment for murder as of December the 7th and still had not had any legal counsel whatsoever, would you have gone out of your wayor at least taken it upon yourselfto make a specific inquiry into the situation as to whether he had hopes of hiring a lawyer or whether he had made any effort to contact a 184 lawyer or any of that type of information? .... [MAGISTRATE]: I would have asked the personif I had known that they had been indicted and it had been more than two and a half weeks since the date of the indictmentif they had an attorney. And if they said they didn't have an attorney, I would ask them if they would like a court-appointed attorney. And if they said yes, I would have asked them to stand up and swear to the fact that they are, in fact, indigent and need a court-appointed attorney. If they said no, I would tell them in that case you need to try and contact the people or some attorney to represent them. .... THE COURT: When you inquire as to whether or not a defendant needs a court-appointed lawyer or will hire a lawyer, you said that what you do is you fill out the affidavit and have the defendant sign it. Do you make any notations on the paperwork that you keep on whether or not you did this? [MAGISTRATE]: Not the paperwork that I keep whether or not the affidavit of indigency has been signed. There is a notation made on the District Clerk's paperwork as to whether or not it's an affidavit of indigency or not. THE COURT: All right. What is the District Clerk's paperwork? [MAGISTRATE]: It is ait amounts to just a computer printout that's torn in half and left in our records for a six-months' period. THE COURT: All right. So if the District Clerk had a copy of that paperwork, they would no longer have it? [MAGISTRATE]: They no longer have it. .... [DEFENSE COUNSEL]: Well, what your responses are that if the system works like it's supposed to work, then there will be some notation somewhere in the District Clerk's files or in the computer as to whether or not the Defendant stated that he was indigent; is that correct? [MAGISTRATE]: That's correct.... Young testified that he was arrested on December 22 on an aggravated assault charge and "arraigned"[5] on that offense on that same date under the name Mark Johnson. He was "arraigned" on December 26 on three other cases, including this murder case, on which he was "arraigned" under the name Scott Young. After he told the magistrate that he did not have an attorney, the magistrate gave him a paper which he signed as Mark Johnson,[6] swearing that he did not have any money or property to pay for a lawyer. The bailiff gave the paper back to the magistrate. On January 4, 1989, he was brought to the courthouse and spoke to attorney Ann Adair Dunlap about "the case." Young conceded that before Alexander questioned him at the police department on January 3 that he was given and understood his Miranda warnings, that he did not have an attorney, and that he neither requested an attorney nor asked to terminate the interview. The trial court's chief clerk testified that the murder case was transferred from another court on January 11, 1989, and that the file did not contain an affidavit of indigency nor did it show the date Edward Gray, his trial counsel, was appointed. Gray testified that he was appointed on January 5, 1989, to represent Young on an aggravated assault case and later learned about this murder case. The trial court's coordinator testified that, as a result of her efforts to determine the events of Young's various cases in the various courts, she learned the following. On January 5, 1989, Gray was appointed on an aggravated assault case to represent "Mark Johnson." There was no affidavit of indigency in that file. On January 11, that case was transferred to the trial court where Young had other cases pending under the name Michael Jones. There was no affidavit of indigency in the murder file. On January 185 13, Gray was appointed to represent Young in all the cases. The record reflects some dialogue between Young and the trial judge concerning "his papers" which Young contends contained a copy of the indigency affidavit. Gray testified that he remembered seeing an affidavit in Young's papers. The record does not show that the papers were ever found. Except for Young's testimony, the record does not show whether Young requested an attorney at the 15.17 proceeding or, if a request were made, whether it was acted upon. The magistrate does not dispute Young's assertion that he requested an attorney; he simply does not recall. The clear import of the magistrate's testimony, however, is that the absence of an indigency affidavit in the file is circumstantial evidence that Young did not request an attorney. b. Findings and Conclusions The trial court made the following findings and conclusions: Young was indicted for the murder offense on December 7, 1988. Young was arrested on December 22, 1988. He was "arraigned" for various offenses and under various aliases on December 26, 1988. Young was "arraigned" for the murder offense under his true name, Scott Dwayne Young. At the December 26 "arraignment" Young did not sign an affidavit of indigency for the appointment of an attorney under his true name, Scott Dwayne Young. Due to Young's various aliases, the trial court did not appoint counsel in the murder case until January 13, 1989. Young was given his Miranda warnings on January 3, 1989, at the time he gave the written statement. Young was aware of his right to have an attorney present at the time he made the statement. At no time during the police interview did Young request an attorney or request to terminate the interview. Young did not request an attorney at the time he signed the statement. The time and duration of the police interview were reasonable. Young was not denied water or bathroom privileges during the interview. No physical force was used or threatened and no promises were made to Young. Young voluntarily made and signed the confession. Points of Error In his first point, Young contends that the trial court erred in admitting his written statement into evidence before the jury. He argues that his Sixth Amendment rights[7] were violated by police-initiated, uncounseled interrogation after he had been indicted and had requested counsel. In response, the State argues that Young's complaint is not preserved for review, and even if preserved, the trial court did not err in admitting the statement. Moreover, the State argues that, even if admission of the statement was error, it was harmless beyond a reasonable doubt. We address each of the State's contentions in turn. Sixth Amendment Claim a. Preservation of error Noting that Young does not allege a violation of his Fifth Amendment rights under this point, the State argues that Young did not preserve his Sixth Amendment complaint for the following reasons: (1) the record contains no written motion to suppress; (2) Young objected at the suppression hearing only on the general generic "voluntariness issue;" and (3) Young's four objections before the jury did not state what specific legal provisions he was relying on. We agree with the State that, in order to preserve error, an objection must not only identify what is objected to, but must set forth specific grounds. The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and to afford him or her the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or to supply 186 other testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977). In accordance with these policies, a number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created. Id. Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection. Id. In this case, the record reflects the following trial objections: [DEFENSE COUNSEL]: Your Honor, we object to the admission of this on three grounds. First, that the Defendant was interviewed without an attorney at a point in time after he had requested a court-appointed attorney and stated in magistrate's court that he was indigent and should have had an attorney appointed to advise him and had not had an attorney due to the failure of Criminal District Court No. 3 to provide an attorney when it was requested. Secondly, that the statement was obtained by mental duress, by taking him from his cell at night and taking him and placing him in an area, in a small room where he was kept for a long period of time and where he was unable to talk to an attorney. And thirdly, that the statement was obtained from him by making promises to him, providing promises that he would obtain some favor or some benefit or in some way that his case would be treated more favorably. And fourthly, that the statement was obtained from him by dishonest means or by basically aby a process wherein he was not told that he had already been indicted for murder, and that the fact that he was indicted was concealed from him, and that he was placed under a false pretext by the police officers by leading him to believe that this case was under investigation when, in fact, he had already been indicted for the offense, in other words, that THE COURT: I understand what you're saying. [DEFENSE COUNSEL]: They did not properly advise him of the facts and circumstances which would have allowed him to make an intelligent decision as to whether or not he should have a lawyer present and whether he should have had any conversation at all with this police officer, having already been indicted for the offense of murder. For all of these reasons, Your Honor, we believe that the voluntary statement should not be admitted, that it is not, in fact, voluntary, that it is not the free act and deed of the Defendant. In support of its position that Young did not preserve his Sixth Amendment complaint, the State relies on Jackson v. State, 745 S.W.2d 4, 5 n. 2 (Tex.Crim.App. 1986); Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim.App. 1985); and rule 52 of the Rules of Appellate Procedure.[8] Jackson is distinguishable. In that case, the court found that nothing was preserved because at trial the defendant specifically objected on constitutional grounds, both in form and substance, and then for the first time on appeal challenged on statutory grounds. In other words, it was not the general nature of the objection that precluded review, but rather, the assertion of different specific grounds at trial and on appeal. See Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). We further conclude that Thomas and Cisneros are likewise distinguishable and provide no support for the State's contention. Here, the trial court accepted the form of the objection and specifically indicated that it understood the substance of the objection. It is clear from the objection that Young was complaining of uncounseled interrogation after he had been indicted which, among other things, rendered the written waiver ineffective and his statement involuntary. It is undisputed that the police initiated the interrogation. We conclude that Young preserved error. 