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https://www.courtlistener.com/api/rest/v3/opinions/2983235/	Order filed, September 02, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-14-00632-CV ____________ C&G WELDING, INC., Appellant V. DANNY GRAY, Appellee On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2013-19356 ORDER The reporter’s record in this case was due August 15, 2014. See Tex. R. App. P. 35.1. The court has not received a request to extend time for filing the record. The record has not been filed with the court. Because the reporter’s record has not been filed timely, we issue the following order. We order Carolyn Coronado, the official court reporter, to file the record in this appeal within 10 days of the date of this order. PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1598805/	729 So.2d 336 (1998) Ex parte AMOCO FABRICS AND FIBERS COMPANY. (In re Danny STOKES and Phillip Williams v. AMOCO FABRICS AND FIBERS COMPANY, INC.). No. 1970497. Supreme Court of Alabama. December 18, 1998. Rehearing Denied January 15, 1999. 337 David J. Middlebrooks of Lehr, Middlebrooks, Price & Proctor, P.C., Birmingham, for petitioner. Truman M. Hobbs, Jr., of Copeland, Franco, Screws & Gill, P.A., Montgomery, for respondents. LYONS, Justice. The defendant Amoco Fabrics and Fibers Company ("Amoco") petitioned this Court for a writ of certiorari to review whether the Court of Civil Appeals erred in reversing the summary judgment entered by the trial court in favor of Amoco and against the plaintiffs Danny Stokes and Phillip Williams. See Stokes v. Amoco Fabrics & Fibers Co., 729 So.2d 330 (Ala.Civ.App.1997). We granted review. For the reasons discussed below, we affirm the judgment of the Court of Civil Appeals. The issue is whether Stokes and Williams produced substantial evidence to support the finding that Amoco's policy-and-procedure manual created an employment contract between its employees Stokes and Williams on the one hand and Amoco on the other that prevented Amoco from "laying off" those employees in any order other than by seniority. Amoco hired Stokes and Williams to work in its Andalusia Mills facility in 1985 and 1987, respectively. Stokes and Williams say that throughout their employment, until they were laid off, Amoco had operated under what they describe as a general seniority policy. They say that Amoco set out part of this policy in an employee handbook distributed to all Amoco employees.[1] Stokes and Williams also maintain that the other part of Amoco's general seniority policy appeared in Amoco's manual of policies and procedures, which contained the following specific policy and procedure for a "LayoffReduction in Work Force": "Policy: "The Company intends to provide maximum job security for employees with the greatest seniority in the event it becomes necessary to reduce the work force. "Procedure: "1. Whenever it is necessary to reduce the number of employees within a job classification the employee within that classification 338 with the least job seniority will be reduced from that job...." This "layoff/reduction-in-workforce policy" appeared only in Amoco's policy-and-procedure manual. Amoco's employee handbook did not contain this specific policy. Amoco's policy manual was issued only to supervisors and was not distributed to other Amoco employees. However, employees were informed of Amoco's general corporate practices and were told that the manual was available for their reference. Furthermore, both Stokes and Williams maintain that Amoco communicated its policies to them and followed both its general seniority policy and the lay off/reduction-in-workforce policy throughout their tenure. They say that their supervisors briefed them on the layoff/reduction-in-workforce policy and told them how it worked. Neither of them actually saw the written policy until June 1992, when Stokes went to the plant's human resources department after hearing rumors of an impending layoff. In response to his question about what kind of seniority would control in a layoff, a human resources supervisor referred him to the layoff/reduction-in-workforce policy in the manual. On September 25, 1992, Amoco sold its Andalusia facility to Shaw Industries. When the sale became effective at midnight on the night of September 25, all employment with Amoco at the plant was terminated, with the exception of that of a few managers who were transferred to other Amoco facilities. Stokes and Williams contend that, on the afternoon of September 25, before the sale became effective, they were part of a group of seven industrial mechanics whose positions were terminated in an effort to reduce the industrial-mechanic department to meet Shaw's requirements. This decisionmade by Cary Baker, the Amoco plant manager, who became a Shaw employee when the sale became effectivedid not take into account the length of service of the employees. Stokes and Williams were offered lower-paying, entry-level positions with Shaw as "creel hands," but they refused these job offers. Stokes and Williams then sued Amoco, alleging in part that Amoco's layoff/reduction-in-workforce policy formed the basis of an employment contract and that Amoco had breached that contract by terminating them without regard to their seniority.[2] In entering the summary judgment for Amoco, the trial court stated, in pertinent part: "The court notes, in particular, its opinion that there is no genuine dispute as to: "(1) The fact that [Stokes and Williams] were at-will employees. [Stokes and Williams] or Amoco [was] free to terminate the employment agreement at any time. "(2) The fact that Amoco sold the Andalusia Mills facility, effective midnight September 25, 1992. "(3) The fact that [Baker] became an employee of Shaw Industries in a managerial capacity and was acting as such in determining who would be offered jobs by Shaw Industries. ". . . . "There is evidence from which a jury might conclude that the decision made on behalf of Shaw Industries to ignore [the] seniority [of Stokes and Williams] at Amoco and [to] offer them employment as entry-level creel hands rather than [as] mechanics was arbitrary or unfair. Such conduct, however, does not rise to the level of an actionable, legal wrong." In reversing the summary judgment, the Court of Civil Appeals held that the evidence could have supported a finding that Stokes and Williams were not at-will employees, and it concluded that a genuine issue of material fact existed as to whether the industrial mechanics were terminated by Amoco, in order to meet Shaw's demand for a reduction in the maintenance department. Standard for Review of a Summary Judgment The principles of law applicable to the granting of a summary-judgment motion are well settled. To grant such a motion, the judge must determine that no genuine issue of material fact exists and that the movant is 339 entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions have been satisfied, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, we apply the same standards as did the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990). Analysis The bedrock principle of Alabama employment law is that, in the absence of a contract providing otherwise, employment in this state is at-will, terminable at the will of either party. Under this doctrine, an employee may be discharged for any reason, good or bad, or even for no reason at all. See Bell v. South Central Bell, 564 So.2d 46 (Ala.1990). While at-will employment is indeed the traditional model, Alabama has, in the relatively recent past, imposed certain limits on an employer's right to discharge an employee. Among those limitations is an exception, recognized by this Court, for implied contracts arising out of the use of an employee handbook. In Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987), Alabama adopted the position, taken by a number of other jurisdictions, that the provisions of an employee handbook can become a binding unilateral contract, thereby altering an employment relationship's at-will status. Modeled on the leading case of Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), Hoffman-La Roche represented a departure from the at-will employment doctrine, but it also recognized that not all employer communications would justify such treatment. Rather, only those employer communications meeting the traditional requirements for the formation of a unilateral contractan offer, communication, acceptance, and considerationwill bind the parties. We must begin the Hoffman-La Roche analysis by determining whether the evidence in this case would support a finding that Amoco used the seniority provision in its manual as an offer of a unilateral contract fixing a term or condition of employment. "[To] become a binding promise, the language used in the handbook [i.e., the `manual'] must be specific enough to constitute an actual offer rather than a mere general statement of policy." Hoffman-La Roche, 512 So.2d at 734, (citing Pine River, 333 N.W.2d at 626). Not only must we construe the language of the provision to be definite enough to form an offer, we must also determine whether the provision could have been meant to be an offer for a unilateral contract. "[W]hether a proposal is meant to be an offer for a unilateral contract is determined by the outward manifestations of the parties, rather than by their uncommunicated beliefs." Id.; see, also, Amoco Fabrics & Fibers Co. v. Hilson, 669 So.2d 832, 835 (Ala.1995); Mayo v. Andress, 373 So.2d 620 (Ala.1979). If the provision in the manual meets the contractual requirements for an offer, then we must determine whether the evidence indicates that the offer was communicated to the employees, either by issuance of the manual or otherwise. Id. Finally, we must determine whether the evidence indicates that the employees accepted the offer by continuing their employment after becoming aware of the offer. Id. By continuing their employment, the employees would supply the remaining elements of a unilateral contract, acceptance, and consideration. Id. Stokes and Williams presented substantial evidence that could be taken to establish all elements of the Hoffman-La Roche test. First, they produced substantial evidence indicating that the language contained in the handbook and the policy-and-procedure manual is specific enough to constitute an offer. 340 The layoff/reduction-in-workforce policy specifically states that "[w]henever it is necessary to reduce the number of employees within a job classification the employee within that classification with the least job seniority will be reduced from that job." Furthermore, Stokes and Williams presented substantial evidence to support a finding that Amoco intended its seniority policy to be an offer. Both of them testified that Amoco communicated the policy to them as a benefit of employment, and Stokes testified that Amoco followed the seniority policy during his employment. This evidence of Amoco's "course of dealings" is exactly the same kind of evidence this Court found sufficient to create an offer in Hilson, supra. Accordingly, Stokes and Williams presented substantial evidence indicating that Amoco's manifestations created an offer.[3] Second, Stokes and Williams produced substantial evidence to support a finding that Amoco communicated the offer to them either by the issuance of a handbook "or otherwise." While it is undisputed that Amoco did not distribute the policy-and-procedure manual to Stokes and Williams, they both testified in their depositions that their supervisors informed them of the layoff/reduction-in-workforce policy. Stokes also stated that Amoco had followed the policy up until his termination. He said that "[w]hen Amoco Fabrics and Fibers, Andalusia Mills first came to Andalusia, things just didn't work out right and they had to lay off and it was by seniority." Again, this "course of dealings" evidence is exactly the same kind of evidence to which this Court gave weight in finding a unilateral contract in Hilson, supra. Finally, it is undisputed that Stokes and Williams continued their employment after Amoco informed them of the layoff/reduction-in-workforce policy. They both worked until 1992, when they were fired, long after they had learned of the policy. Therefore, Stokes and Williams presented substantial evidence from which the factfinder could find all three elements of the Hoffman-La Roche test, and we agree with the Court of Civil Appeals that the summary judgment was improper insofar at it was based on a conclusion that the evidence would not support a finding that Stokes and Williams had an employment contract with Amoco. Amoco, however, argues that it had placed in its manuals a disclaimer stating that no part of its manuals constituted a binding contract, and it argues that, because of this disclaimer, the layoff policy could not be used to support a finding of a contract. This Court generally gives effect to disclaimers such as this one. See, e.g., Abney v. Baptist Medical Centers, 597 So.2d 682 (Ala. 1992). However, it is undisputed that Amoco's disclaimer had no effect until October 1, 1990; this was several years after the time at which the evidence indicates that Amoco had communicated the layoff policy to Stokes and Williams and that they had accepted the policy by continuing their employment.[4] One party cannot unilaterally alter the terms of a contract after the contract has been made. See Kinmon v. J.P. King Auction Co., 290 Ala. 323, 276 So.2d 569 (1973). Both parties must mutually assent to a modification. Id., 290 Ala. at 325, 276 So.2d at 570. Because Amoco produced no evidence indicating that Stokes and Williams assented to the terms of the disclaimer, Amoco could not unilaterally rely on that disclaimer as altering the terms of the contract. Therefore, the original terms of the contract must be given effect. 341 Furthermore, this Court held in Hilson, supra, that Amoco could not unilaterally "revoke [its] vacation pay policy" contained in its handbook "once the employees had performed." 669 So.2d at 835. Because it is undisputed that both Stokes and Williams continued their employment after the date at which the evidence suggests Amoco had made the policy known to them, Amoco could not, by inserting a disclaimer after the fact, revoke the layoff policy that had formed a binding contract between the parties. Also, in Hilson, it was clear that Amoco, through its course of dealing with its employees, had followed its vacation-pay policy. As noted above, Stokes testified that Amoco had followed its layoff policy before. Stokes and Williams's evidence would support a finding of the elements necessary for the layoff policy to constitute a contract; such a contract should be enforced. Amoco does not argue that the Court of Civil Appeals erred in concluding that a question of fact existed as to whether Amoco fired Stokes and Williams on September 25, 1992. Thus, we need not address that aspect of the Court of Civil Appeals' opinion. The judgment of the Court of Civil Appeals is affirmed. AFFIRMED. ALMON, SHORES, HOUSTON, and KENNEDY, JJ., concur. HOOPER, C.J., and MADDOX, COOK, and SEE, JJ., dissent. HOOPER, Chief Justice (dissenting). The purpose of this Court is not to undo the law that businesses have relied upon for years in preparing their contracts. A gradual erosion of a solid legal principle is different from a revolutionary overthrow in at least one key respectthe time it takes to accomplish the result. Judge Thompson's dissent predicts the alarming result this Court's opinion will have in the marketplace: "A finding that a policies and procedures manual extends a unilateral offer of a contract would effectively eradicate the concept of at-will employment for all companies large enough to require internal operating policies and procedures. Indeed, under such a broad interpretation of Hoffman-La Roche, every statement made by a supervisor to an employee regarding company policy could be construed as a unilateral offer of a contract." Stokes v. Amoco Fabrics & Fibers Co., 729 So.2d 330, 335 (Ala.Civ.App.1997) (Thompson, J., dissenting). I believe Judge Thompson's prediction is accurate. It highlights the power of this Court to undermine a principle of contract law that is based on solid precedent. Perhaps there is another respect in which a gradual erosion of law differs from a revolutionary overthrow. It is more difficult for the people to perceive that the law has been altered if a court allows it to be slowly eroded. I find the dispositive question in this case to be whether, based on the evidence, as it is stated in the main opinion, a factfinder could find that Amoco made a contract offer to its employees. We must evaluate the external and objective actions of Amoco to determine whether an employee reasonably could have believed that Amoco offered the employee the layoff/reduction-in-workforce policy and intended to be bound by its terms. It is undisputed that Amoco made its policy manual available to its employees, even though it was only distributed to supervisors. As illustrated by Stokes's testimony regarding his own experience, specific provisions of the policy manual were communicated to employees upon inquiry. However, I do not agree that these facts would be enough to create a reasonable belief that Amoco had offered the layoff/reduction-in-workforce policy to its employees. Rather, I find that a reasonable employee would not have construed Amoco's activities as an offer for a unilateral contract. The evidence showed that Amoco did not actively disseminate its layoff/reduction-in-workforce policy, as contained in its policy manual, but disclosed it only sporadically in response to employees' questions. The fact that Amoco did not distribute its policy manual to all hourly employees severely undercuts the notion that Amoco intended to be bound by its contents. See, e.g. Kuta v. Joint Dist. No. 342 50(J), 799 P.2d 379 (Colo.1990) (limited distribution of handbook showed there was no implied contract); Lakeside v. Freightliner Corp., 612 F.Supp. 10 (D.Or.1984) (manual that was accessible to workers but that was distributed only to managers did not form an employment contract). Amoco did, however, distribute personal copies of its employee handbook to its employees as general guides to Amoco's policies. Yet, these handbooks did not contain the layoff/reduction-in-workforce policy at issue here. The omission of that specific policy should have alerted Stokes and Williams that Amoco was not promising them the protection of seniority in the event of a layoff. To show an offer of a company policy, more is required than has been shown here. It is important to note that one of the cases underlying the decision in Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), the basis for our analysis in this area(see Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987))specifically held that a personnel policy manual that was not distributed to employees could not become a part of the employment contract. See Cederstrand v. Lutheran Brotherhood, 263 Minn. 520, 117 N.W.2d 213 (1962). The Cederstrand court noted that the plaintiff was the employer's personnel director and was certainly aware of the contents of the manual, but it wrote: "The fact that the dismissal provision was not included in the Employee's Manual, given to new employees explaining important personnel regulations, indicates that plaintiff did not consider it as a provision of her employment relationship.... The fact that it was not important enough to be included in the employee's handbook or employee's bulletins indicates forcefully that during its entire existence it was not regarded as a contractual offer to all employees, but merely as a policy guide for supervisory personnel." Cederstrand, 263 Minn. at 534, 117 N.W.2d at 222. This analysis is especially analogous to our present case, considering the fact that Amoco did not disseminate the layoff policy and did not include it in the employee handbook. In addition, the following disclaimer, printed in bold type and appearing in a separately outlined box at the beginning of the policy manual, clearly showed that Amoco did not intend to extend the policy manual as an offer for a unilateral contract: "Neither the policies contained herein nor any other communications made by a management representative, either written or oral, made at the time of hire or during the course of employment are intended in any way to create an employment contract or to alter the at-will status of employees." This statement in the manual shows that today's main opinion is not one that follows the precedent of Hoffman-La Roche; it breaks the mold and creates an entirely new method for courts to expand their interference and regulation of legitimate businesses. When Alabama allowed employee handbooks to abrogate the at-will employment doctrine, in Hoffman-La Roche, this Court specifically stated: "[I]f the employer does not wish the policies contained in an employee handbook to be construed as an offer for a unilateral contract, he is free to so state in the handbook." 512 So.2d at 734. This Court has repeatedly given effect to similar disclaimers. See Dykes v. Lane Trucking, Inc., 652 So.2d 248 (Ala.1994); Abney v. Baptist Medical Centers, 597 So.2d 682 (Ala.1992); Hanson v. New Technology, Inc., 594 So.2d 96 (Ala. 1992); Clark v. America's First Credit Union, 585 So.2d 1367 (Ala.1991); Stinson v. American Sterilizer Co., 570 So.2d 618 (Ala. 1990). The plaintiffs argue that this disclaimer should not be given effect because it was not directly communicated to them. However, the disclaimer was available to Amoco's employees on the same terms as the policies it disclaimed. It was prominently displayed in the manual and, if the employees had read it, it would have informed them that the policy manual was not intended as an offer of a unilateral contract. This displays the self-contradictory nature of the main opinion. Nondissemination of the policy obligates the employer, but publication of a disclaimer is ineffective. Such reasoning guts the ameliorative provision of Hoffman-La Roche that 343 seems to allow the employer to avoid having its manual interpreted as a contract. Finally, I note that Stokes and Williams argue that the company's layoff policy had been communicated to them on numerous occasions before Stokes saw the policy in the human resources office. I cannot hold that they offered substantial evidence indicating that Amoco informed them of the specific layoff policy. Phillip Williams testified that he never saw the layoff policy until after his employment with Amoco had ended. The company had informed Williams of its general seniority policy, but not the layoff policy: "Q.: Have you ever had [the layoff policy] reported to you verbally by anyone? "A.: Yes, sir. "Q.: By whom? "A.: By every supervisor I worked with starting with Wyman Helms.... "Q.: How is the policy characterized verbally? "A.: Well, you are toldwell, I'm not real sure about the part about the layoff part but you are told that any of the jobs it's always by job seniority, then department seniority and then plant seniority as far as job postings. And practically all plant business is carried on that way is what I was told." As Williams's testimony indicates, Amoco communicated to its employees its general seniority policy. However, I find no substantial evidence indicating that the specific layoff/reduction-in-workforce policy was orally communicated to Amoco employees by Amoco supervisors. Stokes's testimony further illustrates the lack of communication by Amoco regarding the specific layoff/reduction-in-workforce policy: "Q.: Had somebody told you about [the layoff policy] before that? "A.: Yes, sir. "Q.: Who had done that? "A.: Anytimenot particularly the layoff policy but anytime you apply for a job that's posted on the board or anything as far as promotion goes, whether you receive it or not, you are given that job or whatever by seniority and it's explained to you at that time. And I had applied for several jobs and had been awarded several promotions because of seniority and my abilities. So it's an ongoing thing. It's not I just saw it today for the first time. It was explained to me when I was hired in '85 that everything that was done there was done basically by seniority. "Q.: That is promotions would be? "A.: Promotions, layoffs." Stokes and Williams rely on these statements as evidence indicating that Amoco communicated the layoff policy to its employees. I find that, while these statements clearly show that Amoco communicated its general seniority policy that was to be followed in most employment decisions, they do not constitute substantial evidence from which one could find that Amoco made to the employees an offer of a unilateral contract. Stokes and Williams presented evidence of only general statements of policy on Amoco's part, general statements that do not rise to the level of an offer for a unilateral contract. If these statements are held to constitute such an offer, then every company that has standard operating policies could be considered to have offered a unilateral contract to its employees. This evidence would not support a finding of an offer on Amoco's part; therefore, Stokes and Williams had no contract abrogating their at-will status. The trial court properly entered the summary judgment for the employer, and the Court of Civil Appeals erred in reversing it. Therefore, I respectfully dissent. MADDOX, Justice (dissenting). I must respectfully dissent. As a necessary step in reaching its conclusion, the majority relies upon this Court's decision in Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987). I dissented in Hoffman-La Roche, because I did not believe that the provisions stated in a personnel handbook constituted a contract. I must dissent today based on the same reasons. In short, I do not believe Hoffman-La Roche was correctly decided; therefore, I do not believe this Court should continue to follow it. 344 I hasten to point out that I am aware of the argument that the stare decisis doctrine weighs in favor of following Hoffman-La Roche. While I would agree in the abstract that the stare decisis doctrine must be accorded great deference, I would note that, as I wrote in my Hoffman-La Roche dissent, the stare decisis doctrine "should never be used to perpetuate error." 512 So.2d at 752. In Hoffman-La Roche, the Court changed Alabama's employment-at-will doctrine and, therefore, usurped what I believe was rightfully the prerogative of the Legislature. I wrote then, and I still believe, "that the legislature is the appropriate body of government to address the policy considerations arising out of employer-employee relationships." Id. Accordingly, I respectfully dissent. NOTES [1] The "seniority" section of Amoco's employee handbook stated: "After successful completion of the sixty-day probationary period, you begin to accrue three types of seniority, retroactive to your first day of work. "1. Company SeniorityThis is the length of continuous service with Amoco Fabrics and Fibers Company. Company seniority will determine vacation pay, service awards, retirement benefits, and transfer right to a new plant. "2. Departmental SeniorityLength of continuous service in a department of a specific plant. If you receive a transfer across departmental lines, you will retain your departmental seniority in the previous department six months. "3. Job SeniorityLength of continuous service within a specific job classification. If you are promoted or transferred to another job classification, you will retain your job seniority in the previous job classification for six months." [2] Stokes and Williams also alleged fraud; the trial court entered a summary judgment on that claim as well. However, Stokes and Williams did not appeal that aspect of the judgment. [3] The Chief Justice's dissenting opinion states "that Amoco did not actively disseminate its layoff/reduction-in-workforce policy, as contained in its policy manual, but disclosed it only sporadically in response to employees' questions," and therefore, the dissent states, the policy was not an offer. 729 So.2d at 341. However, that dissenting opinion does not mention the fact that the evidence suggested that Stokes and Williams's supervisors often communicated the policy to them. It also does not recognize that when Stokes and Williams began their employment, Amoco told them that all layoffs were done according to seniority. Finally, it fails even to acknowledge the most compelling evidence, i.e., that Amoco followed the layoff/reduction-in-workforce policy during Stokes and Williams's tenure, at least until it terminated them. [4] The Chief Justice would give effect to this disclaimer, but his dissenting opinion ignores the fact that Amoco placed the disclaimer in the manual after the time at which Stokes and Williams could be found to have accepted Amoco's offer.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1867518/	956 So. 2d 1135 (2006) Dr. Dwight HOOPER v. COLUMBUS REGIONAL HEALTHCARE SYSTEM, INC., and Phenix Healthcare Services, Inc. 1031128. Supreme Court of Alabama. October 20, 2006. 1137 Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant. William H. Webster of Webster, Henry & Lyons, P.C., Montgomery; and James R. McKoon and Melissa B. Thomas of McKoon & Thomas, Phenix City, for appellees. PARKER, Justice.[1] I. Background Dr. Dwight Hooper is a physician who specializes in obstetrics and gynecology. In 1994 he entered into a three-year employment contract with Columbus Regional Healthcare System, Inc. Under the agreement, Columbus Regional Healthcare provided Dr. Hooper with hospital privileges at the Medical Center in Columbus, Georgia, and at Phenix Regional Hospital in Phenix City, Alabama. Columbus Regional Healthcare owns and operates the Medical Center. Columbus Regional Healthcare owns Phenix Healthcare Services, Inc. (hereinafter collectively "Columbus"), which owned and operated the Phenix Regional Hospital until it closed. On October 29, 1997, Dr. Hooper and Columbus entered into a new three-year employment agreement and that provided for the automatic renewal of the agreement thereafter on an annual basis. At the center of this case is a provision of the employment agreement that required Columbus to pay professional-liability insurance premiums for Dr. Hooper at the "standard rate." The agreement provided that, in the event Dr. Hooper was not insurable through Columbus at the standard rate, Columbus was obligated to pay the standard rate charged by the insurer for physicians in similar practices in Columbus, Georgia. Any portion of the insurance premium that exceeded the standard rate was to be paid by Dr. Hooper. 1138 Beginning in 1998, Dr. Hooper and Columbus were named as defendants in several malpractice actions. As a result of settlement negotiations in one of those actions, Columbus was required to pay the plaintiff $50,000 above the amount Dr. Hooper's insurer had agreed to pay. According to testimony in this case, at that point the relationship between Dr. Hooper and Columbus began to deteriorate. Shortly after the settlement in the medical-malpractice case, Lynne Anderson, a senior vice president of Columbus, informed Dr. Hooper that the insurer would not renew his professional-liability insurance policy when it expired in July 2000. Anderson also informed Dr. Hooper that he was no longer insurable at the standard rate and that he would have to find an insurance company that would provide non-standard-rate coverage. In July 2000, Dr. Hooper met with Larry Sanders, the chief executive officer of Columbus. At that meeting, according to Dr. Hooper, Sanders was uncharacteristically hostile and rude, and he made several insulting remarks concerning Dr. Hooper's competence as a physician. Sanders also stated: "I am sure you are looking for other [employment] opportunities; I would if I were you." (Dr. Hooper's brief at 14.) Although Dr. Hooper did write to the Seton Medical Group in Baltimore, Maryland, to inquire about possible employment, he continued working at Columbus while exploring options for non-standard-rate insurance coverage. Parker Harvey, an insurance broker in Atlanta, Georgia, referred to Dr. Hooper by Anderson, advised Dr. Hooper that the best rate he could find for professional-liability insurance coverage for physicians in similar practices in Columbus was $36,510 annually, which was more than double Dr. Hooper's previous premiums of approximately $15,000. Dr. Hooper gave this information to Don Elder, the senior vice president at Columbus who was handling Dr. Hooper's insurance matter, and requested that Columbus pay the $36,510 premium as required by the employment contract. Elder responded that Columbus would pay $15,000 "and not a penny more." (Dr. Hooper's brief at 16.) Dr. Hooper subsequently secured non-standard-rate professional-liability insurance coverage; because of the malpractice actions that had been brought against him, his annual premium for the coverage was $110,884. Columbus paid $15,000 toward the premium, and, although Dr. Hooper paid the balance of the premium, he argues that Columbus should have paid $36,510 toward his premium of $110,884. The relationship between Dr. Hooper and Columbus continued to deteriorate. Dr. Hooper's last day working for Columbus was November 10, 2000; he then moved to Baltimore to start work for the Seton Medical Group. Dr. Hooper had made arrangements with two other physicians to care for his patients. Approximately one month after moving to Baltimore, Dr. Hooper decided to return to Phenix City and open an independent practice. He stated that he had made insurance arrangements with Parker Harvey to take effect on the date of the scheduled opening of his private practice. When Columbus learned that Dr. Hooper planned to open a private practice in the area, however, it withdrew Dr. Hooper's hospital privileges, citing as grounds Dr. Hooper's alleged lack of professional-liability insurance coverage and his alleged abandonment of his patients. After several additional interactions, Columbus offered Dr. Hooper the opportunity to voluntarily resign his hospital privileges, in exchange for which Columbus would not file a report with the National Practitioner Data Bank, which ordinarily 1139 required the report of all suspensions of hospital privileges that exceeded 30 days. Dr. Hooper regarded these terms as contrary to Columbus's own bylaws and as a blatant attempt to blemish his professional record. He concluded, however, that he had no choice but to agree to the terms. Dr. Hooper was ultimately unable to establish his own practice in Phenix City, and he eventually moved to Tuscaloosa, where he took a job practicing with the Capstone Medical Group at the University of Alabama. Dr. Hooper sued Columbus in the Russell Circuit Court. He initially alleged 11 causes of action, but he eventually dropped all except the breach-of-contract, wanton and/or willful-conduct, and civil-conspiracy claims. Columbus Regional Healthcare filed a counterclaim against Dr. Hooper, alleging breach of contract. Extensive discovery was conducted, and the parties moved for a summary judgment. The trial court granted Columbus's motion for a summary judgment on Dr. Hooper's claims, and the trial court certified that judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. Columbus Regional Healthcare's counterclaim remains pending in the trial court. Dr. Hooper appealed. II. Standard of Review We review a summary judgment de novo. Potter v. First Real Estate Co., 844 So. 2d 540, 545 (Ala.2002) (citing American Liberty Ins. Co. v. AmSouth Bank, 825 So. 2d 786 (Ala.2002)). "`We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.'" 844 So.2d at 545(quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala.2000)) (citations omitted). Summary judgment is appropriate only when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. III. Analysis A. Breach of Contract "`To establish a breach-of-contract claim, a plaintiff must show "`(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant's nonperformance, and (4) damages.'"'" Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1195 (Ala.2003)(quoting Ex parte Coleman, 861 So. 2d 1080, 1085 (Ala. 2003)). Although the existence of a valid contract, i.e., the employment agreement, in this case is not disputed, the parties dispute the performance and damages elements of the breach-of-contract claim. For example, although Dr. Hooper provided evidence indicating that he performed as required under the employment agreement until his relationship with Columbus soured in 2000, Columbus argues that Dr. Hooper breached their agreement by leaving Columbus's employment without the 12 months' notice required by § 10(a) of the employment agreement. Dr. Hooper does 1140 not dispute that he failed to provide such notice; however, he asserts that Columbus breached the contract first by failing to pay the share of Dr. Hooper's professional-liability insurance it was required to pay under the agreement. Consequently, the question of Columbus's alleged nonperformance under the employment agreement must be answered to determine whether Dr. Hooper's failure to perform his obligations under the agreement is actionable. Dr. Hooper offered evidence indicating that Columbus breached the employment agreement first when it refused to pay the standard-rate premium of $36,510, as quoted by Parker Harvey, for physicians in similar practices in Columbus, Georgia. Columbus claims that its failure to pay the $36,510 portion of the premium was not a breach of the employment agreement because, it says, it was obligated to pay only $15,000, what it considered the standard rate. Columbus argues that the term "standard rate" as used in the employment agreement refers to the normal rate charged for professional-liability insurance for physicians generally, i.e., $15,000. Dr. Hooper argues that the term "standard rate" means the rate normally charged physicians who, like Dr. Hooper, have a heavy workload of high-risk patients. That rate was, at that time, $36,510. Because the language of § 6(a) of the employment agreement providing that if the premium for Dr. Hooper's professional-liability insurance exceeded the standard rate, Columbus would pay Dr. Hooper's insurer "that sum which is the insurer's standard premium rate for physicians in similar practices in Columbus, Georgia" could support Dr. Hooper's position, there is a genuine issue of material fact as to what is the applicable "standard rate," and, thus, whether Columbus breached the employment agreement when it refused to pay the $36,510 Dr. Hooper alleges was the standard premium for a doctor with his workload and type of patients. Consequently, the trial court erred when it entered a summary judgment for Columbus on the breach-of-contract claim. B. Wanton and Willful Conduct "This Court has defined `wanton conduct': "`[The] doing of some act or something with reckless indifference to the consequences of said act, or . . . a failure or omission to do something, with reckless indifference to the consequences of such failure or omission, that is, that the party acting or failing to act is conscious of his conduct, and even though without any actual intent to injure is aware from his knowledge of existing circumstances and conditions that his conduct would probably result in injury to another or in damage to his property.'" Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 679-80 (Ala.2001) (quoting Weatherly v. Hunter, 510 So. 2d 151, 152 (Ala.1987), quoting in turn W.T. Ratliff Co. v. Purvis, 292 Ala. 171, 176, 291 So. 2d 289, 293 (1974)). "`Wantonness involves the "conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result."'" Ammons v. Tesker Mfg. Corp., 853 So. 2d 210, 213 (Ala.2002) (quoting Hobart Corp. v. Scoggins, 776 So. 2d 56, 58 (Ala.2000)). "To constitute `willful or intentional injury,' there must be knowledge of danger accompanied with a design or purpose to inflict injury, whether the act be one of omission or commission." English v. Jacobs, 263 Ala. 376, 379, 82 So. 2d 542, 545 (1955). 1141 Dr. Hooper's complaint included separate claims of willful and wanton conduct against Columbus at each of the two hospitals operated by it. To establish those claims, Dr. Hooper must prove that Columbus had a duty to refrain from causing him the alleged injury or damage and that Columbus breached that duty. Beard v. Mobile Press Register, Inc., 908 So. 2d 932 (Ala.Civ.App.2004); Ammons, supra. Dr. Hooper proffered evidence indicating that Columbus sought to "blemish his record" and to prevent him from opening a medical practice in the Columbus, Georgia/Phenix City area. However, he failed to establish the existence of a duty toward him in this regard. He did not allege in his appeal that the "blemish" rose to the level of the tort of defamation, although he had included a defamation claim in his original complaint. Nor did Dr. Hooper establish that Columbus's alleged efforts to prevent him from opening a medical practice violated any duty Columbus owed him. Ordinarily, a business has no duty to assist a competitor in establishing a competing business in the same geographical area and thereby undermine its own business. We conclude that the trial court did not err in entering a summary judgment for Columbus on the claims alleging willful and wanton conduct, and we affirm the trial court's judgment as to those claims. C. The Civil-Conspiracy Claim "Civil conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means." Keith v. Witt Auto Sales, Inc., 578 So. 2d 1269, 1274 (Ala. 1991) (citing Eidson v. Olin Corp., 527 So. 2d 1283 (Ala.1988)). "The gist of an action alleging civil conspiracy is not the conspiracy itself but, rather, the wrong committed." 578 So.2d at 1274 (citing Sadie v. Martin, 468 So. 2d 162 (Ala.1985)). Columbus argues that it is well established that "`liability for civil conspiracy rests upon the existence of an underlying wrong and [that] if the underlying wrong provides no cause of action, then neither does the conspiracy.'" Ex parte Alabama Dep't of Transp., 764 So. 2d 1263, 1271 (Ala.2000) (quoting Jones v. BP Oil Co., 632 So. 2d 435, 439 (Ala.1993)). Because the trial court entered a summary judgment for Columbus on the underlying wrongs, that is, on the breach-of-contract, wanton-misconduct, and willful-misconduct claims, Columbus argues, there remains no basis for the civil-conspiracy claim. However, this Court is reversing the summary judgment on the breach-of-contract claim. In Barber v. Stephenson, 260 Ala. 151, 155, 69 So. 2d 251, 254 (1954), this Court defined civil conspiracy as "the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; or (c) something that is unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means." Dr. Hooper has failed to establish that Columbus's alleged breach of contract was "unlawful, oppressive, or immoral," or was done by "unlawful, oppressive, or immoral means," as described in Barber. Nor has Dr. Hooper cited applicable caselaw to establish that a breach of contract similar to the breach he alleges by Columbus can be the underlying wrong upon which a civil conspiracy can rest. As this court stated in Beachcroft Properties, LLP v. City of Alabaster, 901 So. 2d 703, 708 (Ala.2004): "Rule 28(a)(10), Ala. R.App. P., requires the appellant to cite relevant authority in support of its arguments. This is so, because `"it is neither our 1142 duty nor function to perform all the legal research for an appellant."' Henderson v. Alabama A & M Univ., 483 So. 2d 392, 392 (Ala.1986) (quoting Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala.Civ.App.1984)). `Nor is it the function of the appellate courts to "make and address legal arguments for a party based on undelineated propositions not supported by sufficient authority or argument."' Pileri Indus., Inc. v. Consolidated Indus., Inc., 740 So. 2d 1108, 1110 (Ala.Civ.App.1999) (quoting Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.1994)). Authority supporting only `general propositions of law' does not constitute a sufficient argument for reversal. Geisenhoff v. Geisenhoff, 693 So. 2d 489, 491 (Ala.Civ.App.1997)." Because Dr. Hooper has failed to demonstrate that civil conspiracy can be based upon a breach of contract as the underlying wrong, we do not address that claim. To the extent the summary judgment disposed of that claim, we affirm it. IV. Conclusion For the foregoing reasons, we affirm the trial court's summary judgment with respect to the claims of willful and wanton conduct and the civil-conspiracy claim, but we reverse it with respect to the breach-of-contract claim, and we remand the case for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. NABERS, C.J., and SEE, HARWOOD, STUART, SMITH, and BOLIN, JJ., concur. LYONS and WOODALL, JJ., concur in the result. NOTES [1] This case was originally assigned to another Justice; it was reassigned to Justice Parker.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874025/	752 N.W.2d 518 (2008) Trudy L. ADAMS, Relator, v. HORMEL FOODS CORPORATION, Self-Insured, Respondent, and Blue Cross & Blue Shield of Minnesota, Mayo Foundation, and Hormel Foods Corporation, Intervenors. No. A08-236. Supreme Court of Minnesota. July 16, 2008. Donaldson V. Lawhead, Austin, MN, for Relator. Mary E. Kohl, Stacey A. Molde, Johnson & Condon, PA, Minneapolis, MN, for Respondent. Considered and decided by the court en banc. ORDER Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals filed January 8, 2008, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that "[s]ummary affirmances have no precedential value because they do not commit the court to any particular point of view," doing no more than establishing the law of the case). BY THE COURT: /s/ Helen M. Meyer Associate Justice	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1351843/	219 Kan. 490 (1976) 548 P.2d 819 STATE OF KANSAS, Appellant, v. MICHAEL DANKO and TERRY PARKS, Appellees. No. 47,971 Supreme Court of Kansas. Opinion filed April 10, 1976. Salvatore A. Scimeca, Jr., County Attorney, argued the cause, and Curt T. Schneider, Attorney General, was with him on the brief for the appellant. Richard A. Pinaire, Deputy Public Defender, of Junction City, argued the cause and was on the brief for Michael Danko, appellee. Charles A. Chartier, of Junction City, argued the cause and was on the brief for Terry Parks, appellee. The opinion of the court was delivered by KAUL, J.: This is an appeal by the state, pursuant to K.S.A. 22-3603, from an order of the trial court sustaining motions of defendants to suppress evidence filed under K.S.A. 22-3216. The question presented is whether relevant evidence recovered by a search and seizure, allegedly in violation of the Posse Comitatus Act (18 U.S.C. § 1385), is to be suppressed. The question is one of first impression in this jurisdiction. On December 28, 1974, Officer John Hill, of the Junction City Police Department, was on patrol with Reserve Officer Clavin and Military Police Sergeant Danny Bevel, of the 977 Military Police Company from Fort Riley. Fort Riley is adjacent to Junction City and Sergeant Bevel accompanied Officer Hill under an arrangement between military authorities and Junction City police officials described as "joint patrol." At approximately 10:45 p.m. Hill received, by radio, a report of an armed robbery at Devane's Liquor Store. The report included a description of the "get away" vehicle which was described as a 491 1966 or 1967 Chevrolet station wagon, green in color, with Geary County license plates and with the right taillight blacked out. Hill observed a vehicle with the right taillight out and otherwise generally answering the description. He pursued and stopped the vehicle in a nearby parking lot. Hill testified that after stopping the vehicle he asked the driver, who was later identified as defendant Terry Parks, if his vehicle could be checked. Parks replied in the affirmative. He proceeded to check the driver's seat and front area of the vehicle and asked Sergeant Bevel to search the passenger side. In the course of his search Bevel recovered a pistol under the passenger seat. At this point, Hill explained to Parks that his vehicle was stopped because it fit the description of a vehicle reported as participating in the liquor store armed robbery. Bevel showed the pistol to Hill whereupon Hill asked the passenger, later identified as defendant Michael Danko, if the pistol belonged to him. Danko replied in the affirmative. Hill testified he then advised Danko of his rights under Miranda (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974). At this point in time, James Soper, the victim of the robbery, arrived at the scene and was asked by Hill if he could identify the pistol as the one used in the robbery. Mr. Soper identified the pistol and also pointed to Danko as the person who robbed him. Parks and Danko were arrested by Hill for armed robbery. In the course of the subsequent proceedings, defendants filed motions to suppress any and all evidence, whether tangible or intangible, obtained as a result of the search which was alleged to be unlawful, illegal and unreasonable and conducted in violation of 18 U.S.C. § 1385, commonly known as the Posse Comitatus Act. A hearing was had on defendants' motions at the conclusion of which the trial court ruled as follows: "The Court has carefully considered the evidence presented and the briefs submitted by the Public Defender and the State's Attorney regarding violation of 18 U.S.C. 1385. "It appears to the Court and the Court finds that M.P. Sergeant Danny L. Bevins [Bevel], while in full uniform and on official military duty, did, under the direction or request of Officer John Hill of the Junction City Police Department, assist in the search of one Chevrolet station wagon occupied by the defendants. "The Court further finds that such conduct was in direct violation of the above cited Code section and that this Court will not serve as an accomplice in the willful transgression of the laws of the United States. "The Court further finds that all evidence, whether tangible or intangible, obtained as a result of the illegal participation of the United States military 492 personnel in the arrest, search, and seizure or interrogation of the defendants herein and the same is hereby suppressed." Thereafter this appeal was perfected by the state. On appeal the state maintains that the conduct of Hill and Bevel did not constitute a violation of the Posse Comitatus Act (18 U.S.C. § 1385), and that the trial court erred in excluding the evidence in question. The Posse Comitatus Act reads as follows: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both." It appears the trial court relied solely upon violation of the Posse Comitatus Act in sustaining the motions to suppress. The state says that the trial court apparently applied the "fruit of the poisonous tree" doctrine expressed in Wong Sung v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, and that in effect its ruling was that the search and seizure of Danko's pistol provided the initial "taint," and accordingly all evidence recovered after that "taint" was excluded. The net effect of the trial court's ruling was to exclude the robbery weapon, a subsequent identification by the victim, marked money from the liquor store, and clothing taken from defendants after their arrest. In support of its contention that violation of the Act was not established, the state cites cases from Oklahoma and Texas which appear to be the only state jurisdictions having reported decisions dealing with the question of admissibility of evidence in a posse comitatus situation. Lee v. State, (Okl. Cr. App.) 513 P.2d 125, cert. den. 415 U.S. 932, 39 L. Ed. 2d 490, 94 S. Ct. 1445; Hildebrandt v. State, (Okl. Cr. App.) 507 P.2d 1323; and Hubert v. State, (Okl. Cr. App.) 504 P.2d 1245, all involved activities of Agents of the Criminal Investigation Division of the Fort Sill Military Reservation in conjunction with local civilian police. In each instance the Oklahoma Court of Criminal Appeals rejected defendants' efforts to exclude evidence generally on the ground that the military agents involved assumed no greater authority than that of a private citizen and, thus, the Act was not violated. In Burns v. State, (Tex. Cr. App.) 473 S.W.2d 19, the Texas Court of Criminal Appeals rejected defendant's claim on the grounds that the activity of the Criminal Investigation Division of Fort Hood did not constitute a posse comitatus used "to execute the laws" under the interpretation given 493 by the court to the phrase as it appears in the Act. We have concluded, however, that the state's contention there was no violation of the Act in the instant case cannot be maintained. We have been furnished the transcript of the testimony adduced at the hearing to suppress. The transcript fails to reveal any evidence indicating that either Officer Hill or Sergeant Bevel intentionally or wilfully violated the Act. Sergeant Bevel testified that he had never been instructed concerning the Posse Comitatus Act and that his only instructions were to follow the instructions of the patrol officer. There is no showing in Hill's testimony that he had ever heard of the Posse Comitatus Act. It is also to be noted that neither Hill nor Bevel has been charged with violation of the Act. Nevertheless, in our consideration of the state's appeal, we shall treat the conduct of Hill and Bevel as constituting a technical violation of the Act although neither has been charged nor convicted. This does not, however, dispose of the question presented on appeal. We cannot agree with defendants that a technical violation of the Act under the circumstances shown to exist warrants the suppression of the evidence seized and the identification of defendant Danko and the station wagon by store owner Soper. We have examined the legislative history and purposes of the Posse Comitatus Act set out in the several cases that have come to our attention. Also, we have been informed by the exhaustive analysis of the Act and enforcement thereof by military authorities in a commentary by Major H.W.C. Furman entitled "Restrictions Upon Use Of The Army Imposed By The Posse Comitatus Act," appearing in Vols. 5-8 (No. 7) (1959-1960), Military Law Review, commencing at page 85. Major Furman traces the political and legislative history of the Act from its enactment in 1879 to its present appearance in 18 U.S.C. § 1385. He notes that although the Act has been with us for over eighty years there is a paucity of judicial decisions concerning it. Among his conclusions Major Furman states: "... From a strictly legal viewpoint, it is the author's conclusion that the statute is limited to deliberate use of armed force for the primary purpose of executing civilian laws more effectively than possible through civilian law enforcement channels, and that those situations where an act performed primarily for the purpose of insuring the accomplishment of the mission of the armed forces incidentally enhances the enforcement of civilian law do not violate the statute." (p. 128.) We glean from Major Furman's work and authorities cited therein that the general overall purpose of the Act was to prevent an irresponsible 494 commander from misusing his soldiers and also to prevent similar abuses by civilian authorities. See, also, Vol. 8 (1939-1940), The University of Kansas City Law Review, "The Constitutionality Of The Posse Comitatus Act," by Walter E. Lorence, p. 164. Although not dealing with the question presented here, the scope and purposes of the Act are examined in the recent cases of United States v. Red Feather, 392 F. Supp. 916 (1975) and United States v. Jaramillo, (8th Cir.1975), 510 F.2d 808, both of which stemmed from the occupation of the village of Wounded Knee by members of the American Indian Movement. We find no suggestions in any of the authorities examined that the Act was intended to afford further protection to rights of individual citizens against unlawful search under the Fourth Amendment to the Constitution of the United States. Prior to the decision in Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R. 2d 933, reh. den. 368 U.S. 871, 7 L. Ed. 2d 72, 82 S. Ct. 23, this state, as well as many other jurisdictions, had followed the so-called non-exclusionary rule. The opposing federal exclusionary rule, fashioned under the Fourth Amendment, was declared in Mapp to be enforceable against the states through the due process clause of the Fourteenth Amendment. Kansas was obligated to embark upon a new course. We recognized the import of Mapp in State v. Wood, 190 Kan. 778, 378 P.2d 536 (1963), and declared, that with respect to protection of citizens from unreasonable searches, the command of the Fourth Amendment in the Federal Constitution to federal officers is identical to the command of Section 15 of the Bill of Rights of the Kansas Constitution to law enforcement officers in Kansas. We stated that the reasonableness of a search should be determined in terms of probable cause which was said to exist if the facts and circumstances known to the officer warranted a prudent man in believing that the offense under investigation had been committed by the subject in question. In the many search and seizure cases coming before us since our decision in Wood, we have repeatedly said that only unreasonable searches are constitutionally prohibited. We have also consistently applied the "prudent man" test in determining the reasonableness of the search in question. In 1970 K.S.A. 22-3216 was enacted. It prescribed an orderly procedure for the determination of the admissibility of challenged evidence and put upon the state the burden of proving that a challenged search and seizure was lawful, but it worked no change in the "prudent man" test of 495 reasonableness rule laid down in Wood and subsequent cases. According to the advisory committee comment the statute was intended to provide the machinery for enforcing the constitutional protection against illegal searches and seizures in accordance with the Mapp decision. In the instant case it appears the trial court rested its decision to suppress solely upon a technical violation of the Posse Comitatus Act deeming it unnecessary to determine the otherwise reasonableness of the search. Pursuant to the provisions of K.S.A. 22-3216, when a defendant challenges the admissibility of evidence on the basis it was obtained by an unlawful search and seizure, the state has the burden of proving that the search and seizure was lawful. Laying aside the Posse Comitatus Act violation, we believe the evidence entirely sufficient to sustain the state's burden in establishing the reasonableness of the search. Officer Hill received the police dispatch within a few minutes after the liquor store robbery. He was informed that the "get away" vehicle was a station wagon with burned out right taillight and a Geary County license plate. Although some discrepancy in the color of the vehicle was indicated, we believe the facts clearly established probable cause under the "prudent man" test and, thus, the following search was reasonable and the evidentiary fruits thereof admissible unless fatally tainted because of a violation of the Act. The ultimate question then becomes whether this court should extend the exclusionary rule to encompass a search made in connection with an incidental, technical violation of the Posse Comitatus Act. We are cited no cases, and our research has revealed none in which a federal court or the highest court of any state, has applied the remedy of exclusion because of a Posse Comitatus Act violation. As observed by Major Furman, there is a paucity of cases dealing with any aspect of the Act even though it has been on the books for almost one hundred years. United States v. Walden, (4th Cir.1974) 490 F.2d 372, cert. den. 416 U.S. 983, 40 L. Ed. 2d 760, 94 S. Ct. 2385, reh. den. 417 U.S. 977, 41 L. Ed. 2d 1148, 94 S. Ct. 3187, is one of the few reported cases dealing directly with the exclusion of evidence in a posse commitatus situation and we find the rationale therein persuasive. Walden was a prosecution for violation of the Federal Firearms Act prohibiting sales to minors and nonresidents. (18 U.S.C. § 921, et seq.) The bulk of the 496 government's evidence was the product of an undercover investigation carried out in large part by several United States Marines at the request of a Special Investigator of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department. The civilian defendants sought, by pretrial motion and at trial, to exclude the testimonal evidence produced by the Marines' investigation on the ground that the investigation violated the Posse Comitatus Act and various other military regulations prohibiting use of the armed services to enforce civilian laws. The court noted that, although the Posse Comitatus Act was expressly applicable to the Army, it was regarded as a statement of federal policy and closely followed by the Department of the Navy in regulations pertaining to the Navy and Marine Corps. The court reasoned that the Navy regulation in question should be given the same legal effect as the Posse Comitatus Act. The court noted that the policy that military involvement in civilian law enforcement should be carefully restricted has deep roots in American history and that the policy is viable in present day governmental affairs. In this regard the court quoted at length from the opinion of Chief Justice Burger, writing for the court, in the recent case of Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318. The Walden court concluded there was a violation of the Navy regulation in question, but declined to impose the extraordinary remedy of an exclusionary rule. The court warned, however, that, "... Should there be evidence of widespread or repeated violations in any future case, or ineffectiveness of enforcement by the military, we will consider ourselves free to consider whether adoption of an exclusionary rule is required as a future deterrent." (p. 377.) In arriving at its conclusion the Walden court reasoned as follows: "But, putting aside the question of the effectiveness of an exclusionary rule as a deterrent to violations of the Fourth Amendment, we do not find present in this case at this time the same considerations which required an exclusionary rule in the Fourth Amendment cases or in other instances where an exclusionary rule has been fashioned and applied. First, the proscription in the Instruction against the use of Marines in ordinary civilian criminal law enforcement was until today far less clear and far less widely known than the prohibition of the Fourth Amendment against unreasonable searches or the rules of court requiring an accused to be produced before a magistrate within a designated period after apprehension. See McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957). Secondly, the Instruction expresses a policy that is for the benefit of the people as a whole, but not one that may fairly be characterized as expressly designed to protect the personal rights of defendants. 497 Cf. United States v. Heffner, supra. Thirdly, the facts that the Instruction provides no mechanism for its own enforcement and especially no criminal sanction for its violation and that its legal effect was far from obvious, means that admission of the evidence of guilt does not require the court to condone `dirty business.' See McNabb v. United States, supra, 318 U.S. at 345-346, 63 S. Ct. 608; Eleuteri v. Richman, 26 N.J. 506, 512, 141 A.2d 46, 49 (1958) (Weintraub, C.J.); People v. Cahan, 44 Cal. 2d 434, 445-456, 282 P.2d 905 (1955) (Traynor, J.). "More important than any of the foregoing is the fact that this case is the first instance to our knowledge in which military personnel have been used as the principal investigators of civilian crimes in violation of the Instruction. We are not aware from the reported decisions of other courts that there has been any other violation, let alone widespread or repeated violations." (pp. 376, 377.) We find the rationale of the Walden court persuasive and particularly germane to conditions prevailing in our state. Since the inception of statehood, we have had large contingents of armed forces stationed at various forts and bases throughout Kansas. This is the first case to come before this court and to our knowledge the first to appear in any court of this state involving a violation of the Posse Comitatus Act. Certainly, the proscription of the Act was far less clear and far less widely known in this state than the constitutional prohibition against unreasonable searches. In the case at bar, the search could just as easily have been performed by Reserve Police Officer Clavin, who was present, or by any of the other officers who arrived within a few minutes. Obviously, if Sergeant Bevel had not made the search, it would have been made by the police officers either at the time or within a few minutes. Under such circumstances, we do not believe the admission of the evidence in question requires the court to condone "dirty business." Sergeant Bevel did not make an arrest or assert any military authority over either defendant. There is no evidence that he did anything that a private citizen, in the vicinity, would not have been required to do at the request of Officer Hill under the provisions of K.S.A. 22-2407. While it must be conceded the conduct of Officer Hill and Sergeant Bevel was intentional, rather than accidental or unintentional; nevertheless, we believe the total circumstances surrounding the search should be considered as a balancing factor in determining whether the drastic sanction of exclusion must be applied. We do not find present in the instant case the same considerations which required an exclusionary rule in Fourth Amendment cases. We agree with the view of the Walden court that the Act expresses 498 a policy that is for the benefit of the people as a whole, rather than a policy which could be characterized as designed to protect the personal rights of individual citizens as declared in the Fourth Amendment. The absence of cases involving a posse comitatus situation, such as at bar, considered in the light of the long-time presence of military establishments in this state, leads us to the position adopted by the Walden court that application of the extraordinary remedy of exclusion is unnecessary as an added deterrent to the serious criminal sanctions provided in the Act. Moreover, we are informed that since the trial court's decision in this case, new military orders have been issued specifically instructing military personnel assigned to off-installation military enforcement concerning the limitations imposed on the military by the Posse Comitatus Act. For the reasons stated the judgment of the trial court is reversed and the cause is remanded for further proceedings.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1739332/	307 So. 2d 283 (1975) T. M. THURMAN, d/b/a Thurman Electric Company v. STAR ELECTRIC SUPPLY, INC., et al. No. 54972. Supreme Court of Louisiana. January 20, 1975. John D. Kopfler and Associates, J. R. Schmidt, Hammond, for applicant Stagecraft Industries, Inc. Walton J. Barnes, Arthur J. Boudreaux, III, Barnes & Barnes; Baton Rouge, Tom 284 H. Matheny, Pittman & Matheny, Hammond, for defendants-respondents. MARCUS, Justice. This matter originated as a concursus proceeding instituted by T. M. Thurman, doing business as Thurman Electric Company [hereinafter referred to as "Thurman"]. Cited to appear and assert their respective claims to monies deposited by Thurman in the registry of the court were Star Electric Supply, Inc. [hereinafter referred to as "Star"], Stagecraft Industries, Inc. [hereinafter referred to as "Stagecraft"], and Edwin F. Guth Company [hereinafter referred to as "Guth"]. Following trial, the district court rendered judgment in favor of Stagecraft, awarding it the sum deposited in the registry of the court, less court costs. Stagecraft was also given judgment against Star for the amount of the costs. Attorney's fees in the amount of $4,470.02 were also awarded to Thurman and were to be paid from the concursus funds. From this judgment, appeals were taken by Thurman, Stagecraft, and Star. The court of appeal reversed the awards to Thurman and Stagecraft and rendered judgment in favor of Star, awarding it the sum of the deposit, less court costs. Thurman v. Star Electric Supply, Inc., 294 So. 2d 255 (La.App. 1st Cir. 1974). We granted the application of Stagecraft for review of the judgment of the court of appeal. 299 So. 2d 351 (La. 1974).[1] FACTS The evidence discloses that Charles Carter & Company, Inc. [hereinafter referred to as "Carter"], entered into a general contract with the Louisiana State Board of Education, whereby Carter was to furnish all materials and perform all labor according to specifications in the construction of a multi-purpose classroom building to be located on the campus of Southeastern Louisiana College (now University) in Hammond, Louisiana. As required by the public contracts law, Carter obtained a surety bond (from the Aetna Casualty and Surety Company) guaranteeing the contractor's faithful performance of the contract and timely payment by him or any subcontractor for all work done, labor performed, and materials furnished. See La. R.S. 38:2241 (1950). Shortly thereafter, Carter subcontracted the electrical work under the prime contract to Thurman, who obtained a bond from the Fidelity and Deposit Company of Maryland guaranteeing his faithful performance of the subcontract and his timely payment of all laborers and materialmen as required by law. Incidental to performance of his electrical subcontract, Thurman ordered certain materials from Star, a wholesale electrical supplier. In filling the order, Star purchased the items required from various manufacturers, including Stagecraft and Guth, for resale to Thurman. As is customarily done to save shipping costs, Star designated the job site as the place of delivery in its orders. The controversy here centers around payment for certain electrical stage lighting equipment manufactured in separate component units and delivered to Thurman at the job site. Three lien affidavits, claiming that amounts were due and owing on the equipment, were filed. First, Star filed a sworn statement of claim on January 22, 1971 in the records of the clerk of court for Tangipahoa Parish, where the materials were delivered and incorporated into the construction project. In its affidavit, Star claimed that it was owed $46,277.75 for the materials supplied to Thurman.[2] A second lien affidavit was 285 filed in the Tangipahoa Parish records by Stagecraft on January 25, 1971, claiming that $44,894.00 was due for materials it furnished pursuant to orders from Star. Finally, Guth filed its affidavit of claim in the same parish records on February 25, 1971; it alleged that it was owed the sum of $12,053.05 for materials supplied to Thurman under orders from Star for use in the construction project.[3] After the first two lien affidavits were filed, Thurman filed its petition for concursus on January 28, 1971. By various answers, reconventional demands, and third party demands, the cited parties asserted their claims to the depositied funds in the amounts stipulated in their lien affidavits. Whether the funds were properly distributed to Star by the court of appeal is the subject for resolution here. ISSUES In order to assess the correctness of the distribution of the funds by the court of appeal to Star and the merit of the competing claim of Stagecraft to the proceeds, two issues must be considered: (1) What parties are entitled to file a sworn statement of claim for amounts due for labor performed or materials furnished in the construction of public works? (2) Which of the parties is of the status described above? If only Star is entitled to a claim under the public contracts law, the judgment of the court of appeal was correct in awarding it the fund deposited by Thurman. However, if, as contended by Stagecraft, it has a lien right under the public contracts law, it is entitled to the monies on deposit since its claim for payment of the price of the equipment necessarily antecedes that of Star, to whom it first sold the equipment for resale to Thurman, and payment to Stagecraft also satisfies the claim of Star to the extent that Star's claim represents its indebtedness to Stagecraft for the wholesale price of the equipment. I. The public contracts law dictates that the representative of any governing authority contracting for the construction of public works. shall require of the contractor a bond, with good, solvent, and sufficient surety. . . for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction . . . of any public works. La.R.S. 38:2241 (1950). The law further provides that [a]ny person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction. . . of any public works. . . may file a sworn statement of the amount due him with the governing authority having the work done and record it in the mortgage records of the parish in which the construction is located. Id. 38:2242. The effect of this is twofold: first, it accords to those not enjoying contractual privity with the general contractor a right of action against both the contractor and his surety; second, upon the filing and recordation of the affidavit of claim, any payment made by the governing authority without deducting the amount of the claim renders the authority liable for the claim. Id. 286 The language quoted from the statutory provisions above has been interpreted in pari materia to embrace only those claimants for whose benefit a surety bond is required, i. e., those creditors seeking payment for labor performed for or materials furnished to the contractor or a subcontractor. See, e. g., American Creosote Works, Inc. v. City of Monroe, 175 La. 905, 144 So. 612 (1932); J. Watts Kearny & Sons v. Perry, 174 La. 411, 141 So. 13 (1932); 21 La.L.Rev. 846 n. 2 (1961). Hence, it is well settled in this state that a supplier of materials to another supplier of materials (in other words, a materialman of a materialman) is not entitled to the statutory benefits of the public contracts law, because the statute only embraces creditors of the contractor and subcontractors and not the creditors of materialmen.[4] Therefore, a claimant must demonstrate a contractual relationship with either the contractor or a subcontractor. In this context, the definition of "subcontractor" becomes crucial in determining whether a supplier of materials is the creditor of another materialman (and hence not entitled to a lien) or a subcontractor (and protected by the embrace of the statute). The definition of "subcontractor" offered in Jesse F. Heard & Sons v. Southwest Steel Products, 124 So. 2d 211 (La.App.2d Cir. 1960), cert. denied, Jan. 9, 1961 (unreported), is noteworthy in this respect. In determining whether the claimant in that case had supplied materials to another materialman or to a subcontractor, the court of appeal (quoting the opinion of the trial judge) determined that . . . the test ought to be not whether or not there has been time and labor expended in producing the material, for that would be true in the preparation of all materials, but the test should be whether or not the person furnishing the material thereafter performed any labor in attaching to or incorporating the materials into the building or improvements involved in that case. Otherwise, it is evident that there would be no end to those who might do some labor away from the job site in the preparation of materials and because they had thus performed some labor would be able to file a claim or a lien against the project as provided for by law and the owner and the contractor would be subject to harassment by virtue of the claims of materialmen with whom they had not contracted and about whose claims they had no knowledge or information. Id. 124 So.2d at 219-220. II. Applying this test to the instant controversy, it is clear that Star is not a subcontractor, as the evidence is undisputed that Star expended no labor in installing the materials that Thurman purchased from it into the construction project. Star was, therefore, a supplier of materials. Hence, as a supplier of materials to Star, Stagecraft is a materialman of a materialman; as such, it ordinarily would have no right of recovery against the subcontractor and his surety and would not be entitled to the concursus funds. However, Stagecraft contends that, beyond its contractual relationship with Star, certain services rendered by its personnel in supervising the installation of the equipment it manufactured and delivered to the job site constitute labor performed for the subcontractor. It argues that a direct contractual relationship existed between Stagecraft and Thurman and that this entitled Stagecraft to a lien under the public contracts law and also establishes its superior right to the concursus fund. A review of the evidence, however, discloses that Stagecraft was delegated no responsibility for installation of the equipment in question. As described in the testimony 287 of the manager of Stagecraft's lighting division, the job of Stagecraft was ". . . to see that the system [was] installed correctly by the contractor." The only labor performed by Stagecraft occurred when it hired and compensated two laborers from Thurman to correct circuitry within the equipment that was improperly wired at the time and site of manufacture. The corrective work required only six hours, and Stagecraft was responsible for the $166.00 in wages paid the two laborers. This service was a trade practice commonly performed by manufacturers of highly technical electronic equipment of this nature as part of the warranty against defects in their product; it in no way resulted from a delegation by Thurman of any of his responsibility for installation of all electrical equipment. In sum, there is no evidence of a contractual relationship between Stagecraft and Thurman whereby Thurman, the subcontractor, in effect sub-subcontracted a portion of his responsibility for installation to Stagecraft, the manufacturer. Moreover, even if it were established that such a contract existed, this would only entitle Stagecraft to record its claim for amounts due for labor expended under its contract to install, not for the materials furnished by virtue of its contract of sale with Star. CONCLUSION In this controversy, Stagecraft occupies the position of a supplier of materials to Star, another supplier of materials. As such, Stagecraft is not entitled to a statutory lien. Moreover, there was no delegation by Thurman to Stagecraft of any of the former's responsibility for installation of electrical equipment as would establish a contractual relationship between Stagecraft and Thurman. In sum, there is no basis upon which it can be said that Stagecraft is owed amounts due for labor performed for or materials furnished to a contractor or subcontractor. Hence, it is not entitled to a claim against Thurman under the public contracts law, and the court of appeal was correct in awarding the fund to Star, who, as a wholesale electrical supplier, is a creditor of Thurman in the amount of the unpaid balance due on the purchase price of electrical materials sold by Star directly to the subcontractor. DECREE For the foregoing reasons, the judgment of the court of appeal is affirmed. BARHAM, J., concurs. NOTES [1] Thurman's application to this court for review of the ruling denying him attorney's fees was denied. 299 So. 2d 355 (La.1974). Thus, this ruling is final. [2] In his petition for concursus, Thurman alleged the total amount due for the materials to be $44,702.28, which was the amount deposited in the registry of the court. The difference of $1,575.47 between the amount specified in the lien affidavit of Star and that reflected in the concursus petition filed by Thurman was the amount due for sales taxes. This was subsequently paid by Thurman and is not at issue. [3] Guth neither appealed nor answered the appeal of Stagecraft and Star to the court of appeal. Thus, the judgment of the trial court denying its claim is final. [4] E. g., Jesse F. Heard & Sons v. Southwest Steel Products, 124 So. 2d 211 (La.App.2d Cir. 1960), cert. denied, Jan. 9, 1961 (unreported), noted in 21 La.L.Rev. 846 (1961).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902617/	154 N.J. 608 (1998) 713 A.2d 498 PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY v. BOYLAN The Supreme Court of New Jersey. May 21, 1998. Petitions for Certification Denied. 307 N.J. Super. 162 704 A.2d 597	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2896255/	NO. 07-08-0371-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 29, 2008 ______________________________ TOM BERNSON d/b/a BERNSON ENTERPRISES, Appellant v. TRANSIT MIX CONCRETE & MATERIALS COMPANY, Appellee _________________________________ FROM THE 181st DISTRICT COURT OF RANDALL COUNTY; NO. 57,326-B; HON. JOHN B. BOARD, PRESIDING _______________________________ Abatement and Remand _________________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Tom Bernson d/b/a Bernson Enterprises, appellant, appeals a judgment of the 181st District Court of Randall County in favor of Transit Mix Concrete & Materials Company, appellee. On December 19, 2008, appellant and appellee, through their counsel, filed a joint motion to abate the appeal and permit proceedings in the trial court to effectuate a settlement agreement. See Tex. R. App. P. 42.1(a)(2)(C) (authorizing same). The parties have reached an agreement to settle and compromise their differences and disputes, not only on the issues which are the subject of this appeal, but also in collateral proceedings. Accordingly, we abate this appeal and remand the cause to the 181st District Court for Randall County, Texas (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine whether to effectuate the settlement. The trial court shall 1) execute findings of fact and conclusions of law addressing whether it effectuated the settlement, 2) execute all orders necessary to effectuate the settlement if it so chooses, and 3) cause to be developed a supplemental clerk’s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter. Additionally, the trial court shall then file the supplemental record with the clerk of this court on or before January 28, 2009. Should further time be needed by the trial court to perform these tasks, then same must be requested before January 28, 2009. Finally, if the settlement is effectuated, the parties are directed to file a joint motion of dismissal on or before January 28, 2009. If that deadline is not met, then the court will reinstate the record and dismiss the appeal for want of prosecution. It is so ordered. Per Curiam	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2982403/	NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0489n.06 No. 13-4235 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 07, 2014 SUBODH PRATAPRAY RAO, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION ERIC H. HOLDER, JR., Attorney General, ) APPEALS ) Respondent. ) * BEFORE: COLE, ROGERS, and ALARCÓN, Circuit Judges. PER CURIAM. Subodh Pratapray Rao, a citizen of India, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of a decision by an immigration judge (IJ) denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Rao was born in India in 1958. He came to this country in 2006, leaving behind his wife and children, and overstayed his visa. He applied for the above relief on the basis that he would be persecuted by Muslims in India because of his membership in Hindu political parties. At his merits hearing, Rao testified that he gave a speech in 2002, after a terrorist attack by Muslims on a train carrying Hindus, that was followed by riots in which Muslims were injured and killed. A Muslim leader then ordered his followers to exact revenge against Rao. In 2004, a Muslim mob burned down his house. Rao also testified that he was attacked by a Muslim mob on either one * The Honorable Arthur L. Alarcón, Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation. No. 13-4235 Rao v. Holder or two occasions, that the police either broke up the attacks or that he escaped, and that he was beaten in the first attack and stabbed on the second occasion. The IJ concluded that Rao was barred from relief because he participated in persecution on the occasion of his 2002 speech. The IJ alternatively found that Rao had not established past persecution or a well-founded fear of future persecution. On appeal, the BIA remanded the case for the IJ to expand on its findings and address issues regarding the reliability of certain exhibits. On remand, the IJ came to the same conclusions. The BIA dismissed Rao’s ensuing appeal, agreeing that Rao’s claim failed on the merits, and declining to reach the issue of whether he was barred from relief by having participated in persecution. Where the BIA issues a separate opinion, we review its decision as the final agency action. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). We also review the IJ’s decision to the extent it is adopted by the BIA. Patel v. Gonzales, 470 F.3d 216, 218 (6th Cir. 2006). Therefore, we do not reach Rao’s argument that he did not participate in persecution, because the BIA dismissed his appeal based on the merits of his claims. We will grant a petition for review in a case denying an application for asylum only where the evidence is so compelling that no reasonable factfinder could fail to find the requisite past persecution or well-founded fear of future persecution. Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). The persecution must be by the government or a group the government is unwilling or unable to control. Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010). Here, the record does not compel a finding of past persecution. The IJ reasonably concluded that the mob attack on Rao’s home was an isolated incident, and Rao testified that the police responded and stopped the attack. The IJ found that Rao was not credible in testifying about the other alleged attacks on him, because he changed his testimony from one attack to two, was not consistent -2- No. 13-4235 Rao v. Holder about whether the attacks were broken up by police or whether he escaped on his own, had never mentioned being stabbed prior to his testimony, and had no corroboration of either incident. This evidence does not compel a conclusion that Rao’s testimony on this issue was credible. See Hassan v. Gonzales, 403 F.3d 429, 434 (6th Cir. 2005). The record also does not compel a finding of a well-founded fear of future persecution based on Rao’s political activities more than a decade ago, that the government would be unable or unwilling to protect him, or that any persecution was likely throughout India. Because Rao did not establish eligibility for asylum, he necessarily cannot meet the higher burden of qualifying for withholding of removal. See Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006). And he presents no evidence that it is more likely than not that he will be tortured by or with the acquiescence of the government in all areas of India; thus, he is not eligible for protection under the CAT. See Ali v. Reno, 237 F.3d 591, 596–97 (6th Cir. 2001). For these reasons, we deny Rao’s petition for review. -3-	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2601541/	228 P.3d 547 (2009) 2009 OK JUD ETH 3 JUDICIAL ETHICS OPINION 2009-3. No. 2009-3. Oklahoma Judicial Ethics Advisory Panel. December 18, 2009. ¶ 1 Question(s): Should a judge who is presiding over a class action lawsuit, for a period exceeding three years, and during which interim the judge applied (unsuccessfully) for appointment to an appellate court, recuse from the final hearing to approve settlement of the suit and fix attorneys fees, where the judge believed that some of the attorneys in the case may have made recommendations to the Judicial Nominating Commission on behalf of the judge? ¶ 2 Facts: 1. While presiding over the case the judge made application for a vacant position on the Court of Civil Appeals. ¶ 3 2. One of the judge's supporters for the position recommended he contact several lawyers to solicit their support, including two lawyers who were attorneys in the class action suit. ¶ 4 3. The judge, feeling it was inappropriate to contact these lawyers who were attorneys of record in the pending case, did not contact them but thought perhaps the lawyers who had suggested them had done so and that perhaps they had made contact on his behalf. In fact, the attorneys realized that such conduct might raise ethical questions and did in fact make no contacts. ¶ 5 4. The judge has disclosed the matter to all parties in the case, and it was only after such disclosure that the attorneys advised him that they had taken no action. ¶ 6 Answer(s): Not required per se. *548 ¶ 7 Discussion: Canon 2 provides "a judge should avoid impropriety and the appearance of impropriety in all of the Judge's activities." ¶ 8 Canon 3 E(l) provides "a judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned ..." ¶ 9 Even had the attorneys made a recommendation on behalf of the judge, automatic recusal would not be required. The question is analogous to one which we addressed in Judicial Ethics Opinion 2007-3 as to whether a judge is required to recuse from an attorney's cases should the attorney have supported the judge financially, or otherwise, in an election campaign. We concluded that the judge was not compelled to automatically recuse and cited Pierce v. Pierce, 2001 OK 97, 39 P.3d 791, in which the Supreme Court held that the "mere fact of a lawyer's contribution to a judge's campaign does not per se require the judge's disqualification when the lawyer comes before him" ¶ 10 We reiterate that Pierce teaches that the judge should disclose to the parties an on the record any information which the judge believes the parties or their attorneys might consider relevant to the question of disqualification, and if asked to recuse, act in accordance with District Court Rules regarding the same. /s/ Robert L. Bailey, Chairman /s/ Milton C. Craig, Secretary /s/ Robert E. Lavender	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601356/	243 P.3d 343 (2010) STATE of Kansas, Appellee, v. Jeffery D. NELSON, Appellant. No. 101,064. Supreme Court of Kansas. November 19, 2010. 344 Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. 345 Ty Kaufman, Special Prosecutor, argued the cause, and Steve Six, Attorney General, was with him on the brief for appellee. The opinion of the court was delivered by BILES, J.: Jeffery Dale Nelson appeals his convictions of premeditated first-degree murder, burglary, and three counts of forgery. These crimes arose from the death of Nelson's stepfather, Stanley Swartz, who Nelson admitted striking repeatedly in the head with a baseball bat. Nelson claims four errors: (1) The district court failed to give an imperfect self-defense jury instruction; (2) the instructions on first-degree murder were improper because they lessened the State's burden of proof; (3) the district court failed to comply with K.S.A. 60-455 in admitting prior crimes evidence; and (4) the district court used the wrong standard to determine aggravating circumstances when sentencing Nelson to a hard 50 prison term for his first-degree murder conviction. As explained below, we affirm his convictions. We reverse and remand with directions for resentencing on the first-degree murder conviction. FACTUAL AND PROCEDURAL BACKGROUND The relevant events occurred over a 3-day time span. On August 24, 2007, Nelson went to the house of his stepfather Swartz, just as Swartz was getting ready to leave for work. Swartz indicated Nelson was not welcome and waited for Nelson to leave before going to work. Nelson returned while Swartz was at work and broke into the garage. Nelson used a ladder to crawl through an attic space connecting the garage to the house because the garage did not have direct access to the house. Once inside the attic space, the ceiling buckled and Nelson fell through, creating a hole. When Swartz returned home after work, Nelson was gone. Swartz reported the break-in to police and said his checkbook was missing. At 9:38 p.m. that same day, Nelson used an ATM to deposit a $5,000 forged check from Swartz' account. Nelson then picked up his friend, Keith Hewitt. They drove to Wal-Mart, and Nelson bought a baseball bat. As they were leaving the parking lot, Nelson asked Hewitt if he would help him beat up Swartz. Hewitt testified at trial that he talked Nelson out of this. The two then went to a club. Nelson took Hewitt home at 2 a.m., but Nelson returned at 3 a.m. and offered Hewitt $500 to help him "take care of" Swartz. Hewitt refused. The next day, April 25, 2007, Nelson and Swartz had a chance encounter at Wal-Mart that became heated, but not physical. Sometime later that day Nelson deposited a $100 forged check from Swartz' account into his friend Misty Sauder's account. At around 10 p.m. Nelson asked Amber Moore, a girl he was dating, if she wanted to watch a movie. Moore picked Nelson up at his grandparents' house; he asked her if she would think poorly of him if he beat someone up; and then he asked her to drive him by Swartz' employer to see if his truck was in the parking lot. It was. Nelson then asked Moore to drive him back to his grandparents' house where he retrieved the bat. He told Moore he needed the bat for protection because he was going to beat up Swartz. Moore and Nelson drove by Swartz' workplace again to make sure Swartz' truck was still there, and then Moore dropped Nelson off at Swartz' house. He told Moore to tell him when Swartz was driving home. Swartz returned home around 11 p.m. Moore believed Nelson was hiding in the bushes. She drove around until 1 a.m., when she told Nelson she was going home. She testified Nelson told her he "could not do it," and they went back to Moore's house. At around 2:30 a.m., Nelson borrowed Moore's car, took the baseball bat, and said he was returning to Swartz' home. Nelson disputes what happened next. The State contends Nelson entered the home, discovered Swartz sleeping in his bed, and hit him on the back of the head while he slept. The coroner testified Swartz' death was caused by a blunt force trauma to the head, and there were no defensive wounds. A detective testified there was no evidence of a struggle in the home. Nelson's defense theory was that Swartz let him into his house, they fought, Nelson tried to leave, and Swartz pulled him back into a fight. Finally, Nelson grabbed the bat, Swartz reached for 346 it, and Nelson hit him with it. This defense theory is based on varying statements Nelson gave the police. Nelson did not testify at trial. Initially, Nelson told a detective he got into a fight with Swartz between 11:30 and 11:45 p.m. on April 25. He said they fought over the bat and he hit Swartz with it. He said Swartz was fine when he left. Nelson later added greater and sometimes conflicting details about the physical altercation. This portion of the interview is more difficult to follow, but begins with Nelson saying that he went into a room in Swartz' house and found the bat. Swartz was standing in the room's doorway. Nelson chopped at Swartz with the bat, and Swartz backed into his bedroom. Swartz antagonized Nelson by saying he had better hit him hard, and Nelson told Swartz not to give him an excuse. Nelson then approached Swartz, and Swartz reached for the bat, eventually catching it. Nelson pushed Swartz, and he "finally" hit Swartz several times with the bat. He said Swartz ended up on the bed, lying on his back and side. Nelson told the detective he went to Swartz' house to "fucking end the animosity and all the bullshit and all the shit [Swartz] was doing." Later in the same interview, after additional prodding from the detective, Nelson said he was going to tell the truth about what happened. Nelson admitted he brought the bat with him and did not find it in a room in Swartz' house. At some point, Nelson told a detective it was kind of hard to walk around the corner, look in the bathroom, and close the door while holding the bat without it being obvious. Then Nelson said Swartz asked if he was hiding something, and Nelson tried to "play it off like I wasn't doing anything." Nelson grabbed the door handle and pulled it. Swartz pushed him twice and slapped him on the head. Then Nelson said he pushed him back, pulled out the bat, and hit him. Nelson continually stated there was no blood when he left. Moore testified at trial that Nelson returned to her house around 6:30 a.m. that morning, April 26. She said Nelson was pale and told her he thought he killed Swartz. Later that day, Swartz was discovered on his couch by a coworker when Swartz did not show up for work. Swartz was alive but unresponsive. There were pools of blood on Swartz' bed, pillow, and in the master bedroom; blood was found going from the bedroom, down the hallway, and in the bathroom; and there were sheets that trailed blood through the house to the couch. Also that day, Nelson deposited a $400 forged check from Swartz' account. Nelson then dropped off an apartment rental application and test drove a BMW at a dealership. Nelson told Moore he was going to sell Swartz' vehicles for a down payment. While Nelson was occupied with the car, Moore received a phone call that Swartz had been taken to the hospital, and everyone suspected Nelson beat him. Moore and Nelson left the dealership. Moore testified that she and Nelson retrieved the clothes Nelson was wearing at the time he hit Swartz with the bat, got the bat out of a dumpster where Nelson had stashed it, drove to the country, and discarded the items. Moore later led police back to retrieve these items. On May 19, 2007, Swartz died from complications arising from the head injuries. Nelson was charged with premeditated first-degree murder in case No. 07CR86. He also was charged with burglary and three counts of forgery for the checks drawn on Swartz' account in the amounts of $5,000, $100, and $400 in case No. 07CR125. The cases were consolidated for trial. Nelson was convicted of all offenses. He was sentenced to life in prison with a mandatory minimum of 50 years (hard 50) under K.S.A. 21-4635 for the murder conviction. The district court found three aggravating circumstances under K.S.A. 21-4636(e), (f), and (h) justified this sentence: (1) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution; (2) the defendant committed the crime in an especially heinous, atrocious, or cruel manner; and (3) the victim was killed while engaging in, or because of, the victim's prospective performance of the victim's duties as a witness in a criminal proceeding. The burglary and forgery sentences were ordered to run consecutive to the murder sentence, but concurrent with each other, for an additional 347 term of 32 months' imprisonment. Nelson filed a timely notice of appeal. Jurisdiction is proper under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence). ISSUE ONE: IMPERFECT SELF-DEFENSE INSTRUCTION At trial, Nelson requested instructions on self-defense and imperfect self-defense as alternate means of voluntary manslaughter. The district court reluctantly granted the self-defense instruction, but the court noted it was a close call and wanted to err, if at all, on the defendant's side. It denied the imperfect self-defense instruction, holding the evidence did not support the instruction. Nelson argues he was entitled to the imperfect self-defense instruction because a reasonable jury could have concluded Nelson and Swartz engaged in a fist fight and Nelson believed it was necessary to use the baseball bat, but the jury could have concluded this belief was unreasonable. Nelson contends the district court's decision to issue the self-defense instruction supports this conclusion. The State argues the district court correctly ruled the evidence did not support an instruction on imperfect self-defense. In the alternative, the State argues any error was not reversible because the jury convicted Nelson of first-degree murder and, under the "skip rule," the failure to issue a lesser instruction was not reversible error. District courts have a duty to issue instructions on any lesser included offense established by the evidence, even if the evidence is weak or inconclusive. See K.S.A. 22-3414(3), which requires instructions "where there is some evidence which would reasonably justify a conviction of some lesser included crime...." When reviewing the district court's refusal to issue an instruction, this court views the evidence in a light most favorable to the party requesting the instruction. State v. Moore, 287 Kan. 121, 130, 194 P.3d 18 (2008). Nelson was charged with first degree murder under K.S.A. 21-3401(a), which prohibits the intentional and premeditated killing of a human being. "Voluntary manslaughter is the intentional killing of a human being committed... (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto." K.S.A. 21-3403(b). Of those statutes listed in the definition of voluntary manslaughter, only K.S.A. 21-3211 could be applicable under the facts in this case. It states: "(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person ... against such other's imminent use of unlawful force." Under this statutory scheme, imperfect self-defense is a lesser degree of homicide, not a defense to criminal liability. Moore, 287 Kan. at 131, 194 P.3d 18. To justify an imperfect self-defense instruction, the evidence would need to show Nelson had an honest belief that deadly force was necessary to defend himself, but the belief was objectively unreasonable. Nelson did not testify, but he argues the evidence establishes this, citing the verbal altercation occurring at Wal-Mart earlier that day. Nelson also recites portions of his police interview in which he accused Swartz of delivering the initial push and preventing Nelson from leaving Swartz' home. Finally, Nelson relies upon the district court's decision to issue the self-defense instruction as support for his argument that the record supports the imperfect self-defense instruction. But the evidence does not establish an honest belief that deadly force was justified. Nelson clearly did not fear for his life based upon the verbal altercation at Wal-Mart earlier that day because Nelson went to Swartz' house several hours later. He was the aggressor. And even accepting as true Nelson's statements that Swartz was the aggressor once Nelson was in the home, there is no evidence Nelson had an honest belief deadly force was necessary given the type of physical altercation Nelson described. Viewed in a light most favorable to Nelson, the evidence was that Swartz and Nelson got into a physical altercation and Swartz pushed, hit, and brought his heel down on Nelson's head during this fight. And under any version of 348 Nelson's story, the evidence shows Nelson introduced the bat into the fightNelson "chopped" at Swartz with the bat while Swartz tried to get the bat from him. Nelson told the detective: "I walked up ... on him, put my hand out..., [and] he reached for the bat.... `And then [Swartz] lunged for it and caught the end of the bat. I had it about half way. I didn't have a really good grip on it but I had a better grip than [Swartz] did and I was trying to turn it and that's when I kept pushing him like this' ... with [my] left hand." Under these facts, a reasonable jury could not have concluded Nelson had an honest belief that Swartz was threatening imminent use of unlawful force justifying Nelson to employ deadly force. The district court's decision to issue the self-defense instruction was suspect under these facts also, but it is not relevant to whether the facts support imperfect self-defense. For these reasons, we find Nelson was not entitled to an imperfect self-defense instruction. Given this finding, we need not reach the State's alternative argument, i.e., that the "skip rule" should apply to excuse any error in refusing an imperfect self-defense instruction. See Moore, 287 Kan. at 133, 194 P.3d 18. ISSUE TWO: THE FIRST-DEGREE MURDER INSTRUCTIONS The district court issued three instructions related to first-degree murder: (1) PIK Crim.3d 56.01, which contained the elements of first-degree murder; (2) PIK Crim.3d 56.04, which as issued contained the definitions of the terms "premeditation," "intentionally," and "heat of passion"; and (3) PIK Crim.3d 54.01, which allows a jury to infer that a defendant intends the consequences of his or her voluntary acts. As orally issued to the jury, the PIK Crim.3d 54.01 based instruction stated: "Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with the other evidence in the case. You must [sic] accept or reject it in determining whether the State has met it's burden to prove the required criminal intent of the defendant. The burden never shifts to the defendant." We note parenthetically that the PIK Crim.3d 54.01 instruction and the written instruction actually submitted to the jury state: "You may accept or reject [the inference]...." (Emphasis added.) Nelson makes no claim this variation was error and actually refers to the PIK Crim.3d 54.01 language in making his arguments. But Nelson does argue PIK Crim.3d 54.01 impermissibly lessened the State's burden to prove the intent and premeditation elements. Specifically, he argues the instruction "tells the jury to infer that Mr. Nelson intended to kill Mr. Swartz simply because he committed an act that led to his death." Nelson concedes PIK Crim.3d 56.01 and PIK Crim.3d 56.04 correctly instructed the jury regarding whether Nelson intended to kill Swartz willfully, purposely, and not accidentally. He also admits PIK Crim.3d 54.01 has been found constitutional but argues this instruction impermissibly alters the correct instructions. Similar arguments were made in State v. Ellmaker, 289 Kan. 1132, 1138-42, 221 P.3d 1105(2009), and this court held they lack merit. 289 Kan. at 1142, 221 P.3d 1105. Standard of Review Nelson objected at trial to PIK Crim.3d 54.01, arguing intent already was defined in the homicide definitions. He did not argue the instruction affected the premeditation element. As such, these arguments are reviewed under different standards. When a defendant objects to an instruction at trial, appellate courts examine the instruction to determine if it properly and fairly states the law as applied to the case and could not have reasonably misled the jury. Nelson's intent argument is reviewed under this standard. But Nelson did not challenge this instruction's impact on premeditation at trial. A clearly erroneous standard is applied when the trial objection to a jury instruction differs from the argument presented on appeal. See K.S.A. 22-3414(3). To reverse under the clearly erroneous standard, the appellate court must be firmly convinced the jury 349 would have rendered a different verdict absent the error. Ellmaker, 289 Kan. at 1139, 221 P.3d 1105. But under either standard, appellate courts consider the instructions as a whole and will not focus on only one instruction. State v. Scott, 286 Kan. 54, 75, 183 P.3d 801 (2008); see State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). Analysis The defendant in Ellmaker presented similar arguments based upon similar instructions. In Ellmaker this court did not reach the substance of the intent argument because it contradicted the defendant's trial arguments and his requested jury instructions undercut it. 289 Kan. at 1140, 221 P.3d 1105. But the Ellmaker court did hold that PIK Crim.3d 54.01 did not impermissibly lessen the burden to prove premeditation. 289 Kan. at 1142, 221 P.3d 1105. The court's analysis presented two reasons to uphold the instruction, and the second justification also applies to Nelson's intent argument. By its own language, the inference instruction only pertains to the intent element. It states the jury may infer Nelson intended the usual consequences of his actions. Since this instruction has no bearing on the premeditation element and the jury instructions clearly advised the jury that intent and premeditation were separate elements, this court held in Ellmaker that the instruction did not lessen the State's burden to prove premeditation. 289 Kan. at 1143, 221 P.3d 1105. The instructions issued in Nelson's case demonstrate the elements of first-degree murder are separate and that the State bears the burden of proof. First-degree murder is defined in PIK Crim.3d 56.01, and Instruction No. 2 stated: "The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved: "1. That the defendant intentionally killed Stanley Swartz; "2. That such killing was done with premeditation. "3. That this act occurred on or about the 26th day of April 2007, in McPherson County, Kansas, which act ultimately lead to the death of Stanley Schwartz on May 19, 2007, in Sedgwick County, Kansas." Instruction No. 8, which followed PIK Crim.3d 56.04, clearly presented distinct definitions for intent and premeditation. It defined intent as "[i]ntentionally means conduct that is purposeful and willful and not accidental. Intentional includes the terms `knowing,' `willful,' `purposeful,' and `on purpose.'" It defined premeditation as: "Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous intentional act of taking another's life." PIK Crim.3d 52.02 informed the jury it was the State's burden to prove every element, stating: "If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant not guilty." Nearly identical instructions supported the Ellmaker court's holding that the permissible inference instruction is not related to the premeditation element. In addition, the Ellmaker court provided another reason for Nelson's contentions to fail, which as easily pertains to Nelson's intent argument. We held in Ellmaker that the inference of intent instruction, i.e., PIK Crim.3d 54.01, is an evidentiary rule that does not pertain to the State's burden of proof. 289 Kan. at 1143, 221 P.3d 1105. We went on to cite a number of cases in which this court found an inference does not alter the burden of proof. See 289 Kan. at 1143-44, 221 P.3d 1105. The Ellmaker court concluded: "This repeated rejection of Ellmaker's argument reaffirms the propriety of the instructions in this case." 289 Kan. at 1144, 221 P.3d 1105. The same analysis applied to Nelson's case demonstrates the inference of intent instruction was not improper, taken in context with the other instructions, and did 350 not mislead the jury when the instructions are considered as a whole. ISSUE THREE: ADMISSION OF PRIOR CRIMES EVIDENCE Nelson does not dispute he forged stolen checks from Swartz or that he entered Swartz' house without permission. But Nelson does challenge the district court's admission of evidence of his prior burglary and forgery convictions. This issue arises because in August 2000 Nelson crawled in a side window at Swartz' house and took checks. Nelson forged two checks for $400 and $115 and attempted to cash one. The bank suspected the check was forged and contacted law enforcement. Nelson was convicted of burglary and forgery for those crimes. Before trial in the case now before us, the State filed a K.S.A. 60-455 motion seeking to admit evidence of the prior burglary and forgery convictions. The district court initially denied this request. But during the trial, the district court announced it was reversing that decision and the evidence was admissible. The court held the evidence was relevant to prove intent, identity, knowledge, and absence of mistake or accident regarding the burglary and forgeries the jury was considering. Nelson objected at the time the district court ruled that the evidence was admissible. Later that day, an officer testified about the prior crimes. But Nelson did not make a specific and timely objection to this testimony. At the conclusion of trial, the district court issued a limiting instruction stating the evidence could only be considered to prove intent, plan, and identity. K.S.A. 60-404 requires a timely and specific objection in order to preserve issues related to the admission of evidence for appeal. It states: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection." This court has held this requirement is imposed even when the district court had already denied a motion to suppress evidence prior to trial. State v. Riojas, 288 Kan. 379, 385, 204 P.3d 578 (2009). And while we concede Nelson's facts are unusual because the district court initially excluded the evidence, changed its mind, and then informed the attorneys during trial that the evidence was admissible, Nelson's objection at the time the district court announced it had changed its mind and would admit this evidence was not sufficient to preserve the issue. Accordingly, we hold Nelson's failure to contemporaneously object when the evidence was offered during trial bars our consideration of the question now. ISSUE FOUR: THE STANDARD FOR IMPOSING A HARD 50 SENTENCE Nelson argues his sentence must be remanded for resentencing because the district court imposed the wrong standard when finding aggravating factors supported a mandatory minimum 50-year (hard 50) sentence. The State admits the wrong standard was applied, but it argues resentencing is not required. Premeditated first-degree murder carries a life sentence with a mandatory minimum of 25 years before the defendant becomes eligible for parole unless the court finds the defendant should be subject to an enhanced minimum sentence. For crimes committed after July 1, 1999, this requires a mandatory hard 50 term. K.S.A. 21-4635; see K.S.A. 22-3717(b)(1). To impose the hard 50 sentence, the district court must find one or more of the aggravated circumstances enumerated in K.S.A. 21-4636 exist and that the aggravating factors are not outweighed by any mitigating factors. K.S.A. 21-4635(d). Nelson is challenging his mandatory minimum sentence. This affects the burden of proof. Before sentencing, the State filed a notice of its intent to seek the hard 50 sentence. In that notice, the State argued that a preponderance of the evidence standard applied to the aggravating factors determination and 351 the evidence should be viewed in a light most favorable to the State. This is actually the standard for appellate review, not the standard of proof required for the district court to impose the hard 50 sentence. See State v. Spain, 263 Kan. 708, 720, 953 P.2d 1004 (1998) (The appellate standard of review is whether "after a review of all the evidence, viewed in a light most favorable to the State, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence."). The State's error apparently infected the district court's analysis because at sentencing it stated it was looking at the evidence in a light most favorable to the State. The judge stated: "That brings us down to whether this is a hard 40 or hard 50 case. I'm of the opinion the State has presented sufficient evidence to show the hard 50 is justified. More specifically, and the journal entry should reflect it, I am finding that pursuant to K.S.A. 21-4636 subsection (e), the defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution. There was evidence present[ed] during the trial that that was exactly the reason why the victim ... was killed. I believe the evidence strongly points to that conclusion, and looking at it in the light most favorable to the State in any event, I think that has clearly been shown." (Emphasis added.) The State concedes the standard articulated by the district court was erroneous. But the parties disagree about what standard of proof applies. Nelson argues the aggravating factors must be proven beyond a reasonable doubt. The State argues a preponderance of the evidence standard applies. There is a conflict in this court's cases on this issue, and both parties cite precedent supporting their position. See State v. Jones, 283 Kan. 186, 216, 151 P.3d 22 (2007) (reasonable doubt standard); Spain, 263 Kan. at 720, 953 P.2d 1004 (preponderance of the evidence standard). This issue was correctly determined in Spain. It held that the implicit standard of proof for aggravating circumstances under K.S.A. 21-4635(c) is a preponderance of the evidence. 263 Kan. at 714, 953 P.2d 1004. Nelson cites Jones as having established the reasonable doubt standard. Jones was decided after Spain, but it cites State v. Gideon, 257 Kan. 591, 609-11, 894 P.2d 850 (1995), a case predating Spain, as a case not requiring a reasonable doubt standard as to the existence of mitigating circumstances. See Jones, 283 Kan. at 216-17, 151 P.3d 22. Moreover, the vast weight of our case law applies a preponderance of the evidence standard, particularly when this issue is raised in a challenge under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See, e.g., State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied 552 U.S. 1104, 128 S.Ct. 874, 169 L.Ed.2d 737 (2008) ("judicial fact finding utilizing a preponderance of the evidence standard to increase the mandatory minimum sentence does not run afoul of the jury trial guarantee"); see also State v. Vasquez, 287 Kan. 40, 61, 194 P.3d 563 (2008) (preponderance); State v. Warledo, 286 Kan. 927, 954-55, 190 P.3d 937 (2008) (preponderance). The holding in Jones to the contrary is disapproved. But the real issue remainswhat remedy applies when the district court uses the wrong standard of proof. Nelson argues his sentence should be remanded for resentencing. The State contends remand is unnecessary because the evidence supports a finding of the aggravating factors, and the district court properly weighed the aggravating and mitigating factors when imposing a hard 50 sentence. The district court's determination that aggravated circumstances existed was obviously tainted with its view of the evidence in favor of the State, and the State is essentially asking this court to make its own factual findings that the aggravating circumstances exist. This court has repeatedly held appellate courts do not make factual findings, even if the record is sufficient for the court to reach the factual issues. Fact-finding is simply not the role of appellate courts. See, e.g., State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). As such, Nelson's mandatory minimum sentence is remanded to the district court to determine whether aggravating *352 circumstances exist under a preponderance of the evidence standard. Affirmed in part, reversed in part, and remanded with directions for resentencing. DAVIS, C.J., not participating. JOHNSON, J., concurring: I concur in the ultimate result but write separately to disagree with the majority's application of K.S.A. 60-404 to bar appellate consideration of the admissibility of prior crimes evidence. The trial judge announced during the trial that it was reversing its earlier K.S.A. 60-455 holding and finding that evidence of Nelson's prior crimes was admissible. Nelson objected. The objection was well in advance of any testimony about the prior crimes being presented to the jury. In the words of the statute: "[T]here appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection." K.S.A. 60-404. The trial judge had ample opportunity to consider the legal question presented by the defense so as to avoid conducting the trial with tainted evidence and to avoid possible reversal and a new trial, i.e., the purpose of K.S.A. 60-404 was fulfilled. See State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009) (stating the purpose of the contemporaneous objection rule). Any subsequent defense objections would have been tantamount to motions for reconsideration of the court's ruling. Neither the statute nor our case law calls for the repeated confirmation that the court's ruling still stands. Cf. Missouri Bank & Trust Co. v. Gas-Mart Development Co., 35 Kan.App.2d 291, 298, 130 P.3d 128 (2006) (application of law of the case doctrine appropriate to avoid re-litigating issue resolved in previous stage of same suit). Accordingly, I would have considered the merits of Nelson's evidentiary claim, albeit I would have found no error in admitting the evidence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1329444/	107 S.E.2d 630 (1959) 249 N.C. 732 Cecil TYSON and wife, Hester Tyson, v. STATE HIGHWAY COMMISSION, Minnie Tyson Winborn and husband, Robert Winborn. No. 234. Supreme Court of North Carolina. March 18, 1959. Thorp, Spruill, Thorp & Trotter, Rocky Mount, for petitioners-appellees. Malcolm B. Seawell, Atty. Gen., Kenneth Wooten, Jr., Asst. Atty. Gen., Glenn L. Hooper, Jr., Trial Atty., Dunn, and Lucas, Rand & Rose, Wilson, for State Highway Commission, appellant. PER CURIAM. G.S. § 40-12 required the petitioners to state in their petition the names of all parties who own or have, or claim to own or have, estates or interests in the land. The averments in the petition as to the respondents, Winborn, is in compliance with this statute. Petitioners seek no relief of any kind against the Winborns. According to the allegations of the petition, the petitioners merely seek to enforce a single right, that is, to recover from the State Highway Commission compensation for lands of theirs appropriated by it for highway purposes. There is no misjoinder of parties and causes, and Judge Bone correctly overruled the demurrer. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897378/	NO. 07-06-0491-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MAY 2, 2008 ______________________________ VICTORIA HARRIS, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2005-408,588; HON. CECIL G. PURYEAR, PRESIDING _______________________________ Memorandum Opinion _________________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Victoria Harris challenges her conviction of capital murder by claiming that the trial court erred in allowing the jury to hear character evidence of the deceased during the guilt/innocence phase.1 We affirm the judgment. 1 To the extent that appellant com plains of error in allowing sobbing fam ily m em bers to rem ain in the presence of the jury, the record does not reflect that such occurred and no m ention of it was m ade during trial by appellant. T EX . R. A PP . P. 33.1(a) (to preserve a com plaint for appellate review, the com plaint m ust have been m ade to the trial court by a tim ely request, objection or m otion). To the extent that appellant also raised a com plaint with respect to evidence of Garcia’s children and grandchildren, she did not object at the tim e that such evidence was first tendered. Ranson v. State, 707 S.W .2d 96, 99 (Tex. Crim . App. 1986) (a tim ely Appellant assisted her boyfriend, Raymond Jackson, and her twelve-year-old cousin in robbing three convenience stores on the night of August 3, 2004, by driving them in her grandmother’s car. During the robbery of the second convenience store, Jackson shot and killed the store clerk, Patricia Garcia. Assuming arguendo, that error occurred and it was preserved, we find it harmless. The erroneous admission of character evidence does not implicate constitutional rights. Rodgers v. State, 111 S.W.3d 236, 248 (Tex. App.–Texarkana 2003, no pet.). Therefore, we must determine whether any substantial right of appellant had been affected before reversal can occur; that is, we must decide whether there is fair assurance that the error did not influence the jury or had but a slight effect on the outcome. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Appellant testified at trial and admitted to having willingly participated in the robberies and disposing of the gun used to kill Garcia. The only contested issue involved her anticipation of any intent on the part of Jackson to cause the death of Garcia. Furthermore, she testified that 1) she did not know Garcia would be shot, 2) she did not know the gun Jackson carried was loaded, 3) it was not their intent to hurt anyone, and 4) she initially did not believe Jackson had shot anyone even though both Jackson and the minor told her he did. On the other hand, she disclosed that she was present in the car when Jackson stole the shotgun and another weapon from a truck, that Jackson took the gun to the robbery to scare the victims, and that someone might get hurt or killed when a objection is required). Additionally, appellant purportedly com plains of the failure of the trial court to adm it evidence that m etham phetam ine was found in the deceased’s purse. However, she fails to provide argum ent or authorities on that particular point, and it is therefore waived. Lawton v. State, 913 S.W .2d 542, 558 (Tex. Crim . App. 1995). 2 firearm is taken to a robbery. So too did she participate in the robbery of another store immediately after the shooting and enjoyed the proceeds garnered from the robberies. In turn, Jackson testified that when he entered the store, Garcia screamed. At that point, the gun purportedly discharged accidentally as he turned to look at appellant’s cousin. Yet, the videotape of the incident did not corroborate this; instead, it revealed that he faced the victim the entire time. So too did appellant’s own comments contradict Jackson’s story. According to appellant, Garcia was coming from an office when she saw the robbers and screamed, and because it appeared that she was reaching for an alarm, Jackson purportedly fired towards the door next to her. Furthermore, the shotgun was of the single-action variety; thus, Jackson had to manually pull back the trigger before it could fire. So, it reasonably could be deduced that sometime before Jackson discharged the weapon he intentionally engaged the hammer in preparation for firing the weapon. Jackson also admitted to ejecting the spent shell after the shooting and reloading the shotgun before engaging in the third robbery. His having just come from one robbery to conduct another, his hearing the store clerk scream, Garcia having been seen reaching for what appeared to be an alarm, his engaging the hammer of the weapon in preparation for discharging it, his shooting towards the door of the office from which the victim was emerging, his facing the victim as the gun fired, and his reloading the shotgun before proceeding to another robbery (rather than undertaking effort to help the person he “accidentally” shot) constitutes overwhelming evidence from which a rational factfinder could deduce, beyond reasonable doubt, that he intended to kill. To the foregoing, we had appellant’s willing participation in the robberies, her knowing that Jackson would use a shotgun to scare his victims, her knowing that someone 3 could be hurt or killed as a result of a shotgun being taken to a robbery, her decision to participate in the last robbery after being told of the shooting, and her aid in disposing of the weapon. This is overwhelming evidence upon which a rational jury could find beyond reasonable doubt that appellant conspired to commit a felony and anticipated that a death could result therefrom. Moreover, while the State did briefly mention the testimony of Garcia’s son in its closing argument, the character evidence did not relate to the intent to kill or appellant’s knowledge about the gun, its discharge, her voluntary participation in all three armed robberies, or her assistance in the disposal of the murder weapon. We, therefore, find that the evidence had, at most, only a slight effect on the jury’s verdict. Thus, the purported mistake was harmless. Accordingly, the judgment is affirmed. Brian Quinn Chief Justice Do not publish. 4	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1329611/	98 Ga. App. 803 (1959) 107 S.E.2d 270 RICE v. THE STATE. 37481. Court of Appeals of Georgia. Decided January 13, 1959. 806 Joseph B. Bergen, Bergen & Sparkman, for plaintiff in error. Andrew J. Ryan, Jr., Solicitor-General, Sylvan A. Garfunkel, James F. Glass, Jack H. Usher, Assistant Solicitors-General, contra. GARDNER, Presiding Judge. 1. We have set out the evidence in detail. Counsel for the defendant contend that the evidence was insufficient to sustain the conviction. When we consider the evidence of all the witnesses for the State we find that it is entirely sufficient to sustain the verdict, and the motion for a new trial as to the general grounds is not meritorious. 2. In the first special ground complaint is made that the testimony of Mrs. Athlee Crosby was erroneously admitted. We will discuss her testimony with the view of determining whether or not it is admissible as set out in this special ground. Her testimony is in direct line with testimony which this court decided was properly admissible in Spence v. State, 83 Ga. App. 588 (63 S.E.2d 910) where it is said: "On the issue of intoxication, it is proper either for the witness to state the facts upon which he bases his opinion that the accused was under the influence of liquor, or, when he has had suitable opportunity for observation, to state whether or not the person was intoxicated and the extent thereof." The witness testified substantially that she observed the acts of the defendant and that he parked his car in the center of the street, left the car and staggered up a driveway towards a garage apartment; that he appeared drunk; that he was acting in a drunken manner; that she was about twenty feet away from him; that it was her opinion, from observing other drunken persons, that the defendant was drinking so that he was less capable of operating a motor vehicle than if he had not been drinking. It is our opinion that the testimony of Mrs. Crosby was admissible under the ruling of Spence v. State, 83 Ga. App. 588, supra, and other decisions to the same effect. The court's ruling as to the admissibility of this testimony was correct and the contentions based thereon are without merit. 3. We will deal with the other special grounds together: In 807 regard to the assignment of error because of alleged inadmissibility of testimony of police officers who observed the defendant some thirty minutes after the defendant parked the car, this contention is not meritorious. An officer answered Mrs. Crosby's call but the defendant did not open the door to the officer, whereupon the officer went back to the street, checked the license number of the car of the defendant, then called for other officers to come and assist him in obtaining admission to the apartment of the defendant; that when the wife of the defendant let the officers into the apartment the defendant "looked awful drunk" and that the defendant threatened to get the officer's job for mentioning that the defendant was driving under the influence of intoxicants; that the officers smelled liquor on the defendant's breath; that the defendant was unable to walk and that the officers had to assist him down the steps when they arrested him. One officer testified that it was his opinion that there was no possibility that the defendant could have "gotten in the [drunken] condition that he was in within thirty minutes"; that it would not have been safe for the defendant to drive a car in the condition the defendant was in then, nor during the previous thirty minutes. Another officer testified that the defendant was very much under the influence and that in the opinion of the witness it was less safe for the defendant to drive the car at the time that they saw him or thirty minutes before that time, by virtue of his inebriated condition, than it would have been had the defendant been sober. The officers did not enter the house in a manner which would indicate illegal search and seizure. The wife of the defendant let them in. Nor was the testimony subject to being excluded because it dealt with the condition of the defendant at a time too remote from the time the defendant drove the car. See Huff v. State, 82 Ga. App. 545 (61 S.E.2d 787). It follows that neither this special ground, nor any of the special grounds, shows cause for reversal. The court did not err in any of the rulings. Judgment affirmed. Townsend and Carlisle, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874061/	752 N.W.2d 35 (2008) STATE v. OLSON. No. 07-1395. Court of Appeals of Iowa. April 9, 2008. Decision without published opinion. Sentence Vacated; Case Remanded for Resentencing.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2982050/	NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 22 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS GREGORY L. DOWDY, No. 10-17445 Petitioner - Appellant, D.C. No. 3:09-cv-03144-WHA v. MEMORANDUM* BEN CURRY, Warden, Respondent - Appellee. GREGORY L. DOWDY, No. 14-15604 Petitioner - Appellant, D.C. No. 3:09-cv-03144-WHA v. BEN CURRY, Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted September 15, 2015 San Francisco, California Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges. Gregory Dowdy petitioned the district court for a writ of habeas corpus. The district court dismissed his petition as untimely and denied a later motion to set aside this denial. Dowdy appeals, arguing that he was entitled to equitable tolling because his mental illness prevented him from filing a timely petition. We affirm.1 Dowdy has not satisfied the test for equitable tolling under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) because he has not shown that (1) his mental impairment was an “extraordinary circumstance” that rendered him unable to either “personally understand the need to timely file” or “personally to prepare a habeas petition and effectuate its filing” and (2) despite his “diligence in pursuing the claims to the extent he could understand them, . . . the mental impairment made it impossible to meet the filing deadline.” Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). As the district court found and the record supports, medication adequately controlled Dowdy’s mental impairment at least from 2002 to 2008. During this The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 The parties are familiar with the facts, so we will not recount them here. time, Dowdy’s Global Assessment Functioning (“GAF”) indicated only moderate symptoms of impairment, and Dowdy filed two state habeas petitions and another federal habeas petition. AFFIRMED	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2896326/	NO. 07-08-0414-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 10, 2008 ______________________________ GEORGE CHAPMAN AND KAREN CHAPMAN, APPELLANTS v. ALLSTATE TEXAS LLOYDS, APPELLEE _________________________________ FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; NO. 57,624-C; HON. ANA ESTEVEZ, PRESIDING _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Â ON MOTION TO DISMISS Â Â Â Â Â Â Â Â Â Â Appellants George and Karen Chapman filed a motion to dismiss their appeal on December 8, 2008. The motion includes a certificate of conference indicating appellee Allstate Texas Lloyds is not opposed to the motion. Â Â Â Â Â Â Â Â Â Â Â The motion to dismiss is granted and the appeal is dismissed. Tex. R. App. P. 42.1(a)(1). The motion does not indicate an agreement of the parties with regard to the distribution of costs of the appeal. We therefore tax costs of the appeal against appellants. Tex. R. App. P. 42.1(d). Â Â Â Â Â Â Â Â Â Â Having dismissed the appeal at appellantsâ request, no motion for rehearing will be entertained and our mandate will issue forthwith. Â James T. Campbell Justice ocked="false" Priority="39" Name="toc 2"/> NO. 07-09-00371-CR Â IN THE COURT OF APPEALS Â FOR THE SEVENTH DISTRICT OF TEXAS Â AT AMARILLO Â PANEL A Â JULY 27, 2010 Â Â JOSE ANGEL CORDOVA, APPELLANT Â v. Â THE STATE OF TEXAS, APPELLEE Â Â FROM THE 242ND DISTRICT COURT OF HALE COUNTY; Â NO. B14880-0303; HONORABLE EDWARD LEE SELF, JUDGE Â Â Before CAMPBELL and HANCOCK and PIRTLE, JJ. Â ORDER Â Upon review of appellantÂs petition for discretionary review, we withdraw our opinion and judgment of April 19, 2010.Â See Tex. R. App. P. 50.Â We do not withdraw our granting of original appellate counselÂs motion to withdraw. Â Â Â Â Â Â Â Â Â Â Â AppellantÂs original appellate counsel, Peter I. Clarke, filed a brief complying with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), and a motion to withdraw.Â Appellant was notified of his right to file a pro se response but did not file one.Â Based on representations made in a later-filed motion in this Court, Clarke became ill and another attorney was appointed for appellant for the limited purpose of advising appellant of his right to file a pro se petition for discretionary review.Â In our April 19th opinion, we agreed with ClarkeÂs evaluation that the record did not present any arguable grounds that would support an appeal and affirmed the trial courtÂs judgment. Â See Cordova v. State, No. 07-09-00371-CR, 2010 Tex.App. LEXIS 2826, at 2-3 (Tex.App.ÂAmarillo Apr. 19, 2010, pet. filed). Â Â Â Â Â Â Â Â Â Â Â On June 9, 2010, we granted a motion to substitute counsel filed by attorney James B. Johnston indicating that appellant had retained JohnstonÂs services and that interim appellate counsel had fulfilled his obligation to advise appellant of his right to file a pro se petition for discretionary review.Â Johnston sought an extension of time in which to file a motion for rehearing.Â He did not, however, file a motion for rehearing.Â Nor has Johnston moved to withdraw as counsel in this Court.Â Accordingly, he remains attorney of record in this appeal. Â Â Â Â Â Â Â Â Â Â Â On June 22, 2010, Johnston filed a petition for discretionary review on behalf of appellant in which he presented a succinct argument that certain issues concerning the interpretation and application of Article 42.12 of the Texas Code of Criminal Procedure are arguable grounds for an appeal in this case.Â See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2009).Â Having concluded that the issues raised in the petition for discretionary review present an arguable basis for appeal, we withdraw our opinion affirming the trial courtÂs judgment and direct Johnston to file a brief on appellantÂs behalf fully developing the issues raised in the petition for discretionary review or other issues that would support an appeal, if any.Â We reset the briefing schedule to make appellantÂs brief on the merits due thirty days from the date of this order. Â Â Â Â Â Â Â Â Â Â Â It is so ordered. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Per Curiam Â Do not publish.Â Â	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/3099397/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTION FOR REHEARING Appellate case name: Mary Ann Orr and Charlotte Orr v. Lucy Ann Walker Appellate case number: 01-13-00586-CV Trial court case number: 22612 Trial court: 1A District Court of Tyler County It is ordered that the motion for rehearing is denied. Judge’s signature: /s/ Laura C. Higley Acting for the Court Panel consists of Justices Jennings, Higley, and Sharp. Date: August 14, 2014	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1902644/	390 So. 2d 1093 (1980) Ex parte Richard LAKE, Jr. (Re: Richard E. Lake, Jr. v. State of Alabama). 79-856. Supreme Court of Alabama. December 2, 1980. MADDOX, Justice. WRIT DENIED-NO OPINION. TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1776372/	601 So. 2d 398 (1992) ASSOCIATES COMMERCIAL CORPORATION v. PARKER USED TRUCKS, INC. and J.R. Parker. No. 89-CA-0882. Supreme Court of Mississippi. June 3, 1992. 399 John S. Hill, Mitchell McNutt LaGrone & Sams, Tupelo, for appellant. Gary L. Carnathan, Carnathan & Malski, Tupelo, for appellees. Before HAWKINS, P.J., and PRATHER and McRAE, JJ. PRATHER, Justice, for the Court: I. INTRODUCTION This action arose from a dispute concerning two documents: (1) a conditional or retail sales installment contract with full recourse assigned by Parker Used Trucks, Inc. to Associates Commercial Corporation, and (2) a guaranty executed by J.R. Parker personally guaranteeing any existing or future indebtedness of Parker Used Trucks. The primary issue addressed on appeal is whether the assignee made a sufficient or timely demand on the assignor for the repurchase of the installment contract. This Court concludes that a four-year delay in making the requisite demand was untimely and prejudicial to the assignor's interests in receiving a timely demand. This Court therefore affirms the judgment of the circuit court judge. A. The Facts 1. Pre-Trial In September 1980, Herschel Wilson purchased a truck from Parker Used Trucks ("Parker Trucks") in Tupelo for $45,421.08. Wilson paid $6,000 down and financed the balance via a conditional or retail sales installment contract. On the same day, Parker Trucks assigned the contract together with a "recourse agreement" to Associates Commercial Corporation ("ACC"), a foreign corporation doing business in Mississippi. Pursuant to this "recourse agreement": If Buyer fails to pay any payment on the Documents when due, or if Buyer is otherwise in default under the terms of the Documents, or if Buyer or Assignor becomes insolvent or makes an assignment for the benefit of creditors, if a petition for a receiver or in bankruptcy is filed by or against Buyer or Assignor, then in any of such events Assignor will, without requiring Assignee to proceed against Buyer or any other person or any security, repurchase the documents on demand and pay Assignee in cash the balance remaining unpaid thereunder plus any expenses of collection, repossession, transportation and storage, and reasonable attorneys' fees and court costs incurred by Assignee, less any customary refund by Assignee of unearned finance charges. The terms and provisions of Seller's Assignment above are incorporated herein by reference. In other words, in the event of a default by Wilson, Parker Trucks would on demand 400 repurchase the contract and pay the balance due plus expenses. In September 1981, Wilson defaulted. ACC repossessed the truck and sold it at auction for $16,000. Approximately four years after Wilson defaulted, ACC decided to make a "demand" on Parker Trucks for the "repurchase" of the installment contract and payment "in cash [of] the balance remaining unpaid thereunder plus ... expenses."[1] Specifically, ACC demanded: (1) $16,515.15 for the repurchase of the contract and the unpaid balance, and (2) $21,661.40 for attorney's fees. When Parker failed or refused to satisfy ACC's demand, ACC filed a complaint in November 1986 in the Lee County Circuit Court. ACC sought to recover the $38,176.55 (i.e., $16,515.15 + $21,661.40) under the recourse agreement or under a separate "continuing guaranty." Through this guaranty which was executed in August 1979 J.R. Parker, president of Parker Trucks, personally guaranteed the existing or future indebtedness of Parker Trucks.[2] Basically, Parker Trucks answered ACC's complaint with general denials of the allegations. 2. Trial In August 1988, Judge Thomas J. Gardner held a nonjury trial at which time Parker Trucks articulated its theory of defense: (1) The recourse agreement provides that, if Wilson defaults, Parker Trucks would on demand repurchase the installment contract and pay the balance and expenses; (2) Wilson defaulted, however, ACC did not make a demand on Parker Trucks until four years later after ACC had repossessed the truck and sold it at auction; (3) ACC obviously did not make the demand in a timely manner; and (4) ACC's untimely demand violated the recourse agreement's inherent requirement of timeliness and, thus, prejudiced Parker Trucks' interests. Parker Trucks explained the interests which ACC prejudiced when it failed to make a timely demand: The purpose for making a reasonable timely demand is to alert the assignor with recourse that the buyer is not performing as agreed. With reasonable timely demand, the assignor with recourse can immediately pay the debt which has become due or redeem the property from foreclosure sale and proceed against the buyer under his general right of subrogation. Otherwise, without a reasonable timely demand, expenses and interest continue to mount and the buyer's financial position may become increasingly poor so the right of subrogation nets either nothing or substantially less than he would have obtained with a reasonable timely demand. Moreover, accepting the argument that satisfactory demand was made with the complaint abrogates the debtor's right to redeem the collateral pursuant to Miss. Code Ann. § 75-9-506. Pursuant to § 75-9-506: At any time before the secured party has disposed of collateral or entered into a contract for its disposition under Section 9-504 [§ 75-9-504] or before the obligation has been discharged under Section 9-505(2) [§ 75-9-505(2)] the debtor or any other secured party may after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral then due or past due (excluding any sums that would not then be due except for an acceleration provision) as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys' fees and legal expenses. Parker Trucks concluded that ACC's violation of the recourse agreement relieved it of any liability under the recourse agreement. J.R. Parker also concluded that 401 ACC's violation relieved it of any liability under the guaranty: [U]nder the guaranty agreement, J.R. Parker agreed to pay the indebtedness of Parker Trucks, provided [Parker Trucks] was in default and demand was made upon J.R. Parker to do so. [D]ue to the failure of [ACC] to make demand upon Parker Trucks, that it was not in default under the recourse agreement and thereby J.R. Parker's liability under the guaranty has not accrued. Upon completion of the trial, Judge Gardner issued his "Findings of Fact and Conclusions of Law": During [ACC's] case in chief it admitted that it never gave notice to or made demand upon the assignor, Parker Trucks... . If no demand has been made it necessarily follows that the assignor is not in default. Since the Court has determined that Parker Trucks ... was not in default, it is not necessary to address the issues of notice and commercial reasonableness under the Uniform Commercial Code and attorney's fees. It is perhaps unnecessary to address the issue of the guaranty and the remaining issue of pleading affirmative matter but the Court feels that it is incumbent for it to do so. [ACC] amended its complaint to name J.R. Parker, individually, ... for his breach of a continuing guaranty wherein he personally guaranteed the existing or future indebtedness of the principal debtor, being [Parker Trucks]. The Court is of the opinion that the guaranty in this case is conditional in that the guarantor's liability is fixed only upon the default of the principal debtor. Brent v. National Bank of Commerce, 258 So. 2d 430 (Miss. 1972). As with general contracts, the Court must strickly [sic] construe an unambiguous guaranty and cannot extend it beyond its precise terms. American Oil Company v. Estate of W.E. Wrigley, et al., 251 Miss. 275, 169 So. 2d 454 (1964). Again during [ACC's] case in chief it readily admitted that it never gave notice to or made demand upon the principal debtor, [Parker Trucks]. Therefore, the Court is of the opinion that the principal debtor, [Parker Trucks] is not in default under the guaranty and accordingly the liability of the guarantor, J.R. Parker has not accrued. Rec. Vol. I, at 41-43. B. The Issues ACC appealed and presented three issues for analysis: 1. Did the circuit court err in ruling that adequate demand was not made by the plaintiff on the corporate defendant (Parker Used Trucks, Inc.) to repurchase the Conditional Sale Contract and that this purported failure bars the plaintiff's claims for recovery in this action against both defendants? 2. Did the circuit court err in failing to rule that the Continuing Guaranty agreement executed by J.R. Parker individually was valid and binding on J.R. Parker regardless of actions taken by the plaintiff against the corporate defendant? and 3. Did the circuit court err in ruling that the defendants' defense asserted at trial that they were relieved of all liability in the premises because of the plaintiff's alleged failure to meet a condition precedent of the Conditional Sale Contract was not an affirmative defense required to be pled affirmatively by M.R.C.P. 8(c)? II. ANALYSIS A. Issue # 1 1. The gist of ACC's contention under Issue # 1 is that its demand on Parker Trucks four years after Wilson defaulted should be deemed sufficient under the terms of the recourse agreement. ACC explains that its belated demand should be deemed sufficient simply because the agreement neither requires nor specifies a "time" when the demand should be made. Parker Trucks' contention is essentially identical to both: (1) the theory of defense which it articulated at trial, and (2) the 402 judge's "Findings of Fact and Conclusions of Law." In short, Parker Trucks contends that ACC's four-year delay in making a demand should be deemed unreasonable and therefore untimely as a matter of law and equity. 2. ACC's contention is unpersuasive. The recourse agreement provides that Parker Trucks will repurchase the contract and pay the remaining balance and expenses "on demand" albeit the agreement fails to specify a time limit for making a demand. This Court long ago instructed that, in cases in which the contract fails to specify a time for performance or for asserting one's contractual right, the performance or assertion generally must occur within a "reasonable time": This rule, resting as it does upon sound policy, should never be departed from, merely to relieve against the hardship of a particular case. The law exacts a certain degree of diligence in the assertion of rights; and it has now almost ripened into a maxim, that rights not asserted within a reasonable time, are treated as abandoned, or as surrendered to the opposing party. Magee v. Catching, 33 Miss. 672, 694 (1857). This prudent rule of "reasonableness of time" has, not surprisingly, endured to date. See, e.g., Deer Creek Constr. Co. v. Peterson, 412 So. 2d 1169, 1172 (Miss. 1982). In sum, the unique facts and circumstances of this case lead to the unequivocal conclusion that, as a matter of law and equity, four years is simply too dilatory to be deemed a reasonable time within which to demand satisfaction of a contractual right of recourse. This Court therefore affirms on this issue. B. Issue # 2 1. Through this issue, ACC contends that, "[e]ven if demand for repurchase of the contract was not [timely] made on [Parker Trucks], this does not relieve [J.R.] Parker of individual liability pursuant to express terms and conditions of the ... guaranty." Appellant's Brief at 6. J.R. Parker and Parker Trucks' contention is essentially identical to both: (1) the theory of defense which it articulated at trial, and (2) the judge's "Findings of Fact and Conclusions of Law." In short, J.R. Parker contends that, because he is not indebted to ACC under the recourse agreement, liability under the guaranty never accrued. 2. This Court's decision in Brent v. National Bank of Commerce of Columbus, 258 So. 2d 430, 434 (Miss. 1972), is instructive: [A] guaranty contract possesses the following characteristics: (1) A guarantor is secondarily liable to the creditor on his contract and his liability is fixed only by the happening of the prescribed conditions at a time after the contract itself is made; (2) the contract of a guarantor is separate and distinct from that of his principal, and his liability arises solely from his own contract, although its accrual depends on the breach or performance of a prior or collateral contract by the principal therein; (3) a guarantor enters into a cumulative collateral engagement, by which he agrees that the principal is able to and will perform a contract which he has made or is about to make, and that if he defaults the guarantor will, on being notified, pay the resulting damages i.e., a guarantor is an insurer of the ability or solvency of the principal, although this characteristic is not present in an absolute guaranty or a guaranty of payment, but only in a conditional guaranty or a guaranty of collection; and (4) except where the guaranty is absolute, generally the guarantor is entitled to notice of the default of the principal. Applying the law of Brent to the case sub judice, J.R. Parker's liability under the guaranty was "fixed only by the happening of the prescribed conditions." The phrase "prescribed conditions" refers in this case to Parker Trucks' indebtedness to ACC. Parker Trucks is not indebted to ACC under the recourse agreement because *403 ACC failed to assert its contractual rights by making a timely demand; therefore, the "prescribed conditions" (indebtedness to ACC under the agreement) never "happened" leaving ACC without any right to seek relief under the guaranty. In sum, this Court affirms on Issue # 2. C. Issue # 3 1. Finally, ACC contends through this last issue that Parker Trucks' failure to articulate its theory of defense in its answer to the complaint constituted a waiver. Restated, Parker Trucks failed to plead the timeliness issue as an affirmative defense; "affirmative defenses not pled are deemed waived." Appellant's Brief at 6. Parker Trucks counters that its answer to ACC's complaint was sufficient as a matter of law. Parker Trucks explains that it expressly "denied" ACC's allegation that it (ACC) had made a "demand" for the repurchase of the contract and payment of the balance and expenses. Judge Gardner found in favor of Parker Trucks after concluding that "a defense based on the nonperformance of a condition precedent does not qualify as an affirmative defense and therefore need not be pled by the Defendant." 2. This Court has perused the relevant portions of the record and concludes that Parker Trucks' answer to ACC's complaint was quite sufficient. See Miller Oil Purchasing Co. v. City of Vicksburg, 305 So. 2d 362, 364 (Miss. 1974) ("The defendant is not required to plead affirmatively that he will introduce evidence which shows the falsity of the plaintiff's allegations."). In sum, this Court affirms on this issue. III. CONCLUSION For the foregoing reasons, this Court affirms. AFFIRMED. ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur. NOTES [1] ACC supposedly made this "demand" via letter dated March 19, 1985. J.R. Parker and Parker Trucks both deny receiving this letter. [2] Unless otherwise noted, J.R. Parker and Parker Trucks will be referred to collectively as Parker Trucks.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249552/	272 F.2d 806 TOWN OF MAYSVILLE, OKLAHOMA, a municipal corporation, Appellant,v.MAGNOLIA PETROLEUM COMPANY, a Texas corporation, Pan American Petroleum Corporation, a Delaware corporation, Blackwell Zinc Company, Inc., a New York corporation, Climax Molybdenum Company, a Delaware corporation, Maracaibo Oil Exploration Corporation, a Delaware corporation, Ardie Oil & Gas Company, an Oklahoma corporation, Continental Land & Fur Company, a Delaware corporation, Atchison, Topeka and Santa Fe Railway Company, a Kansas corporation, W. A. Balentine, J. M. McDaniel, H. E. Ledbetter, Hugh Ledbetter, G. A. Brown, E. M. Young, L. A. Nordan, J. M. Flaitz, R. B. Mitchell, Lona Gardner, Eugene Leach, Ruby Leach, Lula Henderson, Chris Sterr, C. Radden, Overa Radden, Etta Mae Ivey, Paul Christ, T. M. Ridgeway, D. C. Ridgeway, Roy Barrett, Jewel R. Burrow, J. C. Thompson, William Rayburn Amos, T. G. Mays, Raymond Dills and Earl Sparks, Appellees. No. 6100. United States Court of Appeals Tenth Circuit. November 6, 1959. COPYRIGHT MATERIAL OMITTED Barth P. Walker, Oklahoma City, Okl. (Loyd Benefield and Howard C. Johnson, Oklahoma City, Okl., on the brief), for appellant. Fisher Ames, Oklahoma City, Okl. (Robert W. Richards, Norton Standeven, Roy C. Lytle, D. C. Johnston, Oklahoma City, Okl., Jack H. Smith, Ardmore, Okl., on the brief), for appellees. Before MURRAH, Chief Judge, and HUXMAN and PICKETT, Circuit Judges. MURRAH, Chief Judge. 1 Like Chickasha Cotton Oil Co. v. Town of Maysville, 10 Cir., 249 F.2d 542, this quiet title action by the Town of Maysville involves the title to a segment of railroad right-of-way under Section 14 of the Act of April 26, 1906, 34 Stat. 137, 142, which provides in substance and effect that a railroad, having acquired its right-of-way over Indian tribal land pursuant to Section 13 of the Act of February 28, 1902, 32 Stat. 43, 47, should have the right to purchase fee title thereto, at a valuation to be determined by the Secretary of the Interior. And, in the event the railroad should not make the purchase payment within the time prescribed by the regulations (i. e. June 30, 1909), "or should cease to use the right-of-way, title thereto should vest in the owner of the legal subdivision, of which the right-of-way was a part" except lands "within a municipality, the title to which upon abandonment shall vest in such municipality." And see also St. Louis-San Francisco Railway Co. v. Town of Frances, 10 Cir., 249 F.2d 546. 2 The railroad abandoned its right to acquire fee title to the right-of-way in accordance with applicable regulations and claims no interest therein except as an easement for railroad purposes. It follows, therefore, that by operation of Section 14, supra, fee title to the right-of-way vested in the abutting property owners on June 30, 1909, unless on that critical date it was "within a municipality", and if so, fee title thereupon vested in the municipality. When the right-of-way became valuable for oil and gas, the Town of Maysville brought this suit, alleging that it became a duly incorporated town on or about February 17, 1906, and that the petition for and order of incorporation included, among other lands, the right-of-way involved here; and that the railroad, not having acquired the fee title to the right-of-way in pursuance of Section 14, supra, the lands vested in the Town of Maysville as within a municipality, subject only to the right of the railroad to use the surface for railroad purposes. It was alleged that the named defendants claimed some interest in the oil and gas and other minerals which might be produced from the property, and that the said claims constituted a cloud on the plaintiff's title. The defendants answered severally, setting out their respective interest in and to the lands and the minerals thereunder, and at least one defendant specifically alleged that the purported incorporation of the Town of Maysville was void because there was no hearing on the petition to incorporate on the date fixed therefor, and the order of incorporation was not signed by the judge of the court having jurisdiction of the proceedings as required by law; and that judicial recognition of the purported proceedings to incorporate would constitute the taking of property of the defendants and their predecessors without due process of law. 3 And, moreover, it is alleged that at the time of the filing of the petition for incorporation, the tract of land traversed by the railroad right-of-way involved here (NE ¼ of SW ¼, Sec. 15, Twp. 4, R. 2W, Garvin County, Oklahoma) was unplatted agricultural land and not a part of any existing town; that if Section 14 be construed to permit an existing town to include such lands in an incorporation under Chapter 29 of the Mansfield Digest of the Statutes of Arkansas, the said Statute is unconstitutional as an attemped delegation of legislative power to the judiciary. And finally, it is alleged alternatively that the forty-acre tract of land traversed by the railroad was never a part of the Town of Maysville or other municipality, had never been dedicated or platted by any of its owners, and the Town of Maysville has never exercised or attempted to exercise any dominion over it; that no municipal taxes have ever been levied or assessed against it, and therefore insofar as this tract of land is concerned, the Town of Maysville does not exist, either as a de jure or de facto municipal corporation or municipality; that on two occasions the Town has actually annexed portions of the land described in the purported order of incorporation, and by all of these acts has abandoned and is therefore estopped to claim that the said tract of land is a part of the Town of Maysville. The parties agree that the questions are controlled by federal law (Section 14 of the Act of April 26, 1906) and that the requisite amount in controversy is present. 4 Based on stipulated facts, the trial court concluded that the land in question is not now and never has been within a municipality within the meaning and intent of Section 14, and consequently the plaintiff is not the owner of any interest in the right-of-way involved. In so concluding, the court was careful to distinguish its decision in Chickasha Cotton Oil Co. v. Town of Maysville, supra, on the grounds that in that case, both the trial court and the Court of Appeals had "studiously avoided placing its stamp of approval upon the `purported' incorporation of the Town of Maysville." The court took the view that its decision and that of the Court of Appeals in the former case was based upon the fact of an existing town or municipality actually traversed by the railroad, and that the numerous property owners involved in the said action were not in a position to contend that there was no municipality actually functioning as such; whereas in the present case under the admitted facts, the Town of Maysville is not in a position to contend that the right-of-way involved is within a municipality. We agree with the trial court that if the corporate existence of the Town of Maysville was directly challenged in the former case, it was not directly decided. In any event, it is directly tendered here under different facts between different parties, and we have the duty then to consider the matter anew. 5 Section 14 of the Act of April 26, 1906, supra, contemplated a municipality organized in accordance with Section 14 of the Act of June 28, 1898, 30 Stat. 495, 499, which provides in material part: "That the inhabitants of any city or town in said Territory having two hundred or more residents therein may proceed, by petition to the United States court in the district in which such city or town is located, to have the same incorporated as provided in chapter twenty-nine of Mansfield's Digest of the Statutes of Arkansas, if not already incorporated thereunder * * * and such city or town government, when so authorized and organized, shall possess all the powers and exercise all the rights of similar municipalities in said State of Arkansas. * * ." 6 Section 785 of Chapter 29, Mansfield's Digest of the Statutes of Arkansas, provides in material part that "When the inhabitants of a part of any county, not embraced within the limits of any city or incorporated town, shall desire to be organized into a city or town, they may apply by petition, in writing, signed by the inhabitants so applying, to be in number not less than twenty qualified voters, to the county court of the proper county, which petition shall describe the territory proposed to be embraced in such incorporated town, and have annexed thereto an accurate map or plat thereof; shall state the name proposed for such incorporated town, and shall also name the person or persons authorized to act in behalf of the petitioners in prosecuting said petition." Section 787 of the same Statute provides in material part that "If the county court shall be satisfied, after hearing such petition, that at least twenty qualified voters reside therein, or within the limits described by said petition, and that said petition has been signed by them; that said limits have been accurately described, and an accurate map or plat thereof made and filed; that the name proposed for the said town is proper and sufficient to distinguish it from others of like kind in the state, and it shall, moreover be deemed right and proper, in the judgment and discretion of the court, that said petition shall be granted, then it shall make out and indorse on said petition an order, to the effect that the incorporated town as named and described in the petition may be organized, which order said court shall sign and deliver, together with the petition and the map or plat, to the recorder of the county, whose duty it shall be to record the same as soon as may be in the proper book of records * ." 7 It is agreed that the petition for incorporation, properly executed, together with the required map, was filed with the Clerk of the court having jurisdiction of the proceedings, and that the matter was set for hearing on February 15, 1906. But the appearance docket reflects that nothing happened on that date. The appearance docket does show, however, that on February 17, an order was entered and that on the following February 22, a "transcript made and forwarded to agents and a copy sent to the Clerk at Ardmore thereto be recorded." An unsigned order dated February 15, 1906, purporting to incorporate the Town of Maysville, Indian Territory, is a part of the records of the court. 8 Since the petition for incorporation was not endorsed nor the journal entry signed by the judge of the court, the attempted incorporation was ineffective and invalid. But it is apparent that the incorporators were satisfied that the incorporation had been perfected according to law, and it is undeniably true that the Town of Maysville has been in existence and exercising the functions of a duly incorporated town for more than fifty years. And, it is settled law, based upon sound public policy, that a municipal corporation is in de facto existence where there is organic authority for its incorporation, and there has been a bona fide attempt to organize under such law, and exercise of authority as such corporation. City of Bethany v. Mason, 202 Okl. 66, 210 P.2d 353, quoting 37 Am.Jur. Munic. Corp., § 11; McQuillin, Munic. Corp., 3rd Ed., § 3.48, p. 587. And, it has always been the law in Oklahoma and elsewhere that "Where a municipal corporation is acting under color of law, and its existence is not questioned by the state, it cannot be collaterally drawn in question by private parties; and the rule is not different, although the Constitution may prescribe the manner of incorporation." City of Blackwell v. City of Newkirk, 31 Okl. 304, 121 P. 260, 270. See also City of Bethany v. Mason, supra; Chicago, R. I. & P. Ry. Co. v. Galyon, 179 Okl. 570, 66 P.2d 1066, 67 P.2d 781. The only recognized exception to this rule of immunity is where the attempted incorporation is void ab initio for want of organic authority, or where the attempted exercise of corporate power is utterly void for lack of jurisdiction, as where the corporate acts are ultra vires. See Chicago, R. I. & P. Ry. Co. v. Galyon, supra; Barton v. Stuckey, 121 Okl. 226, 248 P. 592; Chickasha Cotton Oil Co. v. Rogers, 160 Okl. 164, 16 P.2d 112. In sum, there can be no de facto corporation where there is no law authorizing a de jure one. Ocean Beach Heights v. Brown-Crummer Investment Co., 302 U.S. 614, 58 S.Ct. 385, 82 L.Ed. 478, citing City of Guthrie v. Wylie, 6 Okl. 61, 55 P. 103. And see also McCarroll v. Arnold, 199 Ark. 1125, 137 S.W.2d 921. Nor can there be a valid exercise of corporate power without some color of authority therefor. 9 Another exception to immunity from private attack has been recognized where, as here, the corporation sues in its corporate name, alleging its corporate existence. The legal fact of the corporation may be drawn in issue by a denial, which of course places upon the plaintiff the duty of proving the fact of its existence. In these circumstances, the defense challenges the fact, not the legality of corporate existence, and it is therefore not a collateral attack. See Pearson Drainage District v. Erhardt, 239 Mo. App. 845, 201 S.W.2d 484; McQuillin, Munic.Corp., § 3.49, p. 595. And this is especially true we think, where, as here, the corporate existence is the very matter put in issue by the municipality as a proprietary suitor. 10 The courts do not agree on when a municipal corporation is so utterly void in its inception as to be incapable of de facto recognition. McQuillin, Munic.Corp., § 3.48. But the policy of the law strongly favors legal recognition of the de facto existence of a corporation. Indeed, the importance of stability and certainty in matters involving corporate franchises has prompted one court to hold that "The fact that the organization was so defective as to be void in its inception does not change the rule. There is no room or place here for distinction between things that are voidable and things that are void. Neither the nature nor the extent of the illegality in organization can affect the application of these principles * ." Bowman v. City of Moorhead, 228 Minn. 35, 36 N.W.2d 7, 9, 7 A.L.R.2d 1401. The extreme reluctance of the courts to declare the legal nonexistence of a corporation which actually does exist as a corporate entity, is reflected in the numerous cases involving private capacity to attack the fixing or extension of municipal limits or boundaries. See Annotation 13 A.L.R.2d 1279. 11 The legislative policy to validate de facto corporations and their public acts has been often expressed in curative or validating statutes, and at a very early date the Oklahoma legislature expressed its policy by providing: "The incorporation, prior to the sixteenth day of November, nineteen hundred and seven, of all cities and towns in this State under the laws in force in the Territory in which they were respectively located * * are declared and made legal, valid and binding, notwithstanding any failure or omission to comply fully and completely with the laws in force at the time of and in relation to such incorporation * * *." Title 11 O.S.A. § 1. The Oklahoma courts have construed this statute to validate ordinances ab initio which were utterly void on their face. See Chicago, R. I. & P. Ry. Co. v. Galyon, supra. And, they have done so on the generally accepted proposition that whatever a legislature may have constitutionally authorized or dispensed with originally, it may ratify, and such ratification is equivalent to an original grant of power operative by relation as of the date of the thing ratified. Chicago, R. I. & P. Ry. Co. v. Galyon, supra; Comanche County Comr's v. Lewis, 133 U.S. 198, 10 S.Ct. 286, 33 L.Ed. 604. 12 True, the law cannot make an entity out of a nullity, or validate something which never existed. But no one denies the factual existence of the Town of Maysville, even before the effective date of the validating statute in February 1908. Municipalities are creatures of the legislature, deriving their powers and functions therefrom, and the manifest purpose of the statute was to recognize and give legal effect to all cities and towns organized or attempted to be organized and in existence in the Indian Territory upon the advent of statehood. And, the constitutional power of the legislature to do so cannot be denied. For, certainly it could have dispensed with any of the statutory requirements for the organization of the town, including judicial recognition by formal court order. We think the validating statute had the undoubted effect of giving the Town of Maysville a de jure existence insofar as the laws of Oklahoma are concerned. And, we are of the view that a town attempted to be organized in the Indian Territory under the organic law of Arkansas which was validated as an existing town upon statehood by the law of Oklahoma was a municipality within the meaning and purpose of Section 14 of the Act of April 26, 1906. 13 A map, recorded in the office of the County Clerk of Garvin County, bearing the legend, "Maysville incorporated February 15, 1906, articles of incorporation filed" shows the tract of land here to be platted as part of the Town. And, the records of the County Treasurer of Garvin County show that in 1908 and 1909 a portion of it was assessed as numbered blocks within the Town of Maysville. But in truth and fact, the original allottee of the tract never joined in the petition to incorporate, never platted the land into lots and blocks and never dedicated the same to the Town. No taxes were ever collected on any part of the tract as city property, and indeed, no taxes were assessable for the land was part of a tax-exempt Indian allotment. The tract was in fact unplatted agricultural land, and for that matter always has been so treated by all parties having or claiming an interest therein, including the town of Maysville. 14 But even so, the land was admittedly within the boundaries of the Town of Maysville as originally incorporated and as shown by the map or plat attached to the petition for incorporation. And, there is nothing in the organic law of Arkansas (Section 785, Mansfield's Digest) which provides that the owners of land within incorporated limits must join in the petition to incorporate, or that the lands embraced within the limits of any town must be platted and dedicated to the town, or that property within the incorporated limits shall be assessed and taxed as city property. Indeed, the applicable statute, supra, provides only that the land shall be "a part of any county, not embraced within the limits of any city or incorporated town." And see also Vestal v. City of Little Rock, 54 Ark. 321, 329, 15 S.W. 891, 16 S.W. 291, 11 L.R.A. 778. 15 When, on June 30, 1909, the railroad failed to acquire fee title to the right-of-way, it was within the corporate limits of Maysville as attempted to be incorporated under applicable law of Arkansas, and as validated by the laws of the State of Oklahoma. It follows that on that date, fee title vested in the Town of Maysville, and the remaining question must be therefore whether by subsequent acts or conduct, the Town is now precluded from asserting title to the right-of-way as within its boundaries. There is no suggestion of divestiture or defeasance by any formal act of de-annexation, conveyance or disclaimer. The trial court apparently based its decision on the broad principles of equitable estoppel. And, the doctrine of estoppel is applicable to municipal corporations when acting within their charter powers, and especially in a proprietary capacity. Oklahoma City v. Pratt, 185 Okl. 637, 95 P.2d 596; Griffin v. Oklahoma Natural Gas Corp., 10 Cir., 37 F.2d 545; Annotation 1 A.L.R.2d 338, 353; 38 Am.Jur. Munic.Corp. §§ 668, 670. 16 The "fundamental difference" in this case and the Chickasha Cotton Oil Co. case is said to lie in the fact that in the earlier case, the right-of-way passed through tracts which had been platted by the respective owners into lots and blocks, and dedicated to the Town of Maysville; that consequently, as a matter of cold actual fact, the right-of-way in the earlier case was within a municipality, whereas our tract is and always has been agricultural land which was never dedicated or platted, and never taxed as a part of the Town, but had always been assessed for tax purposes as rural property; that the only house on the tract was assessed at the rural water rate; that the Town of Maysville entered into an agreement with the State Highway Department in 1934, by the terms of which it was agreed in effect that the tract of land involved here was outside the city limits; and upon the further fact that in 1948 and 1949 and as late as June 1955, the Town extended its city limits to include an annex certain tracts of land within the original corporate limits as filed in 1906; and in 1958, the Town Clerk certified to a map which the Clerk's office used as being the official map of the Town, which map did not include this tract of land as within the city limits. All of this, say the appellees, proves that the tract of land in question, while within the purported limits of the original incorporation, has never been so treated by the Town or any one else, until it became valuable for oil and gas, and the Town of Maysville instituted this suit. 17 It is also true, however, that in 1930 the Town of Maysville enacted an ordinance defining the boundaries of the Town in accordance with the 1906 original map or plat and which included the land in question. Furthermore, applicable statutes provide that agricultural lands taken within the corporate limits shall be taxed as other adjoining lands outside the corporate limits. Title 11 O.S.A. § 1044. And moreover, the assessment and collection of ad valorem taxes within the limits of an incorporated city in Oklahoma is not the prerogative of the city, but of the county officers wherein the cities or towns are located. See Title 68 O.S.A. § 60. There is nothing inconsistent with the tract's identity as a part of the municipality, and the fact that it has never been platted or dedicated, and has always been considered rural property and taxed as such. 18 But even so, there can be no doubt that apart from the ordinance of 1930, this tract of land has always been treated by the Town and the public generally as outside the city limits of the Town of Maysville. It is also equally significant that during all of these years, the property rights involved and asserted in this controversy have been burdened with a railroad easement. Ownership of the underlying estate was of no importance until it became valuable for oil and gas. Until that time, no one was concerned with its ownership and no one made valuable improvements or relied upon the Town's conduct to his detriment. There is nothing in this record to indicate that any of the appellees acquired their interest from the abutting property owners or in the right-of-way itself in reliance upon the understanding that the forty-acre tract of land involved was outside the Town limits. But any such reliance would be merely upon the legal consequences of facts, and a purchase thus made is no more than the purchase of an interest in litigation. We conclude that the essential elements of estoppel are lacking, and the case is therefore reversed with directions to proceed accordingly.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/249560/	272 F.2d 829 ILLINOIS CENTRAL RAILROAD COMPANY, Appellant,v.Arlene Delores STAPLES, a Minor, etc., Appellee. No. 16296. United States Court of Appeals Eighth Circuit. Dec. 23, 1959. Arnot L. Sheppard, St. Louis, Mo., made argument for appellant. Robert E. Morley, St. Louis, Mo., made argument for appellee. Before GARDNER, WOODROUGH, and VOGEL, Circuit Judges. GARDNER, Circuit Judge. 1 This was an action brought by appellee against appellant to recover damages for personal injuries suffered by her while she was a passenger on one of appellant's trains en route from St. Louis, Missouri to Memphis, Tennessee. We shall refer to the parties as they were designated in the trial court. 2 Plaintiff alleged no specific act of negligence but submitted her right to recover on a general allegation of negligence, thus invoking the doctrine of res ipsa loquitur. Defendant answered, denying all acts of negligence. 3 The accident which caused plaintiff's injuries resulted from the derailment and wreck of one of defendant's passenger trains in which she was being transported. The wreck occurred on a portion of track referred to in the evidence as a 'run-around track.' This 'run-around track' was a curved track leading away from defendant's main track and again connecting with the main track at an undisclosed distance, and was installed on a new grade built by the State of Illinois in order to facilitate the building of a new public highway under the track of defendant. The construction of this highway necessitated cutting through the established railroad grade of defendant and the building of a railroad bridge over the opening thus made through the railroad grade. During the construction of the highway under the defendant's track, defendant's trains were routed over this so-called 'run-around track,' thus diverting the traffic from its regular line and enabling it to continue running its trains while the public highway was under construction under its main track and a railroad bridge was being built to permit the traffic to pass over defendant's own regular line. The grade for this 'run-around track' was built by the State of Illinois but the ballast, ties, and rails connecting with and leading from defendant's main track and again connecting therewith were built and installed by the defendant. The length of the 'run-around track' is not shown by the testimony; neither does it appear how long it had been in use at the time of the accident in question. 4 This accident happened sometime after midnight while plaintiff was seated with a companion on the left side of the coach. She had been reading and had dozed off to sleep when the wreck occurred and the car turned over on its side. There is nothing in the record to show the number of cars in the train, the rate of speed at which it was moving, nor the condition of the equipment following the derailment. There was testimony of defendant's Division Engineer as to the physical facts as he observed them following the wreck, but the testimony was confined to the condition of the track and roadbed, with no testimony as to the condition of the wrecked train. On cross-examination he was interrogated and answered, with reference to the speed of the train, as follows: 5 'Q. You, of course, don't know anything about, from your own knowledge, the speed involved on this occasion, do you? A. No.' 6 In addition to plaintiff's testimony as to her injuries and condition of health, there was medical testimony both on behalf of plaintiff and on behalf of defendant. We shall have occasion to further develop the testimony. 7 At the close of all of the testimony defendant moved for a directed verdict in its favor, which motion was denied and the case was submitted to the jury on instructions to which defendant saved certain exceptions hereinafter to be considered. The jury returned a verdict in favor of the plaintiff for $5,000.00, pursuant to which the court entered judgment. Defendant did not move for judgment notwithstanding the verdict but instead moved for a new trial, which the court denied, and this appeal followed. 8 Defendant seeks reversal on two grounds, (1) that the court erred in giving to the jury the following instruction: 9 'In determining the amount of damages you will award the plaintiff, you may take into consideration * * * (4) such impairment, if any, of plaintiff's ability to work and to labor after reaching the age of twenty-one years as you find from the evidence plaintiff is reasonably certain to suffer.' 10 and, (2) that the court erred in permitting plaintiff's counsel, in his opening argument to the jury, to tell them that defendant's failure to proffer as witnesses the members of the train crew warranted the inference that had they testified their evidence would have been hurtful to defendant. 11 Counsel for defendant, in its brief, concedes that plaintiff made out a prima facie case entitling her to go to the jury, but contends that the evidence was insufficient to warrant the giving of the instruction as to her right to recover forthe diminution of her ability to work and labor after reaching the age of twenty-0ne years. As we construe defendant's contention, it concedes plaintiff's right to recover for all damages she may have suffered by reason of her injuries, except damages for diminution of her ability to work and labor after reaching the age of twenty-0ne years. The contention that she was not entitled to recover for diminution of her earning capacity after reaching the age of twenty-one years is based upon the claim that her injuries were not permanent and that she had not shown that she had earning capacity. At the time of the accident plaintiff was a minor of the age of sixteen years. 12 As the jury found the issues in favor of the plaintiff, we must view the evidence in a light most favorable to her as the prevailing party, and we must assume that all conflicts in the evidence were resolved in her favor. She is also entitled to the benefit of all such favorable inferences as may reasonably be drawn from the evidence. 13 Plaintiff testified with reference to her injuries and condition following the accident to the effect that prior to this occurrence she had had headaches once in a while but that now she has them frequently. The headaches which she had prior to the occurrence were always only mild headaches but now they are worse and when they occur she has to sit down or lie down because they are very bad and usually last all day. The headaches occur about three times per week. Taking aspirins for these headaches does not help them. She testified further that she now has trouble with her back when she lifts something or bends over too far. She suffers from dizziness sometimes when she bends over or jerks her head around. Dr. C. M. Turner testified as to the character and extent of her injuries, among other things, that: 14 'In my opinion, the patient sustained a cerebral concussion, a sprain of the lower back, she had contusions, lacerations, and abrasions of the forehead, with a small hematoma formation over the sutured lacerated area. She had contusions and abrasions of the abdominal wall, the lower and upper extremities, a sprain of the right ankle, she had sutured lacerated wounds of the right thumb and right finger. * * * I put her on bed rest with a taking of blood pressure and pulse until it stablized to a constant degree. I advised her as to how to use bed support, that is, a modified Bradford bed, that is a back support that is a hard board underneath the bed so as to give some counter support to the back to ease the pain, I strapped the back, gave her diathermy treatment, more or less, tried to reassure her that she would get along all right eventually and just treated her symptomatically for her complaints. She had headaches, I gave her medication for that, and other treatment as symptomatic. She was kept on bed rest for some two weeks until the symptoms cleared somewhat. After which she had interval heat treatments, analgesics, and supportive therapy with continued strapping of the back. * * * 15 'Q. Doctor, assuming that Arlene Staples was a girl sixteen years of age on December 21st, 1956, that she was involved in a train accident, where the coach in which she was riding was thrown over on its side, that she was cut as she was when you found her, that she had a period of unconsciousness, that she also was in such a state that she had to be carried from the coach and taken to a hospital, and take into consideration your findings the next day, and take into consideration the history of her complaints that she gave you at that time, take into consideration that she is now complaining of headaches and dizziness and that she has headaches on the average of about three times a week, that she has dizziness if she bends over too rapidly or turns her head to one side or the other rapidly, take into consideration that she is still complaining of pain in her lower back if she lifts heavy objects or bends over too far and take into consideration your findings over your period of treatment of her, doctor, and your findings in additon to those pertaining to her blood pressure and pulse, your findings in regard to her back and the soft tissues thereof. Doctor, taking all of that into consideration, do you have an opinion as to whether or not the things you found on your physical examination and the headaches and dizziness with which she is still complaining, as to whether or not they were caused by the accident in question. A. In my opinion I feel that her residual effects are a result of her accident. 16 'Q. Is your answer the same with regard to those conditions which you found at the time of your examination and your treatment thereafter, but which have now subsided? A. That is correct. 17 'Q. Doctor, using the same hypothetical question, do you have an opinion as to whether or not the headaches and dizziness that she now has will be a permanent condition? A. In my opinion there will be. 18 'Q. And with regard to the complaint of her lower back, the things that she complains of, assuming those to be true, do you feel that after this period of time, her condition will be a permanent one? A. I do.' 19 From this testimony the jury might have found that plaintiff's injuries as described were permanent. 20 It is conceded by both parties that the substantive law of Illinois is applicable. The appellate courts of that state have held that where a permanent injury is proven it is proper to instruct the jury to consider future inability to labor or to transact business even though at the time the injury occurred the plaintiff was not engaged in any business or occupation and there was no evidence of earning ability. Fisher v. Jansen, 128 Ill. 549, 21 N.E. 598; Jerrell v. Harrisburg Fair, 215 Ill.App. 273; 25 C.J.S. Damages 87, p. 619. The applicable rule is stated in 25 C.J.S. Damages 87, supra, as follows: 21 '* * * recovery may be had for impairment or diminution of earning ability or power, even though it should not be shown that plaintiff has in the past earned anything or been engaged in a remunerative or compensable pursuit.' 22 A review of the evidence convinces that there was substantial evidence that plaintiff suffered permanent injuries and that as a result of such permanent injuries she suffered a present loss of ability to work and labor in the future. This, we think, was sufficient basis for the instruction here complained of. 23 It is next argued that defendant was prejudiced by the ruling of the court permitting counsel for the plaintiff, in his opening argument, to say in effect that defendant's failure to proffer as witnesses the members of the train crew warranted the inference that, had they testified, their evidence would have been hurtful to defendant. In support of this contention defendant argues that the testimony of its Division Engineer conclusively established the cause of the derailment of the train. The Engineer was called as an expert and of course he was an employee of the defendant. As has heretofore been noted, his testimony was limited to the condition of the track and roadbed subsequent to the accident, without any reference to the condition of the wrecked train or the condition of the 'run-around track' before the accident, nor did defendant offer any testimony as to the speed of the train, or what precautions, if any, had been taken to guard against accident in the use of this newly constructed segment of railroad over which all of defendant's traffic was being transported. It was defendant's Engineer's testimony that the derailment had, in his opinion, been caused by the fault of a contractor of the State of Illinois who constructed the embankment upon which the railroad track rested when the derailment occurred; that owing to slippage of the embankment, the temporary 'run-around track' moved both horizontally and vertically, producing the derailment. The effect of the testimony of this witness was to admit that the grade or embankment was faultily constructed. The mere fact that it may have been constructed by the State of Illinois would certainly not absolve defendant, as a public carrier of passengers using such track, from liability for accidents resulting from the faulty construction. It manifestly accepted and used the track and it was not material by whom it may have been constructed. The opinion of defendant's expert was not bound to be accepted as a finality by the jury. The evidence of the condition of the track and roadbed at the time it was inspected by this witness might have been the result of the wreck, rather than the wreck being the result of the defect in construction. This witness testified on cross-examination that he had no knowledge as to the speed of the train and there was, as we have already observed, no evidence produced by the defendant as to the manner in which this train was operated over the 'run-around track.' Manifestly there were those in the employ of defendant who had knowledge as to what, if any, precautionary measures were taken in operating this train over a newly constructed segment of roadbed, especially the conductor and engineer in charge of the train. Among other things, they might have testified as to what, if any, 'slow orders' as to the speed to be maintained in passing over this newly graded 'run-around track', or other precautionary measures, were in effect, their familiarity with the 'run-around track' which collapsed, the number of times they had previously traversed this area, what was the proper safe speed to maintain on the 'runaround track,' the speed of the train at the time of its derailment, the visibility at the time of the derailment, the possibility of discovery of the track slippage before running on to it, if that is what occurred, detailed information as to the exact manner in which the train derailed, and information as to the possibility of maintaining the passenger cars on the track after the engine derailed. 24 There was evidence indicating that the car in which plaintiff was riding was dragged some eighty feet forward on its side after its derailment. This physical fact may have impressed the jury as having some bearing on the manner in which the train was being operated. 25 Whether or not the court erred in permitting the argument of counsel is a procedural question and hence to be determined by decisions of Federal courts rather than decisions of State courts. Where witnesses are equally available to either of the parties, no adverse inferences may be drawn from the failure of one party to call them, but where witnesses are employees of one of the parties, they are not equally available to the other party, and failure to call them, where it appears that they may have knowledge of some material fact, warrants the inference that had they been called their testimony would have been adverse to the party failing to call The rule is succinctly stated in 20 Am.Jur., Evidence, Section 187, p. 192, as follows: 26 'It is well settled that if a party fails to produce the testimony of an available witness on a material issue in the cause, it may be inferred that his testimony, if presented, would be adverse to the party who fails to call the witness.' 27 Where there has been a failure to call available witnesses who may have knowledge of material facts, such failure may properly be referred to in argument of counsel. In the circumstances presented by the record in this case, what is said in Chesapeake & O. Ry. Co. v. Richardson, 6 Cir., 116 F.2d 860, 865, is peculiarly apposite here. In the course of the opinion in that case it is said: 28 'The relationship existing between appellant and the three witnesses was such that each of them might reasonably be presumed to possess knowledge bearing on the issues involved. The unexplained failure of a party to produce a witness under such circumstances is a fit subject for fair comment and may justify an inference unfavorable to the party in default. Wigmore on Evidence, sec. 285, p. 368; Kierce v. Central Vermont Railway, 2 Cir., 79 F.2d 198; Lord & Spencer v. M. N. Stout Co., 1 Cir., 33 F.2d 60. It is a settled rule that counsel must restrict himself to the record for his facts and resort only to reason for his deduction, but within these limits freedom of ample argument is maintained. The extent of allowable comment rests largely in the trial court's discretion. There is no abuse here.' 29 While this is a question of Federal procedure, the same rule is generally followed by the State courts. Thus, in Adam Hat Stores, Inc., v. Kansas City, Mo., Mo.App., 307 S.W.2d 36, 41, the court stated: 30 'It is a well-established general rule that the testimony of an employee of one of the parties who may be expected to have relevant testimony on the issue of the case is not equally available to the opposing party, and that it is proper for counsel to comment on the failure of the employer-party to produce that employee, and to suggest an inference that his testimony would have been unfavorable to such employer.' 31 Counsel has great latitude in argument to the jury. He may not only base his argument on the evidence but he is entitled to argue all inferences that may reasonably be drawn from the evidence, or lack of evidence, subject to regulation by the court. The argument objected to in the instant case was neither intemperate nor inflammatory and we think the court did not abuse its discretion in sanctioning it. 32 We have considered all other contentions of counsel but think them without merit and we are convinced that the court in the trial of this case committed no errors prejudicial to the defendant. 33 The judgment appealed from is therefore affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1874083/	752 N.W.2d 35 (2008) IN RE C.L.W.-M. No. 08-0215. Court of Appeals of Iowa. April 9, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983042/	Affirmed and Memorandum Opinion filed December 11, 2014. In The Fourteenth Court of Appeals NO. 14-14-00240-CR EX PARTE FORREST WAYNE On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1419699 MEMORANDUM OPINION Appellant is charged with aggravated sexual assault of a child younger than fourteen years of age. After appellant was arrested, his bond was set at $500,000. Appellant filed a pre-trial writ of habeas corpus seeking a reduction of bond. Following a hearing, the trial court reduced appellant’s pre-trial bond to $300,000. Appellant now appeals arguing that the trial court abused its discretion by setting bail at that amount. The hearing record reflects two witnesses testified at the hearing, Joseph Mendez, an agent with Access Bail Bonds, and appellant’s mother. They both testified that appellant’s mother cannot post a bond higher than $30,000. Appellant’s mother also testified that appellant was arrested in Thailand, that appellant went to Thailand because “he was afraid of what was going to transpire,” and when he left she was concerned she would never see him again. There was no evidence about how much the ticket to Thailand cost or how appellant was able to pay for the ticket. The trial court determined that “Mr. Wayne is, in fact, a flight risk and did flee as a result of this situation . . .” Still, the trial court reduced appellant’s bond to $300,000. There was no evidence presented regarding appellant’s finances. Although appellant suggests that his sworn Pre-trial Application for Writ of Habeas Corpus Seeking Bail Reduction states that he has “little, if any, access to money,” the trial court was entitled to conclude from the testimony that appellant had access to money. Appellant supplied no testimony that he is indigent, that he has made an attempt to secure a bond, or that he cannot afford a bond of $300,000. Before a complaint can be heard on appeal regarding the amount of bail, appellant must show he has made an effort to furnish bail in the set amount. Ex parte Holden, 774 S.W.2d 957 (Tex. App.—Houston [1st Dist.] 1989, no pet.). In the absence of some evidence that appellant has unsuccessfully attempted to secure a bond in the amount set by the court, no issue is presented for our review. Ex parte Williams, 467 S.W.2d 433, 434 (Tex. Crim. App. 1971). Appellant has failed to carry his burden of showing that his present bail is excessive. See Roy v. State, 854 S.W.2d 931, 932 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Accordingly, we overrule appellant’s issue and affirm the judgment of the trial court. PER CURIAM Panel consists of Justices McCally, Brown and Wise. Do Not Publish — Tex. R. App. P. 47.2(b). 2	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/4181735/	IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA YVENS FELIX, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED v. CASE NO. 1D17-0861 STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed June 28, 2017. An appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge. Yvens Felix, pro se, Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. WINOKUR, JAY, and M.K. THOMAS, JJ., CONCUR.	01-03-2023	06-28-2017
