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https://www.courtlistener.com/api/rest/v3/opinions/1874363/	160 S.W.3d 420 (2005) Jose JACKSON, Movant/Appellant, v. STATE of Missouri, Respondent. No. ED 84515. Missouri Court of Appeals, Eastern District, Division One. April 12, 2005. Kristina Starke, St. Louis, MO, for Appellant. Deborah Daniels, Daniel McPherson, Jefferson City, MO, for Respondent. Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J. ORDER PER CURIAM. Movant, Jose Jackson, appeals from the judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find the motion court's judgment is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided the parties with a brief memorandum opinion, for their information only, explaining the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983178/	Order filed October 16, 2014 In The Fourteenth Court of Appeals ____________ NO. 14-14-00506-CV ____________ CRYSTAL R. DAVIS, Appellant V. LITTLE NELL APARTMENTS, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1047273 ORDER Appellant’s brief was due October 3, 2014. No brief or motion for extension of time has been filed. Unless appellant files a brief with this court on or before November 17, 2014, the court will dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2600606/	186 P.3d 309 (2008) 220 Or. App. 397 STATE of Oregon, Plaintiff-Respondent, v. Donald Roy MATHESON, Defendant-Appellant. 040532696; 128359. Court of Appeals of Oregon. Argued and Submitted December 12, 2007. Decided June 11, 2008. 311 David T. McDonald, Portland, argued the cause and filed the briefs for appellant. Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge. ROSENBLUM, J. A jury convicted defendant of one count of first-degree sodomy, ORS 163.405, two counts of first-degree sexual abuse, ORS 163.427, and three counts of first-degree unlawful sexual penetration, ORS 163.411, for conduct involving the younger of his two daughters. He makes six assignments of error on appeal. We reject the first and third assignments without discussion. In his second assignment, defendant argues that the trial court erred by admitting evidence that he also sexually abused his older daughterconduct for which he was not indicted. In his fourth assignment, defendant contends that, at the time of the alleged sexual penetration offenses, ORS 163.411 did not apply to digital penetration, and he thus argues that the trial court should have granted his motion for judgment of acquittal as to those chargesthat is, Counts 31, 32, and 33. In his fifth assignment of error, defendant again challenges the denial of the motion for judgment of acquittal, arguing that, with respect to two of the countsCounts 31 and 32 there is insufficient evidence that any penetration occurred. We conclude that any error in admitting evidence concerning defendant's older daughter was harmless. We further conclude that defendant's fourth and fifth assignments of error are unpreserved; however, we exercise our discretion to correct the error as to Count 33 and therefore reverse that conviction. We take the following facts from the record. Because the jury convicted defendant, we view the facts in the light most favorable to the state. State v. Charboneau, 323 Or. 38, 40-41, 913 P.2d 308 (1996). The victim, defendant's younger daughter, was born on August 17, 1980. In 2003, the victim disclosed to the police that defendant had sexually abused her as a child. Her disclosure led to defendant being charged with 20 counts of first-degree sodomy, 10 counts of first-degree sexual abuse, and six counts of first-degree unlawful sexual penetration. The indictment did not specify particular incidents or conduct in each of the counts. Each count alleged only in general terms that defendant had committed the particular offense during a period of time that ranged from about two years to more than seven years.[1] Defendant filed a demurrer challenging the indictment on vagueness grounds. The trial court denied the demurrer, stating that it would require the state to make an election at the close of its case-in-chief as to which counts corresponded to particular instances of conduct that would be shown by the evidence. At the trial, the victim testified that defendant began abusing her when she was very young, stating, "I can't remember a time when I wasn't sexually abused by my father," and that it continued approximately once a month until she was a freshman in high school. She stated that, in order to convince her that his conduct was "normal," defendant told her that he had "sexually touched" her sister and that it was normal in some cultures to have sexual contact between family members. 312 The victim testified about 10 specific incidents of sexual contact that she had with defendant. We recount only the portions of her testimony that are pertinent to the issues on appeal, namely, the portions related to Counts 31, 32, and 33, which charged defendant with unlawful sexual penetration.[2] She did not describe the incidents in chronological order; rather, she described various incidents that occurred in each of the rooms in the family's home, proceeding from room to room. In describing one incident, the victim stated, "There was one time where [defendant] showed me Internet pornography. And I was on his lap, and he touched his fingers in my vagina." When pressed for further detail by the prosecutor, the victim stated that defendant had called her into the den, asked her to sit on his lap, and showed her pornographic pictures on the computer. She stated that, while he was showing her the pictures, he unzipped her pants and "touch[ed] my vagina with his hand." The prosecutor then asked how defendant had touched her: "Q And do you recall when he touched you vaginally, was that over your panties, under your panties? "A Under my panties. "Q And do you recall when he touched you, did he penetrate at all inside of you or just remain on the outside? "A He remained on the outside. "Q And lastly, did he keep his fingers in one place or did they move around? "A They moved around my vagina." The victim was not precise about when the incident occurred. Initially, she stated that it was "probably late middle school, so maybe seventh or eighth grade," which would have made her 12 or 13 years old, meaning that the incident occurred between late 1992 and mid-1994. However, when describing one of the pictures that defendant showed her, she stated that it depicted two girls that were "maybe my same age," adding, "So that would have been 11 or 12 or 13. Yeah, 11 or 12." Thus, the incident could have occurred as early as August 1991. The prosecutor asked the victim whether there were any other instances of inappropriate touching in the den. She explained that defendant had touched her multiple times in the different rooms in the house and that she could not recall every occurrence, but stated, "I know that it happened at least a couple more times. And I can remember, you know, on one occasion where it happened and I was sitting on his lap again on the couch in the den," adding that "he was putting his fingers on my vagina and moving them around." She did not make any reference to when that incident occurred or how old she was at the time.[3] The victim then testified about several instances of sodomy and other sexual abuse that took place in her bedroom and defendant's bedroom. She testified in detail about each incident, including her age at the time. The victim then described an incident that occurred in the living room. She stated, "I think I was in elementary school. So I was between grades one and five. * * * I can't give you [a] more specific age on that." She stated that defendant had suffered a back injury that required him to stay home from work for two or three months. She testified that, one day during that period, defendant was resting in the living room: "So he wanted me to come over and give him some attention, and I did. And then he eventually 313 took off my pants and started to touch my vagina with his fingers." The prosecutor asked whether there was skin-to-skin contact. The victim responded, "Yes. His fingers actually went in my vagina this time." After the victim testified, the state called her sister, E, as a witness. Her testimony was very brief.[4] After she gave some cursory background information, she testified that, around 1995, she had disclosed to a counselor that she had had sexual contact with defendant when she was a child. She also testified that the contact had occurred "not infrequently, but not all the time. It was occasionally." She then explained briefly the circumstances that led her to speak with the counselor, which were not related to the sexual contact with defendant. On cross-examination, she spoke about her upbringing and her relationship with her parents, but said nothing more about sexual abuse. The jury heard from several sources that defendant had abused E. The victim's mother testified that defendant had admitted to her that he had abused E. The trial court also admitted into evidence tape recordings and transcripts of two "pretext" telephone calls, one between defendant and the victim and one between defendant and his son; in both, defendant admitted that he had abused E. At the close of the state's case-in-chief, the prosecutor acknowledged that the state had not met its burden of proof on all of the counts in the indictment and stated that she was prepared to dismiss some of the charges. The court allowed her to defer making an election as to which charges on which to proceed until the close of all the evidence. Defendant reserved making a motion for judgment of acquittal pending the state's election. Defendant testified in his own defense. He denied having ever abused the victim, but, in his direct examination, he admitted having abused E: "Q You heard your daughter, [E], testify that you sexually abused her when she was younger, correct? "A That's correct. "Q Do you agree with that? "A Absolutely." Defendant went on to say that E was "totally and completely victimized by me." After the defense rested, the prosecutor elected to proceed on only 12 of the 36 counts in the indictment: four counts of sodomy, five counts of sexual abuse, and three counts of unlawful sexual penetration. The prosecutor submitted a chart that listed the 10 incidents about which the victim had testified and specified the count or counts that corresponded to each incident. For eight of the incidents, the prosecutor proceeded on only one count. For the other two incidentsthe two that occurred in the denshe elected to proceed on both sexual abuse (Counts 22 and 23) and unlawful sexual penetration (Counts 31 and 32). Defendant then moved for judgment of acquittal. Defense counsel initially stated, "Our motion for judgment of acquittal is directed at all 36 counts." The court responded: "I think in a moment we're going to dismiss I mean, what I understand is the State's going to turn around to dismiss the remaining counts, somewhat depending on the motion for judgment of acquittal. "So what I would ask I guess is at that point we focus on the counts that the State has elected to proceed on." Counsel then stated, without elaboration, "At this time, Judge, the defense would move for a judgment of acquittal as to the counts we just discussed." The court denied the motion, stating that there was sufficient evidence from which the jury could find defendant guilty. The prosecutor then stated that, in addition to the counts that she had elected not to proceed on, the state would also dismiss the two counts of sexual abuse that corresponded with the two incidents in the den. In other words, for those incidents, the state proceeded only on the charges of unlawful sexual penetration. The jury found defendant guilty of nine of the 10 counts that were submitted to it. It 314 failed to reach a verdict as to one count of sexual abuse, and the court declared a mistrial as to that count. The court also granted a defense motion in arrest of judgment and dismissed three of the sodomy counts on statute of limitations grounds.[5] At sentencing, the court imposed concurrent sentences on five of the remaining six convictions, but it ordered the sentence on the sixthfor the unlawful sexual penetration incident in the living room when defendant's back was injuredto run consecutively to the other sentences. On appeal, defendant challenges the trial court's admission of evidence that he abused his older daughter, E. Defendant argues that it constituted "prior bad act" evidence that the court could not admit without conducting an analysis under OEC 404(3), which, he contends, the court failed to do. Defendant argues that the jury may have convicted him based on the evidence that he abused E. In response, the state argues, among other things, that any error in admitting the evidence was harmless, given that defendant himself testified that he had abused E. We agree with the state. Assuming, without deciding, that the trial court erred in admitting the challenged evidence, the error was rendered harmless by defendant's testimony. Erroneously admitted evidence is harmless if the defendant testifies about the same facts, even if the defendant's testimony is in response to the erroneously admitted evidence, as long as the erroneously admitted evidence is not an unlawfully compelled confession by the defendantwhich, in this case, it is not. State v. McGinnis, 335 Or. 243, 251-54, 64 P.3d 1123 (2003). The erroneous admission of evidence does not vitiate the voluntariness of the defendant's later decision to testify in his own behalf. Id. We reject defendant's argument without further discussion. We turn to defendant's fourth assignment of error, in which he argues that the trial court erred in denying his motion for judgment of acquittal as to the three counts of unlawful sexual penetration Counts 31, 32, and 33based on the timing of the conduct for which he was convicted. Defendant points out that, until September 29, 1991, ORS 163.411, the statute under which he was convicted, did not apply to digital penetration. Compare ORS 163.411(1) (1989) ("[A] person commits the crime of sexual penetration with a foreign object in the first degree if the person penetrates the vagina, anus or penis of another with any object not a part of the actor's body * * ." (Emphasis added.)) with ORS 163.411(1) (1991) ("[A] person commits the crime of unlawful sexual penetration in the first degree if the person penetrates the vagina, anus or penis of another with any object other than the penis or mouth of the actor * ." (Emphasis added.)).[6] He further notes that the indictment alleged that each of the three counts of unlawful sexual penetration occurred on or between January 1, 1990 and August 16, 1992. According to defendant, the state failed to prove that any of the three counts occurred after ORS 163.411 was amended in 1991. The state responds, among other things, that this assignment of error is unpreserved. We agree. "[A] general motion for judgment of acquittal without specifying any theory on which the state's proof was legally insufficient * * preserves no ground for challenge on appeal." State v. Schodrow, 187 Or.App. 224, 231 n. 5, 66 P.3d 547 (2003). Given that there were 12 counts encompassing three different crimes before the trial court at that point, defendant's generic 315 motion failed to alert the trial court to the error that he asserts on appeal. See State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000) (to preserve an error, "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted"). Thus, the question before us is whether the trial court committed plain error in denying the motion for a judgment of acquittal. To qualify as "plain," an error must (1) be one of law; (2) be obviousthat is, not reasonably in dispute; and (3) appear on the face of the record, such that we need not go outside the record or choose between competing inferences to find the error. Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). Even if the error is plain, we must exercise cautious discretion in deciding whether to correct the error. See id. at 382, 823 P.2d 956 ("A court's decision to recognize unpreserved or unraised error in this manner should be made with utmost caution."). For defendant to prevail, it must be beyond dispute that there is no evidence from which the jury could conclude that the offenses occurred after September 29, 1991, the date on which the amendment to ORS 163.411 became effective. We begin with Count 31, which corresponds to the incident in the den in which defendant showed the victim Internet pornography. The victim testified that she was 11, 12, or 13 years old at the time. The victim's eleventh birthday was on August 17, 1991, only six weeks before the statutory amendment took effect. Although it is conceivable that the offense took place during that short period, the jury could reasonably find that it took place after the effective date of the statutory amendment. See State v. Hall, 327 Or. 568, 574, 966 P.2d 208 (1998) (if the evidence supports multiple reasonable inferences, it is for the trier of fact to decide which inference to draw and whether that inference establishes the ultimate fact in issue beyond a reasonable doubt). Accordingly, there is no error, let alone plain error, with respect to Count 31. Count 32 corresponds to the incident on the couch in the den. In testifying about that incident, the victim made no reference to when it occurred, whether in terms of what year it was, her age, what grade she was in, or relative to other incidents. The record is devoid of any evidence as to when the incident took place. Because there is no evidence from which the jury could have concluded that defendant committed the act after the effective date of the statutory amendment, defendant's conviction on that count is plainly erroneous. The question remains whether we should exercise our discretion to reach the error. Under the circumstances, we do not. The factors that we consider in determining whether to correct an unpreserved error include the ends of justice in the particular case, the gravity of the error, and whether the policies underlying the preservation requirement were served in another way. Ailes, 312 Or. at 382 n. 6, 823 P.2d 956. One of the policies underlying the preservation requirement is that of allowing the opposing party the opportunity to respond to the asserted error. See Davis v. O'Brien, 320 Or. 729, 737, 891 P.2d 1307 (1995) (preservation rules are intended to ensure that parties clearly present arguments to the trial court and that other parties are not taken by surprise, misled, or denied opportunities to meet an argument); State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988) (citing "fairness to the adversary parties" as a justification for preservation rules). Had defendant raised the error that he now asserts on appeal, the state could have done one of two things. It could have moved to reopen the record to elicit testimony from the victim as to when the incident occurred, or it could have dismissed Count 32 instead of Count 23 and proceeded with the charge of sexual abuse, which would not have presented the statutory timing issue that defendant now raises. The latter possibility is particularly compelling: It appears that, when the state made its election, it elected to essentially hold Counts 22 and 23 in reserve pending defendant's motion for judgment of acquittal and the trial court's ruling on that motion. The state dismissed those counts 316 only after the court denied defendant's motion. Had defendant identified the deficiency in the state's evidence as to Count 32, the court would presumably have granted the motion for judgment of acquittal. That ruling would very likely have altered the state's decision as to whether to dismiss Count 23. Because defendant's failure to properly preserve the error that he asserts on appeal impeded the state's ability to effectively prosecute him for his conduct, the policies underlying the preservation requirement were undermined and, consequently, the ends of justice counsel against reaching the error. We therefore decline to exercise our discretion to do so. We turn next to Count 33, which corresponds to the incident in the living room when defendant's back was injured. The victim testified that she was in elementary school at the timethat is, she was between the first and fifth grades.[7] She also testified that she was 11 years old when she was in the sixth grade. Her eleventh birthday was in August 1991. Thus, by the time ORS 163.411 was amended in September 1991, the victim was in the sixth grade, so the abuse necessarily occurred before the amendment took effect. It follows that there is no evidence from which the jury could have found that defendant committed the act after the effective date of the statutory amendment. Because there is no reasonable dispute as to whether the act occurred before or after the amendment, defendant's conviction on Count 33 is plainly erroneous. Again, the question remains whether we should exercise our discretion to correct the error. The circumstances here differ from those surrounding Count 32. The state did not elect to proceed on any sexual abuse charge with respect to the incident underlying Count 33, so defendant's failure to raise the error did not deprive the state of a "fallback" count on which it could have proceeded. Furthermore, unlike in Count 32where the victim made no reference to the timing of the incident, leaving open the possibility that additional testimony could have demonstrated that it occurred after the statute was amendedhere, although she could not pinpoint the precise time, the victim stated that she was in elementary school when it occurred, an assertion that is corroborated by her mother's testimony. Thus, it is unlikely that the state would have been able to reopen the record and elicit additional testimony to show that the incident actually occurred after the statute was amended. In short, it does not appear that the state was prejudiced by defendant's failure to preserve the error with respect to Count 33. On the other hand, if we do not reach the error, defendant will have an additional conviction on his record and will be required to serve a substantially longer sentence. In light of the gravity of the error, we conclude that an exercise of our discretion to correct the error as to Count 33 is warranted. We turn next to defendant's fifth assignment of error. Defendant contends that the state failed to prove unlawful sexual penetration as to Counts 31 and 32, arguing this time that there is insufficient evidence of penetration and, thus, that the trial court erred in denying his motion for judgment of acquittal on those counts. Defendant notes that, with respect to Count 31, when the victim was asked whether defendant penetrated her vagina, she testified that he "remained on the outside." With respect to Count 32, defendant notes that the victim testified that he put his fingers "on" her vagina. He contrasts that statement with her testimony regarding Count 33, in which she stated, "His fingers actually went in my vagina this time." In response, the state points out that, with respect to Count 31, the victim's testimony *317 was inconsistent, noting that, at one point, she stated that defendant "touched his fingers in my vagina." With respect to both counts, the state notes that the victim testified that defendant's fingers "moved around" her vagina. According to the state, the jury could reasonably have inferred that some slight penetration occurred as a result of that movement. The state also notes that the victim suffered multiple urinary tract infections, arguing that the jury could have inferred that they were caused by digital penetration. We need not resolve the parties' arguments on the merits. For the same reason that defendant's fourth assignment of error is unpreserved, this assignment is unpreserved as well. Assuming, without deciding, that the trial court committed plain error, we decline to exercise our discretion to correct the error. Again, when the state made its election as to which counts to proceed on, with respect to the two incidents in the den, in addition to Counts 31 and 32, it elected to proceed on two counts of sexual abuse as well. Had defendant raised the error that he asserts on appeal, the state could have proceeded on the sexual abuse counts, which did not require proof of penetration. See ORS 163.427. Thus, for the reasons cited above, we decline to exercise our discretion to correct the error, if any, raised in this assignment. In a supplemental assignment of error, defendant challenges the court's imposition of a consecutive sentence on Count 33. Our reversal of that conviction obviates the need to address the supplemental assignment. The state cross-assigns error to the trial court's exclusion of evidence pertaining to conduct that defendant allegedly committed outside of Multnomah County, where he was tried in this case. Because admission of that evidence would not have corrected the deficiency as to Count 33, we need not address the state's cross-assignment of error. Conviction on Count 33 reversed; remanded for resentencing; otherwise affirmed. NOTES [1] For example, Count 1 of the indictment charged first-degree sodomy as follows: "The said Defendant(s), DONALD ROY MATHESON, on or between January 1, 1985 and August 16, 1992, in the County of Multnomah, State of Oregon, did unlawfully and knowingly engage in deviate sexual intercourse with [the victim], a child under the age of twelve years, the said [victim] being the said defendant's daughter, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]" [2] Defendant's second assignment of error, in which he challenges the admission of evidence that he had abused his older daughter, pertains to all of his convictions. However, the details of the incidents underlying those convictions are not material to his argument, so we need not recount them. [3] The state argues that, "fairly construed," that incident is the same as another one that the victim described, in which defendant had her watch a pornographic movie about an incestuous relationship between a father and daughter. According to the victim, that occurred within two weeks of the incident with the Internet pornography. Thus, the state argues that the incident on the couch occurred within weeks of the incident with the Internet pornography. We disagree. The victim testified that she did not remember any sexual contact occurring between her and defendant when he had her watch the incest movie. The record thus does not support the inference that the "couch" incident and the "incest movie" incident were one and the same. [4] Her entire testimony occupies nine pages in the trial transcript. [5] The three counts that the court dismissed alleged that the conduct had occurred as early as January 1, 1985. The statute of limitations for sodomy at that time was three years. See ORS 131.125(2)(a) (1983). The legislature extended the limitation period in 1989 and again in 1991. Or. Laws 1989, ch. 831, § 1; Or. Laws 1991, ch. 388, § 1. The court dismissed the three counts because the limitation period on the offenses alleged could have run as early as January 1, 1988. See State v. Harberts, 198 Or.App. 546, 556, 108 P.3d 1201 (2005), rev. den., 341 Or. 80, 136 P.3d 1123 (2006) (retroactive extension of an expired statute of limitations amounts to an impermissible ex post facto law). [6] ORS 163.411 was amended by Oregon Laws 1991, chapter 386, section 2, which took effect on September 29, 1991. [7] The state notes that the victim's mother testified that, when defendant injured his back, the children were in late elementary school or middle school. The state asserts that the jury could have inferred from that testimony that, contrary to what the victim herself said, the incident occurred when she was in middle school and, thus, after the statute was amended. We disagree. Her mother testified that "[t]he children were not in high school at that point." E, the oldest child, is four years older than the victim. Even if she had been in her last year of middle school eighth gradethe victim could not have been in the sixth grade yet. Thus, her mother's testimony corroborates, rather than contradicts, the victim's testimony.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874848/	889 So. 2d 1167 (2004) Susan Lynn MURPHY, born Book v. Patrick Jefferson MURPHY. Nos. CA 04-1054, CA 04-1053. Court of Appeal of Louisiana, Third Circuit. December 8, 2004. Michael Steven Beverung, Book & Beverung, Lake Charles, LA, for Plaintiff/Appellant Susan Lynn Murphy, born Book. Walter Marshall, Sanchez Lorenzi, Sanchez & Palay, Lake Charles, LA, for Defendant/Appellee Patrick Jefferson Murphy. Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and JOHN B. SCOFIELD,[] Judges. WOODARD, Judge. For the reasons assigned this day in Murphy v. Book, 04-1053, 889 So. 2d 417 (La.App. 3 Cir. 12/8/04), we reverse the trial court's ruling allowing Jeff Murphy's unsupervised visitation with the minor child, and we reverse the trial court's ordering Susan Murphy to reimburse copying costs to Black Lake Marsh, Inc. REVERSED AND RENDERED. NOTES [] Judge John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2460385/	469 S.W.2d 709 (1971) The STATE of Texas et al., Petitioners, v. COOK UNITED, INC., et al., Respondents. No. B-2642. Supreme Court of Texas. July 7, 1971. 710 Frank Coffey, Dist. Atty., Spencer Shropshire, Asst. Dist. Atty., Forth Worth, for petitioners. Berman, Fichtner & Mitchell, Linda A. Whitley and Harold B. Berman, Dallas, Prager & Brown, Forth Worth, for respondents. McGEE, Justice. The State of Texas, by and through Frank Coffey, Criminal District Attorney of Tarrant County, Texas, filed four lawsuits seeking injunctive relief under Art. 286a, Vernon's Annotated Texas Penal Code, sometimes referred to as the Sunday Closing Law, against Cook United, Inc., M. N. Landau Stores, Inc., Clarks Texas, Inc., Clarks Arlington, Inc., doing business as Cooks Discount Department Store and Cooks Discount Center, Sundaco, Inc., Martin Stryer, Marshall Brinkley, Claude Crawford, Ed Croan, A. Cyr, David Deboard, Neal Dismukes, Jim Jett, Roy Rickard, J. C. Miller, Jay Fichtner and Harry Margolis. The State took a non-suit in one of the cases and the other three were consolidated. By way of cross action, the Respondents sought and obtained a temporary injunction enjoining the State of Texas, its Attorney General, all District and County Attorneys, and their agents and employees, and Tarrant and McLennan Counties from filing any new causes of action, suits in law or in equity against or involving any of the Respondents, their agents and employees, the object of which would be to obtain injunctive or civil relief pursuant to Art. 286a, Vernon's Annotated Texas Penal Code and/or Chapter 15, Business and Commerce Code of Texas, pending final adjudication of all existing and pending litigation by, between and among any and all of the parties to the cause then pending * * "provided however, this order shall in no way affect the status or prosecution of the current, pending litigation heretofore filed by the State of Texas and County of Tarrant." This judgment was affirmed by the Court of Civil Appeals, 463 S.W.2d 509. We modify and affirm the judgments of the courts below. Mr. Fichtner, an officer in Sundaco, Inc., described the arrangement with these other corporations. Sundaco purchases the stock of merchandise at various locations throughout the State of Texas on Saturday during the term of the agreements. It also has leases on each of the locations for the period of time from 11:59 p. m. on Saturday until midnight on Sunday. Sundaco buys the inventory on Saturday night and sells the remaining inventory back at midnight on Sunday. All of Sundaco's agreements 711 with the other corporate entities are "basically the same." The evidence supports the findings of the trial judge: " * * that commencing in September, 1967 the State of Texas, acting by and through various district and county attorneys have filed no less than ten lawsuits, in each occasion naming one, more or all of the Cross-Plaintiffs herein; that four (4) lawsuits have been filed in McLennan County, three (3) lawsuits have been filed in Tarrant County, two (2) lawsuits have been filed in Taylor County, two (2) lawsuits have been filed in Brazos County, one (1) lawsuit has been filed in Lubbock County and one (1) lawsuit has been filed in Ector County; that each of the said lawsuits sought basically the identical relief of an immediate Restraining Order or Temporary Injunction under the provisions of Article 286a, Texas Penal Code and/or Chapter 15 of the Business and Commerce Code of the State of Texas; that each of such lawsuits has essentially identical parties; that essentially the same