187 b. Merits The State concedes that, if Young had requested counsel on the already indicted murder case during the 15.17 hearing, it implicates his Fifth Amendment rights under Miranda,[9]Edwards,[10] and Arizona,[11] all of which apply to custodial interrogation situations. The State argues, however, that because Young has not raised a Fifth Amendment claim, those cases are not directly applicable to his Sixth Amendment right which is implicated when an indicted defendant requests counsel. It relies on Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); Nehman v. State, 721 S.W.2d 319 (Tex.Crim.App.1986); and Alford v. State, 788 S.W.2d 436 (Tex.App. Houston [1st Dist.] 1990, no pet.). The State also refers us to Holloway v. State, 780 S.W.2d 787 (Tex.Crim.App.1989) (after an attorney has been appointed, attorney must be present when defendant waives Sixth Amendment right), but argues that Holloway does not apply here because no attorney had been appointed, thus no attorney had to be present when Young waived his Sixth Amendment right to an attorney. Interestingly, the State never points us to any record evidence of Young's waiver of his right to counsel, except, of course, to the written waiver of his Fifth Amendment right to counsel he signed at the police station at the time he gave the statement.[12] Instead, the State focuses on Young's failure to request an attorney and urges us, despite the fact that Fifth Amendment rationale was extended to the Sixth Amendment claims in Michigan, it should not be so extended here because of the complex facts of this case. Post-Indictment Case It is undisputed that this is a postindictment case, not a "custodial interrogation" case. To be sure, it also involves police-initiated custodial interrogation after indictment. Consequently, it is also undisputed that Young's Sixth Amendment right to counsel had attached at the time of questioning.[13]Michigan, 475 U.S. at 632, 106 S.Ct. at 1408-09; McCambridge v. State, 778 S.W.2d 70, 76 (Tex.Crim.App. 1989), cert, denied, ___ U.S.___, 110 S. Ct. 1936, 109 L. Ed. 2d 299 (1990). There can be little doubt that the United States Supreme Court interprets the rights under the Sixth Amendment to be more powerful than under the Fifth Amendment. See Yeager, Rethinking Custodial Interrogation, 28 Am.Crim.L.Rev. 1, 27 (1990). After indictment, the Fifth Amendment gives way to the Sixth Amendment, where, for better or worse, the Court reads the constitution to circumscribe police practices more closely than with the Fifth Amendment. Id. With that in mind, we proceed with our analysis. In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Court held that an accused person in custody who had "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85, 101 S.Ct. at 1885. In Minnick v. Mississippi,___U.S.___, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990), the Court stated that "[i]n context, the requirement that counsel be `made available' refers to more than an opportunity to consult with an attorney outside the interrogation room." Id. Ill S.Ct. at 490. The Court specifically held that, when counsel is requested, the police may not initiate interrogation without counsel present. Id. Ill S.Ct. at 491. 188 In Michigan, the Supreme Court held that the rule in Edwards applies "with even greater force" to one who has been formally charged with a crime and who has requested appointment of counsel. Michigan, 475 U.S. at 636, 106 S.Ct. at 1411. In other words, the Court extended the Fifth Amendment Edwards rule to the Sixth Amendment. In doing so, it limited the Sixth Amendment version of the Edwards rule to the affirmative assertion of the right to counsel, leaving us in an "analytical straitjacket." Michigan, 475 U.S. at 641, 106 S.Ct. at 1413-14 (Rehnquist, C.J., dissenting). Finding ourselves in that "analytical straitjacket," we shall attempt to apply the Sixth Amendment version of the Edwards rule to the facts of this case. There is no question that Young had a right to counsel. That right is clear. Young's Sixth Amendment right to counsel having attached upon indictment,[14] it seems clear that, absent a valid waiver, he had the right to the presence of an attorney at the post-indictment, police-initiated custodial interrogation. See Moran v. Burbine, 475 U.S. 412,106 S.Ct. 1135, 89 L. Ed. 2d 410 (1986). The question, then, is whether Young's written waiver of his Miranda rights was a valid waiver. We turn now to that issue. Waiver a. Standard for Assessing Waiver In Michigan, the Court recently reaffirmed the standard for assessing an alleged waiver of a defendant's Sixth Amendment right to counsel when it stated: Almost a half century ago, in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) ... a case involving an alleged waiver of a defendant's Sixth Amendment right to counsel, the Court explained that we should "indulge every reasonable presumption against waiver of fundamental rights." ... For that reason, it is the State that has the burden of establishing a valid waiver.... Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counselwe presume that the defendant requests the lawyer's services at every critical stage of the prosecution. Michigan, 475 U.S. at 633, 106 S.Ct. at 1409 (emphasis added). Specifically recognizing that the Sixth Amendment right to counsel does not turn on a defendant's request for counsel, the Court construed the respondent's affirmative request for counsel as an "extremely important fact in considering the validity of a subsequent waiver in response to policeinitiated interrogation." Id. at 633 n. 6, 106 S.Ct. at 1409 n. 6. b. Young's Request for Counsel The State first argues that there is no competent evidence that Young requested an attorney. Because Young had been indicted, we must presume he requested counsel. See Michigan, 475 U.S. at 633, 106 S.Ct. at 1409. Even so, under Michigan, we must next determine if Young affirmatively requested counsel because an affirmative request for counsel is an "extremely important fact" in determining the validity of a subsequent waiver. Id. at 633 n. 6, 106 S.Ct. at 1409 n. 6. Young testified that, at the time he was "magistrated" in this murder case, he told the magistrate he did not have an attorney and he signed an affidavit of indigency using the name he was in jail under. He returned the affidavit to the bailiff, who handed it to the magistrate. The trial court's file did not contain an affidavit. The magistrate did not recall whether Young signed an affidavit. The trial court found that "at the time of arraignment on December 26, 1988 the defendant did not 189 sign an affidavit of indigency for the appointment of an attorney under his true name, Scott Dwayne Young." (Emphasis added.) It further found that "[d]ue to the defendant's various aliases, counsel was not appointed in this case by the court until January 13, 1989." Young's testimony that he affirmatively requested counsel is uncontroverted. The trial court's factual finding that Young did not sign an affidavit using his true name, Scott Dwayne Young, neither discredits Young's testimony nor contradicts Young's assertion that he did. Young testified that he signed the affidavit using the name Mark Johnson because the magistrate told him to use the name he was in jail under. Although the trial judge was permitted, even required, to evaluate the credibility of the testimony heard, she may not completely disregard the only positive evidence she heard. Cf. Sansom v. Sprinkle, 799 S.W.2d 776, 778 (Tex.App.Fort Worth 1990, orig. proceeding). Thus, we conclude that the record reflects that Young affirmatively requested counsel. The State next argues that, even if Young had requested counsel, the police probably would not have been aware of it because of the various names and cases involved, the delay of the holidays, and the change in the court personnel. We are unpersuaded. As the Court has earlier stated: Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendant's unequivocal request for counsel to another state actor (the court). Michigan, 475 U.S. at 634, 106 S.Ct. at 1410. In footnote, the Court further stated: "The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance." Id. Furthermore, the fact that counsel was not yet appointed at the time of the post-indictment, police-initiated interrogation is of no moment. In McLeod v. Ohio, 381 U.S. 356, 85 S. Ct. 1556, 14 L. Ed. 2d 682 (1965), the Court reversed a decision that the police could elicit information after indictment even though counsel had not yet been appointed. In considering the above facts on the issue of the validity of the subsequent waiver, we hold that the post-indictment, uncounseled written waiver of Young's Miranda rights resulting from police-initiated interrogation was legally invalid. See Michigan, 475 U.S. at 636, 106 S.Ct. at 1411. The State failed to meet its burden of establishing waiver. Thus, the trial court erred in admitting Young's written statement. We must next determine whether the error warrants reversal of Young's conviction. HARMLESS ERROR The effect of the Sixth Amendment violation here is limited to the admission of Young's statement. Young argues only that "the harm and damage caused by the admission of the edited statement before the jury is apparent." The State contends that error, if any, was harmless. The Supreme Court has permitted a Chapman v. California[15] harmless error analysis where the effect of a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial. See Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 1797-98, 100 L. Ed. 2d 284 (1988). The essence of Young's statement is as follows. Early in the morning on June 29, he saw a man, later identified as the deceased, harassing a lady. He confronted the man and told him to leave. The man asked Young who the hell he thought he was and pulled a knife. Young pulled a.357 Magnum and started chasing him. A group of Young's friends joined in. Young fired two or three shots and his friends also fired shots. The man fell down but got up and continued running. Young and his friends ran away in the other direction. "Bufford" Bernard, a 17-year-old, was 190 shooting a .22 caliber automatic 10 clip that looked like an Uzi or a little rifle with an extension on it. Bernard is in jail for two other murders. Young does not know the names of the others. Deborah Jones testified at trial that at 3:00 a.m. on June 29 she went to an upstairs apartment to buy some cocaine. The seller was at a window inside the apartment and there was a line of people there. Young, whom she had seen many times before, came up the stairs behind her. She was not under the influence of drugs or alcohol at the time. She bought $10 worth of cocaine. As she started down the stairs, she saw the deceased coming up the stairs. He had his hands in his pockets. Young told the deceased to take his hands out of his pockets. A few minutes later, she saw the deceased leaving. Young was following him. Young had nothing in his hands. The guy who had sold the cocaine came out of the apartment and handed Young a gun. Young shot the deceased once from behind. Jones saw sparks come from the gun. The deceased turned and looked back but kept going. Young got closer to the deceased and shot him from behind several times. The deceased fell. Young walked away. The cocaine seller walked up to the deceased and kicked him. The gun Young had was the only one she saw. About five minutes later the police came. Jones talked to them. The police later showed Jones a photo-spread which contained pictures of Young and Bernard. Jones identified Young. Seven spent .22 caliber shell casings were later found at the scene. Evidence showed the deceased was killed by a .22 caliber weapon. During its deliberations (at about 12:15 p.m.) the jury asked to have reread Jones's testimony about seeing Young fire the second burst of shots. Afterwards, the jury went to lunch. The guilty verdict was returned at 2:00 p.m. We conclude, therefore, that the jury rejected Young's statement in favor of Jones's testimony. Based on all the above facts, we conclude beyond a reasonable doubt that the error in admitting Young's statement did not contribute to the jury's guilty verdict or to the punishment assessed.