https://www.courtlistener.com/api/rest/v3/opinions/8326464/	Kenton-Walker, Janet, J. The defendant, Nga Truong (“Nga”), moves the court to suppress any and all statements made by her to law enforcement on December 1,2008, together with all evidence obtained by the Commonwealth as a result of any statements she made. For the following reasons, the defendant’s motion to suppress is ALLOWED. FINDINGS OF FACT Based on the evidence presented at the hearing and the reasonable inferences therefrom, the court makes the following findings of fact.1 On November 30, 2008 at approximately 11:10 a.m., Sergeant Kevin Pageau (“Pageau”), of the Worcester Police Department, accompanied by two other officers,2 responded to an apartment located at 3 Henderson Avenue in Worcester, Massachusetts in order to investigate a 911 call of an unconscious and 224unresponsive one-year-old baby, Khyle Truong (“Khyle”). Khyle had been taken to the hospital, but was believed to have died. Khyle’s mother, Nga, and his grandmother, Van Truong (“Van”) had also gone to the hospital. Pageau had been assigned as the detective in charge of the investigation. When Pageau arrived at the apartment shortly after 11:00 a.m. he knew Worcester police had initially arrived at about 10:40 a.m. to find an infant (Khyle) not breathing, and that the responding officer had found vomit on the baby’s face and around his mouth when he attempted to perform CPR. Pageau himself observed what he believed to be vomit in the crib where Khyle had been. Once at the scene, Pageau directed officers from the department’s crime scene unit to collect evidence and take photographs. Pageau remained at the apartment for approximately two hours that day. Khyle Truong was officially pronounced dead just after 12:00 p.m. on November 30, 2008. Edwin Vasquez (“Edwin”), Nga’s boyfriend, was at the apartment when Pageau and the other officers arrived. Edwin had been at the apartment when the 911 call came in regarding Khyle.3 Pageau had a brief conversation with him at that time. Later that afternoon, at approximately 2:00 p.m., the police brought Edwin to the police department and took his statement.4 At 2:30 p.m. on November 30th Pageau met with both Nga and Van and spoke with them together for approximately half an hour. Prior to speaking with them, Pageau had learned from the emergency room doctors that an hour after he had been removed from the apartment Khyle had a temperature of 101; that Khyle’s death did not appear to be a traditional SIDS5 death; and that there were no signs of injury or significant illness. Neither Nga nor Van was placed in custody and Pageau did not read them their Miranda warnings. The court finds that Pageau did not discuss with Nga or Van that before speaking with him Nga could meet with Van or another interested adult to discuss her rights. Based on the information he received from Nga and Van, Pageau sent officers from the crime scene unit back to the apartment to retrieve additional evidence.6 After the interviews with Edwin, Nga & Van, Pageau and Detective John Doherty (“Doherty”) proceeded with their investigation and obtained information from Worcester Police Department records that a year before Khyle’s death Nga had been a run-away and involved with the Department of Social Services (“DSS”).7 They had also discovered that eight years earlier, when Nga was eight years old, Van had left her in charge of Nga’s three-month-old baby brother, Hein. Nga found Hein unconscious and brought the baby to an adult who lived downstairs. Hein was taken to the hospital and pronounced dead. It was determined that the cause of death was SIDS. A DSS report had been filed and neglect found on the part of Van for leaving Nga in charge of Hein. No criminal charges were brought. On December 1, 2008 at about 10:30 a.m. Pageau and Doherty returned to the apartment because they wanted to bring Nga, Van and Edwin to the police station for further interviews. When they arrived at the apartment, Van, Nga, Edwin, and Nga’s aunt were there. Pageau testified that he told Edwin, Van and Nga that he wanted to speak with them at the police department.8 Pageau did not place Nga, Van or Edwin into custody, nor did Pageau advise any of them of their Miranda warnings. The court finds that Pageau was not aware that Nga was sixteen years old9 when he was at the apartment on the morning of December 1st, nor when he met with Nga and Van the day before on November 30th. Pageau testified that his understanding of a juvenile was anyone under the age of eighteen; however, he also testified that under the law a juvenile, at least with regard to Miranda warnings, is an individual under the age of seventeen. Based on that testimony, the court finds that while Pageau believed Nga was a minor (under eighteen), he treated her as if she was not a juvenile (at least seventeen) when telling her he wanted to bring her to the police department for another interview. There was no evidence that Pageau advised Nga or Van that Nga could consult with Van, some other interested adult, or an attorney, to discuss whether or not she should go the police station to be interviewed. While Nga and Edwin remained at the apartment, a relative drove Van to the police station to meet with Pageau and Doherty. Van was taken to an interview room.10 The interview with Van began shortly after 11:00 a.m., but the audio and video recording did not begin until 11:20 a.m. At the beginning of the interview, the detectives advised Van of her Miranda warnings. Van agreed to waive her rights and to speak with the detectives. At no time during the two hours of Van’s interview did either detective indicate that they knew Nga was only sixteen, and when at the beginning of the interview they asked Van how old Nga was, she told them Nga was seventeen.11 The officers never advised Van of Nga’s Miranda rights, they did not ask her if they could interview Nga, and they did not tell Van they would give Nga an opportunity to consult with her, some other interested adult, or an attorney before they interviewed Nga. It is evident from the interview with Van that Pageau and Doherty firmly believed that Nga had killed Khyle, and the officers were clearly interrogating Van. Pageau questioned Van about Hein’s death and both detectives had reached the conclusion that Hein had not died from SIDS, but rather at the hands of Nga. They linked Khyle’s and Hein’s death together telling Van that two babies were dead and both times Nga was with those babies. They continually insisted that Van tell them what Nga did to those babies. When Van told them that Hein’s death had been from SIDS, the 225officers were utterly dismissive of that explanation. They were forcefully direct with Van that the story of Hein’s death was incorrect. The detectives insisted with Van that Hein had died the same way Khyle did—by suffocation from being smothered. They insisted that it could not have been a coincidence that two babies died the same way, and that Nga was with both babies when they died. Pageau told Van that Nga had lied to him the day before, he told Van he was going to bring Nga back in, and sarcastically asked Van “Do you think she’s [meaning Nga] going to just walk out of here?” Pageau also told Van they had medical proof that Khyle had been smothered and that science does not lie. They accused Van of not cooperating with them because she would not tell them how Nga had killed Khyle and Hein. Pageau and Doherty also told Van that Nga needed a lot of help, that she was still a juvenile and that Van needed to help Nga get the help she needed. The interrogation of Van ended at 1:17 p.m. At the end, Pageau tells Van that he’s bringing in her daughter and boyfriend to speak with them. This was simply a statement of fact and not a request for Van’s permission. Pageau’s testimony that during Van’s interrogation they asked Van for permission to speak with Nga, but that he was not sure if his request was on the actual video (which it was not) or after the video recording was over, is simply not credible. Given that the detectives believed Nga was seventeen, that the focus of their investigation was entirely on Nga, that they had just spent two hours telling Van that Nga had killed Khyle and Hein, and had demanded that Van tell them what Nga had done to those babies, this court finds that the police purposely brought Nga to the station separately from Van and interviewed her after Van.12 Based on the above, the detectives never intended that Nga and Van would consult with each other prior to Nga’s interview. This court does not credit any portion of Pageau’s testimony that he asked Van for permission to interview Nga or that he asked Van if she wanted to be present during Nga’s interview.13 Either during Van’s interrogation or shortly after its conclusion, Pageau sent an officer to the apartment to bring Nga in.14 Van was no longer at the station when Nga arrived with the officer. Nga was brought to an interview room in the juvenile division located on the second floor of the police department and left alone in that room.15 Nga was not in handcuffs. At some point, Doherty and Pageau came into the room. Within the first twenty seconds of the interview, Doherty asks Nga to give her date of birth, which she gave as December 1, 1991. The court finds that from that moment Pageau and Doherty should have been and were on notice that Nga was only sixteen years old. Doherty then advised Nga that he was going to go over her rights and asked her if she was there voluntarily. Nga responded that she was, but confirmed that she had been brought to the station by a police officer. Doherty then read Nga her Miranda warnings. He asked her if she understood them and she responded that she did. She also responded “sure” when Doherty asked her if she wanted to speak with them. Doherty asked Nga to sign the Miranda Warnings & Waiver form, which she did at 1:54 p.m. Immediately after signing, Doherty asked Nga how old she was. Nga responded that she was seventeen. Doherty then asked Nga if she was going to be eighteen in a couple of days, to which Nga said: “I’m going to turn seventeen.” Doherty responded by saying “Oh, you’re going to turn seventeen in a couple days. Okay.” At this point, Pageau asked Nga “You’re not seventeen yet?” Nga said “No.” Pageau’s response was: “But you have spoken with your mother, and you spoke with me, with your mother present yesterday, right?” Nga said “Yes.” Pageau then asked, “And your mother knows you’re here today?” Nga said “Mm-hmm.” Pageau then said “And that’s okay. And as a matter of fact, she just left; right?” Nga responded, “Yes.” Based on the dialogue between the police and Nga, the court finds that Pageau and Doherty were now well aware that Nga was only sixteen years old, that Van was not present at the police station at this point, and that Nga had not had an opportunity to consult with Van, another interested adult, or an attorney before having her Miranda warnings read and agreeing to waive her rights. The court also finds that the police never told Nga, prior to waiving her Miranda rights, that she could speak with Van, another interested adult, or an attorney about her rights. Because Pageau and Doherty had come to believe that Nga had killed Khyle prior to their meeting with either Van or Nga, the ensuing interview with Nga became an interrogation in which Pageau and Doherty conveyed their belief to Nga that she had killed not only Khyle, but also her brother, Hein. Despite having told Nga that she was free to leave initially, once the interrogation became forceful, Nga’s requests to end the interview were not honored.16 During more than two hours of interrogation, Pageau and Doherty focused exclusively on Nga’s involvement in the death of Khyle. Throughout their questioning, the police theme was that (1) they were aware she had killed Khyle and Hein, (2) they had medical evidence confirming she had smothered Khyle,17 (3) they knew her mother placed the responsibility for caring for her younger siblings on her, putting too much pressure on her, (4) that neither Van nor Edwin were involved in Khyle’s death, leaving her as the only possible person, and (5) that if she told them what she did, they would get her the help she needed because she was just a juvenile,18 but if she refused to admit what she did, they would take her to court and tell the jury that she smothered Khyle. 226As the interrogation proceeded the detectives’ tone became increasingly aggressive. They continually refused to accept Nga’s many denials that she did not hurt Khyle or Hein.19 Each time Nga denied knowing how Khyle died, the police accused her of lying and that she was not cooperating with them. Also, throughout the interview, the police reminded Nga that she was only sixteen and at various points asked her about wanting to meet with her mother, or having already spoken with her mother, or that they could call Van if Nga wanted them to and that it was up to Nga. After almost two hours of accusing Nga of killing Khyle and promising Nga that they would get her the help she needed because she was just a juvenile, and help for her brothers by getting them a better life, Nga admitted that she smothered Khyle with one of the teddy bears in his crib. Nga then asked if she could leave at which point she is then left alone in the interview room for almost twenty minutes. When the police return, Nga asks them “Will me and my brothers get to go to foster care?” Pageau responds by saying “Yes, I think so. We’re going to get DSS involved to do some foster care. Okay. Tiy to help them out.” Pageau then goes on to ask Nga if she had spoken with her mother about coming down to the station. Nga says that she had and that she had spoken with her mother by phone. Pageau then asks Nga, “And it was okay with her and it was okay with you?” Nga said “Yes.” Pageau then states “Okay. And we did ask you a couple times if you wanted to speak with her. You’d rather not speak with her?” And then Pageau stated “So as a matter of fact, we let her go, rather than let you talk with her?” Nga’s responses were inaudible, but she nodded her head up and down. At the end of the interrogation, Nga was placed under arrest. RULINGS OF LAW Under Miranda v. Arizona, 384 U.S. 436 (1966), when an individual is taken into custody, police are required to inform that individual of her rights against self-incrimination and to an attorney. In addition, the police must obtain a knowing, intelligent, and voluntary waiver of those rights before any interrogation otherwise any subsequent statement is inadmissible. Id. at 444-45; Commonwealth v. Bryant, 390 Mass. 729, 736 (1984); Commonwealth v. Hass, 373 Mass. 545, 552 (1977). The defendant argues that the statement she gave must be suppressed because it was obtained during a custodial interrogation without her having made a knowing, intelligent and voluntary waiver of her Miranda rights. The defendant further argues that her statement was not made voluntarily. This court must first determine if Nga was subject to a custodial interrogation. If she was, the court must then determine if she made a knowing, intelligent and voluntary waiver of her Miranda rights. Finally, the court must determine if Nga’s statement was voluntary. 1. Was the defendant the subject of a custodial interrogation? Miranda warnings are only required when an individual, including a juvenile, is subject to custodial interrogation. See Commonwealth v. Morse, 427 Mass. 117, 122-23 (1998); Commonwealth v. A Juvenile, 402 Mass. 275 (1988). The defendant bears the burden of proving custody. Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). “[C]ustodial interrogation [is] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [her] freedom in any significant way.” Miranda v. Arizona, 384 U.S. at 444 (1966); see Commonwealth v. Haas, 373 Mass. 545, 551-54 (1977). In determining if a person is deprived of freedom in a significant way, the Supreme Judicial Court has recognized four factors to be considered: “(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, i.e. whether the interview was aggressive or, instead, informal; and (4) whether, at the time the incriminating statement or statements were made, the suspect was free to end the interview by leaving the place of the interrogation or by asking the interrogator to leave, or, alternatively, whether the interview terminated with the defendant’s arrest.” Commonwealth v. Sneed, 440 Mass. 216, 220 (2003); see also Commonwealth v. Ira I, 439 Mass. 805, 814 (2003). “The test is an objective one: whether a reasonable person in the suspect’s shoes would experience the environment in which the interrogation took place as coercive.” Commonwealth v. Larkin, 429 Mass. at 432. The critical question is “whether, considering all the circumstances, a reasonable person in the defendant’s position would have believed that [she] was in custody.” Commonwealth v. Sneed, 440 Mass. at 220, quoting Commonwealth v. Brum, 438 Mass. 103, 111 (2002). Taking into consideration the four factors and applying them to the totality of the circumstances in this case, the court finds that the defendant has met her burden of proving that she was in custody. Nga had been transported to the police station by a police officer and brought to an interrogation room, equipped with audio and video recording,20 where she was questioned by two police officers for over two hours. Here, the officers did not just convey to Nga that she was a suspect, but, as found by this court, they spent most of the two hours telling Nga she had killed Khyle, and that she had also killed Hein eight years earlier. The nature of Nga’s interrogation was not conversational or informal. To the contrary, the questioning was exceedingly formal and particularly aggressive. Finally, when Nga attempted to end the interview she was not free to leave, and at the end she was arrested. There is no question that a reasonable person in Nga’s 227position would understand that she was not free to leave at the time she made the statement. See Commonwealth v. Morse, 427 Mass. at 127. 2. Did the defendant make a knowing, intelligent and voluntary waiver of her Miranda rights? Having determined that the defendant sustained her burden of proving she was in custody and Miranda warnings were required, the court must determine: (1) whether the warnings were validly given; (2) whether the defendant made a voluntary and knowing waiver of her Miranda rights; and (3) whether the defendant made statements voluntarily, without being intimidated or coerced. Commonwealth v. Williams, 388 Mass 846, 850-56 (1983); Commonwealth v. A Juvenile, 389 Mass. 128, 129 (1983); Commonwealth v. Tavares, 385 Mass. 140, 145, cert. denied, 457 U.S. 1137 (1982). It is the Commonwealth’s burden to prove beyond a reasonable doubt the voluntariness of both the waiver and the statements. Commonwealth v. Day, 387 Mass. 915, 920-21 (1983). There is no issue that the warnings given to Nga were valid. Rather, this court must determine whether the Commonwealth has proven beyond a reasonable doubt that Nga made a voluntary and knowing waiver of her Miranda rights. For the Commonwealth to successfully demonstrate a knowing and intelligent waiver by a juvenile who has reached the age of fourteen, such as Nga, there “should ordinarily be a meaningful consultation with the parent, interested adult, or attorney to ensure that the waiver is knowing and intelligent. For a waiver to be valid without such a consultation, the circumstances should demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile.” Commonwealth v. A Juvenile, 389 Mass. at 134. This requirement envisioned that the parent of the juvenile was present, the parent understood the warnings, and the parent had the opportunity to explain the rights to the juvenile so that the juvenile understands the significance of waiving those rights. Id. While actual consultation between the juvenile and a parent, interested adult, or attorney is not required, there must be a “genuine opportunity” for such a consultation. Commonwealth v. Alfonso A., 438 Mass. 372, 381 (2003), citing Commonwealth v. MacNeill, 399 Mass. 71, 78 (1987). In addition, to be any genuine consultation, the adult who is available must be informed of and understand the juvenile’s constitutional rights. Commonwealth v. Alfonso A., 438 Mass. at 382, citing Commonwealth v. Berry, 410 Mass. 31, 34-35 (1991). Such a requirement suggests the presence of an adult, or, “at the very least, contact between the adult and the police so that the police may inform the adult of those rights.” Commonwealth v. Alfonso A., 438 Mass. at 382. Although the law does not expressly require the adult in question to be physically present in order for there to be that “genuine opportunity” for consultation, in all cases where it was found that the required opportunity occurred, an adult was in fact present. Id. “The ‘genuine opportunity’ for consultation that our cases envision is not merely a theoretical opportunity, that the juvenile may utilize at some future time, but an opportunity that is immediately and evidently available to the juvenile before the juvenile waives his or her rights.” Id. The police never advised Van of Nga’s Miranda rights. The police never provided Nga with the opportunity to consult with Van or some other interested adult, or an attorney, prior to reading her Miranda warnings, or prior to her verbally agreeing to waive those rights and signing the waiver form. In this case, not only was there no genuine opportunity for Nga to have the requisite consultation before she presumably waived her Miranda rights, the police specifically orchestrated their interrogation so Nga could not meet with Van prior to her interview. Assuming the police believed Nga was seventeen when they interrogated Van, and continued to believe that when they began questioning Nga, moments after obtaining Nga’s waiver, the police learned that she was only sixteen. Pageau was well aware of the significance of this because he immediately asked Nga “But you have spoken with your mother, and you spoke with me, with your mother present yesterday, right?”21 The detectives’ concern continued throughout Nga’s interrogation because on multiple occasions they asked her if she had spoken with her mother, that her mother knew she was there, and told her that it was up to her if she wanted to have her mother there. This continued right up to the very end of the interrogation, even after Nga admitted to having smothered Khyle. At best, the evidence is that Nga spoke with Van over the phone at some point on December 1st prior to her being questioned, but since there is absolutely no evidence that the police ever explained Nga’s rights to Van, the court finds that any such conversation between Van and Nga could not have included a discussion of Nga’s rights and what it would mean to waive those rights.22 Knowledge by Van that Nga was at the station and was being questioned is not compliance with the requirement that “in order for there to be any genuine consultation, the adult who is available must be informed of and understand the juvenile’s constitutional rights.” Commonwealth v. Alfonso A., supra at 381. Based on all of the circumstances, the Commonwealth has failed to demonstrate that Nga had a genuine opportunity for a meaningful consultation.23 Because there was no opportunity for meaningful consultation, the Commonwealth must make the alternative showing of “circumstances [demonstrating] a high degree of intelligence, experience, knowledge or sophistication on the part of [Ngal” in order to prove a valid waiver of her Miranda rights. Commonwealth v. Alfonso A 438 Mass. at 384, quoting Commonwealth 228v. A Juvenile, 389 Mass. 128, 124 (1983). Prior to her contact with the police on November 30th, there was no evidence that Nga had had any previous involvement with the criminal process. At best, there was some indication that Nga had been involved with DSS, allegedly because she had been a runaway, but that does not demonstrate the type of contact that would suggest that Nga was aware of and understood her Miranda rights. Even extensive contact with police and other authorities by itself does not demonstrate unusual sophistication or knowledge about Miranda rights. See Commonwealth v. Guyton, 405 Mass. 497, 503 (1989). In this case, any contact Nga had with official authorities was minimal and does not show that she was aware of and understood her Miranda rights. Also, there was no evidence that on some other occasion Nga had asserted her rights. Contrast Commonwealth v. Pucillo, 427 Mass. 108, 111 (1998); Commonwealth v. King, 17 Mass.App.Ct. 602, 609-10 (1984). The Commonwealth’s suggestion that because Nga was just two days from her seventeenth birthday she possessed the requisite intelligence and sophistication to independently waive her rights has no merit. While it may be true that there would not have been a difference in Nga’s intelligence and sophistication from December 1, 2008 to December 3, 2008, Massachusetts law has determined that special care must be taken in assessing voluntariness when an individual is under seventeen. Even though drawing the line at seventeen is subject to the objections always raised against hard and fast rules, the law has determined that a line must be drawn. See Roper v. Simmons, 543 U.S. 551, 574 (2005). The court did not observe either from the audio and video recording, or during the hearing, that Nga was a particularly sophisticated or intelligent sixteen-year-old. Nor did the recordings show an individual who demonstrated any particular experience in or knowledge of the criminal process. In fact, the court observed a frightened, meek, emotionally compromised teenager who never understood the implications of her statements, as evidenced by her asking the police “Will me and my brothers get to go to foster care?” after she admitted she had smothered Khyle. Even assuming, which this court does not, that Nga’s demeanor during the interrogation demonstrated her intelligence and “experience in the ways of the world,” that is not proof beyond a reasonable doubt that Nga was aware of and understood her Miranda rights, and made a valid waiver. The court does not find that the Commonwealth has sustained its heavy burden of demonstrating that Nga had a high degree of intelligence, experience, knowledge, or sophistication to obviate the requirement that she be given the opportunity to consult with her mother, another interested adult, or an attorney prior to being provided with and waiving her Miranda rights. As a result, the court finds that the Commonwealth has failed to prove beyond a reasonable doubt that Nga gave a valid waiver of her Miranda rights. 3. Was the defendant’s statement voluntary? Apart from a consideration of the validity of a Miranda waiver, due process requires a separate inquiry into the voluntariness of a statement. Commonwealth v. Magee, 432 Mass. 381, 385 (1996). The court must look at the totality of the circumstances surrounding the making of the statement, “to ensure that the defendant’s confession was a free and voluntary act and was not the product of inquisitorial activity which had overborne [her] will.” Commonwealth v. Mahnke, 368 Mass. 662, 680 (1975), cert. denied, 425 U.S. 959 (1976). “Relevant factors include, but are not limited to, promises or other inducements, conduct of the defendant, the defendant’s age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings.” Commonwealth v. Selby, 420 Mass. 656, 663 (1995), quoting Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). “[A] finding that the defendant was unable to make a knowing, voluntary and intelligent waiver of her Miranda rights is not enough, standing alone, to support the finding that her statements were involuntary.” Commonwealth v. Hilton, 450 Mass. 173, 178 (2007). Again, the Commonwealth bears the burden of proving that the defendant’s statement was voluntary beyond a reasonable doubt. Commonwealth v. Tavares, 385 Mass. 140, 151-52 (1982). In viewing the totality of the circumstances in this case, the Commonwealth has not sustained its burden of showing beyond a reasonable doubt that Nga’s statement was voluntary. As stated above, the particularly aggressive interrogation conducted by the police given Nga’s age together with her lack of sophistication and experience with the criminal process, coupled with her emotional state are all factors that lead to the conclusion that Nga’s statement was not voluntary. In addition, the police repeatedly confronted Nga with knowingly false statements that they had conclusive medical and scientific evidence proving she had killed Khyle, which included false information regarding the presence of lividity and scientific evidence that Khyle had been smothered. Compounding this was the police insisting that Nga had killed Hein eight years earlier, despite having police reports, DSS records, and an autopsy showing that Hein’s death had been investigated and determined to be a SIDS death. The use of deception as a tactical device is disapproved, and such tactics cast doubt on whether a defendant’s statement is voluntary. See Commonwealth v. Jackson, 377 Mass. 319, 328 n.8 (1979); Commonwealth v. Nero, 14 Mass.App.Ct. 714, 716 (1982). While the use of false statements is a relevant 229factor to be considered in voluntariness, it does not compel suppression. Instead, it is to be considered as part of the totality of the circumstances. Commonwealth v. DiGiambattista, 442 Mass. 423, 432-33 (2004). If the use of false information is the only factor pointing toward involuntariness, suppression would not ordinarily follow. Id. at 433. However, where there are additional factors suggesting involuntariness, suppression will be required. Id. In addition to deception regarding medical evidence, the police continually told Nga that she was just a juvenile and if she would admit what she did she would remain in the juvenile court where she would get help. Statements such as “You tell us what happened. We walk right out here. To special crime, juvenile, get on the phone, talk with a social worker, and try to get you some help.” They told Nga there were women out there (meaning outside the interrogation room) “that work with children like you and people that are abused and have issues at home, they have a lot of resources.” The police also promised not just help for her, but also for Nga’s brothers. The detectives told her “there’s no doubt what happened in there. All everyone’s waiting for today is for you admit to what you did so that we can start the process of getting you some help, getting you into a social program. Getting your brothers out of that house. And getting them in a better home, where there’s a mom that gets up in the morning and takes care of them.”24 Equally important, the police made it very clear that if Nga did not admit to what she did, they would proceed with putting the case together, go to court with all the evidence and prove that she smothered Khyle. If it went that route, the police clearly implied to Nga that no help would be available. With notable naivete Nga believed what the officers told her since, after admitting she had smothered Khyle, all she wanted to know was whether she and her brothers would now be able to go to a foster home. By continually promising Nga that because she was a juvenile she would be given help if she admitted the crime, the police minimized the seriousness of the charge she was facing. Where there have been suggestions of leniency in exchange for a confession, combined with false statements concerning allegedly irrefutable evidence that would be used against a defendant, the defendant’s ability to make a voluntary statement is undermined. See Commonwealth v. DiGiambattista, 442 Mass. at 435; Commonwealth v. Meehan, 377 Mass. 552, 563 (1979). The detectives’ assurances to Nga that, because she was a juvenile, she would receive the help she needed if she simply admitted what she had done to Khyle was more than an implied offer of leniency. In this case, they were extremely close to explicit promises. Even if it was not an explicit promise, the police assurances to Nga were still coercive. Coercion can be applied by way of implied promises just as it is by express promises. See Commonwealth v. DiGiambattista, 442 Mass. at 435-36. Given Nga’s age she was even more susceptible to the influences and pressures applied by the detectives. See Roper v. Simmons, 543 U.S. at 569-71. In this case, the offers of leniency if Nga admitted she smothered Khyle represented a quid pro quo. See id. at 436; Commonwealth v. Magee, 423 Mass. at 387. When, as here, there exists a combination of trickery and implied promises, together with Nga’s young age, lack of experience and sophistication, her emotional state, as well as the aggressive nature of the interrogation, the totality of the circumstances suggests a situation potentially coercive to the point of making an innocent person confess to a crime. See Commonwealth v. Scoggins. 439 Mass. 571, 576 (2003). When such a situation exists, the Commonwealth has failed to meet its burden of establishing beyond a reasonable doubt that Nga’s statement was voluntary and the statement must be suppressed. See Commonwealth v. DiGiambattista, 442 Mass. at 439. 4. Seizure of physical evidence. After admitting that she smothered Khyle, Nga told the officers that she had used a stuffed animal to smother Khyle with.25 Nga was asked additional questions about which stuffed animal she used and was shown a photograph taken by police of stuffed animals recovered from Khyle’s crib. There were two teddy bears pictured and she was asked which bear she had used. Nga was not sure. Any evidence obtained by the police with regard to either of the two bears based on statements made by Nga must also be suppressed as a fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Perrot, 407 Mass. 539, 546-48 (1990); Commonwealth v. Lahti, 398 Mass. 829, 832-37 (1986), cert. denied, 481 U.S. 1017 (1987); Commonwealth v. DiMarzio, 436 Mass. 1012 (2002) 26 ORDER For the foregoing reasons, it is hereby ORDERED that the defendant’s motion to suppress all statements made by her to law enforcement on December 1,2008, together with any evidence obtained as a fruit of those statements is ALLOWED. The findings of fact made by the court are those that are relevant to the issues presented by this motion. The evidence presented, and considered by the court, consisted of the testimony of Sergeant Kevin Pageau, a computer screen printout, the audio recordings of the interviews of Nga Truong and Van Truong, the video recordings of those interviews, the Miranda Warnings and Waiver form signed by Nga Truong, and the death certificate. The court was also provided with a transcript of the audio and video recording of the interview with Nga Truong to assist the court in following the audio portion of her interview. Pageau arrived with Detectives Doherty and Goulet. Detective Goulet was from the juvenile division of the Worcester Police Department. From the interviews with Van and Nga, the court learned that Edwin lived at the apartment with Nga. Detective Doherty interviewed Edwin and that interview was not audio or video-recorded. Notably, Pageau testified that the Worcester police do not audio or video-record noncustodial statements. Sudden Infant Death Syndrome. The officers retrieved two used diapers that Pageau was told had been Khyle’s. Now called the Department of Children & Families. This was Pageau’s initial testimony at the hearing. In response to a question from the court, Pageau altered that testimony by stating that he told Van he wanted to speak with her and her daughter at the police station and asked Van if they would be willing to come down to the station to talk with him. The court does not credit this testimony and finds that Pageau did not speak only with Van and was not seeking Van’s permission to speak with Nga. It is not in dispute that Nga was sixteen years old on December 1, 2008. The room was a small room, approximately 8 feet by 10 feet, containing a table and three chairs. Two of the chairs were on one side of the table and the third chair was on the other side, with the chairs facing each other. The video camera faced the single chair. There was one door to the room. Given all the information Pageau and Doherty had acquired about Nga prior to the interview with Van, including DSS records and police reports regarding Hein’s death, the court finds it hard to believe they were not aware of Nga’s date of birth (December 3, 1991) which would have told them Nga was only sixteen. Also, at one point in the interview with Van, Pageau tells Van that Nga needs help and that she is “still a juvenile.” Based on the conduct of the police during their interview of Van, together with the information the police had learned regarding Hein’s death, the court finds that Pageau and Doherty specifically wanted to interview Van first and agreed to meet Van at the station. The court does not credit Pageau’s testimony that he thought Nga had come with Van to the police station and did not realize Nga was not there until after his interview with Van was over, since it was clear during the interview with Van that he knew Nga was not there (having left the interview room at least once during Van’s interview, despite testifying that he had not) and that he sent other officers to the apartment to pick up Nga and Edwin. This is borne out from the interview with Van in which Pageau tells Van that this time he is not interested in hearing the rehearsed and made-up story Van and Nga told him the day before, and when he told Van that Nga had lied to him the day before. During the interview Pageau told Van that she knew Nga had killed Khyle because Nga had told her that. When Van kept saying she did not know how Khyle died, Pageau kept saying that she did and kept asking her what Nga had told her and what Nga had done to those babies. Given the tact he and Doherty had taken with Van, it is logical to infer that Pageau believed that if Van and Nga met and talked before Nga’s interview that Van would tell Nga what had occurred during her interview, which would have seriously compromised his investigation. It was somewhat unclear from Pageau’s testimony if he sent the officer to go pick up Nga and Edwin while still interviewing Van or if he sent the officer after Van’s interview was concluded. From the video recordings, this interview room appears to be the same as the one Van had been in. For example, when Nga asked if she could come back another time to answer questions, she was told there would be no next time. At another point, when she asked when she could leave, Nga was left alone in the room for about five minutes while Pageau checked with his sergeant and then returned to continue questioning her. At the hearing Pageau testified that he knew no cause of death had been determined for Khyle and that lividity evident in Khyle’s body at the autopsy may have occurred in the morgue. The death certificate did not contain a cause of death. The court finds that Pageau did not possess medical evidence that Khyle had been smothered when interviewing Nga. Including getting help for her siblings by getting them out of the house and away from Van. For example, when Nga told Pageau that Hein’s death had been from SIDS, Pageau responded by saying “No .. . big sister syndrome.” The court also notes that Pageau’s testimony indicates that he believed the interview with Nga was custodial since he testified that custodial interrogations are ones that are audio and video recorded. While the subjective beliefs of law enforcement is irrelevant in determining if a person being questioned is in custody for the purposes of Miranda, such beliefs can influence the conditions surrounding an interrogation. See Stansbury v. California, 511 U.S. 318, 323-24 (1994); Commonwealth v. Morse, 427 Mass. at 124. As stated earlier, Pageau testified that he understood that a juvenile for Miranda purposes was anyone under the age of seventeen. Nor is it helpful to the Commonwealth’s cause that Pageau interviewed Van and Nga together the day before since again Pageau did not provide either with their Miranda warnings, did not advise Van of Nga’s rights, nor provide Nga with an opportunity to consult with Van, another interested adult, or an attorney prior to being interviewed. Even if Nga had been given the opportuniiy to consult with Van prior to waiving her rights, given that the police had told Van that Nga killed both Khyle and Hein, it is questionable whether Van would have been sufficiently concerned with Nga’s welfare to provide Nga with appropriate protection. See Commonwealth v. Alfonso A., 438 Mass. at 383, upholding the Appeals Court determination in 53 Mass.App.Ct. 279, 293 (2001). Whether an adult advising a juvenile is an interested adult must be viewed from the perspective of the police conducting the interview. See Commonwealth v. Berry, 410 Mass. at 37. Where it is apparent to the police that the adult may be actually antagonistic toward the juvenile, that adult could not qualify as someone to provide the juvenile with an opportuniiy for consultation as contemplated by the law. See id. at 36-37. The police kept insisting that Van was a neglectful mother to not just Nga, but also Nga’s brothers. Pageau and Doherty said how unfair the home situation was to Nga, and that she did not have the chance to just be a regular teenager because of Van. The police version was that Van had put Nga into an untenable and unbearable situation for someone her age by making Nga the one responsible for taking care of not only her own baby, but also her mother’s. As a result, Nga was under tremendous pressure causing her to lose control that resulted in her smothering Khyle. Nga stated that the stuffed animal was one of the bears in Khyle’s crib. There was no evidence presented at the hearing as to what specific evidence was obtained or if any such seizure can be admitted as being within an exception to the fruit of the poisonous tree doctrine.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/2615017/	847 P.2d 342 (1993) James Randolph GRAHAM, II and Katrina Dawn Graham, natural father and mother, guardians and next friends of Donald Keaton Graham, a deceased minor, Appellants and Counter-Appellees, v. Joseph A. KEUCHEL, D.O.; W. Richard Loerke, D.O.; Benien Clinic, Inc., an Oklahoma corporation, Donald G. Dunaway, D.O.; Osteopathic Hospital Founders Association, an Oklahoma corporation, d/b/a Oklahoma Osteopathic Hospital, Appellees and Counter-Appellants, and Drs. Dean, Hall & Ryker, William E. Hall, M.D., and David E. Ryker, M.D., Defendants. No. 72586. Supreme Court of Oklahoma. January 26, 1993. Jerry M. Melone, Matt A. Melone, Melone-Shepherd-Schroeder-Allred-Melone, Tulsa, for appellants and counter-appellees, James Randolph and Katrina Dawn Graham. James K. Secrest, II, Edward J. Main, Secrest & Hill, Tulsa, for appellees and counter-appellants, Joseph A. Keuchel, D.O., W. Richard Loerke, D.O., and Benien Clinic, Inc. Joseph M. Best, Joseph A. Sharp, John H.T. Sheridan, Best, Sharp, Sheridan & Stritzke, Tulsa, for appellee and counter-appellant, Donald G. Dunaway, D.O. Pete Silva, Jr., Michael Barkley, John D. Clayman, Teresa G. Dreiling, Barkley, Rodolf, Silva, McCarthy & Rodolf, Tulsa, for appellee and counter-appellant, Osteopathic Hosp. Founders Ass'n, an Oklahoma corp., d/b/a Oklahoma Osteopathic Hosp. 345 OPALA, Chief Justice. Two issues are dispositive of this appeal: [1] Was the supervening cause instruction in the wrongful death claim[1] fatally or reversibly flawed? [2] Did the trial court commit reversible error by instructing on "mistake of judgment"[2] when this jury charge was unwarranted by the evidence adduced in the trial of both claims? We answer both questions in the affirmative, reverse the judgment and remand the cause for a new trial not inconsistent with this opinion.[3] 346 Two more issues are presented by counter-appeal: [1] Did the trial court err by failing to direct a verdict for defendants on the wrongful death claim? [2] Should the trial court have held that the mother's bodily injury claim was time barred? We answer both questions in the negative. ANATOMY OF LITIGATION The plaintiff Katrina Graham [the mother] brought suit for her own bodily injury and was joined by her husband, as next friend [the parents], in a claim for their child's [Donald's] wrongful death.[4] Both causes were based upon negligent medical treatment the mother had received in connection with a pregnancy and miscarriage in 1981-1982.[5] The mother contended that the defendants [doctors][6] did not determine her blood type nor give her the antisensitization drug Rho-GAM,[7] which (a) caused her to become sensitized,[8] (b) seriously impaired her ability to bear healthy children and (c) placed her in great danger.[9] The parents argued that the doctors' negligent sensitization of the mother was the direct cause of Donald's fatal condition and his death. Donald was born on December 19, 1983 with a hemolytic disease called erythroblastosis fetalis [EBF]; he died four days later. A child who is RH-positive may be born with EBF if its RH-negative mother has, during an earlier pregnancy, miscarriage or childbirth, become sensitized[10] to the D antigen which is present in RH-positive blood.[11] A sensitized RH-negative woman's blood contains antibodies which, during a later pregnancy,[12] may cross the placenta 347 into the RH-positive fetus to attack and destroy its red blood cells. This may cause anemia in the fetus or in the unborn child. The anemia may range from a mild case, which can be remedied by blood transfusion at birth, to severe anemia (EBF) which is often lethal to the baby as it was in the case before us now.[13] Sensitization can usually be prevented[14] by giving an RH-negative mother the drug Rho-GAM[15] during all pregnancies[16] and after every miscarriage, abortion or birth of an RH-positive fetus or child.[17] Failure to give Rho-GAM to an RH-negative mother of an RH-positive fetus or child at the proper time increases the risk of the immune response and its consequences for later pregnancies i.e., the possibility of severe fetal harm or death. The parties stipulated the mother has Rh-negative blood and is presently sensitized to the Rh factor. The doctors denied any negligence in the mother's treatment and contended that (1) the statute of limitations had run on her claim[18] and (2) her sensitization was not caused by the 1982 miscarriage.[19] They also urged that, if they were negligent, the mother was contributorily negligent for failing to tell them she (a) is Rh-negative and (b) had received Rho-GAM before.[20] The doctors also disclaimed responsibility for Donald's death. They urged that a superseding cause cut off their liability to the parents because the mother had (1) willfully conceived Donald (2) with full knowledge that she had been sensitized and (3) with complete appreciation of the serious risk of harm to herself and to the child. This appeal was lodged from a judgment on a jury verdict in favor of the doctors on both claims. The doctors counter-appeal. 348 I THE WRONGFUL DEATH CLAIM A. CORRECT LIABILITY ANALYSIS FOR THIS CASE WILL NOT SANCTION AS SUPERVENING CAUSE A MOTHER'S NEGLIGENT CONCEPTION BUT ONLY HER WILLFUL SEXUAL BEHAVIOR IN THE FACE OF FULLY UNDERSTOOD MEDICAL WARNING OF THE DANGEROUS CONSEQUENCES One of the essential elements of actionable negligence requires that the act or omission complained of be the direct cause of the harm for which liability is sought to be imposed.[21] Not every intervening cause insulates the original negligent actor from liability.[22] When a cause combines with another act or omission to produce the injury[23] or several causes operate to bring about the same result,[24]each negligent actor may be liable for the harm that evolves. To rise to the magnitude of a supervening cause, which will insulate the original actor from liability, the new cause must be (1) independent of the original act, (2) adequate of itself to bring about the result and (3) one whose occurrence was not reasonably foreseeable to the original actor.[25] The doctors urged below that the jury might infer from the evidence that the mother (1) knew that she had been sensitized, (2) had been warned and understood completely the medical statistics indicating the degree of danger to both mother and child when a sensitized mother has a baby and (3) willfully engaged in sexual conduct intended to bring about conception with the full resolve of carrying the fetus to term. In short, they urged that she intentionally exposed Donald to the risk and danger which ultimately resulted in his death. According to the doctors, a "willful pregnancy" under those conditions would be a supervening cause that cuts off their liability. Over the parent's objection the trial court submitted to the jury a supervening cause instruction.[26] The parents argue that the evidence at trial did not warrant a supervening cause instruction; they point to Strong v. Allen,[27] where a father's lax supervision of his child there considered to have been ordinary negligence failed the three-prong test[28] for isolating supervening cause. According to the parents, the mother's negligence in becoming pregnant just as the father's ordinary negligence in Strong cannot legally support a supervening cause instruction. Two firmly settled rules of law coverage to prevent a parent's negligent act from operating as a cause that would supervene an original actor's substandard behavior.[29] Firstly, a parent's ordinary negligence 349 may not be imputed to a child of tender years to bar or reduce the child's recovery against a third party.[30] Secondly, except for the very narrowly carved exception which permits filial recovery for insured losses from vehicular negligence,[31] a child cannot recover from a parent for the latter's ordinary negligence, which causes or contributes to the child's injury or death.[32] These principles combine here to prevent the doctors from directly or obliquely shifting to the mother, in whole or in part, their own tort liability for harm to the child. No parent's act or omission is hence available as a supervening cause if it is rested on ordinary negligence.[33] Because the law's barrier does not reach into willful acts,[34]the doctors may not be deprived of that legal defense against the death claim which lies beyond the perimeters of the mother's ordinary negligence.[35] B. SUFFICIENCY OF THE EVIDENCE TO SUPPORT A SUPERVENING CAUSE INSTRUCTION A person is not generally deemed liable at common law for a third party's deliberate act.[36]A third person's intentional tort is a supervening cause of the harm that results even if the actor's negligent conduct created a situation that presented the opportunity for the tort to be committed unless the actor realizes or should realize the likelihood that the third person might commit the tortious act.[37] A 350 negligent actor is not bound to anticipate another's wrongful act after the latter has discovered the danger that arises from the former's negligence.[38]Lapse of time or other reason such as, e.g., the third person's discovery of the original actor's negligence or the former's deliberate assumption of control of the situation may cause the duty to prevent harm to another, threatened by the original actor's negligent conduct, to shift from that actor to the third person. When this happens the third person's failure to prevent the threatened harm may be a supervening cause.[39] Our three-prong test for supervening cause governs the wrongful death claim. There must be proof tending to show that the child's injury and death resulted from the mother's sexual conduct intended to bring about conception that was (1) not reasonably foreseable to the doctors, (2) independent of the doctor's substandard conduct and (3) adequate of itself to bring about the result.[40] 1. WHETHER THE MOTHER ENGAGED IN WILLFUL CONDUCT INTENDED TO BRING ABOUT CONCEPTION IN THE FACE OF A KNOWN AND FULLY APPRECIATED DANGER WAS A QUESTION OF FACT There was no direct evidence of the mother's intent to become pregnant at the time she conceived Donald. Proof shows earlier in the same year in which Donald was born she was trying to conceive a child. A February 25, 1983 test confirmed she was pregnant, but she miscarried in late March. A doctor advised her to wait at least three menstrual cycles before becoming pregnant again. Her last menstrual period before she conceived Donald was in May 1983. Although an ultrasound test showed that the child was due in January, he was born December 19, 1983. In sum, the timing unfolds evidence from which a willful conception could be inferred; whether the mother was actually engaging in sexual conduct intended to bring about conception when she became pregnant with Donald is clearly for the trier to decide. Intentional conception alone will not make the mother's conduct a supervening cause of the child's wrongful death; it must be coupled with full knowledge of the consequences and appreciation for the dangers involved. 2. UNDER THE CIRCUMSTANCES PRESENT HERE, FORESEEABILITY OF THE MOTHER'S FIFTH PREGNANCY WAS A QUESTION OF FACT The parents contend the challenged supervening cause instruction did not allow the jury to consider one of the critical elements of supervening cause i.e., foreseeability to the doctors of the mother's pregnancy.[41] The trial court held that the doctors could not have foreseen that the mother would wilfully engage in conduct intended to bring about conception. Yet foreseeability in these circumstances may 351 depend upon several factors, some of which might not have been fully unveiled at trial. The mother is of child-bearing age and there is no evidence that she had undergone any sterilization procedure. The mother admitted she had been told in 1978 that (1) she was Rh-negative and would need Rho-GAM after every miscarriage, abortion or childbirth and (2) there was a danger to later children if she did not receive it on any of those occasions. She contends she didn't think at the critical time about the earlier warnings.[42] Although the mother admitted Dr. Keuchel told her she did not receive Rho-GAM after her 1982 miscarriage, other parts of their conversation are in dispute.[43] For example, while Doctor Keuchel urges he told the mother she would need a blood test before she became pregnant again, she denies it. In sum, what the mother was told about her condition, what she knew and understood about it, who told her and when she was told are all disputed fact questions that bear on foreseeability. If in light of the evidence, the triers can say the mother was not adequately warned, then they might find it was foreseeable to the doctors that she would become pregnant. If she was adequately warned, but failed to appreciate the danger, her pregnancy might also be foreseeable. The doctors, on the other hand, would not be accountable for foreseeing that an adult female patient, who is sui juris, would willfully conceive in the face of the substantial risk of known and appreciated danger of severe disability or death to her child. 3. UNDER THE CIRCUMSTANCES PRESENT HERE, WHETHER THE MOTHER'S ACTS WERE AN "INDEPENDENT FORCE" WAS A QUESTION OF FACT According to the doctors, their relationship with the mother was severed at the conclusion of her miscarriage in January 1982, but at the very latest in April 1982 when she hung up on Dr. Keuchel.[44] They seem to suggest that (1) she had deliberately assumed control of the situation and (2) they were powerless to prevent the harm that happened almost two years after their alleged failure to administer Rho-GAM. Although evidence shows that the doctors were not treating the mother at the time she conceived Donald, she urges that Dr. Keuchel had lulled her into a false sense of security about the danger of future pregnancies by telling her that failure to receive Rho-GAM would pose no problem. This dispute clearly makes the independent-act prong of the supervening-cause test a question for the triers. 4. ADEQUACY OF THE MOTHER'S CONDUCT TO BRING ABOUT THE CHILD'S WRONGFUL DEATH WAS A QUESTION OF FACT A remote cause which merely furnishes the occasion for an injury which results from an intervening efficient cause cannot be the predicate for liability, even though the injury would not have happened 352 "but for" the earlier incident.[45] It is when the first occasion results in injury which might have been anticipated or which rendered the avoidance of injury impossible that it will be the proximate cause in spite of an intervening agency.[46]Hence whether the mother's conduct was adequate of itself to bring about Donald's injury and death cannot be measured by applying a simple "but for the doctors' negligence" test.[47] The adequacy-of-conduct factor of the three-prong test for gauging supervening cause must take into account both the nature of the risk[48]and the character of the intervening cause.[49] If, after her sensitization, the mother intentionally became pregnant with full knowledge of the consequences, her risk-taking conduct would not be prudent; rather, she would be viewed as exposing herself imprudently to a known and appreciated risk, which she need not have taken. Once she had become sensitized, her underlying physical condition was irreversible and unalterable. The only action the doctors could have taken to ward off the harm that later occurred was to warn the mother of the consequences of her sensitization; they had no control over whether she would become pregnant again. In short, if she (1) knew that her reproductive capacity was impaired, (2) had been given adequate warnings about the dangers of conceiving in her sensitized condition and 353 (3) completely understood the medical risk to herself and to her child if she conceived in a sensitized condition, the forces set in motion by the doctors failure to give her Rho-GAM may be said to have become passive i.e., they would not be harmful to the mother unless she intervened to bring about the harmful result.[50] If she undertook unreasonable risks by becoming pregnant in her sensitized condition, the harm for which she is suing is not attributable to the doctors, but to the normal risks of pregnancy for a woman who has been sensitized. All three supervening-cause elements are inextricably intertwined with whether the mother engaged in sexual conduct intended to bring about conception with full knowledge of the consequences; they cannot be considered in isolation. Some of the evidence mentioned in connection with foreseeability is equally pertinent to whether the mother's conduct was itself adequate to bring about the result.[51] Considering the intentional nature of the conduct with which the mother is charged and the extreme risk she is alleged to have taken, the triers might find that at some point in the causal chain the moral culpability of the original negligent actors may have been transmuted into a remote cause. In short, whether (a) the mother's sexual conduct was intended to bring about conception, (b) was carried on in the face of fully understood prior medical warning and (c) was hence adequate of itself to bring about the result was for the jury to decide. In sum, ample evidence supports the correctness of giving a supervening cause instruction. Factual disputes govern all the critical components for deciding whether the mother's conduct in bringing about conception is a supervening cause that resulted in Donald's injury and death. C. FATAL INFIRMITIES OF THE CHALLENGED SUPERVENING CAUSE INSTRUCTION The supervening cause instruction not only withheld foreseeability from the jury's consideration, but also told the triers, in essence, that if the mother "elected to become pregnant" with full knowledge that she had been sensitized and full appreciation of the risks and danger of later pregnancies, the doctors' negligence was not a direct cause of the child's death.[52] Because tortious conduct is divisible into at least three groupings: negligence, gross negligence, and willful negligence, the phrase "elected to become pregnant" deceptive in its simplicity is clearly ambiguous. Does it mean: (1) willful disregard for her own safety and that of the child, (2) sexual conduct intended to bring about pregnancy in the face of a known danger, (3) not using safe contraceptives, (4) using inadequate precautions, (5) not aborting the fetus, (6) not using prescribed methods of contraception or (7) something else entirely? The instruction's simplicity is deceptive and misleading. The jury might believe that if a woman in the mother's position became pregnant, she would be the sole cause of the harm. In short, the instruction gives the jury the false impression that the mere act of conceiving and nothing more would be enough to constitute a supervening cause. Rather, it is the sexual conduct intended to bring about conception in the face of known danger to oneself and to one's child or the reckless disregard of that danger that would form the supervening cause. To rule out the possibility that the jury might have misunderstood supervening cause and confused it with a parent's contributory negligence, the jury should have been carefully instructed on the difference between a parent's ordinary negligence, 354 which could not be a supervening cause and her willful act, which might, in some instances, cut off the doctors' liability.[53] The predictable failure of birth control methods could lead to a pregnancy that would not be a supervening cause. As we have explained in connection with our discussion of foreseeability, the mother's act of conceiving, however willful, would not insulate the physicians from liability in all situations.[54] The challenged instruction did not tell the jury what kind of behavior on the mother's part would shield the doctors from liability nor did it require the jury to find that the mother was guilty of that kind of conduct.[55] D. THE ERRONEOUS SUPERVENING CAUSE INSTRUCTION REQUIRES THE JUDGMENT'S REVERSAL It is error for a court to treat a controverted fact as a question of law and withhold the issue from the jury, as the trial court did with foreseeability.[56] The test to be used when reviewing an instruction improperly given is whether there is a probability that it misled the jurors and caused them to reach a result different from that which they would have reached but for the flawed jury charge.[57] Both the parents' claim for the child's wrongful death and the doctors' supervening cause defense present complex issues. We have no doubt that the jury was confused by the oversimplified instruction especially by the ambiguous phrase "elected to become pregnant." The challenged instruction did not require the jury to find that (1) the mother engaged in sexual conduct intended to bring about conception in the face of a known and appreciated danger to herself and the child or acted in reckless disregard of her own and the child's well-being, (2) her behavior was unforeseeable to the doctors and (3) she took charge of the situation, unleashing an independent force that was adequate of itself to bring about the child's injury and death. The challenged jury charge cannot pass muster; the death case was undoubtedly prejudiced by the flawed instruction. A new trial is clearly the parents' due. E. SUPERVENING CAUSE'S ADAPTATION TO FIT THE CLAIM FOR THE CHILD'S WRONGFUL DEATH We do not redefine supervening cause by confining its use to tortious conduct 355 that is willful. Rather, we adapt the concept, as we must, to make it fit this claim for a child's wrongful death. While the doctors cannot invoke the mother's negligence in defense of the death claim they are entitled to defend against it by showing that the mother willfully brought about conception in spite of what she knew to be the consequences and hence her acts were the sole efficient cause of the child's harm. Intertwined with supervening cause is here the mother's knowledge, if any she had, of her impaired reproductive capacity. If the jury should believe that she had been adequately warned of her sensitized condition and of its medical consequences, the jury might conclude that her intended conception in the face of a known danger was the independent adequate and unforeseeable force that constituted the supervening cause of harm. On the other hand, the triers might reach a different assessment if they should believe that, when she conceived, she was unaware or insufficiently informed of her reproductive disability. II THE MOTHER'S CLAIM FOR BODILY INJURY A. MISTAKE OF JUDGMENT AS A DEFENSE The trial court instructed the jury that "if [the doctor] possesses ordinary learning, skill, and experience and exercises ordinary care in applying same, he is not responsible for mistakes of judgment."[58] Mistake of judgment was not defined for the jury and the court did not give the accompanying OUJI instruction that puts mistake of judgment in its proper context i.e., defines it as a situation in which the doctor faces a choice of alternative treatments.[59] A physician, facing a range of competing options which are all medically acceptable, may choose one which later proves to have been less effective than another might have been. Selection of any of these options is not negligence. The choice is said to be a matter of judgment and choosing a less effective option is considered a mistake of judgment. The plaintiffs urge[60] that Oklahoma should join a number of other jurisdictions which have disapproved mistake-of-judgment instructions.[61] The chief criticism is 356 that this instruction is seemingly inconsistent and confusing to a jury, since the word "mistake" in itself implies deviation from a code of behavior.[62] Although we recently affirmed in Boyanton[63] the use of the mistake-of-judgment instruction, we were there urged to decide that a specialist's mistake in judgment should be the equivalent of negligence per se. We declined to do so, recognizing that an error in judgment is not necessarily negligence. Implicit in that decision was the notion that the Boyanton evidence supported a mistake-of-judgment instruction. We need not reach today the broader question whether mistake-of-judgment instructions should be condemned. It suffices to say the instruction given in this case was unwarranted with respect to both the mother's and the wrongful death claims. The doctors contended at trial that they did not interpose the mistaken judgment defense as part of their negation of negligence.[64] There was no proof that any of them had the choice of several alternatives, equally acceptable medically, and elected one which later proved to be less effective than another might have been. Rather a contest ensued at nisi prius over the applicable standard for the acceptable level of care. The mother argued that the standard required that Rho-GAM be given even if 72 hours had elapsed after the miscarriage or the D & C. The doctors contended that the standard called for Rho-GAM to be given, if at all, within 72 hours of the miscarriage. The controversy over skills' standard was not the right context for a mistake-of-judgment instruction, which is proper solely for alternative-treatment cases to guard against the imposition of professional liability for acts or omissions that are not in breach of the skills' standard. In short, a mistake-of-judgment defense was not interposed below and its inclusion in the instructions was error. B. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INSTRUCTING ON MISTAKE OF JUDGMENT ALTHOUGH THE EVIDENCE DID NOT WARRANT IT The test to be used when reviewing an instruction improperly given is whether there is a probability that it misled the jurors and caused them to reach a result different from that which they would have reached but for the flawed jury charge.[65] Among the defenses asserted by the doctors in negation of the mother's claim of negligence were the "72-hour" theory, which we have explained, and "the blighted ovum" theory.[66] Dr. Keuchel testified that (1) the mother carried a "blighted ovum," rather than a more developed fetus when she miscarried in January 1982 and (2) there was no need for Rho-GAM because a blighted ovum does not develop sufficiently to cause sensitization. Although neither of these defenses rises to a mistake of judgment, Dr. Keuchel's testimony may have appeared to cast them in that legal garb.[67] He made at least four 357 references to having used his judgment in deciding not to give the mother Rho-GAM. Defense counsel read the challenged instruction to the jury during his closing argument, telling the triers that it was not a part of the doctors' defense.[68] Rather than erasing the taint of Dr. Keuchel's frequent references to a use of his judgment, it is probable that this emphasis on the instruction would cause even more confusion. Since the judge had included mistake of judgment in his instructions, we have no doubt that the jury was misled, particularly since the challenged language was given without definition or explanation.[69] There is a strong probability that the jury reached a result different from that which it would have reached but for the flawed jury charge; we must hence reverse the judgment on the mother's bodily injury claim and remand the action for a new trial. III ISSUES THAT MAY ARISE UPON RETRIAL A. BIFURCATION OF THE CLAIMS IS REQUIRED TO ASSURE THAT THE JURY DOES NOT IMPUTE THE MOTHER'S ORDINARY NEGLIGENCE TO THE CHILD When the jury returned with a verdict, it had completed only one verdict form i.e., that on the mother's claim. The trial court sent the triers back for further deliberations. The jury later sent out a note: "For any negligence to come into play, does there have to be a ruling in favor of the plaintiff?" [Emphasis supplied.] (Trial transcript at 1669). The jury's question to the judge suggests that the triers had less than a crystal-clear understanding of the issues to be decided in the wrongful death claim.[70] Their confusion illustrates the problems inherent in combining for trial two completely separate claims against common defendants, where one is a parent's medical malpractice claim founded on negligence and the other is for injury to or wrongful death of a child. The very same problems came to be encountered in Strong.[71]When such claims are tried together, it is virtually impossible to assure that the parent's contributory negligence will be surgically excised from courtroom proceedings. On retrial the nisi prius court must bifurcate[72] the trial of the wrongful death claim and that of the mother's bodily harm claim to avoid jury confusion and assure that the triers do not impute the mother's contributory negligence to the child. The wrongful death claim should first proceed to a verdict, to be followed sequentially by trial of the mother's bodily injury claim to the same jury, or the claims should be tried separately to different juries, as judicial discretion may dictate. This procedure will ensure that, in the trial of the 358 death claim, the mother's contributory negligence is kept out of the jury's consideration. B. SINCE IN THE MOTHER'S CLAIM THERE WAS AT LEAST SOME EVIDENCE OF HER CONTRIBUTORY NEGLIGENCE, A CONTRIBUTORY NEGLIGENCE INSTRUCTION SHOULD HAVE BEEN GIVEN The doctors urged the mother should have told them she had Rh-negative blood and that she had been given Rho-GAM in the past. According to the mother, even if she had a duty to volunteer this information and failed to do so, her silence could not, as a matter of law, be the proximate cause of her injuries. The mother contends that the evidence did not support an instruction on contributory negligence because the doctors had an independent duty to test her blood or find out her blood type from the hospital records of an earlier pregnancy. The mother urges that just as a principal who bears a non-delegable duty remains liable for a tort committed by an independent contractor,[73] the doctors may not shift to her their duty to test her blood. This analogy is not entirely correct; the doctors have not tried to escape liability by delegating a duty to an independent contractor. The defense of contributory negligence does not even arise unless the defendant has been guilty of negligence which, but for this defense, would render it liable to the plaintiff.[74]The jury would have to decide that the doctors were negligent before it could find that the mother was contributorily negligent. Oklahoma constitutional[75] and statutory law[76] provide that the defense of contributory negligence shall always be a question of fact and must be left to the jury in all cases. For a trial court to take contributory negligence away from the jury, there must be a complete lack of contributory negligence evidence.[77] The mother did not remember whether she told the doctors that she has Rh-negative blood or had received Rho-GAM in the past. She admitted it was probable that she had not told them. The evidence shows that the mother knew her blood type and had been told earlier about the importance of receiving Rho-GAM. Several doctors and nurses testified that they would expect a patient to volunteer this vital information, even if not asked. Dr. Loerke testified that if the mother had advised someone she was Rh-negative, action would have been taken. It was hence for the jury to decide whether, under the particular circumstances surrounding the critical events unfolded below, failure to disclose this vital information was a patient's contributory negligence.[78] Proximate cause is but an element of contributory negligence; the issue must be left to the jury where the facts are disputed, as they are in the case here for review.[79]359 The trial court did not err by submitting contributory negligence[80] to the jury under an instruction that allowed the jury to find for the defendants on any of the theories supported by the evidence.[81] C. THE INSTRUCTIONS AS A WHOLE SUFFICIENTLY INFORM THE JURY OF THE DOCTORS' BURDEN TO PROVE CONTRIBUTORY NEGLIGENCE; UPON RETRIAL THE JURY MUST BE INSTRUCTED THAT THE MOTHER'S NEGLIGENCE MAY BE COMPARED WITH THE DOCTORS' GROSS NEGLIGENCE, IF ANY; IF THE JURY SHOULD FIND THE DOCTORS' CONDUCT TO BE WILLFUL AND WANTON, IT MAY NOT USE THE EXTENT OF HARM OCCASIONED BY THAT BEHAVIOR TO ASSESS FAULT The mother claims error in the trial court's failure to give a separate instruction on the doctors' burden to prove that the mother was contributorily negligent, but she has not provided a record which shows that a separate burden-of-proof instruction for contributory negligence was requested.[82] When the trial court instructs generally on the issues and a party wants a more specific instruction, it must be requested.[83] Otherwise the error is waived.[84] Although an instruction that the burden of proof is upon the defendant to establish his allegation of the plaintiff's contributory negligence by a preponderance of the evidence is correct as an abstract statement of the law,[85] such instructions 360 have been criticized as incomplete and misleading.[86] The burden-of-proof instruction given below was a general one i.e., it was not limited to the mother's burden to prove negligence,[87] but was cast in terms of a party's duty. Although it did not specifically instruct that the doctors had the burden to prove contributory negligence, the instructions, considered together, clearly and correctly stated the law applicable to contributory and comparative negligence.[88] The jury was told that the phrase "if you find" was equivalent to saying that a certain party had the burden of proof on that issue.[89] The triers were instructed they must be persuaded by the evidence that the proposition on which a party had the burden of proof was "more probably true than not true."[90]The key language "if you find" was used in the instruction on the mother's contributory negligence[91] clearly indicating that the doctors and hospital had the burden of proof on that proposition. The trial court submitted correct definitions of both "negligence" and "ordinary care."[92] The jury was instructed that contributory negligence means the negligence of the mother.[93] 361 When all of the contributory and comparative negligence instructions are read together, it is clear that the jury was given a correct statement of the applicable law, except for one important omission. The trial court did not explain to the triers what, if any effect, the mother's evidence of defendants' gross negligence had upon the assessment of fault within the comparative negligence framework. At common law, contributory negligence is a defense against ordinary negligence, but not against gross negligence or willful or wanton misconduct.[94] With the advent of comparative negligence a number of jurisdictions have modified the common law to allow jury comparison of a plaintiff's ordinary negligence with a defendant's gross negligence.[95] In Morris v. Sorrells[96] we left unaddressed the issue whether the Oklahoma common-law norm should now be modified.[97] Since a definitive answer to the modification question is critical to a complete resolution of the issues now before us,[98] the time for decision has come. Oklahoma has adopted "modified" comparative negligence. 23 O.S. 1991 §§ 13, 14.[99] A negligent plaintiff may recover part of his damages if defendant's negligence is established unless his fault is greater than that of the defendant.[100] Where there are multiple defendants, as is the case here, fault may be apportioned among them; each codefendant may be liable for that proportion of the damages attributable to his own substandard conduct.[101] With the advent of comparative negligence, a jury need not, as before, rely solely upon the broad statutory categorizations[102] of "ordinary negligence" and 362 "gross negligence" to decide liability;[103] rather it may attribute exact percentages of fault to each party. We think the better practice today would be to place gross negligence under the same rubric as ordinary negligence for the limited purpose of allowing the jury's comparison of the parties' responsibility for the total harm. The same apportionment of fault into percentage figures becomes impermissible once a defendant's behavior has been established as willful and wanton misconduct. While "ordinary" and "gross" negligence differ in degree, "negligence" and "willful and wanton misconduct" differ in kind.[104] We cannot read into our comparative negligence regime an abrogation of the common law's dichotomous division of actionable tortious conduct into (1) negligence and (2) willful acts that result in intended or unintended harm. The intent in willful and wanton misconduct is not an intent to cause the injury; it is an intent to do an act or the failure to do an act in reckless disregard of the consequences and under such circumstances that a reasonable man would know, or have reason to know, that such conduct would be likely to result in substantial harm to another.[105]The jury may not measure "wantonness" and then translate its percentage into a degree of negligence. Contributory negligence may not be compared either to preclude or reduce a plaintiff's recovery where the defendant's conduct is willful or wanton.[106] Gross negligence for application of the comparative negligence statute is substantially higher in magnitude than simple inadvertence, but falls short of the intentional wrong's equivalent.[107] Gross negligence may be deemed equivalent[108] of willful and wanton misconduct for punitive damages assessment when it demonstrates such a total disregard of another's rights that it may be equated with evil intent or implies such entire want of care or recklessness of conduct that it (a) can be likened to positive misconduct or (b) evinces a conscious indifference to predictable adverse consequences.[109] Where, as here, the facts are disputed, or where undisputed facts would support opposite inferences with respect to whether an actor was (a) grossly negligent in the 363 § 6 sense[110] or (b) guilty of willful or wanton conduct, the jury should be instructed that if it found the actor's conduct to be of the latter category, it may not consider the extent of harm occasioned by that conduct in apportioning fault. In sum, the jury must be instructed that while ordinary negligence of the plaintiff may be used as a defense against gross negligence, it may not be considered as a defense against any form of conduct found to be willful and wanton or intentional. As for punitive damages, they present an entirely separate consideration, governed by 23 O.S. 1981 § 9.[111]They are unrelated to a plaintiff's conduct. In sum, punitive damages' assessment remains unaffected by interposition of contributory negligence.[112] D. THE EVIDENCE WARRANTED A PUNITIVE DAMAGES INSTRUCTION It is urged that the nisi prius court applied the wrong standard of proof when it wrested punitive damages from the jury.[113] Oklahoma's punitive damage statute, 23 O.S.Supp. 1986 § 9,[114] was amended in 1986 to require clear and convincing evidence when punitive damages in excess of actual damages are sought. The old standard of preponderance, which requires some evidence of fraud, oppression, malice or reckless disregard of another's rights, still governs where the quantum of punitive damages sought does not exceed that of the actual damages.[115] Punitive damages in excess of actual damages were not sought below.[116]The trial judge should not have used the higher clear-and-convincing standard when he considered whether to submit punitive damages to the jury;[117]he should have instructed on punitive damages limiting recovery to the same amount as that for actual damages if there was a showing of "some element" of fraud, malice or reckless disregard of the mother's rights.[118] Punitive damages are allowable when there is evidence of reckless and wanton disregard of another's rights from which malice and evil intent may be inferred.[119] Oppressive intent may also be inferred from "complete indifference to consequences," 364 "conscious or reckless disregard of the safety of others," or "gross negligence."[120] The proof adduced at trial does tend to show, among other things: (1) it is standard procedure for doctors to determine a pregnant patient's blood type and Rh-factor, (2) the mother's blood was never typed during the entire course of treatment for her pregnancy and miscarriage, (3) withholding Rho-GAM from a woman who is a candidate for it is "considered malpractice virtually ipso facto, regardless of who seems to be at fault" and (4) hemolytic disease is "overwhelmingly preventable." An expert witness testified that the doctors' behavior towards the mother showed complete disregard for the patient's welfare. This, and other evidence in the record, indicates that three doctors and a hospital, any of whom could and should have been concerned with the mother's Rh-factor, never even considered it. The jury could conclude from the evidence presented that the doctors were indifferent to the consequences of their actions or demonstrated a reckless disregard for their patient's rights. This evidence would support submission to the jury of punitive damages with an appropriate limitation on the quantum that might be awarded. IV THE DOCTORS' COUNTER-APPEAL A. THE TRIAL COURT DID NOT ERR BY REFUSING TO DIRECT A VERDICT FOR THE DEFENDANTS ON THE WRONGFUL DEATH CLAIM 1. VIABILITY AT THE TIME OF THE NEGLIGENT ACT IS NOT REQUIRED IN WRONGFUL DEATH ACTIONS BROUGHT ON BEHALF OF BABIES BORN ALIVE The doctors press as error the trial court's failure to dismiss the wrongful death action or direct a verdict in their favor. They contend that Evans v. Olson[121] teaches that unless a fetus is viable when the negligence occurs, a wrongful death action will not lie. This reading of Evans is overbroad. We recognized in Evans a common-law negligence action for a surviving child who had suffered prenatal injury and held that a wrongful death action may be maintained for a viable fetus which is stillborn.[122] We noted with approval the notion that damages should be recoverable for a person's wrongful conduct which interferes with a child's right to begin life with a sound mind and body; competent proof must establish the causal connection between the wrongful interference and the harm suffered by the child when born.[123]Evans does not require that this wrongful death action be dismissed. This case deals with a child born alive not with a stillborn baby. 2. THE FACT THAT DOCTORS' NEGLIGENCE MAY HAVE PRECEDED CONCEPTION IS NOT IMPEDIMENT TO RECOVERY FOR THE CHILD'S WRONGFUL DEATH SINCE THE DIRECT CAUSAL CONNECTION BETWEEN FAILURE TO GIVE AN RH-NEGATIVE MOTHER RHO-GAM AND A NEWBORN'S DEATH FROM EBF IS CLEAR The doctors argue that they are shielded from liability because the negligence that caused Donald's death took place before his conception. They point to Albala v. City of New York,[124] where the 365 court fashioned a blanket rule against recovery for injuries that arise from negligence that occurred before conception. Albala was concerned with problems of proof and proximate causation. No similar impediment exists in this case i.e., the direct causal connection between failure to prevent sensitization and the subsequent birth of the child with fatal condition is crystal clear.[125] The trial court did not err by ruling that the child's[126] common-law claim and hence the parents' statutory wrongful death claim were both actionable.[127] Three elements are essential to prove negligence: 1) a duty owed by the defendant to protect the plaintiff from harm, 2) a failure by the defendant to properly perform the duty, and 3) injuries that are the direct result of the defendant's failure to properly perform the duty.[128] One of Rho-GAM's purposes is to prevent harm to future children by keeping the mother from becoming sensitized.[129] Doctors have a duty to administer the drug in a proper case not only to protect the mother but also to protect those who, although unconceived at the time of her treatment, are anticipated and foreseable.[130] The trial court did not err by finding, in essence, that the injury to Donald was within the zone of danger that Rho-GAM was designed to guard against; nisi prius refusal to direct a verdict for the doctors based upon their lack of legal duty was not error. The trial court decided correctly that causation was a question of fact for the jury.[131] Evidence shows that (1) failure to give Rho-GAM to an RH-negative mother can cause sensitization, (2) the doctors 366 failed to give the mother Rho-GAM, (3) the mother had become sensitized and (4) Donald, the first child born alive to the mother after she had been sensitized, was afflicted with the very disease Rho-GAM was designed to prevent. Preconception sensitization of the mother is causally connected to the child's fatal disease. The jury could find that the doctors were at fault and the child died from a condition that was causally related to lack of Rho-GAM drug. In short, the trial court did not err by refusing to direct a verdict for the doctors. B. WHETHER THE MOTHER'S CLAIM WAS TIME BARRED WAS A QUESTION OF FACT FOR THE JURY According to the doctors, the trial court should have held that the mother's claim was time barred.[132] Because the so-called discovery rule approach to limitations applies in medical malpractice,[133] the time from which the statute begins to run depends upon the plaintiff's knowledge of her injury. The critical determination is whether she knew or should have known she was injured. The limitations issue must be submitted to the jury when the facts about the injury's discovery are disputed.[134] The mother admitted she had been told both (1) that she needed Rho-GAM after each pregnancy and (2) the dangers of not receiving it. The doctors introduced evidence that the mother learned in April 1982 that she was not given Rho-GAM that January.[135] The mother urged she did not understand that this meant she might have become sensitized by the doctors' failure to give her the drug. According to the mother, the information she had been given in 1978 and 1980 was in the back of her mind, but she did not remember it at the time in question. Although a March 7, 1983 blood test shows that the mother had become sensitized, she denies knowledge of the test's positive results. Evidence was admitted from which the jury could infer that the mother knew she had been sensitized i.e., Dr. Barton's notes reflect she told him in March 1983 that she had antibodies against Rh.[136] If the mother knew or should have known before July 12, 1983 that she was sensitized by the doctors' substandard conduct, the action, filed July 12, 1985, was time barred. Conflicting evidence about what the mother knew or should have known about her own condition made the limitations issue one for the jury to decide; the trial court did not err by submitting the issue to the triers. 367 SUMMARY A. THE WRONGFUL DEATH CLAIM Although the evidence in the wrongful death claim calls for the jury's consideration of supervening cause, the instruction that was given is fatally flawed. Its effect was to withhold foreseeability from submission to the triers as a disputed fact issue. There is indeed a strong probability that this charge misled the jurors and caused them to reach a result different from that they would have reached but for the flawed instruction. B. THE MOTHER'S BODILY INJURY CLAIM The evidence did not support a mistake-of-judgment instruction. The unwarranted instruction was highlighted by Dr. Keuchel's frequent references to a use of his judgment and his counsel's comments during the closing argument. We find a strong probability that it misled the jurors and caused them to reach a result different from that they would have reached but for the flawed jury charge. Upon retrial, if the evidence is the same, a contributory negligence instruction must be given in the mother's claim only; proximate cause should be a jury question, as it was in the earlier trial. The instructions as a whole correctly place upon the doctors the burden of proving contributory negligence. The jury must also be instructed that while ordinary negligence of the plaintiff may be used as a defense against gross negligence, it may not be considered as a defense against any form of conduct found to be willful and wanton or intentional. Bifurcation of the two claims for retrial will prevent in the trial of the wrongful death claim the jury's imputation of the mother's contributory negligence to the child. A punitive damages instruction was warranted by the evidence. C. THE DOCTORS' COUNTER-APPEAL The trial court did not err by failing to direct a verdict for defendants on the wrongful death claim. A claim for the wrongful death of a child born alive may be pressed under the circumstances present here, where the direct causal connection between failure to prevent the mother's sensitization and the subsequent birth of the child with a fatal condition is crystal clear. Conflicting evidence about what the mother knew or should have known about her own condition made the limitations issue one for the jury; its submission is free from error. JUDGMENT REVERSED AND CAUSE REMANDED FOR NEW TRIAL. HODGES, C.J., LAVENDER, V.C.J., and HARGRAVE, and WATT, JJ., concur. SUMMERS, J., concurs in result. SIMMS and KAUGER, JJ., concur in part; dissent in part. ALMA WILSON, J., dissents. SUMMERS, Justice, concurring in result. I too would reverse and remand for new trial, but would not submit to the jury the defendants' theory of "supervening cause." The opinion correctly sets out the three-pronged test for a supervening cause which will insulate the original actor/defendant/doctor from liability: the "new" cause must be (1) independent of the original act, (2) adequate of itself to bring about the result, and (3) one whose occurrence was not reasonably foreseeable to the original actor/defendant/doctor. Thompson v. Presbyterian Hospital, Inc., 652 P.2d 260, 263 (Okla. 1982); Long v. Ponca City Hospital, Inc., 593 P.2d 1081, 1084 (Okla. 1979). Under the theory as urged by defendant doctors prong one is clearly present, and prong three is arguably a proper question for the jury under these facts. But prong two, under any theory defendants advance, is simply missing. This second prong is critical because "[n]ot every intervening cause will insulate the original negligent actor from liability." Thompson, 652 P.2d at 264. If a causal factor is capable of combining with another act or omission to produce the injury, each actor may be subject to liability. Id. The opinion appears 368 to confuse the mother's alleged wilfulness in getting pregnant against all advice and common sense, with the requirement that the pregnancy be "adequate of itself" to cause the result. The result was that Donald died after four days of life. Even under defendants' theory two things were required to combine to bring about Donald's death: (1) the doctor's negligent failure to administer Rho-GAM following her fourth pregnancy, and (2) her wilful pregnancy knowing of her condition. Her pregnancy alone, even if deliberate, was not "adequate of itself" to cause the result. The doctors have not conceded that the failure to give Rho-GAM amounted to negligence. The question of supervening cause will not come into play, however, unless it is determined that there was some earlier actionable act or omission by the doctors. See Thompson, 652 P.2d at 264. Regardless of the outcome of this issue, an instruction on supervening cause is not warranted. If there is no negligence on the part of the doctors, the instruction is superfluous. If there is negligence by the doctors, the second prong of the test is still not satisfied and the instruction would be improper. The supervening cause instruction should not be given where, as here, the result could not have come about in the absence of the first actor's alleged misconduct, which was failure to give Rho-GAM. The mother's alleged wilful and foolish impregnation could not have been "adequate of itself" to cause the result. SIMMS, Justice, concurring in part, dissenting in part: In my opinion the instruction containing the language "elected to become pregnant" is neither vague nor ambiguous. I believe the instruction was properly given to the jury and I dissent to that part of the majority opinion holding otherwise. NOTES [1] Two separate causes of action were advanced below against the same defendants. One was the parents' claim, as next friends of Donald Keaton Graham, for his wrongful death; the other the mother's claim for her bodily injury. [2] For the explanation of "mistake of judgment," see infra Part II A. [3] We consider in Part III questions which, although not dispositive of this appeal, offer needed guidance upon retrial. These include only issues argued in the parties' briefs. Claims to error for which there is no support in argument and authority are deemed abandoned. Hadnot v. Shaw, Okl., 826 P.2d 978, 981 (1992); Holbert v. Echeverria, Okl., 744 P.2d 960, 962 n. 4 (1987); Messler v. Simmons Gun Specialties, Inc., Okl., 687 P.2d 121, 129 n. 11 (1984); Peters v. Golden Oil Co., Okl., 600 P.2d 330, 331 (1979); Harley v. Jobe, 207 Okl. 296, 249 P.2d 468, 469 (1952); John Deere Plow Co. v. Owens, 194 Okla. 96, 147 P.2d 149, 153 (1944). We hence do not reach them either for discussion or resolution. [4] The mother also sought damages for the doctors' failure to warn her not to become pregnant after she had been sensitized. A similar plea was made against the doctors who had treated the mother's fourth pregnancy. These demands were regarded as separate claims for "wrongful birth," which the mother dismissed mid-trial. For an explanation of a "wrongful birth" claim, see Morris v. Sanchez Okl., 746 P.2d 184 (1987); for a description of each doctor's role in the scenario, see infra note 6. The trial court dismissed as too remote the father's separate claim for damages from sterilization undergone after Donald's death. [5] The 1981-1982 pregnancy was the mother's third. Her first pregnancy was terminated by a voluntary abortion in 1978; the second produced a healthy boy in 1980. The fourth (early 1983), like the third, ended in miscarriage. Donald was born of the mother's fifth pregnancy. [6] Dr. Donald G. Dunaway was the mother's regular physician. When she became pregnant in December 1981, he referred her to a specialist in obstetrics, Dr. Joseph A. Keuchel. The mother was examined by Dr. Keuchel's partner, Dr. W. Richard Loerke. The mother miscarried; she checked into the Oklahoma Osteopathic Hospital where Dr. Keuchel performed a dilation and curettage ("D & C"). We refer to Drs. Dunaway, Keuchel, and Loerke, Oklahoma Osteopathic Hospital, and Benien Clinic, Inc. as the doctors. Other defendants, Drs. Dean, Hall & Ryker, William E. Hall, M.D., and David E. Ryker, M.D., treated the mother during her fourth pregnancy, which ended in miscarriage. The latter physicians are not parties to this appeal; the claims against them were dismissed below. [7] The drug Rho-GAM, a hyperimmune globulin, suppresses the immune response which Rh-negative mothers may develop to the Rh positive blood cells of their child. [8] If a woman with Rh-negative blood gets pregnant with an Rh-positive fetus there is a chance that some of the baby's blood will mix with the mother's. If this should happen, the mother would begin to produce antibodies to attack and destroy the foreign substance in her blood. At the moment antibodies' production begins, the mother is said to be "sensitized." [9] The mother urged that after her sensitization any accidental transfusion with Rh-positive blood could be lethal to her. [10] Statistics show that approximately 10 percent of Rh-negative mothers with Rh-positive fetuses become sensitized. See Roderic H. Phibbs, Hemolytic Disease Of The Newborn (Erythroblastosis Fetalis), PEDIATRICS 1028, 1029 (A. Rudolph & J. Hoffman eds., 18th ed. 1987). [11] The father must, of course, be RH-positive for sensitization to occur. The Rh-positive blood group includes (a) Rh-positive homozygous and (b) Rh-positive heterozygous. All of the children of an Rh-negative mother and an Rh-positive homozygous father will be Rh-positive. If the father is Rh-positive heterozygous, one-half of his children will be Rh-positive. See Phibbs, supra note 10 at 1029. [12] The antibodies are not manufactured in time to harm the child or fetus whose blood mixes with the mother's blood; they appear after delivery when the baby's circulation is already independent of the mother's. It is the later children of a sensitized mother who are at risk. [13] About fifteen percent of fetuses with Rh hemolytic disease die before birth. The first fetus affected is not usually severely afflicted, but about three percent of the first-affected are stillborn. See R. Phibbs, supra note 10 at 1030. [14] Even if Rho-GAM is properly administered, the drug may not prevent sensitization in all Rh-negative women. [15] Rho-GAM, which became available in 1968, was considered a miracle drug because it effectively eliminated the risk of EBF in the children of an Rh-negative mother whose father was Rh-positive. [16] Rho-GAM was not routinely given during pregnancy until 1983. It is then that Rho-GAM at 28 weeks' gestation and another dose following delivery became the standard treatment. [17] See Phibbs, supra note 10 at 1029. [18] According to the doctors, the mother knew or should have known she was sensitized after she had called Dr. Keuchel in April 1982. The doctor testified that he explained: (1) he had not typed her blood, (2) she might be sensitized and (3) before she became pregnant again, she should have a blood test to find out if she had been sensitized. The mother contends he told her (1) she did not receive Rho-GAM because she did not tell him she was Rh-negative, (2) failure to get the drug would pose no problems and (3) when she got pregnant again he would do a "titer" test on her. She told him that "he" would do nothing on her and hung up on him. The doctors urge the jury can infer from the mother's anger that she knew then that she was sensitized. The mother denies that in the conversation (a) the doctor used the word "sensitized" or (b) she realized the full implications of failure to receive Rho-GAM. She ascribes her anger to being blamed for not telling the physician she was Rh-negative. The doctors also contend the mother learned from a March 1983 blood test that she had been sensitized. See infra note 136. [19] The doctors advanced several theories of defense: (1) the mother was not a fit candidate for Rho-GAM because more than 72 hours had elapsed after the mother's miscarriage before they could treat her; (2) the mother became sensitized when an insufficient amount of Rho-GAM had been given her in 1980 after the birth of her first child, a healthy boy and (3) she could not have become sensitized in the course of the 1981-1982 pregnancy and miscarriage because she then carried but a "blighted ovum" rather than a fetus. A "blighted ovum" is an arrested pregnancy i.e., one where the embryo stops growing. Sensitization cannot occur in that context because a fetus does not develop; there are no blood vessels and hence no mixing of the fetal blood with the mother's. [20] The mother had received Rho-GAM when she had a voluntary abortion in 1978 and again in 1980 when her first child was born. [21] Thompson v. Presbyterian Hospital, Inc., Okl., 652 P.2d 260, 263 (1982). [22] Minor v. Zidell Trust, Okl., 618 P.2d 392, 394 (1980); Brodsky v. Atchison, Topeka & Santa Fe Railway Co., Okl., 368 P.2d 852, 854 (1962). [23] Minor, supra note 22 at 394; Champlin Oil and Refining Co. v. Roever, Okl., 477 P.2d 662, 667 (1970); City of Okmulgee v. Hemphill, 183 Okl. 450, 83 P.2d 189, 191 (1938); Meyer v. Moore, Okl., 329 P.2d 676, 681 (1958). [24] Minor, supra note 22 at 394; Hemphill, supra note 23, 83 P.2d at 191; Green v. Sellers, Okl., 413 P.2d 522, 528 (1966). [25] Thompson, supra note 21 at 264; Long v. Ponca City Hospital, Inc., Okl., 593 P.2d 1081, 1084 (1979). [26] Instruction 24 states: "With respect to the plaintiff's claim for the wrongful death of their child only, you are instructed that if, following this (sic) alleged negligent acts or omissions of the named defendants, the mother, Katrina Graham, with full knowledge that she had been sensitized and with full appreciation of the risks and danger of subsequent pregnancies, elected to become pregnant with Donald Graham, then the named defendants negligent act (sic) or omissions were not a direct cause of the death of the child." [Emphasis supplied.] [27] Okl., 768 P.2d 369, 371 (1989). [28] For the three-prong test, see supra the text at note 25 and note 25. [29] While an intervening cause may ordinarily combine with a co-actor's negligence to operate as a concurring cause of the injury, under the circumstances present here the same strictures that keep a parent's ordinary negligence from operating as a supervening cause also militate against instructing the jury that the mother's ordinary negligence may combine with that of the doctors as a concurrent cause of the child's injury and death. Although the parents do not raise as error the trial court's submission of a concurrent cause instruction to the jury without the explanation that it does not apply to the wrongful death case, the giving of that instruction in the case based on the child's claim is fundamental error. Fundamental error is narrowly defined as a substantial misstatement of a legal principle which appears on the face of the instruction. Sellars v. McCullough, Okl., 784 P.2d 1060, 1062-1063 (1990). See Wetsel v. Independent School Dist. I-1, Okl., 670 P.2d 986, 995 (1983). Were we to allow the mother to be considered a negligent co-actor in harming the child, partial blame would impermissibly be assigned to the parent as obliquely concealed negligence in contravention of the two public policy concepts discussed in our liability analysis, infra this part. [30] Strong, supra note 27 at 370; Hostick v. Hall, Okl., 386 P.2d 758, 761-62 (1963); Atchison, T. & S.F. Ry. Co. v. Calhoun, 18 Okl. 75, 89 P. 207, 209 (1907). See Restatement (Second) of Torts, § 485, comment c (1965), which provides in pertinent part: "With ... [certain] exceptions, the common law no longer imputes the negligence of a third person to the plaintiff to bar his recovery for the harm he has suffered ... ." [Emphasis supplied.] [31] For the exception, see Unah v. Martin, Okl., 676 P.2d 1366 (1984). [32] Sixkiller v. Summers, Okl., 680 P.2d 360, 361-362 (1984). In Sixkiller, we approved the notion that parental immunity does not extend to willful conduct; to be willful, the act or omission must be deliberate, intentional or wanton. It must be done with a person's knowledge or appreciation of the fact that danger is the likely result. For a similar definition of willful conduct, see Leigh v. Wadsworth, Okl., 361 P.2d 849, 853 (1961). [33] The barrier against imputing parents' negligence applies only to (1) tort cases with a child-plaintiff or (2) claims for the wrongful death of a child since a death action rests on tortious conduct for which the child, had it lived, could have maintained an action. Haws v. Luethje, Okl., 503 P.2d 871 (1972); Hill v. Graham, Okl., 424 P.2d 35, 37 (1967). [34] Sixkiller, supra note 32 at 361-362. [35] One can ordinarily defend against a tort claim by showing that the harm to be vindicated was committed by a third party. Paul v. N.L. Industries, Inc., Okl., 624 P.2d 68, 69 (1981). [36] Respondeat superior liability does not always fall within this general rule of non-liability. An employer may be liable to a third party for an employee's willful tort whenever the employee was acting within the scope of his employment and the act was done in furtherance of the employee's assigned work. Beard v. Richards, Okl., 820 P.2d 812, 817 (1991); Ada-Konawa Bridge Co. v. Cargo, 163 Okl. 122, 21 P.2d 1 (1933). [37] Thompson, supra note 21 at 264; Long, supra note 25 at 1087. For an eloquent example of the special circumstances that may lead to liability, see Mistletoe Express Service v. Culp, Okl., 353 P.2d 9, 16 (1960). See also Restatement (Second) of Torts, supra note 30 at § 448, which provides: "The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime." [Emphasis supplied.] [38] E.I. Du Pont De Nemours & Co. v. Ladner, 221 Miss. 378, 73 So.2d 249, 255-256 (1954). For a factual scenario that demonstrates the rule's application, see Pollard v. Oklahoma City Ry. Co., 36 Okl. 96, 128 P. 300, 303 (1912). [39] See Restatement (Second) of Torts, supra note 30 at § 452(2), which provides: "Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause." See also, Pollard, supra note 38, 128 P. at 303-304. [40] Thompson, supra note 21 at 264. [41] If the intervening cause was in fact foreseeable by the doctors, their negligence would be considered the efficient cause of the child's death. Long, supra note 25 at 1085. [42] The parents contend inter alia that because the evidence does not show conclusively that injury to the child was inevitable, it is foreseeable that a mother, knowing that she had been sensitized, might intentionally conceive a child. If the child being carried were Rh-negative, there would be absolutely no harm to the child. The parents also point to evidence that in some cases the effects of sensitization on an Rh-positive child are not as severe as they were in this case: (1) the harm can sometimes be avoided by an intrauterine blood transfusion or one done immediately after a child's birth or (2) an early delivery of the child might sometimes avoid adverse consequences. The jury might infer from this proof that once a sensitized mother had conceived, steps could be taken to minimize the potential damage, but the proof is far from conclusive that it was fully foreseeable to the doctors that a mother who has been fully apprised of medical statistics indicating the degree of danger that occurs when a sensitized mother conceives would intend to bring about conception. The evidence does show the mother might have misunderstood whatever warning and instructions she might have received. [43] For details of the dispute, see supra note 18. [44] For two versions of the conversation, see supra note 18. [45] Pepsi-Cola Bottling Co. of Tulsa, Okl. v. Von Brady, Okl., 386 P.2d 993, 996 (1964). We noted the following rule: "Liability cannot be predicated on a prior and remote cause which merely furnishes the condition or occasion for an injury resulting from an intervening unrelated and efficient cause, even though the injury would not have resulted but for such condition or occasion; but a condition from which injury might have been anticipated or which rendered the avoidance of injury impossible will be the proximate cause notwithstanding an intervening agency." [Emphasis supplied.] [46] See Pepsi-Cola, supra note 45 at 996, where the defendant's truck was negligently parked on the right side of the street; it was broad daylight and the truck was clearly visible for a long distance in the direction from which plaintiff approached. The negligence of a third party in crowding the plaintiff to the extent that he was forced to crash into the parked truck was held to be the supervening cause of plaintiff's injuries. See also Oklahoma Power & Water Co. v. Howell, 201 Okl. 615, 207 P.2d 937 (1949), where defendant's trucks were blocking the highway when they were struck by plaintiff's driver's truck. Plaintiff's driver observed the blocked highway early enough to have stopped easily but could not do so because of the condition of his own truck. Plaintiff's driver's actions were a supervening cause of the plaintiff's injuries. In both instances, if the defendants had not negligently parked their trucks, the injuries would not have happened. Since the trucks were positioned so that other drivers had sufficient warning of the danger, later actions of drivers were held to be adequate of themselves to bring about the results. [47] Supervening cause was a question for the jury in Brigance v. Velvet Dove Restaurant, Inc, Okl., 725 P.2d 300, 305 (1986) and Long, supra note 25 at 1086; it insulated a negligent party from liability in Thompson, supra note 21 at 265. See also Minor, supra note 22 at 395; Runyon, infra note 49 at 950; Curtis, infra note 48 at 493. The facts did not support a supervening cause defense in the following cases: Strong, supra note 27 at 371; Champlin Oil and Refining Company v. Roever, Okl., 477 P.2d 662, 666 (1970); Hobson v. Carman, Okl., 365 P.2d 560 (1961); Stout v. Rutherford, Okl, 341 P.2d 266, 269 (1959); Magnolia Petroleum Co. v. Sutton, 208 Okl. 488, 257 P.2d 307, 313-314 (1953); Oklahoma City-Ada-Atoka Ry. Co. v. Crabtree, 207 Okl. 327, 249 P.2d 445, 447-450 (1952). [48] A prudent risk might not break the causal connection. For example, a plaintiff was injured when he tried to extricate his cow from an open and unbarricaded ditch left in his pasture by a pipeline company. The defendant contended the plaintiff's rescue attempt was a supervening cause that insulated it from liability for his injuries. We held that plaintiff's actions were not a supervening cause because he (a) made a prudent effort, (b) did not unduly expose himself to danger and (c) was impelled by necessity, from his viewpoint, to release the cow from the ditch. Curtis v. Shell Pipe Line Corp., Okl., 265 P.2d 488, 491-493 (1954). [49] Suicide serves as an example of a supervening force which may break the causal chain between a wrongful act and a decedent's demise in a wrongful death action. A pharmacist sold, without the physician's permission, a "non-refillable" prescription. A depressed person over-dosed on the illegal drug. But for the illegal act of the pharmacist, the suicide could not have taken place. Yet we held that if the decedent willfully committed suicide, knowing the physical effect of his deed, his final act was a supervening cause of his death. Runyon v. Reid, Okl., 510 P.2d 943, 950 (1973). See CIVIL LIABILITY FOR SUICIDE, Annot., 11 A.L.R.2d 751 (1950). [50] If the doctor's negligence could never be transmuted into a remote cause, repeated pregnancies on the mother's part could result in multiple consecutive suits against the doctors. [51] See supra Part I B.2. [52] For the text of the supervening cause instruction, see supra note 26. [53] The supervening cause defense, under the particular circumstances of the case here for review, has some of the same attributes as the volenti doctrine, discussed infra note 80. Just as it would for a volenti defense, the jury here must examine into the mother's subjective knowledge and appreciation of the risk involved when deciding whether the mother acted willfully. In contrast, contributory negligence is based on an objective standard of conduct which, though it may be inadvertent, falls below the degree of care which would have been exercised by a reasonable person. It often involves the inquiry as to whether the conduct of the plaintiff falls below that of a reasonably prudent woman acting for her own protection and whether that is a contributing cause of the injury. It implies the omission of a duty on the part of the injured person and excludes the idea of willfulness. See Detrick v. Garretson Packing Company, 73 Wash.2d 804, 440 P.2d 834, 837 (1968). [54] The doctors seem to suggest that the mother's knowledge that she did not receive Rho-GAM was equivalent to knowledge that she had been sensitized. Sensitization does not occur in all cases. See supra note 10. Sometimes sensitization cannot be detected even by a blood test except during the next pregnancy. See infra note 135. [55] A proper explanation would include language to the following effect: If you find that (1) the mother engaged in sexual conduct intended to bring about conception in the face of a known danger, not only to herself but to the conceived child's well-being, or if she became pregnant in reckless disregard of the child's well-being and (2) her conduct was unforeseeable to the physicians and hospital, and was independent and adequate of itself to bring about the result, then you may conclude that the mother's willful act or act in reckless disregard of the child's well-being was the sole cause of the child's physical condition from which he died, and if so, you may find in favor of the defendant physicians and hospital. [56] Texaco, Inc. v. Layton, Okl., 395 P.2d 393, 399 (1964). [57] Woodall v. Chandler Material Co., Okl., 716 P.2d 652, 654 (1986); Champlin, supra note 23 at 667; Karriman v. Orthopedic Clinic, Okl., 516 P.2d 534, 540 (1973). [58] The mistake of judgment instruction No. 17, like Oklahoma Uniform Jury Instructions [OUJI] 13.5, provides: "Unless he states or agrees (contracts) otherwise, a physician employed to treat a person impliedly warrants that he possesses that degree of learning, skill, and experience ordinarily possessed by others of his profession practicing in the same field in the same or a similar locality at the same time, and that he will use ordinary care in the exercise of his skill and the application of his knowledge and experience to accomplish the purpose for which he is employed, and that he will use his best judgment in the exercise of his skill in diagnosing the condition and in treating the patient. He does not warrant a cure and is not responsible for the lack of success unless that lack results from his failure to exercise ordinary care or from his lack of ordinary learning, skill, and experience. If he possesses ordinary learning, skills, and experience and exercises ordinary care in applying same, he is not responsible for mistakes of judgment." [Emphasis supplied.] [59] The trial court did not give an instruction like OUJI 13.5, which provides: "A physician is not bound to use any particular method of treatment or surgery with his patient. If among physicians of ordinary skill and learning more than one method of treatment or surgical operation is recognized as proper, it is not negligence for a physician in good faith to adopt and use either of such methods of treatment or surgical operation." [60] The mistake-of-judgment instruction is urged as error in both the mother's bodily injury cause and the parents' claim for the child's wrongful death. [61] See, e.g., Shumaker v. Johnson, 571 So.2d 991, 996 (Ala. 1990); Sasser v. Connery, 565 So.2d 50, 53 (Ala. 1990) (Hornsby, C.J., concurring specially); Leazer v. Kiefer, 120 Idaho 902, 821 P.2d 957, 965-967 (1991); Rogers v. Meridian Park Hospital, 307 Or. 612, 772 P.2d 929, 931-933 (1989); Kobos v. Everts, 768 P.2d 534, 539 (Wyo. 1989); Ouellette v. Subak, 391 N.W.2d 810, 815 (Minn. 1986); Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571, 577 (1984); Logan v. Green-wich Hospital Ass'n, 191 Conn. 282, 465 A.2d 294, 303 (1983); Teh Len Chu v. Fairfax Emergency Medical Associates, 223 Va. 383, 290 S.E.2d 820, 822 (1982) (per curiam). [62] Rogers, supra note 61, 772 P.2d at 933. [63] Boyanton v. Reif, Okl., 798 P.2d 603 (1990). [64] Counsel for Drs. Keuchel, Loerke and Benien Clinic told the jury in the closing argument that the dispute over whether Rho-GAM should have been given even if 72 hours had elapsed was not their defense. Counsel later read the contested charge to the jury and told them that the mistake-of-judgment instruction in connection with the 72 hours was not part of their defense. (Trial transcript at 1626-1627.) [65] Woodall, supra note 57 at 654. [66] See supra note 19. [67] We do not suggest Dr. Keuchel's counsel improperly sought to influence the jury's verdict. Although counsel's conduct may have been inadvertent, its effect coupled with the unwarranted instruction was prejudicial. Dr. Keuchel was asked if it would be improper medical practice to allow a mother to become sensitized as a result of a physician's failure to give Rho-GAM. His first response was, "if it happened, [his] judgment would have been wrong." Although the question was asked again and an affirmative response finally elicited, the idea that it was a mistake of judgment had been implanted in the jurors' minds. Later Dr. Keuchel testified that a reason he did not give her Rho-GAM was that "I knew in my mind, my judgment, ... that it was a blighted ovum." He later explained that he did not give Rho-GAM because it was "past the 72 hours, based on [his] judgment of when she started bleeding ... [his] judgment told [him] it was past 72 hours, which was the standard of care in [his] estimation at that time, in the United States." Counsel for the mother added to the confusion by asking (1) "If it was not a blighted ovum, then you were mistaken about that judgment; weren't you?" and (2) "if it was not past 72 hours, then you were incorrect in the making of that judgment; weren't you?" (Trial transcript 320, 390-392.) [68] See supra note 64. [69] For the text of the mistake-of-judgment instruction, see supra note 58. [70] The judge reinstructed the jury and returned them for further deliberations. (Trial transcript at 1669-70). Plaintiffs requested a mistrial, which was denied. When the jury is directed to return for deliberations and reread the instructions, it is presumed they followed those instructions. Bateman v. Glenn, Okl., 459 P.2d 854, 858 (1969). Because we reverse both claims on different grounds; we need not decide whether a mistrial should have been granted. [71] See Strong, supra note 27 at 371. [72] See 12 O.S.Supp. 1984 § 2018, which governs bifurcation; it provides in pertinent part: "D. SEPARATE TRIALS. The court ... to avoid prejudice ... may order a separate trial of any claim ... always preserving inviolate the right of trial by jury." [Emphasis supplied.] [73] The mother cites Jack Cooper Transport Company, Inc. v. Griffin, Okl., 356 P.2d 748, 754 (1960); Shell Pipe Line Corporation v. Curtis, Okl., 287 P.2d 681, 685 (1955) and Minnetonka Oil Co. v. Haviland, 55 Okl. 43, 155 P. 217, 218-219 (1916). [74] Miller v. Price, 168 Okl. 452, 33 P.2d 624, 627 (1934). [75] Art. 23, § 6, Okl. Const., provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." [Emphasis supplied.] [76] 23 O.S. 1981 § 12 provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall at all times be left to the jury, unless a jury is waived by the parties." [Emphasis supplied.] [77] Art. 23, § 6, Okl. Const.; 23 O.S. 1981 § 12; Bullard v. Grisham, Okl., 660 P.2d 1045, 1048 (1983). [78] Other jurisdictions have held that evidence of a patient's failure to reveal certain information which would have been helpful to her physician forms a jury issue under the rubric of contributory negligence especially where the evidence also showed that the patient may have been advised of the importance of this information. See PATIENT'S FAILURE TO REVEAL MEDICAL HISTORY TO PHYSICIAN AS CONTRIBUTORY NEGLIGENCE OR ASSUMPTION OF THE RISK IN DEFENSE OF MALPRACTICE ACTION, ANNO. 33 A.L.R.4th 790 § 3 (1984). [79] Thompson, supra note 21 at 263. [80] The doctors requested that the trial court give an assumption of the risk instruction based upon (1) the mother's failure to tell the doctors that she was Rh negative and had received Rho-GAM before and (2) her failure to get a blood test to find out if she had been sensitized after Dr. Keuchel had told her that she did not receive Rho-GAM following the 1982 miscarriage; the trial court properly refused such an instruction. There was no evidence that the mother consented to the doctors' failure to give her Rho-GAM. The defenses of assumption of the risk and contributory negligence, although closely allied, are conceptually distinguishable. While they sometimes arise under the same set of facts and hence occasionally overlap each other, they are founded on separate and distinct principles of law. See Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227, 230-231 (1957); White v. McVicker, 216 Iowa 90, 246 N.W. 385, 386 (1933); Watterlund v. Billings, 112 Vt. 256, 23 A.2d 540, 543 (1942) and Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 89 (1943). Contributory negligence is the product of negligence law whose source is traceable to Butterfield v. Forrester, 103 Eng.Rep. 926 (K.B. 1809). Assumption of the risk, on the other hand, had crystallized much earlier in the form of the maxim volenti non fit injuria one who voluntarily exposes himself to a known, appreciated and avoidable danger may not recover for injuries occasioned by the exposure. It reflects the Roman law's notion of legal wrong or injuria. The principle embodied in the maxim is that a loss inflicted by one's voluntary act or submission is not actionable. Dig. 47, 10, 1, 5 (Quia nulla injuria est, quae in volentem fiat); see Burdick, PRINCIPLES OF ROMAN LAW. p. 504 (1938). The volenti doctrine is expressed as a common-law rule both in Cruden v. Fentham, 2 Esp. 685, 170 Eng.Rep. 496 (1799) and Priestley v. Fowler, 3 M. & W. 1, 150 Eng.Rep. 1030, 1031-1033 (1837) (a master and servant case where the volenti defense is believed to have received its greatest impetus). See Prosser and Keeton, THE LAW OF TORTS, § 68, p. 480 (5th Ed. 1984). The defense of assumption of risk is relatively new to the common law. Cruden, supra, is the first clearly distinguishable application of the doctrine. The typical case of risk assumption draws either from a status relation or a contract between the parties. Assumption of the risk clearly is not applicable to this case. Thomas v. Holliday, Okl., 764 P.2d 165, 167-170 (1988). [81] The trial court is required to instruct the jury on the theories supported by the evidence. Knight v. Estes, Okl., 383 P.2d 879, 883 (1963); Bottoms v. Botts, Okl., 349 P.2d 653, 658 (1960). [82] Although the mother objected to nisi prius submission of the contributory negligence issue to the jury, she requested the burden of proof instruction that was given. [83] Timmons v. Royal Globe Ins. Co., Okl., 653 P.2d 907, 915 (1982). [84] Hames v. Anderson, Okl., 571 P.2d 831, 833 (1977). [85] G.A. Nichols Co. v. Lockhart, 191 Okl. 296, 129 P.2d 599 (1942). [86] See e.g., Norton v. Harmon, 192 Okl. 36, 133 P.2d 206, 211 (1943) and St. Louis-S.F. Ry. Co. v. Schmitz. 116 Okl. 60, 243 P. 225 (1926), decided before comparative negligence was introduced into our law. With the passage of our comparative negligence statutes, 23 O.S. 1981 §§ 13 and 14, contributory negligence is no longer a complete bar to recovery. The trial court gave the OUJI instructions and verdict forms for contributory and comparative negligence. These instructions adequately explain to the jury the law of contributory and comparative negligence and clothe the plaintiff with the presumption of having used due care even without a separate instruction on the burden of proving contributory negligence. [87] Instruction 11 states: "A party claiming damages has the burden of proving each of the following propositions: First, that he has sustained injury; Second, that the party from whom he seeks to recover was negligent; And, third, that such negligence was a direct cause of the injury sustained by the claiming party." [88] See Karriman, supra note 57 at 538; Knight, supra note 81 at 881-82. [89] Instruction 10 states: "In a civil lawsuit, such as this one, there are requirements as to which party is to prove to you certain things. This is called "Burden of Proof." When I say that a party has the burden of proof on any proposition, or use the expression "if you find," or "if you decide," I mean you must be persuaded, considering all the evidence in the case, that the proposition on which such party has the burden of proof is more probably true than not true." [90] See Instruction 10, supra note 89. [91] Instruction 32 states: "With respect to the claim of Katrina Graham, if you find the occurrence with which this lawsuit is concerned was directly caused by the contributory negligence of the plaintiff Katrina Graham and not by any negligence on the part of either defendant Dunaway, Loerke, Keuchel or Oklahoma Osteopathic Hospital, or if you find that the Plaintiff Katrina Graham has failed to proved that either defendant Dunaway, Loerke, Keuchel or Oklahoma Osteopathic Hospital was negligent, or that the statute of limitations had expired, then you shall use the Pink Verdict Form and find in favor of that, one or more, defendant." [Emphasis supplied.] [92] Instruction 12 states: "Since this lawsuit is based on the theory of negligence, you must understand what the terms `negligence' and `ordinary care' mean in the law with reference to this case. `Negligence' is the failure to exercise ordinary care to avoid injury to another's person or property. `Ordinary care' is the care which a reasonably careful person would use under the same or similar circumstances. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide. Thus, under the facts in evidence in this case, if a party failed to do something which a reasonably careful person would do, or did something which a reasonably careful person would not do, such party would be negligent." (Emphasis supplied.) [93] Instruction 29 states: "With respect to the individual claim of Katrina Graham only, under the law you are to compare the percentage (0%-100%) of negligence of the plaintiff Katrina Graham, if any, with the percentage (0%-100%) of negligence of the defendants Dunaway, Loerke, Keuchel and Oklahoma Osteopathic Hospital, if any. The law provides that contributory negligence, which means the negligence of the plaintiff, shall not bar recovery of damages unless such negligence of the plaintiff Katrina Graham is of a greater degree, established by percentage, than the total combined negligence of the defendants causing the damage. The percentage (0%-100%) of negligence you find for each party should be stated in the appropriate verdict form. The verdict forms have been color-coded to assist you." [Emphasis supplied.] [94] See, e.g., Vaughn v. Baxter, Okl., 488 P.2d 1234, 1237 (1971); Conner v. Burdine, 120 Okl. 20, 250 P. 109, 110 (1926). [95] Wyoming permits comparative negligence as a defense against gross negligence but not against willful and wanton misconduct or intentional acts. For a well-reasoned opinion, see Danculovich v. Brown, 593 P.2d 187, 192-194 (Wyo. 1979). Compare Billingsley v. Westrac Company, 365 F.2d 619, 621-623 (8th Cir.1966) (applying Arkansas law), which permits the jury to compare a plaintiff's ordinary negligence with a defendant's willful and wanton misconduct. See also Amoco Pipeline Co. v. Montgomery, 487 F. Supp. 1268, 1271 (W.D.Okla. 1980) (applying Oklahoma law), where a federal court forecast that Oklahoma would adopt the Arkansas approach and APPLICATION OF COMPARATIVE NEGLIGENCE IN ACTION BASED ON GROSS NEGLIGENCE, RECKLESSNESS, OR THE LIKE, ANNOT., 10 A.L.R.4TH 946 (1981). [96] Okl., 837 P.2d 913 (1992). [97] The common law forms a "dynamic and growing" body of rules that change with the conditions of society and hence may be modified from time to time. Brigance, supra note 47 at 303, quoting McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 (1980). See also Vanderpool v. State, Okl., 672 P.2d 1153, 1157 (1983). [98] On appeal this court will not pass upon issues or questions not raised by the pleadings, not presented to, and passed upon by the trial court unless it is critical to a complete resolution of the issues before it. Von Stilli v. Young, 203 Okl. 86, 219 P.2d 224 (1950). [99] The terms of 23 O.S. 1991 § 13 provide: In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage. [Emphasis supplied.] The terms of 23 O.S. 1991 § 14 provide: Where such contributory negligence is shown on the part of the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such person's contributory negligence. [Emphasis supplied.] [100] See 23 O.S. 1991 §§ 13, 14 supra note 99. [101] Laubach v. Morgan, Okl., 588 P.2d 1071, 1074 (1978). Our modified version is distinguishable from the "pure" form of comparative negligence. The latter allows a plaintiff to recover all his damages regardless of the percentage of his fault. Laubach, supra at 1072 n. 2. [102] The terms of 25 O.S. 1991 § 5 provide: There are three degrees of negligence, namely, slight, ordinary and gross. The latter includes the former. [Emphasis supplied.] The terms of 25 O.S. 1991 § 6 provide: Slight negligence consists in the want of great care and diligence; ordinary negligence in the want of ordinary care and diligence; and gross negligence in the want of slight care and diligence. [Emphasis supplied.] [103] The theory that there are three degrees of negligence described by the terms slight, ordinary, and gross was introduced into our jurisprudence from Roman Law; its earliest application was in the law of bailments. Steamboat New World et al. v. King, 57 U.S. 469, 16 How. 469, 474, 14 L.Ed. 1019 (1853). For early criticism of the terms, see Steamboat, supra at 474-475. [104] Prosser & Keeton, THE LAW OF TORTS, Ch. 5, § 34, p. 212 (5th Ed. 1984); RESTATEMENT (SECOND) OF TORTS, supra note 30 at § 500, Comment g, 590. [105] Mitchell v. Ford Motor Credit Co., Okl., 688 P.2d 42, 45-46 (1984); Wootan v. Shaw, 205 Okl. 283, 237 P.2d 442, 444 (1951). [106] See supra note 94. [107] 25 O.S. 1991 § 6, supra note 102; 25 O.S. 1991 § 3; 25 O.S. 1991 § 4; Mitchell, supra note 105 at 46 n. 9; Wootan, supra note 105, 237 P.2d at 444. The terms of 25 O.S. 1991 § 3 are: "There are three degrees of care and of diligence, namely, slight, ordinary and great. The latter includes the former." [Emphasis supplied.] The terms of 25 O.S. 1991 § 4 are: "Slight care or diligence is such as persons of ordinary prudence usually exercise about their own affairs of slight importance; ordinary care or diligence is such as they usually exercise about their own affairs of ordinary importance; and great care or diligence is such as they usually exercise about their own affairs of great importance." [Emphasis supplied.] For a comparison of gross negligence with a willful or intentional wrong, see Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (1919). [108] See, e.g., Fox v. Oklahoma Memorial Hospital, Okl., 774 P.2d 459, 461 (1989), where we explained that negligence can be so flagrant, so deliberate, or so reckless that it is removed from the realm of mere negligence and transmuted into willful and wanton misconduct. [109] Mitchell, supra note 105 at 46 n. 9; Wootan, supra note 105, 237 P.2d at 444. [110] 25 O.S. 1991 § 6, supra note 102. [111] 23 O.S. 1991 § 9, infra note 114. [112] See EFFECT OF PLAINTIFF'S COMPARATIVE NEGLIGENCE IN REDUCING PUNITIVE DAMAGES RECOVERABLE, ANNOT., 27 A.L.R. 4TH 318 (1984). [113] Where no actual damages are awarded, the trial court's failure to submit a punitive damage instruction is not reversible error. Eckels v. Traverse, Okl., 362 P.2d 680, 683 (1961). We address the issue here because this cause is remanded on other grounds. [114] 23 O.S.Supp. 1986 § 9 provides in pertinent part: "A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury may give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply." [Emphasis supplied.]. [115] See 23 O.S.Supp. 1986 § 9, supra note 114; Hamilton v. Amwar Petroleum Co., Inc., Okl., 769 P.2d 146, 149 (1989); Slocum v. Phillips Petroleum Co., Okl., 678 P.2d 716, 719 (1983). [116] This suit was filed before the 1986 amendment became effective, but damages in a quantum that would exceed actual damages have never been sought. (Trial Transcript at 1086.) We need not reach the issue whether the 1986 amendment applies to this claim. [117] The trial judge stated he could not conclude there was clear and convincing evidence of oppressive or reckless and wanton conduct by the defendants. (Trial transcript, 1086.) [118] See supra note 115. [119] Mitchell, supra note 105 at 45. [120] Mitchell, supra note 105 at 45 n. 8; Sunray DX Oil Co. v. Brown, Okl., 477 P.2d 67, 70 (1970). [121] Okl., 550 P.2d 924, 928 (1976). [122] Evans, supra note 121 at 927. [123] Evans, supra note 121 at 929. See Smith v. Brennan, 31 N.J. 353, 157 A.2d 497, 503 (1960); see also Womack v. Buchhorn, 384 Mich. 718, 187 N.W.2d 218, 220 (1971). [124] 54 N.Y.2d 269, 445 N.Y.S.2d 108, 108-110, 429 N.E.2d 786, 787-788 (App. 1981). See also Walker v. Rinck, 566 N.E.2d 1088, 1089-90 (Ind. App. 1991), where the court adopted Albala's reasoning in a Rho-GAM case. Walker was criticized in Yeager v. Bloomington Obstetrics, 585 N.E.2d 696 (Ind. App. 1992). See infra note 125. [125] Some jurisdictions consider foreseeability decisive of whether a negligent actor owes a duty to children who are unconceived at the time of his substandard conduct. See Renslow v. Mennonite Hospital, 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250, 1253 (1977), where an Rh-negative teenage girl was transfused with Rh-positive blood. Years later a child was born prematurely with severe and permanent neurological injury as a result of the mother's sensitization. The court noted that the basic understanding of Rh-negative and Rh-positive effects upon hemolytic disease of the newborn had been a medical fact since the 1940's. The negligence was actionable since defendants could foresee that (1) the substandard conduct could harm a later-conceived child and (2) the young woman could bear children. See also Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir.1973); Yeager, supra note 124; Monusko v. Postle, 175 Mich. App. 269, 437 N.W.2d 367 (1989), appeal den., 433 Mich. 869 (1989); LIABILITY FOR CHILD'S PERSONAL INJURIES OR DEATH RESULTING FROM TORT COMMITTED AGAINST CHILD'S MOTHER BEFORE CHILD WAS CONCEIVED, Annot., 91 A.L.R.3D 316 (1979); H. Robertson, INJURY TO THE UNBORN, 1978 DUKE LAW JOURNAL 1401, 1435; Prosser and Keeton, THE LAW OF TORTS, § 55 (5th Ed. 1984). For cases holding that a motorist has no duty to a child who is not yet conceived at the time of an automobile accident, see McAuley v. Wills, 251 Ga. 3, 303 S.E.2d 258, 259 (1983) and Hegyes v. Unjian Enterprises, Inc., 234 Cal. App.3d 1103, 286 Cal. Rptr. 85 (1992), reh'g. den. (1991). [126] 12 O.S. 1981 § 1053 A provides: "When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his personal representative if he is also deceased, if the former might have maintained an action had he lived, against the latter, or his representative, for an injury for the same act or omission. The action must be commenced within two (2) years." [Emphasis supplied.] [127] A valid common-law action must have arisen in favor of the decedent before a wrongful death action will lie. Evans, supra note 121 at 927; Haws, supra note 33; Hill, supra note 33 at 37. [128] Thompson, supra note 21 at 263. [129] The mother's interest in having safe pregnancies and healthy children is also protected, but the health of unconceived children is clearly a primary reason for giving Rho-GAM. [130] The same duty is owed both the mother and her unconceived child i.e., the duty to prevent the mother's sensitization if she is a fit candidate for Rho-GAM. It follows that a breach of the duty owed the mother would also breach the duty to the unconceived child. [131] To recover for wrongful death caused by negligence, the negligence must proximately cause the death. Runyon, supra note 49 at 948. The injury complained of must have been reasonably foreseeable to the negligent party. Bradford Securities v. Plaza Bank and Trust, Okl., 653 P.2d 188, 190-191 (1982); Pepsi Cola, supra note 45 at 997. [132] 76 O.S. 1981 § 18 provides in pertinent part: "An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of... ." [Emphasis supplied.] [133] Reynolds v. Porter, Okl., 760 P.2d 816, 820 and n. 8 (1988); McCarroll v. Doctors General Hosp., Okl., 664 P.2d 382, 385-386 (1983). [134] McCarroll, supra note 133 at 385-386. [135] There is conflicting evidence not only with respect to what the mother knew, but also concerning what she should have known. The doctors contended that when Dr. Keuchel told the mother she did not receive Rho-GAM, she had a duty to get a blood test and find out whether she had become sensitized. The doctors' expert, Dr. Gorman, testified that 50% of the time, antibodies do not show up in a blood test until the woman becomes pregnant again. He called this phenomenon "sensitization without antibodies" or "sensibilization." The mother introduced blood tests taken by the Red Cross when she donated blood on May 11, 1981, October 16, 1981 and May 21, 1982. The tests did not show any antibodies. The jury might have inferred that the mother had no safe way to discover whether she had been sensitized. [136] Evidence reveals that the mother consulted Dr. Clyde W. Barton in early 1983 about her inability to become pregnant. When it appeared that she was pregnant, Dr. Barton referred her to Drs. Dean, Hall & Ryker. Dr. Ryker sent her for a blood test on March 7, 1983 to find out whether she had been sensitized. The test results were positive. The mother urges she was not told that she had been sensitized. Dr. Barton testified that his office notes show that in a March 28 conversation, the mother told him she "has antibodies against Rh" i.e., that she had become sensitized.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615018/	847 P.2d 152 (1992) CABOT PETROLEUM CORPORATION, Petitioner-Appellant and Cross-Appellee, v. YUMA COUNTY BOARD OF EQUALIZATION, Respondent-Appellee and Cross-Appellant, and Board of Assessment Appeals of the State of Colorado, Appellee. No. 91CA0671. Colorado Court of Appeals, Div. V. June 4, 1992. Rehearing Denied August 27, 1992. Certiorari Granted February 22, 1993. 153 Gorsuch, Kirgis, Campbell, Walker & Grover, Robert J. Kapelke, Bernard L. Zuroff, Denver, for petitioner-appellant and cross-appellee. Francis A. Benedetti, County Atty., Wray, for respondent-appellee and cross-appellant. No appearance for appellee. Opinion by Judge NEY. Petitioner, Cabot Petroleum Corporation (taxpayer), appeals from an order of the Board of Assessment Appeals (BAA) which upheld the retroactive assessment of additional property taxes against taxpayer's oil and gas leasehold interests for the 1986, 1987, and 1988 tax years ordered by respondent, the Yuma County Board of Equalization (BOE). The BOE cross-appeals from the BAA's reduction in the amount of additional property taxes the BOE retroactively assessed. We conclude that the retroactive property tax assessments at issue here cannot stand, and therefore, we reverse the BAA's order. The valuation of oil and gas leasehold interests for property tax purposes is governed by the provisions of § 39-7-101, et seq., C.R.S. (1982 Repl.Vol. 16B), and other relevant statutes including § 39-1-103(2), C.R.S. (1982 Repl.Vol. 16B); §§ 39-1-103(5)(a) & 39-1-104(12)(b), C.R.S. (1991 Cum.Supp.). Pursuant to § 39-7-101(1)(c) & (d), C.R.S. (1982 Repl.Vol. 16B), the operator of any producing oil or gas leasehold is required to file an annual statement with the county assessor showing the quantity and the "selling price at the wellhead" of all oil or gas sold or transported from the premises during the calendar year immediately preceding the property tax year. Based on these annual statements, the assessor is generally required to value such oil and gas leasehold interests for assessment, as real property, for each property tax year at an amount equal to 87.5 percent of the selling price of the oil or gas sold therefrom during the preceding calendar year. Section 39-7-102(1)(a), C.R.S. (1982 Repl. Vol. 16B). Thus, under the applicable statutory scheme, property taxes are annually assessed against producing oil and gas leasehold interests based on the value of the preceding year's production. The facts relevant to the retroactive assessments at issue are not in dispute and are set forth in a stipulation between taxpayer and the BOE presented in the proceedings before the BAA. For each of the 1986, 1987, and 1988 property tax years, 154 taxpayer filed the required annual statements in connection with its oil and gas leasehold interests and timely paid the property taxes that were then assessed based on the value of the preceding year's gas production that taxpayer reported in the annual statements. In the annual statements, taxpayer reported the selling price which it had actually received at that time from the purchaser of the gas produced from its interests during the years in question. However, taxpayer also filed a lawsuit in federal court against the purchaser of the gas, contending that it was entitled to a substantially higher price for the gas produced and sold during these years under its gas sales contract. Several years later, the federal litigation was settled, and in 1989, as part of the settlement, taxpayer was paid an additional $4,700,000 by the purchaser which was attributable to the alleged underpayment by the purchaser for the gas previously produced and sold in 1985, 1986, and 1987 (which would relate to the 1986, 1987, and 1988 property tax years). Shortly thereafter, based on the $4,700,000 litigation settlement, the assessor sent taxpayer three tax notices, retroactively assessing additional property taxes against taxpayer's oil and gas leasehold interests for the 1986, 1987, and 1988 tax years, in the total amount of $315,511. The additional property tax assessments were based on the additional proceeds taxpayer had subsequently received in the litigation settlement for the previous years' gas production, which had not and could not have been reported in the annual statements previously filed by taxpayer. After the BOE denied taxpayer's protests to the retroactive assessments made by the assessor, taxpayer appealed the matter to the BAA. In a series of rulings, the BAA upheld the assessor's authority to make the retroactive assessments of additional property taxes here. However, the BAA reduced the total amount of additional taxes to $200,967, based on adjustments to the $4,700,000 settlement amount to allow for taxpayer's litigation costs and for the loss in value attributable to taxpayer's receipt of the proceeds in 1989 rather than in 1985, 1986, and 1987. Taxpayer's appeal and the BOE's cross-appeal to this court followed. Taxpayer contends that the retroactive property tax assessments are unlawful because there was no statutory authority for the assessor to make such assessments under the circumstances here. We agree. The BAA upheld the assessor's authority to make the retroactive property tax assessments in this case based on the "omitted property" statute, § 39-5-125, C.R.S. (1982 Repl.Vol. 16B). Section 39-5-125 provides that: (1) Whenever it is discovered that any taxable property has been omitted from the assessment roll of any year or series of years, the assessor shall immediately determine the value of such omitted property and shall list the same on the assessment roll of the year in which the discovery was made and shall notify the treasurer of any unpaid taxes on such property for prior years. (2) Omissions and errors in the assessment roll, when it can be ascertained therefrom what was intended, may be supplied or corrected by the assessor at any time before the tax warrant is delivered to the treasurer or by the treasurer at any time after the tax warrant has come into his hands. (emphasis added) See also § 39-10-101(2)(a), C.R.S. (1982 Repl.Vol. 16B) (similarly providing the treasurer with statutory authority to make retroactive assessments of additional property taxes upon discovery that taxable property has been omitted). We agree with taxpayer that, here, there has been no "omitted property" within the meaning of § 39-5-125. Contrary to the BAA's analysis and the argument of the BOE, the settlement proceeds received by taxpayer in 1989 do not constitute "omitted property" for property tax purposes, even though such proceeds were received in payment for the additional amount that was agreed was due for the gas previously produced and sold from taxpayer's oil and gas leasehold interests. 155 Unlike other types of taxes, property taxes are not assessed against the oil or gas produced or the proceeds realized from their sale; rather, under the applicable statutory scheme, property taxes are assessed solely against the oil and gas leaseholds themselves, and the value of the production from such leaseholds is relevant, for property tax purposes, only in determining the value to be given to the oil and gas leaseholds themselves. See § 39-7-102; Federal Land Bank v. Board of County Commissioners, 788 F.2d 1440 (10th Cir.1986). Moreover, it is undisputed here that taxpayer reported all of its oil and gas leasehold interests in its annual statements for each of the 1986, 1987, and 1988 property tax years and that it timely paid the property taxes that were then assessed against all of its oil and gas leasehold interests based on the value of the production that was reported at that time. Thus, we conclude that no "taxable property" of taxpayer has ever been omitted from the assessment of property taxes for the 1986, 1987, and 1988 property tax years. We hold that §§ 39-5-125 and 39-10-101(2)(a) authorize retroactive assessments of additional property taxes only against "omitted property" and not against "omitted value." We note that other jurisdictions have also recognized the distinction between "omitted property" and "omitted value" under similar statutory schemes and have similarly held that retroactive assessments of additional property taxes were not authorized by such statutes against property that was previously undervalued rather than omitted. See County Board of Equalization v. Nupetco Associates, 779 P.2d 1138 (Utah 1989) ("escaped assessment" statute); Chicago Gravel Co. v. Rosewell, 103 Ill.2d 433, 83 Ill.Dec. 164, 469 N.E.2d 1098 (1984) ("omitted property" statute); Tacoma Goodwill Industries Rehabilitation Center, Inc. v. County of Pierce, 10 Wash.App. 197, 518 P.2d 196 (1973) ("omitted property" statute). We also find the reliance of the BOE and the BAA on Chew v. Board of Assessment Appeals, 673 P.2d 1028 (Colo.App.1983) in support of a contrary result to be misplaced. In Chew, this court held that § 39-5-125 authorized the retroactive assessment of property taxes against improvements that had previously been omitted from the assessment of such taxes, even though property taxes had previously been assessed and paid on the taxpayer's land. However, we note that improvements are required to be appraised and valued separately from land for property tax purposes, see § 39-5-105(1), C.R.S. (1982 Repl.Vol. 16B), and separate and distinct taxable property had been omitted from the assessment of property taxes in that case. In contrast, here, no separate taxable property has ever been omitted, but instead, all taxable property has only been undervalued. Thus, Chew is factually distinguishable and inapposite here. In addition, although § 39-5-125(2) also authorizes retroactive property tax assessments that are based on the correction of clerical errors, the retroactive assessments at issue here were not based on any such "clerical errors," and the record is devoid of any evidence that a "clerical error" occurred. See 24, Inc. v. Board of Equalization, 800 P.2d 1366 (Colo.App. 1990). Thus, contrary to the BAA's analysis, § 39-5-125 is inapplicable and provides no authorization for the retroactive assessments in this case. We also reject the BOE's argument that the retroactive assessments here were justified pursuant to §§ 39-7-104 and 39-7-105, C.R.S. (1982 Repl.Vol. 16B). Under these provisions, if any material part of a taxpayer's annual statements are found to be "willfully false and misleading," then assessors have the statutory authority to make retroactive assessments of additional property taxes against producing oil and gas leasehold interests based on the "best information available" to them. See also § 39-10-101(2)(c), C.R.S. (1982 Repl.Vol. 16B) (similarly providing the treasurer with statutory authority to make retroactive assessments of additional property taxes in the case of a taxpayer's "fraudulent action with intent to evade tax"). 156 However, the BAA did not uphold the assessor's authority to make the retroactive assessments here based on such statutory provisions, and nothing in the record would warrant a finding that taxpayer filed willfully false and misleading annual statements or otherwise acted fraudulently with intent to evade tax in connection with the previous assessments of property taxes against its oil and gas leasehold interests for the tax years in question. Thus, §§ 39-7-104, 39-7-105, and 39-10-101(2)(c) are also inapplicable and provide no authorization for the retroactive assessments in this case. We realize that this holding results in a substantial windfall to taxpayer in that it undoubtedly would have had to pay property taxes based on the full value of the proceeds it received for its gas production had all of such proceeds been timely received and reported in the tax years in question without the necessity of the federal litigation against the gas purchaser. Nevertheless, we must construe and apply the statutory language authorizing retroactive property tax assessments as it is written, and we cannot, without engaging in impermissible "judicial legislation" under the guise of statutory construction, presently find any statutory authorization for the retroactive assessments at issue here. See County Board of Equalization v. Nupetco Associates, supra (windfall immaterial because remedy for statutory loophole is for legislature to create, not courts); see also Skidmore v. O'Rourke, 152 Colo. 470, 383 P.2d 473 (1963) (General Assembly has exclusive power to determine the extent of authority of county officials to assess and collect property taxes). We also note that, by restricting the authority to make retroactive property tax assessments to certain limited circumstances, the current statutory scheme has the positive result of recognizing some degree of finality in the assessment of property taxes against specific properties. See Chicago Gravel Co. v. Rosewell, supra; Tacoma Goodwill Industries Rehabilitation Center, Inc. v. County of Pierce, supra. In light of this disposition of taxpayer's appeal, we do not reach the issues raised by the BOE's cross-appeal. Accordingly, the order of the BAA is reversed, and the cause is remanded to the BAA with directions to abate the retroactive property tax assessments against taxpayer in their entirety. RULAND and ENOCH[], JJ., concur. NOTES [] Sitting by assignment of the Chief Justice under provisions of the Colo.Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1988 Repl.Vol. 10B).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874667/	889 So. 2d 112 (2004) CHUBB GROUP INSURANCE COMPANY and Dialamerica, Inc., Appellants, v. Major D. EASTHAGEN, II, Appellee. No. 1D04-2464. District Court of Appeal of Florida, First District. November 23, 2004. Colleen Cleary Ortiz, of Bozeman, Jenkins & Matthews, P.A., Pensacola, for appellants. Lisa A. Lovingood, Jacksonville, for appellee. WOLF, C.J. Appellants, the employer and carrier, appeal a non-final order denying the Motion to Compel Execution of Settlement Documents or Alternatively Motion to Dismiss Claim with Prejudice.[1] The JCC held that it lacked jurisdiction to determine whether an enforceable settlement agreement was reached. Based on this court's recent opinions reaffirming that it is within the province of the JCC to determine whether a settlement agreement was reached, and if so, to establish its terms, the JCC's order to the contrary is reversed. See Gerow v. Yesterday's, 881 So. 2d 94 (Fla. 1st DCA 2004); Jacobsen v. *113 Ross Stores, 882 So. 2d 431 (Fla. 1st DCA 2004). BENTON and VAN NORTWICK, JJ., concur. NOTES [1] This court has jurisdiction pursuant to rule 9.180(b)(1)(A), Florida Rules of Appellate Procedure (2004).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1980895/	510 F.Supp. 658 (1981) Gordon O. DeVONISH et al., Plaintiffs, v. Rudolph G. GARZA et al., Defendants. No. SA-73-CA-59. United States District Court, W. D. Texas, San Antonio Division. March 10, 1981. Gerald H. Goldstein, Levey & Goldstein, San Antonio, Tex., for plaintiffs. Keith W. Burris, Asst. Dist. Atty., San Antonio, Tex., for defendants. Steven B. Berlin, Patricia G. Littlefield, Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., for the U. S. amicus curiae. MEMORANDUM OPINION AND ORDER SESSIONS, Chief Judge. Pending before the Court is the Motion of the Defendants in the above-styled and numbered cause to Dismiss Litigating Amicus or to Require Compliance with Institutionalized Persons Act. After careful consideration of the briefs of counsel for Defendants, Plaintiffs, and Amicus, the Court now enters the following Memorandum Opinion and Order. This cause is a consolidated civil rights action alleging that various conditions maintained and practices and procedures followed by Defendants in their operation of the Bexar County Jail in San Antonio, Texas, have violated various rights of the Plaintiffs and the members of the class they seek to represent. The individual complaints which were consolidated into this cause were filed by former inmates of the Bexar County Jail who are now, for the most part, incarcerated in institutions of *659 the Texas Department of Corrections. On August 1, 1978, this Court entered an Order consolidating some seven civil actions into this cause. In that Order the Court also stated that it had determined that the public interest would be served by the participation of the United States of America in the consolidated cause, and ordered that the United States be requested to make an appearance as a litigating amicus curiae. The United States entered its appearance as the Amicus in this cause on November 15, 1978, and has participated in the cause ever since. On May 23, 1980, Congress enacted the Civil Rights of Institutionalized Persons Act, Pub.L. 96-247, 94 Stat. 349 (now codified at 42 U.S.C. § 1997 et seq.). By the Motion before the Court, the Defendants seek either the dismissal of the Amicus from this cause or the requirement that the Amicus satisfy certain procedural requirements contained in the Act. It appears to the Court that the intent of Congress in passing the Act was not to impose the procedural requirements contained therein upon the United States when it appears in an existing civil action as an amicus curiae at the invitation of the Court. Section 3 of the Act, 42 U.S.C. § 1997a, addresses the situation in which the Attorney General initiates a civil action as a plaintiff. Section 5 of the Act, 42 U.S.C. § 1997c, addresses the situation where the Attorney General moves to intervene in an existing civil action under Rule 24, Federal Rules of Civil Procedure. See House Conference Report 96-897, at pp. 14-15, reprinted in [1980] U.S.Code Cong. & Ad.News 1936, 1998, 2005. However, the United States has appeared in this cause by neither of these methods, but rather as litigating Amicus Curiae at the invitation of the Court. The purpose of the statute under consideration was to give the Attorney General standing to enforce the rights of institutionalized persons. See id., at p. 9, [1980] U.S.Code Cong. & Ad.News at 1999. In the opinion of this Court there is no need for legislative grants of standing to appear as an amicus curiae. See Universal Oil Co. v. Root Refining Co., 328 U.S. 575, 581, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946) ("[A] federal court can always call on law officers of the United States to serve as amici.") Therefore, it appears to the Court that the Civil Rights of Institutionalized Persons Act does not apply in the cause before the Court, that Amicus need not comply with the statute in order to remain in this cause, and that Defendants' Motion should be denied. Accordingly, IT IS HEREBY ORDERED that the Motion of the Defendants in the above-styled and numbered cause to Dismiss Litigating Amicus or to Require Compliance with Institutionalized Persons Act be and is hereby DENIED in all things.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615019/	847 P.2d 1370 (1993) David EADS and Jill Eads, Appellants, v. R.D. WERNER CO., INC., Respondent. No. 22201. Supreme Court of Nevada. March 8, 1993. Burris & Thomas and Laurence Springberg, Las Vegas, for appellants. Earley & Dickinson, Las Vegas, for respondent. 1371 OPINION PER CURIAM: The Facts In August, 1984, David Eads (Eads) suffered injuries when he fell from a ladder. Eads sued R.D. Werner Co., Inc. (Werner), the manufacturer of the ladder, for strict liability. Eads alleged that Werner defectively designed and/or manufactured the ladder and, as such, it was unreasonably dangerous. The ladder in question was Werner's Mark I extension ladder (Mark I). The ladder contained two side rails, requiring that the ladder user lean it against a vertical structure. Werner placed an instruction on the ladder informing the user of the proper angle at which to tilt the ladder. Werner also placed a warning label on the ladder which provided: "DO NOT OVER-REACH. Always keep belt buckle between the side rails when climbing or working from ladder. You may lose your balance and/or tip the ladder." Werner manufactured the Mark I from 1978 until July, 1982. In July, 1982, Werner began manufacturing a replacement model for the Mark I, called the Mark II. The Mark II had thicker side rails than the Mark I and contained additional guide rail clips for the extension section of the ladder. Daniel Cashdan (Cashdan), a structural engineer, conducted a post-accident inspection of the ladder Eads used. At trial, Cashdan explained that when there is a rocking motion on the Mark Iwhen a person walks up the ladderthe feet of the ladder can rotate so that the bottom portions are not flush with the ground, or stated differently, the feet can "cock" like the hammer of a gun. Apparently, as Eads climbed the ladder, the right foot cocked (up to three-quarters of an inch) and then uncocked. When the right foot of the ladder hit the ground, the rail suffered a downward compressive force, causing a buckle in the side rail and damage to the foot of the ladder. As a result, Eads fell. According to Cashdan, the Mark II's side rail and guide rail clips would resist and avoid such compression buckling better than the Mark I. Werner's position at trial was that the ladder was not defective, that Eads did not heed the warning on the ladder against overreaching or follow the instructions as to proper use, and that the accident was caused by Eads' misuse of the product. The misuse Werner asserts was Eads leaning too far to the right when painting from the ladder and thereby falling. Following the trial, the jury returned a verdict for Werner. Eads moved for a new trial and/or judgment notwithstanding the verdict, which the district court denied. On appeal, Eads argues, among other things, that the district court improperly instructed the jury regarding the legal effect of the warnings on the ladder. We agree and therefore reverse. Discussion Jury Instruction In Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991), the district court instructed the jury: "A product which bears suitable and adequate warnings concerning the safe manner in which the product is to be used and which is safe to use if the warning is followed is not in a defective condition." Id. at 138, 808 P.2d at 524. Because the instruction stated that an adequate warning will always shield the manufacturer from liability, this court held that it was an incorrect statement of the law. Id. at 139, 808 P.2d at 525. Instead, this court stated: [W]arnings should shield manufacturers from liability unless the defect could have been avoided by a commercially feasible change in design that was available at the time the manufacturer placed the product in the stream of commerce. Id. In the instant case, the district court instructed the jury as follows: Where an instruction or warning is given, the manufacturer may reasonably assume that it will be read and heeded; and a product bearing such a warning, that is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. 1372 Eads argues that the district court erred by not giving an instruction similar to the one put forth by this court in Robinson. Eads contends that the defects in the Mark I could have been avoided prior to its manufacture in July, 1982. Specifically, the thicker side rail and the new guide brackets contained in the Mark II were known and available to Werner years prior to July, 1982, and these changes would have reduced the "cocking phenomenon" which allegedly contributed to his accident. Werner argues that Robinson is inapplicable because the instant case does not involve a safety device. We cannot agree. While Robinson involved a product which was allegedly defective because it lacked a safety device, the holding was not fact specific. This is evident by the issue presented for review: "[W]hen, in spite of an adequate warning, a manufacturer is still liable for a foreseeable misuse." Id. at 138, 808 P.2d at 524. Thus, Robinson applies in the instant case. Given the erroneous instruction, the jury could have easily concluded that since the warning was given, the ladder was not defective even if there was a commercially feasible design available when it was manufactured that probably would have prevented the accident. We conclude that the jury instruction given in the instant case is indistinguishable from the instruction given in Robinson, and that the district court erred in so instructing the jury. We have carefully considered all of the other issues raised and conclude that they either lack merit or need not be addressed given our disposition of this appeal. Because the district court erred in giving the stated jury instruction, we reverse the judgment of the district court and remand this case for a new trial.[1] NOTES [1] The Honorable Miriam Shearing, Justice, did not participate in the decision of this appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2158935/	667 F. Supp. 938 (1987) CAYUGA INDIAN NATION OF NEW YORK, et al., Plaintiffs, and The Seneca-Cayuga Tribe of Oklahoma, Plaintiff-Intervenor, v. Mario M. CUOMO, et al., Defendants. Nos. 80-CV-930, 80-CV-960. United States District Court, N.D. New York. August 21, 1987. 939 Marks Murase & White (Arthur J. Gajarsa, Kenneth A. Marra, of counsel), Washington, D.C., Meggesto & Meggesto (Judy Lewis Meggesto, of counsel), Syracuse, N.Y., for plaintiffs. Wiles Fahey & Lynch (Joseph E. Fahey, of counsel), Syracuse, N.Y., Ziontz Pirtle Morisset Ernstoff & Chestnut (Glenn M. Feldman, of counsel), Washington, D.C., for plaintiff-intervenor Seneca-Cayuga Tribe of Oklahoma. Robert Abrams, Atty. Gen. of State of New York, Dept. of Law (David Roberts, Asst. Atty. Gen., of counsel), Albany, N.Y. Huber Lawrence & Abell (Howard M. Schmertz, of counsel), New York City, for New York State Elec. & Gas Corp. Hiscock & Barclay (Richard Hughes, Clifford Wilson, of counsel), Syracuse, N.Y., for Consol. Rail Corp. Hale and Dorr (James D. St. Clair, William F. Lee, of counsel), Boston, Mass., for Seneca County, et al. Goodwin Procter & Hoar (Allan van Gestel, of counsel), Boston, Mass., for Cayuga County, et al. Thomas H. Pacheco, Indian Resources Section, Land and Natural Resources Div., Washington, D.C., for United States amicus curiae. MEMORANDUM-DECISION AND ORDER McCURN, District Judge. In this action, one of a number with which the court has dealt involving Indian land claims, the court is being asked by the plaintiff, the Cayuga Nation of New York, and the plaintiff-intervenor, the Seneca-Cayuga 940 Tribe of Oklahoma (the plaintiffs),[1] to determine that two conveyances of land, one occurring in 1795, and the other occurring in 1807, violated the Nonintercourse Act (or the Act), 25 U.S.C. § 177. The court has already written one lengthy opinion in this action denying the defendants' motions to dismiss, and in that opinion, with which familiarity will be presumed, the court set forth in detail the basic factual background of this action. Cayuga Indian Nation of New York v. Cuomo, 565 F. Supp. 1297 (N.D.N.Y.1983) (McCurn, J.). Currently pending before the court are a motion by the plaintiffs for partial summary judgment and motions by the defendants for summary judgment made pursuant to Fed.R.Civ.P. 56. Before addressing the merits of the motions, the court should make clear its role at this stage of the proceedings. In a recent trilogy of cases, the Supreme Court has illuminated the responsibility of the district court and the burdens on the parties when dealing with summary judgment motions. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In Anderson, the Court stated: Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725, pp. 93-95 (1983). This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes. 106 S.Ct. at 2510. The Court went on to state: Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. As Adickes [v. S.H. Kress & Co., 398 U.S. 144 [90 S. Ct. 1598, 26 L. Ed. 2d 142] (1970)], supra, and [First National Bank of Arizona v.] Cities Service [Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)], supra, indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities Service, 391 U.S., at 288-289, 88 S. Ct., at 1592. If the evidence is merely colorable, Dombrowski v. Eastland, 941 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967) (per curiam), or is not significantly probative, Cities Service, supra, [391 U.S.] at 290, 88 S. Ct. at 1592, summary judgment may be granted. Id. at 2511. In Celotex, the Court discussed the burden on a party opposing a motion for summary judgment: In our view, the plain language of Rule 56(c) 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 the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)...." Anderson v. Liberty Lobby, Inc., [477] U.S. [242], [___], 106 S.Ct. [2505], [___], 90 [91] L.Ed.2d [202] (1986). 106 S.Ct. at 2552-53. With the procedural fundamentals of summary judgment motions firmly in hand, the court will proceed to address the merits of the pending motions. I. The most recent pronouncement of the Nonintercourse Act, which has been in effect in various versions for almost two hundred years, is as follows: § 177. Purchases or grants of lands from Indians No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty. 25 U.S.C. § 177. The plaintiffs contend that the 1795 and 1807 conveyances of land, made pursuant to treaties with the State of New York, were invalid under the Act because the requisite federal government ratification was never received. To establish a violation of the Nonintercourse Act, a plaintiff must show that: (1) it is or represents an Indian tribe within the meaning of the Act; (2) the parcels of land at issue are covered by the Act as tribal land; (3) the United States has never consented to the alienation of the tribal land; and (4) the trust relationship between the United States and the tribe has never been terminated or abandoned. Oneida Indian Nation of New York v. County of Oneida, 434 F. Supp. 527, 537-38 (N.D.N.Y. 1977), aff'd and rem'd, 719 F.2d 525 (2d Cir.1983), aff'd in part and rev'd in part, 470 U.S. 226, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985); Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899, 902 (D.Mass.1977). The defendants, asking for no quarter and giving none, are battling the plaintiffs right from the start by arguing that the plaintiffs have yet to prove their tribal existence. The plaintiffs argue, among other things, that they are recognized as 942 Indian tribes by the federal government and that the federal government has had a continuous relationship with them for a great number of years. Based on affidavits by federal government officials that have been submitted to the court, there is no doubt that the federal government officially recognizes the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma as Indian tribes. The government acknowledges the Cayuga Nation of New York as the same tribe with whom it entered into the 1794 Treaty of Canandaigua,[2] and it recognizes the Seneca-Cayuga Tribe of Oklahoma as a successor tribe to the tribe with whom it treated in 1794. See Rainbolt Affidavit attached to Plaintiffs' Memorandum of Law in Support of Partial Summary Judgment and Krenzke Affidavits attached to Plaintiffs' Amended and Supplemental Motion for Summary Judgment and Memorandum of Plaintiff-Intervenor Seneca-Cayuga Tribe of Oklahoma in Response to Plaintiffs' Motion for Partial Summary Judgment. The defendants maintain, however, that federal recognition is insufficient to establish tribal status for the purposes of a Nonintercourse Act claim and that the plaintiffs must prove that they have had a continuous tribal existence since the time of the challenged conveyances to the present time. In support of their position, the defendants rely primarily on Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.1979). That case, though, does not stand for the proposition that federal recognition is irrelevant to a determination of tribal status. The Mashpees are not recognized as a tribe by the federal government. Consequently, the court was constrained to look for other evidence of tribal status and applied several different factors in making its ultimate determination. In recognizing the importance of federal recognition, the court did state: Because most groups of Indians involved in litigation in the federal courts have been federally recognized Indians on western reservations, the courts have been able to accept tribal status as a given on the basis of the doctrine going back at least to The Kansas Indians, 72 U.S. (5 Wall.) 737, 756-57, 18 L. Ed. 667 (1867), that the courts will accord substantial weight to federal recognition of a tribe. See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377 (1st Cir.1975). Id. at 582. In Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975), referred to above, the court was also confronted with a Nonintercourse Act claim where the plaintiff tribe lacked federal government recognition. The court proceeded to determine that the plaintiff was nonetheless still a "tribe" for purposes of a suit under the Act but did note that federal recognition would conceivably be of "great significance" in determining tribal status. Id. at 377. The plaintiffs contend that the question of tribal status is a non-justiciable political question and that recognition of the tribes by the federal government is binding on the court. There is case authority in support of the plaintiffs' position. See United States v. State of Washington, 384 F. Supp. 312, 401 (W.D.Wa.1974), aff'd, 520 F.2d 676 (9th Cir.1975); United States v. Aam, 670 F. Supp. 306 (W.D.Wa.1986). In Aam, the court stated that "The Court must extend great deference to the political departments in determining whether Indians are recognized as a tribe. This determination closely resembles a political question, which should not be resolved by the courts. Baker v. Carr, 369 U.S. 186, 215 943 [82 S. Ct. 691, 709, 7 L. Ed. 2d 663] (1962)." At ___. This court has itself recognized the importance of federal government determinations of tribal status. "The question of whether the plaintiffs are the proper parties is an issue which, as previously explained, is to be resolved whenever possible through executive determinations of tribal status." Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278, 1301 (N.D.N.Y.1981) (McCurn, J.), aff'd in part and rev'd in part, 691 F.2d 1070 (2d Cir.1982). Moreover, in a recent First Circuit decision involving the Mashpees, that court could not have made much clearer the great deference that it gives federal government recognition of tribal status. Mashpee Tribe v. Secretary of Interior, 820 F.2d 480 (1st Cir.1987). The court initially discussed the history of the litigation and that a jury had found, as a matter of fact, that the Mashpees are not a tribe. The court went on, though, to refer to the "difficulty" in the Mashpees' case that resulted from the lack of federal executive or legislative branch recognition. Id. at 484. The court cited with approval the standard for federal recognition set forth by Professor Cohen,[3] and going even further, looked to a recently published federal government list of recognized Indian tribes as evidence of tribal status. Id. While the Mashpees and four other "tribes" involved in that litigation are not on the list, the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma are listed. 51 Fed.Reg. 25115 (July 10, 1986). Future court decisions may lead to a clear rule that the issue of tribal status is a political determination that binds the courts. As noted, there is some authority for that proposition at this time. However, even if a court is not bound by federal government recognition of a tribe, such recognition should be given great weight in any determination of tribal status. Notwithstanding the defendants' protests and presentation to the court of "questions of material fact" on the issue of tribal status, the court has little hesitation in holding that there is no genuine issue of material fact regarding the tribal status of either of the plaintiffs. The court concludes that, for the purposes of a Nonintercourse Act suit, tribal status of the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma has been established as a matter of law. The second requirement in an action based on an alleged Nonintercourse Act violation is that the land in question must be covered by the Act as tribal land. There appears to be no dispute that the land under consideration in this case, that conveyed in 1795 and 1807, is covered by the Act as tribal land, and the court so concludes as a matter of law. Similarly, advancing to the fourth requirement for a Nonintercourse Act suit, there is no argument regarding the existence of a trust relationship between the federal government and the plaintiff tribes. Obviously, the defendants have implicitly challenged any relationship with the tribes by challenging the existence of the tribes themselves. However, they have not addressed themselves specifically to the issue of a trust relationship. The affidavits by federal government officials mentioned earlier leave no doubt that the requisite trust relationship does exist, and the court concludes that this requirement has been met. The third, and at this point, crucial requirement that the plaintiffs must meet is to establish that the federal government did not consent to the 1795 and 1807 conveyances. As stated in the Act itself, no conveyance is valid unless made by a treaty or convention entered into pursuant to the Constitution. 25 U.S.C. § 177. Not surprisingly, 944 the plaintiffs and the defendants maintain quite different positions on just how literally the language of the statute should be read. The defendants contend that federal government consent to the alienation of tribal land, by ratification of a land conveyance, need not be in the form of an express federal treaty or convention made by the President with the consent of the Senate. Further, the defendants contend that ratification need not be explicit. Addressing the second point first, the Supreme Court has unequivocally held that congressional intent to terminate title to Indian land must be plainly and unambiguously expressed. Oneida County, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226, 247-48, 105 S. Ct. 1245, 1258-59, 84 L. Ed. 2d 169 (1985). It is difficult, if not impossible, for the court to envision instances where implicit federal government ratification will be plain and unambiguous. As held in Oneida Indian Nation of New York v. County of Oneida, "Termination of Congressional responsibility under the Nonintercourse Act must be explicit." 434 F. Supp. at 538. Further, Justice Brennan has stated, "[I]nterests in Indian lands can be conveyed only pursuant to explicit congressional authorization." (footnote omitted). Mountain States Telephone & Telegraph Company v. Pueblo of Santa Ana, 472 U.S. 237, 257-58, 105 S. Ct. 2587, 2599, 86 L. Ed. 2d 168 (1985) (Brennan, J., joined by Marshall, J. and Blackmun, J., dissenting). The court is unwilling to accept the defendants' argument that implicit congressional ratification will satisfy the requirements of the Act. As for the defendants' first point on this issue, stating that federal government ratification of a conveyance of Indian land must be plain and unambiguous, as well as explicit, does not necessarily answer the question of whether such ratification must be by express federal treaty. At least one court has held that any conveyance of Indian land must be by an express treaty or convention made by the President with the consent of the Senate. Mashpee Tribe v. Watt, 542 F. Supp. 797, 805 (D.Mass.1982), aff'd, 707 F.2d 23 (1st Cir.1983). Further, the Supreme Court itself has touched upon this question. In Oneida County, N.Y. v. Oneida Indian Nation of New York State, the Court addressed the issue of ratification of conveyances of Indian land. Confronted with the argument that there was language in two different treaties, one entered into in 1798 and the other in 1802, that served to ratify conveyances that occurred in 1795, the Court held that neither treaty evidenced an intent by either the Senate or the President to ratify the conveyances. 470 U.S. at 248, 105 S.Ct. at 1259. The Court stated that the language in the treaties that purportedly served to ratify the conveyances was neither plain nor unambiguous. Id. Although it could have, however, the Court did not set down an unequivocal rule that any conveyance of Indian land must be by express federal treaty in order to comply with the Nonintercourse Act. Thus, the question of the form that ratification must take is, at least in this court's view, not completely settled.[4] Arriving at the uncertain answer that a conveyance of Indian land may require a treaty made by the President with the consent of the Senate is not of tremendous assistance in resolving the issues before the court at this time. Although the parties are in vehement disagreement on the issue of whether ratification of the 1795 and 1807 conveyances occurred, they do not appear to disagree on the issue of whether the conveyances were accomplished by treaties made by the President with the consent of the Senate. Stated simply, the record is completely void of any indication that the President made the 1795 and 1807 treaties with the consent of the Senate. 945 Thus, if it is ultimately decided that such requirements must be met before a valid conveyance of Indian land can be made, then the plaintiffs have established a prima facie case of a violation of the Nonintercourse Act. However, because the court, at least at the present time, is not completely convinced that there must always be an express federal treaty in order to validly convey Indian land, it deems it wise to determine if there were any acts or circumstances surrounding the conveyances that could lead to a finding of plain and unambiguous ratification. Having said that, the court is constrained to note that the evidence that it has examined in this regard does not favor the defendants. The defendants point to the involvement of federal officers Israel Chapin and Jasper Parrish with the 1795 treaty and Jasper Parrish with the 1807 treaty. Further, the defendants argue that the 1838 Treaty of Buffalo Creek served to ratify the 1795 and 1807 conveyances. The plaintiffs make several cogent arguments as to why none of the circumstances surrounding the conveyances evidence ratification on the part of the federal government, and in Oneida Indian Nation of New York v. County of Oneida, the court discussed the specious nature of the argument regarding the Buffalo Creek Treaty. 