cause of action is involved in each lawsuit; that the evidence is clear and convincing that the multiplicity of lawsuits filed by the State of Texas has been harassing and vexatious to the Cross-Plaintiffs and cumulatively they have constituted harassment to Cross-Plaintiffs and vexatious litigation; that this court, having jurisdiction of the parties and subject matter hereof, finds that it is necessary, in order to prevent further multiplicity of suits and vexatious litigation and to prohibit the use of the judicial processes for purposes of harassment to grant injunctive relief." In some of the cases against these Respondents the State was guilty of particularly vexatious and harassing litigation in that it would file suit on Friday, obtain a temporary restraining order without notice, succeed in thus closing Sundaco's operations for two weekends, and then take a non-suit. At the time of the hearing on this temporary injunction, only one suit had been reduced to final judgment; the District Court in Ector County had denied the State's petition for temporary injunction holding that the Sundaco contracts and operations were not in violation of the statutes. The trial judge has broad discretion in the granting or refusing of a temporary injunction. His judgment on appeal will not be overturned unless the record discloses a clear abuse of discretion. Texas Foundries v. International Moulders and Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460 (1952). We find no error and no abuse of discretion in the trial court's action in granting a temporary injunction when such relief is necessary to prevent multiplicity of suits, avoid vexatious litigation and to prohibit the use of judicial processes for the purposes of harassment. University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426 (1961); Repka v. American National Ins. Co., 143 Tex. 542, 186 S.W.2d 977 (1945). Petitioner contends that the Court of Civil Appeals erred in holding that the trial court did not abuse its discretion by enjoining all new suits to obtain civil or injunctive relief under Article 286a, Vernon's Annotated Texas Penal Code and/or Chapter 15, Business and Commerce Code of Texas. Petitioner argues that such decision is in conflict with City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex. Sup.1967); City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.Sup.1969); Crouch v. Craik, 369 S.W.2d 311 (Tex.Sup.1963); and Spartan Industries, Inc. v. State of Texas, 379 S.W.2d 931 (Tex.Civ.App.1964, no writ hist.). These cases hold that a 712 court of equity has no jurisdiction to enjoin enforcement of a penal statute unless (1) such statute is void or unconstitutional, and (2) vested property rights are being impinged as a result of an attempt to enforce such void statute. No restraint was imposed in this case by the temporary injunction against filing and prosecuting criminal complaints nor did such order restrain the State from prosecuting any of its pending suits to obtain the injunction authorized by Art. 286a, Sec. 4, Vernon's Annotated Texas Penal Code. Petitioners' authorities are not in point because Sec. 4, the injunction section, is not penal. The injunction authorized by Section 4 offers civil relief, and if it is employed for the purpose of harassment, its use is subject to restriction by a court of equity. University of Texas v. Morris, supra; Repka v. American National Insurance Co., supra. Inasmuch as the State, if successful in the trial upon the merits, can obtain a permanent injunction against all of these Respondents in this suit, there would be no necessity for prosecuting the other pending suits nor would there be any necessity for filing additional suits for this purpose. It should be noted that this order would remain in effect pending final hearing and determination of this cause. All of the Sundaco contractees have joined in seeking this temporary injunction, thus subjecting themselves to the jurisdiction of the District Court in Tarrant County. Petitioners next contend that it was error to enjoin all county and district attorneys in the State of Texas rather than restricting the order to the two district attorneys of record [Tarrant and McLennan Counties]. We agree. The certificate of the District Clerk of Tarrant County shows that no persons other than representatives or public officials of Tarrant and McLennan Counties were served with citation or notice of hearing upon the Original Cross-Action and Plea for Affirmative Relief, First Amended Petition of Cross Plaintiffs and Second Amended Petition of Cross Plaintiffs in this cause. Rule 681, Texas Rules of Civil Procedure provides: "No temporary injunction shall be issued without notice to the adverse party." In the absence of notice to or service of citation upon the Attorney General of the State of Texas, or county and district attorneys other than those of Tarrant and McLennan Counties the temporary injunction is hereby modified to enjoin only the county and district attorneys of Tarrant and McLennan Counties, and shall have no effect on the Attorney General of the State of Texas or the other district and county attorneys in this State. We do not agree with the Respondent's contention that Article 1926-42, Vernon's Texas Civil Statutes, makes the criminal District Attorney of Tarrant County the agent of the State of Texas or the Attorney General for the purposes of service of citation. Neither do we agree that the State of Texas and the Attorney General are properly enjoined by virtue of Rule 683, Texas Rules of Civil Procedure, in that they are not officers, agents, servants, employees or attorneys of the criminal District Attorney of Tarrant County. Moreover, not having served citation upon the State or Attorney General, Respondent cannot validly contend that the other county and district attorneys throughout the State would be bound by this temporary injunction under Rule 683, Texas Rules of Civil Procedure. Petitioners next contend that the Court of Civil Appeals erred in holding that the trial court did not abuse its discretion when the effect of the order was to preserve a condition of illegality. It should first be noted that this temporary injunction was granted for the purpose of preventing a multiplicity of suits, avoid 713 vexatious litigation and to prohibit the use of judicial processes for the purpose of harassment. The temporary injunction was not granted on the merits of the pending case. Petitioners contend that the effect of the temporary injunction entered by the trial court is to maintain the status quo, thereby condoning the illegal actions of Sundaco. The three cases cited by Petitioners are not in point. Rattikin Title Company v. Grievance Committee, 272 S.W.2d 948 (Tex.Civ.App.1954, no writ hist.); Shelton v. State Board of Medical Examiners, 376 S.W.2d 813 (Tex.Civ.App.1964, no writ hist.); City of Corpus Christi v. Lone Star Fish and Oyster Co., 335 S.W.2d 621 (Tex.Civ.App.1964, no writ hist.). All three of these cases involved temporary injunctions to restrain illegal actions of the Respondents, which injunctions issued after a hearing on the merits. The appeal in this case, resulted from a temporary injunction being granted because the Petitioners had, in numerous actions, refused to pursue the merits of the controversy. Petitioners merely "assume" that the operations of Respondents are illegal and from that presumption conclude that Respondents do not have "clean hands" to maintain their suit in equity. In judging the actions of the trial judge, we must remember that at that time the only final judgment in the entire state involving the merits of the Sundaco operation was the Ector County judgment holding Sundaco's operations to be legal. Nothing in this opinion is to be interpreted as approving Respondents' contentions on the merit of this case to the effect that their contracts and operations are not in violation of Art. 286a, Vernon's Annotated Texas Penal Code. The judgment of the Court of Civil Appeals as modified herein is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874780/	706 N.W.2d 742 (2005) PEOPLE v. KEY. No. 128553. Supreme Court of Michigan. December 15, 2005. Application for leave to appeal. SC: 128553, COA: 252312. On order of the Court, the application for leave to appeal the March 15, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. KELLY, J., would remand this case for a hearing pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2224466/	483 N.W.2d 175 (1992) In the Matter of the ESTATE OF John L. BURSHIEM, Deceased. Katrine BURSHIEM, Appellant, v. Virginia BURSHIEM, Personal Representative of the Estate of John L. Burshiem, Deceased, Appellee. Civ. No. 910097. Supreme Court of North Dakota. March 31, 1992. 176 Katrine Burshiem, pro se. John D. Bullis (argued), Lies, Bullis and Grosz, Wahpeton, for appellee. MESCHKE, Justice. Katrine Burshiem appeals from a probate order that declared her deceased husband, John L. Burshiem, had been domiciled in North Dakota rather than Florida, and that appointed his sister-in-law as personal representative of the estate. We reverse and remand for further proceedings. John L. Burshiem worked for over twenty-five years as a security guard and nightclub manager in the Miami region of Florida. In 1982 John returned to Abercrombie, North Dakota, where he had been born and raised, to care for his aging and ailing parents. In 1983, John briefly went back to Miami to aid the owners of a large, luxury-apartment complex that John had once served as director of security. There, John met Katrine Heitger Sapiro, a well-to-do widow, who was administrative secretary to the owners of the apartment complex. According to Katrine, John worked with her for a few weeks while they helped the owners prepare for some litigation. After that project, John again returned to North Dakota to care for his parents. According to Katrine, she and John corresponded. At Easter in 1984, John flew to Atlanta, Georgia, stayed with Katrine at her summer home there, and then traveled with her to one of her condominiums at Surfside, Florida. Again, John returned to Abercrombie to be with his parents. In July, John proposed to Katrine by mail. On December 1, 1984, at Atlanta, when John was age fifty-three and Katrine was age seventy, they were married. 177 From the start, the marriage was impaired by separation, sickness, and John's exploitation of the relationship. After their wedding, John returned to North Dakota to be with his parents and to operate a small cafe in Abercrombie. Katrine never came to North Dakota. Katrine had surgery for abdominal tumors in April 1985, but went back to work by mid-June without having seen John during her illness. In the summer of 1986, John closed his Abercrombie cafe and came to Surfside, where he had hernia surgery and dental work that Katrine says she paid for. In late 1986, John again returned to North Dakota where his mother was in a nursing home and his father's prostate cancer had worsened. In 1987, John again spent a few months with Katrine at Surfside, and occasionally visited his grown daughters (from prior marriages) who lived in Florida. Then, after his mother died, John spent the last few months of his father's life in North Dakota, nursing his father. After his father died, John and Katrine traveled to Hawaii in June 1988 where they sold her Hawaiian condominium. In September 1988, Katrine had surgery for lung cancer, and spent most of the following year convalescing at her Atlanta home. During this time, Katrine says that John sold much of her property, seized her jewelry, and transferred her money to himself, leaving her nearly penniless. According to Katrine, John squandered her funds for accumulated child and spousal support that he owed, for a costly dental implant, and for extravagant fishing and hunting equipment and expeditions. Katrine claims that, on February 18, 1990, at her Atlanta home, John told her that he intended to place her in a psychiatric nursing home. When she refused to be confined, John became enraged and attacked her with a kitchen knife, Katrine says. What happened next is not known, but John soon died from a gunshot wound caused by Katrine. Charged with murder, Katrine pleaded self-defense. Later, a Georgia jury acquitted her of murder and voluntary manslaughter charges, but found her guilty of misdemeanor involuntary manslaughter.[1] John's will was filed with the probate court in Richland County, North Dakota, where John owned his parents' former home. The will directs division of John's property among his three daughters, and does not provide for Katrine. The will, dated July 4, 1988, was witnessed by Katrine and two other witnesses in Georgia. The will directs "that my burial be in my former hometown, of Abercrombie, North 178 Dakota," begins with the heading "State of Florida" and "County of Dade," and declares that John is "a resident of said State and County aforesaid." Less than thirty days after John's death,[2] Virginia Burshiem, John's sister-in-law, petitioned the Richland County court on March 16, 1990, for appointment as personal representative of John's estate. His three daughters waived appointment and consented to their aunt's appointment as personal representative. On May 17, 1990, Katrine petitioned the Richland County court for formal testacy proceedings to determine John's domicile at death, to contest the informal appointment of Virginia as personal representative, and to restrain the personal representative from acting. The Richland County court temporarily restrained the personal representative but, on June 5, 1990, after a brief hearing, the court dissolved the restraint. Later, Katrine petitioned for an elective share by a surviving spouse. See footnote 1. Katrine's claim to an elective share of the estate remains to be decided. After a trial on the question of domicile, the trial court concluded that "after John Burshiem moved to North Dakota [in 1982] he never departed except for short visits or for purposes of business," and that his "domicile at the date of his death was Abercrombie, North Dakota." On December 31, 1991, the probate court ordered: That the Decedent, at the time of his death, was a resident of Abercrombie, Richland County, North Dakota. That Virginia Burshiem is formally appointed Personal Representative of the Estate of John Burshiem. Without the aid of an attorney,[3] Katrine appeals.[4] On appeal, Katrine chiefly challenges the trial court's designation of North Dakota, rather than Florida, as John's domicile. More than venue is at stake. Even "if the decedent was not domiciled in this state," venue for the first probate proceeding after a decedent's death is proper "in any county where property of the decedent was located at the time of his death" whether or not the decedent was domiciled in that county. NDCC 30.1-13-01(1). Domicile is important for determining the law that governs the decedent's estate, the interpretation of his will, and, importantly here as footnote 1 explains, the right of the surviving 179 spouse to elect a forced share of the estate. Domicile usually controls the choice of law for the probate. The effect of domicile on that choice of law shows up in many parts of the Uniform Probate Code. In addition to the rules on the elective right of a surviving spouse that are summarized in footnote 1, NDCC 30.1-13-01(4)[5], 30.1-13-03(7)[6], and 30.1-14-08(2)[7], among others, illustrate the effect of domicile on the choice of the rule for a particular feature of the probate. In sum, determination of domicile is important to avoid inconsistent administrations of the decedent's property in different states. For consistent administration, a claim of domicile in another state creates special tasks for the probate court. The court "after any hearing that may be necessary,... shall determine the decedent's domicile at death...." NDCC 30.1-15-08[8]. The court must take into consideration any proceedings elsewhere that affect the determination of domicile: Appointment or testacy proceedings Conflicting claim of domicile in another state.If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this state. NDCC 30.1-13-02.