[16]See Satterwhite, 108 S.Ct. at 1798. PRETEXT, DECEPTION In point of error two, Young contends that the trial court erred in admitting before the jury his written statement because it was obtained in violation of his Fifth Amendment rights.[17] He argues that the detectives obtained the statement under false pretext, by deception, by keeping him up into the late hours beyond his accustomed bedtime, and by refusing to accept his initial statement that he knew nothing about the offense. Young contends in his brief that he "was in no condition to intelligently, knowingly, and voluntarily waive his Fifth amendment rights when the `voluntary statement' was taken from him." We have reviewed the record and the totality of the circumstances concerning the taking of the confession. We hold that the trial court did not abuse its discretion in finding that the confession was freely and voluntarily given. It is undisputed that, prior to the commencement of the interrogation that led to the written confession, Young was warned of his constitutional rights and indicated that he understood these warnings. Young testified that there was no physical abuse, threats, promises, or coercion in securing his confession. There is nothing in the record to suggest the contrary. Young also claims that his confession was obtained under false pretext and deception because he was not told that he had been indicted in the murder case. However, on cross-examination Detective Alexander testified as follows: [DEFENSE COUNSEL]: What did youall talk about for those two hours? [DETECTIVE ALEXANDER]: I explained to him what he was charged with 191 and who I was, that I was the detective that had filed the case on him and explained to him what the charge was and where the offense occurred and when it occurred. [DEFENSE COUNSEL]: Did you explain to him that he had already been indicted? [DETECTIVE ALEXANDER]: I don't recall. The record also shows that the magistrate gave Young the statutory warnings [18] and told him that he had been indicted, but did not give him the specifics of the indictment. The trial judge is the sole judge of the credibility of the testimony and the witnesses. Gentry v. State, 770 S.W.2d 780, 790 (Tex.Crim.App.1988). It was the province of the judge to resolve this conflict in testimony. Jackson v. State, 672 S.W.2d 801, 804 (Tex.Crim.App. 1984). Furthermore, even if at the time of interrogation the detectives had not informed Young that he was the target of the murder investigation, his confession made during the interrogation would not for that reason alone be involuntary and inadmissible. See Sanchez v. State, 454 S.W.2d 210, 213 (Tex.Crim.App.1970). We overrule point of error two. EDITING In point of error three, Young contends that his case must be reversed because the State massively edited his "voluntary statement" and thereby changed the context of the statement and rendered it much more prejudicial and incriminating than it would be if it had been fairly presented. Young argues that the statement was so altered that it did not reasonably resemble his original statement. Young presents no authorities to support his argument as required by rule 74(f). See Tex.R.App.P. 74(f). In addition, Young has waived his "editing" complaint because he failed to object at trial. See Tex.R.AppP. 52(a). Even if Young had not waived error, we could not say that the trial court erred in admitting his statement because of editing or alteration thereof. Under the law at the time of trial, the State was required to delete portions of a defendant's statement for which it did not "vouch"[19] and failure to delete such portions could result in an insufficiency in the State's proof and an entry of a verdict of acquittal. Under the "rule of optional completion," Young had the option of offering the entire statement into evidence. See Tex.R.Crim.Evid. 107. Instead, he chose to read his own edited version to the jury on cross-examination. Because we find no error in admitting Young's partial statement into evidence, we overrule point of error three. The trial court's judgment is affirmed. NOTES [1] The trial judge who reviewed the record and signed the findings and conclusions after abatement was not the judge who tried the case and admitted the statement into evidence at trial. [2] It appears Young had two aggravated assault charges, one under the name Mark Johnson and one under the name Scott Young, that were nobilled on January 20, 1989. [3] In Texas, this is a term used to describe the procedure set out in article 15.17 of the Code of Criminal Procedure (hereafter referred to as the 15.17 proceeding), as distinguished from "arraignment" referred to in chapter twenty-six of the code. Tex.Code Crim.Proc.Ann. art. 15.17 (Vernon 1990). See Watson v. State, 762 S.W.2d 591, 594 n. 4 (Tex.Crim.App.1988). [4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602. 16 L. Ed. 2d 694 (1966). [5] See supra note 3. [6] He testified he was told to use the name he was in jail under and brought to court under. [7] U.S. Const, amend. VI. [8] Tex.R.App.P. 52(a). [9] 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. [10] Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). [11] Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). [12] The Miranda rights and a waiver of those rights were printed on the voluntary statement form. For reasons we discuss later, we find that waiver legally ineffective. [13] Because Young had already been indicted, it is irrelevant that, under Texas law, a 15.17 proceeding does not constitute a critical stage of the proceedings triggering the right to counsel. Watson v. State, 762 S.W.2d 591, 594 n. 4 (Tex. Crim.App.1988). [14] See, e.g., Brewer v. Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424 (1977) ("[A] person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against himwhether by way of formal charge, preliminary hearing, indictment, information, or arraignment.") (emphasis added), quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411 (1972) (plurality opinion). [15] 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). [16] Young had a prior conviction in the same court for unlawful possession of cocaine. [17] U.S. Const, amend. V. [18] Tex.Code Crim.Proc.Ann. art. 15.17 (Vernon Supp.1991). [19] The voucher rule was discussed in Palafox v. State, 60S S.W.2d 177, 181 (Tex.Crim.App.1978). This voucher rule was abolished in Russeau v. State, 785 S.W.2d 387, 390 (Tex.Crim.App. 1990) where the Court stated that the State was no longer required to delete portions of a defendant's statement or face an acquittal due to rule 607 of the Texas Rules of Criminal Evidence. TEX.R.CRIM.EVID. 607.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1543962/	55 B.R. 160 (1985) In re AMERICANA APPAREL, INC., Debtor. OFFICIAL CREDITORS' COMMITTEE, Plaintiff, v. CHARLES GORDON & SONS, INC., Defendant. Bankruptcy No. 82-05350G, Adv. No. 85-0042G. United States Bankruptcy Court, E.D. Pennsylvania. November 13, 1985. 161 Claudia Z. Springer, Mitchell K. Posner, James R. Malone, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for plaintiff, Official Creditors' Committee. Jane B. McElhenney, Wessel and Carpel, Philadelphia, Pa., for defendant, Charles Gordon & Sons, Inc. Edward J. DiDonato, Ciardi, Fishbone & DiDonato, Philadelphia, Pa., for debtor, Americana Apparel, Inc. OPINION EMIL F. GOLDHABER, Chief Judge: The matter in dispute is whether we should disallow or subordinate an insider's proof of claim against the debtor. For the reasons stated herein we will subordinate the claim to the interests of general unsecured creditors. We outline the facts of this controversy as follows:[1] The debtor filed a petition for reorganization under chapter 11 of the Bankruptcy Code ("the Code") in 1982. Ten years earlier the debtor was formed shortly after the execution of a pre-incorporation agreement signed by Charles Gordon and Sons, Inc. ("Gordon"), who is the claimant at issue, Jacob Gordon, Bernard Rosen, Max Lipschutz and Bert Resnick. The agreement specified the amounts of stock each of the above named entities would receive in exchange for his contribution to the debtor. In the following language the agreement also provided the basis for Gordon's claim in the case before us: The [debtor] will enter into an agreement with Charles Gordon & Sons, Inc. whereby Charles Gordon & Sons, Inc. shall be paid three and one-half percent (3½) of the gross receipts of [the debtor] and Charles Gordon & Sons, Inc. shall act as a consultant to [the debtor] in establishing and maintaining its retail outlets. Pre-incorporation agreement at p. 3. Although asked to do so, Gordon could not produce any written contract which was adopted to implement the above quoted consulting clause in the pre-incorporation agreement and the individual Gordons could not remember the terms of any oral consulting contract. At all pertinent times the debtor's principal officeholders were Jacob Gordon as president, Saul Gordon as secretary and Joseph Gordon as treasurer, each of whom was also a shareholder. Each of these individuals also held the same respective corporate offices in the debtor. Gordon failed to introduce any credible evidence that Gordon performed any consulting services in addition to the services required by the individual Gordons as officers of the debtor. From the incorporation of the debtor until the end of 1975 the 3½% fee was paid within the calendar year that the fee accrued. Thereafter, the payments were made with increasing delinquency as is set forth below in a footnote.