434 F. Supp. at 538-40. What must be remembered at all times, and is worth repeating, is that ratification must be plain and unambiguous, as well as explicit. The court is quite cognizant, though, that at this stage of the proceedings, its role is not to weigh the evidence, but to determine whether there are any genuine issues of material fact. The court concludes that the defendants have demonstrated the existence of open questions of material fact that should be resolved before a final determination in this action is reached. Particularly in a case with the wide-ranging ramifications of this one, the development of a complete factual record regarding the circumstances of the conveyances will serve to facilitate a more accurate, and thus, more just, resolution. Additionally, although it perhaps does not directly rebut the establishment of a prima facie case of a Nonintercourse Act violation, the defendants have presented some support for an argument that the plaintiffs abandoned the land in question before the conveyances took place. See Williams v. City of Chicago, 242 U.S. 434, 37 S. Ct. 142, 61 L. Ed. 414 (1917); United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354, 62 S. Ct. 248, 255, 86 L. Ed. 260 (1941). The plaintiffs' only response to this argument is that they did not raise this point in their motion for summary judgment and that it is inappropriately addressed at this time. Since both sides are moving for summary judgment, the court cannot imagine just what the appropriate time to address this defense might be. What the court can conclude at this time is that the defendants have sufficiently raised issues of material fact regarding alleged abandonment by the plaintiffs and that this issue cannot be resolved by summary judgment. As for the plaintiffs' motion for partial summary judgment, then, the court reiterates its holding that the plaintiffs have met the first, second, and fourth requirements for the establishment of a prima facie case of a Nonintercourse Act violation. The court concludes, however, that further factual development is needed on the issues of ratification of the conveyances and the alleged abandonment by the plaintiffs of the land in question. II. The defendants' motions for summary judgment are premised on several grounds, which the court will attempt to address in order. The defendants' initial point is that the plaintiffs are barred, by the doctrine of election of remedies, from pursuing their Nonintercourse Act action in this court. In 1906, the Cayuga Nation of New York petitioned the State of New York, in the form of what is known as a memorial, for additional consideration for the land conveyed in 1795 and 1807. In 1913, a settlement was reached for approximately $247,600, 946 and a trust was established by the State on behalf of the Cayuga Nation. According to the defendants, that trust had a principal of over $433,000 in 1972. Further, in 1951, the Seneca-Cayuga Tribe of Oklahoma petitioned the Indian Claims Commission of the federal government (ICC or the Commission) for additional consideration for the 1795 and 1807 conveyances. In 1974, there was a trial on the liability issue which occurred after a lengthy litigation process that included an earlier trial and a remand by the United States Court of Claims. The ICC found in favor of the Seneca-Cayugas, and in 1975, a settlement was reached between that tribe and the federal government for just over $70,000. In 1977, the settlement was approved; in 1978, there was a final judgment incorporating the settlement; and in 1983, a fund distribution plan was approved by Congress. The defendants assert that each tribe has elected its remedy, and the plaintiffs cannot now come before this court for the proverbial "second bite of the apple."[5] The doctrine of election of remedies is given little, if any, validity in federal practice; see Carbone v. Gulf Oil Corp., 812 F.2d 1416, 1421 (T.E.C.A.1987); and under any circumstances is considered a harsh doctrine that is not favored. Quinn v. DiGiulian, 739 F.2d 637, 644 (D.C.Cir. 1984). In order to apply the doctrine, there must be: (1) the existence of two or more remedies; (2) the inconsistency of such remedies; and (3) a choice of one of them. Davis v. Rockwell International Corp., 596 F. Supp. 780, 787 (N.D.Oh.1984). What must not be lost sight of in this discussion is that any conveyance of land in contravention of the dictates of the Nonintercourse Act is invalid, as if it did not occur at all. Because either plaintiff tribe sought additional consideration for the land, or even received such consideration, does not place an imprimatur of validity on the conveyances. The receipt of additional monies is of no bearing on the issue of whether there was compliance with the Act. Therefore, even if the doctrine of election of remedies were generally accepted in federal practice, which it is not, the court concludes that it is inapplicable here. Neither plaintiff was afforded a true choice of remedies, as the receipt of additional consideration is no remedy at all for an invalid conveyance of land.[6] The court thus finds no merit to the defendants' argument based on the doctrine of election of remedies.[7] The defendants' next argument is that the court lacks subject matter jurisdiction over this action, because the Indian Claims Commission provided the exclusive forum to resolve disputes regarding the validity of the conveyances. The ICC, which is no longer in existence, was created by Congress to resolve Indian claims against the United States. 25 U.S.C. § 70a et seq. There is no mention in the statute of the Commission having any jurisdiction to hear claims against non-federal parties. In support of their argument, the defendants rely on three cases: Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. Homestake Mining Co., 722 F.2d 1407 (8th Cir.1983); Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. United States, 650 F.2d 140 (8th Cir.1981); and Navajo Tribe of Indians v. State of New Mexico, No. 82-1148-JB, slip op. (D.N.M. Jan. 23, 1984), aff'd, 809 F.2d 1455 (10th Cir.1987). These cases differ from the instant one in several respects. Most notable, though, is that the defendants in all three cases were the United States and other parties that derived their title to the land in question directly from the United 947 States. Those facts prompted the courts to hold that the ICC was the exclusive forum for the resolution of the disputes and, in Navajo Tribe of Indians v. State of New Mexico, that the United States was an indispensable party. Slip op. at 6. There is no question that, in the case sub judice, the defendants did not derive title to the disputed land directly from the United States, and there is no basis upon which to hold that the United States is an indispensable party.[8]See Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. at 544-45. The court in that case also stated that: A more important question, whether the Indian Claims Commission was created to provide an exclusive remedy for redress of wrongs to the Indian nations, was not raised by the defendants but deserves comment....The legislative history makes clear that the Commission was to consider only claims against the United States; no intent to supplant Indian claims against other parties, governmental or private, is evidenced. 434 F.Supp. at 531 n. 9.[9] The court therefore concludes that it does not lack subject matter jurisdiction over the instant action. The defendants further assert in support of their motions for summary judgment that the proceedings before the Indian Claims Commission served to create a preclusive bar to the action in this court. There are two main doctrines of preclusion, res judicata and collateral estoppel.[10] Res judicata has been defined as follows: The principle of res judicata bars a subsequent suit between the same parties or their privies where a prior action has resulted in a judgment on the merits of the same cause of action. Res judicata prevents the subsequent litigation of any defense or ground for recovery that was available to the parties in the original action, whether or not it was actually litigated or determined. Tucker v. Arthur Andersen & Co., 646 F.2d 721, 727 (2d Cir.1981); see also National Association of Pharmaceutical Manufacturers v. Department of Health and Human Services, 586 F. Supp. 740 (S.D.N.Y.1984). Clearly, none of the defendants in this district court action, nor their privies, were defendants in the ICC action.[11] Moreover, as the court has already concluded that the ICC was created to resolve claims against the United States, the plaintiffs could not have proceeded against non-federal defendants, at least not against those who did not derive title directly from the United States, in that forum. Therefore, res judicata does not serve as a bar to this federal court action.[12] While res judicata involves claim preclusion, collateral estoppel involves issue preclusion: The doctrine of collateral estoppel ... normally will bar the relitigation of an issue of law or fact that was raised, litigated, and actually decided by a judgment in a prior proceeding between the parties, if the determination was essential to the judgment, regardless of whether or not the two proceedings are based on the same claim. N.L.R.B. v. United Technologies Corp., 706 F.2d 1254, 1260 (2d Cir.1983). Additionally, 948 similarity between the issues is not sufficient; the issues must be identical. Shapley v. Nevada Board of State Prison Commissioners, 766 F.2d 404, 408 (9th Cir. 1985). The defendants maintain that because the ICC made some findings regarding the federal government's "involvement" with the 1795 and 1807 conveyances, the issue of federal ratification has already been decided. Regarding the 1795 treaty, the Commission merely found that the federal government had knowledge of New York State's intention to purchase land from the Cayugas and that the Cayugas complained to the federal government about the fairness of the treaty. The Cayuga Nation of Indians v. United States, Docket No. 343, 36 Ind.Cl.Comm. 75, 79 (1975). As for the 1807 treaty, the Commission found again that the federal government had knowledge of the treaty, and the Commission also found that a government representative was involved in the treaty negotiations and was present at the signing. Id. at 80. The court has already held that the development of a full factual record regarding the circumstances of the conveyances is in order. The findings of the ICC may eventually have some pertinence in that regard. Those findings, however, standing alone, do not support the conclusion that there was plain, unambiguous, and explicit ratification of either the 1795 or 1807 conveyance. The issue of federal government ratification was not before the ICC. It was not raised; it was not litigated; and it was not essential to the ICC's decision. Thus, collateral estoppel does not bar this court's determination of the issue of federal government ratification of the conveyances. Consequently, the court refuses to leapfrog to the next conclusion that the defendants would have it reach. The conclusion is that, because the 1807 treaty between the Cayugas and the State of New York has already been found "valid," then the 1795 treaty must be considered "valid" as well. The 1807 treaty has certainly not been found valid, and even if it were, the court is not convinced at this point in time that its validity would serve to automatically ratify the 1795 treaty. The defendants' final contention in support of their motions is that, because the Indian Claims Commission was created by Congress, and because it resolved the claim of the Seneca-Cayuga Tribe of Oklahoma for additional consideration, it ratified the 1795 and 1807 land conveyances. The defendants have again lost sight of the fact that federal ratification must be plain, unambiguous, and explicit. An award by the Commission need not be based on a finding of validity of the conveyances themselves.[13]See United States v. Oneida Nation of New York, 576 F.2d 870, 882 n. 26 (Ct.Cl.1978). Even if such a presumption of validity could be made, the ratification by the Commission would be implicit, not explicit. Further, that the Commission was created by Congress did not give it inherent ratification power. Such a contention was presented to the court in Oneida Indian Nation of New York v. County of Oneida, No. 79-7685 (N.D.N.Y. May 17, 1979). In refuting the contention, the court held that, had Congress wanted to provide the ICC with ratification power, it could have done so, but it did not.[14] Transcript at 74-97. The court agrees with that holding and finds no merit to the defendants' argument *949 regarding the ratification power of the Indian Claims Commission. Accordingly, for the reasons adduced in this opinion, the plaintiffs' motion for partial summary judgment and the defendants' motions for summary judgment are denied. Further proceedings will be limited to the issues of federal government ratification and alleged abandonment by the plaintiff tribes as discussed herein. IT IS SO ORDERED. NOTES [1] The court need not resolve any dispute at this time between the plaintiff and the plaintiff-intervenor as to who has the actual right to claim interest in the land in question. [2] As set forth in the court's earlier opinion in this case: [The Treaty of Canandaigua] acknowledged the Original Reservation retained by the Cayugas through their treaty of 1789 with New York State, and contained a promise by the United States that the land would remain theirs until the Cayugas "chose to sell the same to the people of the United States who have the right to purchase." Cayuga Indian Nation of New York v. Cuomo, 565 F. Supp. 1297, 1304-05 (N.D.N.Y.1983). [3] a group will be treated as a [tribe or a] "recognized" tribe if (a) Congress or the Executive has created a reservation for the group by treaty, agreement, statute, executive order, or valid administrative action; and (b) the United States has had some continuing political relationship with the group. Mashpee Tribe v. Secretary of Interior, 820 F.2d 480, 484 (1st Cir.1987) [citing F. Cohen, Handbook of Federal Indian Law at 6 (1982)]. The plaintiffs in the instant action meet the above-quoted test. [4] The plaintiffs argue that ratification cannot occur subsequent to the conveyances. However, that the Supreme Court, in Oneida County, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985), was examining language in 1798 and 1802 treaties to determine if there was any ratification of conveyances that occurred in 1795 lends strong support to the defendants' position that ratification need not occur contemporaneously with the conveyances. See id. at 246-48, 105 S. Ct. at 1258-59. [5] This election of remedies argument, on which one group of defendants in particular devotes a great deal of energy, differs little from an argument based on res judicata. [6] The defendants do contend that the Indian Claims Commission was in a position to rule on the validity of the conveyances and in fact did so, at least as to the 1807 conveyance. As will be discussed presently, this contention is not well taken. [7] Should the plaintiffs ultimately prevail on the issue of liability, that they received additional consideration for the land in question may become pertinent to the issue of damages. [8] The United States has filed an amicus brief in this action on the issue of tribal status of the plaintiffs. [9] The defendants maintain that the court's statement regarding the congressional purposes in creating the Indian Claims Commission was "merely" dicta. Dicta or not, this court agrees with the statement. [10] The defendants at times indiscriminately mix the doctrines of res judicata and collateral estoppel. [11] The Cayuga Nation of New York also argues that it was not in privity with the Seneca-Cayuga Tribe of Oklahoma in the Indian Claims Commission proceeding. The court concludes that there are open questions of fact in that regard, but that issue is irrelevant to the court's determination at this time. [12] The court also notes the existence of a statutory res judicata bar to Indian Claims Commission decisions. 25 U.S.C. § 70u(b); United States v. Dann, 706 F.2d 919, 923-25 (9th Cir. 1983), rev'd on other grounds, 470 U.S. 39, 105 S. Ct. 1058, 84 L. Ed. 2d 28 (1985). However, as that bar applies only to claims against the United States, it has no bearing in the instant case. [13] As noted, the additional consideration received by the Seneca-Cayuga Tribe of Oklahoma was not so much by award as by settlement. [14] The Supreme Court has made clear that it will examine congressional intent quite carefully when interpreting statutes that allow for the alienation of Indian land. In Mountain States Telephone & Telegraph v. Pueblo of Santa Ana, 472 U.S. 237, 105 S. Ct. 2587, 86 L. Ed. 2d 168 (1985), the Court had occasion to examine a statute that allowed for the alienation of Pueblo Indian land. That statute provides for approval by the Secretary of Interior. Notwithstanding that the remaining language in the statute is almost identical to that contained in the Nonintercourse Act, the Court noted that the difference between approval by the Secretary of Interior and ratification by Congress is "significant." Id. at 250-51, 105 S. Ct. at 2595-96.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902248/	12 B.R. 591 (1981) In the Matter of Arthur Samuel ROBINSON, and Lavonia Payne Robinson, Debtor. Bankruptcy No. 81-01750A. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. July 17, 1981. *592 William B.B. Smith, for International Harvester Credit Corporation. ORDER HUGH ROBINSON, Bankruptcy Judge. This matter comes before the Court on a petition for order authorizing abandonment and granting of relief from automatic stay filed by International Harvester Credit Corporation, a secured creditor of the debtor herein. Movant seeks the abandonment of a 1979 International Scout Truck (Manufacturer's I.D. No. J0062JGD28305) and for relief to be granted from the automatic stay imposed by 11 U.S.C. § 362(a). Motions, applications and petitions for relief from the automatic stay require notice and a hearing. 11 U.S.C. § 362(d). They are adversary proceedings under Rule 701(6) of the Bankruptcy Rules. In accordance with this rule it is the policy of the bankruptcy judges of this district that proceedings concerning the automatic stay be treated as adversary proceedings. See In re: Larry Eugene Hawkins, 8 B.R. 637 (1981, Bkrtcy.N.D.Ga.) (Drake, B.J.) and In re: Carmelo Tringali, Case No. 81-00628A (1981, B.C.N.D.Ga.) (Robinson, B.J.). Also, section 554(b) of Title 11 of the United States Code requires notice and a hearing before a Court may, on request of a party in interest, order the trustee to abandon property. A debtor should always be given notice of a petition for abandonment and an opportunity to be heard on his statutory right of redemption under 11 U.S.C. § 722. Also, possible holders of subordinate liens must be given notice and an opportunity to be heard on an application for abandonment. There is no indication that the petition has been served on debtor nor is there any indication that the debtor has waived his right of redemption. See In Re: Joseph Tribble, Case No. 81-00161A (1981, B.C.N.D.Ga.) (Robinson, B.J.). For the foregoing reasons it is ORDERED that the petition for order authorizing abandonment and granting relief from automatic stay with respect to certain property shall be and is hereby denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2614997/	69 Wash. App. 57 (1993) 847 P.2d 518 In the Matter of the Marriage of LINDA L. LELAND, Respondent, and CARL ROBERT LELAND, Appellant. No. 27617-4-I. The Court of Appeals of Washington, Division One. March 15, 1993. 58 Malcolm L. Edwards and Edwards, Sieh, Wiggins & Hathaway, P.S., for appellant. Richard H. Blacklow, Donald A. Mallett, and Mallett & Brown, for respondent. KENNEDY, J. Robert Leland appeals the trial court's characterization of such disability payments as he may receive after he reaches the age of 65 as pension benefits to be divided equally with his former spouse Linda Leland. We affirm. FACTS Robert and Linda Leland were married in July 1965. They separated in April 1989. Robert became fully disabled, as the result of a hereditary eye defect, in 1985. The defect is incurable and Robert's vision continues to deteriorate. He has been unemployed since 1985. He is not likely to become reemployed. He was 48 years old at the time of the trial. During the marriage the parties purchased three disability insurance policies, using community funds to pay the premiums. At the time of trial, Robert was receiving a monthly income of $7,435, from the following sources: $4,000 Prudential policy, payable for Robert's lifetime, so long as he remains disabled. 1,100 Massachusetts Mutual policy, payable until Robert is 65, so long as he remains disabled. 59 970 Massachusetts Mutual policy, payable until Robert is 65, so long as he remains disabled. 464 Social Security payment for the parties' daughter Kari (age 13 at the time of trial). 901 Social Security disability income. ______ $7,435 Total. Under current tax laws these monthly payments are tax free. The privately purchased insurance contracts do not provide for any increases for cost of living. All three policies contain premium waiver clauses while Robert remains disabled. All payments will cease at the time of Robert's death. Under the terms of the Prudential policy, had Robert become disabled after the age of 50, rather than before reaching that age, the payments would have ceased when he turned 65. Because he became disabled before the age of 50, the Prudential payments will continue for his lifetime, provided only that he remains disabled from all employment for which he is reasonably fitted by education, training and experience.[1] Linda Leland was 47 years of age at the time of trial. She served primarily as a homemaker during most of the marriage. In 1986, after taking some courses at Bellevue Community College, she commenced a career as a real estate agent and earned $9,700 that year. In 1989, which was an exceptional year for real estate sales in the Seattle area, she earned $26,000. Linda intends to remain in real estate sales. The trial court found that she is "fully qualified to make a fair income in this pursuit." At the time of trial, Linda's net monthly income was $1,725. The parties acquired certain real and personal community property having a net value of $280,000 at the time of trial. The trial court divided this property equally between the parties, noting that, if Robert had not been disabled and on 60 a fixed income, a disproportionate award in Linda's favor would have been justified.[2] The court characterized all of Robert's privately purchased disability income to be received until he is 65 as "income replacement" in which the marital community has no interest.[3] To the extent that Robert may receive income under the Prudential policy after he turns 65, the court characterized the payments as "pension" income in which the marital community retains an interest. Linda was awarded 50 percent of all such "pension" payments, the payments to be divided on a monthly basis as Robert receives them. Robert appeals, arguing that the monthly payments he may receive from Prudential after the age of 65 retain their character as disability income in which the marital community has no interest, as a matter of law. He also argues that, even if the trial court did properly determine that the post-age-65 disability insurance policy payments are in the nature of pension income, the trial court abused its discretion in awarding any portion to Linda. ARGUMENTS We first examine the Washington case law upon which each party has relied in arguing his and her positions. Case Law Presented by Robert In the case of In re Marriage of Kraft, 119 Wash. 2d 438, 832 P.2d 871 (1992),[4] the issue was whether the trial court 61 properly applied Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989), in its treatment of the husband's military disability pay as an asset of the community. In Mansell the United States Supreme Court ruled that, because the Uniformed Services Former Spouses' Protection Act excludes disability pay from "disposable retired or retainer pay",[5] the state courts may not treat military disability pay as property divisible upon divorce. In Kraft, the trial court reduced both the disability and the nondisability portion of Mr. Kraft's military pension to its present value and awarded Mrs. Kraft an offsetting share of the other available assets. Our State Supreme Court reversed the trial court, insofar as the disability pay had been treated as an asset, holding that it is improper under Mansell for a trial court to reduce military disability pay to present value for the purpose of awarding the nonretiree spouse a proportionally greater share of the community property. Kraft, 119 Wn.2d at 448. In the case of In re Marriage of Brown, 100 Wash. 2d 729, 675 P.2d 1207 (1984), the issue was whether a potential recovery in tort for a spouse's personal injuries suffered during marriage is to be characterized as community property at the time of a marital dissolution proceeding. In the early case of Hawkins v. Front St. Cable Ry., 3 Wash. 592, 28 P. 1021 (1892), the court determined that a claim for personal injury to a married person by a third party tortfeasor is community property. The Brown court overruled Hawkins and its progeny, holding, instead, that such a claim is not community property as defined in RCW 26.16.030 because the claim is not property "acquired" during marriage. [W]e believe that the word "acquired" should be construed to encompass wages and other property acquired through the toil, talent, or other productive faculty of either spouse, but not compensation for personal injury. Such a construction is consistent with the basic principle that, except for gifts to the community, community property consists only of that which is acquired by onerous title, or in exchange for other community property. (Citations omitted.) Brown, 100 Wn.2d at 737. 62 The Brown court reasoned further that, if such a recovery in tort is not community property, it should partake of the same character as that which has suffered the injury or loss. Thus, damages for physical injury and pain and suffering, which compensate the injured spouse for the harm to his or her separate individuality, should be separate property. Damages for injury-related expenses should be community or separate according to which fund incurs the expenses. Similarly, damages for lost wages and diminished earning capacity should partake of the same community or separate character as the wages and earning capacity they are intended to reimburse or make whole. Brown, 100 Wn.2d at 738. Finally, Robert relies upon the case of In re Marriage of Anglin, 52 Wash. App. 317, 759 P.2d 1224 (1988). In Anglin, the issue was whether the husband's LEOFF 1[6] disability award was for lost future wages or whether the award was community property. The Anglin court noted that, under RCW 41.26.120, the disability allowance was available regardless of vesting.[7] Unlike a retirement benefit, a LEOFF 1 disability award is subject to periodic review. Until the disabled employee is 50, he or she is subject to periodic medical examinations to determine whether the disability continues. After age 50, the medical examinations cease, and the disabled employee will then receive disability benefits or retirement benefits, whichever is greater, for the remainder of his or her lifetime. RCW 41.26.130. Because Mr. Anglin was under the age of 50, the court held that the disability award was based solely on his disability, rather than being in the nature of a retirement benefit. Accordingly, the benefit was for lost future (postdissolution) wages and was not a marital asset to be distributed by the trial court. That the parties had executed a statutory, 3-pronged community property agreement did not change the result, as such an agreement has no application to wages 63 after a divorce, or to compensation in lieu of such postdissolution wages. Anglin, 52 Wn. App. at 324. Robert argues that Kraft, Brown and Anglin, taken together, stand for the proposition that disability payments received after marital dissolution are the separate income of the disabled person, as a matter of law, and may not be divided as property in a dissolution proceeding, regardless of the source of such payments. Because the disability payments will end if Robert should overcome his disability and return to full employment, Robert also appears to argue that the future payments he may receive are a mere expectancy. In Washington law a mere expectancy does not rise to the level of a property right. Freeburn v. Freeburn, 107 Wash. 646, 182 P. 620 (1919). The disability benefit in Anglin was a fringe benefit of employment during marriage and thus, Robert argues, it was acquired with community labor. Therefore, it should make no difference that the payments in this case were acquired by virtue of premiums paid with community funds. Robert also argues that the post-age-65 payments from Prudential share no attributes of a retirement plan which is, in Robert's words, "the equivalent of a savings plan where contributions are made during a person's work life to be repaid with accumulated earnings after a person retires." Brief of Appellant, at 14. Case Law Presented by Linda In Ross v. Pearson, 31 Wash. App. 609, 643 P.2d 928, review denied, 97 Wash. 2d 1030 (1982), a divorced wife sought partition of the disability payments which her former husband was receiving at the time of the divorce. During marriage, the parties contracted for disability insurance on the husband through Crown Life and Safeco Insurance Companies. During marriage, the husband became permanently disabled and began to receive monthly payments. In 1977 the parties were divorced. The decree failed to dispose of the disability payments. In 1979, the wife sought to receive half of the payments which had been received by the husband 64 during the period since the divorce and half of all future payments. The trial court so decreed. This court affirmed, relying upon Chase v. Chase, 74 Wash. 2d 253, 444 P.2d 145 (1968). In Chase, the Supreme Court wrote: Insurance proceeds in this state are property and not mere expectancies or choses in action, and, if the premiums are paid with community funds, the insurance proceeds are community property. Chase, 74 Wn.2d at 257. In Ross v. Pearson, supra, this court wrote: "The disability insurance is a matter of contract." 31 Wash. App. at 612. The marital community's property right in the disability payments arose from its contractual right to enforce the terms of the policy.[8] In Aetna Life Ins. Co. v. Wadsworth, 102 Wash. 2d 652, 689 P.2d 46 (1984), the Supreme Court held that the character of the proceeds of a term life insurance policy is determined by the character of the funds used to pay the premium for the coverage which is in force at the date of the insured's death. Accord, Aetna Life Ins. Co. v. Bunt, 110 Wash. 2d 368, 754 P.2d 993 (1988). Linda also relies upon the underlying community property principles which guided the court in In re Marriage of Kittleson, 21 Wash. App. 344, 585 P.2d 167 (1978), review denied, 92 Wash. 2d 1009 (1979). In Kittleson this court divided a military pension having components of both military disability pay and military retirement pay, noting that it is not necessary "in all cases" that the trial courts "unwind" the complex interrelationship between that which, in any given pension plan, may share attributes of regular retirement pay and disability pay. Kittleson, 21 Wn. App. at 353. The Kittleson court recognized that, although military disability 65 pay is intended in part to compensate a veteran for his diminished ability to compete for civilian employment, RCW 26.09.080 provides a wise and flexible guideline for adjusting such considerations, so as to reach an equitable result. Kittleson, 21 Wn. App. at 347, 351-53.[9] Linda argues that the cases cited by Robert are inapposite. Kraft is directed to the issue of such powers as may remain in the state courts to consider military disability pay in view of a specific, preemptive federal statute. Brown deals with the character of tort claims, whereas insurance coverage arises from contract and it has long been the law in Washington that the proceeds of an insurance contract share the character of the funds from which the relevant premium is paid. Anglin dealt with the character of a disability award which is based on a specific state statute, the purpose of which is to enable law enforcement officers and firefighters, public employees who are in inherently dangerous professions, to provide for themselves and their dependents in case of disability or death. RCW 41.26.020; Anglin, 52 Wn. App. at 322. Linda argues further that a privately purchased disability insurance contract is more akin to a term life insurance policy than it is to a publicly funded disability program. Just as married parties may elect to purchase insurance coverage which protects the family from economic loss in the event of a family breadwinner's death, they may elect to insure against the economic losses which will occur if a breadwinner becomes disabled before he or she is able to acquire substantial retirement benefits. She argues that, in a sense, both pension plans and disability policies are purchased to provide for "wage replacement". A pension plan is acquired during marriage with community funds and/or community labor to replace wages which will be lost when the employee spouse retires. A 66 disability policy is acquired during marriage with community funds and, in the case of employee fringe benefits, with community labor, to replace wages which will be lost if the employee spouse becomes disabled during what otherwise would be his or her productive employment years. A married couple ought to be able to purchase a disability policy which provides both a contingent "disability" plan and a contingent "pension" plan. Linda argues that the Prudential policy at issue here is exactly that kind of insurance contract. It is not a complex process to distinguish between the two kinds of coverage: the disability portion insured Robert's wages before the age he would normally retire; the pension portion protected the marital community after Robert's normal retirement age. Robert argues that Ross v. Pearson, supra, Chase v. Chase, supra, and those rationales in Kittleson which may have survived the changes in federal law relating to military pensions have been implicitly overruled by In re Marriage of Brown, supra.[10] DISCUSSION We find In re Marriage of Kraft, supra, to be of little relevance to the issue in this appeal. Kraft does not change the principles of Washington community property law. It merely reflects the extent to which those principles must give way, in view of Mansell v. Mansell, supra, when the subject is military disability pay. In Mansell, the United States Supreme Court determined that Congress intended to preempt state community property laws with respect to the treatment of military disability pay. Mansell, 490 U.S. at 594-95. Our Supreme Court's decision in Kraft was handed down after the parties briefed the instant appeal. Robert relied 67 heavily in his brief upon the following passage from the Court of Appeals' decision in Kraft: Even before Mansell, under Washington law Mr. Kraft's disability benefits were in the nature of compensation for loss of future wages and should be considered to be Mr. Kraft's individual property. See In re Marriage of Anglin, 52 Wash. App. 317, 320-25, 759 P.2d 1224 (1988). Such compensation for loss of future wages is not an asset which can be used to offset other assets, but should only be considered as affecting Mr. Kraft's ability to pay spousal maintenance or child support. It is clear from In re Marriage of Huteson, 27 Wash. App. 539, 541-43, 619 P.2d 991 (1980) that loss of future income is not a community asset to be divided on a present value or any other basis. (Footnote omitted. Italics ours.) In re Marriage of Kraft, 61 Wash. App. 45, 49, 808 P.2d 1176 (1991). In her petition for review, Mrs. Kraft argued to the Supreme Court that, by its use of the term individual property, the Court of Appeals "impermissibly usurped legislative power by defining a new class of `individual' property which is not subject to the rules for distribution of property on dissolution of marriage." Kraft, 119 Wn.2d at 451. The Supreme Court disagreed that this was so: The court stated that it was calling the disability pay "individual property" simply to dispel any idea that military disability pay is subject to division as separate property. Kraft, [61 Wn. App.] at 49 n. 2. The Court of Appeals explained that it wanted to avoid use of the term "separate property" in reference to the retirement pay because disability pay may be community property when received during marriage and may be separate property when received outside the marriage. Kraft, [61 Wn. App.] at 49 n. 2. The court was not creating a new class of property. Kraft, 119 Wn.2d at 451. Thus, our Supreme Court appears to have modified the lower appellate court's sweeping statement that "compensation for loss of future wages is not an asset" which can be divided, Kraft, 61 Wn. App. at 49, into a less sweeping observation that disability pay "may be" separate property when received outside of marriage. Kraft, 119 Wn.2d at 451. Certainly the Supreme Court has not foreclosed the possibility that a marital community might, in some circumstances, acquire a property interest in compensation for lost 68 future wages of a spouse, outside the context of military disability pay. In re Marriage of Brown, supra, does not control the issue in this appeal. A tort recovery for a married person's lost future (postdissolution) wages is no longer treated as community property in Washington because such a tort recovery is not property "which is acquired by onerous title, or in exchange for other community property." Brown, 100 Wn.2d at 737. We deal here with an insurance contract purchased privately with community funds and enforceable by the marital community. The community character of such contractual benefits as are being paid in this case has not heretofore been questioned in Washington law. In re Marriage of Anglin, supra, provides the most support for Robert's position, for in Anglin a panel of this court held that the husband's LEOFF 1 disability award was based solely on his disability and, therefore, was properly treated solely as a compensation for lost future (postdissolution) wages. As such, the award was not a marital asset to be characterized and distributed by the trial court. As Robert points out, the disability award was a benefit of the husband's employment. Unlike the disabled spouse in In re Marriage of Huteson, 27 Wash. App. 539, 619 P.2d 991 (1980), Mr. Anglin was fully vested in the LEOFF retirement system (although vesting is not a prerequisite of a LEOFF disability award). As can be seen from the Court of Appeals' decision in Kraft, 61 Wash. App. 45, Anglin has been interpreted as authority for the sweeping proposition that compensation for lost future (postdissolution) wages can never be treated as divisible property in a marital dissolution proceeding. As implied in Kraft, 119 Wn.2d at 451, however, such a sweeping proposition may go too far. Indeed, the Anglin court did not, itself, foreclose inquiry, in the appropriate case, as to whether a given disability award may encompass a retirement component. This court has had occasion to consider the ramifications of Anglin as applied to the question of whether The Boeing Company Financial Security Plan (FSP) (allowing employees 69 to bank up to 40 hours of unused sick leave per year for use in the event of a serious illness or to receive in dollar value upon death or retirement) is an asset subject to distribution in a marital dissolution proceeding: In the context of disability benefits, our courts have held that disability payments which are in the nature of compensation for lost future wages are not an asset for distribution upon dissolution. In re Marriage of Kraft, 61 Wash. App. 45, 49, 808 P.2d 1176, [aff'd on other grounds, 119 Wash. 2d 438, 832 P.2d 871 (1992)]; In re Marriage of Anglin, 52 Wash. App. 317, 324, 759 P.2d 1224 (1988); In re Marriage of Huteson, 27 Wash. App. 539, 543-44, 619 P.2d 991 (1980). By contrast, retirement benefits are considered deferred compensation for past services, and thus the portion of those benefits accrued during marriage is community property. In re Marriage of Kittleson, 21 Wash. App. 344, 348, 585 P.2d 167 (1978), review denied, 92 Wash. 2d 1009 (1979); Huteson, 27 Wn. App. at 542. However, some disability pensions may substitute for regular retirement pensions or contain elements attributable to retirement pensions. Kittleson, 21 Wn. App. at 353. Where a spouse has elected to receive disability in lieu of retirement benefits, for instance, only the amount of disability received over and above what would have been received as retirement benefits is considered that spouse's separate property. Anglin, 52 Wn. App. at 323 (citing In re Marriage of Saslow, 40 Cal. 3d 848, 860-61, 221 Cal. Rptr. 546, 710 P.2d 346, 351-52 (1985)); Kittleson, 21 Wn. App. at 351 (quoting In re Marriage of Mueller, 70 Cal. App. 3d 66, 70-71, 137 Cal. Rptr. 129 (1977)); see also Kraft, 61 Wn. App. at 45. The FSP contains elements of both deferred compensation and future earnings replacement. It is similar to vacation leave (which is definitely deferred compensation) in that it converts unused sick leave into something akin to vacation leave, which may be used as needed in the event of future illness, or else taken in cash upon termination of employment. We uphold the trial court's characterization of the FSP as an asset for distribution, and find no abuse of discretion in its award of that asset to [the employee spouse]. In re Marriage of Nuss, 65 Wash. App. 334, 343-44, 828 P.2d 627 (1992). In short, none of the cases upon which Robert has relied for this appeal persuade us that the trial court erred in characterizing the post-age-65 payments provided under the Prudential policy as "pension" payments and subject to division as community property. 70 Turning now to the cases upon which Linda has relied, Chase v. Chase, supra, and Ross v. Pearson, supra, would appear, at first reading, to justify a ruling in her favor, without further analysis. However, a closer examination of Chase reveals that it rested, in part, upon two earlier cases which have been overruled, in part, by our State Supreme Court: Occidental Life Ins. Co. v. Powers, 192 Wash. 475, 74 P.2d 27, 114 A.L.R. 531 (1937) and Small v. Bartyzel, 27 Wash. 2d 176, 177 P.2d 391 (1947), cited in Chase, at 257. Ross v. Pearson, supra, was premised upon the validity of Chase. Powers was overruled, in part, in Francis v. Francis, 89 Wash. 2d 511, 573 P.2d 369 (1978). Small was overruled, in part, in Aetna Life Ins. Co. v. Wadsworth, 102 Wash. 2d 652, 689 P.2d 46 (1984). The Chase court relied upon Powers and Small for the following proposition: Insurance proceeds in this state are property and not mere expectancies or choses in action, and, if the premiums are paid with community funds, the insurance proceeds are community property. [Citing Powers.] A community which pays the premiums on a group policy of life insurance acquires a property right in the insurance proceeds. [Citing Small.][[11]] Chase, 74 Wn.2d at 257. The Supreme Court's ruling in Francis did not change the premise of Powers upon which the Chase court relied. See Francis, 89 Wn.2d at 515. In Wadsworth, however, the Supreme Court stated: One criticism of Powers revolves around its characterization of the designation of a life insurance beneficiary as a present property interest rather than an expectancy. Where the policy owner has the right to change the beneficiary, the named beneficiary has no vested right in the nomination. Even if the insured cannot change the beneficiary, the beneficiary's interest is not indefeasibly vested so long as there remain premiums to be paid. Thus, the characterization [in Powers] of the 71 right to proceeds as a present property interest rather than an expectancy is wrong. (Citations omitted.) Wadsworth, 102 Wn.2d at 656.[12] [1] The Prudential policy at issue here contains a premium waiver provision. So long as Robert remains disabled, no premiums are due. We hold that Robert's right to continue to receive payments is more than a mere expectancy. It is a vested right, contingent only upon his remaining disabled. The fact that a contractual right is contingent upon future events does not degrade that right to an expectancy. The law has long recognized that a contingent future interest is property no matter how improbable the contingency; an expectancy, on the other hand, "is not to be deemed an interest of any kind." (Citations omitted.) In re Marriage of Brown, 15 Cal. 3d 838, 846 n. 8, 544 P.2d 561, 566, 126 Cal. Rptr. 633 (1976), cited in Washington State Bar Ass'n, Community Property Deskbook § 3.24, at 3-27 (2d ed. 1989). Cf. DeRevere v. DeRevere, 5 Wash. App. 741, 491 P.2d 249 (1971); Wilder v. Wilder, 85 Wash. 2d 364, 534 P.2d 1355 (1975) (a contingent interest in a deferred compensation plan is property). We find nothing in Francis or Wadsworth which undermines the validity of Chase and Ross v. Pearson, supra, insofar as it may be appropriate to treat a disability insurance policy in the same manner as a term life insurance policy, for purposes of determining the ownership of such a policy and its proceeds. That there may be a distinction between these two types of policies is an issue which was not addressed in Chase or in Ross v. Pearson, supra. Both cases 72 rest upon the unstated assumption that there are no distinctions to be considered.[13] We now address the question of whether a disability insurance policy is properly treated in the same manner as a term life insurance policy for purposes of characterizing the ownership of the policy proceeds. Certainly the two types of policies share some common characteristics. Both are contracts and historically a right of contract enforcement is a property interest. Both insure against the risk of economic loss, although in the case of life insurance there also may be donative intent of a testamentary nature. Neither type of policy, in its pure form, accrues cash value. Both types of policies insure against a stated risk for a specified policy period. Both types of policies may be expected to return, in the event of the happening of the contingency insured against (death or disability while the policy is in force), a far greater return than merely the amount invested, together with interest thereon. Both types of policies require the payment of money in exchange for the benefit provided. An insurance policy of any kind is onerously acquired, in exchange for the payment of funds. There are some differences, as well, primarily with respect to the nature of the risk involved. A disability policy is designed to protect against the risk of loss of the insured's future earning capacity. Earning capacity is not a divisible asset, although it is a factor to be considered when dividing the community and separate property in a dissolution proceeding. In re Marriage of Hall, 103 Wash. 2d 236, 247-48, 692 P.2d 175 (1984). An able-bodied spouse leaves a dissolved marriage with his or her earning capacity intact, and his or her former spouse has no property interest in that earning capacity. A disabled spouse leaves a dissolved marriage with his or her earning capacity impaired or nonexistent. His or 73 her ability to acquire assets in the future, by means of employment, is likewise impaired or nonexistent. Certainly it can be argued rationally that, by purchasing disability insurance, a married couple insures against various risks, some of which are based on "divisible property" interests and some of which are based on other financial considerations. The risk of economic loss to the marital community (lost earnings during marriage; lost opportunity to acquire pension benefits during marriage) is based entirely upon divisible property interests. The risk that, in the event of a marital dissolution, an able-bodied spouse may be required to pay spousal maintenance for the support of a disabled spouse and the risk that a disabled spouse otherwise may be unable to meet his or her obligations for spousal and child support and for community debt service are based at least in part upon other financial considerations not usually treated as property interests. [2-4] In this case of Leland, we need not decide whether the marital community acquired a property interest in the disability payments which Robert will receive before he turns 65. The trial court's determination that no such property interest was acquired is the law of this case. We need only decide whether the marital community acquired a property interest in such payments as Robert will receive if he remains disabled and survives beyond the age of 65. We hold that the trial court did not err in characterizing the post-age-65 payments as in the nature of a "pension" in which the marital community retains an interest. This is an equitable result, and one which does no violence to underlying concepts of Washington community property law as it applies to the proceeds of insurance policies purchased with community funds. We are guided in our analysis by the decision of the California Supreme Court in In re Marriage of Saslow, 40 Cal. 3d 848, 710 P.2d 346, 221 Cal. Rptr. 546 (1985), taking into consideration, however, some fundamental differences between California community property law and Washington community property law. 74 In Saslow, during an 18-year marriage, the husband purchased three disability insurance policies, using community funds to pay the premiums. During the marriage the husband became disabled and commenced to draw disability benefits under all three policies. The policies expired at various times. At the time of trial, the husband, who was then 59 years old, was receiving $2,181 per month. At his age 60, the payments would reduce to $1,881 per month. At his age 70, the payments would reduce to $631 per month. At his age 75, the payments would reduce to $506 per month and continue at that level for the remainder of his lifetime. Under California Civil Code § 4800(a), cited in Saslow, at 857 n. 4, community property must be divided equally, regardless of any equitable considerations.[14] The California court determined that the most equitable approach would be to treat the disability benefits as separate property insofar as they were intended to replace postdissolution earnings which would have been the separate property income of the disabled spouse, and to treat the benefits as community property insofar as they were intended to provide retirement income. Saslow, at 860-61. The California Supreme Court remanded to the trial court for a factual determination of the parties' intent as to the disability and retirement components of the policies at issue. Saslow, at 860-62. Although we agree with the California court's determination of the most equitable result, we believe that the character of the type of insurance proceeds at issue here is, in Washington, a question of law. Absent a valid contract between the parties declaring otherwise, all property "acquired" during marriage that is not otherwise defined as separate property by statute is per se community property. RCW 26.16.030; In re Marriage of Brown, 100 Wn.2d at 737. The post-age-65 payments at issue here were onerously acquired by virtue of an enforceable contract between the marital community and Prudential Insurance Company, with the payment of community 75 funds. The parties elected to insure against the risk of economic loss in the event of Robert's disability. Robert became disabled before the age of 50 and before the marital community had acquired any pension benefits. The Prudential policy provides for monthly payments in lieu of the pension benefits the parties might otherwise have acquired. The risk the parties insured against came to pass during the period for which the marital community had paid the premiums due. We believe that the risk payment theory adopted in Wadsworth is properly applied to the Prudential policy at issue here. We deem it irrelevant that the post-age-65 Prudential payments do not represent "deferred compensation" or that the payments do not meet the definition of retirement benefits under ERISA[15] or other applicable pension laws. The payments at issue here clearly provide an income that bears a strong resemblance to a pension benefit. We hold that the trial court did not err in determining that the "pension" component of the Prudential policy is divisible community property. [5] We also hold that the trial court did not abuse its discretion by dividing the post-age-65 payments equally between the parties, on a monthly basis, as they are received. Although the Prudential policy provides a fixed income that will not increase with inflation, it is a tax-free income. This factor offsets the fixed nature of the benefit. Robert's postdissolution obligations to his family will be completed no later than 9 years from the time of trial. His obligations to Ryan have already terminated. His obligations to Linda will terminate in a year from now. Linda shares in the obligation for Kari's support and education. Although Linda may be able to acquire some retirement benefits through her own employment, her earning capacity is only "fair". The trial court did not characterize her earning capacity as "good" or "excellent". The trial court determined that, but for Robert's disability and the fact that his income is fixed, Linda would have been *76 entitled to a disproportionate property award in her favor. There was no abuse of discretion. ATTORNEY FEES [6] Linda seeks to be awarded her attorney fees for defending this appeal pursuant to RAP 18.1 and RCW 26.09.140. The trial court awarded a portion of Linda's attorney fees, based on need and ability to pay. However, Linda has failed to comply with RAP 18.1(c) by filing an affidavit of financial need no later than 10 days prior to oral argument. Accordingly, we decline to consider an award of fees. CONCLUSION We affirm the trial court's property award and decline to award attorney fees to respondent. WEBSTER, C.J., and BAKER, J., concur. Review denied at 121 Wash. 2d 1033 (1993). NOTES [1] Robert is a college graduate who is trained as a CPA and who operated several businesses prior to becoming disabled. [2] The court set the child support for Kari, who will reside primarily with her mother, at $1,300 a month in accord with the presumptive schedule. Linda was awarded spousal maintenance of $1,600 a month for 3 years. Robert was required to pay $7,500 toward Linda's attorney fees. Robert was also required to contribute toward the college education expenses of the parties' 21-year-old son Ryan, who had another year and a half to go for the completion of his college degree, as of the time of trial. The parents were made jointly responsible for the college education expenses of Kari and for Kari's continued attendance at the private school which she was attending at the time of trial. [3] Linda has not cross-appealed this ruling. Accordingly, it is the law of the case in this appeal. [4] The Court of Appeals decision in Kraft is found at 61 Wash. App. 45, 808 P.2d 1176 (1991). [5] 10 U.S.C. § 1408(a)(4)(B) (1988). [6] Law Enforcement Officers' and Fire Fighters' Retirement System Plan 1, governed, for purposes of Anglin, by former RCW 41.26. [7] Mr. Anglin was fully vested in the system at the time of trial. [8] Although the court noted in Ross v. Pearson, supra at 611, that the parties had executed a statutory, 3-pronged community property agreement during their marriage, the decision is based on the character of insurance proceeds which are purchased with community funds and the marital community's property right in the insurance proceeds. That community character and the nature of the property right were not changed by the separation and divorce. The existence of the community property agreement was irrelevant to the issue decided. [9] Kittleson was decided prior to the United States Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728 (1981). In the Uniformed Services Former Spouses' Protection Act of 1988, Congress devised a means of defining and distinguishing between military retirement pay and military disability pay. [10] In Brown, 100 Wn.2d at 739, the Supreme Court overturned one of the underlying rationales upon which the Kittleson court had relied, namely the Hawkins rule that a claim for personal injury to a married person by a third party tortfeasor is community property. See Kittleson, 21 Wn. App. at 348, 353. Chase and Ross v. Pearson, supra, sound, on the other hand, in contract law. In Chase the payments at issue were compared with retirement benefits. See Chase, 74 Wn.2d at 258. [11] In Chase, the husband, a Boeing employee, received a lump sum disability settlement from Aetna Life Insurance Company, pursuant to a group policy provided as a benefit of his employment and paid for, in part, by payroll deduction during marriage. The trial court's award of one-half the benefit to the wife was affirmed on appeal. [12] The Wadsworth court also overruled Small, insofar as Small had determined that the proceeds of a term life insurance policy should be characterized by the apportionment rule, under which ownership of an insurance policy or its proceeds is separate or community property in proportion to the premiums paid. Term insurance has no cash surrender value. Premiums purchase protection from the economic risk of death for a fixed period of time. At the end of that period, there is no asset remaining. The Wadsworth court adopted the risk payment theory, in place of the apportionment theory, for purposes of determining the community or separate character of the proceeds of a term life insurance policy. Wadsworth, 102 Wn.2d at 657-58. [13] In addition, both cases arise from postdecree partition actions, where the appropriate remedy is an equal division of property owned by tenancy in common. An equal division of community property is not required by RCW 26.09.080. Nor was an equal division required under the predecessor statute, former RCW 26.08. [14] Compare RCW 26.09.080, which requires an equitable but not necessarily an equal division of community and/or separate property. [15] Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615006/	847 P.2d 1385 (1992) In the Matter of the REINSTATEMENT OF Scott William KATZ to Membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 3785. Supreme Court of Oklahoma. December 8, 1992. Scott William Katz, pro se. Dan Murdock, Gen. Counsel, Oklahoma Bar Ass'n, Oklahoma City, OK, for respondent Oklahoma Bar Ass'n. HODGES, Vice Chief Justice. On June 26, 1986, the applicant, Scott William Katz, was disbarred from the Florida State Bar for three years. On August 13, 1986, the Florida Supreme Court issued an order of disbarment for three years. The record does not show whether the second disbarment ran concurrently with the first. Also the record does not show Katz' current standing with the Florida State Bar. In the Florida Supreme Court's order of disbarment, it agreed with the referee's findings that: 2. In Count I, he [Katz] must be presumed to have divulged secrets of his client's to the client's adversary. 3. In Count II, he outrageously and successfully pressured his client to wrongfully agree to pay him money when his client had no legal obligation to do so. Certainly moral extortion if nothing else. 4. He deliberately lied under oath to a Federal Judge who relied upon such falsehood in issuing the order.... 1386 Based on the Florida disbarment proceedings, disbarment proceedings were initiated in Oklahoma. After this Court issued a show cause order to which Katz failed to timely respond, an order issued on August 13, 1986, disbarring the applicant from the practice of law and ordering his name be struck from the roll of attorneys in Oklahoma. On July 29, 1988, Katz filed a petition for reinstatement with this Court. On September 20, 1989, this Court issued an order dismissing the petition. The order cited rule 11.1(e) of the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1-A (1981), and stated that the "[a]pplication for reinstatement after disbarment shall not be permitted within five (5) years following the effective date of the disbarment order." On April 16, 1990, Katz asked the Oklahoma Bar Association (OBA) to ascertain the date upon which he could apply for reinstatement. The OBA responded that Katz would not be eligible for reinstatement until February 19, 1992, and quoted rule 11.1(e) in the response. On June 10, 1991, Katz requested that the OBA send him the forms for his reinstatement. The OBA once again responded that he would not be eligible to apply for reinstatement before February 19, 1992. Even after this Court's order dismissing his petition for reinstatement and two letters from the OBA, Katz prematurely submitted another petition for reinstatement on December 23, 1991. He stated under case law he could file the petition before February 19, 1992. Katz has continually repeated this argument. However, he has yet to cite any supporting authority. On February 24, 1992, this Court again dismissed Katz' petition as premature. In March 1992, Katz filed a Verified Petition for Reinstatement which is the basis of these proceedings. On June 1, 1992, a hearing was held before the Professional Responsibility Tribunal (PRT). About 10:10 a.m., the PRT recessed for a short break and announced it would resume at 10:15 a.m. When the PRT resumed at 10:15, Katz had left the hearing without informing the panel and did not return. The PRT graciously allowed Katz to submit an explanation for his leaving the hearing and any additional facts. The PRT did not make its report until after Katz had responded. In its report, the PRT found that Katz had not met his burden of proof for reinstatement. We agree. An applicant for reinstatement must prove by clear and convincing evidence that "the applicant's conduct will conform to the high standards required of a member of the Bar." Rule 11.4, Rules Governing Disciplinary Proceeding, Okla. Stat. tit. 5, ch. 1, app. 1-A (1991). "An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time." Id. The PRT is required to make the following specific finding: (1) whether the applicant possesses good moral character, (2) whether the applicant has engaged in the unauthorized practice of law during the period of disbarment, and (3) whether the applicant has maintained the necessary level of competence. Id. at Rule 11.5. The PRT found: (1) Katz had not met his burden of proof in showing he possessed good moral character; (2) It was unnecessary to determine if Katz had engaged in the unauthorized practice of law since he had not complied with the Rules Governing Disciplinary Proceedings; and (3) Katz had not shown that he was competent. The only evidence that Katz presented that he possessed good moral character was his own testimony. This alone is insufficient to establish by clear and convincing evidence that Katz is possessed with good moral character. See In re Reinstatement of Floyd, 775 P.2d 815 (Okla. 1989); In re Reinstatement of Cook, 772 P.2d 918 (Okla. 1989); In re Reinstatement of Elias, 759 P.2d 1021 (Okla. 1988); In re Application of Daniel, 315 P.2d 789 (Okla. 1957). In fact the overwhelming evidence was that Katz does not possess the requisite moral character. After Katz filed his petition for reinstatement, the OBA, as part of the investigation, 1387 sent notices to take the depositions of several witnesses. After the notices to take the depositions were sent, Katz sent several of the witnesses letters. In the letters, he stated: You are hereby notified that you should bring your lawyer with you to the deposition scheduled on Wednesday, April 28, 1992. I have a full file on you which clearly shows either misconduct on your part or on the part of some of your employees. ..... Furthermore, if you commit perjury or admit to improper conduct involving any of the cases which I have been involved with you in the past, I will file suit against you. ..... In short, you should be prepared to discuss a lot of matters which relate to your misconduct and which relate to your illegal and unethical conduct. Hopefully, after all is said and done, you will be removed from office or you will be disbarred from the practice of law. We find these letters to be intimidating and an attempt to discourage the witnesses from testifying. Even after Katz' attempts to discourage the witnesses from testifying, several testified that they did not believe that he should be reinstated to the practice of law. Mr. Daniel Bakst, an attorney in bankruptcy; Mr. Winton J. Patterson, chief investigator for the Florida State Attorney's Office; Mr. Michael Loffredo, Special Agent Supervisor with the Florida Department of Law Enforcement; Judge James Thomas Carlisle, Circuit Judge in Florida; Judge Richard Burk, Circuit Judge of the Fifteenth Judicial Circuit in and for the Palm Beach County, State of Florida; Judge Jack Cook, Circuit Court Judge in the Fifteenth Judicial Circuit for the State of Florida; and Judge Edward Fine, a Circuit Judge in Palm Beach County, Florida, all testified that in their opinions Katz should not be reinstated to the practice of law. Not one witness testified that Katz had the good moral character necessary for reinstatement. The PRT found that it was unnecessary to determine if Katz had engaged in the unauthorized practice of law because he had failed to comply with rule 11.1 of the Rules Governing Disciplinary Proceedings. During the period that Katz was disbarred, he was arrested and pled no contest to a charge of "practicing law while disbarred." Katz testified that he had not engaged in the unauthorized practice of law during his disbarment. Katz has represented himself and his own interests in at least sixteen lawsuits since his disbarment. Like the PRT, we find it unnecessary to make a finding that this conduct constituted the unauthorized practice of law because Katz did not comply with the Rules Governing Disciplinary Proceedings by demonstrating by clear and convincing evidence that he had not engaged in the unauthorized practice of law. Rule 11.1 requires that an applicant for reinstatement submit "affidavits of the court clerks in the several counties in which he has resided, establishing that the applicant has not practiced law in their respective courts" during the disbarment. Katz submitted an affidavit from a court clerk in Arkansas. However, although Katz has resided in Palm Beach County, Florida, he has not submitted an affidavit from that county's court clerk. In fact, that court clerk refused to sign such an affidavit. No other evidence was presented to show that Katz had not engaged in the unauthorized practice of law during his disbarment. Therefore, Katz has not shown by clear and convincing evidence that he has not engaged in the unauthorized practice of law during the relevant time period. The PRT also found that Katz had not maintained the necessary knowledge and competence to practice law. This finding is used to determine whether an applicant must take the bar examination after it has been determined that he possesses the necessary standards for readmission. Therefore, we need not address this factor. In addition to the factors considered by the PRT, this Court will consider the following *1388 in determining whether an applicant should be reinstated: the petitioner's demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession, [2] the extent of petitioner's rehabilitation, [3] seriousness of the original misconduct, [4] conduct subsequent to discipline, [5] the time which has elapsed since the original discipline, [and] [6] the Petitioner's character, maturity, and experience at the time of disbarment... . In re Reinstatement of Floyd, 775 P.2d 815, 816 (Okla. 1989). The seriousness of the original misconduct and the time which has elapsed since Katz' disbarment were discussed above. There was no evidence presented as to Katz' character, maturity, and experience at the time of disbarment. Katz did not present any evidence that he regretted his misconduct. The evidence is to the contrary. The Florida Supreme Court's order of disbarment shows that he attempted to justify his conduct and that he felt that he had done nothing wrong. The evidence of the extent of petitioner's rehabilitation, or in this case, lack thereof, and Katz's conduct subsequent to discipline are intertwined and will be discussed together. Katz filed several petitions for reinstatement prematurely. At least one of which was filed after the Court issued an order stating that an application could not be filed until five years had lapsed after the disbarment. Since his disbarment, Katz has been held in contempt on several occasions. By his own admission, he willfully violated an order of a federal bankruptcy judge because he did not consider him a judge. Katz was sanctioned under rule 11 of the Federal Rules of Civil Procedure for filing a meritless motion filled with "scandalous, libelous, and impertinent matters." See Katz v. Looney, 733 F. Supp. 1284, 1287-88 (W.D.Ark. 1990). In addition, rather than appealing the adverse ruling, Katz has instead sued the judge making the ruling. He sued the chief of police who arrested him for trespassing on property a court had ordered Katz to not go on. These acts show that he has not been rehabilitated and continues to show disrespect for the legal system and the courts. It is this Court's finding that the applicant, Scott William Katz, does not possess the necessary qualifications to be reinstated to the practice of law in Oklahoma. Therefore, the Petition for Reinstatement is denied. The OBA has filed a motion to assess costs of $1,873.45. In his Petition for Reinstatement, Katz has agreed to "pay the fees and expenses of investigation in processing this Petition as yet to be determined by the Professional Responsibility Tribunal, including the cost of the original and one copy of the transcript of any hearings held in connection with said petition... ." Pursuant to rule 11.1(c) to the Rules Governing Disciplinary Proceedings, the applicant is responsible for paying the expenses of the investigation and processing the application. He is also responsible for the costs of the original and one copy of the transcript. The application shows a bill of $549.00 for the original and two copies of the transcript. Because the applicant is responsible for the costs of the original and only one copy, we find that Katz is responsible for $366.00 of that expense. The applicant is hereby ordered to pay $1,690.45 for the costs of these proceedings within sixty days from the date that this order becomes final. PETITION FOR REINSTATEMENT DENIED; APPLICANT ORDERED TO PAY COSTS. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897282/	NO. 07-07-0493-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MAY 22, 2008 ______________________________ RODDY PIPPIN, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY; NO. 3880; HONORABLE JUANITA PAVLICK, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. ORDER DIRECTING FILING OF SUPPLEMENTAL CLERKâS RECORD Â Â Â Â Â Â Â Â Â Â Â Pending before this Court is Appellantâs Motion to Supplement Clerkâs Record in which he requests supplementation of the clerkâs record. We grant the motion. Â Â Â Â Â Â Â Â Â Â Appellant notes that the trial courtâs letter ruling of October 11, 2007, was omitted from the clerkâs record despite his request that it be included. Pursuant to Rule 34.5(c) of the Texas Rules of Appellate Procedure, we direct the District Clerk of the 46th Judicial District Court to prepare a supplemental clerkâs record including the October 11, 2007 ruling of the trial court. The supplemental clerkâs record shall be filed with the Clerk of the this Court on or before June 23, 2008. Â Â Â Â Â Â Â Â Â Â Appellant also requests an extension of time in which to file Appellantâs brief following supplementation of the record. The request is granted to June 30, 2008. Â Â Â Â Â Â Â Â Â Â It is so ordered. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Per Curiam Do not publish. ecies of fraud, in general. Id. at 798-99. And, assuming one can recover damages equal to the benefit of the bargain under both theories, no practical distinction exists between the effect of seeking those particular damages under either theory. In other words, and like the claimant in Haase, Resendez is no less trying to do that which is barred by the Statute of Frauds; he is, for all practical purposes, trying to enforce the agreement by recovering the benefit he would have received under the contract. It does not matter that Resendez claims fraud in the inducement, as opposed to fraud, because the result is the same; in each instance, the Statute of Frauds is being deprived of any effect. And, it was that result which the Supreme Court sought to prevent from occurring in Haase. So, Haase not only guides our decision here but also compels us to conclude that Resendez cannot assert fraud in the inducement to recover damages measured by the benefit of the bargain when the contract manifesting the bargain is unenforceable due to the Statute of Frauds. b. Statute of Frauds Allegedly Inapplicable Next, we consider Resendez' contention that "the Statute of Frauds does not preclude enforcement of the partnership agreement because the statute . . . cannot be used as an engine of fraud." The extent and meaning of this contention is somewhat unclear. Nevertheless, we derive two potential aspects from it. The first involves whether the Statute of Frauds applies when the party seeking recovery avers a claim sounding in fraud. The second concerns whether partial performance of the agreement rendered the Statute inapplicable. Irrespective of which one Resendez actually intended to pursue, neither obligates us to reverse the summary judgment. As to the former, we again look to Haase as controlling. There, the Supreme Court had before it one seeking damages purportedly arising from fraud and another attempting to defeat the claim by invoking the Statute of Frauds. The latter won. So, in effect, the Supreme Court permits application of the Statute in those situations wherein a party seeks damages recompensing a purported fraud. As to the matter of partial performance of an oral agreement, we acknowledge that such may insulate the agreement against the Statute of Frauds. See e.g., Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921) (involving the conveyance of realty); Welch v. Coca-Cola Enterprises., Inc., 36 S.W.3d 532, 539 (Tex. App.- Tyler 2000, no pet.) (involving the placement of vending machines on school property for five years). Yet, before it can be so insulated, several criteria must be satisfied. For instance, 1) the party attempting to enforce the accord must have acted in reliance upon it and suffered a substantial detriment for which there is no adequate remedy and 2) his opponent must be in the position of reaping an unearned benefit if the Statute is applied. Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.- Dallas 2002, pet. denied); Welch v. Coca-Cola Enterprises., Inc., 36 S.W.3d at 539. So too must it be shown that the complainant's partial performance was unequivocally referable to the agreement and corroborative of the fact that the contract was actually made. Chevalier v. Lane's Inc., 147 Tex. 106, 213 S.W.2d 530, 533-34 (1948); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d at 439. Furthermore, since Resendez raised the spectre of part performance in an effort to defeat Pace's demand for summary judgment based on the Statute of Frauds, the burden lays with him to present evidence sufficient to raise a question of fact upon each of the various criteria mentioned. See Bates v. Schneider Nat'l Carriers, Inc., 95 S.W.3d 309, 312 (Tex. App.- Houston [1st Dist.] 2002, no pet.) (stating that if the summary judgment movant establishes his affirmative defense as a matter of law, then the non-movant must present evidence that raises a fact issue to avoid the defense); Whittenburg v. Cessna Fin. Corp., 536 S.W.2d 444, 445 (Tex. App.- Houston [14th Dist.] 1976, writ ref'd n.r.e.) (stating that where the non-movant has alleged an affirmative defense, he must offer proof that there is a material fact issue on that affirmative defense). Yet, he did not do so. That is, he neither discussed the criteria mentioned in Chevalier, Exxon, or Welch when asserting that the Statute of Frauds cannot be "an engine of fraud" nor cited us to any evidence purporting to illustrate the existence of each criteria at bar. More importantly, it is not our duty to search the record for such unmentioned evidence. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.- Houston [14th Dist.] 1995, no pet.). Thus, Resendez failed to carry his burden on appeal of illustrating how and why his claim of part performance barred the trial court from rendering summary judgment. Issue Two -- Attorney's Fees In his second issue, Resendez contends that the trial court improperly awarded attorney's fees under the Declaratory Judgments Act. This is so, Resendez argues, because Pace requested a judgment declaring that the parties were not currently and had never been partners. Instead of so concluding, the trial court purportedly assumed there was a partnership agreement but held it unenforceable since it violated the Statute of Frauds. Pace argues that this portion of the appeal should be dismissed because Resendez voluntarily paid the judgment. We agree. Generally, when a judgment debtor voluntarily pays and thereby satisfies a judgment rendered against him, the cause becomes moot and must be dismissed. Continental Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987); Highland Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982); Tubb v. Vinson Exploration, Inc., 892 S.W.2d 183, 184-85 (Tex. App.-El Paso 1994, writ denied). This rule exists to prevent a litigant who "freely decided to pay a judgment" from "mislead[ing] his opponent into believing that the controversy is over . . . ." Highland Church of Christ v. Powell, 640 S.W.2d at 236 (emphasis added). Yet, if payment is involuntary, the rule does not apply. Riner v. Briargrove Park Property Owners, Inc., 858 S.W.2d 370 (Tex. 1993) (stating that if a party does not voluntarily pay a judgment, his appeal is not moot). Nor is it applicable if continuation of the appeal would not simply cause the court to venture into the realm of advisory opinions, that is, if some other issue remains ripe for adjudication. See Highland Church of Christ v. Powell, 640 S.W.2d at 237 (refusing to hold the appeal moot because, among other things, a "final decision in this case may give guidance regarding the future tax liability of Highland on this property"); Employees Fin. Co. v. Lathram, 369 S.W.2d 927, 930 (Tex. 1963) (holding that payment rendered the appeal moot because there remained nothing to try if the judgment were reversed and the cause remanded for new trial); 5 Roy W. McDonald & Elaine A. Carlson, Texas Civil Practice §30.19 (1999) (stating that "[a]bsent some remaining controversy," the appellate court must dismiss). As illustrated by the appellate record and material attached to the motion to dismiss previously filed by Pace, the trial court signed a judgment against Resendez. Therein, it awarded Pace, against Resendez, attorney's fees of $25,000 for the trial of the declaratory action it initiated, $15,000 if an appeal is perfected to an intermediate court of appeals, and $5,000 if the Texas Supreme Court granted a petition for discretionary review. So too did the trial court order that Resendez pay court costs and that the outstanding sums accrue post-judgment interest at 10% per annum until paid. Pace subsequently abstracted the judgment in Bexar County. (3) On June 18, 2002, Resendez paid the sums outstanding under the judgment from the proceeds of several parcels of realty he sold. In turn, Pace executed a document releasing its abstract of judgment. These circumstances, according to Pace, allegedly evinced the voluntary satisfaction of the judgment from which Resendez appealed. In response, Resendez asserted that immediately prior to closing on the sale of the property alluded to above, he "did not have adequate funds for living expenses [or] . . . to pay off accumulated debt, including debt on the property, or the funds necessary to operate any business . . . ." The "property being sold" was his "only immediate source of these funds," and it "was absolutely necessary for [him] to make the sale to survive," Resendez continued. Furthermore, the sales contract executed by Resendez and the buyer purportedly required that any liens against the property be satisfied from the sale's proceeds. In short, Resendez argued that he paid the judgment under "implied duress." At first blush, one may deduce from these allegations that Resendez was faced with the choice of either paying the judgment or foregoing personal "surviv[al]." Yet, such a conclusion would not necessarily be accurate for his affidavit also indicates that the sale of the land could have proceeded despite the Pace judgment and lien created thereby. One may infer this from Resendez' comment that upon discovery of the judgment lien "the buyers . . . attempted to lower the purchase price, which [he] refused to do." Nowhere does Resendez suggest that the buyers refused to proceed unless the lien was paid. Nor did he insinuate that acceptance of the reduced offer of the buyer would not have allowed him to "survive," pay his debts, and satisfy his living expenses. Nor were we provided with an itemization of his liabilities or assets with which to assess the veracity of his representations about impoverishment and need. Rather, Resendez spoke in generalities and conclusions which, under the law, are of little probative value. See Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex. App.- Corpus Christi 1994, writ dism'd w.o.j.) (holding that conclusions contained in an affidavit have no probative value). Thus, one can reasonably conclude that Resendez opted to pay the Pace judgment simply to maximize his recovery from the sale of the land and not to secure his purported survival. Because of this and given the conclusory nature of the allegations in Resendez' affidavit, we cannot say that payment of the judgment was involuntary. Furthermore, the obstacles which previously barred our dismissing the appeal, or at least this portion of it, have gone. That is, we have disposed of the issues unrelated to the question of attorney's fees adversely to Resendez. So, we now dismiss, as moot, that portion of the appeal which deals with the validity of the trial court's decision to award Pace attorney's fees. Accordingly, issue one, including its subparts, is overruled. Issue two is dismissed as moot. Finally, the judgment of the trial court is affirmed. Brian Quinn Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. Â§75.002(a)(1) (Vernon Supp. 2003). 2. The court did not prevent recovery of "out-of-pocket" damages, however. Haase v. Glazner, 62 S.W.3d 795, 796 (Tex. 2001). 3. While Pace abstracted the judgment, it also claims that it never attempted to execute upon the lien created thereby. Consequently, we have nothing before us indicating that Resendez paid the judgment to avoid execution. See Frank Silvestri Inv., Inc. v. Sullivan, 486 So. 2d 20, 21 (Fla Dist. Ct. App. 5th Dist. 1986) (noting that most courts hold that payments made under threat of execution are involuntary).	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1916827/	296 So. 2d 323 (1974) Amzy JACKSON, Jr. v. Dr. John DOE et al. No. 54333. Supreme Court of Louisiana. June 10, 1974. Gary L. Boland, James A. George, Baton Rouge, for plaintiff-applicant. Robert L. Kleinpeter, Kleinpeter & Nevils, Baton Rouge, for defendants-respondents. BARHAM, Justice. The respondent has correctly stated that the primary issue originally presented when this writ was granted (the question of charitable immunity) has now been disposed of by the unanimous opinion of this Court in Garlington v. Kingsley, 289 So. 2d 88 (La.1974). In Garlington we expressly overruled Grant v. Touro Infirmary, 254 La. 204, 223 So. 2d 148 (1969), and stated: "* * * We hold that the Rapides General Hospital and other charitable institutions are not immune from suit in tort and that injured parties proceeding against such institutions need not plead or establish those circumstances which some courts have recognized in the past as exceptions to the so-called rule of charitable immunity." Respondent does not take issue with the holding in Garlington but merely urges that the decision in that case should operate prospectively only so that the respondent, Baton Rouge General Hospital, would not be held liable in damages to the relator in the case before us. Prospective application of judicial decisions is the exception rather than the general rule of law. No exceptional circumstances are argued which would support this Court's departure from the general principle. Respondent merely urges that it would be fair to make the holding in Garlington a prospective ruling. We do not find that fairness, justice, or any other consideration would require such a holding by us. For the reasons assigned, the judgments of the Court of Appeal and the district court, maintaining a motion for summary judgment in favor of the respondent, Baton Rouge General Hospital, are set aside and the case is remanded to the trial court for further proceedings consistent with the views expressed herein. The casting of costs is reserved for the trial court. SUMMERS, J., concurs in the result with reasons. SUMMERS, Justice (concurring). Prospective application of judicial decisions is legislating. I have not agreed to *324 such action on the rare occasions in recent years when this Court has adopted such a decree. It is a departure from the Court's previously announced opposition to such a practice. In my view it should not be continued. See my dissent in State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So. 2d 557 (1972). Thus, although I agree with the result the Court reaches, I do not agree with statements approving prospective application only of judicial decisions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897301/	NO. 07-08-0001-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 20, 2008 ______________________________ MICHAEL ANTHONY WHITESELL, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B17345-0709; HONORABLE ED SELF, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Michael Anthony Whitesell, appeals the denial of his application for writ of habeas corpus challenging his arrest pursuant to a governor’s warrant. We affirm. Appellant’s attorney has filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be arguably predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Appellant has in fact filed a response and further filed a document he denominates as an application for writ of habeas corpus. We have made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such grounds. Additionally, we have reviewed appellant’s pro se response and other documents appellant has filed in connection with this case. All of the purported arguable grounds put forth by appellant would have this court go behind the governor’s warrant. The record before us contains no irregularities and, as such, is prima facie proof to the allegations contained therein. Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978). There was no contest at the writ hearing about the identity of appellant as the person named in the governor’s warrant. Appellant alleges that he was not timely brought before the trial court, alleging that more than 90 days transpired before the hearing on the writ was conducted. See TEX . CODE CRIM . PROC . ANN . art. 51.07 (Vernon 2006). However, appellant failed to take into consideration the provision that allows a person, once released on bond under provisions of article 51.07, to be subsequently arrested upon the issuance 2 of a governor’s warrant. See TEX . CODE CRIM . PROC . ANN . art. 51.08 (Vernon 2006). The record affirmatively reflects that the above procedure was followed. Accordingly, we agree with counsel that the appeal is frivolous. Therefore, we grant counsel’s motion to withdraw and affirm the order of the trial court. Mackey K. Hancock Justice Do not publish. 3	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1874101/	752 N.W.2d 34 (2008) IN RE D.B. No. 08-0085. Court of Appeals of Iowa. March 14, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615003/	847 P.2d 215 (1992) Donna L. MOODY, Plaintiff-Appellant, v. A.G. EDWARDS & SONS, INC., a Delaware corporation, Defendant-Appellee. No. 91CA1762. Colorado Court of Appeals, Div. V. December 3, 1992. Rehearing Denied January 14, 1993. A. Daniel Rooney, Aurora, for plaintiff-appellant. 216 Holland & Hart, Scott S. Barker, Denise S. Maes, Denver, for defendant-appellee. Opinion by Judge JONES. Plaintiff, Donna L. Moody, appeals a judgment of the trial court entered on a jury verdict in favor of defendant, A.G. Edwards & Sons, Inc. She claims that the trial court erred in submitting instructions and a special verdict form to the jury. Defendant cross-appeals, claiming that the instructions were appropriate as a matter of law. We affirm. In March 1985, plaintiff and Dwane and Ruth Henderson (Hendersons) entered into a residential real estate contract whereby the Hendersons agreed to purchase plaintiff's home for $89,500. Under the terms of the contract, plaintiff loaned the Hendersons $67,125 to finance the transaction. In return, the Hendersons executed a promissory note in favor of plaintiff in the amount of the loan. The promissory note was secured by United States Certificates of Accrual on Treasury Securities (CATS) totalling $68,000, which the Hendersons purchased from defendant, a securities brokerage firm, prior to closing on the real estate transaction. Both the contract of sale and the promissory note provided that the CATS would be held in trust and would be transferred directly into a trust account by a securities broker. Both documents, additionally, provided that the transfer into the trust account "will be done by said Broker in the form of a verifying letter at time of closing." At closing, the Hendersons produced a letter signed by a broker employed by defendant's firm who confirmed the Hendersons' purchase of CATS in the amount of $68,000, and stated that: "Said certificates are to be deposited into the escrow account of [plaintiff] and Henderson at the United Bank of Colorado Springs." The CATS were never delivered to United Bank of Colorado Springs. Instead, in April 1985, defendant delivered them to the Hendersons, who cashed them in January and February 1986. Plaintiff did not discover that the CATS were not in escrow until approximately two years after she had sold her property to the Hendersons. Thus, the CATS were not available to pay off plaintiff's loan to the Hendersons when they defaulted on their promissory note payments in September 1987. Plaintiff brought the underlying action against defendant on the theory that it had negligently misled her into believing that it would deliver the securities to the United Bank of Colorado Springs, rather than to the Hendersons. She alleged that defendant's negligence caused the misappropriation of the CATS by the Hendersons and that, consequently, she suffered damages. Prior to trial, defendant moved to designate the Hendersons as nonparties, pursuant to § 13-21-111.5, C.R.S. (1987 Repl.Vol. 6A). Plaintiff's motion to strike the designation of the nonparties was denied, and the case proceeded to trial with the Hendersons included as nonparties. At the conclusion of the evidence, and over plaintiff's objection, the trial court instructed the jury that it could allocate responsibility for plaintiff's damages between the Hendersons and defendant. The jury returned a verdict in favor of plaintiff, and, using a special verdict form, it apportioned damages of 49% to defendant, 25.5% to Ruth Henderson, and 25.5% to Dwane Henderson. This appeal followed. Plaintiff contends that the trial court erred in instructing the jury to consider the Hendersons' responsibility for plaintiff's damages as designated nonparties. She argues that, in order for the Hendersons to be designated as nonparties, they must have been joint tortfeasors with defendant. We do not agree. The General Assembly has provided that part of the total liability for damages to a plaintiff may be apportioned to nonparties who may be partially or wholly at fault for a plaintiff's injuries. The statute states, in relevant part, as follows: (1) In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by 217 the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss, except as provided in subsection (4) of this section. (2) The jury shall return a special verdict... determining the percentage of negligence or fault attributable to each of the parties and any persons not parties to the action of whom notice has been given... to whom some negligence or fault is found and determining the total amount of damages sustained by each claimant.... (3)(a) Any provision of the law to the contrary notwithstanding, the finder of fact in a civil action may consider the degree or percentage of negligence or fault of a person not a party to the action, based upon evidence thereof, which shall be admissible, in determining the degree or percentage of negligence or fault of those persons who are parties to such action.... (4) Joint liability shall be imposed on two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act. Any person held jointly liable under this subsection (4) shall have a right of contribution from his fellow defendants acting in concert. A defendant shall be held responsible under this subsection (4) only for the degree or percentage of fault assessed to those persons who are held jointly liable pursuant to this subsection (4). Section 13-21-111.5, C.R.S. (1987 Repl.Vol. 6A) (emphasis added). This proportionate fault statute rectifies the inequity developed under the common law concept of joint and several liability whereby each of several wrongdoers "`might be liable for the entire loss sustained by the plaintiff, even though the defendant's acts concurred or combined with that of another wrongdoer to produce the result.'" Hughes v. Johnson, 764 F. Supp. 1412, 1413 (D.Colo.1991) (quoting W. Prosser & W. Keeton, Torts § 46 at 328 (5th ed. 1984)). Section 13-21-111.5 abrogates this common law principle and substitutes the rule that each of several wrongdoers is liable for only a portion of a plaintiff's injuries, calculated according to that wrongdoer's percentage of fault, and its plain terms assume the existence of at least two wrongdoers whose acts or omissions combine to produce a loss. Hughes v. Johnson, supra; Graber v. Westaway, 809 P.2d 1126 (Colo.App.1991). See Watters v. Pelican International, Inc., 706 F. Supp. 1452 (D.Colo.1989). And, although the proportionate fault statute established a "pure several liability regime," it does not abolish the legal principle that two or more parties may concurrently cause one injury to a plaintiff. Watters v. Pelican International, Inc., supra, at 1455. See Laugesen, Colorado's Relative Fault System, at 9-12 (Colo.Judicial Conf.1988); Pressler, Joint and Several Liability: A Case for Reform, 64 Den.U.L.Rev. 651 at 682 (1988); 3 Harper, James & Gray, The Law of Torts § 10.1 at 3 (1986). Section 13-21-111.5(4) retains the concept that injury may be caused by joint tortfeasors, under certain circumstances, as opposed to injuries caused by separate torts. Plaintiff concedes that § 13-21-111.5(4), which allows joint liability to be conferred upon joint tortfeasors, is not applicable here. Rather, the issue here is delineated by the statute's apparent distinction that injury may be caused as the result of separate torts, as opposed to injury caused by joint tortfeasors. Hence, apart from § 13-21-111.5(4), the acts on the part of a designated nonparty which have contributed to a plaintiff's injury are not required to have been the same tortious acts as those of a defendant. The applicable portion of the statute provides that a jury may apportion liability to any party or nonparty who is found to have contributed to a plaintiff's injury or to whom fault may be attributed. Thus, a jury need not consider whether the respective act or acts of the tortfeasors were undertaken in conjunction with a defendant's tortious act or acts so long as all of *218 the acts, considered together, were instrumental in contributing to a plaintiff's injury. Here, although the Hendersons' misappropriation of funds constitutes a tort that is substantially different from, and occurred much later in time than, the negligence on the part of defendant which allowed the misappropriation to occur, evidence in the record reflects that the independent acts of both the Hendersons and defendant contributed to plaintiff's injury, either through negligence or fault. Hence, the Hendersons are appropriately included in the action as nonparties who may be found to be tortfeasors that have contributed to plaintiff's injury. Our disposition renders defendant's cross-appeal moot. The judgment of the trial court is affirmed. HUME and MARQUEZ, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615005/	847 P.2d 673 (1993) Harry KALINOWSKI and Adelaine Kalinowski, husband and wife, Plaintiffs-Appellees, v. Jim An-Chi YEH and Lisa Kwock Que Lum Yeh, husband and wife, Defendants-Appellants. No. 15666. Intermediate Court of Appeals of Hawaii. March 24, 1993. 675 Collin K.C. Lau, on the briefs, Honolulu, for defendants-appellants. C. Andrew Englehart (Ward F. Olsen with him on the brief), Honolulu, for plaintiffs-appellees. Before BURNS, C.J., and HEEN and WATANABE, JJ. WATANABE, Judge. Plaintiffs Harry and Adelaine Kalinowski (Kalinowskis) brought the instant action, seeking specific performance of a contract to purchase a condominium unit from Defendants Jim and Lisa Yeh (Yehs). The trial court held for the Kalinowskis, and we affirm. FACTS AND PROCEDURAL HISTORY On May 26, 1989, the Yehs signed a "Deposit, Receipt, Offer, and Acceptance" (DROA) to purchase a new home under construction in Mililani, Hawaii (Mililani DROA). Closing of the transaction was to take place on August 30, 1989; however, the Yehs' offer was contingent upon the successful sale of their condominium unit in Salt Lake, Hawaii, and closing by July 30, 1989. On May 29, 1989, the Kalinowskis signed a DROA to purchase the Yehs' Salt Lake condominium unit for $150,000 (Salt Lake DROA). The sale was to close "on or before July 27, 1989," and was contingent upon: (1) the Kalinowskis' ability to secure a loan to finance the purchase; (2) the acceptance of the Yehs' offer to purchase the Mililani home by May 31, 1989; and (3) the successful closing of the Mililani transaction before the closing date of the Salt Lake transaction. The Salt Lake DROA was executed on the standard DROA form used by the real estate industry in Hawaii. Preprinted on the back of the form were standard terms applicable to the DROA, including the following "time is of the essence" clause: K. TIME IS OF THE ESSENCE: If either Buyer or Seller for reasons beyond his control cannot perform his obligation to purchase or sell the property by the closing date, then such party by giving escrow written notice prior to the closing date called for in this contract 676 with copies to all parties to this contract, can extend closing for no longer than 30 calendar days to allow performance. Thereafter time is of the essence and the default provisions of Paragraph H. apply. Any further extension must then be agreed to in writing by both parties. There is no automatic right to extend. This provision relates only to the extension of the closing date. In late July of 1989, it became apparent to the Kalinowskis that they would be unable to fully process their loan application by the July 27, 1989 closing date. The Kalinowskis, therefore, immediately exercised their right under the "time is of the essence" clause to extend the closing date an additional 30 calendar days, until August 26, 1989, and notice of this extension was served on the escrow company by the Yehs on July 25, 1989. On July 26, 1989, American Savings Bank issued a loan commitment letter to the Kalinowskis, the terms of which the Kalinowskis accepted on July 31, 1989. Since that date, the Kalinowskis have been ready, willing, and able to perform their obligations under the Salt Lake DROA. Due to construction delays, however, the Yehs were unable to close their Mililani transaction on the originally scheduled date. Consequently, the Yehs requested and obtained from the Kalinowskis two thirty-day extensions, which extended the Salt Lake DROA closing date to October 30, 1989. When the Yehs' Mililani purchase had still not closed by the October 30, 1989 date, the Kalinowskis were willing to extend the closing date once again. However, the Yehs, invoking the "time is of the essence" clause of the DROA, canceled the sale and agreed to pay for any loan and escrow expenses incurred by the Kalinowskis until the date of cancellation. Several days later, the Yehs agreed to sell the Salt Lake condominium unit to another buyer for $176,000.[1] The Kalinowskis thereafter filed a complaint for specific performance of the Salt Lake DROA. After a jury-waived trial, the trial court concluded that the Yehs had waived the "time is of the essence" clause and ordered them to specifically perform the subject DROA. This timely appeal followed. DISCUSSION Ten years ago, the Hawaii Supreme Court, in Freeman v. Boyce, 66 Haw. 327, 661 P.2d 702 (1983), addressed a situation very similar to the instant case. The vendors and purchasers in Freeman had entered into a standard form executory contract for the sale of real property, with a projected closing date of February 1. Due to the threat of a lawsuit by previous prospective purchasers, however, the vendors indicated their intention not to honor the contract, and the purchasers sued for specific performance. In ruling for the purchasers, the supreme court noted that time is seldom regarded "as absolute or unbending within the context of a bilateral contract for the purchase and sale of land," and since time was not made essential to the particular contract, the vendors could not unilaterally cancel the contract. 66 Haw. at 332, 661 P.2d at 705. The court also held that it was not inequitable or unreasonable to require the vendors to specifically perform the contract four months after the projected closing date, since the delay in closing was attributable to them. 66 Haw. at 333-34, 661 P.2d at 706. In the instant case, unlike in Freeman, a specific "time is of the essence" clause is included in the DROA. According to the Yehs, the integrity of this clause was reaffirmed by the parties each time they executed specific and clear written extensions of the closing date. Therefore, the Yehs contend that since the parties agreed to extend the closing date only until October 30, 1989, the DROA became "null and void" on that date, releasing them from all further obligations under the DROA. As a 677 result, the Yehs allege that the trial court erred in awarding the Kalinowskis specific performance of the DROA. We disagree with the Yehs. "Time is of the Essence" Clause Generally, in contracts for the sale of land, payment or conveyance at the exact time specified in the DROA is not regarded as "of the essence" because "the injury caused by delay is little or nothing. Delays are frequent in these transactions; and it is the custom of [people] to overlook them, even though they may have stated in advance that they would not." 3A A. Corbin, Corbin on Contracts § 716 at 367 (1951). Furthermore, it is well-recognized that "[n]o [person] should profit by his [or her] own wrong.... [T]he principle is expressed in the rule that no person can defend against contractual liability on grounds of a condition precedent when he [or she] is responsible for that condition precedent not being complied with." 2 A. Corbin, Corbin on Contracts § 310 at 44-45 (1950 & Supp.1992). In the instant case, the evidence is undisputed that the Kalinowskis fully performed all their obligations under the Salt Lake DROA and have, since July 31, 1989, been ready, willing, and able to go through with the purchase. The sole cause preventing the Salt Lake transaction from closing on schedule was that construction of the Yehs' Mililani home, the condition precedent to the Yehs' performance, had been delayed. In other words, it was the Yehs' inability to perform that made it impossible to close the Salt Lake transaction on the agreed-upon dates. Moreover, the record amply indicates that the Yehs did not consider timely closing of the Salt Lake transaction to be essential, since just eight days after canceling their deal with the Kalinowskis, they entered into another DROA, agreeing to sell the Salt Lake condominium unit to another buyer on an even later closing date. This second DROA expressly mentions that construction of the Mililani house was "scheduled to be completed three weeks from October 26, 1989." It was thus apparent that when the Yehs canceled their deal with the Kalinowskis, they fully expected their Mililani home to be completed within three weeks, satisfying the condition precedent that had been the principal cause for the delay in the closing of the Salt Lake transaction. Under these circumstances, the Yehs cannot rely on the "time is of the essence" clause to cancel their agreement with the Kalinowskis and thereby take advantage of the appreciation in real estate values. Other courts have reached the same conclusion under similar circumstances. In Kimm v. Andrews, 270 Md. 601, 313 A.2d 466 (1974), the Maryland Court of Appeals was called upon to resolve a dispute involving two written contracts for the sale of the same land and improvements thereon. The first contract, with the Kimms, provided that "[p]rior to settlement, Sellers will show buyers location of boundary stakes, septic system, and water pipes." 270 Md. at 604, 313 A.2d at 468. It also stated that time was of the essence and set March 31 as the settlement date. Although the Kimms made several appointments to inspect the premises, the sellers, due to illness, were unable to keep the appointments, and, consequently, settlement did not occur as scheduled. The Kimms and the sellers then orally extended the settlement date to April 5. However, on April 4, the attorney for the second purchasers, the Andrews, advised the sellers that the Kimms' contract had lapsed on March 31 because timely performance had not been made as required by the "time is of the essence" clause. The sellers then signed a contract to convey the land to the Andrews but subsequently reneged on this contract and deeded the property to the Kimms. The Andrews thereafter sued for specific performance. Reversing the trial court's judgment for the Andrews, the appellate court stated: [O]rdinarily a contract for the sale of land containing a clause that "time is of the essence" must be performed by the date fixed in the contract or the contract is no longer viable. This general rule is, however, subject to the limitation that such a contract may nevertheless be specifically enforced if the failure to perform 678 within the designated time results from the act or fault of the party against whom specific performance is demanded. 270 Md. at 612, 313 A.2d at 472 (emphasis in original). In Alk v. Lanini, 61 Or.App. 158, 656 P.2d 367 (1982), review denied, 294 Or. 613, 661 P.2d 549 (1983), the plaintiffs entered into a contract with the defendants to purchase 293 acres of land. Under the contract, which included a "time is of the essence" clause, closing was to occur on December 15, 1978, at which time defendants were required to deliver to plaintiffs a proper deed with marketable title, free from all encumbrances. The defendants discovered, however, that a cloud on their title existed and they were compelled to file a quiet title action to deliver a proper deed. The parties subsequently signed two agreements, extending the closing date to October 15, 1979, and, while no further extension agreements were thereafter signed by the parties, plaintiffs were ready, willing, and able to perform their obligations under the contract when the quiet title decree was finally entered in defendants' favor. Meanwhile, however, the defendants had changed their minds and argued that because time was of the essence under the contract and the parties had agreed to extend the closing, only until October 15, 1979, the contract lapsed on that date, freeing them from all further obligations. Disagreeing, the Oregon Court of Appeals said in part: Defendants' argument must ... fail because a party to a contract cannot take advantage of his own failure to perform, and defendants were responsible, at least in part, for the fact that the transaction did not close on schedule. 61 Or.App. at 162, 656 P.2d at 369 (citations omitted). The Yehs testified at trial that the reason they had declined to extend the closing date past October 30, 1989 was that they were being required by the Kalinowskis to pay the financing fees being charged the Kalinowskis due to the closing delays. The record shows that when the Yehs sought to extend closing until October 30, 1989, the Kalinowskis requested that the Yehs agree to pay any additional financing fees incurred by them due to the extension, but the Yehs refused. Despite the Yehs' refusal, the Kalinowskis agreed to extend closing until October 30, 1989. According to the record, the Yehs only offered to pay the financing fees once they decided not to extend closing beyond October 30, 1989. Therefore, the Yehs' testimony is not supported by the record. Specific Performance The Yehs insist that specific performance is an extraordinary remedy that should not have been awarded the Kalinowskis by the trial court. However, it is a well-accepted principle that "where the parties have fairly and understandingly entered into a valid contract for the sale of real property, specific performance of the contract is a matter of right and equity will enforce it, absent circumstances of oppression and fraud." Giannini v. First Nat'l Bank of Des Plaines, 136 Ill.App.3d 971, 981, 91 Ill. Dec. 438, 447, 483 N.E.2d 924, 933 (1985). See also, Hurst v. Kukahi, 25 Haw. 194 (1919) (specific performance of a contract for the sale of land will be decreed when there does not appear to have been any unfairness, injustice, or inequality). The rationale for this principle is explained in the Restatement (Second) of Contracts as follows: Contracts for the sale of land have traditionally been accorded a special place in the law of specific performance. A specific tract of land has long been regarded as unique and impossible of duplication by the use of any amount of money. Furthermore, the value of land is to some extent speculative. Damages have therefore been regarded as inadequate to enforce a duty to transfer an interest in land[.] Restatement (Second) of Contracts § 360, comment e, at 174 (1981). Whether this principle applies to a contract for the sale of a specific condominium unit has never previously been addressed by the Hawaii appellate courts. *679 However, courts in other jurisdictions have generally concluded that the remedy of specific performance is available to a purchaser of a specific condominium unit. In Giannini, supra, for example, the Illinois Appellate Court held that where there was no evidence that other condominium units were available for purchase by the buyer at the same price, terms, or conditions, the buyer of a specific condominium unit was entitled to the remedy of specific performance. 136 Ill.App.3d at 981, 91 Ill. Dec. at 447, 483 N.E.2d at 933. The New Jersey Superior Court more broadly held in Pruitt v. Graziano, 215 N.J.Super. 330, 521 A.2d 1313 (1987), that "a contract of sale of a designated condominium unit like any real property is specifically enforceable by the purchaser irrespective of any special proof of its uniqueness." 215 N.J.Super. at 332, 521 A.2d at 1314-15. In the instant case, there is no evidence that the Kalinowskis would have been able to buy an identical unit in the same condominium project at no more than the same price, terms, and conditions. Instead, the evidence reveals that market prices for the Yehs' unit had rapidly escalated between the time of the Kalinowskis' offer and the termination of the agreement by the Yehs, rendering it unlikely that the Kalinowskis could obtain a condominium unit in the same project at no more than the price agreed upon in the Salt Lake DROA. Moreover, the Kalinowskis were entirely blameless in their own transactional conduct and expectations, and we see no reason to deprive them of the benefit of their bargain. Accordingly, we affirm the judgment of the trial court granting the Kalinowskis specific performance of their agreement to purchase the Yehs' condominium unit. NOTES [1] The Yehs' agreement with the second buyer was subsequently canceled due to the pendency of this lawsuit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897596/	NO. 07-08-0025-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 13, 2008 ______________________________ PEGGY G. PENNEY, APPELLANT V. DEBORAH MANGUM, APPELLEE _________________________________ FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY; NO. 017-220803-06; HONORABLE FRED W. DAVIS, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. ON ABATEMENT AND REMAND Appellant, Peggy G. Penney, appeals from a judgment granting appellee an easement along appellant’s real estate. The appellate record was due in this case by January 25, 2008. The clerk’s record was filed on January 28. The court reporter did not file a reporter’s record prior to January 25 and has not requested an extension to file the reporter’s record. This court sent the court reporter a letter dated February 8, 2008 requesting information as to the status of the reporter’s record and informing the court reporter of the availability of forms for requesting an extension if needed. The court reporter was to inform this court of the status on or before February 19, 2008. As of this date, this court has not had any communication from the court reporter. Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 35.3(c). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following: 1. whether the reporter’s record can reasonably be filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving Penney of her right to appeal, and 2. whether an alternate or substitute reporter should or can be appointed to complete the record in a timely manner. The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk’s record to be developed containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and (3) cause a reporter’s record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk’s record and any reporter’s record transcribing the hearing with the clerk of this court on or before April 25, 2008. Should further time be needed by the trial court to perform these tasks, the same must be requested before April 25, 2008. It is so ordered. Per Curiam	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/4153040/	People v Dennis (2017 NY Slip Op 01883) People v Dennis 2017 NY Slip Op 01883 Decided on March 15, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 15, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN JEFFREY A. COHEN, JJ. 2014-11145 [*1]The People of the State of New York, respondent, vJosone Dennis, appellant. (S.C.I. No. 179/14) N. Scott Banks, Hempstead, NY (Jeremy L. Goldberg of counsel), for appellant. Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Pamela Kelly-Pincus of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Spergel, J.), rendered May 9, 2014. By decision and order of this Court dated June 1, 2016, the matter was remitted to the Supreme Court, Nassau County, to afford the defendant an opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion. The appeal was held in abeyance pending receipt of a report from the Supreme Court. The Supreme Court has now filed an order dated September 27, 2016. ORDERED that on the Court's own motion, the order dated September 27, 2016, is vacated; and it is further, ORDERED that the matter is remitted to Supreme Court, Nassau County, for the issuance of a report, forthwith, without any accompanying order, advising only whether the defendant moved to vacate his plea of guilty, and if so, whether he made the requisite showing or failed to make the requisite showing required pursuant to People v Peque (22 NY3d 168); and it is further, ORDERED that the appeal shall continue to be held in abeyance pending receipt of the Supreme Court's report. The decision and order of this Court dated June 1, 2016, remitted the matter to the Supreme Court, Nassau County, for the limited purpose of affording the defendant an opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion. Upon remittitur, the court erroneously issued an order, in effect, granting that motion and vacating the plea of guilty. This exceeded the scope of this Court's directive contained in the decision and order dated June 1, 2016. Accordingly, we must again remit the matter to the Supreme Court, Nassau County, for the issuance of a report, without any accompanying order, specifically limited to and advising only whether the defendant moved to vacate his plea of guilty, and if so, whether he made the requisite showing or failed to make the requisite showing required pursuant to People v Peque (22 NY3d 168). There are no other matters to be considered by the court upon remittitur. RIVERA, J.P., AUSTIN, ROMAN and COHEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	03-15-2017
https://www.courtlistener.com/api/rest/v3/opinions/1902266/	713 A.2d 657 (1998) COMMONWEALTH of Pennsylvania, Appellee, v. Kim Novak NEAL, Appellant. Superior Court of Pennsylvania. Submitted March 30, 1998. Filed June 24, 1998. 659 John A. Knorr, Pittsburgh, for appellant. Robert A. Willig, Asst. Dist. Atty., Pittsburgh, for the Com., appellee. Before KELLY, STEVENS and HESTER, JJ. 658 HESTER, Judge: Kim Novak Neal appeals from the order entered in the Court of Common Pleas of Allegheny County on November 1, 1996, which summarily dismissed her petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). For the reasons set forth below, we affirm. The facts and procedural history of this case may be summarized as follows. On the evening of August 6, 1990, in preparation for the execution of a search warrant, Allegheny County narcotics detectives approached a Duquesne residence. After the detectives knocked on the front door and announced themselves, they heard activity inside the dwelling. The detectives, who could see into the house, also noticed one of its occupants run up a staircase. Consequently, they forced open the door and entered the residence. Detective Donald Stritmatter proceeded up the staircase, where appellant attempted to impede his way. Detective Stritmatter, who saw Randy Turner run down a hallway, forced his way past appellant and pursued Mr. Turner. The detective then kicked open a bathroom door and observed Mr. Turner as he attempted to flush forty-eight packets of heroin and a plastic bag containing one-half of an ounce of cocaine down the toilet. Detective Stritmatter kicked Mr. Turner aside and retrieved the drugs. Appellant and Mr. Turner were arrested, and the search of the dwelling began. During the course of the search, detectives retrieved a New York newspaper, an item commonly associated with heroin shipments, from the living room. In the bedroom used by appellant and Mr. Turner, police recovered three baggie corners containing cocaine as well as materials used to prepare and package both heroin and cocaine for resale. From various locations in the house, including a drawer of appellant's dresser, the detectives confiscated large sums of money. Finally, they retrieved several documents evidencing appellant's occupation of the residence. As a result of the search, appellant was charged with two counts of possession of a controlled substance, two counts of possession with intent to deliver, and one count each of possession drug paraphernalia and conspiracy. On July 10, 1991, appellant filed an omnibus pretrial motion seeking the suppression of certain evidence and the exclusion of proof relating to prior, but unspecified, convictions. Later, on November 4, 1992, appellant withdrew her omnibus motion and expressed her intention to proceed without a jury. Consequently, she filled out a written waiver form, and the trial court conducted a waiver colloquy. Trial on the matter then commenced. On December 4, 1992, the trial court adjudicated appellant guilty of all counts. Challenging the sufficiency of the evidence supporting her convictions, appellant subsequently filed post-verdict motions. On February 18, 1993, the trial court denied appellant's request for post-verdict relief. The court then sentenced appellant to a term of imprisonment of five to ten years, ordered her to serve a consecutive two-year probationary period, and directed her to pay costs and a fine. We later affirmed the judgment of sentence. Commonwealth v. Neal, 435 Pa.Super. 649, 645 A.2d 891 (1994) (memorandum decision). On March 23, 1995, our Supreme Court denied further review, and appellant's judgment of sentence became final. 660 On February 2, 1996, while represented by new counsel, appellant petitioned for PCRA relief.[1] Appellant subsequently filed an exhibit to that petition, and the trial court provided appellant with notice that it intended to dismiss the petition summarily.[2] Later, after appellant responded to the notice, the trial court entered the contested order. This timely appeal followed. When examining a post-conviction court's denial of relief, our scope of review is limited to a determination of whether the court's findings are supported by the record and are otherwise free of legal error. See, e.g., Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super.1997). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id. Additionally, we note that there is no absolute right to a hearing pursuant to the PCRA. Rather, the post-conviction court may elect to dismiss a petition if it has thoroughly reviewed the claims presented and determined that they are utterly without support in the record. Id. Commonwealth v. Schultz, 707 A.2d 513, 516 (Pa.Super.1997). However, if the facts alleged in the petition, if proven, would entitle the petitioner to relief, summary dismissal is inappropriate. See Commonwealth v. Granberry, 434 Pa.Super. 524, 644 A.2d 204 (1994). Keeping these principles in mind, we consider the propriety of the trial court's summary denial of relief. The PCRA, which was amended effective January 16, 1996, "provides for an action by which persons convicted of crimes they did not commit and serving illegal sentences may obtain collateral relief."[3] 42 Pa.C.S. § 9542. In order to be eligible for relief, a post-conviction petitioner must plead and prove that the contested conviction or sentence resulted from one or more of the following circumstances: (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent. (iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court. (vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced. (vii) The imposition of a sentence greater than the lawful maximum. (viii) A proceeding in a tribunal without jurisdiction. 42 Pa.C.S. § 9543(a)(2).[4] In addition, the petitioner must plead and prove that the claim has not been litigated previously or waived. 42 Pa.C.S. § 9543(a)(3). An issue is considered waived if the petitioner could have raised it in prior proceedings but failed to do so. 42 Pa.C.S. § 9544(b). In her first two claims, appellant challenges the trial court's disposition of matters related to her jury trial waiver. In presenting them, appellant proceeds on the premise that her omnibus pretrial motion informed 661 the trial court that she previously had been convicted of offenses similar to those at issue. Thus, while acknowledging that she raises no complaint regarding the consideration of inadmissible evidence, appellant contends that the waiver of her constitutional right to a jury trial was involuntary since she was not informed that the court knew of her prior convictions or that a jury could not consider evidence relating to them. Similarly, appellant contends that trial counsel ineffectively failed to advise her of those matters. Even if we assumed that the omnibus pretrial motion actually specified the prior crimes for which appellant was convicted and that the trial court reviewed the motion before its withdrawal, matters unsupported by the record, we would not disturb the trial court's disposition of either claim. Appellant's arguments contain no allegations indicating a link to the evidentiary process of the trial, and it is clear that the waiver of a jury trial has no impact upon either the burden of proof or evidentiary rules. See Commonwealth v. Piole, 431 Pa.Super. 391, 636 A.2d 1143 (1994). Therefore, the claims in question merely assert the existence of a constitutional violation and ineffective assistance of counsel without reference to the truth-determining process. Accordingly, they are not cognizable. In her three remaining issues, appellant questions the appropriateness of the trial court's disposition of challenges relating to the effectiveness of trial counsel. The underlying claims relate to trial counsel's failure to object to certain evidence and to call a witness. Appellant also asserts that counsel ineffectively neglected to raise the former issue on direct appeal.[5] All of the challenges to counsel's effectiveness facially implicate the truth-determining process and thus, are cognizable. See Commonwealth v. Lantzy, 712 A.2d 288 (Pa.Super.1998) (en banc) (truth-determining process not necessarily complete until the exhaustion of direct appeal rights); Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992) (ineffectiveness claims which facially implicate truth-determining process cognizable). In addition, we note that none of the three claims has been litigated previously. Accordingly, we consider whether any of them has been waived. As mentioned earlier, a claim is waived under the PCRA if it could have been raised previously but was not. Prior to the PCRA's amendment, a petitioner could overcome waiver by asserting his innocence or that the waiver occurred at a stage in the proceedings where a constitutional right to counsel existed. See 42 Pa.C.S. § 9543(a)(3)(i), (ii) (repealed). However, in the amended version of the PCRA, the legislature deleted those exceptions to waiver and added time constraints for seeking relief. See 42 Pa.C.S. §§ 9543(a)(3), 9545(b). Despite removing the exceptions to waiver and adding time limits for seeking relief, the legislature retained the provision that renders cognizable ineffectiveness claims implicating the truth-determining process, a process encompassing the direct appeal stage. See Commonwealth v. Lantzy, supra. The legislature's obvious purpose in removing the exceptions to waiver and in adding time limitations was to preclude petitioners from filing serial PCRA petitions and from seeking relief long after a conviction becomes final. The legislature's decision to retain the language rendering ineffectiveness claims implicating the truth-determining process cognizable implicitly amounts to a recognition that an allegation of ineffectiveness for failure to pursue a cognizable issue through direct appeal may overcome waiver. Since nearly all issues asserted in post-conviction proceedings have been waived under the strict language of 42 Pa.C.S. § 9544(b), any contrary conclusion would essentially nullify the PCRA. Indeed, it defies common sense to conclude that the legislature intended to render certain issues cognizable and then intend them to be waived. Thus, while the amended PCRA precludes the filing of serial claims for relief, it effectively retains the right of criminal 662 defendants to file one petition within the prescribed time frame. For purposes of that first petition, we must presume that a cognizable issue has not been waived. In the present case, we do not believe any of the three underlying issues have been waived. It is clear that claims of ineffectiveness must be raised at the first opportunity at which counsel whose effectiveness is being challenged no longer represents the defendant. See Commonwealth v. Granberry, supra. Since trial counsel represented appellant through the direct appeal stage, appellant took advantage of the first opportunity that she had to raise those claims when she asserted them in the PCRA proceedings. Accordingly, we address their merits. Our standard for reviewing the effectiveness of counsel is well established. In order to demonstrate ineffective assistance of counsel, an appellant must show: "1) that the underlying claim is of arguable merit; 2) that counsel's performance was unreasonable; and 3) that counsel's ineffectiveness prejudiced defendant." Commonwealth v. Peterkin, 538 Pa. 455, 460, 649 A.2d 121, 123 (1994). Commonwealth v. Robinson, 452 Pa.Super. 606, 611-13, 682 A.2d 831, 834 (1996). Trial counsel is presumed to be effective, and the burden of proving ineffectiveness rests with appellant. Commonwealth v. Wallace, 433 Pa.Super. 518, 641 A.2d 321 (1994). Moreover, "[i]n reviewing any particular claim of ineffectiveness, we need not determine whether the first two prongs of the standard are met if the record evinces that Appellant has not met the prejudice prong." Commonwealth v. Jones, 546 Pa. 161, 175, 683 A.2d 1181, 1188 (1996), citing Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352 (1995); Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293 (1996). "Prejudice ... has been defined to mean that Appellant must establish that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different." Commonwealth v. Crawley, 541 Pa. 408, 414, 663 A.2d 676, 679 (1995). See also Commonwealth v. Jermyn, 533 Pa. 194, 198, 620 A.2d 1128, 1130 (1993) (in order to establish prejudice, appellant must demonstrate that counsel's improper course of conduct "had an adverse effect upon the outcome of the proceedings."); Commonwealth v. Anthony, 376 Pa.Super. 623, 628, 546 A.2d 1122, 1125 (1988) ("[T]o prove that counsel's ineffectiveness resulted in prejudice, an appellant must show that the error was `so serious as to deprive him or her of a fair trial, a trial whose result was reliable.'") (Citations omitted). Commonwealth v. Cull, 455 Pa.Super. 469, 480, 688 A.2d 1191, 1196-97 (1997). Commonwealth v. Oliver, 693 A.2d 1342, 1346 (Pa.Super.1997). Appellant contends that trial counsel ineffectively failed to object when the Commonwealth asked appellant if she had been convicted in the past of selling drugs. She further contends that counsel improperly failed to raise the matter on direct appeal. We note, however, that the trial court indicates that it did not consider appellant's prior record during the adjudication process.[6]See Trial court opinion, 6/17/97, at 7. Moreover, it is clear that when the court is sitting as fact-finder it presumptively is capable of disregarding inadmissible evidence and considering only relevant and competent evidence. See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Miller, 426 Pa.Super. 410, 627 A.2d 741 (1993). Consequently, as we perceive no prejudice flowing from counsel's omission, counsel may not be faulted for neglecting to interpose an objection to the question. Similarly, even if we assumed that counsel properly could have questioned his own effectiveness, he may not be faulted for neglecting to question his conduct regarding the matter on direct appeal. 663 Finally, appellant contends that trial counsel ineffectively failed to call Randy Turner as a witness on her behalf. In order to establish that trial counsel was ineffective for failing to call witnesses, a petitioner must: (1) identify the witness or witnesses; (2) demonstrate that counsel actually knew, or had a duty to know, the identity of the witness or witnesses prior to trial; (3) demonstrate that the witness or witnesses were ready, willing and able to testify for the defense at trial; and (4) demonstrate that the proposed testimony would have been helpful to the defense asserted at trial. Commonwealth v. Schultz, supra at 519. In the present case, we have examined appellant's PCRA petition, the offer of proof made therein, and the letter written by Mr. Turner, which was filed as an exhibit. The petition indicates that appellant advised counsel that she wished Mr. Turner to testify and that Mr. Turner was willing and able to testify at the time of appellant's trial. It also establishes that Mr. Turner's testimony would have demonstrated that appellant was not aware of the presence drug-related items in the house. However, we note that appellant testified at trial that she was unaware of the drugs and related items found in the residence. The testimony of Mr. Turner would have done little more than corroborate appellant and thus, would have been cumulative. Consequently, appellant's claim must fail. See Commonwealth v. Milligan, 693 A.2d 1313 (Pa.Super.1997) (counsel ordinarily will not be deemed ineffective for failing to call witnesses for the presentation of merely cumulative testimony). Accordingly, as appellant has failed to demonstrate that the trial court's disposition of any of her claims was improper, we affirm. Order affirmed. NOTES [1] Since appellant filed her PCRA petition within one year of the date on which her judgment of sentence became final, it is timely. See 42 Pa. C.S. § 9545(b). [2] While the record certified to us does not contain this notice, other documents presented to us refer to it. [3] The amendments, which changed provisions relating to cognizability, eliminated exceptions to waiver, and set forth time limits for seeking relief, substantially limit a petitioner's ability to obtain relief. See 42 Pa.C.S. §§ 9543-9545. [4] We note that the amended statute has not been renumbered. [5] The Commonwealth contends that appellant's challenge to counsel's failure to raise the matter on direct appeal was not asserted in the PCRA court. See Commonwealth's brief at 14. Contrary to the Commonwealth's contention, our review of the record reveals that appellant raised this precise issue in her PCRA petition and argued it in her memorandum of law. [6] While the trial court made this statement in connection with appellant's jury waiver claims, it appears equally applicable to the present issue.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2243170/	634 N.E.2d 448 (1994) 262 Ill. App.3d 94 199 Ill.Dec. 609 Janice CIAMPI, Plaintiff-Appellee, v. OGDEN CHRYSLER PLYMOUTH, INC., Defendant-Appellant. No. 2-93-0014. Appellate Court of Illinois, Second District. May 19, 1994. 451 J. Michael Fitzsimmons, Lisa A. Johnson, Matthew T. Caruso (argued), Fitzsimmons, Roberts and Paine, Oak Brook Terrace, for Ogden Chrysler Plymouth, Inc. Norman H. Lehrer, Maureen H. Flaherty (argued), Lehrer, Flaherty & Canavan, Wheaton, for Janice Ciampi. Justice COLWELL delivered the opinion of the court: Plaintiff, Janice Ciampi, initiated a complaint against Ogden Chrysler Plymouth (Ogden) and Chrysler Motors Corporation (Chrysler) alleging common-law fraud and fraud under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1992)), and against Peerless Federal Savings and Loan (Peerless) for revocation of a retail installment contract in connection with Ciampi's purchase of a Chrysler LeBaron from Ogden that was financed by Peerless. Ciampi amended her complaint by alleging an additional violation of the Federal odometer statute (15 U.S.C. § 1981 et seq. (1982)) against Ogden. The trial court granted summary judgment to Chrysler and Ciampi settled with Peerless prior to trial, leaving Ogden as the only remaining defendant. A jury returned a verdict in favor of Ciampi on the common-law fraud count and awarded $5,000 in compensatory damages and $100,000 in punitive damages. The jury also found in favor of Ciampi on the Federal odometer violation and assessed $1,500 in damages. The Consumer Fraud Act claim was not tried to the jury, and the trial court took it under advisement and thereafter entered judgment in favor of Ciampi. The trial court awarded $35,070 in attorney fees to Ciampi under the Consumer Fraud Act claim. In its judgment, this award of attorney fees was offset against the punitive damages awarded on the common-law fraud count. The trial court denied Ogden's motion for a judgment notwithstanding the verdict, and this appeal followed. Ogden claims on appeal that: (1) Ciampi presented insufficient evidence of fraud or other violations; (2) the trial court erred in instructing the jury; (3) the trial court erred in admitting plaintiff's exhibit No. 2, the window sticker; (4) the compensatory damages were unjustified; (5) the punitive damages were improper and excessive; and (6) the award of attorney fees was improper. We affirm. The jury trial began on April 13, 1992. Ciampi testified that she was looking for a new car in September 1988. At that time she owned a 1985 Honda Civic outright. She had purchased new cars before but always with the assistance of her husband or her father. On or about September 17, 1988, Ciampi drove by Ogden and decided to stop and look at cars. She was approached by a salesman named Todd Lee. She told Lee that she was interested in the new LeBarons but she thought they were out of her price range. Lee told her that Ogden had executive driven cars and "demos" that were more in her price range. Ciampi said she did not want an executive driven car because they were on the used car lot and she wanted a new car warranty. Lee then showed her 452 three demos at the back of the new car lot. Lee said these cars included a new car warranty. Ciampi took one of these cars for a test drive. She asked Lee why the car did not have a window sticker. Ciampi testified that Lee had the sticker in his hand and proceeded to read to her the options on the car. She described the window sticker as the paper which lists the options and other information about the car and the manufacturer's suggested retail price. Ciampi glanced at the odometer during the test drive and noticed that it read over 13,000 miles. She told Lee she thought this was a lot of miles for a demo. Lee said the salesman who drove the car lived in Chicago and that they were highway miles. Lee then asked Ciampi what he could do to sell her the car today. Ciampi replied that she was not buying a car today but they could talk about price. Lee indicated he wanted to have her Honda appraised before they talked price. Lee then told her he could not go to the sales manager with any offer unless he had a check or cash deposit from her. After Ciampi refused to give Lee a check or cash deposit, Lee told her she was never going to find out how much the LeBaron cost if she did not let the sales manager know she was serious. Ciampi thought it was all right at that point to see what kind of price she could get, so she gave Lee her Visa card. Lee left and came back with another man who he introduced as the assistant sales manager. This man asked Ciampi what she could afford a month. Ciampi said $200. The assistant sales manager wrote it down, said he would show it to the sales manager, and left the room with Lee. Both men returned with a counteroffer from the sales manager of $280 or $289. Ciampi told the men she did not like buying a car like this because she did not know what the total price of the car was. She was then told she had to make a counteroffer, so she said $210. Ciampi said she still had not seen the window sticker although she had asked about it. Ciampi said they counteroffered back and forth several times until the assistant sales manager came back with an agreement on $225. The men then congratulated her on buying a car. Ciampi told them she was not buying a car today and that she still wanted to know the total price of the car. She also wanted to know about the new college graduate rebate and the financing charges. Ciampi said Lee and the assistant sales manager told her that the finance manager would have that information. She was then left alone in the office for 45 minutes. Ciampi went looking for Lee to get her car keys and her Visa back but was unable to find him. Soon after, Lee reappeared and took Ciampi to see the finance manager. Ciampi told the finance manager she was not buying the car and she wanted her keys and her Visa back. The finance manager then pushed some papers toward her. Ciampi said she wanted to check the teacher's credit union because she thought she could beat the 12% financing drawn up in the papers. The finance manager put the papers into a computer and then drew up new documents with a lower interest rate. The payments were to be $229 per month for five years. When Ciampi pointed out that this amount was over the agreed payment of $225, the finance manager said "what's four bucks." Ciampi then started signing papers. She said she had been there almost four hours and "[i]t seemed to me it was easier to buy the car than just deal with it any more." At this point, Ciampi still had not seen the window sticker from the LeBaron. She signed the papers in reliance on the salesperson's statements that she would receive a new car warranty on the vehicle. The basic warranty on this particular vehicle was supposed to be 12 months or 12,000 miles. She testified that she was given a credit of $3,800 for her Honda. Ciampi could not sign over title to her Honda because she did not have the document with her. Ciampi said the purchase order, the finance contract, and the tax form described the LeBaron as "new." She was shown a prepared odometer certificate on the LeBaron with the number "12" typed in for the miles on the car. Ciampi testified that the odometer certificate contained a signature of certification when it was given to her. Ciampi pointed out to the finance manager that the number was incorrect. The finance manager told her that "they all come up with 12 453 miles on it." Ciampi asked the finance manager if she could correct it. She wrote in 13,675 for the mileage, they both initialed it, and Ciampi signed the statement. Ciampi returned to Lee's office where he gave her a check sheet to sign and a warranty booklet. The warranty booklet had her name on the back and listed the warranty start date as "12/31/87." The mileage at delivery space was left blank. Ciampi did not look at the warranty booklet until she went home. She then picked up her jacket in Lee's office and saw the window sticker from the LeBaron. She picked it up without reading it and put it in her purse. Ciampi said she did not multiply $229 per month for 60 months until she went home. Later at home, Ciampi matched the figures on her car documents with the window sticker and determined she had been overcharged. She called an attorney friend, Ray Stauber, who agreed to accompany her to the dealership on Monday. On September 19, Ciampi and Stauber met with Lee and later met with the manager. Stauber told the manager that the contract bordered on consumer fraud. The manager replied that they would have to talk to his lawyer. Stauber requested that the Honda not be sold or traded. Ciampi later authorized Stauber to send a letter to Ogden; however, she never received a reply. A second letter sent to Ogden in October 1988 also received no response. Ogden called Ciampi in mid-October 1988 for the title to the Honda. Ciampi refused to send the title because she wanted her car back. Ciampi kept the LeBaron and continued to drive it. She took the car in for service on October 10, 1988, to correct problems that Ogden had agreed to fix at the time of purchase. After this service date, she never spoke to anyone at Ogden. Ciampi admitted that no one at Ogden ever told her she did not have a warranty on the car for 12 months or 12,000 miles from the date she put her car in service. Ciampi had the car in her possession for about two years. During this period, she never made any payments pursuant to the terms of the contract. The buyer's order on the purchase of the LeBaron showed the price of the LeBaron as $14,100 plus destination charge, delivery fee, and taxes for a total of $15,397.66. Ciampi was given a trade-in credit of $3,800 for her Honda and a Chrysler rebate of $1,000 for an unpaid cash balance due of $10,597.66. Ciampi was shown defendant's exhibit No. 1, the sheet on which Lee wrote her estimated possible payments of $200 per month and with which she had bartered back and forth with the sales manager. The writing on the back of the sheet states "225 a month That's it or I'll go shopping! O.K. Jan." Ciampi testified that the only word she had written was "Jan" and that some of the words on the exhibit were not there when she signed it. Ciampi testified that she recognized plaintiff's exhibit No. 2, the window sticker, as the same one Lee had in his hands during the test drive because of the way it was folded. She said the vehicle identification number matched that of the LeBaron. Ciampi was not sure if the window sticker she picked up off of Lee's desk was an original or a copy. The word "copy" in blue ink was not on the document when she picked it up. Judith Spellman testified that she works at Bill Kay Chrysler as general manager and worked at Ogden prior to 1987. She was not working for Ogden in September 1988. Spellman was shown plaintiff's exhibit No. 2, the copy of the window sticker. Spellman stated that it was Ogden's policy not to remove window stickers until a vehicle was delivered to the purchaser, although this was not a written policy. She testified that the manufacturer's suggested retail price on plaintiff's exhibit No. 2 was $13,637 if the LeBaron was new. Ciampi's buyer's order lists the total amount of charges on the LeBaron as $15,397.66. Spellman could not state whether Ciampi was charged more than the manufacturer's suggested retail price since she did not know how much the Honda trade-in vehicle was worth. Spellman stated that when she worked at Ogden, there was no upper limit as to how many miles a car could have on it and still be sold as a new car. Ray Stauber, an attorney and personal friend of Ciampi's, testified that he accompanied her to Ogden a couple of days after she 454 purchased the LeBaron. Stauber believed that Ciampi had been grossly overcharged for the vehicle. Stauber and Ciampi met with the sales manager. Stauber said Ciampi had never been told the final price of the vehicle and that if an "adjustment" could not be made, she wanted her car back. Stauber suggested an adjustment of $2,500 in the price of the car, which Ogden rejected. Carl Wascher, a former consumer loan officer, was called as an expert witness by Ciampi. Wascher defined a new car as one that had not been titled and had an odometer reading of around 30 miles or less. He opined that a car with over 13,000 miles on it would be a used car. Wascher examined the window sticker for the LeBaron, the retail order, the bill of sale, the purchase order, and the odometer mileage statement and opined that Ciampi had been overcharged by approximately $3,600. He believed the LeBaron had a retail value of $11,700, based on information in the "Red Book," a guide used to determine the value of cars. Wascher admitted he had never personally observed the vehicle. Frederick Weissberg, president of' Schaumburg Auto Sales, was also called by Ciampi as an expert witness. Weissberg reviewed the exhibits in this case and determined that the LeBaron was a used car based on the mileage and the fact that the car was no longer covered by the warranty. He also noted that Ciampi appeared to have been charged $425 twice for the destination charge. In his opinion, Ogden overcharged Ciampi $3,000 to $4,000 for the LeBaron. He believed the retail value of the vehicle to have been no more than $10,500 on September 17, 1988. William Koloseike, owner of Ogden, testified that Ogden had an oral policy not to remove the window sticker from a vehicle until it is delivered to the purchaser. He stated that the stickers are sometimes removed from demos if they hinder the drivers' vision. Koloseike said that people are willing to pay more than the manufacturer's suggested retail price for an automobile on some models. He said that the LeBaron purchased by Ciampi was a demo and is thus considered new. He said that the Illinois Secretary of State defines a car as "new" until that period of time when the vehicle is sold and titled in a person's name. Koloseike explained that this definition does not consider mileage in distinguishing between new and used. Richard Ruscitti testified that he was the sales manager at Ogden and was involved with Ciampi's purchase of the LeBaron. He said that Ciampi never asked about the total manufacturer's suggested retail price of the car. Ciampi testified on rebuttal that she had never met Ruscitti or spoken to him. Mark Koloseike testified that he was general manager of Ogden from 1987 to 1988. His policy during this period was to have a window sticker in every new vehicle. He said his experience in the automobile industry was that a car was still considered new if it was still on the manufacturer's certificate of origin and had never been sold and titled to a customer. Koloseike recalled that Ciampi and Stauber came into his office in September 1988 to discuss the sale of the LeBaron and attempt to renegotiate the price. Koloseike told Ciampi that she would get the full warranty on her car. When Stauber stated that he wished to lower the price of the vehicle, Koloseike said his policy was never to renegotiate the price of a car after the sale. With the aid of notes he prepared a few days before the trial, Koloseike demonstrated during his testimony how Ogden came up with the selling price on the car. Koloseike said the selling price of the vehicle was $14,100, although he admitted that the finance application form lists the total cash price of the car as approximately $15,390. Ogden then subtracted $3,800 for the trade-in on Ciampi's Honda for a total of $10,300. He told Ciampi this was the amount she was paying for the car, plus her trade-in. Koloseike explained to Ciampi that Ogden had originally appraised the Honda at $1,800, which added to the destination charge of $425, meant the dealership actually received $12,525 for the car. He admitted that the trade-in value for the Honda was listed on the buyer's order as $3,800 rather than $1,800. Koloseike said the $3,800 is the 455 trade-in allowance and the $1,800 is the actual appraised value of the Honda. He said the $2,000 difference was used to discount the car to show an offer allowance where, as here, there was no cash down payment. Ogden used the higher trade-in value to secure financing. Koloseike showed Ciampi that Ogden gave her credit for a $1,000 rebate from the $12,525 because she had no cash to put into the deal; thus, she was really paying $11,525. He then subtracted $400 for Ciampi's college graduate rebate, leaving a total of $11,125 that she was paying for the vehicle. Koloseike said the car cost the dealership $12,600, which was $1,499 more than Ciampi was paying, but they were able to sell it at that price because the car had been depreciated. However, Koloseike later testified that Ogden received $11,597 in cash for the LeBaron, in addition to Ciampi's trade-in vehicle. Koloseike said that Ogden performed warranty work on Ciampi's LeBaron at no cost after she purchased the vehicle. Ciampi was provided with a loaner for 10 days while those repairs were being made. He examined the odometer certificate and noted that the number "12" was printed by the computer as the number of miles on the vehicle. Koloseike affirmed that Ciampi had crossed out the "12" and hand-written 13,675 onto the certificate. Koloseike said the computer was not preprogrammed to print a certain number and he does not know how the number 12 was determined to be the mileage on the LeBaron at the time the odometer certificate was prepared. Ogden first contends on appeal that Ciampi did not set forth evidence of the occurrence of any fraud elements at trial and that the trial court abused its discretion by failing to enter a judgment n.o.v. on the common-law fraud count. A judgment n.o.v. is properly entered in those limited cases where "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) In ruling on a motion for a judgment n.o.v., a court does not weigh the evidence; rather, it may only consider the evidence, and any inferences therefrom, in the light most favorable to the party resisting the motion. (Maple v. Gustafson (1992), 151 Ill.2d 445, 453, 177 Ill.Dec. 438, 603 N.E.2d 508.) "The court has no right to enter a judgment n.o.v. if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome." Maple, 151 Ill.2d at 454, 177 Ill.Dec. 438, 603 N.E.2d 508. Defendant contends that the evidence demonstrated that Ciampi was told the truth in connection with the purchase of the LeBaron and only suffered from buyer's remorse after the fact. The elements of a cause of action for common-law fraud are: (1) a false statement of a material fact; (2) known or believed to be false by the party making it; (3) an intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party as a result of the reliance. Reliance by the other party must be justified. (Soules v. General Motors Corp. (1980), 79 Ill.2d 282, 286, 37 Ill.Dec. 597, 402 N.E.2d 599.) Whether or not a party has adequately proved the elements of fraud is a question of fact, and the reviewing court will not disturb a trial court's finding of fraud unless it is against the manifest weight of the evidence. Black v. lovino (1991), 219 Ill.App.3d 378, 389, 162 Ill.Dec. 513, 580 N.E.2d 139. We conclude that Ogden made false statements regarding Ciampi's purchase of the LeBaron. First, Ogden made misrepresentations as to the sale price of the vehicle. The price represented by Ogden on the buyer's order form was $14,100 plus destination charges and dealer preparation charges, taxes, and fees for a total of $15,390. Mark Koloseike admitted that the cash price of the car was listed by the finance manager on the credit application as around $15,390. However, the window sticker containing the same vehicle identification number as the LeBaron here indicates that the manufacturers suggested retail price for this car as new with no 456 miles was $13,637. Ogden argues that Ciampi knew or should have been aware of the price she was paying since it was clearly listed on the buyer's order. Yet the evidence indicates that she repeatedly asked for but was never shown the window sticker and was never informed of the manufacturer's suggested retail price until she got home and looked at the window sticker. The jury could conclude that Ogden intended to keep the window sticker from Ciampi so that she would not learn the true price of the car. We also conclude that Ciampi was misled as to whether she was getting a car with a new car warranty. Ciampi testified that she was led to believe that both new cars and demos include new car warranties, the only difference being that a demo had been driven. The evidence at trial revealed that the basic warranty on the 1988 LeBaron was 12 months or 12,000 miles, which ever came first. The warranty book given to Ciampi when she purchased the car listed the warranty start date as December 31, 1987. The warranty book states that the basic warranty begins on the vehicle's warranty start date which "is the earlier of (1) the date you take delivery of your new car or truck, OR (2) the date the vehicle was first put into service (for example, as a dealer `Demo' or as a Chrysler company car)." Here, the LeBaron had over 13,000 miles on it since being put into service as a demo. Therefore, the warranty had expired by definition. Ogden argues that Ciampi was told she would receive the full warranty. Ogden notes that, in October 1988, it performed warranty work on the LeBaron after Ciampi purchased it. Ciampi was not charged for these repairs. However, the evidence indicates that the repairs made were agreed upon as part of the original deal when Ciampi purchased the car. Therefore, the jury could conclude that the overwhelming evidence indicates that Ogden misrepresented the fact that Ciampi would receive a full new car warranty. We also believe that Ogden misrepresented the car as "new" to Ciampi in order to justify a higher price for the vehicle. William and Mark Koloseike, as well as Spellman, all testified that a demo is a new car. William Koloseike specifically stated that Ciampi was sold a "new car, new car demo. New." The retail installment contract, the buyer's order, tax form, and the vehicle identification card, all prepared by Ogden for Ciampi's purchase, designate the LeBaron as a new car. Ogden claims that the LeBaron had never been previously titled and is designated by the Illinois Vehicle Code (Code) as "new" until it has been placed in a bona fide consumer use. (See 625 ILCS 5/1-216 (West 1992).) However, this Code definition was not tendered as a jury instruction and was only testified to generally by William Koloseike. Moreover, in Maxcy v. Frontier Ford, Inc. (1975), 29 Ill.App.3d 867, 331 N.E.2d 858, this court stated: "We disagree with defendant's contention that a car is `new,' no matter its use, wear and mileage, so long as it still carries a manufacturer's certificate of origin. It may be true, as defendant argues, that when the car still bears the manufacturer's certificate of origin and, on their records, has never been individually titled, the State does not recognize any prior purchaser. This lawsuit, however, is between the seller and the buyer, and involves what a purchaser can reasonably understand a contractual representation of `newness' to mean. The fact that a car is carried as new on the records of the Secretary of State and is considered as a new car by the trade practices of automobile dealers does not decide the issue. When a car is sold as `new,' the purchaser is entitled to receive a car which does not show age and wear from whatever cause to a greater degree than reasonably may be expected in a car of the kind and price involved." Maxcy, 29 Ill.App.3d at 870-71, 331 N.E.2d 858. Whether a car is "new" is an issue to be decided by the trier of fact under the circumstances of each case and not by a mechanical application of the motor vehicle laws. (Maxcy, 29 Ill.App.3d at 871, 331 N.E.2d 858.) We acknowledge that the facts in Maxcy are distinguishable since that case concerned a vehicle that was previously sold, recovered, and then sold by a dealership to 457 plaintiff as a new car. Nonetheless, we believe the Maxcy analysis as to the definition of "new" is applicable to the case at hand. Ciampi was entitled to receive a car with an amount of wear and tear that would be reasonable for the price involved. Instead, she was charged more for a LeBaron with over 13,000 miles than the sticker price for the same car with no mileage. The jury could conclude that the LeBaron was not a "new" vehicle and that Ciampi was grossly overcharged. Ogden argues that we must reverse the judgment on the common-law fraud claim since jury instructions Nos. 10A and 14A erroneously omitted the crucial fraud element of the justifiability of Ciampi's reliance. As previously noted, a plaintiff must show justifiable reliance on a false statement in order to establish fraud. (See Soulss, 79 Ill.2d at 286, 37 Ill.Dec. 597, 402 N.E.2d 599.) The standard for assessing the adequacy of jury instructions is whether they fully, fairly, and comprehensively inform the jury of the applicable legal principles. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill.App.3d 5, 18, 142 Ill.Dec. 410, 552 N.E.2d 1151. In Marino v. United Bank of Illinois, N.A. (1985), 137 Ill.App.3d 523, 92 Ill.Dec. 204, 484 N.E.2d 935, a case involving fraudulent misrepresentation, this court stated: "In determining whether there was justified reliance, it is necessary to consider all of the facts in plaintiff's actual knowledge as well as those which he could have discovered by the exercise of ordinary prudence. [Citation.] While a person may rely on a statement without investigation if the party making the statement creates a false sense of security or blocks further inquiry [citation], it must be determined whether the facts were such as to put a reasonable man on inquiry." (137 Ill. App.3d at 527, 92 Ill.Dec. 204, 484 N.E.2d 935.) Clearly, the jury should have been asked to determine the justifiability of Ciampi's reliance. Instructions Nos. 10A and 14A failed specifically to inform the jury that Ciampi's reliance on the fraudulent statements must be justified. However, we believe that Ogden waived this issue by failing to object specifically to instructions Nos. 10A and 14A. (See, e.g., Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App.3d 409, 414, 76 Ill.Dec. 130, 458 N.E.2d 530.) Objections to instructions must be made with sufficient particularity to afford the court identity of the error relied upon. (Mathis v. Burlington Northern, Inc. (1978), 67 Ill.App.3d 1009, 1011, 24 Ill.Dec. 639, 385 N.E.2d 780.) The failure specifically to set forth the error with sufficient clarity to identify the issue constitutes a waiver of objections to the instruction. (Mathis, 67 Ill. App.3d at 1012, 24 Ill.Dec. 639, 385 N.E.2d 780.) The transcript from the jury instruction conference indicates that Ogden's objections to both instructions on the record were insufficient to preserve this matter on appeal. We note that Ogden submitted an instruction which stated that Ciampi had the burden of proving, among other things, "[t]hat the plaintiff relied on the representation and was justified in doing so." However, this instruction was withdrawn and was not ruled upon by the trial judge. We hold that Ogden waived its argument as to this issue. Ogden also claims that the jury was improperly instructed on the definition of "new" and that counsel for Ciampi misled the jury by discrediting evidence of the Code definition of "new" when he was aware that such evidence was true and accurate. The jury instructions as to the definition of "new," read: Instruction No. 29: "When a car is sold as `new', the purchaser is entitled to receive a car which does not show age and wear from whatever cause to a greater degree than reasonably may be expected in a car of the kind and the price involved." Instruction No. 30: "Whether the automobile in question was `new' when sold to Janice Ciampi is for you to decide." Ogden contends that it was not for the jury to decide whether the car purchased by Ciampi was "new," but rather it was for the jury to decide whether Ogden had committed the elements of fraud. Ogden cites Buechin 458 v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill.App.3d 237, 111 Ill.Dec. 35, 511 N.E.2d 1330, where this court commented: "[i]n our analysis of whether fraud had been committed, we do not focus on the number of miles on the car, but on whether Buechin got a `new' car as she and the general public understand the ordinary meaning of that word, that is, a car which has not been previously owned." (Buechin, 159 Ill.App.3d at 248, 111 Ill.Dec. 35, 511 N.E.2d 1330.) Such an analysis was germane to Buechin because the plaintiff there had bought a car that had been previously owned but was sold to the plaintiff as new. Thus, we held in Buechin that the car was not new on that basis. Here, Ogden represented to Ciampi that she was buying what amounted to a "new" car with all the new car amenities, including a full warranty. As stated previously, the court held in Maxcy that a new car purchaser "is entitled to receive a car which does not show age and wear from whatever cause to a greater degree than reasonably may be expected in a car of the kind and price involved." (Maxcy, 29 Ill.App.3d at 871, 331 N.E.2d 858.) We conclude that the definition in instruction No. 29 is in accord with the reasoning in Maxcy, which is cited with approval in Buechin. We also conclude that instruction No. 30 was proper since this court has previously held that the trier of fact is to decide whether a car is new. See Maxcy, 29 Ill.App.3d at 871, 331 N.E.2d 858. Ogden next contends that the trial court erred in allowing Ciampi's exhibit No. 2, the LeBaron window sticker, into evidence. Ogden objected to the introduction of this document at the beginning of trial on the basis that Ciampi had not previously disclosed the document pursuant to discovery requests. The first time Ogden's counsel allegedly saw the document was at the deposition of Ciampi's expert witness one week prior to trial. Ciampi's counsel admitted he had not disclosed plaintiff's exhibit No. 2 along with the rest of the discovery documents but said he had previously made this document available along with all his other documents at Ciampi's deposition. A hearing was held to determine whether the window sticker had been disclosed to Ogden. Ogden called its former attorney, Lynn Schiek, who had taken Ciampi's deposition. Schiek testified that she did not see any documents produced or made available by Ciampi's counsel, specifically plaintiff's exhibit No. 2, during the deposition. Schiek recalled a discussion during the deposition about the location of the documents to be reviewed. Timothy Hoffman, Chrysler's attorney who was also present at Ciampi's deposition, testified that he had not seen a copy of the window sticker. Ciampi testified that she recalled that all the documents were put on the table at her deposition and the attorneys were given an opportunity to look through them. Ciampi's counsel, Norman Lehrer, testified on his own behalf that he took out all the documents that he had for this case and put them on the table at the deposition, which was his usual practice. He recalled specifically that the window sticker was there because he noted that no questions were asked about it and that the defense attorneys picked up the window sticker and had a whispered conversation about the document before setting it down. The trial court found that Ogden had not been surprised by the window sticker and that the document had been presented a week previously. The trial court permitted the document at trial, noting that the document originated at Ogden's place of business and thus Ogden would have had other ways to obtain it. Whether omissions in discovery are intentional or inadvertent, a reviewing court will neither condone nor tolerate false, incomplete, or inaccurate discovery. (Boettcher v. Fournie Farms, Inc. (1993), 243 Ill.App.3d 940, 948, 184 Ill.Dec. 93, 612 N.E.2d 969.) The determination as to whether discovery has been properly answered is within the discretion of the trial court, and absent an abuse of discretion, we will not overturn the trial court's decision. (See Webb v. Angell (1987), 155 Ill.App.3d 848, 860, 108 Ill.Dec. 347, 508 N.E.2d 508.) We believe the trial court did not abuse its 459 discretion in allowing the window sticker into evidence. Ogden argues that, even if the window sticker had been properly disclosed in discovery, Ciampi did not lay a proper foundation for it at trial. Ciampi testified that she was never shown the window sticker by anyone at Ogden. She picked it up when she saw it on Lee's desk and put it in her purse without reading it. She recognized it as the window sticker Lee had in his hand because of the way it was folded. Ciampi noted that the vehicle identification number was the same as the LeBaron she purchased. In addition, both William and Mark Koloseike testified that plaintiff's exhibit No. 2 appeared to be the window sticker which refers to Ciampi's LeBaron. We hold that Ciampi laid a proper foundation for the admission of the window sticker. Ogden also contends that, even if the foundation was properly laid, the window sticker was not relevant to any issue at trial. Evidence should be admitted only if it is material, and relevancy or materiality is established if it tends to prove a fact in controversy or make a contested matter more or less probable. (Kniceley v. Migala (1992), 237 Ill.App.3d 72, 81, 177 Ill.Dec. 773, 603 N.E.2d 843.) We conclude the window sticker here was clearly relevant to support Ciampi's contention that Ogden withheld the sticker from her in order to charge her more than the manufacturer's suggested retail price for the LeBaron. The window sticker indicates the list price for a new LeBaron without miles was much less than what she agreed to pay for the car. The sticker was not on the car and was not given to Ciampi upon her request. This document is evidence of fraud committed by Ogden and was properly admitted. Ogden next contends that the evidence overwhelmingly showed that Ciampi received an accurate odometer statement in connection with the purchase of her car. Ciampi added this count in her amended complaint, pursuant to the Federal odometer statute (15 U.S.C. § 1981 et seq. (1982)). Ciampi argued, and the jury agreed, that when Ogden gave her a signed odometer certificate that certified the mileage as "12," it knew or should have known that the certificate was inaccurate. The Federal odometer statute provides for treble damages and mandatory attorney's fees to the prevailing consumer. Ogden contends that the evidence was overwhelming that it did not intend to defraud Ciampi in connection with the odometer certificate. Ciampi testified that as she was looking over the documents on the LeBaron, she was shown a signed, completed odometer certificate with "12" printed as the mileage on the car. Ciampi asked the finance manager if she could correct the number of miles. He agreed and she changed the mileage to read 13,675. Both Ciampi and the finance manager initialed the document. Ogden contends that Ciampi was thus given a correct statement of the mileage in connection with the transfer of ownership of the LeBaron and in compliance with the statute. Ciampi counters that Ogden acted carelessly and with reckless disregard of the truth or falsity of the odometer statement and that such actions constituted an intent to defraud under the Federal odometer statute. (Buechin, 159 Ill.App.3d at 253, 111 Ill.Dec. 35, 511 N.E.2d 1330.) In Buechin, plaintiff alleged that Ogden violated section 3-112.1 of the Illinois Vehicle Code regarding odometer certification. (625 ILCS 5/3-112.1 (West 1992).) Plaintiff there test drove a car which she had been told was new and which she ultimately purchased from Ogden. She did not observe the odometer while she was driving. She testified that the worksheet describing the car had a space providing for mileage which was left blank. When plaintiff was filling out other forms pursuant to her purchase of the car, she questioned the accuracy of the odometer certificate form, which indicated the car had 10 miles on it. The salesman told her the car had 10 miles on it "give or take a few" and encouraged her to sign the odometer certificate. While driving home in the car, plaintiff noticed the odometer registered 650 miles. She returned to the dealership the next day to talk about the mileage. The salesman offered to extend the warranty by 700 miles. He then filled in the worksheet with the correct mileage. Plaintiff 460 secured financing and tendered a check for payment on the car. A few days later, plaintiff returned to Ogden and expressed concern that a car with that many miles on it was not new. Plaintiff eventually learned that the car had in fact been sold to a previous customer. Buechin, 159 Ill.App.3d at 242-243, 111 Ill.Dec. 35, 511 N.E.2d 1330. The court in Buechin cited to Jones v. Fenton Ford, Inc. (D.Conn.1977), 427 F.Supp. 1328, which held that civil liability may be imposed where it is proved that "a defendant's statements were made recklessly or carelessly, without knowledge of their truth or falsity, or without reasonable grounds for belief in their truth, especially in a case where * * * the defendant was under a duty to have the knowledge in question." (Jones, 427 F.Supp. at 1334.) Accordingly, the Buechin court concluded that when the agent for defendant Ogden certified the computer-generated odometer certificate, he acted carelessly by not verifying the accuracy of that statement. Ogden had a statutory duty to ascertain the true odometer reading and to so state on the certificate. (Buechin, 159 Ill.App.3d at 252, 111 Ill.Dec. 35, 511 N.E.2d 1330.) Thus, "an intent to defraud on the part of the transferor may be inferred from a showing of gross negligence or of a reckless disregard of facts indicating the vehicle's odometer statement is inconsistent with the true odometer reading." Buechin, 159 Ill. App.3d at 253, 111 Ill.Dec. 35, 511 N.E.2d 1330. In the instant case, the fact that Ciampi knew the mileage and even corrected the statement prior to her purchase does not counteract the fact that Ogden tendered for her signature a certified document with an erroneous statement of the mileage. Ogden acted carelessly and in reckless disregard of the truth or falsity of the statement and in violation of its duty to ascertain the correct reading. The court properly denied Ogden's motion for judgment n.o.v. on this issue. Ogden next contends that the trial court's finding of liability under the Consumer Fraud Act was against the manifest weight of the evidence. Ciampi's allegations under the Consumer Fraud Act included those claims under common-law fraud and the Federal odometer laws as well as claims that Ogden "otherwise acted towards plaintiff in an unfair or deceptive manner." The trial court entered judgment for Ciampi under the Consumer Fraud Act one week after it entered judgment on the jury verdicts. Section 2 of the Consumer Fraud Act states in pertinent part: "Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the `Uniform Deceptive Trade Practices Act' * * * in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby." (815 ILCS 505/2 (West 1992).) For the same reasons that we found clear and convincing evidence of fraud and odometer violations by Ogden, we affirm the judgment under the Consumer Fraud Act. Many of the elements of common-law fraud have been eliminated by the Consumer Fraud Act; therefore, this statute affords broader consumer protection than the common-law action of fraud by prohibiting any deception or false promise. (Duran v. Leslie Oldsmobile, Inc. (1992), 229 Ill.App.3d 1032, 1039, 171 Ill.Dec. 835, 594 N.E.2d 1355.) The elements necessary for a claim under the Consumer Fraud Act are: (1) a statement by the seller; (2) of an existing or future material fact; (3) that was untrue, without regard to defendant's knowledge or lack thereof of such untruth; (4) made for the purpose of inducing reliance; (5) on which the victim relies; and (6) which resulted in damages to the victim. (Roche v. Fireside Chrysler-Plymouth, Mazda, Inc. (1992), 235 Ill.App.3d 70, 84-85, 175 Ill.Dec. 760, 600 N.E.2d 1218.) The Consumer Fraud Act eliminated the requirement of scienter, thus even innocent misrepresentations are actionable as statutory fraud. (Duron, 229 Ill.App.3d at 1039, 171 Ill.Dec. 835, 594 N.E.2d 1355.) The standard 461 of proof required on such claims is lenient, and a single transaction is sufficient to establish a Consumer Fraud Act claim. Roche, 235 Ill.App.3d at 85, 175 Ill.Dec. 760, 600 N.E.2d 1218. Section 2 of the Consumer Fraud Act states that it is an unfair or deceptive act if a seller engaged in a trade or in commerce does not advise the potential buyer of a material fact and intends that the potential buyer rely upon the omission. (815 ILCS 505/2 (West 1992); Totz v. Continental Du Page Acura (1992), 236 Ill.App.3d 891, 902, 177 Ill.Dec. 202, 602 N.E.2d 1374.) Therefore, Ogden is only liable for the failure to disclose a material fact if it intended that Ciampi rely on the omission. Circumstantial evidence may be used to establish Ogden's intent in this regard. (Totz, 236 Ill.App.3d at 903, 177 Ill.Dec. 202, 602 N.E.2d 1374.) Here, Ciampi agreed to purchase the LeBaron in reliance on Lee's statement that she was receiving a full new car warranty. Yet the evidence indicates that the basic warranty on her car had expired; thus, the promises of a full warranty could not have been fulfilled. Ogden also misrepresented the price of the car and failed to disclose the manufacturer's suggested retail price so that Ciampi unwittingly would pay more for the car. Since these acts violated the Consumer Fraud Act, we affirm the trial court's judgment on this count. We now analyze the propriety of compensatory damages awarded to Ciampi. As stated previously, Ciampi was awarded $5,000 total in compensatory damages on the common-law fraud count and the Consumer Fraud Act claim. Ogden notes that Ciampi's interrogatory which requested a list of her expenses or liability incurred stated: "[m]ortgage delayed because of credit report, $40 trunk lock, attorneys [sic] fees." Ogden argues that Ciampi did not prove these damages and, moreover, that she drove the car two years without making any payments. Ciampi contends that Ogden waived this argument since it never claimed a setoff in the trial proceedings. (Vieweg v. Friedman (1988), 173 Ill.App.3d 471, 474, 122 Ill.Dec. 105, 526 N.E.2d 364 (defendant must include a request for setoff as part of its pleadings).) However, we believe Ogden raises this point to demonstrate that Ciampi suffered little or no damage in connection with the purchase of the LeBaron. Ciampi's experts testified that she was overcharged by Ogden. Wascher opined that a 1988 LeBaron with over 13,000 miles in September 1988 would have a retail value of approximately $11,700 and that Ciampi was overcharged $3,600. Weissberg testified as to his belief that Ciampi was overcharged $3,000 to $4,000. His opinion was that the value of the LeBaron in September 1988 would have been approximately $10,500. The evidence indicates that Ogden received $10,597.66, plus the $1,000 rebate, plus the $3,800 for the Honda for a total of $15,397.66, which is the amount indicated on the buyer's order. The evidence also indicates that Ciampi was charged twice for the $425 destination charge. We believe the jury had sufficient evidence to determine compensatory damages in the amount of $5,000 and that the trial court did not err in awarding this amount. Ogden next contends that the punitive damages awarded were improper and excessive. The jury awarded $100,000 in punitive damages on the common-law fraud count. Ogden claims this amount is duplicative of the statutory treble damages of $1,500 awarded under the odometer statute. We reject Ciampi's claim that Ogden has waived its arguments as to the punitive damages by failing adequately to present the argument in its post-trial motion. Punitive damages are only to be awarded for conduct that is outrageous either because the defendant's motive was evil or the acts exhibited a reckless disregard toward the rights of others. (Totz, 236 Ill. App.3d at 909, 177 Ill.Dec. 202, 602 N.E.2d 1374.) The purpose of awarding punitive damages is to punish the wrongdoer and in doing so deter that party and others from committing similar wrongful acts. (Totz, 236 Ill.App.3d at 909,177 Ill.Dec. 202,602 N.E.2d 1374.) Punitive damages are not favored in the law; thus, courts must take caution to ensure that such damages are not improperly or unwisely awarded. Kleidon v. Rizza 462 Chevrolet, Inc. (1988), 173 Ill.App.3d 116,121, 122 Ill.Dec. 876, 527 N.E.2d 374. We first note that the punitive damage award was not duplicative of the $1,500 awarded as treble damages. While it is true that a plaintiff may not recover both punitive damages and statutory treble damages, this rule applies where such damages are assessed for the same act, since it is therefore an impermissible double recovery or excessive penalty. (See Verdonck v. Scopes (1992), 226 Ill.App.3d 484, 491, 168 Ill.Dec. 908, 590 N.E.2d 545.) Here, the $1,500 in treble damages was assessed for the violation of the odometer statute and the $100,000 amount was assessed for other violations under the common-law fraud count; thus, no double recovery occurred. We conclude that punitive damages were appropriate, given Ogden's reckless disregard of Ciampi's rights. The jury could find that Ogden encouraged Ciampi's purchase of the LeBaron but deliberately did not tell her the manufacturer's suggested retail price, despite her requests, so that they could charge her a higher price. Ogden was not forthcoming about the price of the car, the expired warranty, or the fact that the car had been driven over 13,000 miles. Mark Koloseike explained that the Honda was really only worth $1,800 but that Ogden credited Ciampi $3,800 so she could get financing. The jury could find this explanation simply unbelievable. We also conclude that the amount of punitive damages is not excessive. Relevant circumstances in reviewing an award of punitive damages include, among other things, the nature and the enormity of the wrong, the financial status of the defendant, and the potential liability of the defendant. (Black v. Iovino (1991), 219 Ill.App.3d 378, 393, 162 Ill.Dec. 513, 580 N.E.2d 139.) Each case must be carefully examined in light of the specific facts presented, and the ultimate decision should be governed by the circumstances of each individual case. (Deal v. Byford (1989), 127 Ill.2d 192, 204,130 Ill.Dec. 200, 537 N.E.2d 267.) Accordingly, we are not persuaded by Ogden's attempts to compare punitive damage awards in "similar" cases. As to the nature and enormity of the wrong, Ogden's statements were clearly intended to induce Ciampi to purchase the LeBaron at a price considerably more than the car's worth. Ciampi paid even more for the LeBaron than the manufacturer's suggested retail price for the vehicle without 13,000 miles of usage. We conclude that the award of $100,000 is both appropriate and proportionate to the nature and the enormity of the wrong. The financial status of the defendant is important and relevant because an amount sufficient to punish or deter one individual may be trivial to another. (Black, 219 Ill. App.3d at 394, 162 Ill.Dec. 513, 580 N.E.2d 139.) "[T]he amount of the award should send a message loud enough to be heard but not so loud as to deafen the listener." (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill.App.3d 703, 713, 71 Ill.Dec. 320, 450 N.E.2d 1199.) We believe the award here was sufficient to punish Ogden for its conduct and to deter it and others from similar conduct in their future transactions with customers. Therefore, we affirm the award of punitive damages. Ogden last contends that the award of attorney fees was improper. Ciampi's counsel filed a fee petition requesting attorney fees and costs incurred throughout the case in the amount of $35,075. Ogden alleged that the fee petition contained a barely legible journal of time entries which failed to explain a differentiation between the charge of $175 court time and $150 noncourt time. Ogden also argues that none of the time spent is delineated to show that it was spent specifically on the fraud count or the odometer count. Section 10a(c) of the Consumer Fraud Act (815 ILCS 505/10a(c) (West 1992)) provides that the trial court may award attorney fees to the prevailing party. (815 ILCS 505/10a(c) (West 1992).) The decision whether attorney fees should be awarded to the prevailing party under the Consumer Fraud Act rests within the sound discretion of the trial court. (Ekl v. Knecht (1991), 223 Ill.App.3d 234, 245, 165 Ill.Dec. 760, 585 463 N.E.2d 156.) The trial court here found the fee petition to be sufficient and assessed attorney fees and costs against Ogden in the amount of $35,075 to be offset against the punitive damages awarded on the common-law fraud count. Ogden alleges the trial court was misled into awarding full attorney fees regardless of any delineation as to specific counts. Ogden notes that this case was originally brought against Chrysler, Peerless, and Ogden. The count against Peerless was an action for the revocation of the retail installment contract. Peerless filed a counterclaim and extensive pleadings and discovery were conducted. Thus, Ogden contends, a considerable amount of time tabulated in the attorney fees involved matters which did not even concern Ogden. The most important factor in determining whether fees are reasonable is the amount of time necessarily spent on the case. (In re Marriage of Malec (1990), 205 Ill App.3d 273, 285, 150 Ill.Dec. 207, 562 N.E.2d 1010.) The time charged for must have been necessary to handle the matter involved. (Make, 205 Ill.App.3d at 285, 150 Ill.Dec. 207, 562 N.E.2d 1010.) Given the complexities of litigating Ciampi's claims against Ogden, Chrysler, and Peerless, as well as the materiality of these issues as to all three defendants, we conclude the trial court did not err in finding Ogden to be responsible for attorney fees incurred throughout this case. Ogden further contends that this court specifically ruled in Roche that an attorney must differentiate which part of his work was performed on each issue: "In the instant case, plaintiff filed an action under both common-law conversion and the Consumer Fraud Act (Ill.Rev.Stat. 1989, ch. 121½, par. 261 et seq.). Plaintiff's petition for fees and the accompanying time slips as well as the testimony presented by plaintiff's attorney at the hearing on the petition failed to differentiate what part of plaintiff's attorney's work was spent on the statutory fraud issue. We note that * * time spent on a consumer fraud count must be specifically delineated where a prevailing party petitions for attorney fees under the Consumer Fraud Act." (Roche, 235 Ill.App.3d at 87, 175 Ill.Dec. 760, 600 N.E.2d 1218.) We agree with Ciampi's argument that the fraud claims and the odometer claim were based on the same evidence and the time spent on each issue could not be distinguished. We believe the fee petition provided sufficient information as to the reasonableness of the fees. (See Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill.App.3d 978, 984, 115 Ill.Dec. 899, 518 N.E.2d 424.) The time entries were sufficiently detailed and legible. In addition, Ciampi's counsel testified as to the content of the petition and correctly distinguished between time spent in court and time spent elsewhere since court time was billed at a higher rate. (See In re Marriage of Yakin (1982), 107 Ill.App.3d 1103, 1120, 62 Ill.Dec. 547, 436 N.E.2d 573.) Accordingly, we affirm the trial court's award of attorney fees. For the foregoing reasons, the judgment of the Circuit Court of Du Page County is affirmed. Affirmed. INGLIS, P.J., and BOWMAN, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874124/	752 N.W.2d 33 (2008) STATE v. DODD. No. 07-1506. Court of Appeals of Iowa. February 27, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601559/	228 P.3d 590 (2010) 234 Or. App. 259 STATE of Oregon, Plaintiff-Respondent, v. Andrew Lee BASSETT, Defendant-Appellant. 080141146; A138837. Court of Appeals of Oregon. Argued and Submitted October 28, 2009. Decided March 10, 2010. 591 Kenneth A. Kreuscher, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services. Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Before HASELTON, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge. HASELTON, P.J. Defendant, who was convicted following a jury trial of assault in the fourth degree, ORS 163.160(1),[1] appeals. He assigns error to an instruction that the trial court gave in response to the jury's inquiry regarding the proper relationship between defendant's voluntarily intoxicated condition at the time of the incident and his defense of self-defense. We conclude that the court's instruction comported with the consensus of authority and with the dictates of ORS 161.125(1).[2] Accordingly, we affirm. The state charged defendant with assault in the fourth degree, ORS 163.160(1). Evidence presented at trial showed that defendant was intoxicated at the time that he committed the alleged offense. Defendant did not dispute that he assaulted the victim, but he presented evidence that he acted in self-defense. Accordingly, the trial court instructed the jury on defendant's claim of self-defense using a slightly modified version of Uniform Criminal Jury Instruction 1107: "The defense of self-defense has been raised. "A person is justified in using physical force upon another person to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which he reasonably believes to be necessary. "The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply." During deliberations, the jury submitted a question to the court, which asked, "Who[se] def[inition] of reasonable are we supposed to use? Our definition (jury's) or the defendant's in his impaired state as was described to us through his testimony?" In response, the trial court proposed instructing the jury as follows: "You have asked whether the term reasonable in the definition of self-defense is to be judged according to the standpoint of the jury, or according to the standpoint of the defendant in his impaired condition. "Voluntary intoxication is not to be considered by you to change the standard of reasonableness. The law provides that reasonableness must be judged by the jury from the standpoint of a reasonable man in the situation of the defendant at the time under all the circumstances surrounding him." Defendant objected to the trial court's proposed instruction on the ground that it effectively told the jury that it could not consider defendant's voluntary intoxication in determining whether defendant "reasonably believe[d]" that self-defense was justified. Specifically, defendant contended that, because the state had the burden of proving that he did not act in self-defense, ORS 161.055,[3] the 592 unreasonableness of defendant's belief in the need for self-defense was, functionally, "an element" of the state's case. Accordingly, invoking ORS 161.125(1), defendant argued that evidence of his voluntary intoxication was relevant to "negate" that "element" of the state's case. That is, defendant contended that, in assessing the reasonableness of his belief regarding the nature of the threat presented, the jury was required to assess the totality of his circumstances, including his voluntarily intoxicated condition. Thus, according to defendant, to the extent that his intoxicated condition militated towards a determination of reasonableness, it concomitantly "negate[d]" the state's "elemental" disproof of his defense of self-defense. Ultimately, the trial court rejected defendant's argument and instructed the jury consistently with its proposed instruction. The jury subsequently convicted defendant. On appeal, defendant assigns error to the trial court's instruction on voluntary intoxication, reiterating and elaborating on the arguments he made at trial. We review the trial court's instruction for errors of law. State v. Moore, 324 Or. 396, 427, 927 P.2d 1073 (1996). The question of whether a defendant's voluntary intoxication is a circumstance that is relevant for assessing the reasonableness of a defendant's beliefs or conduct for the purposes of the defense of self-defense appears to be one of first impression for Oregon appellate courts. Defendant has cited no case law from jurisdictions that permits a jury to take into account a defendant's voluntary intoxication as it pertains to his or her claim of self-defense. Indeed, as far as we can ascertain, the law is uniformly to the contrary. See Wayne R. LaFave, 2 Substantive Criminal Law § 9.5(d), 51 (2d ed. 2003) (where a defendant's intoxication is voluntary "he does not have the defense of self defense, which requires that the defendant appraise the situation as would a reasonable sober man" (emphasis in original)). See also United States v. Weise, 89 F.3d 502, 505 (8th Cir.1996) (concluding that "the district court properly told the jury to disregard [the defendant's] intoxication when deciding if [the defendant's] belief of imminent peril was founded on reasonably perceived circumstances"); United States v. Yazzie, 660 F.2d 422, 431 (10th Cir.1981), cert. den., 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 464 (1982) (concluding that trial court did not err in instructing the jury to disregard the defendant's intoxication as it related to his defense of self-defense).