[9] Different portions of a decedent's estate should not be subjected 180 to varying dispositions simply because the courts of separate states reach different conclusions about the decedent's domicile. We are informed that probate proceedings for John's estate are also pending in Georgia and Florida. Yet we do not know from this record when they were begun, who has been made parties, or what their current status is. The status of these other proceedings should be taken into account upon remand. The final determination of John's domicile will largely govern the administration and distribution of his property. A person may have two or more physical residences, as distinguished from that person's legal residence that is the person's domicile. Dietz v. City of Medora, 333 N.W.2d 702, 704 (N.D.1983). Domicile is synonymous with residence "in law." NDCC 54-01-26; B.R.T. v. Executive Director of Social Service Board, 391 N.W.2d 594, 598 (N.D.1986). Since domicile and legal residence are synonymous, the statutory rules for determining the place of residence are the rules for determining domicile. Under NDCC 54-01-26(2) and (7), there can be only one domicile, and a domicile can be changed only by the union of act and intent. Domicile is a question of fact. Keating v. Keating, 399 N.W.2d 872, 874 (N.D.1987). To find a change of domicile, the fact of a physical presence at a residence must concur with the intent to make that place the legal residence, "the union of act and intent." NDCC 54-01-26(7); Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 115 (1948). The person's intent must be determined from the person's conduct and declarations. Schillerstrom, 32 N.W.2d at 115. A person's declarations about his home, residence, or domicile are evidence of his intent, including a statement contained in a formal legal document like a will. Restatement (Second) on Conflict of Laws vol. 1, 81-83, Special Note on Evidence For Establishment of a Domicile of Choice (1969). The trial court must find the fact of domicile from the evidence of the person's acts and declarations. "Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." NDRCivP 52(a). A finding of fact is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made. Keating, 399 N.W.2d at 874. A finding of fact may also be clearly erroneous if it is based on a mistaken view of the applicable law. Estate of Ostby, 479 N.W.2d 866 (N.D. 1992). In this case, we conclude that the trial court determined John's domicile with a mistaken view of applicable law. The trial court determined that John was domiciled in North Dakota. This finding was largely based on testimony by his three daughters and his brother, indicating that John spent nearly eighty percent of the time since 1983 in North Dakota. The trial court found that his North Dakota driver's license, his North Dakota resident's hunting license, and his extended presence here proved that he was domiciled in North Dakota. The trial court reasoned: Sometime in the latter part of 1982 o[r] 1983 John retired and reached an agreement with his parents where he would come to Abercrombie, North Dakota, his home town. He would live there with them, he would take care of them, and when they became deceased he would have their home to be his own. In response to this agreement John did move to Abercrombie, North Dakota and from that time until the date of his death he 181 lived in Abercrombie, he made improvements on the home, he worked in Abercrombie, he owned property in Abercrombie, whenever he left Abercrombie he returned to live there again. John had children in Florida whom he visited on holidays and special occasions. His average stay away from Abercrombie seemed to be a period of not more than a couple of weeks. He visited his wife whom he married in 1984, mainly in Georgia and most instances when he visited his wife he had a motive for doing so. The motive was almost always generated by a need of money or help of some kind. It is undisputed that he spent very little time with his wife after their marriage. The Petitioner, Katrine, herself testified concerning the lack of attention she received. She testified of his attempt to kill her so that he might obtain her property. Katrine's lone witness testified that John told her that he wanted Katrine dead more than anything in the world, he wanted to be able to travel, he wanted to feel important, he wanted to have a Jaguar. The evidence painted a picture clearly of a person who was willing to sign anything and do anything which would result in financial gain to himself. The evidence further portrayed the picture of a person who fully intended to live in Abercrombie, North Dakota, for the rest of his life once he was able to obtain all of the money and property belonging to his wife. Katrine disputes that John was domiciled in North Dakota. From her own testimony, testimony of a friend from Georgia, and documentary evidence, Katrine argues that John designated Florida as his residence on his federal income tax returns for the last five years; John had not filed a state income tax return in North Dakota as he would have been required to do as a North Dakota resident; John claimed a homestead tax-exemption for the Surfside condominium as a Florida resident; John supplied information to the Social Register of Greater Miami indicating that he resided in Florida; and John registered and voted in Florida. See State ex rel. Sathre v. Moodie, 65 N.D. 340, 258 N.W. 558 (1935). (North Dakota resident, who lived for twenty months, registered, and voted in Minnesota during 1929-1931, had not been a resident of North Dakota for five years next preceding the 1934 election, and was not constitutionally qualified to be Governor.) Katrine urges that, cumulatively, her evidence demonstrates that the trial court's finding of John's domicile is erroneous. While Katrine's evidence is impressive, we conclude that the trial court overlooked the legal effect of a more important factor. The trial court did not consider the declaration expressed in John's will that he was a "resident" of "State of Florida" and "County of Dade." This declaration is complemented by the will's direction that his burial be "in my former hometown of Abercrombie, North Dakota." (Our emphasis). The will declares Florida as John's domicile, and thus demonstrates a strong intention that his domicile was in Florida, and that the law of Florida should govern his testamentary dispositions. A forum state "will give effect to a provision in the will that it should be construed in accordance with the rules of construction of a particular state," the Restatement declares, at least for property other than real estate. Restatement (Second) on Conflict of Laws § 264 cmt. e (1969). The Restatement goes on to say: Despite the absence of an express designation, it may be apparent from the language of the will or from other circumstances that the testator wished to have the local law of a particular state govern the construction of the will. In such a case, the rules of construction of this state will be applied. Id. at p. 127. A will's declaration of domicile should be respected if it sufficiently concurs with the declarant's conduct to evidence "the union of act and intent" for domicile. Precedent has long held that a declaration in a will is evidence of domicile, often said to be of "great weight" and "high character," though not conclusive if the evidence of the testator's residence is so inconsistent with the declaration that it 182 cannot stand. Ambrose v. Vandeford, 277 Ala. 66, 167 So. 2d 149, 153 (1964); Cromwell v. Neeld, 15 N.J.Super. 296, 83 A.2d 337, 340 (1951); Wilberding v. Miller, 106 N.E. 665, 670 (Ohio 1913); Ennis v. Smith, 55 U.S. 400, 422, 14 L. Ed. 472, 482 (1852) (Deciding the choice of law for disposition of the American estate of revolutionary hero General Kosciusko: "[H]is declarations [in wills of 1806 and 1816] that his residence was in France, in the way they were made in his wills, with an interval of ten years between them, would, upon the authority of adjudged cases, be sufficient to establish, prima facie, his domicile in France.") The law of a state designated by the decedent's will should control the effect of the will. Our probate code voices this as a directive: The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the testator in his instrument unless the application of that law is contrary to the provisions relating to the elective share described in chapter 30.1-05, the provisions relating to exempt property and allowances described in chapter 30.1-07, or any other public policy of this state otherwise applicable to the disposition.[10] NDCC 30.1-09-02. The Editorial Board Comment with this section explains: This provision ... enables a testator to select the law of a particular state for purposes of interpreting his will without regard to the location of his property covered thereby. So long as local public policy is accommodated, the section should be accepted as necessary and desirable to add to the utility of wills.[11] Thus, legal pundits, precedent, and probate law join in directing that a declaration of domicile in the decedent's will should designate the domicile and the choice of law for that estate, unless there is an overriding reason otherwise, such as clear and convincing evidence of inconsistent acts and conduct. We conclude that the trial court erroneously determined John's domicile without properly considering the declaration of domicile in his will. Accordingly, we reverse and remand for further proceedings consistent with this opinion. ERICKSTAD, C.J., and VANDE WALLE and LEVINE, JJ., concur. Justice H.F. GIERKE III, a member of the Court when this case was heard, resigned effective November 20, 1991, and did not participate in this decision. Justice JOHNSON not being a member of this Court at the time this case was heard did not participate in this decision. NOTES [1] In North Dakota a surviving spouse who "feloniously and intentionally kills the decedent" is not entitled to inherit from the deceased. NDCC 30.1-10-03(1). Similarly, in Florida, a "surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, ...." Fla.Stat. § 732.802(1) (1989). In each state, the applicable law says that "the estate of the decedent passes as if the killer had predeceased the decedent." "A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing, the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this section." NDCC 30.1-10-03(5). See In Matter of Estates of Josephsons, 297 N.W.2d 444 (N.D.1980). Similarly, Florida law says, "In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section." Fla.Stat. § 732.802(5) (1989). Thus, a criminal acquittal is not conclusive for probate. Although Katrine is not a beneficiary of John's will, she has petitioned for an elective share by a surviving spouse. North Dakota and Florida each authorize a surviving spouse to elect a share of the estate. See NDCC 30.1-05-01, et seq. and Fla.Stat. § 732.201, et seq. (1989). NDCC 30.1-05-01(1) is conditioned upon the death of "a married person domiciled in this state," and subsection 2 says that the right of a surviving spouse of a married person not domiciled in this state "is governed by the law of the decedent's domicile at death." Fla.Stat. § 732.205 says: "No elective share in Florida property of a decedent not domiciled in Florida shall exist." Katrine's right to an elective share of the estate remains to be determined. The law of John's domicile will likely control the determination. See Restatement (Second) on Conflict of Laws § 265 (1969). (Law of the deceased spouse's domicile governs the right of a surviving spouse to elect a forced share of the estate.) [2] Katrine argues that the personal representative was appointed prematurely. NDCC 30.1-14-07(1) says: Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in section 30.1-17-14, if at least one hundred twenty hours have elapsed since the decedent's death, the court, after making the findings required by section 30.1-14-08, shall appoint the applicant subject to qualification and acceptance. If the decedent was a nonresident, the court shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant or unless the decedent's will directs that the estate be subject to the laws of this state. * * (Emphasis supplied). [3] Katrine was represented by counsel until March 19, 1991, when the trial court allowed her counsel to withdraw. "A person acting as his [or her] own attorney is equally bound by rules of procedure as one represented by counsel, even if that person lacks understanding of legal procedures." Vinje v. Sabot, 477 N.W.2d 198, 199 (N.D.1991). [4] Although appealability of the Richland County court's order was not challenged on this appeal, we consider appealability on our own initiative. Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992). In this case, we conclude that the order appointing a personal representative is final and reviewable. NDCC 30.1-02-06.1 directs that "the right to appellate review, interlocutory appeal, ... and power of the appellate court, is governed by the rules applicable to the appeals to the supreme court...." However, NDCC 30.1-12-07 says that "a proceeding for appointment of personal representative is concluded by an order making or declining the appointment." See Matter of Estate of Starcher, 447 N.W.2d 293, 295-296 (N.D.1989). In Jarmin v. Shriners Hospitals, 450 N.W.2d 750 (N.D.1990), a personal representative was removed by court order. The ousted personal representative appealed. "We believe that Jarmin's appeal from his removal as personal representative was independent from his other proceedings regarding the final accounting, and was made from a concluding order on the legatee's petition for removal." Id. at 751 n. 3. We held that the removal order was appealable. [5] NDCC 30.1-13-01(4) says: For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides, or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued. [6] NDCC 30.1-13-03(7) says: A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative. [7] NDCC 30.1-14-08(2) says: Unless section 30.1-17-12 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in subsection 3 of section 30.1-17-10 has been appointed in this or another county of this state, that, unless the applicant is the domiciliary personal representative or his nominee, the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met. [8] Additionally, NDCC 30.1-15-08 says: A final order of a court of another state determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made. The Editorial Board Comment with this section explains: This section is framed to apply where a formal proceeding elsewhere has been previously concluded. Hence, if a local proceeding is concluded before formal proceedings at domicile are concluded, local law will control. Informal proceedings by which a will is probated or a personal representative is appointed are not proceedings which must be respected by a local court under either section 30.1-13-02 or this section. [9] The Editorial Board Comment with this section explains why: This section is designed to reduce the possibility that conflicting findings of domicile in two or more states may result in inconsistent administration and distribution of parts of the same estate. Section 30.1-15-08 dealing with the effect of adjudications in other states concerning testacy supports the same general purpose to use domicilary law to unify succession of property located in different states. Whether testate or intestate, succession should follow the presumed wishes of the decedent whenever possible. Unless a decedent leaves a separate will for the portion of his estate located in each different state, it is highly unlikely that he would want different portions of his estate subject to different rules simply because courts reach conflicting conclusions concerning his domicile. It is pointless to debate whether he would prefer one or the other of the conflicting rules, when the paramount inference is that the decedent would prefer that his estate be unified under either rule rather than wasted in litigation. Though there is more to this Editorial Board Comment, this passage summarizes the importance of determining the domicile of the decedent. [10] Another relevant statute, NDCC 30.1-09-03, declares that "[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions." See Estate of Ostby, 479 N.W.2d 866 (N.D.1992). Furthermore, "unless a duly executed will is ambiguous, the testamentary intent is derived from the will itself, not from extrinsic evidence." Id. [11] See also Fla.Stat. § 731.106(2) (1989): When a nonresident decedent who is a citizen of the United States or a citizen or subject of a foreign country provides in his will that the testamentary disposition of his tangible or intangible personal property having a situs within this state, or of his real property in this state, shall be construed and regulated by the laws of this state, the validity and effect of the dispositions shall be determined by Florida law. * * *	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3349269/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This memorandum is in response to the defendant's Motion for Articulation. The plaintiffs have brought a three-count complaint against the defendant. The action is based upon the defendant's refusal to pay a claim for a loss under the terms of an automobile insurance policy. In Count Two the plaintiffs contend that the defendant, in inducing the plaintiffs to purchase the insurance policy, fraudulently misrepresented its claims payment policies and misled the plaintiffs into paying the premiums based upon the belief that their claims would be honored. In Count Three the plaintiffs contend that these actions constituted theft of the premium paid. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint." NovametricsMedical Services v. BOC Group, Inc., 224 Conn. 210, 214-15,618 A.2d 25 (1992). In ruling, on a motion to strike, the trial court is limited to considering the grounds specified in the motion. Blancata v.Feldspar Corporation, 303 Conn. 34, 44, 522 A.2d 1235 (1987). In ruling on a motion to strike, the court is "limited to the facts alleged in the complaint" and "must construe those facts most favorably to the plaintiff." Novametrix Medical Services v. BOCGroup, Inc., supra, 224 Conn. 215. "A motion strike admits all facts well pleaded." Mingachos v. CBS, Inc., 196 Conn. 91, 108,491 A.2d 368 (1985). In Count Two the plaintiffs identify their claim as based upon the Connecticut Unfair Trade Practices Act (CUTPA), as codified in Connecticut General Statutes § 42a-110a et seq. This act creates a cause of action for unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Connecticut General Statutes § 38a-816 defines unfair methods of competition and unfair and deceptive acts or practices in the business of insurance (CUIPA). CT Page 13986 Connecticut General Statutes § 38a-816 (i) provides: Misrepresentations and false advertising of insurance policies. Making, issuing or circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement, sales presentation, omission or comparison which: (a) Misrepresents the benefits, advantages, conditions or terms of any insurance policy . . ." A CUIPA violation predicated upon misrepresentation or false advertising of insurance policies need not allege more than a single act. John Sygiel et al v. Clifford, Ban Loos InsuranceAgency, Inc. et al, 14 Conn. L. Rptr. No. 18, 561 (Sept. 18, 1995). In the instant action Count Two of the complaint alleges false representation resulting in the payment of premiums. The plaintiff, therefore, has sufficiently alleged a cause of action. "A private cause of action exists under CUTPA to enforce alleged CUIPA violations." Lees v. Middlesex, 219 Conn. 644, 654,594 A.2d 952 (1991). The motion to dismiss the second count of the complaint is denied. In Count Three the plaintiffs claim statutory theft. The plaintiffs must therefore allege that the defendant intentionally deprived them of their funds and that the defendant's conduct was unauthorized. The defendant claims this cause of action cannot be brought against a corporation. The plain meaning of this claim is that the officers and employees of a large corporation conspired and formed the intent to steal money from the plaintiffs. The defendant has correctly identified this as a very dubious assertion. Many claims fall into this category. It does not necessarily follow that they be stricken from the complaint. The motion to strike the third count is denied. Thomas O'Keefe, Jr., Judge	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/705670/	67 F.3d 308 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Sandra Maria SALAZAR; Rene Javier Prado-Salazar, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 95-70170. United States Court of Appeals, Ninth Circuit. Submitted Sept. 18, 1995.Decided Sept. 29, 1995. Before: BROWNING, GOODWIN, and O'SCANNLAIN, Circuit Judges. 1 MEMORANDUM* 2 Sandra Maria Salazar, a native and citizen of Nicaragua, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the order of an immigration judge ("IJ"), denying Salazar's application for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Secs. 1158(a) and 1253(h), and granting her voluntary departure.1 We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a), and we deny the petition. 3 * Background 4 On December 14, 1989, the Immigration and Naturalization Service ("INS") issued Salazar an order to show cause why she should not be deported as an alien who had entered the United States without inspection in violation of section 241(a)(2) of the INA, 8 U.S.C. Sec. 1251(a)(2). Salazar, represented by counsel, conceded deportability, but sought asylum and withholding of deportation for her and her minor son or in the alternative voluntary departure. 5 Salazar's testimony before the IJ and her statements in her application can be summarized as follows. 6 Salazar testified that she and her family were identified as Somoza supporters. Her uncle had been a member of Somoza's National Guard, known as "Commander Bravo." The uncle left Nicaragua after the Sandinistas came to power, but apparently was assassinated in Honduras by Sandinista agents. 7 At the time of the Sandinista revolution in 1979, Salazar was a secretary at the Ministry of Finance. After the Sandinistas came to power, Salazar continued to work at the ministry under the Sandinista government for approximately six years, until 1985. In 1985, she was granted two exit visas by the government. She left the country in 1985 using the second exit visa. 8 While in Nicaragua, Salazar was pressured to join various Sandinista organizations, including the Popular Militia. Salazar claimed that she was subject to various threats and harassment by her co-workers and Sandinista officials because of her refusal to join. Other co-workers also were pressured to join the militia, and several left the country. Salazar also submitted a document indicating that there was a file on her and that it alleged that she was involved in a counter-revolutionary conspiracy and was related to Commander Bravo. Salazar's testified, however, that she has various siblings who still live in Nicaragua, including a brother who uses the "Salazar" family name, and that none has been placed in danger by virtue of their relationship to Commander Bravo. 9 Salazar stated that she was aware of the change in government in Nicaragua and that military draft had been eliminated, but stated that she still feared returning to Nicaragua because the Sandinistas still controlled the military. 10 The IJ found that Salazar had failed to met her burden of establishing past persecution or a well-founded fear of future persecution on account of political opinion or any other enumerated ground. Consequently, the IJ denied Salazar's application for asylum and withholding of deportation, but granted her voluntary departure. 11 The BIA reviewed the entire record and adopted the IJ's decision. Salazar timely petitions for review. II Analysis A. Scope and Standard of Review 12 "The factual findings underlying the decision are reviewed for substantial evidence, and the [BIA's] determination should not be reversed absent compelling evidence of persecution." Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995); INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992) (under substantial evidence standard, the BIA's determination will be upheld unless "the evidence that [the alien] presented was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution"). B. Merits 13 To establish eligibility for asylum based on a well-founded fear of future persecution, asylum applicants must show both a genuine subjective fear of persecution and an objectively reasonable fear. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). The burden is on the applicant to meet this standard. Id. "The objective component requires a showing by 'credible, direct, and specific evidence of facts showing a reasonable fear of persecution' " on account of one of the enumerated grounds. Id. (quoting Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (per curiam)). The mere apprehension of persecution, however, is insufficient to establish a well-founded fear of persecution. Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987). 14 Here, substantial evidence supports the BIA's determination that Salazar failed to meet her burden of proof. The evidence presented by Salazar does not support an objective well-founded fear of persecution. Salazar lived unharassed in Nicaragua for six years after the Sandinista revolution and maintained her job as a Sandinista government employee. While Salazar and others connected with the Somoza regime may have been harassed or discriminated against based on their perceived political opposition to the Sandinista regime, this does not by itself establish a well-founded fear of persecution. 15 A requirement of compulsory military service alone is not sufficient to establish persecution. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1005 (9th Cir.1988); Abedini v. INS, 971 F.2d 188, 191 (9th Cir.1992). Thus, even if the Sandinistas had forced her to join the militia, which they did not, it would not be per se evidence of persecution. See Rodriguez-Rivera, 848 F.2d at 1005. Moreover, Salazar's application for asylum is further undermined by the changes in Nicaragua since 1990 when the Sandinista government was voted out of office and compulsory military service was ended. Finally, Salazar provides no evidence that the current Nicaraguan government is unable or unwilling to protect her from the Sandinistas in the military, nor does she provide objective evidence supporting her subjective fear of persecution. See Acewicz, 984 F.2d at 1061; Blanco-Comarribas, 830 F.2d at 1041-42 (9th Cir.1987). Given the evidence presented, we cannot say that "a reasonable factfinder would be compelled to conclude that [Salazar] was subject to persecution." See Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995).2 16 Because the standard for withholding of deportation is higher than the standard for a grant of asylum and because Salazar has failed to meet the lower standard for eligibility for asylum, we also affirm the BIA's denial of withholding of deportation. See Acewicz, 984 F.2d at 1062. 17 PETITION FOR REVIEW DENIED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Salazar's asylum application also contained a derivative application for her minor son. See 8 C.F.R. Sec. 208.21. Because his claim stands or falls based on Salazar's claim, this disposition will address the challenges to the denial of her application 2 To the extent Salazar's claim is based on persecution suffered by family members, this claim fails too. While persecution or "acts of violence against an [alien's] friends or family may establish a well-founded fear" of persecution, see Arriaga-Barrientos v. INS 937 F.2d 411, 414 (9th Cir.1991), it "do[es] not necessarily establish a well-founded fear of persecution absent a pattern of persecution tied to the [alien]." Prasad, 47 F.3d at 340. Here, no such pattern or connection has been shown Likewise, to the extent Salazar contends that she is entitled to asylum based solely on past persecution, this claim fails too. While past persecution alone may be sufficient, it is limited to situations in which the applicant has suffered "under atrocious forms of persecution." Acewicz, 984 F.2d at 1062 (citing Matter of Chen, Int.Dec. 3104 at 4 (BIA 1989)); Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988). Here, no such showing was made.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2235935/	929 N.E.2d 174 (2006) 367 Ill. App.3d 1104 PRATE v. FOUR OAKS DEVELOPMENT CORP. No. 2-05-1259. Appellate Court of Illinois, Second District. October 23, 2006. Aff'd in pt. & mod. in pt.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615061/	847 P.2d 165 (1992) W.D. TRIPP and Mining Services Exchange, Ltd., and Andrea S. Berger, Trustee in Bankruptcy, Plaintiffs-Appellees, v. Viola Joan PARGA, Defendant-Appellant. No. 91CA0335. Colorado Court of Appeals, Div. I. August 13, 1992. Rehearing Denied September 10, 1992. Certiorari Denied March 8, 1993. 166 Butler, Landrum & Pierce, P.C., Robert G. Pierce, Lakewood, for plaintiffs-appellees. Dixon and Snow, P.C., Steven Janiszewski, Denver, for defendant-appellant. Opinion by Judge DAVIDSON. In an action to enforce a settlement agreement, defendant, Viola Joan Parga, substituted in June 1983 for her husband Robert Parga upon his death, appeals from the judgment in favor of plaintiffs, W.D. Tripp and bankruptcy trustee, Andrea Berger. The case was tried after remand from this court reinstating plaintiffs' action to enforce the agreement. See Tripp v. Parga, 764 P.2d 367 (Colo.App.1988) (85CA1713). We affirm. This is the fourth appeal involving these parties and the procedural history of this case is set forth in Tripp v. Parga, supra. As pertinent here, on February 17, 1983, a judgment for $437,000 was entered in favor of Parga after a jury trial. On February 23, 1983, Parga's attorney wrote a letter to Tripp's counsel offering to settle the case if Tripp would accept the offer by February 28 and deliver $250,000 to Parga's attorney's office by 4:00 p.m. on March 2, 1983. Tripp's attorney accepted the offer by telephone on February 28, 1983, and, within the hour, hand delivered a letter to that effect to counsel's office. Within minutes after delivery of the letter, Parga's attorney telephoned Tripp's attorney, who was then out of the office, and left a message that the offer was revoked. On March 2, Tripp and his attorney attempted to hand a certified check for $250,000 to Parga's attorney pursuant to the terms of the offer but tender was refused. By letter dated March 3, Tripp's attorney notified Parga's counsel that he considered the attempted revocation of the February 23 offer as ineffective and would institute a breach of contract action if the settlement did not proceed. The letter stated: "In the meantime, to protect my client's rights pertaining to post-trial motions, I am enclosing copies of Motion for Enlargement of Time and Motion for Stay of Execution in this matter. The filing of this Motion in no way should be construed as a withdrawal of the acceptance of the offer of settlement or the intention to timely tender the funds in accordance with the offer of settlement." Shortly thereafter, with new counsel, and after his post-trial motions were denied, Tripp filed notice of appeal of the $437,000 judgment and posted a $480,000 supersedeas bond (83CA1329). Then, on April 1, 1985, Tripp filed a separate action against Parga to enforce the settlement agreement. As relevant here, the trial court granted Parga's motion 167 to dismiss that action for lack of jurisdiction. Specifically, the court determined that the claim was a collateral attack on the judgment. Tripp filed an appeal of that dismissal (85CA1713). On December 10, 1985, Tripp filed a motion for limited remand with this court in 83CA1329 to allow him to proceed in the trial court to enforce the settlement or for a stay in order to determine the validity of the settlement. In his motion, Tripp explained that he intended to sue to enforce the agreement, but "would continue to protect his client's rights in [this case] in the meantime." Although Tripp was of the opinion that the enforcement action had been erroneously dismissed and that he had a right to bring a separate action, he requested that this court enter a limited remand of the appeal in order to determine the validity of the settlement. In the alternative, Tripp requested a stay of both appeals in order to resolve the issue of the enforcement of the settlement. Parga opposed the request for a limited remand or stay, alleging that it would produce "redundant litigation." On December 27, 1985, this court denied the motion for limited remand, denied the stay of the appeal, and in September 1986, affirmed the underlying judgment, see Parga v. Tripp (Colo.App. No. 83CA1329, September 11, 1986) (not selected for publication) and remanded the case for determination of interest. On