[2] All the while the payments to Gordon were delayed, other 162 creditors were generally being paid on a timely basis, at least until shortly prior to the filing of the chapter 11 petition. At no time did Gordon resort to "self-help" or judicial process to collect on the claim. The existence of the 3½% fees was a closely kept secret which was apparently known only to the signatories of the pre-incorporation agreement. The liability was not reflected on the debtor's financial statements as either a short or long term obligation and it was not listed on Gordon's books as an account receivable. The debt was not made known to the debtor's creditors and, in fact, it was not listed in the debtor's schedule of debts when it filed its petition for bankruptcy even though those schedules were signed by Joseph Gordon. The schedules then revealed that a debt of only $3,365.00 was owed by the debtor to Gordon. This continued even through the filing of the debtor's disclosure statement thus making that document woefully inadequate. The plan, likewise deficient, treated aggregate claims of $600,000.00 rather than claims of over $1,000,000.00 with the inclusion of the alleged debt. The existence of Gordon's claim did not come to light until January of 1984 with the filing of its proof of claim for $434,266.56. The Official Creditors' Committee filed an objection to the proof of claim challenging the existence of any obligation in that amount owing to Gordon and also filed a complaint to subordinate the claim to the rights of general unsecured creditors. The evidentiary effect afforded a proof of claim is specified in Bankruptcy Rule 3001(f) which states that "[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." Under this rule a claim has a presumption of validity until a party objecting to the claim has introduced evidence sufficient to rebut the claimant's prima facie case. In Re Mobile Steel Co., 563 F.2d 692, 701 (5th Cir.1977). This rule likewise applies to the claims of insiders. The principle enunciated in Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939), requiring a claimant who is a fiduciary to a corporation, to prove the good faith and inherent fairness of his transactions with the corporation, does not apply until the objecting party overcomes the prima facie effect of the claim. Absent such a requirement, an intolerable burden would be placed on corporate fiduciaries, requiring them to prove the good faith and fairness of each of their dealings with the corporation. In re Mobile Steel Co., 563 F.2d at 701. Subordination of a claim is expressly authorized by 11 U.S.C. § 510 of the Code, which states as follows: (a) A subordination agreement is enforceable in a case under this title to the same extent that such agreement is enforceable under applicable nonbankruptcy law. 11 U.S.C. § 510. The court's power of subordination under this provision is, of course, not unlimited although it may be used under the following circumstances: (i) The claimant must have engaged in some type of inequitable conduct[;] (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant[; and] (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In Re Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977); In Re Multiponics, Inc., 622 F.2d 709, 713 (5th Cir.1980); In Re Breezewood Acres, Inc., 28 B.R. 32, 35 (Bankr.M.D.Pa.1982). Where the claimant is a fiduciary of the debtor, the courts have generally required a showing of fraud, overreaching, inequitable conduct or, in some instances, the violation of the rules of fair play and good conscience by the claimant, in order to warrant subordination of a particular claim. See, e.g. Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238; Frasher v. Robinson, 458 F.2d 492, 493 (9th Cir.1972), cert. den., 409 U.S. 1009, 93 S. Ct. 443, 34 L. Ed. 2d 302 (1972); In Re Midtown Produce Terminal, Inc., 599 F.2d 389, 392 (10th Cir.1979); Zimmerman v. Central Penn National Bank (In Re Ludwig Honold Mfg. Co., Inc.), 46 B.R. 125, 128 *163 (Bankr.E.D.Pa.1985). Applying this authority to the case before us, it is clear that the Creditors' Committee has overcome the prima facie validity of Gordon's proof of claim. Since Gordon is an insider the burden of supporting the validity of the transaction at issue falls on it. In this it has utterly failed. There is no credible evidence supporting the existence of a contract for consulting services other than the above quoted language from the pre-incorporation agreement. Furthermore, the management of Gordon, the alleged consultant, consisted of Joseph, Jacob and Saul Gordon, all of whom were senior officers of the debtor. The situation at bench is tantamount to hiring oneself as a consultant. The 3½% obligation expressed in the pre-incorporation agreement bears little resemblance to a debt obligation and, in fact, prior to the filing of the petition, the parties treated the obligation as an equity interest in the debtor. We hold that the $434,266.56 figure represents Gordon's equity interest in the debtor rather than its interest as a creditor. We conclude that this is a sufficient basis for subordination under 11 U.S.C. § 510 and we will enter an order subordinating this interest to the rights of general unsecured creditors. NOTES [1] This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052. [2] Time of Generation Time of Payment of Gross Receipts of 3-½% Fee January 1975 1/14/76 February 6/29/76 March 9/13/76 April 1/7/77 May 4/3/77 June 9/28/77 July 6/22/78 August 10/6/78 September 10/6/78 October 10/6/78 November 10/6/78 December 3/8/79 January 1976 3/8/79 February 1/10/80 March 1/16/80 April 2/15/80 May (Cessation of payments)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1543965/	53 F.2d 593 (1931) HOOPER v. FIRST EXCHANGE NAT. BANK OF CUR D'ALENE et al. No. 6481. Circuit Court of Appeals, Ninth Circuit. November 9, 1931. Rehearing Denied December 7, 1931. 594 Fred B. Morrill and James P. Dillard, both of Spokane, Wash., for appellant. William B. McFarland, of Coeur D'Alene, Idaho, for appellees. Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge. WEBSTER, District Judge. The litigation involved in this appeal arises out of an oral agreement for the sale of an interest in real estate located in the state of Washington. The action was brought in the District Court of the United States for the District of Idaho. The record in the case is in a most unsatisfactory condition. To properly lay out before the mind the questions presented for decision, it is necessary to go into the pleadings at considerable length. In his complaint appellant alleged in substance that in July, 1925, the appellee bank was the owner of an undivided one-half interest in certain farm lands lying in Adams and Whitman counties in the state of Washington, the other one-half interest therein belonging to appellant; that at the time stated E. E. Flood, as the president of the bank, by oral agreement sold to appellant the bank's one-half interest in these lands, and agreed to deliver to him a written contract duly and properly executed by the bank evidencing the oral agreement; that simultaneously therewith appellant executed and delivered to Flood a promissory note for $10,000 payable to the bank, upon the promise of Flood that the bank would execute the written contract contemplated; that subsequently this note was renewed; that the bank failed, neglected, and refused to execute the written contract in accordance with the verbal agreement; that in the meantime, and upon the assurances of Flood that the bank would execute a written contract, appellant paid in principal and interest on the note and in taxes on the property purchased amounts totaling $4,417.35; that at the time of the oral agreement the Federal Land Bank of Spokane, Wash., held a mortgage on the lands agreed to be purchased, and that appellant paid as interest on the bank's share of this indebtedness the sum of $651.95; that, by reason of these payments, there was due appellant from the bank the sum of $5,069.30; that because of the failure of the bank to execute the written contract contemplated by the parties, appellant received no consideration for the promissory note and was therefore entitled to cancellation and return of the note together with judgment for the sum of $5,069.30 paid out by him as already mentioned; that the bank failed and refused to pay its share of the Federal Land Bank note and mortgage, and also failed to pay the taxes on its one-half interest in the lands, and in consequence the mortgage was foreclosed and the lands sold under execution; and that thereby the bank placed itself in such a position that it could not and did not give appellant any consideration for the promissory note or the payments made by appellant. The prayer of the complaint is for, first, judgment 595 for the sum of $5,069.30 with legal interest; second, for the cancellation and return of appellant's promissory note held by the bank; and third, "for such other, further and different relief as to the Court may seem just and equitable in the premises." Appellees attacked the complaint by motion to dismiss the action upon the ground, among others, that the complaint did not state sufficient facts to constitute a cause of action. This motion was denied by the court. Whilst the complaint is inartificially drawn and does not define the theory upon which a recovery is sought with very much clarity, the pleading is open to the construction that the appellant was treating the oral agreement, unsupported by the written contract, as void under the statute of frauds, and was seeking the recovery of the amount of the payments made by him on an implied contract as for money had and received. It seems reasonably certain that this was the construction placed upon it by the trial judge, for, if he had regarded the complaint as stating an action for a breach of the express oral agreement, he would have granted appellees' motion to dismiss. The complaint on its face alleged an oral agreement for the sale of an interest in real estate, and consequently the appellees had the right to raise the question of the statute of frauds by demurrer or motion to dismiss. Equity rule 29 (28 USCA § 723); Simpkins' Federal Practice (Rev. Ed.) pages 667 and 668; Randall v. Howard, 2 Black (67 U. S.) 585, 17 L. Ed. 269. Construing the complaint as an action for the recovery of money which in the circumstances it would be unconscionable and inequitable for the appellees to retain, the motion to dismiss was properly denied. Dunphy v. Ryan, 116 U. S. 491-497, 6 S. Ct. 486, 29 L. Ed. 703; Purcell v. Miner, 4 Wall. (71 U. S.) 513-518, 18 L. Ed. 435; Trimble v. Donahey, 96 Wash. 677, 165 P. 1051. Following the denial of their motion to dismiss, appellees filed an answer denying all the material allegations of the complaint, and in addition pleaded a number of affirmative defenses and set up a counterclaim. Passing by a maze of wholly irrelevant and redundant matter, the first affirmative defense sets forth, in substance, that during the month of July, 1925, while the appellant and the bank were the joint owners of the lands in question, it was agreed between them that the former would execute and deliver to the latter his promissory note for $10,000 bearing interest at 7 per cent. to be renewed from time to time, not to exceed two years, and that, when this note was paid, the bank would convey to appellant its one-half undivided interest in the lands subject to a mortgage to the Federal Land Bank of Spokane which appellant was to assume; that, in addition, he was to pay the taxes on the lands; that, pursuant to this agreement in July, 1925, appellant did execute and deliver to the bank his promissory note in the amount stated; that thereafter, and on August 11, 1925, the board of directors of the bank passed a resolution