[4] The apparent universal rejection of defendant's argument comports with legal and common sense. A defendant is justified in using self-defense only when he or she "reasonably believes" that force is necessary to guard against "the use or imminent use of unlawful physical force" against the defendant or a third person, and the defendant uses the "degree of force which [he or she] reasonably believes to be necessary." ORS 161.209. A defendant's subjective "honest belief" that a perceived threat is great or imminent is not enough to justify his or her 593 use of self-defense. State v. Lawton, 4 Or. App. 109, 110-11, 476 P.2d 821 (1970), rev. den. (1971). The defendant's belief must also be objectively reasonable, as judged "from the standpoint of a reasonable [person] under the same circumstances." Id. at 110, 476 P.2d 821. Determining a defendant's "reasonable belief" from the perspective of an intoxicated person would contradict the objective "reasonable person" standard that the defense demands. Nonetheless, defendant contends that, by its terms, ORS 161.125 permits the jury to consider evidence of defendant's voluntary intoxication in assessing the reasonableness of his beliefs or conduct in self-defense. Again, ORS 161.125(1) provides, in part: "[V]oluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant * * was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged." Defendant's theory, as we understand it, proceeds as follows: (1) Because defendant raised a self-defense defense, the state has the burden of proving beyond a reasonable doubt that the defense does not apply. ORS 161.055. (2) To meet that burden, the state must necessarily prove that self-defense was not justifiedin other words, that defendant's belief as to the necessity of that self-defense was not reasonable. (3) The unreasonableness of defendant's belief in the need for self-defense is, therefore, functionally, an "element of the crime" that the state is required to prove.[5] (4) Because evidence of defendant's voluntary intoxication is relevant to "negative" that "element" of the state's casethat is, to establish that defendant's belief was reasonable, it is authorized under ORS 161.125(1). (5) Thus, the trial court's instruction violated the dictates of ORS 161.125(1). Defendant's argument so framed turns on the proper understanding of the term "element of the crime charged" in ORS 161.125(1). In construing that term, we adhere to the methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), as modified by ORS 174.020 and State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). According to that methodology, we examine the text and context of the statute, as well as any legislative history offered by the parties that, in the court's determination, is pertinent. Gaines, 346 Or. at 171-72, 206 P.3d 1042. "[E]lement of the crime" is not defined in Oregon's Criminal Code. However, in ordinary usage, an "element of the crime" is commonly understood to refer to an element of the state's prima facie case, as distinct from a component of a defense. See, e.g., Black's Law Dictionary 597 (9th ed. 2009) (defining "elements of crime" as "[t]he constituent parts of a crimeusu. consisting of the actus reus, mens rea, and causationthat the prosecution must prove to sustain a conviction," and distinguishing the broader definition adopted by the Model Penal Code in section 1.13(9)). The text of the statute, which refers specifically to the "element of the crime charged,"i.e., "charged" as distinct from "as defended"comports with that understanding. Indeed, our review of the history of the 1971 omnibus revisions of the Criminal Code discloses that the Criminal Law Revision Commission considered, but decided not to adopt, the Model Penal Code's broad definition of "element of an offense," which, arguably, could have supported defendant's theory here. Under that definition, "element of an offense" includes such conduct, attendant circumstances, or results of conduct that 594 "negatives an excuse or justification for such conduct," including the justification of self-defense. I Model Penal Code and Commentaries § 1.13(9), 209 (Official Draft and Revised Comments 1985). However, as noted, the commission decided against adopting the Model Penal Code's definition of the term. See Minutes, Criminal Law Revision Commission, Subcommittee No. 1, Mar 4, 1969, 2.[6] In sum, the trial court's instruction regarding the consideration of defendant's voluntarily intoxicated condition complied with the consensus of authority and the dictates of ORS 161.125(1). Affirmed. NOTES [1] ORS 163.160(1) provides, in part: "A person commits the crime of assault in the fourth degree if the person: "(a) Intentionally, knowingly or recklessly causes physical injury to another[.]" [2] ORS 161.125(1) prescribes when evidence of a defendant's intoxication may be used to defend against a criminal charge. It states, in part: "[V]oluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant * * was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged." [3] ORS 161.055 provides, in part: "(1) When a `defense,' * * * is raised at a trial, the state has the burden of disproving the defense beyond a reasonable doubt. "* * * * * "(3) The state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant. `Raised by the defendant' means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant's case in chief." [4] A variety of state appellate courts have reached the same conclusion. See, e.g., People v. Vasquez, 148 P.3d 326, 330 (Colo.Ct.App.2006), rev. den., No. 06SC556, 2006 WL 3404625 (Colo., Nov. 27, 2006) (holding that, "[b]ecause the reasonable person standard requires a `defendant [to] appraise the situation as would a reasonable sober [person],' evidence of voluntary intoxication is irrelevant" to the defendant's affirmative defense of self-defense (quoting LaFave, 2 Substantive Criminal Law § 9.5(d) at 51) (brackets in Vasquez; emphasis in original)); State v. Brown, 22 Conn.App. 521, 529, 577 A.2d 1120, 1125, rev. den., 216 Conn. 825, 582 A.2d 204 (1990) ("The defendant would have us abandon the requirement that his conduct be judged ultimately against that of a reasonably prudent person and replace it with what might be euphemistically called the `reasonably prudent drunk' rule. This we decline to do."); Commonwealth v. Barros, 425 Mass. 572, 576, 682 N.E.2d 849, 853 (1997) ("The defendant's belief cannot be deemed reasonable on the ground that, due to intoxication, he misapprehended the situation."); State v. Wheelock III, 158 Vt. 302, 308, 609 A.2d 972, 976 (1992) ("Although individual attributes * * * are relevant to whether defendant's beliefs are reasonable [for the purposes of the self-defense defense], voluntarily induced states of mind such as those caused by drug and alcohol ingestion are not."). [5] As support for that proposition, defendant invokes State v. Whitney-Biggs, 147 Or.App. 509, 936 P.2d 1047, rev. den., 326 Or. 43, 943 P.2d 633, supplemental pro se petition for rev. den., 326 Or. 58, 944 P.2d 948 (1997). Contrary to defendant's understanding, we determined that defendant's "reasonable belief" was an "essential element" of her self-defense defense for the purposes of determining whether certain evidence was admissible under OEC 404(1) (providing that "[e]vidence of a person's character or trait of character is admissible when it is an essential element of a charge, claim or defense"). Whitney-Biggs, 147 Or.App. at 527-28, 936 P.2d 1047 (citing State v. Lunow, 131 Or.App. 429, 885 P.2d 731 (1994)). We did not hold, as defendant suggests, that a defendant's "reasonable belief" as it pertains to his or her self-defense claim is an element of the substantive offense. [6] Significantly, even if the legislature had adopted the Model Penal Code definition of "element of the offense," that would not have concluded the issue in defendant's favor. According to the Commentaries to the Model Penal Code, the definition of "element of the offense" in section 1.13(9) is "obviously too broad for the purpose of the culpability provisions[,]" which include the voluntary intoxication defense. I Model Penal Code § 1.13 comment at 211.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2896648/	NO. 07-07-0279-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A SEPTEMBER 30, 2008 ______________________________ JUAN MANUEL MARTINEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 38th DISTRICT COURT OF MEDINA COUNTY; NO. 06-07-9568-CR; HON. ANTONIO G. CANTU, PRESIDING _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. ABATEMENT AND REMAND Appellant Juan Manuel Martinez perfected an appeal from his conviction for aggravated assault and the resulting sentence of confinement for a period of twenty years in the Institutional Division of the Texas Department of Criminal Justice. The clerk’s record, reporter’s record, appellant’s brief and State’s brief have been filed. This Court has not issued an opinion in this case but anticipates the issuance of an opinion shortly. On July 22, 2008, appellant’s attorney filed a motion to withdraw from representation of appellant contending good cause existed to support his motion. Thereafter, on July 25, appellant filed a response to the motion. On August 18, the trial court entered an order granting appellant’s counsel’s motion to withdraw. The court found, in part, good cause exists for counsel’s withdrawal, that the withdrawal is not sought for delay only and that appellant was notified of the motion and his right to object to the motion. No objection to counsel’s withdrawal appears in the record. Appellant is entitled to counsel through the conclusion of his direct appeal. See Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon 2002); Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (the right to counsel on an appeal of right, under article 26.04, ends with the conclusion of the direct appeal; counsel on appeal must inform a defendant of the result of the direct appeal and the availability of discretionary review). Given the foregoing, we now abate this appeal and remand the cause to the trial court for further proceedings. On remand, the trial court shall utilize whatever means necessary to determine the following: 1. Whether appellant truly desires to prosecute the appeal; 2. If so, whether appellant is indigent and entitled to appointed counsel; and 3. If so, appoint new counsel. Should it be determined that appellant does want to continue the appeal and is indigent, and that new counsel should be appointed, the trial court shall appoint new counsel to represent appellant in this appeal. If new counsel is appointed, the name, address, telephone number, and state bar number of newly appointed counsel shall be included in an order appointing counsel. If necessary, the trial court shall execute findings of fact, conclusions of law, and any necessary orders it may enter regarding the aforementioned issues and cause its findings, conclusions, and orders, if any, to be included in a supplemental clerk’s record. A supplemental reporter’s record of the hearing, if any, shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk’s record and the supplemental reporter’s record, if any, with the Clerk of this Court by October 30, 2008. It is so ordered. Per Curiam Do not publish.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2896663/	NO. 07-08-0224-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D SEPTEMBER 26, 2008 ______________________________ SHELDON KEITH CRAIN, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 54,073-A; HONORABLE HAL MINER, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. ORDER REINSTATING APPEAL By opinion dated September 23, 2008, this Court dismissed Sheldon Keith Crain’s appeal due to counsel’s failure to certify compliance with Rule 35.3(a)(2) of the Texas Rules of Appellate Procedure regarding whether arrangements had been made to pay for the clerk’s record, which had yet to be filed. By motion to reinstate, Appellant urges that we reinstate his appeal. We grant the motion and withdraw our opinion and judgment of September 23, 2008, and, in lieu thereof, issue this order. The docketing statement filed on June 10, 2008, reflects that Appellant is represented by retained counsel. On July 16, 2008, the district clerk filed a request for extension of time in which to file the clerk’s record noting that Appellant had not paid nor made arrangements to pay for the clerk’s record. By letter dated July 18, 2008, this Court granted the clerk’s request for an extension of time to August 18, 2008. The letter also directed Appellant’s counsel to certify to this Court, by August 7, 2008, whether he had made arrangements to pay for the clerk’s record, noting that failure to do so might result in dismissal of the appeal. Counsel did not respond and on August 19, 2008, the clerk filed a second request for extension of time noting the same reasons as in the first request. No written certification from counsel was received by this Court as requested; therefore, on September 23, 2008, having given counsel a reasonable opportunity to cure his failure to arrange for the filing of the clerk’s record on appeal, the appeal was dismissed for want of prosecution pursuant to Rule 37.3(b) of the Texas Rules of Appellate Procedure. At the same time, the clerk’s second request for an extension of time was rendered moot. By his motion to reinstate, Appellant asserts that the clerk’s record was not filed due to the district clerk’s lack of knowledge of the attorney of record. Counsel also candidly confesses that he did not comply with this Court’s July 18, 2008, request to certify compliance with the Texas Rules of Appellate Procedure, because he did not notice that request before the letter was filed. Counsel assures this Court that arrangements to pay have been made and that the clerk’s record is being prepared. Accordingly, we grant Appellant’s motion to reinstate this appeal. The reporter’s record has already been filed. Upon consideration of the district clerk’s request for extension of time filed on August 19, 2008, an extension is granted to October 10, 2008, within which to file the clerk’s record. Appellant’s brief is due thirty days after the clerk’s record is filed. It is so ordered. Per Curiam Do not publish.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2231191/	732 N.W.2d 861 (2007) ERICKSON v. GREEN LAKE COUNTY. No. 2005AP3192. Supreme Court of Wisconsin. April 24, 2007. Petition for review dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2231206/	56 Ill. 2d 159 (1973) 306 N.E.2d 14 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ALFRED ARMSTRONG, Appellant. No. 45325. Supreme Court of Illinois. Opinion filed November 20, 1973. Rehearing denied January 29, 1974. James J. Doherty, Public Defender, of Chicago (George L. Lincoln, Assistant Public Defender, of counsel), for appellant. William J. Scott, Attorney General, of Springfield, and Bernard Carey, State's Attorney, of Chicago (James B. Zagel, Assistant Attorney General, and Kenneth L. Gillis and James S. Veldman, Assistant State's Attorneys, of counsel), for the People. Affirmed and remanded. MR. JUSTICE SCHAEFER delivered the opinion of the court: This case is concerned with the effect of orders denying or sustaining motions to suppress evidence upon the ground that it was illegally obtained. Section 114-12(b) of the Code of Criminal Procedure provides that if a motion to suppress is granted, "the property shall 160 be restored * * and it shall not be admissible in evidence against the movant at any trial; * * ." (Ill. Rev. Stat. 1969, ch. 38, par. 114-12(b).) Because he considered himself bound by this statute to do so, the Honorable Robert J. Downing granted the defendant's motion to suppress in the present case. The State appealed, pursuant to Rule 604. The appellate court reversed (6 Ill. App. 3d 529), and we granted leave to appeal. In 1966 the defendant was indicted for armed robbery in a tavern. Subsequently he was indicted for the murder of a police officer during an armed robbery in another tavern. The murder case was tried first, before the Honorable Edward J. Egan, and prior to the commencement of that trial the defendant moved to suppress a shotgun and a pistol that had been found in his apartment. The motion to suppress was denied, upon the ground that the defendant had consented to the search. The weapons were received in evidence at the trial, the jury found the defendant guilty, and he appealed from the judgment of conviction. While the judgment in the murder case was pending on appeal in this court, the armed robbery case came on for trial before the Honorable L. Sheldon Brown. A pretrial motion to suppress the same shotgun and pistol was made before Judge Brown, and the parties stipulated that it should be heard upon "the testimony taken at the original hearing before Judge Egan on the motion to suppress." The transcript of the testimony at that hearing was read to Judge Brown and he sustained the motion to suppress. The trial proceeded, the evidence in question was not offered, and the defendant was found guilty. Thereafter, on the appeal in the murder case, this court affirmed Judge Egan's ruling with respect to the legality of the search, but reversed the judgment of conviction because the statements of a co-defendant had been improperly received in evidence against Armstrong. (People v. Armstrong (1969), 41 Ill. 2d 390.) After 161 remandment the case again came on for trial, this time before the Honorable Robert J. Downing. The defendant renewed his motion to suppress. No additional evidence was heard. Judge Downing ruled that under section 114-12(b) of the Code of Criminal Procedure he had no choice but to suppress the evidence because a motion to suppress the same evidence had been granted by Judge Brown. The present appeal is from that ruling. Since that ruling was made by Judge Downing, this court has decided People v. Hopkins (1972), 52 Ill. 2d 1. In that case, after discussing the considerations pro and con, we held that the doctrine of collateral estoppel bars the relitigation of an order sustaining the validity of a search, in the absence of additional evidence or peculiar circumstances there mentioned. The effect of that determination is to preclude the operation of section 114-12(b) in this case, for the ruling of Judge Egan which denied the motion to suppress preceded the ruling of Judge Brown which sustained the motion. An additional circumstance leading to the same result is the fact that no evidence in addition to that which was heard by Judge Egan was offered before Judge Brown, whose ruling upon the motion followed the reading of a transcript of the testimony heard before Judge Egan upon the original motion to suppress. Moreover, Judge Brown did not hear all of the testimony upon which Judge Egan had based his ruling. The circumstances of Judge Egan's initial denial of the motion to suppress, his subsequent misgivings after he had heard additional testimony during the trial, and his final ruling reiterating his denial of the motion to suppress after he had heard still further testimony at the request of the defendant, are summarized in this court's former opinion in this case. 41 Ill. 2d at 395-6. We are of the opinion that Judge Brown's ruling did not deprive the initial denial of the motion to suppress of its vitality by way of collateral estoppel, and that the *162 appellate court properly concluded that the motion to suppress should have been denied. The judgment of the appellate court is therefore affirmed and the cause is remanded to the circuit court of Cook County. Affirmed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2004141/	60 B.R. 334 (1986) In re Earl George RODMAN, III, Debtor. Bankruptcy No. BK-83-1054-A. United States Bankruptcy Court, W.D. Oklahoma. May 6, 1986. G. Blaine Schwabe, Esq. of Mock, Schwabe, Waldo, Elder, Reeves & Bryant, Oklahoma City, Okl., for Regency Center Office Park. Todd Markum, of Hampton, Markum, Carter & Graves, Oklahoma City, Okl., for trustee. MEMORANDUM DECISION AND ORDER RICHARD L. BOHANON, Bankruptcy Judge. The issues on this motion concern the trustee's objection to the proof of claim of Regency Center Office Park, Ltd. In early January, 1982 Regency leased office space to George Rodman, Inc. The corporate tenant's performance under the lease was guaranteed by Earl George Rodman, III, debtor in this case. The lease was for a term ending in late 1992 and provided for total rent payments of approximately $5 million. After the lease had been in effect for less than a year an order for relief was entered for George Rodman, Inc. and the lease was rejected. Regency filed its proof of claim against that estate in the amount of approximately $700,000. That claim recognizes the limitations on accelerated rent contained in 11 U.S.C. § 502(b)(6) (Supp. 1986). In 1983 an order for relief was entered in this case. Regency filed its proof of claim on debtor's guaranty in the amount of approximately $4.8 million which represents the total amount remaining due under the lease. The trustee's objection contends that Regency's claim also should be limited by 11 U.S.C. § 502(b)(6). The question presented is thus whether the accelerated rent limitations apply to lease guaranties entered into by debtor-guarantors. The parties have not referred us to any decisions regarding this issue decided under the 1978 Code.[1] Regency argues that § 502(b)(6) is inapplicable here for, by its literal language, it does not embrace guarantors within its terms. Regency also argues that its claim should be liquidated under state law which provides that a guarantor is not exonerated by discharge of the principal. See Riverside National Bank v. Manolakis 613 P.2d 438 (Okla.1980); Okla.Stat. tit. 15, § 344 (1981). The trustee, on the other hand, argues that pre-Code decisions are valid authorities for limiting the Regency claim. Hippodrome *335 Building Co. v. Irving Trust Co. (In re Radio-Keith-Orpheum Corp.), 91 F.2d 753 (2d Cir.1937); Matter of Unishops, Inc., 2 Ct.Dec. (CRR) 1735 (Bankr.S.D. N.Y.1977). We believe that the trustee's argument leads to the proper result. To allow the full Regency claim would be to consume a substantial part of the property of the estate for its benefit while it may mitigate its damages by letting the property again. "[A]llowance in full of such claims [does] not seem the appropriate answer, since other general creditors would suffer proportionately, and the claims themselves would often be disproportionate in amount to any actual damage suffered, particularly in the event of a subsequent rise in rental values. In truth, the landlord is not in the same position as other general creditors, and there is no very compelling reason why he should be treated on a par with them. For, after all, he has been compensated up until the date of the bankruptcy petition, he regains his original assets upon bankruptcy, and the unexpired term in no way really benefits the assets of the bankrupt's estate." Oldden v. Tonto Realty Corp., 143 F.2d 916, 920 (2d Cir. 1944) (footnote omitted) (citations omitted). These principles of rateable distribution are equally applicable in the case of a debtor-guarantor as they are in the case of a debtor-principal. See Simonson v. Granquist, 369 U.S. 38, 82 S. Ct. 537, 7 L. Ed. 2d 557 (1962); Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939). In Simonson the Court states as a postulate that a broad aim of the Bankruptcy laws is to provide for "as equitable a distribution of assets as is consistent with the type of claim involved." 369 U.S. at 40, 82 S.Ct. at 539. Considering the type of claim involved here equity, if not the literal language of the statute, requires that the limitations pertinent to rent claims be imposed. The 1978 Bankruptcy Code does not evince any intent that a different result be reached. Accordingly, it is ordered that Regency's claim be limited to the maximum amount to which it is entitled under 11 U.S.C. § 502(b)(6). NOTES [1] While In re Winston Mills, Inc., 6 B.R. 587 (Bankr.S.D.N.Y.1980) deals with similar issues it is not precisely on the point in issue here.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1641606/	679 So.2d 756 (1996) DEPARTMENT OF EDUCATION, Petitioner, v. Sally ROE, etc., et al., Respondents. No. 86061. Supreme Court of Florida. July 18, 1996. Rehearing Denied September 10, 1996. 757 Robert A. Butterworth, Attorney General and Laura Rush, Assistant Attorney General, Tallahassee, for Petitioner. Thomas L. Powell of Douglass, Powell & Rudolph, Tallahassee, on behalf of Sally Roe, et al.; Gordon D. Cherr of McConnaughhay, Roland, Maida & Cherr, P.A., Tallahassee, and C. Graham Carothers of Macfarlane, Ausley, Ferguson and McMullen, Tallahassee, on behalf of Leon County School Board and Richard L. Merrick; John C. Cooper of Cooper, Coppins & Monroe, P.A., Tallahassee, on behalf of Samuel Alderman; and Jeannette M. Andrews of Fuller, Johnson & Farrell, P.A., Tallahassee, on behalf of Nancy E. Russell, Respondents. Alan S. Zimmet and Mark A. Connolly of Tew, Zinober, Barnes, Zimmet & Unice, Clearwater, for Pinellas Suncoast Transit Authority, Amicus Curiae. GRIMES, Justice. We have for review Department of Education v. Roe, 656 So.2d 507 (Fla. 1st DCA 1995), which expressly and directly conflicts with the opinion in Department of Transportation v. Wallis, 659 So.2d 429 (Fla. 5th DCA 1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In Tucker v. Resha, 648 So.2d 1187 (Fla. 1994), we held that a public official asserting qualified immunity as a defense to a federal civil rights claim brought in state court was entitled to interlocutory review of an order which denied her motion for summary judgment based on the defense of qualified immunity. Id. The issue in this case is whether the rule and reasoning of Tucker also apply to a nonfinal order denying a claim of sovereign immunity as a defense to a state law cause of action. The procedural facts of this case are as follows. Sally Roe and her mother, Ann Roe, sued the Department of Education (DOE), the Leon County School Board, former Ruediger Elementary School teacher Billy Campbell, and others, alleging that Campbell had sexually molested Sally and that she sustained permanent injuries as a result. Count II of the amended complaint alleged that DOE, which issued and renewed teaching certificates in the State of Florida, knew of prior misconduct on the part of Campbell, and had "determined that [he] should not be permitted to teach and that his teaching certificate should not be renewed at least pending further investigation." The amended complaint continued that in light of DOE's determination, DOE's subsequent renewal of Campbell's teaching certificate without further investigation constituted negligence. DOE filed a motion to dismiss, asserting as one of the grounds that the claim was barred by sovereign immunity. The trial court denied the motion to dismiss. DOE then filed a petition for a writ of common law certiorari, seeking review of the trial court's order. The First District Court of Appeal instead treated the petition as an appeal from an interlocutory (or nonfinal) order, reasoning that the aforementioned principle of Tucker also applied to the denial of a motion to dismiss based on sovereign immunity. The court went on to address the merits of DOE's appeal and eventually ruled in DOE's favor, remanding with directions to dismiss with prejudice the amended complaint. Department of Education v. Roe, 20 Fla. L. Weekly D686, 1995 WL 104265 (Fla. 1st DCA Mar.14, 1995), opinion withdrawn and superseded on rehearing, 656 So.2d 507 (Fla. 1st DCA 1995). On rehearing, the district court reconsidered Tucker and determined that it should not be read to authorize interlocutory review for anything other than an order denying a claim of qualified immunity in response to a federal civil rights action. Consequently, the court retreated from its earlier decision to treat DOE's petition for certiorari relief as an interlocutory appeal. The court then considered 758 DOE's petition according to the standard of review for common law certiorari and denied relief. Department of Education v. Roe, 656 So.2d at 507-08. We accepted jurisdiction after the Fifth District Court of Appeal reached a contrary conclusion in Wallis, holding that the denial of a claim for sovereign immunity does fall within the ambit of Tucker for purposes of interlocutory review. The nonfinal order at issue here is not enumerated in Florida Rule of Appellate Procedure 9.130. Nevertheless, DOE argues that the reasoning in Tucker applies equally to an order rejecting a defense of sovereign immunity. In Tucker, we also acknowledged that an order denying summary judgment was not among the nonfinal orders enumerated in rule 9.130. However, we did not end our inquiry there but instead went on to examine the nature of the right of qualified immunity. We first determined that the purpose of public official qualified immunity is to protect public officials who are required to exercise their discretion "`from undue interference with their duties and from potentially disabling threats of liability.'" Tucker, 648 So.2d at 1189 (quoting Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994)). The immunity also protects the related public interest in encouraging the vigorous exercise of official authority. Id. We agreed with the United States Supreme Court's opinion in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that qualified immunity of a public official best achieves its purpose as an immunity from suit rather than as a mere defense to liability, and that the immunity "`is effectively lost if a case is erroneously permitted to go to trial.'" Tucker, 648 So.2d at 1189 (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815). We concluded that early resolution of the qualified immunity issue was necessary to satisfy its purpose. Accordingly, we requested the Appellate Court Rules Committee of The Florida Bar to submit a proposed amendment to rule 9.130 incorporating our decision. Tucker, 648 So.2d at 1190. DOE argues that the public policy that animates sovereign immunity is similar to the public policy that animates qualified immunity. DOE points to the analysis in Mitchell in which the Court said: [A] decision of a [federal] district court is appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. [541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)]. 472 U.S. at 524-25, 105 S.Ct. at 2814. There is a legitimate basis for the assertion that the determination of sovereign immunity is collateral to the underlying merits of the suit. In fact, at one time suits such as this would have been dismissed for lack of subject matter jurisdiction without regard to the merits of the underlying claim. Department of Natural Resources v. Circuit Court of Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975) (Department entitled to prohibition against tort action in which trial judge had denied motion to dismiss), aff'd, 339 So.2d 1113 (Fla.1976). It is only because of the limited waiver of sovereign immunity in section 768.28, Florida Statutes (1995), that such a claim may now proceed in the trial court. See Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976). On the other hand, it cannot be said that suits against governmental entities grounded upon the statutory waiver of sovereign immunity constitute a small class of cases. To the contrary, permitting interlocutory appeals in such cases would add substantially to the caseloads of the district courts of appeal. Moreover, in light of the statutory waiver, it can no longer be said that the issue of sovereign immunity is always independent of the cause itself. Oftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits. Thus, many interlocutory decisions would be inconclusive and in our view a waste of judicial resources. None of these concerns were evident in Tucker. Tucker is *759 further distinguishable from cases involving sovereign immunity because qualified immunity is rooted in the need to protect public officials from undue interference, whereas sovereign immunity is not. Finally, in Tucker we had an interest in affording federal causes of action brought in state court the same treatment they would receive if brought in federal court. In contrast, this case involves no similar consideration; we are dealing here with a state law defense to an ordinary state law cause of action. Though not controlling, we note that the only two federal Circuit Courts of Appeal to consider the issue have declined to extend the right of interlocutory appeal to orders denying a motion to dismiss on a claim of federal sovereign immunity. Alaska v. United States, 64 F.3d 1352 (9th Cir.1995); Pullman Constr. Indus., Inc. v. United States, 23 F.3d 1166 (7th Cir.1994). While federal sovereign immunity is not identical to Florida's counterpart,[1] we find portions of the reasoning in those cases persuasive here. Like the federal government, Florida has agreed to be sued in its own courts for tort actions. § 768.28. Further, forcing the state to wait until a final judgment before appealing the issue of sovereign immunity does not present the same concerns that exist in the area of qualified immunity. For example, public officials who defend tort suits against the state are not sued in their personal capacities. As a result, defending these suits is not likely to have a chilling effect on the exercise of public officials' discretion in the discharge of their official duties. In addition, although the state will have to bear the expense of continuing the litigation, the benefit of immunity from liability, should the state ultimately prevail on the sovereign immunity issue, will not be lost simply because review must wait until after final judgment. See Alaska v. United States, 64 F.3d at 1355-56; Pullman, 23 F.3d at 1168. We reject DOE's reliance upon Mandico v. Taos Construction, Inc., 605 So.2d 850 (Fla. 1992), in which we amended rule 9.130 to authorize review of nonfinal orders determining that a party is not entitled to workers' compensation immunity as a matter of law. Though our basis for the amendment was "the concern for an early resolution of controlling issues," id. at 854, it is obvious that these words were not meant to apply broadly, as virtually any issue with the potential to terminate litigation could be considered "controlling." Rather, our decision in Mandico pivoted on the Workers' Compensation Law, which was created to provide both the exclusive remedy for plaintiffs and the exclusive basis of liability for defendants who meet the criteria of the statute. The case before us today involves no similar comprehensive legislative scheme that would be furthered by permitting early resolution. We decline to extend Tucker beyond the circumstances of that case to create yet another nonfinal order for which review is available. We approve the decision of the district court of appeal and disapprove the decision in Wallis. It is so ordered. KOGAN, C.J., and OVERTON, HARDING, WELLS and ANSTEAD, JJ., concur. SHAW, J., recused. NOTES [1] For example, Florida's sovereign immunity provision stems in part from separation of powers concerns, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1019 (Fla.1979), while federal sovereign immunity finds its origin in the Appropriations Clause of the United States Constitution. Pullman Constr. Indus., Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir.1994).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902278/	390 So.2d 295 (1980) Ronald David HALLFORD v. Mary Dianne HALLFORD. Civ. 2301. Court of Civil Appeals of Alabama. October 29, 1980. 296 George E. Trawick, Ariton, for appellant. Joel M. Nomberg and Donald C. McCabe of Nomberg, McCabe & Fulford, P. A., Daleville, for appellee. WRIGHT, Presiding Judge. Father appeals from an order of the Circuit Court of Dale County denying his petition for modification of a child custody decree. We affirm. The parties to this cause were divorced in July 1978 on the ground of incompatibility upon the complaint of the father. The decree, by agreement of the parties, awarded custody of the two minor children, ages six and three, to the mother and allowed the father visitation privileges. The husband was to pay monthly child support of $200 and neither parent was to remove the children from Alabama without the written consent of the other. The mother remarried in March 1979. In December 1979 the mother informed the father by telephone that she, her second husband and the children were moving to Texas. They left Alabama on December 28, 1979. (Subsequently, the second husband left the mother and children and she has filed for divorce in the state of Texas.) On January 16, 1980, the father filed a petition, in the court which rendered the divorce decree, calling on the mother to show cause why she should not be cited for contempt and seeking custody of the children by modification of the original decree. The trial court granted, ex parte, a temporary custody and restraining order on February 2, 1980, directing the mother to return the children to the court's jurisdiction or deliver them to the father. Before the mother received notice of this order, the father appeared in Texas and took the children without informing her. The mother subsequently filed an answer to the petition of the husband and her own petition for writ of habeas corpus. The trial court set all the matters for hearing on April 8, 1980, and after an ore tenus hearing found that custody should continue in the mother, that the mother and children were no longer compelled to live in Alabama, and that all other aspects of the prior decree were to remain in effect. The father filed notice of appeal to this court. At the outset, we note that in child custody proceedings it is well established that the judgment of the trial court, after testimony is taken ore tenus, is presumed correct and will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743 (1957); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975). The father, as the party seeking to modify the child custody decree, had the burden of proving a material change in circumstances since the last custody decree which has so affected the welfare and best interests of the children as to require a change in custody. Frazier v. Frazier, 342 So.2d 1320 (Ala. Civ.App.1977). The father set out four allegations as grounds to support his petition for modification and order to show cause. It is not necessary for us to discuss the first three of these on this appeal. The testimony as to these three allegations was of the familiar charge-countercharge variety so often found in cases of this nature. The evidence produced by the father in support of these was at best conflicting and inconclusive and, at worst, nonexistent. Suffice it to say that the finding of the trial court was not contrary to the great weight of the evidence as to these allegations and will not be overturned. 297 The fourth allegation was supportive of the order to show cause and merits a brief discussion. It alleges that the mother violated the original decree by removing the children from the state without the written consent of the father. The final judgment of the court below not only refused to hold the mother in contempt for this action but, in fact, modified the original decree to allow her to reside in Texas with the children. After reviewing the record thoroughly, it is apparent to us that the court felt that, in light of the improved conditions existing for the children upon the move to Texas, any failure to obtain written consent was an insufficient act upon which to base a contempt action. It is also undisputed that the mother did notify the father of the move by telephone. It was for the court to determine if its decree had been violated to a sufficient extent to amount to contempt. Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923 (1970). It is apparent from the record and the decree itself that the court had the welfare of the children uppermost in mind in rendering its decision. The mother has found a stable, well-paying job in Texas. The children are near a school and have made new friends and acquaintances close by. The grandmother looks after them while the mother is at work or unavailable. Other members of the family are also close at hand. In addition, the mother has agreed to continue allowing the children to visit with their father during the summer and holidays, and has agreed to provide transportation for that purpose. The court's decree allowing the move to Texas was not an improper exercise of discretion regarding the welfare of the child. Hayes v. Hayes, 192 Ala. 280, 68 So. 351 (1915). The trial court will continue to have the responsibility of supervising this case as necessary, and this court, in view of the record, finds no error in its judgment. Appellee-mother in brief requests this court to grant her attorney a fee for his services on appeal. We hereby grant to appellee the sum of $500 for her attorney's fee. The decree of the trial court is affirmed. AFFIRMED. BRADLEY and HOLMES, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1913624/	981 A.2d 319 (2009) COM. v. PENNEWELL. No. 1642 WDA 2007. Superior Court of Pennsylvania. June 11, 2009. Vacated and Remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1107745/	961 So.2d 741 (2007) INTERNATIONAL PAPER COMPANY, Appellant v. James Alvin TOWNSEND, Appellee. No. 2003-CA-02774-COA. Court of Appeals of Mississippi. April 3, 2007. 745 Michael O. Gwin, David Earl Rozier, Jackson, attorneys for appellant. Thandi Wade, Anita M. Stamps, and Larry Stamps, Jackson, Paheadra B. Robinson, attorneys for appellee. EN BANC. MODIFIED OPINION ON MOTION FOR REHEARING BARNES, J., for the Court. ¶ 1. The appellee's motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor. ¶ 2. International Paper Company("IP") appeals from a jury verdict finding IP forty-eight percent liable for personal injuries sustained by James Alvin Townsend ("Townsend"), and fixing Townsend's damages at $2 million.[1] IP raises numerous issues on appeal, claiming entitlement to judgment notwithstanding the verdict or, in the alternative, a new trial. We find that Townsend presented insufficient evidence at trial to create a jury question as to IP's liability, and that the trial court therefore erred in failing to grant IP's motion for JNOV. For the sake of completeness, we also address the issue of whether IP was entitled to a new trial. We find that the trial court erred in allowing the plaintiff's expert, Royal Johnson, to testify as an expert witness, and therefore, if JNOV were not appropriate, we would reverse and remand for a new trial. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶ 3. On or about July 10, 2001, Townsend, was hauling logs from a tract of land near Rolling Fork, Mississippi, to a woodyard owned by IP in Natchez, Mississippi.[2] Townsend was working for his son's company, Kenneth Townsend Logging ("Townsend Logging"). Townsend Logging had orally contracted to haul logs for Cain Logging, which was in charge of cutting the timber on the Rolling Fork tract. Townsend testified that, after cutting the timber, Cain Logging would load the logs onto the trucks operated by Townsend Logging. The truck would then drive to a set of scales operated by Terry Dean Cain Logging ("TDC Logging"), an entity distinct from Cain Logging. TDC Logging weighed the loaded trucks and then added 746 or removed logs according to the weight. The truck driver then inspected his load, bound it down with cables and secured it, and proceeded on the highway to the IP woodyard. The driver would stop periodically along the route to check his load and tighten down the binders to account for settling and/or shifting of the load. ¶ 4. Upon reaching the IP woodyard, the truck driver was required to stop at a gate where an IP employee, or "scaler," would weigh and visually inspect the load. If the scaler observed that the logs were loaded over the top of the standards[3] of the truck, that the logs were not secured with binders, or that the wood had too many limbs or knots to meet IP's specifications, then the scaler had the authority to refuse entrance to the truck driver. Assuming that the scaler found none of these conditions, he would issue a ticket to the truck driver and allow him to proceed onto the IP woodyard. However, if the scaler refused entrance, the truck driver had the option of driving to an independent yard adjacent to the IP woodyard where, for a fee, his load would be adjusted as necessary to meet IP's standards. After being admitted to the IP woodyard, the truck would drive approximately one-half to three-fourths of a mile into the woodyard to an unloading area, where the truck driver inspected his load and then released the binders so that a crane operated by IP could unload the logs from the truck. Until the crane was put into operation, IP employees played no part in removing the logs.[4] ¶ 5. On the day in question, Townsend was driving a two-bolster trailer supplied by Townsend Logging. He had already transported one load of wood from the Rolling Fork tract to the IP woodyard and had returned for a second load. He testified that the employees of Cain Logging loaded logs onto his truck, and, that after checking the load, he then proceeded to the weigh scales operated by TDC Logging. At the scales, TDC Logging added logs to his load. Townsend again checked his load and then bound the load with two cables across the width of the trailer, one cable in the front of the load, and one cable in the back. Having accomplished this, he proceeded to the IP woodyard. On the way to the woodyard, Townsend testified that he made two stops to check the condition of his load and to tighten the binders securing the load: once in Vicksburg, approximately 50 miles from the Rolling Fork tract, and once in Port Gibson. Upon arriving at the IP woodyard, the scaler admitted Townsend, and he proceeded into the woodyard to have his logs unloaded.[5] When he arrived at the loading area, he testified that he began "to un-ratchet the front ratchet, and that's when the log came off." A log fell from the trailer, struck Townsend in the chest, and rolled across his pelvis.[6] Although he received 747 prompt medical attention, Townsend's injuries were extensive, including a fractured leg and pelvis, and a urethral tear.[7] ¶ 6. Townsend filed suit on December 10, 2001, against IP and Cain Logging in the Circuit Court of Sharkey County. In his amended complaint, Townsend alleged that IP was liable for his injuries because it failed to maintain its premises in a safe condition, and because it failed to warn him of the dangerous condition. According to Townsend, IP did not maintain safe premises because it failed to employ an unbinding rack for unloading logs, and because the road leading into the woodyard was covered in potholes. Another failure to warn allegation was raised for the first time approximately one month before trial, in which Townsend posited that the IP scaler should have warned him of the dangerous condition existing on his truck when he arrived at the woodyard. Trial was held on May 20-23, 2003. At the close of trial, IP moved for judgment as a matter of law. This motion was denied, and the jury returned a verdict for Townsend in the amount of $2 million. The jury apportioned forty-eight percent of the fault to IP, forty-two percent to Cain Logging, and ten percent to Townsend. Both IP and Cain Logging filed post-trial motions for JNOV, new trial, and remittitur, all of which were denied by the trial court. Aggrieved by the judgment, IP and Cain Logging filed this appeal. Cain Logging settled with Townsend and is no longer a party to the appeal. ¶ 7. IP raises numerous issues on appeal. We find that the facts presented at trial are insufficient to support the judgment against IP and that IP is entitled to judgment as a matter of law; we further determine that the trial court abused its discretion in refusing to grant a continuance and in allowing Royal Johnson to testify as an expert witness. Therefore, even if IP were not entitled to JNOV, we would reverse and remand for a new trial. ISSUES AND ANALYSIS I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT IP'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. ¶ 8. IP argues that it is entitled to judgment as a matter of law because Townsend took a "shotgun" approach and merely presented the jury with varying inconsistent theories of IP's liability, thereby allowing the jury to speculate as to IP's liability for Townsend's injuries. Specifically, Townsend was allowed to present three theories of IP's liability to the jury. First, Townsend posited that IP was liable because the IP scaler failed to warn Townsend of the dangerous condition existing on his truck. Second, Townsend and his proffered expert speculated that the condition of the road in the IP woodyard caused Townsend's load to shift excessively, thereby causing his injury. Finally, Townsend presented to the jury the theory that IP maintained unsafe premises because it failed to have an unbinding rack on the 748 premises, and that an unbinding rack would have caught the log that injured him. ¶ 9. IP argues, correctly in our estimation, that Townsend's first two theories of liability are inconsistent: if the potholes on the IP road caused Townsend's load to shift, then the IP scaler could not have seen the danger because Townsend would already have passed by the scaler when he encountered the potholes. On the other hand, if the defect in Townsend's load was apparent when he arrived at the IP woodyard, then the potholes on IP's premises could not have been the cause of the defective load. Furthermore, IP contends that, because Townsend was an independent contractor, it owed him no duty to warn. This lack of a duty to warn is magnified, IP argues, by the fact that the defective condition existed on Townsend's trailer, not on the IP premises, and by the fact that IP exercised no control over the details of Townsend's work. IP argues that there was insufficient evidence to create a jury issue on the duty of IP to provide an unbinding rack, because neither Townsend nor his expert was able to substantiate their claims that an unbinding rack would have prevented the injury to Townsend. The end result, IP argues, is that there were insufficient facts to create a question of IP's liability for the jury. Instead, the jury was allowed to speculate as to possibilities of what may have caused Townsend's injury, without sufficient facts to make any one possibility more likely than not the proximate cause of Townsend's injury. ¶ 10. Townsend's response to these arguments is that IP was a premises owner that exercised control over aspects of his work, and that IP therefore owed him a duty. Townsend argues that IP exercised control over Townsend's work because IP inspected loads for safety when they arrived at the woodyard, and that IP had the power to refuse entrance to loads that did not meet its safety requirements. Townsend also presents the testimony of both Townsend and his expert that there were logs on Townsend's trailer which were "loaded short,"[8] and that an unbinding rack would have caught the log which injured him. This testimony, Townsend argues, was sufficient to create a jury issue on IP's negligence. ¶ 11. After a careful review of the facts of this case, we find that there is insufficient evidence to create a jury issue of IP's liability. The facts and testimony presented by Townsend are not sufficient to allow a reasonable juror to find that IP owed the duties to Townsend that he claims, much less to allow a jury to find that any one of Townsend's three theories of liability against IP was the proximate cause of his injuries. A. Standard of Review ¶ 12. The standard of review for the denial of a motion for JNOV and a motion for directed verdict are identical. Miss. Transp. Comm'n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1083(¶ 16) (Miss.2000) (citing Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997)). "This Court will consider the evidence in the light most favorable to the appellee, giving the appellee the benefit of all favorable inferences that may be reasonably drawn from the evidence." General Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 268(¶ 17) (Miss.1999) (citing Steele, 697 So.2d at 376). If the facts are so overwhelmingly in favor of the appellant 749 that a reasonable juror could not have arrived at a contrary verdict, this Court must reverse and render. Id. On the other hand, if substantial evidence exists in support of the verdict, that is, "evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions," then this Court must affirm. Id. B. The Scaler ¶ 13. The first issue we address is whether the IP scaler owed a duty to Townsend. IP argues that the scaler did not owe a duty to Townsend for several reasons. First, IP claims that it is merely a premises owner, and as such owes no duty to an independent contractor such as Townsend. Second, IP claims that the scaler had no duty to warn Townsend of a defect that existed not on IP's premises, but on Townsend's own truck. Finally, IP argues that, even assuming that IP owed a duty to Townsend, it would have no duty to warn him of a hidden defect on his truck that was not obvious to IP. By the same token, if the defect in Townsend's load was obvious, IP argues that it would have no duty to warn because the defect would be open and obvious to Townsend himself. ¶ 14. Our law regarding the duty of a premises owner owed to an independent contractor is that the premises owner must "furnish a reasonably safe place to work or give warning of danger." Mississippi Chemical Corp. v. Rogers, 368 So.2d 220, 222 (Miss.1979). The trial court, in finding sufficient evidence of a duty owed by IP to Townsend, relied on Coho Resources Inc. v. McCarthy, 829 So.2d 1 (Miss.2002). McCarthy reiterates the rule that "the owner of the premises does not have a duty to protect an independent contractor against risks arising from or intimately connected with the work. . . ." However, "there is an exception where the owner maintains substantial de jure or de facto control over the work to be performed." Id. at 13(¶ 30). In determining whether an owner maintains control over the work of an independent contractor, "[w]hat is critical is whether the project owner maintains any right of control for the performance of that aspect of the work giving rise to the injury." Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989). Control is shown by the "undisputed language of the contract" between the premises owner and the independent contractor. Coho Resources Inc. v. Chapman, 913 So.2d 899, 905(¶ 14) (Miss.2005) (quoting Magee, 551 So.2d at 186). However, if the plaintiff can show that "the contract notwithstanding, the owner maintained substantial de facto control over those features of the work out of which the injury arose, we may have a horse of a different color." Magee, 551 So.2d at 186. Our courts have also held that a premises owner need give no warning of a dangerous condition of which the premises owner knows or should know "so long as the contractor knows of the danger." McCarthy, 829 So.2d at 13. ¶ 15. With the law thus stated, we find insufficient evidence to support a conclusion that IP exercised control over Townsend's activities so as to create a duty. Unlike the defendant in McCarthy, IP exercised no control over that aspect of the work which gave rise to the injury. The only two possible aspects of work which could have given rise to Townsend's injury were the loading of the log that fell on Townsend, and the unloading of the same log. According to the undisputed facts admitted at trial, IP played absolutely no part in the loading of the logs. Although IP would have eventually played a part in unloading the logs from Townsend's trailer, IP's job in unloading the 750 logs did not arise until Townsend had assured himself of the safety of the load and then released the binders holding the logs in place. Ernest Carlton Hall, the woodyard area manager for IP, testified via deposition that the driver "is responsible for his load until we actually unload it . . . [h]e is responsible for unsecuring and unbinding his load. We don't take over until the crane actually picks it up." At trial, Townsend's expert stated that a truck driver should "always" look up and inspect his load before releasing the binders for unloading, and that duty falls squarely on the shoulders of the truck driver. He also agreed that no one from IP directs the hauler in the aspects of his job, or controls him in any way. Townsend testified that the only acts that the scaler performed were to allow him entrance to the woodyard after weighing his load, and to direct him to drive to one of two cranes in the woodyard to have his trailer unloaded. Townsend was completely in charge when he made the decision to release the binders on his load. Unlike in the McCarthy case, IP exercised no supervision of Townsend when he released the binders. ¶ 16. We further find that, contrary to Townsend's arguments, the ability of the scaler to reject certain loads from entering the woodyard was not sufficient to establish that the scaler was controlling the actions of Townsend. While the scaler was required by IP to check the load for quality, and to check that the logs were not above the standards, this did not establish supervision of Townsend's activities. If the scaler was dissatisfied with the quality of the load, he only had the ability to turn the load away.[9] As such, the facts undisputably establish that IP did not exert de facto control over the aspects of the work that gave rise to Townsend's injury. ¶ 17. Furthermore, the IP scaler owed Townsend no duty to warn. The dangerous condition which caused Townsend's injury existed on his truck, not on the IP premises. As stated above, Mississippi law is clear that the duty of the premises owner is to "furnish a reasonably safe place to work." Mississippi Chemical Corp., 368 So.2d at 222 (emphasis added). IP cites the case of Bevis v. Linkous Const. Co., 856 So.2d 535 (Miss.Ct.App. 2003), as being analogous to the instant case. We agree that it is. In Bevis, an employee of a subcontractor was killed when he fell from a steel structure that collapsed at a construction site. Id. at 539(¶ 7). The employee's widow sued the premises owner, among others, alleging that the premises owner owed the employee a duty to warn of dangerous conditions, and to supervise the worksite. Id. On review of a grant of summary judgment in favor of the premises owner, our Court recited the well-known rule that: As to the premises owner in circumstances such as are alleged to have existed in this case, the duty is to surrender to the contractor a reasonably safe working environment, which would include a duty to warn of hidden hazards or defects on the property that existed prior to the commencement of the work. Any duty to warn of hazards arising out of the construction itself assuming such duty could be shown to exist is deemed satisfied by a showing that the contractor had actual knowledge of the hazardous condition. 751 Id. (¶ 9) (citing Mississippi Power Co. v. Brooks, 309 So.2d 863, 866 (Miss.1975) (emphasis added); Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 783 (Miss. 1997)) (emphasis added). Applying this law, our Court affirmed summary judgment in favor of the premises owner, finding that: The hazardous condition complained of in this case did not arise out of a condition of the property created by the owner or existing on the property in a concealed state at the commencement of the project. Rather, it was a hazard created by the contractor . . . in the course of completing its duties under the construction contract. In such a situation, it is logically impossible to argue that [the contractor] had no knowledge of the condition or that [the premises owner] somehow had an awareness of both the fact of the hazardous condition and an appreciation of the dangerous nature of the condition that was superior to that of [the contractor]. . . . Id. at 539-40(¶ 10). Similarly, we find that Townsend is charging the IP scaler with a duty to warn him of a hazard that does not exist on the IP premises, and that was not created by IP. ¶ 18. As to knowledge of the defect on his truck, Townsend testified that he had examined his truck on at least three occasions before he reached the IP woodyard, and that in each case he was completely satisfied with the appearance of the load.[10] The testimony of Charles Cain, one of the owners of Cain Logging, did establish that, from the pictures taken after the accident, at least four logs were positioned less than three feet behind the standards on Townsend's truck. However, no testimony was introduced that tended to establish that the scaler had a duty to determine whether the load on Townsend's truck was less than three feet behind the standards.[11] Townsend testified that: As far as I understand, you can't unload unless the scaler says that load is safe. If it's not safe, if it's stacked above the stakes, he makes the decision for you to take it off. If the load ain't loaded right, he makes the decision to send you back out, and you have to get it right. So it's my understanding he is the boss until he gives you that ticket. Regarding the scaler, he also testified that "I know that if he had inspected the load, he would have knew, like he did other times from other drivers that he had sent out of there, that it was loaded high or a piece of wood too crooked on there." Charles Cain testified that, to his knowledge, woodyards he had delivered loads to in the past had the ability to turn him away, for safety reasons, if his load was above the standards on his trailer. Craig 752 Beals, the manager of IP's environmental health and safety division, stated that the duties of the scaler were "to make certain that, one, [the load] is below the standards and, two, that it has binding binders on it." When asked on cross-examination, he also stated, "It's the scaler's responsibility to check to see if a load is above the standards. Now, whether or not it's the scaler's responsibility to verify whether or not the log is secured between the standards, I'm sorry, I couldn't say."[12] Townsend's expert testified that, aside from the log which injured Townsend, the load on Townsend's trailer appeared to be acceptable to IP's standards. No testimony was introduced which indicated that Townsend's load had been loaded above the standards. While Townsend and his expert speculated that the log had fallen "from the top," neither testified that the log was loaded above the standards. This being the case, we find that Townsend submitted insufficient evidence to create a jury question on the IP scaler's superior knowledge of short-loaded logs which would give rise to a duty to warn Townsend. ¶ 19. We next address whether IP is liable to Townsend for failure to maintain its premises in a safe condition, and whether sufficient evidence was introduced on which a jury could find that the unsafe condition of the premises was the proximate cause of Townsend's injuries. As stated supra, Townsend put forth two theories that IP maintained unsafe premises. First, he alleged that the road through the IP woodyard that led to the unloading area was filled with potholes, which may have caused his load to shift to an unsafe degree, thereby proximately causing his injury. Second, Townsend alleged that IP's premises were unsafe because IP failed to provide an on-site unbinding rack. C. The Potholes ¶ 20. As to the theory of potholes causing Townsend's load to be unsafe, we find that insufficient evidence was presented at trial upon which a jury could find that the potholes more probably than not were the proximate cause of Townsend's injuries. Therefore, the trial court erred in failing to grant IP JNOV on this issue. Townsend testified that he drove down the IP road for a distance of one-half to three-quarters of a mile at approximately 15 miles per hour. He stated that the potholes were so numerous that he was unable to avoid them. He stated that he "couldn't swear" to the fact that driving down this road caused his load to be unsafe, and in fact stated "I don't know whether it was in that distance it shifted or not." The only other evidence on the subject was offered by Townsend's expert, who stated on direct-examination that the condition of the woodyard "could cause some shifting." Townsend's expert had not seen the road on the day of the accident, and could not remember the last time he had been there. He did claim to have been to the IP woodyard at some point in time, and it was upon this undated visit that he based his opinion. ¶ 21. The Mississippi Supreme Court has held that "verdicts are to be founded 753 upon probabilities according to common knowledge, common experience, and common sense, and not upon possibilities; and a verdict cannot convert a possibility or any number of possibilities into a probability." White v. Yellow Freight System, Inc., 905 So.2d 506, 512(¶ 13) (Miss.2004) (quoting Elsworth v. Glindmeyer, 234 So.2d 312, 319 (Miss.1970)). Statements such as "I don't know whether . . . it shifted or not," and "it could cause some shifting" are clearly only evidence of a possibility. Townsend also agreed that a load of timber that had been properly loaded and bound would not shift to the extent that it would become unsafe. No evidence introduced at trial brought the possibility of Townsend's load shifting on the IP road into the realm of probability, and as such the evidence was insufficient to sustain a jury verdict on this issue. D. The Unbinding Rack ¶ 22. The final theory upon which Townsend alleges liability on the part of IP is the failure to provide an unbinding rack on the woodyard premises. Townsend testified at trial that the unbinding rack would have prevented a loose log "from falling on you because it's got arms just like you would hold your arms out. It will catch the log." On cross-examination he qualified this statement by noting that the unbinding rack wouldn't catch every log that fell off the truck, but that it would have caught the log that fell off of his truck, which he claimed fell "off the top" of the truck. He later agreed that the log "could have" come from the side of the trailer. At another point, he admitted that he did not "know where [the log] came from." He also testified that he knew of more woodyards in Mississippi that did not have unbinding racks than woodyards that did, and he agreed that the number of woodyards in Mississippi that did not have unbinding racks probably outnumbered those that did by a factor of at least two to one. ¶ 23. Townsend's expert testified regarding the use of unbinding racks. On direct, he testified simply that an unbinding rack "would have caught the log" that injured Townsend.[13] On cross, he agreed that the majority of woodyards in the state do not provide unbinding racks. He testified that the primary purpose of the unbinding rack is to catch logs that are loaded over the standards of a trailer and that fall off of the top. He stated, however, that an unbinding rack would have caught the log that injured Townsend, which he claimed was not over the standards, but nevertheless fell from the top of the load. He also admitted that he was unable to say whether the unbinding rack would have caught a log that fell from the side of the truck, and that he did not know specifically where the log that injured Townsend fell from, although he was of the belief that it fell from the top. He admitted that the unbinding rack would not catch "any log" that fell from the truck. Finally, he stated that a properly loaded and bound trailer would not exhibit unsafe shifting, and that, aside from the log that fell and injured Townsend, the logs on Townsend's truck had been loaded in a manner that would pass IP's inspection to enter the yard. ¶ 24. Like the testimony presented regarding the potholes, we find that the testimony the plaintiff introduced at trial regarding the use of unbinding racks was too speculative to allow a jury to find that IP maintained unsafe premises by not providing an unbinding rack, thereby breaching a duty to Townsend. Although Townsend and his expert both emphatically stated 754 that an unbinding rack would have caught the log that injured Townsend, neither was able to explain the basis of that belief. Little testimony was introduced on what exactly an unbinding rack is, or how it operates. Townsend's expert seemed unaware that unbinding racks had been in use for a number of years, as evidenced by his statement that "I haven't went around and read no rules, but I feel like it's a safe product that each mill should be introduced to." No pictures of the unbinding rack were introduced, and the only evidence of the appearance of an unbinding rack was the oral testimony of Townsend and his expert. Townsend testified that an unbinding rack had "arms" that extended down the sides of a trailer to keep logs from falling from the trailer, and Townsend's expert testified that the operation of an unbinding rack was to unbind loads. However, neither was able to describe with specificity the height the arms were above the ground. Neither witness offered to explain how an unbinding rack unbound loads, or how it was able to catch logs that fell from the trailer. Neither witness was able to say with certainty from what part of the trailer the log that injured Townsend fell. Townsend's expert stated his belief, based on the pictures he examined, that the log fell from the top of the load, but when pressed on the issue, he admitted that it could have fallen from the side. Based on this evidence, there was only a possibility that the unbinding rack could have prevented Townsend's injury. Certainly there was not enough evidence to find that an unbinding rack more probably than not would have prevented Townsend's injury. ¶ 25. Even assuming that Townsend created a jury question as to whether an unbinding rack would have prevented his injury, he was unable to establish that IP owed him a duty to provide an unbinding rack. As stated by Townsend's expert, the primary use of unbinding racks was to prevent logs which were loaded over the standards from falling and causing injury. This testimony was corroborated by Craig Beals, who stated that unbinding racks were only designed to catch logs that fell from above the standards, and not behind the standards. Beals further testified that IP had made a corporate decision not to provide unbinding racks on their Mississippi woodyards, because IP woodyards no longer accepted loads of wood that had been loaded to a point above the standards. He testified that unbinding racks had been in use for some time because the custom of the past was to load logs above the standards of a trailer. Now that IP would not accept loads which were above the standards, the unbinding rack was useless, and even harmful because it encouraged loggers to continue to load above the standards, Beals testified. Townsend's expert acknowledged that there are more woodyards that do not have unbinding racks than woodyards that do. With these facts in mind, we cannot find that Townsend proved IP owed him a duty to provide an unbinding rack. ¶ 26. For these reasons, we find that IP was entitled to the JNOV. Accordingly, we reverse and render. II. WHETHER TOWNSEND'S EXPERT, ROYAL JOHNSON, WAS PROPERLY ALLOWED TO TESTIFY AS AN EXPERT WITNESS. ¶ 27. IP argues that even if it is not entitled to JNOV, it is entitled to a new trial based on a number of errors it assigns to the trial court. The major assignments concern the admission of the expert testimony submitted by Townsend, and the failure of the trial court to allow apportionment to other parties that may have been 755 liable for Townsend's injury.[14] While we agree IP is entitled to JNOV, we address these major issues for the purpose of completeness. A. Whether Johnson's untimely designation prejudiced the defendants. ¶ 28 IP argues that Townsend's expert, Royal Johnson, was not a proper expert witness, both because he was untimely designated, and because he was unqualified. Townsend designated Royal Johnson as an expert witness on March 21, 2003, fifty-nine days prior to trial. The designation referred to Royal Johnson as "Royal Jones," stated that Jones would "provide testimony concerning the industry standards for loading and unloading timber and woodyard safety," and provided that Jones would testify as to two theories of liability against IP: 1) that "the absence of a binding rack allowed the log to dislodge from the truck and injure Mr. Townsend," and 2) "that the condition of the road leading into the International Paper Company's woodyard was in extremely poor condition . . . causing the load to shift more than usual." IP joined in a motion for continuance and motion to strike Johnson as an expert, claiming that Johnson was not timely designated pursuant to Uniform Circuit Rule 4.04, and that his designation was improper. A hearing was held on the motion on April 8, 2003. The trial court ruled that, because the parties had entered an agreed order on December 12, 2002, setting trial for May 21, 2003, there was no need to grant a continuance.[15] ¶ 29 On May 12, 2003, the trial court heard several pre-trial motions including IP's motion for summary judgment and a "motion to strike and in limine" asking that Johnson's proposed testimony be stricken from the record due to his untimely designation; the motion to strike asked, in the alternative, for continuance of the trial. On the day of this hearing, Townsend submitted the affidavit of Royal Johnson in response to IP's motion for summary judgment. The affidavit for the first time alleged IP to be liable for the scaler's failure to warn Townsend of the condition existing on Townsend's truck. At the hearing, IP again renewed its objection to the untimeliness of Johnson's designation and the fact that IP had not yet had an opportunity to depose Johnson.[16] No one, however, called to the 756 court's attention the fact that a new theory of liability was being asserted. It is unclear from the record whether counsel for IP, who had just been handed the affidavit, was even aware of the addition. In his oral argument on IP's motion for summary judgment which was heard after the court's denial of the motion to strike or continue, counsel for IP stated, In this case, all that we've seen in terms of what the plaintiff alleges against IP is two-fold: Your roads were in poor condition, and you didn't have an unbinding rack. That has been asked of the plaintiff. That has been asked of the plaintiff's son, who was his employer. They both said the same thing, and now their expert, by way of affidavit and I'm certain in his deposition, will say, you know, road conditions and unbinding rack [are] the complaint[s] we have against IP. (Emphasis added). Counsel for Townsend did not contradict this representation and make the court and opposing counsel aware of the third theory of liability being asserted in Johnson's affidavit. ¶ 30. The trial court considered the issue of the untimeliness of Johnson's designation and found that, since the designation was made fifty-nine days prior to trial, the trial should be continued for one day to comply with the sixty day requirement of Uniform Circuit and County Court Rule 4.04.[17] Aside from this continuation, the court denied the motion in limine. The defendants were finally able to depose Johnson on May 14, five days prior to trial. ¶ 31. "The standard of review for admission or exclusion of testimony is abuse of discretion. The admission of expert testimony is left to the sound discretion of the trial judge. Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand." City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 708(¶ 21) (Miss.2005) (citing Crane Co. v. Kitzinger, 860 So.2d 1196, 1201(¶ 20) (Miss.2003)). ¶ 32. We examine whether the trial judge abused his discretion in failing to grant a continuance or in failing to strike Johnson as an expert witness due to the untimeliness of his designation. While we find that Johnson's designation fifty-nine (versus sixty) days prior to trial in and of itself did not prejudice the defendants, the confused circumstances that ensued following the tardy designation did unfairly tilt the playing field, and the trial court judge abused his discretion by failing to grant a continuance of the trial. ¶ 33 The trial judge based his decision to deny a continuance on the fact that the parties had entered an agreed order setting this matter for trial. However, his ruling does not account for the fact that the agreed order was subject to the completion of discovery, and does not account for arguments by the defendants that, at the time they agreed to the setting, there was a representation by Townsend's counsel that there would be no liability expert designated. From our review of the record, it is clear that the defendants were taken by surprise by Townsend's last-minute designation of Johnson. The defendants 757 were then further prejudiced by a letter from Townsend's counsel stating that Johnson would not be available for deposition until May 15 and by Johnson's adding a new theory of liability on May 12. The defendants were unable to discern the extent of what Johnson's proffered testimony would be until May 14, five days before trial. In addition, we see no harm or prejudice that could have resulted from the trial court's continuing the trial. In his order denying a motion for reconsideration joined in by the defendants dated April 10, 2003, the trial judge stated, "[a]ny failure of the parties to complete discovery or prepare for trial is a result of the parties' own lack of diligence." However, while this may have been true regarding the depositions of Townsend and other lay witnesses, we note that, at the time the order was issued, Townsend had only recently designated Johnson as an expert. It appears from the record that the defendants had not yet received Johnson's responses to the 26(b)(4) interrogatories,[18] and had been informed, apparently though typographical error on the part of Townsend's counsel, that Johnson would not be available for deposition until May 15. We therefore cannot affirm the trial court's determination that any delay with respect to expert discovery is attributable to a lack of diligence on the part of IP or the other defendants. ¶ 34. Whether or not Townsend's counsel actually intended to obtain unfair advantage over the defendants by designating Johnson at such a late date, the untimely designation, addition of a third theory of liability as to IP one week before trial and last-minute deposition, had the effect of working a severe prejudice on the company. This prejudice could have been avoided had the trial court allowed a reasonable continuation of the trial. For these reasons, we find that the trial court abused its discretion in failing to grant a continuance, and IP would be entitled to a new trial on this basis. B. Whether Johnson was qualified to testify as an expert witness. ¶ 35. IP argues that Johnson was unqualified to testify as an expert witness and that, in any case, the company was not allowed to properly voir dire Johnson at trial. We agree and find that the trial court abused its discretion in finding that Johnson was qualified to testify as an expert witness, and abused its discretion in sustaining objections to the defendants' voir dire of Johnson at trial. ¶ 36. Admission or exclusion of expert testimony is governed by Rule of Evidence 702, which, in its current form, provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Miss. R. Evid. 702. Rule 702 was amended to reflect its current form effective May 29, 2003, several days after the trial in this matter had concluded. Also, on October 16, 2003, in Mississippi Transp. Comm'n v. McLemore, 863 So.2d 31 (Miss.2003), the 758 Mississippi Supreme Court adopted a modified Daubert standard, which enumerates a non-exhaustive list of reliability factors to be weighed by the trial court in determining the admissibility of expert testimony. ¶ 37. The previous Rule 702 stated merely: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Miss. R. Evid.702 (repealed). The comment to the previous rule stated: It is important to note that Rule 702 does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within his purported field of knowledge. Nor does 702 relax the requirement that the scientific principle from which the expert's opinion is derived "must be sufficiently established to have gained general acceptance in the particular field to which it belongs." Miss. R. Evid. 702 cmt. (repealed) (quoting Frye v. U.S., 293 Fed. 1013, 1014 (1923)). In determining whether a field of knowledge had gained "general acceptance," the test our courts previously adopted was: Is the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally will allow expert testimony. House v. State, 445 So.2d 815, 822 (1984). In addition, "The facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture." Hickox v. Holleman, 502 So.2d 626, 638 (Miss.1987). ¶ 38. Neither party has addressed the issue of which version of Rule 702 should apply. IP has quoted only the current Rule 702, which was not effective at the time of this trial. Townsend cites the old Rule 702, but also refers to the new rule and the Daubert test, apparently taking the stance that Johnson was qualified to testify as an expert under either the old or the new standard. ¶ 39. "The qualification of an expert witness is left to the sound discretion of the trial judge, and his determination will not be reversed unless it clearly appears that the witness was not qualified." General Motors Corp. v. Pegues, 738 So.2d 746, 752(¶ 14) (Miss.Ct.App.1999) (citing Wilson v. State, 574 So.2d 1324, 1334 (Miss.1990); Smith v. State, 530 So.2d 155, 162 (Miss.1988)). Even before the amendment to Rule 702, however, the Mississippi Supreme Court recognized that "under the guidelines of the Mississippi Rules of Evidence Rule 702, the trial judge serves as `a gatekeeper' in ruling on the admissibility of expert testimony." APAC-Mississippi, Inc. v. Goodman, 803 So.2d 1177, 1185(¶ 30) (Miss.2002). Thus, the sufficiency of foundational facts or evidence on which an expert bases his opinion is a question of law which must be determined by the trial judge. Janssen Pharmaceutica v. Bailey, 878 So.2d 31, 60 (¶ 135) (citing Gulf Ins. Co. v. Provine, 321 So.2d 311, 314 (Miss.1975)). "These facts must afford a `reasonably accurate basis' for the expert's conclusion." Id. (citing Provine, 321 So.2d at 314). Therefore, our courts have held that the trial judge, as the gatekeeper, is required to examine the reliability of expert testimony. See Bailey, 878 So.2d at 60 (¶ 135). 759 ¶ 40. We examine the trial court's acceptance of Johnson as an expert witness under the Frye standard. We find that the trial court abused its discretion in finding that Johnson was qualified as an expert for two reasons: first, the trial judge did not allow voir dire of Johnson which would have gone directly to the issue of Johnson's qualifications under the Frye standard; second, testimony adduced at trial following Johnson's acceptance by the trial court showed that Johnson clearly was not qualified to testify in his purported field of knowledge. Furthermore, we find that the "foundational facts" on which Johnson based his testimony are insufficient as a matter of law, and that the facts he relied upon did not establish a reasonably accurate basis for his conclusions. The trial judge's decision to accept Johnson as a qualified expert witness amounted to an abuse of discretion, and therefore IP would be entitled to a new trial on this issue. ¶ 41. We first examine voir dire of Johnson by counsel for IP, during which the following exchange occurred: Q. You remember telling us at a deposition that you did not feel that you were better qualified than Mr. Townsend on these issues, correct? MR. STAMPS: Your Honor, I object to this. This is not proper voir dire, whether he's got to test his qualifications right now. MR. ROZIER: And that would be one way, Your Honor; how much more does he know than the plaintiff? THE COURT: I'll sustain the objection. Later, counsel for IP asked: Q. All right. What standard things, what base things in your area of expertise are you supposed to review before you're able to give a correct opinion? Is there a checklist of sorts? A. I didn't have a checklist. Q. Okay. So you're unaware of any standards that your area that you're here to talk about, that community of professionals, requires you to go through so that your opinion is reliable, correct? MR. STAMPS: I object to that question. It's improper voir dire. MR. ROZIER: It's the rule requires, Your Honor THE COURT: I'll sustain the objection. ¶ 42. Under former Rule 702, the question to be determined by the trial judge, in his capacity as gatekeeper, was whether Johnson's opinion was "sufficiently established to have gained general acceptance in the particular field to which it belongs." In order to do so, the question to be asked was whether the field of expertise claimed by Johnson was one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion. Miss. R. Evid. 702 (repealed). Furthermore, the trial judge was required to examine the reliability of Johnson's proposed testimony. We find that the questions posed to Johnson, and disallowed by the trial court, went directly to the issue of whether Johnson was qualified to testify in the field of expertise he claimed: woodyard loading and unloading, and woodyard safety. Johnson's knowledge of any standards in place in his purported area of expertise goes directly to whether there are "techniques and practices" that are generally accepted in his purported field, and whether he has any knowledge whatsoever of those techniques and practices. "[I]f a particular expert's methods ignore or conflict with the `techniques and practices 760 generally accepted within the field,' that expert's opinion should not be considered valid or competent for admission in court." Bailey, 878 So.2d at 60 (¶ 136) (Miss.2004) (quoting T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 951 (Miss.1992)). The trial court should have allowed the defendants to question whether Johnson's testimony conflicted with the techniques and practices of his purported field. At the very least the trial court should have allowed the defendants to question Johnson as to what those techniques and practices actually were. The trial court also should have allowed the defendants to question Townsend as to the standards of which he was aware in his purported fields of expertise. ¶ 43. The trial court's failure to allow more extensive voir dire of Johnson as to his qualifications made it impossible for the court to determine whether Johnson was truly qualified in his purported field. Although these questions were later answered, for the most part, on direct and cross-examination of Johnson during trial, we find that, because the trial judge performs a gatekeeping function, the proper arena in which to discuss these issues was voir dire. We therefore find that the trial court abused its discretion in failing to allow these questions as to Johnson's qualifications. ¶ 44. Notwithstanding our decision that the trial court erred by not allowing proper voir dire of Johnson, Johnson's later testimony at trial clearly showed that he was unqualified. Johnson's testimony included: Q. Do you consider yourself an expert in the Federal Motor Safety Carrier Regulations by any means? A. No, I do not. Q. Okay. Do you read these those on a regular basis? A. No. And, on cross-examination: Q. You've already told us that you don't consider yourself to be better qualified or a better woodsman than Mr. Townsend; is that not right? A. He have a number of years of experience in the woods, as well, sir, as I. ¶ 45. Johnson was unqualified to offer expert testimony as to the condition of IP's road. During voir dire, Johnson was asked the following questions: Q. And you have not been on the Natchez wood yard since before before this accident? A. True. Q. So you don't know of its condition even on the date of this accident, correct? A. I don't know of the condition at the accident. That's true. ¶ 46. On direct examination, counsel for Townsend asked Johnson to offer his opinion on the condition of the IP road on the day of Townsend's injury, based on the opinion given by Townsend earlier in the trial. Johnson stated that he had been sitting in the courtroom during Townsend's testimony. He equated Townsend's testimony describing the IP premises with his own previous visit to the IP premises, and stated that the condition of the IP road at the undetermined time he visited was "poorly." On this foundation, he stated his opinion that the condition of the IP road "could cause some shifting." He also testified that a properly loaded and bound load would not shift to an unsafe degree. Because Johnson could not identify any sort of standard on which he based his expert opinion, we find that he was unqualified to examine Townsend's testimony and offer his opinion as to whether the conditions described by Townsend caused Townsend's load to shift. Furthermore, 761 Townsend clearly had insufficient facts on which to base his opinion. He admitted that he had not been on the IP woodyard on the day in question. In fact, he couldn't remember the last time he had been there. "The sufficiency of foundational facts or evidence on which to base an opinion is a matter of law. These facts must afford a `reasonably accurate basis' for the expert's conclusion." Bailey, 878 So.2d at 60 (¶ 135) (citing Gulf Ins. Co. v. Provine, 321 So.2d 311, 314 (Miss.1975)). "The facts upon which the expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture." Id. (citing Watkins v. U-Haul Int'l, Inc., 770 So.2d 970, 974 (¶ 11) (Miss.Ct.App.2000)). Without a doubt, Johnson's statement that the condition of the IP woodyard, of which he knew nothing about, could cause shifting, was "mere guess or conjecture." As such, Johnson should not have been allowed to testify as to the condition of the IP road and any proximate relationship between the road and Townsend's accident. ¶ 47. Johnson was also unqualified to testify as to the duty of IP to provide an unbinding rack. Although he testified emphatically that an unbinding rack would have caught the log that injured Townsend, he was at a loss to explain exactly how an unbinding rack would have accomplished this feat, other than the fact that it had "arms" that would catch the log. He admitted that the primary purpose of an unbinding rack was to catch logs that were loaded over the top of the standards, however, he stated that the log which injured Townsend likely fell from the top of the load, but that the log nevertheless was loaded below the standards. He later admitted that the log may have fallen from further down the side of the load, or may have fallen from the top. He was unable to describe how far down the arms of an unbinding rack reached, and therefore was unable to describe how the unbinding rack could catch logs that fell from the load below the arms. He admitted that the unbinding rack would not catch every log that fell off of a trailer. In addition, he did not know when unbinding racks were invented and came into use; he admitted that the majority of woodyards in Mississippi do not maintain unbinding racks on their premises; he stated that he was unaware of any rule which required woodyards to maintain an unbinding rack; that he did not know how high off the ground an unbinding rack stood; he was unaware of the dimensions of an unbinding rack; and he had no pictures or diagrams of an unbinding rack. In fact, Johnson's entire knowledge regarding unbinding racks was summed up quite succinctly in his statement that, "I haven't went around and read no rules, but I feel like it's a safe product that each mill should be introduced to." ¶ 48. This being the case, his testimony that an unbinding rack would have caught the log that injured Townsend was purely unsupported speculation. Johnson's opinion regarding the unbinding rack was based on no standards that he was aware of, and the facts on which he based his opinion were insufficient for him to reach the conclusion at which he arrived. The trial court, in its position as gatekeeper, should have found that Johnson was unqualified to offer testimony as to IP's liability for failure to maintain an unbinding rack on its premises. Accordingly, IP would be entitled to a new trial on these issues. B. The trial court erred in failing to permit IP to cross-examine Johnson as to his misdemeanor convictions for lack of safety. ¶ 49. On the day of trial, Townsend filed a motion in limine which asked 762 the court to bar "any testimony regarding Mr. Royal Johnson's driving record." This motion was granted on the basis of Mississippi Rule of Evidence 609. IP argues that "Royal Johnson was thus allowed to testify as an expert on safety opining that IP was unsafe in its practice; while simultaneously precluding IP from cross-examining Royal Johnson on his own personal record of safety directly relating to his alleged area of expertise." We agree and find that the trial court's decision to grant this motion in limine would entitle IP to a new trial. ¶ 50. The misdemeanor violations sought to be introduced by the defendants at trial were as follows: 1) convicted of operating an oversized vehicle in December, 1996; 2) convicted of operating with improper equipment in 1997; 3) speeding ticket in April, 1997; 4) convicted of operating an oversized vehicle in 1998; 5) speeding ticket in June, 1999; 6) driving with an expired tag in October, 2000; and 7) speeding ticket in December, 2000. Royal Johnson was proffered by Townsend as a safety expert on the basis that he had been "loading and unloading trucks for three years and driving trucks for a number of years." ¶ 51. Clearly the trial court erred in excluding these misdemeanor convictions pursuant to Rule 609. Rule 609 regards testimony admitted "[f]or the purpose of attacking the credibility of a witness." IP correctly points out that the misdemeanors in question go to the qualifications of Johnson as a safety expert, and not to his credibility. These misdemeanors would do nothing to prove that Johnson was somehow lying about the issues to which he testified, such as short-loading, and the use of unbinding racks. Rather, these misdemeanors go to Johnson's record of safety, and his qualifications as an expert in his purported fields of safety. If Johnson was proffered as an expert on the basis that he had been "driving trucks for a number of years," then the jury should have been allowed to hear testimony elicited on cross-examination regarding his record of driving trucks during that period of time. ¶ 52. The trial court erred in excluding evidence relating to Royal Johnson's qualifications under Rule 609, and IP would be entitled to a new trial on this basis. III. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW APPORTIONMENT TO OTHER PARTIES. ¶ 53. IP argues that the trial court erred by failing to allow a proposed jury instruction, D-IP-15, which would have allowed the jury to apportion fault not only between Cain Logging and IP, but among TDC Logging and Kenneth Townsend Logging as well. TDC, according to the undisputed testimony at trial, loaded additional logs onto the top of Townsend's load. According to IP, "[i]f the top logs were not properly loaded, it was certainly more reasonable for the jury to infer that there was negligence by Terry Dean Cain Logging than it was for the jury to infer that anything IP did caused or contributed to the accident." ¶ 54. The instruction granted by the trial court, D-IP-15A, allowed apportionment between IP, Cain Logging, and Townsend. In a separate instruction, P-19, the court instructed the jury that "the negligence of the loader is imputed to and thus becomes the negligence of the Defendant, Cain and Cain Logging, Inc." In a written opinion denying the defendants' motion for a new trial, the trial court found that a jury instruction allowing apportionment to TDC Logging was properly disallowed because TDC and Cain Logging were in a joint venture as a matter of law. As to Kenneth Townsend Logging, the *763 trial judge ruled that liability could not be apportioned because the defendants had not made out a prima facie claim of negligence against Townsend Logging. ¶ 55. While Cain Logging, which is no longer a party to this appeal, made a substantial argument that the issue of whether a joint venture existed should have been submitted to a jury, and therefore that the acts of TDC Logging in loading Townsend's truck should not automatically have been imputed to Cain Logging, we find that the jury instructions as to apportionment did not prejudice IP. The jury was clearly instructed to hold Cain Logging liable for all of the acts involved in loading Townsend's truck; these acts would have included those of TDC Logging. Thus, the jury's apportionment of fault already incorporated an apportionment of fault as to the aspect of loading. Allowing an apportionment as between Cain Logging and TDC Logging would have only affected the allocation of the forty-two percent of liability apportioned to Cain, not the forty-eight percent apportioned to IP. We find that any error of the trial court with regard to apportionment to TDC Logging did not prejudice IP. ¶ 56. Further, we agree with the trial court that insufficient facts were presented at trial to make out a prima facie case of negligence against Kenneth Townsend. Similar to the proof Townsend submitted regarding an unbinding rack, the evidence submitted regarding a defective front binder and use of a four-bolster trailer was insufficient to establish a duty on the part of Kenneth Townsend Logging. The trial court did not err in refusing to allow apportionment to Kenneth Townsend Logging. ¶ 57. THE JUDGMENT OF THE CIRCUIT COURT OF SHARKEY COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE. KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. IRVING AND CHANDLER, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING. NOTES [1] Townsend's original lawsuit was filed against both IP and Cain & Cain Logging, Inc. ("Cain Logging"). Although Cain Logging was initially a party to this appeal, it settled with Townsend subsequent to oral argument, and we granted a motion filed by Townsend to dismiss Cain Logging from the appeal. IP is now the only party appellant. [2] The distance between the tract in Rolling Fork and the IP woodyard was approximately 100 miles. [3] Logging trailers have either two or four "standards," "stakes," or "bolsters" on either side of the trailer. The purpose of the standards is to retain logs on the trailer and prevent them from falling off the sides of the trailer. The terms "standards," "stakes," and "bolsters" were used interchangeably below, and we use the terms interchangeably here. [4] At trial, Johnson's expert, Royal Johnson, discussed infra, agreed that IP employees did not direct the hauler, instruct him on how to perform his job, or otherwise control him in any way between the entrance gate and the unloading area. [5] Townsend admitted that he had taken loads to the woodyard on over 100 previous occasions and that he was familiar with the procedures at the woodyard. Townsend agreed that the procedure employed by the woodyard was uniform throughout that time period, and that it was applied uniformly to all vehicles that came to the woodyard. [6] In his deposition, Townsend admitted that he did not look up at the load before releasing the binder. At trial, he attempted to reform his testimony, indicating "I might not have looked up or glanced up well enough, but it's a possibility I looked up." Townsend could not recall whether the log fell from the top of the trailer, or off of the side. Townsend's expert was of the opinion that the log fell from the top of the trailer; however, he was unable to explain the basis on which he rested this belief. [7] At trial, Townsend testified that he continued to suffer pain from his injuries, and that he was no longer was able to participate in activities he had previously enjoyed, such as hunting. [8] Townsend's claim against Cain Logging was that Cain Logging negligently "short-loaded" his trailer (did not load the logs far enough from the standards to prevent the load from shifting to an unsafe degree), thereby proximately causing Townsend's injuries. [9] Townsend testified that, if a trucker was turned away by the scaler, there was a woodyard across the street where, for a fee, the unacceptable load could be trimmed of protruding limbs and branches and brought up to IP's quality standard. In his brief, Townsend asserts that this separate woodyard is operated by IP. However, the undisputed facts at trial indicate that this separate woodyard is a completely independent operation. [10] When asked, at trial, why he could so readily see from a picture that the logs on his trailer were short-loaded, but could not make the same observation on the day that he was injured, Townsend replied, "I can't answer that." [11] Townsend stated that the IP scaler had superior knowledge of any defect on Townsend's truck because of a television camera in the scaler's house, which could see a branch as small as his finger. According to Townsend, this television camera allowed the scaler to examine the top of loads that came into the IP woodyard. However, Townsend also testified that it was the duty of the truck driver to check his own load, and that to accomplish this, the truck driver is required to step back from his load and examine the logs on the top of the load. Thus, Townsend admitted that he could have performed the very inspection that he was alleging the scaler failed to perform. Furthermore, the testimony only established that the scaler was required to check for logs loaded above the standards, loads with excessive branches, and/or loads that were not bound. Townsend himself offered no testimony that the scaler was required to check for short-loaded logs. [12] No testimony was elicited at trial which tended to prove that the scaler was required to check for logs that had been short-loaded. The closest testimony for imposing such a duty was elicited on cross-examination of Craig Beals, who agreed that, in his opinion, a log loaded "behind the standard" is not secure. He immediately qualified this statement, however, by noting that he did not know whether it was the duty of the scaler to examine loads for short-loaded logs. Accordingly, Beals's testimony cannot be read as establishing a duty on the part of the scaler to check for short-loaded logs, without being taken out of context. [13] He also testified that, if Townsend had been supplied with a four-bolster trailer by his employer, the four-bolster trailer would have prevented the log from falling. [14] The other issues include 1) that the trial court erred in denying IP's motion in limine to prohibit evidence of use of unbinding racks at other facilities, 2) that the trial court submitted erroneous instructions to the jury, and 3) that the jury verdict was excessive and IP should be granted a new trial and/or remittitur. We find that these issues are moot in light of our decision to grant judgment as a matter of law in favor of IP. [15] The agreed order stated that it was "subject to all discovery being completed by the parties, with the understanding that all counsel shall make diligent efforts to complete discovery prior to that time." On motion for reconsideration, counsel for IP informed the court that at the time the defendants agreed to the trial setting, counsel for Townsend had represented to counsel for Cain Logging that there would be no expert proffered on the issue of liability. The record does not reflect that counsel for Townsend made any attempt to rebut this assertion. [16] There was some confusion over the date on which Johnson had been made available for deposition. At the previous hearing on the motion for continuance, held on April 8, counsel for Townsend had indicated that Johnson would be available for deposition one week later on April 15, 2003, the same day as Townsend. The defendants objected to this date because Townsend had not yet submitted the Rule 26(b)(4) interrogatory responses for Johnson and because the offer made at the April 8 hearing was the first the defendants knew of the proposed expert deposition on April 15. Also on April 8, counsel for Townsend faxed to the defendants a letter which stated "our expert, Mr. Royal Johnson, will be available to be deposed on May 15, 2003, after the conclusion of Mr. Townsend's deposition." (Emphasis added). Counsel for the defendants possibly could have inferred from the letter, despite the typographical error, that Johnson was available for deposition on April 15, since that was the date that Townsend's deposition was scheduled. Nevertheless, the mistake in the letter was by Townsend's counsel, and not by the defendants. [17] We note that this one day continuation was granted only one week before trial. [18] At the May 12 hearing, counsel for Townsend acknowledged that while the expert interrogatory response had been supplemented two weeks earlier to include Johnson's qualifications and experience, it had not been supplemented to include the substance of his proposed opinions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1854325/	980 So.2d 314 (2008) Cody W. WATERS and Kacee T. Waters, Appellant v. Albert ALLEGUE, Appellee. No. 2006-CA-01975-COA. Court of Appeals of Mississippi. March 25, 2008. 316 Calvin D. Taylor, attorney for appellants. Patrick R. Buchanan, W. Fred Hornsby, Pascagoula, attorneys for appellee. Before MYERS, P.J., GRIFFIS and CARLTON, JJ. GRIFFIS, J., for the Court. ¶ 1. Cody and Kacee Waters brought a claim for fraudulent misrepresentation against Albert Allegue. The circuit court granted summary judgment in favor of Allegue. On appeal, the Waters argue that Allegue owed a duty to disclose all material facts that adversely affected the property value and that the trial court erred in granting summary judgment to the defendants. FACTS ¶ 2. After Hurricane Katrina, the Waters sought to purchase a home on the Mississippi Gulf Coast. They found a house that they wanted to buy. The sellers of this house, Manuel and Lisa Pina, used Allegue as their real estate agent. The sellers and Allegue marketed the house as having 3,000 square feet. The Waters and the Pinas entered into a contract for the sale of the house. The disclosure statement stated that the house had 3,000 square feet, and the contract for sale also stated that the house contained 3,000 square feet. ¶ 3. Before closing on the house, the Waters learned that the house did not have 3,000 square feet; but instead, the size of the house was somewhere between 2,500 to 2,580 square feet. Camille Thomas and Jack Thomas, two independent appraisers hired by the bank involved in this transaction, informed Cody Waters that the house had less than 3,000 square feet. Cody Waters asked the Thomases to measure the house again. They did. Once again, the Thomases told Cody Waters that the house had under 3,000 square feet. ¶ 4. The Waters attempted to renegotiate the price with the Pinas, but the Pinas would not lower their price. Instead, they offered to let the Waters out of the contract. The Waters chose not to get out of the contract and closed on the house, without pursuing any pre-closing remedies regarding the discrepancy in square footage. 317 ¶ 5. A few months later, the Waters filed this action after they learned that Allegue's wife was the agent for the Pinas when they originally purchased the house. STANDARD OF REVIEW ¶ 6. This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue, and another says the opposite. Id. ANALYSIS I. Did Allegue owe a duty to the Waters to disclose all material facts that adversely affected the property value? ¶ 7. The Waters argue that Allegue should have told them that the house was not 3,000 square feet in size because they owed him a duty to disclose such information. The Waters' brief on this issue is short and is quoted in full: Mississippi law recognizes that a broker has a duty to make disclosures of any information that adversely affects the value of the property that the broker is listing. Miss.Code Ann. § 511. All disclosures are required to be made in "good faith." "[G]ood faith means honesty in fact in the conduct of the transaction." Id. Mississippi law also provides that "any person who willfully or negligently violates or fails to perform any duty . . . shall be liable in the amount of actual damages suffered by a transferee." Miss.Code A. § 523. See also Lane v. Oustalet, 850 So.2d 1143 (Miss.App.2002) (finding that a broker may be held liable to a purchaser of real property for failing to disclose that the property had suffered damage due to termite infestation); Lee Hawkins Realty, Inc. v. Moss, 724 So.2d 1116 (Miss.App.1998)(finding that broker has duty to deal honestly in its dealings with purchasers of real property). The problem with this argument is that it contains a number of incorrect and improper citations. More importantly, the Waters do not even attempt to argue how these cases or statutes (if we could figure out which statute is cited) apply to the current case. ¶ 8. The Mississippi Supreme Court has held, "[f]ailure to cite relevant authority obviates the appellate court's obligation to review such issues." Taylor v. State, 754 So.2d 598, 604(¶ 12) (Miss.Ct.App.2000); Dozier v. State, 247 Miss. 850, 157 So.2d 798, 799 (1963). Thus, we will not address the Waters' first assignment of error. II. Did the circuit court err in granting summary judgment? ¶ 9. The Waters also argue that the trial court erred when it granted summary judgment on all of the claims asserted. The Waters claim that there are genuine issues of material fact in dispute. Thus, they argue that the motion for summary judgment should not have been granted. ¶ 10. The Waters' first claim asserted was for fraud. To establish fraud, the plaintiff must prove the following elements by clear and convincing evidence: 318 (1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury. Levens v. Campbell, 733 So.2d 753, 761-62(¶ 35) (Miss.1999). The motion for summary judgment offered evidence presented through the affidavits of two independent appraisers. The appraisers testified that Cody Waters knew that the subject house contained less than 3,000 square feet before the closing. Cody Waters even admitted that "prior to the closing/purchase of the subject residence a potential square footage discrepancy had been communicated to [the Waters] by the home appraiser." ¶ 11. Indeed, the circuit court correctly concluded that there were not genuine issues of a material fact in dispute and that Allegue was entitled to a judgment as a matter of law. Because the Waters were aware, before the closing, that the house did not contain 3,000 square feet, they cannot claim that they were not aware of the falsity of any such statement claiming that the house did contain 3,000 square feet. Also, having learned that Allegue's statement was false before the closing took place, it indicates that the Waters did not rely on the truth of this statement and did not have a right to rely on the truth of such statement. Id. Summary judgment was appropriate on the Waters' claim of fraud. ¶ 12. The Waters' second claim asserted was for negligent misrepresentation. To establish a claim for negligent misrepresentation, the plaintiff must establish the following elements: (1) a misrepresentation or omission of a fact;(2) that the representation or omission is material or significant; (3) that the defendant failed to exercise that degree of diligence and expertise the public is entitled to expect of it; (4) that the plaintiff reasonably relied on the defendant's representations; and (5) that the plaintiff suffered damages as a direct and proximate result of his reasonable reliance. Skrmetta v. Bayview Yacht Club, Inc., 806 So.2d 1120, 1124(¶ 13) (Miss.2002). Again, the circuit court was correct to grant summary judgment on this claim because the Waters cannot establish that they reasonably relied on Allegue's statement. The evidence indicated that Waters knew the house was not 3,000 square feet. Hence, they cannot reasonably rely on any negligent misrepresentation Allegue may have made regarding the house being 3,000 square feet. Summary judgment was appropriate on the claim of negligent misrepresentation. ¶ 13. The Waters' third claim asserted was for negligent infliction of emotional distress. A plaintiff may not recover for a claim of negligent infliction of emotional distress without showing that he or she suffered a physical injury. Wilson v. GMAC, 883 So.2d 56, 65(¶ 29) (Miss. 2004). The Waters have neither alleged nor shown that they suffered physical injury because they purchased the house. Summary judgment was appropriate on the claim of negligent infliction of emotional distress. ¶ 14. The Waters' final claim asserted was for intentional infliction of emotional distress. To establish a claim for intentional infliction of emotional distress, the plaintiff must show that the defendant through "extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. . . ." Peoples 319 Bank & Trust Co. v. Cermack, 658 So.2d 1352, 1365 (Miss.1995) (quoting Restatement (Second) of Torts § 46 (1966)). The Waterses knew the house did not contain 3,000 square feet when they purchased and closed on the house. Thus, Allegue could not have caused them emotional distress because they knew the house was not 3,000 square feet in size when they closed on it, and they did not have to purchase the house. Summary judgment was appropriate on the claim for intentional infliction of emotional distress. ¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1148192/	94 Okla. Crim. 407 (1951) 236 P.2d 993 SLAUGHTER v. STATE. No. A-11447. Criminal Court of Appeals of Oklahoma. October 24, 1951. Huser & Hargrave, Wewoka, for plaintiff in error. Mac. Q. Williamson, Atty Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error. BRETT, P.J. Plaintiff in error Turner Jill Slaughter, defendant below, was charged by information with the offense of driving a motor vehicle on the public highways of Seminole county, Oklahoma, while under the influence of intoxicating 408 liquor. The alleged offense occurred on November 12, 1949, at a point on the highway between 5th and 11th streets on Mekusukey Avenue being a part of U.S. Highway No. 270 in the city of Wewoka, Oklahoma. The defendant was tried by a jury, convicted, his punishment fixed at 45 days in jail and a fine of $100. Judgment and sentence was pronounced in accordance with the jury's verdict. The state's proof of the charge as laid in the information was substantially as follows. W.F. Robinson, Highway Patrolman, testified that on the day and at the place in question, in the night time, he came upon a car which crossed over the highway and all but forced them off the pavement. The patrolman and trooper Vernon Anderson turned around and pursued the defendant sounding their horn and flashing their red light, while the defendant continued to drive on the wrong side of the highway for a distance of about 75 yards. They finally got the defendant Slaughter who was driving, to stop the car. Slaughter got out of the car with a strong smell of intoxicating liquor on his breath, he said, a staggering walk and fairly belligerent attitude. Slaughter's male associate was also drunk. The defendant and his associate were delivered to Charley Johnson, the jailer, who put them in jail. Trooper Vernon Anderson's testimony corroborated Patrolman Robinson's as to the defendant's drunken condition at the time of his arrest, as did the desk sergeant, George Lawson, and Charley Johnson, the jailer, as to their condition when he was presented to them at the jail. Objection was made to Trooper Anderson's and Sergeant Lawson's testimony on the ground that the rule had been requested and they had remained in the courtroom in violation of the rule excluding witnesses from the courtroom while Patrolman Robinson testified. In addition to corroborating Patrolman Robinson, Trooper Anderson testified that when he asked the defendant for his driver's license he did not have it but stated he had left it at home. Trooper Anderson testified that in checking the master file in this regard they discovered the defendant had been arrested before and his driver's license had been revoked. Objection was made to this evidence and overruled. A motion for mistrial was made and overruled. The jury was admonished by the court not to consider this evidence. Later the defendant took the stand in his own behalf and on cross-examination admitted that he was arrested in Pauls Valley, Oklahoma, on or about June 28, 1949, and charged with driving a motor vehicle while under the influence of intoxicating liquor, to which charge he plead guilty and upon which plea his license was revoked. For this offense he paid a fine of $115. Defendant admitted he had one bottle of beer to drink on the trial of the present charge. He insisted he was not drunk. Bill Morrison, a witness for the defendant, testified he was with him on the night in question. He said the defendant drank one bottle of beer. He testified the defendant was not drunk. He also said Slaughter "drove as good as anybody". He stated if he drove on the wrong side of the road "he did not pay it any mind". After the instructions of the court and argument of counsel the jury retired and later returned its verdict in court. This verdict found the defendant guilty and fixed his punishment at 6 months in jail and a fine of $150. It further provided, "We, the jury, recommend the jail sentence be suspended". The court asked the jury if this was their verdict. Their reply was in the affirmative. The trial court then explained to the jury they could not suspend the jail sentence without suspending the fine. He told them to return to their juryroom for further deliberation. This they did and over the objection and exception of the defendant. Thereafter they returned with their verdict fixing the punishment at 45 days in jail and a fine of $100. To this verdict the defendant objected and gave notice of 409 intention to appeal to the Criminal Court of Appeals. On this record this case is here on appeal. The defendant urges 3 grounds for reversal. First, that the trial court committed prejudicial error in not excluding this testimony of the state's witnesses who remained in the courtroom in violation of the rule excluding them. It has been held that where the order of the trial court excluding witnesses from the courtroom is wilfully violated, it is a matter within the trial court's discretion to allow or exclude the testimony of such witnesses. Gorum v. State, 67 Okla. Crim. 75, 92 P.2d 1086; Kilgore v. State, 10 Okla. Crim. 446, 137 P. 364; Womble v. State, 50 Okla. Crim. 108, 296 P. 515. In the case at bar we do not believe the court abused his discretion. The evidence was cumulative of competent evidence of drunken driving. The second proposition urged by the defendant is that the trial court erred by permitting the state to produce evidence of a prior arrest and revocation of the defendant's driver's license. This court has repeatedly condemned the practice of officers volunteering evidence of prior convictions and matters relating to the character of the defendant where he has not made such an issue. Atkins v. State, 94 Okla. Crim. 231 P.2d 406, and cases therein cited. We cannot condemn this practice too severely. In a close case such evidence has in many instances resulted in reversals. The trial court sustained the defendant's objection to this evidence and admonished the jury not to consider it. We are of the opinion that under the clear evidence of defendant's guilt that was enough to have cured the error, in that this proof was cumulative it did not amount to prejudicial error which could not be overcome by the court's admonition. Certainly this is true in the case at bar, for when the defendant took the stand in his own behalf and testified on cross examination, he admitted he had plead guilty to drunken driving in Garvin county, paid a fine of $115 and had his license revoked therefor. It is altogether proper for the state to so examine the defendant. In Reagan v. State, 35 Okla. Crim. 332, 250 P. 435, it was held: "In a criminal case, where a defendant takes the stand in his own behalf, he may be asked by the prosecution whether or not he has been convicted of any particular crime." The trial court's admonition and the defendant's admission, and the law applicable hereto, deprived this contention of its efficacy. The third proposition urged by the defendant is, that the trial court erred in not receiving the jury's first verdict fixing the punishment at 6 months in jail and a fine of $150 and with recommendation that the jail sentence be suspended; in returning them to their juryroom for further deliberation with the admonition that the jail sentence could not be suspended without the suspension of the fine also; and in receiving their second verdict fixing the punishment at 45 days in jail and a fine of $100 without any recommendation as to leniency. It is true had the trial court received the verdict in its first form and executed it exclusive of the recommendation the jail sentence be suspended the same would have been upheld on the ground such recommendation was surplusage and no part of the verdict, though in a case involving only a jail sentence or a fine respectively they may be persuasive and should be accorded great weight, where the court may suspend a sentence under the law. Estes v. State, 35 Okla. Crim. 335, 250 P. 809; Knopp v. State, 49 Okla. Crim. 416, 295 P. 228; Cole v. State, 70 Okla. Crim. 109, 104 P.2d 981; Presnell v. State, 71 Okla. Crim. 162, 109 P.2d 834. These cases did not require the trial court to receive such a verdict. Such verdicts are informal particularly where the recommendation involves both the jail sentence and fine as herein, and where the recommendation relates only to the jail sentence exclusive of the fine. As was said in State v. Smith, 83 Okla. Crim. 188, 174 P.2d 932: 410 "Under statute (22 Ohio St. 1941 § 991) vesting in courts of record authority to suspend judgment and sentence after conviction for certain crimes upon conditions named in the statute gives trial court the judicial discretion to determine whether an accused is eligible for suspended sentence and whether court chooses to suspend the sentence. "Statute authorizing court to suspend sentence does not authorize the suspension of just a portion of the judgment and sentence, but if suspension is granted it must be of entire judgment." In Cole v. State, supra [70 Okla. Crim. 109, 104 P.2d 982], it was said: "It fixed the defendant's punishment, and the clause in it is merely a recommendation that the fine be remitted. It is in no sense a part of the verdict. It was improper to make this recommendation in the verdict, but it does not affect the validity of the verdict, and was not prejudicial to defendant." In Knopp v. State, supra, such verdicts are referred to as informal but while the verdict is informal it is not illegal and was sufficient to authorize the court to pronounce judgment thereon. We know of no mandatory direction requiring the trial court to follow the procedure herein pursued. Nevertheless the trial court acted clearly within the statutory provisions in refusing to receive such a verdict and in requiring the jury to correct the same under the conditions herewith presented, involving both a jail sentence and a fine with a recommendation of suspension of the jail sentence alone. Section 919, Title 22, O.S.A. 1941, provides as follows: "If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury." In Williams v. State, 92 Okla. Crim. 70, 220 P.2d 836, 838, wherein, after repeating almost verbatim the foregoing § 919, T. 22 O.S.A. 1941, we said: "The verdict of the jury must be certain, positive, and free from all ambiguity; it must convey on its face a definite and precise meaning, and should show just what the jury intended, and an obscurity which renders it at all doubtful will be fatal to it." Only because the trial court acted under authority of law, § 919, Title 22 O.S.A. 1941, the intent of the jury was clearly determined. It appears that the jury under their first verdict intended to extend leniency to the defendant, but under the form of the verdict the trial court under the statute and adjudicated cases, in its then form, could not execute and carry out the jury's intent. Therefore, the trial court acted properly in returning the verdict to the jury for further consideration. Such attitude is commendable. It enables the jury to determine the verdict with that certainty required of law without working a hardship on the defendant by compelling him to submit to the verdict exclusive of the recommendation. Furthermore, the defendant could not complain of the court's action in refusing to receive the jury's verdict for the defendant having a prior conviction for drunken driving was not eligible for a suspended sentence, T. 22, § 991, O.S.A. 1941. Hence, the court conferred a benefit upon the defendant in returning the jury to their room for further consideration, which resulted in a lighter penalty, otherwise it would have been compelled to enforce the jury's first verdict. The trial court's action certainly was not prejudicial to the defendant. Furthermore, this case is a fair example of the purpose of Title 22, § 919, O.S.A. 1941. Herein the intent of the jury was arrived at with definiteness and certainty where, if the court had received the first verdict and enforced it according to law, the jury's intent to extend leniency would have been completely ignored. Certainly under these conditions the trial court's action could not be held 411 prejudicial to the defendant. For all the above and foregoing reasons the judgment and sentence herein imposed is accordingly affirmed. JONES and POWELL, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874143/	586 So. 2d 534 (1991) Deanna Gayle AARON v. NEW ORLEANS RIVERWALK ASSOCIATION, the Rouse Company, and Mike Anderson's Seafood. No. 91-C-1541. Supreme Court of Louisiana. October 4, 1991. Denied. The result is correct.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2982821/	NOT RECOMMENDED FOR PUBLICATION File Name: 15a0222n.06 No. 14-5406 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 23, 2015 ANTWONE MAURICE SHAW, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) WESTERN DISTRICT OF KENTUCKY UNITED STATES OF AMERICA, ) ) OPINION Respondent-Appellee. ) ) ) BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.* JANE B. STRANCH, Circuit Judge. Antwone Shaw sought re-sentencing under Dorsey v. United States, 132 S. Ct. 2321 (2012), by filing a motion to correct his sentence under 28 U.S.C. § 2255. Shaw argued that the Fair Sentencing Act (FSA) took effect before he was sentenced, entitling him to the benefit of the five-year, not the ten-year, statutory minimum sentence. Because applying the FSA’s lower statutory minimum would not have resulted in a lower sentence for Shaw, we AFFIRM the district court’s denial of the § 2255 motion. I. BACKGROUND In late July 2010, Shaw entered a guilty plea to various drug trafficking offenses that involved fifty grams or more of crack cocaine. Under the law at that time, Shaw faced a * The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of Tennessee, sitting by designation. No. 14-5406 Shaw v. United States statutory minimum sentence of ten years to life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii) (effective April 15, 2009 to Aug. 2, 2010). As part of a plea agreement, the government agreed not to seek further enhancement of the statutory minimum penalty under 21 U.S.C. § 851 based on Shaw’s prior felony drug convictions. The government further agreed to recommend a three- level reduction for acceptance of responsibility and a sentence of imprisonment at the low end of the applicable guideline range, but not less than any mandatory minimum term of imprisonment required by statute. One week after the district court accepted Shaw’s guilty plea, the FSA took effect. Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010). In that legislation, Congress adjusted the amounts of crack cocaine required to trigger certain statutory minimum sentences. The FSA effectively lowered the statutory minimum sentence of imprisonment for drug crimes involving fifty grams or more of crack cocaine from ten years to five years. 21 U.S.C. § 841(b)(1)(B)(iii) (effective Aug. 3, 2010). In September 2010, before Shaw was sentenced, our court held that the FSA’s reduced statutory minimum sentences did not apply to defendants who committed their crimes before, but were sentenced after, the effective date of the FSA. United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010). The Supreme Court later abrogated Carradine in 2012 when it ruled that the FSA’s more lenient statutory penalties do apply to those defendants who were charged before, but sentenced after, the effective date of the FSA. Dorsey, 132 S. Ct. at 2331; United States v. Hogg, 723 F.3d 730, 732 (6th Cir. 2013) (recognizing that Dorsey abrogated Carradine). When the district court sentenced Shaw on February 4, 2011, however, Dorsey had not been decided and the court was bound by Carradine to apply the pre-FSA ten-year statutory minimum sentence. The court granted Shaw the benefit of the lowered crack cocaine sentencing -2- No. 14-5406 Shaw v. United States guidelines, effective November 1, 2010, that were promulgated by the Sentencing Commission on an emergency basis as directed by Congress in the FSA. The Presentence Report (PSR) set Shaw’s total adjusted offense level at 25. With a criminal history category of IV, the advisory guideline range was 84 to 105 months. By operation of USSG § 5G1.1(b), however, Shaw’s “guideline sentence” became the higher statutory minimum term of 120 months of imprisonment.1 At the sentencing hearing, the government made an oral motion under 18 U.S.C. § 3553(e) to allow the court to depart below the statutory minimum sentence of 120 months to reward Shaw for his substantial assistance. The government requested a sentence of 84 months at the bottom of the guideline range, but it expressly declined to make a motion under USSG § 5K1.1 to allow the court to depart below 84 months. Citing the § 3553(a) factors, Shaw requested a downward variance to 60 months of imprisonment to give him credit for time served in state custody on a probation revocation sentence arising out of the same facts as the federal charges. The district court characterized the government’s requested 84-month sentence as “certainly a very reasonable recommendation,” R. 131 Page ID 477, but granted Shaw a 9-month downward variance to give credit for time already served in state custody. The court imposed the sentence of 75 months of imprisonment on each count, to run concurrently, followed by five years of supervised release. The judgment was entered on February 14, 2011, and Shaw filed a 1 USSG § 5G1.1(b) provides: “Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” -3- No. 14-5406 Shaw v. United States notice of appeal.2 He later voluntarily dismissed both his direct appeal and an appeal from the district court’s denial of his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2). In this § 2255 proceeding, Shaw again sought application of the FSA and a reduced sentence. The district court reasoned that the only effect the FSA and Dorsey had on Shaw’s sentencing was to lower the statutory minimum sentence from 120 months to 60 months. The statutorily-required sentence of 60 months fell below the 75-month sentence the court actually imposed. Because the FSA did not affect the legality of the sentence as originally imposed, the district court denied Shaw’s § 2255 motion.3 II. ANALYSIS When reviewing the denial of a § 2255 motion, we evaluate the district court’s legal conclusions de novo and uphold its factual findings unless they are clearly erroneous. Howard v. United States, 743 F.3d 459, 463 (6th Cir. 2014). The government does not dispute that § 2255 provides Shaw with a procedural mechanism to seek the benefits of Dorsey, see United States v. Parker, 762 F.3d 801, 805 (8th Cir. 2014), but the government does not agree that Shaw is entitled to any relief. An inmate in federal custody may attack his sentence collaterally if he can demonstrate “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Under our precedent, “[a] motion brought under § 2255 must allege one of 2 Although Shaw agreed in his plea agreement to waive his right to direct appeal and to file a § 2255 motion, the government has not sought to enforce Shaw’s waivers. 3 We take judicial notice that, on January 15, 2015, the district court further reduced Shaw’s sentence under § 3582(c)(2) to 62 months of imprisonment, effective November 1, 2015, based on a crack cocaine guideline recently lowered by the Sentencing Commission. R. 182. -4- No. 14-5406 Shaw v. United States three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citing United States v. Addonizio, 442 U.S. 178, 185–86 (1979)). Shaw does not point us to any error of constitutional magnitude that occurred at his sentencing hearing. He argued below that his sentence violated the Equal Protection Clause of the Constitution, but he has not renewed that argument on appeal. He also does not contend that his sentence was outside the statutory limits. Thus, to prevail under § 2255, Shaw must establish that a fundamental error of fact or law rendered his entire sentencing proceeding invalid. He has not carried his burden to make this showing. Most of the cases Shaw cites in support of his request for relief were decided in the context of sentencing reduction motions filed under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10. Those authorities do not apply here. The only question we must address in this § 2255 proceeding is whether the district court’s application of the 120-month statutory minimum at the original sentencing, rather than the FSA’s lower 60-month minimum, constituted a fundamental defect in the sentencing that resulted in a complete miscarriage of justice or an egregious error in violation of Shaw’s due process rights. See Wright v. United States, 182 F.3d 458, 463 (6th Cir. 1999). We conclude that no such fundamental error of fact or law occurred because our Carradine holding required the district court to apply the 120-month statutory minimum that was in effect at the time of the original sentencing in February 2011. Although Dorsey later clarified that the FSA’s lower 60-month statutory minimum applied to Shaw, his sentence would nonetheless remain the same, even applying the lower minimum penalty. A statutory minimum -5- No. 14-5406 Shaw v. United States sentence of 60 months lies below the bottom of Shaw’s guideline range of 84 to 105 months, and the government declined to make a § 5K1.1 motion that would have allowed the court to depart below the bottom of the guideline range for substantial assistance. To Shaw’s benefit, the district court varied downward to impose a sentence of 75 months to grant Shaw credit for time served in state custody. The FSA’s lower statutory minimum, even if applied, would have had no effect on Shaw’s sentence. See United States v. Joiner, 727 F.3d 601, 607–08 (6th Cir. 2013) (discussing cases where a statutory minimum below the defendant’s guideline range plays no role in sentencing). Shaw contends that he is entitled to a sentencing reduction because the FSA effectively lowered his guideline range. He reasons that, because the pre-FSA statutory minimum of 120 months was higher than the guideline range of 84 to 105 months, USSG § 5G1.1(b)(1) increased his guideline sentence to 120 months. Then, when the FSA lowered the statutory minimum from 120 months to 60 months, the FSA had the effect of lowering his guideline range and now he should receive a sentencing reduction. This argument would be relevant if Shaw were requesting a sentencing reduction under § 3582(c)(2). Under that statute, Shaw would have to show that his “term of imprisonment [was] based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Here, the issue for resolution is whether Shaw can show a fundamental defect in his original sentencing that requires § 2255 relief, and he has not done so. III. CONCLUSION The district court properly followed existing law when, at the original sentencing in February 2011, it applied the pre-FSA statutory minimum of 120 months. Dorsey later clarified that the FSA’s lower statutory minimum applied, but because that penalty was below Shaw’s -6- No. 14-5406 Shaw v. United States guideline range, it had no effect on his sentencing. Shaw has not demonstrated that a fundamental defect in his sentencing resulted in a complete miscarriage of justice or an egregious error in violation of his due process rights. Accordingly, we AFFIRM the judgment of the district court. -7-	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2896436/	NO. 07-08-0047-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 13, 2008 ______________________________ PASCUAL DELGADO, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant v. THE STATE OF TEXAS, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee _________________________________ FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY; NO. CR-07E-087; HON. ROLAND SAUL, PRESIDING _______________________________ Memorandum Opinion _________________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Â Â Â Â Â Â Â Â Â Â Pascual Delgado (appellant) appeals his conviction for delivery of a controlled substance. After pleading guilty before a jury, a trial was held on punishment. The jury assessed punishment at 99 years imprisonment. The trial court sentenced appellant in accordance with the verdict. Thereafter, he timely noticed his appeal, and counsel represented appellant pro bono due to appellantâs indigence. The latter has moved to withdraw after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and representing that he searched the record and found no arguable grounds for reversal. Counsel further represents that he informed his client of his right to review the record and file a pro se brief or response. We also informed appellant that any response he cared to file had to be filed by November 3, 2008. To date, appellant has neither filed a pro se response nor moved for an extension of the November 3rd deadline. Â Â Â Â Â Â Â Â Â Â We now address the validity of the two potentially arguable issues raised by appointed counsel. The first involved the guilt/innocence phase. Counsel reviewed each phase of the trial including 1) the indictment, 2) pre-trial motions, 3) appellantâs plea of guilty and the trial court admonishments, and 4) the trial itself. As counsel points out, the guilty plea before the jury âadmits the existence of all facts necessary to establish guilt.â Â Â Â Â Â Â Â Â Â Â The second issue concerned any error that may have occurred in the punishment phase. According to counsel, the punishment may appear to be excessive, 99 years in prison and a $250,000 fine; yet, it was still within the range prescribed by statute. Therefore, counsel concludes that no error existed warranting reversal in either the guilt/innocence or punishment phases.Â Â Â Â Â Â Â Â Â Â Â Â Â Â We also conducted our own review of the record pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) and found no arguable issue warranting reversal. Â Â Â Â Â Â Â Â Â Â Accordingly, counsel's motion to withdraw is granted, and the judgment of the trial court is affirmed. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Brian Quinn Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice Do not publish. ned statutory liability of all defendants is not exceeded. Id. Further, the cap applicable to a single defendant who is jointly and severally liable in a comparative negligence situation is not increased by the number of culpable defendants. Columbia Hosp. Corp. of Houston v. Moore, 43 S.W.3d 553, 556 (Tex.App.--Houston [1st Dist.] 2001, pet. granted). Conversely, appellees argue in response to this issue and also in their first cross-issue that, because the five general partners of the owner and operator of the nursing home have admitted they are not health care providers, they are not entitled to the protection of the cap. Alternatively, even if the cap is available to all of the defendants, there are six culpable defendants against whom the court has rendered judgment, and therefore the cap should be multiplied by six. This is so, appellees posit, because it is not necessary for the defendant to have been found liable by a jury for a defendant to be culpable pursuant to the judgment. Only the issue of Cresthaven's negligence was submitted to the jury. However, the judgment recites that appellees may recover jointly and severally from Cresthaven, Cantex, and the five general partners of Cantex. While appellees assert that Cantex is liable because it is the owner and operator of Cresthaven, they do not contend that both Cantex and Cresthaven are culpable defendants, even though the jury found Cresthaven to be negligent and judgment was rendered against both parties. Therefore, appellees apparently recognize that Cresthaven and Cantex are not two separate legal entities, and Cantex is responsible for the liabilities of Cresthaven because Cantex did business as Cresthaven. As noted, appellees did not seek recovery against the general partners in their pleadings as joint tortfeasors, and no issue as to the negligence of the general partners was submitted to the jury. Therefore, even if the general partners have judicially admitted that they are not health care providers, as appellees contend, it is irrelevant since appellees did not seek damages from the general partners on the basis that they were health care providers. The basis upon which appellees sought damages against the general partners, and upon which the judgment against them was entered, is that statutory law imposes joint and several liability on general partners for the debts and obligations of a partnership making them vicariously liable. Tex. Rev. Civ. Stat. Ann. art. 6132b-3.04. Vicarious liability is a judicially created vehicle for enforcing remedies for wrongs. Dutcher v. Owens, 647 S.W.2d 948, 950-51 (Tex. 1983). It is the imposition of liability on one party for the actionable conduct of another based on a relationship between the parties. Black's Law Dictionary 1566 (6th ed. 1990). No liability under the law was imposed on the general partners independent of their status as a partner. Therefore, the general partners can only be liable for the debt incurred by Cantex d/b/a Cresthaven. It is appropriate to include them in the judgment, but not to increase the amount of the judgment by treating each general partner as a tortfeasor in its own right. We believe this interpretation is consistent with the stated purposes of the Medical Liability and Insurance Improvement Act, one of which is to decrease the cost of claims and assure that awards are rationally related to actual damages. See Tex. Rev. Civ. Stat. Ann. art. 4590i § 1.02(b)(2) (Vernon Supp. 1999). Otherwise, the amount of an award against a health care provider could be doubled simply by the fact it has four general partners instead of two. Thus, the judgment is limited by a single cap of $500,000 adjusted by the consumer price index. Appellants also contend that prejudgment interest is included within the section 11.02 cap on damages. This question has not been definitively answered by the Texas Supreme Court. In Auld, the court concluded that prejudgment interest under the general prejudgment interest statute (3) was included in the damages cap. Auld, 34 S.W.3d at 900-01. However, the majority opinion specifically declined to address whether sections 16.01 and 16.02 of article 4590i, added in 1995, conflict with this interpretation. Pursuant to section 16.02, judgments must include prejudgment interest on past damages found by the trier of fact, but are not to include prejudgment interest on future damages. Tex. Rev. Civ. Stat. Ann. art. 4590i Â§ 16.02(b) (Vernon Supp. 1999). Nevertheless, in a concurring and dissenting opinion, four justices indicated their belief that this section confirms that prejudgment interest is not subject to the cap. Auld, 34 S.W.3d at 908. More recently, the Houston Court of Appeals ruled that the majority opinion in Auld with respect to prejudgment interest under the general statute was not binding when prejudgment interest was awarded under the more recent provisions of the Medical Liability and Insurance Improvement Act, which shows a legislative intent to exclude prejudgment interest from the cap. Moore, 43 S.W.3d at 562. We agree with the Houston court that the holding in Auld is not binding, and we must determine the effect of the legislature having added Subchapter P dealing with prejudgment interest to the act and reconcile it with the liability limits in Subchapter K. We note initially that section 11.02 of Subchapter K states that where final judgment is rendered against a physician or health care provider, "the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000." Thus, the cap applies to damages, not the amount of the judgment. Further, the cap does not include the amount of damages awarded on claims for necessary medical, hospital, and custodial care. Tex. Rev. Civ. Stat. Ann. Â§ 11.02(b) (Vernon Supp. 1999). However, in Subchapter P, section 16.02 provides that the judgment must include prejudgment interest on past damages, but shall not include prejudgment interest on future damages. Id. Â§ 16.02(b). Thus, it seems clear that the legislature intended to make a distinction between damages awarded and the final judgment by providing that the cap applies to the damages awarded, but prejudgment interest on past damages must be included in the judgment. Further, if the legislature had intended the cap to apply to prejudgment interest, it would surely have made that provision. We believe this is a logical interpretation of the act relying on the language used in the act. Thus, we find that prejudgment interest is not included in the statutory cap on damages. We must next determine whether prejudgment interest is calculated on the capped or uncapped amount of damages. The statute provides that prejudgment interest shall be paid on past damages found by the trier of fact, but not on future damages. Past damages are defined as those awarded to compensate the claimant for their loss incurred from the period beginning on the date of injury and ending on the day before the date of judgment. Id. Â§ 16.02(d)(1). Appellees contend that, because the statutory language provides that prejudgment interest is to be paid on damages found "by the trier of fact," prejudgment interest should be calculated on that amount awarded before application of the damages cap and cite to Moore in support of that proposition. However, the court held that prejudgment interest is not included in the damages cap and is recoverable on all damages. Moore, 43 S.W.3d at 562. However, that statement was, as noted, made within the context of whether prejudgment interest was included within the cap. Therefore, the court was merely stating that prejudgment interest is owed, even though it exceeds the amount authorized by the damages cap and should be paid on all damages, both those covered and not covered by the cap, i.e., medical, hospital, and custodial care. The issue in the other two cases cited by appellees, Samples v. Graham, 76 S.W.3d 615 (Tex.App.--Corpus Christi, 2002, no pet. h.) and Battaglia v. Alexander, No. 14-00-00428-CV, slip op., 2002 WL 730530 (Tex.App.--Houston [14th Dist.] April 25, 2002, no pet. h.), was whether prejudgment interest should be awarded on past damages found by the trier of fact prior to a deduction for settlement credits. In both cases, the courts found that the deduction for settlement credits should be made after calculation of prejudgment interest on the amount awarded by the jury. However, we note that in Graham, the court stated that prejudgment interest is included in the statutory cap and refused to find that "allowing prevailing plaintiffs to recover prejudgment interest only on a statutorily limited measure of past damages found by the jury presents an absurd scenario." (Emphasis added). Graham, 76 S.W.3d at 621. Nevertheless, we must assume the legislature intended the plain meaning of its words and, if possible, ascertain their intent from the language used in the statute. National Liability & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). The legislature did not provide that prejudgment interest is to be awarded on the amount of past damages included in the judgment, but on the amount awarded by the trier of fact. This language implies that prejudgment interest is applicable on the full amount of past damages found by the jury prior to the application of the liability cap, which determines the amount for which the defendant is liable in the judgment. We therefore interpret the statute to require calculation of prejudgment interest on the amount of damages found by the jury. In light of that finding, appellants argue that appellees are limited to prejudgment interest on the amount of damages awarded by the jury for the survival claims because appellees did not request segregation of past and future damages with respect to their wrongful death claims. Appellants and appellees agree that the amount awarded as survival damages constitutes past damages. Essentially, the only disputed issue between the parties is which of them had the burden of requesting segregation of the wrongful death damages. Appellants argue that, under the law, the burden is on the plaintiff. Conversely, appellees argue that, because appellants pled the statutory limitation on prejudgment interest as an affirmative defense, they had the burden to request segregation. The statute clearly provides that prejudgment interest is not to be awarded on future damages. Appellees have cited no authority stating that to be entitled to the benefit of this statute, a defendant must assert it as an affirmative defense in his pleading. However, it has been held that the burden of segregating past and future damages is on the party seeking to obtain prejudgment interest. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 556 (Tex. 1985); Domingues v. City of San Antonio, 985 S.W.2d 505, 511 (Tex.App.--San Antonio 1998, pet. denied). This is so because it is fair to place the burden of submitting a proper jury charge on the party to whom the benefit of the charge will result. Id. Because appellees did not submit a charge segregating past damages from future damages, no prejudgment interest is available on the wrongful death damages awarded. Finally, appellants contend with respect to prejudgment interest that the award should be reduced for periods of delay caused by appellees. Prejudgment interest is to be computed in accordance with the Texas Finance Code. See Tex. Rev. Civ. Stat Ann. Â§ 16.02(c) (Vernon Supp. 1999). Under section 304.108(a), a court may consider the periods of delay in the trial and order that prejudgment interest does not accrue during them. Tex. Fin. Code Ann. Â§ 304.108 (Vernon Supp. 2003). However, prejudgment interest is to be denied only for delays caused by the parties and not a crowded trial docket. Purcell v. Const., Inc. v. Welch, 17 S.W.3d 398, 403 (Tex.App.--Houston [1st Dist.] 2000, no pet.). We review a court's refusal to offset prejudgment interest under an abuse of discretion standard. Helena Chemical Co. v. Wilkins, 18 S.W.3d 744, 760 (Tex. App.-- San Antonio 2000), aff'd, 47 S.W.3d 486 (Tex. 2001); City of Alamo v. Casas, 960 S.W.2d 240, 260 (Tex.App.--Corpus Christi 1997, pet. denied). Appellants argue that the court should have granted an offset from appellees first request for continuance on October 1, 1998, to the date of the fifth trial setting when the case actually went to trial on May 7, 2001. They base this contention on their claim that appellees did not promptly pursue a speedy resolution of their claims by requesting at least four continuances. While this case took almost five years to come to trial, the clerk's record reveals only three motions for continuance by appellees and only one of those motions was opposed by appellants. If appellants felt that appellees were unnecessarily delaying the trial, they could have been more proactive in seeking and holding appellees to a trial setting. It has been held not to be an abuse of discretion to refuse to make an offset against prejudgment interest when one motion for continuance was granted at one party's request, another motion for continuance was granted at the other party's request, and one was granted pursuant to a joint motion. Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 244 (Tex.App.--San Antonio 2001, pet. denied). Under the record before us, we cannot say the trial court abused its discretion in refusing to offset prejudgment interest. In summary, we sustained in part and overruled in part appellants' first issue. In doing so, we found that the judgment should be calculated based on a single statutory cap adjusted by the consumer price index and that prejudgment interest should be calculated on the award of survival damages only. We also overrule appellees' cross-issues. In their second issue, appellants argue that the judgment improperly included Denise Corbello and Lynette Calvert, as heirs at law of the Estate of Wanda Granger because they non-suited their claims with prejudice against appellants prior to trial. Appellees respond that Corbello and Calvert only non-suited their individual claims against appellants, not their survival claims. Thus, they assert, because the judgment only awards them damages as heirs at law, the judgment does not include improper plaintiffs. Corbello and Calvert sued both on an individual basis and as heirs at law of Granger's estate. The notice of non-suit was brought by them only in their individual capacities. Further, it specifically states that the non-suit "is only being taken as to individual claims made on the part of DENISE CORBELLO AND LYNETTE CALVERT and not as to any claims made by the Estate of Wanda Granger." Appellants appear to contend that because Corbello and Calvert did not appear at trial and no claims were submitted by them in the charge to the jury, the judgment is in error. However, the jury was asked what sum of money would fairly and reasonably compensate Granger for pain and mental anguish. This question represents the claim for survival damages which is the claim brought by Granger's estate. Because the claims of Corbello and Calvert, as heirs at law of Granger's estate were not non-suited, this question represents their claims. Appellants' second issue is overruled. By way of their third issue, appellants contend that the trial court erred in awarding judgment against Cresthaven and the five general partners. Appellants object to the inclusion of the general partners because no evidence was submitted to support the liability of the general partners and the jury made no finding of liability for them. We have already discussed this issue with respect to whether there should be a single cap on damages. It was because there was no assertion or finding of liability against the partners independent of their status as general partners that we concluded that a single cap should apply. However, we also concluded that it was appropriate to include the general partners in the judgment because, under the law, they have joint and several liability for the debts of the partnership. Appellants argue that, in the last live pleading by appellees, they only alleged that "the corporate partners were responsible for the management and operation of Cresthaven Nursing Residence, that each of the corporate partners were general partners of Cantex Healthcare Centers, and that the corporate partners were jointly and severally liable for the acts and omissions of the employees of Cresthaven." Appellants now appear to be arguing that these allegations are asserting claims against the general partners arising under the law independent of their status as general partners and, because they filed a verified denial of these allegations and no evidence of negligence of the general partners was submitted at trial, they are improperly included in the judgment. As already stated, we interpret these allegations as asserting a claim against the general partners based only on their status as general partners, which we believe is supported by the fact that no evidence was introduced at trial as to their individual negligence and no issue submitted to the jury with respect to any such negligence. Even if the allegations included independent individual liability for which no findings were made by the jury, those facts would not obviate the statutory mandate which holds the general partners liable. The general partners were named as parties to the lawsuit and, under the law, they are jointly and severally liable for the debt owed under the judgment by Cantex. Thus, it is appropriate to include them in the judgment. Appellants have failed to present any argument or authorities as to why Cresthaven should not be included in the judgment. Therefore, nothing is presented for review. (4) Dunlap v. Excel Corp., 30 S.W.3d 427, 434 (Tex.App.--Amarillo 2000, no pet.); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Authority, 876 S.W.2d 940, 953 (Tex. App.--Beaumont 1994, writ denied). We overrule appellants' third issue. In their fourth issue, appellants complain of the trial court's error in submitting a spoliation instruction to the jury, which probably caused the rendition of an improper judgment. The instruction given by the court was as follows: You are instructed that, when a party has possession of a piece of evidence at a time he knows or should have known it will be evidence in a controversy, and thereafter he disposes of it, alters it, makes it unavailable, or fails to produce it, there is a presumption in law that the piece of evidence, had it been produced, would have been unfavorable to the party who did not produce it. If you find by a preponderance of the evidence that Cresthaven Nursing Residence had possession of original, unaltered nurses notes pertaining to Wanda Granger at a time it knew or should have known they would be evidence in this controversy, then there is a presumption that the original, unaltered nurses notes pertaining to Wanda Granger, if produced, would be unfavorable to Cresthaven Nursing Residence. This presumption may be rebutted by Cresthaven Nursing Residence with the evidence of a reasonable explanation for the non-production of the evidence. (5) The doctrine of spoliation refers to the improper intentional destruction of evidence relevant to a case. See Malone v. Foster, 956 S.W.2d 573, 577 (Tex.App.--Dallas 1997), aff'd, 977 S.W.2d 562 (Tex. 1998). Trial courts have broad discretion to take measures to correct the ill effects resulting from spoliation, including a jury instruction on the spoliation presumption and death penalty sanctions. Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998). In making that determination, appellants urge reliance on the factors set forth in Justice Baker's concurring opinion in Trevino, which are (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliator negligently or intentionally spoliated evidence, and (3) whether the spoliation prejudiced the nonspoliator's ability to present its case. Id. at 954-55. Several courts have adopted these factors in their analysis of the propriety of an instruction. See Whiteside v. Watson, 12 S.W.3d 614, 621-22 (Tex. App.--Eastland 2000, pet. denied); Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 667-78 (Tex.App.--Houston [1st Dist.] 1998, no pet.). A party may have a statutory, regulatory or ethical duty to preserve evidence. Trevino, 969 S.W.2d at 955. A party also has a duty to preserve relevant evidence once litigation arises, and a duty to exercise reasonable care to preserve relevant evidence if it actually or reasonably should anticipate litigation. See Wal-Mart Stores, Inc. v. Johnson, 39 S.W.3d 729, 730, 732 (Tex.App.--Beaumont 2001, pet. granted). The evidence shows that Granger had been a resident of the nursing home since February 1995. On July 5, 1996, she was admitted to the hospital with a broken femur. She returned to Cresthaven on July 8, 1996, but was readmitted to the hospital on July 19 after vomiting dried blood. She died the next day. On July 20, just hours prior to the death of her mother, Freeman visited the nursing home seeking information as to her mother's condition in the days prior to her hospitalization and requested a copy of her mother's records. From this evidence, the trial court could have concluded that there was a duty on the part of Cresthaven to preserve those records. The evidence further shows that on July 20, one of the nurses, Gloria Thompson, was asked by Joan Adams, the assistant director of nursing, to recopy a July 19 entry in her nursing notes with respect to Granger. The original note was apparently given to Adams, but was not available at trial. However, Thompson testified that she recopied her note verbatim and there is no evidence to the contrary. (6) She additionally stated that everything in the note was accurate and based on her personal observations. Late entries were also made in the records of Granger although they were not noted as such. There is some evidence that Adams may have told Thompson and Cynthia Arceneaux that the chart was not completely documented and information needed to be filled in. However, none of the persons making those entries testified that they provided false information. (7) There was also testimony that there were times when the staff was so busy with resident care that they did not have time to complete their records on their shift and completed them later. In addition to these acts, appellees claim that they established that (1) medical records are missing notes from the charge nurse for several shifts during a critical period of Granger's care, (2) intake/outflow records for the entire month of July are missing, (3) nurses were directed to fill in missing portions of the medical record, and (4) catheter care was given by a medication aide who could not give catheter care. However, the pages cited in the record with respect to the missing notes from the nurse only establish that one nurse, Maridel Potato Meja, and Thompson herself did not know where Thompson's notes were, if she had in fact worked on July 16. It does not prove that the notes ever existed or that either person was responsible for being the custodian of those records. Further, the evidence shows that intake/outflow sheets were not placed by Granger's bed, which is evidence that the documents never existed. Entries in the records for July 12 through July 19 show that Granger was eating 100% of her food, although nurse's aide Essex testified she was not eating much, if anything. Freeman also stated that, although records indicate that her mother was talking and asking for food that week, from her own personal observations her mother was not responding to questions or eating. It is not established if these inconsistencies are the result of false records or if there are other explanations such as differences in the time of observation. There is also evidence that entries in care were initially made for one or more days when Granger was in the hospital, although some of these were later scratched out. Once again, the record does not affirmatively establish if these incorrect records are the result of deliberate falsification or honest mistakes. As to catheter care, Arceneaux denied that the initials which looked like "C. A." next to catheter care were hers, and no explanation for who performed the catheter care was provided. Kenneth Blanda, administrator of Cresthaven, testified that he had not been aware at the time it happened that any entries had been made late or recopied. Further, there was no directive from upper managment, he averred, for them to "get those records straight" or make sure there were no blanks in the record. He denied that the records had been falsified and stated that as far as he knew, they were accurate. However, he admitted that a notation should have been made of any late entry. The deliberate spoliation of evidence relevant to a case raises the presumption that the evidence would have been unfavorable to the cause of the spoliator. Ordonez v. M. W. McCurdy & Co., Inc., 984 S.W.2d 264, 273 (Tex.App.--Houston [1st Dist.] 1998, no pet.); Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.--San Antonio 1998, pet. denied); Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex. App.--Fort Worth 1993, writ denied). The presumption may be rebutted with a showing that the evidence was not destroyed with a fraudulent intent or purpose. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App.--Eastland 2000, pet. denied). The presumption does not apply when documents are merely lost. Williford Energy Co. v. Submergible Cable Services, Inc., 895 S.W.2d 379, 389-90 (Tex.App.--Amarillo 1994, no pet.). A trial court must submit in the charge to the jury all questions, instructions, and definitions raised by the pleadings and the evidence. Hyundai Motor Co. v. Rodriguez ex rel. Rodgriguez, 995 S.W.2d 661, 663 (Tex. 1999). If the instruction might aid the jury in answering the issues presented or if there is any support in the evidence for the instruction, it is proper. Knighten v. Louisiana Pacific Corp., 946 S.W.2d 638, 643 (Tex.App.--Beaumont 1997), rev'd on other grounds, 976 S.W.2d 674 (Tex. 1998). We will assume that the purported alteration of records can satisfy the requirement of destroyed evidence. However, the evidence with respect to the rewriting of Thompson's nurse's notes for July 19 does not show that there was any false information or that any prejudice resulted to appellees as a result of the rewriting of those notes. The same is true with respect to any late entries made to the nursing home records except for the inconsistent testimony of Essex as to whether she was asked to make late entries for any days that she did not actually work. Further, the evidence as to the intake/outflow records is that they never existed, which may be evidence of negligent care, but not of spoliation of evidence. Thus, the only evidence that might raise the issue of spoliation is the inconsistent testimony of Essex as to whether she was asked to make late entries for days that she did not actually work, inconsistencies between nurse's records showing the patient was eating and talking in the days before her death and the testimony of a nurse's aide and the patient's daughter which stated she was not, and Thompson's notes for July 16, which may be missing but were not shown conclusively to have actually existed. Although not particularly strong, these facts rise to a scintilla of evidence which would support the giving of the instruction within the discretion afforded to the trial judge. Further, if the medical records were altered to show that the patient was eating and talking in the days before her death when, in fact, she was not, that information could have constituted some evidence that the nursing home was aware she had a bladder infection which continued to worsen, thereby resulting in her death, according to appellees' theory of the case. Appellants' fourth issue is overruled. In their fifth and sixth issues, appellants claim the damages awarded arising out of both the survival claim and wrongful death claim are excessive and not supported by factually sufficient evidence. Therefore, they assert, they are entitled to a new trial or, alternatively, this court should suggest a remittitur of damages. In determining whether damages are excessive, the court should use the same test as that for a factual sufficiency question. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). Thus, we must consider and weigh all of the evidence and should set aside the award only if the challenged finding of fact is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). The mere fact that an award is large does not show that the jury was influenced by passion, prejudice, sympathy, or other circumstances not in evidence, and the award must be flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience. Missouri Pacific R. Co. v. Roberson, 25 S.W.3d 251, 257-58 (Tex. App.--Beaumont 2000, no pet.). The jury was asked what sum of money would have fairly and reasonably compensated Granger for pain and mental anguish, which was defined as the conscious physical pain and emotional pain, torment, and suffering experienced by her before her death as a result of the occurrence in question. The jury found that $4.5 million would so compensate her. In Saenz v. Fidelity & Guaranty Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996), it was held that mental anguish must be "a high degree of mental pain and distress" and must necessarily involve more than mere worry, anxiety, vexation, embarrassment, or anger. Id. at 614. While juries must be afforded discretion in arriving at the determination of a figure for which there is no exact evaluation, there must be some evidence to justify the amount awarded, and juries cannot simply pick a number. Id. At the time of her admission to the nursing home, Granger suffered from Alzheimer's Disease, organic brain syndrome, decreased functional activity, diabetes, hypertension, and urinary tract infections. During the time relevant to this lawsuit, there was testimony that Granger suffered from pain as a result of a broken leg on July 4, 1996, prior to her death on July 20, 1996. This apparently occurred as a result of two employees attempting to move her to her bed when she fell, collapsed or was dropped. (8) The nursing home records show that immediately after her fall, Granger was asked if she had any problems, and she replied negatively. However, the pain from the broken leg was described by her daughter as "excruciating," in spite of pain medication. The pain would be exacerbated by being moved by nursing home personnel, although Freeman also complained that her mother was in pain because she would be left in one position too long. There is further evidence that Granger may have been despondent, lacking an appetite, and producing cloudy and unpleasant smelling urine through her catheter during this time period, although Freeman stated that she did not notice any foul odors when she visited. Additionally, there was some testimony from Freeman that, at one time when she asked the staff to clean up her mother, it was discovered that her mother was lying in caked feces. Further, she was vomiting on July 19 prior to her admission to the hospital. After she had been admitted to the hospital on July 19, her daughter described her as shaking and non-responsive, although hospital records described her as alert, awake, not running a temperature, and having no speech problem. However, her condition worsened within hours after admission to the hospital, and she died, according to appellees, from sepsis occurring as a result of an untreated bladder infection. Nevertheless, appellants presented autopsy evidence that her death was the result of coronary artery sclerosis due to a pinpoint narrowing of one of her arteries. In examining the excessiveness of the damages awarded, the holdings in two cases out of the same court provide some guidance. In Casteel v. Crown Life Ins. Co., 3 S.W.3d 582 (Tex.App.--Austin 1997), rev'd in part on other grounds, 22 S.W.3d 378 (Tex. 2000), the plaintiff was awarded $6,000,000 for past mental anguish as a result of his claim for damages resulting from a misrepresentation of an insurance agent that the obligation to pay premiums under a policy would eventually vanish. The plaintiff testified that he lost business, friends, and his reputation due to the dispute, he required psychiatric treatment and medications due to stress, he suffered short and long term memory loss, and he had attempted suicide due to depression. His wife also testified about the effect of the dispute on his life. However, the court found that although the evidence supported a finding that he suffered from past mental anguish, nothing in the record showed that $6,000,000 was reasonable compensation for that anguish. Id. at 593. In Rehabilitation Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151 (Tex.App.--Austin 1998, no pet.), a 71-year-old woman suffering from rheumatoid arthritis and osteoporosis was being moved from a wheelchair to her hospital bed when she experienced great pain, became nauseous, and blacked out. It was discovered several hours later that two bones had been broken in her right leg. The next day, after further complaints of pain, it was discovered that two bones in her left leg were also broken. She spent two months in full leg casts. Although she had not been able to walk prior to the incident, after the incident she was unable to stand even with a walker and could not sit for more than 20 minutes at a time. The rest of the time she was prone and could no longer enjoy car rides with her son. She experienced pain at the fracture sites and became depressed. There was also testimony that her chances of living as long as she might have were decreased. In finding that she had been deprived of what little hope and independence she had, the court held that the evidence supported an award of $1,235,000 for pain, mental anguish and physical impairment alone. Id. at 155. Although there is evidence that Granger suffered pain between July 4 and July 20 as a result of breaking a bone in her leg, she may have been depressed, lacking an appetite, and may not have been timely washed after having defecated in her bed on one occasion, there is nothing in the evidence to support an award of $4.5 million. There is no evidence that, if indeed she was producing abnormal urine in the days preceding her death, she was even aware of that fact or that it caused her worry or pain. Further, because such a short time occurred between the incident where her leg was broken and her sudden deterioration and death, there is no evidence as to how the broken leg might have affected her long term physical and mental prognosis. We do not believe the record supports an award of $4.5 million for Granger's physical pain and mental anguish. We therefore suggest a remittitur in the amount of $3.5 million in that regard. Having sustained appellants' fifth issue to that extent, if a remittitur is not voluntarily filed, then a new trial should be granted. The jury was also asked what sum of money would fairly and reasonably compensate Freeman for her damages, if any, resulting from the death of her mother. In making that decision, the jury was instructed to consider loss of companionship and society, meaning the loss of positive benefits flowing from the love, comfort, companionship, and society that she would have received from her mother if she had lived, and mental anguish, meaning the emotional pain, torment, and suffering experienced by Freeman because of the death of her mother. The jury was allowed to consider the relationship between Freeman and her mother, their living arrangements, any extended absences from one another, the harmony of their relations, and their common interests and activities. The jury awarded $4.5 million, the same amount awarded as survival damages. Freeman offered the following testimony with respect to her feelings on the death of her mother: A. It was horrible. I was shocked, hurt, saddened. My kids were all upset. You know, we loved my mama a whole lot; and she loved us. Q. Did it come too quickly for you, ma'am? A. Of course. I never dreamed, never, that my mother would go in a hospital on a Friday and be dead on a Saturday. Q. Do you feel a loss? A. Terribly. Q. And on top of that do you feel that you have been misled by this nursing home? A. Totally. Q. And let down? A. Yes. Q. Did you love your mother as much as any child could love a mother? A. I loved my mother with all my heart, and my kids loved my mother with all their hearts. Q. You feel like they have taken away years that you otherwise could have had, such as a Mother's Day yesterday? A. Yes. Q. And I'm sorry to be testifying for you, but I'm going to let you tell the jury something and that is what you feel. A. I didn't get to tell her "goodbye." (Weeping) My kids didn't get to tell her "goodbye." We didn't get to say those things that we needed to say. And we looked forward to the holidays. We still talk about it. We eat food, and I fix certain kinds of things my mother liked to eat. They would always say, "That's grandma's - - you know, "That's what she liked." We would bring her food, and my kids enjoyed my mother. And they told her things that went on with the day. She took lots of time with them. And they miss her, and I miss her. And it's like every holiday we miss my mother. And the way - - and the way she died is just like - - it's horrible. Nobody should have had to suffer like that, nobody. And I hope that nobody's mother or anybody else has to suffer ever what I feel in my heart. There was additional testimony that Granger had suffered from nervous breakdowns throughout her life and that Freeman and her sister had been raised by others while her mother was in and out of hospitals. Granger had also been unable to raise a younger half-sister. As an adult, Freeman built a relationship with her mother. Beginning in 1987, Granger lived in her daughter's home, but Freeman became unable to physically care for her mother's needs, particularly those related to her catheter, and placed her in the nursing home in 1995. During her stay at the nursing home, Granger had periods of time in which her mental status was altered. In Russell v. Ramirez, 949 S.W.2d 480 (Tex.App.--Houston [14th Dist.] 1997, no writ), the court found an award of $750,000 for mental anguish and loss of the companionship of the plaintiff's 16-year-old son to be supported by the evidence. Id. at 487. In doing so, the court noted the plaintiff was a single parent and her son had lived at home at the time of his death, there was evidence that they did a lot of activities together such as skating, going to the mall, to movies and to Astroworld, there was a videotape of him dancing with his mother shortly before his death, the plaintiff stayed with her son at the hospital for 12 days before he died and, even though she was advised he would not recover, she talked to him and prayed for him, she still goes to his grave two or three times a week to tell him she misses him, she places a memorial to him in the newspaper every year, and she testified she has never stopped grieving for him. Id. at 486-87. No physical manifestation of mental anguish is necessary in wrongful death cases, and the issue can be submitted to the jury on the basis of the impact suggested by the circumstances surrounding the loss. Moore v. Lillebo, 722 S.W.2d 683, 687-88 (Tex. 1986). From the evidence presented, a rational trier of fact could have found that, at the time of her death, the relationship between Freeman and her mother was close, and they had lived together happily for eight years until Freeman could no longer care for her mother who, by the time of her admission to the nursing home, had significant health problems. However, throughout her life, Freeman and her mother had been separated for extended periods of time, and there is little or no evidence of common interests or activities. We believe in this instance the amount of the award is not supported by the evidence. We therefore sustain appellants' sixth issue and suggest a remittitur of $3 million in that regard. In the event the remittitur is not voluntarily made, the matter will be reversed for a new trial. Appellants complain in their eighth issue that the trial court abused its discretion in admitting the testimony of appellees' medical expert, Dr. J. D. Britton, because he was not qualified to render an expert opinion on the issues in this case relating to urology, cardiology, and pathology. Dr. Britton testified he was a family practitioner for approximately nine years. During that time, he was a medical director of a nursing home in Austin for almost seven years. Then, he moved to Houston and began a residency program in occupational medicine for two years. He obtained a master's degree in public health and completed his training in occupational medicine. He has since been in private practice in occupational medicine. Dr. Britton is certified in preventive medicine with occupational medicine as a specialty and board eligible in family practice, meaning he has not taken the final exam to be certified. His experience in the areas of urology, cardiology, and pathology are from medical school and his subsequent internship, as well as having treated patients with urological and cardiac problems. With respect to the care of Granger, he testified there was evidence that she was suffering from a bladder infection and that the nursing home staff had failed to give her antibiotics, even though they had been prescribed, which was negligence. She was known to have frequent urinary infections, had been treated with antibiotics for over a year and when the antibiotics ceased, she still had a "smoldering infection." He further stated that weakness resulting from her infection would have contributed to her fall, resulting in a broken leg. When Granger was admitted to the hospital with her broken leg, her white cell count indicated an infection, which was untreated from July 1 through July 20. On admission to the hospital on July 19, her white cell count also indicated a severe infection. In the emergency room on July 19, she was diagnosed with gastrointestinal bleeding, but later in intensive care, a nurse reported that there was pus coming out of her bladder. There were also dark clots of urine which would indicate the urinary tract was bleeding. According to Dr. Britton, this infection entered into Granger's bloodstream and sepsis resulted in her death. He further opined that sepsis can shut down any vital organ including the heart, resulting in sudden heart failure. Also, the stress of infection and the pain of a broken leg could have caused heart failure. The fact that she had no temperature is not indicative that she had no infection, because the elderly can have subnormal or normal temperature when they have an infection, and a severe infection can cause intestinal bleeding. He further stated that as of 11:00 p.m. on July 19, the information available, including the fact she was elderly with gastrointestinal bleeding, a white cell count of 27,000, IV fluids needing to be administered, her blood pressure dropping and increased pulse and respiratory rates, indicated she was septic. By the time antibiotics were given, it was too late. According to Britton, Granger had three kinds of bacteria that are common in persons with catheters for a long period of time. The bacteria are easily treated if done so promptly. If the hospital had received accurate records as to the nature of Granger's urine, her lack of input and output, and her non-responsiveness prior to admission to the hospital, proper treatment could have saved her life. Dr. Britton found it to be a breach of the standard of care for a nurse to not follow up on an order for an antibiotic, thereby discontinuing its use and that was a proximate cause of injury. Further, the nursing home was grossly negligent, in his opinion, in their awareness of certain problems about which nothing was done, such as having no intake/outflow records. The failure of the nursing home to communicate Granger's problems to the hospital was reasonably certain to have caused her death. In a medical malpractice case, the plaintiff must establish a duty requiring the defendants to conform to a certain standard of conduct, the applicable standard of care and its breach, a resulting injury, and a reasonably close causal connection between the breach of the standard of care and the injury. Blan v. Ali, 7 S.W.3d 741, 744 (Tex. App.-- Houston [14th Dist.] 1999, no pet.). Expert testimony is necessary to meet this burden. Id. An expert qualified by knowledge, skill, experience, training, or education may testify as to scientific, technical, or other specialized knowledge if it will assist the trier of fact to understand the evidence or determine a fact in issue. Tex. R. Evid. 702. However, every licensed doctor is not automatically qualified to testify as an expert on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). Nevertheless, the fact that an expert is not a specialist in the particular branch of medicine for which the testimony is offered will not automatically disqualify him as an expert. Ali, 7 S.W.3d at 745. The question to be resolved is the specific subject matter and the expert's familiarity with it. See Heise, 924 S.W.2d at 153; Ali, 7 S.W.3d at 745. The proponent of the expert bears the burden of showing that the expert's testimony is qualified, relevant to the issues, based on a reliable foundation, and will assist the trier of fact. E. I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). We review the ruling of the trial court as to the qualifications of an expert witness under an abuse of discretion standard. Heise, 924 S.W.2d at 151. Appellants complain that Dr. Britton was not qualified by education, training, knowledge, or experience in the fields of urology, cardiology, or pathology, which would qualify him to make a diagnosis of sepsis or urosepsis or to render opinions that the same were the proximate cause of Granger's broken leg, heart failure, and/or death. This is primarily so because his only training or experience in those fields occurred in medical school or in his practice of family medicine, which ended in 1984. Therefore, his opinions were mere speculation. The focus of our determination is not on the doctor's area of expertise, but on the condition involved in the claim. Ali, 7 S.W.3d at 746. If Dr. Britton is offering opinions peculiar only to the fields of urology, cardiology, and pathology, then he is unqualified to render them. However, if the standards of care he discusses apply to any physician or health care provider who treats an elderly patient with long term catheter care and cardiology problems, then his lack of expertise in those special fields is irrelevant. See id. at 747. Dr. Britton's opinions as to the negligence of the nursing home involved the failure to give an antibiotic that had been prescribed for a urinary tract infection, to maintain accurate information in nursing home records and to communicate that information to hospital personnel upon transfer of a patient to the hospital. The standard of care with respect to these actions are common to all patients in a nursing home and, further, Dr. Britton had experience as a nursing home director. As to the cause of death, Dr. Britton relied on his medical training and general experience treating patients. He further researched reference articles with respect to sepsis and the conditions which indicate its manifestation and also an article on precipitating causes of heart failure. Moreover, one of the consulting hospital physicians for Granger on June 20, a cardiologist, gave his impression of her condition as "hypotension and shock, probably secondary to sepsis, probably urosepsis and urinary tract infection." Additionally, her attending physician at the time of her death, a doctor of osteopathy, listed one of the causes of death on her death certificate as sepsis. (9) Thus, there is nothing to indicate that the opinions offered required an expertise peculiar to the fields of cardiology or urology. Further, multiple doctors who are not pathologists offered opinions as to the cause of Granger's death. The trial court did not abuse its discretion in allowing Dr. Britton to testify. Appellants' seventh issue is overruled. In their eighth issue, appellants argue that because Dr. Britton's testimony was not competent, the record contains no evidence to establish the standard of care, breach of that standard, or proximate causation. However, we have found Dr. Britton's testimony to have been admissible, and thus there was some evidence on all three elements of appellees' claims. It was up to the jury to assign whatever credibility they chose to that testimony. We therefore also overrule appellants' eighth issue. Summarized, we overrule appellants' second, third, fourth, seventh and eighth issues and appellees' two cross-issues. We sustain in part appellants' first issue by finding that the damages should be limited to a single statutory cap. Prejudgment interest is not subject to the cap and should be computed on the amount of survival damages alone. We also sustain appellants' fifth and sixth issues. If the suggested remittiturs are not voluntarily made within a period of 45 days from the date of this opinion, this cause will be reversed and remanded for a new trial. If the remittiturs are made within that time, the cause will be affirmed. John T. Boyd Senior Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. Â§75.002(a)(1) (Vernon Supp. 2003). 2. The five general partners of Cantex Healthcare Centers are the remaining appellees, Bratex, Inc., Gamtex, Inc., Medco Medical Services, Ontex, Inc., and Amlon U.S.A., Inc. 3. Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, section 6(a) now codified as Tex. Fin. Code 304.102 (Vernon Supp. 2003). 4. We would tend to agree that it was unnecessary to include Cresthaven in the judgment. However, because there is no evidence that Cresthaven and Cantex are separate legal entities, we fail to see any harm in its inclusion in the judgment, and appellants have not asserted any such harm. 5. Appellants also complain that the instruction did not assist the jury, but confused and misled them and improperly shifted the burden of proof. However, in their reply brief, they clarify that these complaints are raised only to show the harm suffered from the instruction, not as a direct attack on the instruction itself. 6. There is no explanation as to why she was asked to recopy that particular note. 7. Tashia Essex testified at trial that she was asked to fill in information for days she did not work, but admitted that in her deposition she had testified she was only asked to fill in information for days that she did work. No explanation for this inconsistency is provided. 8. The nursing home records show that Granger had a fainting episode, although Freeman stated she did not believe that to be true. There is evidence that Granger was obese and weighed 295 pounds at the time of admission to the nursing home. 9. At trial, he changed his opinion of the cause of her death based on the autopsy report, which found the cause to have been coronary arteriosclerosis. He also stated that the consulting cardiac physician now believes her death was cardiac-related.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/834886/	262 P.3d 403 (2011) 351 Or. 218 LAVEY v. KROGER. (S059447). Supreme Court of Oregon. October 6, 2011. MISCELLANEOUS SUPREME COURT DISPOSITION. BALLOT TITLE CERTIFIED. On August 11, 2011, petitioners. filed objections to the Attorney General's modified ballot title. The court determines that petitioners' objections are not well taken and denies the same. The court certifies to the Secretary of State the Attorney General's modified ballot title for Proposed Initiative No. 16 (2012). ORS 250.085(10)(a).	01-03-2023	03-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2434340/	376 S.W.2d 760 (1964) William E. PUGH, Appellant, v. The STATE of Texas, Appellee. No. 36770. Court of Criminal Appeals of Texas. March 25, 1964. 761 No attorney of record on appeal for appellant. Leon B. Douglas, State's Atty., Austin, for the State. WOODLEY, Presiding Judge. The offense is drunk driving; the punishment, 3 days in jail and a fine of $50. No statement of facts accompanies the record. Two formal bills of exception are relied upon for reversal. Bill No. 1 certifies that on voir dire examination of the panel of 16 prospective jurors from which a jury was being selected they were asked whether the fact that the defendant was charged with driving an automobile on a public highway in Smith County while intoxicated would or might cause them to be prejudiced against the defendant and his defense. One of the members of the panel, in the presence of the others, stated: "I don't know whether this would prejudice me or not, but I have just returned from Arlington, Texas, where I buried the best friend I had in the world last Saturday; he was the victim of a drunk driver." The bill reflects that the trial judge instructed the jury not to consider the remark but overruled the appellant's motion to quash and discharge the panel, and ordered the trial to proceed. The juror's remarks in the presence of other members of the panel were improper and prejudicial. Appellant's Bill No. 2 certifies that after the jury had retired to consider their verdict and had been deliberating for some two hours they sent a written question to the court asking "What was the date and hour the defendant was picked up by the Highway Patrolman?" The date shown by the evidence was stipulated, and the jury having received the information called for by their question retired. The bill certifies that thereafter the court, on his own volition, over objection of the appellant, recalled the jury and had the court reporter to read to them the following testimony: "I was on routine patrol on U.S. 271, Gladewater Highway, east of Tyler, and as I was about four miles out, and I was going down a hill right before you come to the T.B. Hospital, and I observed a vehicle coming toward me traveling west, and the vehicle came 762 across the center stripe, and I immediately pulled to the shoulder of the road and looked at him in my rear view mirror, and the vehicle stayed across the center stripe, and I turned around and began to try to apprehend the vehicle, and I turned on my red light and siren, and as I went I would try to pull up beside him, and he would come to the left, and I'd have to drop back. That happened several times." Art. 678, Vernon's Ann.C.C.P. controls and limits the reading of testimony to the jury during their deliberations. The court's action was not authorized and tended to bolster the state's case. We have concluded that the bills of exception reflect facts showing that the appellant was deprived of a fair and impartial trial and that the absence of a statement of facts does not preclude our consideration of the bills. The judgment is reversed and the cause remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4561283/	J-S32042-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OMAR POWELL, : : Appellant : No. 59 EDA 2020 Appeal from the PCRA Order Entered December 3, 2019, in the Court of Common Pleas of Lehigh County, Criminal Division at No(s): CP-39-CR-0002378-2006. BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.* MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 28, 2020 Omar Powell appeals from the order denying his fifth petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm. The pertinent facts and partial procedural history have been summarized as follows: [Powell] was arrested on drug charges in July of 1996 in [the victim’s] home. [Powell’s] trial on those drug charges was scheduled for March 3, 1997. [The victim] was going to testify at the drug trial that the drugs found in her home belonged to [Powell]. The March 3, 1997 trial was continued. In the early morning hours of March 10, 1997, officers from the Allentown Police Department responded to a report of a shooting at 7th and Allen Streets. Officers found [the ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S32042-20 victim] lying in the street at that location, dead from multiple gunshots to the head. On the night and early morning hours prior to the murder, [Powell] had been transporting cocaine and guns from New York to Allentown with two friends and an acquaintance he did not know. While [Powell] drove on 7th Street in Allentown, he spotted [the victim]. He drove around the block, parked his car and asked one of his friends, Reginald Tyson (Tyson) to get out of the car with him. [Powell] and Tyson walked up to [the victim] and waited for a car stopped at the light at the intersection where [she] was standing to drive off. Once it did, [Powell] said something to [the victim] and shot her in the head. [Powell] and Tyson ran back to the car, stated to their friend waiting in the car that they thought [the victim] was dead, and drove to the room where they were staying in Allentown. The gun was later taken back to New York. On March 12, 1997, [Powell] was arrested for a separate incident on charges of possession of a firearm without a license. As a result of [the victim’s] death, the Commonwealth’s 1996 drug case [against Powell] was significantly weakened and the prosecutor offered [Powell] a plea agreement for the drug case and the possession of a firearm to run concurrently. A federal inmate named Dimitris Smith (Smith) had provided statements to the Commonwealth implicating [Powell] in the murder of [the victim]. He had also provided investigators with the name of an eyewitness to the murder, Tyson, an inmate incarcerated in New York state prison. [Powell] was subsequently arrested in 2005 for the homicide of [the victim]. Both Smith and Tyson testified against [Powell] at trial and told the jury that [Powell] had killed the victim to prevent her from testifying against him in a state drug prosecution. In addition to Smith and Tyson, the Commonwealth presented three federal inmates as witnesses against [Powell.] The witnesses testified that [Powell] confessed to killing [the victim] while they were incarcerated together at Lehigh County Prison. -2- J-S32042-20 Commonwealth v. Powell, 116 A.3d 674 (Pa. Super. 2014), unpublished memorandum at 1-2, appeal denied, 114 A.3d 416 (Pa. 2015). On March 29, 2007, a jury convicted Powell of first degree murder and, on April 17, 2007, the trial court sentenced him to life in prison. Powell filed a timely appeal. In an unpublished memorandum filed on July 14, 2008, this Court affirmed Powell’s judgment of sentence, and, on November 13, 2008, our Supreme Court denied his petition for allowance of appeal. Commonwealth v. Powell, 959 A.2d 271 (Pa. Super. 2008), appeal denied, 961 A.2d 859 (Pa. 2008). Powell timely filed his first pro se PCRA petition on August 24, 2009. The PCRA court appointed counsel, and PCRA counsel filed an amended petition. The PCRA court held an evidentiary hearing on January 26, 2010. By order entered June 25, 2010, the PCRA court denied the petition. Powell filed a timely appeal to this Court. In an unpublished memorandum filed on August 22, 2011, we affirmed the PCRA Court’s denial of post-conviction relief, and our Supreme Court denied Powell’s petition for allowance of appeal on March 13, 2012. Commonwealth v. Powell, 32 A.3d 839 (Pa. Super. 2011), appeal denied, 40 A.3d 1235 (Pa. 2012). Over the next five years, Powell filed multiple pro se PCRA petitions, all of which the trial court denied as untimely filed, and this Court affirmed after concluding that Powell did not plead and prove an exception to the PCRA’s time bar. In affirming the denial of post-conviction relief in 2013, we affirmed the PCRA court’s rejection of Powell’s claim that his newly discovered -3- J-S32042-20 purported Brady1 violations by the Commonwealth. See Commonwealth v. Powell, 82 A.3d 463 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 83 A.2d 168 (Pa. 2013). In 2014, we affirmed the PCRA court’s rejection of Powell’s newly-discovered evidence claim based upon an affidavit prepared by Rodney “Sha” Houston, a fellow federal inmate who was allegedly informed that someone other than Powell had killed the victim. See Powell, supra. Finally, in 2018, we affirmed the PCRA court’s rejection of Powell’s newly-discovered claim based upon an affidavit from a previously unavailable witness who was now willing to testify that someone else committed the victim’s murder. Commonwealth v. Powell, 185 A.3d 1104 (Pa. Super. 2018) (unpublished memorandum), appeal denied, 220 A.3d 619 (Pa. 2019). On July 9, 2019, Powell filed the pro se PCRA petition at issue, his fifth. Although conceding that his petition was untimely, Powell asserted that he could establish the newly-discovered evidence exception “based upon alleged information provided to [Powell] by a fellow inmate while the two were strolling in the ‘main yard’ of their state correctional institution more than twenty-one years after the murder of [the victim].” PCRA Court Opinion, 3/18/20, at 1. On October 2, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Powell’s petition. Powell filed a timely response, as well as a motion to amend his petition, which the PCRA court granted. Thereafter, Powell submitted both an amended and supplemental petition. On ____________________________________________ 1 Brady v. Maryland, 373 U.S. 83 (1963). -4- J-S32042-20 November 6, 2019, the PCRA court issued a second Rule 907 notice. Powell filed a response, as well as another request for leave to amend his petition. By order entered December 3, 2019, the PCRA Court denied Powell leave to amend his petition; the court also denied Powell’s fifth PCRA because it was untimely filed and Powell failed to plead and prove a PCRA time-bar exception. This timely appeal followed. Both Powell and the PCRA court complied with Pa.R.A.P. 1925. Powell now raises the following issues on appeal: 1). Does [Powell’s] actual [innocence] claim [serve] as a gateway through which [he] may pass to overcome a procedure, or [statute] of limitations bar? 2). Did the PCRA court abuse its discretion when it implied or inferred that [Powell’s] newly-discovered evidence was merely cumulative without following clearly established law pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) before coming to its conclusion? 3). Did the PCRA court [err] when it improperly grafted on additional requirements to the newly-discovered facts exception (42 Pa.C.S. § 9545(b)(1)(ii)? 4). Did the PCRA court [err] when it [failed] to hold an evidentiary hearing to allow [Powell] to attempt to further [develop] the record? 5). Did the PCRA court [err] when it determined that five (5) Commonwealth witnesses[’] testimonies were absolutely conclusive of [Powell’s] guilt of the crime, without holding [an] evidentiary hearing to make an independent credibility determination of the newly[-]discovered witness’s prospective testimony? 6). [Do] pro se litigants, specifically minorities, routinely get denied the opportunity and the right by the PCRA court to utilize favorable case law in support of their claims the same as those who are represented by counsel in violation of the -5- J-S32042-20 Equal Protection Clause of the Pennsylvania and the United States Constitution? Powell’s Brief at unnumbered 4-5 (excess capitalization omitted). This Court’s standard of review regarding an order dismissing a petition under the PCRA is to ascertain whether “the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). Before addressing the issues raised by Powell, we must first determine if the PCRA court correctly concluded that his fifth petition was untimely. Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment is final unless the petition alleges, and the petitioner proves, that an exception to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these ____________________________________________ 2 The exceptions to the timeliness requirement are: (i) the failure to raise the claim previously was the result of interference of government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States. (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or -6- J-S32042-20 statutory exceptions must be filed within one year of the date the claims could have been presented. 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions to the time restrictions for a PCRA petition must be included in the petition, and may not be raised for the first time on appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016). Here, this Court has previously held that Powell’s judgment of sentence became final on February 11, 2009. See Powell, supra, unpublished memorandum at 7. Because Powell filed the petition over nine years later, it is patently untimely, unless Powell has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. Powell has failed to prove the applicability of any of the PCRA’s time-bar exceptions. Within his PCRA petition Powell argued the newly-discovered evidence of an alibi witness renders his petition timely. According to Powell, in 2018 he met a fellow inmate in the prison yard, Kevin Williams, a/k/a Kirby Stewart. According to a September 21, 2018 witness certification signed by Inmate Williams, “during the ‘early morning hours of March 1997,’ he was on his way to ‘rob’ [Powell] of ‘money and narcotics,’ a plan abandoned, when he remembered seeing [Powell], for a brief moment, standing on the porch of his ____________________________________________ (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii). -7- J-S32042-20 residence. Inmate Williams in his certification then attempts to extrapolate his observations of police activity at the crime scene to preclude [Powell’s] presence when [the victim] was murdered.” PCRA Court Opinion, 3/18/20, at 2. With this claim, Powell attempted to establish the PCRA’s timeliness exception found at section 9545(b)(1)(ii). The timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner to demonstrate he did not know the facts upon which he based his petition and could not have learned of those facts earlier by the exercise of due diligence. Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced. Additionally, the focus of this exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts. The timeliness exception set forth at Section 9545(b)(1)(ii) has often mistakenly been referred to as the “after-discovered evidence” exception. This shorthand reference was a misnomer, since the plain language of subsection (b)(1)(ii) does not require the petitioner to allege and prove a claim of “after-discovered evidence.” Rather, an initial jurisdictional threshold, Section 9545(b)(1)(ii) requires a petitioner to allege and prove that there were facts unknown to him and that he exercised due diligence in discovering those facts. Once jurisdiction is established, a PCRA petitioner can present a substantive after-discovered evidence claim. Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations omitted). Here, the PCRA court concluded that Powell could not establish due diligence in bringing his claim, and, even if he did, Powell cannot establish his -8- J-S32042-20 claim of after-discovered evidence. Our review of the record supports both of these conclusions. In concluding that Powell could not establish the timeliness exception, the PCRA court reasoned: Although [Powell’s] rendezvous with his fellow inmate in the prison yard is rather dubious, on its face it falls within the timeframe of Section 9545(b)(2). However, [Powell], as he had done with prior PCRA petitions, found people decades later who just happen to remember information about the night of [the victim’s] murder. Of course, he is unable to explain why he could not have learned the new facts earlier with the exercise of due diligence. Due diligence demands that the petitioner take reasonable steps to protect his own interests. The failure to question or investigate an obvious, available source of information, precludes claiming later that it constitutes newly discovered evidence. Inmate Williams was someone known by [Powell], as both were fellow inmates at the same state correctional institution. It is doubtful that during a leisurely walk, Inmate Williams suddenly had an epiphany moment regarding his whereabouts twenty-one (21) years earlier. Moreover, the focus of this exception is on newly- discovered facts, not a newly discovered or newly willing source for previously known facts. The alleged new fact (i.e. someone else committed the underlying murder) was already brought to this Court’s attention in previous unsuccessful PCRA petitions. [Powell’s] use of Inmate Williams is just another conduit for the same claim, which does not transform his latest source into evidence falling within the ambit of [section] 9545(b)(ii). PCRA Court Opinion, 3/18/20, at 3-4 (citations omitted). Our review of the record supports the PCRA court’s conclusion. As the PCRA court noted in its initial Rule 907 notice: -9- J-S32042-20 Not only did five (5) witnesses implicate [Powell] in the shooting death, but [he] comes up with new theories each time he files a PCRA [petition]. On this occasion, he does not name a new shooter, but contends by virtue of the submitted affidavit that it could not have been him. In his last petition, [Powell] specifically implicated Dimitrus Smith, a witness who testified against him at trial. Previously, [Powell] provided an affidavit by Rodney “Sha” Houston implicating “Haitian Mike” Anderson in the murder. Rule 907 Notice, 10/2/19, at 3 n. 10. We agree that, at best, Inmate Williams’ affidavit constitutes a newly willing source of a previously known fact.3 The PCRA court further determined that, even if he had met a timeliness exception, Powell would be unable to establish that the after-discovered evidence would have entitled him to relief in the form of a new trial. To address the PCRA court’s conclusion, we first note the test applied to after-discovered evidence. When discussing the test in the context of a PCRA appeal, our Supreme Court recently summarized: [W]e have viewed this analysis in criminal cases as comprising four distinct requirements, each of which, if unproven by the petitioner, is fatal to the request for a new trial. As stated, the four-part test requires the petitioner to demonstrate the new evidence: (1) could not have been obtained prior to the conclusion of trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted. The test applies ____________________________________________ 3 The fact that this new evidence purportedly establishes an alibi for Powell does not change our conclusion, especially when we consider his alibi evidence at trial alleged he was at his girlfriend’s house at the time the victim was murdered, rather than his own home. See N.T., 3/20/07, at 29, 99; 3/26/07, at 28, 76. - 10 - J-S32042-20 with full force to claims arising under Section 9543(a)(2)(vi) of the PCRA. In addition, we have held the proposed new evidence must be producible and admissible. Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted). In addition, we note that credibility determinations are an integral part of determining whether a PCRA petitioner has presented after-discovered evidence that would entitle him to a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the PCRA court to make relevant credibility determinations). We have stated, prior to granting a new trial based on after- discovered evidence, “a court must assess whether the alleged after- discovered evidence is of such a nature and character that it would likely compel a different verdict if a new trial is granted.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010). “In making this determination, a court should consider the integrity of the alleged after- discovered evidence, the motive of those offering the evidence, and the overall strength of the evidence supporting the conviction.” Id. Here, the PCRA court concluded that Powell’s proposed after-discovered evidence would not likely result in a different verdict if a new trial was granted. The court supported this conclusion by reasoning as follows: The Williams [certification] lacks integrity for a variety of reasons, including those previously explained. [It] is based on an alleged recollection of events from decades earlier by a fellow inmate of [Powell’s]. The circumstances, i.e., Williams remembers he was on his way to rob [Powell] when he happened to be in the neighborhood of the murder strains credulity. Williams also has nothing to lose by coming up with such a far-fetched story. He cannot be prosecuted, and telling a story to help a friend or relative - 11 - J-S32042-20 “beat the rap” cannot be viewed as an extraordinary occurrence. William’s placement in a state correctional institution also points to a criminal lifestyle, and this Court did not abuse its discretion in dismissing [Powell’s] PCRA [petition] without a hearing. PCRA Court Opinion, 3/18/20, at 5 (citations omitted). Our review of the record supports this conclusion, given the “overall strength of the evidence supporting [Powell’s] conviction.” Padillas, supra. The claim made by Inmate Williams in his certification contradicts the trial testimony of several witnesses to the homicide including Tyson, an eyewitness who testified he saw Powell shoot and kill the victim. Dimitrus Smith also testified that he was with Tyson and Powell on the night in question and, after the two men returned to the car, Powell stated, “I think she’s dead.” Additionally, three federal inmates testified that Powell confessed to them that he killed the victim. Finally, Powell informed the police that he, at the time of the murder he was with his girlfriend at an address different from the one mentioned by Inmate Williams in his certification. See n. 3, supra. Given these circumstances, even if Powell’s fifth PCRA petition was considered timely, his after-discovered evidence would not entitle him to relief. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/28/20 - 12 -	01-03-2023	08-28-2020