remand, Tripp filed a motion under C.R.C.P. 60(b) to enforce the settlement agreement but, on Parga's motion, that also was dismissed. Tripp appealed that order in 87CA1030. While the appeals of 87CA1030 and 85CA1713 were pending, Parga proceeded to collect the $485,000 posted by the bonding company in satisfaction of the judgment in 83CA1329. Subsequently, on May 26, 1988, a division of this court affirmed the dismissal in 87CA1030, but reversed the decision of the trial court dismissing the enforcement action in 85CA1713, and ordered reinstatement of Tripp's action for specific performance. Shortly thereafter, Tripp filed for bankruptcy protection and moved to add the trustee as a party. Parga opposed the substitution, and the trial court granted summary judgment to Parga on the grounds that Tripp lacked standing to prosecute the action. Tripp appealed that decision, which also was reversed by this court on March 1, 1990, (89CA0647) and this action, once again, was reinstated. After a bench trial, the trial court determined that a settlement contract had been formed on February 28, 1983, and that Tripp had neither waived nor abandoned his rights under the settlement agreement. It thus awarded $235,000 to Tripp "which represents the difference between the amount that [defendant] received and the amount of the settlement of $250,000." Parga appeals, and we affirm. I. Parga first contends that the trial court erred by denying her motion for judgment on the pleadings. Specifically, she argues that, by pursuing the appeal of the $437,000 judgment, Tripp elected to disaffirm rather than enforce the settlement agreement and, thus, waived his right to its enforcement. We disagree. Judgment on the pleadings is appropriate if, after the trial court construes the allegations of the pleadings strictly against the movant, the movant is entitled to judgment as a matter of law. Abts v. Board of Education, 622 P.2d 518 (Colo.1980). Waiver is the intentional relinquishment of a known right and may be implied when a party engages in conduct which manifests an intent to relinquish the right or privilege, or acts inconsistently with its assertion. To imply a waiver by conduct, the conduct should be free from ambiguity and clearly manifest the intention not to assert the benefit. Duran v. Housing Authority, 761 P.2d 180 (Colo.1988). Whether a party's inconsistent actions manifests an intent to waive is a factual determination. Vogel v. Carolina International, Inc., 711 P.2d 708 (Colo. App.1985). 168 "A [party] is entitled to take all legal steps to protect his interests and does not waive or abandon any course of action open to him in the absence of an intentional relinquishment of a known right." Judd v. Queen City Metro, 31 Ohio App. 3d 88, 508 N.E.2d 1034 (1986). Parga's assertions to the contrary notwithstanding, Tripp's action in filing an appeal, in and of itself, was not inconsistent with the assetion of a settlement agreement. Here, after Tripp accepted Parga's offer to settle, Parga refused to accept Tripp's tendered $250,000, repudiated the agreement, and refused to perform. Thus, at the time Tripp filed for appeal, the validity of the settlement agreement was in dispute. In such a circumstance, there is no "known" right to waive or abandon. See Judd v. Queen City Metro, supra (after one party repudiates a settlement agreement reached after judgment and pending appeal, there is no waiver if victorious party attempts to execute on the judgment). Thus, under these circumstances, Tripp's actions were not a "disaffirmance" of the settlement agreement. Cf. Reifschneider v. Nebraska Methodist Hospital, 212 Neb. 91, 321 N.W.2d 445 (1982) (pursuing tort action, plaintiff elected to terminate settlement contract); Village of Kaktovik v. Watt, 689 F.2d 222 (D.C.Cir.1982) (willingness to rescind settlement contract inferred from action of party to proceed with hearing). Parga also contends that, because "cessation of legal action" was part of the bargain, Tripp, by proceeding with an appeal became unable to perform under the settlement agreement. We do not agree. Contrary to Parga's assertion, if Tripp had been able to have the validity of the settlement agreement determined before the appeal was decidedan effort made numerous times by Tripp and successfully resisted each time by Pargathe appeal would have been rendered moot. Furthermore, we disagree with Parga's contention that Howlett v. Greenberg, 34 Colo. App. 356, 530 P.2d 1285 (1974) establishes a rule of law that, by the pursuit of an appeal, a party waives its right to enforce a prior settlement agreement as a matter of law. In Howlett, a division of this court determined that by pursuing an appeal of the denial of intervention in an underlying suit, the intervenors could not assert a breach of settlement contract action against the defendant. However, the circumstances in that case are dissimilar to those at issue here. Although the facts set forth in Howlett are sparse, we infer from the opinion that the material terms of the agreement were that defendant would pay a certain sum of money to intervenors and intervenors would drop the appeal of the denial of its motion to intervene. Defendant did not pay and the intervenors did not drop the appeal. Thus, this court concluded that since these obligations were mutual and concurrent and since neither party had performed, neither could be in breach. It is significant that the validity of the settlement agreement in Howlett was not in dispute. Here, on the other hand, a material part of Tripp's performance was to pay $250,000 to Parga. Parga's performance was to accept that amount in satisfaction of the outstanding judgment. Implicit in this agreement was that subsequent to the acceptance of the money, the litigation, including the appeal, would be terminated. Unlike the situation in Howlett, Tripp, by tendering the $250,000, materially performed. However, Parga refused to accept Tripp's performance and repudiated the agreement. Thus, proceeding with the filing of an appeal after Parga's refusal to accept the money was not, as in Howlett, a failure to perform its contractual obligation. II. In June 1983, after the parties had entered into the settlement agreement, Tripp's attorney sent a new written offer of settlement to Parga, which Parga rejected, proposing that the settlement figure be reduced to $150,000. Parga argues that this conduct, in light of the fact that Parga had refused Tripp's tender of $250,000, demonstrated that Tripp had abandoned the previous settlement agreement. She 169 contends, therefore, that the trial court erred by not finding that Tripp was estopped from asserting his rights under the initial settlement. We do not agree. Abandonment of a contract can be shown by a person's positive and unequivocal acts that are inconsistent with the party's intent to be further bound when coupled with the other party's acquiescence in those acts. See Martin v. Montezuma-Cortez School District RE-1, 809 P.2d 1010 (Colo.App.1990). Whether a contract has been abandoned is one of fact and the burden of proof is on the party claiming abandonment. Hoff v. Girdler Corp., 104 Colo. 56, 88 P.2d 100 (1939). There must be clear evidence of an intent to abandon. School District RE-2(J) v. Panucci, 30 Colo. App. 184, 490 P.2d 711 (1971). Here, at the time Tripp made the new offer, he had already accepted Parga's offer. Subsequently, claiming that his physical health and financial well-being had deteriorated, Tripp proposed that the settlement amount be reduced. Parga's argument is that, if Tripp considered that a settlement had been reached, then to present a new offer was inconsistent with that viewpoint and constituted an abandonment of the position that the case was settled. The trial court rejected this argument: "When the plaintiff says there's a settlement agreement and you say there's not a settlement agreement, what you're saying is, he's supposed to act consistent only with that and ignore the fact you've repudiated and said there's no settlement agreement. That doesn't make any sense." Thus, the trial court found that Tripp intended to be bound by the settlement agreement and that his attempt to substitute a lower settlement amount was not inconsistent with that intent. Supported as they are by evidence in the record, we will not disturb these findings on appeal. See Martinez v. Continental Enterprises, 730 P.2d 308 (Colo.1986). III. The trial court found that, under the settlement agreement, Parga had agreed to accept $250,000 from Tripp in satisfaction of judgment in the underlying case. Moreover, it concluded that Parga had been unjustly enriched by $235,000the difference between the $485,000 judgment that Parga received when the underlying case was affirmed on appeal and the $250,000 for which Parga had agreed to settleand entered judgment for Tripp in that amount. Parga contends, however, that the evidence was insufficient to establish that her enrichment was unjust. Specifically, she asserts that there were no inequitable circumstances here in that she obtained the $485,000 from the bonding company that posted the appeal bond and "took her money only after winning on appeal, fair and square." We reject this argument. To establish the right to recover sums on the basis of unjust enrichment, a plaintiff must establish: (1) that a benefit was conferred on an adverse party; (2) that the benefit was appreciated by the adverse party; and (3) that the benefit was accepted by the adverse party under such circumstances that it would be inequitable for it to be retained without payment of its value. Martinez v. Continental Enterprises, supra. Restitution, such as that ordered here, is generally awarded when the defendant has gained a benefit that it would be unjust for him to keep, even if he gained it honestly. D. Dobbs, Remedies § 4.1 (1973). Here, with record support, the trial court determined that, although the parties had agreed to settle the case for $250,000, Parga ultimately received judgment for $485,000. Thus, the court concluded that the amount paid to Parga in excess of $250,000 was unjust. We perceive no error. See People v. Perse, 750 P.2d 923 (Colo.App.1988). The judgment is affirmed. STERNBERG, C.J., and NEY, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874801/	253 F. Supp. 330 (1966) UNITED STATES of America for the Use and Benefit of John McGRATH et al., Plaintiff, v. The TRAVELERS INDEMNITY COMPANY, Defendant. No. Civ-1013-Pct. United States District Court D. Arizona. April 1, 1966. *331 Snell & Wilmer, Phoenix, Ariz., for plaintiff. Langerman, Begam & Lewis, Phoenix, Ariz., for defendant. CRAIG, District Judge. Defendant's motion to dismiss the complaint was heard by the Court, and leave was granted to both parties to submit supplemental memoranda. Such memoranda having been submitted, the Court is now fully advised, and hereby orders that defendant's motion to dismiss be granted. The plaintiffs filed their complaint on July 14, 1965, for amounts relating to labor furnished defendant's principal prior to October 1, 1963. Plaintiffs sue upon the basis of the Miller Act, 40 U.S.C. § 270a et seq. Defendant contends that the complaint is not timely, because it was not filed within one year after the last day on which labor for which claim is made was performed, as required by a subpart of the Miller Act, 40 U.S.C. § 270b(b), as amended in 1959. Plaintiff alleges that a correct interpretation of this subpart would indicate the running of the one-year period was to begin from the last date any labor was furnished under the contract. Defendant contends that the subpart should be interpreted to indicate that the one-year period began on the last date labor for which claim is being made was furnished, although the italicized phrase is not present. Defendant would thus interpret this subpart to be consistent with the preceding subpart, 40 U.S.C. § 270b(a), which definitely states that the period in that subpart for notice, 90 days, begins to run upon delivery or performance of the labor for which claim is made. United States for the Use and Benefit of Edwards v. Reiss (CCA2 1959), 273 F.2d 880, so holds in regard to subpart (a). The phrase "for which claim is made" was held to be present by implication in subpart (b) by the Court in United States for the Use and Benefit of General Electric Co. v. Southern Construction Co. (DC La.1964), 229 F. Supp. 873, affirmed on rehearing 236 F. Supp. 742. This decision contains a complete analysis of the question at issue in this case, the time at which the one-year period of subpart (b) begins to run. It indicates it begins to run on the day after the end of performance of labor for which claim is made. A subsequent case held that the rule in Southern Construction was to be followed, even though there was further performance of the contract at a subsequent time. United States for the Use and Benefit of First National Bank of Jackson v. United States Fidelity & Guaranty Co. (DC Okl.1965), 240 F. Supp. 316. This Court finds that the filing of plaintiffs' claim is not timely under the Miller Act, 40 U.S.C. § 270b(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3346281/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION In the trial of this case, the plaintiff seeks to recover damages from the defendant, his former landlord, which damages, he alleges, were caused by the defendant's illegally locking him out of leased commercial premises. At a prior hearing the court found that indeed the defendant had illegally entered the premises the plaintiff leased from him and had prevented the plaintiff from entering and operating his machine tool and die business. The parties are in agreement that the "lockout" was in force for about thirty days. The plaintiff alleges a CUTPA violation, the loss of present and future earnings and business, and property damage. The defendant has counterclaimed for unpaid rent and use of occupancy. I The plaintiff presented evidence pertaining to alleged building code violations and deficiencies in the heating system for the demised premises. However, there is no count of the complaint dealing with this subject. It is also noted that the plaintiff first complained to building and code officials fourteen months after first occupying the premises and after the defendant had started a summary process action for nonpayment of rent. The court finds no basis for an award of damages on this offer and cannot find a constructive eviction as claimed in argument. II The plaintiff has also alleged a loss of earnings and future business. Though the invoices offered to support part of this claim (Exhibits F G) are not complete, they are sufficient to support the plaintiff's claim for the period of the lockout and the court does find that the plaintiff suffered a loss of earnings for that period of $984 for each of the two companies to which copper washers were shipped every month. On the J. L. Clark contract, the plaintiff testified to an annual profit of $20,000 or about $1,666.66 per month — the length of the lockout. The court also accepts the plaintiff's testimony that he lost $5,000 during the lockout on "daily" or "one-time" work. From these "earnings", operating expenses must be deducted so that from the total awarded of $8,634.66, a deduction of $4,050 is made, leaving the net earning figure at $4,584.66. (The plaintiff CT Page 613 testified that his overhead was $135 a day). The court also finds the plaintiff is entitled to a loss sustained in the amount of $1,021.64 because during the lockout he was unable to receive shipments of metal at the leased premises and had to store two shipments elsewhere. The plaintiff's claim for loss of future business, as presented, is that due to the lockout, he lost three customers because he was unable to ship to them on schedule. Two of these customers have allegedly threatened to sue the plaintiff because he caused their production lines to close down — due to his being locked out, he failed to ship parts to them. In determining the judicial standard for awarding damages in the analogous situation of breach of contract, our Supreme Court has stated that "there is no unbending rule as to the evidence by which . . . compensation is to be determined." Fuessenich v. DiNardo,195 Conn. 144, 153 (1985), quoting Bachman v. Fortuna, 145 Conn. 191, 194 (1958) and Lee v. Harris, 85 Conn. 212, 214 (1912). Damages may be based on reasonable and probable estimates. Fuessenich, supra