authorizing the officers of the bank to execute a deed to appellant for the bank's interest in the lands upon the payment by appellant of his promissory note; that appellant was advised of this resolution, and that the bank did not agree that any written contract was to be drawn other than this resolution; that the bank and its receiver at all times have been ready and willing to convey to appellant the bank's interest in the lands upon the payment by appellant of his promissory note; that the note had only been paid in part; that appellant had neglected to pay the principal or interest of the Federal Land Bank note and mortgage and permitted the taxes on the lands to become delinquent; that he suffered the mortgage to be foreclosed and the lands to be sold, and, by reason of these facts, was estopped to claim any relief against the appellees. For a second affirmative defense appellees alleged that appellant remained in possession of the premises, acquiesced in the verbal agreement, never demanded a written contract, defaulted in the payment of the principal and interest on the Land Bank note and mortgage, allowed the taxes to become delinquent, kept the appellee receiver in ignorance thereof, and waited until after the institution of foreclosure proceedings before making any claim against the receiver, and that appellant was thereby barred by laches from asserting any claim against the bank or its receiver. A third affirmative defense set forth a proceeding in the District Court of the United States for the Eastern District of Washington, and pleaded the judgment in that cause as res adjudicata. At the oral argument counsel for appellees admitted the insufficiency of this defense, so we shall not go into its details. Finally, and by way of "counterclaim and cross complaint," appellees set up the renewal note executed by appellant, acknowledged certain payments thereon, and prayed judgment for the balance of the principal and interest due on the note. Counsel for appellant did not challenge the legal sufficiency either of the affirmative defenses or of the counterclaim, nor did they file any pleading in response thereto. With the 596 pleadings in this condition, the parties waived a jury and tried the case to the court, who entered a "decree" dismissing appellant's complaint, awarding appellees judgment for the amount due on the renewal note, and ordering appellee receiver to execute a deed of conveyance for the property to appellant upon the payment by him of the amount found due on the note. Appellant brings the record of this decree here for review. It is not clear from the record whether the parties treated the proceeding as an action at law or a suit in equity. Since, however, appellant sought the cancellation of his promissory note and prayed for general equitable relief, the appellees attacked the complaint by motion to dismiss as distinguished from a demurrer, pleaded equitable estoppel and laches as affirmative defenses, and the court entered a decree ordering a conveyance of land under certain conditions, we think the prevailing characteristics of the record warrant us in treating the proceeding as a suit in equity notwithstanding the fact that the parties solemnly waived a jury trial. At the trial appellant testified in support of the allegations of his complaint and proved the payments made by him, as set forth in the complaint. The amount of these payments is not disputed. Appellees then called as a witness E. E. Flood, who testified to the verbal agreement but denied that any written contract was contemplated by the parties. The resolution passed by the board of directors of the bank referred to by appellees in their first affirmative defense was offered in evidence. It reads as follows: "A resolution was presented authorizing the officers of the bank to issue a deed to R. J. Hooper to the real estate formerly owned by Walter Hooper, upon the payment by R. J. Hooper of his note for $10,000." During the testimony of the witness Flood, the appellant objected to any evidence in support of the verbal agreement, but insisted that the witness be confined to a denial of the payments as testified to by appellant, upon the ground that the oral agreement was within the statute of frauds. Thus for the first time the question of the statute of frauds was specifically brought into the record. When the resolution of the bank was offered in evidence, counsel for appellant objected to its admission upon the ground that it was not a sufficient writing to remove the transaction from the bar of the statute of frauds. The appellees then called the vice president and former cashier of the bank, who testified to the amount due on the promissory note of appellant which was given in renewal of the original note executed at the time of the verbal agreement. If the action was treated in the court below as one at law, the Idaho statute provides that the affirmative matter set up in the answer and also the counterclaim would be deemed controverted by the opposite party without the filing of any reply by the appellant. Section 6717, Idaho Compiled Statutes. And this rule would be followed by the Federal District Court sitting in that state. Simpkins' Federal Practice (Rev. Ed.) page 38, and cases there cited. On the other hand, if the action was treated as one in equity, and as we have said this appears to be the case, the affirmative matter pleaded in the answer as a defense would be deemed to be denied by the appellant, but, as to the counterclaim set up by appellees on the promissory note, appellant would be called upon to file a reply within ten days or within a longer period if allowed by the court, and, in default of such reply, a decree pro confesso on the counterclaim might have been taken. Equity rule 31. Appellees, however, did not raise the question of the failure of appellant to reply to the counterclaim, but instead proceeded to put in evidence in support thereof precisely as though appellant had in fact filed a reply. There was no suggestion in the court below that the allegations of the counterclaim stood admitted by the failure of appellant to reply thereto. Nor was any motion made for a decree pro confesso on the counterclaim. The authorities are abundant that by so proceeding the appellees waived the failure on the part of the appellant to file a reply. 49 Corpus Juris, pages 845 and 846. If appellees had moved in the lower court for a decree pro confesso on their counterclaim, and thereby had called attention to the failure of appellant to controvert its allegations, the court undoubtedly, in the furtherance of justice, would have permitted appellant to deny the allegations of the counterclaim, for it was apparent on the face of the pleadings that, instead of confessing liability on the promissory note constituting the basis of the counterclaim the appellant in his complaint was praying for the cancellation of that very instrument. In this state of the record, therefore, it was competent for appellant to raise the question of the statute of frauds by objecting to the introduction of evidence by appellees tending to prove the specific terms and conditions of the verbal agreement of July, 1925, and, in the same manner, to interpose the bar of the statute to the counterclaim. May v. Sloan, 101 U.S. 231, 25 L. Ed. 797; Dunphy v. Ryan, supra; 6 Encyclopedia 597 of United States Supreme Court Reports, page 471; 27 Corpus Juris, page 373. The only witness in behalf of the appellees who testified concerning the transaction between appellant and the bank was the witness Flood, and he admitted that the agreement was oral, and further testified that no written contract was ever in the contemplation of the parties. In the examination of the appellant and Flood, there was drawn into the record a fringe of fact and circumstance having to do more or less directly with the surroundings and conditions existing at the time the oral contract was made, and also the claimed delinquencies on the part of the parties respectively in failing to carry out their several undertakings and obligations. It appears that the Court took the case under advisement and later made findings of fact and conclusions of law, and pursuant thereto entered a decree of the character hereinbefore pointed out. Among other things the court found that, at the time the verbal contract was entered into between appellant and the bank, and at the time of the execution and delivery of the promissory note by appellant, he was in possession of the lands and premises as an owner of a one-half undivided interest in the lands and under a lease given to him on November 23, 1923, by his brother, Walter Hooper, the then owner of the remaining undivided one-half interest therein, which lease was for a term of three years, and that appellant continued in possession of the lands and premises after this lease had expired and until the foreclosure of the mortgage by the Federal Land Bank; that appellant defaulted in the payment of the principal and interest on the note and mortgage to the Federal Land Bank, permitting taxes to become delinquent, suffered and permitted the Land Bank to foreclose its note and mortgage and to sell the property at foreclosure sale, and "thus permitted defendants to lose such interest as they had in said lands and premises"; that this result was wholly due to the default and neglect of appellant and was not due to any default or neglect on the part of the appellees; and that, by reason of this conduct on the part of appellant, he was estopped to claim any of the relief prayed for by him. An examination of the record discloses that, at the time of making the verbal agreement in July, 1925, appellant held a lease for three years on the one-half undivided interest in the lands which subsequently passed to the bank. This lease was duly recorded in the proper place for recordation and had not then expired. It will be seen, therefore, that appellant did not go into possession of the property pursuant to the verbal agreement. He was already in possession of the property in virtue of his own interest therein and under a valid unexpired lease for the remaining interest. While the court found that appellant remained in possession of the premises after the expiration of this lease and up to the time of the institution of the foreclosure proceedings by the Federal Land Bank, there is nothing in the record upon which to base any such finding. The appellees offered no testimony on this point at all, and the appellant testified that upon the expiration of the three-year lease he entered into a lease with a third party for his one-half undivided interest in the lands and explained to his lessee that he would have to make his own arrangements for the one-half undivided interest owned by the bank. This testimony stands unchallenged. We should be slow to disturb the finding of the trial court if there appeared to be a substantial conflict in the testimony, but we cannot allow ourselves to be bound by a finding which is in direct conflict with all the evidence in the record touching the fact found. We shall not labor the proposition at great length that under the conditions