https://www.courtlistener.com/api/rest/v3/opinions/2982557/	NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0649n.06 Case No. 13-4101 FILED Aug 19, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT AVIS RENT-A-CAR SYSTEM, ) INCORPORATED; BUDGET RENT A CAR ) SYSTEMS, INC.; ENTERPRISE RAC ) COMPANY OF CINCINNATI, LLC, dba ) ON APPEAL FROM THE UNITED Enterprise Rent-A-Car; VANGUARD CAR ) STATES DISTRICT COURT FOR RENTAL USA, LLC, dba National and ) THE SOUTHERN DISTRICT OF Alamo, ) OHIO ) Plaintiffs-Appellees, ) ) v. ) ) CITY OF DAYTON, OHIO, ) ) Defendant-Appellant. ) BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges. COOK, Circuit Judge. This case involves a contract dispute between the City of Dayton, Ohio (the “City”) and rent-a-car companies Avis, Budget, Enterprise, and Vanguard (collectively, the “RACs”) concerning their operations at the Dayton International Airport (“Airport”). The RACs contend that the City breached the Rental Car Ready/Return Agreement (“RRA”) under which the City leased the entire first floor of a newly-constructed parking garage at the Airport to the RACs rent-free for a twenty-year term. Specifically, according to the RACs, the City attempted to unilaterally implement a permit system that reduced the space available to Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton the RACs and charged additional rent before the twenty-year term expired. In the district court, the City responded that the RRA automatically terminated when the Concession Agreement, the RACs’ general operating agreement with the Airport, expired on December 31, 2012. Granting summary judgment to the RACs, the district court rejected this interpretation because it (1) renders the twenty-year lease provision meaningless, and (2) conflates the terms “expiration” and “termination” despite the agreements’ distinct uses of those terms. We affirm. I. In 2006, the various RACs and the City entered into materially identical Concession Agreements that “set forth the terms and conditions for the non-exclusive right and privilege to operate an on-Airport rental car concession.” The City generated significant revenue from the RACs’ concessions in the form of rent, fees, and the collection of a Customer Facility Charge (“CFC”) from RAC customers. Though the Concession Agreement initially contemplated a three-year term, the City and RACs later amended it to “expir[e] December 31, 2012 . . . , unless terminated earlier in accordance with the provisions of this Agreement.” In May 2008, the City and the RACs signed a Memorandum of Understanding (“MOU”) that expressed the City’s intent to construct a three-story Airport parking garage using CFC revenue. It also memorialized the parties’ agreement to relocate the Ready/Return area—where RAC customers pick up and return rental cars and the RACs store unused vehicles—from a surface parking lot to the ground floor of the garage. That MOU provided that the “City and each RAC will enter into a lease agreement for the ground level of the garage with a term of 20 years, during which time the RACs will not owe any space rent or ground rent.” Last, “[t]he parties agree[d] to negotiate, in good faith, such additional agreements and amendments as are necessary for the Garage project, including . . . amendment(s) to the Concession Agreement.” -2- Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton The RACs and the City then signed materially identical RRAs in anticipation of the completion of the parking garage. Most important for the purposes of this case, the RRA provided the following under “Article V – Term”: “This Agreement shall expire twenty (20) years from the Garage Completion Date . . . . In addition, this Agreement shall automatically terminate upon the date of termination of the Concession Agreement.” In terms of substance, the parties “agreed that the ground floor of the Parking Garage . . . shall be allocated to the RACs for Ready/Return” rent-free “[i]n consideration of the use of CFCs to fund construction of the Parking Garage . . . and payment of [operation and maintenance services for the garage].” The present dispute arose in 2012 when the City’s new Director of Aviation asked the City’s legal counsel “to look for ways for [the City] . . . to be able to get out of” the RRA because he “believed that it was a bad deal for the City.” Ignoring the RACs’ repeated requests to negotiate an extension of the Concession Agreement, the City instead issued a memorandum declaring that “[t]he [Concession Agreements] expire on December 31, 2012[,] and accordingly the [RRAs] automatically terminate.” The City proposed a drastically different permit system that eliminated over half of the parking spaces leased to the RACs under the RRA and charged significant per-space rent. After the City enacted ordinances to implement this permit process and advised the RACs that they must file a permit interest form to continue operating at the Airport, the RACs filed two consolidated suits alleging breach of contract under Ohio law.1 On cross-motions for summary judgment, the district court granted judgment to the RACs, concluding that the RRA and Concession Agreement use the terms “expiration” and “termination” distinctly, and therefore 1 The agreements at issue all provide that they “shall be governed by and construed in accordance with the laws of the State of Ohio.” -3- Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton “the December 31, 2012, expiration date of the Concession Agreement had no effect on the twenty-year lease term of the [RRA], other than to provide the City with a manufactured justification for implementing the permit process.” The City appeals. II. We review the grant of summary judgment de novo, Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012). Drawing all reasonable inferences in the light most favorable to the City, we will affirm if “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Fed. R. Civ. P. 56(a). “Questions of contract interpretation are generally considered questions of law subject to de novo review.” Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 990 (6th Cir. 2007). A. The City’s Novation Argument Initially, the City argues that prefatory language in an amendment to the Concession Agreement constitutes a novation that supersedes the RRA’s twenty-year term. That language provides that the “City agrees that the Premises as depicted on Exhibit C shall be provided to [the RACs] at no additional cost for the term of the [Concession] Agreement.” Yet, as the RACs point out, the City forfeited this argument by failing to raise it below. Indeed, the City never mentioned this amendment in its briefing to the district court. “This court will exercise its discretion to entertain issues not raised before the district court only in exceptional cases or when application of the [forfeiture] rule would produce a plain miscarriage of justice.” Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, --- F.3d ---, 2014 WL 2959066, at 4 (6th Cir. 2014) (internal quotation marks and alterations omitted); see also Isaak v. Trumbull Sav. & Loan Co., 169 F.3d 390, 396 n.3 (6th Cir. 1999) (“In order to preserve the -4- Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton integrity of the appellate structure, we should not be considered a ‘second shot’ forum . . . where secondary, back-up theories may be minted for the first time.”). This case presents a routine contract dispute, and no miscarriage of justice will result from holding the City to freely- negotiated and agreed-upon contract terms, even if it now regrets the deal that it struck. The City responds that we should nevertheless consider this argument because it involves only a question of law requiring no additional factual determinations. See In re Morris, 260 F.3d 654, 664 (6th Cir. 2001) (“[W]e should address an [unpreserved] issue presented with sufficient clarity and requiring no factual development if doing so would promote the finality of litigation.” (emphasis removed)). Here, though, the resolution of this issue may require further factual development because the RACs offer a reasonable alternative interpretation: When the . . . [a]mendment states that ‘the Premises as depicted on Exhibit C shall be provided . . . for the term of the [Concession] Agreement,’ it means that the RACs’ respective allocation of ready/return spaces in the Garage ‘as depicted on Exhibit C’ (not their right to lease space on the first floor of the Garage) would be in effect for the term of the Concession Agreement. (emphasis removed). This alternate interpretation renders the cited language ambiguous at a minimum,2 and thus this issue falls outside the argument-forfeiture exception identified in Morris. See Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd., 525 F.3d 409, 422 (6th Cir. 2008) (“If a contract contains ambiguities, it generally becomes the task of the fact- finder to use extrinsic evidence to determine the intent of the parties.”). B. The Effect of the Concession Agreement’s Expiration on the RRA Alternatively, the City falls back on the argument it presented to the district court: the Concession Agreement’s expiration on December 31, 2012, “automatically terminate[d]” the 2 The RACs maintain that their interpretation constitutes the only reasonable reading of the amendment as a matter of Ohio contract law. Due to the City’s failure to preserve this argument, however, we need not decide this issue. -5- Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton RRA. The City relies on the final sentence of the RRA’s “Term” provision: “In addition, this Agreement shall automatically terminate upon the date of termination of the Concession Agreement.” As ably explained by the district court and the RACs, however, this argument fails to persuade for two reasons. First, the City’s interpretation would render the RRA’s express twenty-year term meaningless. “The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.” Karabin v. State Auto. Mut. Ins. Co., 462 N.E.2d 403, 406 (Ohio 1984); see also Quill v. R.A. Inv. Corp., 707 N.E.2d 35, 40 (Ohio Ct. App. 1997) (rejecting contract interpretation that would render the provision at issue a “nullity”). Because the City’s interpretation contravenes these well-established contract principles, the district court properly rejected it as unreasonable. Second, the City’s interpretation erroneously conflates the terms “termination” and “expiration” despite clear textual indicators that the parties intended these terms to have distinct meanings. Read in context, “expiration” refers to the prescribed end of a defined period of time, and “termination” refers to the premature end of such a period. Thus, the Concession Agreement provides that “[t]his Agreement is effective for a period of six (6) years . . . beginning January 1, 2007 . . . and expiring December 31, 2012 . . . , unless terminated earlier in accordance with the provisions of this Agreement.” (emphasis added). Similarly, another clause provides that “[i]f an Event of Default occurs . . . after the expiration of the applicable . . . cure period . . . , the City . . . may terminate this Agreement.” (emphasis added). Other provisions likewise distinguish the terms. For example, the RRA requires that, “[u]pon termination or expiration of this Agreement, whichever date is earlier, [the RACs] shall -6- Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton return the Premises.” (emphasis added). If “[t]he parties intended the terms . . . to be synonymous,” as the City insists, the RRA would not need to list both as possible conditions precedent to the return of the leased premises. And as the district court explained, the RRA’s use of the phrase “automatically terminate” in the event of the Concession Agreement’s termination bolsters this interpretation: Th[e] use of the adverb “automatically” emphasizes the intransitive form of “terminate,” while also highlighting the fact that the parties chose not to use the synonymous intransitive verb “expire.” In other words, the choice of language suggests that the parties specifically chose not to conflate the terms, and that they intended at all times to distinguish termination by a party to the agreement from expiration according to its negotiated term. Because the Concession Agreement expired, as opposed to terminated, on December 31, 2012, the RRA did not simultaneously terminate. Case law supports our conclusion. “When interpreting a contract, we will presume that words are used for a specific purpose.” Wohl v. Swinney, 888 N.E.2d 1062, 1066 (Ohio 2008). Regarding these particular terms, courts recognize that though “the words termination and expiration may sometimes be used interchangeably [for] the end of a full contract term[,] . . . termination usually means an action taken to end the contract before the end of its anticipated term.” Lockheed Aircraft Serv. Co. v. Rice, 956 F.2d 1174, 1992 WL 29143, at 1 (Fed. Cir. 1992) (table); see also Perfection Oil Co. v. Saam, 264 F.2d 835, 838 (8th Cir. 1959) (“[T]he word ‘termination’ . . . should be interpreted to mean the cancellation of a contract before the expiration of the term provided for in the contract, and . . . ‘termination’ and ‘expiration’ are not synonymous words.”). In response, the City cites cases where the court found “termination” to encompass “expiration.” See, e.g., NaturaLawn of Am., Inc. v. W. Grp., LLC, 484 F. Supp. 2d 392, 401 (D. -7- Case No. 13-4101 Avis Rent-A-Car, Inc. v. City of Dayton Md. 2007); Carvel Corp. v. Rait, 117 A.D.2d 485, 489 (N.Y. App. Div. 1986). But as the RACs note, these cases falter here. For example, in NaturaLawn, the contract provided that a “non- compete clause would apply after termination ‘for any reason.’” 484 F. Supp. 2d at 401. In holding that the contract’s expiration triggered this clause, the court reasoned that “‘expiration’ is one reason for the ‘termination’ of an agreement.” Id. The parties included no such broad language here. In Carvel, the court focused on the agreement’s “stated purpose” of protecting trade secrets after a licensing agreement ended. Carvel, 117 A.D.2d at 48990. Here, no overarching purpose supports the City’s preferred interpretation other than buyer’s remorse. All indicators of meaning in these agreements lead to the conclusion that the parties purposefully distinguished an agreement’s expiration from its termination. See Foster Wheeler Enviresponse, Inc. v. Franklin Cnty. Convention Facilities Auth., 678 N.E.2d 519, 526 (Ohio 1997) (“[T]he meaning of any particular . . . contract is to be determined on a case-by-case and contract-by- contract basis, pursuant to the usual rules for interpreting written instruments.”). III. For these reasons, we AFFIRM. -8-	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2525606/	17 N.Y.3d 837 (2011) 954 N.E.2d 1157 930 N.Y.S.2d 531 CHARLES L. DAVIS, Appellant, v. RUSSELL FIRMAN, M.D., et al., Respondents. Motion No: 2011-658 Court of Appeals of New York. Submitted June 20, 2011. Decided September 13, 2011. Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2262678/	900 F.Supp. 26 (1995) Mike MOORE, Attorney General ex rel. STATE OF MISSISSIPPI, Plaintiff, v. ABBOTT LABORATORIES, INC., Bristol-Myers Squibb Co. and Mead Johnson & Co., Defendants. Civ. A. No. 3:95-CV-78BN. United States District Court, S.D. Mississippi, Jackson Division. September 22, 1995. 27 28 John W. Barrett, Edward Sanders, Barrett Law Offices, Lexington, MS, for Mike Moore. Ross F. Bass, Jr., Michael B. Wallace, Phelps Dunbar, Jackson, MS, for Abbott Laboratories and Mead Johnson & Co. William F. Goodman, Jr., Lynn Plimpton Risley, Watkins & Eager, Jackson, MS, for Bristol-Myers Squibb and Company and Mead Johnson & Co. OPINION AND ORDER BARBOUR, Chief Judge. This cause is before the Court on the following motions: (1) Plaintiff's Motion to Remand; (2) Defendants' Motion for Leave to File Surreply Memorandum; and (3) Plaintiff's Application for Review and Objections to Magistrate Judge's Order Denying Motion to Quash and for Protective Order. Having considered the Motions, Responses, all attachments to each and supporting and opposing memoranda, the Court finds that (1) Plaintiff's Motion to Remand is well taken and should be granted; (2) Defendants' Motion for Leave to File Surreply Memorandum is well taken and should be granted; and (3) Plaintiff's Application for Review and Objections to Magistrate Judge's Order Denying Motion to Quash and for Protective Order is moot and therefore denied. I. Factual Background and Procedural History Plaintiff filed this action on January 18, 1995, in the Circuit Court of Holmes County, Mississippi.[1] Defendants are pharmaceutical companies that manufacture and sell infant formula nationally, including in the State of Mississippi. According to the Plaintiff, Defendants share approximately eighty percent of the Mississippi infant formula market. Plaintiff further asserts the following: For over twelve years, from 1980 through 1992, defendants abused their overwhelming dominance of the infant formula market by independent action and agreement among themselves, whereby they grossly overcharged Mississippi consumers for infant formula. Complaint at ¶ 15. The substantial terms of defendants' conspiracy consisted of an agreement to fix the wholesale price of infant formula sold throughout the United States, including that sold in Mississippi. Complaint at ¶ 20. Defendants' illegal conspiracy and 29 agreement caused the price of infant formula to increase over 120 percent during the last ten years, while the price of milk, infant formula's principal ingredient, rose only 36 percent. Complaint at ¶ 16. Because retailers determine their prices based on defendants' wholesale prices, the retail price of infant formula is directly affected by the wholesale prices charged by defendants. Complaint at ¶ 13. Therefore, as a direct result of defendants' illegal conspiracy, plaintiffs and class members paid more for infant formula than they would have absent defendants' illegal conduct. Complaint at ¶ 27-28. Memorandum of Law in Support of Plaintiff's Motion to Remand at 1-2. The Plaintiff in this matter is the Attorney General of the State of Mississippi who is suing on behalf of the State and as parens patriae on behalf of Mississippi citizens injured by Defendants' alleged misconduct. On behalf of the State, the Attorney General claims that Defendants' actions had the effect of requiring the State to pay artificially high prices for infant formula for the Mississippi Women, Infants and Children (WIC) Program. Plaintiff asserts that Defendants have thus violated certain provisions of the Mississippi antitrust statute, specifically Miss.Code Ann. §§ 75-21-1 and 75-21-3. Plaintiff seeks recovery for such violations under Miss.Code Ann. § 75-21-7, which sets forth certain penalties for violation of the Mississippi antitrust laws, and Miss.Code Ann. § 75-21-9, seeking a penalty of $500 for each instance of injury to the State. Plaintiff also alleges violations of the Mississippi Consumer Protection Act, specifically Miss.Code Ann. § 75-24-5, asserting that Defendants have engaged in unfair competition and unfair or deceptive trade practices. As a result of Defendants' alleged wrongful actions, Plaintiff asserts that the State and the citizens of the State have paid more for infant formula than they would have paid in the absence of Defendants' alleged unlawful conduct. Plaintiff asserts a right to recover damages pursuant to Miss.Code Ann. § 75-24-15, in his capacity as parens patriae for the Mississippi citizens who have been injured by Defendants' alleged wrongful conduct.[2] On February 17, 1995, Defendants removed this action to this Court on grounds of diversity of citizenship and federal question jurisdiction. Each of Defendants is a foreign corporation organized and existing under the laws of a state other than Mississippi. Defendants assert that the State of Mississippi, on whose behalf Mike Moore brought this suit, is not the real party in interest, and that the Attorney General has no parens patriae authority to bring suit on behalf of the citizens of the State. The real parties in interest, according to Defendants, are the private individuals who bought infant formula between 1980 and 1992, and these are the persons whose citizenship matters for the purposes of 28 U.S.C. § 1332. Defendants further assert that Plaintiff has engaged in artful pleading to avoid federal jurisdiction, and that Plaintiff's claims are not cognizable under Mississippi law. II. Analysis 28 U.S.C. § 1441(a) provides in relevant part as follows: [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). "The removing party bears the burden of establishing federal jurisdiction." Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir.1989) (citation omitted). Whether a case is removable must be determined by reference to the allegations 30 made in the original pleadings. Wheeler v. Frito-Lay, Inc., 743 F.Supp. 483, 485 (S.D.Miss.1990). A. Eleventh Amendment Immunity The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The United States Supreme Court has interpreted this amendment on many occasions to determine when a suit is one against the State. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). That Court has held that "`an unconsenting State is immune from suits brought by her own citizens as well as citizens of another state.'" Id. at 100, 104 S.Ct. at 908 (quoting Employees v. Missouri Dept. of Public Health & Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 1616, 36 L.Ed.2d 251 (1973)). The Plaintiff in this matter asserts that "[t]he proscriptions of the Eleventh Amendment apply with equal force to a suit brought against a state in federal court, and a suit brought by a state in state court which is removed to federal court." Memorandum in Support at 16-17. Defendants do not directly address the issue of the Eleventh Amendment in their submissions to this Court.[3] The Court has extensively researched this question and has found only a few federal court cases which even mention this issue. The Court has found only one case, however, which actually bases its ruling on the Eleventh Amendment issue. In California v. Steelcase Inc., 792 F.Supp. 84 (C.D.Cal.1992), the court addressed the issue of Eleventh Amendment immunity where the plaintiff is the state and the case has been removed by the defendants. The court first concluded that the state is not a citizen of itself for diversity purposes. Id. at 86 (citing Moor v. County of Alameda, 411 U.S. 693, 717, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973)). The court then addressed the Eleventh Amendment immunity issue: Defendant, relying on the literal wording of the Eleventh Amendment, contends that this is not a "suit ... against one of the United States ..." (emphasis added) because the State is the plaintiff. However, since the immunity granted by the Eleventh Amendment is an immunity from being made an involuntary party to an action in federal court, it should apply equally to the case where the state is a plaintiff in an action commenced in state court and the action is removed to federal court by the defendant. The statute under which this action was removed requires, for an action to be removable, that the district courts "have original jurisdiction" over the action. 28 U.S.C. § 1441(a). Because of the jurisdictional bar of the Eleventh Amendment, the district courts would not have original jurisdiction over this action, absent the consent of the State. The State does not consent to removal. Therefore, subject matter jurisdiction is lacking, at least as to the claim under the unfair competition statute. Id. at 86; but see South Dakota State Cement Plant Comm'n v. Wausau Underwriters Ins. Co., 778 F.Supp. 1515, 1522 (D.S.D. 1991) (declining to address the Eleventh Amendment claim with the State as the plaintiff in a motion to remand concluding that "[t]he contention that the Eleventh Amendment nevertheless has bearing upon this Court's jurisdiction is not supported by any authority cited by either party"). The Court finds the reasoning of the Steelcase court to be sound. By removing this matter to federal court, Defendants have involuntarily subjected the State of Mississippi to the jurisdiction of this Court. Because the State does not consent to this removal, the Court finds that it lacks subject matter jurisdiction over this action due to the Eleventh Amendment proscription, provided that the 31 State of Mississippi is the real party in interest in this matter. B. Real Party in Interest and Diversity Jurisdiction The real party in interest issue is relevant to the Eleventh Amendment immunity question as well as to a proper determination of diversity of citizenship. Because the Court has previously found that the Eleventh Amendment precludes the removal of this suit to federal court if the Plaintiff is the real party in interest, the Court will address the issues of real party in interest and diversity of citizenship together because the questions pertaining to each are somewhat intertwined. Plaintiff asserts that the State of Mississippi is the real party in interest with regard to the parens patriae claims brought under the Mississippi antitrust statute and consumer fraud statute. Plaintiff further asserts that even if the Court determines that the State has no independent interest in the parens patriae claims, the State is still a real party in interest with regard to the statutory penalty and WIC claims. Therefore, according to Plaintiff, because the State is the real party in interest, there is no diversity in this matter because a state is not a citizen for the purposes of diversity jurisdiction under 28 U.S.C. § 1332. Defendants assert that "the Attorney General is acting as the nominal party for a group of lawyers who want to mask what is in fact a private class action on behalf of Mississippi consumers of infant formula that would otherwise be barred by Mississippi law." Defendants' Joint Memorandum in Opposition at 3. Defendants further assert that Plaintiff's non-parens patriae claims have been fraudulently joined to defeat diversity jurisdiction. Therefore, according to Defendants, the State of Mississippi is not a real party in interest to this litigation, and diversity jurisdiction exists with regard to the Defendants and the true plaintiffs. The Court need not decide whether the State of Mississippi has the authority to pursue parens patriae claims in the manner asserted in this case in order to dispose of this issue. Miss.Code Ann. § 75-21-7 (rev. 1991) provides as follows: Any person, corporation, partnership, firm or association of persons and the officers and representatives of the corporation or association violating any of the provisions of this chapter shall forfeit not less than one hundred dollars ($100.00) nor more than two thousand dollars ($2,000.00) for every such violation. Each month in which such person, corporation or association shall violate this chapter shall be a separate violation, the forfeiture and penalty in such case to be recovered alone by suit in the name of the state on the relation of the attorney general and by the consent of the attorney general suits may be brought by any district attorney, such suits to be brought in any court of competent jurisdiction. Id. (emphasis added). This statute clearly gives the Attorney General of the State the authority to bring suit in the name of the State for violations of Mississippi antitrust law. Furthermore, the Attorney General bringing suit in this capacity is merely the alter ego of the State, and the State is therefore the real party in interest. See Tradigrain v. Mississippi State Port Authority, 701 F.2d 1131, 1132 (5th Cir.1983). In this case, the State is the real party in interest, therefore diversity jurisdiction does not exist. A state is not considered a citizen for the purposes of diversity jurisdiction under 28 U.S.C. § 1332. Moor v. County of Alameda, 411 U.S. 693, 717, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973); Tradigrain, 701 F.2d at 1132. Because the State of Mississippi is the real party in interest and is not a citizen for the purposes of diversity jurisdiction, removal on the basis of diversity jurisdiction was improper. Defendants assert, however, that Plaintiff's statutory penalty claim was fraudulently joined by the Plaintiff in that such a claim cannot succeed as a matter of Mississippi law. This argument is not persuasive. The removing party bears the burden of demonstrating fraudulent joinder. Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.) (citing Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir.1989)), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 32 L.Ed.2d 35 (1990). To prove fraudulent joinder, Defendants must establish that Plaintiff has no possibility of establishing a cause of action against them in state court. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the nonremoving party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned. ... We do not decide whether the plaintiff will actually or even probably prevail on the merits, but look only for a possibility that he may do so.... If that possibility exists, then "`a good faith assertion of such an expectancy in a state court is not a sham ... and is not fraudulent in fact or in law.'" Id. at 42-43 (citations omitted); see also Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815-16 (5th Cir.) (concluding that all factual allegations must be viewed in the light most favorable to the plaintiff in determining the issue of fraudulent joinder), cert. denied, ___ U.S. ___, 114 S.Ct. 192, 126 L.Ed.2d 150 (1993). The Court finds that Defendants have failed to establish fraudulent joinder in this matter.[4] Defendants argue vehemently that Mississippi antitrust law is limited to intrastate conspiracies. Defendants argue legislative history, cite Mississippi cases regarding legislative intent and quote from authoritative treatises to support their argument. Curiously absent from Defendants' argument, however, is any decision by the Mississippi Supreme Court concerning whether the Mississippi antitrust statute is limited in application to intrastate conspiracies. The Court finds that Plaintiff has stated an arguably valid claim on the face of the Complaint, pursuant to Miss.Code Ann. §§ 75-21-1, 75-21-3 and § 75-21-7, the penalty provision of the antitrust statute. Even if that claim is ambiguous under state law, the Mississippi state courts are the proper forum for determining this issue of state law which has not yet been decided by the highest court in Mississippi. Defendants can therefore only secure removal of this case, based upon diversity jurisdiction, by proceeding under 28 U.S.C. § 1441(c) which permits the removal of a claim joined to a nonremovable claim if it is "separate and independent" from the nonremovable claim. McKay v. Boyd Constr. Co., 769 F.2d 1084, 1087 (5th Cir.1985). The McKay court concluded that section 1441(c) must be construed narrowly "to reduce the number of cases removable from state to federal court." Id. at 1087 (citation omitted). Thus, "`where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).'" Id. (quoting American Fire & Casualty Co. v. Finn, 341 U.S. 6, 13, 71 S.Ct. 534, 540, 95 L.Ed. 702 (1951)). The Court finds that Defendants have failed to meet the section 1441(c) standard of showing that the other claims asserted in Plaintiff's Complaint are separate and independent from Plaintiff's claims under the Mississippi antitrust statute. As stated previously, Defendants merely argue that Plaintiff has no valid state law antitrust claim. The Court finds that this claim, along with all others asserted in Plaintiff's Complaint, should be decided by the state courts because the antitrust claim is a state law claim which is interlocked with and interdependent upon Plaintiff's remaining claims in the Complaint. C. Federal Question Jurisdiction Defendants assert that Plaintiff is using artful pleading to avoid federal jurisdiction. According to Defendants, Plaintiff has no cause of action under state law because Plaintiff alleges an interstate conspiracy which should properly be brought as an alleged violation of the federal Sherman Act. Plaintiff asserts that this cause of action is valid under state law, and that Defendants 33 have failed to prove the necessary elements for the artful pleading doctrine. Federal jurisdiction extends over "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2855-56, 77 L.Ed.2d 420 (1983). Under the well-pleaded complaint rule, the federal question must be present on the face of the complaint, Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936), and jurisdiction cannot be based on the existence of a federal defense. Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 787 (5th Cir.), cert. denied, 498 U.S. 926, 111 S.Ct. 307, 112 L.Ed.2d 261 (1990). "[F]or federal question jurisdiction to exist, the federal law must be a direct element in the plaintiff's claim and ... it is not enough that it comes in remotely or indirectly." 13B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3562 (1984). The Court finds that Defendants have failed to show that Plaintiff's claims are only cognizable, if at all, under federal law. As noted previously, Plaintiff has stated, on the face of the Complaint, an arguably valid cause of action under Miss.Code Ann. §§ 75-21-1, 75-21-3 and § 75-21-7, the penalty provision of the antitrust statute. Defendants' argument that the facts set forth in the Complaint do not state a valid cause of action under that statute is an argument which should be made to the state courts in a motion to dismiss once this case is remanded. Defendants have failed to offer any Mississippi case which has held that the Mississippi antitrust statute applies only to intrastate, as opposed to interstate, violations of the statute. Until the state courts have so ruled, this Court will not speculate concerning this area of state law, especially in deciding a Motion to Remand.[5] The only exception to the well-pleaded complaint rule, which might be applicable to this case,[6] is whether federal antitrust law completely preempts state antitrust law such that Plaintiff could not maintain an action in state court. The United States Supreme Court has specifically ruled that state antitrust indirect purchaser statutes are not preempted by federal law. California v. ARC America Corp., 490 U.S. 93, 102, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989). Therefore, Plaintiff's claims are not preempted by federal law. The Court finds that there is no apparent federal question on the face of Plaintiff's Complaint, and that Plaintiff has asserted only state law causes of action in the Complaint. Furthermore, federal antitrust law does not preempt the state statutes at issue in this case. Removal based upon federal question jurisdiction is therefore improper. III. Conclusion The Court finds that Plaintiff's Motion to Remand should be granted. Plaintiff has asserted, on the face of the Complaint, a valid cause of action pursuant to Miss.Code Ann. § 75-21-7 (rev. 1991). The Court makes no finding regarding the other causes of action asserted by the Plaintiff or whether such causes of action are cognizable under state or federal law. These claims cannot be separated pursuant to 28 U.S.C. § 1441(c). The Court will therefore remand the entire case to state court. See McKay, 769 F.2d at 1087. Because the Court has considered the Surreply Memorandum, the Court will grant Defendants' Motion to File Surreply Memorandum. The Plaintiff's Application for Review is now moot because this case is being remanded 34 to state court and is therefore denied. Plaintiff has requested an award of attorneys' fees incurred in opposing this removal. Plaintiff asserts that Defendants have acted egregiously in removing this case when they knew it should remain in state court. The Court finds that the legal arguments presented by Defendants to support their opposition to Plaintiff's Motion to Remand were not frivolous nor presented solely for delay, and that an award of attorneys' fees is therefore not proper in this matter. IT IS THEREFORE ORDERED that Plaintiff's Motion to Remand should be and hereby is granted. This matter is hereby remanded to the Circuit Court of Holmes County, Mississippi. IT IS FURTHER ORDERED that Plaintiff's request for attorneys' fees is hereby denied. IT IS FURTHER ORDERED that Defendants' Motion for Leave to File Surreply Memorandum should be and hereby is granted. IT IS FURTHER ORDERED that Plaintiff's Application for Review and Objections to Magistrate Judge's Order Denying Motion to Quash and for Protective Order is moot and therefore denied. SO ORDERED. NOTES [1] Contrary to Defendants' assertion, this litigation did not begin on October 7, 1993. On that date, some of the same counsel who are prosecuting this suit filed a class action suit in this Court alleging that Defendants were engaged in an interstate conspiracy to raise, fix, maintain and stabilize at artificially high levels the wholesale prices of infant formula sold in the United States. Cothran v. Abbott Laboratories, et al., Civil Action No. 3:93-CV-626LR (Oct. 7, 1993). The plaintiffs in that case voluntarily dismissed the case on November 8, 1993. The Court finds that these two cases, although related in subject matter, are not the same case for the purposes of the current Motion to Remand. [2] The Court notes that Miss.Code Ann. § 75-24-15 was amended in 1994 and the provision regarding attorneys' fees was removed from the statute. Plaintiff asserts a general right to recovery of attorneys' fees if successful on the merits of this suit. Defendants assert that Miss.Code Ann. § 75-24-19 now governs the recovery of attorneys' fees and only allows recovery to the Plaintiff when a violation of section 75-24-5 is knowing and willful. Defendants further assert that Mississippi law only allows the recovery of attorneys' fees when provided by statute. Stokes v. Board of Directors of La Cav Improvement Co., 654 So.2d 524 (Miss.1995). The Court need not address this issue as it is not necessary for a decision on the Motion to Remand. [3] While Defendants assert that the State is not the real party in interest in this lawsuit, Defendants fail to address whether the Eleventh Amendment prohibits the State, if it is the real party in interest, from being brought into federal court through the removal process as an involuntary plaintiff. [4] The Court is assuming in making this determination that there can be fraudulent joinder of claims, as Defendants assert, as opposed to fraudulent joinder of persons. [5] The Court is not required to make an Erie guess in the context of a Motion to Remand concerning how the Mississippi state courts would rule on this issue of state law. The Court will not usurp the function of the state court in determining the meaning of the Mississippi antitrust statute in a case instituted in a state court. [6] Although Plaintiff raises the res judicata exception to the well-pleaded complaint rule, there is no federal judgment which would act as a bar to Plaintiff's state law claims. See Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Powers v. South Cent. United Food & Commercial Workers Unions, 719 F.2d 760, 766 (5th Cir.1983).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983289/	August 14, 2014 JUDGMENT The Fourteenth Court of Appeals CLAY EXPLORATION, INC., Appellant NO. 14-13-00042-CV V. SANTA ROSA OPERATING, LLC, Appellee ________________________________ This cause, an appeal from the order in favor of appellee, Santa Rosa Operating, LLC, signed June 25, 2012 and made final on December 12, 2012 was heard on the transcript of the record. We have inspected the record and find no error in the judgment. We order the judgment of the court below AFFIRMED. We order appellant, Clay Exploration, Inc. to pay all costs incurred in this appeal. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1115027/	386 So. 2d 1280 (1980) John KINSLER, Etc., et al., Appellants, v. ROHM TOOL CORP., Etc., et al., Appellees. No. 79-1444. District Court of Appeal of Florida, Third District. August 5, 1980. Rehearing Denied September 16, 1980. Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, and Janet W. Freeman, Palm Beach, for appellants. George & Thompson and Scott R. McNary, Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara & McCoy and Richard A. Sherman, Miami, for appellees. Before BARKDULL, SCHWARTZ and NESBITT, JJ. NESBITT, Judge. Appellant, plaintiff below, seeks reversal of the summary final judgment entered in favor of Rohm Tool Corporation (Rohm Tool) and R.G. Industries, Inc. (R.G.), both Florida corporations and co-defendants below, on a complaint alleging that they had successive corporate liability for acts of co-defendant, Rohm GmbH, a West German corporation. This is the second appearance of this case before this court. In the first phase, we affirmed an order denying a motion to dismiss for lack of in personam jurisdiction as to co-defendant, Rohm GmbH.[1] Rohm Tool and R.G. were joined in a products liability action on a claim arising from injuries received by the plaintiff from a handgun which allegedly had a defective safety mechanism. The weapon had been manufactured by Rohm GmbH. The handgun was imported into the United States by an American distributor (not joined as a party defendant) and sold at retail by a sporting goods shop in Pinellas County in October, 1968. Rohm Tool and R.G. are Miami-based corporations which were incorporated in Florida after the handgun in question was sold at retail. Neither Rohm Tool nor R.G. assumed any debts or liabilities of Rohm GmbH, the West German corporation. Plaintiffs alleged, and there were inferences, that Rohm Tool and R.G. were incorporated by Rohm GmbH to avoid the impact of the Gun Control Act of 1968, 18 U.S.C.A. § 921 et seq., which prohibited further importation of handguns into the United States. It was also alleged, and there was evidence to show, that: (1) Rohm Tool and R.G. were wholly owned and dominated subsidiaries of Rohm GmbH; (2) there was *1281 an interlocking management of the domestic corporations through a common controller; (3) all the net earnings of the Florida corporations were ultimately funnelled to the West German corporation through a bank in Frankfurt; (4) Rohm Tool and R.G. utilized blueprints, designs, and technology furnished to them by Rohm GmbH; (5) the logo of Rohm Tool was indentical with that of Rohm GmbH; and (6) Rohm Tool and R.G. undertook claims and warranty repairs for weapons previously manufactured by Rohm GmbH in West Germany. It was also undisputed that Rohm GmbH is a viable, ongoing enterprise in West Germany. Plaintiff asserts, due to the allegations and showing made (primarily those allegations of the alleged statutory violation of the Gun Control Act and the warranty repairs made on behalf of Rohm GmbH) that summary final judgment in favor of Rohm Tool and R.G. was improper because they were a mere continuation and reincarnation of Rohm GmbH, the West German corporation. Plaintiff relies upon Knapp v. North American Rockwell Corporation, 506 F.2d 361 (3d Cir.1974), cert. denied, 421 U.S. 965, 95 S. Ct. 1955, 44 L. Ed. 2d 452 (1975); Cyr v. B. Offen & Co. Inc., 501 F.2d 1145 (1st Cir.1974); Holloway v. John E. Smith's Sons Co., Div. of Hobam, Inc., 432 F. Supp. 454 (D.S.C. 1977); Shannon v. Samuel Langston Company, 379 F. Supp. 797 (W.D.Mich. 1974); Ray v. Alad Corporation, 19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574 (1977); Western Resources Life Insurance Company v. Gerhardt, 553 S.W.2d 783 (Tex.Civ.App. 1977); Annot., 66 A.L.R. 3d 824 (1975) Products Liability of Successor Corporations for Injury or Damage by Product Issued by Predecessor. We find it unnecessary to reach the merits of the plaintiff's theory for imposing successive corporate liability in this case because it is clear on reason and authority cited that the liability of the predecessor corporation, is, absent an express or implied assumption of debts and obligations by the successor corporation,[2] not imposed upon the successor where the predecessor is still a viable, ongoing entity, amenable to personal service and financially responsible.[3] All the cases[4] relied upon by the plaintiff recognize this salient distinction except that of Connelly v. Uniroyal, Inc., 75 Ill. 393, 389 N.E.2d 155 (1979), cert. denied, 444 U.S. 1060, 100 S. Ct. 992, 62 L. Ed. 2d 738 (1980). However, Connelly v. Uniroyal is readily distinguishable from the present case because there Uniroyal participated in the domestic chain of distribution of tires manufactured in Belgium and, in effect, held itself out as the manufacturer of the foreign-made tires. Affirmed. NOTES [1] GmbH v. Kinsler, 377 So. 2d 182 (Fla.3d DCA 1979). [2] Mallory S.S. Co. v. Baker & Holmes Co., 117 Fla. 196, 157 So. 504 (1934). [3] Rohm GmbH's insurance carrier was also joined as a co-defendant in this action. [4] In Ray v. Alad Corporation, supra, the following conditions precedent must generally exist in order to impose the liability of a predecessor corporation upon its successor: (1) there is a destruction of plaintiff's remedies against the predecessor; (2) the successor has the ability to assume the risk factor; and (3) the fairness of requiring the successor to assume responsibility for the predecessor's defective product because the burden is a concomitant of the successor's enjoyment of the predecessor's good will. See Gee v. Tenneco, 615 F.2d 857 (9th Cir.1980).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615093/	668 P.2d 857 (1983) STATE of Alaska, Petitioner, v. Alephe MORRIS and Sudie Burnham, Respondents. No. 7280. Court of Appeals of Alaska. September 2, 1983. 858 Patrick J. Gullufsen, Dist. Atty., and Wilson L. Condon, Atty. Gen., Juneau, for petitioner. Douglas Pope, Anchorage, for respondent Morris. William T. Council, Juneau, for respondent Burnham. Before BRYNER, C.J., and COATS and SINGLETON, JJ. OPINION COATS, Judge. Alephe Morris and Sudie Burnham were arrested and charged with possession of cocaine. They moved to suppress the cocaine seized at the time of their arrest on three independent grounds. An evidentiary hearing was held on June 28, 1982, before Superior Court Judge Thomas E. Schulz. Judge Schulz granted the motion by written memorandum of decision and order, dated October 22, 1982. The state petitioned for review, which this court granted on January 12, 1983. For purposes of the petition for review the state has adopted the detailed outline of facts contained in the trial court's order, which in turn was derived from a stipulation between the parties and the testimony at the suppression hearing. Morris and Burnham accept the statement of facts, but cite in addition testimony given at the evidentiary hearing. We have accepted the 859 additional facts which have been referred to by Morris and Burnham as true for purposes of reviewing this petition. FACTS We have set out Judge Schulz' decision, including footnotes, hereafter: Early in the day of April 8, 1982, an Alaska Airlines employee named De Alesandro received a "goldstreak" package addressed to Alephe Morris, the Alaska State Legislature, Pouch 5, Juneau, Alaska 99811. The goldstreak label also had a phone number for Alaska Airlines to call upon arrival of the package in Juneau. That number was 465-5766, the telephone number for an office of the State Legislature by whom Alephe Morris was employed. De Alesandro, on his own and for purely airline reasons, x-rayed the package to determine that it contained "only papers" as was represented. The x-ray machine disclosed that the package contained something other than papers, something that De Alesandro thought could possibly be drugs, and he notified Agent Paul Wallace of the Drug Enforcement Administration. Agent Wallace came to the Alaska Airline counter and took the package to a D.E.A. office. He did not open it and he did not x-ray it but he did arrange ... [for] a "sniff" by a dog trained to "alert" on certain drugs or narcotics. The dog "Ryker" had a history of successful alerts on packages containing drugs[1] and he alerted on the package addressed to Ms. Morris. Wallace returned the package to Alaska Airlines, unopened and otherwise uninspected and it was thereafter shipped to Ms. Morris on Flight 62 from San Francisco to Seattle and on Flight 69 from Seattle to Juneau, arriving in [the] evening hours of April 8, 1982. In the meantime, Agent Wallace contacted the Alaska State Troopers and after he verified that Wallace was who he said he was, Sgt. Glass of the troopers called Wallace back and obtained information which formed the basis for a search warrant[2] issued by District Court Judge Gerald Williams. After obtaining the warrant, Sgt. Glass, Lt. Roger McCoy, Alaska State Troopers, and Officer Nancy Peterson of the Division of Fish and Wildlife Protection went to the terminal building at the Juneau Airport to observe who picked up the goldstreak package and to establish surveillance so that the package and whoever picked it up could be followed to wherever the package was taken.[3] There were other law enforcement personnel located in vehicles at strategic points along exit routes from the airport complex and there was radio communication between all officers involved. About 11:00 p.m. defendants approached the Alaska Airline goldstreak counter and Ms. Morris inquired about the package.[4] It was some twenty minutes to one-half hour before airlines personnel were able to deliver the package to Ms. Morris, and during this period of time, Officer Peterson moved toward a public telephone in order to observe the two women from a better angle. At the time she picked up the telephone, Officer Peterson recognized Mrs. Burnham, a friend of hers and the two women greeted one another with a hug. Officer Peterson was introduced to Alephe Morris. During a brief conversation, Officer Peterson invited 860 Mrs. Burnham to meet her later at a downtown Juneau hotel. Mrs. Burnham declined, saying she was tired and was going to go home. Shortly after Officer Peterson left the counter area, the package was delivered to Alephe Morris, who signed for it and the two women left the airport in an automobile registered to Richard and Sudie Burnham and operated by Sudie Burnham. As the Burnham vehicle left the airport it was followed by Peterson, Glass and McCoy, each in separate vehicles. In the vicinity of the Black Angus Restaurant, Burnham, with Morris still in the car, crossed over the Egan Expressway onto Old Glacier Highway. Lt. McCoy followed while Peterson and Glass turned toward Juneau on Egan Expressway. McCoy was ultimately forced to pass Burnham when she slowed down but Officer McCracken, of the Juneau Police Department, took McCoy's place and followed Burnham to 4 1/2 Mile Old Glacier Highway where she turned in and stopped at the Burnham residence, where both women exited the car and entered the residence. While no one involved in the surveillance was able to see whether the package was taken into the residence by either of the women, Sgt. Glass was able to look inside the Burnham vehicle while it was parked in the driveway and observe wrapping paper, apparently from the package, but no package itself. Glass returned to the other officers and told them to prepare to enter the Burnham residence. It is now some 15 to 20 minutes since the two women entered the Burnham residence and just as the officers began their approach from a point down the road, the Burnham automobile was observed to be leaving the driveway. No one had seen either woman leave the residence and enter the vehicle. Sgt. Glass followed the vehicle 400 or 500 yards down the road and stopped it, after which he and Trooper McCoy approached the vehicle and asked the occupants to get out, which they did. Mrs. Burnham asked why she was being stopped and was told by Sgt. Glass that the police believed that a package picked up at the Juneau airport contained narcotic drugs and they were conducting an investigation. At about this time Officers McCracken, Peterson, Bowman, Glass, McCoy and the district attorney were all visible to Mrs. Burnham. The two women were advised of their Miranda rights and each indicated a desire to have an attorney present. Sgt. Glass interpreted this as a desire on the part of each to remain silent. Glass took Mrs. Burnham to his vehicle where he advised her that he had a search warrant for her residence, that he knew what was in the package and asked if she would consent to a search of her car. Burnham wanted to know if a search of her residence would be necessary if she consented to a search of her car. Glass conferred with the district attorney and advised Burnham that if what they were looking for was found in the car, the residence would not be searched. Burnham signed a waiver for a search of the automobile. During the time of Glass' original request of Mrs. Burnham for consent to search the vehicle, McCoy observed the package inside the vehicle while he was standing on the passenger side looking through the windshield. McCoy informed Glass of this fact when Glass went to talk to the district attorney, but Glass never told Burnham that McCoy had seen the package.[5] Once Burnham consented to a search of the vehicle, the officers entered the car and removed the package, which had been opened, but then reclosed so that the contents were not visible. The brown paper wrapping was lying where Glass had earlier observed it, and he would have seen the package at the same time had it been on the floor in front of the passenger seat when he looked into the vehicle as it was parked in the Burnham driveway. In any event, the package was opened, the contents 861 seized and the two women taken to Johnson Human Resource Center. [Our quotation from Judge Schulz' decision ends here.] DISCUSSION Morris and Burnham apparently argued that the "search" by De Alesandro was not for a legitimate airline purpose; that the activities of the D.E.A. agent (Wallace) were improper; and that the Alaska search warrant should not have been issued nor the package seized from Burnham's vehicle. Judge Schulz ruled that the inspection by De Alesandro was not prohibited. With regard to the activities of Wallace, Judge Schulz explicitly found that, contrary to the assertion of Morris and Burnham, Wallace did not x-ray the package, and that the information received by Wallace from De Alesandro was sufficient to justify detention of the package and the sniff-search by the canine agent, Ryker. As to the warrant, Judge Schulz held that while there was a sufficient showing of probable cause for the issuance of a warrant, the one issued here did not comport with the basic requirements for anticipatory warrants under Johnson v. State, 617 P.2d 1117 (Alaska 1980), and thus could not support the search of the package. He also rejected the state's argument that Burnham had consented to the search of her vehicle, citing Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). Finally, Judge Schulz concluded that while seizure of the package could be upheld either on the basis of the "plain view" doctrine or as the result of a legitimate search incident to arrest, neither theory would support the immediate opening of the package. Therefore, Judge Schulz ruled that the contents of the package would not be admissible at trial. The state petitioned for review, characterizing Judge Schulz' ruling regarding the warrant as based upon "the failure to particularly specify the place to be searched for the package," and arguing (1) that the warrant had no such defect and (2) that the portion of the warrant that allowed opening of the package could be severed from any defective portion and applied to the ultimate seizure under the plain view or incident to arrest theories. We conclude that Judge Schulz erred in suppressing the contents of the package which the police seized and find that the package was properly opened pursuant to the warrant. The warrant provided, after finding probable cause: "You are therefore commanded in the evening, after the arrival of Fl. 69 on 4/8/82 to make search on the person of: (4) Alephe Morris or whoever picks up said package or the premises situated at: (5) wherever the described package is taken to (and you may enter and search for said package upon having followed it to the place into which it is taken and you may open said package and identify and seize its contents for the following property: The above described package .. ." The warrant is obviously an anticipatory warrant a warrant which is based upon an affidavit which shows probable cause at some future time for a search. The general concept of an anticipatory search was approved in Johnson v. State, 617 P.2d 1117 (Alaska 1980). Anticipatory warrants present difficult drafting problems because the magistrate does not decide that probable cause exists at the time the police obtain the warrant; rather, he decides that probable cause to search exists if particular anticipated events occur in the future. Thus, generally an anticipatory warrant will require the police to decide that the anticipated events, or conditions precedent, have occurred before they can search. This state of events creates a tension between two interests. The fourth amendment requires the decision to authorize a search to be made by a magistrate, not the police.[6] On 862 the other hand, courts need to encourage the use of warrants by the police and need to recognize that anticipatory warrants meet certain police exigencies.[7] The solution to this tension is, of course, to draft the anticipatory warrant narrowly so that the police have as little discretion as possible in determining whether there is probable cause to search. This appears to be more easily said than done. Judge Schulz ruled that the warrant was invalid and therefore could not be used to justify the search because it was a general warrant in that it did not designate a particular place to be searched. In light of the record before us we believe it is unnecessary for us to decide whether the warrant in question would have been sufficient to permit the search of any residence or automobile to find the package in question. It is only necessary for us to determine that the warrant is not drafted so broadly that it is necessary for us to invalidate the warrant as a general warrant since the package came into the hands of the police in a constitutionally authorized manner so that it was lawfully seized. Although the warrant did not designate a particular place which the police were to search, the warrant does not allow the police authority to search any number of places. Rather the warrant anticipates that a person will pick up the package and take it to a place. Assuming the police are able to follow the package to that place, they are then authorized to enter that place and seize the package. The warrant anticipates a search of that particular place and limits the search to a search for that package. We simply do not see this warrant as being so general in nature that the constitution requires us to condemn it as a general warrant and to rule that the warrant was invalid for any purpose. As it turns out, the police followed the package to a residence. However, they apparently could not tell whether the package entered the residence or remained in the car. After a 15 to 20 minute period, the police legitimately stopped the car and the package legitimately came into police hands because it was in plain view and also because the police could seize it incident to the arrest of the occupants of the vehicle. We conclude that under these circumstances the police could open the package. They had followed the package as the warrant directed and the package came into their hands legitimately. The fact that they did not have to enter a house to seize the package and that instead the place where the package wound up turned out to be a car rather than a residence should not invalidate the warrant as far as allowing the police to open the package. No one disputes the fact 863 that there was probable cause to believe that the package contained contraband at the airport and that the package was adequately described. It is also undisputed that the police knew that the package which they opened was the one described in the warrant. The only question which remains is whether the fact that the police lost sight of the package for 15 to 20 minutes would mean that they had not followed the conditions of the warrant and/or their probable cause no longer existed because they did not observe the package during that short period of time. We do not believe that the fact that the police officers could not see the package during the 15 to 20 minute period is of such significance that we must invalidate the search of the package. When a magistrate issues a warrant which authorizes the police to follow a package of contraband he certainly anticipates that the police will not be able to observe the package at all times and may even temporarily lose sight of the people who have the package. Here the police followed Morris and Burnham directly to a residence. Although the police temporarily did not know where the package was, this fact should not prevent the police from opening the package under the warrant. There will be few times when the police follow such a package when they will not temporarily lose sight of the people being followed or where they can state with certainty that the contraband was not discarded or hidden along the way. Contraband can always be taken out of a package which the police are following and concealed in some way, leaving the police following an empty package. We simply do not see the possibility that something along those lines happened in this case to be any greater than in any other ordinary case. We therefore conclude that after the police properly seized the package of cocaine, the search warrant which they had, which authorized them to search that package, was valid. We accordingly reverse the judgment of the superior court which suppressed the evidence in question. REVERSED. SINGLETON, Judge, concurring. I join in the court's decision. In my view, the issue in this case is much simpler than it appears to the other members of this court or to the eminent trial judge. The issue, as I see it: May a police officer (1) armed with a warrant based on probable cause, (2) authorizing the search and seizure of a particularly described closed container, (3) open that container without violating the fourth amendment or comparable provisions of our state constitution, (5) when it legally comes into his possession without recourse to the warrant, (6) where the warrant is defective[1] (a) in describing potential places where the container described in the warrant might have been found or (b) because the magistrate issuing the warrant may not have had a 864 basis for finding probable cause to search some or all of the potential places contemplated in the warrant? I conclude that the officer may open the closed container. This conclusion disposes of this case. As I understand it, the trial court and all the members of this court agree that the package under discussion was properly seized (without reliance on the warrant) either incident to an arrest or because it was in plain view in the defendant's automobile. We also all agree, I believe, that authority to seize a closed container does not automatically provide authority to open it. See Texas v. Brown, ___ U.S. ___, ___, 103 S. Ct. 1535, 1546, 75 L. Ed. 2d 502, 519 (1983) (Stevens, J., concurring).[2] Normally, an officer legally seizing a closed container based on probable cause to believe that it contains contraband is required to take it before a magistrate and obtain a warrant to search it in the absence of exigent circumstance or consent. I assume that neither exigent circumstances nor effective consent was present here. The question is: Does the normal rule apply when the officer already has gone before a magistrate and obtained a valid warrant (albeit defective in other respects) for the closed container in question where it legally comes into his hands without recourse to the warrant? I conclude that the normal rule does not apply and that the officers could search the container previously legally seized. As the United States Supreme Court pointed out in Mapp v. Ohio, 367 U.S. 643, 657, 81 S. Ct. 1684, 1692, 6 L. Ed. 2d 1081, 1091 (1961): "There is no war between the constitution and common sense." No one contends, in this proceeding, that the magistrate issuing the warrant did not properly find probable cause to seize this package or that it was not particularly described in the warrant issued. It would serve no useful purpose to require a second warrant to search the very package described in the first warrant. See 2 W. LaFave, Search and Seizure, § 4.6(f), at 111-12 (1978); cf. 2 W. LaFave, supra, § 4.8(f), at 137 (constitution does not require "useless gestures"). Finally, I conclude that the circumstances under which the partially opened package in question was found were sufficient to enable the officers to determine with reasonable certainty that it was the package described in the warrant, see 2 W. LaFave, supra, § 4.6(a), at 96 (1978), and that it had not been materially changed in the interim. See Illinois v. Andreas, ___ U.S. ___, 103 S. Ct. 3319, 76 L.Ed.2d ___ (1983). Judge Schulz found that there was probable cause to believe that it was the same package as part of his decision that it could lawfully be seized incident to an arrest. In deciding whether a given item is the one described in a warrant, I would conclude that "reasonable certainty" and "probable cause" are essentially synonymous. See Johnson v. State, 617 P.2d 1117, 1123-24 (Alaska 1980) (treating the word "positive" and the phrases "reasonably certain" and "probable cause" as essentially synonymous in a situation similar to this one). But cf. Illinois v. Andreas, ___ U.S. at ___, 103 S.Ct. at 3325 (requiring in a similar situation, except warrant not obtained, that there be no "substantial likelihood ... that the contents of the shipping container were changed during the brief period that it was out of sight of the surveilling officer"); id. at ___, 103 S.Ct. at 3329 (Stevens, J., dissenting) ("virtual certainty" required). Given these conclusions, I find it unnecessary to address the other issues debated in the parties' briefs and the opinions of Judge Coats and Chief Judge Bryner, i.e., to determine whether the warrant in question was 865 insufficiently particular in describing potential dwellings and automobiles to be searched, since no dwellings or automobiles were searched in reliance on the warrant, or to delve into the law of anticipatory warrants or controlled deliveries. See Illinois v. Andreas, ___ U.S. ___, 103 S. Ct. 3319, 76 L.Ed.2d ___ (1983); Johnson v. State, 617 P.2d 1117 (Alaska 1980); State v. Witwer, 642 P.2d 828 (Alaska App. 1982). BRYNER, Chief Judge, dissenting. I am concerned that Judge Coats' opinion fails to address a number of important and potentially meritorious constitutional arguments that bear directly on the validity of the warrant in this case and are necessary to resolve in order to sustain the search.[1] Nevertheless, I deem it unnecessary to address these issues in my dissent, since I think that, even assuming the anticipatory search warrant was validly issued, it cannot be relied upon to justify the search of the package found in Sudie Burnham's car. I believe that a careful consideration of the language in the warrant supports Judge Schulz' conclusion that the search in this case must be evaluated under standards applicable to warrantless searches and seizures. In Johnson v. State, 617 P.2d 1117 (Alaska 1980), the Alaska Supreme Court approved the use of anticipatory search warrants in Alaska and emphasized that in appropriate circumstances such warrants can be of vital significance in aiding the legitimate purposes of law enforcement. I have no quarrel with the supreme court's ruling in Johnson, and I support its assessment of the value and significance of anticipatory warrants. The court in Johnson, however, recognized that, in order to guard against abuse, careful attention must be paid to the preparation and issuance of anticipatory warrants. In particular, the court emphasized that an anticipatory warrant must make clear on its face the anticipated events that will trigger its provisions and authorize commencement of a search. See Johnson v. State, 617 P.2d at 1124 n. 11. In the present case, the primary event specified as a prerequisite to execution of the anticipatory warrant was the requirement that the package containing drugs be "followed" after being picked up at the airport. Although Judge Coats' opinion finds difficulty in determining the scope of this requirement, and Judge Singleton's concurring opinion would give this requirement little weight insofar as seizure and search of the packet is concerned, I believe that the language of the warrant must be enforced, and I think that determining the meaning of the language is a relatively simple task, involving little more than a straightforward reading of the warrant and common sense. In context, it seems apparent that the warrant, by requiring the package to be "followed ... to the place into which it is taken" was meant to establish a requirement of reasonably continuous surveillance as a precondition of the seizure of the package and of the search of its contents. This was the manner in which Judge Schulz interpreted 866 the warrant, and I believe that his interpretation should not be disturbed unless it is found to be clearly erroneous. I cannot conclude that Judge Schulz' interpretation of the warrant was clearly erroneous. The face of the warrant must be read in a fair and reasonable manner, one that is calculated to effectuate the intent of the judge who originally issued it. By requiring the package to be "followed," the issuing judge plainly intended to assure that the package and the people who possessed it would be monitored sufficiently closely to prevent the package or its contents from being replaced, altered or destroyed. In other words, the warrant required a level of surveillance that would assure that the package, its whereabouts and its contents, could reasonably be accounted for at all times prior to the search authorized by the warrant, a standard akin to the "chain of custody" standard provided for under our rules of evidence. See Alaska R.Evid. 901 commentary at 268 (1980). Based on the record before us, I believe that an appropriate level of surveillance was maintained up to and including the time that Burnham and Morris left their automobile and entered Burnham's home. At this point, however, police lost track of the package. Visual inspection of Burnham's automobile led police to believe that the package had been taken inside the house. Some fifteen to twenty minutes elapsed before officers observed Burnham and Morris driving away from the house; there is nothing to indicate that officers observed the package being carried back from the house to the car. To this date, it has apparently not been determined with certainty whether the package was in the car or in the house during this fifteen to twenty minute interval. When Burnham was ultimately stopped, investigating officers actually believed that the package was still at her house. Given these circumstances, I do not think it is fair to say that the officers who were charged with executing the search warrant "followed" the package to its ultimate point of seizure; they did not maintain reasonably continuous surveillance over it in any realistic sense. While Burnham and Morris were in Burnham's house, the package was unaccounted for and its whereabouts were unknown; the amount of time that elapsed would have been more than ample to permit destruction or adulteration of any substance originally contained in the package, or even replacement of the original package with another, similar package. There is virtually nothing in the record to support the conclusion that, after Burnham was stopped and officers looked into her car, they were positive that they had discovered the original package that contained drugs. To the contrary, after Burnham was stopped, officers were certain only that the car contained the wrapping from the original package; the wrapping had previously been seen in Burnham's car when Burnham and Morris were in Burnham's house, but at that time there did not appear to be a package in the car. After Burnham was stopped, officers observed a box, which they assumed to be the one originally contained in the wrapping. While this assumption may have been a reasonable one, it could hardly make up for the fact that the package had not been continuously "followed," as required by the warrant. In short, I agree with Judge Schulz that the warrant created, on its face, a condition that was violated when continuous surveillance over the package ceased; continuous surveillance ceased when surveillance over the package and the people who possessed it was interrupted for a substantial period of time.[2] Thus, even assuming the warrant as 867 originally issued was valid, by the time Burnham's car was stopped, the package was no longer being "followed," reasonably continuous surveillance had not been maintained pursuant to the requirements of the warrant, and, by its own terms, the warrant could no longer be deemed enforceable.[3] Analysis of the issue in this case from a slightly different perspective similarly indicates that, even if originally valid, the anticipatory search warrant was no longer effective after Burnham and Morris left Burnham's house. A common sense reading of the search warrant, in its entirety, indicates that it was meant to allow officers two options: first, to seize the package immediately after it was picked up at the airport; or, second, to follow the package to its initial destination, which could then be searched. To read the warrant more broadly, by interpreting it to allow police to follow the package, over a period of time, to a number of different locations, thus permitting officers to choose which "premises" they wanted to search, cannot be justified. Such an interpretation would convert the warrant into an impermissible, general authorization for officers to substitute their judgment for that of the magistrate and to select arbitrarily the premises they desired to search. In order to avoid this unconstitutional result, it is reasonable to construe the warrant as being meant to allow police, at most, to follow the package to the premises where it was first taken after being claimed and to permit a search of only those premises. Thus, implicit in the warrant is the limitation that the warrant would not apply beyond the original premises to which the package was taken. Under this interpretation, the warrant ceased to be effective after Morris and Burnham left Burnham's house. Adopting either approach, I believe it must be concluded that the warrant authorizing search and seizure of the package containing drugs was no longer enforceable when police stopped Burnham's car. The conduct of the officers at the scene supports this conclusion. Significantly, police officers who seized the package from Burnham's car and opened it never claimed to be *868 executing the previously issued warrant. To the contrary, the record indicates that officers at the scene of Burnham's arrest thought the warrant only authorized them to enter and search Burnham's home. There is nothing in the record to indicate that officers who seized and opened the package purported to be executing the anticipatory warrant. Given my conclusion that the warrant had already expired by the time that the package was seized, opening it could only be justified by an exception to the warrant requirement. I believe that Judge Schulz properly found that, while officers had the right to seize the package under the plain view and search incident to arrest exceptions to the warrant requirement, neither of these exceptions could justify actually opening the package. See, e.g., Dunn v. State, 653 P.2d 1071, 1082-83 (Alaska App. 1982). Similarly, even under the broad interpretation recently announced by the United States Supreme Court, the automobile exception to the warrant requirement might have justified seizure of the package, but it would not necessarily have permitted a search. See United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).[4] I thus conclude that Judge Schulz was correct in ruling that the search of the package taken from Burnham's car amounted to an invalid, warrantless search. I would affirm the suppression order entered by the superior court.[5] NOTES [1] The testimony indicates that "Ryker" had located drugs in various packages or containers over 400 times. [2] I do not believe it is necessary, for a disposition of the pending motions, to set out the testimony taken by Judge Williams. It suffices to say that the testimony established probable cause for issuance of the search warrant. [3] After a recitation of the probable cause finding, the warrant provided: You are therefore commanded in the evening, after the arrival of Fl. 69 on 4/8/82 to make search on the person of: (4) Alephe Morris or whoever picks up said package or the premises situated at: (5) wherever the described package is taken to (and you may enter and search for said package upon having followed it to the place into which it is taken and you may open said package and identify and seize its contents for the following property: The above described package .. . [4] Prior to this, the record is devoid of any indication that Mrs. Burnham was involved in any way. [5] McCoy observed the package resting on the floor of the vehicle immediately in front of the passenger seat, and he informed Glass of that fact. [6] The following language is from Keller v. State, 543 P.2d 1211, 1219 (Alaska 1975): The purpose of the warrant requirement is to prevent the police from hasty, ill-advised, or unreasonable actions in "the often competitive enterprise of ferreting out crime." The law allows the police to infringe upon a person's fundamental right to be free from search and seizure only when such infringement is reasonable. The conclusion that the imposition is reasonable should not be drawn by the very persons who are the agency for the deprivation of right. (citation and footnote omitted) [7] The policies supporting anticipatory warrants are strong, as explained in Alvidres v. Superior Court, 12 Cal. App. 3d 575, 90 Cal. Rptr. 682, 685-86 (Cal. App. 1970): The entire thrust of the exclusionary rule and the cases which have applied it is to encourage the use of search warrants by law enforcement officials. One of the major difficulties which confronts law enforcement in the attempt to comply with court enunciated requirements for a "reasonable" search and seizure is the time that is consumed in obtaining search warrants. The speed with which law enforcement is often required to act, especially when dealing with the furtive and transitory activities of persons who traffic in narcotics, demands that the courts make every effort to assist law enforcement in complying with the edicts that the courts themselves have issued. We must ask ourselves whether the objective of the rule is better served by permitting officers under circumstances similar to the case at bar to obtain a warrant in advance of the delivery of the narcotic or by forcing them to go to the scene without a warrant and there make a decision at the risk of being second-guessed by the judiciary if they are successful in recovering evidence or contraband. We believe that achievement of the goals which our high court had in mind in adopting the exclusionary evidence rule is best attained by permitting officers to seek warrants in advance when they can clearly demonstrate that their right to search will exist within a reasonable time in the future. [1] I assume for purposes of discussion but do not decide that this warrant was defective for the reasons set out by Judge Schulz. It is a very close question. Chief Judge Bryner and Judge Schulz are legitimately concerned that this warrant creates the risk of Morris and Burnham visiting a number of residences on their way home from the airport. Thus, officers possessing this warrant might feel justified in searching every residence visited. More likely, they might feel justified in searching that residence visited by Morris and Burnham which for reasons not disclosed to the magistrate the police had the most interest in searching. Once having access to that residence, the police could then seize any contraband found in "plain view" whether or not described in the warrant. Such a use of the warrant would expose Morris, and Burnham's social friends to all the risks of the general warrants condemned in the constitution. It is feared that to allow the search and seizure in this case will encourage the future issuance of similar warrants amenable to the same abuses and that the only way to prevent the harm is either to void the warrant ab initio as a general warrant or conclude that it died and could serve no function after Morris and Burnham left the first residence they visited after leaving the airport. I share this concern. Had the warrant been used to search any residence after the first, serious questions would be presented. I prefer to address them in a case in which they are squarely presented. I assume that the state's prosecutors, having been warned, will ensure that warrants, including anticipatory warrants, are drafted with greater specificity in the future. [2] See also Metcalfe v. State, 593 P.2d 638, 640 (Alaska 1979). But cf. Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980) (permitting search incident to arrest of closed containers "immediately associated" with the arrestee without a warrant, consent or exigent circumstances); McCoy v. State, 491 P.2d 127 (Alaska 1971) (refusing to distinguish between right to seize closed container on arrested person and right to search container). No one has argued that the package in question was "immediately associated" with either person arrested. Nevertheless, Hinkel did indicate the common sense approach our supreme court takes to problems presented by search and seizure and supports the conclusion that two warrants should not be required for a single container. [1] I also take exception to that portion of the majority opinion which states that, in dealing with anticipatory warrants, "the magistrate does not decide that probable cause exists at the time the police obtain the warrant; rather, he decides that probable cause to search exists if particular anticipated events occur in the future." I think this language is incorrect and potentially misleading. Both the United States and Alaska constitutions require that warrants be issued based upon a showing of probable cause. No lesser standard exists, and this same requirement applies to anticipatory warrants. Anticipatory warrants cannot be used as a vehicle for a magistrate to delegate to the police his constitutionally mandated duty to determine existence of probable cause. The distinction between a traditional search warrant and an anticipatory warrant does not depend upon whether probable cause will be established before or after the warrant is issued. In all cases a showing of probable cause must precede issuance of the warrant. With anticipatory warrants, the difference lies in the fact that the showing of probable cause will establish that evidence of a crime is likely to exist at a specified future time and under specified future conditions. The issuance of an anticipatory warrant does not, therefore, leave determination of probable cause to officers charged with executing the warrant. Instead, officers need only determine whether the anticipated events triggering the anticipatory warrant have occurred. [2] Cf. Illinois v. Andreas, ___ U.S. ___, 103 S. Ct. 3319, 76 L.Ed.2d ___ (1983) (warrantless opening of a shipping case containing drugs approved where container was previously lawfully opened and inspected by police and then resealed and delivered to the defendant, and where the size and specialized purpose of the shipping container made it unlikely that its contents had been changed during a 30-45 minute break in surveillance that occurred while the container was in the defendant's possession). While the approach advocated by Judge Singleton in his concurring opinion is persuasive and makes a good deal of sense, I am ultimately not convinced that it resolves the basic problems of this case. The concurring opinion treats the portion of the warrant authorizing seizure and search of the package as severable from the authorization to conduct a search of the premises where the package was to be taken; Judge Singleton concludes that the authorization to seize and search the package was in effect nonanticipatory in nature, and therefore not problematical. I believe this conclusion to be flawed for two reasons. First, there can be no doubt that the warrant was an anticipatory one, both in authorizing a seizure and search of the package and in authorizing a search of the premises into which the package was to be taken. The warrant permitted seizure and search of the package only after it was claimed at the airport by Alephe Morris or some other person. Since, at the time the warrant was issued, the package had not yet been delivered to the airport or claimed by anyone, this aspect of the warrant was obviously anticipatory. Second, by the express language of the warrant, the requirement that the package be "followed" at all times after it was claimed served as a condition precedent to both the search of premises and the seizure and search of the package authorized by the warrant. Both aspects of the warrant were governed by this precondition. Thus, I do not think that the lack of compliance with the warrant's requirement of reasonably continuous surveillance can be disregarded for purposes of evaluating the lawfulness of the search conducted in this case. [3] The opinion written by Judge Coats skirts these problems by pointing out that probable cause existed to open the package, even though it had been lost from view for more than a quarter of an hour. While this observation may be correct, it begs the issue of whether the opening of the package was authorized by the warrant. Probable cause, standing alone, could not have justified a warrantless opening of the package. Thus, the crucial inquiry is not whether probable cause existed when the package was opened, but rather whether the circumstances under which it was opened complied with the requirements of the anticipatory warrant. To the extent that Judge Coats' opinion implies that the warrant could lawfully have purported to authorize seizure and search of the package at any time and under any circumstances, so long as probable cause existed to open it, I must disagree. Such an interpretation would be contrary to the plain language contained on the face of the warrant and would be at odds with Judge Schulz' interpretation of that language. More significantly, such an interpretation would inevitably render the anticipatory warrant so broad that the constitutional requirement of particularity would not be satisfied. [4] In Ross, the United States Supreme Court extended the automobile exception to the warrant requirement to allow a warrantless search of all areas of an automobile and all relevant containers found therein where there was probable cause to search the automobile. In so holding, however, the court distinguished cases involving probable cause to believe that an automobile contained contraband from cases in which there was probable cause to believe that a specific container contained contraband, and the container was subsequently placed in an automobile. The court in Ross indicated that this latter type of case would continue to be governed by its prior rulings in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). [5] The state has not argued that the inevitable discovery doctrine should be adopted under the circumstances presented here; apparently no such argument was made before Judge Schulz. Given the lack of briefing on the issue and given the fact that application of the inevitable discovery doctrine involves both factual and legal questions, I do not think it appropriate to consider the doctrine at this stage. I would not, however, foreclose consideration of the issue on remand, if raised by the state. It is virtually uncontested that the police lawfully seized the package from Burnham's car. In light of the fact that a warrant had previously been issued for the search of the package containing drugs, and since, by all appearances, the package seized was the original package, it seems difficult to believe that a warrant to open the package would not have been issued. Assuming that the inevitable discovery doctrine were adopted in Alaska, it seems that applicability of the doctrine to this case would merit consideration.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2030491/	18 Ill. App. 3d 842 (1974) 310 N.E.2d 773 RICHARD C. BERGLUND, Plaintiff-Appellee, v. ROOSEVELT UNIVERSITY, Defendant-Appellant. No. 58328. Illinois Appellate Court First District (3rd Division). March 21, 1974. Robert J. Gorman, of Chicago, for appellant. William Parker Ward, of Chicago, for appellee. Judgment reversed. Mr. PRESIDING JUSTICE McNAMARA delivered the opinion of the court: Plaintiff, Richard C. Berglund, filed suit in the circuit court of Cook County seeking damages in the amount of $3,819.75 against defendant, Roosevelt University, for the loss of plaintiff's photographic equipment 843 stored on defendant's premises. The action was grounded on two separate legal theories, breach of an implied bailment contract and negligence. After a bench trial, the trial court, apparently relying on the theory of implied bailment, entered judgment for the plaintiff in the amount of $1,789.15, from which defendant appeals. Plaintiff has filed a cross-appeal, contending that the damages awarded were inadequate. In the fall of 1971, plaintiff was a full-time student at Roosevelt and also served as a photographer and editor of the student newspaper. Besides expending money for plaintiff's salary and the paper's printing and operating expenses, defendant furnished the paper with an office and photographic space, including photo developing equipment for the darkroom. The Roosevelt building housed the paper's editorial office on the fourth floor and the business manager's office and photo darkroom on the seventh floor. In order to reach the darkroom, one had to enter a door leading from the hall corridor to the business manager's office, pass through that office, and enter a second door leading into the darkroom. The school had adopted a master-lock system with special keys unable to be duplicated by ordinary locksmiths. An unlocked, wooden, four-drawer, filing cabinet was in the darkroom. Plaintiff testified that, as had his predecessors on the paper, he used one of the cabinet drawers to store his personal camera equipment. Plaintiff did not request or obtain permission from anyone connected with the defendant's administration to store his camera equipment in the darkroom or in the cabinet. Although the security director testified that it was normal practice for a student who wished to bring personal property on the premises to obtain permission from the security director's or comptroller's office, plaintiff made no such request. Plaintiff testified that he had utilized some of the stored equipment for activities unrelated to his duties as the paper's photographer and that some of the materials stored were for his own use. Plaintiff testified that he locked the darkroom door at 10:30 P.M., Friday, October 29, 1971. When he returned to the room on the following Monday morning, he discovered his camera equipment missing. Testimony was adduced concerning defendant's security measures used to safeguard its approximately 7,000 students and 130 to 200 rooms. The defendant maintains security guards at the entrances to the building, with one guard patrolling the corridors. Late in the evening the guards lock the street doors and see to it that everyone is sent outside. After the guards leave, the 28-member cleaning staff acts as a security force. No one is ever permitted to remove property from the building without a written pass. Everyone associated with the school carries an identification card. Plaintiff characterized the security force as being 844 composed of obese middle-agers who were rarely observed outside the lobby of the building. Many thefts had occurred in the building. Plaintiff was aware that a theft had occurred in the business manager's office only a few weeks before the instant theft. At the close of all the testimony the trial court found that a bailment relationship had existed between the plaintiff as bailor and defendant as bailee. In entering judgment for the plaintiff, the court implicitly found that the defendant had been negligent and had breached the bailment contract. The trial judge entered judgment for an amount less than that sought by plaintiff because he believed that not all of the camera equipment stored by plaintiff related to his duties as the school paper's photographer. Before considering the issue of whether plaintiff established the existence of a bailment relationship between himself and the defendant, we note that the trial court did not specify whether it perceived the plaintiff as having acted in the capacity of student or employee. Although plaintiff appears to emphasize his status as a student rather than employee, we do not believe that an exact determination of his status is helpful or necessary in deciding the existence of a bailment relationship. Under proper circumstances, such a relationship can be established between a student and school and betweeen an employee and employer. We need only decide whether a bailment relationship was established under the facts and circumstances of the present case. 1, 2 Bailment is defined as the rightful possession of goods by one who is not an owner. The characteristics common to every bailment are the intent to create a bailment, delivery of possession of the bailed items, and the acceptance of the items by the bailee. (Wall v. Airport Parking Co. (1967), 88 Ill. App. 2d 108, 232 N.E.2d 38.) A bailment can be established by express contract or by implication, with the latter designated as implied-in-fact or implied-in-law. (Chesterfield Sewer & Water v. Citizens Insurance Co. (1965), 57 Ill. App. 2d 90, 207 N.E.2d 84.) In determining the existence of an implied-in-fact bailment, one must analyze the facts surrounding the transaction, such as the benefits to be received by the parties, their intentions, the kind of property involved, and the opportunity of each to exercise control over the property. Wall v. Airport Parking Co. (1969), 41 Ill. 2d 506, 244 N.E.2d 190. In the present case, plaintiff attempted to show that an implied-in-fact bailment had arisen between the parties. It is clear, however, that the failure of the plaintiff to prove any knowledge on the part of the defendant of the storage of the items doomed this attempt. 3, 4 Knowledge on the part of the bailee is essential to prove proper delivery and acceptance. Physical control over the property allegedly *845 bailed and an intention to exercise that control are needed to show that one is in possession of the bailed item. (Smith, C. & Boyer, R., Survey of the Law of Property, ch. 29, p. 462 (2d ed., 1971).) And before acceptance can be inferred on the part of the alleged bailee of the goods purportedly bailed, there must be evidence to show notice or knowledge on the part of the bailee that the goods are in fact in his possession. (See T.R. Booth & Co. v. Loy (1968), 100 Ill. App. 2d 333, 241 N.E.2d 315; 4 Williston, Contracts § 1038A, pp. 2900-2902 (rev. ed., 1936).) Yet in the present case defendant's consistent denial of having any knowledge that plaintiff had stored his camera equipment on the premises is supported by plaintiff's own testimony. Although normal procedure required plaintiff to seek permission of certain agents of defendant to store his property on the premises, plaintiff never bothered to do so. The record also fails to disclose any evidence by which knowledge could be imputed to any of defendant's agents. Miss Elaine Davis, defendant's student activities coordinator, had occasional conversations with plaintiff. She also observed him on occasion at school functions while he was performing his photographic duties, and once admired his cameras. Certainly these facts fail to impute the necessary knowledge to Miss Davis or to defendant. Nor does the fact that prior student paper photographers may have similarly stored their equipment in the darkroom, without more, prove knowledge on the part of defendant. The record also reveals that defendant's security officers never exercised any degree of intentional control over plaintiff's goods. We conclude that plaintiff's failure to prove knowledge on the part of defendant of the goods stored resulted in his inability to prove a valid delivery of the camera equipment and a true acceptance of the goods by defendant. The trial court erred in holding to the contrary. Our holding on this issue obviates the necessity of considering whether defendant was negligent in its capacity as bailee. The second count of plaintiff's complaint sounded in tort for negligence, whether or not a bailment relationship existed. However, this count is essentially bottomed upon the first count. Having failed to prove that the defendant had any knowledge of plaintiff's storage of the camera equipment, plaintiff can point to no duty owed to him by the defendant. The second count cannot support a judgment. In view of our holding, it is unnecessary to consider plaintiff's argument that the damages awarded were inadequate. For the reasons stated, the judgment of the circuit court of Cook County is reversed. Judgment reversed. DEMPSEY and MEJDA, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2982448/	NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0609n.06 No. 13-5162 FILED UNITED STATES COURT OF APPEALS Aug 07, 2014 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN RODNEY MONCRIEF SMITH, ) DISTRICT OF KENTUCKY ) Defendant-Appellant. ) _______________________________________ ) ) ) ) ) ) BEFORE: BATCHELDER, Chief Judge; SILER and DONALD, Circuit Judges. ALICE M. BATCHELDER, Chief Judge. Appellant Rodney Moncrief Smith appeals the district court’s denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Appellant contends that he is entitled to a sentence reduction based on the new mandatory minimum sentences for crack cocaine offenders contained in the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“FSA”). He also argues that failing to apply the FSA’s lowered minimum sentence violates his constitutional right to equal protection of the law and his right to be free from cruel and unusual punishment. In United States v. Blewett, 746 F.3d 647 (6th Cir. 2013) (en banc), cert. denied, 134 S. Ct. 1779 (2014), we held that the FSA’s new mandatory minimums do not apply retroactively, see id. at 649, and that their prospective application does not violate an individual’s right to equal protection of the law or his right to be 13-5162 USA v. Rodney Moncrief Smith free from cruel and unusual punishment, see id. at 658–60. Our decision in Blewett governs the disposition of this appeal, and we AFFIRM the district court’s denial of Appellant’s motion based on our reasoning in Blewett. 2	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2982941/	NOT RECOMMENDED FOR PUBLICATION File Name: 15a0460n.06 No. 14-3704 FILED Jun 19, 2015 DEBORAH S. HUNT, Clerk UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT KENNETH ROTH, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WEST SALEM POLICE DEPARTMENT, et al., ) NORTHERN DISTRICT OF ) OHIO Defendants-Appellees. ) ) ) BEFORE: MERRITT, BOGGS, and ROGERS, Circuit Judges. ROGERS, Circuit Judge. Kenneth Roth was a part-time police officer in the West Salem Police Department, and also a member of the Marine Reserves who was deployed to Iraq on two occasions. Roth was passed up for a promotion to sergeant in the police department while he was away on his second deployment. Shortly after he returned to the police force from that deployment, he was suspended pending completion of anger management classes and passage of a psychological evaluation. Roth did not pass the evaluation and eventually the Village of West Salem terminated him. Roth sued the Village, arguing that the police department’s failure to promote him and his suspension and subsequent termination violated the Uniformed Services Employment and Reemployment Rights Act protecting military personnel and veterans from discrimination. Roth also alleged that his suspension violated Ohio disability discrimination law. The district court granted summary judgment to the Village, and Roth appeals, arguing that he No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. had presented enough evidence to warrant a trial on both claims. However, the record demonstrates that the police department’s actions with respect to Roth were justified by valid, non-discriminatory reasons. Roth was commissioned as a paid West Salem police officer in February 2001. His first six months were a probationary period, which was extended for another six months for unclear reasons in September 2001. On October 12, 2001, Roth received a written warning from then- Police Chief Terry Johns for failing to obey an order. The warning was “final,” and stated that the “[n]ext procedure will result in dismissal,” but it is not clear whether this applied only to Roth’s probationary period. Aside from brief training periods, Roth always worked for the police department on a part-time basis, and he worked full-time for a security contractor at a NASA facility. When he became a police officer, Roth was a member of the Marine Reserves, having previously served on active duty. Roth’s time on the West Salem force was punctuated by three leaves of absence. First, from February 2005 to September 2005, Roth was deployed to Iraq. Second, in 2007, Roth took time off to receive counseling from the Veterans Administration while going through a divorce. Third, Roth was deployed to Iraq again in May 2008, returning to the United States in April 2009 and being released from active duty in June 2009. Prior to the start of Roth’s first deployment to Iraq in February 2005, Chief Donald Sims (who had succeeded Chief Johns) received a complaint that Roth had stopped a motorist who had circled the block while waiting to pick up a passenger. Chief Sims addressed the issue informally by having a conversation with Roth about the standard for probable cause. Upon his return in September 2005, Chief Sims had Roth ride patrol with Captain Ray Leiby “for a couple of weeks so that he could be reacclimated to West Salem and his duties,” -2- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. after which Roth went back on patrol. Roth’s time in Iraq during his first deployment apparently affected his approach to police work. Many of Roth’s colleagues in the Marines were killed during his deployment, some in ways Roth felt had been preventable. As a result, Roth became extremely sensitive to decisions by superiors that Roth saw as putting the lives of Roth’s colleagues at risk. At the West Salem Police Department, Roth perceived Chief Sims and one other colleague as incompetent. Tina Barnette, the Department’s administrative assistant, testified that Roth’s colleagues were aware that Roth was dissatisfied. In spite of these tensions, Chief Sims only recalled having one issue with Roth in the period between his two deployments: Chief Sims wrote Roth a letter asking him not to work hours beyond his scheduled shift without Captain Leiby’s or his permission. (Working extra hours was a problem because of budget constraints.) When Roth was again deployed to Iraq in May 2008, both he and Chief Sims expected him to return to the West Salem Police after his deployment. Chief Sims requested and obtained an extension for Roth to complete state-mandated continuing training requirements that he could not complete while deployed. Roth, meanwhile, kept in touch with Barnette via email from Iraq and expressed, in her paraphrase, that he had “a big vision” for changes to the police department. Roth’s relationship with the leadership of the police department deteriorated quickly after he returned from his second deployment in the summer of 2009. While still in Iraq, Roth learned that a fellow patrolman, Dozier Hendershot, had been promoted to sergeant ahead of him. Prior to returning to the force, Roth emailed a friend and fellow patrolman, George Paine, expressing that he was “upset” about this development. Nonetheless, he took a training course paid for by West Salem in August 2009 in preparation for returning to the police force. Upon resuming work in September, Roth expressed to Captain Leiby his “[d]isappointment in not being -3- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. promoted, as well as [his belief] that the department had violated USERRA [the Uniformed Services Employment and Reemployment Rights Act] in promoting someone without a test or any form of board.” Captain Leiby essentially brushed aside Roth’s complaint. As Roth recalls the conversation, Captain Leiby said something to the effect of “Combat veterans probably shouldn’t be promoted anyway because they don’t understand, because it’s a different world between the military and law enforcement.” The decision to promote Hendershot over Roth had been made by Chief Sims, in consultation with Captain Leiby. Chief Sims and Captain Leiby considered Hendershot, Roth, and a few other patrolmen. Chief Sims saw Hendershot as the best choice for a number of reasons. Comparing Roth and Hendershot, Chief Sims claimed that Hendershot was easier to work with, had incurred no citizen complaints, and could be relied on to follow orders, whereas this was not always the case with Roth. Chief Sims also noted that Hendershot was the only patrolman who did not have any other job and was willing to take on a large amount of hours, which Chief Sims interpreted as a sign of loyalty. Roth’s return to his patrolman position in the shadow of this controversy was short-lived. After Roth had worked only three non-consecutive shifts over the course of a few days, Chief Sims, after consulting with Captain Leiby, instructed Roth not to return to active patrol pending Roth’s completing an anger management class and passing a psychological examination. Chief Sims hand-delivered a letter to Roth explaining his decision and listing concerns about Roth’s performance. The letter emphasized the following specific issues: 1. Roth displayed an “aggressive demeanor” to Barnette, the administrative assistant, and as a result “she does not feel safe at work when [Roth is] around.” 2. Roth was “rude” to his colleagues and “insubordinate” to the administration, leading some of the colleagues to “avoid talking to [him], so they do not get -4- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. involved in any situation [he] may find [himself] in while working [at the police department].” 3. Roth took a department radio home without permission, contrary to a standing policy that officers working relatively few hours should leave radios for others at the end of their shifts. 4. On his second shift of duty after resuming work, Roth worked extra hours without permission or any clear justification, just as he had done when he received a caution letter in 2007. 5. Also during his second shift of duty, Roth stopped a motorist “for no reason, other than [Roth] thought he looked suspicious.” This resulted in a complaint to the police department from that motorist. 6. Captain Leiby attempted to discuss some of these issues with Roth, but Roth “argued with him” and became “aggressive and angry.” In order to “protect the workers and citizens of West Salem from an angry police officer,” Chief Sims decided to suspend Roth from patrol duties without firing him. The letter laid out a procedure for being reinstated to patrol duty: [Y]ou will not be scheduled to work the street as a patrolman until such time as you are able to complete an anger management class and obtain a psychological exam by a doctor qualified to perform such examinations on police officers to determine your suitability to work in the field of law enforcement. Upon successful completion, you will meet with me and the Mayor. You may be asked to ride a few shifts to be reintroduced to representing the Village of West Salem as a patrolman. This procedure, which Roth ultimately did not complete, was beset by delays. Chief Sims assumed Roth would get anger management counseling for free or at a subsidized rate at the VA. Roth eventually did, earning a certificate of completion of “cognitive processing therapy” on May 25, 2010. Although Roth provided the certificate of completion to Captain Sims, Chief Sims did not contact Roth about scheduling the psychological examination until October 6, 2010. Dr. John Jorden conducted the examination and sent a summary of the results to Chief Sims (with a copy to Roth) on December 10, 2010. The report indicated that Roth had “had temper and control issues,” and “showed signs of unresolved grief and PTSD.” The report -5- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. also stated that Roth “no longer wants to work with the current situation at West Salem” and “plans to go on to [l]aw [s]chool.” Dr. Jorden did not approve Roth’s return to active duty, but also stated that “[p]eople and situations change,” suggesting that Roth might be able to return at some point in the future. On February 8, 2011, Chief Sims sent Roth a letter asking whether Roth still intended to return to the West Salem police. Roth received the letter but never responded. On March 9, Chief Sims sent Roth a second letter warning Roth that if he did not respond by March 22, his failure to do so would be treated as a resignation and his position with the police department would be terminated. Roth also received this letter but did not respond. Roth was terminated on March 22; the termination form listed him as having “resigned.” Roth filed suit against the West Salem Police Department on February 14, 2013. He filed an amended complaint substituting as defendant the Village of West Salem (which was his formal employer). The complaint alleged that the police department discriminated against Roth on the basis of disability in violation of the Ohio Civil Rights Act (OCRA) and that the department’s failure to promote Roth and his termination both violated USERRA. Following discovery, the Village of West Salem moved for summary judgment. The district court granted the Village’s motion on July 1, 2014. The district court found no evidence in the record supporting a conclusion that the police department’s promotion of Hendershot over Roth was connected to Roth’s military service, instead noting the performance- and loyalty-related reasons provided by Chief Sims. The district court next held that Roth had not been terminated in violation of the USERRA because his failure to respond to Chief Sims’s letters following his psychological evaluation amounted to a resignation, so there was no adverse action by the department. Finally, the district court found no triable issue of fact as to the OCRA -6- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. discrimination claim because requiring a psychological examination to determine whether Roth could perform his duties was not an “adverse action.” Accordingly, the district court granted summary judgment to the Village. Roth appeals. Roth did not raise a triable issue of fact as to whether Chief Sims’s decision to promote Hendershot to sergeant ahead of Roth was motivated by Roth’s military service. Even if the employee bringing a USERRA claim can demonstrate that the employer’s adverse action was motivated by animus against the employee’s protected status, the employer may still prevail by proving that it would have taken the adverse action even absent that illicit motivation. Hance v. Norfolk S. Ry. Co., 571 F.3d 511, 518 (6th Cir. 2009). Although Roth did present circumstantial evidence that Captain Leiby may have harbored unlawful animus against Roth and may have influenced Chief Sims, Roth cannot rebut the Village’s evidence showing that he would not have been promoted even absent his military service. First, Roth’s failure-to-promote claim depends entirely on the decision to promote Hendershot. Although Paine was also promoted to sergeant, Paine was promoted after Roth had been terminated. The termination was reason enough not to promote Roth, provided that the termination was not itself unlawful, a question addressed below. Roth’s arguments relating to Paine’s promotion and the reasons for it are therefore not relevant. Roth has arguably presented evidence that might convince a reasonable jury that his military service was a motivating factor in the decision to promote Hendershot over him.1 Roth’s allegation that Captain Leiby said something along the lines of “Combat veterans 1 The Village’s argument that Roth is not entitled to a promotion (an argument that refers to the reemployment protections of 38 U.S.C. § 4312) is inapposite. Roth does not claim that he was entitled to an automatic promotion upon reemployment, but rather that the police department discriminated against him on account of his military status in deciding whom to promote, a claim that invokes the anti- discrimination provisions of 38 U.S.C. § 4311. -7- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. probably shouldn’t be promoted . . . because they don’t understand, because it’s a different world between the military and law enforcement” could reasonably be interpreted as reflecting animus. This animus, if it existed, could have played a role in the promotion decision, as Chief Sims consulted with Captain Leiby when deciding who to promote. However, there is no liability under the antidiscrimination provision of USERRA if “the employer can prove that the action would have been taken in the absence of” the plaintiff’s protected military status or activity—in which case any animus was neither the but-for nor the proximate cause of the adverse action. 38 U.S.C. § 4311(c)(1); see Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1030 (6th Cir. 2010). The Village has made such a showing, and Roth has not rebutted it. Chief Sims identified the factors that he considered in promoting Hendershot: availability to work long hours, ability to follow orders and work smoothly with superiors, and absence of citizen complaints. Roth has not cast doubt on the conclusion that, applying these factors, Hendershot’s promotion was justified. At the time that the promotion decision was made during Roth’s second deployment, Roth had already been the subject of a citizen complaint, he had already experienced conflicts with coworkers and been reprimanded for not following orders, and (when not deployed) he had another job that limited his availability. Roth’s only argument is that the lack of a formalized selection process suggests that Chief Sims’s reasons might be pretextual. But it is reasonable for a small police department such as that of West Salem to make personnel decisions informally, and the factors Chief Sims used also appear reasonable. Roth has therefore failed to present a triable issue as to whether the police department’s failure to promote him violated USERRA. Roth has also failed to raise a triable issue as to the motivations for his suspension and ultimate termination. Although his suspension was an adverse action for purposes of USERRA -8- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. and he might possibly show that it was motivated by animus against his military service or veteran status, he cannot rebut the Village’s non-discriminatory reasons for suspending him. A cat’s paw theory of liability tying Captain Leiby’s bias to Chief Sims’s actions is still theoretically available, and, though the evidence is more tenuous, Captain Leiby’s allegedly biased statement is still applicable to Roth’s suspension. However, again, the Village presented significant unrebutted evidence that Roth would have been suspended even absent his military service and veteran status. If this conclusion is correct, then the delays in the post-suspension process and Roth’s ultimate abandonment of his position do not raise concerns under USERRA. While the district court was correct that Roth’s termination, in and of itself, was a resignation that cannot be an adverse action, the focus should instead be on Roth’s suspension prior to his termination. If the suspension was indeed based on antimilitary bias, and if Chief Sims intentionally impeded Roth from meeting the conditions for reinstatement, then Roth was de facto terminated in violation of USERRA. Moreover, the suspension itself was an adverse action for purposes of USERRA, which broadly protects “initial employment, reemployment, retention in employment, promotion, or any benefit of employment.” 38 U.S.C. § 4311(a). Thus, the Village’s liability turns on the motivation for Roth’s suspension. We assume for purposes of argument that Roth has presented a plausible case that there was illicit animus affecting Roth’s suspension. Again, it is possible that Captain Leiby’s statement about promoting combat veterans reflects an anti-veteran bias, although to be applicable here it would have to be a general bias against combat veterans in the police force, rather than a bias against promoting them. However, again, there is strong evidence that Chief Sims and Captain Leiby relied on valid reasons unrelated to Roth’s military status in suspending -9- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. Roth, and that they would have done so even absent Roth’s military status. Roth is unable to rebut enough of this evidence to raise an issue of triable fact. True, Roth may have created a genuine issue of fact with respect to the validity of two of the reasons: Captain Leiby’s report regarding Roth’s aggressive demeanor and uncooperative attitude, and his taking a police radio home with him. Because it is possible that Captain Leiby was biased against Roth, it is possible that Captain Leiby’s report of Roth’s bad attitude was tainted by this bias. There is no direct connection between the police radio incident and any potential bias, but it is plausible, as Roth has suggested, that Roth was unaware of the (relatively recent) rule about taking home police radios and ought not to have been blamed for taking one home. But Chief Sims’s other reasons for suspending Roth are supported by the evidence and amply justified suspension. Roth does not dispute that he worked hours beyond his shift without permission, after already having been warned not to do so in 2007. Barnette’s testimony more or less corroborates Chief Sims’s report that she felt unsafe because of Roth’s aggressive demeanor. Although Barnette denies that she actually felt personally threatened by Roth, she believes Chief Sims reached this conclusion based on her report of “comments he made about the killing of people and talking about this weapon that he had and things of that nature.” “This weapon” was a “five thousand dollar assault weapon” that Roth had purchased, not his service weapon, and “killing somebody” referred to Roth “not having a problem killing somebody if he were to have to do that.” Barnette testified that hearing this made her “greatly concerned, not only for myself, but also for him.” This testimony corroborates the gist of Chief Sims’s allegation that Barnette said that Roth displayed an aggressive demeanor and frightened her. -10- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. Barnette’s testimony also corroborates Chief Sims’s allegation that other officers found Roth insubordinate and rude. Barnette testified that other officers said Roth was “insubordinate” and “didn’t have respect for the chief,” and that “some of the part-time officers” complained about his “attitude and demeanor,” saying he was “hard to get along with” and “not a team player.” This allegation is also corroborated to some extent by Roth himself, who admitted that he is unwilling to obey orders that will put his colleagues in danger and will not remain silent if he sees things being mismanaged, and Roth’s expert Dr. Richetta, who noted that Roth “would be likely to have administrative conflicts with superiors in a work place.” Finally, there is some evidence suggesting that the citizen complaint about Roth making a traffic stop without probable cause is accurate. Both Barnette and Chief Sims recall speaking with a motorist who reported that Roth executed a military-style stop (pulling in front of the stopped car to block it rather than pulling up behind). After receiving the citizen’s complaint, Chief Sims asked Roth for his version of the event, and recalls having the following exchange: “I asked what about the vehicle was suspicious. His reply, it was driving around at West Salem at that hour.” Because Chief Sims’s report of Roth’s statement is not hearsay under Fed. R. Evid. 801(d)(2)(A), there is admissible evidence that the stop occurred and that Roth did not have probable cause to make the stop. (Roth himself does not recall whether the stop occurred or not.) Barnette’s and Chief Sims’s statements about the citizen’s complaint (which are the only source of information about how Roth conducted the stop) are hearsay, but they can still be used to show the effect of the complaint on the listeners, Barnette and Chief Sims. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009). Showing the effect on Chief Sims is helpful to the Village because factually false justifications are not pretextual if the decisionmaker has an “honest belief” in them after conducting a reasonable investigation. Escher, 627 F.3d at -11- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. 1030. The citizen’s complaint would support a belief that the stop occurred as described, even if it were false, although Chief Sims performed virtually no investigation other than asking for Roth’s version of events. Roth’s account may have confirmed enough particulars that Chief Sims felt that suspension was warranted. Further, given the other concerns Chief Sims had about Roth’s behavior, it may have been reasonable to limit the time spent on investigation before acting. At any rate, the admissible and unrebutted evidence that Roth had conducted what appears to be a completely baseless traffic stop is itself cause for concern, especially in conjunction with Roth’s general behavior as observed by Barnette and Chief Sims. In total, Roth is unable to provide evidence rebutting the majority of the issues identified in Chief Sims’s letter, including what appear to be the most serious ones. As a result, there is no triable issue of fact as to whether Roth would have been suspended even absent his military status. Because Roth’s suspension did not violate USERRA, it follows that his failure to complete the terms of his suspension, which led to his termination, cannot give rise to liability under that statute. Finally, Roth alleges that his suspension violated O.R.C. § 4112.02(A), which provides that it is “an unlawful discriminatory practice” for “any employer, because of the . . . disability . . . of any person, to discharge without just cause . . . or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” On appeal, Roth acknowledges that psychological evaluations in themselves are not adverse actions, but argues that the suspension pending a psychological evaluation was a pretense—a way to prevent Roth from working—motivated by animus against Roth’s disability. However, it was proper to dismiss this claim because Roth -12- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. cannot prove that he would have been able to perform his patrol duties in spite of his disability— mental illness. To prevail on this claim, Roth must prove that he was able to perform his patrol duties at the time that he was suspended, which he cannot do. To establish discrimination on the basis of disability, a plaintiff must prove not only that he is disabled and that his employer took an adverse action because of his disability, but that he “can safely and substantially perform the essential functions of the job in question with reasonable accommodations.” Blankenship v. Martin Marietta Energy Sys., Inc., 83 F.3d 153, 155 (6th Cir. 1996). Roth does not argue that he needed any accommodation, and his inability to rebut the allegations in Chief Sims’s letter, as described above, suggests that Roth was not able to safely perform the duties of a police officer. This conclusion is supported by both of the psychiatric evaluations that are in the record. First, Dr. Jorden concluded in December 2010—more than one year after Roth’s suspension, and after Roth had completed an anger management class—that “Ken is guided by his logical self, but is having to manage a host of emotional issues which prohibit his being an officer at this time.” Approximately twenty months later, when Dr. Richetta concluded that Roth could again work as a police officer, she noted the progress Roth had made: Although he has been diagnosed with a Posttraumatic Stress Disorder secondary to his military service, the immediate evaluation finds little residual from that condition impacting his life now. He has undergone considerable psychotherapy including specialized treatment through the VA for service persons with PTSD. The PTSD is manageable and is not likely to affect his working as a police officer. This suggests that PTSD did not prevent Roth from functioning as a police officer in the fall of 2012 in part because of the treatment he had received. He received virtually all of this treatment after he was suspended, since he recalls having been diagnosed with PTSD “somewhere between June and September, or maybe October” of 2009, around the same time he was suspended. -13- No. 14-3704 Kenneth Roth v. West Salem Police Department, et al. These analyses strongly suggest that in September 2009, with barely-diagnosed PTSD and just a few months removed from his last deployment to Iraq, Roth was not able to effectively and safely perform the duties of a police officer. For the foregoing reasons, the district court’s grant of summary judgment to the Village is affirmed. -14-	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1874181/	586 So. 2d 445 (1991) A.B.G., A Child, Appellant, v. STATE of Florida, Appellee. No. 91-482. District Court of Appeal of Florida, First District. September 18, 1991. Rehearing Denied October 24, 1991. 446 Nancy A. Daniels, Public Defender, Steven A. Been, Asst. Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee. WOLF, Judge. A.B.G. appeals from an order adjudicating him delinquent for the offense of petit theft. Appellant argues that the trial court erred in denying his motion for judgment of acquittal. We find that there was sufficient evidence to support appellant's adjudication as an aider and abettor. The trial court's decision is affirmed. The only witness at the adjudicatory hearing was a security officer at an Albertson's store in Jacksonville, Florida. He testified that on October 25, 1990, he saw four boys, including the appellant, enter the store. The group proceeded directly to the condom section. Three of the boys, including the appellant, stood elbow-to-elbow directly in front of the condoms. The other two boys began removing boxes of condoms from the display. One of the boys broke open a box of two condoms, removed them from the box, and placed them in the inside pocket of his jacket. The boy who stood immediately next to appellant put two boxes into the right front pocket of his jacket. Appellant (at least four or five times) looked down at the condoms, then to the front of the store and to the rear of the store. Appellant's actions were continuous, occurring both before and after the other boys stuffed the condoms into their pockets. Appellant and the other boys also conversed during the theft. The fourth boy stood behind the other three and also looked to the front and back of the store. The boys walked together to the front of the store and past the cash register without paying for the merchandise. As they attempted to exit the store, they were confronted by the manager. Appellant turned 447 away from the store manager and walked back into the lobby. Where, as here, the state relies on circumstantial evidence to prove the accused's guilt, it is necessary to exclude every reasonable hypothesis of innocence. B.W. v. State, 546 So. 2d 29 (Fla. 1st DCA 1989). In determining whether a case is sufficient to be submitted to the trier of fact, [i]t is the trial judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. Spinkellink v. State, 313 So. 2d 666, 670 (Fla. 1975), cert. denied, 428 U.S. 911, 96 S. Ct. 3227, 49 L. Ed. 2d 1221 (1976). The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce evidence which is inconsistent with the defendant's theory of events. See Toole v. State, 472 So. 2d 1174, 1176 (Fla. 1985). Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law, 559 So. 2d 187, 189 (Fla. 1989). To convict appellant as an aider and abettor, the state has to show that he (1) assisted the actual perpetrators by doing or saying something that caused, encouraged, assisted, or incited the perpetrators to actually commit the crime, and (2) intended to participate in the crime. C.P.P. v. State, 479 So. 2d 858, 879 (Fla. 1st DCA 1985); B.W. v. State, supra. The elements of assistance of the perpetrator and intent may be proven by a combination of surrounding circumstances from which a jury can reasonably infer defendant's guilt. Staten v. State, 519 So. 2d 622, 623 (Fla. 1988); Brewer v. State, 413 So. 2d 1217 (Fla. 5th DCA 1982). Mere presence at the scene, knowledge of the crime, and flight are insufficient to justify a conviction. C.P.P. v. State, 479 So. 2d 858 (Fla. 1st DCA 1985). Where the state presents additional evidence, however, which contradicts the defendant's theory of innocence, the trial court's decision to deny a motion of acquittal must be affirmed. Saffor v. State, 558 So. 2d 69 (Fla. 1st DCA 1990), rev. denied, 570 So. 2d 1306 (Fla. 1990). In the instant case, the fact finder could reasonably infer from the evidence presented that appellant's hypothesis of innocence, that he didn't know the other boys were going to take the condoms and that he was just nervously looking around, was not reasonable. The boys entered the store together and proceeded directly to the condom display. Appellant stood elbow-to-elbow with a boy who was stuffing condom packages into his front jacket pocket. He was observed talking with the other boys during the commission of the crime. The appellant demonstrated a deliberate pattern of conduct, both before and after the other boys had concealed the condoms. These factors, taken in the light most favorable to the state, are inconsistent with appellant's purported lack of knowledge and mere nervous presence at the crime scene. A fact finder could reasonably infer that, as a result of appellant's consistent actions both before and after the actual taking of the property, the only reasonable hypothesis from the evidence presented was that appellant intended to be, and was, an active participant in the theft as a lookout. Affirmed. BOOTH, J., concurs. KAHN, J., dissenting with written opinion. KAHN, Judge, dissenting. The court, relying upon State v. Law, 559 So. 2d 187 (Fla. 1989), Staten v. State, 519 So. 2d 622 (Fla. 1988), and Brewer v. State, 413 So. 2d 1217 (Fla. 5th DCA 1982), affirms appellant's delinquency adjudication. I respectfully disagree, and would reverse. 448 As acknowledged by the majority, the rule applicable to an aider and abettor requires proof that the accused intended to participate in the crime. In the present case, the state relied entirely upon circumstantial evidence to prove intent. Accordingly, the majority looks to Law, supra, the supreme court's recent enunciation of the "special standard of review of the sufficiency of the evidence" where conviction is based entirely upon circumstantial evidence. 559 So.2d at 188. The standard established in Law, however, requires as a procedural threshold that the state "introduce competent evidence which is inconsistent with the defendant's theory of events." 559 So.2d at 189 (e.s.). While setting out this legal principle in its opinion, the majority fails to heed it. Although the supreme court in Law expressly refused to adopt a requirement that would force the state, in a circumstantial evidence case, to rebut conclusively every possible variation of events which could be inferred from the evidence, the court nonetheless reaffirmed the familiar rules applicable to this class of cases: Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence... . A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. 559 So.2d at 158. The hypothesis of innocence advanced in support of appellant's motion for judgment of acquittal involved no mental gymnastics or contortion of the facts and inferences available from the evidence. Appellant's counsel stated to the trial court, in rather straightforward terms, "When he sees other people taking stuff, he gets nervous and he is looking around like oh, no, what is going to happen? Am I going to get in trouble because those guys are stuffing this stuff in their pockets? ... It could have been that they intended to go in and maybe buy some condoms. That is not something that a teen-age boy is real eager to do these days. In fact it's kind of embarrassing." In my view, this theory advanced by counsel required entry of a judgment of acquittal. I would suggest that Staten and Brewer, supra, do not support the majority's view. In Staten, the state proved that the defendant drove a car in which three of her companions fled after committing robbery and murder. In upholding Staten's conviction the supreme court noted evidence that Staten was present on numerous occasions when the proposed robbery was planned, and also that the group actually discussed the robbery as they drove to the scene to execute the plan. Staten waited in the car across the street while the robbery and murder took place and then drove the getaway car. These factors properly allowed an inference sufficient to prove intent. Brewer, in my opinion, has no application to the present facts. Brewer was convicted of theft after he induced the victim to turn over $1,000 with the understanding that Brewer would take the money to purchase some guns and return the guns to the victim. Brewer took the money, but never returned with the guns or the money. The issue passed upon in Brewer was whether this evidence was sufficient for the jury to determine the defendant's mental intent to commit the crime of grand theft. I would respectfully suggest that nothing in Brewer supports the present result. I believe we should be bound by our decision in C.P.P. v. State, 479 So. 2d 858 (Fla. 1st DCA 1985). In that case we reversed an adjudication of delinquency where appellant admitted his presence in an automobile for 2 1/2 hours while two companions left the car and burglarized a nearby store. Appellant admitted having prior knowledge that the two others intended to burglarize the store, and further admitted that yet another companion remained in the car for the purpose of serving as a lookout. In my view, the facts of C.P.P. go far beyond the facts in the present case. 449 Here, the evidence consisted solely of brief testimony provided by a store security guard. According to the witness, appellant and his companions entered the store and headed directly to the condom display. A.B.G. stood very close to his companions, directly facing the condom display. The witness never indicated that he saw any signs of nervousness, hesitance, or discussion among the boys before two of them began to remove condoms from the rack. The witness noted that after two of the boys removed condoms, A.B.G. looked around four or five times. The witness did not testify to any actions consistent with lookout type behavior prior to the time the two boys removed the condoms. The security guard's testimony is clear that A.B.G. began to look back and forth only after two of the other boys began to remove boxes of condoms. I am unpersuaded by the evidence relied upon by the majority to support a finding of criminal intent. Proof that appellant, along with the others, walked directly to the condom display, stood close to his companions, and looked back and forth repeatedly as two of the other boys took merchandise strikes me as equivocal at best. The act of walking directly to the condom display, without any exhibition of nervousness or hesitance, is to me equally consistent with an intent to purchase condoms as it is with a contrary intent. The fact that appellant did not look around nervously, until after one of the others actually took something off the rack, appears quite consistent with appellant's plea that he was surprised and frightened when he realized the boys were going to steal something. While I agree with the majority that it is the function of the trier of fact to make the ultimate determination of whether the evidence relied upon by the prosecution is sufficient to exclude very reasonable hypothesis of innocence beyond a reasonable doubt, I would be guided by the requirement set out by the Supreme Court in Law, which holds the state to its threshold burden of producing evidence inconsistent with the defense theory. It simply will not do to produce evidence equally consistent with the theory of the state and that of the defense. The law, for better or worse, places no burden upon one in appellant's position to dissociate himself from the perpetrators of a crime, even after he has knowledge that the others are committing a crime. The burden, rather, is placed squarely upon the prosecution to prove appellant's intent to participate in the crime. I have searched the record in vain for any legally sufficient proof of intent, and finding none, I would reverse.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3349296/	Plaintiff is an insurance corporation and the defendants are Lewis J. Somers, individually and as administrator of the estate of Lillian Abair, late of Wallingford, and Mildred F. Ouelette, as administratrix of the estate of Albert Ray Abair, also late of Wallingford. As appears from the prayers for relief contained in its complaint, the plaintiff is seeking damages of the defendant Somers individually and in his representative capacity; a declaratory judgment determining which of the two estates at bar is entitled to the sum of $2000 from it by reason of a group policy and certificate referred to in the complaint; and such other relief as the plaintiff may be found entitled to. The answer of the defendant Somers is one of admissions and denials. So also is the answer of the defendant Ouelette. However, the latter defendant has interposed a counterclaim against the plaintiff seeking damages of it as therein appears. The reply thereto of the plaintiff is largely one of admissions. The case was tried to the court on March 20, 1957. Thereafter, counsel for the parties filed briefs which Page 353 are a credit to their authors. Those briefs and the evidence presented have been carefully examined. Since an appeal to the Supreme Court of Errors appears likely, the court has decided not to attempt a detailed enumeration of facts in this memorandum. In the event of such appeal, all counsel will be given an opportunity to participate in the formulating of a finding of facts by their submitted draft findings.1 It is sufficient to say that the material allegations of fact recited in the plaintiff's complaint and in the counterclaim of the defendant Ouelette are sustainable. One affirmative comment is noted. The decedents Albert Ray Abair and Lillian Abair were in fact husband and wife at the time of the misadventure which cost them their lives. The pleadings do not appear to allege their marital status as a specific fact. At 3:31 on the afternoon of December 26, 1955, a locomotive engine traveling at a speed of sixty-five miles per hour struck an automobile at a railroad crossing in Wallingford. Mr. and Mrs. Abair and two others were in that car. After the engineer brought the locomotive to a stop 2100 feet down the track from the crossing and alighted, he noted the following things: (1) The automobile had been carried on the front of the engine for the stated distance; (2) Mrs. Abair was in the front seat in a reclining position and appeared to him to be dead; and (3) Mr. Abair had apparently been knocked out of the left door alongside of the driving wheel, and parts of his dismembered body were strewn along the track over which the locomotive had traveled after impact but before it was brought to a stop. Page 354 The medical examiner arrived on the scene about a half hour later. The four people who had been occupants of the car were dead beyond all question. He noted in his official certificates that the cause of Mr. Abair's death was "dismemberment of body" and that of Mrs. Abair's was "laceration of scalp." In court he was unable to say whether Mrs. Abair's death was or was not simultaneous with that of her husband. He conceded that an autopsy on Mrs. Abair's body might have disclosed this aspect, but none had been performed. Hence he felt justified in noting in his official certificates relating to the Abairs that the time of death in both instances occurred at the time of the fatal collision given him by the engineer, namely, 3:31 p.m. "The rule is, under insurance contracts, that where the insured and beneficiary die in a common disaster there is no presumption whatsoever as to which survived the other. The burden is cast upon the person desiring to prove that the beneficiary survived the insured to so prove, and, unless that burden is successfully borne, the insurance proceeds are payable to the insured's estate." 2 Appleman, Ins. Law Practice, § 745. "In England and also in the United States, with the exception of those states which have Codes embodying certain presumptions of survivorship, the common-law doctrine applies that where two or more persons perish in the same disaster and there is no fact or circumstance to prove which survived, there is no presumption of survivorship. It is quite generally held that no presumption arises from consideration of age, sex, or physical strength. The case is treated as one to be established by evidence, and the burden of proof is placed on him who claims survivorship, so that, if there is no proof offered by the person bearing the burden of proof, the result Page 355 is his failure to meet a condition precedent to his success." 16 Am. Jur. 33, § 40. The statute having direct application to this case is § 7070(d) of the General Statutes.2 This statute first appeared as § 677g in the 1943 Supplement. It is quoted in paragraph 7 of the plaintiff's complaint and in paragraph 5 of the counterclaim of the defendant Ouelette. Hence quotation again in this memorandum is not required. When applied to the circumstances surrounding the deaths of the Abairs, it seems clear that the proceeds of the insurance policy should have been initially distributed as if Mr. Abair, the insured, had survived Mrs. Lillian Abair, the designated beneficiary. This is because, in the language of the statute, "there is no sufficient evidence that they have died otherwise than simultaneously" on the afternoon of December 26, 1955. Compare the result reached by Judge Murphy inBarcroft v. Cotter, 16 Conn. Sup. 441. It is found that the plaintiff in paying the sum of $2000 under the policy on February 9, 1956, to the defendant Somers as administrator of the estate of Lillian Abair did so under a mistake. See complaint, paragraph 9. "In this State remedy under the doctrine of unjust enrichment is available whether payment was made under mistake of fact or of law." English v. Smith, 123 Conn. 572, 576. Negligence of the plaintiff in making the mistake, if any, is not a sufficient defense to a recovery. This is because the estate of Lillian Abair in receiving payment due to the mistake of the plaintiff is found not to have suffered damage or harm. See controlling principles on this point quoted from other cases in Page 356 Union New Haven Trust Co. v. Thompson,134 Conn. 607, 610. It has been made to appear that the $2000 paid by the plaintiff on February 9, 1956, has been under attachment in the bank account of the estate of Lillian Abair since this suit was commenced. Whenever one person has in his possession money which in equity and good conscience he should not retain from another, the latter may recover it.Johnson v. Mortenson, 110 Conn. 221, 229; Roberti v.Barbieri, 105 Conn. 539, 544. "The doctrine that one who holds money which he ought in equity and good conscience to pay over to another is subject to a legal duty to make such payment, is firmly established."Fairfield v. Southport National Bank, 80 Conn. 92,102. The following disposition is deemed to be appropriate and to fit the case as pleaded and tried, in view of the legal and equitable reliefs sought: (1) It is found that the allegations recited in the plaintiff's complaint are true. (2) It is found that the allegations recited in the counterclaim of the defendant Mildred F. Ouelette, administratrix of the estate of Albert Ray Abair, are true. (3) It is adjudged and decreed as a declaratory judgment that the estate of Albert Ray Abair is entitled to the sum of $2000 by reason of said group policy and certificate issued to said Albert Ray Abair in his lifetime, and not the estate of Lillian Abair, to which the plaintiff made payment by mistake. (4) Damages are awarded the plaintiff against the defendant Lewis J. Somers as administrator of the estate of Lillian Abair, but not against him individually, in the sum of $2000 together with any interest that said sum may have earned while on deposit in the bank account under attachment. (5) Damages are awarded the defendant Mildred F. Ouelette as administratrix of the estate of Albert Ray Abair against the plaintiff in the sum of $2000 with interest *Page 357 at the rate of 6 per cent per annum from April 10, 1956 (date of demand), to date hereof, amounting to approximately $134, totaling $2134. (6) No costs shall be taxed in favor of any of the parties. Judgment may enter as above specified.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3349297/	MEMORANDUM OF DECISION This case presents a petition for the termination of the parental rights of Wendy P. and Justino A., to a four year old child, Michael P. Michael was the product of statutory rape2 by the biological father of the mother when she was thirteen years of age. Despite the mother's sometimes valiant efforts to care for the child while she herself was committed to the Department of Children and Families, a neglect petition was filed on November 18, 1994. Michael was adjudicated neglected on March 22, 1995 and committed to the care of the Department. He has been in foster care since November of 1994. The court finds that the mother and father have appeared and have court appointed attorneys. Mother has had a guardian ad litem appointed for her as she is still a minor. The court has jurisdiction in this matter; there is no pending action affecting CT Page 8894 the custody of Michael in any other court and reasonable efforts have been made to reunite him with his parents. The court having read the verified petitions, the social studies, and the various documents entered into evidence, and having heard the testimony of various witnesses and evaluators, makes the following factual findings: The mother does not contest the termination of her rights. She consented to the termination, after review of the matter with her counsel, and her guardian ad litem and filed a written consent with the court. The court finds her consent to have been voluntarily and knowingly made with the advice and assistance of competent counsel and with a full understanding of the consequences of her act. The petition had been amended with respect to the father to allege abandonment and failure to rehabilitate but retains the original adjudicatory date of April 15, 1997. With Respect to the Child: Michael has some specialized needs. Two years ago, he exhibited signs of delays in cognitive, speech and language skills and some lower intellectual functioning. A PEDAL evaluation was performed at the Connecticut Children's Medical Center, and the psychologist believes that Michael's early history of poor caretaking contributed to these delays. Michael remains in the foster home where he was placed in June of 1995 where he has adjusted well to the home, but continues to have problems listening and following directions. The foster family is working with him around his speech and language delays. His behavior has been hard to control and challenging, but nonetheless his foster family is eager to adopt him. With Respect to the Child's Father: (Justino A.) Approximately two months after Michael's birth, Justino A. was incarcerated after conviction of sexual assault in the first degree, to which he pled guilty under the Alford Doctrine. At the time of his assault on the biological mother, he was thirty-four years old and the husband of one of mother's cousins. He was also the father of four children, issue of his marriage. For his crime, the court imposed a sentence of ten years, execution suspended after five years with a term of probation. He was CT Page 8895 released from prison on July 3, 1997. Justino A. has never seen Michael nor had any contact with him. Due to his incarceration and the facts surrounding the child's conception, no Department expectations were prepared for him. Nonetheless, Justino A. made several requests of the Department for visitation while incarcerated, which were denied due to the mother's objections pending her reunification efforts with Michael. Upon receipt of the denial, he did not request an administrative hearing. The Department did provide him with three administrative case reviews at the Brooklyn Correctional Center, after establishment of his paternity by testing. On June 1, 1997, he sent a letter to his son in care of the Department. He has otherwise never sent cards, gifts or money to his son. His prison counselor, Jennifer Schena, testified that Justino A. never requested any advice as to what steps he could take to make contact with this child. She knows that he made no calls or inquires as to the child's well being or whereabouts. While incarcerated, he did complete five programs relating to his personal rehabilitation (Respondent's Exhibits B (1) through B (5)). When questioned about drug and alcohol programs he has sporadically attended, he was vague and denied any problems with drug or alcohol use. Since his release, the father has found work as a painter and has complied with the conditions of his release. His probation officer testified that he would have concerns if Michael were released to the care of his biological father, who has not yet established a track record in the community. The Department case worker testified about her contacts with the father. She provided him information about the procedures open to him to establish contact with Michael, including writing, speaking with Casey Family Services about Michael's circumstances and taking parenting courses and individualized counseling. With the exception of requesting administrative case reviews, Justino A. did not avail himself of the options that existed. He did not request transfer to another correctional facility to take a parenting course which was unavailable to him at Brooklyn. He also admitted to the case worker that he had been arrested on two occasions in the past for domestic violence against his spouse. Justino A. testified at some length about himself and the steps he had taken to rehabilitate himself. While incarcerated he CT Page 8896 did a lot of soul searching and "needed to take care of himself first." When Michael was involved with the mother, Justino A. considered consenting to termination, explaining that he did not really understand that upon termination he would not be entitled to contact with Michael. He did admit he might not be able to parent Michael at this time, but that he should be given more time. His plan for Michael was vague and included other collateral relatives providing for the child's care, all relatives the child does not know. He believes that it is important to maintain contact with his "blood line". When asked whether Michael was ready to have him as a parent in view of the years the child had spent in foster care and the absence of any contact of knowledge of his biological father, he was unable to answer this crucial question. What this child's needs might be or what his life had been since his placement in foster care when he was a year and a half old were not concerns that Justino A. could fathom. He admitted he did not know much about Michael's specialized needs. The court has previously held that "the incarceration of a parent does not alone constitute abandonment". In re JuvenileAppeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); In re Juvenile Appeal (84-6) 2 Conn. App. 705, 711,483 A.2d 1101 (1984) cert. denied, 195 Conn. 801, 487 A.2d 564 (1985). "The restrictions on movement that are inherent to incarceration, however, do not excuse a failure to make use of available, albeit limited, resources for communication with one's children." In re Juvenile Appeal (Docket No. 10155), supra In ReShannon S., 41 Conn. Sup. 145, 153, 562 A.2d 79 (1989). However difficult, some of the obligations of parenthood can be pursued, even from prison. "The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; . . ." In re Juvenile Appeal (Docket 9489), 183 Conn. 11,15, 438 A.2d 801 (1981) quoting In re Adoption of Webb, 14 Wash. App. 651,657, 544 P.2d 130 (1975). This court finds by clear and convincing evidence that the father took no concerted action to establish a relationship with Michael; he did not communicate with him, he did not provide guidance, he did not express concern. The efforts which did occur were late and ineffectual. While he remains proud of the many courses he has completed while incarcerated, such courses concern his personal rehabilitation CT Page 8897 only. They have not provided him with any insight about the consequences of his failure to communicate or relate to his son. Michael has no relationship with him, nor he with Michael. The mere fact the Michael shares his biological father's "blood line" is not an adequate bond upon which to predicate a caring and nurturing relationship, which this child, as indeed do all children, needs. Justino A.'s conduct in causing the conception of this child exhibits his basic lack of understanding of adult human relationships and the vulnerability of adolescent children. The court holds that Justina A. has, by his conduct, effectively abandoned the child within the contemplation of Connecticut General Statutes § 17a-112(c)(3)(A). Further, this child has been adjudicated neglected and the father has failed to achieve such a degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. Connecticut General Statutes § 17a-112(c)(3)(B). Rehabilitation, as used in the statute, refers to the restoration of an individual to a constructive and useful role as a parent.In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532 (1986). The ultimate question is whether the parent at the time of the filing of the termination petition is more able to resume the responsibilities of parenting than he was at the time of the commitment. In re Michael M., 29 Conn. App. 112, 126,614 A.2d 832 (1992). The court must also consider whether the age and needs of the child support the allowance of additional time for the parent to rehabilitate. In re Luis C., 210 Conn. 157, 167-68,554 A.2d 722 (1989). In this case, Justino A. has made only minimal efforts to rehabilitate himself as a parent. His lack of insight into Michael's needs and requirements make future rehabilitation unlikely at best. From the child's perspective, it is too little and too late. Michael's years with his foster parents and specialized care needs do not support keeping him in a parenting limbo any longer. Adjudication With regard to the statutory grounds for termination of parental rights of the father, the court finds by clear and convincing evidence that he has failed to support this child or manifest any reasonable parental interest, whatsoever, and has abandoned him as that term is defined in Connecticut General Statutes § 17a-112(c)(3)(A). Further, this child has been CT Page 8898 adjudicated neglected and the father has failed to achieve such a degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. Connecticut General Statutes § 17a-112(c)(3)(B). The court makes the following factual findings required by § 17a-112(e): 1) Appropriate and timely services were provided by the Department of Children and Families, including counseling, transportation assistance, and visitation coordination. In the father's case, such direct services have included administrative case reviews. 2) The court finds by clear and convincing evidence that the Department of Children and Families made reasonable efforts to reunify the family, given the situation and circumstances, as far as possible. The court finds in this proceeding that the father, due to his incarceration and other circumstances relating to the child, was unable to have visitation and did not avail himself of such opportunities as he could have to maintain reasonable contact with the child. 3) The Department, with the approval of the Court, set reasonable and realistic expectations and service agreements in order to reunify the family. None were set for the biological father due to his incarceration and the nature of his crime. 4) The child has strong emotional ties with the foster family who have provided the physical, emotional and educational support this child needs. The child has no emotional ties to the biological father. 5) Finding regarding the age of the child. Michael is four years and four months old. 6) Finding regarding efforts of the parents to adjust their circumstances, conduct or conditions etc. The father has not made realistic and sustained efforts to conform his conduct to acceptable parental standards. While the father has been incarcerated he has, to his credit, completed various programs offered for his personal rehabilitation. Those efforts did not relate to Michael or his needs. His failure to establish a relationship with his child has displaced him as a possible CT Page 8899 parental figure. Giving him additional time would not likely bring his performance, as a parent, within acceptable standards sufficient to make it in the best interests of the child to be reunited with his biological father. 7) Finding regarding the prevention of the parents from having a meaningful relationship, etc. The criminal behavior of the father which resulted in the conception of this child also resulted in his arrest and period of incarceration. The Department has attempted to encourage appropriate contact under such circumstances. No unreasonable conduct is noted. DISPOSITION The court finds that these grounds and circumstances have existed over an extended period of time which is greater than one year prior to the filing of the termination petition. The court finds, based upon the testimony and evidence presented, that it is in Michael's best interest to terminate the parental rights of Wendy R. and Justino A. This finding is made after considering this child's specialized needs, the length of time he has been separated from his family of origin, his need for a secure and permanent environment, the relationship that he has with his foster parents, and the totality of circumstances surrounding his short but turbulent life. Based upon the foregoing findings, the court determines that it is in Michael's best interest for a termination of parental rights to enter with respect to the biological parents, Wendy P. and Justino A. and it is hereby, ORDERED that the parental rights of Wendy P. and Justino A. are terminated. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent. If the foster parents continue to be willing to adopt Michael, it is the court's direction that they receive first consideration. A permanency plan for Michael shall be submitted within 90 days. A review plan for him shall be filed in accordance with state and federal law. Barbara M. Quinn, Judge Child Protection Session	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3349298/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Date of Sentence April 5, 1994 Date of Application April 7, 1994 Date Application Filed April 11, 1994 Date of Decision November 22, 1994 Application for review of sentence imposed by the Superior Court, Judicial District of New London at New London. Docket #CR-210623. Peter Scillieri, Esq., For the Petitioner. Michael Regan, Esq., For the state. BY THE DIVISION The petitioner pled guilty under the Alford Doctrine to Assault First in violation of Conn. Gen. Stat. § 53a-59(a)(1). The petitioner was sentenced to twenty years execution suspended after serving ten years with three years probation. The record shows that the petitioner assaulted the victim so seriously that it caused unconsciousness, a bruise to the brain and hemorrhaging. As a result of the assault the victim suffered permanent brain damage. The victim also showed signs of being choked by the petitioner. CT Page 12971 Counsel for the petitioner informed the panel that the petitioner lived with the victim and her two children. He admitted that the couple had a history of domestic violence with each other but this particular injury was an "enormous' eruption of a different magnitude." To counsel the petitioner was a successful member of society and the sentence imposed was exacerbated by the fact the petitioner left the victim injured in their apartment and went to work in the morning. Counsel felt that the petitioner did not know or understand the extent of the victims injuries. The panel was informed that the victim still wants to keep her relationship with the petitioner and that she has fully recovered from her injuries. Counsel asked the panel to reduce the sentence by "some degree." The petitioner when he addressed the panel stated he was a non-violent person and that it was out of character to inflict the injuries on the victim. He admitted doing wrong and noted that he still loved the victim. The state noted that there was a history of past domestic abuse by the petitioner with this woman. The state felt that the petitioner was very lucky that he wasn't facing a homicide charge and stressed that the victim did receive permanent brain damage. Counsel felt that the sentencing judge took into consideration the work history of the petitioner and gave him less time. Based upon the seriousness of the offense the state wanted this panel to increase the petitioner's sentence to twelve years to serve. In reviewing the trial court's sentence in accordance with Practice Book 942 this panel finds the sentence imposed neither inappropriate nor disproportionate. THE SENTENCE IS AFFIRMED. Norko, J. Klaczak, J. Stanley, J. CT Page 12972 Norko, J., Klaczak, J., and Stanley, J., participated in this decision.