at 153; Kay Petroleum Corporation v. Piergrossi, 137 Conn. 620, 624 (1951). "But it is equally clear that damages must be based on evidence." Fuessenich, at 153. The plaintiff has the burden of submitting the best evidence possible to support his claim for damages. Johnson v. Flammia,169 Conn. 491, 501 (1975). "It is incumbent upon a plaintiff in a contract action to prove his damages with all the certainty which is reasonably possible. . . ." Southern New England Contracting Co. v. State, 165 Conn. 644, 651, quoting Bartolotta v. Calvo, 112 Conn. 385,395 (1931). Similarly, in a personal injury action where a self-employed plaintiff claimed loss of future profits, the Supreme Court noted: "The evidence. . . must be of such nature as to remove the issue from the realm of speculation. . . . It is not necessary that the amount of the loss be established with exactness so long as the evidence affords a basis for a reasonable estimate by the [trier of fact]." Delott v. Roraback, 179 Conn. 406, 411 (1980). There was no evidence submitted as to the terms of these contracts and the prospects for them to continue. No accountant or bookkeeper testified; no company records of tax returns were offered. As to one contract, the plaintiff testified to a long standing relationship and a handful of recent invoices were placed in evidence as to the two contracts for washers. These invoices do not support the premise that the contracts produced the maximum amount claimed each and every month. Nor was the court presented with evidence to indicate the life of the contracts. CT Page 614 The plaintiff established that he probably had a valid claim for a loss of future profits, but he provided the court with insufficient evidence to substantiate an amount. On this question, the court cannot speculate and must deny recovery. III The plaintiff also claimed damages for the personal property on the premises — mostly machinery and the metal tools with which they operated. Specifically, the plaintiff testified that "70% of the stuff had rust on it." However, an expert witness called by the plaintiff stated that though the plaintiff told him of rust and water damage, he didn't see any and doubts if there was any. The court was presented with a single "block"1 (Exhibit E), measuring about one inch by two inches, showing a deposit of rust. The plaintiff's expert made no reference to rust on any "blocks" and there is no corroboration of any kind to substantiate the claim of damaged machines and blocks. In the face of the statement of the plaintiff's expert witness, the court is compelled to conclude that on this claim, the plaintiff has not sustained his burden of proof. IV The amounts awarded the plaintiff totalling $5,606.30 are doubled and awarded as damages, pursuant to Section 47a-46. The court has already found in a prior proceeding that the defendant entered into the land of the plaintiff by force and injured the plaintiff in the manner described in Section 47a-43. Judgment may therefore enter for the plaintiff in the amount of $11,212.60 on Counts 1, 3, and 4. V The defendant's actions in barring the plaintiff from the leased premises, holding his personal property until back rent was paid, all without legal process, is a flagrant CUTPA violation. Significantly, prior to actually taking this course of action on or about January 23, 1989, the defendant wrote to the plaintiff and advised him of his intention. (Exhibit H, dated December 29, 1988). The court finds the acts of the defendant to be violations of CUTPA and as punitive damages awards $5,606.30. The plaintiff also claims counsel fees of $9,800 under CUTPA. There were numerous motions and pleadings filed in this case and the plaintiff was obliged to resort to an extraordinary remedy and seek CT Page 615 ex parte relief to have the plaintiff restored to possession. However, the court found failures of the plaintiff's proof of damages and no trial brief was filed. Under CUTPA, the plaintiff is entitled to counsel fees but those fees must be reasonable. The court finds an award of counsel fees in the amount of $7,000 is appropriate and reasonable under the circumstances. VI The defendant has counter-claimed for back rent, with counsel stipulating that the sum of $5,370.30 is due to the defendant. However, they could not agree as to whether a payment of $1,100 was made. There is a further discrepancy in the computations made by both sides. The court concludes that the defendant is entitled to recover from the plaintiff the sum of $8,408.80 on the counterclaim. CONCLUSION In summary, judgment may enter for the plaintiff to recover the total sum of $23,818.90 from the defendant, which, when reduced by the defendant's judgment on the counterclaim, results in a net judgment for the plaintiff of $15,410.10 plus taxable costs. DeMAYO, JUDGE	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3099842/	DISMISS; and Opinion Filed August 13, 2013. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00961-CV TARA LAKES, Appellant V. WILLIAM COLEMAN, Appellee On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-13-05593 MEMORANDUM OPINION Before Justices O’Neill, Francis, and Fillmore Opinion by Justice O'Neill The Court has before it appellant’s motion to dismiss the appeal which states appellant no longer wishes to pursue the appeal. We grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(1). /Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE 130961F.P05 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT TARA LAKES, Appellant On Appeal from the 255th Judicial District Court, Dallas County, Texas No. 05-13-00961-CV V. Trial Court Cause No. DF-13-05593. Opinion delivered by Justice O’Neill, WILLIAM COLEMAN, Appellee Justices Francis and Fillmore participating. In accordance with this Court’s opinion of this date, we DISMISS the appeal. We ORDER that appellee William Coleman recover his costs of this appeal, if any, from appellant Tara Lakes. Judgment entered this 13th day of August, 2013. /Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE –2–	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1874454/	288 Wis.2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 YAHN v. DOOCY. No. 2004AP003018. Court of Appeals of Wisconsin. October 20, 2005. Unpublished Opinion. Vacated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4274109/	Moreno v Trustees of Columbia Univ. in the City of N.Y. (2018 NY Slip Op 03448) Moreno v Trustees of Columbia Univ. in the City of N.Y. 2018 NY Slip Op 03448 Decided on May 10, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 10, 2018 Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ. 6525 155112/15 [*1]Candida Moreno, Plaintiff-Respondent, vThe Trustees of Columbia University in the City of New York, Defendant-Appellant. Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant. Saftler & Bacher, PLLC, New York (James W. Bacher of counsel), for respondent. Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about April 25, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Plaintiff alleges that she slipped and fell on a pathway on defendant Columbia University's campus, which was covered by snow over a layer of ice. Defendant established prima facie entitlement to summary judgment by submitting certified climatological data showing that a storm was in progress at the time of plaintiff's fall so that its duty to take reasonable measures to remedy dangerous conditions caused by the storm was suspended (see Valentine v City of New York, 86 AD2d 381, 383 [1st Dept 1982], affd 57 NY2d 932 [1982]; Kinberg v New York City Tr. Auth., 99 AD3d 583 [1st Dept 2012]; Pippo v City of New York, 43 AD3d 303, 304 [1st Dept 2007]). In opposition, plaintiff failed to raise a triable issue of fact. The opinion of plaintiff's expert was too speculative to raise an issue of fact as to whether defendant's snow removal efforts involved insufficient salt or ice melt materials, resulting in the creation of new ice that was covered by the snow (see Rivas v New York City Hous. Auth., 140 AD3d 580, 581 [1st Dept 2016]; Bi Fang Zhou v 131 Chrystie St. Realty Corp., 125 AD3d 429, 430 [1st Dept 2015]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MAY 10, 2018 CLERK	01-03-2023	05-10-2018
https://www.courtlistener.com/api/rest/v3/opinions/3079419/	COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § IN RE: No. 08-13-00292-CR § BRIAN ANTHONY ENGLETON, AN ORIGINAL PROCEEDING § Relator. IN MANDAMUS § § JUDGMENT The Court has considered this cause on the Relator’s petition for writ of mandamus against the Honorable Maria Salas-Mendoza, Judge of the 120th District Court of El Paso County, Texas, and concludes that Relator’s petition for writ of mandamus should be denied. We therefore deny the petition for writ of mandamus, in accordance with the opinion of this Court. IT IS SO ORDERED THIS 18TH DAY OF OCTOBER, 2013. GUADALUPE RIVERA, Justice Before McClure, C.J., Rivera, and Rodriguez, JJ.	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2615078/	668 P.2d 96 (1983) 105 Idaho 220 Roy Dean HOLLOWAY, Plaintiff-Appellant, v. E.C. PALMER, individually, and as Sheriff of Ada County, Idaho, and R.W. Christensen, Dick Chastain, Hugh Brady, Dave Sarvis, and Matt O'Rourke, Jr., individually and as Commissioners of the Ada County Sheriff's Deputies Merit System, Defendants-Respondents. No. 14031. Supreme Court of Idaho. June 3, 1983. Rehearing Denied September 8, 1983. 97 Frank W. Stoppello, Boise, for plaintiff-appellant. Greg Bower, Pros. Atty., and Scott L. Campbell, Deputy Pros. Atty., James J. Davis, of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for defendants-respondents. BISTLINE, Justice. On September 14, 1978, Roy Dean Holloway was terminated from his position as sergeant with the Ada County Sheriff's Department (hereafter Department). Sgt. Holloway had been a member of the Department for four and one-half years prior to his termination and was undisputedly considered an officer in good standing prior to that time. In addition to being an officer with the Department, Sgt. Holloway had also been elected President of the Ada County Deputy Sheriff's Union in December of 1977, which Union consisted of fifty-five 98 members of the Department. The events which culminated in Sgt. Holloway's dismissal began with the Union's decision to sponsor a fund raiser, the proceeds of which were to be used to establish a fund to assist law enforcement officers who had suffered personal losses and to donate to local organizations dealing with deterrence, correction and rehabilitation of juvenile offenders. On August 15, 1978, the Union decided to sponsor a western show at the Western Idaho Fairgrounds called the Merle Haggard-Marty Robbins Western Show. On or about March 28, 1978, the Union, through Sgt. Holloway, sent a letter to Sheriff Palmer notifying him of its intent to sponsor a fund raiser, similar to fund raisers which had been sponsored by other groups in the Sheriff's office in earlier years. The letter informed Sheriff Palmer that telephone solicitation would be used as the means of promoting the fund raiser. Receipt of this letter by Sheriff Palmer prompted a meeting between the Sheriff and Sgt. Holloway. At this meeting the Sheriff informed Sgt. Holloway of his dislike of telephone solicitations and of past problems involving adverse public reaction to telephone solicitations. The Sheriff made it clear to Sgt. Holloway that he did not agree with the proposed solicitation, that he would not permit it, and that he would use any means to stop it, even to the extent of going to the news media. The Sheriff did not warn Sgt. Holloway about any possibility of termination or other punishment which would result from proceeding with the proposed fund raiser. In August, the Union contracted with Wildwood Productions, Inc. (Wildwood), a known and reputable firm, which agreed to promote the show. The promoter, as an independent contractor, agreed to be solely responsible for the promotion and production of the show, which was to include the sale of advertising space in a souvenir booklet to businesses in the area, and the free distribution of the souvenir booklet to persons who attended the show. The contract required Wildwood to comply with all requests of the Union pertaining to the sales pitch used in the advertising solicitation[1] and also required Wildwood to comply with all Boise City, Ada County, and State of Idaho laws, ordinances and regulations which applied to the sale of advertising and tickets and to the presentation of the show. Ticket and advertising sales were the source of revenue anticipated under the contract to finance the show and benefit the Union. Neither Sgt. Holloway nor any other Union deputy took any direct part in the promotion of the show or sale of advertising, other than to account for receipts. On or about August 25, 1978, Wildwood began contacting local businesses. No local solicitation license had been obtained at that time.[2] On August 30, 1978, Sgt. Holloway was called to the Sheriff's office to discuss the promotion and the sales pitch used by Wildwood. The Sheriff told Sgt. Holloway that citizens had complained about the sales pitch and that the solicitors were representing that the funds were to be used for a "burnout fund" and were making other inaccurate statements. Although not entirely clear from the record, it appears that the Sheriff also told Sgt. Holloway at that time that Wildwood had been operating in violation of the Boise City Code by soliciting without a license. The Sheriff told Sgt. Holloway that if the Union was going to go 99 around him and proceed with the solicitation, it had to be legal, and that the solicitors could not use the Department's name.[3] The Sheriff told Sgt. Holloway to take county time, if necessary, but to get the thing straightened out. That same day, in compliance with the Sheriff's request, Sgt. Holloway notified Wildwood of the Sheriff's problems and criticisms and asked that the problems be corrected. That day, Wildwood made its application for a license to the Boise City License Commission. The following evening, August 31, 1978, a hearing was held before Mr. Keith Kendall of the License Commission. No decision on the requirement of a license was made at that time and Wildwood was not asked to discontinue its promotion until a decision was made thereon. On September 7, 1978, Sgt. Holloway again met with Sheriff Palmer. The Sheriff criticized the sales pitch used by Wildwood. The Sheriff asked one of his officers to call and record the exact language being used to sell the advertising. The Wildwood employee who responded to this telephone call stated "I'm calling for the Sheriff's Department and the Sheriff's Deputies Union ... ." Immediately thereafter, Sgt. Holloway contacted the principals of Wildwood and again asked that Wildwood not make any reference to the Sheriff himself or to the Department. In addition, he composed a letter which again spelled out a proper format which would comply with Sheriff Palmer's wishes. The next day, September 8, 1978, Wildwood was informed that the License Commission had approved its application for a license but that a $5,000 cash bond would have to be posted. Because the Union could not immediately supply such a bond, Wildwood immediately terminated its solicitation campaign. Six days later on September 14, 1978, Sgt. Holloway was on duty when he was called to the office of Sheriff Palmer. As he stepped into the office, Sgt. Holloway was handed his "termination" letter notifying him of his dismissal, "effective immediately." The letter recited that Sgt. Holloway had violated a direct order to stop the promotion of the show, was continuing to engage in illegal solicitations, had been found to be in violation of a state statute, and was bringing the Department into disrepute. Sgt. Holloway responded that the solicitation by Wildwood had ended on September 8, and that no orders had ever been given regarding Wildwood's actions. The Sheriff then took back the letter and stated he would redraft it, but that Sgt. Holloway remained fired. Sheriff Palmer testified that he tore up the original termination letter and sent Sgt. Holloway a termination letter which deleted language referring to continuing solicitations. Shortly after Sgt. Holloway was fired, Greg Cornwall, vice-president of the Union, was approached by Personnel Director Larry Richards, and was told he would also have been fired if he