disclosed by the record the appellant was not estopped from seeking a recovery of the payments made by him pursuant to a void verbal agreement for the sale of real estate. The appellees knew of the existence of the mortgage to the Federal Land Bank and had every means of being informed concerning whether or not payments were being made upon it in compliance with its obligations. They also had access to the public records to ascertain whether the taxes upon the property were in default. Appellant did not go into possession of the property in pursuance of the agreement, nor did he remain in possession after the expiration of the three-year lease. It seems quite unwarranted to say that in such circumstances there was such conduct on the part of appellant injuriously affecting the appellees as to preclude him from relief to which otherwise he would be entitled. And the same observations are equally pertinent to the defense of laches which after all is but a form of estoppel. The opinion of the District Judge who tried this case is not in the record, but, from excerpts claimed to be taken from it set forth in the appellant's brief and unchallenged by opposing counsel, it would appear that the court upheld the transaction as binding on *598 appellant upon the theory that the resolution of the bank adopted on August 11, 1925, was sufficient, with the aid of extrinsic evidence, to remove the transaction from the operation of the statute of frauds. To this view we are unable to subscribe. The lands were located in the state of Washington, and the contract of the parties was made and to be performed in that state. In such circumstances the statute of frauds of the state of Washington as construed by the Supreme Court of that state is the one by which the rights of the parties to this controversy must be determined. 25 Rawle C. L. page 698. It is settled by the decisions of the Supreme Court of Washington construing the Statute of Frauds of that state that oral contracts for the sale of real estate and contracts not to be performed within one year from the making thereof are void. Churchill v. Stephenson, 14 Wash. 620, 45 P. 28; Graves v. Graves, 48 Wash. 664, 94 P. 481; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Hendry v. Bird, 135 Wash. 174, 237 P. 317, 240 P. 565; Tonkoff v. Roche Fruit & Produce Co., 137 Wash. 148, 242 P. 3; Tracy v. Barton, 139 Wash. 440, 247 P. 734. Under the decisions of the Supreme Court of Washington, it is too plain for discussion that the resolution is wholly insufficient. It does not purport to set out any of the terms or provisions of the oral agreement, and it does not even recite the state or county in which the lands are located. It amounts to nothing more than a ratification by the bank of the authority of Flood to represent it in the negotiations here involved and empowered its officers to execute a deed to appellant upon the payment of his promissory note. Such a document contains none of the essentials of an adequate memorandum to remove a transaction from the bar of the statute of frauds. Cushing v. Monarch Timber Co., 75 Wash. 678, 135 P. 660, Ann. Cas. 1914C, 1239; Beckman v. Brickley, 144 Wash. 558, 258 P. 488; Marshall v. Hillman Inv. Co., 151 Wash. 529, 276 P. 564; Broadway Hospital & Sanitarium v. Decker, 47 Wash. 586, 92 P. 445. Upon the whole controversy and in the light of what we have already said in this unavoidably lengthy opinion, we conclude that the rights of the parties are to be determined by the following considerations: The oral agreement of July, 1925, for the sale of an interest in lands, was void under the applicable statute of frauds, and nothing was added to the situation by the resolution of August 11, 1925; that the appellant pursuant to this verbal agreement paid out the amounts of money hereinbefore stated; that the appellee bank received and enjoyed this money; that in effect appellant's complaint was a disavowal of the transaction and an effort to recover moneys which it would be unconscionable and inequitable for the appellee bank and its receiver to retain; that the counterclaim upon the renewal note was open to the same claim of the statute of frauds that the appellant relied on for recovery in his behalf; that the question of the statute of frauds was properly raised by objection to oral testimony seeking to establish against him a liability on the note; that there was neither estoppel nor laches precluding a recovery by appellant; and that in consequence he is entitled to a recovery of the money had and received by the bank upon the implied contract to return it. It appears from the record that, when the renewal note was executed by appellant, he borrowed of the appellee bank $1,000 which he received in cash and the renewal note was executed in the amount of $11,000 instead of $10,000, the amount of the original note. Counsel for appellant acknowledged at the time of the oral argument that this $1,000 with interest from the date of the note should be deducted from the amount due appellant as for payments made pursuant to the original oral agreement. The decree appealed from will be reversed, and the cause will be remanded to the District Court, with directions to set aside the decree heretofore entered and in lieu thereof to enter a decree in favor of appellant for the amount of the payments hereinbefore set forth, less $1,000, with interest thereon from the date of the renewal note at the rate of interest stated in that note, and that the promissory note of appellant now in the hands of the appellee receiver be delivered up by him for cancellation, without prejudice to the right, if any, of the appellee to recover for the use and occupation of the premises or the rents, issues, and profits thereof, if any. Reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1614890/	502 So. 2d 1185 (1987) CITY OF JACKSON, Mississippi v. Robert J. KEANE. No. 55820. Supreme Court of Mississippi. January 21, 1987. As Modified on Denial of Rehearing March 4, 1987. 1186 John Hedglin, Jackson, for appellant. Hugh W. Tedder, Jr., McKinley & Tedder, Jackson, for appellee. Before ROY NOBLE LEE, P.J., and ROBERTSON, and ANDERSON, JJ. ANDERSON, Justice, for the Court: The City of Jackson alleges error in a jury award of $75,000 to Dr. Robert J. Keane for erosion damage to his land caused by the flow of the Caney Creek drain and for costs of improvements on the creek necessary to prevent further damage. The jury received and considered evidence on the matter and found the city was in fact liable for the maintenance of the creek (a natural drain) and rendered a verdict for $75,000 in damages to the appellee. We see no error in the finding of liability and therefore affirm that part of the judgment; however, we reverse and remand on the issue of damages. Dr. Robert J. Keane in 1978, purchased a three and one-half acre tract of land in southeast Jackson for the sum of $30,000. The property was bounded on the west by a natural drain known as Caney Creek. The title to this creek is held by the State of Mississippi. Keane filed suit against the City of Jackson in September 1983 seeking damages in the amount of $175,000. The complaint alleged that the city had assumed a duty to maintain the creek and its failure to do so had caused the resulting erosion damages to his property. There was testimony that approximately 950 square feet of the appellee's property had been washed away, equalling about one-tenth of one percent of the land. There was further testimony that the erosion damage could be repaired by replacing the eroded soil. The cost of such repair would be between $8,000 and $15,000. However, this restoration was not recommended by the witnesses because replacement soil would be washed away with the next rain unless certain improvements were made on the creek. The appellee presented evidence that it would cost approximately $95,000 to improve the creek through a process "riprapping". The city has riprapped part of the creek and city employees testified that while they had cleaned debris from parts of the creek, both above and below the property of appellee, they did not clean the creek adjacent to appellee's property because it would have worsened the erosion problem. It has been determined that since 1978 approximately the western one-third of appellee's property in question lies within the Caney Creek floodway. By current city ordinance no buildings can be erected in a floodway. Further, a real estate appraiser testified on behalf of the city that because the property was located in a floodway, there was no difference in the value of the land before and after the erosion occurred. He also stated that the current value of the property is approximately $30,000 per acre. The city appeals from a jury award in the appellee's favor and assigns several points of error. We find it necessary to address only the assignment of error regarding damages. 1187 I. DID THE TRIAL COURT ERR WITH RESPECT TO EVIDENTIARY RULINGS AND JURY INSTRUCTION RULINGS CONCERNING THE MEASURE OF DAMAGES, IF ANY, TO WHICH THE PLAINTIFF WAS ENTITLED? The trial court granted Instruction P-5 which reads: The court instructs the jury that if you find for the plaintiff, Robert J. Keane, the measure of his damages would be the cost to repair his property so as to put it in the same condition as it was before it was damaged. The reasonable cost of repair can include such measures, as may be reasonable and necessary, to prevent Caney Creek from damaging his property again. As a further element of damage, if you find for the Plaintiff, Robert J. Keane, you may take into consideration the value of his property before the damage occurred in comparison to the value of the property after the damage occurred to ascertain what amount of permanent damage has been suffered by the plaintiff, if any. This instruction is an incorrect statement of the applicable law in that it permits recovery for both diminution in value and cost of repair without reference to the effect of repairs on value. We recently reviewed the issue of the appropriate measure of damages in cases such as this in Bell v. First Columbus National Bank, 493 So. 2d 964 (Miss. 1986), we held that: Plaintiff can choose to prove either reasonable cost of replacement or repairs or diminution in value, and if he proves either of these measures with reasonable certainty, damages are allowable, so long as the plaintiff will not be unjustly enriched and the defendant does not demonstrate that there is a more appropriate measure of damages. In addition, landowners may recover special damages proved. These special or incidental damages are elements of damage separate, distinct, and independent of the depreciation of the value of the property or of the depreciation of the rental or usable value of the property. Included in the category of special or incidental damages are annoyance, discomfort, inconvenience, and sickness. 