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2982825/	NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 15a0215n.06 Case Nos. 13-5772/5864 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 17, 2015 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee/Cross-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF CARL MOORE, ) TENNESSEE ) Defendant-Appellant/Cross-Appellee. ) ) ) Before: SILER, CLAY, and GIBBONS, Circuit Judges. SILER, Circuit Judge. This case concerns whether testimony about a defendant’s religious habits constitutes character evidence and whether a procedurally defective state conviction may serve as a predicate felony for a federal felon-in-possession firearm conviction. A federal jury found Carl Moore guilty of (1) possessing a firearm as a convicted felon, 18 U.S.C. § 922(g)(1); (2) possessing with intent to distribute marijuana, 21 U.S.C. § 841(a)(1); and (3) possessing a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A). After trial, the district court acquitted Moore on the felon-in-possession count because it determined that Moore’s predicate state felony conviction for aggravated burglary was void. The government appeals this decision. Moore also appeals, arguing that the district court erred when it held that his grandmother’s testimony concerning his prayer habits constituted character evidence that opened the door to impeachment. Moore also claims the district court Case Nos. 13-5772/5864, United States v. Moore misinterpreted USSG § 4A1.2(a) and rendered a procedurally unreasonable sentence. For the following reasons, we AFFIRM the district court’s evidentiary rulings, REVERSE its acquittal of the felon-in-possession charge, and REMAND for resentencing. I. In October 2011, Moore appeared in Tennessee criminal court to plead guilty to aggravated burglary, a Class C felony, in addition to three misdemeanors. See Tenn. Code Ann. 39-14-403. The parties had negotiated a three-year sentence: eleven months and 29 days imprisonment (with credit for time served in custody), followed by supervised probation. At the plea colloquy, the state court described the nature of the charges, the factual basis for those charges, the bargained-for sentences, and the legal rights Moore was relinquishing by pleading guilty. The state court specifically warned Moore that his convictions could be used to increase his punishment for future offenses. Moore said he understood the court’s explanations. The state court “accept[ed] [Moore’s] pleas,” explicitly found him guilty of the misdemeanor charges, and announced the sentence for those charges—they were to be served concurrently with each other and consecutive to the aggravated burglary charge. But the court did not explicitly pronounce Moore guilty of the aggravated burglary charge or announce the sentence for that charge. Furthermore, although the court’s written judgment acknowledged that Moore had been indicted for aggravated burglary, a Class C felony, it mistakenly labeled the offense of conviction as a Class C misdemeanor. The state court later amended its judgment to reflect that Moore had, in fact, been convicted of the same Class C felony with which he had been charged. In December 2011, two Chattanooga police officers stopped a car Moore was driving and noticed a handgun under the driver’s seat. Moore fled on foot, dropped a baggie that contained -2- Case Nos. 13-5772/5864, United States v. Moore marijuana, and then surrendered. This incident led to federal charges that culminated in the jury trial that underlies this opinion. Before trial, Moore moved to dismiss the indictment for being a felon in possession of a firearm on the ground that the predicate conviction—his October 2011 Tennessee aggravated burglary conviction—was void because he had never been properly adjudicated guilty or sentenced. The district court deferred its ruling until after trial. Next, in August 2012, Moore filed a speedy trial motion in state court claiming that the state court had not yet accepted his guilty plea to aggravated burglary, found him guilty, or properly sentenced him. The state court denied the motion, and characterized its failure to announce the sentence as “inadvertence.” The court explained that its adoption of the written plea agreement, including its undisputed terms, was implicit in the court’s acceptance of the pleas. The court also issued a corrected judgment that specified his conviction was for a felony. At Moore’s federal trial for drug and firearm offenses, defense counsel called Moore’s grandmother as a witness. She testified that Moore lived with her in December 2011. She testified she had never seen Moore with a gun. She said she disliked guns, and her motto was “God is my gun.” In response to a question about what happened the day Moore was arrested, his grandmother said a female friend was visiting, and that she and Moore left to take the friend home. She said that before they left, she and Moore prayed together, because they “always pray” before they leave the house and before he gets out of the car. On cross-examination, the prosecutor asked Moore’s grandmother whether she had raised him from infancy. She replied that she had “raised him in church,” and said she had taught him about guns and taught him to do right. She said she believed Moore respected her and followed her teachings. -3- Case Nos. 13-5772/5864, United States v. Moore The government then obtained the court’s permission to impeach the grandmother’s testimony under the theory that her description of Moore’s Christian upbringing constituted character evidence that opened the door to evidence of his prior bad acts. The government asked Moore’s grandmother if she knew he had been convicted of crimes. She initially said, “what crime,” and reiterated that she had taught Moore “what was right and what was wrong.” When the government asked her if she knew Moore was convicted of “carrying a weapon in 2005,” defense counsel objected. The district court held a hearing outside the presence of the jury, and ultimately overruled the objection: Well, her testimony strayed into character evidence. She testified that they prayed . . . . I think she said every time he would leave the house they would . . . pray, and that she taught him right from wrong . . . . And I think the reasonable implication from that is that he’s a good person, he’s a law-abiding person. That is character evidence. .... So to the extent that the government has a basis to ask questions regarding incidents in the defendant’s life that this witness would have known about that would contradict her implication that the defendant is a person of good character, I think it’s permitted by the rules. After the jury returned, the government asked the grandmother whether she had heard about Moore’s prior convictions for possessing a weapon, possessing drugs, committing aggravated burglary, and resisting arrest. The grandmother admitted that she had heard of some prior convictions and that he had been involved with a gang. But on redirect she claimed Moore’s behavior had improved: he “went to church” with her, prayed with her, and stayed home or spent time with his girlfriend rather than “run the street,” like he used to do. Moore also testified and briefly described the facts underlying two prior weapons charges to which he had pleaded guilty. The district court ultimately gave the jury a limiting instruction on the proper use of the prior acts evidence, and the jury found Moore guilty on all three counts. -4- Case Nos. 13-5772/5864, United States v. Moore After trial, the district court granted Moore’s motion for a judgment of acquittal concerning the § 922(g)(1) predicate conviction. First, the court found the state court’s judgment inconsistent with the transcript of the plea colloquy, and relied on the transcript. The court ruled that, based on the transcript, the state court had failed to adjudicate Moore guilty of aggravated burglary or orally impose the sentence in his presence, as required by the Tennessee Rules of Criminal Procedure. The district court concluded that the state court’s error meant that Moore was not “convicted.” The court then sentenced Moore to 70 months’ imprisonment on the remaining two counts. II. We review challenges to a district court’s evidentiary rulings under the abuse-of- discretion standard. United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003). Determining whether testimony constitutes character evidence depends on “numerous and subtle considerations, difficult to detect or appraise from a cold record,” so “rarely and only on [a] clear showing of prejudicial abuse of discretion” do we reverse trial courts on this subject. Michelson v. United States, 335 U.S. 469, 480 (1948). On an appeal from a post-verdict judgment of acquittal under Rule 29, we must determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. United States v. Baggett, 251 F.3d 1087, 1095 (6th Cir. 2001). III. Moore argues that his grandmother’s testimony did not include character evidence, so the district court erred by authorizing impeachment evidence. Under Fed. R. Evid. 404(a)(2)(A), “a defendant may offer evidence of the defendant’s pertinent [character] trait, and if the evidence is -5- Case Nos. 13-5772/5864, United States v. Moore admitted, the prosecutor may offer evidence to rebut it.” Moore claims that habitual prayer is not a character trait or something that would imply he is a law-abiding citizen. He cites Mein Kampf for the proposition that “almost everybody prays,” even “very bad people,” including Adolf Hitler. People commonly perceive a person’s demonstrable routine of religious activity—such as daily prayer or regular church attendance—to be evidence of the person’s good moral character and law-abiding tendencies. See, e.g., Franklin v. Lynaugh, 487 U.S. 164, 186 (1988) (acknowledging that “religious devotion” reveals “positive character traits”); United States v. Thompson, 130 F.3d 676, 682 n.4 (5th Cir. 1997) (describing testimony by family members that a defendant was “a good man” and “went to church” as character evidence); see also 28 C. Wright, V. Gold, & M. Graham, FEDERAL PRACTICE & PROCEDURE § 6152, at 309-10 (1993) (noting, in a different context, that “many people presume a strong connection between religious belief and moral character”). In this respect, we think this case is comparable to McDowell v. State, 318 P.3d 352 (Wyo. 2014). In that recent child sex abuse case, a defense witness described the defendant’s interactions with her children and explained that she had no problem with McDowell and the children being together. The Wyoming Supreme Court held that this factual testimony was character evidence. The factual testimony created an “inference of good character” which was not merely “incidental” because “there was no other relevant purpose” for much of that testimony. 318 P.3d at 358. The court quoted a prominent evidence treatise to explain that although describing a person’s acts is not necessarily the same thing as giving character evidence, “broad generalizations” that summarize a person’s behavior can equate to character evidence: -6- Case Nos. 13-5772/5864, United States v. Moore Thus it should be perfectly acceptable, for instance, to prove that the defendant is peaceful or nonviolent by testimony that he “never hurt anybody during all the time I’ve known him,” or to prove she is honest by means of testimony that she “always tells the truth,” and to show his law-abiding character by proof that “As far as I know, he was never arrested or charged with a crime.” A purist might argue that these phrases reflect acts and not traits, but it is pointless to require witnesses to conform their testimony to some ideal level of abstraction when phrases alluding in these broad ways to behavior are common currency in ordinary expression, and when they so obviously refer directly to character and effectively communicate the same meaning that the abstractions would express. Id. at 359-60 (quoting 1 Mueller & Kirkpatrick, Federal Evidence § 4:23 (4th ed. 2013)). Because (1) a witness can imply that a defendant has good character by describing the defendant’s activities, and because (2) routine religious activity is perceived as a positive character trait, it was not an abuse of discretion for the trial court to conclude that when the grandmother described Moore’s religious upbringing and prayer habits, she intended to suggest that Moore had a law-abiding character. Although Moore called his grandmother as a fact witness to provide background information on the day of his arrest, the district court reasonably determined that she “went much further” than that and “strayed into character evidence.” Even if the district court erred when it classified the grandmother’s testimony as character evidence or when it permitted impeachment using Moore’s prior bad acts, the error would have been harmless. Because Moore was charged with being a felon in possession of a firearm, the jury knew of his prior difficulty with the law. Given these facts, Moore’s decision to testify can hardly be seen as a response to the cross-examination of his grandmother. In any event, the test for non-constitutional harmless error is whether the verdict was “substantially swayed by the error,” United States v. Hardy, 643 F.3d 143, 153 (6th Cir. 2011) (internal quotation marks omitted), not whether Moore would have declined to testify had the evidence been excluded. -7- Case Nos. 13-5772/5864, United States v. Moore In assessing whether this harmless error test was met, we observe that the court instructed the jury that the evidence could be considered only as evidence of the grandmother’s credibility. And, given the other evidence of Moore’s prior difficulties with the law, it seems highly unlikely that the evidence of the grandmother’s awareness of prior criminal activity had any effect on the jury’s decision. IV. The next question is whether the district court correctly granted Moore a judgment of acquittal for his felon-in-possession charge on the basis that the predicate felony conviction was void under Tennessee law. Under the federal statute in question, 18 U.S.C. § 922(g)(1), it is unlawful for any person “who has been convicted” of “a crime punishable by imprisonment for a term exceeding one year” to possess “any firearm or ammunition.” To determine what constitutes a conviction for purposes of 18 U.S.C. § 922(g), we must consult the law of the state in which the conviction occurred. United States v. Penney, 576 F.3d 297, 303 (6th Cir. 2009). Tennessee Rule of Criminal Procedure 32 describes the procedure for sentencing a defendant in Tennessee. “After a verdict or plea of guilty, the court shall set the sentence.” Tenn. R. Crim. P. 32(b). Then, a “judgment of conviction shall be signed by the judge and entered by the clerk.” Tenn. R. Crim. P. 32(e)(1). Under Rule 32(e)(2), “[a] judgment of conviction shall include: (A) the plea; (B) the verdict or findings; and (C) the adjudication and sentence.” Rule 43(a)(3) also establishes that a defendant “shall be present at . . . the imposition of sentence.” Moore’s sentence contained two irregularities. First, there was a clerical error on the judgment form. Second, the court failed to pronounce him guilty of the predicate felony or announce the sentence in his presence. -8- Case Nos. 13-5772/5864, United States v. Moore First, the original judgment of conviction contained an error. Although Moore pleaded guilty to a Class C felony, one check-box on the judgment form indicated that his sentence was for a Class C misdemeanor. Moore’s multi-year sentence could not possibly be a legal sentence for a misdemeanor. But such errors can be easily corrected by Tennessee trial courts. Under state rules: Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by the applicable statutes or that directly contravenes an applicable statute. .... If the illegal sentence was entered pursuant to a plea agreement, the court shall determine whether the illegal provision was a material component of the plea agreement. . . . [I]f the court finds that the illegal provision was not a material component of the plea agreement, then the court shall enter an amended uniform judgment document setting forth the correct sentence. Tenn. R. Crim. P. 36.1(a), (b)(3)–(4); see also Cantrell v. Easterling, 346 S.W.3d 445, 453 (Tenn. 2011) (“[A] trial court has the authority to correct an illegal sentence at any time.”). The state court corrected Moore’s October 2011 judgment in July 2012. Under these circumstances, we conclude that the now-corrected error on Moore’s judgment of conviction does not negate his predicate conviction. See Maldonado v. State, No. W2012-00808-CCA-MR- 3H, 2013 WL 654173, at 2 (Tenn. Crim. App. Feb. 19, 2013) (explaining that clerical errors have “no effect on the validity” of a conviction or sentence). Second, the district court believed Moore’s predicate conviction was void because, although he was present at the plea colloquy where his sentence was discussed, Moore did not personally hear the court pronounce a judgment or sentence on that charge. We disagree with this conclusion. -9- Case Nos. 13-5772/5864, United States v. Moore After Moore was indicted on the federal charges, he filed a motion for a speedy sentencing hearing in state court. That motion was premised on the fact that the trial court, in ostensibly accepting his guilty plea, failed to pronounce him guilty of the aggravated burglary charge or announce his sentence under that charge. In its order denying Moore’s motion, the state court found that while it “did explicitly accept all his pleas,” it “did not explicitly find him guilty or sentence him” for the aggravated burglary charge. The court found that its “failure at the plea hearing to pronounce [Moore’s] guilt and sentence was an inadvertence” that did not necessitate reopening the case under speedy trial rules. Instead, the court reasoned that when it explicitly accepted Moore’s plea bargain, it implicitly found him guilty of aggravated burglary and implicitly adopted the undisputed sentencing terms contained in the plea agreement—a sentence that Moore served. In fact, Moore remained on supervised probation for the aggravated burglary conviction at the time of his arrest in this case. Furthermore, recent Tennessee case law suggests that a violation of the right to be present at sentencing renders the judgment merely “voidable, not void.” Bennett v. Lewis, No. E2006- 01592-CCA-R3-HC, 2007 WL 416376, at 2 (Tenn. Ct. App. Jan. 30, 2007) (“[W]hether the trial court followed the proper statutory procedure in conducting the sentencing hearing . . . is not an issue that would render the judgment void.”), appeal denied (Tenn. June 18, 2007); see also Taylor v. State, 995 S.W.2d 78, 83-84 (Tenn. 1999) (distinguishing voidable judgments, which are facially valid, from void judgments, which demonstrate from the face of the judgment that the court lacked authority to render judgment). We are aware that in State v. Hill, 987 S.W.2d 867, 871 n.4 (Tenn. Crim. App. 1998), a Tennessee appellate court found that the absence of the defendant at his sentencing hearing - 10 - Case Nos. 13-5772/5864, United States v. Moore divested the sentencing court of jurisdiction. In this case, however, Moore was present at the plea colloquy where his sentence was discussed and where the trial court explicitly accepted his plea agreement, which contained his bargained-for sentence. This situation is not analogous to Hill, where the defendant was unable to hear or challenge the law and facts underlying his sentence. Nor does the law require courts to use “talismanic language” in guilty plea proceedings. Lane v. State, 316 S.W.3d 555, 566 (Tenn. 2010) (quoting Stewart v. Peters, 958 F.2d 1379, 1384 (7th Cir. 1992)). Moore knew he was pleading guilty and he knew the terms of his bargained-for sentence. The trial court’s failure to pronounce the words, “I find you guilty,” or to announce the specific sentence in Moore’s presence do not render his conviction a nullity for purposes of a federal firearm disability. Moore also challenges the district court’s use of his aggravated burglary conviction as a “prior sentence” under section 4A1.2 of the Sentencing Guidelines. Our decision to recognize the validity of that conviction renders his argument moot. V. We AFFIRM Moore’s convictions under 18 U.S.C. §§ 841(a)(1) and 924(c)(1)(A), but we REVERSE the district court’s judgment of acquittal on the § 922(g)(1) felon-in-possession charge and REMAND for resentencing on all three charges. - 11 -	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1863489/	689 So. 2d 865 (1996) WHITETAIL DEVELOPMENT CORPORATION, INC. v. Barney C. NICKELSON and Christy B. Nickelson. 2950504. Court of Civil Appeals of Alabama. September 13, 1996. Rehearing Denied October 18, 1996. Certiorari Denied January 24, 1997. 866 David H. Meginniss and Ralph W. Hornsby of Hornsby, Watson & Meginniss, Huntsville, for Appellant. Robert J. Landry and Stuart M. Maples of Johnston, Johnston & Moore, Huntsville, for Appellees. Alabama Supreme Court 1960165. YATES, Judge. On September 20, 1991, Whitetail Development Corporation, Inc. ("Whitetail"), entered into a contract with Barney C. Nickelson and Christy B. Nickelson to resolve a dispute over an option held by Whitetail on 690 acres of real estate owned by the Nickelsons. Under the terms of the contract, Whitetail released its option in exchange for the Nickelsons' promise to pay $225,000 in the event they sold the property or took tangible steps towards its development within one year of the contract's execution. Specifically, the contract stated: "2. In the event Nickelson consummates a sale of the property covered by the Option Agreement described above to Don Schmidt,[1] or to any corporation, partnership, limited partnership, or joint venture or the like of which Schmidt is a member, sole owner, or part owner, or to any individual, corporation, partnership, limited partnership or joint venture, or the like, which is affiliated with Schmidt in any substantial way, or referred to Nickelson by Schmidt, or if within one year from the date of execution of this agreement, Nickelson undertakes or enters into any venture that undertakes, any tangible steps towards development of the subject property as or in a golf course or a residential or commercial golf-related community (`Tangible steps' is intended to be construed broadly, and to include but not be limited to the execution of any document reflecting any conveyance or encumbrance of or other agreement concerning the subject property or effecting any physical change in the subject property; `Tangible steps' is not intended, however, to include any good faith conveyance which is involuntarily made or made merely to satisfy creditors, or any sale by public auction), then, in that event, the following shall occur: "(a) Nickelson shall pay the sum of $225,000.00, upon closing of any transaction as described in paragraph 2 above, said sum to be made payable to [Whitetail's attorney] for Whitetail Development Corporation, Inc." Although Schmidt did not purchase the 690 acres, in the year following the execution of the contract the Nickelsons and several people they brought in as partners pursued some development of the property as a residential golf course community. They hired accountants to forecast the cash receipts and disbursements of the development, a consultant to perform a market feasibility analysis, a landscape architect to plan the development's landscaping, a golf course designer, and surveyors and engineers. Additionally, they cleared trees and vegetation from some of the land, cut the center path of the golf course, and took 268 reservations from prospective purchasers, each of whom had given $1,000 to reserve a lot. The Nickelsons later abandoned their plan to fully develop the land. In 1993, Whitetail sued the Nickelsons, alleging that their failure to pay the $225,000 constituted a breach of the settlement agreement. Whitetail sought damages in the amount of $225,000, plus interest, and requested an attorney fee. Both Whitetail and the Nickelsons moved for a summary judgment. 867 The court entered a summary judgment in favor of the Nickelsons; Whitetail appeals. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. When the terms of a contract are unambiguous, the construction of that contract and its legal effect are questions of law for the trial court and, if appropriate, may be decided by summary judgment. Dill v. Blakeney, 568 So. 2d 774 (Ala.1990); McDonald v. United States Die Casting & Dev. Co., 585 So. 2d 853 (Ala.1991); J. Paul Jones Hosp. v. Jackson, Coker & Assocs., Inc., 491 So. 2d 972 (Ala.Civ.App.1986). When the terms of a contract are ambiguous in any way, however, the determination of the true meaning of that contract is a question of fact for the finder of fact. Dill, supra; McDonald, supra; J. Paul Jones Hosp., supra. Ambiguity in a contract precludes the trial court from entering a summary judgment. Id., 491 So.2d at 974. Ambiguity exists when a term is reasonably susceptible to more than one interpretation. Cannon v. State Farm Mut. Auto. Ins. Co., 590 So. 2d 191 (Ala.1991). "All the provisions of a contract must be construed together so as to give harmonious operation to each of them, so far as their language will reasonably permit." City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So. 2d 917, 924 (1968). In its order, the court stated that the Nickelsons had not taken tangible steps toward the development of the property because, it said: "[n]o financing [had] been obtained; no earth [had] been moved; no construction [had] commenced; no residential building lots [had] been sold; and no real estate closings [had] occurred as contemplated by the agreement." The Nickelsons, in support of their motion for a summary judgment and in their brief on appeal, however, basically concede that they had taken tangible steps toward development of the property. On appeal, the Nickelsons also argue that the case rests upon the fundamental question of the meaning of the term "closing," as used in paragraph two of the settlement agreement. We also note that, although the court's order appears to rest upon the issue of whether the Nickelsons had taken tangible steps, a memorandum attached to the order by the trial court focuses upon the meaning of the term "closing." We, therefore, view that inquiry as determinative in this case. Whitetail argues that "closing" should be interpreted in a manner reflecting the expansive definition given to the term "tangible steps." The Nickelsons argue that "closing" should be interpreted narrowly to mean a real estate closing. In the memorandum attached to its order, the court adopted the Nickelsons' interpretation, stating: "The [settlement agreement] appears to have involved the sale of real estate, and it would seem illogical to construe the term `closing' in a non-real estate context based upon the facts of this case." We disagree. The second paragraph of the settlement agreement necessarily contemplates transactions other than those strictly limited to real estate closings. If this were not the case, then the second paragraph would not include such a broad reference to "tangible steps towards development." Development could reasonably include not only foreseeable transfers of title and legal rights of possession but also physical changes in the subject property and steps taken to that end. The term "closing," as used in this contract, is susceptible to more than one reasonable interpretation and is, therefore, ambiguous. Accordingly, the trial court was precluded from entering a summary judgment. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. ROBERTSON, P.J., and CRAWLEY, J., concur. NOTES [1] Just before Whitetail and the Nickelsons executed the settlement agreement, Schmidt had expressed his desire to purchase the property. After the parties had entered into the settlement agreement, Schmidt declined to purchase the subject property.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615014/	174 Ariz. 146 (1993) 847 P.2d 1093 In the Matter of a Member of the State Bar of Arizona, Jack LEVINE, Respondent. No. SB-91-0028-D. Supreme Court of Arizona, En Banc. February 18, 1993. 148 Meyer, Hendricks, Victor, Osborn & Maledon, P.A. by Bruce E. Meyerson and Mark Andrew Fuller, Phoenix, for respondent. Peter M. Jarosz, Bar Counsel, Phoenix, for State Bar of Ariz. 149 OPINION EINO M. JACOBSON, Court of Appeals Judge. The Disciplinary Commission of the Supreme Court has recommended that Jack Levine (respondent) be suspended from the practice of law for a period of three years. Respondent filed a timely appeal from the commission's recommendation. We have jurisdiction pursuant to Rule 53(e), Rules of the Arizona Supreme Court. PROCEDURAL BACKGROUND On December 15, 1989, the state bar filed a formal complaint against respondent, charging him with violating the Rules of Professional Conduct, Rule 42, Rules of the Arizona Supreme Court (Rule 42), as well as the Code of Professional Responsibility, former Rule 29, Rules of the Arizona Supreme Court (former Rule 29).[1] The bar complaint alleged fourteen counts of unethical conduct arising from numerous lawsuits that respondent instituted and maintained, either personally or on behalf of a client, against his former law partner and others. The primary allegation of misconduct[2] in the bar complaint was that respondent's participation in such suits was frivolous, without a good faith basis to extend, modify, or reverse existing law, and was without substantial purpose other than to embarrass, delay, or burden third persons, in violation of Rule 42, E.R. 3.1 and 4.4. Respondent filed a timely answer. Hearings in this matter commenced on April 30, 1990, before Hearing Committee 6H (committee). The evidentiary hearing continued for seven days, during which 158 exhibits were admitted, totaling over 6000 pages. The hearing transcripts consumed almost 2000 pages, with the appellate briefs in this court adding another 100 pages. The volume of this disciplinary record is unparalleled in the recent history of this court. On September 19, 1990, the committee issued its report, finding that clear and convincing evidence supported the allegations in counts 1 through 10 and 14, and dismissing the remaining counts. Finding both mitigating and aggravating factors, the committee recommended that respondent be suspended from the practice of law for a period of three years, that he be ordered to make restitution by paying all awards of fees and sanctions assessed against him personally arising from the unethical conduct, and that he be assessed costs of the proceedings. The commission heard the matter on February 9, 1991, and issued its report on March 29, 1991. The commission generally adopted the committee's findings of fact and conclusions of law, subject to several additions, deletions, and comments, and adopted the committee's recommendation that respondent be suspended for a period of three years. Two members of the commission, although agreeing with the committee findings, opposed the recommended sanction of a three year suspension as "too lengthy a term of suspension in light of the likelihood that Respondent will not re-engage in similar conduct." Respondent timely appealed. DISCUSSION I. Standard of Review In reviewing disciplinary proceedings from the committee and the commission, this court is guided by several well-established principles: first, we are an independent trier of both fact and law; second, we give great deference to the reports 150 of the committee and commission, but before we impose discipline, we must be persuaded that the alleged ethical violations are supported by clear and convincing evidence; and third, we have the ultimate responsibility for imposing the appropriate sanctions. In re Lincoln, 165 Ariz. 233, 235-36, 798 P.2d 371, 373-74 (1990). II. History of Litigations The testimony and evidence in this matter, in the words of the committee, "recounted a near decade long saga which arose from the breakup of the law firm of Levine & Harris [, P.C.]," and "[t]he fourteen-count Complaint relates to [that] one underlying fact situation and the Respondent's reaction to that situation." The commission noted the "unusual character" of the situation giving rise to the multiple counts of the bar complaint, and recognized that "cases like this one do not fit within `cubby holes.'" We agree with these characterizations. Because of the complexity of the facts and evidence presented in regard to the individual counts, we first discuss respondent's conduct by recounting a history of the individual litigations in a chronological context, so far as possible. A. The Levine and Harris Litigation: Count 10 Respondent and John D. Harris practiced law together for about seventeen months, from April 1980 until August 1981. After they dissolved their practice, disputes arose between respondent and Harris regarding the division of the assets of the firm, including clients' contingency fees in pending cases. Those disputes were ultimately resolved in binding arbitration by an award issued on February 10, 1983. Respondent challenged the arbitration award in a series of legal actions. The arbitration award was ultimately confirmed in superior court and affirmed by the court of appeals. Respondent also filed a bar complaint against Harris and his new partner, Anthony Palumbo. After investigation, bar staff concluded that Harris and Palumbo had not violated any ethical rules, and respondent's complaint was dismissed on April 22, 1983. Based on the same dispute that was a subject of the arbitration, respondent filed suit in superior court on April 25, 1983, on behalf of his corporate entity, Jack Levine, P.C., against Harris and Palumbo, individually and as a law firm. In addition, respondent named himself and his wife as defendants. Respondent alleged tortious interference with contractual relations, misappropriation of the professional corporation's monies, conversion, and breach of contract. In April 1984, respondent settled the suit against himself by agreeing to abide by the arbitration agreement. The remainder of the suit ultimately was resolved in favor of Harris and Palumbo, and the superior court awarded Harris attorney's fees of $150,000 under authority of A.R.S. § 12-341.01(C), A.R.S. § 12-349, and Rule 11, Arizona Rules of Civil Procedure, after finding the suits groundless, without substantial justification, and prosecuted in bad faith. Levine's institution and maintenance of the 1983 consolidated suits against Harris and Palumbo, on behalf of Jack Levine, P.C.,[3] formed the basis of amended count 10 of the bar complaint. Levine's refiling of an action for declaratory judgment that Harris not receive any fees from another litigation involving Anthony Abril, discussed below, was also alleged in count 10. B. Abril v. Harris Litigation: Counts 1-4 On June 1, 1981, Anthony Abril, Jr., retained the firm of Levine & Harris, P.C., to represent him in a bad faith suit against Globe American Insurance Company (Globe). This suit was based on Globe's refusal to settle a personal injury action against Abril that had resulted in an excess judgment of $95,000 in favor of Gregory Johnson, a pedestrian who had been injured in a hit-and-run accident in which Abril was the driver. 151 In November 1981, after the firm of Levine & Harris dissolved, Abril chose Harris and his new firm, Harris & Palumbo, to continue the litigation. In 1984 Harris succeeded in obtaining a judgment of $1,300,000 in Abril's favor against Globe. In January 1985, Globe appealed from that judgment. On April 9, 1985, Abril fired Harris and his new firm and retained respondent to represent him. Respondent successfully moved to strike an appellate brief that Harris and his associates had filed in the court of appeals, and substituted his own brief on Abril's behalf. After oral argument in the court of appeals, in which respondent participated, the court of appeals reversed the punitive damages portion of Abril's judgment of $1,000,000, but affirmed the compensatory damages portion of $300,000. Abril v. Globe American Cas. Co., 1 CA-CIV 8172, Ariz. App. mem. dec. filed Aug. 15, 1986. Respondent then filed a petition for review in this court, which was denied. Before filing the bad faith suit, Harris had unsuccessfully attempted to assign Abril's bad faith claim to Johnson. After this failed, on July 6, 1981, Harris entered into an agreement, allegedly without Abril's knowledge, with William Piatt, Johnson's counsel in the personal injury case. Under this agreement, Piatt would attempt to increase his contingency fee from Johnson from 33% to 50%, and for any amount up to $95,000 that Abril recovered from Globe, Piatt would split his contingency fee with Harris. This agreement was made on behalf of Levine & Harris, P.C., before the dissolution, and later became one of the subjects of the arbitration award. After Abril had discharged Harris, telephone discussions occurred between Harris and Piatt regarding renewal of the Johnson judgment against Abril. Harris also wrote to Piatt on June 3, 1985, noting the date that the judgment would expire and advising Piatt to renew it "immediately." Piatt subsequently renewed the Johnson judgment against Abril. After Abril's compensatory damages against Globe were affirmed on appeal, Piatt served a garnishment on Globe for the amount Abril still owed on the Johnson judgment. Harris eventually credited Abril with $25,482.15 towards Abril's attorney's fees from Piatt's payment to Harris under the fee agreement between Harris and Piatt. When Abril learned of the fee agreement between Harris and Piatt and the renewal of the Johnson judgment against him, he asked respondent to file a suit against Harris, alleging a conflict of interest and breach of fiduciary relationship. Respondent persuaded Abril to file two bar complaints against Harris instead. When the bar complaints ultimately were dismissed, respondent then filed, on Abril's behalf, a suit against Harris & Palumbo, M. Byron Lewis, John R. Cunningham, and Harris & Palumbo, P.C., alleging five causes of action, seeking more than $41,000,000 in damages. After the trial court granted summary judgment in favor of Harris and indicated its intent to award attorney's fees against respondent personally, respondent filed a special action in the court of appeals, which declined jurisdiction. The trial court ultimately assessed attorney's fees against respondent for $7,586.25. Respondent then appealed the granting of summary judgment; that judgment was affirmed, and the court of appeals awarded attorney's fees against respondent for $9,418.25. Abril v. Harris, 157 Ariz. 78, 754 P.2d 1353 (App. 1987). Respondent filed a petition for review in the Arizona Supreme Court, which was denied with a fee award against respondent for $1,950. The Abril suit against Harris, the special action, appeal, and petition for review form the basis of counts 1 through 4 of the bar complaint, respectively. C. Federal Court Litigation: Count 5 After judgment was entered against respondent personally for attorney's fees in the Abril litigation, respondent, acting pro se, filed a complaint in federal district court seeking to enjoin execution of that judgment because he was unable to post a supersedeas bond in state court. He contended that the judgment against him was 152 entered without notice and a hearing and therefore violated constitutional due process. After that complaint was dismissed, the federal district court assessed attorney's fees against respondent in the amount of $500, finding that respondent's allegation of a "conspiracy" between the state court judge and the defendants in the Abril litigation was frivolous and in violation of Rule 11, Federal Rules of Civil Procedure. This litigation was the basis for count 5 of the complaint. D. Abril v. Lewis and Cunningham: Counts 6-9 In January 1985, while still employed by Abril, Harris contacted attorney M. Byron Lewis and requested assistance in preparing Abril's answering brief in the Globe appeal. Harris sent Lewis portions of the case file, and also filed a notice of association of counsel, naming Lewis as one of Abril's counsel on appeal. After Lewis discovered a conflict of interest in his firm, he returned the file to Harris with a letter explaining the conflict, and advising that he could not assist Harris in the appeal. Harris then employed John R. Cunningham to assist him in preparing the appellee's brief on Abril's behalf. However, after Abril fired Harris in April 1985 and retained respondent to represent him in the appeal, respondent had that brief stricken by court order on May 31, 1985, and substituted his own brief on Abril's behalf. Based on these facts, the original complaint in the Abril v. Harris litigation alleged a cause of action against attorneys Lewis and Cunningham for "strict liability for unauthorized representation," seeking damages of $1,300,000 plus interest for Abril's "diminished" chances of succeeding on appeal. Lewis subsequently was granted summary judgment on the count naming him as a defendant, and was awarded attorney's fees. Respondent, on behalf of Abril, appealed from the award of fees, and the court of appeals affirmed, also awarding attorney's fees to Lewis and imposing a $1,500 sanction against respondent. Respondent's petition for review on behalf of Abril to this court was denied, with an award of fees to Lewis for $3,907.50. The count against Cunningham was dismissed with prejudice by stipulation of the parties, with each party bearing their own attorney's fees and costs. Counts 6, 7, 8, and 9 of the bar complaint arose out of the inclusion of Lewis and Cunningham in Abril's lawsuit against Harris in superior court, the appeal from an order denying a motion for new trial, and the petition for review from the appellate order affirming the trial court. E. Count 14: Actions Through Others The final count of the bar complaint alleged that during the Abril lawsuits alleged in counts 1 through 10, and during the dissolution proceedings of Levine & Harris, P.C., from 1981 to 1989, respondent violated the Code and Rules then in effect "by knowingly doing so or doing so through the acts of another." III. Respondent's Violations A. Ethical Standard for Frivolous Suits On appeal, respondent's first attack against all the counts alleging violations of E.R. 3.1 is that the commission incorrectly applied a subjective standard in determining that various claims were frivolous, rather than an objective standard of the reasonableness of his legal theories. E.R. 3.1 provides: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. The Code Comparison to the rule notes that "the test in E.R. 3.1 is an objective test." However, the Comment to E.R. 3.1 also provides: The action is frivolous, however, if the client desires to have that action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable to make a good faith 153 argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law. (Emphasis added.) Thus, although the objective reasonableness of a legal claim is the standard to determine whether it is frivolous under E.R. 3.1, the rule also requires a subjective good faith motive by the client[4] and a subjective good faith argument by the lawyer. See, e.g., In re Mulhall, 170 Ariz. 152, 153, 822 P.2d 947, 948 (1992) (counterclaim filed in bad faith "establishes a violation of ER 3.1"). Therefore, if an improper motive or a bad faith argument exists, respondent will not escape ethical responsibility for bringing a legal claim that may otherwise meet the objective test of a non-frivolous claim. In the context of civil sanctions, we have similarly utilized an objective test to determine whether an appeal is frivolous under Rule 25, Arizona Rules of Civil Appellate Procedure:[5] if the issues raised are supportable by any reasonable legal theory, or if a colorable legal argument is presented about which reasonable attorneys could differ, the argument is not objectively frivolous. See Arizona Tax Research Ass'n v. Department of Revenue, 163 Ariz. 255, 258-59, 787 P.2d 1051, 1054-55 (1989). However, under Rule 25 this objective definition of "frivolous" applies only "[a]bsent an allegation of improper motive." Id. at 258, 787 P.2d at 1054. In imposing sanctions pursuant to Rule 25, our courts have analogized the Rule 25 duty to the duty under E.R. 3.1 to avoid claims "for which there is no justification." See Johnson v. Brimlow, 164 Ariz. 218, 222, 791 P.2d 1101, 1105 (App. 1990). Similarly, Rule 11 of the Arizona Rules of Civil Procedure requires that "[e]very pleading, motion, and other paper" be certified that "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law, or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Rule 11(a), Arizona Rules of Civil Procedure (emphasis added). The objective standard of Rule 11 is analogous to the standard of E.R. 3.1. See, e.g., Smith v. Lucia, 173 Ariz. 290, 842 P.2d 1303 (App. 1992). Thus, a common theme in both our procedural and ethical rules is the examination of whether a claim is frivolous by considering both the objective legal reasonableness of the theory and the subjective motive of the proponent of the claim. Moreover, under the American Bar Association's Standards for Imposing Lawyer Sanctions (1986) (Standards), a respondent cannot be suspended for violating 154 E.R. 3.1 except upon a finding that he "knows that he is violating a court order or rule." Standards, Standard 6.22 at 42 (emphasis added). "Knowledge" is defined in the Standards as "the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." Standards, Definitions at 17. One commentary has analyzed this "knowing" requirement in relation to the previously quoted "good faith argument" requirement of E.R. 3.1: Although "good faith argument" is not a self-defining term, it has come to mean an argument that responsible lawyers would regard as being seriously arguable. Adoption of this standard does not mean that a lawyer's state of mind is irrelevant, for due process concerns dictate that a lawyer not be punished unless his conduct is knowing, and therefore culpable. On the other hand, an objective standard assumes that a genuinely frivolous claim will be known to be frivolous by most lawyers. Indeed, the definition of "knowing" set forth in the Terminology section of the Model Rules states that knowledge "may be inferred from the circumstances." In many cases, therefore, it will be possible to "infer from the circumstances" of a frivolous litigation maneuver that the lawyer had actual knowledge of its frivolous character. Geoffrey C. Hazard, Jr., & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 331 (Student Ed. 1985). Thus, the objective test to determine the frivolousness of a claim that would warrant suspension also incorporates both the requirement of a "bad faith argument" by the lawyer under E.R. 3.1 and a "knowing" violation under Standard 6.22. Although the committee inferred respondent's subjective motives from the evidence and commented upon them, it also found his claims "lacking in merit" and without "good faith basis." In our opinion, in its thorough examination of this voluminous record, the committee did not err in considering respondent's subjective motives in determining whether he violated E.R. 3.1. E.R. 3.1 violations aside, in almost every count that alleged a violation of E.R. 3.1, respondent was also charged with violation of E.R. 4.4, which provides: In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, .... Thus, even where respondent claims that an objectively arguable ground for a legal claim exists, his subjective purpose in bringing the action is relevant to whether a violation of E.R. 4.4 occurred. Therefore, we find no error in the commission's analysis of respondent's personal motives in bringing these claims in its consideration of whether he had violated E.R. 3.1 and 4.4. B. Reliance on Prior Judicial Rulings Respondent next contends that the committee inappropriately relied on and adopted in its findings various prior judicial rulings in the civil lawsuits made in connection with civil sanctions imposed for frivolous or groundless claims. Indeed, the committee quoted at length from various minute entry rulings awarding attorney's fees and sanctions in both the Levine, P.C., litigation and in the Abril v. Harris litigation. However, as bar counsel points out, the committee also tempered its reliance on these prior court rulings, and did not give them preclusive effect. Regarding the P.C. litigation, the committee stated: The Committee has made its own determination as to the lack of merit of these matters; it has not given any legal weight to the quoted findings of the trial court in reaching its findings in this disciplinary matter. Regarding the Abril v. Harris litigation, the committee stated: The Committee has given no legal or preclusive effect to the findings and conclusions of the Superior Court [in Abril v. Harris] but, rather, after considering the evidence presented at the hearing, and the credibility of the witnesses, agrees with the findings quoted above and finds that they were proved at 155 the hearing of this matter by clear and convincing evidence. (Emphasis added.) In rejecting respondent's objection on review that the committee's admission of these rulings was improper, the commission stated: The Commission understands the need for separate civil and disciplinary systems. Given the voluminous record, the detail contained in the court decisions, Respondent's willingness to rely on these decisions when they supported his position, and the Committee's assurances that it made independent findings of fact and conclusions of law, the Commission finds no fault with the Committee's references to civil court decisions. (Emphasis in original.) On appeal to this court, respondent cites various cases from other jurisdictions to support his proposition that "the weight of judicial authority holds that prior judicial findings should not even be admitted into evidence in disciplinary proceedings." We reject this contention for several reasons. First, respondent stipulated to admission of these findings at the start of the proceedings, and introduced several prior judicial rulings in his own exhibits before the committee. Second, the cases respondent cites are either distinguishable or inapplicable to the proceedings before us. Even in the leading Massachusetts disciplinary case respondent cites, In re Santosuosso, 318 Mass. 489, 62 N.E.2d 105 (1945), the court, in discussing the preclusive effect of the proffered evidence, stated: We are unwilling to attach such conclusive effect to a judgment at law or a final decree in equity, based upon alleged corrupt conduct on the part of a defendant attorney, where the judgment or final decree entered rests upon findings that the attorney has been guilty of corrupt conduct. It may be observed that this was the position taken by the single justice in the present case in connection with his action in overruling the demurrer to the respondent's answer. We concur therein. But we are of [the] opinion that the evidence in the proceeding in equity in question is admissible in an inquiry such as the present [disciplinary proceedings], and like any other evidence is to be given such weight as the single justice shall deem proper, when considered together with all other evidence that the respondent may produce at the hearing, in the course of which he must be heard with full opportunity to present all relevant evidence that he may wish to adduce. 62 N.E.2d at 107-108 (emphasis added). Similarly, in other cases cited by respondent, the disciplinary courts merely held that the findings of other courts should not have preclusive effect in the disciplinary proceedings. See, e.g., In re Gygi, 273 Or. 443, 541 P.2d 1392, 1394-95 (1975) (finding of liability in civil securities suit by preponderance of evidence did not establish by collateral estoppel clear and convincing proof of ethical misconduct); In re Strong, 616 P.2d 583, 587-88 (Utah 1980) (hearing committee erroneously accepted findings in civil case of stock fraud and would not allow evidence to impeach or discredit those findings; court remanded for civil evidentiary hearing that could include the record in the prior civil trial); see also Caldwell v. State Bar, 13 Cal. 3d 488, 119 Cal. Rptr. 217, 223, 531 P.2d 785, 791 (1975) (pleadings, findings of fact and conclusions of law and judgment in civil case regarding breach of respondent's duty to account for trust funds were admissible in subsequent disciplinary action because of "essential identity of the factual issues in both proceedings"); In re Wilson, 76 Ariz. 49, 53, 258 P.2d 433, 436 (1953) (transcripts and evidence from trial in underlying criminal action were admissible in disciplinary action). In this case, where respondent stipulated to admission of the civil records before the hearing committee, relied on those rulings where they were favorable to his position, and where he had extensive opportunity to present other evidence and expert witnesses to contradict findings that his claims were groundless or frivolous, including examination of one of the superior court judges regarding her reasoning in ruling against him, we find no error in admission of the prior judicial rulings 156 which accompanied the full documentary history of those civil cases. We find no error because neither the committee nor the commission gave these rulings preclusive effect and because the committee specifically made independent findings and conclusions based on the totality of the evidence before it. The multiple judicial findings, over a course of years, that respondent's various claims were frivolous, groundless, or made in bad faith, were certainly relevant to establish that respondent had notice that some of his theories may not have been considered objectively reasonable or well-founded. In that light, this court will consider those prior judicial rulings as well. We now turn to the individual counts of the bar complaint. C. Individual Counts of Misconduct 1. Count 1: Filing of Abril v. Harris Complaint As previously indicated, count 1 of the bar complaint alleged that the filing of the complaint against Harris, Palumbo, and Harris & Palumbo, P.C., in the Abril lawsuit violated E.R. 3.1 and 4.4. This litigation was based on two allegations of wrongdoing by Harris against Abril's interests: first, Harris' execution of the fee agreement with Piatt, and second, Harris' role in assisting Piatt in renewing the Johnson judgments against Abril. Abril's cause of action against Palumbo and, undoubtedly, Harris & Palumbo, P.C., was derivative of his claim against Harris for the judgment renewal, because at the time of the acts complained of, Harris and Palumbo were practicing together.[6] The suit alleged three causes of action against Harris: breach of contract, bad faith, and a request for a declaratory judgment that Harris take no fees from the Globe litigation.[7] The trial court found that defendants had established that Abril was not damaged by Harris' actions in entering the Piatt fee agreement or in consulting with Piatt regarding the judgment renewals: The Court has tried to disregard the animosity which exists between plaintiff's counsel and defendants' counsel. The Court has reflected upon plaintiff's testimony in his depositions. The Court must take as true that a wrong was suffered but no damage sustained. The Court concludes it is a very unusual plaintiff who brings a lawsuit when no loss has been sustained. It is also a very unusual plaintiff who finds fault with an attorney who has been so successful on the plaintiff's behalf. It is a very unusual plaintiff who would be concerned as to whether Harris or Levine & Harris, P.C. is the person or entity which might possibly, in the future, be entitled to a percentage of any recovery from an insurance company. The Court finds a portion of the case to be groundless. The Court finds a portion of the case was not brought in good faith. The Court finds a portion of the case was brought for harassment purposes. The Court finds this litigation has been motivated more by greed than the desire to rectify wrong. Because a majority of the case was brought without substantial justification, pursuant to A.R.S. § 12-349, defendants shall be entitled to recover reasonable attorney[']s fees to be assessed against plaintiff's counsel. (Emphasis added.) The committee agreed with these findings, and independently concluded that respondent had "no good faith basis for 157 bringing the lawsuit and, in fact, brought the suit for the selfish motive of obtaining all of the Abril fee in the bad faith suit. The lawsuit was frivolous pursuant to E.R. 3.1, Rule 42, Rules of the Supreme Court." The commission adopted the findings of the committee, with one exception. The commission disagreed with the reasoning of both the trial court and the committee that Abril was not damaged by Harris' role in renewing the Johnson judgment because an existing excess judgment was necessary to show damages in the Globe bad faith litigation, recognizing that case law supported respondent's contention that "a judgment need not necessarily exist in order to obtain relief in a bad faith suit." See generally Frankenmuth Mut. Ins. Co. v. Keeley, 433 Mich. 525, 447 N.W.2d 691 (1989); Brown v. Guarantee Ins. Co., 155 Cal. App. 2d 679, 319 P.2d 69 (1957). However, the commission found by clear and convincing evidence that the suit was frivolous under E.R. 3.1 on the basis that "respondent brought the action for improper purposes. The Commission believes Respondent, only after the commencement of the disciplinary proceedings, began embracing the more noble purposes of extending, modifying or reversing the existing law." On appeal, respondent argues that both the committee and the commission erred in rejecting the opinions of his expert witnesses that the Abril v. Harris litigation was not frivolous. All four witnesses testified that they believed the merits of Abril's claims against Harris were objectively well-grounded in legal theory and factual basis. The committee rejected these opinions on the ground that they were based upon insufficient information. The Commission agreed. Respondent argues that these findings were factually incorrect. The "simple answer" to any allegation that either the committee or the commission misweighed the evidence before it is that this court is the ultimate trier of fact in disciplinary cases. In re Bowen, 160 Ariz. 558, 560, 774 P.2d 1348, 1350 (1989), citing In re Kersting, 151 Ariz. 171, 172, 726 P.2d 587, 588 (1986). From our own review of the expert testimony, it is apparent that respondent's witnesses had less than a complete story before them upon which to opine. For example, James W. Hill testified that he was not aware that Harris had agreed to credit Abril with any fees received from Johnson as a result of the Piatt fee agreement. He also "assumed" that the Johnson judgment would have abated but for Harris' assistance. In response to committee questions, Mr. Hill testified that if Harris was not the "moving force" in renewing the Johnson judgments, then Harris "hasn't done anything to the detriment of Mr. Abril." Similarly, G. David Gage, respondent's strongest expert witness, testified that he had never talked to Abril or assessed his credibility, that he had never been provided with any documentation indicating that Abril might have known of the fee arrangement between Harris and Piatt, and had no knowledge whether respondent had discussed the potential liability of his own law firm with Abril before undertaking representation. Gene Gulinson testified that he was not provided with Piatt's deposition testimony establishing that Piatt called Harris regarding the renewal of the judgments, but that fact would obviate one of the causes of action against Harris. He also conceded that if the fee agreement resulted in Harris' crediting Abril with the Johnson fee payments, then Abril would be benefitted, not harmed, by the Harris-Piatt agreement. Finally, W. Thomas McLaughlin testified that he was not aware from the materials with which he was provided that Abril was credited with the amount Harris received from Johnson, and that he was under the impression that Harris "reminded" Piatt to renew the Johnson judgments. Under these circumstances, we agree with the committee and the commission that the opinions of these experts need not be accorded great weight in establishing the objective reasonableness of Abril's claims against Harris.[8] 158 In reviewing the record as the ultimate trier of fact and law, and giving considerable deference to the bar's recommendation, we find that the record supports by clear and convincing evidence the above violations on this count. See In re Cardenas, 164 Ariz. 149, 151, 791 P.2d 1032, 1034 (1990). Respondent had previously assisted Abril in filing two bar complaints in April and May 1985, based on the same allegations, which the bar had dismissed as without merit. Additionally, respondent wrote a letter to the bar in June 1985 asking for reconsideration of those complaints. The committee properly recognized that the dismissal of a bar complaint does not necessarily preclude a right to file a lawsuit for substantive relief. However, the filing of a complaint based on these same grounds within a few days of the rejection of the bar complaints, seeking $41,300,000 in damages for conduct that was implicitly determined not to injure his client, lends strong support to the improper motive and objective unreasonableness of the theories asserted in the complaint against Harris and Palumbo. 2. Count 2: Special Action in Abril v. Harris Count 2 of the bar complaint alleges that respondent's filing of a petition for special action in the court of appeals from the award of attorney's fees in favor of Harris on summary judgment in the Abril litigation violated E.R. 3.1 and 4.4. The committee found that the special action was "frivolous and totally lacking in merit" because "[a]t the time the Special Action was filed the trial court had not entered a final order on the issues complained of...." The commission also found the special action frivolous, but disagreed with the committee's reasons: Respondent correctly recognizes that special action proceedings do not require a final judgment.... However, special action proceedings do require the existence of an order, whether the order grants or denies the requested relief. The trial court, when Respondent filed the special action petition, had not entered any order against Respondent which required that he pay fees.... Under these circumstances, the Commission does not believe the appellate court had anything to review. On appeal to this court, respondent argues that both the committee and the commission erred in finding his special action frivolous on these grounds. We agree. Respondent sought special action relief from the trial court's minute entry ruling that "[b]ecause a majority of the case was brought without substantial justification, pursuant to A.R.S. § 12-349, defendant shall be entitled to recover reasonable attorney[']s fees to be assessed against plaintiff's counsel." (Emphasis added.) The primary issues raised in the special action, besides the contention that the claims were not frivolous, were whether the trial court could apply A.R.S. § 12-349 to a cause of action that arose before the effective date of that statute, and whether a judgment for attorney's fees could be imposed against plaintiff's counsel, who was not a party to the action. Although the minute entry ruling had not been reduced to formal written judgment at the time the special action was filed, the minute entry clearly set forth an intent to impose fees against respondent personally. Special action jurisdiction could properly be invoked to review that "intention." We therefore disagree with the committee that the special action required a "final order," and we disagree with the commission that the special action required a ruling on an application for actual fees. Furthermore, the issue whether an attorney may appeal as a "party" to the litigation when attorney's fees are personally assessed against him had not yet been decided. This was later resolved as a matter of first impression on appeal in Abril v. Harris, 157 Ariz. 78, 754 P.2d 1353 (App. 1987). At the time the petition was filed, special action relief was an objectively reasonable basis to seek relief from a minute entry ruling that attorney's fees were to be awarded against plaintiff's counsel pursuant to A.R.S. § 12-349, on the basis that 159 the trial court was "threatening to proceed without or in excess of jurisdiction or legal authority." See Rule 3(b), Arizona Rules of Procedure for Special Actions; see also Jacobson v. Superior Court, 1 Ariz. App. 342, 402 P.2d 1018 (1965) (extraordinary relief now encompassed in special action procedure is a preventive measure). We find no clear and convincing evidence of improper motive or bad faith on the record regarding the filing of the special action, and we therefore find no violation of E.R. 3.1 or 4.4 on count 2. 3. Count 3: Appeal in Abril v. Harris Count 3 of the bar complaint alleges that respondent's role in instituting and maintaining the appeal in the Abril v. Harris litigation violated E.R. 3.1 and 4.4. In that appeal, respondent argued that the trial court was legally incorrect in concluding that Abril had not been "damaged" by Harris' participation in Piatt's renewal of the Johnson judgments, because Globe was under no obligation to pay Johnson in the absence of an assignment in the bad faith suit. Prior to that appeal, respondent had filed a motion for new trial, motion to vacate judgment, motion to grant relief from the judgment, and motion to strike applications for award of attorney's fees in the trial court, all of which had been denied. In affirming the trial court, the court of appeals noted: We agree with the comments of the trial judge concerning the lack of merit to this case. A reading of the motions filed by appellants indicate the harassing nature of much, if not all, of them. We note that this appeal was filed January 22, 1987. The mandate of Division One of this court in Abril's case against Globe [reversing punitive damages but affirming compensatory damages of $300,000] issued on January 9, 1987. At the time this appeal was filed, Abril and his attorney knew that the judgments in favor of the injured pedestrian would be paid by Globe and that he would suffer no damage. We find this appeal frivolous. Abril v. Harris, 157 Ariz. at 81, 754 P.2d at 1356. The court of appeals awarded appellees attorney's fees and costs of $9,418.25 to be assessed against respondent personally. The committee found by clear and convincing evidence that respondent's conduct violated E.R. 3.1 and 4.4. The commission adopted the committee's findings, and added: The Commission believes the rationale which supports the Committee Findings regarding Count One supports the Committee Findings regarding this count. The Commission recognizes the arguments offered by Respondent regarding the absence of any obligation by Globe, the insurer, to satisfy the underlying judgment. The Commission gave import to Mr. Abril's insistence, at all times, that Mr. Johnson receive his money.... The conflict between Respondent's legal position, and Mr. Abril's directions regarding payment, strongly suggests the frivolous nature of Respondent's position. We agree with the findings of both the committee and the commission on this count. Regardless of whether the Globe award was owed to Johnson or to Abril, Abril consistently insisted that Johnson be paid the full amount of the judgment; whether that payment came from Globe or from Abril did not affect Abril's "damages" as respondent argues. Further, respondent was well aware, prior to filing the appeal, that Abril had not sustained any damages from the Harris-Piatt fee agreement, because Harris was crediting any amounts received from Johnson toward Abril's fees. On this record, we find clear and convincing evidence that respondent violated E.R. 3.1 and 4.4 by the conduct alleged in count 3. 4. Count 4: Petition for Review in Abril v. Harris Appeal Respondent petitioned for review of the decision following his appeal in count 3. We declined review, and awarded attorney's fees to defendants in the amount of $1,950. Count 4 of the bar complaint alleges that respondent's conduct in filing the petition for review violated E.R. 3.1 and 160 4.4. Both the committee and the commission found respondent in violation of those ethical rules without further discussion. For the same reasons that we find a violation on counts 1 and 3, we find that the record establishes, by clear and convincing evidence, that respondent's pursuing the same theories before the supreme court violated E.R. 3.1 and 4.4. 5. Count 5: Federal Court Litigation Count 5 of the bar complaint alleges that respondent's institution and maintenance of the federal suit against Harris and others[9] seeking an injunction to prevent enforcement of the $7,586.25 judgment for attorney's fees imposed against him by the state trial court in the Abril v. Harris litigation discussed in count 1 violated E.R. 3.1 and 4.4. Respondent alleged in the federal court: That the tenor and effect of the aforesaid Order and Judgment of the aforesaid Superior Court, and the intent of the defendants herein, was to deny [respondent] his right to due process of law and his right to represent, as an attorney at law, a person of a minority group or class in a legal malpractice action by subjecting the plaintiff to recriminations therefore, and by conspiring to assess attorneys' fees against him without any notice or an opportunity to be heard thereon, and by conspiring to apply, under color of law, a statute of the State of Arizona [A.R.S. § 12-349], in a retroactive fashion, with the intent to deprive the plaintiff of his rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States. On February 26, 1987, defendants moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the state court judgment was not reviewable by the federal district court. In reply to respondent's response, defendants requested attorney's fees pursuant to 42 U.S.C. § 1988 for a defense to a civil rights action which was "frivolous, unreasonable, or without foundation." On April 20, 1987, respondent filed a motion for voluntary dismissal, stating that "[b]y reason of the fact that the plaintiff now has sufficient funds to post a supersedeas bond to protect his property while he seeks redress in the State appellate courts, and, therefore, the issues raised by the plaintiff in his lawsuit are now moot and plaintiff's action should be dismissed. Accordingly, plaintiff requests that the court issue an Order dismissing this action without prejudice with each party to bear their own costs." Defendants opposed respondent's motion for voluntary dismissal, again requesting attorney's fees and arguing that "the whole purpose of his Federal suit was to delay the state court proceedings until Plaintiff was able to secure funds to post the bond," in violation of Rule 11, Federal Rules of Civil Procedure. On May 20, 1987, the federal judge dismissed the action with prejudice, and granted defendants an award of $500 towards their attorney's fees, for the following reasons: The court also finds sanctions are appropriate against the plaintiff under Fed. R.Civ.P. 11. In his complaint, the plaintiff alleges the defendants conspired with the Superior Court judge to assess fees against the plaintiff personally. The complaint fails to specify however, how the defendants conspired with the judge nor at oral argument could he adequately propound a plausible theory. A reading of the complaint merely shows the defendants wished to execute on the state court judgment against the plaintiff. It is clear that plaintiff had no basis to allege that a conspiracy existed and therefore sanctions are appropriate under Rule 11.... (Emphasis added.) The committee found that "the only basis for the federal court lawsuit was Respondent's penurious state and that there is no evidence that the named defendants and the Superior Court judge engaged in a conspiracy," 161 and found by clear and convincing evidence that respondent had violated E.R. 3.1 and 4.4. The commission adopted the committee's findings, further stating that it believed respondent "had a full and fair opportunity to argue about an award of attorney's fees" in the Abril matter. On appeal, respondent argues that the federal suit was not frivolous because case law exists to support his theory that imposition of attorney's fees against a lawyer personally without prior notice and an opportunity to be heard violates due process. See, e.g., Tom Growney Equip., Inc. v. Shelley Irrigation Dev., Inc., 834 F.2d 833, 835-37 (9th Cir.1987). He also argues that the federal court dismissed his suit not for failure to state a claim, but because of the abstention doctrine of Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 6-8, 107 S. Ct. 1519, 1523-24, 95 L. Ed. 2d 1 (1987).[10] Respondent's arguments overlook the fact that the underlying basis for his federal suit was an allegation, unfounded by any evidence, of a "conspiracy" between the superior court judge and the defendants to violate his due process rights, which was not an objectively reasonable legal theory under the facts. Additionally, respondent has freely admitted that his subjective purpose in bringing the federal suit was to delay enforcement of the state court judgment until he could raise funds for a supersedeas bond, and when this was accomplished, he sought dismissal of the federal action. We have no difficulty in adopting the findings of the committee and commission as supported by clear and convincing evidence, and find respondent in violation of E.R. 3.1 and 4.4 on count five of the bar complaint. 6. Counts 6-8: Abril's Claims Against Lewis Counts 6, 7, and 8 of the bar complaint alleged that respondent's institution and maintenance of the suit, appeal, and petition for review of Abril's claims against attorney M. Byron Lewis violated E.R. 3.1 and 4.4. The original complaint filed in the Abril v. Harris litigation asserted a cause of action against Lewis based upon a theory of "strict liability for unauthorized representation," and sought damages of $1,300,000. As previously indicated, the sole involvement of Lewis in the Globe appeal was to ascertain that he could not undertake the offered appellate assistance because of a conflict of interest in his firm.[11] On May 31, 1985, respondent phoned Lewis and advised him that Lewis had been named as a defendant in Abril's suit, and would soon be served with process. Lewis informed respondent of the above facts regarding his limited involvement, and respondent advised him that "he would look into the matter and would probably be dismissing the lawsuit" as to Lewis. On June 3, 1985, Lewis wrote to respondent, memorializing their phone conversation; he also indicated that no fees were generated to either Harris or Abril as a result of his receipt of the materials from Harris. Lewis' letter concluded: Based on this information, it is my understanding that you will have me dismissed as a defendant from this lawsuit. Due to the fact that I currently have some financing pending with First Federal for some remodeling work I am having done to my home, I would appreciate it if you would make arrangements for immediate dismissal of this lawsuit as to me. Otherwise, it may show up as a contingent 162 liability on a credit check which could hinder the First Federal financing. Respondent testified that when Abril read the letter from Lewis indicating Lewis had a conflict of interest, "that kind of just caused [Abril] again to go up the wall," because that was the basis of his complaint against Harris regarding the Piatt fee agreement, and Abril would not let respondent dismiss Lewis from the suit. Lewis called respondent 18 or 19 days after the complaint was filed, and respondent advised that he was not going to dismiss Lewis from the suit. Abril testified that he believed that Lewis had files in his possession that were "essential to the case," that would cause him to lose the Globe appeal. On July 23, 1985, Lewis moved for summary judgment and requested an award of costs and fees, arguing that, even if a cause of action for unauthorized representation existed, the undisputed facts established that he never "represented" Abril, having declined representation after performing a conflicts check. He also argued that, because respondent knew of this limited involvement, he should be assessed attorney's fees under A.R.S. § 12-341.01(C) and Rule 11 for a frivolous, vexatious, bad faith claim. Respondent responded that "plaintiff is agreeable to a dismissal provided that said dismissal is without the imposition of attorney's fees and costs upon either the plaintiff or plaintiff's counsel," but argued that Lewis was liable under the theory of unauthorized representation set forth in Journal-Miner Publishing Co. v. Curley, 31 Ariz. 280, 252 P. 187 (1927). In granting summary judgment in Lewis' favor, the trial court found the claim against Lewis "was known by the plaintiff and his counsel to be groundless after a telephone conversation with Lewis on May 31, 1985, and after receipt of a letter from Lewis dated June 3, 1985." The court concluded that Abril had failed to support his legal theory of strict liability for unauthorized representation. The court granted fees after finding that the suit against Lewis was frivolous, that respondent had shown no facts from which he could surmise Lewis held confidential information, and that the suit constituted harassment. Respondent then filed a Motion for a New Trial, as well as a Motion for Reconsideration and Motion for a New Trial Regarding Award of Attorney's Fees, challenging the court's finding of bad faith and the award of fees; all of these motions were denied. The trial court awarded $3,455.50 in fees to Lewis against Abril. Respondent appealed only from the award of fees. His appeal was based only on the claim that his suit against Lewis was not frivolous or groundless. The court of appeals affirmed, and awarded attorney's fees pursuant to A.R.S. § 12-341.01(C) and § 12-349. Abril v. Lewis, 2 CA-CV 87-0023 (Ariz. App. mem. dec. filed May 12, 1987). The court awarded Lewis attorney's fees of $7,373.75 and costs, and $1,500 in damages against respondent personally. Respondent then filed a petition for review with this court, which was denied, with an additional award of fees to Lewis of $3,907.50. In finding the claim against Lewis to violate E.R. 3.1 and 4.4, the committee remarked: [F]rom the outset the incredible number of motions, papers, the appeal and the petition were generated solely to avoid the sanction of fees and costs. Lewis' law firm was compelled to pay approximately $13,000 in fees to Lewis' lawyer to successfully defend what the Committee finds to be a wholly frivolous and groundless action.... Respondent relies on Journal-Miner Publishing Company v. Curley, 31 Ariz. 280, 252 P. 187 (1927) as support for naming Lewis in the lawsuit.... The Committee's reading of Journal-Miner finds that an employed attorney does have the authority to hire associate counsel but without ratification of such hiring by the client the associate counsel can only look to the hiring lawyer for compensation, not to the client. See 31 Ariz. at 283 [252 P. at 188]. Respondent's reading of the case is not supported by the language of the case itself. The commission adopted the findings of the committee, further noting: 163 The Commission finds Respondent's conduct, with respect to Byron Lewis, especially egregious.... Mr. Lewis conducted himself properly throughout his brief involvement in this matter. Still, Respondent sued him.... Respondent cannot demonstrate an unauthorized representation by Mr. Lewis, even if a cause of action for unauthorized representation exists or could exist under an extension of existing law. On appeal, respondent argues that the committee and commission erred in considering that respondent's motive in continuing with the claim against Lewis was avoidance of the fees, because the only conduct charged in count 6 is "the act of filing the complaint in the first instance." This statement is factually incorrect: the complaint clearly charges respondent with instituting and maintaining the claim against Lewis in the trial court, on appeal and on review. Respondent's actions during the entire litigation could therefore be considered. We agree with the findings of the committee and commission regarding counts 6, 7, and 8. Respondent's institution of the claim against Lewis was not objectively reasonable under the theory of Journal-Miner, which involved the issue of a client's obligation for payment of fees to an unauthorized associate counsel, nor was it reasonable given the facts of Lewis' limited involvement with Abril's appeal. Lewis was harassed for over two years by this unfounded and unreasonable claim, during which time respondent was made aware consistently, by every court that considered the matter, of the groundless nature of this claim. The record contains clear and convincing evidence that respondent violated E.R. 3.1 and 4.4 as charged in counts 6, 7, and 8 of the bar complaint. 7. Count 9: Abril's Claims Against Cunningham Count 9 of the bar complaint alleges that respondent's institution and maintenance of the suit against attorney John R. Cunningham on behalf of Abril violated E.R. 3.1 and 4.4. As with Lewis, the cause of action against Cunningham was for strict liability for unauthorized representation. Count 9 of the bar complaint was based on the following facts. As previously indicated, Cunningham had been employed by Harris to assist with the appellate brief in the Globe appeal. Harris agreed to pay Cunningham directly for his work; Abril was not to be billed for Cunningham's work. Harris testified that Cunningham spent "an enormous amount of time" on the brief. Harris testified that Abril fired him a few days before the brief was due; Harris did not feel that respondent could prepare an appropriate brief on such short notice, and, because he was still counsel of record, Harris testified: "I was very concerned about protecting that judgment. I was concerned about it, quite frankly, about protecting it for me, because I had what I believed to be a vested, accrued interest in 1.3 million dollars." Cunningham testified that he did not believe Abril had an absolute right at that point to fire Harris because of Harris' contingent interest in the judgment. Because Cunningham and Harris were still counsel of record in the court of appeals, Cunningham felt, "in my opinion we had not only a right but a duty on behalf of the client as counsel of record to proceed with our representation." Cunningham testified that, shortly before the brief was filed, respondent called him, "advising me that he was going to be taking over as Abril's counsel, and asking if I would be interested in continuing my association but with him as opposed to with Harris & Palumbo." Cunningham declined. On August 5, 1985, Kenneth J. Sherk, Cunningham's counsel, and respondent agreed by phone to enter into a stipulation for dismissal with prejudice, with each party to bear their own fees and costs. On August 8, Sherk sent a proposed stipulation to respondent, which included respondent's concession that "there was not nor is there now, a valid claim, in fact or law, against defendant John R. Cunningham...." On August 16, respondent returned 164 the unsigned stipulation to Sherk, with the following explanation: I cannot in good faith sign the Stipulation which you proposed for several reasons. First of all, the language of the order is not true. Secondly, it could expose my client and myself to a separate lawsuit in tort for abuse of civil process or malicious civil prosecution. Thirdly, I certainly don't want to give Judge Hendrix the erroneous impression that my client or I go around filing lawsuits against people for no reason. Such an impression could prejudice my client's case against the remaining defendants. On September 10, 1985, Sherk sent respondent a revised form of stipulation, providing that Cunningham would not only waive his claim for attorney's fees and costs, but also for "any claim for damages." Sherk also noted that the trial court had dismissed Lewis and granted attorney's fees, and that, if respondent did not sign the stipulation without further delay, Cunningham would also move for summary judgment with an award of fees and costs under A.R.S. § 12-341.01(C) and Rule 11. On September 13, respondent replied: I, of course, will leave to my client the final decision as to whether or not to sign your proposed Stipulation. All I can tell you is that I do not like the form that you have proposed, because it ask[s] me to stipulate to an Order that contains language that is not true. There was and is a valid claim against John R. Cunningham for willfully undertaking to represent my client after he had actual notice that he had been discharged[.] I believe that his conduct violated Rule 29(b) of the Rules of the Supreme Court and subjects him to liability to my client. As I have told you many times, my client is willing to dismiss your client with prejudice with each party to bear their own costs but with no other agreement or stipulation of any kind. If this is not agreeable to your client, I certainly don't have any objection to his remaining in the litigation if he insists on this. On December 6, 1985, after Sherk had noticed Abril's deposition at his office, Sherk again returned the proposed stipulation to respondent. On December 13, respondent replied: My client will not authorize me to sign your proposed Stipulation, but wishes me to proceed with a motion for summary judgment and to seek attorney's fees and costs, by reason of the defenses which you interposed in this matter which have caused my client unnecessary delay and a needless increase in the cost of this litigation. On December 19, 1985, Sherk deposed Abril, who testified that he had never spoken to Cunningham, nor paid him any fees. Abril had left the decision whether to dismiss Cunningham to respondent, in "his best judgment." On December 26, 1985, Sherk spoke to respondent again about the stipulation; they agreed to change the language to indicate that no valid claim existed against Cunningham at the present time, because respondent was concerned about potential Rule 11 violations and state bar disciplinary proceedings if he conceded that there never was a valid claim against Cunningham. On January 16, 1986, the parties signed the stipulation, and on January 21, 1986, the trial court ordered Cunningham dismissed from the suit. Sherk testified that his fees for representation of Cunningham in this matter totalled $9,700.65, which was paid for by Harris' malpractice carrier. Cunningham testified that his inclusion in this suit had a financial impact on him both personally and professionally because he was required to report the suit to his malpractice carrier for a five-year period, and the suit caused a "tremendous amount of trouble" with his mortgage lender while he was purchasing a home in late 1985, and "untold grief" in getting his family moved into their new home. In finding ethical violations on this count, the committee noted the long delay in respondent's dismissal of Cunningham after respondent had conceded that Abril had no claim, and noted, "Respondent's actions in pursuing Cunningham are truly perplexing in light of Respondent's attempt to hire Cunningham to continue to prepare the Abril brief after Harris was discharged by 165 Abril." The committee concluded, "there was no good faith basis to file suit against Cunningham, the suit was frivolous and the delay in dismissing the case was due to Respondent's selfish motive of avoiding sanctions and his apprehension of a bar complaint." The commission adopted the committee's finding and, in addition, noted, "The Commission finds the suit against Mr. Cunningham only slightly less offensive than the suit against Mr. Lewis, as Mr. Cunningham did provide legal services on behalf of Mr. Abril." (Emphasis in original.) On appeal, respondent argues again that, because the commission expressly recognized that a cause of action for unauthorized representation might reasonably be argued, no ethical violation for a frivolous claim can exist. He also argues that the commission erred in considering respondent's personal motives. As we have previously discussed, respondent's motives are relevant to whether he presented a good faith claim. Furthermore, even assuming, without deciding, that the legal basis of the claim against Cunningham was objectively reasonable when made, we find that respondent's actions in delaying the dismissal for months after he had acknowledged he had no claim against Cunningham violated E.R. 3.1 and 4.4. We therefore agree with the committee and commission that the ethical violations in count 9 were established by clear and convincing evidence. 8. Count 10: Respondent's Suits Against Harris Count 10 of the bar complaint, as amended, charged that respondent's actions in instituting and maintaining the Levine, P.C. litigation (P.C. litigation) in April 1983 against Harris, Palumbo, and their professional corporation, violated former Rule 29, DR 7-102(A)(1)[12] and DR 7-102(A)(2).[13] This count also alleged that respondent's actions in 1987 in refiling a portion of Abril's action for a declaratory judgment seeking to deprive Harris of the Abril fee, which had been previously dismissed without prejudice, violated E.R. 3.1 and 4.4. We have previously discussed the multiple suits that respondent filed arising out of the breakup of his seventeen-month relationship with Harris. After unsuccessfully pursuing arbitration appeals and bar complaints, respondent, as sole shareholder and director of his professional corporation, instituted suit on behalf of the professional corporation in superior court against himself, his wife, Harris, Palumbo, their wives, and their professional corporation. Respondent's reason for pursuing modification of the arbitration award through the courts was that the award was unenforceable because it did not specify a sum certain nor give a description of the specific assets awarded him.[14] He brought the additional 1983 P.C. litigation against Harris and Palumbo because he did not believe the professional corporation was a "party" to the arbitration litigation, and that the corporation had an independent right to a determination of its property rights in the assets divided by the arbitration award. He believed the P.C. suit "was kind of a technical kind of lawsuit. It was not a lawsuit and [I] never looked upon it as being anything other than a determination of property rights," and he noted that another attorney 166 initially represented the corporation in that action. Additionally, in 1987 respondent refiled, on behalf of Abril, the declaratory judgment portion of the Abril v. Harris litigation that had been previously dismissed without prejudice as premature.[15] After years of litigation, Harris and Palumbo eventually prevailed with sanctions against respondent for frivolous and harassing suits. In granting summary judgment for defendants in the consolidated litigation and awarding fees against respondent, the trial court specifically found that respondent's claims constituted harassment, were groundless and not made in good faith. It further found that the legal theories present were minimal, and that Harris had requested fees in the sum of $196,304. The trial court awarded $150,000 in fees against respondent, his wife, and his professional corporation. In finding these suits frivolous and brought in bad faith, the committee also determined that the suit "resulted from Respondent's desire to secure for himself the fee for Harris' work in Abril's bad faith case." The committee found by clear and convincing evidence that respondent's conduct in filing the P.C. litigation in 1983 violated former Rule 29, DR 7-102(A)(1) and DR 7-102(A)(2), and that respondent's conduct in refiling the 1987 Abril suit violated Rule 42, E.R. 3.1 and 4.4. We agree with the findings of the commission on this count. The claims asserted in the 1983 P.C. litigation had been finally and fully litigated in the arbitration award, which had been confirmed by the superior court, affirmed in the court of appeals, and was the subject of a judgment on mandate; as the trial court correctly concluded, those claims were res judicata as to the professional corporation. We find incredible respondent's contention that he believed his professional corporation was not a "party" to the arbitration. We further find outlandish his argument that he cannot be held accountable for the P.C. litigation because he did not act as the corporation's attorney on the case. As the committee pointed out, no evidence was presented that anyone other than respondent had control over the professional corporation. Furthermore, we agree with the committee's conclusion that respondent continued the Abril litigation in 1987 not in the interests of his client, but to claim for himself Harris' portion of the contingency fee in that case. In the nine years of this litigation, respondent exhibited unusual animosity toward his former partner and his associates, coupled with a concerted refusal to acknowledge the unreasonableness of his legal position in pursuing these claims. As the commission noted, respondent's actions "caused the expenditure of substantial sums, by lawyers, insurance companies and the court systems." The ethical violations alleged in count 10 of the bar complaint are supported by clear and convincing evidence. 9. Count 14: Actions Through Others As originally pleaded, count 14 of the bar complaint alleged: During the course of the lawsuits instituted on behalf of Anthony Aleman Abril, Jr., set forth in Counts 1-10 above, 167 and through the dissolution proceedings of Levine and Harris, P.C., since 1981 through and including September 6, 1989, you have violated or attempted to violate the Rules of Professional Conduct and Code of Professional Responsibility then in effect by knowingly doing so or doing so through the acts of another. Your conduct violates Rule 29 of the Arizona Rules of the Supreme Court then in effect at the time, specifically DR 1-102 and 9-102 and Rule 42 of the Arizona Rules of the Supreme Court, specifically E.R. 3.1 and 4.4. On the sixth day of testimony before the committee, bar counsel amended the complaint to change the violation of E.R. 4.4 to a violation of E.R. 8.4,[16] due to a typographical error. Both the committee and respondent expressed confusion about the scope of this count throughout the proceedings. Addressing counts 13 and 14 in his opening statement, respondent stated, "I submit it really does amount to a ... denial of due process ... for me or anyone to have to defend against allegations that are almost nine years old."[17] Bar counsel, during his opening statement, explained that count 14 was "an overlying count." He later explained that count 14, "in essence combines the previous counts alleging that the course of conduct by Mr. Levine throughout these proceedings has been in violation of the Ethical Rules and the Disciplinary Rules then in effect at the time." No explanation was offered as to how count 14 added any further allegation of misconduct to the previously alleged counts. After several days of testimony, a committee member questioned whether any of the counts included misconduct regarding that portion of the Abril v. Harris suit seeking a declaratory judgment that Harris should not be entitled to attorney's fees in the Globe litigation. Bar counsel responded that that portion of the Abril suit was included in count 14, because count 14 "relates to the entire activity of Jack Levine." At the end of the sixth day of testimony, after respondent had finished his direct testimony on all the counts except for count 14, bar counsel stated, "the thrust of Count 14 is the declaratory judgment action filed by Mr. Abril that had been previously dismissed." The following dialogue then occurred between bar counsel and the committee members: MR. CASE: Clarify for me, please, before we start, what lawsuit does Count 14 [BAR COUNSEL]: Count 14 is a lawsuit let me explain that is a count that alleges the conduct encompassed by the first 13 counts. Specifically in that count it deals with cause number ... [CV] 87-05413 [Abril's second declaratory judgment action against Harris]. MR. COPPLE: I think part of our concern in trying to figure out the allegation in Count 14 just says during the course of the Abril lawsuits alleged or set forth in Counts 1 through 10. [BAR COUNSEL]: Right. If you look at Count 10 itself it mentions the consolidated actions including CV 87-05413. MR. COPPLE: So what you are doing in essence is realleging the misconduct or the allegations in 1 through 10 and saying that he did that through Mr. Abril? [BAR COUNSEL]: Right.... He has answered all of them, the discussion of the Cause Number 87-05413. MR. COPPLE: Okay. As I read that then, my understanding of that as a Committee member, Jack, is that the State Bar has limited the allegations under Count 14, that whatever misconduct was alleged against you in 1 through 10 individually, that now they say that was also misconduct by doing it through Anthony Abril; is that correct? 168 Because you say through the acts of another. [BAR COUNSEL]: Uh-hum, that is correct. .... MR. COPPLE: Okay. If that's the way the State Bar is telling us it [interprets] Count 14, then I think your testimony need only be limited to your position. Did you try to do all of this through Anthony Abril? MR. LEVINE: ... Are we not going to deal with the second declaratory judgment action? [BAR COUNSEL]: Well, yes, let me explain, and I will take some blame for the confusion in here. Count 10 originally as alleged was to encompass the series of consolidated actions in this case. Upon my review of the notes and the evidence that I had to compile I realized that I wanted to, in fact, limit the discussion in that particular count to the Cause Number 485866. It is my contention and understanding that the cause number which is the declaratory judgment action could also be encompassed under either Count 10 or Count 14 since that was all part of the consolidated actions. The cause number which is the declaratory judgment action in CV 87-05413, which are Exhibits 95 through 104, are simply the reallegation of the declaratory judgment action that existed in the original complaint in 546215 which makes up Counts 1 through 4. But merely when the court dismissed that without prejudice, that was reasserted in the new Cause 87-05413. Now Mr. Abril is being represented by Mr. Levine in this action. MR. LEVINE: All right. I'd like to testify to clarify this, because I know what he's getting at. I think I can explain it and get it clear in your minds. Because of the lateness of the day, however, respondent's testimony regarding this count was continued until the next hearing date, six days later. Before respondent's testimony, bar counsel moved to amend count 14 as noted above, without objection from respondent. Bar counsel further clarified the relationship of the other counts to count 14, changing his position from the previous hearing: [BAR COUNSEL]: Count 10 let me preface this just briefly. Count 10 was to deal with ... the activities that arose from the consolidated actions, specifically there were two cause numbers that were to be brought before the Disciplinary Committee, Cause Number 485866. The other cause number was CV 87-05413. Previously I had indicated that the evidence under CV 87-05413 could come in under Count 14. That was erroneous in talking about that in the fact that I think Friday, at the end of the day I was being questioned on it, and that's erroneous. Bar counsel then amended count 10 to include the second declaratory judgment action by Abril, CV 87-05413, as a violation of E.R. 3.1 and 4.4. When respondent began his testimony regarding count 14, he mentioned cause number CV 87-05413, the second Abril declaratory judgment action against Harris, and explained, "which is the subject of Count 14," without correction from bar counsel or the committee. At the end of his testimony about that action, he concluded his presentation of evidence. In closing argument, bar counsel argued: That's what Count 14 is about. It's the use of Mr. Abril or the use of Mr. Thrasher or the use of Mr. Cohen [in the P.C. litigation] to conduct or circumvent the rules of the Disciplinary Rules or to violate the Ethical Rules. In making his recommendation for sanctions, bar counsel stated: Count 14, since it is merely a reiteration of the counts of 1 through 10, it's the same recommendation as to counts 1 through 10. In its report, the committee made the following relevant findings regarding count 14: Count 14 alleges that Respondent violated the ethical rules by using others to circumvent the rules in filing the actions specifically set forth in Counts 1 through 10. Bar counsel argues that Respondent 169 committed ethical violations through the use of others to be counsel to his professional corporation and by using Abril as a nominal plaintiff when the lawsuits were actually for Respondent's benefit. The Committee finds that Respondent's conduct in having his professional corporation sue Respondent and Harris for among other things conversions and breaches of fiduciary duty is conduct which violates Ethical Rules 8.4(a), (c), and (d).... The Committee finds that the violation of E.R. 8.4(c) is that of misrepresentation; the misrepresentation being the allegation of serious breaches on the part of Harris which Respondent knew to be false. (Emphasis added.) The committee also found the damages request in the original complaint in Abril v. Harris to be "absurd monetary claims" that damaged the original defendants in that suit by making it difficult for them to obtain malpractice insurance, and found by clear and convincing evidence, without further discussion of the client's involvement, that "Respondent's conduct set forth in Counts 1-10 violates E.R. 3.1 and E.R. 8.4, Rule 42, Rules of the Supreme Court and DR 1-102,[18] former Rule 29." Regarding count 14, the commission adopted the findings of the committee without discussion. On appeal, respondent complains that count 14 "does not identify any specific conduct that is alleged to be improper," and fails to give respondent due process notice of its scope. The state bar merely responds that the committee's findings "speak for themselves." Given the above history of the confusion regarding the scope of this count by not only the committee but bar counsel, we must agree with respondent that count 14 fails to adequately charge respondent with the misconduct that the committee found on this record. As originally charged, count 14 added nothing to the allegations already contained in counts 1 through 10 of the complaint. However, bar counsel's belated attempt to amend the count to charge a violation of E.R. 8.4 added a new theory that the conduct in counts 1 through 10 were also unethical as performed "through the acts of another." This might have been a viable theory on this record if bar counsel had not limited and changed the scope and breadth of count 14 continually through the hearings until it became, in our opinion, almost incomprehensible to defend against, as evidenced by respondent's belief, after long discussion over several days, that count 14 now alleged only the second Abril suit for declaratory relief against Harris, and as also evidenced by the committee's apparent confusion about which lawsuits were included in count 14. Bar counsel has the discretion to move to amend a bar complaint to conform to the proof or to include further charges at any time before or during the disciplinary hearing; however, respondent must be given a reasonable opportunity to respond to the amendment. Rule 55(a), Rules of the Arizona Supreme Court. We normally will not invalidate a finding of misconduct by the committee due to a technical error in bar counsel's pleading. Rule 54(i), Rules of the Arizona Supreme Court. However, a greater concern guides us in this circumstance: a lawyer has the right to procedural due process in a disciplinary proceeding. In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968); In re Myers, 164 Ariz. 558, 795 P.2d 201 (1990); In re Riley, 142 Ariz. 604, 691 P.2d 695 (1984). In Riley, we construed the procedural due process guarantee in Ruffalo to allow amendment to a bar complaint during 170 the proceedings to add additional violations if respondent had ample opportunity to respond. 142 Ariz. at 609, 691 P.2d at 700. Additionally, Ruffalo requires that such amendment not be based upon respondent's testimony prior to his knowledge of the amended allegations. 390 U.S. at 551, 88 S.Ct. at 1226. In Myers, we found that, absent such amendment and opportunity to respond, elemental due process would be violated by finding that respondent had committed uncharged ethical violations. 164 Ariz. at 562, 795 P.2d at 205. Here, an allowable amendment was made, but charged a violation so broad and vague that extensive and inconclusive explanation was required throughout the proceedings to unsuccessfully define its scope. Under these circumstances, count 14 did not meet procedural due process by giving respondent either notice of the alleged acts of misconduct or any realistic opportunity to defend himself against them. We therefore do not accept the commission's findings as to this count, and we strike count 14 from the amended complaint. IV. SANCTIONS A. Standards for Determining Sanctions This court gives great weight to the recommendations of the committee and commission; however, we are ultimately responsible for determining the appropriate sanctions. In re Lincoln, 165 Ariz. 233, 235, 798 P.2d 371, 373 (1990); In re Neville, 147 Ariz. 106, 108, 708 P.2d 1297, 1299 (1985). In making that determination, we are guided by the purpose of disciplinary proceedings, which "is not to punish the lawyer, but to protect the public and deter similar conduct by other lawyers." In re Rivkind, 164 Ariz. 154, 157, 791 P.2d 1037, 1040 (1990). An additional goal of the disciplinary system is to preserve the public's confidence in the integrity of the bar. In re Hoover, 161 Ariz. 529, 534, 779 P.2d 1268, 1273 (1989). For further assistance, we may look to the American Bar Association's Standards for Imposing Lawyer Sanctions (1986) (Standards), which we consider a "useful tool in determining the proper sanction." In re Cardenas, 164 Ariz. 149, 152, 791 P.2d 1032, 1035 (1990). Under the Standards, before imposing sanctions the court should consider: (a) the duty violated; (b) the lawyer's mental state; and (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. Standard 3.0; see In re Anderson, 163 Ariz. 362, 365, 788 P.2d 95, 98 (1990). In this case, the nature of the duty violated was respondent's abuse of the legal process. Standard 6.2 applies to such ethical violations. The subsections of that standard establish what the appropriate sanctions should be based on respondent's state of mind and the extent of injury to others. Thus, disbarment is appropriate when the violation is intentionally committed. See Standard 6.21, Commentary. Likewise, suspension is appropriate "when a lawyer knows that he is violating a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding." Standard 6.22 (emphasis added). If the violation is merely the result of negligence, reprimand is generally appropriate. Standard 6.23. The committee addressed respondent's state of mind as follows: Unfortunately the Respondent has engaged in a near decade long quest to make Harris and Palumbo pay for imagined faults, breaches and lapses. There is no evidence that Harris, Palumbo or the other individuals and entities which suffered as defendants in suits prosecuted by Respondent deserved to be pursued for anything.... The Committee is simply astounded that Respondent did not wake up to his blind spot when faced with sanction after sanction and rebuke after rebuke over a period of many years. We have previously held that actual knowledge of a frivolous litigation may be inferred from the circumstances. See section 171 III(A), supra. Although the committee found evidence that respondent sincerely disagreed with most of the court rulings against him, the commission concluded that: Respondent justified many of his acts by his reliance on his client's instructions. Respondent, with his many years of experience in the legal profession, knows, or should know, that improper conduct, whether or not directed by a client, constitutes improper conduct. The commission rejected respondent's argument that he did not possess the requisite "knowledge" to receive a sanction of suspension. We agree that the evidence in this record is clear and convincing that respondent knowingly pursued frivolous claims. Respondent was repeatedly sanctioned at every judicial level for his objectively groundless claims; whether those rulings were substantively correct or not, they would certainly give a reasonable lawyer conscious awareness that his continuing conduct based on the same claims might be considered culpable under the ethical rules. See Hazard, supra, at 331. Thus, despite respondent's protestation of his sincerity in making these claims, we can infer sufficient knowledge that suspension is warranted under the standard. Moreover, we agree with bar counsel that the committee's characterization of respondent's "blind spot" was in reference to his lack of objectivity in any actions regarding Harris, rather than a reference to a lack of knowledge that he may have been violating an ethical rule. We also agree that respondent's action resulted in injury to others during the nine years of multiple litigations involved in this matter. As the committee pointed out: The violations resulted in hundreds of thousands of dollars of legal fees being expended in the defense of frivolous lawsuits, the waste of the untold hours of judicial time, placed burdens upon the various defendants (both financial and otherwise) and caused other serious problems. Besides the money spent to defend against various suits, the committee found that the defendants in these suits were also injured by their inability to obtain malpractice insurance for a period of years, and then faced increased costs of insurance afterwards, because of respondent's groundless lawsuits. Additionally, two of the victims of frivolous claims experienced difficulties with personal financing due to the contingent liability cast on their credit records by respondent's unfounded suits. B. Aggravating and Mitigating Factors Having found misconduct and having reviewed the appropriate standards for discipline, we turn next to the factors in aggravation and mitigation to determine whether they support the recommended sanction. See Standard 9.1. The committee found five factors in aggravation: (1) dishonest or selfish motive, see Standard 9.22(b); (2) a pattern of misconduct, see Standard 9.22(c); (3) multiple offenses, see Standard 9.22(d); (4) refusal to acknowledge wrongful nature of conduct, see Standard 9.22(g); and (5) substantial experience in the practice of law, see Standard 9.22(i). The commission did not refer to these factors in its report, but noted that it had "reviewed and considered the arguments concerning sanctions, as well as the Committee Findings in that regard." We agree that all of these aggravating factors are supported by the record except for "pattern of misconduct." See Standard 9.22(c). Although respondent's conduct constituted "multiple offenses," in that he brought several frivolous claims against multiple defendants over a period of years, see Standard 9.22(d), we do not believe his misconduct constitutes a "pattern" as contemplated by the standard. Such a "pattern" has been found in the past under circumstances in which a respondent either faces us with a prior disciplinary record involving the same or similar wrongdoing, or when a respondent's misconduct involves 172 multiple clients. See, e.g., In re Lincoln, 165 Ariz. 233, 236, 798 P.2d 371, 374 (1990) ("respondent's history of disciplinary offenses shows a pattern of similar misconduct"); In re Galusha, 164 Ariz. 503, 505, 794 P.2d 136, 138 (1990) ("respondent's previous bar record demonstrates a chronic pattern of misconduct"); In re MacAskill, 163 Ariz. 354, 361, 788 P.2d 87, 94 (1990) ("[r]espondent engaged in numerous acts of misconduct in handling several clients' matters to the injury of those clients"); In re Tarletz, 163 Ariz. 548, 789 P.2d 1049 (1990) (multiple clients). See also State v. Dixon, 233 Kan. 465, 664 P.2d 286 (1983) (respondent's pattern of neglecting clients' matters in fourteen separate probate proceedings; cases considered spanned more than twenty years). The more usual type of "pattern of misconduct" typically considered an aggravating factor is described in Galusha: We note that respondent was involved in another disciplinary matter, involving similar misconduct, at the time he agreed to perform services for the client in this matter. We also note that respondent was aware of the Commission's recommendation that he be suspended for six months and one day in that matter. Despite heightened awareness of his duties and responsibilities, respondent knowingly failed to fulfill his ethical obligations to his client. 164 Ariz. at 505, 794 P.2d at 138. In contrast to these prior cases in which we have found a "pattern of misconduct," in this case respondent has no prior disciplinary record, nor do we find that the existence of multiple counts of misconduct in this case necessarily constitutes a "pattern." For example, bar counsel readily conceded during the proceedings that although the complaint alleged fourteen counts, many were duplicates of others, and the allegations were separated only for the administrative purpose of sorting out the exhibits and histories of the proceedings. The allegations generally involved the filing of two overlapping litigations, which were eventually consolidated the P.C. suits and the Abril v. Harris matter both naming the same core defendants. Only one client, Abril, was involved in these litigations. We also believe that a finding of a "pattern" of misconduct is inconsistent with the committee's statement that "[t]he fourteen-count Complaint relates to one underlying fact situation and the Respondent's reaction to that situation." Under these circumstances, we do not find a "pattern of misconduct" sufficient to constitute an additional aggravating factor to the "multiple offenses" we have already found. The committee found only two mitigating factors: (1) absence of a prior disciplinary record, see Standard 9.32(a); and (2) reputation, see Standard 9.32(g). Additionally, the committee found the following factors neither aggravating nor mitigating: (1) forced or compelled restitution, see Standard 9.4(a); and (2) agreeing to the client's demand for certain improper behavior or result, see Standard 9.4(b). We agree that the record supports the existence of these mitigating and neutral factors. We give great weight, in particular, to respondent's previous unblemished disciplinary record as well as his professional contributions and accomplishments during his 30 years of practice. See In re Mulhall, 159 Ariz. 528, 768 P.2d 1173 (1989) (unblemished record prior to misconduct is mitigating). The record before us indicates that respondent is heavily involved in continuing legal education programs, has become certified in his area of expertise, and has actively participated in several bar sections and committees, as well as other professional organizations. We give particular weight to respondent's avowal that he has never been sanctioned in any court for frivolous claims before or since these suits arose. We agree with respondent's counsel's characterization at oral argument: this was a "bizarre" set of circumstances, and "aberrational" behavior for a lawyer of respondent's stature in the legal community. 173 We believe, however, that additional mitigating factors are present on this record and are relevant: (1) personal or emotional problems, Standard 9.32(c); (2) full and free disclosure to disciplinary board or cooperative attitude toward proceedings, Standard 9.32(e); (3) interim rehabilitation, Standard 9.32(j); and (4) imposition of other penalties or sanctions, Standard 9.32(k). First, the record consistently indicates that respondent's "blind spot" in these litigations was due, in part, to the personal and emotional turmoil that arose out of the breakup of the Levine & Harris law practice. Several witnesses likened the partnership dissolution to a bitter divorce, with all its attendant emotional pain. Additionally, respondent experienced personal financial hardships as a result of the dissolution of the firm, which contributed to his lack of objectivity in these matters. Respondent has acknowledged his emotional problems in this regard, and has sought evaluation and counseling to address the "blind spot" that he now admits. Second, respondent's cooperation during the committee proceedings is very apparent on this record. He consistently stipulated to the admission of bar exhibits, allowed interruption of the flow of his own testimony so that witnesses could testify at their convenience and to allow volunteer committee members to meet their personal scheduling requirements, and declined to delay the proceedings, perhaps to his own disadvantage, when bar counsel raised new issues or allegations of which respondent was previously unaware. Third, respondent has made significant efforts at voluntary interim rehabilitation. See In re Murray, 159 Ariz. 280, 283, 767 P.2d 1, 4 (1988) (portion of suspension reduced because of respondent's rehabilitative effort since the misconduct). In his statement on review, respondent noted that he was implementing a three-prong voluntary rehabilitative program to address the committee's concerns, involving the following efforts: (1) the institution of a mentoring program with attorney George Sorenson to address the committee's hope that future disputes between respondent and Harris be avoided; (2) a program of evaluation and counseling by Robert Shapiro, M.D., a psychiatrist, to eliminate the "blind spot" pointed out by the committee; (3) participation in continuing legal education programs addressing the specific ethical rules involved in this case. In a letter submitted to the commission on February 7, 1991, Mr. Sorenson agreed to participate in a mentoring program involving the following terms: (1) Mr. Sorenson will be available to respondent for advice and recommendations on any pending or future disputes between respondent, as a party or lawyer, and John D. Harris and Anthony Palumbo; (2) Respondent agrees to be bound by Sorenson's advice, including a conclusion that respondent's position in any dispute is without merit; (3) Mr. Sorenson will meet periodically with respondent and assist him professionally as a mentor and advisor as circumstances arise. At oral argument, counsel for respondent informed this court that respondent has participated in this voluntary program since that agreement, and has no objection to its incorporation into terms of disciplinary probation. We find this is a mitigating factor to be considered in imposing a sanction. See Rivkind, 164 Ariz. at 160, 791 P.2d at 1043. Fourth, we find that the imposition of other sanctions and fees by the courts, to the extent that respondent has paid them or will pay them in the future, should be considered in mitigation. See, e.g., In re Lamberis, 93 Ill. 2d 222, 66 Ill. Dec. 623, 443 N.E.2d 549 (1982) (disciplinary sanctions already imposed by university for attorney's plagiarism were considered in mitigation). In this case, the record indicates that respondent has previously paid many of the sanctions imposed by the courts against him personally, totalling thousands of dollars. 174 Thus, the injury incurred has in some measure been alleviated. Failure to consider this alleviation of injury in imposing a disciplinary sanction would result in punitive action, which is not the object of these proceedings. See In re Arrick, 161 Ariz. 16, 22, 775 P.2d 1080, 1086 (1989). Our final consideration prior to imposing sanctions is the purpose of the sanction. In this case, we do not believe that the lengthy suspension recommended by the committee and the commission is necessary to achieve the goals of discipline. Indeed, the committee pointed out that, if it "could severely restrict Respondent's practice and/or recommend other requirements consistent with the purposes of lawyer discipline[,] the period of suspension might be shorter with even greater protection of the public."[19] Additionally, two members of the commission did not support the recommended sanction of three years suspension because they thought it was too lengthy "in light of the likelihood that Respondent will not re-engage in similar conduct." In considering the goals of discipline, the committee found no great likelihood that respondent's misconduct would be repeated or that suspending him from the practice of law would greatly protect the public. The commission specifically found that respondent "did not engage in activities in an effort to harm the general public." We agree with these observations. We further conclude that respondent has made sincere efforts at rehabilitation, and believe those efforts "demonstrate that the public and the legal system are unlikely to suffer a risk of future misconduct." See Rivkind, 164 Ariz. at 160, 791 P.2d at 1043. Because we have found four additional mitigating factors on this record that were not considered by the committee or the commission, and have found no support for one aggravating factor that those tribunals considered, we conclude that the recommended sanction is too harsh. Under these circumstances, a lengthy suspension "would accomplish nothing more than the needless destruction of respondent's career." Hoover, 161 Ariz. at 535, 779 P.2d at 1274. We believe that this case meets the criteria for the sanction of probation. See Rule 52(a)(6)(B) ("Probation may be imposed only in those cases in which there is little likelihood that the respondent will harm the public during the period of probation, and the conditions of probation can adequately be supervised"); see also Standard 2.7, Commentary ("Probation is a sanction that should be imposed when a lawyer's right to practice law needs to be monitored or limited rather than suspended or revoked"). The imposition of terms of probation that incorporate respondent's rehabilitative efforts, including the mentoring program and counseling, will sufficiently reduce the likelihood that respondent will engage in future misconduct and will provide a means to provide restitution to the victims of his previous misconduct. C. Proportionality In the past, we have considered the question of proportionality appropriate in imposing disciplinary sanctions; however, as always, our primary obligation is to tailor the discipline according to the facts in each case. In re Murray, 159 Ariz. at 283, 767 P.2d at 4; see In re Wines, 135 Ariz. 203, 207, 660 P.2d 454, 458 (1983). Due to the unique facts of this case, however, the committee had difficulty in finding other misconduct that could be used as a direct comparison, because "no dispositive series of cases exists with conduct such as in this case." The commission also acknowledged that "cases like this one do not fit within `cubby holes.'" See Rivkind, 164 Ariz. at 160, 791 P.2d at 1043 (in case of first impression under amended Arizona rules, court may consider "somewhat analogous cases"). 175 We find a similar problem in conducting a proportionality review in this case. A review of Arizona disciplinary cases that have warranted similar sanctions a combination of suspension and probation is unavailing, as this case is truly sui generis. We have found no case with misconduct of the unusual nature of this case, so we must tailor the discipline to these unique facts, rather than base the sanction on any comparison of how we have disciplined similar misconduct. See Murray, 159 Ariz. at 283, 767 P.2d at 4; Wines, 135 Ariz. at 207, 660 P.2d at 458. However, our conclusion that a three-year suspension is too harsh is supported by considering analogous cases from other jurisdictions. For example, in the Colorado case involving a three-year suspension for the filing of frivolous claims, the lawyer was also found in contempt of court, failed to surrender himself to the sheriff, and abused the judicial process in an effort to avoid child support payments. People v. Kane, 655 P.2d 390 (Colo. 1982). The two-year suspension imposed in In re Sarelas, 360 F. Supp. 794 (N.D.Ill. 1973), aff'd, 497 F.2d 926 (7th Cir.1974), was a result of an attorney's conduct in filing fifteen frivolous separate suits involving unrelated parties, including defamatory and vituperative claims. In the Montana case on which the committee relied, a lawyer was suspended for only three months for conduct which included not only the filing of frivolous claims, but also disobedience of a court order, a threat to a public official, and several violations of the conflict of interest rules. In re Belue, 232 Mont. 365, 766 P.2d 206 (1988). As with the cases cited by bar counsel, we find respondent's cases likewise distinguishable. Respondent cites two Florida cases in which the courts imposed only a public reprimand for repeated filing of frivolous claims under one cause of action; however, we find that those cases do not involve the extent of harm to the victims of the unfounded claims as is evident in this case.[20]See Florida Bar v. Clark, 528 So. 2d 369 (Fla. 1988) cert. denied, 488 U.S. 999, 109 S. Ct. 774, 102 L. Ed. 2d 767 (1989); Florida Bar v. Rosenberg, 387 So. 2d 935 (Fla. 1980); see also Florida Bar v. Thomas, 582 So. 2d 1177 (Fla. 1991) (respondent who filed frivolous suit to punish another attorney publicly reprimanded and placed on one-year probation). Although these cases indicate that a three-year suspension may be too harsh a disciplinary sanction in this case, no comparable case indicates what a proportionate sanction would be. In tailoring the discipline to the unique facts before us, we conclude that a combination of short-term suspension followed by probation will allow us to structure respondent's sanction toward the goals of discipline without punishing the misconduct. We therefore find it appropriate to impose a six-month period of suspension prior to a term of probation in this case. Such a suspension is warranted to serve the goals of deterrence of similar misconduct by others, and to maintain public confidence in the integrity of the bar. See In re Castro, 164 Ariz. 428, 433, 793 P.2d 1095, 1100 (1990); Hoover, 161 Ariz. at 534, 779 P.2d at 1273. However, respondent's suspension will not be effective until sixty days from the date of this opinion, to allow time for respondent to make arrangements for his pending client files to be handled during his suspension. See Hoover, 161 Ariz. at 535, 779 P.2d at 1274. Because the suspension is for six months, the reinstatement 176 provisions of Rule 71(c), rather than those of Rule 71(d), shall apply. At the end of his six-month suspension, respondent will begin an initial two-year period of probation as provided by Rule 52(a)(6)(A), under the terms and conditions provided herein. D. Conclusion We agree with the commission that clear and convincing evidence supports the findings of ethical violations on all counts except for counts 2 and 14. We find no pattern of misconduct as an aggravating circumstance, and we find four additional mitigating circumstances not weighed by the commission or committee in imposing sanctions. Finally, we find a three-year suspension too harsh, and find that a six-month suspension followed by a two-year probationary term is appropriate under the unique facts of this case. V. DISPOSITION Respondent is suspended for a period of six months, effective sixty days after the filing of this opinion. Respondent's reinstatement after suspension will be as provided for in Rule 71(c). Upon reinstatement, respondent shall be placed on probation for a period of two years, subject to extension as provided for by Rule 52(a)(6)(A). The state bar shall submit proposed probationary terms prior to the commencement of the probationary period, which shall include, at a minimum, the following terms: 1. Respondent shall continue regular consultation and treatment with Robert Shapiro, M.D., in an effort to recognize and resolve the emotional problems that led to his "blind spot" in these litigations; 2. Respondent shall cause Dr. Shapiro to file a report of respondent's progress with chief bar counsel or her designee every ninety days during the first year of probation and every six months thereafter; 3. Respondent shall continue the mentor program established with attorney George Sorenson, as outlined in the agreement dated February 7, 1991, which provides that Mr. Sorenson will monitor all pending and future disputes between respondent and the parties to these litigations, and shall make a decision binding on respondent as to the merit of any action respondent takes in regard to such disputes. If Mr. Sorenson is unwilling or unable to continue as mentor for the length of respondent's probation, respondent shall obtain approval to substitute another appropriate mentor in his place. 4. Mr. Sorenson will report to the state bar any conduct respondent engages in that is contrary to Mr. Sorenson's decisions, as well as any conduct that appears to fall below the minimum standards of the profession as set forth in Rule 42, Rules of the Arizona Supreme Court. 5. Respondent will attend a minimum of twelve hours a year of continuing legal education programs on the subject of ethics, including those that address the particular rules violated in this case. 6. Respondent will provide to the state bar an itemization, with documentation, of which sanctions and awards of attorney's fees imposed against him personally in the prior judicial proceedings referenced in this case have been paid and which are still due and owing. 7. Respondent shall pay the unpaid fees and sanctions as restitution to the persons financially injured, pursuant to Rule 52(a)(7), regardless of the inclusion of the underlying judgments in his bankruptcy.[21] The state bar shall prepare a repayment 177 plan to provide for respondent's payment of any fees and sanctions still owing. 8. Respondent shall pay all costs that are or will be due and owing to the state bar as a result of respondent's probation prior to the termination of probation. 9. In the event that respondent fails to comply with any condition of probation, bar counsel shall file with the hearing committee a Notice of Non-Compliance. The hearing committee shall conduct a hearing at the earliest possible date, not to exceed thirty days after receipt of the notice, to determine whether a violation of probation has occurred, and, if so, to recommend an appropriate sanction. The state bar shall have the burden to prove noncompliance by a preponderance of the evidence. Respondent shall also pay $15,941.95 to the state bar for the costs and expenses of these proceedings. Because of due process concerns, we decline to follow the recommendation of the committee that respondent be ordered to immediately dismiss any remaining actions or pending appeals in these litigations or be prohibited from filing any future suits under any set of facts against any of these defendants.[22] We feel that compliance with probationary terms 3 and 4 have provided adequate protection in this regard. Respondent is suspended, with probation imposed. MOELLER, V.C.J., CORCORAN, J., and BROOKS and SHELLEY, JJ. (Retired), concur. NOTE: Chief Justice STANLEY G. FELDMAN and Justice THOMAS A. ZLAKET recused themselves and did not participate in the determination of this matter; Judges EINO M. JACOBSON and J. THOMAS BROOKS of the Arizona Court of Appeals, Division One, were authorized to participate in this case by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Constitution, article VI, § 3. Judge MELVYN T. SHELLEY, now retired, was also designated to participate in this matter, but was unable to sign this opinion due to his extended absence from the country. NOTES [1] The conduct alleged in the bar complaint occurred both prior to and after February 1, 1985. The current Rules of Professional Conduct in Rule 42 replaced the Code of Professional Responsibility in former Rule 29(a) effective February 1, 1985. Thus, the former Disciplinary Rules apply to respondent's conduct before February 1, 1985, while the current Ethical Rules apply to his conduct after that date. [2] Respondent was also charged with a violation of DR 1-102(A)(4) in count 11 (attempting to settle case of persons not your clients); a violation of E.R. 4.2 in count 12 (communicating with another attorney's client without his consent); and a violation of DR 9-102 in count 13 (failing to preserve client funds). However, these counts were dismissed by the hearing committee and are not before us on appeal. [3] The professional corporation was technically represented by attorneys Mitchel Cohen and R.Y. Thrasher. [4] Respondent relies on the literal wording of the comment to E.R. 3.1 to argue that only the subjective motive of the client is material in determining whether a claim is frivolous. He contends that "[t]here is absolutely no evidence in the record that Anthony Abril, the only client whom Mr. Levine represented in the litigation at issue, desired to harass or injure another person." To the contrary, we find a strong inference in the record that Abril was motivated in part in seeking to strip Harris of a fee in the Globe litigation to punish Harris for telling a reporter about his personal habits and that respondent was aware of that motivation. However, because bar counsel did not contend that these claims were frivolous because of Abril's subjective motive to punish Harris for other events, and neither the committee nor the commission made findings on Abril's subjective intent in bringing suit against Harris, we will not address this issue for the first time on appeal. We also note, however, that the committee concluded that, as sole controlling party to the professional corporation, respondent was, in effect, the "client" in the P.C. litigation. ("It is accurate to conclude that as a practical matter Respondent sued himself.") To that extent, even under respondent's restrictive reading of E.R. 3.1, respondent's subjective motive as the "client" would become material. [5] Rule 25, Arizona Rules of Civil Appellate Procedure, provides: Where the appeal is frivolous or taken solely for the purpose of delay, ... the appellate court may impose upon the offending attorneys or parties such reasonable penalties or damages ... as the circumstances of the case and the discouragement of like conduct in the future may require. [6] Both bar counsel and the committee pointed out that, if Abril pursued a theory of respondeat superior against Palumbo for Harris' actions regarding the judgment renewals, he logically could have pursued a similar theory against both Levine and Levine's professional corporation for Harris' actions in entering the Piatt fee agreement in 1981, when Harris was employed by Levine & Harris, P.C. We do not discuss any potential conflict of interest arising from these facts, because that conduct was not alleged in the bar complaint. In re Myers, 164 Ariz. 558, 562, 795 P.2d 201, 205 (1990). [7] The count for declaratory relief was dismissed without prejudice as premature because the appeal was still pending in the Abril v. Globe litigation and Abril had not yet incurred a contingency fee to Harris. Levine refiled the declaratory judgment action in 1987. Count 10 addresses this cause of action. [8] We do not address either the propriety or impropriety of the Harris-Piatt fee agreement in this opinion, as that issue is not before us. [9] Respondent also named as defendants in the federal suit Daniel Cracchiolo, Edwin D. Fleming, Burch & Cracchiolo, P.A. (Harris' attorneys in the Abril suit); Hartford Fire Insurance Co. and its Affiliates (Harris' malpractice carrier); Anthony J. Palumbo; Harris & Palumbo, P.C.; and R.G. Godbehere, in his official capacity as Sheriff of Maricopa County. [10] On April 6, 1987, while the defendants' motion to dismiss was still pending but after the reply had been filed, the United States Supreme Court issued its opinion in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10, 107 S. Ct. 1519, 1525, 95 L. Ed. 2d 1 (1987), holding that the federal district court in that case should have abstained from considering a suit seeking to enjoin enforcement of a state court judgment under the doctrine in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). [11] Lewis received only the following public records from the Abril litigation: Notice of Appeal, Notice of Satisfactory Arrangements for Court Reporter Payment, Bond for Costs on Appeal, minute entry settling supersedeas bond, Supersedeas Bond, Motion for New Trial and Response. [12] Former DR 7-102(A)(1) provided: (A) In his representation of a client a lawyer shall not: (1) File a suit, assert a position ... or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. Former Rule 29, Rules of the Arizona Supreme Court. [13] Former DR 7-102(A)(2) provided: (A) A lawyer shall not: (2) Knowingly advance a claim ... that is unwarranted under existing law.... Former Rule 29, Rules of the Arizona Supreme Court. [14] The arbitration award provided that, except for $7,300 awarded to Harris, and except for the division of pending contingency fees from clients, "assets of the partnership and/or the professional corporation known as Levine & Harris not otherwise provided for herein shall remain the property of Jack Levine and/or his professional corporation." The arbitrator also found that "Levine & Harris, P.C., consisted of a partnership between Jack Levine and John D. Harris which was in existence for approximately 17 months." [15] We consider Abril's renewed action in 1987 against Harris to be, in reality, respondent's claim against Harris, as the trial court implicitly found in consolidating it with the P.C. litigation. As Harris pointed out in his motion for summary judgment on that claim: Abril's claim against Harris essentially prays for a declaration that Abril is not indebted to Harris for any fees earned as a result of Harris' representation of Abril in the Globe American case. It is undisputed, however, that the fees at issue were earned by the firm of Levine & Harris, P.C. and that Mr. Levine's and Mr. Harris' individual entitlement to their respective portion of the fee is governed by an arbitrator's award binding Mr. Levine and Mr. Harris. It is also undisputed that the fees at issue were paid to Mr. Levine, as custodian for Levine & Harris, P.C., pursuant to the arbitration. It is further undisputed that Abril did not contest the payment of the fees to Levine. Finally, it is uncontested that Harris makes absolutely no claim to Abril for the fees earned, but rather, makes a claim for his portion of the fees to Mr. Levine, as custodian of the fees as agreed between the parties and as set forth in the arbitration. (Emphasis in original.) [16] E.R. 8.4(a) provides, in part: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.... Rule 42, Rules of the Arizona Supreme Court. [17] On this basis, the committee did dismiss the allegations of count 13, "due to the passage of time between the events complained of and the date of the Hearing." [18] Former DR 1-102 provided: (A) A lawyer shall not: (1) Violate a Disciplinary Rule. (2) Circumvent a Disciplinary Rule through actions of another. * * * * * * (4) Engage in conduct involving ... misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. [19] Only this court or the commission has the discretion to impose the lesser sanction of probation. Rule 52(a)(6), Rules of the Arizona Supreme Court. Only this court has the discretion to impose conditions of probation that would limit a lawyer's license to practice law. Rule 52(a)(6)(B); see also Standard 2.8(g) (the state's highest court or disciplinary board may impose other requirements deemed "consistent with the purposes of lawyer sanctions.") [20] The commission stated: Throughout the Committee proceedings Respondent argued that his conduct did not harm the public. Respondent characterizes the disputes as "two party" fights which involve Respondent and John "Chip" Harris. Respondent apparently fails to appreciate the consequences of his actions. A wrongful taking of funds, or a failure to act diligently, does not limit the universe of lawyer misconduct which harms the public. Respondent's actions caused the expenditure of substantial sums, by lawyers, insurance companies and the court system. Lawyers, including but not limited to Mr. Harris, expended time and mental energy in defending the many lawsuits. In addition, the State Bar, which has limited resources, devoted substantial energy, time and money toward the handling of this matter, leaving less energy, time and money for other disciplinary matters. [21] We do not believe that respondent's potential discharge in bankruptcy from the underlying civil judgments precludes us from imposing a post-discharge disciplinary sanction of restitution as a term of probation. In this context, restitution is part of the rehabilitative process of our disciplinary proceeding rather than a reinstatement of any of the discharged civil judgments against respondent. See, e.g., Brookman v. State Bar of California, 46 Cal. 3d 1004, 251 Cal. Rptr. 495, 760 P.2d 1023 (1988) (imposition of restitution on attorney did not have effect of suspending his license for not paying a discharged debt, but purpose was to protect public and rehabilitate attorney). Cf. Kelly v. Robinson, 479 U.S. 36, 107 S. Ct. 353, 93 L. Ed. 2d 216 (1986) (Chapter 7 discharge did not preclude a prior criminal restitution order as a "debt"); State v. West, 173 Ariz. 602, 845 P.2d 1097, (App. 1992) (post-discharge order of restitution is valid in criminal proceeding, based on Robinson). We reach this conclusion regardless of language that may have implied a contrary result in In re Nefstead, 163 Ariz. 518, 521, 789 P.2d 385, 388 (1990). Because the effect of a prior bankruptcy discharge on a subsequent disciplinary restitution order as a term of probation was neither argued nor analyzed in Nefstead, this implied contrary statement is disapproved. [22] The committee included the following parties in its recommendation of a total ban on future litigation: John D. Harris, Anthony J. Palumbo, John R. Cunningham, M. Byron Lewis, Daniel Cracchiolo, Edwin D. Fleming, Kenneth J. Sherk, Nicholas Udall, John G. Sestak, William Piatt, any complainant in this matter, bar counsel Peter M. Jarosz, and the law firms of any of these lawyers.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1717742/	850 S.W.2d 508 (1993) William Wesley CHAPPELL, Appellant, v. The STATE of Texas, Appellee. No. 71025. Court of Criminal Appeals of Texas, En Banc. February 3, 1993. Rehearing Denied April 7, 1993. 509 Michael Logan Ware, Fort Worth, for appellant. Tim Curry, Dist. Atty., and C. Chris Marshall, Tanya S. Dohoney and Michael Parrish, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION BAIRD, Judge. Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2).[1] The jury affirmatively answered the two issues submitted pursuant to Tex. Code Crim.Proc.Ann. art. 37.071, § 2(b).[2] Punishment was assessed at death. Tex. Code Crim.Proc.Ann. art. 37.071, § 2(e). Appeal to this Court is automatic. Tex. Code Crim.Proc.Ann. art. 37.071, § 2(h). We will reverse. I. As appellant does not challenge the sufficiency of the evidence to support his conviction, we will dispense with a recitation of any facts unnecessary to the resolution of the point of error under consideration. In his nineteenth point of error, appellant contends the trial judge erred in granting the State's motion to shuffle the venire after the venire had been shuffled at appellant's request.[3] For the following reasons, we agree and sustain appellant's nineteenth point of error. II. The venire was shuffled twice, first on appellant's motion, and again on the State's motion. Appellant contends only one shuffle is allowed under Tex.Code Crim.Proc. Ann. art. 35.11.[4] The State contends that 510 there is no prohibition against a second shuffle under art. 35.11. State's amended brief, pg. 92. A. Initially, the State contends this point of error is not preserved for appellate review for two reasons. First the State contends appellant's objection was untimely. We disagree. The record reflects that appellant made a timely and specific objection to the State's motion to shuffle the venire.[5]See, Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App.1992). The State next contends appellant failed to obtain a ruling on the objection. Likewise, this argument is without merit. Appellant's objection was overruled when the trial judge granted the State's motion to shuffle the venire. See generally, Tex.R.App.P. 52(a). Accordingly, this point of error was preserved for our review. B. Having determined the error, if any, was preserved, we now turn to address the merits of appellant's nineteenth point of error. As previously noted, appellant contends only one shuffle is allowed under Tex.Code Crim.Proc.Ann. art. 35.11. The State contends a second shuffle is not prohibited under art. 35.11. In Fontenot v. State, 379 S.W.2d 334 (Tex.Cr.App. 1964), we held a second jury shuffle was not authorized, holding: This Bill of Exception complains of the action of the Court, over objection and exception of Defendant, after completion of the jury list under the procedure of Articles 626, 627, and 628 VACCP at the demand of the parties hereto, in permitting then, upon demand by the State's counsel, a second shuffle, not authorized by law.[6] This complaint is, we think, meritorious and should have been granted. Appellant was here objecting to the action of the trial court in allowing the state a second shuffle, not authorized by statute. Id. at 334. The State argues Stark v. State, 657 S.W.2d 115 (Tex.Cr.App. 1983), impliedly overruled Fontenot. In Stark the defendant objected to the trial judge's refusal to seat a venire in the courtroom before calling for any motions to shuffle. The trial judge allowed the attorneys to view the venire in the central jury room but refused the defendant's request to bring the venire 511 to the courtroom. The State moved to shuffle the venire and the trial judge granted this motion. When the venire was seated in the courtroom the defendant moved to shuffle the venire and the trial judge denied the motion. We held appellant has an "absolute right to have the jury shuffled" and "[t]he statute ... contemplates that court business will be conducted in the courtroom." Id. at 116. The State contends that portion of Stark pertaining to the defendant's "absolute right" to a jury shuffle impliedly overruled Fontenot since the record revealed the State had previously requested and received a jury shuffle. Recently, we reaffirmed the principle of Fontenot in Jones v. State, 833 S.W.2d 146 (Tex.Cr.App. 1992), and distinguished our decision in Stark. In Jones, the State requested that the venire be shuffled and the trial judge granted the State's request. At the conclusion of the State's shuffle, the defendant requested a second shuffle which the trial judge denied. The court of appeals held the trial judge erred by denying the defendant's requested shuffle and reversed. On the State's petition for discretionary review, we held: Appellant argues that this Court's opinion in Stark (Citation omitted.), stands for the proposition that the defendant has the absolute right, upon timely motion, to reshuffle the panel after the State has already shuffled. We disagree with appellant's interpretation of Stark. The primary import of Stark was to decry the peculiar method used in that case to shuffle the jury panel, at the State's request, outside the courtroom without affording the defendant the opportunity to either view the panel prior to the shuffle or himself shuffle. (Footnote omitted.) We do not construe Stark as giving a defendant the right, in all cases and under any circumstances, to reshuffle after the State has requested and obtained a shuffle under Article 35.11[7] Indeed, this Court has recently indicated that Article 35.11 is satisfied upon a shuffling of the panel at the request of either the State or the defendant: In interpreting Article 35.11, we have determined that compliance with that statute is had when counsel for either the State or the defendant is allowed the opportunity to view the venire seated in the courtroom in proper sequence and is thereafter allowed an opportunity to exercise his or her option to have the names shuffled. Davis v. State, 782 S.W.2d 211 (Tex.Cr. App.1989).... In sum, we reiterate that Article 35.11 does provide that a defendant is guaranteed that the jury panel will be shuffled once, at either his request or the State's. It does not mandate, however, that a defendant be allowed to reshuffle the panel after the State has caused the panel to be shuffled, absent some misconduct in the State's shuffle as was evident in Stark. Thus, we hold that there is no "absolute right" to shuffle the jury panel in circumstances such as those extant in this case, where appellant had the opportunity to view the original panel, declined to exercise his right to shuffle, and the shuffle at the State's request was done in the courtroom. Jones, 833 S.W.2d at 148-149. In light of the foregoing cases, we hold that, absent a showing of misconduct, only one shuffle is authorized under art. 35.11.[8]See, Contreras v. State, 733 S.W.2d 646, 648 (Tex.App.San Antonio 1987). Using this reasoning, the trial judge in Jones correctly denied the defendant's request 512 for a shuffle of the venire, and the trial judge in the instant case erred by granting the State's request for a second shuffle.[9] C. Finally, the State contends that even if the trial judge erred in granting the second shuffle, a harm analysis is appropriate under Tex.R.App.P. 81(b)(2). State's amended brief, pgs. 98-99. In Fontenot we held "no injury need be shown in order to warrant a reversal." Fontenot, 379 S.W.2d at 335. Our recent decision in Cooks v. State, 844 S.W.2d 697 (Tex.Cr.App.1992), reaffirmed this rule. Cooks argued our holding in Fontenot, requiring no showing of harm, should be applied to all errors in the jury selection process. Although we declined to extend our holding in Fontenot, we recognized its continued viability in cases involving requests for a jury shuffle. Id. at 726-27.[10] Our retention of the policy established in Fontenot is sound. 1 Branch's 2nd Ed., § 543 provides: Any infringement of the jury law will require a reversal without reference to whether injury to the defendant is shown. When the statute prescribes the method of procedure and compliance therewith is promptly and timely demanded, the trial court is not authorized to permit infringements of the jury law. The rationale for this rule is perhaps best explained in an early opinion of this Court, Adams v. State, 50 Tex. Crim. 586, 99 S.W. 1015 (Tex.Cr.App.1907): ... It is no answer to this requirement of the statute to urge that no injury is shown; that appellant, by the means adopted, was furnished with a fair and impartial jury. We might go further, and say, according to this reasoning, the court might adopt any method outside of the statute which might secure a fair and impartial jury. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any other method, and it is not incumbent on appellant to show that he suffered injury by the failure of the court to follow the statutory method. Id., 99 S.W. at 1016. See also, Moore v. State, 132 Tex. Crim. 403, 105 S.W.2d 250, 251 (1937). Furthermore, we have recognized that not all violations of mandatory statutes are subject to a harm analysis under Rule 81(b)(2). Specifically, we noted that violations of art. 35.11 were not subject to such an analysis in Roberts v. State, 784 S.W.2d 430, 435 (Tex.Cr.App. 1990): ... Violation of some procedural provisions, "mandatory" in nature, was held by the Court to justify reversal of the conviction without an inquiry into harmfulness, vel non, of the error. A ready example is violation of Article 35.11, V.A.C.C.P, the jury shuffle statute. * * * * * * In cases involving breach of many procedural statutes the record will contain no concrete data from which an appellate court can meaningfully gauge that the error did or did not contribute to the conviction or punishment of the accused. Id. at 435.[11]See also, Brown v. State, 828 S.W.2d 762, 764 (Tex.Cr.App. 1991) (Violations 513 of Tex.Code Crim.Proc.Ann. art. 28.10 are not subject to Rule 81(b)(2) harm analysis). Indeed, the State concedes we have held violations of art. 35.11 require reversal. State's amended brief, pg. 98, n. 32. The State has not persuaded us to depart from this established policy. As a violation of art. 35.11 is not subject to a meaningful harm analysis under Rule 81(b)(2), a violation of art. 35.11 necessarily requires reversal. As we held in Fontenot, "The right of trial by jury stands on a higher plane than expediency; and fair trial by jury means a jury selected according to the law regulating their selection and empanelment." Fontenot, 379 S.W.2d at 335. Accordingly, appellant's nineteenth point of error is sustained. The judgment is reversed and the cause is remanded to the trial court. MALONEY, J., joins parts IIA and B but concurs only as to part IIC. MILLER and MEYERS, JJ., dissent. McCORMICK, Presiding Judge, dissenting. The purpose of a shuffle is to assure the random selection and seating of prospective jurors. The refusal of a shuffle to which a defendant is entitled presumes harm since the random selection is not assured. Here, however, such harm cannot be presumed since the random selection we require has been satisfied. Since there is no possibility that the appellant was injured by the second shuffle, the error, if any, was harmless. I respectfully dissent. OVERSTREET, J., joins this dissent. NOTES [1] Tex.Penal Code Ann. § 19.03 provides in part: (a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and: * * * * * (2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, or arson; [2] Appellant was convicted on November 18, 1989. All references to Tex.Code Crim.Proc. Ann. art. 37.071 will be to the statute as it appeared then, prior to its amendment on September 1, 1991. Tex.Code Crim.Proc.Ann. art. 37.071, § 2(b) provides: (b) On conclusion of the presentation of the evidence, the court shall submit the following three 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; and.... [3] In his amended brief, appellant's nineteenth point of error contends: THE TRIAL COURT REVERSIBLY ERRED BY GRANTING THE STATE A SECOND JURY SHUFFLE OVER APPELLANT'S OJECTION. [4] Tex.Code Crim.Proc.Ann. art. 35.11 reads as follows: The trial judge, on the demand of the defendant or his attorney, or of the State's counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case. The clerk shall deliver a copy of the list to the State's counsel and to the defendant or his attorney. Art. 35.11 is applicable to capital murder cases. Hall v. State, 661 S.W.2d 113, 115 (Tex. Cr.App.1983). [5] The record reveals the following colloquy relevant to the State's contention the point was not preserved for appellate review. The State: The State at this time ... requests a shuffle. Appellant: Well, better now than later. The State: Better now than go ahead and seating all these other folks. It's just a waste of time. The Court: Just send them out. (An off-the-record discussion was held at the bench) * * * * * * Appellant: We will have to send them all outside and send somebody outside with them. Was that on the record, your request? The State: My request for the shuffle was on the record. The Court: I will grant your request to shuffle. Appellant: We will object to the Court granting their Motion to Shuffle. The Court: All right. You're objecting to my granting the motion to shuffle. I believe there is a recent case that says that both sides have a right to request a shuffle. Is that Court of Appeals decision or Court of Criminal Appeals decision? The State: Court of Criminal Appeals. The Court: Okay. You got it. (Emphasis added.) (An off-the-record discussion was held at the bench) * * * * * * The Court: Okay. Let's go back on the record. Let the record reflect that the jury panel is not in the courtroom. Counsel for the State, you made a motion for a shuffle of the jury and / granted your Motion to Shuffle, and the clerk of this court has shuffled the names of the venirepersons. (Emphasis added.) Now, Counsel for the Defense, there was a matter that you wanted to put on the record in regard to the last shuffle. Appellant: Of course, Judge, we objected to the Court granting the State's Motion to Shuffle.... [6] Upon the enactment of the Code of Criminal Procedure, arts. 626, 627, and 628 were repealed and replaced by art. 35.11. [7] Unless otherwise indicated, all emphasis herein is supplied by the author. [8] The State argues the instant case is distinguishable because it involves the grant, not the denial, of a shuffle. We believe the argument is flawed because it overlooks our holding in Fontenot, namely, that the statutes did not authorize a second shuffle. Fontenot, 379 S.W.2d at 334. Although the specific statutes discussed in Fontenot have been repealed and replaced by art. 35.11, see n. 5, supra, we presume the Legislature was aware of our holding in Fontenot when it enacted art. 35.11 and had the Legislature desired, it could have provided for a second shuffle. Because art. 35.11 does not have such a provision, we decline the State's invitation to overrule Fontenot. [9] We are aware of the conflict between Contreras v. State, 733 S.W.2d 646, 648 (Tex.App.San Antonio 1987) (art. 35.11 mandates only one shuffle), and Urbano v. State, 760 S.W.2d 33, 35 (Tex.App.Houston [1st Dist.] 1988) (Second shuffle permitted under art. 35.11), and we expressly disavow the holding in Urbano. [10] In Cooks we stated: ... In Fontenot this court held that it was reversible error for the trial court to grant the State's request for a second jury shuffle, even in the absence of a showing of harm. Cooks, at 726. [11] Judge Clinton's concurrence in Yanez v. State, 677 S.W.2d 62, 69-71 (Tex.Cr.App.1984), provides an excellent discussion of the historical basis of Tex.Code Crim.Proc.Ann. art. 35.11. See also, Wilkerson v. State, 681 S.W.2d 29, 30 (Tex.Cr.App.1984); Hall v. State, 661 S.W.2d 113 (Tex.Cr.App.1983); Latham v. State, 656 S.W.2d 478 (Tex.Cr.App.1983); Sewell v. State, 696 S.W.2d 559 (Tex.Cr.App.1983); Smith v. State, 648 S.W.2d 695 (Tex.Cr.App.1983); Davis v. State, 573 S.W.2d 780 (Tex.Cr.App.1978); Como v. State, 557 S.W.2d 93 (Tex.Cr.App.1977); Alexander v. State, 523 S.W.2d 720 (Tex.Cr.App. 1975); and, Woerner v. State, 523 S.W.2d 717 (Tex.Cr.App. 1975). See generally, Latham v. State, 656 S.W.2d 478 (Tex.Cr.App. 1983), Ferguson v. State, 639 S.W.2d 307 (Tex.Cr.App. 1982), Como v. State, 557 S.W.2d 93 (Tex.Cr.App. 1977), Woerner v. State, 523 S.W.2d 717 (Tex.Cr.App. 1975), and Dent v. State, 504 S.W.2d 455 (Tex. Cr.App.1974).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874202/	318 B.R. 521 (2004) In re ACOUSTISEAL, INC., Debtor. Bruce E. Strauss, Chapter 7 Trustee, Plaintiff, v. Janesville Products, A Unit of Jason Incorporated, Defendant. Bankruptcy No. 02-44807, Adversary No. 04-5029. United States Bankruptcy Court, W.D. Missouri. November 24, 2004. 522 Frank W. Lipsman, Morton Hubbard Ruzicka & Kreamer, Olathe, KS, for Debtor. 523 Matthew G. Koehler, Stinson Morrison Hecker LLP, Kansas City, MO, for trustee. Greta A. McMorris, Stinson, Morrison, Hecker LLP, Kansas City, MO, for Plaintiff. MEMORANDUM OPINION ARTHUR B. FEDERMAN, Bankruptcy Judge. The Chapter 7 trustee filed this adversary proceeding to avoid alleged preferential transfers in the amount of $31,526.00 made by debtor Acoustiseal, Inc. (Acoustiseal) to Janesville Products (Janesville). Janesville filed a motion for summary judgment claiming either that the transfers were in the ordinary course of business or that it gave subsequent new value for the transfers. The trustee filed a cross motion for summary judgment. The trustee claims that the transfers were not in the ordinary course of Acoustiseal's business, and that the new value provided by Janesville was $2,592.00 less than the amount of the transfers. This is a core proceeding under 28 U.S.C. § 157(b)(2)(F) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure as made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. For the reasons set forth below, I will grant Janesville's partial summary judgment motion, and I will deny, without prejudice, the trustee's motion for summary judgment. The amount remaining in dispute will be $2,592.00, and the only issue remaining will be whether the payment representing that amount was paid in the ordinary course of business. FACTUAL BACKGROUND On September 4, 2002, Acoustiseal filed this Chapter 11 bankruptcy petition. On January 8, 2003, this Court converted the case to Chapter 7, and Bruce Strauss was appointed as the Chapter 7 trustee. On June 17, 2004, the trustee filed this adversary proceeding. The trustee alleges that commencing on June 7, 2002, Acoustiseal made seven transfers totaling $31,536.00 to Janesville. There is no dispute as to the number or amount of the transfers. The transfers were all in the form of checks with the dates and amounts as follows: 1. June 7, 2002: Check Number 22861 in the amount of $3,024.00; 2. June 28, 2002: Check Number 23186 in the amount of $5,616.00; 3. July 3, 2002: Check Number 23309 in the amount of $6,048.00; 4. July 12, 2002: Check Number 23564 in the amount of $3,456.00; 5. July 19, 2002: Check Number 23564 in the amount of $3,456.00; 6. July 29, 2002: Check Number 23777 in the amount of $6,912.00; 7. August 9, 2002: Check Number 24030 in the amount of $3,024.00. Janesville claims that the transfers were in the ordinary course of its business with Acoustiseal. Alternatively, Janesville claims that Acoustiseal received new value in exchange for each transfer, thus, the transfers were not preferential. It is also undisputed that Janesville sent product, with a total value of $48,816.00, to Acoustiseal as follows: 1. June 14, 2002: shipment in the amount of $10,368.00; 2. June 21, 2002: shipment in the amount of $4,320.00; 3. July 19, 2002: shipment in the amount of $3,456.00; 4. July 26, 2002: shipment in the amount of $4,752.00; 524 5. August 2, 2002: shipment in the amount of $2,160.00; 6. August 9, 2002: shipment in the amount of $5,184.00; 7. August 16, 2002: shipment in the amount of $4,320.00; 8. August 23, 2002: shipment in the amount of $6,048.00. Janesville claims both that the transfers were in the ordinary course of business, and that it provided new value in exchange for the transfers. The trustee concedes Janesville gave new value in exchange for the transfers in the amount of $28,944.00. He argues, however, that the transfers were not in the ordinary course of business and that, after accounting for the new value given, Janesville still received preferential transfers in the amount of $2,592.00. DISCUSSION Section 547(b) of the Bankruptcy Code (the Code) authorizes the trustee to avoid a transfer made on account of an antecedent debt within 90 days of a bankruptcy filing if, on the date the transfer was made, the debtor was insolvent or became insolvent as a result thereof and the creditor received more than it would have received in a Chapter 7 liquidation.[1] The parties agree that the trustee has satisfied all elements of section 547(b) of the Code. The Code, however, excepts certain transfers from the trustee's avoidance power. Janesville claims that either the "ordinary course of business defense" or the "subsequent new value defense" prevents the trustee from avoiding the transfers in question. The "ordinary course of business defense" provides as follows: (c) [t]he trustee may not avoid under this section a transfer . . . . . (2) to the extent that such transfer was (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; and (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms.[2] It is undisputed that Janesville and Acoustiseal had a business relationship that began on January 9, 2001. As to the ordinary course defense, Janesville claims that, prior to June 7, 2002, Acoustiseal paid for goods received, on average, 63 days after shipment. The trustee claims that the average was 58 days. Nonetheless, Janesville admits that it sent merchandise to Acoustiseal and that each shipment was invoiced for payment within 30 days of receipt. Despite that requirement, the time of payment for goods received varied from 39 days to 91 days. Janesville, thus, claims that it was in the ordinary course of business for Acoustiseal to pay late, so payments outside that norm would still be in the ordinary course of business. In the Eighth Circuit a court must engage in a "peculiarly factual" analysis to determine if payments made within 90 days of a bankruptcy filing are made within the ordinary course of business.[3] The creditor must also demonstrate some consistency with other business transactions between the debtor and creditor in order to succeed with an ordinary course 525 defense.[4] The issue is whether Janesville has submitted sufficient facts for this Court to make the determination on a motion for summary judgment. Rule 7056 of the Federal Rules of Bankruptcy Procedure provides that Rule 56 of the Federal Rules of Civil Procedure applies when one or both parties move for summary judgment in an adversary proceeding in this Court. Rule 56 states that the "judgment sought shall be rendered forthwith 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."[5] I find that there is a genuine issue of material fact as to the ordinary course of business between these two parties, and the peculiarly factual analysis necessary to decide this issue cannot be determined on a motion for summary judgment. The Code also excepts from avoidance payments made in exchange for additional product: (c) [t]he trustee may not avoid under this section a transfer . . . . . (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor.[6] This is known as the "new value rule." The purpose of the "new value rule" is to encourage creditors to deal with troubled businesses and perhaps prevent a bankruptcy filing.[7] Moreover, by providing product to the troubled debtor following a payment, the estate is not diminished.[8] There is no question that Janesville provided new value to Acoustiseal during the preference period. The only dispute arises from the manner of calculating the new value. There are two approaches. The majority rule allows a given extension of new value to be applied against any preceding preference. For example, if Acoustiseal made a payment to Janesville in the amount of $1000.00 for no new value, then made another payment for $1000.00 and Janesville then provided Acoustiseal with $3000.00 worth of product, the trustee could not avoid either of the preferential payments. The subsequent 526 new value would absorb both payments. This is known as the Garland Rule.[9] The minority rule allows a given extension of new value to be applied only to the immediately preceding preference. To use the example above, if Acoustiseal made a payment to Janesville in the amount of $1000.00, then made another payment in the amount of $1000.00 and then received product with a value of $2000.00 after that transfer, the trustee could still avoid the first transfer.[10] This is known as the "Leathers Rule." The circuit courts that have specifically addressed this issue have adopted the majority rule.[11] The Eighth Circuit instructs that the "relevant inquiry" under section 547(c)(4) is whether the new value replenishes the estate.[12] If so, there is no detriment to other creditors. Given that instruction, I find that the "Garland Rule" best construes the plain language of section 547(c)(4). I will, thus, apply the Garland Rule to the transfers at issue here. I begin with the first preferential transfer. On June 7, 2002, Acoustiseal transferred the sum of $3,024.00 to Janesville. Following that transfer, Janesville provided product to Acoustiseal on June 14, 2002, in the amount of $10,368.00 and on June 21, 2002, in the amount of $4,320.00. Clearly, the estate was replenished by product with a value greater than the transfer, so the transfer was not preferential. On June 28, 2002, Acoustiseal transferred the sum of $5,616.00 to Janesville. On July 19.2002, Janesville provided product with a value of $3,456.00, leaving a preferential transfer of $2,160.00. On July 3, 2002, Acoustiseal made a payment to Janesville in the amount of $6,048.00. On July 26,2002, Janesville provided product with a value of $4,752.00. Again, the transfer exceeded the amount of the subsequent value provided. The difference between the value of the product and the amount of the preferential payment ($1,296.00) is added to the earlier preferential transfer ($2,160.00) for a sum of $3,456.00. On July 12, 2002, Acoustiseal transferred the sum of $3,456.00 to Janesville. On August 2, 2002, Janesville sold product to Acoustiseal with a value of $2,160.00. The transfer exceeded the value of the subsequent new value. The difference between the value of the product and the amount of the preferential payment is $1,296.00. This sum is added to the sum of $3,456.00 for a cumulative preferential transfer of $4,752.00. On July 19, 2002, Acoustiseal made a payment in the amount of $3,456.00. On August 9, Janesville sold product to Acoustiseal with a value of $5,184.00. Since the value of the product provided was greater than the transfer that precipitated it by the sum of $1,728.00, the Garland Rule allows Janesville to apply that difference to the preceding preferential transfers. Thus, the cumulative preferential transfer becomes $3,024.00. On July 29, 2002, Acoustiseal made a payment to Janesville in the amount of $6,912.00. On August 16, 2002, Janesville sold Accoustiseal product with a value of $4,320.00. The difference between the value of the product and the amount of the transfer is $2,592.00. That sum is added to the cumulative balance of 527 $3,024.00 for a total of $5,616.00. On August 9, 2002, the final transfer from Acoustiseal to Janesville was in the amount of $3,024.00. In exchange, on August 23, 2002, Janesville sold product to Acoustiseal with a value of $6,048.00. The value exceeded the amount of payment by the sum of $3,024.00. Again, the Garland Rule allows Janesville to apply the sum of $3,024.00 to the preceding preferential transfers of $5,616.00 for a total of $2,592.00. To summarize another way, the Garland Rule permits creditors to set off value against preceding transfers, but not to set off transfers against prior value, as Janesville argues. The plain language of section 547(c)(4) provides relief to the extent that, after such transfer, the creditor gave new value to the debtor.[13] Here, Acoustiseal was replenished with new shipments for all payments it made during the preference period except for the sum of $2,592.00. Thus, save for the portion of the August 9, 2002, payment representing that amount, Janesville is entitled to assert the subsequent new value defense. The parties should prepare for trial on the remaining issue as to whether that payment was made in the ordinary course of business. An Order in accordance with this Memorandum Opinion will be entered this date. NOTES [1] 11 U.S.C. § 547(b). [2] 11 U.S.C. § 547(c)(2). [3] Lovett v. St. Johnsbury Trucking (In re St. Johnsbury Trucking), 931 F.2d 494, 497 (8th Cir.1991). [4] Central Hardware Co. v. Sherwin-Williams Co. (In re Spirit Holding Co., Inc.), 153 F.3d 902, 904 (8th Cir.1998) (citing Lovett v. St. Johnsbury Trucking (In re St. Johnsbury Trucking), 931 F.2d 494, 497 (8th Cir.1991)). [5] Celotex v. Catrett, 477 U.S. 317, 322-26, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Tudor Oaks Limited Partnership v. Cochrane, 124 F.3d 978, 981 (8th Cir.1997), cert. denied, 522 U.S. 1112, 118 S. Ct. 1044, 140 L. Ed. 2d 109. [6] 11 U.S.C. § 547(c)(1), (2), and (4) (emphasis added). [7] Kroh Bros. Development Co. v. Continental Construction Engineers, Inc. (In re Kroh Bros. Development Co.), 930 F.2d 648, 651 (8th Cir.1991). See also Southern Technical College, Inc. v. Hood, 89 F.3d 1381, 1384 (8th Cir.1996) (Stating that the purpose of section 547(c)(4) is to encourage creditors to deal with troubled businesses, and that a subsequent advance of new value is excepted because a creditor who extends new value in exchange for payment cannot later be deemed to have depleted the bankruptcy estate to the detriment of other creditors). [8] Id. at 652. See also, Williams v. Agama Systems (In re Micro Innovations Corp.), 185 F.3d 329, 332 (5th Cir.1999). [9] In re Micro Innovations Corp., 185 F.3d at 336 (citing In re Thomas Garland, Inc., 19 B.R. 920 (Bankr.E.D.Mo.1982)). [10] Id. at 337 (citing Leathers v. Prime Leather Finishes Co., 40 B.R. 248 (D.Maine 1984)). [11] See In re Micro Innovations Corp., 185 F.3d at 337; Mosier v. Ever-Fresh Food Co. (In re IRFM, Inc.), 52 F.3d 228, 232 (9th Cir.1995); Crichton v. Wheeling Nat'l Bank (In re Meredith Manor, Inc.), 902 F.2d 257, 259 (4th Cir.1990). [12] Kroh Bros. Development Co. v. Continental Construction Engineers, Inc. (In re Kroh Bros. Development Co.), 930 F.2d 648, 652 (8th Cir.1991). [13] 11 U.S.C. § 547(c)(4) (emphasis added).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601585/	228 P.3d 599 (2010) 234 Or. App. 358 Davis KILE, Plaintiff-Respondent, v. Kathleen YORK, Defendant-Appellant. Ryan COFFEY, Plaintiff-Respondent, v. Kathleen York, Defendant-Appellant. 070100595; A141002 (Control); 070100596; A141003. Court of Appeals of Oregon. Argued and Submitted February 12, 2010. Decided March 17, 2010. 600 R. Daniel Lindahl, Portland, argued the cause for appellant. With him on the brief was Lindahl Law Firm, PC. No appearance for respondents. Before SERCOMBE, Presiding Judge, and ROSENBLUM, Judge, and BREITHAUPT, Judge Pro Tempore. SERCOMBE, P.J. Defendant appeals after the trial court awarded attorney fees to plaintiffs under ORS 20.080(1) (2007), a statute governing attorney fee awards in tort cases in which the amount pleaded is $5,500 or less.[1] The first sentence of that statute entitles a prevailing plaintiff to an award of attorney fees if the plaintiff made a written demand for payment at least 10 days before commencing the action; the second sentence of the statute, however, eliminates that entitlement if "the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action * * an amount not less than the damages awarded to the plaintiff." ORS 20.080(1) (emphasis added). Defendant argued below that she made such a tender six hours before plaintiffs filed their complaints, thereby extinguishing their rights to attorney fees. The trial court rejected that argument and ruled that a qualifying tender needed to be made earlierthat "prior to the commencement of the action" means at least a day before the complaint is filed. On appeal, defendant contends that the trial court's construction of the second sentence of ORS 20.080(1) is erroneous in that it adds language to the statute that is inconsistent with its text. We agree with defendant and, therefore, vacate the attorney fee awards and remand for reconsideration of plaintiffs' attorney fee requests. Plaintiffs Coffey and Kile were injured in a car accident with defendant. Coffey and Kile (his passenger) each filed separate complaints against defendant. The cases were consolidated and tried to a jury, which returned a verdict for Coffey in the amount of $1,953.50 and a verdict for Kile in the amount of $1,829. Plaintiffs then petitioned for their attorney fees pursuant to ORS 20.080(1). Defendant responded to those petitions by offering evidence that she (through her insurer) had tendered settlement offers of $2,000 to each plaintiff at 10:18 a.m. on January 22, 2007. That tender, she argued, was made prior to the commencement of the action (the complaints were both filed at 4:22 p.m. that same day) and was greater than the amount of damages that either plaintiff was awarded. Thus, the tender operated, in her view, to cut off plaintiffs' rights to attorney fees under the second sentence of ORS 20.080(1). In reply, plaintiffs disputed that defendant had actually made a settlement offer on the morning of January 22. They offered evidence that defendant's insurer tendered $1,000 to each plaintiff in October 2006 and stood firm on that offer through trial. At no point in their briefing or during oral argument before the trial court did plaintiffs suggest that the January 22 tender, if made, was untimely. Nevertheless, the trial court rejected defendant's arguments on that ground without first resolving the underlying factual dispute. The court explained: "Okay. 10:23 * * * sometime on the 22nd. The complaints were filed on the 22nd at 4:22 p.m. Okay. I simply think that the spirit and intent of the statute requires an offer to be made prior to the date the complaint was filed, and I don't think when we get down to minutes and hours we're carrying out the spirit of what the legislature intended in terms of making an offer before the complaint was filed." The court then entered judgments awarding plaintiffs their attorney fees, which defendant appeals. The issue before us is purely one of law: the meaning of ORS 20.080(1). That statute provides: 601 "In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $5,500 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less than 10 days before the commencement of the action * . However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action * * an amount not less than the damages awarded to the plaintiff." ORS 20.080(1) (emphasis added). As set out above, the trial court ruled that the "spirit and intent" of the statute demand that, in order to cut off the right to attorney fees, a defendant's tender be made "prior to the date the complaint was filed." In construing ORS 20.080(1)and, in particular, the phrase "prior to the commencement of the action"we examine the text of the statute in context, along with any helpful legislative history offered by the parties. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). The words "prior to" are commonly understood to mean "in advance of: BEFORE prior to receiving the goods>." Webster's Third New Int'l Dictionary 1804 (unabridged ed. 2002). The words "commencement of the action," by contrast, have a defined legal meaning. The Oregon Rules of Civil Procedure provide: "Commencement of action. Other than for purposes of statutes of limitations, an action shall be commenced by filing a complaint with the clerk of the court." ORCP 3 (boldface in original). Thus, the text of ORS 20.080(1) unambiguously requires that a defendant's tender be made before the complaint is filed with the clerk of the court; it does not contain any further requirement that the tender be made at least one day before the complaint is filed.[2] The trial court erred in concluding otherwise. See ORS 174.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted * * *."). In sum, a tender made in advance of a plaintiff's filing of a complainteven if made on the same day that the complaint is later filedmay nonetheless qualify as a tender made "prior to the commencement of the action." Because the trial court concluded otherwise, it did not reach the factual issue at the core of the parties' disputei.e., whether defendant actually made the purported $2,000 tender on the morning of January 22. Accordingly, we vacate the judgments against defendant and remand for the trial court to consider that predicate factual issue. Attorney fee awards in judgments in A141002 and A141003 vacated and remanded; otherwise affirmed. NOTES [1] The statute has since been amended. Or. Laws 2009, ch. 487, § 1. The amendments do not affect our analysis, and our references to ORS 20.080 are to the 2007 version of the statute. [2] The parties have not offered any legislative history that calls into question that unambiguous meaning, nor are we aware of any.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601601/	228 P.3d 192 (2009) SOUTH FORK WATER AND SANITATION DISTRICT, Plaintiff-Appellant, v. TOWN OF SOUTH FORK, Colorado, Defendant-Appellee. No. 08CA1969. Colorado Court of Appeals, Div. III. August 20, 2009. 194 Icenogle, Norton, Smith, Blieszner, Gilida, Pogue, P.C., Charles E. Norton, J. Michael Keane, Denver, Colorado, for Plaintiff-Appellant. Leavenworth & Karp, P.C., Loyal E. Leavenworth, Karl J. Hanlon, Glenwood Springs, Colorado, for Defendant-Appellee. Opinion by Judge CRISWELL.[] Plaintiff, South Fork Water and Sanitation District (the District), appeals the trial court's judgment dismissing its claim against defendant, Town of South Fork (the Town), which sought to enjoin the Town from obtaining water rights and private water systems, because the District had not consented to such acquisitions. We affirm. I. The Trial Court's Findings The factual findings of the trial court, which neither party asserts are not supported by the evidence, disclose the following: The Town is a statutory town established in 1992, from which date it has been authorized to provide water services to its residents pursuant to section 31-15-708, C.R.S.2008, and to exercise the other police powers granted to such municipalities under Title 31 of the Colorado Revised Statutes. The District is a quasi-municipal corporation that was originally created in 1977. A substantial portion of the Town is also within the territorial boundaries of the District, and the District has been providing sanitary sewerage services to those residents in that portion of the Town for a number of years. However, it was not until December 1994, some two years after the Town's incorporation, that the District was granted authority to provide water services to residents within its boundaries. As of the date of the trial in this case, which was nearly fourteen years after the District was granted authority to provide water services, it is undisputed that the District was not providing any water services to any of its residents, nor has it ever done so. Indeed, it does not now own any water rights, and it has never owned any such rights. In 2001, the District paid to obtain engineering plans for installing wells and water main lines for a central water system. However, the District has taken no steps to create such a system, because it has found no means to finance its construction. In addition, in 2006, the District surveyed its constituents, and a majority rejected the proposal that the District provide water services to them. In 2004, and again in 2005, the District was offered an opportunity to acquire an existing private water system, and in both instances that offer was refused, primarily because of a lack of the financial means to acquire the system. Based on these historical facts, the trial court found that the District "has no ability or intent to pursue or implement a municipal water system." The Town also does not presently own, nor has it ever owned, any water rights, nor has it ever provided any water services to its residents. However, as a part of its Land Use and Development Code, the Town requires new subdivisions to dedicate water rights and water facilities to the Town, and 195 such dedication becomes a part of the subdivision improvement agreement that is executed between the Town and the subdivision developer. In 2006 and 2007, the Town negotiated three such agreements, requiring the dedication of water rights and water facilities. In addition, in 2007 and 2008, the Town negotiated three letters of intent with the owners of private water systems to acquire those systems. While two of these letters of intent had expired as of the date of the trial in this case, the Town was attempting to negotiate an extension of each of those agreements. II. The Trial Court's Conclusions The District instituted this action seeking to enjoin the Town from acquiring water rights or private water systems, because the Town had not obtained the District's consent to do so, as allegedly required by section 31-35-402(1)(b), C.R.S.2008. This statute provides in pertinent part: [N]o water service or sewerage service or combination of them shall be furnished in any other municipality unless the approval of such other municipality is obtained as to the territory in which the service is to be rendered. § 31-35-402(1)(b) (emphasis added).[1] However, in Town of Sheridan v. Valley Sanitation District, 137 Colo. 315, 324 P.2d 1038 (1958), the supreme court held that the "veto power" granted by this statute must be exercised in a reasonable manner for the benefit of the public health, safety, and welfare. It is not an absolute power, but one that is conditioned upon serving the public welfare. In this respect, while the trial court made no specific reference to his testimony, the District's manager explained the District's motive in opposing the Town's acquisition of water rights and facilities in these words: Because we are better suited to provide [water services]. The people of South Fork put the district in place long before the town, to provide these services,[2] but they if they [the residents of the District] don't want to pay for them, we can't force it on them. Relying upon the principle established by Town of Sheridan, the trial court concluded: A reasonable construction of [section 31-15-402(1)(b)] is that a municipality cannot exercise its veto in such a manner as to deny another municipality the lawful exercise of its lawful powers to provide to its inhabitants the use of water facilities, where it has itself failed to provide the same. If such an absolute right of veto over water facility development were to exist, it would prevent the development of beneficial uses and purposes. Such a construction would defeat the purposes of the entire enactment. In addition, it also concluded, based upon People of City of Lakewood v. Haase, 198 Colo. 47, 51, 596 P.2d 392, 394 (1979), that the Town's exercise of its police powers superseded, and in effect trumped, the veto power granted to the District by the pertinent statute. III. Law of the Case In its motion for reconsideration filed with the trial court, the District contended that a previous order of the court, granting it a partial summary judgment, constituted the law of the case. On appeal, the District claims that the finding in that order that "the Town may not go forward to provide water services within the District's boundaries without permission from the District" is binding. We disagree. The law of the case doctrine is a discretionary rule of practice based on considerations of judicial economy and finality. It recognizes that the trial court's prior relevant rulings in the same case should generally be followed. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 149 (Colo.2007). However, any order, however denominated, that does not constitute a final judgment 196 remains subject to revision or modification at any time before the entry of such a judgment. C.R.C.P. 54(b); Forbes v. Goldenhersh, 899 P.2d 246, 249 (Colo.App.1994) (prior grant of partial summary judgment may be reversed in later proceedings). Here, the trial court's prior order was not certified as a final judgment, and therefore, it could be modified at any time before a final judgment entered. Thus, the trial court's later ruling denying the District declaratory relief did not violate the law of the case doctrine. IV. Application of the Statute The District contends the trial court erred in its interpretation of section 31-35-402(1)(b), and in its reliance on Town of Sheridan, in determining that the power granted by that statute must be exercised in a reasonable manner consistent with the health, safety, and welfare of the residents. We perceive no error. The interpretation of a statute involves a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000). To determine the legislature's intent, we first look to the plain language of the statute. C.S. v. People, 83 P.3d 627, 634-35 (Colo.2004). When reviewing the language of a statute, we read words and phrases in context and construe them according to their common usage. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006) (citing People v. Yascavage, 101 P.3d 1090, 1093 (Colo.2004)). If the statutory language is clear and unambiguous, we do not engage in further statutory analysis. Klinger, 130 P.3d at 1031. However, if the language is ambiguous, we may consider other aids to statutory construction, such as the consequences of a given construction, the ends to be achieved by the statute, and its legislative history. See § 2-4-203, C.R.S.2008. A court also must presume that the legislature intended a just and reasonable result and must avoid a statutory interpretation that leads to absurd results. People in Interest of A.R.M., 832 P.2d 1093, 1096 (Colo.App.1992). At the time Town of Sheridan was announced, the statute included the following limitation: [N]o sewerage facilities shall be operated in whole or in part in any other municipality unless the approval of such other municipality in the territory in which the facilities will be located is obtained. Ch. 244, sec. 2(b), § 139-52-2(2), 1949 Colo. Sess. Laws 714 (emphasis added). Currently, the statute reads: [N]o water service or sewerage service or combination of them shall be furnished in any other municipality unless the approval of such other municipality is obtained as to the territory in which the service is to be rendered. . . . § 31-35-402(1)(b) (emphasis added). From a comparison of the two statutes alone, it is evident that the amendments to the statute were intended to extend the statute's applicability to water services, as well as to sewerage services. In addition, it made clear that the statute was applicable if "services" were to be "furnished" in another municipality, even if no "facilities" were to be physically located in that "other municipality." However, the plain language of this statute is unambiguous only in those situations where the two municipalities' territorial boundaries do not overlap. In those instances, the municipality is attempting to exercise its service authority on an extraterritorial basis by providing services to nonresidents, and the statute requires the consent of the other municipality. Here, however, the Town does not seek to exercise any of its powers on an extraterritorial basis. It seeks to serve only its own residents. One might well question, then, the applicability of the statute to such a circumstance. Indeed, because the statute does not specifically speak to such a case, it could well be regarded as ambiguous with respect to this point. See People v. Carey, 198 P.3d 1223, 1229 (Colo.App.2008) ("A statute may be ambiguous if it is silent on an issue that would be expected to be within its scope."). 197 Nevertheless, applying the rules of statutory construction, as we must, we conclude that the trial court properly concluded that the authority granted by the amended statute must still be exercised in a reasonable manner for the benefit of public health, safety, and welfare in accordance with the Town of Sheridan decision. The District contends that Town of Sheridan does not apply here because the statute at issue in that case has been amended and because this case involves only statutory rights, and no constitutional considerations are involved. In addition, it argues that, even if the principle established by that case is applied, the District's refusal to consent to the Town's acquisition of water rights and private systems was reasonable. We disagree. In Town of Sheridan, the sanitation district sought to condemn rights of way and easements outside its boundaries and through and across two of the public streets in the Town of Sheridan, a statutory town, for the construction and maintenance of a sewer line. Town of Sheridan, 137 Colo. at 316, 324 P.2d at 1039. The Town of Sheridan refused to issue permits requested by the sanitation district and withheld its consent to the construction. Id. at 318-19, 324 P.2d at 1040. The supreme court concluded that, under constitutional provisions establishing the right to eminent domain, the sanitation district was authorized to condemn land. It also concluded that the Town of Sheridan was required to exercise its statutory veto power over any such condemnation in a reasonable manner, "consistent with the police power in the protection of the health, safety and welfare of the inhabitants of the municipality." Id. at 321, 324 P.2d at 1041. The supreme court recognized some tension between the statutory veto power and the constitutional right of eminent domain. However, interpreting the statute to avoid any conflict, the court held that "the legislature merely intended to recognize the inherent power of a municipality to exercise its police power reasonably to protect its inhabitants." Id. at 322, 324 P.2d at 1042. Because the Town of Sheridan was admittedly withholding its consent as a bargaining tool, and not for any purpose serving the public health, safety, or welfare, the statute did not authorize the exercise of the veto power in those circumstances. Although the issue here does not involve the power of eminent domain or other constitutionally mandated powers, the principle recognized in Town of Sheridan provides clear guidance in interpreting the legislative intent inherent in section 31-35-402(1)(b). Town of Sheridan emphasizes the importance of a municipality's police power and the ability of a municipality to adopt rules that protect the health, safety, and welfare of its inhabitants. Town of Sheridan, 137 Colo. at 321, 324 P.2d at 1041-42. Contrary to the District's assertion, the amendments to the pertinent statute had no effect upon the principle established by Town of Sheridan. Nothing in the statute changed the nature of a municipality's veto power simply by extending that power to water services, as well as sewerage services. Moreover, given the decision in Town of Sheridan, it would be expected that, if the General Assembly had intended to reject the interpretation previously adopted by the supreme court, it would have done so explicitly. See People v. Swain, 959 P.2d 426, 430-31 (Colo.1998)("Under an established rule of statutory construction, the legislature is presumed, by virtue of its action in amending a previously construed statute without changing the portion that was construed, to have accepted and ratified the prior judicial construction."). Indeed, in City of Lakewood v. Haase, 198 Colo. at 50-51, 596 P.2d at 394, the supreme court specifically rejected the assertion that the changes to the statute negated the continued applicability of Town of Sheridan. We also agree with the trial court that where, as here, one municipality has not yet provided water service within its territory, another municipality may use its police powers to protect the health, safety, and welfare of its residents by requiring dedications of water which may be used for the provision of water service. See Town of Sheridan, 137 Colo. at 321-22, 324 P.2d at 1042 ("We think it clear that the legislature 198 did not intend to authorize sewer districts and provide for their management, operation, control and financing on the one hand, and on the other give a municipality bordering on the district through which the facilities must of necessity be extended, either extensively or slightly, the absolute right of veto over the project."). We disagree with the District that the evidence before the trial court established that the motive for its refusal to consent to the Town's acquisition of water rights and private water systems was based upon the public welfare. The only testimony respecting the reason for such refusal came from its manager, who said only that the District was formed long before the Town to provide water services. Historically, however, the Town was authorized to provide its residents with water service before the District was given such authority. In any event, irrespective of which municipality was first authorized to provide such services, the undisputed evidence is that the District has neither the intent nor the financial wherewithal to establish or to operate a municipal water system. It has specifically rejected offers made to it to acquire private systems that could be the precursor of a municipal system. In contrast, the Town, in the face of the District's refusal to act, has taken affirmative steps to acquire water rights and private water systems as initial steps to the ultimate establishment of a municipal water system. The trial court found that the District has no ability or intent to pursue or implement a municipal water system, and that the Town has a realistic possibility of operating a water system in the future. These findings, combined with its recognition that Town of Sheridan prevents a municipality from exercising its veto power so as to deny another municipality the ability to provide its inhabitants access to water facilities where the first has failed to provide such access, indicate that it determined the District's exercise of the veto power here to be unreasonable. This determination is supported by the record. Therefore, we conclude the trial court correctly applied section 31-35-402(1)(b) and we uphold its dismissal of the District's complaint. The judgment of the trial court is affirmed. Judge DAILEY and Judge TERRY concur. NOTES [*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. I, § 5(3), and § 24-51-1105, C.R.S.2008. [1] The parties agree that each of them is a "municipality" for purposes of this statute. See § 31-35-401(4), C.R.S.2008 (defining "municipality"). [2] This is factually inaccurate; the Town was incorporated about two years before the District was granted the authority to provide water services.