66 C.J.S., Nuisances § 175, p. 979. There may be others. City of Oxford v. Spears, 228 Miss. 433, 87 So. 2d 914. Another element of damages to be considered in this case is the cost of making improvements to the creek. There is sufficient evidence that certain improvements would be necessary in order to prevent further damage to the property of appellee. While we have not dealt directly with this issue in this state, other jurisdictions and authorities have held that landowners who have made necessary and reasonable expenditures to prevent future damages to property could recover the cost. In Stratford Theater, Inc. v. Stratford, 140 Conn. 422, 101 A.2d 279 (1953), a landowner repaired a city sewer line on his property to prevent continued damage after the city failed in its duty to do so. That Court stated: Where the injury to real estate caused by a nuisance is not permanent and the owner takes reasonable measures to remedy the nuisance and prevent further injury, he is entitled to recover, as an element of damages, the reasonable cost of the measures he takes if that cost does not exceed the diminution of the rental value of his property which would take place were the nuisance allowed to recur, and if the measures taken do not enhance the value of the property over what it was before the injury occurred. City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 8 Cir., 61 F.2d 210, 213, reversed on other grounds. 289 U.S. 334, 53 S. Ct. 602, 77 L. Ed. 1208; Murray v. City of Butte, 35 Mont. 161, 168, 88 P. 789; Tombari v. City of Spokane, 197 Wash. 207, 214, 84 P.2d 678; Belkus v. City of Brockton, 282 Mass. 285, 288, 184 N.E. 812; Emery 1188 v. City of Lowell, 109 Mass. 197, 201; see Ferrigno v. Odell, 113 Conn. 420, 427, 155 A. 639; Restatement, 4 Torts, § 930; 3 Sedgwick, Damages (9th ed.) p. 1958. 140 Conn. at 425, 101 A.2d at 281. Restatement 2d, Torts, § 930, also supports recovery of reasonable expenditures: (3) The damages for past and prospective invasions of land include compensation for * * * * * (b) either the decrease in the value of the land caused by the prospect of the continuance of the invasion measured at the time when the injurious situation became complete and comparatively enduring, or the reasonable cost to the plaintiff of avoiding future invasions. This rule is also set forth in 25 C.J.S., Damages § 49, which provides: As a general rule, a party is entitled to all legitimate and reasonable expenses necessarily incurred by him in an honest endeavor to reduce the damages flowing from or following the wrongful act, especially where his attempt to reduce the damages proves to be successful. Thus, a party may recover expenses legitimately incurred in attempting to prevent loss and damage to property, ... . * * * * * * Expenses incurred in mitigating damages are recoverable only where they were prudently incurred, as a result of a fair exercise of judgment to make the damages less, and only where they were reasonably warranted by, and proportioned to, the injury and consequence to be avoided. We agree with the general rule that a landowner can recover reasonable and necessary expenses incurred in an attempt to prevent future damages, so long as those expenses do not exceed the diminution in value the property would suffer if the preventive measures are not undertaken. We affirm as to liability and remand this case to the trial court for a new trial as to damages in accordance with this opinion. AFFIRMED AS TO LIABILITY; REVERSED AND REMANDED FOR DETERMINATION OF DAMAGES. WALKER, C.J., and ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and GRIFFIN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2589329/	52 N.Y.2d 1064 (1981) Conduit and Foundation Corporation, Respondent, v. State of New York, Appellant. (Claim No. 54809.) Court of Appeals of the State of New York. Argued January 12, 1981. Decided February 26, 1981. Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Richard J. Dorsey of counsel), for appellant. David R. Paley and Tony Berman for respondent. Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur. 1066MEMORANDUM. The order of the Appellate Division should be modified by reinstating the judgment of the Court of Claims, except as to the award on the ninth cause of action, which should be reduced to $10,299.34. As so modified, the order should be affirmed, with costs to claimant. The Court of Claims correctly concluded that as to the subsoil conditions the State made no misrepresentation and claimant assumed the risk of the "high incidence of boulders" of which the specification warned. Recovery of the consequential damages sought in the second through fifth causes of action was properly denied (see Foundation Co. v State of New York, 233 N.Y. 177, 184-185; Public Constructors v State of New York, 55 AD2d 368). That direct costs were allowed is not inconsistent, for by agreeing to the redesign requested by claimant the State in effect agreed to the additional direct costs. It did not agree to pay damages for the delay and since it made no misrepresentation incurred no liability for such damages. The courts below have, however, improperly permitted recovery on the ninth cause of action of damages for increased costs associated with the installation of a sewer on Rust Street. They found that the State misrepresented the subsoil conditions in that area and failed to supply adequate plans indicating the presence of various utility lines. With respect to the claimed misrepresentation, the State had made no test borings on Rust Street and did not possess any detailed special knowledge of the subsoil conditions there. The contract documents instructed bidders to make their own inspection of the site and expressly precluded reliance upon any representations as to the physical condition of the worksite. Accordingly, there is as a matter of law no basis in this record for the finding of misrepresentation as to the subsoil conditions on Rust Street, and any additional costs stemming from the nested boulders must be borne by the claimant (see Foundation Co. v State of New York, supra, at pp 184-185). To the extent that damages under the ninth cause of action were premised on faulty plans which failed to disclose utility lines on Rust Street, the contract expressly 1067 provided that "the contractor is cautioned that these locations (gas, electrical lines, etc.) are not guaranteed nor is there any guarantee that all such lines in existence, within the contract limits, have been shown on the plans." Claimant assumed the risk that the sewer to be built might run afoul of existing utility lines, or be inconveniently proximate to them. Thus, recovery on the ninth cause of action should be barred except to the extent that the State concedes liability for $10,299.34 for the specific delay in approval of a redesign plan caused by its consultants. The challenges by the State to awards by the Court of Claims on the other causes of action must be rejected because the affirmed findings of fact with respect to them have support in the record. Order modified, with costs to claimant, in accordance with the memorandum herein and, as so modified, affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2589346/	52 N.Y.2d 813 (1980) State Division of Human Rights, on Complaint of Donald Gladwin, Appellant, v. McHarris Gift Center, Respondent. Court of Appeals of the State of New York. Argued November 19, 1980. Decided December 22, 1980. L. F. Walentynowicz for appellant. Andrew S. Kowalczyk, Jr., for respondent. Concur: Judges GABRIELLI, JONES, WACHTLER and FUCHSBERG. Chief Judge COOKE dissents and votes to reverse in an opinion in which Judges JASEN and MEYER concur. Judge JASEN dissents in a separate dissenting opinion in which Judge MEYER also concurs. Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 813). Chief Judge COOKE (dissenting). Presented here is only one question whether the State Division of Human Rights has jurisdiction under subdivision 2 of section 296 of the Executive Law to act on a complaint charging discrimination through the display and sale of ethnic "joke" novelty items. Because the majority holds that it does not, I must dissent. As relevant here, subdivision 2 of section 296 makes it an unlawful discriminatory practice for the proprietor "of any place of public accommodation * * * directly or indirectly * * * to * * * display * * * any written or printed communication * * * to the effect that any of the accommodation, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of * * * national origin * * * or that the patronage or custom thereat of any person of [a particular national origin] is unwelcome, objectionable or not acceptable, desired or solicited." Complainant, an individual of Polish heritage, filed a complaint with the State Division of Human Rights charging the McHarris Gift Center with the unlawful discriminatory practice of denying him equal advantages, facilities, privileges and accommodations of a place of public accommodation 815 because of his national origin. The basis of the complaint was the sale and display by McHarris Gift Center of three novelty items that were demeaning to persons of Polish extraction. The three items were a pencil with an electric cord marked "Polish Calculator", a cylinder marked "Polish bowling ball", and a mug with the handle inside marked "Polish mug." Although the State division dismissed the complaint for lack of jurisdiction, the Human Rights Appeal Board disagreed, finding both jurisdiction and probable cause to proceed further pursuant to the Human Rights Law. McHarris Gift Center then commenced a proceeding in the Appellate Division pursuant to section 298 of the Executive Law to annul the board's order. The Appellate Division granted the petition, reversed the board's order and dismissed the complaint. The court concluded that the items were "offensive and in poor taste", but that they were not communications prohibited by subdivision 2 of section 296. This appeal followed and the majority now affirms. I am unable to join in this affirmance. The Human Rights Law was designed "to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life" and "to eliminate and prevent discrimination" in, among other things, places of public accommodation (Executive Law, § 290, subd 3). Liberal construction of the statutory provisions is necessary to effectuate its purposes (see New York Inst. of Technology v State Div. of Human Rights, 40 N.Y.2d 316, 324-325). Subdivision 2 of section 296 quite definitely proscribes the display of a printed or written communication which suggests that the patronage of a person of a particular national origin at a place of public accommodation is "unwelcome, objectionable, not acceptable, desired or solicited." It forbids the denial or withholding of equal access to and treatment in such places. The statute unquestionably prohibits a proprietor from excluding a particular group by means of a sign prominently displayed directly stating the exclusion. It also reaches the less obvious discriminatory conduct that takes the form of exclusion by inference (see Matter of Trowbridge v Katzen, 14 AD2d 608). 816There can be no doubt that the items displayed here were a printed or written communication. On one level the items communicate simply the point of the so-called "joke" the crude, unfair and totally incorrect picture of persons of Polish heritage. While possibly some may find humor in this or consider it harmless bad taste, to others the communication from these items when displayed may be far different and far more destructive: that the patronage of persons depicted and ridiculed by the so-called "joke" is unwelcome, objectionable or unacceptable. It is the latter that the majority refuses to acknowledge. This court is not called upon at this time to say that the display here necessarily evinces the prohibited conduct and constitutes an unlawful discriminatory practice. Indeed, the court is not asked to decide whether the complaint should be sustained on the merits. The only issue is whether the State division has jurisdiction over this complaint. At the very least, the possibility of a veiled discriminatory tactic can be discerned here. Not only does the majority ignore this, but in denying jurisdiction here, it effectively prohibits complaints of discrimination that take the form of exclusion by indirection. By today's action, the majority sweeps aside and needlessly restricts the protections against discrimination intended by subdivision 2 of section 296. Given the language of the statute, its remedial purposes and the acts at issue, I am unable to join in the majority's decision. JASEN, J. (dissenting). I join in Chief Judge COOKE'S dissent, but, in doing so, I would add that the fundamental right of all ethnic and racial groups to be free of the adverse effects of intentional ethnic or racial discrimination and ridicule was intended by the Legislature to be protected in enacting subdivision 2 of section 296 of the Human Rights Law. Any individual of Polish heritage actually or likely to be present in the gift store could reasonably have regarded the words printed on the particular items displayed as a direct personal insult and designed to single out persons of Polish heritage for ridicule and discrimination. The statutory grounds of objection to this kind of public display of discrimination and defamation are identical with *817 the objections in the past to common signs saying, "No Irish Need Apply", "Whites Only", and "Gentiles Only". It follows that unless one is willing to reject the proposition that certain racial and ethnic groups in this country have in fact suffered injuries in the past as a result of racial and ethnic defamation and ridicule that have been perpetuated in the public mind, one cannot reject the proposition that the State Legislature intended, in enacting subdivision 2 of section 296 of the Human Rights Law, to correct this injustice and ameliorate social tensions resulting from such discriminatory and defamatory actions. It is a statute specifically directed at a defined evil discriminatory practice against a person because of his "race, creed, color, national origin or sex". Such discriminatory acts directed at a specific ethnic group not only stigmatize them as a group, but also as individual members of such group being publicly exposed to such discrimination and ridicule. It is for this reason, I believe, that the Legislature, having knowledge of racial and ethnic discrimination in our State, decided to hold accountable those who intentionally publicly display objects with printed words which are discriminatory and defamatory against an identifiable racial or ethnic group. Although only those of Polish heritage are the most direct victims of the discrimination and ridicule displayed here, the general public also suffers harm when such discriminatory material is disseminated. Such actions, in my opinion, contribute to the creation and maintenance of prejudicial beliefs and discriminatory behavior throughout our society which in turn lead to structured social inequalities between people of different ethnic and racial groups. Since the Legislature has commendably expressed a desire to protect persons of all ethnic groups and religious persuasions from the effects of the type of discrimination involved here, I would reverse the order of the Appellate Division and hold that the State Human Rights Appeal Board correctly found both jurisdiction and probable cause to proceed further pursuant to the Human Rights Law. Order affirmed, etc.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2589350/	52 N.Y.2d 963 (1981) SCA Chemical Waste Services, Inc., Respondent, v. Board of Appeals of the Town of Porter et al., Appellants. Court of Appeals of the State of New York. Argued January 6, 1981. Decided February 12, 1981. George A. Orr, Jr., for appellants. H. Kenneth Schroeder, Jr., Stephen H. Kelly and Anne S. Simet for respondent. Concur: Judges JONES, WACHTLER, FUCHSBERG and MEYER. Judge GABRIELLI dissents and votes to reverse in an opinion in which Chief Judge COOKE and Judge JASEN concur. Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice JOHN J. CALLAHAN at the Appellate Division (75 AD2d 106). GABRIELLI, J. (dissenting). I am required to dissent for I believe that the majority errs in affirming the determination of the Appellate Division, which held that a large pipeline carrying hazardous industrial waste water from an industrial waste disposal plant is not an impermissible industrial activity within the meaning of the zoning laws of the Town of Porter. As demonstrated below, such a pipeline can be nothing but an industrial activity, and should therefore properly be prohibited from traversing the agricultural, residential and environmental zones of the town. Petitioner SCA Chemical Waste Services, Inc., is engaged in the business of disposing of vast amounts of hazardous industrial waste. In 1974 the State Department of Environmental Conservation granted permission to petitioner for the discharge of treated waste water in the Niagara River. In 1978, petitioner's discharge permit was amended to allow it to discharge the effluent into a nearby creek which runs into the river, provided that a 20:1 dilution ratio of water to effluent was maintained. However, 966 this was unworkable since the creek proved to be too small and petitioner found it impossible to dispose of a significant amount of effluent while maintaining the required dilution factor. By 1979, petitioner's storage facilities were in danger of becoming completely inadequate, and petitioner thereupon proposed building a pipeline to carry the effluent from its plant to the river, a distance of approximately five miles. An application was approved by the Department of Environmental Conservation. Since the projected route of the pipeline was to pass through the Town of Porter, petitioner applied to the town for (1) excavation, (2) construction, and (3) special use permits. The town rejected the applications on several grounds, concluding first that the pipeline activity, including the treatment of the waste and effluent, the construction of the pipeline and its patrolling and maintenance was an industrial use not permitted by the provisions of the zoning regulations governing the area through which the pipeline was to pass. Additionally the board concluded that the pipeline presented an unacceptable danger to public health and the environment. The instant article 78 proceeding to challenge that determination ensued. Special Term rejected the finding that the pipeline would be a danger, but concluded that the board had not acted improperly in denying the application on the ground that the pipeline was a forbidden industrial use. On petitioner's appeal to the Appellate Division, that court reversed and concluded that the petitioner was entitled to the permits because a "pipeline" is not an industrial use. A majority of this court now affirms on the opinion at the Appellate Division. Petitioner has not attacked the validity of the zoning ordinance only its application. In enacting its ordinance in 1968, the Town of Porter specifically sought to and did exclude industrial activity from its agricultural, residential and environmental zones. The particular nature of the petitioner's business, the nature of the fluid to flow through the pipeline in relation to that business and its deleterious effect upon residential and agricultural uses of the land, mandate that the order of the Appellate Division be reversed. Petitioner's business is to treat, store and dispose of 967 hazardous industrial solid and liquid wastes. The proposed pipeline will form an integral part of that disposal process and is to be used only for industrial purposes. That no treatment of wastes takes place within the pipeline does not mean that use of the pipeline is not part of the industrial process. Indeed, the conclusion that the pipeline is not an industrial activity because it is simply a vehicle for transporting material after completion of the treatment process presents a nearsighted view of this unique situation. The waste treatment and its disposal are integrated parts of a single process which is not complete until the waste is actually dumped. It is of consuming interest to note that this court has held that an access road or driveway over and on a residential lot for access to a commercial parking garage on an adjacent business lot was actually a part and parcel of the business of garaging vehicles, the use of which could be enjoined as nonresidential (City of Yonkers v Rentways, Inc, 304 N.Y. 499). This case closely parallels the present situation. Just as an access road leading to a commercial garage has been considered to be part of a business use, so too must a pipeline used exclusively as a conduit for effluent emanating from a waste treatment plant be considered an industrial use. Indeed, as then Judge FULD wrote for an unanimous court: "The power to regulate `trades and industries' obviously includes the power to regulate any part or portion of a trade or industry" (City of Yonkers v Rentways, Inc, 304 N.Y. 499, 503). That the pipeline itself is below the surface does not alter the use to which the land is being put. As part of the control process and in order to measure any adverse environmental impact emanating from undetected leakage petitioner will use monitoring wells, aboveground air relief valves and manholes, and will also patrol the line. This surface and under-surface use of land must be viewed as incompatible with the agricultural, residential and environmental reserve districts through which the five-mile line will pass. Finally, although the Department of Environmental Conservation concluded that the pipeline could be built, its final report listed as an unavoidable negative impact the potential development of undetected leaks which *968 could mix with groundwater and soil and remain undetected until the effluent surfaced. The pipeline's metering system was designed to detect leakage above 14 gallons per minute, which would translate to undetected leakage of 840 gallons per hour or 20,160 gallons per day. It cannot be disputed that such activity would serve to hinder the development of the uses for which the agricultural, residential and environmental zones were properly designed. Accordingly, and for all of the foregoing reasons, the order of the Appellate Division should be reversed. Order affirmed, etc.	01-03-2023	10-30-2013

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