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1000015/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-6231 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GERALD DAMONE HOPPER, Defendant - Appellant. Appeal from the United States District Court for the Western Dis- trict of North Carolina, at Charlotte. Thomas A. Wiseman, Jr., District Judge. (CR-95-119-1, CA-96-217-3) Submitted: September 30, 1999 Decided: October 13, 1999 Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Gerald Damone Hopper, Appellant Pro Se. Robert James Conrad, Jr., Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Gerald Damone Hopper seeks to appeal the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp. 1999). We have reviewed the record and the district court’s opin- ion and find no reversible error. Accordingly, we deny a certifi- cate of appealability and dismiss the appeal substantially on the reasoning of the district court. See United States v. Hopper, Nos. CR-95-119-1; CA-96-217-3 (W.D.N.C. Jan. 8, 1999). In addition, we note that Hopper’s claims that his counsel provided him with in- effective assistance on appeal are meritless. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); see also United States v. Gillis, 773 F.2d 549, 559 (4th Cir. 1985). We therefore deny Hopper’s motions to proceed in forma pauperis on appeal, to appoint counsel, to supplement the record, and to publish this opinion. We also deny Hopper’s motion for oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. DISMISSED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2036183/	606 N.E.2d 1201 (1992) 153 Ill. 2d 218 180 Ill. Dec. 124 The PEOPLE of the State of Illinois, Appellant, v. Elijah STANCIEL et al. (Violetta Burgos, Appellee). The PEOPLE of the State of Illinois, Appellee, v. Barbara PETERS, Appellant. Nos. 73097, 73184. Supreme Court of Illinois. November 19, 1992. 1204 Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Randall Roberts, Loren A. Seidner, and Maureen A. Harton, Asst. State's Attys., of counsel), for the People in No. 73097. Rita A. Fry, Public Defender, Chicago (James H. Reddy, of counsel), for appellee in No. 73097. Walsh, Neville, Pappas & Mahoney, Chicago (Matthew P. Walsh and J. Mark Lukanich of counsel), for appellant in No. 73184. Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago and Renee Goldfarb, Randall Roberts, Loren A. Seidner and Maureen A. Harton, Asst. State's Attys., of counsel), for the People in No. 73184. Justice CUNNINGHAM delivered the opinion of the court: At issue before us is the interpretation of criminal accountability as found in section 5-2 of the Criminal Code of 1961 (Ill.Rev. Stat. 1991, ch. 38, par. 5-2(c)). Consolidated for purposes of appeal are the cases of People v. Elijah Stanciel and Violetta Burgos, No. 73097 (225 Ill.App.3d 1082, 168 Ill. Dec. 157, 589 N.E.2d 557), and People v. Barbara Peters, No. 73184 (224 Ill.App.3d 180, 166 Ill. Dec. 511, 586 N.E.2d 469). In the case of Violetta Burgos, the State appeals the judgment of the appellate court reversing the decision of the trial court, wherein the defendant was convicted for the murder of her daughter, Electicia Asbury, on the basis of her accountability for the murder by the principal, Elijah Stanciel. In the case of Barbara Peters, the defendant appeals the appellate court's judgment affirming the decision of the trial court, wherein she was convicted of the murder of her son, Bobby Peters, on the basis of her accountability for the murder by the principal, Kenneth Jacobsen. In the case of People v. Elijah Stanciel and Violetta Burgos, we reverse the judgment of the appellate court with respect to the conviction of Violetta Burgos. In the case of People v. Barbara Peters, we affirm the judgment of the appellate court. FACTS (Burgos) Concerning the case of Violetta Burgos, Elijah Stanciel and Burgos were charged by indictment with murder, aggravated criminal sexual assault, and criminal sexual assault. In a bench trial, they were convicted of the murder of Burgos' child, Electicia Asbury. Burgos had lost custody of the child in 1984 after Electicia had suffered a broken leg in a child abuse case involving Stanciel. One of the conditions of her regaining the custody of the child was that she refrain from having any contact with Stanciel. Burgos, however, admitted that she continued her relationship with Stanciel, concealing that fact by living 1205 in separate residences. Burgos stated that she had let Stanciel assume the role of disciplinarian over the victim in March 1986. On April 19, 1986, Electicia Asbury died as a result of multiple blunt force injuries. According to statements made by both Stanciel and Burgos, in the morning hours of that day, Stanciel had spanked the girl because she had urinated on the floor. Later that day, after lunch, Electicia spit up on the floor. Stanciel then punched the three-year-old girl twice in the stomach because her buttocks were too raw. Later that afternoon, Electicia lost consciousness. Stanciel admitted biting the victim. Burgos took the victim home, carrying the limp body, as the child could not walk. As Burgos carried Electicia up the stairs to their apartment, they fell. After Burgos' attempts to revive the little girl were unsuccessful, she contacted the paramedics. Electicia was taken to St. Francis Hospital, where she was pronounced dead that same day. Detective Gildea testified for the State and related comments made to him by Stanciel. On many occasions, Stanciel administered punishment, including beatings with a belt, exercises and striking in various manners. Detective Gildea also testified to comments made to him by Burgos. Burgos stated that since March, Stanciel had taken over the disciplining of the child, and the punishment sometimes involved spanking (sometimes with a strap) and sometimes exercises, such as headstands. A post-mortem examination conducted by forensic dentist Dr. John P. Kenney revealed that Burgos had also participated in abusing the victim. Dr. Kenney concluded that five bite marks found on the right cheek, right arm, right buttock and back of the victim were inflicted by Burgos. According to Dr. Kenney, these marks showed that the victim had been abused over a long period of time. Of the approximately 21 remaining bite marks, five others were inflicted by Stanciel. Dr. Mitra Kalekar testified that she was deputy medical examiner for Cook County and that her field of expertise was forensic pathology. She stated the victim died as a result of multiple repeated blunt force injuries to her body, which had been sustained over a period of time. At the time of her death, Electicia had a ruptured viscus and intestine, as well as injuries to her bowel and liver. She also had numerous blunt trauma injuries of lacerations, bruises, abrasions and scars about her head, face, body and limbs. These included lacerations to her left ear and chin, injuries in the vaginal area, a cluster of bruises on the right side of her forehead, and other multiple bruises throughout both arms, both legs, chest and abdominal areas, back and buttocks. She also had an area of a scalding burn on her lower leg. Dr. Kalelkar noted that these wounds were in various stages of healing. When questioned by the police concerning the numerous injuries to her daughter, Burgos related the account of the fall that had occurred on the stairs, but did not offer any other explanation. Burgos did not initially tell the police of her contact with Stanciel because of the Department of Children and Family Services prohibition on such contact. She later informed the police of her living arrangements with Stanciel and his role as disciplinarian. FACTS (Peters) Concerning the case of People v. Barbara Peters, the facts show that on December 17, 1987, Barbara Peters' son, Bobby, died at the age of 20 months at LaGrange Memorial Hospital. He had been brought there by his mother and Kenneth Jacobsen, her boyfriend for six months. Bobby was not breathing at the time he was taken to the hospital, and efforts to resuscitate him were unsuccessful. An autopsy showed that he died as a result of bilateral subdural hematomas which resulted from blunt head trauma. Peters and Jacobsen were charged in a 19-count indictment with the offenses of first degree murder, aggravated battery to a child, cruelty to a child, and endangering the life or health of a child. Their cases were severed prior to trial. 1206 A former baby-sitter, Karen Wagner, testified at trial for the State. She had begun baby-sitting for Bobby four or five times a week in April 1987. She first noticed problems with Bobby's physical condition in July 1987, a month after Peters had begun dating Jacobsen. At that time, she noticed a rash on Bobby which she described as "red, raw, dry and it was cracking." She obtained the name of a pediatrician through the child's father, and at his direction used ointment on the rash. Later that month, again while baby-sitting, she noticed a bruise covering Bobby's entire buttocks. Wagner testified she questioned Peters about this, and the latter responded she thought Bobby had fallen at Wagner's home. Wagner testified that Bobby had never bruised himself to that extent any time he had fallen in her home. In early August 1987, Wagner saw small bruises on Bobby's cheeks, chin, and forehead. She testified that Jacobsen told her Bobby had fallen off the ladder of a slide. She did not observe any dirt or blood on the child's clothes at the time. When Wagner told Peters what Jacobsen had said, the defendant did not respond. Later that August, after Jacobsen had brought Bobby to Wagner's house, she noticed four or five "bumpy-like welts" scattered around the center of his back. In response to Wagner's inquiry concerning the welts, Jacobsen responded that the child had fallen down an elevator shaft. In September 1987, Bobby came to Wagner's house with a split on the inside and outside of his lower lip. Peters told Wagner that Bobby had fallen on the sidewalk. At this point, Jacobsen had moved in with Peters. Jacobsen would look after Bobby during the week, while Wagner looked after the child on the weekends. In October 1987, Peters took Bobby to Wagner's home for a party, dressed in his pajamas. Upon attempting to remove Bobby's diaper, the child's leg stuck to the pajama. After removing the pajama, Wagner saw an oval-shaped burn which measured about two to three inches in diameter running across Bobby's calf. Wagner testified that the skin on Bobby's leg was "raw and pussy." When Wagner asked Peters how this had happened, Peters told her the burn was caused from Bobby's clothes rubbing on the back of his leg. Wagner testified that she had never noticed a similar such injury before this. Later in October, in a telephone conversation with Wagner, Peters related that Bobby had to be taken to the hospital for burns to his back and neck. Her explanation for this was that Jacobsen had tripped over Bobby and spilled hot tea over him. Wagner testified that Peters told her they were going to arrest Jacobsen for child abuse and the hospital was going to press charges against him. Wagner saw Bobby the next day and described him as "walking stiff." He could not move his head from side to side, and when she removed his shirt, she saw that the burn went "from the top of his scalp down his neck and one shoulder," and "was very raw, very pussy, [and] his undershirt was stuck to it." Wagner contacted the Department of Children and Family Services (DCFS) approximately a week later, on October 31, 1987, and told them of Bobby's burns and bruises. The following day, Peters called Wagner concerning the DCFS contact, informing her that she had an appointment for the next day. When Wagner later contacted her about the DCFS appointment, Peters refused to talk to her and cut off all contact between Wagner and Bobby. Wagner did not see the boy again until late November 1987, when she ran into Peters at a bowling alley. Peters allowed Wagner to take Bobby home for several hours, during which time Wagner inspected Bobby but found no fresh injuries. Wagner last saw the child on December 8, 1987, at the bowling alley. When Wagner asked to see Bobby for Christmas, Peters refused, saying Jacobsen did not want either Peters or Bobby to have anything to do with Wagner. Bernadine Peters, Bobby's paternal grandmother, also testified for the State. She testified that she noticed no bruises on Bobby in her single visit with him in August 1987, or with her next visit with him in early September. However, she stated 1207 that in late September, while changing his diapers, he was very stiff and frightened, and she observed black and blue marks on Bobby's chest, ankles, and buttocks. She saw many bruises "about the size of a finger. And the butt was just almost completely covered * * * [w]ith black and blue marks." In one other visit with Bobby in November 1987, she did not remember seeing any bruises. Dr. Nancy Jones performed the autopsy on Bobby, and also testified as to the contents of his pediatric records. The parties stipulated to Dr. Jones' education, experience and board certification in the fields of anatomic, clinical, and forensic pathology. Dr. Jones testified that since July 1986, she had conducted 1,500 autopsies and over 200 of them had been performed on children under the age of two. The salient portions of Dr. Jones' testimony show that Bobby was underdeveloped for his age, significantly shorter and underweight. The exterior of the boy's body exhibited a large number of bruises distributed over his head, trunk, and upper and lower extremities. The bruises varied in coloration, extending all along the right and left side of his face, both of his arms, both of his hands, his chest, the tops of his feet, on his back and on his buttocks. Dr. Jones explained that the depth of the bruises can be measured by how far the bruise extends into the subcutaneous fat under the surface of the skin. The deeper the bruise goes into the subcutaneous fat, the greater the force which was used to cause the injury. Also, from the coloration of the bruise, it is possible to determine its age and the approximate time which had elapsed since the injury which resulted in the bruise. The interior examination revealed a large area of hemorrhage, containing 16 grams of clotted blood, under the surface of Bobby's scalp on both the right and left side of Bobby's head. The brain was very swollen, a result of how the brain reacts to injury. There was also hemorrhaging in the abdominal cavity area and two additional hemorrhages in the tongue which were consistent with bite marks. In total, Dr. Jones' internal examination revealed 45 different areas of bruising on Bobby's body. Dr. Jones concluded on the basis of the autopsy that Bobby had died as a result of bilateral subdural hematoma which resulted from blunt head trauma. She concluded that based upon the autopsy, the constellation of injuries, the varying ages of the injuries, and Bobby's pediatrician's records, Bobby's physical condition at the time of autopsy was "the direct result of ongoing abuse." She stated that based upon the color of the bruises, some were at least a week old at the time of the boy's death, and that they would definitely have been visible on December 16, the day before Bobby died. Dr. Jones found nothing in Bobby's records to indicate that he had any underlying illnesses or bleeding problems which would substantiate that Bobby was an "easy bruiser." She noted that some of the bruises went down into his subcutaneous tissue. Dr. Jones opined that the abuse dated back to approximately June 1987, when Bobby was 15 months of age. She indicated on Bobby's death certificate that the injuries were intentional and not the result of accidental acts. Investigator Baldwin, a detective with the Cook County sheriff's office, testified for the State regarding the conversation he had with Peters following Bobby's death. Peters told Baldwin she had been living with Jacobsen since September 1987, and would routinely leave Bobby in Jacobsen's custody when she worked. She stated she accepted Jacobsen's explanations to her for the bruises and injuries to Bobby in her absence, believing they were never very serious and she did not feel that the injuries warranted taking Bobby to the hospital. Peters explained to Baldwin that she had not taken Bobby to the hospital for his burns because Jacobsen had told her that he had gone to LaGrange Memorial Hospital and had obtained a jar of salve. Baldwin stated he had checked with the hospital and they had no record of this visit. Baldwin stated that Peters told him she had last seen Bobby alive on December 16, 1987. Peters left home at 6:30 p.m. to go 1208 drinking with one of her girlfriends, and returned home three hours later. Jacobsen had put Bobby to bed and Peters did not look in on him that night. When Peters awoke on December 17, Jacobsen told her they had to take Bobby to the hospital because Bobby had turned blue. Baldwin stated that when Peters was informed that Bobby's death was the result of a homicide, Peters just shrugged her shoulders and gave him a look as if it did not matter. Peters told Baldwin she had not really wanted the boy. When Baldwin asked her whether she did not really care what happened to Bobby, Peters responded, "I guess not." When Baldwin asked her how she thought Bobby died, Peters responded that she thought Jacobsen was responsible for his death. However, Peters did tell Baldwin she loved Bobby and that she would never allow someone to abuse the boy or to deliberately hurt him. Other witnesses for the State testified as follows. Linda Norcutt, the outpatient registrar at LaGrange Memorial Hospital, while working in the emergency room on the morning of December 17, 1987, overheard Peters say to Jacobsen, "I told you not to get so angry, I told you not to get so angry, I told [you] this would happen," and that Jacobsen responded, "Shush, shush, and go sit down." Susan Siorek, a registered nurse at LaGrange Memorial Hospital, testified as to the severity of Bobby's injuries at the time he was brought into the emergency room. Bobby was "very pale, very cold, very thin, and emaciated, unkept and he also was covered with bruises." She found bruises of varying colors, from yellowish-green to red-purplish, around the face and forehead, chest area, up and down both arms, the feet, down along the spinal column and on his buttocks. The testimony of Dr. Carol Haller, an associate pathologist at Illinois Masonic Hospital and consultant for the Cook County medical examiner's office, was stipulated to by the State and defense. Dr. Haller would have testified that she had studied over 300 head injuries in children under the age of two, and, after examining Bobby, would have opined that in order to cause his injury, it would have taken a force equal to that received in a motor vehicle accident, or of being dropped from a height of approximately three stories. She stated that if Bobby's injury was caused by an object coming into contact with his head, it would have been something like a baseball bat, a heavy stick, or a club. In her opinion, the injury was not consistent with Jacobsen's explanation that Bobby had fallen down the stairs onto the sidewalk. Barbara Peters testified that Bobby was not a planned child. She financially supported both Bobby and Jacobsen and worked from 5 p.m. to midnight during the week and bartended on weekends. During the time she was working, Jacobsen watched Bobby. Peters stated she trusted Jacobsen with Bobby and felt Bobby was safe with him. Peters had seen Jacobsen use cocaine once or twice around December 1987. Peters testified she never saw Jacobsen abuse Bobby and she never willfully caused or permitted Jacobsen to abuse Bobby. Peters stated she never saw Jacobsen hit or strike Bobby, nor did Jacobsen ever strike her. She never saw Jacobsen get angry with Bobby. She never saw Jacobsen reprimand Bobby. While Peters knew about the burn on Bobby's back, she accepted Jacobsen's explanation that he had spilled hot tea on Bobby and had taken the child to the emergency room. Also, while she did from time to time notice bruises on the boy, she stated that Bobby was small for his age and clumsy. Since he bruised easily, she was not alarmed when she saw bruises. Peters testified that in November 1987, she saw Jacobsen throw a chunk of ice at Bobby that hit him in the head. Peters told Jacobsen to be careful because Bobby would get whiplash. Peters stated the last time she saw Bobby alive was on December 16, 1987. She testified she was with Bobby all day but never changed his diapers or pajamas. She stated that she had not given Bobby a bath or changed his diapers for three weeks 1209 before Bobby died. She only saw Bobby fully dressed. Peters stated that when Bobby was discovered to be blue, neither she nor Jacobsen called an ambulance. Instead, she drove with Bobby and Jacobsen to LaGrange Memorial Hospital. On cross-examination, when shown a photograph of Bobby's bruised face, Peters remembered Bobby's face being bruised, but did not remember seeing "that many" bruises on his face and the bruises were "[n]ot that big." Peters also remembered seeing the bruises on Bobby's hand that were depicted in the photograph, but had accepted Jacobsen's explanation that Bobby had been playing in his room and the crib had fallen on his fingers. When questioned about Bobby's scheduled visits to the pediatrician, Peters stated she canceled Bobby's November 10 visit because she was feeling sick, and she canceled the November 24 visit because her car would not start. Peters testified that August 11, 1987, was the last time she took Bobby to the pediatrician. Peters admitted that she told Detective Baldwin she believed Jacobsen was responsible for Bobby's death, and that she may have been negligent at times in leaving Bobby with Jacobsen. ANALYSIS Although the specific facts of the two consolidated cases are, naturally, different, a common theme can be found in them. Both cases involve the death of a child, murdered by the boyfriend of the child's mother. Additionally, in both cases, according to the findings of the trial court, the mother knew of the on-going abuse of the child by the murderer. The issue we must address is whether the mother's knowledge of this on-going abuse, coupled with the continued, sanctioned exposure of the child to this abuse, is sufficient to hold the mother accountable for the murder of the child. Both defendants contend they cannot be held accountable for the murder of their child because the State did not prove beyond a reasonable doubt that they aided and abetted another in the commission of an offense with the concurrent specific intent to promote or facilitate the commission of that offense. The accountability statute at issue states as follows: "§ 5-2. When Accountability Exists. A person is legally accountable for the conduct of another when: * * * * * * (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." Ill.Rev.Stat.1987, ch. 38, par. 5-2(c). A charge based upon accountability must necessarily flow from the principal crime at issue. Accountability is not in and of itself a crime, but rather a method through which a criminal conviction may be reached. Simply, the statute is a statement of the principles of accessoryship. (Ill.Ann.Stat., ch. 38, par. 5-2, Committee Comments, at 235 (Smith-Hurd 1989).) Individuals are not charged with the offense of accountability. Instead, they may be charged, as here, with murder, with their guilt established through the behavior which makes them accountable for the crimes of another. The defendants contend that intent as set forth in the statute means specific intent and differs from the State's interpretation. The defendants believe accountability requires a specific intent to promote or facilitate the commission of a criminal offense. In other words, according to the defendants' interpretation of the statute, they may only be convicted if they had the specific intent to aid the principals, Stanciel and Jacobsen, in the murders of Electicia and Bobby. The State counters that murder is not a specific intent crime. It is a general intent crime requiring only that the individual charged commit some act, the natural tendency of which is to destroy another's life. The State believes that because murder requires only general intent, it would be illogical and inconsistent to require specific intent when the murder 1210 charge is based on a theory of accountability. The rules of statutory construction require that, where the language of a statute admits to two constructions, one of which would make an enactment absurd and illogical, while the other renders it reasonable and sensible, the construction which leads to an absurd result must be avoided. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 312-13, 123 Ill. Dec. 489, 527 N.E.2d 1264.) Here, requiring specific intent for accountability to murder would be illogical and inconsistent with the murder requirement of general intent. Also, as the appellate court in the Peters case recognized, there is no requirement of specific intent in the statute. (224 Ill.App.3d at 193, 123 Ill. Dec. 489, 527 N.E.2d 1264.) Defendant's argument thus fails. Accountability, tied as it is to the crime charged, must comport with the requirements of that crime. Thus, for example, the charge of assault with intent to rape, a specific intent crime, must require a specific intent for one who is accountable as well. Under this analysis, then, one whose guilt of murder, a general intent crime (People v. Bartall (1983), 98 Ill. 2d 294, 74 Ill. Dec. 557, 456 N.E.2d 59), is established through accountability, need only possess a general intent, with all the requirements that state of mind entails. The appellate court cases cited by the defendants, wherein "intent" is equated with "specific intent," stem from People v. Ramirez (1968), 93 Ill.App.2d 404, 236 N.E.2d 284. The court in Ramirez, in equating intent with specific intent, offered no basis or rationale for the assertion. Therefore, we reject that interpretation. The question thus arises, Did the defendants possess the general intent requirement to sustain their convictions for murder? For this purpose, it is sufficient to show that the defendants voluntarily and willfully committed an act, the natural tendency of which is to destroy another's life. (Bartall, 98 Ill.2d at 307, 74 Ill. Dec. 557, 456 N.E.2d 59.) Intent may be inferred from the character of defendant's acts as well as the circumstances surrounding the commission of the offense. (People v. Terrell (1989), 132 Ill. 2d 178, 204, 138 Ill. Dec. 176, 547 N.E.2d 145.) Addressing this standard to accountability, the intent to promote or facilitate a crime may be shown by evidence that the defendant shared the criminal intent of the principal, or by evidence that there was a common criminal design. (People v. Terry (1984), 99 Ill. 2d 508, 77 Ill. Dec. 442, 460 N.E.2d 746; People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544.) The evidence presented at the trials and the findings of the trial courts establish this purpose. In the case of Violetta Burgos, the evidence is striking. Although ordered for the sake of her daughter to break off all ties with Stanciel, she not only disobeyed this directive, but authorized his role as the child's disciplinarian. The extent and severity of the injuries to Electicia clearly show a record of abuse from which the trier of fact could infer not only Burgos' sanction of, but also active participation in, the abuse which led to the child's death. The reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact (People v. Brisbon (1985), 106 Ill. 2d 342, 88 Ill. Dec. 87, 478 N.E.2d 402), and a criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant's guilt (People v. Collins (1985), 106 Ill. 2d 237, 87 Ill. Dec. 910, 478 N.E.2d 267). We cannot say the trial court's inference was unreasonable. Thus, the common criminal design standard was satisfied. In the case of Barbara Peters, the extent and severity of abuse to her child is clear. The testimony of Karen Wagner established the existence of the abuse several months before the child's death. The burns and bruises went beyond mere clumsiness. The statement of Peters that "I told you this would happen" supports the trial court's inference that she had knowledge of Jacobsen's abusive behavior. Finally, the continued arrangement of Jacobsen's control over the child sufficiently satisfies 1211 the common criminal design standard. Burgos and Peters also both argue that they may not be held accountable for the murders where they did not aid the principals in the abuse which resulted in the death of the children. Although the law does not generally require an individual to come to the aid of another, certain relationships exist which require such action. Criminal conduct may arise not only by overt acts, but by an omission to act where there is a legal duty to do so. LaFave and Scott address this duty in their treatise on criminal law: "Some statutory crimes are specifically defined in terms of omission to act. With other common law and statutory crimes which are defined in terms of conduct producing a specified result, a person may be criminally liable when his omission to act produces that result, but only if (1) he has, under the circumstances, a legal duty to act, and (2) he can physically perform the act. The trend of the law has been toward enlarging the scope of duty to act." W. LaFave & A. Scott, Criminal Law § 26, at 182 (1972). The authors recognize the parent-child relationship as creating a duty to act: "The common law imposes affirmative duties upon persons standing in certain personal relationships to other persons upon parents to aid their small children, upon husbands to aid their wives, upon ship captains to aid their crews, upon masters to aid their servants. Thus a parent may be guilty of criminal homicide for failure to call a doctor for his sick child, a mother for failure to prevent the fatal beating of her baby by her lover, a husband for failure to aid his imperiled wife, a ship captain for failure to pick up a seaman or passenger fallen overboard, and an employer for failure to aid his endangered employee. Action may be required to thwart the threatened perils of nature (e.g., to combat sickness, to ward off starvation or the elements); or it may be required to protect against threated acts by third persons." W. LaFave & A. Scott, Criminal Law § 26, at 184 (1972). This court over a century ago recognized the duty of a parent to care for his child. (People ex rel. O'Connell v. Turner (1870), 55 Ill. 280, 284-85.) Although both Peters and Burgos argue they did not aid the principals in the pattern of abuse which resulted in the death of the children, the evidence presented against both defendants is sufficient to provide the inference that they both either knew or should have known of the serious nature of the injuries which the victims were sustaining. Under the present circumstances, we hold the defendants had an affirmative duty to protect their children from the threat posed by Jacobsen and Stanciel. Rather than fulfill that obligation, the defendants entirely ignored the danger posed by these two men, and in doing so aided them in the murders of Bobby and Electicia. Peters makes several additional arguments in support of her argument for reversal of her conviction. The first additional question to be resolved concerns the absence of Peters from her home at the time Bobby was murdered. The argument advanced states that, because Peters was not present when the fatal blows were struck, she could not have aided Jacobsen in the murder. This argument fails for two reasons. First, actual presence at the commission of a crime is not a requirement of accountability. (Ill.Rev.Stat.1991, ch. 38, par. 5-2.) Second, a defendant may be found to have aided and abetted without actively participating in the overt act itself. (People v. Ruiz (1982), 94 Ill. 2d 245, 68 Ill. Dec. 890, 447 N.E.2d 148.) In Peters' case, the aid rendered may be found in Peters' act of placing Bobby in the control of the principal, a known abuser. This delegation of exclusive control of the child to Jacobsen constituted the act of aiding a principal under the accountability statute. Defendant Peters asserts that accountability does not include those who merely possess knowledge that a crime is *1212 being or is about to be committed. While this is true, it does not aid the defendant who, as we have determined, also possessed the requisite intent to come within the purview of the statute. Defendant Peters next contends that a failure to reverse the appellate court judgment will result in the prosecution of parents for crimes committed upon their children solely by virtue of the common law duty to protect and care for them, regardless of the intent of the parents in committing these crimes. Defendant's argument ignores the point that intent is still a requirement, and that guilt must still be proven through the knowledge and sanction of a danger. Defendant Peters makes one other allegation of error, that concerning the testimony of Dr. Nancy Jones. Defendant alleges Dr. Jones improperly testified beyond the scope of her expertise in stating that Bobby's physical condition at the time of his death was the result of "on-going abuse." The defendant asserts that Dr. Jones' opinion was the result of conjecture or guess. We disagree. Dr. Jones was a board-certified pathologist who had conducted over 1,500 autopsies, more than 200 of which were on children under two years of age. The defendant stipulated to her education, experience and board certification in the fields of anatomic, clinical, and forensic pathology. Being an expert in those fields, Dr. Jones was competent to render an opinion as to the cause of Bobby's physical condition at the time of his death. Along with the autopsy results of Bobby, Dr. Jones reviewed the child's medical records, a permissible reference from which to form an opinion. (Wilson v. Clark (1981), 84 Ill. 2d 186, 49 Ill. Dec. 308, 417 N.E.2d 1322.) These records on Bobby show a dramatic reversal of his growth rate approximately six months before his death, beginning around the time Peters began seeing Jacobsen. Bobby's height and weight dropped off the normal development curve around this time, and Dr. Jones could find no physiological reason, such as an illness or a natural disease process, which would explain this. Her review of these records, together with the child's physical condition at the time of his death, was the basis for her opinion that the child suffered from ongoing abuse prior to his death. Further, the judge was free to accept or reject this testimony. We cannot say this testimony was improper on this basis. For the foregoing reasons, the judgment of the appellate court in No. 73097, regarding Violetta Burgos, is reversed and her conviction reinstated. We note that Burgos raised an additional issue in the appellate court concerning sentencing which that court did not address. We therefore remand to the appellate court for a determination on the sentencing issue raised by Burgos. The judgment of the appellate court in No. 73184 is affirmed. No. 73097Appellate court reversed; cause remanded; No. 73184Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601565/	228 P.3d 617 (2010) 234 Or. App. 439 PRIME PROPERTIES, INC., an Oregon corporation, Plaintiff-Respondent, v. Leonard James LEAHY, Defendant-Appellant. 071011594, A138138. Court of Appeals of Oregon. Argued and Submitted August 25, 2009. Decided March 24, 2010. 618 Monica L. Finch argued the cause for appellant. On the opening brief and with her on the reply brief was Eli D. Stutsman. Joseph A. Yazbeck, Jr., Portland, argued the cause for respondent. With him on the brief was Yazbeck, Cloran & Hanson, LLC. Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge. ROSENBLUM, J. Defendant appeals a judgment based on an arbitrator's award of damages in plaintiff's favor. Defendant assigns error to the trial court's denial of his petition to vacate the arbitration award and the court's entry of the judgment. He argued to the trial court that, because plaintiff's attorney was represented in an unrelated matter by an attorney in the arbitrator's law firm, the court was required to vacate the award under ORS 36.705 based on "evident partiality" by the 619 arbitrator. The court ruled that defendant had not made a timely formal objection to the arbitrator's participation and, moreover, that defendant had failed to establish evident partiality. Defendant appeals. We conclude that defendant sufficiently objected to the arbitrator's participation, but that the record supports the trial court's finding as to evident partiality. Accordingly, we affirm. We take the following facts from the record. The arbitration at issue arose from a real estate transaction between the parties. The transaction led to a dispute between the parties, the details of which are not material to this case. As a result of the dispute, plaintiff filed a claim for damages with Arbitration Services of Portland (ASP), in accordance with an arbitration provision in the earnest money agreement. The parties selected an arbitrator, Batchelor, from a list provided by ASP, and an arbitration hearing was scheduled for August 1, 2007. About two weeks before the hearing, plaintiff brought in a new attorney, Mutnick, to represent him at the hearing. Around the same time, Mutnick, who was personally involved in an unrelated legal matter, hired another lawyer, Glade, to represent him in that matter. Glade is a partner in Batchelor's law firm. At the beginning of the hearing on August 1, Batchelor informed the parties that he had become aware of the relationship between Mutnick and Glade. He gave the parties an opportunity to speak privately with their respective attorneys, after which defendant objected to Batchelor's continued service as arbitrator. Batchelor overruled the objection, but, in the presence of the parties' attorneys, he called the ASP administrator, Damis, and explained the situation. Damis agreed that Batchelor could continue as the arbitrator. The hearing then resumed with no further objection by defendant. Batchelor issued a written decision on August 28, 2007. He ruled in plaintiff's favor and awarded plaintiff approximately $66,000 in damages. Plaintiff thereafter petitioned the trial court to confirm the arbitration award. Defendant responded with a petition to vacate the award. He argued that the representation of plaintiff's attorney by Batchelor's law firm caused "evident partiality" under ORS 36.705(1)(b)(A), and that that statute required the court to vacate the award. At the hearing on the parties' respective petitions, the court described the relationship between Batchelor's law firm and Mutnick as an "apparent conflict" and an "actual conflict" and expressed surprise that the arbitration had gone forward. However, the court noted that, aside from defendant's oral objection to Batchelor's continued participation, "nothing formal took place" until after the award was issued. The court opined that defendant's counsel "should have acted sooner to do something instead of waiting for an award and then have it not go his way and then complain." The court then ruled on defendant's petition: "[T]he language of the statute is may vacate the award under the circumstance if it's evident partiality. "I don't find that. Iand it's may, not shall. And given the duration of time that passed between the arbitration happening and any kind of formal objection taking place beyond the oral objection, I don't findI'll make two findings. "One, I think that therethere's a time delay that's not reasonable, and so for that reason, I'm denying the motion to vacate. "And then the second piece is that on the record that's before me, I don't see anything that would lend itself to an objective finding of evident partiality on behalf of Mr. Batchelor. And so * * * for those two reasons, I'm denying the motion." The court entered an order confirming the arbitration award and, ultimately, a judgment in conformity with the award. This appeal followed. Defendant challenges both bases for the trial court's ruling. Because the court articulated independent bases for denying defendant's petition to vacate the award, to prevail on appeal, defendant must show that both bases were erroneous. We begin with the court's finding that defendant delayed unreasonably in objecting formally to Batchelor's service as arbitrator. Defendant argues that he used the sole mechanism for 620 objecting that was available to him before the award was made, namely, ASP's Arbitration Rule 12, which provides: "Arbitrator Challenge Procedure. At any time prior to the rendering of the award, but as soon as practicable after acquiring such information, any party may challenge an arbitrator on the basis of partiality, bias, financial or personal interest in the result of the arbitration, or past or current relationship with any party, a party's representatives, a party's attorney, a witness, or another arbitrator (if any). The challenging party shall inform ASP of such information in writing and serve a copy thereof on the other parties. If the arbitrator denies such information or denies that it would affect the arbitration and therefore declines to resign, ASP shall determine whether the arbitrator should be disqualified, and the decision of ASP shall be conclusive on the parties."[1] (Boldface in original.) Defendant acknowledges that the rule requires that the objection be made in writing, but he asserts that, under ORS 36.650(6), which requires only substantial compliance with the procedural rules of an arbitration organization as a condition precedent to vacatur by a court, his oral objection was sufficient under the circumstances. We agree. Defendant's oral objection at the arbitration proceeding and the events that followed satisfied the purposes of Rule 12. Defendant informed Batchelor and plaintiff of his objection to Batchelor's service and gave Batchelor and plaintiff the opportunity to express their respective positions. Batchelor's call to Damis informed ASP of the objection. Under the rule, Damis's determination that Batchelor should not be disqualified was conclusive, so defendant filing his objection in writing would have served no purpose. Under the circumstances, defendant substantially complied with the rule. Furthermore, there was no other mechanism for objecting other than a petition to vacate the award under ORS 36.705, which defendant timely filed. It follows that, to the extent that the trial court denied defendant's petition based on delay, the court erred. We turn to the trial court's determination that defendant failed to establish evident partiality. Defendant renews the contention that the relationship between Batchelor's law firm and plaintiff's counsel created evident partiality by Batchelor and that, as a result, the court was required by ORS 36.705(1) to vacate the award. ORS 36.705 provides, in part: "(1) Upon petition to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if: "(a) The award was procured by corruption, fraud or other undue means; "(b) There was: "(A) Evident partiality by an arbitrator appointed as a neutral arbitrator; "(B) Corruption by an arbitrator; or "(C) Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding[.]" The term "evident partiality" is not statutorily defined. The parties disagree as to its meaning. According to plaintiff, for the party objecting to the award to establish evident partiality, it must be obvious from the surrounding circumstances that partiality affected the arbitrator's decision. In defendant's view, the term is much more broad and includes not only actual partiality, but the appearance of partiality as well. The meaning of the term "evident partiality" is an issue of statutory construction. To resolve that issue, we begin by looking to the text and context of ORS 36.705. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). The statute is part of a statutory scheme that derived from the Uniform Arbitration Act, which was promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). ORS 36.735 provides that, "[i]n applying and construing 621 ORS 36.600 to 36.740, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it." The NCCUSL's commentary to the uniform act helps to explicate the meaning of the statutory terms, so it provides a useful tool for promoting uniformity of the law, and we consider it where appropriate. See Torres v. Mason, 315 Or. 386, 389, 848 P.2d 592 (1993) (relying on commentary to the Uniform Child Custody Jurisdiction Act in construing Oregon's version of the statute). To determine the meaning of "evident partiality," we begin with the terms themselves. The common meaning of "partiality" is "the inclination to favor one side." Webster's Third New Int'l Dictionary 1646 (unabridged ed. 2002); see also id. (defining "partial" as "inclined to favor one party in a cause or one side of a question more than the other: BIASED, PREDISPOSED" (uppercase in original)). "Inclination," in turn, means "a particular disposition of mind or character: PROPENSITY, BENT" or "a tendency to a particular aspect, state, character, or action." Id. at 1143 (uppercase in original); see also id. (defining "inclined" as "having inclination, disposition, or tendency"). The common meaning of "evident" is "capable of being perceived esp[ecially] by sight: distinctly visible: being in evidence: DISCERNABLE[;] * * * clear to the understanding: OBVIOUS, MANIFEST, APPARENT." Id. at 789 (uppercase in original); see also id. (stating that synonyms of "evident" include "APPARENT, PATENT, MANIFEST, PLAIN, CLEAR, DISTINCT, OBVIOUS, [and] PALPABLE" and that, "[s]ince evident rather naturally suggests evidence, it may imply the existence of signs and indications that must lead to an identification or inference" (uppercase in original; emphasis added)). The common definition of "partiality" forecloses plaintiff's argument that it must be obvious that partiality affected the arbitrator's decision. To establish evident partiality, the objecting party need only show that the arbitrator was inclined to favor one side, not that the arbitrator actually acted upon that inclination, such that the arbitrator's decision was affected to the detriment of the other party. Other provisions in ORS 36.705 confirm that understanding. ORS 36.705(1)(b)(C) provides for mandatory vacatur if there was "[m]isconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding [.]" (Emphasis added.) Similarly, ORS 36.705(1)(c) and (f) provide for mandatory vacatur where other specified circumstances result in substantial prejudice to a party.[2] Those provisions demonstrate that, where the legislature intended to require vacatur only if the rights of a party were prejudiced, it knew how to say so expressly. The absence of a prejudice requirement in ORS 36.705(1)(b)(A) thus indicates that "evident partiality" results in mandatory vacatur regardless of whether it affected the arbitrator's decision. However, the common meaning of "evident" and the statutory context also forecloses defendant's understanding that "evident partiality" includes the mere appearance of partialitythat is, the appearance of an inclination to favor one side, even if such an inclination does not actually exist. Instead, something that is discernable, obvious, manifest, and palpable must actually exist. "Evident partiality" implies "the existence of signs and indications that must lead to an identification or inference" of partiality.[3] 622 In asserting that evident partiality requires only the appearance of partiality, defendant relies on ORS 36.650(1), which provides that an arbitrator must disclose "any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including: "(a) A financial or personal interest in the outcome of the arbitration proceeding; and "(b) An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding, their counsel or representative, a witness or another arbitrator in the proceeding." Defendant correctly asserts that an arbitrator must disclose not only facts that actually affect his or her impartiality, but also those that a reasonable person would consider likely to affect the arbitrator's impartialitythat is, facts that give rise to the appearance of partiality. Defendant also correctly asserts that ORS 36.650(3) provides that, when an objection based on the existence of such disclosed facts is overruled, the objection may be a ground for vacating the award.[4] Based on those assertions, defendant contends that ORS 36.650 provides "dispositive" context in interpreting ORS 36.705(1)(b). ORS 36.650 certainly does provide context, but it does not lead to the conclusion that "evident partiality" includes the mere appearance of partiality. Defendant overlooks a significant distinction between ORS 36.650(3) and ORS 36.705(1). ORS 36.650(3) provides that disclosed facts creating the appearance of partiality "may" be a ground to vacate the arbitrator's award, whereas ORS 36.705(1) provides that, if there was evident partiality, the court "shall" vacate the award.[5] If the mere appearance of partiality constituted evident partiality, and thus were sufficient to trigger mandatory vacatur under ORS 36.705(1)(b), there would never be any occasion for discretionary vacatur under ORS 36.650(3), rendering that provision meaningless surplusage. We presume that the legislature did not intend for any of its enactments to be meaningless. See ORS 174.010 (courts shall construe statutes, if possible, to give meaning to all provisions). Even when an arbitrator does not disclose a relationship with a party or a party's counsel, the relationship does not necessarily give rise to evident partiality. ORS 36.650(4) provides that, "[i]f the arbitrator did not disclose a fact as required by subsection (1) or (2) of this section, upon timely objection by a party, the court under ORS 36.705(1)(b) may vacate an award." (Emphasis added.) Although the failure to disclose a required fact could give rise to an inference of evident partiality, unless the factfinder actually draws that inference (and thus makes a finding of evident partiality), the failure to disclose gives rise only to discretionary, not mandatory, vacatur. Even the failure to disclose a "known, direct and material interest in the outcome of the arbitration proceeding or a known, existing and substantial relationship with a party, the party's counsel or representatives, a witness or another arbitrator in the proceeding" gives rise only to a rebuttable presumption that the arbitrator acted with evident partiality. ORS 36.650(5); Unif. Arbitration Act (2000) § 12 comment 4, 7 ULA 46 (2009) (when the presumption in ORS 36.650(5) arises, the burden shifts to the party defending the award to rebut the presumption). It does not conclusively establish evident partiality. If such undisclosed facts do not conclusively establish evident partiality, it cannot be that any fact that a reasonable person 623 would consider likely to affect impartiality, whether disclosed or not, conclusively establishes evident partiality, as defendant argues. Thus, establishing evident partiality does not require a showing that the arbitrator's decision was actually affected by partiality, as plaintiff argues. Nor is it established by showing only an appearance of partiality, as defendant argues. Instead, it requires that the arbitrator manifested an actual, discernable inclination to favor one side, whether or not the award was affected by that inclination. Whether an arbitrator manifested an actual, discernable inclination to favor one side is a question of historical fact. The trial court in this case stated, "[O]n the record that's before me, I don't see anything that would lend itself to an objective finding of evident partiality on behalf of Mr. Batchelor." "[U]nless the evidence in a case is such that the trial court as finder of fact could decide a particular factual question in only one way," we are bound by a trial court's factual findings, including a "`finding' that a party's evidence is not sufficiently persuasive." State v. Johnson, 335 Or. 511, 523, 73 P.3d 282 (2003). The facts of this case are not such that the trial court was compelled to find evident partiality. Accordingly, we are bound by the court's finding that defendant's evidence was not sufficiently persuasive to establish evident partiality.[6] It follows that the court was not required by ORS 36.705(1) to vacate the arbitration award. Defendant did not argue to the trial courtor on appealthat, under ORS 36.650(3), the court had discretion to vacate the award on less than a showing of evident partiality. In all events, defendant waived the right to seek discretionary vacatur. As noted above, ASP's Rule 12 (by which defendant agreed to be bound) provided that ASP's decision as to whether the arbitrator should be disqualified was conclusive on the parties. ORS 36.610(3) provides that a party may not waive the requirements of ORS 36.705 (providing for mandatory vacatur), but it does not preclude waiver of the requirements of ORS 36.650(3). Thus, although the parties could not waive the right to seek mandatory vacatur based on evident partiality, they couldand didwaive the right to seek discretionary vacatur based on the appearance of partiality. Accordingly, we do not consider whether the court abused its discretion under ORS 36.650(3) in denying defendant's petition to vacate the award. Because the trial court denied defendant's petition to vacate the arbitration award on a proper ground, we affirm the court's judgment. Affirmed. NOTES [1] Although Rule 12 provides that ASP's decision is conclusive on the parties, ORS 36.610(3) provides that a party to an arbitration agreement may not waive the requirements of, among other provisions, ORS 36.705. Thus, Rule 12 did not preclude defendant from filing a petition to vacate the award based on evident partiality. [2] ORS 36.705(1)(c) provides that the court shall vacate the award if the arbitrator refused to postpone the hearing where sufficient cause was shown, refused to consider material evidence, or otherwise conducted the hearing contrary to prescribed procedures "so as to prejudice substantially the rights of a party to the arbitration proceeding." ORS 36.705(1)(f) requires vacatur if "[t]he arbitration was conducted without proper notice of the initiation of an arbitration as required in ORS 36.635 so as to prejudice substantially the rights of a party to the arbitration proceeding." [3] We recognize that one of the words used to define "evident" is "apparent," and that one meaning of the latter word is "readily manifest to senses of mind as real or true * * * but possibly distinct from or contrary to reality or truth." Webster's at 102; see also id. at 103 (synonyms of "apparent" include "SEEMING, OSTENSIBLE, [and] ILLUSORY" (uppercase in original)). However, that is not the sense in which the word is used in the definition of "evident." See id. at 789 (explaining that, as a synonym of "evident," "apparent" varies in meaning by "suggest[ing] a longer period of observation or reasoning"). [4] ORS 36.650(3) provides: "If an arbitrator discloses a fact required by subsection (1) or (2) of this section to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be a ground under ORS 36.705(1)(b) for vacating an award made by the arbitrator." [5] The commentary to the Uniform Arbitration Act states that ORS 36.650(3) is intended to give courts "wider latitude in deciding whether to vacate an award" than they have under ORS 36.705(1) and that vacatur is "permissive" under ORS 36.650(3) rather than "mandatory," as under ORS 36.705(1). Unif. Arbitration Act (2000) § 12 comment 4, 7 ULA 46 (2009). [6] We acknowledge that the trial court found that Batchelor had an "actual conflict." However, we understand the court to have meant that he had a conflict of interest in the sense that he had a relationship that he was required to disclose that is, one that could give rise to the appearance of partiality. As we explained above, such a relationship does not necessarily create evident partiality. Accordingly, the trial court's finding of an actual conflict is not inconsistent with its finding that there was no evident partiality.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1935391/	862 So.2d 634 (2003) CAVALIER MANUFACTURING, INC. v. James L. CLARKE. Cavalier Manufacturing, Inc. v. Faye W. Wilson. Cedar Ridge Factory Outlet, Inc. v. James L. Clarke. Cedar Ridge Homes, Inc. v. George T. Watkins. 1011012 to 1011014 and 1011106. Supreme Court of Alabama. April 25, 2003. 636 John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant Cavalier Manufacturing, Inc. Winston R. Grow of Brown, Hudgens, P.C., Mobile, for appellants, Cedar Ridge Factory Outlet, Inc., and Cedar Ridge Homes, Inc. Joseph C. McCorquodale III of McCorquodale & McCorquodale, Jackson, for appellees James L. Clarke and Faye W. Wilson. PER CURIAM. This opinion consolidates four appeals: Cavalier Manufacturing v. Clarke, Cavalier Manufacturing v. Wilson, Cedar Ridge Factory Outlet v. Clarke, and Cedar Ridge Homes v. Watkins. Cedar Ridge Factory Outlet, Inc., and Cedar Ridge Homes, Inc. (hereinafter referred to collectively as "Cedar Ridge"),[1] and Cavalier Manufacturing, Inc. ("Cavalier"), all of which are mobile-home dealers or manufacturers and defendants in four actions pending in the Clarke Circuit Court, appeal separately from the trial court's order in each action compelling arbitration under the terms of retail installment contracts between the mobile-home dealers and the plaintiffs in each case. We affirm the order of the trial court holding that Cedar Ridge Factory Outlet, a mobile-home dealer, is entitled under the terms of its retail installment contract with James L. Clarke to arbitrate the claims filed against it by Clarke. We affirm the order of the trial court that Cedar Ridge Homes, a mobile-home dealer, is entitled under the terms of its retail installment contract with George T. Watkins to arbitrate 637 the claims filed against it by Watkins. And, finally, we hold that Cavalier, a mobile-home manufacturer, is not a party to the retail installment contracts entered into by Cedar Ridge and Faye W. Wilson and by Cedar Ridge and Clarke; therefore, Cavalier cannot be compelled to arbitrate any claims against it under the terms of the arbitration clauses in the retail installment contracts. Cavalier is entitled to compel arbitration on all claims brought by Clarke and by Wilson, not under the terms of the retail installment contract, but under the terms of the arbitration clause contained in the "Acknowledgement and Agreement" entered into by Cavalier, Cedar Ridge Factory Outlet, and Wilson, and the "Acknowledgement" entered into between Cavalier, Cedar Ridge Factory Outlet, and Clarke. Therefore, we affirm the trial court's orders as to Cedar Ridge, and we reverse the trial court's orders as to Cavalier. Watkins On July 13, 1999, George T. Watkins bought, for $26,497.75, a mobile home from Cedar Ridge Homes in Thomasville, Alabama. The mobile home was manufactured by Chandeleur Homes, Inc. Watkins financed the purchase through Conseco Finance Corporation-Alabama, formerly Green Tree Financial Corporation-Alabama. At the time of the purchase, Watkins executed both a retail installment sales contract containing an arbitration clause and an "Agreement for Binding Arbitration." On November 9, 2000, Watkins sued Chandeleur, Conseco, and Cedar Ridge, asserting claims of negligent and intentional misrepresentation, breach of implied warranty, negligent transportation and installation of the mobile home, and failure of consideration. Chandeleur moved to compel arbitration of any warranty claims pursuant to an arbitration clause contained in the manufactured-home owners manual delivered with the new mobile home. Conseco moved to compel arbitration pursuant to the arbitration clause in the retail installment contract, stating in its motion that it would pay all costs of arbitration. Cedar Ridge moved to compel arbitration pursuant to the "Agreement for Binding Arbitration." On November 19, 2001, the trial court granted Cedar Ridge's motion to compel arbitration. Cedar Ridge moved the court to reconsider its order and identify the agreement under which the parties were to arbitrate their dispute. The trial court, specifically relying on this Court's decision in Ex parte Palm Harbor Homes, Inc., 798 So.2d 656 (Ala.2001), denied Cedar Ridge's motion to reconsider and ordered that arbitration be conducted in accordance with the arbitration provision in the retail installment contract. Cedar Ridge appeals from that order. Clarke On August 23, 1999, James L. Clarke bought, for $44,887.75, a mobile home from Cedar Ridge Factory Outlet in Jackson, Alabama. The mobile home was manufactured by Cavalier. At the time of the purchase, Clarke and Cedar Ridge executed both a retail installment contract containing an arbitration clause and an "Agreement for Binding Arbitration"; and Clarke, Cedar Ridge, and Cavalier executed an "Acknowledgement and Agreement" that contained an arbitration clause. When the mobile home was delivered, Cavalier provided Clarke with a copy of the limited warranty on the mobile home, which contained yet another arbitration clause. On June 19, 2001, Clarke sued Cedar Ridge and Cavalier, asserting claims of negligent and intentional misrepresentation, breach of implied warranty, breach of express warranty, negligent design and manufacture, and negligent transportation 638 and installation of the mobile home. Cavalier moved to dismiss or to stay the proceedings and to compel arbitration under the arbitration clauses in the "Acknowledgement and Agreement" and in the limited warranty. Cedar Ridge also moved to dismiss or to stay the proceedings pending arbitration, relying on either the arbitration clause in the "Agreement for Binding Arbitration" or the arbitration clause in the "Acknowledgement and Agreement." Clarke responded to Cedar Ridge's motion to compel arbitration, asserting that none of the arbitration agreements complied with the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act. However, Clarke stated that he would consent to arbitrate under the terms of the arbitration clause in the retail installment contract. The trial court, relying specifically on this Court's holding in Ex parte Palm Harbor, ordered the parties to arbitrate the dispute under paragraphs 14 and 15 of the retail installment contract. On February 8, 2002, Clarke moved for the appointment of a neutral arbitrator. Cedar Ridge answered Clarke's motion, asserting that the motion was premature because Cedar Ridge could still appeal the trial court's arbitration order. Both Cavalier and Cedar Ridge then filed notice of appeal of the trial court's order compelling arbitration under the terms of the arbitration clause in the retail installment contract. Wilson On September 29, 1999, Faye W. Wilson bought, for $56,135.25, a mobile home manufactured by Cavalier and sold by Cedar Ridge Factory Outlet in Jackson, Alabama. At the time of the purchase, Wilson and Cedar Ridge executed both a retail installment contract that contained an arbitration clause and an "Agreement for Binding Arbitration." Wilson, Cedar Ridge, and Cavalier executed an "Acknowledgement and Agreement." Cavalier provided Wilson a copy of the limited warranty for the mobile home, which also contained an arbitration clause. On September 13, 2001, Wilson sued Cedar Ridge and Cavalier, asserting claims of negligent and intentional misrepresentation, breach of implied warranty, breach of express warranty, negligent design and manufacture, and negligent transportation and installation of the mobile home. Cavalier moved to dismiss Wilson's claims, or, in the alternative, to stay the proceedings and to compel arbitration under the arbitration clauses in the limited warranty and in the "Acknowledgement and Agreement." Cedar Ridge also moved to dismiss Wilson's claims or, in the alternative, to stay the proceedings and to compel arbitration under the terms of the "Agreement for Binding Arbitration." On November 6, 2001, the trial court, believing the parties had agreed to arbitrate their dispute, appointed Claude Neilson as arbitrator. The trial court's order stated that "[t]he attorney for the plaintiff having indicated to the Court that the attorneys for the plaintiff and the defendants have agreed upon an arbitrator in this cause." On November 13, 2001, Cavalier moved to amend or vacate the order appointing Neilson as arbitrator, stating that it had not agreed to Neilson's appointment and that its arbitration agreements with Wilson required arbitration to proceed under the commercial arbitration rules of the American Arbitration Association ("the AAA"). On December 10, 2001, Wilson filed an amended complaint realleging her earlier claims and also alleging an additional breach-of-express-warranty claim. Cavalier moved to dismiss the amended complaint, or, in the alternative, to stay proceedings and to compel arbitration under 639 the arbitration clauses in the "Acknowledgement and Agreement" and in the limited warranty. On January 9, 2002, the trial court, relying specifically on this Court's holding in Ex parte Palm Harbor, entered an order compelling arbitration under the arbitration clause in the retail installment contract. On January 16, 2002, the trial court ordered Wilson, Cedar Ridge, and Cavalier to arbitrate their dispute before arbitrator Claude Neilson. Cavalier appeals from the trial court's order compelling arbitration under the terms of the retail installment contract.[2] Cavalier's Appeals as to Clarke and Wilson Cavalier argues that the trial court erred when, relying on Ex parte Palm Harbor, it ordered Cavalier to arbitrate Clarke's and Wilson's claims under the terms of the retail installment contracts entered into by Clarke and Cedar Ridge, and by Wilson and Cedar Ridge. In Ex parte Palm Harbor, the parties contemporaneously executed three documentsa security agreement containing an arbitration clause and two freestanding arbitration agreements. The security agreement contained both a merger clause and all the terms necessary to complete the transaction. None of the documents incorporated by reference any other document. Neither freestanding arbitration document contained a merger clause, and the terms of the freestanding arbitration documents contradicted the terms of the arbitration clause in the security agreement. This Court held that the merger clause in the security agreement made it the entire agreement between the parties and worked to extinguish the freestanding arbitration documents. 798 So.2d at 660-62. Cavalier argues that these cases are distinguishable from Ex parte Palm Harbor because it, Cedar Ridge, and Clarke, on the one hand, and it, Cedar Ridge and Wilson, on the other, are all parties to the "Acknowledgement and Agreement" executed in each case, but it is not a party to the retail installment contracts that Clarke and Wilson each executed with Cedar Ridge. In Ex parte Palm Harbor, Palm Harbor Homes was not a party to any of the agreements; it relied on a third-party-beneficiary theory as its basis for compelling arbitration. 798 So.2d at 658-59 n. 1. Cavalier argues that because it is not a party to the retail installment contracts, and because the "Acknowledgement and Agreement" contains both an arbitration clause and a merger clause, the "Acknowledgement and Agreement" constitutes the entire agreement between it, Cedar Ridge, and Clarke, and between it, Cedar Ridge, and Wilson. This Court decided this exact question in Belmont Homes, Inc. v. Law, 841 So.2d 237 (Ala.2002). In Belmont Homes, Belmont, the mobile-home manufacturer, was not a party to the retail installment contract executed between Law and the mobile-home dealer, but Belmont was a party to a document entitled "Acknowledgment and Agreement." The acknowledgment in Belmont contained an arbitration clause and a merger clause. Id. at 241. In Belmont, this Court stated that the merger clause in the retail installment contract did not extinguish the acknowledgment because Belmont was not a party to the retail installment contract and because merger clauses operate to merge only agreements between the same parties. Id. at 241. This Court held in Belmont that the acknowledgment "not only represent[ed] an independent agreement between Belmont and Law, but the entire 640 agreement between those two parties." Id. at 241. In this case, Cavalier is not a party to the retail installment contracts. The "Acknowledgement and Agreement," to which Cavalier is a party, contain both an arbitration clause and a merger clause. Therefore, the "Acknowledgement and Agreement" constitutes the entire agreement between Cavalier, Cedar Ridge, and Clarke, on the one hand, and between Cavalier, Cedar Ridge, and Wilson, on the other. Cavalier is entitled to arbitrate all disputes between it, Cedar Ridge, and Clarke, and between it, Cedar Ridge, and Wilson under the terms of the arbitration clause in the "Acknowledgement and Agreement" executed with those parties. In each case, the trial court erred in disregarding the respective "Acknowledgement and Agreement." Therefore, the trial court's orders regarding Cavalier are reversed and these cases are remanded for further proceedings consistent with this opinion. Cedar Ridge's Appeals as to Clarke and Watkins Cedar Ridge argues, like Cavalier, that the trial court erred when, relying on Ex parte Palm Harbor, it compelled it to arbitrate claims brought by Clarke and Watkins under the terms of the retail installment contracts. Belmont Homes, however, is inapposite to the issues raised in Cedar Ridge's appeals because, unlike Cavalier, which is not a party to the retail installment contracts at issue here, Cedar Ridge is a party to the retail installment contracts executed by Clarke and Watkins. We must, therefore, consider the operation of the "Agreement for Binding Arbitration" and the "Acknowledgement and Agreement," all of which were executed by Cedar Ridge, in relation to the retail installment contracts. In Watkins's case, Cedar Ridge argues that Watkins's claims should be arbitrated under the "Agreement for Binding Arbitration." Watkins filed no brief in this case. In Clarke's case, Cedar Ridge argues that Clarke's claims should be arbitrated under the "Acknowledgement and Agreement" or under the "Agreement for Binding Arbitration." Clarke argues that Ex parte Palm Harbor controls in this case because the retail installment contract contains both an arbitration clause and a merger clause, and that, therefore, the merger clause in the retail installment contract works to extinguish the other agreements. Clarke's and Watkins's retail installment contracts are substantially similar, so we consider that issue first. "Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract." Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000).[3] "If the court determines that the terms [of the contract] are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written." 776 So.2d at 746. "Whether a contract is integrated is ordinarily a question of law for the court to decide." Ex parte Palm Harbor, 798 So.2d at 661. "[A] contract may incorporate the terms of another document by reference." McDougle v. Silvernell, 738 So.2d 806, 808 (Ala.1999); Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998)("Parties to a contract are bound by pertinent references therein to outside facts and documents."). "Parties to a written contract may by mutual consent without other consideration orally alter, 641 modify or rescind the contract." Watson v. McGee, 348 So.2d 461, 464 (Ala. 1977). When parties execute successive agreements and the "two agreements cover the same subject matter and include inconsistent terms, the later agreement supersedes the earlier agreement." CMI Int'l, Inc. v. Intermet Int'l Corp., 251 Mich.App. 125, 130, 649 N.W.2d 808, 812 (2002). Further, "it is not always necessary for a later contract to contain an integration clause in order for this later contract to supersede an earlier contract." Archambo v. Lawyers Title Ins. Corp., 466 Mich. 402, 414 n. 16, 646 N.W.2d 170, 177 n. 16 (2002). Cedar Ridge argues that because it executed the "Agreement for Binding Arbitration" contemporaneously with the retail installment contract, the two instruments should be read together as one contract. See Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 414 (Ala.1993)("It is well settled that `two or more instruments executed contemporaneously by the same parties in reference to the same subject matter constitute one contract and should be read together in construing the contract.'"). This Court, however, substantially limited that rule in Ex parte Palm Harbor. In Ex parte Palm Harbor, one of the contemporaneously executed instruments contained an arbitration clause and a merger clause, none of the instruments incorporated the others by reference, and the arbitration provisions in the instruments without merger clauses contradicted the arbitration clause in the instrument with a merger clause; this Court held that the instrument containing the merger clause constituted the only contract between the parties. 798 So.2d at 661. If we apply the rule as stated in Ex parte Palm Harbor, because the retail installment contracts executed by Cedar Ridge contain a merger clause, it would initially appear that the arbitration clause in the retail installment contracts would extinguish the arbitration clauses in the "Agreement for Binding Arbitration" signed by Clarke and Watkins. Cedar Ridge argues, however, that its "Agreement for Binding Arbitration" is distinguishable from the agreements in Ex parte Palm Harbor because Cedar Ridge's "Agreement for Binding Arbitration" incorporates by reference the terms of the retail installment contract. The "Agreement for Binding Arbitration" reads in pertinent part: "This agreement is a part of the contract of sale entered into this date between Buyer and Seller, the terms [and] provisions of which are incorporated herein by reference, and shall be binding upon and inure to the benefit of their respective heirs and assigns." Cedar Ridge argues correctly that a contract, such as the "Agreement for Binding Arbitration," may incorporate the terms of another contract by reference. McDougle, 738 So.2d at 808.[4] Moreover, parties are free to modify agreements, and if the terms of a subsequent agreement contradict the earlier agreement, the terms of the later agreement prevail. See Watson, 348 So.2d at 464; CMI International, 251 Mich.App. at 130, 649 N.W.2d at 812. Also, the subsequent agreement need not contain its own merger clause to supersede the earlier integrated agreement. Archambo, 466 Mich. at 414 n. 16, 646 N.W.2d at 177 n. 16. 642 Cedar Ridge asserts in this case that the "Agreement for Binding Arbitration" was entered into subsequent to the retail installment contract and thus modifies the retail installment contract, and that Cedar Ridge should be allowed to arbitrate its disputes with Clarke and Watkins under that agreement. In Clarke's case, Cedar Ridge also argues that because it and Clarke are both parties to the "Acknowledgement and Agreement," and because it and Clarke entered into the "Acknowledgement and Agreement" subsequent to the retail installment contract, it should be allowed to arbitrate its dispute with Clarke under the terms of the "Acknowledgement and Agreement." While Cedar Ridge argues correctly that a subsequent agreementthe "Agreement for Binding Arbitration" or the "Acknowledgement and Agreement"would supersede a prior agreementthe retail installment contractthe record does not reveal the order in which the documents in this case were executed. Nor does the record reveal any reliable way for a court to determine the sequence. Likewise, the record does not reveal any mutual intent among the parties for an order of execution that would cause any particular document to supersede other documents. Instead, in each case, the evidence of record is, without any genuine factual dispute, that the documents were executed contemporaneously, on the same day, and were intended to be construed together. Therefore, in each case, the differences among the respective arbitration provisions in the documents constitute ambiguities, which should be construed against the defendants, who supplied the forms. Homes of Legend, 776 So.2d at 746 ("if all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferentem, any ambiguity must be construed against the drafter of the contract"). Thus, the trial court was right in compelling arbitration pursuant to the document the plaintiffs deemed most favorable to themthe main document in each casethe retail installment contract. Therefore, Cedar Ridge must arbitrate its disputes with both Watkins and Clarke under the terms of the retail installment contract. We recognize that because Cedar Ridge and Clarke are obligated to arbitrate their dispute under the retail installment contract, Clarke must arbitrate his disputes with Cedar Ridge and with Cavalier in separate proceedings conducted under the provisions of different arbitration agreements. Cavalier argues correctly that nothing in the Federal Arbitration Act provides for consolidated proceedings absent an expressed intention by the parties to do so. The Supreme Court of the United States held in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), "[t]he preeminent concern of Congress in passing the [Federal Arbitration] Act was to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate, even if the result is `piecemeal' litigation, at least absent a countervailing policy manifested in another federal statute." Other Issues Finally, Clarke and Wilson argue on appeal that all of the "Agreements for Binding Arbitration" and the "Acknowledgements and Agreements" are void because, they argue, the underlying transactions do not substantially affect interstate commerce, because they do not comply with the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act, and because they are unconscionable. To the extent that these 643 arguments might be validand we do not offer any judgment as to their validity these arguments would apply with equal force to the trial court's orders to arbitrate these disputes under the terms of the retail installment contractthat is, the orders from which Cavalier and Cedar Ridge appeal. These are not grounds on which we could affirm the orders of the trial court. Neither Clarke nor Wilson has cross-appealed in this case; therefore, these arguments are not properly before the court. "[T]he law of Alabama is well-settled on this point. In the absence of taking an appeal, an appellee may not cross-assign as error any ruling of the trial court adverse to appellee." McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So.2d 14, 24 (Ala.1987). See also Goldberg & Assocs., P.C. v. Donohoe, 777 So.2d 144, 146 (Ala.Civ.App.2000)("Donohoe argues in her brief on appeal that the trial court erred.... Donohoe did not cross-appeal to raise this issue on appeal.... Therefore, this court may not consider that issue."); McCreless v. McCreless, 673 So.2d 438, 440 (Ala.Civ.App.1995)("the mother argues in her brief that the trial court miscalculated the amount of the arrearage, but, because she did not cross appeal, that issue is not properly before us and we will not address her contention"). Conclusion We affirm the trial court's orders compelling Cedar Ridge to arbitrate its disputes under the terms of the retail installment contracts. We reverse the trial courts' orders as to Cavalier and remand those cases. On remand the trial court shall stay the proceedings against Cavalier and order the parties to arbitrate under the terms of the respective "Acknowledgement and Agreement." 1011012REVERSED AND REMANDED WITH DIRECTIONS. 1011013REVERSED AND REMANDED WITH DIRECTIONS. SEE, LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur. MOORE, C.J., and HOUSTON, J., concur in the result. 1011014AFFIRMED. 1011106AFFIRMED. LYONS, JOHNSTONE, HARWOOD, and STUART, JJ., concur. MOORE, C.J., and HOUSTON and WOODALL, JJ., concur in the result. SEE, J., dissents. WOODALL, Justice (concurring in case no. 1011012 and case no. 1011013 and concurring in the result in case no. 1011014 and case no. 1011106). I concur in the per curiam opinion insofar as it reverses the trial court's orders as to Cavalier and holds that James Clarke and Faye Wilson must arbitrate their claims against Cavalier under the terms of the "Acknowledgement and Agreement." However, insofar as the opinion affirms the trial court's orders as to Cedar Ridge and holds that Clarke and George Watkins must arbitrate their claims against Cedar Ridge under the terms of the retail installment contract, I concur in the result, because I am convinced that Ex parte Palm Harbor Homes, Inc., 798 So.2d 656 (Ala. 2001), compels such a result. MOORE, Chief Justice (concurring in the result). I concur in the result. The parties do not argue that their respective disputes should not be resolved in arbitration; rather, 644 they argue over which instrument reflects the agreement to resolve disputes by, or governs the terms of, arbitration. Because there is no opposition to arbitration per se, the principles articulated in my dissent in Selma Medical Center v. Fontenot, 824 So.2d 668, 676-93 (Ala.2001), do not require that I dissent in these cases. SEE, Justice (concurring in case no. 1011012 and case no. 1011013 and dissenting in case no. 1011014 and case no. 1011106). I concur in the per curiam opinion insofar as it reverses the trial court's orders as to Cavalier and holds that James Clarke and Faye Wilson must arbitrate their claims under the terms of the "Acknowledgement and Agreement." I dissent, however, from that part of the opinion that affirms the trial court's orders as to Cedar Ridge and holds that Clarke and George Watkins must arbitrate their claims against Cedar Ridge under the terms of the retail installment contract. The per curiam opinion treats all the documents executed by Clarke and Watkins in connection with the sale as having been executed contemporaneously because, it concludes: "[T]he record does not reveal the order in which the documents in this case were executed. Nor does the record reveal any reliable way for a court to determine the sequence. Likewise, the record does not reveal any mutual intent among the parties for an order of execution that would cause any particular document to supersede other documents." 862 So.2d at 642. I submit that a careful reading of all of the documents would permit the trial court to reliably determine the sequence of their execution. I. Watkins Cedar Ridge and Watkins executed two agreements, a retail installment contract and a stand-alone "Agreement for Binding Arbitration." The retail installment contract provides, in part: "This contract can only be modified or amended, or provisions in it waived (given up), by a written modification to this Contract signed by you." The "Agreement for Binding Arbitration" states: "This agreement is a part of the contract of sale entered into this date between Buyer and Seller, the terms [and] provisions of which are incorporated herein by reference, and shall be binding upon and inure to the benefit of their respective heirs and assigns." From the use of the past tense "entered," we can infer that the parties entered into the contract of sale before executing the "Agreement for Binding Arbitration." The only "contract of sale" contained in the record is the retail installment contract. Therefore, by incorporating the retail installment contract, the "Agreement for Binding Arbitration" modified the arbitration provision in the retail installment contract. Once it incorporated the retail installment contract, the "Agreement for Binding Arbitration" materially altered the terms of the contract of sale between Cedar Ridge and Watkins.[5] Among other things, the "Agreement for Binding Arbitration" offered Cedar Ridge and Watkins greater mutuality of remedy and established limits on Cedar Ridge's potential liability to Watkins for the setup of the mobile home. Therefore, the retail installment contract 645 and the "Agreement for Binding Arbitration," read together, evidence Watkins and Cedar Ridge's intent to resolve any future disputes under the terms of the "Agreement for Binding Arbitration." II. Clarke The retail installment contract and "Agreement for Binding Arbitration" executed by Cedar Ridge and Clarke are virtually identical to the agreements by the same names executed by Cedar Ridge and Watkins. Therefore, for the reasons I conclude Cedar Ridge and Watkins should arbitrate their dispute under the terms of the "Agreement for Binding Arbitration" and not under the terms of the retail installment contract, I conclude that Cedar Ridge and Clarke should not be compelled to arbitrate their dispute under the terms of the retail installment contract.[6] NOTES [1] Cedar Ridge Factory Outlet, Inc., and Cedar Ridge Homes, Inc., are essentially the same entity. They do business at the same location; they are represented by the same attorney on appeal; they use essentially the same retail sales agreement and freestanding arbitration agreement; and they make the same legal arguments on appeal. Except where necessary to distinguish them in order to render a holding in a specific case, we treat Cedar Ridge Factory Outlet and Cedar Ridge Homes as the same entity for the purposes of this appeal. [2] Cedar Ridge is not a party to the appeal in Wilson's case. [3] Following our reasoning in Ex parte Palm Harbor, we "resort to ordinary principles of contract law and contract construction" to resolve this issue. 798 So.2d at 660 n. 2. [4] This Court in Ex parte Palm Harbor explicitly recognized this distinction, stating: "Had they so desired the defendant-drafters could easily have included in the merger clause a specific reference to either of the free-standing instruments...." 798 So.2d at 661. [5] Although Cedar Ridge is a party to the retail installment contract, the primary purpose of that contract was to protect the continuing interest of the lender, Conseco, in the mobile home. In contrast, the "Agreement for Binding Arbitration" is a contract between Watkins and Cedar Ridge only. [6] Unlike Watkins's case, Clarke also entered into an "Acknowledgement and Agreement" with Cedar Ridge that also contains an arbitration provision. To the extent, if any, the arbitration provisions in the "Acknowledgement and Agreement" and in the "Agreement for Binding Arbitration" materially differ, the trial court has reliable methods at its disposal to resolve any such differences; the trial court could conduct an evidentiary hearing to determine the order in which Cedar Ridge and Clarke executed the "Acknowledgment and Agreement" and the "Agreement for Binding Arbitration."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3096633/	Fourth Court of Appeals San Antonio, Texas July 24, 2014 No. 04-14-00507-CR IN RE Susan REED Original Mandamus Proceeding 1 ORDER Sitting: Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice On July 22, 2014, relator filed a petition for writ of mandamus. This court is of the opinion that a serious question concerning the mandamus relief sought requires further consideration. See TEX. R. APP. P. 52.8(b). The respondent and the real party in interest may file a response to the petition in this court no later than August 7, 2014. Any such response must conform to Texas Rule of Appellate Procedure 52.4. It is so ORDERED on July 24th, 2014. PER CURIAM ATTESTED TO: _____________________________ Keith E. Hottle Clerk of Court 1 This proceeding arises out of Cause Nos. 413040; 413041 and 413042, styled The State of Texas v. Ricardo Garza, pending in the County Court at Law No. 15, Bexar County, Texas, the The Honorable Michael La Hood presiding.	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2897229/	NO. 07-07-0163-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 29, 2008 ______________________________ MICHAEL LOU GARRETT, APPELLANT V. JACK M. BORDEN, ET AL., APPELLEES _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 94198-00-A; HONORABLE HAL MINER, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Michael Lou Garrett (Garrett) an inmate of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), appeals from a final order dismissing his suit against Jack M. Borden, et al (collectively Borden). Garrett contends that the trial court erred in dismissing his suit for failure to comply with the provisions of section 14.005(a)(2) of the Texas Civil Practice and Remedies Code. We affirm. Background Garrett attempted to sue Borden and a number of other TDCJ-ID employees for numerous alleged civil rights violations. The complaint had originally been the subject of two grievances tendered to the TDCJ-ID. After the TDCJ-ID rejected the grievances, Garrett filed suit pro se and in forma pauperis. The trial court originally dismissed the suit for failure to state a claim; however, upon appeal, this decision was reversed and the case was remanded to the trial court. Upon remand and after answers had been filed, Borden filed a motion to dismiss pursuant to section 14.005(a)(2) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2006). (1) The trial court granted the motion to dismiss and this appeal followed. Standard of Review As an appellate court, we review the dismissal of an in forma pauperis suit filed by an inmate under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or when the trial court's actions were arbitrary and unreasonable. Williams v. Nelson, 199 S.W.3d 462, 464 (Tex.App.-Houston [1st Dist.] 2006, pet. filed). Analysis The statutory scheme for inmate litigation is contained in the Texas Civil Practice and Remedies Code. See §§ 14.001-.014. An inmate filing a law suit which is subject to the grievance system established by TDCJ-ID must exhaust the grievance process before filing suit. § 14.005(a)(1). Such inmate must likewise file a copy of the written decision from the grievance system with the trial court. § 14.005(a)(2). The requirement that a copy of the decision of the grievance system be filed with the trial court ensures that the inmate has, in fact, exhausted his administrative remedies. See Smith v. Tex. Dep't Of Criminal Justice-Inst. Div., 33 S.W.3d 338, 341 (Tex.App.-Texarkana 2000, pet. denied). Requiring inmates to meet all of the statutory requirements of Chapter 14 of the Texas Civil Practice and Remedies Code furthers the legitimate, even compelling, state interest of protecting scarce judicial resources from continued the onslaught of prisoners who abuse the judicial system by filing frivolous civil lawsuits. Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (citing Hicks v. Brysch, 989 F. Supp. 797, 823 (W.D. Tex. 1997)). The record before the court demonstrates that appellant did not file copies of the decision of the grievance system for either of the grievances that are the subject of appellant's suit. Instead, appellant hand-typed the purported decisions of the grievance system and then filed a separate document attesting to the truthfulness of these documents. These documents do not meet the requirements of the statute. § 14.005(a)(2). There is nothing filed with the trial court that shows that appellant has complied with the requirement that he exhaust his administrative remedies. Therefore, the trial court's dismissal was pursuant to the statutory scheme established by the legislature. (2) See §§ 14.001- .014. Accordingly, the decision to dismiss was not made without reference to any guiding rules and principles nor was the decision arbitrary and unreasonable. Williams, 199 S.W.3d at 464. Appellant's issue is overruled. Conclusion Having overruled appellant's sole issue, the trial court's judgment is affirmed. Mackey K. Hancock Justice Pirtle, J., dissenting. 1. Further references to the Texas Civil Practice & Remedies Code will be by reference to "§ __." 2. Appellate claims it is impossible for him to provide the copies required and ask us to reverse the trial court for that reason alone. Appellant is asking us to add another consideration to the statutory scheme. Such action on our part would be legislating from the bench, which we cannot do. See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892). Chief Justice	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/3358495/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff, David Galligan, has filed a four count complaint against the defendants, Edward D. Jones Company (Jones), a limited partnership organized and existing under the laws of the State of Missouri engaged in the business of providing financial services, and Donald Walter, a general partner of the limited partnership. In count one, Galligan alleges that his employment was wrongfully terminated by the defendants. Count two alleges that the defendants invaded Galligan's privacy by publicizing private facts about him. In count three, Galligan alleges invasion of privacy by "false light." Count four alleges defamation. Galligan amended his complaint to add count five, in which he alleges negligent infliction of emotional distress. CT Page 13783 Jones and Walter have filed a motion for summary judgment on all counts of the amended complaint. "Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . ." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, ___ A.2d ___ (2000). The parties posit two very different scenarios of the events triggering Galligan's. discharge from Jones' employment, thus leaving few matters for which no genuine issue of material fact exists. The following is substantially undisputed. Galligan was arrested in 1988 in Bridgeport, Connecticut for possession of marijuana and possession of drug paraphernalia, both misdemeanors. Galligan applied for and was granted accelerated pretrial rehabilitation pursuant to General Statutes §54-56e.1 Galligan successfully completed the terms of his probation. Upon the successful completion of his probation, "all records" of the two charges against him were supposed to be "erased" by operation of law, pursuant to General Statutes (Rev. to 1987) §§ 54-56e(e) and 54-142a. Furthermore, upon the successful completion of his probation, Galligan was "deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and [could] so swear under oath." General Statutes (Rev. to 1987) § 54-142a (e). On February 17, 1994, Galligan and Jones entered into an "investment representative employment agreement." Galligan also completed a uniform application for securities industry registration or transfer form (U-4 form) as required in the securities industry before a person may work as an investment representative for firms such as Jones. Question 22 on the U-4 form asked whether the applicant had ever been convicted or plead "no contest" to a felony. Galligan answered "no" to these questions. In accordance with the requirements of the securities industry, Galligan was fingerprinted and his fingerprints were sent to the United States Department of Justice, Federal Bureau of Investigation, CT Page 13784 Identification Division (FBI). The FBI subsequently reported to Jones that Galligan had been arrested on April 7, 1988 by the Bridgeport Police Department on the charges of possession of marijuana and possession of drug paraphernalia. The following facts are in dispute. However, "[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party"; Witt v. St. Vincent's MedicalCenter, 252 Conn. 363, 368, 746 A.2d 753 (2000); who, in this proceeding, is Galligan. On July 22, 1994, Galligan received a "private wire" memo from Donna Quinn of Jones' Licensing Department telling him that he needed to disclose information on the U-4 form about an incident in April, 1988. On July 22, 1994, Galligan also received a telephone call from Nancy Neely, another Jones employee, telling him that she had information regarding an arrest. Galligan claims that he told Neely that her information was mistaken and that he would look into it. When Galligan inquired in Connecticut about the arrest referred to by Neely, he could not find a docket number or disposition of a case pertaining to him at the court. Jones and Walter argue that, in his conversation with Neely, Galligan denied that the person in the report was him and further told Neely that his wallet had been stolen and that someone was using his identity. Galligan also claims that he asked Neely to what arrest she was referring. Neely told him to read the memo from Donna Quinn and to amend his answer to question 22 on the U-4 form to "yes." Galligan refused to answer yes to the question because he did not have a criminal record. Neely told the plaintiff he should speak with Donna Quinn. In a subsequent telephone conversation, Neely informed Galligan that the incident to which she referred occurred in April, 1988. Galligan eventually admitted to Neely that he had been arrested for marijuana possession and had completed a special program in Connecticut. Neely then informed her supervisor, who involved Walter. Neely, Walter and Galligan had a telephone conference call about Galligan's background. The parties' versions of this telephone conversation differ. Galligan maintains that Walter asked him if he had ever been arrested for anything relating to question 22 on the U-4 form. Galligan answered in the negative. Walter next asked if Galligan had ever been arrested, and specifically referred to a marijuana charge. Galligan responded that there was an incident that was covered by accelerated rehabilitation and, therefore, he had never been arrested. Moreover, the incident was inapposite to any inquiry in question 22 of the U-4.2 Galligan maintains that, when he explained to Walter that the accelerated rehabilitation law in Connecticut did not require him to answer yes to question 22 on the U-4 form, Walter said that he did not care about the law in Connecticut and that he was CT Page 13785 concerned with the laws of Missouri. Walter next asked Galligan if he had told Neely that someone was using his identity. Walter maintains that Galligan eventually conceded making the statement to Neely. Galligan, on the other hand, denies telling Walter that he told Neely that someone, in fact was using his name. Rather, Galligan maintains that he told Neely that someone using his identity was only a possibility. Walter terminated Galligan for lying. On a Uniform Termination Notice for Securities Industry Registration (U-5 form), Walter wrote that Galligan "made a material misstatement to a member of the Compliance Department during an investigation." The reason given on the U-S for Galligan's termination is the basis of Galligan's claims in his complaint. I In count one of his complaint, Galligan alleges that he was wrongfully terminated by Jones and Walter in violation of General Statutes (Rev. to 1987) §§ 54-56e and 54-142a (e). These statutes give a first-time offender of a non-serious crime the opportunity not to have a criminal record if he successfully completes a period of probation. The defendants move for summary judgment on count one on the ground that Galligan's claim is governed by Missouri law under which no reasonable jury could find for Galligan. Galligan argues that an earlier ruling by another judge of this court denying the defendants' motion to strike the complaint established the "law of the case" that Connecticut law applies to Galligan's claim of wrongful termination. The preliminary issues of law of the case and conflicts of law are addressed first. A. Earlier in these proceedings, Jones and Walter moved to strike all counts of the complaint on the ground that the counts were legally insufficient. The court, Gray, J., denied the motion to strike without issuing a memorandum of decision. Galligan asserts that Judge Gray held that Connecticut law applies to Galligan's claim of wrongful termination. "The law of the case . . . is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. (Citations omitted; internal quotation marks omitted.)State v. Arena, 235 Conn. 67, 80, 663 A.2d 972 (1995); see also Breen v.CT Page 13786Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982). Yet, "[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision." (Internal quotation marks omitted.) Miller v.Kirshner, 225 Conn. 185, 191-92, 621 A.2d 1326 (1993). The doctrine of law of the case does not apply here for two reasons. First, since Judge Gray simply denied the motion to strike the complaint without giving his reasons, it is not possible to divine the basis of his ruling. See Gould v. MB Motorsport, Superior Court, judicial district of Waterbury, No. 112515 (Nov. 30, 1994); Birdsall v. Insulation MaterialProducts, Superior Court, judicial district of New Haven, No. 32416 (May 4, 1992). Second, it was a motion to strike the complaint and not a motion for summary judgment that was before Judge Gray. A motion to strike challenges the legal sufficiency of a pleading and admits all facts well pleaded. Eskin v. Castiglia, 253 Conn. 516, 522, ___ A.2d ___ (2000). What is now before the court is a motion for summary judgment. "A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. . . ." Inwood CondominiumAssociation v. Harold Winer, 49 Conn. App. 694, 697, 716 A.2d 139 (1998). Since a different standard applies to the motion for summary judgment, now before the court, than to the motion to strike that was before Judge Gray, the doctrine of law of the case is inapplicable;McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 525-26, 590 A.2d 438 (1991); and this court is not bound by the prior decision of Judge Gray. B. The second preliminary issue is whether Connecticut or Missouri law applies to Galligan's wrongful termination claim. In support of their motion, the defendants argue that under Galligan's employment agreement, Missouri law governs this dispute. Paragraph 30 of that agreement states: "You understand that your employment with Jones shall be considered an `at will' arrangement in accordance with the laws of the State of Missouri. This means that you are free, as is Jones, to terminate the relationship at any time for any reason, so long as there is no violation of applicable federal or state law." Paragraph 27 of the agreement states: "This agreement shall be deemed to be a Missouri contract and governed by the laws thereof. . . . Any provision of this Agreement prohibited by the laws of any state shall as to such state be ineffectual only to the extent of such prohibition and shall not invalidate the remaining provisions of this Agreement." CT Page 13787 "A 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 the circumstances connected with the transaction. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . ." (Internal quotation marks omitted.) Tallmadge Bros. v. IroquoisGas Transmission System, 252 Conn. 479, 498, 746 A.2d 1277 (2000) "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact [w] here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." Id., 495. Construing the investment representative employment agreement to effectuate the intent of Galligan and Jones, the court concludes that the agreement clearly contemplates that any dispute arising from the employment relationship is governed by the law of Missouri. Whether to give effect to this choice of law provision is governed by the Restatement (Second), Conflicts of Law § 187. See Elgar v.Elgar, 238 Conn. 839, 850, 679 A.2d 937 (1996)." [I]n accordance with § 187 of the Restatement [(Second), Conflicts of Law] . . . parties to a contract generally are allowed to select the law that will govern their contract, unless either: (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188 [of the Restatement], would be the state of the applicable law in the absence of an effective choice of law by the parties." Id.; see also Zenon v. R. E. Yeagher Management Corp., 57 Conn. App. at 316-321,748 A.2d 900 (2000) ("[c]ontracts clauses which require the application of the laws of other states upon breach or dispute are recognized as proper in Connecticut"). There is no question that Missouri has a substantial relationship to Jones, an entity existing under its laws and where its principal place of business is located. Moreover, the decision to hire and the decision to fire Galligan was made in Missouri. Galligan offers no analysis under Restatement (Second), Conflicts of Law §§ 187 and 188 as to why application of Missouri substantive law would be contrary to the fundamental policy of Connecticut. For these reasons, this court concludes that the parties' choice of Missouri law in their investment representative employment agreement is valid and must be given effect. CT Page 13788 C. The defendants contend that, under Missouri law, the plaintiff cannot prevail on his action for wrongful discharge. Missouri adheres to the employment at will doctrine. Adolphsen v. Hallmark Cards, Inc.,907 S.W.2d 333, 335 (Mo.Ct.App. 1995). "Missouri's employment-at-will doctrine historically has permitted an employer to discharge an at-will employee, for cause or without cause, without liability for wrongful discharge, provided that the employee is not otherwise protected by a contrary statutory provision." Id. "[A] narrow public policy exception has been carved out for wrongful discharge for an at-will employee when an employer's act of discharging the employee is violative of a statute, regulation based on a statute, or a constitutional provision." Lynch v.Blanke Baer Bowey Krimko, 901 S.W.2d 147, 150 (Mo.Ct.App. 1995). "Although the Missouri Supreme Court has not specifically adopted the public policy exception by name, it effectively established it in Smithv. Arthur Baue Funeral Home, 370 S.W.2d 249, 254 (Mo. 1963), and appeared to accept its expansion when in Johnson v. McDonnell Douglas Corp.,745 S.W.2d 661 (Mo. 1988)], it referred to the exception, but did not condemn or overturn the appellate decisions expanding it." Faust v. RyderCommercial Leasing Services, 954 S.W.2d 383, 389 (Mo.Ct.App. 1997) "The case of Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App. 1985) outlined the four categories of the public policy exception cases: (1) discharge of an employee because of his or her refusal to perform an illegal act; (2) discharge because an employee reported violations of law or public policy to superiors or public authorities; (3) discharge because an employee participated in acts that public policy would encourage, such as jury duty, seeking public office, asserting a right to collective bargaining, or joining a union; and (4) discharge because an employee filed a worker's compensation claim." Lynch v. Blanke Baer Bowey Krimko, supra, 901 S.W.2d 150. Viewing the evidence in a light most favorable to Galligan as the nonmoving party, the court finds that the first and third exceptions to Missouri's employment at will doctrine apply to Galligan's claim. Galligan maintains that Jones insisted that he change his answer to questions 22A and 22B on the U-4 form from the negative to the affirmative.3 Galligan refused to do so. The defendants do not claim that Galligan was ever convicted of an offense that falls within the gambit of questions 22A or 22B on the U-4 form. Galligan's arrest in 1988 was for possession of marijuana and drug paraphernalia, both misdemeanor charges. Furthermore, neither charge involved an investment-related business, fraud, false statements or omissions, wrongful taking of property, or bribery, forgery, counterfeiting, extortion or gambling. The U-4 form further requires an applicant to "swear or affirm . . . that my CT Page 13789 answers . . . are true and complete to the best of my knowledge." The form further states: "I understand that I am subject to administrative, civil or criminal penalties if I give false or misleading answers." Therefore, giving false answers to the questions asked on a U-4 form would be a crime. See, e.g., General Statutes § 53a-157b (person guilty of false statement in the first degree when he intentionally makes a false written statement on a certified payroll; false statement in the first degree is a class D felony). Based on the evidence Galligan has adduced in opposition to the defendants' motion, a jury could reasonably find that he was discharged for refusing to commit the crime of giving false answers on his U-4 form. Refusing to perform an illegal act at the employer's behest is an exception to Missouri's employment at will doctrine. See Olinger v. General Heating Cooling Co., 896 S.W.2d 43 (Mo.Ct.App. 1994) (plaintiff required to prepare and submit false rebate claims); Petersimes v. Crane Co., 835 S.W.2d 514, 515 (Mo.Ct.App. 1992) (plaintiff refused to violate 18 U.S.C. § 1001, making it a crime to make any false or fraudulent statements with respect to the business of a federal agency). Second, based on the evidence Galligan adduces, a jury could reasonably find that he was discharged because, in reliance on General Statutes §§ 54-56e, 54-142a, he informed Jones that he had not been arrested in 1988 for the marijuana related offenses.4 This portion of Galligan's argument implicates the third category of public policy exceptions to Missouri's at will employment doctrine, "discharge because the employee participated in acts that public policy would encourage. . . ." Boyle v.Vista Eyewear, Inc., supra, 700 S.W.2d 875. This exception has alternatively been characterized as "asserting a legal right." Lay v.St. Louis Helicopter Airways, Inc., 869 S.W.2d 173, 176 (Mo.Ct.App. 1993). In arguing that this exception to the employment at will doctrine is inapplicable, the defendants rely on the Missouri Appellate Court's statement that "[w]e do not think that an employer's violation of any regulation, regardless of its content, necessarily triggers the limited public policy doctrine. Vague regulations may not be sufficiently clear to make enforcement practicable through employment-related litigation." (Emphasis in original.) Adolphsen v. Hallmark Cards, Inc., supra, 907 S.W.2d 338. Here, however, the laws implicated by Galligan's claim of wrongful discharge are not just "any regulation." They are statutes which clearly provided that Galligan was deemed to have never been arrested and was entitled to so swear. General Statutes (Rev. to 1987) §§ 54-563,54-142a. While the statutes do not explicitly prohibit an employer from discharging an employee who relies on its provisions, they need not do so CT Page 13790 in order to express an enforceable public policy. See Porter v. ReardonMachine Co., 962 S.W.2d 932, 939 (Mo.Ct.App. 1998) (plaintiff not required to show that his discharge was explicitly prohibited by statute). The right of a person to claim that he was never arrested would be thoroughly subverted if he could lose his job for so claiming. The defendants further argue that Galligan's discharge does not violate public policy because it does not implicate the public good of Missouri. They maintain that a violation of a Connecticut statute that inures only to the benefit of Galligan simply is not injurious to the public of Missouri or the Missouri public good and is, therefore, not actionable. The court disagrees. First, no Missouri Appellate Court has held that an actionable wrongful discharge requires that the public policy violated by the employer must be that of the state of Missouri. Second, it would be difficult to reconcile such a rule with Restatement (Second)1 Conflicts of Law, § 187. Third, the parties' contract contemplates that foreign law may be applicable. The contract states: "Any provision of this Agreement prohibited by the laws of any state shall as to such state be ineffectual only to the extent of such prohibition and shall not invalidate the remaining provisions of this Agreement."5 Finally, the court is not persuaded that the law in question, General Statutes (Rev. to 1987) § 54-142a, does not inure to the public good. A principal purpose of Connecticut's erasure law has been to facilitate the employment of persons whose records are erased. Proceedings of State Senate, Monday, July 17, 1974, p. 2776 (remarks of Sen. Joseph Fauliso); proceedings of House of Representatives, April 22, 1974, p. 3052 (remarks of Rep. Fabrizio). Facilitation of the employment of persons whose records are erased was a principal purpose of the amendment to the law in 1967, permitting a person whose records were thus erased to swear under oath that he had never been arrested. Proceedings of House of Representatives, May 8, 1967, p. 1761 (remarks of Rep. Carl R. Ajello). Although it was not until 1982 that the legislature enacted the amendment providing for the erasure of records of charges upon dismissal pursuant to accelerated rehabilitation; 1982 Public Act No. 82-9; and although the history of that legislation is unilluminating; see proceedings of Senate, March 10, 1982, pp. 253-256, 253-266; proceedings of House of Representatives, March 3, 1982, pp. 225-232; the court safely assumes that the same purpose motivated the legislature in having dismissals pursuant to accelerated rehabilitation treated under the erasure law, General Statutes § 54-142a, in the same manner as other dismissals. The court holds that there are genuine issues of material fact precluding summary judgment for Jones and Walter on Galligan's claim of wrongful discharge in count one, based on the public policy exceptions to CT Page 13791 Missouri's employment at will doctrine. The motion for summary judgment as to count one is denied. II In count two of the amended complaint, Galligan alleges that Jones and Walter invaded his privacy by giving publicity to a portion of his private life. Galligan's claim in count two is based on the defendants' filing of the U-S form that stated that Galligan made a material misstatement to a member of Jones' compliance department. Jones and Walter move for summary judgment on count two on the ground that no reasonable jury could find for Galligan on this cause of action. Specifically, Jones and Walter argue that no reasonable jury could find that they published information about Galligan that was private, rather than public. The court agrees. "Our Supreme Court has described the four types of invasion of privacy: (1) appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light in the public eye." (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn. App. 123, 132,726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999). Count two implicates the third species of invasion of privacy, giving unreasonable publicity to a matter concerning another's private life. Such "a tort action is triggered by public disclosure of information that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Perkins v. Freedom of Information Commission,228 Conn. 158, 172, 635 A.2d 783 (1993); 3 Restatement (Second), Torts 652D (1977). The defendants contend that the statement on the U-5, that Galligan made a material misstatement to a member of Jones' compliance department, does not publicize private information about Galligan.6 The court agrees. "Comment (b) of § 652D [of the Restatement] describes the types of personal and private information that are given protection under the law of torts: Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. CT Page 13792 When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest." (Internal quotation marks omitted.) Perkinsv. Freedom of Information Commission, supra, 228 Conn. at 172-73. Whether Galligan made a material misstatement to a member of Jones' compliance department during an investigation is not a private matter. Statements made by Galligan to Jones' compliance department and Jones' opinion as to their veracity pertained to Galligan's employment and his qualification to serve in a highly regulated industry in which veracity and personal integrity are essential. For this reason, the defendants are entitled to summary judgment on count two. III The defendants move for summary judgment on counts three and four of Galligan's complaint on the ground that no reasonable jury could find for Galligan on these causes of action. Count three sounds in invasion of privacy by placing a person in a "false light"; count four sounds in defamation. Specifically, Jones and Walter argue that reporting on the U-S form that Galligan made a misstatement to Jones' compliance department is absolutely privileged or, in the alternative, conditionally privileged and that no reasonable jury could find that the conditional privilege had been abused by Jones or Walter. A. In count three, Galligan alleges that he was falsely accused of being dishonest and having a criminal record, accusations that are highly offensive to a reasonable person. Galligan further alleges that the defendants were aware of or acted in reckless disregard as to the falsity of the publicized accusations and thereby placed him in a false light. Galligan's claim in count three implicates the third type of invasion of privacy, publicity placing the plaintiff in a false light in the public eye. Honan v. Dimyan, supra, 52 Conn. App. at 132. "To establish invasion of privacy by false light, the [plaintiff] [is] required to show that (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. . . ." (Internal quotation marks omitted.) Id., 132-33. The defendants initially maintain that they cannot be liable for invasion of privacy by false light because they did not publicize private information about the plaintiff. The defendants are mistaken. "The form CT Page 13793 of invasion of privacy covered by the cause of action for publicity placing a person in a false light before the public does not depend upon making public any facts concerning the private life of the individual. . . ." 3 Restatement (Second), Torts § 652E, comment (a) (1971)."Handler v. Arends, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 527732 (March 1, 1995, Sheldon, J.). The defendants further argue that the information complained of by Galligan was not publicized. "The Connecticut appellate courts have not expressly defined the term `publicity' as it applies to a false light invasion of privacy claim." Pace v. Bristol Hospital, 964 F. Sup. 628, 631 (D.Conn. 1997). However, in defining and discussing the requirement of "giving publicity" in the tort of invasion of privacy by false light, Restatement (Second), Torts § 652E, comment a incorporates by reference the Restatement's comments to § 652D, pertaining to the tort of invasion of privacy by giving publicity to private facts. Restatement (Second), Torts § 652D, comment a states: "Publicity," as it is used in this Section, differs from "publication," as that term is used. . . in connection with liability for defamation. . . . "Publicity" . . . means that the matter is made public, by communication of it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication. . . . It is one of a communication that reaches, or is sure to reach, the public. "Thus, it is not an invasion of the right of privacy, within the rule stated . . . to communicate a fact . . . to a single person or even a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or a statement made in an address to a large audience, is sufficient to give publicity. . . . The distinction, in other words, is one between private and public communication." Restatement (Second), Torts § 652D, comment a. The defendants admit, indeed they argue, that they transmitted the U-S form containing the allegedly defamatory statement about Galligan only to the Central Registered Depository (CRD) and, in turn, to the NASD and NYSE. This can hardly be characterized as a private communication. This was a communication, if not immediately to the public at large, then "to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Indeed, the form U-5 becomes part of a data base "by which the NASD administers an employment clearinghouse. By revealing the reason for the termination the form gives other members of the association potentially valuable information concerning the availability and suitability of potential employees." Acciardo v.CT Page 13794Millennium Securities Corp., supra, 83 F. Supp.2d at 413-419 (S.D.N.Y. 2000). Therefore, the defendants "publicized" their representation that Galligan made a material misstatement. B. In count four, Galligan alleges that the defendants failed to notify the NYSE that an investigation of his arrest was unnecessary after Walter learned that Galligan had successfully completed the accelerated rehabilitation program. Galligan further alleges that the falsity published by the defendants injured his reputation. In this latter respect, Galligan alleges a prima facie case of defamation. Since his claim in count four involves defamation by a writing, it is the libel species of the tort. The defendants argue that they are entitled to summary judgment on the ground that no reasonable jury could find for Galligan on his defamation claim in count four. "Defamation is made up of the twin torts of libel and slander — the one being, in general, written while the other in general is oral. . . . Defamation is that which tends to [injure] reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." (Internal quotation marks omitted.)Lizotte v. Welker, 45 Conn. Super. Ct. 217, 219-20, 709 A.2d 50, aff'd,244 Conn. 156, 709 A.2d 1 (1998). "In the application of this idea it is enough that the communication would tend to prejudice the plaintiff in the eyes of a substantial and respectable minority. (Internal quotation marks omitted.)Dow v. New Haven Independent, Inc.,41 Conn. Super. Ct. 31, 36, 549 A.2d 683 (1987). "It is not, however, necessary to the action for invasion of privacy [by false light] that the plaintiff be defamed." Restatement (Second), Torts § 652E, comment b. But "it is essential . . . that the matter be published concerning the plaintiff is not true." Id., comment a. "It is enough that [the plaintiff] is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false and so is placed before the public in a false position." Id., comment b. Galligan's false light and defamation claims are based on the defendants reporting on the U-5 that he had made a material misstatement to Jones' compliance department. The defendants assert that this was not tortious because it was true. Specifically, the defendants claim that Galligan admitted to Walter that he had lied to Neely about the 1988 arrest being ascribable to a person who had stolen his license and used his identity. In his deposition, however, Galligan asserts (1) he only stated that the use of his identity by some other person was a CT Page 13795 possibility, and (2) he never admitted to anyone that this was untrue and does not do so now. Viewing the facts in a light most favorable to the plaintiff, a jury could reasonably find that Galligan was defamed and placed in a false light by the defendants. There is, therefore, a genuine issue of material fact precluding summary judgment on the claims of defamation and invasion of privacy by false light. C. The defendants next argue that reporting on the U-S form that Galligan made a material misstatement enjoys an absolute privilege. The court disagrees. "There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. . . . The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. . . ." (Citations omitted; internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46,510 A.2d 1337 (1986). In Petyan, the court stated: "The common law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy. . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citation omitted.) Id., 251-52. The Connecticut Supreme Court has also extended the absolute privilege accorded to statements made as a requisite step to, quasi-judicial proceedings. Id., 243; Kelley v. Bonney, 221 Conn. 549,552-53, 606 A.2d 693 (1992). The defendants argue that the statements on the U-S form should be absolutely privileged since NASD and NYSE are selfpolicing and, therefore, act in a quasi-judicial capacity. "The Securities and Exchange Commission is the federal agency charged with the regulation of the securities industry, and, because the SEC lacks the resources to police the entire industry, it relies on industry members to promote compliance with the securities laws and regulations and to pursue enforcement actions." Gold v. S.E.C., 48 F.3d 987, 990 (7th Cir. 1995). Under the Securities and Exchange Act of 1934, as amended, both the NASD and the NYSE are "self regulating organizations." 15 U.S.C. § 780-3; Baravativ. Josephthal, Lyon Ross, Inc., 28 F.3d 704, 708 (7th Cir. 1994). That is, federal securities law confers broad authority on organizations such CT Page 13796 as the NASD and NYSE to regulate the activities of their members and their employees, authority which these organizations generously, exercise. Id.; Thomas James Associates, Inc. v. Jameson, 102 F.3d 60 (2d Cir. 1996). Federal securities law also gives the NASD and NYSE quasi-judicial responsibilities for adjudicating violations of their regulations and disputes arising thereunder. Glennon v. Dean WitterReynolds, Inc., 83 F.3d 132, 137 (6th Cir. 1996); Baravati v. JosephthalLyon Ross, Inc., supra, 28 F.3d 708; Berzfeld Stern, Inc. v. Beck,175 App.Div.2d 689, 572 N.Y.S.2d 683, 685 (1991). "When a brokerage firm terminates the employment of a broker, the firm is required to file with the NASD a Uniform Notice of Termination for Securities Industry Registration. See NASD By-laws, Art. IV, § 3 (a). In the industry, the form is commonly referred to as the `U-5' form." Andrews v. Prudential, 160 F.3d 304, 305 (6th Cir. 1998). The NYSE has the same requirement. Gold v. S.E.C., supra, 48 F.3d 988 n. 3. Although "[t]he employee can seek to clear his name by asking the NASD to investigate"; Baravati v. Josephthal, Lyon Ross, Inc., supra, 28 F.3d 708; "the submission of a Form U-5 and its transmission (upon request) to members of the NASD are not stages in the association's quasijudicial regulatory process." Acciardo v. Millennium SecuritiesCorp., supra, 83 F. Supp.2d at 413-419 (S.D.N.Y. 2000). As discussed supra, "[i]n the first instance they are the means by which the NASD administers an employment clearinghouse. By revealing the reason for the termination the form gives other members of the association potentially valuable information concerning the availability and suitability of potential employees." Id. While "[t]he U-5 form enables the NASD to detect violations and subsequently sanction persons for violations of the NASD's rules and other applicable federal statutes and regulations. See NASD Notices to Members, No. 88-67 at p. 291";Andrews v. Prudential, supra; "any item of information could do that. To insulate the members from liability for the contents of their U-5s would be tantamount to allowing a member of the NASD to blackball a former employee from employment throughout the large sector of the industry that the membership of the association constitutes." Baravativ. Josephthal, Lyon Ross Inc., supra, 28 F.3d 708.7 Notably, the facts in Petyan v. Ellis, supra, 200 Conn. 243, are distinguishable from those here. Petyan held that an employer's statements regarding reasons for an employee's discharge contained on a "fact-finding supplement" form provided by the employment security division of the state labor department was protected by the absolute privilege reserved for witnesses. In Petyan, however, the plaintiff had filed a claim for unemployment compensation benefits. The court held that "[t]he employment security division . . . acts in a quasi-judicial capacity when it acts upon claims for unemployment compensation." Id., CT Page 13797 249. The statements on the form submitted by the employer were submitted in lieu of live testimony. Indeed, the form stated: "If you are unable to attend the scheduled hearing, please enter all pertinent information regarding your reason the above named claimant separated from you employ. . . ." Id., 245. Here, by contrast, there were no pending or impending quasijudicial proceedings. Since the filing of a U-S is not preliminary to a quasijudicial proceeding nor to the receipt of government benefits, such as unemployment compensation, this court holds that an absolute privilege does not attach to statements in it. See Flanagan v. McLane, 87 Conn. 220, 88 A. 96 (1913) (letter to police accusing plaintiff of larceny entitled to qualified privilege only). Statements in a U-5 filing, however, are entitled to a qualified privilege. "A qualified or conditional privilege arises out of an occasion, such as, when one acts in the bona fide discharge of a public or private duty. Flanagan v. McLane, [supra, 87 Conn. at 221-22]." Miles v.Perry, 11 Conn. App. 584, 594, 529 A.2d 199 (1987). "[S]ince [NASD] members are required to state the reason for termination on the U-5, denial of the privilege puts them in a hard place, where if they state a reason discreditable to the employee they may be sued for libel while if they lie about the reason they will be violating the association's rules." (Emphasis in original) Baravati v. Josephthal, Lyon Ross,Inc., supra, 28 F.3d 708. As have most courts that have considered the issue; Acciardo v. Millenium Securities Corp., supra,83 F. Supp.2d at 419 and n. 8 (cases collected); contra, Herzfeld Stern, Inc. v. Beck,175 App.Div.2d 689, 572 N.Y.S.2d 683 (1991), appeal dismissed,79 N.Y.2d 914, 581 N.Y.S.2d 666, 590 N.E.2d 251 (1992); this court holds that statements in a Form U-5 enjoy a qualified privilege. AccordHeldmann v. Tate, Superior Court, judicial district of Tolland at Rockville, No. 59122 (May 20, 1999). (24 Conn.L.Rptr. 552) The essential elements of a qualified or conditional privilege are "(1) an interest to be upheld, (2) a statement limited in its scope to this purpose, (3) good faith, (4) a proper occasion, and (5) a publication in a proper manner to proper parties only. . . N[o] conditional privilege exists where the defamatory remarks are activated by malice, improper motive, or lack of good faith in making the statement. See id." Miles v. Perry,11 Conn. App. 584, 595, 529 A.2d 199 (1987). D. The court now addresses whether, as a matter of law, the defendants have proven they did not abuse and lose the qualified privilege. Gaudiov. Griffin Health Services Corp., supra, 249 Conn. at 556. The defendants satisfy the first and fourth requirements of this rule because they were CT Page 13798 required by NASD rules to file a U-5 when they discharged the plaintiff and did so soon after that discharge. The allegedly defamatory remark also was limited in its scope to a narrow statement of the purported reason for the plaintiff's discharge, thus satisfying the second requirement. As for the fifth requirement, there appears nothing unusual about the publication of the U-5 to the NASD and NYSE. Moreover, there is no claim that these associations were not apprised of the contents of U-5 filings as of course. Herzfeld Stern, Inc. v. Beck, supra, 572 N.Y.S.2d 684; Gold v. S.E.C., supra, n. 3 (7th Cir. 1995). This leaves the central requirement of qualified immunity: whether the defendants acted in good faith. Good faith, in this context, is substantially equivalent to an absence of malice — malice being actual knowledge of the defamatory statement's falsity or reckless disregard as to its truth, or any improper motive. Gaudio v. GriffinHealth Services Corporation, 249 Conn. 523, 545, 733 A.2d 197 (1999);Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1,29-30, 662 A.2d 89 (1995). The court cannot find as a matter of law that the defendants acted without malice. The defendants posit that Galligan was discharged not for what he wrote or did not write on his U-4, but because he fabricated to Neely a story that the arrest revealed by the FBI check was of another person who had stolen his wallet in 1988. However, taking Galligan's sworn deposition testimony in a light most favorable to him, he was discharged because he refused to alter his U-4 disclosures in a manner that the defendants knew would have been inaccurate or as to which they recklessly disregarded the truth. There remains this over-arching issue of material fact that precludes summary judgment. While the plaintiff's scenario may not appear to be a likely one to the court, the law of Connecticut is that "a party has the same right to submit a weak case [to a jury] as he has to submit a strong one." Strickland v. Vescovi, 3 Conn. App. 10, 16,484 A.2d 460 (1984) (reversing the granting of summary judgment). IV In count five of his amended complaint, Galligan alleges that the defendants' conduct negligently inflicted emotional distress on him. The defendants move for summary judgment on count five on the ground that no reasonable jury could find for Galligan on this cause of action. Specifically, Jones and Walter argue that their actions in the termination process did not pose an unreasonable risk of causing emotional harm. Connecticut has recognized the tort of negligent infliction of emotional distress, without requiring an accompanying physical injury, since 1978. Montinieri v. Southern New England Telephone Co., CT Page 13799175 Conn. 337, 345, 398 A.2d 1180 (1978). In order to prevail on such a claim, however, the plaintiff has the burden of proving that the defendants (1) committed a tortious act that caused the plaintiff emotional distress, (2) should have realized that their conduct involved an unreasonable risk of causing emotional distress and that (3) distress, if it were caused, might result in illness or bodily harm. Parsonsv. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997); Morris v. Hartford Courant Co., 200 Conn. 676, 683-84,513 A.2d 66 (1986); Montinieri, supra; Anconav. Manafort Bros., Inc., 56 Conn. App. 791, 713, 746 A.2d 1842, cert. denied, 252 Conn. 954, ___ A.2d ___ (2000); Pavliscak v. BridgeportHospital, 48 Conn. App. 580, 597, 711 A.2d 747, cert. denied,245 Conn. 911, 718 A.2d 17 (1998); Restatement (Second), Torts § 313 (1965). The defendants rely on the rule that "negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process. . . . The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corporation, supra, 243 Conn. at 88-89. Here, there is more than the mere wrongful termination of an employee. Crediting Galligan's version of events, the defendants followed their termination of Galligan with the filing of a form U-S that was not only false but accused Galligan of dishonesty. Galligan has presented evidence that the practical effect of this filing was to prevent him to this day of obtaining work in his chosen profession. A jury could reasonably find that such conduct "involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." Parsons v. United Technologies Corp., supra, 243 Conn. at 88. The motion for summary judgment is granted as to count two. Given the differing version of certain critical events posited under oath by the parties, the motion must be, and it is, denied as to the remaining counts. BY THE COURT Bruce L. Levin Judge of the Superior Court	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3358496/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff seeks an order compelling the depositions of three nonparty individuals, Timothy Ozark, Dan Zuppardo, and Harvey Kinzelberg, to be held in Connecticut. Practice Book 246 (c) permits a nonresident defendant to be compelled "[b]y notice under 244(a) to give a deposition at any place within thirty miles of the defendant's residence or within the county of his residence or at such other place as is fixed by order of the court." (Emphasis added). The term "defendant," for purposes of 246, includes officers, directors and managing agents of corporate defendants. Practice Book 246(e). Practice Book 246(d) addresses nonresidents who are not parties to the action, providing that "[a] nonparty deponent may be compelled by subpoena served within this state to give a deposition at a place within the county of his residence or within thirty miles of the nonparty deponent's residence, or if a nonresident of this state within any county in this state in which he is personally served, or at such other place as is fixed by order of the court." The plaintiff states in the motion for order, dated June 9, 1993, that upon information and belief, Zuppardo is a managing agent for the defendant Meridian Leasing Corporation, and that Ozark and Kinzelberg are directors and/or officers of such corporation. The plaintiff maintains that since the defendant corporation has an office in Stamford, Connecticut, it would not be a hardship for the three individuals to travel to Connecticut for depositions. In response to the plaintiff's motion, the defendant CT Page 11144 submitted the affidavit of John Polster, dated June 22, 1993. Polster is the associate general counsel for the defendant corporation. The affidavit indicates that the corporation is incorporated in Illinois and has not maintained a Connecticut office since April of 1993. The affidavit states that Ozark has not been employed by the defendant corporation since July of 1992, and that his last known address is in Illinois. The affidavit also states that Zuppardo and Kinzelberg are residents of Georgia and Illinois, respectively. In order for the court to compel these individuals to travel to Connecticut for a deposition by order of notice under 244(a), they must be treated as nonresident defendants under 246. Polster's affidavit states that Ozark is no longer employed by the defendant corporation, so that he may not be treated as a nonresident defendant. This court does not have the discretion to order Ozark, pursuant to 244(a), to travel to Connecticut for a deposition. Kinzelberg and Zuppardo, as directors and/or officers and managing agents of the defendant corporations, may be treated as nonresident defendants under 246. This court, Berdon, J., has addressed the portion of 246(c) which allows the court to fix the deposition place of a nonresident defendant. The court noted that: No hard rule should be set to govern when the court should exercise it's discretion to order an out-of-state defendant to appear in Connecticut . . . The court in exercising its discretion must do so in a manner which accommodates the special circumstances of each case. Some of the factors it should consider are the financial circumstances of the parties, whether the plaintiff seeking to take the deposition of order out-of-state defendant offers to pay his or her travel and living expenses, whether the defendant was personally served in Connecticut with the writ and complaint while he or she was a resident and thereafter voluntarily moved out of Connecticut, the hardship that travel may impose on a party, the availability of counsel being able to promptly resolve disputes which require a judicial determination if the deposition is taken in the forum, the effectiveness of obtaining the discovery through other means such as written interrogatories or the taking of the defendant's deposition in Connecticut at the commencement of trial, and such other considerations. CT Page 11145 Sansone v. Haselden, 1 Conn. L. Rptr. 520, 521 (April 18, 1990, Berdon, J.). In Sansone, the court concluded that since the nonresident defendant was served in Connecticut and voluntarily moved to Texas thereafter and the plaintiff submitted an affidavit stating that she could not afford to pay her attorney to travel to Texas, the Texas resident should travel to Connecticut, at its own expense, for a deposition. The only reason which plaintiff advances for requiring Zuppardo and Kinzelberg to travel to Connecticut is that "[s]ince the defendant has an office located in Stamford, Connecticut it would not be unduly burdensome for said individual[s] to be produced in Connecticut for a deposition." The defendant's affidavit states that there is no office in Stamford, and even if there was, that fact alone is not a sufficient reason to compel the parties to travel to Connecticut from Georgia and Illinois for a deposition. Accordingly, the plaintiff's motion for order is denied. DEAN, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1902313/	390 So.2d 1136 (1980) Ex Parte Roy Frank CLEMENTS. (Re: Roy Frank Clements, alias v. State of Alabama). 80-104. Supreme Court of Alabama. December 19, 1980. JONES, Justice. WRIT DENIED-NO OPINION. TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1510179/	588 S.W.2d 340 (1979) Shirley Thrash NORMAN, Appellant, v. The STATE of Texas, Appellee. No. 56831. Court of Criminal Appeals of Texas, Panel No. 1. September 19, 1979. Rehearing Denied October 31, 1979. 342 Randy Taylor, Dallas, for appellant. Tom O'Connell, Dist. Atty., Verla Sue Holland, George E. Gasper and William L. Schultz, Asst. Dist. Attys., McKinney, Robert Huttash, State's Atty., Austin, for the State. Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ. Rehearing En Banc Denied October 31, 1979. OPINION PHILLIPS, Judge. This is an appeal from a conviction for the offense of delivery of heroin. Punishment was assessed at 50 years' confinement in the Department of Corrections. Appellant initially challenges the sufficiency of the evidence to prove she intentionally and knowingly delivered the heroin. The record reveals, in a light most favorable to the verdict, that Troy Braswell, a narcotics agent employed by the Texas Department of Public Safety, received a telephone call on January 28, 1976, from Dewayne Hamilton, a confidential informant, that a meeting for a sale of heroin had been arranged for the afternoon of January 29, 1976, at Dallas North Airport in Collin County. Agent Braswell, together with other agents and law enforcement persons, proceeded to that location on that day. Upon Braswell's arrival, he met with Domingo and Ruby Reyes, who had arrived in another vehicle. Shortly thereafter, the agent and the Reyeses moved their vehicles to another location at the airport. After a brief conversation, during which Agent Braswell showed Reyes $10,000.00 for the purchase of the heroin, Reyes motioned to the occupants of another vehicle that the agent had observed during the conversation. This vehicle was occupied by appellant and her husband, Albert Norman. After Reyes motioned, Al Norman left their car, walked around the car to appellant, who was already out of the car, and handed to appellant a sack which she then carried to Agent Braswell and Reyes's location. She delivered the sack to the agent. The sack contained four prophylactics containing heroin. After the arrest of appellant and the other persons, a search of the Norman vehicle revealed a cellophane package found over the sun visor of the driver's side where Mr. Norman was observed. This package contained heroin. Possession of the heroin need not be exclusive and evidence which shows that the appellant jointly possessed the contraband with another is sufficient. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.); Woods v. State, 533 S.W.2d 16 (Tex.Cr. App.); Curtis v. State, 519 S.W.2d 883 (Tex. Cr.App.), and cases cited therein. However, a finding of joint possession cannot be justified solely by proof of mere presence of an accused at a place where contraband is being used or possessed. Ayers v. State 570 S.W.2d 926 (Tex.Cr.App.); Brooks v. State 529 S.W.2d 535 (Tex.Cr.App.); Harrison v. State, 555 S.W.2d 736. Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and of its whereabouts. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.); Curtis v. State, supra; Payne v. State, 480 S.W.2d 732 (Tex. Cr.App.). This affirmative link is established by showing additional facts and circumstances which indicate the accused's 343 knowledge and control of the contraband. Long v. State, 532 S.W.2d 591 (Tex.Cr. App.); Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.). In this case, more than appellant's mere presence is shown. Appellant exercised control over the sack, not stapled or shut, containing the heroin which she carried from her car to the Reyes car. Agent Braswell testified Reyes said that his runners, indicating appellant and Norman, would bring the heroin to his car upon his (Reyes's) seeing the money. This conversation occurred at both locations. The heroin found over the driver's visor of the Norman car was that which appellant's husband, a heavy heroin addict shooting approximately $600.00 a day and who "fixed" three or four times a day and who had purchased heroin from Reyes on prior occasions, had obtained from Reyes for his part in the deal. Norman had received it at Reyes's house earlier that morning when he received the sack and a "fix" for payment. Appellant allegedly waited in the car, but the sack of heroin was placed under appellant's car seat when they left the Reyes house. Following the Reyes car, with the heroin in the Norman car, they proceeded from Oak Cliff to the Mobil Station at Highway 544 and Preston Road. At that location, they met Hamilton. With the appellant present, Reyes removed the sack from underneath the seat of appellant and went with Hamilton into the restroom at the Mobil Station where Reyes gave Hamilton some of the heroin from the sack for his (Hamilton's) part in the transaction. Reyes again placed the heroin under the seat of the Norman car with the appellant present and all of the parties proceeded to Dallas North Airport. Norman testified, however, that because he and his wife were not speaking, appellant did not know the contents of the sack. The jury, being the judge of the credibility of the witnesses, could accept or reject some or all of their testimony. Drager v. State, 548 S.W.2d 890 (Tex.Cr.App.). The language in Cockrell v. State, 135 Tex. Cr.App. 218, 117 S.W.2d 1105, is applicable. It is as follows: ... we are not allowed to substitute our judgment for that of the jury, and should not disturb the verdict unless no facts are found to support it.... Based upon these facts and circumstances, the jury could reasonably infer that the appellant knew of the heroin's existence, thereby indicating her knowledge and control. We find the evidence sufficient to sustain the verdict. Appellant's first ground of error is overruled. Appellant's second ground of error alleges that the trial court erred in failing to grant immunity from prosecution to the State's informant, Dewayne Hamilton, when he refused to answer questions on Fifth Amendment grounds because the evidence showed that he was an agent of the State and his testimony was necessary to appellant's defense of "vicarious entrapment," thereby denying appellant her right to compulsory process for obtaining witnesses for her defense in violation of the Sixth and Fourteenth Amendments. An examination of Dewayne Hamilton's claim against self-incrimination in this case reveals that his claim was spurious and that he was an agent of the State, but the trial court allowed such claim to prevail. The questions presented are whether the trial judge's allowance of a spurious Fifth Amendment claim asserted by the State's informer denied appellant her Sixth Amendment right to call a witness to support her vicarious entrapment defense and if so, was this denial harmless beyond a reasonable doubt. This is not the first time the trial judge and the State's informant Dewayne Hamilton have come face to face in the same trial. In Ex parte Turner, 545 S.W.2d 470 (Tex.Cr.App.), the same trial judge also allowed Dewayne (Duane) Hamilton to claim his Fifth Amendment privilege based upon an undercover agent's sworn denial that he had any relationship with Hamilton. When this Court instructed the trial court in that case to conduct another evidentiary hearing 344 allowing the petitioner in that habeas corpus proceeding to call Hamilton as a witness, the same trial judge made a fact finding that: "This court finds that Hamilton could have been the informant in the transaction and could have played a material part in bringing the parties together for the alleged transaction ..." and that based upon this evidence, Hamilton's Fifth Amendment claim was "without substance," and had the court heard the evidence subsequently given by both the undercover agent and Hamilton at the time of the original trial, the court would not have allowed the claim. (Emphasis added) The trial court filed these Additional Findings of Fact and Conclusions of Law on April 5, 1976. On June 23, 1976, two and a half months after he filed the above findings, the trial judge heard evidence in the instant case from State Undercover Agent Braswell that Hamilton was the informant in the transaction involving the appellant, did play the major part in bringing Reyes and Braswell together, and was acting in accordance with instructions from Agent Braswell. Despite this, and his prior findings concerning Hamilton two and a half months before, the trial court again allowed Hamilton to claim his Fifth Amendment privilege against self-incrimination when asked questions concerning himself and Reyes. The law is well settled that if Hamilton was actually working at the direction of and in conjunction with Agent Braswell, he was acting as a State agent and his claim of privilege under the Fifth Amendment was spurious. Ex parte Turner, supra. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himselfhis say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified... The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." Hoffman v. U. S., 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951) Moreover, assuming that informer Hamilton's taking the Fifth Amendment was a case of first impression with the trial court, we find the procedure followed below erroneous. At the trial, pursuant to appellant's motion to call Dewayne Hamilton as an adverse witness, a hearing was conducted outside the presence of the jury. All questions propounded to Hamilton concerning his relationship to Reyes and Agent Braswell, his role as an agent of the State, and the heroin delivery were answered: "I refuse to answer on the grounds it may tend to incriminate me." In fact, Hamilton was asked some twenty-four questions by defense counsel, all answered with a claim of the Fifth Amendment, before defense counsel was forced to ask for a grant of immunity. Before this time, the trial court made no inquiry into the validity of Hamilton's self-incrimination claim. In U. S. v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975), the defendant pleaded that he had been entrapped by government informer Smith. The informer resisted a defense subpoena by claiming his Fifth Amendment privilege, which the district court upheld without making any inquiry into the validity of the claim. The court there held that the trial court erred by accepting the informer's assurances at face value without determining whether his fear of self-incrimination was well founded and what the parameters of his Fifth Amendment rights were in the context of the testimony that the defense counsel had tried to obtain from him. United States v. Waddell, 507 F.2d 1226 (5th Cir. 1975), held that where the defendant's sole defense to a charge of possession of cocaine with intent to distribute was that a paid government informer entrapped him into selling contraband, the district court's decision to excuse the informer from giving testimony on the basis of a bald assertion of Fifth Amendment privilege without conducting a hearing in the absence of the jury into the facts underlying such an assertion was error. 345 However, given the facts of this case regarding Hamilton's informer-agent status, it is axiomatic that the appellant has a right to call him as a defense witness and to offer his testimony to the jury. The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present a defense ... This right is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); also Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972) We hold that the trial court committed constitutional error in not granting appellant's request for immunity for informant Hamilton. The next order of inquiry is whether the trial court's denial of appellant's Sixth Amendment right to compulsory process and presenting a defense, by the court's allowing Hamilton to not answer questions propounded to him or not conducting a hearing to ascertain his reason for not doing so, was constitutional error "harmless beyond a reasonable doubt." Chapman v. California, 368 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1966); United States v. Mayer, 556 F.2d 245 (5th Cir. 1977). To answer this, we must look to the materiality and relevancy of the questions asked Hamilton to find if appellant was denied presenting a defense when the questions were not answered. The sole reason, as expressed by appellant's counsel in having Hamilton testify, was to present an entrapment defense. However, this entrapment defense was a "vicarious" one in that the appellant was trying to prove that because Hamilton, a State agent, possibly entrapped Domingo Reyes, who then enlisted the help of the appellant's husband, who then enlisted appellant's help as deliverer of the heroin, appellant, although thrice removed from the government agent and never directly contacted by him, could avail herself of the entrapment defense which could possibly be asserted by Reyes. Such a "vicarious" entrapment defense is a case of first impression before this Court. Before passing on this question, however, we must address the State's misguided argument that the appellant must have admitted the commission of the offense to present her entrapment defense. The defense of entrapment is not available to a defendant that denies the commission of the offense. Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.); Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.). This is because a denial of the commission of the offense is inconsistent with entrapment, as this defense assumes that the offense was committed. Stephens v. State, supra. However, the defendant who pleads not guilty and who does not take the stand or offer any testimony inconsistent with her commission of the crime would still be entitled to offer a defense of entrapment. See U. S. v. Groessel, 440 F.2d 602 (5th Cir. 1971). Thus, the defendant is not required to admit the commission of the offense in each case. In analyzing appellant's vicarious entrapment argument which theorizes that appellant could avail herself of Reyes's possible entrapment defense, we find no merit. Section 8.06 of the Penal Code states: (a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. [Emphasis added] (b) In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents. Section (a) above mandates that there must be a direct link between the defendant and the law enforcement agent. The defendant must be induced by the agent, not a private citizen as was the case here. Pearson v. United States, 378 F.2d 555 (5th Cir. 1967). It was Reyes who induced appellant's husband who induced appellant to 346 deliver the heroin. There was no showing anywhere in the record that Hamilton ever made contact with the appellant or induced her to deliver the heroin in any way. In Wood v. State, 516 S.W.2d 667 (Tex.Cr. App.), we held that where the defendant sold methamphetamine pills to a State agent, partly at the suggestion of an acquaintance from whom he had obtained the pills as security for a loan, and the acquaintance was not a State agent, the State was not guilty of entrapment. To hold otherwise would not advance the policy behind this "objective" test of entrapment as adopted by the Legislature in Section 8.06, supra, which is to deter police conduct violative of law enforcement standards in a civilized society. As stated, only the individual acted upon by the unscrupulous agent enjoys the benefit of the objective test in Section 8.06, supra. The Legislature in Section 8.06, supra, has balanced the benefit of the deterrent effect upon law enforcement agents of allowing unscrupulously induced defendants to go free, with the cost to society of allowing someone other than the directly induced defendant to avail himself of the defense. We note this same cost-benefit analysis has been applied to illegal search and seizure exclusionary rule questions. The U.S. Supreme Court has balanced the benefit of the deterrent effect upon law enforcement agents who conduct illegal searches and seizures by suppressing the evidence illegally obtained therefrom with the cost to society of suppressing same. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). Cf. Rakus v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). The immediate and calculable "cost" of sustaining a "vicarious" entrapment defense outweighs the uncertain and therefore negligible deterrent value upon law enforcement agents. The Legislative intent espoused in Section 8.06, supra, to make entrapment a personal defense and the cost of an unrestricted extension of the defense do not allow vicarious invocation of the entrapment defense. The objective entrapment test mandates that the trial court, having once determined that there was an inducement, need now consider only the nature of the State agent activity involved, without reference to the predisposition of the particular defendant. See 62 A.L.R.3rd 110. The reasoning behind this "objective" test for entrapment was described by Justice Stewart in his dissenting opinion in United States v. Russell, 411 U.S. 423, at 441, 93 S. Ct. 1637, at 1647, 36 L. Ed. 2d 366 (1973): Thus, the focus of this [objective] approach is not on the propensities and predisposition of a specific defendant, but on "whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power." . . . . . . In my view, this objective approach to entrapment advanced by the Roberts opinion in Sorrells and the Frankfurter opinion in Sherman is the only one truly consistent with the underlying rationale of the defense. Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was "predisposed" or "otherwise innocent." The vicarious entrapment defense espoused by the appellant attenuates the "cost-benefit" policy by allowing a defendant to discredit the inducement methods of State agents when she was never a party to such inducements. Such a policy would allow entrapment defenses by all defendants involved to prevail ad infinitum from the original improper use of governmental power by the State agent, regardless of whether each defendant was ever induced by the government to commit the crime in the first place. In denying appellant's vicarious entrapment defense, we also find that the constitutional error in depriving appellant of her Sixth Amendment right to compulsory process to present a defense was harmless since she in fact had no defense of 347 entrapment.[1] Thus, any error by the trial court in not compelling the State's informant Hamilton to give answers to entrapment questions of the defense or to inquire into the reasons behind his assertion of the Fifth Amendment was harmless beyond a reasonable doubt. Chapman v. California, supra; Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). Appellant's second ground of error is overruled. Appellant's third and fourth grounds of error alleged that the trial court abused its discretion in questioning four female jurors about the possibility of their having talked about the case to a third party in violation of the court's instructions. During the course of the trial, the district court judge interrupted proceedings to question four female jurors individually and out of the presence of the other jurors about alleged jury misconduct. The court stated during this questioning that it had information that a woman on the jury had communicated indirectly with the defendant. More specifically, it was the judge's impression that one of the women on the jury had told an inmate at the jail that she would not allow the defendant to be found guilty. Each of the four women denied any such communication. Appellant claims that the questioning itself was improper and caused the jury to be biased against the defendant, denying her right to a fair and impartial trial by jury. The trial court instructed the jury that it was not to converse with anyone about the case on trial except in the presence and by the permission of the court. The trial court did this in order that the jury would comply with Article 36.22, V.A. C.C.P. Since the court believed its own instructions had been violated, it was perfectly proper for the court itself to make inquiries into possible jury misconduct. Nielssen v. State, 456 S.W.2d 928 (Tex.Cr. App.). Determinations as to jury misbehavior are up to the discretion of the court. Appleman v. State, 531 S.W.2d 806 (Tex.Cr. App.). We do not find the questioning prejudicial to the defendant. The very basis of the question was directed toward obtaining a fair and impartial trial. Further, if appellant wished to show bias on the part of a juror, her proper remedy was a motion for new trial with an accompanying affidavit by a juror showing such bias. Article 40.03(8), V.A.C.C.P. No such affidavit was presented. Appellant's third ground of error is overruled. Appellant's fourth ground of error alleges that the trial court erred in its investigation of the alleged juror misconduct during the trial and at the hearing for motion for new trial by not revealing the source of the information about the alleged jury misconduct. Appellant cites no authority to support her contention that the trial court abused its discretion in not disclosing the source of its information alleging possible jury misconduct during the trial. On the contrary, we find the court's halting the proceedings and conducting a hearing on the matter immediately was proper. Wilkes v. State, 566 S.W.2d 299 (Tex.Cr.App.). Nielssen v. State, supra. Based on the jurors' answers to the court's questions, no misconduct had occurred. There was no showing that the defendant was prejudiced by the questioning. (It is also noted that the alleged statement made by the juror would indicate a defense bias for the appellant). This Court has always held that before a new trial is warranted, there must be injury to the accused. Lowe v. State, 226 S.W.2d 674 (Tex.Cr.App.); White v. State, 82 Tex. Cr.R. 286, 199 S.W. 1117. Whether or not *348 there was jury misconduct is an issue of fact for the trial court to decide and unless there is a showing that the court abused its discretion, the decision should not be disturbed. Appleman v. State, supra. We find no error committed by the trial court during the hearing and no injury to the appellant. As far as appellant's motion for new trial is concerned, when the appellant failed to support her motion alleging jury misconduct with supporting affidavits of a juror concerning juror bias as discussed above, the court did not err in overruling that motion. Story v. State, 502 S.W.2d 764 (Tex.Cr.App.). Appellant's fourth ground of error is overruled. Appellant's final ground of error alleges that the trial court erred in entering the judgment against her because of an alleged fatal variance between the wording of the judgment entered and the offense charged. The indictment charges appellant with the offense of delivering "to Troy Braswell, a controlled substance, namely, Heroin." The jury verdict as to guilt and innocence and as to punishment both found the defendant guilty as charged in the indictment. The judgment recites: The Defendant having been indicted in the above entitled and numbered cause for the felony offense of Delivery of a Controlled Substance, namely: Cocaine... The judgment further recites that the jury finds the defendant guilty as charged in the indictment. Article 44.24, V.A.C.C.P., provides that this Court may reform and correct the judgment as the law and nature of the case require. Weeks v. State, 476 S.W.2d 310 (Tex.Cr.App.); Gibson v. State, 488 S.W.2d 462 (Tex.Cr.App.). Appellant's fifth ground of error is overruled. The judgment is reformed to reflect the charge in the indictment and the jury's verdict, and as reformed is affirmed. TOM G. DAVIS, J., concurs in the result. NOTES [1] It is noted that only one question was asked of Hamilton (which was not answered) pertaining to the appellant. Hamilton was asked whether or not he saw the appellant on the day of the offense. It was uncontroverted by the State and the defense that appellant was the person who delivered the bag to Reyes and Braswell on the date in question. Importantly, nothing was asked of Hamilton pertaining to appellant's knowledge that the bag contained heroin. Therefore, we cannot say from the record that appellant was denied such evidence, had Hamilton been able to give it.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874221/	694 F. Supp. 1256 (1988) SIERRA CLUB, The Wilderness Society, and the Texas Committee on Natural Resources, Plaintiffs, v. Richard E. LYNG, et al., Defendants. Civ. A. No. L-85-69-CA. United States District Court, E.D. Texas, Lufkin Division. January 19, 1988. 1257 Doug L. Honnold, Boulder, Colo., for plaintiffs Sierra Club and Wilderness Soc. Edward C. Fritz, Dallas, Tex., for plaintiff Texas Committee on Natural Resources. Ruth Harris Yeager, Asst. U.S. Atty., Tyler, Tex., Charles Brooks, and Wells D. Burgess, U.S. Dept. of Justice, Washington, D.C., for defendants. ORDER ROBERT M. PARKER, District Judge. Before the court are the Defendants' Motion to Dismiss the Texas Committee on Natural Resources' ("TCONR") Second Amended Complaint; the First, Second, and Third Motions of TCONR for Production; the Defendants' Motion for a Protective Order; and the Sierra Club and Wilderness Society's Motion for Leave to File a First Amended Complaint. Upon direction of the court, the Honorable Harry W. McKee, United States Magistrate, conducted a hearing on these motions on January 15, 1988. The court, after examining the filings, reviewing the arguments contained therein, and considering the oral arguments of counsel presented at the hearing, has determined that the Defendant's Motion to Dismiss TCONR's Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Dismissal of claims asserted relating to a "taking" of the Red-Cockaded Woodpeckers are hereby TAKEN UNDER ADVISEMENT. Furthermore, TCONR's First, Second, and Third Motions for Production are GRANTED and the Defendant's Motion for a Protective Order is DENIED. Finally, the Sierra Club and Wilderness Society's Motion for Leave to File a First Amended Complaint is also GRANTED IN PART and DENIED IN PART. DISCUSSION Background The Plaintiffs Sierra Club and The Wilderness Society (hereinafter "Sierra Club"), and TCONR bring this action against Richard E. Lyng, Secretary of Agriculture, and a number of other officials of the United States Forest Service (hereinafter "Forest Service" or "Government"), seeking declaratory and injunctive relief to set aside various plans and/or programs of management of the National Forests in Texas, arguing that such plans are in violation of the Wilderness Act, 16 U.S.C. Sections 1131-1136; the Endangered Species Act, 16 U.S.C. Sections 1531-1543; the National Environmental Policy Act (NEPA), 42 U.S.C. Sections 4321-4361; and the National Forest Management Act (NFMA), 16 U.S.C. Sections 472a, et seq. The Plaintiffs, local and national environmental groups, argue that certain management practices of the Forest Service, particularly those activities to control spread of the Southern Pine Beetles and "even-aged" management generally, are contrary to law and have a deleterious effect upon the National Forests in Texas. The primary issue before the court today is whether claims contained in TCONR's Second Amended Complaint (relating to the Final Land and Resource Management Plan) are subject to judicial review while administrative action is pending. Four administrative decisions are being challenged in this action at its current stage. For purposes of clarity, the court 1258 will necessarily analyze each challenged action in turn. A. The Final Land & Resource Management Plan The Government seeks dismissal of TCONR's Second Amended Complaint, arguing that with respect to TCONR's challenge of the "Final Land and Resource Management Plan, National Forests and GrasslandsTexas" (hereinafter "LRMP" or "Forest Plan") and its accompanying Final Environmental Impact Statement ("LRMP EIS" or Forest Plan EIS), administrative remedies have not yet been exhausted. The Government asserts that court action relating to the Forest Plan and Forest Plan EIS is premature at this time. The court agrees with this conclusion. The Forest Plan and the Forest Plan EIS were promulgated pursuant to NFMP, 16 U.S.C. Section 1600, et seq., by the Regional Forester in a Record of Decision on May 20, 1987. TCONR and a local chapter of the Sierra Club timely filed an administrative appeal under 36 C.F.R. 219.10(d) challenging the Forest Plan. Both of those appeals, including appeals by others who are not parties to this action, are currently pending before the Forest Service. The substance of TCONR's appeal addresses similar, if not identical, arguments that are contained in its Second Amended Complaint relating to the effects of "even-aged" timber management and clearcutting on the environment of the National Forests. Beasley Affidavit, p. 6. Specifically, TCONR argues that the Forest Service's plan of even-aged management (clearcutting, shelterwood cutting, and seed-tree cutting) has an adverse impact upon the plant and animal diversity, soil retention, recreational use, aesthetics, and other uses of the National Forests, in violation of the NFMA, 16 U.S.C. Section 1604(g)(3)(B), and the pertinent regulations, 36 C.F.R. Sections 219.19 and 219.26. Moreover, TCONR maintains that clearcutting and even-aged management has caused, and continues to cause, a decline in the number of Red-Cockaded Woodpeckers, an endangered species located in many of the forests in question. TCONR maintains that 100% even-aged management and clearcutting of 60% of the land suitable for timber management, as opposed to uneven-aged cutting is not the "optimum method" of management mandated by the Congress under NFMA, 16 U.S.C. Section 1604(g)(3)(F)(i). It is uncontested that TCONR's appeal of the LRMP and LRMP EIS remains pending before the agency. However, the Plaintiffs argue that this court should not apply the doctrine of exhaustion of administrative remedies, because of irreparable harm which will occur between now and the time the appeal is decided. The Plaintiffs also assert that the Forest Service may delay resolution of the appeal to prolong the current cutting practices, thereby permitting the court to intercede. At the hearing Mr. Wells D. Burgess, counsel for the Government, assured the court that the appeal would most likely be decided in eight months from the hearing date (by September 15, 1988), but no longer than fifteen months from the hearing date (by April 15, 1989). The government and officials of the Forest Service present at the hearing represented to the court that approximately 5,000 acres out of the approximately 460,000 acres of the Texas National Forests would be subject to even-aged management between now and the time the appeal will be decided (April 15, 1989), which would affect approximately 100 to 120 of the 400 "compartments" (administrative units) contained therein. After examining these figures, the court concludes that the anticipated delay is not so unreasonable as to warrant the court's intervention at this point in the administrative proceedings. Excessive administrative delay can be an exception to the exhaustion requirement, however eight to fifteen months more, does not appear to be excessive in this instance. While the Sierra Club argues that appeals and remands sometimes take years to complete, at this point in time, the court does not consider eight to fifteen months to be excessive. 1259 The Plaintiffs also argue that the forests and the endangered Red-Cockaded Woodpeckers will be irreparably harmed in the interim. The Government's reports do show that the population of the Red-Cockaded Woodpecker has declined significantly in recent years, dropping in population by 41% from 1983 to 1987 in the Davey Crockett National Forest, and by 76% in the Sabine National Forest from 1978 to 1987. Conner & Rudolph, Red-Cockaded Woodpecker Colony Status and Trends, U.S.D. A.Forest Service, at 6. Although it may eventually be shown that clearcutting and even-aged management affects the woodpecker colonies adversely, it is not absolutely clear, at this point in the proceedings, that such is the case. While some 5,000 acres will be subject to even-aged management and clearcutting while the appeal is pending, the court concludes that irreparable harm has not been shown that would warrant judicial intervention at this time. Courts have been reluctant to interfere with the agency administrative processes prematurely, and as the U.S. Supreme Court has noted, ... since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or expertise ... notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. McKart v. United States, 395 U.S. 185, 193-95, 89 S. Ct. 1657, 1662-63, 23 L. Ed. 2d 194 (1969). Furthermore to waive exhaustion of administrative remedies the law in this circuit requires "a clear showing of irreparable injury," and the Fifth Circuit has admonished that, "courts should interrupt the orderly flow of administrative proceedings only under extraordinary circumstances," Merrill Lynch, etc. v. National Ass'n of Securities Dealers, Inc., 616 F.2d 1363, 1370 (5th Cir.1980). The facts shown to the court at this point in the proceedings do not meet this requirement. However, this finding does not preclude judicial relief at a future time, should the Woodpecker population fall dangerously low as a result of the Forest Service's practices. In conclusion, with respect to claims in TCONR's Second Amended Complaint relating to the challenge of the LRMP and the LRMP EIS, the Defendants' Motion to Dismiss is GRANTED. Plaintiffs have asserted a claim under the Endangered Species Act, arguing that a taking of the Red-Cockaded Woodpecker has occurred. The court necessarily excepts said claim from the motion to dismiss, and takes this matter UNDER ADVISEMENT, and will issue an order in the near future. B. Forest Service's Denial of Stay Pending Appeal On August 14, 1987, the Chief of the Forest Service denied TCONR's request for a stay pending a decision on the LRMP Appeal, pursuant to 36 C.F.R. 211.18, stating that, "to defer harvest or other related activites for this length of time (until the appeal was decided) could have a serious effect on the wood products industry that relies on the timber from these Forests ..." Decision of Forest Service Chief Denying TCONR's Stay, Aug. 14, 1987, at 3. TCONR challenges this decision as being arbitrary, capricious, and an abuse of discretion. The Government concedes that the denial of the stay is final action and that administrative remedies have been exhausted. Therefore, with respect to the claim based upon a denial of the stay, the Defendants' Motion to Dismiss is DENIED. C. Southern Pine Beetle Supression Program On April 6, 1987, the Chief of the Forest Service issued a Record of Decision selecting a program to suppress infestations of the Southern Pine Beetle, and an accompanying Final Environmental Impact Statement relating to this program. The Government concedes that this TCONR has exhausted its administrative remedies with respect to this claim. Therefore, the Defendants' Motion to Dismiss, with respect claims challenging the Southern Pine Beetle Suppression Program and EIS is DENIED. 1260 D. Forest Service's Dismissal of TCONR's Appeal Concerning Prescriptions in the Angelina National Forest On September 3, 1987, the Chief of the Forest Service issued a decision affirming the dismissal of TCONR's appeal regarding prescriptions in the Angelina National Forest for untimeliness. The Government does not challenge judicial action on this matter, therefore, the Motion to Dismiss is DENIED, as it relates to this claim. Discovery Matters The court has concluded that TCONR's motions for production are meritorious and therefore are GRANTED. The Defendants' motion for a protective order is DENIED, and the Defendants are directed to comply with the production of documents in accordance with proposed procedures discussed on the record at the January 15, 1988 hearing. The court also ORDERS that further discovery matters in this action shall be brought before the Honorable Harry W. McKee for determination. Sierra Club's First Amended Complaint After reviewing the arguments in the Defendant's Motion to Dismiss, and in accordance with this opinion, claims contained in the Sierra Club and Wilderness Society's First Amended Complaint relating to the Forest Plan's alleged non-compliance with NFMA may not be filed. Therefore, the Sierra Club's Motion for Leave to File a First Amended Complaint is DENIED IN PART, as it relates to NFMA claims, pending the exhaustion of administrative remedies. With respect to other claims asserted in the Amended Complaint, the court concludes that the motion for leave to file is meritorious, and it is GRANTED IN PART. CONCLUSION For the reasons explained above, the court has determined that the described disposition is appropriate. It is, therefore ORDERED, ADJUDGED, AND DECREED that the Defendant's Motion to Dismiss TCONR's Second Amended Complaint is GRANTED IN PART and DENIED IN PART. It is further, ORDERED that claims under the Endangered Species Act are excepted from the Motion to Dismiss and are hereby, TAKEN UNDER ADVISEMENT. It is further, ORDERED that TCONR's First, Second, and Third Motions for Production are GRANTED and the Defendant's Motion for a Protective Order is DENIED. It is further, ORDERED that the Sierra Club and Wilderness Society's Motion for Leave to File a First Amended Complaint is also GRANTED IN PART and DENIED IN PART. It is also further, ORDERED that the Government will refrain from cutting within 1200 feet of a Red-Cockaded Woodpecker Colony in the National Forests until the time of trial in March of 1988, as proposed by the Government.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601570/	228 P.3d 650 (2010) 234 Or. App. 457 THUNDERBIRD MOBILE CLUB, LLC, Plaintiff-Respondent Cross-Appellant, v. CITY OF WILSONVILLE, Defendant-Appellant Cross-Respondent. CV05110027; A134750. Court of Appeals of Oregon. Argued and Submitted January 22, 2009. Decided March 24, 2010. 651 Paul A. Lee argued the cause for appellant-cross-respondent. With him on the briefs were Michael E. Kohlhoff and City of Wilsonville. William Dickas, Portland, argued the cause for respondent-cross-appellant. With him on the briefs was Kell, Alterman & Runstein, LLP. Thomas Sponsler, Gresham, Nancy L. Werner, and Beery, Eisner & Hammond, 652 LLP filed the brief amicus curiae for League of Oregon Cities. Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.[] SERCOMBE, J. Plaintiff, the owner of a mobile home park, filed a declaratory judgment action against the City of Wilsonville (city) to invalidate the city's ordinances that regulate the conversion of mobile home parks to other uses. Following a trial, the trial court entered a judgment declaring that those ordinances are preempted by state law and violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The city appeals and contends that the controversy is not justiciable, the ordinances are not preempted, and the ordinances are not invalid as a matter of substantive due process. The city also asserts that the trial court erred in awarding attorney fees under 42 U.S.C. section 1988. Plaintiff disputes the city's contentions and cross-appeals, assigning as error the trial court's failure to invalidate the ordinances for additional reasons. Plaintiff asserts that the trial court should have found that the operation of the ordinances effects an uncompensated taking of plaintiff's property and money, that the operation of the ordinances unconstitutionally impairs the obligations of lease agreements between defendant and its tenants, and that the operation of the law to affect only mobile home parks within the city boundaries violates uniformity policies in the state and federal constitutions. We conclude that the issues raised in the city's appeal are justiciable and that the ordinances are not preempted under state law or facially unconstitutional under the Due Process Clause. We also conclude that the trial court erred in failing to determine whether the ordinances are invalid on their face for the alternative reasons plaintiff advances in its cross-appeal, and we remand for a determination on the justiciability and merits of those claims. In light of those conclusions, the trial court erred in awarding attorney fees to plaintiff. Accordingly, we reverse and remand the general judgment under review and vacate and remand the supplemental judgment for costs and attorney fees. I. PROCEDURAL HISTORY This case concerns the legality of the city's ordinances that regulate the closure of mobile home parks by requiring the park owner to obtain a closure permit from the city and to compensate displaced tenants. At the time of the adoption of the ordinances,[1] ORS 90.630(5) (2005) directed a mobile home park landlord who wished to convert the park to a different use to provide tenants with a one-year notice of termination, or at least 180-days notice of termination, together with "space acceptable to the tenant to which the tenant can move" and payment of moving expenses, or $3,500, whichever is less.[2] Then and now, ORS 90.505 to 90.840 regulated a number of aspects of the landlord-tenant relationship for the rental of spaces in mobile home parks, including policies concerning disclosures to tenants, billing methods for utility charges, extensions of the term of a rental agreement, rental increases, termination of tenancies, closure of the facility, 653 ownership changes, and sale of the mobile home. All of those policies were part of the Oregon Residential Landlord and Tenant Act, ORS chapter 90. ORS 90.115 sets out the scope of that act: "This chapter applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state." In the summer of 2005, plaintiff notified affected tenants that it intended to sell the Thunderbird Mobile Club, a 270-space mobile home park. The park had been in operation for 40 years and was inhabited mostly by persons on fixed incomes. A hue and cry ensued that led to hearings before the city council on the potential expulsion of tenants and conversion of the park to other uses. The council determined that mobile home parks provided affordable housing for low and moderate income persons and that closure of a park typically forces the park residents to abandon their dwellings without recovery of the dwelling's value. After public hearings, the council adopted Ordinance Nos. 600 and 603. The ordinances required: A mobile home closure permit prior to closing a mobile home park. "Closure of a mobile home park" was defined to include the termination of "mobile home space rental agreements for all or a portion of the park spaces or [the engagement] in activity to effect termination of rental agreements or leases or to evict tenants." The ordinances provided that the requirement for a permit was not intended to affect any right to obtain a land use decision for the park use, to "sell, convey or transfer a mobile home park" or to "provide notification under ORS 90.630(5)." The filing of a closure impact report as part of an application for a closure permit. That report was required to detail the particulars of the current rental of spaces in the park, provide a list of comparable rentals within 100 miles of the city, set out an analysis of the economic effects of tenant relocation, and offer relocation specialist services to tenants. A relocation plan as part of the closure permit application. Under a plan, the owner was required to provide for payment of all reasonable relocation costs for tenants to locate to a comparable space within 100 miles of the city, and, if the dwelling could not be relocated, to purchase the dwelling at its assessed value. That the ordinances "be construed as not to conflict with state law, and shall be applied in a manner such that the provisions and state law operate concurrently." An "owner relief" process, allowing the park owner to apply for relief from the requirements of the ordinances if the "application of the ordinance[s are] unduly oppressive under the circumstances then and there existing[.]" In allowing or denying an application for relief, the council was required to consider "the amount and percentage of value loss, the extent of remaining uses, past, present and future, the seriousness of the public problem caused by the owner's acts of closure, the degree to which these provisions mitigate the problem[,] * * * the feasibility of less oppressive solutions[,] * * * [and] other factors as may be relevant or necessary to achieve a lawful application of these provisions." The ordinances mandated the adoption of findings on the relief application after a public hearing and provided for judicial review of the decision. After adoption of the ordinances, but before it applied for any permit or owner's relief under the ordinances, plaintiff filed its first amended complaint, seeking declaratory and injunctive relief. It sought declarations that the ordinances were preempted by the Oregon Residential Landlord and Tenant Act and otherwise effected uncompensated takings of real property and money under the state and federal constitutions; uncompensated taking of services under Article I, section 18, of the Oregon Constitution; deprivation of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution; deprivation of property without remedy in violation of Article I, section 10, of the Oregon Constitution; 654 impairment of tenant contracts inconsistent with Article I, section 10, of the United States Constitution and Article I, section 21, of the Oregon Constitution; denial of equal protection under the Fourteenth Amendment to the United States Constitution; denial of equal privileges in violation of Article I, section 20, of the Oregon Constitution; and improper exercise of judicial functions by a governmental body that was not a court. Plaintiff also alleged: "The adoption and threatened enforcement of the Ordinance[s] by the City of Wilsonville acting under color of law and ordinance, deprives the Plaintiff of its rights, privileges and immunities secured by the Constitution of the United States in violation of Section 1983, Title 42, United States Code. Plaintiff is entitled to its costs and reasonable attorney fees incurred herein by reason of Section 1988 of Title 42, United States Code, and by reason of ORS 20.085." The prayer sought a "declaration that the Ordinance[s are] unlawful," an injunction against their enforcement, and reasonable costs and attorney fees. Following a trial, the trial court entered the judgment under review. The judgment contained specific findings that plaintiff's costs to comply with the ordinances, if a conversion permit were sought, would be substantial. The court found that there were 765 mobile home parks within 100 miles of Wilsonville, with over 38,000 mobile home spaces, so that the costs of preparation of an impact report assessing those spaces would be "substantial." The court further determined that the costs of relocating a mobile home ranges from $3,000 to $27,000, depending on whether the home is a "single wide" or "double wide" mobile home and that approximately two-thirds of the 184 tenant-owned mobile homes in plaintiff's park were larger, double-wide homes. According to the trial court's findings, if the mobile homes could not be relocated, the costs to purchase the homes under the ordinance would be $2,485,570, and the costs of dismantling and disposing of the purchased mobile homes would exceed $3,000 for each dwelling. The court concluded: "Assuming Thunderbird closed the park with the current tenant population and received no relief from Ordinance requirements under Sections 6.380 or 6.340(l)(c) the reasonable relocation costs of all of the homes in Thunderbird will range from $3,494,000 to $4,968,000. If all of the tenants were able to have or use the full State tax credit, the reasonable relocation costs imposed by Ordinance No. 600 as a condition of obtaining a closure permit will range from $1,656,000 to $3,128,000. It is probable that not all of the tenants of Thunderbird will be able to have or use the Oregon tax credit." The trial court found that plaintiff had listed the property for sale and provided notice of that listing to the tenants as required by state law. Plaintiff had not, however, taken steps to convert the park by giving notice of termination under ORS 90.630(5) or sought to avoid the requirements of the city's ordinances under the "owner relief" provisions. The court nonetheless concluded that there was an "actual, present conflict between the parties," that determination of plaintiff's claims "will have a practical effect upon the parties," that the "issues are not academic or speculative," and that plaintiff "cannot sell its property, or close the park without either complying with Ordinance No. 600, as amended, or violating its provisions." On the basis of those and other adopted findings, the trial court concluded that the ordinances were preempted by state law and that "Ordinance No. 600, as amended by Ordinance No. 603, conflicts with ORS 90.630. It prohibits what State law permits." The court also granted plaintiff relief on the substantive due process claim, finding that the "conditions of the Ordinances are unduly oppressive, and in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution." With respect to the other claims, the trial court determined that "[i]t is not necessary to decide those claims in order to grant complete relief to Plaintiff, and all claims of Plaintiff not hereinbefore sustained are dismissed." The trial court declared that the ordinances "are ultra vires, preempted, and displaced by the law of Oregon, 655 and are therefore, void, and of no effect" and enjoined the city from taking "action to enforce the provisions, requirements or penalties of the Ordinances against the Plaintiff." On appeal, the city contends that the court erred in concluding that the declaratory judgment action was justiciable, in determining that the ordinances were preempted by state law, in deciding that the ordinances violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, in granting injunctive relief, and in awarding attorney fees and costs to plaintiff and denying costs to the city. Plaintiff cross-appeals and contends that the court erred in declining to award plaintiff the full amount of its attorney fees and that the court improperly dismissed its takings, impairment of contract, and uniformity claims under the state and federal constitutions. II. JUSTICIABILITY In its first assignment of error, the city argues that the trial court erred in determining that any of plaintiff's claims presented a justiciable controversy that was ripe for adjudication. As noted, the trial court found that: (1) "[d]etermination of the claims of [plaintiff] will have a practical effect upon the parties"; (2) "[plaintiff] cannot sell its property, or close the park without either complying with Ordinance No. 600, as amended, or violating its provisions"; and (3) "[t]his matter is justiciable, and ripe for adjudication." The city contends that those determinations are factually and legally unsound because: (1) the ordinances have yet to be applied to plaintiff; plaintiff has not provided notice of termination of the park, sought to avoid ordinance requirements, or pursued owner relief under the ordinance's provisions; and (2) plaintiff has not entered into a sale contract conditioned on compliance with the ordinance. Thus, the city argues that the controversy about the effects of the ordinances depends on contingent or hypothetical events. Plaintiff responds that the enactment of the ordinances has impaired the marketability of its property. The facts are undisputed, and we review for legal error. See Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or. 566, 571, 994 P.2d 112 (1999). Because plaintiffs preemption and due process claims sought declaratory relief, we turn to the declaratory judgment statutes to determine whether relief can be allowed under the terms of those statutes. See U.S. West Communications v. City of Eugene, 336 Or. 181, 191, 81 P.3d 702 (2003). ORS 28.020 provides: "Any person * * * whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such * * * constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder." (Emphasis added.) "`Standing under [Oregon's declaratory judgment statutes] has been denied when the showing of the required effect has been too speculative or entirely missing.'" Vannatta v. Oregon Government Ethics Comm., 347 Or. 449, 470, 222 P.3d 1077 (2009) (quoting Gruber v. Lincoln Hospital District, 285 Or. 3, 7, 588 P.2d 1281 (1979)). Thus, in identifying how its rights, status, or other legal relations are affected, a plaintiff "must show some injury or other impact * * * beyond an abstract interest in the correct application or the validity of a law." League of Oregon Cities v. State of Oregon, 334 Or. 645, 658, 56 P.3d 892 (2002). In addition, the Supreme Court has held that the use of the present tense phrase "are affected" in ORS 28.020 implies that the controversy, to be justiciable, must involve "a dispute based on present facts rather than on contingent or hypothetical events." US West Communications, 336 Or. at 191, 81 P.3d 702. That aspect of justiciability, ripeness, is also a "constitutional prerequisite for adjudication, the declaratory judgment statutes to the contrary notwithstanding." Menasha Forest Products Corp. v. Curry County Title, 234 Or.App. 115, 120, 227 P.3d 770 (2010). To determine whether plaintiff satisfied the statutory requirements in ORS 28.020, and whether the claims are ripe for adjudication, 656 we examine the underlying facts to determine if and how the challenged ordinance restrictions affect plaintiff's legal interests. As found by the trial court, the facts are as follows. Plaintiff listed its mobile home park property for sale and gave notice of that listing to its tenants. As a direct result of that listing, plaintiff's tenants urged the city to adopt tenant protection legislation, and, following a public hearing, the city council adopted Ordinance Nos. 600 and 603. Plaintiff has since found potential purchasers interested in redeveloping the park, but has not found a potential purchaser interested in purchasing the property and continuing to operate it as a mobile home park. Moreover, all of the interested potential purchasers plaintiff has found would require plaintiff to close the park and remove the mobile homes as a condition of closing a purchase. Those facts bring to mind a hypothetical we posed in Beck v. City of Portland, 202 Or.App. 360, 122 P.3d 131 (2005). In that case, the plaintiffs, property owners along Gibbs Street in Portland, sought declaratory relief from an ordinance and resolution that pertained to the possible development of an aerial tram over their street. Id. at 362, 122 P.3d 131. The plaintiffs argued that their status as property owners along Gibbs Street established a justiciable controversy under ORS 28.020. Id. at 371, 122 P.3d 131. We ultimately found that the plaintiffs' claim for declaratory relief was not ripe: "[The plaintiffs'] status as property owners was not affected by [the ordinance or resolution] because those enactments made clear that the construction of an aerial tram above Gibbs Street, although more than a fleeting idea in the mind of a city planner, remained only a possibility. * * [P]laintiffs neither alleged nor presented facts that would establish that merely considering Gibbs Street as the alignment for a potential tram affected any of their rights, statuses, or other legal relations. For example, none of the plaintiffs alleged that potential buyers of their property had been deterred from purchasing Gibbs Street property because of defendant's enactments. Whether even that would have been sufficient to establish the existence of a justiciable controversy under ORS 28.020 for the declaration that plaintiffs sought, we reserve for another day. We simply use that hypothetical to illustrate that the point at which a claim becomes ripe depends on the relationship among the defendant's enactments, the rights, status, or other legal relations of the plaintiff that are at issue, and the nature of the declaratory relief that is sought." Id. (emphasis added). Here, although the ordinance, as amended, provides that it is not intended to limit a person's ability to sell, convey, or transfer a mobile home park, see Ordinance No. 603, section 2, this case is nonetheless about plaintiff's ability to sell its mobile home park property. The fact that plaintiff cannot sell its property to any of the potential purchasers without first closing the park and removing the mobile homes gives rise to the inference that the ordinance has deterred the potential purchasers from buying the property as is. Put another way, the ordinance presently affects the marketability and value of plaintiff's property. Plaintiff's requested relief for a declaration that the ordinance is unlawful would, if granted, appear to have an immediate effect on plaintiff's legal interests. It is true, as the city points out, that plaintiff has not sought to close the park, avoid the ordinance requirements, or gain relief under the ordinance's provisions. Nor has plaintiff entered into a sale contract conditioned on compliance with the ordinance. But none of those are steps that plaintiff is required to take to pursue his challenges to the lawfulness of the ordinance on preemption or substantive due process grounds, so long as the facts otherwise indicate that the mere enactment of the ordinance has affected plaintiff's legal interests. Because the facts in this case demonstrate that plaintiff has already reached the point at which his legal interests "are affected" by the ordinance, we conclude that the trial court did not err in holding plaintiff's preemption claim to be justiciable and that jurisdiction exists 657 to determine both the preemption and due process clause claims on appeal.[3] III. PREEMPTION AND MUNICIPAL AUTHORITY ISSUES The city contends that the trial court erred in concluding that the mobile home park conversion ordinances were preempted by portions of the Residential Landlord Tenant Act. It argues that no preemption occurred because the state law does not expressly preempt local legislation and because the local law can operate concurrently with state law. Plaintiff asserts, however, that the municipal ordinances cannot prohibit what state law expressly permitsthe conversion of mobile home parks on the payment of certain benefits and without obtaining a local permit. Plaintiff alternatively claims that the city's exercise of this kind of legislative authority is beyond its home rule powers under the state constitution. We conclude that the adoption of the ordinances was within the city's authority under Article XI, section 2, of the Oregon Constitution and that the ordinances are not preempted by state statutes. The city's power to adopt the ordinances and any preemptive effect of state law on those ordinances are regulated by provisions of the Oregon Constitution that provide "home rule" for cities and towns that adopt municipal charters. Those provisions were adopted in 1906 by an initiative amendment to the constitution. Article XI, section 2, provides, in part: "The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * ." A companion amendment amended Article IV, section 1, of the Oregon Constitution that "reserved" the initiative and referendum powers of voters for state laws to "further reserve[ ] to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district." Or. Const., Art. IV, § 1(5). The primary purpose of the home rule amendments was "to allow the people of the locality to decide upon the organization of their government and the scope of its powers under its charter without having to obtain statutory authorization from the legislature, 658 as was the case before the amendments." LaGrande/Astoria v. PERB, 281 Or. 137, 142, 576 P.2d 1204, aff'd on reh'g, 284 Or. 173, 586 P.2d 765 (1978). The home rule amendments also carve out some limited autonomy for municipal ordinances from overriding state law, but otherwise do not limit the primacy of state legislation over inconsistent municipal enactments. As the Supreme Court explained in LaGrande/Astoria: "Outside the context of laws prescribing the modes of local government, both municipalities and the state legislature in many cases have enacted laws in pursuit of substantive objectives, each well within its respective authority, that were arguably inconsistent with one another. In such cases, the first inquiry must be whether the local rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive. It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by statewide law unless that intention is apparent." Id. at 148-49, 576 P.2d 1204 (footnote omitted). LaGrande/Astoria sets out principles for resolving conflicts between a state statute and a municipal law: "When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government. "Conversely, a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community's freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization." Id. at 156, 576 P.2d 1204 (footnote omitted). Within the area of civil regulation, then, a chartered city can enact substantive policies in an area also regulated by state statute unless the local regulation is "incompatible" with state law either in the sense of being "clearly" preempted by express state law or because "both [state law and local law] cannot operate concurrently." Incompatible state and city laws are then assessed under the conflict resolution principles in LaGrande/Astoria. But it is presumed that the legislature did not mean to impliedly repeal the provisions of a city's civil or administrative law, and courts should seek to reconcile the operation of both state and local laws if possible. Applying those principles, plaintiff first argues that the city's ordinances are expressly preempted by ORS 90.115, which sets out the scope of the Oregon Residential Landlord and Tenant Act. ORS 90.115, however, declares only the intended operation of state law. It does not explicitly limit the applicability of municipal law. LaGrande/Astoria and its progeny require an expressly stated intent to preempt particular municipal enactments in order for a state statute to have that effect. Thus, in State ex rel. Haley v. City of Troutdale, 281 Or. 203, 210-11, 576 P.2d 1238 (1978), the Supreme Court rejected the contention that city building code requirements that exceeded the standards of the state building code were preempted by ORS 456.775(1), a statute that provided: "The state building code shall be applicable and uniform throughout this state and in all municipalities therein, and no municipality shall enact or enforce any ordinance, rule or regulation in conflict therewith." The court stated that it was "reluctant to assume that the legislature meant to confine the protection of Oregon residents exclusively" to the state code requirements "and to place these beyond the power of local communities to provide additional safeguards[.]" 659 Id. at 211, 576 P.2d 1238. The court found that the statutory text lacked manifest preemptive intent: "Certainly, that intention is not unambiguously expressed. Until it is, we conclude that local requirements compatible with compliance with the state's standards are not preempted[.]" Id. This court decided an analogous preemption issue in AT & T Communications v. City of Eugene, 177 Or.App. 379, 35 P.3d 1029 (2001), rev. den., 334 Or. 491, 52 P.3d 1056 (2002). There, telecommunications companies sought to enjoin the operation of a city ordinance that imposed registration and licensing fees on providers of telecommunications services within the city. Id. at 381-84, 35 P.3d 1029. The plaintiffs argued that the ordinance was preempted by ORS 759.030(1), which provided that "the Public Utility Commission shall have authority to determine the manner and extent of regulation of telecommunications services within the State of Oregon." Id. at 394, 35 P.3d 1029. We first noted that, "when the legislature wishes to preempt local government regulation in a particular field, it knows how clearly to do so." Id. at 394-95, 35 P.3d 1029.[4] We added that the use of the word "preempt" is not necessary to state a preemptive effect, noting a number of state statutes that explicitly displace local regulation. Id. at 395, 35 P.3d 1029.[5] Given the requirement from LaGrande/Astoria that the legislature's preemptive intentions be clearly stated, we concluded that ORS 759.030 was not a "clear and unequivocal statement of preemptive intent" because "that is not what the statute says. While it confers authority on the PUC, it does not expressly confer exclusive authority on the PUC." Id. at 397, 35 P.3d 1029 (emphasis in original). In Ashland Drilling, Inc. v. Jackson County, 168 Or.App. 624, 634-35, 4 P.3d 748, rev. den., 331 Or. 429, 26 P.3d 148 (2000), we similarly required clear legislative intent ("an express or otherwise clearly manifested intention that the state's legislation is to be exclusive") to displace county civil regulation of water well construction.[6] Tested by those standards, the city's ordinances are not expressly preempted by ORS 90.115. The statute contains neither text stating an express preemption (e.g., "the 660 State of Oregon hereby preempts") nor a clearly manifested intention that the operation of state law be exclusive (e.g., "no city, town, county or other political subdivision of this state shall adopt or enforce any ordinance, rule or regulation regarding" a particular subject area). Instead, ORS 90.115 merely states the territorial scope of the Residential Landlord and Tenant Act (as applicable to "a dwelling unit located within this state"). That is insufficient to state an "apparent" intent to preempt under LaGrande/Astoria. Plaintiff next contends that the city's ordinances are implicitly preempted by state law because the ordinances supplement the requirements of the Residential Landlord and Tenant Act. Plaintiff argues that the additional requirements of the city's ordinances-beyond the one-year notice of termination, or at least 180-days notice of termination together with "space acceptable to the tenant to which the tenant can move" and payment of moving expenses, or $3,500, whichever is less, required by ORS 90.630(5) (2005) prohibit conversions of mobile home parks that were otherwise unrestricted under state law and are therefore "incompatible" with state law. Under LaGrande/Astoria, however, the occupation of a field of regulation by the state has no necessary preemptive effect on the civil or administrative laws of a chartered city. Instead, a local law is preempted only to the extent that it "cannot operate concurrently" with state law, i.e., the operation of local law makes it impossible to comply with a state statute. Here, the provision of any tenant displacement benefits required by the city ordinances still allows compliance with the less-generous requirements of the Residential Landlord and Tenant Act and both policies can operate concurrently. We have consistently held that a civil regulation of a chartered city will not be displaced under Article XI, section 2, merely because state law regulates less extensively in the same area. Thus, in Oregon Restaurant Assn. v. City of Corvallis, 166 Or.App. 506, 508-09, 999 P.2d 518 (2000), we upheld a city prohibition on smoking in all enclosed public places, notwithstanding the less extensive regulations of the Oregon Indoor Clean Air Act, ORS 433.835 to 433.875. We concluded that "we are reluctant to assume that the legislature, in adopting statewide standards, intended to prohibit a locality from requiring more stringent limitations within its particular jurisdiction." Id. at 511, 999 P.2d 518. We summarized the applicable principles in Springfield Utility Board v. Emerald PUD, 191 Or.App. 536, 541-42, 84 P.3d 167 (2004), aff'd, 339 Or. 631, 125 P.3d 740 (2005): "A local ordinance is not incompatible with state law simply because it imposes greater requirements than does the state, nor because the ordinance and the state law deal with different aspects of the same subject. Rather, we generally assume that the legislature did not mean to displace local regulation of a local condition unless its intent to do so is apparent." (Citations omitted.) Thus, we conclude that the city's ordinances are not implicitly preempted as incompatible with state law because the ordinances impose greater requirements on owners of mobile home parks than mandated by the Residential Landlord and Tenant Act. Plaintiff nonetheless asserts that the ordinances "conflict" with state law because they prohibit, without a permit and the provision of tenant benefits, what state law allowsthe conversion of a mobile home park after one year's notice to tenants. Plaintiff relies on Ashland Drilling, Inc., where, in analyzing the preemption of a county civil regulation by state law, we stated that the "relevant question is whether the ordinances `conflict' with state law, i.e., that the local legislation prohibits what the state legislation permits or permits what the state legislation prohibits." 168 Or.App. at 635, 4 P.3d 748 (citing City of Portland v. Jackson, 316 Or. 143, 146-47, 850 P.2d 1093 (1993)). We then upheld some of the county regulations using the LaGrande/Astoria analysis applicable to civil laws, notwithstanding state regulation in the same area. Id. at 648, 4 P.3d 748. The preemption test referenced in Ashland Drilling, Inc., and relied on by plaintiff is one that applies to the preemption of local criminal laws by a state criminal statute. The preemptive effect of a state criminal 661 statute is determined by a different test than the LaGrande/Astoria standards for preemption of civil regulations. As noted earlier, Article XI, section 2, refers to municipal charters as being "subject to the Constitution and criminal laws of the State of Oregon." As Professor Diller observes: "Under a hyper-literal interpretation, one might conclude that only charter provisions, and not municipal ordinances, need conform to the constitution and criminal laws of Oregon. This argument is perhaps so self-evidently absurd that it has not been seriously argued. Additionally, one might conclude that charter provisions must conform only to the state's constitution and its criminal laws, but not to the state's civil laws. While this argument has also never been seriously pressed, the amendment's specific mention of `criminal laws'and the absence of any specific mention of `civil laws'has led to an important distinction in Oregon local government law: the amendment establishes a rebuttable presumption that municipal criminal ordinances are invalid, whereas civil ordinances are presumed valid." Paul A. Diller, The Partly Fulfilled Promise of Home Rule in Oregon, 87 Or. L.Rev. 939, 945 (2009) (footnotes omitted). The presumptive invalidity of municipal criminal laws that are inconsistent with state criminal laws was established in City of Portland v. Dollarhide, 300 Or. 490, 501, 714 P.2d 220 (1986). That rule was later refined in Jackson, 316 Or. at 149-51, 850 P.2d 1093. In Dollarhide, the defendant challenged a city's mandatory minimum sentence for the crime of prostitution that was more onerous than the sentence allowed under state law. 300 Or. at 493, 714 P.2d 220. The court held that, under the wording of Article XI, section 2, it was "left with the inescapable conclusion that the voters who adopted Article XI, section 2[,] envisioned a stricter limitation on the lawmaking power of cities in respect of criminal laws than with regard to civil or regulatory measures." Id. at 497, 714 P.2d 220. The test for whether a local criminal ordinance conflicts with state law was "whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits." Id. at 502, 714 P.2d 220 (footnote omitted). The court explicitly stated that this same test was not to be applied to the preemption of civil or administrative laws: "The present decision limits only the cities' use of `criminal laws' within the meaning of Article XI, section 2. As long as a city ordinance employs civil or administrative procedures and sanctions lacking punitive significance, the validity of the ordinance must meet only the tests stated in LaGrande/Astoria * , for substantive city policies generally, rather than the more stringent constraints of the phrase in Article XI, section 2, that expresses the dominance of state criminal laws over the creation and punishment of local criminal offenses." Id. at 503, 714 P.2d 220 (citation and footnote omitted). In Jackson, the court refined the meaning of circumstances where a state law permits what a local criminal ordinance prohibits, concluding that, "[w]hen a local criminal ordinance prohibits conduct, unless the legislature has permitted that same conduct, either expressly or under circumstances in which the legislative intent to permit that conduct is otherwise apparent, the ordinance is not in conflict with state criminal law and is valid under Article XI, section 2, of the Oregon Constitution." 316 Or. at 149, 850 P.2d 1093. Again, the formulation of preempting laws that prohibit conduct that state law permits arises solely in the context of preemption of municipal criminal laws. We therefore disavow the dictum in Ashland Drilling, Inc., that suggests the application of the Jackson test for preemption of local criminal laws to municipal civil regulations and conclude that, here, the city's authority to regulate mobile home park conversions was not preempted by state law. Plaintiff alternatively contends that the city lacks authority to regulate the conversion of mobile home parks because that authority is not municipal in character as reserved by the home rule amendments, but instead conflicts with "substantive areas of private law which are the sole domain of the state legislature." Plaintiff reasons that regulation 662 of the landlord-tenant relationship is a traditional function of state government and immune from local policy controls in much the same way as marriage legalization was found to be outside the authority of counties to regulate in Li v. State of Oregon, 338 Or. 376, 110 P.3d 91 (2005). In Li, the Supreme Court concluded that a county lacked authority to adopt policies on the issuance of marriage licenses because "the state and, more specifically, the legislature, is the locus of power over marriage-related matters in Oregon." Id. at 392, 110 P.3d 91. The court determined that the state power "is broad enough to preempt * * * policies generated by a political subdivision of this state, such as the county." Id. The decision in Li is not analogous in a number of respects. First, the authority of a chartered county to regulate in the face of competing state law under the county home-rule provision in the state constitution, Article VI, section 10, may be different than the balance struck in LaGrande/Astoria under the city home-rule provision of Article XI, section 2. See 234 Or.App. at 473 n. 6, 228 P.3d at 659 n. 6. At least as to conflicts between substantive laws of a home-rule city and the state, the LaGrande/Astoria court eschewed conflict resolution on the basis of whether the area of conflict was predominantly of statewide or local concern, overruling in part the legal test for preemption previously used by the court in State ex rel. Heinig v. Milwaukie et al, 231 Or. 473, 479, 373 P.2d 680 (1962). That type of comparison, according to the court, "must often involve a choice among values that have no common denominator either in or outside the constitution. * * * Such choices are the essence of political, not judicial, decision." LaGrande/Astoria, 281 Or. at 148, 576 P.2d 1204. Instead, under the principles set out earlier, a substantive civil law of a home-rule city is displaced by state law when it is incompatible with state policy "either because both cannot operate concurrently or because the legislature meant its law to be exclusive." Id. at 148-49, 576 P.2d 1204. The city's ordinances are not incompatible with state policy in those respects.[7] Finally, to whatever extent Li suggests that there are inherent limits to city home-rule authority to regulate transactions or relationships that are traditionally and exclusively regulated under state law, such as laws relating to marriage, the city's ordinances do not fit that category of laws. Unlike marriage legalization, the city's regulation of plaintiff's land uses in general, and preservation of low-income housing in particular, are well within the city's longstanding delegated authority under state statutes and administrative rules. See, e.g., ORS 227.090(1)(a)(C) (authority of city planning commission to establish zoning districts); ORS 227.215(1) (authority of city to adopt development ordinances that regulate "making a material change in the use * * * of * * * land"); ORS 197.175(1) (obligation of city to exercise planning and zoning responsibilities in accordance with statewide planning goals), ORS 197.175(2)(a) (city duty to adopt comprehensive plan consistent with statewide planning goals), and OAR XXX-XXX-XXXX(10) (statewide planning goal 10, requiring that cities "encourage the availability of adequate numbers of needed housing units" and defining "needed housing units" to include "manufactured homes, whether occupied by owners or renters"); ORS 197.295-197.314 (statutory policies on city provision of "needed housing" in urban areas); ORS 197.475-197.490 (statutory policies on placement and restrictions on mobile home or manufactured dwelling parks 663 by cities). Cf. ORS 100.320 ("A city or county may adopt an ordinance that requires a declarant to pay the moving expense of a tenant vacating a conversion condominium unit."). The area of commerce regulated by the city's ordinances, then, is not within the "locus of power" traditionally and exclusively reserved to the state under applicable case law. We conclude that the trial court erred in determining that the city's ordinances were preempted or otherwise displaced by state law. IV. SUBSTANTIVE DUE PROCESS In the city's third assignment of error, it argues that the trial court erred in concluding that the ordinances violated the substantive due process component of the Fourteenth Amendment. Specifically, the trial court concluded: "[M]aintaining affordable housing for those who need it, but cannot afford it, is a legitimate government concern. The conditions of obtaining a park closure permit as provided by Ordinance No. 600, however, require the Plaintiffnot the government or the publicto pay tenant relocation expenses, or to pay the assessed values and dismantling costs of the mobile homes of the tenants. Because the required payments are extraordinary and unduly burdensome the Ordinances prohibit termination rights as defined by State statute. The conditions of the Ordinances are unduly oppressive, and in violation of the due process clause of the Fourteenth Amendment to the U.S. Constitution." The city contends that plaintiff has no property interest at stake so as to raise a cognizable due process claim and that, even assuming plaintiff had such an interest at stake, the ordinances would withstand rational basis review-the proper test of the ordinance's constitutionality-because a "rational legislator could believe that * * legitimate governmental purposes are advanced by the Ordinance[s]." In response, we understand plaintiff to argue that the ordinances deprive it of the right to terminate tenancies and exclude others from its property and that the ordinances deprive it of a substantial sum of money in order to regain that right. Although plaintiff does not contest that the ordinances advance a legitimate governmental purpose, plaintiff does contend that the ordinances nonetheless unnecessarily imposed a public burden on a single property owner, were unduly oppressive, and created a retroactive burden that could not have been anticipated and cannot be avoided. Plaintiff's contentions rely heavily on Justice Kennedy's concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498, 547-50, 118 S. Ct. 2131, 141 L. Ed. 2d 451 (1998), which addresses substantive due process concerns in the context of retroactive legislation, and on reasoning in Guimont v. Clarke, 121 Wash.2d 586, 854 P.2d 1 (1993), a case decided by the Washington Supreme Court.[8] Assuming without deciding that plaintiff has identified a protected property interest, we conclude that the ordinances in no sense are arbitrary or irrational so as to violate substantive due process. See City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188, 198, 123 S. Ct. 1389, 155 L. Ed. 2d 349 (2003) (declining to 664 determine whether the respondents possessed a protected property interest in building permits because the city official's refusal to issue the permits was neither egregious nor arbitrary government conduct). The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const., Amend. XIV, § 1. As emphasized by the United States Supreme Court, "`[t]he touchstone of due process is protection of the individual against arbitrary action of government,' whether the fault lies in a denial of fundamental procedural fairness, or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.'" County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (citations omitted; brackets in original). The Court has also noted that, "[w]hile due process protection in the substantive sense limits what the government may do in both its legislative and its executive capacities, criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue." Id. at 846, 118 S. Ct. 1708 (citations omitted). "[L]egislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and * * the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way." Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 637, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993) (internal quotation marks and citations omitted). Thus, unless the legislation implicates a fundamental right, the party challenging the legislation on due process grounds must show that the legislation bears no reasonable relation to a legitimate governmental interest. Washington v. Glucksberg, 521 U.S. 702, 722, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). The governmental action at issue in this case is legislative; we therefore test the constitutionality of the ordinances under rational basis review to determine whether they bear a reasonable relation to a legitimate governmental interest of the city. Plaintiff concedes that the ordinances are aimed at a legitimate governmental interestthat of providing assistance to those seeking affordable housing. We agree with plaintiff's concession and also conclude that the requirements of the ordinancesthe filing of a closure impact report and preparation of a relocation planbear a reasonable relation to that legitimate governmental interest. The ordinances, on their face, do not violate the Due Process Clause. Plaintiff, however, would have us test the constitutionality of the ordinances under the rubric used by the Washington Supreme Court in Guimont and, in particular, under that court's use of a "third prong" of due process analysis, "undue oppression." See 121 Wash.2d at 608-10, 854 P.2d 1. Without deciding whether an "undue oppression" inquiry is properly part of a substantive due process challenge of legislation, we conclude that plaintiff's argument is unavailing. Here, the ordinances afford owners relief if they demonstrate "how application of the ordinance is unduly oppressive under the circumstances then and there existing[.]" That relief provision is sufficient for the ordinances to withstand a facial challenge on the grounds of "undue oppression." Plaintiff has also argued under Eastern Enterprises that, because the ordinances have a retroactive effect, this is one of those rare cases where an economic regulation should be found unconstitutional. See 524 U.S. at 547-50, 118 S. Ct. 2131 (Kennedy, J., concurring in the judgment and dissenting in part). In Eastern Enterprises, the Court considered a constitutional challenge "under the Due Process and Takings Clauses of the Constitution to the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or Act), 26 U.S.C. §§ 9701-9722 (1994 ed. and Supp. II), which establishes a mechanism for funding health care benefits for retirees from the coal industry and their dependents." Id. at 503-04, 118 S. Ct. 2131. A plurality of the court concluded, in the context of a takings analysis, that "the Coal Act operates retroactively, divesting Eastern of property long 665 after the company believed its liabilities * * to have been settled." Id. at 534, 118 S. Ct. 2131. The plurality went on to conclude that the Coal Act was unconstitutional as-applied under the Takings Clause, but declined to address the Act's constitutionality under the Due Process Clause. Id. at 538, 118 S. Ct. 2131. Justice Kennedy, however, concurred and would have held the Act unconstitutional on substantive due process grounds. The concurrence noted that "the Court has given careful consideration to due process challenges to legislation with retroactive effects," that "due process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity," and that, "[a]s the plurality explains today, in creating liability for events which occurred 35 years ago the Coal Act has a retroactive effect of unprecedented scope." Id. at 547-50, 118 S. Ct. 2131 (Kennedy, J., concurring in the judgment and dissenting in part). Thus, the concurrence concluded that "[a]pplication of the Coal Act to Eastern would violate the proper bounds of settled due process principles[.]" Id. at 550, 118 S. Ct. 2131. Unlike in Eastern Enterprises, however, the ordinances do not, on their face, have any retroactive active effect, let alone a retroactive effect of unprecedented scope. Plaintiff's statement to the contrarythat the ordinances imposed a multi-million dollar "retroactive" obligationdoes not make it so. The ordinances took effect on the dates of their passage and do not include any provision for retroactive application. Put simply, the ordinances do not affect the closures of mobile home parks that had already occurred or transactions that were believed to be long settled. Plaintiff's retroactivity argument is without merit.[9] For those reasons, we conclude that the trial court erred in determining that the ordinances violate the Due Process Clause of the Fourteenth Amendment. V. CROSS-APPEALS The judgment concluded that the ordinances conflicted with ORS 90.630, were preempted by state law, and were "unduly oppressive" and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. It then provided: "Plaintiff has pleaded other claims for relief, including a claim that the subject matter of Ordinances No. 600 and 603 is within the exclusive jurisdiction of the Oregon Legislature, as well as claims that the Ordinances violate the takings clauses, the equal protection clauses [sic], and the impairment of contract clauses of the State and Federal Constitutions. It is not necessary to decide those claims in order to grant complete relief to Plaintiff, and all claims of Plaintiff not hereinbefore sustained are dismissed." Plaintiff cross-appeals that part of the judgment, contending that the court erred in dismissing its takings, impairment of the obligation of contract, and equal protection claims for relief.[10] Plaintiff asks us to reach the merits of those claims and declare the ordinances are unconstitutional and void on those bases. The city would likewise have us reach the merits, but with an opposite result. On appeal, we decline the parties' invitations to decide plaintiff's takings, impairment of contract, and equal protection claims on their merits in the first instance. The only reason the trial court dismissed those claims was because of its determination on the merits of the preemption and substantive due process claims. Given the trial court's errors in its adjudication of the preemption and due process claims, the reasoning underlying its dismissal of plaintiffs takings, impairment of contract, and equal protection claims is no longer sound. We therefore conclude that the trial court erred in dismissing plaintiff's 666 takings, impairment of contract, and equal protection claims for the reasons that it did.[11] On remand, the court should determine if any of those claims are justiciable and, if so, whether the ordinances on their face are unlawful based on those specific claims. General judgment reversed on appeal and on cross-appeal and remanded; supplemental judgment for costs and attorney fees vacated and remanded. NOTES [] Brewer, C.J., vice Edmonds, P.J. [1] State statutes regulating the conversion of mobile home parks were changed in 2007 and 2009. Or. Laws 2007, ch. 906; Or. Laws 2009, ch. 575. The nature of those changes and their effect on the issues in this appeal are discussed later in this opinion. [2] ORS 90.630(5) (2005), amended by Or. Laws 2007, ch. 906, provided: "The landlord of a facility may terminate a rental agreement that is a month-to-month or fixed term tenancy for a facility space if the facility or a portion of it that includes the space is to be closed and the land or leasehold converted to a different use, which is not required by the exercise of eminent domain or by order of state or local agencies, by: "(a) Not less than 365 days' notice in writing before the date designated in the notice for termination; or "(b) Not less than 180 days' notice in writing before the date designated in the notice for termination, if the landlord finds space acceptable to the tenant to which the tenant can move the manufactured dwelling or floating home and the landlord pays the cost of moving and set-up expenses or $3,500, whichever is less." [3] We also conclude that the preemption and due process claims have not been mooted by legislation enacted after adoption of the ordinances. The 2007 Legislative Assembly changed the statutes on mobile home park conversions to require more generous tenant benefits. Those increased benefits, however, would be less costly to an owner than the full payment of moving expenses or the forced purchase of the manufactured dwelling required by the ordinances as a precondition to conversion. See Or. Laws 2007, ch. 906, § 2. The 2007 law, as amended in 2009, directly regulates the authority of local governments to enforce local regulations of mobile home park conversions "adopted by the local government on or after July 1, 2007, or amended on or after January 1, 2010." ORS 90.660. The 2007 law, as originally enacted, allowed amendments to local laws on mobile home park closures until September 27, 2007, if the law was adopted before July 1, 2007, and the amendment increased the rights of tenants under the local law. Or. Laws 2007, ch. 906, § 5(1). The 2007 legislative changes neither expressly preempt nor affirmatively ratify the ordinances under review, because none of the changes is directly applicable to those ordinances. The ordinances were adopted in 2005 and 2006, respectively, and have not been amended since; however, we note that, in June 2007, in Ordinance No. 634, the city reenacted substantially similar provisions to Ordinance Nos. 600 and 603. Ordinance No. 634 is not under review. Moreover, the 2007 law did not amend ORS 90.115, the basis of plaintiff's claimed express preemption of the ordinances, or change the dynamic of plaintiff's implied preemption analysisthat the city was disabled from providing greater tenant displacement benefits than required by state law. This appeal differs from cases where the constitutionality of a statute is adjudicated by a trial court and the statute is amended or repealed during an appeal. In those cases, "[a]s a generalif not universalrule, the amendment or repeal of a statute moots pending cases in which the controversy turns on the constitutionality of the unamended or existing statute." Miller Brands, Inc. v. OLCC, 90 Or.App. 266, 268, 752 P.2d 320 (1988). Here, the city's ordinances have not been amended or repealed, and the relevant state statutes have not been changed in ways that affect the preemption analysis. We conclude that the preemption issues are not mooted by subsequent changes in state law. [4] As examples of clear preemption of local government regulations, we cited ORS 731.840(4) ("The State of Oregon hereby preempts the field of regulating or imposing" various types of taxes.); ORS 203.090 (providing that various statutes "preempt any laws of the political subdivisions of this state relating to the regulation of private security officers, employers and security services"); ORS 288.610(2) ("ORS 288.605 to 288.695 preempts all statutory or charter authority to issue advance refunding bonds or to effect a forward current refunding."); and ORS 462.100(1) ("The State of Oregon hereby preempts the imposition of taxes on or measured by income on, and the regulation of, race meets."). [5] The cited examples of an explicit displacement of local regulations were ORS 461.030(1) ("no local authority shall enact any ordinances, rules or regulations in conflict with the provisions hereof" relating to the state lottery); ORS 455.040(1) ("no municipality shall enact or enforce any ordinance, rule or regulation relating to the same matters encompassed by the state building code"); ORS 467.136 ("[a]ny local government * * * ordinance or regulation now in effect or subsequently adopted" with a particular effect "is invalid"); and ORS 634.057 ("No city, town, county or other political subdivision of this state shall adopt or enforce any ordinance, rule or regulation regarding pesticide sale or use * * ."). [6] The regulation at issue in Ashland Drilling was of a county, whose home rule authority is regulated by a different provision of the Oregon Constitution than the city home rule provisions adopted in 1906. Article VI, section 10, empowering county voters to adopt home rule charters, was adopted in 1958. The court has assumed that the LaGrande/Astoria framework applies to county home rule issues as well. E.g., Pacific N.W. Bell v. Multnomah Co., 68 Or.App. 375, 378 n. 2, 681 P.2d 797, rev. den., 297 Or. 547, 685 P.2d 997 (1984) ("The parties did not brief or argue whether there is any substantive difference between the county and city home rule charter provisions in the constitution. * * For the purposes of this opinion, we assume that there is not."). As observed by Professor Diller, "[t]his is a curious assumption in light of the textual differences" between the two home rule provisions. Paul A. Diller, The Partly Fulfilled Promise of Home Rule in Oregon, 87 Or. L.Rev. 939, 962 n 119 (2009). Cf., Buchanan v. Wood, 79 Or.App. 722, 731 n. 1, 720 P.2d 1285 (1986) (Joseph, C. J., dissenting) ("I do not necessarily agree that LaGrande/Astoria v. PERB has anything to do with a county home rule charter under Article VI, section 10." (Citation omitted; emphasis in original.)). [7] The case law does recognize that home-rule cities lack the power under Article XI, section 2, to limit or expand the official authority of another government's agent. See City of Eugene v. Roberts, 305 Or. 641, 650, 756 P.2d 630 (1988) (home-rule city not empowered "to conscript the services of county and state [election] officials in the conduct of city business"); Lines v. City of Milwaukie, 15 Or.App. 280, 286, 515 P.2d 938 (1973) (city cannot add to jurisdiction of circuit court to hear appeals from city civil service commission); Wilson v. City of Medford et al., 107 Or. 624, 643, 215 P. 184 (1923) (city lacks authority to "expand the duties of state or county officers beyond the limits fixed by state laws"). If a city attempted to compel registration of same-sex marriages by the state register under Article XI, section 2, as did the county in Li under different authority, the city would be inhibited by this limitation of its home rule authority. But this case does not involve the deputization of state or county officials by the city to administer its mobile home park conversion ordinances. [8] The parties also dispute whether plaintiff has brought a "facial" or an "as-applied" due process constitutional claim. In this case, where there has been no executive action against plaintiff and where the only government action to have occurred was enactment of the ordinances by the city council, we construe plaintiffs claim as a facial challenge. See City of Eugene v. Lincoln, 183 Or.App. 36, 41, 50 P.3d 1253 (2002) ("A facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance; an as-applied challenge asserts that executive officials * * * violated the constitution when they enforced the ordinance."). By so construing plaintiffs claim as a facial challenge, we do not intend to offer any opinion as to the merit of pursuing an "as-applied" substantive due process challenge to economic regulation. As we stated over 35 years ago in American Can Co. v. OLCC, 15 Or.App. 618, 644, 517 P.2d 691 (1973), a majority of the United States Supreme Court has not invalidated economic legislation on the basis of a substantive due process challengewhether that challenge be "facial" or "as-applied"since the Depression. [9] In the absence of any violation of federal law, the trial court erred in awarding attorney fees under 42 U.S.C. section 1988 for causing plaintiff to be subjected to the deprivation of rights secured by the Constitution. [10] Plaintiff also cross-appeals on the ground that the court erred in not allowing greater attorney fees under 42 U.S.C. section 1988. That argument is without merit, given our reversal of the court's allowance of attorney fees. [11] Plaintiffs failure to assign error to the trial court's dismissal of its claims for taking of services and separation of powers leaves the trial court's dismissal of those claims undisturbed. We assume that plaintiff's first amended complaint states no further claims under 42 U.S.C. section 1983.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874178/	694 F. Supp. 1427 (1988) In re WORLDS OF WONDER SECURITIES LITIGATION. No. C 87-5491 SC. United States District Court, N.D. California. July 29, 1988. 1428 1429 David Gold, Paul Bennett, Alan Plutzik, San Francisco, Cal., Ernest Kaufmann, Kaufman, Malchman, Kaufmann & Kirby, Los Angeles, Cal., Mark Reiff, John Taylor, Taylor & Stanley, San Francisco, Cal., Stephen T. Rodd, Abbey & Ellis, New York City, Jules Brody, Stull, Stull & Brody, New York City, Sherrie Savett, Lawrence Deutsch, Berger & Montague, Philadelphia, Pa., Saveri & Saveri, Guido Saveri, San Francisco, Cal., Irving Malchman, Kaufman, Malchman, Kaufmann & Kirby, Joseph Tabacco, Jr., Joseph Weiss, Curtis Trinko, New York City, for plaintiff. Bruce Vanyo, Daniel Bergeson, Wilson, Sonsini, Goodrich & Rosati, Palo Alto, Cal., Robin C. Gibbs, Gibbs & Ratliff, Houston, Tex., Philip Rotner, Richard North Patterson, Brenda Woodson, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., James Tracy, Deloitte, Haskins & Sells, New York City, J. Clifford Gunter III, Bracewell & Patterson, Houston, Tex., William Alderman, Orrick, Herrington & Sutcliffe, John Keker, Keker & Brockett, San Francisco, Cal., Robert Harwood, Goodkind, Wechsler, Labaton & Rudoff, P.C., New York City, for defendant. ORDER RE: MOTIONS TO DISMISS CONTI, District Judge. Plaintiffs bring this action on behalf of all purchasers of Worlds of Wonder, Inc. ("WOW") securities during the period from and including February 5, 1987 and November 9, 1987. Plaintiffs allege seven substantive claims: (1) violation of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder ("10b-5"); (2) violation of section 20 of the Securities Exchange Act of 1934, 15 U.S.C. § 78t ("Section 20"); (3) fraud and deceit; (4) negligent misrepresentation; (5) violation of section 11 of the Securities Act of 1933, 15 U.S.C. § 77k ("Section 11"); (6) violation of section 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l(2) ("Section 12(2)"); (7) violation of section 15 of the Securities Act of 1933, 15 U.S.C. § 77o ("Section 15"). This matter is currently before the court on defendants' separate motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). I. BACKGROUND This action arises out of the demise of Worlds of Wonder, Inc. ("WOW"), a toy manufacturer based in Fremont, California. WOW was founded in 1985 and specialized in the design, manufacturing and marketing of technologically sophisticated toys. In 1986, WOW had an immensely successful year, spurred on by sales of its two most popular products, "Teddy Ruxpin", a talking teddy bear, and "Laser Tag", an electronic toy gun. This success was short-lived, however, and in December of 1987 WOW filed for protection under Chapter 11 of the bankruptcy laws. In January of 1988, the plaintiffs and defendants in several related lawsuits involving WOW securities entered into a stipulation consolidating their actions and establishing 1430 a briefing schedule. The court approved the stipulation, and on February 5, 1988 the court ordered the actions consolidated. On March 7, 1988, plaintiffs filed their "Consolidated Amended and Supplemental Class Action Complaint for Violations of the Federal Securities Laws, Common Law and State Law" (hereinafter referred to as the "Complaint"). The Complaint names the following officers of WOW as defendants: Angelo M. Pezzani ("Pezzani"), former President and Chief Operating Officer; Donald D. Kingsborough ("Kingsborough"), former Chairman of the Board and Chief Executive; and Richard B. Stein ("Stein"), former Executive Vice President and Chief Financial Officer (hereinafter referred to collectively as the "Officers"). The Complaint also names two directors of WOW as defendants, John B. Howenstine ("Howenstine") and Barry H. Margolis ("Margolis"). The Complaint further names the public accounting firm of Deloitte Haskins & Sells ("DH & S") and the underwriting and securities brokerage firm of Smith Barney, Harris Upham & Co. ("Smith Barney") as defendants. Since this matter is currently before the court on motions to dismiss, the court assumes as true the facts alleged by the plaintiffs. See Halet v. Wend Inv. Co., 672 F.2d 1305, 1309 (9th Cir.1982). The Complaint alleges that the defendants engaged in a conspiracy with the purpose and effect of "artificially inflating the market prices of WOW's common stock and debentures and enabling the debentures to be foisted upon the public securities market." Complaint ¶ 29. In furtherance of this conspiracy defendants "recklessly made or caused to be made various false and misleading statements of material facts respecting WOW." Id. Each of the defendants aided and abetted one another's wrongful conduct. ¶ 31. The defendants also engaged in insider trading. ¶¶ 31, 32. The "individual defendants" made "highly optimistic and bullish statements respecting WOW" which were "materially false and misleading", including: that 1987 would be a big year for WOW [¶ 33(a)]; that the estimate for sales in 1987 was $300 million, and $500 million for the next year [¶ 33(b)]; that WOW was withdrawing an intended public offering because of market conditions [¶ 33(c)]; that while earnings dropped by 86% for the fourth quarter ending in March 1987, analysts were "well-informed" in projecting WOW's 1988 earnings to be about $34 million [¶ 33(d)]; and that WOW's stock was undervalued [¶ 33(e)]. In June of 1987 WOW issued a prospectus and registration statement which was "materially false and misleading" and had the "purpose and effect of inflating the price of WOW's stock." ¶ 33(f). This prospectus discussed WOW's business condition in "positive terms and disclosed no insoluble problems or difficulties." ¶ 36(a). The prospectus also failed to disclose that the debentures offered were speculative and involved a high degree of risk. ¶ 36(b). Smith Barney was the underwriter of the June 1987 offering [¶ 18(b)], and sold to the investing public, including plaintiffs, all debentures of WOW which were sold during this public offering [¶ 92]. In June of 1987 the President of WOW sent a letter to shareholders which "boasted" of WOW's progress while WOW was "suffering its worst fiscal quarter since WOW's inception." ¶ 33(g). Defendants further minimized WOW's problems by making "optimistic" statements which "continued to falsely inflate the prices of WOW's securities." ¶¶ 33(h) and (i), 34. Also, the defendants failed to release results of WOW's second quarter ending in September of 1987 although they had represented that they would. ¶ 43. WOW's accountants, DH & S, knew that WOW was suffering business difficulties but concealed this from WOW stockholders and gave WOW a "clean and unqualified opinion or report with respect to the financial statements of WOW." ¶¶ 48-51. DH & S "falsely represented" that its financial examination of WOW was in accordance with generally accepted accounting principles. ¶¶ 51-53. DH & S's acted "knowingly or in such a reckless manner as to constitute 1431 a deceit and fraud upon plaintiffs and the members of the class." ¶ 54. II. MOTIONS TO DISMISS Defendants Margolis, Howenstine, Officers, DH & S, and Smith Barney have all separately moved this court for dismissal of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). While each of the defendants have fashioned their own arguments in response to the allegations, all the defendants argue that the Complaint fails to state proper claims under federal securities law and fails to plead fraud with particularity. Plaintiffs oppose all the defendants' motions. The court will summarize each of defendants' motions separately. A. Defendant Officers' Motion to Dismiss Defendant Officers argue that plaintiffs have failed to state a Section 11 claim against them because: (1) contrary to plaintiffs' assertions, the prospectus warned potential purchasers of the risks involved in WOW debentures; (2) there was no duty to disclose the allegedly omitted facts. The Officers argue that plaintiffs have failed to state a Section 12(2) claim against them because there are no allegations sufficient to establish that the Officers were "sellers" of the securities at issue. The Officers further argue that plaintiffs' 10b-5 claim must be dismissed because it fails to plead fraud with particularity and fails to plead scienter. The Officers also argue that plaintiffs' negligent misrepresentation claims should be dismissed because they are based on alleged omissions rather than affirmative misstatements. B. Howenstine's Motion to Dismiss Howenstine argues that plaintiffs' 10b-5 claim against him must be dismissed because it fails to plead scienter. Howenstine argues that the Section 20(b) claim against him should be dismissed because plaintiffs have failed to adequately plead that he was a "controlling person" within the meaning of federal securities laws. Howenstine argues that plaintiffs have not alleged any facts to indicate that his reliance on information provided by WOW was unreasonable, and therefore the state law claims should be dismissed. Howenstine also argues that the pleadings do not demonstrate that he was a seller of securities and that plaintiffs' Section 12(2) claim should therefore be dismissed. Howenstine further argues that the complaint should be dismissed for failure to plead fraud with particularity. C. Margolis' Motion to Dismiss Margolis argues that the complaint should be dismissed because it fails to adequately distinguish between the responsibilities of the various defendants. Margolis argues that many of the statements alleged to have been misleading are not actionable, and that plaintiffs have failed to allege the specific place, time, nature or specific content of the alleged fraud. Margolis argues plaintiffs' 10b-5 claim against him is defective because it does not plead scienter and because the insider trading allegations against him are vague. D. DH & S' Motion to Dismiss DH & S argues that plaintiffs have made only "boilerplate" allegations against it, and that plaintiffs have misconstrued DH & S' role as WOW's auditor. DH & S argues that plaintiffs' claims against it for aiding and abetting and conspiracy are defective because they fail to allege scienter or demonstrate what substantial assistance DH & S allegedly gave the conspiracy. DH & S also argues that plaintiffs' have failed to plead fraud with particularity in reference to their allegations that the audit report was fraudulent. DH & S argues that the Section 12(2) claim against it should be dismissed because DH & S is not a seller of securities within the meaning of the statute. DH & S further argues that it cannot be held liable under Section 11 for misstatements in the textual portions of the registration statement. E. Smith Barney's Motion to Dismiss Smith Barney argues that plaintiffs have failed to plead any specific wrongdoing on the part of Smith Barney. Smith Barney 1432 also argues that plaintiffs have impermissibly pled allegations on "information and belief." Smith Barney further argues that plaintiffs have failed to distinguish between the different roles each defendant played in the alleged fraud. Smith Barney asserts that plaintiffs' 10b-5 claim against it is defective because plaintiffs have failed to allege actionable misrepresentations or omissions by Smith Barney. Smith Barney also maintains the 10b-5 claim fails to properly allege scienter, reliance and causation. Smith Barney also maintains that it is not a proper defendant under Sections 11 or 12(2). F. Plaintiffs' Opposition to the Motions Plaintiffs have filed a single consolidated brief which responds to all of the defendants' motions. Plaintiffs argue that the misrepresentations and omissions alleged are actionable. Plaintiffs assert that they have identified specific statements which were fraudulent. They also argue that they have adequately pled the circumstances which render the alleged omissions actionable and need not link each omission to a specific affirmative statement. Plaintiffs contend they have satisfied the requirements of Rule 9(b). They argue they need not plead scienter with particularity and that the remaining allegations are sufficient to give defendants fair notice of their alleged wrongdoing. Plaintiffs argue that their Section 11 claim is not subject to dismissal on the grounds that the prospectus disclosed all material risks; they contend this is an issue of fact which must be resolved in their favor for the purpose of these motions. Plaintiffs also argue that their Section 12(2) claim is proper and that defendants are proper defendants. Plaintiffs further argue that Margolis and Howenstine are "controlling persons" under Section 15. Finally, plaintiffs contend that the Officer defendants may be held liable for the tort of negligent misrepresentation to all persons who reasonably and foreseeably rely on their statements and conduct. III. LEGAL STANDARD The Ninth Circuit has summarized the standards for motions to dismiss: ... a complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. 2A J. Moore, Moore's Federal Practice ¶ 12.08 at 2271 (2d 1982). Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). Fed.R.Civ.P. 9(b) provides that in "all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." This rule requires the identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir.1973). To satisfy this requirement, the plaintiff must state the time, date and specific content or nature of the fraudulent representations or omissions. Misc. Service Workers, Etc. v. Philco-Ford Corp., 661 F.2d 776, 782 (9th Cir.1981). Conclusory allegations that defendants' conduct was fraudulent or in violation of federal securities laws are insufficient. Segal v. Gordon, 467 F.2d 602, 606-8 (2d Cir.1972); see also, Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985); and, Hokama v. E.F. Hutton & Co., Inc., 566 F. Supp. 636, 645-646 (C.D.Cal.1983). In addition, the plaintiff must satisfy the above requirements for each defendant. McFarland v. Memorex Corp., 493 F. Supp. 631, 637-39 (N.D. Cal.1980); see also, Bruns v. Ledbetter, 583 F. Supp. 1050, 1052 (S.D.Cal.1984). For example, the plaintiff must distinguish among those he sues and "enlighten each defendant as to his or her part in the alleged fraud." See Bruns, 583 F.Supp. at 1052. Allegations based on "information and belief" do not satisfy the particularity requirement of Fed.R.Civ.P. 9(b) unless the 1433 complaint sets forth the facts on which the belief is founded. Segal v. Gordon, 467 F.2d 602, 608 (2d Cir.1972); Duane v. Altenburg, 297 F.2d 515, 518-19 (7th Cir. 1962); McFarland v. Memorex Corp., 493 F. Supp. 631, 638-9 (N.D.Cal.1980). The requirement that supporting facts be pleaded applies even when the fraud relates to matters peculiarly within the knowledge of the opposing party. Wayne Inv. v. Gulf Oil Corp., 739 F.2d 11, 14 (1st Cir.1984); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S. Ct. 1976, 44 L. Ed. 2d 467 (1975). IV. DISCUSSION The parties in this matter have submitted numerous briefs to this court addressing many important issues involved in securities litigation. Both the defendants and the plaintiffs have argued persuasively. The court does not feel it is necessary to respond, point by point, to every argument or issue raised by the parties. In setting out its decision, the court will concentrate on what it views as the primary issues raised by the parties. A. Fraud Allegations Plaintiffs' Complaint states: Plaintiffs, for their Consolidated Amended and Supplemental Complaint, allege upon information and belief, except as to the allegations which pertain to the named plaintiffs and their counsel, which are based upon personal knowledge. Plaintiffs' information and belief is based upon, inter alia, investigation made by plaintiffs by and through their attorneys. Complaint, p. 1. Plaintiffs' statement that their information and belief is based upon "investigation made by plaintiffs by and through their attorneys" does not relieve them of the burdens imposed by Rule 9(b). Nor does such a statement demonstrate sufficiently the facts upon which plaintiffs' belief is founded. Plaintiffs are obligated to allege their claims with sufficient detail to demonstrate that their complaint is grounded in fact. After reviewing the allegations of the complaint, the court finds that plaintiffs have failed to comply with the specificity requirement of Rule 9(b). Plaintiffs have asserted very broad allegations against all the defendants including violations of 10b-5, conspiracy to commit securities fraud, and aiding and abetting in securities fraud. ¶¶ 29, 30. The details of these allegations, however, fail to sufficiently apprise the different defendants of the basis of their potential liability. Plaintiffs have named as defendants people and entities with different relationships to WOW. The defendants include corporate officers and directors, accountants and underwriters. It is not enough for plaintiffs to make group allegations in such a situation because collective responsibility is not self-evident. Each defendant is entitled to know what misrepresentations are attributable to them and what fraudulent conduct they are charged with. If group responsibility is based on the joint issuance of a statement (as plaintiffs seem to suggest in paragraphs 29 and 33) then plaintiffs must give some detail demonstrating collective responsibility. Conclusory allegations that "defendants and each of them, conspired and knowingly or recklessly made or caused to be made various false and misleading statements of material facts respecting WOW" [¶ 29] are insufficient. Even when plaintiffs do identify the content and source of particular statements (as in paragraph 33) it is not at all clear how defendants such as DH & S and Smith Barney "caused" such statements to be made. Plaintiffs are correct in stating that under Rule 9(b) state of mind may be averred generally. This does not mean, however, that plaintiffs can allege, on information and belief, that a defendant knew that another's action was fraudulent, and that this knowledge rendered an otherwise neutral act fraudulent. Such an allegation must be based on personal knowledge, or else plaintiffs must allege sufficient detail to demonstrate that the claim is grounded in some facts. Absent such personal knowledge or detailed pleading, conclusory allegations of 1434 conspiracy, aiding and abetting and violations of 10b-5 are defective. The court also notes that when plaintiffs have offered the specific time, place and date of the statement they often fail to designate why such a statement was fraudulent. Paragraph 33 simply lists a series of statements with the preface that the statements were "materially false and misleading." The fraudulent nature of these statements, however, is not self-evident. The court therefore concludes that such pleading is defective. For all these reasons, the court grants defendants' motions to dismiss the complaint for failure to comply with Fed.R. Civ.P. 9(b). B. Section 11 Claim Section 11 permits purchasers of a registered security to sue certain enumerated parties in a registered offering when false or misleading information is included in a registration statement. Herman & MacLean v. Huddleston, 459 U.S. 375, 381, 103 S. Ct. 683, 687, 74 L. Ed. 2d 548 (1983). Under this section plaintiffs need only show a material misstatement or omission to establish their prima facie case. Id. at 382, 103 S.Ct. at 687. Liability against the issuer of a security is virtually absolute, even for innocent misstatements. Id. Plaintiffs allege that the June 4, 1987 Registration Statement and Prospectus contained false statements and omitted material facts. See ¶¶ 36, 39, 40-42. Some of the defendants have argued that plaintiffs' claims are not actionable because all the allegedly undisclosed risks were actually disclosed in the prospectus. The court rejects these arguments. The court has reviewed the Section 11 allegations along with the "Risk Factors" section of the prospectus. While it is clear that some of the risks which plaintiffs claim were omitted were in fact disclosed in the prospectus, the overall determination of whether there was adequate disclosure cannot be determined on the pleadings. Plaintiffs have sufficiently alleged that the prospectus was misleading. The court declines at this point in the litigation to sift through the individual allegations and decide, as a matter of law, which risks were actually disclosed. Plaintiffs bring their Section 11 claim against all the defendants. Section 11 liability is limited to persons who sign the registration statement, directors of the issuer, underwriters of that issue, or experts named as preparing or certifying a portion of the registration statement. In re Gap Stores Securities Litigation, 457 F. Supp. 1135, 1143 (N.D.Cal.1978). Accountants cannot be held liable under Section 11 unless the misleading information can be expressly attributed to them. See 15 U.S.C. § 77k(a)(4); McFarland v. Memorex Corp., 493 F. Supp. 631, 643 (N.D.Cal. 1980). The court finds that the instant allegations are insufficient as to DH & S. In order to state a claim against DH & S, plaintiffs must identify the misleading statements in the portion of the prospectus which DH & S allegedly prepared or certified. The court also finds that there is no "secondary liability" under Section 11. The court acknowledges that some courts have allowed claims for "aiding and abetting" a Section 11 claim. See, e.g. Zatkin v. Primuth, 551 F. Supp. 39 (S.D.Cal.1982). The court, however, is persuaded that the proper position is expressed in decisions such as In re Equity Funding Corp. of America Securities Litigation, 416 F. Supp. 161 (C.D.Cal.1976) and McFarland, supra. The court finds that to impose liability for "aiding and abetting" a Section 11 violation "would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties." In re Equity Funding, supra, at p. 181. For these reasons, the court grants DH & S motion to dismiss plaintiffs' fifth claim for relief (violation of Section 11) as to DH & S. The remaining motions to dismiss this claim for relief are denied. C. Section 12(2) Claim Section 12(2) imposes liability on persons who offer or sell securities by 1435 means of any prospectus containing material misrepresentations or omissions; the statute provides that such a person shall be liable "to the person purchasing such security from him" for rescission or, if the plaintiff has sold the security, for damages. See 15 U.S.C. § 77l(2). The definition of a seller under Section 12 is one who "successfully solicits the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner." Pinter v. Dahl, ___ U.S. ___, 108 S. Ct. 2063, 2079, 100 L. Ed. 2d 658 (1988). The court finds that plaintiffs have sufficiently alleged that Smith Barney was a seller within the meaning of Section 12(2). See ¶ 92. As to the remaining defendants, plaintiffs have alleged that the individual defendants participated in activities conducted by all corporations, their officers and directors, prior to going public. See ¶¶ 77, 92(a)-(e). Plaintiffs allege that DH & S, along with the other defendants, "jointly finalized the Registration Statement and Prospectus and caused the Registration Statement to become effective as of June 4, 1987." ¶ 92(d). These allegations are not sufficient to establish that the remaining defendants were "sellers" within the meaning of Section 12. Instead plaintiffs must allege facts which demonstrate that defendants "solicited" the purchase of the securities at issue. For these reasons, the court denies Smith Barney's motion to dismiss plaintiffs' sixth claim for relief (violation of Section 12(2)). The remaining defendants' motions to dismiss this claim for relief are granted. D. Controlling Person Allegations Sections 15 and 20 impose liability upon persons who control corporations committing violations of federal securities law. See 15 U.S.C. § 77o; 15 U.S.C. § 78t(a). The purpose of these sections is to impose liability on persons who might attempt to evade liability under common law principles utilizing "dummies" that would act in their place and under their control. See Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1115-16 (5th Cir.1980). A controlling person is liable for the acts of another if the controlling person acted in bad faith and directly or indirectly induced the conduct which violates the securities law. Strong v. France, 474 F.2d 747, 752 (9th Cir.1973). A director is not automatically liable as a controlling person; there must be some showing of actual participation in the corporation's operation or some influence before the consequences of control may be imposed. Burgess v. Premier Corp., 727 F.2d 826, 832 (9th Cir.1984). Whether a defendant is a controlling person within the meaning of federal securities law is a question of fact. Hilgeman v. National Insurance Company of America, 547 F.2d 298, 302 (5th Cir.1977). Plaintiffs allege that the individual defendants were controlling persons of WOW. ¶¶ 64, 95. To the extent that plaintiffs attempt to impose § 15 or § 20 liability on these defendants for alleged primary violations which this court has already dismissed under Rule 9(b) or 12(b)(6), the claims are dismissed. See The Limited, Inc. v. McCrory Corp., 645 F. Supp. 1038, 1046 (S.D.N.Y.1986). To the extent that plaintiffs seek to establish the defendants' liability for claims which the court has found to be viable, the court finds plaintiffs' allegations of control (e.g. ¶¶ 16, 64, 77, 92) to be adequate. Whether or not liability as a controlling person should be imposed cannot be otherwise resolved at the pleading stage. For these reasons, the court grants Howenstine's and Margolis' motion to dismiss the second and seventh claims for relief (Sections 15 and 20) to the extent that secondary liability is premised on claims already dismissed in this order. To the extent that secondary liability is alleged for claims which survive this order, the motions are denied. E. Negligent Misrepresentation Claim Plaintiffs bring a pendent state law claim for negligent misrepresentation against all the defendants. See ¶¶ 73-75. There can be no liability for negligent misrepresentation unless the defendants owed a duty to plaintiffs to avoid the wrongdoings. 1436 Goodman v. Kennedy, 18 Cal. 3d 335, 342, 134 Cal. Rptr. 375, 556 P.2d 737 (1976). The determination of duty is a question of law. Weirum v. RKO, 15 Cal. 3d 40, 46, 123 Cal. Rptr. 468, 539 P.2d 36 (1975). The determination whether in a specific case a defendant will be held liable for negligent misrepresentation to plaintiffs not in privity involves the balancing of following factors: (1) the extent to which the transaction was intended to affect the plaintiffs; (2) foreseeability of the harm to plaintiffs; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to the defendant's conduct; and (6) the policy preventing future harm. Goodman v. Kennedy, supra, 18 Cal.3d at 342-3, 134 Cal. Rptr. 375, 556 P.2d 737. Under California law, an independent auditor owes a duty of care to reasonably foreseeable plaintiffs who rely on negligently prepared and issued unqualified audited financial statements. International Mortgage Co. v. John P. Butler Accountancy Corp., 177 Cal. App. 3d 806, 820, 223 Cal. Rptr. 218 (1986). Plaintiffs have argued that the proper standard for measuring the defendants' liability is articulated in the Butler decision, supra. Plaintiffs argue that defendants are liable to any plaintiff who foreseeably and reasonably relied on their statements or conduct to his detriment. Defendants argue that a more restrictive standard of duty, as articulated in the Goodman decision, supra, is appropriate. The court holds that plaintiffs' negligent misrepresentation claim against DH & S, as professional accountants and auditors, is governed by the Butler decision. Under California law, DH & S, as the independent auditor of WOW's financial statements, owed a duty to reasonably foreseeable plaintiffs who relied on DH & S' allegedly negligently prepared financial statements. Under this standard, the court finds that plaintiffs have adequately stated a claim against DH & S. The Butler standard, however, should be interpreted as being limited to the particular role of the independent auditor. Even if this court were to interpret Butler as articulating a broad "foreseeability" standard for all negligent misrepresentation claims, regardless of the factual circumstances, the opinion would not be of sufficient authority to displace the test formulated by the California Supreme Court in Goodman. If any conflict exists between the decisions, then this court is obligated to accept the reasoning of the higher court. The court therefore rules that plaintiffs' negligent misrepresentation claims against the remaining defendants are controlled by the Goodman decision. There is no allegation that plaintiffs were in privity with the defendants. Therefore, after considering the factors listed by the California Supreme Court in Goodman, the court finds that plaintiffs have failed to state a claim against the remaining defendants. Plaintiffs have pled no facts which indicate the various remaining defendants intended, by their participation in the allegedly negligent making of statements, to affect the plaintiffs in this action. Nor do the allegations establish a "closeness" between the defendants' alleged negligence and harm caused to future third party shareholders. If a duty were imposed based on the allegations as presented, corporate officers and directors would face almost unlimited liability for non-intentional errors in their conduct. The court also determines that the federal and state securities laws provide comprehensive relief for plaintiffs, and that it is unnecessary for this court to expand liability in the manner suggested by plaintiffs. See also In re Coleco Securities Litigation, 591 F. Supp. 1488 (S.D.N.Y.1984). For the above reasons, the court denies DH & S' motion to dismiss the fourth claim for relief (negligent misrepresentation). The motions of Smith Barney, Howenstine, Margolis and the Officer defendants to dismiss this claim are granted. V. ORDER In accordance with the foregoing, the court orders that the complaint is dismissed pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). 1437 The court dismisses the complaint without prejudice; plaintiffs are granted sixty (60) days leave to file a further amended complaint consistent with this order.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2293111/	133 F. Supp. 2d 272 (2001) In re REZULIN PRODUCTS LIABILITY LITIGATION This paper relates to 00 Civ. 6069, 00 Civ. 7627, 00 Civ. 7628, 00 Civ. 7629, 00 Civ. 7630, 00 Civ. 7631, 00 Civ. 7632, 00 Civ. 7634, 00 Civ. 7635, 00 Civ. 7636, 00 Civ. 7072, 00 Civ. 8501, 00 Civ. 9033, 00 Civ. 9039, 00 Civ. 9131, 01 Civ. 0049. 00 Civ. 2843(LAK). United States District Court, S.D. New York. March 1, 2001. 273 274 275 276 277 278 Charles A. Mathis, Herman, Mathis, Casey & Kitchens, Atlanta, GA, Arnold Levin, Levin Fishbein Sedran & Berman, Philadelphia, PA, Regina L. LaPolla, Milberg Weiss Bershad Hynes & Lerach LLP, 279 New York City, Edward Blackmon, Jr., Blackmon & Blackmon, Canton, MS, David P. Matthews, for Plaintiffs. David Klingsberg, New York City, Alan E. Rothman, Kaye, Scholer, Fierman, Hays & Handler, LLP, New York City, John E. Goodman, Bradley Arant Rose & White LLP, Birmingham, AL, Frank A. Wood, Jr., Watkins & Eager, PLLC, Jackson, MS, Quentin F. Urquhart, Jr., Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendants. MEMORANDUM OPINION KAPLAN, District Judge. These sixteen actions are among the hundreds seeking recovery for personal injuries allegedly resulting from the use of the prescription diabetes medication, Rezulin, formerly manufactured by defendants Warner-Lambert Co. and its Parke-Davis division, that have been consolidated here for pretrial proceedings by the Judicial Panel on Multidistrict Litigation. Each of these sixteen originally was commenced in a state court and removed by defendants on the basis of diversity of citizenship. The matter now is before the Court on plaintiffs' motions to remand on the ground that subject matter jurisdiction is lacking. I. Fraudulent Joinder Plaintiffs' chief claim is that these actions were removed improperly because there is at least one defendant in each usually a pharmacy or an employee of one of the defendant pharmaceutical companies that is a citizen of the same state as a plaintiff, thus destroying the complete diversity of citizenship essential to the exercise of removal jurisdiction. Defendants rejoin that the non-diverse defendants must be disregarded. The question whether a non-diverse party has been joined improperly is one of federal law.[1] Moreover, although the joinder of parties lacking a genuine interest in the controversy frequently is referred to as fraudulent joinder, thus suggesting that the determinative issue is one of motive, motive in fact usually has nothing to do with it. The only issue is whether the plaintiff has a legitimate claim against the non-diverse or in-state defendant whether, in other words, the plaintiff has no real or direct interest in the controversy vis-a-vis the non-diverse or instate defendant because it cannot state a legally sufficient and factually arguable claim for relief against it.[2] The standard for determining whether a plaintiff's claim against a defendant who is a citizen of the plaintiff's state is sufficiently substantial to defeat removal jurisdiction is governed by Pampillonia v. RJR Nabisco, Inc.[3] In order to warrant disregard of the citizenship of a non-diverse party, a removing defendant must "demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse 280 defendants in state court."[4] The burden on a removing defendant to meet this standard is a heavy one, and all reasonable doubts of fact and law are resolved in favor of the plaintiff.[5] Nevertheless, the burden is not impossible of satisfaction. The application of this standard to questions of state law also merits a further word. Federal courts sitting in diversity commonly apply state law as rules of decision under Erie R.R. Co. v. Tompkins.[6] Their role in such cases is familiar they make their best judgments as to how the state courts would resolve the issues before them and decide their diversity cases accordingly.[7] As the reasonable possibility standard implies, however, the task here is more limited. In a case in which the defendants contend that joinder is "fraudulent" because the claim against a non-diverse defendant is insufficiently substantial as a matter of law, the Court must consider the state law upon which the claim rests and then determine only whether there is a reasonable possibility that the relevant state's highest court would rule in favor of the plaintiff were the issue presented to it. If there is such a possibility, then the joinder was appropriate and the case must be remanded. A. Sales Representatives In six cases filed in Mississippi and one filed in Alabama, defendants claim that plaintiffs improperly joined Warner-Lambert sales representatives.[8] All six Mississippi complaints allege that the sales representatives "falsely and fraudulently advertised, marketed, distributed and sold the defendants' Rezulin drug to pharmacies, plaintiffs, decedents, and the general public of the state of Mississippi, and in particular, to Plaintiffs and other [Mississippi] 281 residents."[9] They allege failure to warn, fraudulent and negligent misrepresentation, and breach of warranty. The Alabama complaint makes substantially similar claims as well as one based on the Alabama extended manufacturer's liability doctrine (the "AEMLD"), which is a common law doctrine that has subsumed all claims involving injury caused by defective products.[10] 1. Factual Basis for Claims The Second Circuit's standard for fraudulent joinder allows for removal despite the presence of non-diverse defendants if the claims against those defendants have no basis in fact.[11] This is so when "the allegations in the plaintiff's pleading ... are shown to be so clearly false and fictitious that no factual basis exists for an honest belief on the part of plaintiff that there is liability in short that the joinder is without any reasonable basis in fact and is made without any purpose to prosecute the cause in good faith ...."[12] Defendants challenge the factual allegations of the complaints with respect to the sales representatives. Affidavits of the defendant sales representatives filed in each of the Mississippi cases state that the sales representatives "made no representations, by way of promotion or advertising or otherwise, or any statements whatsoever, including but not limited to representations regarding Rezulin to plaintiff or to the general public."[13] The affidavit filed in the Alabama case states that the sales representative had no dealings with plaintiff or plaintiff's decedent and did not "make any statements to the general public or participate in any advertising or promotion to the general public concerning Rezulin."[14] Plaintiffs have not responded to the affidavits in any way. In consequence, the Court can conclude only that the joinder of these sales representatives lacked any reasonable basis in fact.[15] This is not, however, the only basis upon which the Court finds joinder of the sales representatives to have been improper. 2. Legal Sufficiency of Claims The joinder of the sales representatives in the Mississippi and Alabama cases would have been inappropriate even if there were a reasonable factual basis for the claims against them. There simply is no reasonable basis for supposing that any of the claims against them would be found legally sufficient by Mississippi or Alabama courts. 282 a. The Mississippi cases i. Failure to warn The dispositive question is whether there is a reasonable possibility that the Mississippi Supreme Court would find that pharmaceutical sales representatives have a duty to warn of characteristics of prescription drugs they sell. While no Mississippi court has resolved this precise issue, it does not follow that a "possibility exists that plaintiff can establish any cause of action against [the] defendant[s]."[16] Mississippi follows the learned intermediary rule. "[W]here prescription drugs are concerned, the manufacturer's duty to warn is limited to an obligation to advise the prescribing physician of any potential dangers that may result from the drug's use."[17] The Mississippi Supreme Court has explained its rationale for its adoption of this principle as follows: "As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient ... The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies, then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as the `learned intermediary' between manufacturer and consumer."[18] Precisely the same considerations apply here. If pharmaceutical sales representatives handling prescription drugs have any duty to warn anyone of dangers of their products, the duty is to warn the physicians to whom they promote the product. In any case, they have no duty to warn patients. Accordingly, insofar as these complaints rest on a contention that the sales representatives failed to warn plaintiffs or the public generally, there is no reasonable chance that the Mississippi courts would find them sufficient. Nor are these claims saved by plaintiffs' conclusory allegations that the defendant sales representatives failed adequately to warn "physicians."[19] In Mississippi, as elsewhere, the injury complained of must be a proximate consequence of the alleged breach of duty.[20] Yet plaintiffs do not allege that the defendant sales representatives failed to warn the particular physicians who prescribed the drug for them, let alone that this alleged failure was the proximate cause of their injuries. This is fatal to their claims.[21] And the affidavit of Dr. Calvin Ramsey, submitted in some of the Mississippi cases, which attests that Warner-Lambert sales representatives promoted Rezulin to Dr. Ramsey and that he in turn prescribed it for unspecified patients, does not alter this conclusion, as there is no claim that Dr. Ramsey prescribed the drug for any of these plaintiffs.[22] 283 ii. Fraud and negligent misrepresentation Plaintiffs allege also that the defendant sales representatives fraudulently represented to plaintiffs "that the Rezulin drug was not defective or unreasonably dangerous to its users."[23] But these claims would be insufficient as a matter of law even if plaintiffs had contested the sales representatives' affidavits denying any contact with them. To state a cause of action for fraud under Mississippi law, plaintiffs must allege (1) false representation of a material fact; (2) the speaker's knowledge or belief in its falsity; (3) the hearer's belief in its truth; (4) the speaker's intent that it should be acted upon; (5) the hearer's right to rely on it; and (6) the hearer's actual detrimental reliance.[24] Moreover, averments of fraud must be stated with particularity under either federal or Mississippi law.[25] Thus, a fraud complaint will be sustained only if the circumstances of the alleged fraud including matters such as the time, place, content and speaker of the allegedly fraudulent misrepresentations are set forth.[26] Plaintiffs assert simply that "on or after March, 1997, in the State of Mississippi, and particularly in LeFlore County, Mississippi" the individually named sales representatives "represented to [plaintiffs] that the Rezulin drug was not defective or unreasonably dangerous to its users."[27] They have supported these general allegations with a laundry list of information tending to show the dangers of Rezulin and argue that "the defendants" fraudulently withheld each bit of this information from plaintiffs.[28] But this is well short of the mark. The complaints do not allege all of the essential elements of fraud, most obviously that the sales representatives knew that Rezulin was unsafe at the time they spoke but withheld the truth to mislead plaintiffs.[29] Nor have plaintiffs properly alleged the time and place of particular representations. Instead, they have peppered their complaints with allegations of management-level corporate wrongdoing, which they ascribe to salespeople through the use of the catch-all attribution to "defendants."[30]284 Such general allegations do not meet the Rule 9(b) requirements. If sustained, they would undermine the rule's intent "to provide a defendant with fair notice of a plaintiff's claim, [and] to safeguard a defendant's reputation from improvident charges of wrongdoing."[31] Plaintiffs argue that these deficiencies in their pleadings might be cured by amendment (although they have not sought leave to do so) and that this possibility requires remand. Stated differently, they argue that the mere possibility that they might successfully amend their complaints to state a cause of action against non-diverse defendants defeats the "no possibility" standard for fraudulent joinder.[32] Carried to its logical conclusion, the argument implies that a plaintiff could join any defendant without setting forth any basis in fact or law for liability in short, that a plaintiff "could defeat diversity jurisdiction by joining his grandmother as a defendant, [as] surely some set of facts might make her liable."[33] The Court declines to adopt this theory. While federal and many state courts have adopted liberal rules of notice pleading, pleadings are not inconsequential documents. Indeed, the Second Circuit has indicated that the question whether there is a reasonable possibility of recovery for purposes of determining the propriety of joinder is to be determined "based on the pleadings."[34] Federal courts across the nation have relied upon that standard to deny remand based on inadequate pleadings and to disregard allegations not contained in the original complaint.[35] Indeed, it would be difficult 285 to justify any different approach in resolving claims of improper joinder in the removal context, as another approach could close the doors to federal courts solely on the basis of plaintiffs' wishful speculation. Although a defendant "bears a heavy burden to establish fraudulent joinder, it need not negate any possible theory that [plaintiffs] might allege in the future: Only [the] present allegations count."[36] As the existing complaints fail to state a claim upon which relief may be granted against the sales representatives for fraudulent misrepresentation, there is no reasonable possibility of recovery on those claims. Plaintiffs allege also negligent misrepresentation by "defendants" in general. As allegations of intent to defraud or deliberate wrongdoing are not essential to state such a claim,[37] Rule 9(b) is not necessarily applicable to such claims. On the other hand, where a plaintiff states a claim for negligent misrepresentation but alleges the additional element of fraudulent intent, Rule 9(b) comes into play.[38] Here, plaintiffs allege that defendants "knew, or should have known, that dangerous risks were associated with the use of [Rezulin]" but that despite this knowledge they "consciously ignored and understated the health risks associated with Rezulin" and participated in producing advertisements and promotions that "contained misrepresentations and omissions of fact that were intended to create in the minds of the consuming public the false sense and feeling that [Rezulin] was safe ...."[39] Thus, although plaintiffs have characterized their claims as being for negligence, in substance they charge fraud. Accordingly, their negligent misrepresentation claims are deficient for failure to comply with Rule 9(b). The negligent misrepresentation claims are insufficient for another reason. In order to state a claim for negligent misrepresentation, plaintiffs must allege that a misrepresentation was made to them, as opposed to others,[40] and that they relied on it. Plaintiffs here fail to allege that defendants made any representations to them. Rather, they allege that defendants misrepresented the risks of Rezulin "to the public," and conclude that "each of the defendants were, therefore, guilty of misrepresentation or omissions of 286 material facts to the plaintiff ..."[41] These conclusory statements are insufficient to meet the required nexus between the plaintiffs and the defendants' alleged misrepresentations.[42] iii. Breach of warranty Under Mississippi's Uniform Commercial Code ("UCC"), an implied warranty of merchantability arises "if the seller is a merchant with respect to goods of that kind."[43] Plaintiffs allege that the defendant sales representatives breached an implied warranty of merchantability when they marketed, sold and distributed Rezulin. The defendant sales representatives, however, were not "sellers" of the product for purposes of warranty; the "seller" who impliedly warranted the merchantability of Rezulin was the pharmaceutical manufacturer.[44] In any case, there is no contention that the individual sales representatives "sold" Rezulin to plaintiffs, either directly or indirectly. Hence, there is no reasonable basis for supposing that Mississippi would impose liability on the sales representatives for breach of warranty.[45] As there is no reasonable possibility that plaintiffs have alleged legally sufficient claims for relief against the Warner-Lambert sales representatives for failure to warn, fraudulent or negligent misrepresentation, or breach of warranty, the sales representatives were joined improperly in these six actions. b. The Alabama case The plaintiff in the Alabama case asserts on behalf of her decedent claims against a Parke-Davis sales representative for negligence, wantonness, failure to warn, strict products liability under the AEMLD, and "fraud, misrepresentation, and suppression."[46] To begin with, the Alabama complaint suffers from the same defect as the Mississippi cases joining sales representatives: There is nothing in it indicating that the defendant sales representative sold Rezulin to plaintiff's decedent or to 287 plaintiff's decedent's physician, thereby causing the alleged injuries. In order to recover under the AEMLD, a plaintiff must show "that he suffered injury caused by one who sold a defective product ...."[47] Similarly, to establish a claim of fraud or fraudulent suppression, a plaintiff must show that he or she reasonably relied on the alleged misrepresentation and suffered damage "as a proximate consequence."[48] The absence of any alleged connection between the sales representative and plaintiff's decedent therefore is fatal to all of the claims against the sales representative.[49] There is another problem with the Alabama complaint against the sales representative. The AEMLD is founded on "broader moral notions of consumer protection and on economic and social grounds, placing the burden to compensate for loss incurred by defective products on the one best able to prevent the distribution of these products."[50] Accordingly, the AEMLD imposes liability only on manufacturers, sellers and suppliers.[51] The sales representative joined in the Alabama case neither manufactured, sold nor supplied Rezulin.[52] Rather, he was an agent of the manufacturer and 288 seller. As a corporate employee, he was not "the one best able" to prevent sales of defective drugs. In light of the Alabama Supreme Court's clear explanation of the AEMLD's scope and purpose, there is no reasonable basis for supposing that it would impose liability on the sales representative in this case. B. Pharmacies In seven cases filed in Mississippi, two in Alabama, and one each in Texas, West Virginia, and Louisiana, defendants argue that plaintiffs improperly joined pharmacies.[53] 1. Mississippi cases While the seven actions contain slightly different allegations, they all fail to state any legally sufficient claim for relief against the pharmacies and thus present no reasonable possibility of recovery against them. As noted above, Mississippi adheres to the learned intermediary doctrine, which holds that prescription drug manufacturers have a duty to warn only physicians of the dangers of their products. Nevertheless, plaintiffs argue that there is a possibility that they will prevail because the Mississippi Supreme Court has not yet decided whether pharmacies selling prescription drugs owe a duty to warn patients about the drugs they dispense and whether they warrant the merchantability of those drugs to their customers. Accordingly, they assert, these cases must be remanded to the Mississippi courts. Plaintiffs would be right if the Court were bound to remand if there were any possibility that the Mississippi courts would rule in their favor. As noted, however, the "no possibility" standard is a misnomer. It is expressed more accurately as one of no reasonable possibility. The Mississippi Supreme Court has been quite clear in the rationale for its adoption of the learned intermediary doctrine. Its central point is that physicians determine the proper care of the patient. Imposing a duty to warn patients would threaten to undermine reliance on the physician's informed judgment regarding the appropriateness of a particular drug for a particular patient by confronting the patient with warnings from risk averse manufacturers, which may be difficult for lay persons to understand, which often will have no relevance to the particular patient, and which in any case cannot take account of all of the patient-specific information in the hands of the prescribing physician. In consequence, the manufacturer has a duty to warn the physician and the physician alone. The rationale of Mississippi's learned intermediary doctrine applies four-square to the question whether pharmacies have a duty to warn of the intrinsic dangers of prescription drugs.[54] Such warnings would create substantially the same risks as manufacturer warnings to patients. A risk averse pharmacist would have every incentive to dispense cautions that may be uninformed, inapplicable to or misunderstood by the patient. Such cautions would be at least as likely to undermine the physician's judgment as manufacturer 289 warnings. Almost every state confronted with the question has declined to impose on pharmacists a duty to warn of intrinsic dangers of prescription drugs for precisely this reason.[55] Moreover, these states have not limited their holdings to failure to warn claims, but have shielded pharmacists from liability on theories of strict liability and breach of warranty as well.[56] Plaintiffs argue that there are cases to the contrary in some jurisdictions and that Mississippi might follow them if the issue were presented. But those cases are inapplicable here. One involved a failure to warn of possible drug interactions, not of an intrinsic property of the prescribed drug, and thus raised an entirely different issue.[57] Another involved a failure to advise the patient of the maximum safe dosage for the medication where the prescription was silent on the subject,[58] and two more dealt with the unquestioning provision 290 of addictive drugs over lengthy periods.[59] In light of the existing Mississippi learned intermediary doctrine and the overwhelming majority of other states applying it to pharmacies, there is no reasonable possibility that Mississippi would recognize a cause of action against pharmacists in the circumstance of these cases. Yet even if the Court were to find it reasonably possible that Mississippi here would decline to apply the learned intermediary rule to pharmacies, plaintiffs' claims would fail on other grounds. First, plaintiffs in all seven actions fail to state a claim for failure to warn. A failure to warn claim necessarily presupposes the defendant's knowledge of the dangers of which no warning was given.[60] Plaintiffs, however, allege that the defendant manufacturers and sales representatives "sought to minimize the growing awareness of the drug's harmful effects, by representing to the plaintiff, general public, physicians, and others authorized to dispense said drug, that Rezulin was safe ..."[61] and that the defendant manufacturers and sales representatives "falsely and fraudulently represented to ... pharmacists ... that despite reports from various sources that the Rezulin drug was unreasonably dangerous to its users, the drug was in fact safe ...."[62] Thus, the theory underlying the complaints is that the manufacturer defendants hid the dangers of Rezulin from plaintiffs, the public, physicians, distributors, and pharmacists indeed, from everyone. Plaintiffs' allegations that pharmacists knew and failed to warn of the dangers therefore are purely tendentious.[63] Second, five of the seven Mississippi complaints allege claims arising under the Mississippi Pharmacy Practice Act ("MPPA").[64] They maintain that defendant pharmacies negligently dispensed Rezulin to plaintiffs without adequately reviewing the plaintiffs' "records,"[65] consulting with plaintiffs based on that review, and warning patients of, among other things, adverse effects and interactions resulting from the use of Rezulin.[66] Yet plaintiffs allege also that plaintiffs' injuries resulted "from the defective product" not clinical abuse, drug interactions, incorrect dosage, or any of the other problems defendants allegedly neglected to guard against. Hence, even if the pharmacy defendants' failure to review records of and 291 consult with plaintiffs did breach a duty, it was not this particular breach that proximately caused the injuries suffered by plaintiffs. Accordingly, plaintiffs in these five cases have failed to state a cause of action for negligence. Armstrong suffers from an added defect. Plaintiffs there make no allegations specifically against the defendant pharmacies, but instead lump them together with the manufacturers and attribute the acts alleged failure to warn,[67] breach of warranty, and fraud to the "defendants" generally. But they do not connect themselves to any alleged acts of the pharmacy defendants. Under any of the theories proffered in Armstrong, the complaint must allege that the defendant pharmacies sold or supplied Rezulin to plaintiffs. Without drawing that connection, plaintiffs have no way of showing that the pharmacy defendants' acts proximately caused the alleged injuries.[68] Accordingly, the Armstrong plaintiffs improperly joined the pharmacies as defendants. Finally, in Williams, plaintiffs allege that the pharmacy defendant breached both express and implied warranties. The express warranty provisions of the Mississippi UCC provide that such a warranty arises by "any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain."[69] The "basis of the bargain" element requires a buyer to show that he or she relied upon the seller's representations when deciding whether to purchase the goods.[70] Reliance may be presumed when a seller makes affirmations about the product, but only when those affirmations are made "during the bargain." The presumption arises, in other words, only in instances in which the seller's words were "part of a negotiation" and thus have formed, at least in part, the reason for the buyer's acceptance of the goods.[71] Patients who purchase prescription drugs from pharmacists do not negotiate or bargain with the pharmacists about the suitability of the product. Even assuming a pharmacist were to make a representation about the safety of a particular drug, the representation would not form "part of the basis of the bargain" as required by the Mississippi UCC because the patient purchases the drug on the basis of discussions with his or her physician. Unlike the buyer-seller relationship in normal sales transactions, the relationship between the patient and pharmacist is a function of a regulatory system requiring that certain drugs be sold solely by prescription of a physician. It is through the pharmacy that the patient purchases the drug, but in only this sense does the pharmacy function as a "seller." The only representations regarding the intrinsic properties of the drug that form the basis of the buyer's purchase are those of the physician. It is precisely for this reason that the learned intermediary doctrine focuses 292 on communications between the manufacturer and physicians, rather than patients or pharmacies; it is the physicians who make the ultimate decision on whether to prescribe the drug. Nor do plaintiffs state a claim for breach of implied warranty. The Mississippi UCC creates implied warranties of merchantability and fitness for goods sold by one who is a merchant with respect to goods of that kind.[72] Yet just as there is no basis for finding consumer reliance on pharmacists, so too there is no basis for adopting the view that a pharmacist is a retail merchant like any other with respect to the sale of prescription drugs. A pharmacist's sales of prescription drugs are not attributable to his or her marketing the properties of the drugs. They are attributable to physicians' prescriptions. In this sense, a pharmacist provides "a service to the doctor and [acts] as an extension of the doctor in the same sense as a technician who takes an x-ray or analyzes a blood sample on a doctor's order."[73] In light of the special circumstances of pharmacy sales, "it is pure hyperbole to suggest ... that the role of the pharmacist is similar to that of a clerk in an ordinary retail store."[74] For these reasons, almost every state that has considered the issue has declined to find pharmacists liable for breach of either implied or express warranty with respect to properties of prescription drugs.[75] And these cases make sense from a public policy perspective: One of the purposes of imposing strict liability or liability for breach of warranty on retailers is to encourage retailers to pressure manufacturers to make safer products. Yet this goal is lost on pharmacists, who have little or no impact on a manufacturer's marketing of prescription drugs. There is therefore no reasonable basis for supposing that a cause of action exists against a pharmacist for breach of warranty under Mississippi law. 2. Alabama cases Plaintiffs in Gray and Gannon allege failure to warn, and the Gray plaintiffs allege also breach of the implied warranties of fitness and merchantability against the non-diverse pharmacy.[76] While at least one Alabama court and 293 three federal district courts applying Alabama law have ruled against plaintiff's position,[77] there is no definitive Alabama Supreme Court decision on the question of whether the learned intermediary doctrine shields pharmacists from liability for failure to warn. Nevertheless, given the law on pharmacist liability pronounced by state courts across the nation,[78] and in light of the unanimous conclusions of the Alabama decisions that have considered the issue, the Court finds no reasonable possibility that the Alabama Supreme Court would rule otherwise. Even if the Court were to assess Alabama law differently, plaintiffs' claims nevertheless would fail to state a cause of action for failure to warn. As indicated earlier, a failure to warn claim presupposes the defendant's knowledge of the danger. But these complaints do not allege that the pharmacies knew of the dangers. Indeed, the complaints allege that the manufacturer defendants concealed the risks.[79] Moreover, the Gannon complaint does not even make specific allegations against the pharmacy defendant; it simply names the pharmacy in the list of defendants, never to be mentioned again. Accordingly, plaintiffs have no cause of action against the pharmacy defendants for failure to warn. Neither plaintiffs nor defendants acknowledge that the Gray complaint makes a breach of warranty claim and therefore neither side has addressed its viability. Nevertheless, this Court finds that the claim is untenable under Alabama law. While the Alabama Supreme Court has not ruled definitively on the matter, one decision of that court makes its position clear. In Stafford v. Nipp,[80] the plaintiff sued her pharmacist for injuries she incurred as an alleged result of taking oral contraceptives for a period of nine years. The court reversed a grant of summary judgment in favor of the pharmacist because there was a factual issue as to whether the pharmacist had dispensed the contraceptives without a prescription from the plaintiff's physician. In so doing, it wrote that "[t]he manufacturer's warnings accompanying the drug at the time of its purchase and sale by the pharmacy do not, as a matter of law, shield the pharmacist from liability based on breach of warranty where the pharmacist continues to fill a prescription without authorization from a doctor."[81] The holding strongly indicates that there is no cause of action under Alabama law against a pharmacy for breach of warranty in the sale of a prescription drug absent a showing that the pharmacist dispensed the drug without a valid prescription. As the Gray plaintiffs have made no such allegations, their claims against the pharmacy defendant will not lie. 294 3. Texas, West Virginia, and Louisiana cases Plaintiffs in Burnworth, Hernandez, and Mahon also fail to state a sufficient claim against the non-diverse pharmacists joined in those actions. The Burnworth plaintiffs make claims of fraudulent misrepresentation and breach of express and implied warranties. Although the Louisiana Supreme Court has not ruled on whether a pharmacist may be liable on these theories for dispensing defective prescription drugs, Louisiana courts have held in the context of failure to warn claims that a pharmacist's duties are solely "to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient."[82] Given the limited scope of a pharmacist's duty under Louisiana law, it is unreasonable to suppose that a pharmacist, who is not required to provide any information to the patient other than whether a dosage is excessive or whether there are deficiencies on the face of the prescription, could be held liable for failing to tell patients of the harmful side-effects of Rezulin, whether that failure is couched in terms of failure to warn, breach of warranty or fraudulent misrepresentation. Accordingly, plaintiffs have no reasonable possibility of recovery against the pharmacists under Louisiana law. The Texas plaintiff alleges that pharmacies should be held strictly liable "for manufacture and marketing, in interstate commerce, of a defective drug."[83] Pharmacies neither manufacture nor market prescription drugs. Moreover, as Texas law does not hold pharmacists liable for failure to warn of the risks of medications,[84] it would be unreasonable to suppose a different result with respect to strict products liability claims. Indeed, many of the cases upon which Texas law relies shield pharmacists from strict liability for injuries resulting from dangerous or defective medications.[85] Finally, the West Virginia plaintiffs allege claims of negligence, wilfulness, wantonness, and breach of express and implied warranty against the defendant pharmacy. The West Virginia Code expressly provides that "all persons, whether licensed pharmacists or not, shall be responsible for the quality of all drugs, chemicals and medicines they may sell or dispense, with the exception of those sold in or dispensed unchanged from the original retail package of the manufacturer, in which event the manufacturer shall be responsible."[86] Plaintiffs have no cause of action against the pharmacist defendant under West Virginia law, as they have not alleged that the Rezulin it dispensed was removed from its original packaging. C. Physicians Defendants allege that the plaintiffs in Gannon fraudulently joined a physician, Jose Oblena. That Mr. Oblena is even a physician is impossible to determine from the face of the complaint, which simply lists him as a "resident of Calhoun County, Alabama, and over the age of nineteen (19) 295 years."[87] In fact, it is impossible to determine anything about Oblena, because he is not mentioned in the complaint, other than in this introduction. He simply is included in all of the allegations against "defendants" in general. Plaintiffs do not come close to alleging that Oblena proximately caused their injuries or that he knew or should have known of the risks of Rezulin. In fact, the assertion that "[d]efendants ... recklessly, falsely and/or deceptively represented or knowingly omitted, suppressed or concealed facts of such materiality regarding the safety and efficacy of Rezulin from prescribing physicians" refutes the assumption that Oblena, as a physician, had knowledge of Rezulin's harmful effects. In short, plaintiffs have failed to state any legally cognizable claim against Oblena, and this Court holds that he was joined improperly. II. Absence of Consent for Removal In seven cases,[88] plaintiffs allege that removal was improper, as not all defendants joined in or consented to it. The questions whether and to what extent consent is required for removal is one of federal law, to be answered with reference to Second Circuit precedent.[89] While the consent of all defendants ordinarily is required to effect removal,[90] "the failure of an improperly joined party to participate in the petition will not defeat removal."[91] Consent thus was not required from those defendants that Warner-Lambert has shown to have been joined improperly. In Villarreal v. Medico, Inc.,[92] Warner-Lambert's co-defendant, Medico, Inc., removed the action to federal court. Warner-Lambert, however, did not consent to the removal, and does not oppose plaintiffs' remand motion in that case. III. Amount in Controversy Plaintiffs in four cases[93] seek remand on the ground that the requisite $75,000 amount in controversy is absent. Defendants assert that the matter in controversy in each case exceeds $75,000 and that removal was proper. Defendants, as the party invoking federal jurisdiction, carry the burden of "proving to a reasonable probability that the claim is in excess of the statutory jurisdictional amount."[94] On the other hand, the focus of defendants' efforts need not be whether the plaintiff is likely to secure an amount greater than $75,000. 296 Rather, the focus is on the claim,[95] and while "plaintiff is the master of its claim whose monetary demand is to be accorded deference,"[96] a plaintiff's claim must be made in good faith.[97] To determine whether defendants' burden has been met, this Court looks not only to the complaint, but to any other evidence in the record.[98] Plaintiffs in Armstrong allege compensatory and punitive damages "in an amount in excess of the minimum jurisdictional limits of this court,"[99] a reference to the Mississippi state court in which the action was filed. The complaint therefore does not preclude recovery in excess of $75,000. Moreover, the complaint contains allegations of "economic loss, including loss of earnings and diminution and/or loss of earning capacity," as well as "medical, health, incidental and related expenses," future expenses to be incurred from "reasonable and necessary health care, attention and services," and claim "serious and life-threatening medical conditions."[100] Other complaints in this MDL allege damages between $50 and $100 million[101] for similar injuries. In all the circumstances, the Armstrong complaint obviously asserts a claim exceeding $75,000. The defendants have met their burden with respect to Hill, Hunter, and Southern, all of which allege damages in the amount of $74,000. First, the complaints themselves indicate damage claims over the minimum jurisdictional amount. They are worded identically and aver, inter alia, that plaintiffs have incurred expenses for "numerous diagnostic procedures;" sustained injuries that "are permanent in nature and will require future medical care and treatment which will mean future expenditures;" have suffered "great mental, emotional and physical pain and suffering and mental anguish coupled with worry depression and anxiety and psychological problems which will continue in the future;" suffered "a loss of income and wage earning capacity which will continue in the future;" and suffer "a loss of vitality and capacity to enjoy life which is also permanent in nature."[102] These complaints, moreover, contain allegations of injury identical to those in House, H. Johnson, Love and Teague, all of which seek $50 million in compensatory damages and $100 million in punitive damages.[103] In fact, defendants point out, the original complaint in Hill sought these same damage amounts, and only later was amended to reduce alleged damages below the statutory minimum. Defendants have met their burden. Plaintiffs' damages claims in these four cases are not made in good faith, a conclusion confirmed by their refusal to agree to cap their recovery below $75,000.[104] Accordingly, the Court finds the allegations in Armstrong, Hill, Hunter and Southern 297 meet the minimum statutory requirement for diversity jurisdiction. IV. Eleventh Amendment Basis for Remand Plaintiffs argue that the presence of the State of Mississippi Division of Medicaid as a plaintiff in Armstrong defeats removal on the theory that the State of Mississippi is a party in interest in the litigation and may not be hailed into federal court against its will by virtue of the Eleventh Amendment. The Eleventh Amendment does not bar removal. It applies only to suits "commenced or prosecuted against" a state. Assuming arguendo that Mississippi is the real party in interest, the fact remains that this suit was brought by not against the state. And while the Eleventh Amendment in some areas has been extended beyond its textual limits, this is not the case with respect to state plaintiffs. Rather, the heavy weight of authority holds that the Eleventh Amendment does not bar removal.[105] V. The Teague Case Plaintiffs in Teague filed a motion to remand in the Southern District of Mississippi, which was granted by Judge Lee on October 10, 2000 and filed with the clerk on October 11. The Multidistrict Panel's order transferring Teague to this Court was entered by the Clerk of this Court on October 10, but not received by the Southern District of Mississippi until October 16. There is, in consequence, a question as to whether the order transferring Teague to this Court took effect, and thus deprived the Mississippi court of jurisdiction, before Judge Lee's order became effective. According to 28 U.S.C. § 1407(c)(ii), a transfer order is effective when it is filed in the office of the clerk of the transferee court.[106] Accordingly, the transfer of Teague became effective on October 10, the date it was file-stamped as received, unless Judge Lee previously had remanded it to state court.[107] Plaintiffs argue that Judge Lee's order became effective on the day it was signed, October 10. They rely on Weedon v. Gaden[108] and United States v. Hunt.[109] But Weedon merely holds that the entry of judgment by the clerk is not an adjudication, and Hunt involved state rules of actual notice and did not concern the standard for when an order is effective. Defendants, for their part, point to Rule 58 of the Federal Rules of Civil Procedure, which states that a judgment is final only upon entry on the docket by the clerk of court[110] and argue that the Mississippi 298 remand order therefore did not become effective before the transfer order. However, "judgment" is defined in Rule 54(b) as "a decree and any order from which an appeal lies."[111] As an order remanding to a state court based on lack of subject matter jurisdiction is unappealable,[112] Judge Lee's order was not a "judgment" and therefore was unaffected by Rule 58. Defendants point also to In re American Precision Vibrator Co,[113] where the Fifth Circuit held that the bankruptcy court had retained jurisdiction of the petition because an order dismissing the petition never had been docketed.[114] But the case is distinguishable because the dismissal order was appealable and therefore governed by Rule 58. As the foregoing makes clear, there is no controlling or, for that matter, persuasive authority on either side of the argument. When a party seeking remand challenges the jurisdictional predicate for removal, "the burden falls squarely upon the removing party to establish its right to a federal forum by `competent proof.'"[115] Because the defendants have failed to meet that burden here, this Court is bound to resolve the issue in favor of the plaintiffs. VI. Conclusion The motions to remand in Hill, No. 00 Civ. 7634, Hunter, No. 00 Civ. 7635, Southern, No. 00 Civ. 7636, Armstrong, No. 00 Civ. 7632, H. Johnson, No. 00 Civ. 7631, House, No. 00 Civ. 7628, Gray, No. 00 Civ. 8501, Gannon, No. 00 Civ. 6069, Love, No. 00 Civ. 7629, Burnworth, No. 01 Civ. 0049, Mahon, No. 00 Civ. 9039, Hernandez, No. 00 Civ. 9033, Frost, No. 00 Civ. 9131, and Williams, No. 00 Civ. 7627, are denied. The motion to remand in Villarreal, No. 00 Civ. 7072, is granted. The Court does not consider the motion in Teague, No. 00 Civ. 7630, for lack of jurisdiction; accordingly, the remand order issued by Judge Lee stands. The Clerk will close that case. Defendants' motions in Hill, No. 00 Civ. 7634, Hunter, No. 00 Civ. 7635, Southern, No. 00 Civ. 7636, House, No. 00 Civ. 7628, and H. Johnson, No. 00 Civ. 7631, to strike the affidavit of Calvin Ramsey are denied. SO ORDERED. NOTES [1] Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459 (2d Cir.1998). Accordingly, Second Circuit precedent is persuasive. See In re Pan American Corp., 950 F.2d 839, 847 (2d Cir. 1991) (transferee federal court should apply its interpretations of federal law, rather than those of the transferor circuit); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir.1993) (applying In re Pan American to transfer made pursuant to 28 U.S.C. § 1407). [2] Of course, the issue may arise in different frameworks. A single plaintiff may sue two defendants, one of which is a citizen of the same state as the plaintiff. A single defendant may be sued by two or more plaintiffs, at least one of which is a citizen of the same state as the defendant. Multiple plaintiffs may sue multiple defendants with at least one plaintiff and one defendant being citizens of different states. But the question presented always is the same in substance: whether there is a legally sufficient and factually arguable claim for relief as between the parties whose presence would destroy complete diversity of citizenship. [3] 138 F.3d 459. [4] Id. at 461. Accord, Saxe, Bacon & Bolan, 521 F.Supp. at 1047. The statement in Pampillonia that a defendant must establish that there is "no possibility" that the plaintiff might prevail against a non-diverse defendant, id. at 461, as plaintiffs conceded at oral argument, Tr., Jan. 25, 2001, at 6-7, cannot be taken literally. Even if a plaintiff's claim against a non-diverse defendant were squarely precluded by a recent decision of a state's highest court or by a statute precisely applicable to the claim, there always would be a "possibility," however remote, that the court or legislature might change its mind so as to permit the plaintiff to prevail. In consequence, several circuits, in decisions cited with approval by the Second Circuit in Pampillonia, have indicated that the standard more accurately is described as requiring a showing that there is "no reasonable basis" for predicting liability on the claims alleged. Pampillonia, 138 F.3d at 461 n. 3 (citing Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393 (5th Cir.2000); Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991)). That is the standard this Court applies. Accord American Mutual Liability Ins. Co. v. Flintkote Co., 565 F. Supp. 843, 845 (S.D.N.Y.1983) (noting test for fraudulent joinder "has uniformly been at least whether there is any reasonable basis for predicting that state law might impose liability in the non-diverse defendant"). [5] See id. at 461. [6] 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). [7] See Travelers Insurance Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994) ("Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity."); Bailey Employment System, Inc. v. Hahn, 655 F.2d 473, 477 (2d Cir.1981) ("Where there is an absence of state authority on an issue presented to a federal court sitting in diversity ... the federal court must make an estimate of what the state's highest court would rule to be its law."). [8] The Mississippi cases are Johnson v. Parke-Davis, No. 00 Civ. 7631 (referred to here as H. Johnson for purposes of distinguishing it from another Johnson case in this MDL); Hill v. Parke-Davis, No. 00 Civ. 7634; House v. Parke-Davis, No. 00 Civ. 7628; Hunter v. Parke-Davis, No. 00 Civ. 7635; Southern v. Parke-Davis, No. 00 Civ. 7636; and Williams v. Parke-Davis, No. 00 Civ. 7627. The Alabama case is Frost v. Warner-Lambert Co., No. 00 Civ. 9131. [9] See House Sec. Am. Cpt. ¶ 5B. The substance of this allegation is contained in all six Mississippi complaints. The complaints name some or all of the following defendant sales representatives: Lee Miers III, Davis J. Lemoine, Alice E. Bonar, Liesl Daly Bold, Philip Thower, and Karen M. Ewan. The Alabama complaint alleges similar claims against sales representative Gene Flood. See Frost Cpt ¶ 9C. [10] See Johnson v. General Motors Corp., 82 F. Supp. 2d 1326, 1329 (S.D.Ala.1997) (failure to warn claims subsumed by AEMLD); Veal v. Teleflex, Inc., 586 So. 2d 188, 190-91 (Ala. 1991) (negligence and wantonness claims subsumed by AEMLD). [11] Pampillonia 138 F.3d at 461. [12] Metropolitan Prop. and Cas. Ins. Co. v. J.C. Penney Cas. Ins. Co., 780 F. Supp. 885, 888 (S.D.N.Y.1991) (quoting Quinn v. Post, 262 F. Supp. 598 (S.D.N.Y.1967)). [13] E.g., Lemoine Aff. ¶ 4. All of the Mississippi affidavits contain this assertion. [14] Flood Aff. ¶ 4. [15] See Badon, 224 F.3d at 393 (where plaintiffs failed to respond to defendants' affidavits and failed to request time to discover evidence to contradict affidavits, no reasonable basis for predicting that plaintiffs might establish liability); Trumps v. Harley of New York Associates, No. 94 CV 7080(CSH), 1995 WL 656983, at * 3 (S.D.N.Y. Nov.8, 1995) (assertions in affidavits submitted by defendants in support of removal presumed true for purposes of fraudulent joinder determination, where plaintiff failed to offer evidence to controvert assertions). [16] Pampillonia, 138 F.3d at 461 n. 3 (quoting Allied Programs Corp. v. Puritan Ins. Co., 592 F. Supp. 1274, 1276 (S.D.N.Y.1984)). [17] Wyeth Laboratories, Inc., v. Fortenberry, 530 So. 2d 688, 691 (Miss.1988) (quoting Swayze v. McNeil Laboratories, Inc., 807 F.2d 464, 470 (5th Cir.1987)). [18] See id. at 691 (quoting Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S. Ct. 687, 42 L. Ed. 2d 688 (1974)). [19] See Hill Cpt. ¶ 15C; House Second Am. Cpt ¶ 31C; Hunter Cpt ¶ 32C; H. Johnson Second Am. Cpt ¶ 18C; Southern Cpt ¶ 32C; Williams Cpt. ¶ 38C. [20] Carpenter v. Nobile, 620 So. 2d 961, 964 (Miss.1993). [21] See Thomas v. Hoffman-La Roche, Inc., 731 F. Supp. 224 (N.D.Miss.1989), aff'd, 949 F.2d 806 (5th Cir.), cert. denied, 504 U.S. 956, 112 S. Ct. 2304, 119 L. Ed. 2d 226 (1992) ("A plaintiff in a prescription drug products liability case has the burden of proving that an adequate warning to the prescribing physician would have altered the physician's conduct.") (citing Wyeth Laboratories, 530 So.2d at 691) (emphasis added). [22] Defendants have moved to strike Dr. Ramsey's affidavit on this ground. But the fact that the affidavit does not remedy the defects in plaintiffs' position is not a ground for striking it. [23] See House Sec. Am. Cpt. ¶ 5C. The allegations against the sales representatives in House are identical to those in H. Johnson, Hill, Hunter, Southern and Williams. [24] See Allen v. Mac Tools Inc., 671 So. 2d 636, 642 (Miss.1996). [25] FED. R. CIV. P. 9(b); MISS. R. CIV. P. 9(b). [26] See, e.g., Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir.), cert. denied, ___ U.S. ___, 121 S. Ct. 567, 148 L. Ed. 2d 486 (2000) (citing Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d. Cir.1994)); MISS. R. CIV. P. 9(b), comment. [27] See House Sec. Am. Cpt. ¶ 5C. As explained previously, the House complaint is substantially similar in all relevant respects to the complaints in H. Johnson, Hill, Hunter, Southern and Williams. [28] See id. ¶¶ 30-34, including ¶¶ 31A-X. [29] See San Leandro Emergency Medical Group Profit Sharing Plan v. Philip Morris Companies, Inc., 75 F.3d 801, 812-13 (2d Cir.1996) (complaint insufficient where it created mere inference of fraud based on general allegations, and did not allege circumstances to show that defendants' knew their representations were false when made). [30] For instance, plaintiffs allege that "[t]he defendants fraudulently failed to disclose to plaintiff, health care providers and the general public that data from their own clinical trials showed that 2.2 % of Rezulin users showed liver damage." See House Am. Cpt. ¶ 31X. This allegation suffers from the same defects in specificity as almost all the other allegations of fraud. It fails to allege, for instance, that the sales representatives in particular knew of the results of Warner-Lambert's clinical trials or, if they did, that the sales representatives made specific statements to the plaintiffs at a particular time and place that falsely misrepresented the results of those clinical trials or fraudulently withheld information they knew to be material. [31] Shields, 25 F.3d at 1128 (quoting O'Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991)). [32] Plaintiffs advanced this theory at oral argument with reference to the Gannon case, but the theory would apply by implication to all instances in which the Court makes a fraudulent joinder determination based on deficiencies in pleadings that conceivably might be amended. [33] Poulos v. Naas Foods, Inc., 959 F.2d 69, 74 (7th Cir.1992). [34] Pampillonia, 138 F.3d at 461. [35] See Pullman Co. v. Jenkins, 305 U.S. 534, 537-38, 59 S. Ct. 347, 83 L. Ed. 334 (1939) (court should determine validity of removal based on pleadings in original complaint); Poulos, 959 F.2d at 74 (no fraudulent joinder where complaint failed to allege facts required to find liability under applicable state law, despite fact that plaintiff could have cured deficiencies in complaint by amendment); Kruso v. Int'l Telephone & Telegraph Corp., 872 F.2d 1416, 1424 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S. Ct. 3217, 110 L. Ed. 2d 664 (1990) (declining to consider potential allegations in proposed complaint because fraudulent joinder is determined on basis of pleadings at time removal was filed); McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987) (where plaintiffs alleged facts insufficient to state claim against non-diverse defendants, fact that plaintiffs had moved to amend their complaint to state a claim irrelevant to fraudulent joinder determination); Smith v. City of Picayune, 795 F.2d 482, 485 (5th Cir.1986) ("Generally, the right of removal is determined by the pleadings as they stand when the petition for removal is filed."); Vasura v. Acands, 84 F. Supp. 2d 531, 539 (S.D.N.Y.2000) (fraudulent joinder analysis made with reference to original complaint); Inman v. Daimler-Chrysler Corp., No. 00 CV 0134(SBC), 2000 WL 283016, at 6 (N.D.Ill. March 9, 2000) (fact that Illinois law allows pleadings to be amended at any time before judgment irrelevant to determination of fraudulent joinder; plaintiffs "had no chance of recovering" based on allegations in complaint, and did not attempt to amend or give indication as to how deficiencies could be cured); Sonnenblick-Goldman Co. v. ITT Corp., 912 F. Supp. 85, 90 (S.D.N.Y.1996) (joinder improper where plaintiff failed to meet Rule 9(b) pleading requirements because "before the Court can even evaluate the possibility of Plaintiff making out a claim of fraud there must be a Complaint that has been properly pled"); Waters v. State Farm Mutual Automobile Insurance Co., 158 F.R.D. 107, 109 (S.D.Tex.1994) (failure to satisfy Rule 9(b) pleading requirements and to specify a factual basis for recovery against non-diverse defendant "constitutes failure to state a claim and fraudulent joinder of that party"; speculation that evidence exists to support claim irrelevant to fraudulent joinder determination) (citing Doe v. Cloverleaf Mall, 829 F. Supp. 866, 870 (S.D.Miss.1993)); Mays v. United Insurance Co. of America, 853 F. Supp. 1386, 1388-89 (M.D.Ala.1994) (basing fraudulent joinder determination in part on whether complaint met Rule 9(b) requirements). But see Ratnesar v. Royal & Sunalliance Financial Services, No. 00-CV 1171 CRB, 2000 WL 769223, at 2 (N.D.Cal. June 9, 2000) ("[W]hile plaintiff's complaint does not allege that [defendant] made any representations to plaintiff, plaintiff represents in his motion that he can [so] allege.... Thus, the Court cannot conclude as a matter of law that plaintiff cannot possibly recover against [defendant]."). [36] Poulos, 959 F.2d at 74. [37] The elements of negligent misrepresentation are (1) a misrepresentation or omission of a material fact; (2) failure to exercise reasonable care on the part of the defendant; (3) reasonable reliance on the misrepresentation or omission; and (4) damages as a direct result of such reasonable reliance. Levens v. Campbell, 733 So. 2d 753, 760-61 (Miss.1999). [38] Courts often have applied this theory in the context of claims pled under Sections 11 and 12(a)(2) of the Securities Act of 1933, 15 U.S.C. §§ 77k(1), 771(a)(2). See, e.g., In re Ultrafem Inc. Securities Litigation, 91 F. Supp. 2d 678, 690 (S.D.N.Y.2000) (Rule 9(b) applicable where complaint made "classic fraud allegations ... of misrepresentations and omissions made with intent to defraud"); Schoenhaut v. American Sensors, Inc., 986 F. Supp. 785, 795 (S.D.N.Y.1997) ("it seems only fair that if plaintiffs have pled fraud, they must comply with the requirements of 9(b)") (citing Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3d. Cir.), cert. denied, 506 U.S. 934, 113 S. Ct. 365, 121 L. Ed. 2d 278 (1992); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990)). The reasoning of these and similar cases is persuasive here. [39] Hill Cpt. ¶¶ 22-24. All six Mississippi complaints contain identical allegations. [40] Arnona v. Smith, 749 So. 2d 63, 67 (Miss. 1999). [41] Hill Cpt. ¶¶ 22-28. [42] See Arnona, 749 So.2d at 67 (upholding dismissal of complaint alleging misrepresentation made to plaintiffs' purchasers, rather than plaintiffs). [43] MISS. CODE ANN. § 75-2-314. The Mississippi Products Liability Act ("MPLA") created an additional cause of action in tort for a breach of express warranty, see MISS. CODE ANN. § 11-1-63, but it did not preclude breach of implied warranty claims under the Mississippi UCC in products liability actions. See Childs v. General Motors Corp., 73 F. Supp. 2d 669, 672 (N.D.Miss.1999). [44] See McCurtis v. Dolgencorp, Inc., 968 F. Supp. 1158, 1161 (S.D.Miss.1997) (finding no cause of action for breach of warranty against sales representatives who "are not in the business of selling products but rather are employed by companies that are in the business of selling products...") (internal quotations omitted). See also Lobato v. Pay Less Drug Stores, Inc., 261 F.2d 406, 408 (10th Cir.1958) (drug store employee who transacted with and delivered defective bicycle to plaintiff was not "seller"; corporation was "seller" and employee was thus not personally liable). [45] In any products liability action, a plaintiff must establish a connection, however indirect, between the defendant and the defective product that caused plaintiff's injuries. See Johnson v. Parke-Davis, 114 F. Supp. 2d 522, 525 (S.D.Miss.2000) (no cause of action for breach of implied warranty where plaintiffs did not allege that they or their physicians purchased or received Rezulin from any of named sales representatives); Albritton v. Coleman Co., 813 F. Supp. 450, 454 (S.D.Miss. 1992) ("essential element of plaintiffs' case is the identification of the named defendant as the manufacturer or supplier of the defective product in question"). Without alleging that the sales representatives supplied the Rezulin that plaintiffs eventually bought, there is no allegation that the sales representatives supplied "the defective product in question." [46] See Frost Cpt Counts I, II, IV-VI. Defendants believe that the complaint alleges also breach of warranty claims against the sales representative, but that claim is specifically directed at the "defendant Manufacturers," see Frost Cpt Count III ¶ 5. [47] Carter v. Cantrell Machine Co., Inc., 662 So. 2d 891, 892 (Ala.1995) (internal citations omitted). [48] Ex Parte Michelin North America, Inc., No. 1990615(AHM), 2001 WL 29198, at * 3 (Ala. Jan. 12, 2001) (fraud); Ex Parte Dial Kennels of Alabama, Inc., 771 So. 2d 419, 421 (Ala. 1999) (fraudulent suppression). [49] Defendants argue also that plaintiff's fraud claim does not survive the death of her decedent under the Alabama survival statute, ALA. CODE § 6-5-462. The argument is somewhat puzzling, however. Under Alabama law, personal claims other than contract claims which were not filed prior to the decedent's death do not survive in favor of the decedent's personal representative. See id. See also Brooks v. Hill, 717 So. 2d 759, 763 (Ala.1998) ("unfiled claim sounding in tort will not survive the death of the person with the claim"). Hence, one would expect defendants to make the same argument as to all of the tort claims. But there is no need to pause on this anomaly. This action was filed after the death of the plaintiff's decedent. In consequence, the tort and fraud claims may be maintained, if at all, only under Alabama's wrongful death statute. ALA. CODE § 6-5-410. See Mattison v. Kirk, 497 So. 2d 120, 124-25 (Ala.1986), overruled on other grounds, Carbon Hill Mfg., Inc. v. Moore, 602 So. 2d 354 (Ala.1992) (only remedy for personal injuries causing death is under wrongful death statute). And contrary to defendants' contentions, it is clear that this action is one for wrongful death. For the proposition that the Alabama case is a survival rather than a wrongful death action, defendants rely on the first paragraph of the complaint, which states that "Plaintiff refers to the estate of William M. Frost and/or William M. Frost, deceased." However, many Alabama cases have allowed for wrongful death actions filed in the name of the administrator of the decedent's estate, and the Alabama Supreme Court has looked to the substance of the claim, rather than the wording of the caption, to determine whether it is a survival or wrongful death action. See, e.g., Mattison, 497 So.2d at 120 (wrongful death action filed by "Dorothy Mattison and Gary Mattison, as co-administrators of the Estate of Woodrow W. Mattison, deceased"); Miller v. Dobbs Mobile Bay, Inc., 661 So. 2d 203 (Ala. 1995) (insurance fraud action filed by "Joyce Miller, individually and as administratrix of the Estate of Mearl M. Miller, deceased" construed as survival action because insurance fraud cannot result in wrongful death). Here, the Alabama complaint alleges that the alleged fraud caused the death of plaintiff's decedent. See Cantley v. Lorillard Tobacco Co., Inc., 681 So. 2d 1057 (Ala.1996) (stating fraud claims in wrongful death action). This Court therefore regards the Alabama complaint as asserting a wrongful death claim. Accordingly, defendants' attack on the fraud claim as having been extinguished by the death of plaintiff's decedent is without merit. [50] Atkins v. American Motors Corp., 335 So. 2d 134, 139 (Ala.1976). [51] See Turner v. Azalea Box Co., 508 So. 2d 253, 254 (Ala.1987) (AEMLD applies only to manufacturers and sellers); Atkins, 335 So.2d at 139 (rejecting theory that retailer without knowledge of product's danger may be liable simply for "the mere selling of a defective product"); King v. S.R. Smith, Inc., 578 So. 2d 1285, 1287 (Ala.1991) (liability for failure to warn under AEMLD attaches only if defendant "knows or should know" of the product's danger). [52] See Flood Aff. ¶¶ 6, 7. Plaintiffs have not challenged the assertions in the affidavit. [53] The seven Mississippi cases are Hill v. Parke-Davis, No. 00 Civ 7634; Hunter v. Parke-Davis, No. 00 Civ 7635; Love v. Parke-Davis, No. 00 Civ 7629; Southern v. Parke-Davis, No. 00 Civ. 7636; Teague v. Parke Davis, No. 00 Civ. 7630; Armstrong v. Warner-Lambert Co., No. 00 Civ. 7632; and Williams v. Parke-Davis, No. 00 Civ. 7627. The Alabama cases are Gray v. Warner-Lambert Co., No. 00 Civ. 8501, and Gannon v. Warner-Lambert Co., No. 00 Civ 6069. The Texas case is Hernandez v. Parke-Davis, No. 00 Civ. 9033. The West Virginia case is Mahon v. Parke-Davis & Co., Inc., [sic] No. 00 Civ. 9039. The Louisiana case is Burnworth v. Nielson's Pharmacy, L.L.C., No. 01 Civ. 0049. The Court does not address the Teague case for lack of jurisdiction, see infra part VI. [54] This sentence and discussion does not extend to extrinsic dangers such as the possibility of interactions among drugs which the pharmacy knows the patient is taking at the same time, particularly where those drugs have been prescribed by different physicians. [55] See, e.g., Jones v. Irvin, 602 F. Supp. 399, 402 (S.D.Ill.1985) (applying state law finding no liability for pharmacists because "placing these duties to warn on the pharmacist would only serve to compel the pharmacist to second guess every prescription a doctor orders to escape liability"); Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455, 466 (Tex.App. 2000) (petition for review filed, Nov. 3, 2000) (pharmacist who accurately fills prescription not liable for harm caused by dangers inherent in drug); Walker v. Jack Eckerd Corp., 209 Ga.App. 517, 521, 434 S.E.2d 63, 67 (1993), cert. denied, Oct. 29, 1993 ("need for preserving, without interference of third parties, trusted physician-patient relationship" counsels rule that pharmacist has no duty to warn); Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 34, 178 Ill. Dec. 763, 605 N.E.2d 557, 560 (1992) ("consumers should principally look to their prescribing physician to convey the appropriate warnings regarding drugs, and it is the prescribing physician's duty to convey these warnings to patients"); Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 214, 584 A.2d 1383, 1386 (1991) ("If the manufacturer has no duty to directly warn patients of the risks of drugs, it would indeed be incongruous to hold pharmacists to such a duty in the dispensing of drugs."); Nichols v. Central Merchandise, Inc., 16 Kan. App. 2d 65, 67, 817 P.2d 1131, 1133 (1991) (learned intermediary doctrine shields pharmacists from liability); McKee v. American Home Products Corp., 113 Wash.2d 701, 711, 782 P.2d 1045, 1050-51 (1989) (same); Stebbins v. Concord Wrigley Drugs, Inc., 164 Mich.App. 204, 218, 416 N.W.2d 381, 387-88 (1987) ("pharmacist has no duty to warn the patient of possible side effects of a prescribed medication where the medication is proper on its face and neither the physician not the manufacturer has required that any warning be given to the patient by the pharmacist"); Ingram v. Hook's Drugs, Inc., 476 N.E.2d 881, 886 (Ind.Ct.App. 1985) (learned intermediary doctrine shields pharmacists from liability); Pysz v. Henry's Drug Store, 457 So. 2d 561, 562 (Fla.Dist.Ct. App.1984) (no liability for pharmacists who properly fill a lawful prescription because "it is the physician who has the duty to know the drug that he is prescribing and to properly monitor the patient"). See also David J. Marchitelli, Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R. 5th 393 (1996) (concluding based on multistate survey that "courts have been reluctant to hold pharmacists liable for injuries caused by drugs accurately dispensed according to the terms of valid prescriptions"). [56] E.g., Robinson v. Williamson, 245 Ga.App. 17, 19, 537 S.E.2d 159, 161 (2000) (claims against a pharmacist for breach of warranty require a showing of negligence amounting to professional malpractice, such as failing to properly fill prescription); In re New York County Diet Drug Litigation, 262 A.D.2d 132, 133, 691 N.Y.S.2d 501, 502 (1st Dept.1999) (where no allegation that pharmacist failed to fill prescriptions precisely as directed, no basis to hold pharmacists liable under theories of negligence, breach of warranty or strict liability); Murphy v. E.R. Squibb & Sons, Inc., 40 Cal. 3d 672, 679, 221 Cal. Rptr. 447, 710 P.2d 247, 252 (1985) (pharmacists sell prescription drugs only on order of doctors and therefore are immune from strict liability that would attach to ordinary sellers). See also Marchitelli, 44 A.L.R. 5th at 393 ("In cases [where] plaintiffs have asserted claims based on negligence, strict products liability, breach of warranty, statutory provisions regulating the pharmacy profession, and pharmacy trade association standards, ... successes [have been] limited largely to cases in which the circumstances indicate that the defendant pharmacists knew or should have known that the particular plaintiff was at risk."). For a discussion of the legal deficiencies specific to breach of warranty claims against pharmacists, see infra notes 7375 and accompanying text. [57] Dooley v. Everett, 805 S.W.2d 380 (Tenn. Ct.App.1990). [58] Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 508 A.2d 1247 (1986), appeal denied, 514 Pa. 648, 524 A.2d 494 (1987). [59] Lasley v. Shrake's Country Club Pharmacy, Inc., 179 Ariz. 583, 880 P.2d 1129 (1994); Horner v. Spalitto, 1 S.W.3d 519 (Mo.Ct.App. 1999), application for transfer to Supreme Court denied, Aug. 31, 1999. [60] See MISS. CODE ANN. § 11-1-63(f) ("In any action alleging that a product is defective because of its design ... the ... product seller shall not be liable if the claimant does not prove ... that at the time the product left the control of the ... seller ... [the seller] knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought ..."). [61] E.g., Hill Cpt ¶ 5C (emphasis added). [62] Id. [63] See Louis v. Wyeth-Ayerst Pharm. Inc., No. 5:00 CV 120LN, at 4-5 (S.D.Miss. Sept. 25, 2000) (because "knowledge or reason to know is a necessary requisite for a claim of failure to warn," and because "the complaint, the major theme of which is the manufacturers' intentional concealment of the true risks of the drug(s) ... belies any suggestion of knowledge, or reason to know by these resident defendants ... it is plain that the complaint on the whole ... [does not allege] any factual basis for the conclusion that any of the pharmacy defendants had any knowledge or any reason to know of any of the danger associated with the products ..."). [64] MISS. CODE ANN. § 73-21-69 et seq. The five cases are Hill, Hunter, Love, Southern, and Teague. Again, the Court does not here consider Teague for lack of jurisdiction. [65] By "records," it is unclear whether plaintiffs mean medical records (although it is doubtful a pharmacist would have access to medical records) or pharmaceutical records. [66] See, e.g., Hill Am. Cpt. ¶¶ 43-45. The allegations in the other four complaints are identical. [67] Plaintiffs allege also failure to use ordinary care in design and manufacture, but these claims do not apply to the pharmacy defendants. [68] See Miss. CODE ANN. § 11-1-63 (holding manufacturer or seller of product liable "in any action for damages caused by a product") (emphasis added). While the MPLA does not apply to actions for implied warranty, the Mississippi UCC attaches an implied warranty of merchantability and fitness to goods sold by one who is a merchant with respect to goods of that kind. See MISS. CODE ANN. §§ 75-2-314, 75-2-315. Without showing that the pharmacist defendants actually sold Rezulin to plaintiffs, there is no cause of action for breach of implied warranty. [69] See MISS. CODE ANN. § 75-2-313(1)(a). [70] See Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So. 2d 324, 327 (Miss.1988) (where representation made after sale, and where plaintiff admitted that at time of purchase he did not consider goods to be under warranty, no breach because warranty "was not part of the basis of the bargain," within meaning of statute). [71] See MISS. CODE ANN. § 75-2-313 comment ¶ 3. [72] See MISS. CODE ANN. §§ 75-2-314, 75-2-315. [73] Murphy, 221 Cal. Rptr. 447, 710 P.2d at 251. [74] Id. (citing RESTATEMENT (SECOND) TORTS, § 402A, comment k (1963-64 Main Vol.), which exempts "sellers" of prescription drugs from strict products liability in part based on the rationale that such "sellers" do not chose the product for the consumer). [75] See Coyle, 526 Pa. at 217, 584 A.2d at 1387 (refusing to find pharmacists strictly liable for dispensing defective drugs because "[i]t is not the pharmacist on whom the public is forced to rely to obtain the products they need"); Presto v. Sandoz Pharmaceuticals Corp., 226 Ga.App. 547, 551, 487 S.E.2d 70, 75 (1997), cert. denied, Jan. 5, 1998 ("because the patient is legally deemed to rely on the physician and not the package label for [a] warning, [plaintiffs] cannot show they were `relying on the seller's skill or judgment to select or furnish suitable goods,' as is required to prove an implied warranty of fitness"); Makripodis v. Merrell-Dow Pharmaceuticals, 361 Pa.Super. 589, 593-94, 523 A.2d 374, 376 (1987) (druggist does not warrant that prescription drugs are fit for "ordinary uses," as use of drug is a decision made by physician); Bichler v. Willing, 58 A.D.2d 331, 333, 397 N.Y.S.2d 57, 58-59 (1st Dept.1977) (warranties not implied in sale of prescription drugs, as patient places confidence in doctor's skill, not pharmacist's); McLeod v. W.S. Merrell Co., 174 So. 2d 736, 739 (Fla.1965) (a transaction involving a prescription drug "is not one out of which a warranty, even by the most modern standards, would be implied"); Batiste v. American Home Products, 32 N.C.App. 1, 11-12, 231 S.E.2d 269, 276, review denied, 292 N.C. 466, 233 S.E.2d 921 (1977) (a pharmacy is not liable under the UCC and general warranty principles for injury arising out of a prescription drug). [76] See Gray Cpt ¶¶ 20, 23; Gannon Cpt ¶ 5 (naming pharmacy as defendant). The Gannon complaint makes no allegations specifically against the pharmacy defendant, but the only possible allegation relevant to the pharmacy defendant is the failure to warn. [77] See Sanks v. Parke-Davis, No. 00-S-1122-E (CSC) (M.D.Ala. Oct. 30, 2000); Lansdell v. American Home Products Corp., No. CV-99-S-2110-NE (N.D. Ala. Oct 26, 1999); Harrell v. Wyeth-Ayerst Labs, No. 98-1194-BH-M (S.D.Ala. Feb. 1, 1999); Orr v. Wyeth-Ayerst Labs Co., No. 98 CV 3000-DIET (Ala. Cir. Court, Mobile County) (Aug. 2, 1998). [78] See supra notes 55-59 and accompanying text. [79] See Gray Cpt ¶ 13(d) ("The Pharmaceutical Defendants engaged in fraudulent and bad faith activities in promoting the drug Rezulin in every aspect of its development, approval and marketing"); ¶ 13(3) ("The Pharmaceutical Defendants knew of the dangerous toxicity associated with Troglitazone [i.e. Rezulin] and intentionally modified and manipulated critical data to disguise Troglitazone's dangerous properties ..."); ¶¶ 19(d)(5) and 19(d)(7) ("The Pharmaceutical Defendants were negligent in the design, labeling, marketing, sale, testing and/or distribution of Rezulin in that they ... failed to timely warn the medical community and/or Plaintiffs regarding the risks associated with Rezulin ... [and] that the drug had not been adequately tested."). See Gannon Cpt ¶ 50(h) ("[Defendants] recklessly, falsely and/or deceptively represented or knowingly omitted, suppressed or concealed facts of materiality regarding the safety and efficacy of Rezulin from prescribing physicians and the consuming public ...."). [80] 502 So. 2d 702 (Ala.1987). [81] Id. at 705. [82] Guillory v. Dr. X, 679 So. 2d 1004, 1010 (La.App. 3 Cir.1996) (citing Hayes v. Travelers Ins. Co., 609 So. 2d 1084 (La.App. 2 Cir.1992), writ of appeal denied, 613 So. 2d 975 (La. 1993); Hendricks v. Charity Hosp. of New Orleans, 519 So. 2d 163 (La.App. 4 Cir.1987)). See also Pilet v. Ciba-Geigy Corp., No. 96 CV 021, 1996 WL 89262, at 3 (E.D. La. Feb 28, 1996); Kinney v. Hutchinson, 449 So. 2d 696, 698 (La.App. 5 Cir.1984). [83] Hernandez Cpt ¶ VII. [84] See Morgan, 30 S.W.3d at 461-69. [85] See id. (citing Ramirez v. Richardson-Merrell, Inc., 628 F. Supp. 85, 86-87 (E.D.Pa. 1986); Batiste, 32 N.C.App. at 11, 231 S.E.2d at 275; Bichler, 58 A.D.2d at 333-35, 397 N.Y.S.2d at 58-60). [86] W. Va.Code § 30-5-12. [87] In this respect the Court relies on the assertion in plaintiffs' original brief in support of their motion to remand that Oblena is a physician. Defendants do not refute the assertion. [88] The cases are Hill v. Parke-Davis, No. 00 Civ. 7634, House v. Parke-Davis, No. 00 Civ. 7628, Hunter v. Parke-Davis, No. 00 Civ. 7635, H. Johnson v. Parke-Davis, No. 00 Civ. 7631, Southern v. Parke-Davis, No. 00 Civ. 7636, Teague v. Parke-Davis, No. 00 Civ. 7630, and Love v. Parke-Davis, No. 00 Civ. 7629. [89] See supra note 1 and accompanying text. [90] See Bradford v. Harding, 284 F.2d 307, 309 (2d Cir.1960). [91] Avon Products, Inc. v. A/J Partnership, No. 89 Civ. 3743(PNL), 1990 WL 422416, at 2 (S.D.N.Y. March 1, 1990) (quoting 14A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2D § 3731 (1985)). See also McKay v. Point Shipping Corp., 587 F. Supp. 41, 42 (S.D.N.Y.1984) (agreement of fraudulently joined party not necessary for removal) (citing Broidy v. State Mutual Life Assurance Co., 186 F.2d 490, 492 (2d Cir. 1951)). [92] No. 00 Civ. 7672. [93] The cases are Armstrong v. Warner-Lambert Co., No. 00 Civ. 7632, Hill v. Parke-Davis, No. 00 Civ. 7634, Hunter v. Parke-Davis, No. 00 Civ. 7635, and Southern v. Parke-Davis, No. 00 Civ. 7636. [94] United Food & Commercial Workers Union v. CenterMark Properties Meriden Sq. Inc., 30 F.3d 298, 305 (2d Cir.1994) (internal quotations omitted). [95] See Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982) ("The jurisdictional determination is to be made on the basis of the plaintiff's allegations, not on a decision on the merits."). [96] United Food, 30 F.3d at 300 (internal quotations omitted). [97] See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S. Ct. 586, 82 L. Ed. 845 (1938). [98] United Food, 30 F.3d at 305. [99] Armstrong Cpt ¶ 62. [100] Armstrong Cpt ¶ 32. [101] See def. Mem. Ex. B (comparing injuries alleged in Armstrong to those alleged in House, H. Johnson, Love and Teague). The comparison shows that the injuries alleged are substantially the same. [102] Hill, Hunter, Southern Cpts ¶ 13(G). [103] Notably, these actions were all filed by the same counsel. See DeAguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993) (defendants "easily met" their burden "by showing that many of the same plaintiffs in this action pled damages of up to $5,000,000 in other [fora] for the same injuries"). [104] See Tr. Jan. 25, 2001 at 30. [105] See Illinois v. City of Milwaukee, 406 U.S. 91, 100, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972) (where state is plaintiff in suit involving federal rights, "those suits may be brought in or removed to the [federal] courts without regard to the character of the parties.") (citing Ames v. Kansas, 111 U.S. 449, 470, 4 S. Ct. 437, 28 L. Ed. 482 (1884)); Regents of the University of Minnesota v. Glaxo Wellcome, Inc., 58 F. Supp. 2d 1036, 1040 (finding majority of cases have found no bar to removal); New York v. Citibank, N.A., 537 F. Supp. 1192, 1197 (S.D.N.Y.1982) ("it is clear that an action can be removed notwithstanding the fact that a state is a plaintiff") (citing Ames; 1A J. MOORE & J. WICKER, MOORE'S FEDERAL PRACTICE § 0.160, at 192 (2d ed.1981)). Contra, California v. Steelcase, Inc., 792 F. Supp. 84 (C.D.Cal.1992). [106] See also In re Copper Antitrust Lit., No. 1303, C.A. No. 1:98-4067, 3:99-377, 1999 U.S. Dist. LEXIS 20178(JFN) (JPML Dec. 22, 1999) (vacating order issued by transferor court one day after transferee court clerk's office stamped the transfer order "rec'd/filed"); JPML Rule 1.5. [107] See def. Compend. of Auth. Ex. 31. (copy of docket sheet indicating date of filing of transfer order). [108] 419 F.2d 303 (D.C.Cir.1969). [109] 513 F.2d 129 (10th Cir.1975). [110] See FED. R. CIV. P. 58 ("a judgment is effective only when ... entered as provided in Rule 79(a)"). FED. R. Civ. P. 79(a) in turn requires the clerk to docket judgments. [111] See FED. R. Civ. P. 54(b). [112] See 28 U.S.C. § 1447(d). Although the Supreme Court has limited Section 1447(d) to remand orders based on a timely raised defect in removal procedure or lack of subject matter jurisdiction, see Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S. Ct. 494, 133 L. Ed. 2d 461 (1995), Judge Lee remanded Teague based on lack of subject matter jurisdiction. His order therefore was unappealable. [113] 863 F.2d 428 (5th Cir.1989). [114] Id. at 429. [115] R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135 (1936)).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615000/	847 P.2d 218 (1992) SOUTH PARK AGGREGATES, INC., a Colorado corporation, Plaintiff-Appellee and Cross-Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, Defendant-Appellant and Cross-Appellee. No. 91CA1310. Colorado Court of Appeals, Div. II. December 17, 1992. Rehearing Denied January 14, 1993. 220 Richard J. Lesch, Denver, for plaintiff-appellee and cross-appellant. Burg & Eldredge, P.C., David P. Hersh, Michael S. Burg, Denver, for defendant-appellant and cross-appellee. Opinion by Judge PIERCE. In this action for breach of contract and bad faith breach of an insurance contract, Northwestern National Insurance Co. (Northwestern), a Wisconsin insurance firm, appeals from a judgment entered upon a jury verdict in favor of South Park Aggregates, Inc. (South Park). South Park cross-appeals the judgment. South Park was engaged in gravel production in Fairplay, Colorado. As part of its operation, South Park employed a front-end loader that was insured by Northwestern under an "all risk" policy, which provided coverage against "all risk of direct physical loss or damage from any external cause except as hereafter provided." Among the losses excluded from coverage were those resulting from "mechanical breakdown" or "due to infidelity of Insured's employees or persons to whom the insured property is entrusted." On July 2, 1987, the oil plug fell out of South Park's loader, causing the engine to seize from loss of oil. Suspecting that the loader had been vandalized, Richard Stewart, the president of South Park, reported the incident to the Park County Sheriff's Department. The deputy investigating the incident, with whom Stewart had had a prior altercation, later filed a report concluding that Stewart's report of vandalism was unfounded. 221 South Park filed a claim with Northwestern to recover the cost of repairs to the loader and rental costs for a replacement loader. Shortly thereafter, Northwestern hired an insurance adjuster to investigate the claim. Following the adjuster's investigation, Northwestern denied South Park's claim on the grounds that the damage to the loader had resulted from "mechanical breakdown" or "infidelity of Insured's employees" and that, therefore, it was not covered under the insurance contract. South Park was unable to borrow money to repair the loader or to pay for a rental loader. Subsequently, liens on its equipment were foreclosed, forcing South Park out of business. South Park initiated this lawsuit against Northwestern, and the case was tried to the jury on theories of breach of contract and bad faith breach of an insurance contract. Although the trial court approved South Park's tendered jury instruction on the basic measure of damages for a breach of contract claim, the jury was not given any instruction on the issue. Neither South Park nor Northwestern objected to the trial court's failure to give such an instruction. Subsequently, the jury awarded South Park $915,000 in damages on its breach of contract claim, $915,000 in damages on the bad faith claim, and exemplary damages in the amount of $457,000. The trial court then entered judgment in favor of South Park in the amount of $915,000 plus $457,000 in exemplary damages. In addition, the trial court granted South Park prejudgment interest on $11,499.73 of its compensatory damages. Northwestern's motions for judgment notwithstanding the verdict or, in the alternative, a new trial, were denied. I. On appeal, Northwestern first contends that the trial court erred in failing to instruct the jury as to the measure of damages on South Park's breach of contract claim. As a result, it argues, the jury applied the instruction on the measure of damages for bad faith breach of a contract of insurance twice, awarding South Park $915,000 on both the breach of contract claim and the bad faith claim. Therefore, Northwestern concludes, the judgment of the trial court must be set aside and a new trial granted. We disagree. If neither party objects to the jury instructions given, and no instruction as to the measure of damages is tendered, it is the duty of the trial court to instruct the jury as to the proper measure of damages on its own motion. Kendall v. Hargrave, 142 Colo. 120, 349 P.2d 993 (1960). Failure to instruct the jury as to the proper measure of damages is reversible error. See Maloy v. Griffith, 125 Colo. 85, 240 P.2d 923 (1952). Nevertheless, a judgment will not be reversed unless error is shown to be prejudicial to a substantial right of the aggrieved party. Poudre Valley Rural Electric Ass'n v. City of Loveland, 807 P.2d 547 (Colo.1991). Failure to provide a particular jury instruction is harmless error if the instructions given sufficiently cover the points sought to be developed in the tendered instructions. Clark v. Giacomini, 85 Colo. 530, 277 P. 306 (1929). Here, although the jury received no instruction as to the proper measure of damages for a breach of contract claim, it was instructed as to the proper measure of damages for bad faith breach of an insurance contract. That instruction provided as follows: If you find in favor of the Plaintiff, South Park Aggregates, Inc., you shall award as its actual damages, insofar as they have been proved by a preponderance of the evidence and insofar as they were caused by Defendant's bad faith breach of contract, an amount which will reasonably compensate the Plaintiff for its damages and losses, if any. In determining such damages, you shall consider any economic losses incurred to the present time or which will probably be incurred in the future, including loss of value of the business to 222 the extent that those items of damage have been proved by the evidence. This instruction was an accurate statement of the law regarding the measure of damages for a claim of bad faith breach of an insurance contract. See CJI-Civ.3d 25:6 (1989). The jury was also provided with special verdict forms for both the breach of contract and the bad faith claims. Following deliberations, the jury answered "yes" to each of the interrogatories on Special Verdict Form B relating to the breach of contract claim, and "yes" to each of the interrogatories on Special Verdict Form D relating to the bad faith claim. The jury then awarded $915,000 on each of the claims, plus $457,000 in exemplary damages. Subsequently, the trial court entered judgment in favor of South Park in the amount of $915,000, plus $457,000 in exemplary damages, although it did not state under which theory judgment was entered. Under these circumstances, we conclude that the trial court's failure to instruct the jury as to the measure of damages for breach of contract was harmless error. The jury was properly instructed on the bad faith claim and entered appropriate findings on Special Verdict Form D to support its award of $915,000 in damages for bad faith breach of an insurance contract. See Stewart & Stevenson Services, Inc. v. Pickard, 749 F.2d 635, 644 (11th Cir.1984) ("[W]here an award of damages is authorized under two alternate theories of recovery, and the jury's finding of liability on one theory under a special interrogatory is supported by the evidence, the verdict and award will be affirmed on appeal."); Cf. Mosher v. Schumm, 114 Colo. 441, 166 P.2d 559 (1946) (if a case is submitted to a jury on two theories of recovery, one valid and the other not, and it is impossible to distinguish which theory the jury based its award on from the general verdict, the judgment must be reversed). Therefore, the failure to provide an instruction as to the measure of damages for breach of contract in this case does not warrant reversal. II. Northwestern next contends that it is entitled to a new trial because the jury's damage award was so unconscionably excessive as to indicate that it was influenced by bias, prejudice, or passion. Again, we disagree. The amount of damages to be awarded is within the sole province of the jury, and its award will not be disturbed unless it is completely unsupported by the record. Smith v. Hoyer, 697 P.2d 761 (Colo.App.1984). A jury verdict may not be set aside on grounds of passion, prejudice, or corruption unless damages are "`so outrageous as to strike everyone with the enormity or injustice of them.'" Higgs v. District Court, 713 P.2d 840, 861 (Colo. 1985) (quoting Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983)). Here, South Park presented evidence that the damaged loader was valued at $60,000 and other equipment owned by South Park was valued at $286,500. In addition, South Park presented evidence that its processed inventory was worth between $357,000 to $640,500. Finally, South Park presented evidence that the cost of repairing the loader and renting a replacement was approximately $20,000. Deducting from this amount the $66,000 South Park owed creditors on its equipment, South Park's total damages from the loss of its business, based on this evidence, ranged from approximately $675,000 to $941,000. Thus, there is support in the record for the award of damages, and it is binding on appeal. See Smith v. Hoyer, supra. III. Northwestern next contends that the jury did not understand or ignored its instructions because it awarded damages on both the breach of contract claim and the bad faith claim, despite having been instructed that damages may be awarded only once for the same losses. Further, Northwestern argues, because the jury did 223 not understand its instructions, the trial court's judgment in the amount of $915,000, instead of the $1,830,000 awarded by the jury, constituted a material alteration of the verdict. Therefore, Northwestern asserts, it is entitled to a new trial. We disagree. Even if we assume that the jury's award of $915,000 on both the breach of contract and bad faith claims was inconsistent, such inconsistency should be resolved based upon the instructions given if it is possible to do so without violating the express intent of the jury. Moreover, if it is possible to resolve an inconsistency in keeping with the jury's intent, then any change in the verdict by the trial court is deemed to be a change in form and not substance, and reversal is not mandated. Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo.App.1985). In Weeks v. Churchill, 44 Colo. App. 520, 615 P.2d 74 (1984), in an assault and battery action against a bartender and his employer, the jury awarded the plaintiff $21 in damages against the employee and $1500 in damages against the employer. The trial court then amended the verdict and entered judgment jointly and severally against both defendants in the amount of $1521. Finding that the trial court's amendment was consistent with the intent of the jury to hold both defendants liable and to award plaintiff damages in the amount of $1521, a division of this court affirmed the judgment as a change in the form of the verdict, and not the substance. This ruling has analogous applicability here. Here, although the two claims contained different elements, a finding that Northwestern breached its contract with South Park was a condition precedent to a finding of bad faith breach of an insurance contract. The jury's answers to Special Verdict Forms B and D indicate that the jury found that the elements of both breach of contract and bad faith breach of a contract of insurance were satisfied. In addition, although it would have been possible for the jury to award damages for breach of contract and no damages or nominal damages for bad faith, the jury awarded compensatory and exemplary damages on the bad faith claim. Thus, it is clear that the jury intended South Park to receive damages on its bad faith claim. Because compensatory damages could not be awarded on both claims, the trial court appropriately entered judgment in favor of South Park in the amount of $915,000. This was consistent with the intent of the jury, and therefore, it did not constitute an alteration in the substance of the verdict which would warrant reversal. See Weeks v. Churchill, supra. IV. Northwestern next argues that the trial court erred in permitting South Park to present, through the testimony of Stewart, certain out-of-court statements made by the independent adjuster hired by Northwestern concerning whether the damage to the loader constituted "mechanical breakdown" within the meaning of the insurance policy. While Northwestern concedes that the adjuster was its agent for purposes of making a damage appraisal only, it contends that he was not empowered to make coverage determinations. Therefore, it argues, the adjuster's statements were not admissions of an agent made "within the scope of his agency or employment" as required by CRE 801(d)(2)(C). Moreover, Northwestern maintains that the erroneous admission of these statements was prejudicial because the applicability of the "mechanical breakdown" exclusion was central to both the breach of contract and bad faith claims. We perceive no error in the trial court's ruling. An out-of-court statement by an agent is admissible against the principal as an admission if the statement concerns a matter within the scope of the agent's agency and is made during the existence of the agency relationship. Westland Distributing, Inc. v. Rio Grande Motorway, Inc., 38 Colo. App. 292, 555 P.2d 990 (1976); CRE 801(d)(2)(C). The agent need not be specifically authorized to make the declaration to a third party to render it admissible 224 against the principal. See Crawford v. Garnier, 719 F.2d 1317 (7th Cir.1983) (report of agent admissible although agent was not authorized to make statements to anyone other than principal); M. Graham, Handbook on Federal Evidence § 801.23 at 791 (3rd ed. 1991). Whether an adequate foundation has been laid for the admission of evidence is a matter within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse thereof. See Pyles-Knutzen v. Board of County Commissioners, 781 P.2d 164 (Colo.App. 1989). Here, based on the adjuster's testimony that Northwestern had sent him to the Park County Sheriff's office to investigate South Park's claim and that he had maintained a correspondence with Northwestern concerning the amount and nature of the damage, the trial court concluded that the adjuster's agency encompassed not only the appraisal of damage, but also an investigation into whether the claim was compensable. Thus, the trial court ruled that anything the adjuster had told Stewart "at any point during his investigation of [the] claim" was admissible as an admission against Northwestern. Moreover, Stewart did not testify, as Northwestern suggests, that the adjuster had given him an opinion as to the applicability of the "mechanical breakdown" exclusion to South Park's claim. At trial, Stewart testified only that the adjuster had told him that "he'd been around this heavy equipment long enough to know if that oil plug stayed in that long, it didn't come out by itself." Because there is adequate support in the record for the admission of the adjuster's out-of-court statements, the judgment will not be disturbed. See Pyles-Knutzen v. Board of County Commissioners, supra. V. We also reject Northwestern's contention that the trial court erred in refusing to grant its motion for judgment notwithstanding the verdict on South Park's claims for exemplary damages and bad faith. A jury's verdict may be set aside and judgment notwithstanding the verdict entered only if, when viewed in the light most favorable to the non-moving party, the evidence is such that reasonable persons could not reach the same conclusion as the jury based on the evidence presented. Alzado v. Blinder, Robinson & Co., 752 P.2d 544 (Colo.1988); Meiter v. Cavanaugh, 40 Colo. App. 454, 580 P.2d 399 (1978); C.R.C.P. 59(e). A. Initially, Northwestern contends that South Park presented no evidence of willful or wanton conduct or "evil intent" on the part of Northwestern. Thus, it concludes, as a matter of law, the jury could not have found beyond a reasonable doubt that Northwestern acted with a wrongful motive which would justify an award of exemplary damages. We disagree. Exemplary damages may be recovered only as provided by statute. Farmers Group, Inc. v. Trimble, 768 P.2d 1243 (Colo.App.1988), § 13-21-102, C.R.S. (1987 Repl.Vol. 6A). To support an award of exemplary damages, a party must establish its claim by proof beyond a reasonable doubt. Vogel v. Carolina International, Inc., 711 P.2d 708 (Colo.App.1985); § 13-25-127(2), C.R.S. (1987 Repl.Vol. 6A). Exemplary damages may be recovered on a claim of bad faith breach of an insurance contract if the breach is accompanied by circumstances of fraud, malice, or willful and wanton conduct. Farmers Group, Inc. v. Trimble, supra. Malice or wanton conduct may be established by evidence that the defendant knew or should have known that injury would result from its actions. Bodah v. Montgomery Ward & Co., 724 P.2d 102 (Colo.App.1986). Here, South Park presented evidence that Northwestern was aware that the damage to the loader was a probable result of vandalism. The independent adjuster's report submitted to Northwestern, which was admitted into evidence at trial, 225 concluded that the "mechanical breakdown" of the loader occurred as a result of the vandalism. In addition, notes from the claim file of Northwestern's own insurance adjuster, which were also admitted at trial, indicated that there "[a]ppears to be tampering with the [oil] plug, not by insured," and "we can't prove insured is the one." In another note, which referred to the Park County sheriff's report, Northwestern's adjuster wrote, "I said it looks like cop is going out of his way to not show vandalism[independent adjuster] agreed." Moreover, South Park presented evidence that Northwestern was aware of the consequences of its denial of its claim. A person who leased a replacement loader to South Park testified that he had contacted Northwestern's adjuster and informed him that he could not lease the loader to South Park if Northwestern did not pay for the rental and that South Park would likely be driven out of business without the loader. Thus, there is substantial evidence in the record, when viewed in the light most favorable to South Park, that would support a jury finding of willful and wanton conduct beyond a reasonable doubt. Consequently, the trial court did not err in denying the motion for judgment notwithstanding the verdict. See Bodah v. Montgomery Ward & Co., supra. B. Northwestern also contends that the trial court erred in refusing to enter judgment notwithstanding the verdict on South Park's bad faith breach of an insurance contract claim. Relying on Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo.1985), it argues that South Park failed to present the requisite "objective" testimony as to the industry standard of care in handling insurance claims. Northwestern also argues that there was no evidence that it had acted in bad faith because there was "an arguable basis" for denying South Park's claim. We disagree. In Savio, our supreme court established the principle that: an insurer acts in bad faith in delaying the processing of or denying a valid claim when the insurer's conduct is unreasonable and the insurer knows that the conduct is unreasonable or recklessly disregards the fact that the conduct is unreasonable. Travelers Insurance Co. v. Savio, supra, 706 P.2d at 1275. Whether an insurer has acted unreasonably in denying or delaying approval of a claim must be "determined on an objective basis, requiring proof of the standards of conduct in the industry." Travelers Insurance Co. v. Savio, supra, 706 P.2d at 1275. Here, South Park presented expert testimony from a claim consultant with over twenty years of experience in the insurance industry. He testified that certain "industry standards" govern the handling of insurance claims and that the reasonableness of an insurance adjuster's actions must be measured against "the things an adjuster ordinarily does and reasonably does." He further testified that it is unreasonable for an insurer to "operate without facts or to have the facts in the file and to ignore them." Applying these standards to South Park's claim, South Park's expert concluded that Northwestern had acted unreasonably in denying the claim. Based on his experience in dealing with similarly-worded insurance contracts, he testified that there was no reasonable basis for the application of the "mechanical breakdown" exclusion here, because Northwestern was aware that an oil plug would not come loose if properly tightened and that the plug here had been "checked" prior to the time the claim arose. In addition, he testified that while an adjuster may ordinarily take a police report at face value, there was substantial evidence of bias in the Park County sheriff's report which would cast doubt upon its reliability. South Park's expert also testified that there was no reasonable basis for the "infidelity of Insured's employees" exclusion. He testified that "entrustment from an insurance standpoint would have to be well documented." Here, he testified, Northwestern's investigation did not document any evidence which would reasonably establish 226 that the damage to the loader resulted from the conduct of South Park's employees to whom the loader had been entrusted. Finally, South Park's expert testified that anyone who looked at the review memo and claim file must have realized that the "mechanical breakdown" and "infidelity of Insured's employees" exclusions could not apply, yet Northwestern applied those exclusions in denying South Park's claims. Viewing these facts in the light most favorable to South Park, reasonable jurors could have reached different conclusions as to whether Northwestern acted in bad faith in denying South Park's claim. Therefore, the trial court did not err in refusing to set aside the jury's verdict. Meiter v. Cavanaugh, supra. Northwestern also contends that the trial court erred in refusing to give its tendered instruction on the bad faith claim and, as a result, the jury was not properly instructed as to the elements of the cause of action as stated in Savio. We disagree. The form of instructions given a jury at trial is a matter within the discretion of the trial court, and it is not error for the court to refuse a tendered instruction, even if it is correct in legal effect, if the other instructions given adequately informed the jury of the applicable law. States v. R.D. Werner Co., 799 P.2d 427 (Colo.App.1990). Here, the jury was given the following instruction, modeled after CJI-Civ.3d 25:2 (1989), as to South Park's bad faith claim: In order for the Plaintiff, South Park Aggregates, Inc., to recover from the Defendant, Northwestern National Insurance Company, on its claim of bad faith breach of an insurance contract, you must find all the following have been proved: 1. The Plaintiff incurred damages or losses; 2. The Defendant acted unreasonably in denying payment of the Plaintiff's claim; 3. The Defendant knew such position was unreasonable or the Defendant recklessly disregarded the fact that its position was unreasonable; and 4. The Defendant's unreasonable position was a cause of the Plaintiff's damages or losses. If you find that any one or more of these propositions have not been proved by a preponderance of the evidence, then your verdict must be for Defendant. On the other hand, if you find that all of these propositions have been proved by a preponderance of the evidence, then your verdict must be for the Plaintiff. Although the instruction given required the jury to find that Northwestern had "acted unreasonably" in denying South Park's claim, rather than requiring, as Northwestern suggests, a finding that there was "no reasonable basis" for denying the claim, the instruction was consistent with the language and intent expressed in Savio. Therefore, the trial court did not err in refusing to give Northwestern's tendered instruction on the bad faith claim. See States v. R.D. Werner Co., supra. VI. On cross-appeal, South Park contends the trial court erred in awarding prejudgment interest on only $11,499.73 of its compensatory damages, the amount of the claim which Northwestern refused to pay. South Park contends that § 5-12-102, C.R.S. (1992 Repl.Vol. 2) permits an award of prejudgment interest on compensatory damages which flow from a wrongful withholding of money or property belonging to the plaintiff as well as money or property actually withheld from the plaintiff. South Park concludes, therefore, that it is entitled to prejudgment interest on its entire award of compensatory damages. We disagree. The right to prejudgment interest, independent of an agreement to pay it, is statutory. See York Plumbing & Heating Co. v. Groussman Investment Co., 166 Colo. 382, 443 P.2d 986 (1968); § 5-12-102, C.R.S. (1992 Repl.Vol. 2). 227 Section 5-12-102(1), C.R.S. (1992 Repl. Vol. 2) provides, in pertinent part, that: (a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of the wrongful withholding to the date of payment or the date judgment is entered, whichever first occurs; or, at the election of the claimant, (b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs. (emphasis added). Because the phrase "wrongfully withheld" is not defined in the statute, we must ascertain and give effect to the intent of the General Assembly in determining whether § 5-12-102 permits an award of prejudgment interest on compensatory damages resulting from a wrongful withholding or limits prejudgment interest to the amount actually withheld. See Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo.1984). In determining legislative intent, we must first look to the language of the statute itself. If the language of the statute is unclear, we may look to rules of statutory construction to determine the objective sought by the legislation. People v. Terry, 791 P.2d 374 (Colo.1990). Resort should never be had to a strained interpretation if the language of the statute is clear. Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973). In prior cases, it has been determined that § 5-12-102 was intended to compensate a nonbreaching party for the loss of money or property to which he or she is otherwise entitled. Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362 (Colo. 1989). As the sponsor of that legislation stated: `All plaintiffs, or defendants who counterclaim, for that matter, are entitled to interest from the time the action accrued, not from the time the suit was filed, not from the time judgment was entered, but from the time they were wronged....' (emphasis added) Mesa Sand & Gravel Co. v. Landfill, Inc., supra, at 365. We have therefore held that § 5-12-102 must be liberally construed to achieve this end. Isbill Associates, Inc. v. City & County of Denver, 666 P.2d 1117 (Colo.App.1983). In light of this precedent and legislative history, we are not persuaded that the General Assembly intended § 5-12-102 to permit a plaintiff to recover prejudgment interest on all compensatory damages flowing from a wrongful withholding of money or property. To interpret § 5-12-102 as permitting recovery for all compensatory damages flowing from a wrongful withholding would render meaningless the statutory language limiting prejudgment interest to that money or property "wrongfully withheld." See People v. Russell, 703 P.2d 620 (Colo.App. 1985) (in interpreting statute, it must be presumed that the entire statute was intended to be meaningful). Here, South Park was "wronged" at the time Northwestern denied its claim, and the only money or property "wrongfully withheld" by Northwestern was the amount of the claim which was improperly denied. The resultant damages from the loss of South Park's business operation occurred after the claim was denied. Therefore, we cannot properly state that all of South Park's compensatory damages constitute money or property "wrongfully withheld." See Mesa Sand & Gravel Co. v. Landfill, Inc., supra. See also Shannon v. Colorado School of Mines, ___ P.2d ___ (Colo.App. No. 91CA1749, Nov. 19, 1992) (prejudgment interest may not be awarded for future lost earnings because such earnings were not "due" or "withheld" within the meaning of § 5-12-102). Relying on Westfield Development Co. v. Rifle Investment Associates, 786 P.2d 1112 (Colo.1990), South Park contends that *228 "specific" property need not be wrongfully withheld in order for a plaintiff to recover prejudgment interest on its compensatory damages. Therefore, South Park argues, it is entitled to prejudgment interest on its entire award of compensatory damages although Northwestern did not actually "withhold" those amounts. We disagree. In Westfield, our supreme court upheld an award of prejudgment interest on a claim for intentional interference with contract. Recognizing that § 5-12-102 "is to be given a broad liberal construction in order to effectuate the legislative purpose of compensating parties for the loss of money or property to which they are entitled," the court found that an award of "prejudgment interest for pecuniary damages caused by intentional interference with contract was appropriate under section 5-12-102(1)(b)." Westfield Development Co. v. Rifle Investment Associates, supra, at 1122. However, the award of prejudgment interest was limited to those lost profits the injured party would have realized under the contract, it was not awarded on the entire amount of compensatory damages, which included lost down payments and expenses incurred in attempting to resell. Similarly, the trial court here awarded prejudgment interest only on the amount of compensatory damages reflecting the benefit that South Park would have realized under the insurance contract. Therefore, we hold that the trial court did not err in declining to award prejudgment interest on the entire amount of South Park's compensatory damages award. The judgment of the trial court is affirmed. RULAND and BRIGGS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4517085/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-7644 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRELL ANTONIO WRIGHT, a/k/a Bugg, a/k/a Derrick Antonio Wright, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:12-cr-00040-JFA-4; 3:16- cv-02194-JFA) Submitted: March 12, 2020 Decided: March 17, 2020 Before KING, KEENAN, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William Kenneth Witherspoon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darrell Antonio Wright seeks to appeal the district court’s order denying relief on his authorized, successive 28 U.S.C. § 2255 (2018) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2018). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2018). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that the motion states a debatable claim of the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We have independently reviewed the record and conclude that Wright has not made the requisite showing. Accordingly, we deny Wright’s motion for a certificate of appealability and dismiss the appeal. 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. DISMISSED 2	01-03-2023	03-17-2020

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