had signed the contract executed between the Union and Wildwood. Sheriff Palmer admitted at the hearing that after the termination he had joked in front of some Boise City police officers that he could not find anyone to assume the presidency of the Union after he fired Sgt. Holloway. As required to preserve his rights under Ada County Ordinance Number 60, Sgt. Holloway appealed his termination to the Ada County Sheriff's Deputies Merit System Commission (hereafter Commission). Subsequent to the filing of that appeal and before the hearing before the Commission, Sgt. Holloway brought an action in the 100 district court against the Commission and Sheriff Palmer, alleging violation of his constitutional rights by the termination and requesting a preliminary injunction to prohibit the Commission from hearing the case. The district court refused to enjoin the hearing before the Commission, but ruled that the complaint would not be dismissed and that the court would later hear the complaint if Sgt. Holloway was not satisfied with the outcome of the hearing before the Commission. After a hearing on November 14 and 15, 1978, the Commission issued its decision. Three members of the five member Commission upheld the termination of Sgt. Holloway, one member dissented and one member was absent from the hearing. Sgt. Holloway then filed an amended complaint in the district court which included a second count requesting a review of the Commission's decision, attorney's fees, and damages. Pursuant to a stipulation of the parties, the district court heard the second count as a writ of review. In its decision of July 7, 1980, the district court remanded the matter to the Commission for additional findings: "I am unable to determine whether there is substantial evidence to support the findings of the Commission, and whether reasonable minds might accept the evidence as adequate to support the same, because I conclude that the findings of the Commission are not sufficiently clear and concise. There is not, in my opinion, a sufficient adjudication of exactly what activity of the petitioner was objectionable, nor what statute, ordinance, established policy, rule or regulation, (whether Sec. 48-603(a) of the Idaho Code, and/or others) proscribed such activity. I must conclude as a matter of law that the findings are not sufficiently extensive and exacting to support the Commission's conclusions that the Plaintiff's employment was terminated in good faith and for cause. The findings leave open to speculation the question of the nature of the `involvement of the Plaintiff'; the nature of the `activity which the Plaintiff was so involved in'; the nature of the `public criticism' resulting therefrom; etc." A motion to amend this order was immediately filed by Sgt. Holloway on the basis that the "Merit Commission is no longer in existence and therefore without authority to enter additional findings of fact." On October 6, 1980, the district court found that a remand would indeed be ineffective because the Commission was no longer in existence.[4] On December 22, 1980, the district court substituted its own findings of fact[5] for those of the Commission and concluded as a matter of law that Sgt. Holloway had been terminated for cause and in good faith. 101 The district court thereby affirmed the Merit Commission decision.[6] I. SCOPE OF REVIEW In Local 1494 v. City of Coeur d'Alene, 99 Idaho 630, 586 P.2d 1346 (1978), this Court determined the scope of district courts' judicial review of agency decisions. That case involved a dispute between the City of Coeur d'Alene and Local 1494 of the International Association of Firefighters, the collective bargaining agent for seventeen firefighters who were terminated for their participation in a strike against the City. The Civil Service Commission held a public hearing and issued a decision finding that the strike was illegal and that the discharge of the firefighters was justified. The Commission's decision was conclusory and incomplete in form setting forth no factual basis to support its ultimate conclusion that the City acted in good faith and for cause. The district court on appeal entered its own findings of fact and conclusions of law. This Court reviewed the district court procedure under the substantial evidence rule which "is said to be a `middle position' which precludes a de novo hearing but which nonetheless requires a serious review which goes beyond the mere ascertainment of procedural regularity." Id. at 633, 586 P.2d at 1349 (emphasis added). "[T]he substantial evidence rule requires a court to determine `whether [the agency's] findings of fact are reasonable.'" Id. at 634, 586 P.2d at 1350 (citing 4 Davis, Administrative Law Text § 29.01-02 at 525-530). In Local 1494, we held that this substantial evidence standard is flexible with its application depending on such factors as: (1) the character of the administrative agency which in that case differed significantly from that of the major commissions having statewide jurisdiction; (2) the structural make-up and function of the agency, i.e., the degree of impartiality and disinterested justice which could be exercised by the agency; (3) the character of the agency, the roles committed to it by statute and the manner in which it functioned; and (4) the nature of the issue being reviewed. Applying these factors, we upheld the district court's liberal application of the substantial evidence rule in conducting a full and thorough review of the civil service determination. We held that the district court's substitution of findings of fact and conclusions of law for that of the Commission was proper: "On judicial review of a civil service commission determination, the district court is required to conduct a full review of the whole record and, where the commission's conclusions are unsupported by substantial evidence, its function encompasses stating, both for the benefit of the parties and this Court, its reasoning and conclusions which very well may but need not take the form of findings and conclusions. That is exactly what the trial court did in the present case. That the trial court, in rendering its appellate decision, did so by way of enumerated conclusions and enumerated findings, rather than in appellate opinion form, is without significance." Id. at 638, 586 P.2d at 1354 (emphasis in original). The district court in the present case properly exercised the type of appellate review contemplated in Local 1494. Applying the rule set forth in Local 1494, we hold that it was necessary for the district court to liberally apply the substantial evidence rule in conducting a full and thorough review of the agency record: (1) Like the Civil Service Commission in Local 1494, the agency here involved was a local commission unaccustomed to addressing problems of the magnitude of an alleged dismissal of a classified employee for union activities; (2) although the Commission had outward indices of impartiality,[7] it was alleged by 102 Sgt. Holloway that the Commission had failed to exercise or assume jurisdiction; that the Commission had delegated its authority to Sheriff Palmer; and that the Commission had failed to perform its obligation to adopt and publish rules and regulations. These allegations were at no time controverted by either the Merit Commission or Sheriff Palmer; (3) The nature of the issue involved in this case is one not within the expertise of the Commission. As we stated in Local 1494: "In the present case, the concern is not with an administrative/legislative type decision ... within the expertise of a specialized agency but rather with... `the right to a continual employment' ... We have recently stated that such a right is a constitutionally protected property interest." Id. at 636, 586 P.2d at 1352. An additional factor in the present case is that, unlike in Local 1494, the district court did not have the opportunity to remand to the agency for more specific findings, the Commission becoming defunct during the pendency of Sgt. Holloway's appeal to the district court. Local 1494 also established the scope of this Court's review of an agency decision. "On appeal, it is our task to make the same review of the commission's action as did the district court in order to determine whether, on the whole record, the commission's decision was substantially supported by the evidence and by applicable law." 99 Idaho at 638, 586 P.2d at 1354. Under this standard, this Court is empowered to exercise the same type of appellate review as the district court is authorized to exercise over agency decisions. Accordingly, we must here make a full and thorough review of the Commission record to determine if there is substantial evidence to support the Commission's conclusion that Sgt. Holloway's dismissal was made for cause and in good faith.[8] II. REVIEW OF THE COMMISSION'S DECISION The Commission, in its Letter Memorandum Opinion dated November 17, 1978, determined that Sgt. Holloway was dismissed for cause and in good faith on the basis that: "Roy D. Holloway was employed and promoted by the Ada County Sheriff and functioned as a satisfactory employee until Mr. Holloway involved himself in an activity which created a condition of public criticism of the Ada County Sheriff's Department of which Mr. Holloway maintained control and responsibility. "The Ada County Sheriff is responsible for the conduct and integrity of the operations of the Ada County Sheriff's Department and a Manual of Conduct and Ethics sets forth required conditions of employee conduct. The Ada County Sheriff counseled and directed Mr. Holloway regarding the adverse effects and requested corrective measures of Mr. Holloway's action on multiple occasions. Contrary to the proper conduct of a prudent employee, Mr. Holloway failed to act in a proper manner in order to avoid conditions which would generate public criticism directed toward the Ada County Sheriff's Department and further failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff. "Mr. Holloway, the employee, had the responsibility to conduct himself in an appropriate manner as identified in the Manual of Conduct and Ethics. Mr. Holloway was the responsible individual for an adverse condition unacceptable to the proper conduct of the Ada County Sheriff's Department of which E.C. Palmer, Sheriff, is the responsible authority for such proper conduct. Mr. Holloway was advised to correct the identified cause of 103 criticism. He failed to do so and was terminated, an action within, and appropriate of the authority of the Ada County Sheriff. ... . "From the foregoing it is concluded as a matter of law that the dismissal was in good faith and for cause." In determining what constitutes cause within the meaning of Ada County Ordinance No. 60 § 11, the Commission is constrained by the protections afforded an individual by the first amendment. Sgt. Holloway contends that he was terminated without cause for "union activity" in violation of his fundamental rights of free assembly and association guaranteed under the United States and Idaho Constitutions. If Sgt. Holloway was indeed terminated for union activities protected under the first amendment, his termination could not have been made with cause and must be reversed. The United States Constitution, Amendment 1, provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances."[9] The first amendment has been interpreted to protect individuals' rights to form and join labor unions and associations without fear of retaliation. Smith v. Arkansas State Highway Employers, Local 1315, 441 U.S. 463, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979); Arkansas State Highway Employees Local 1315 v. Kell, 628 F.2d 1099 (8th Cir.1980); New Orleans Steamship Ass'n v. General Longshore Workers, 626 F.2d 455 (5th Cir.1980), affirmed sub nom, Jackson Bulk Terminals, Inc. v. International Longshoremen's Ass'n, 457 U.S. 702, 102 S. Ct. 2673, 73 L. Ed. 2d 327 (1982). "[T]he courts ... have accepted a general proposition that public employees cannot be discharged for engaging in `union activities.' Thus, if there is a discharge because of union membership, the general constitutional right of free association... and the free speech right ... are correctly applied to invalidate the discharge, since there is no reason to distinguish a union from any other association." Hanover Township Federation of Teachers Local 1954 v. Hanover Community School Corp., 457 F.2d 456, 460 (7th Cir.1972). It has been established that "[a]ll speech, press, and associational relationships are presumptively protected by the first amendment; the burden rests on the government to establish that the particular expressions or relationships are outside its reach." Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir.1972). "[F]reedoms of speech and of press, of assembly, and of worship may not be infringed on [rational basis] grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests the state may lawfully protect." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S. Ct. 1178, 1186, 87 L. Ed. 1628 (1943) (emphasis added). It is this Court's duty to examine the record before the Commission to determine whether there is substantial evidence to support the Commission's determination that the Sheriff terminated Sgt. Holloway for cause and in good faith. In so doing, we must determine if the Sheriff met his burden of demonstrating that the actions of Sgt. Holloway presented such a "grave and immediate danger" to legitimate state interests as to constitute cause for his dismissal. A. Public Criticism One of the grounds stated by the Commission for upholding Sgt. Holloway's dismissal was that "Mr. Holloway involved 104 himself in an activity which created a condition of public criticism of the Ada County Sheriff's Department... ." The Sheriff testified before the Commission that he received complaints from citizens that they were confused by the solicitation and did not know whether the Union was sponsoring the fund raiser or whether the Department was sponsoring it. However, it is uncontroverted that the Sheriff had received similar citizen complaints when fund raisers were previously sponsored by the Deputy Sheriff's Association and the Sheriff's Reserve, both of which are non-union organizations connected with the Sheriff's Department. All of the businesses contacted which ultimately purchased advertising space accurately made their checks payable to the Union rather than to the Sheriff's Department.[10] Additionally, at least some of the controversy engendered by the solicitation was the result of erroneous statements made by the Sheriff himself. The following testimony was received at the Merit Commission hearing: "MR. O'ROURKE [Commissioner]: [I]t was reported in the news media, evidently at the time of this controversy, that the promoter did, in fact, leave town with the receipts and the show was cancelled and that somehow people were bilked out of funds. I don't know if that is something that was alluded to in the media or whether it was actually fact. Do you have any knowledge of that? "THE WITNESS [Sgt. Holloway]: I saw a television broadcast in that Sheriff Palmer said that these people had left town with $18,000... . "MR. O'ROURKE: Do you think that Sheriff Palmer's statement there had impugned the character of the people in Wildwood Productions? "THE WITNESS: I believe so, yes. ... . "MR. O'ROURKE: Do you also think that possibly some of the complaints were generated by Sheriff Palmer's comments? "THE WITNESS: I believe so... ." Sheriff Palmer admitted making such a comment: "Q. [By Mr. Stoppello to Sheriff Palmer] Well, did you not in fact, in front of Channel 7 news, make a statement after this promotion began in August that you understood that the proceeds from the advertising sales had left town? Did you ever make that statement? "A. [Sheriff Palmer] Yes." It is uncontroverted that Wildwood did not leave town with the funds and that the Union received all funds rightfully belonging to it from the fund raiser.[11] Although outwardly concerned with public criticism engendered by the solicitation, Sheriff Palmer never notified Sgt. Holloway that he would be disciplined or terminated if the source of the criticism continued. In fact he did not terminate Sgt. Holloway until six days after Wildwood had, on its own initiative, stopped the solicitation, thereby removing any grounds for any further public criticism of the Department. Sheriff Palmer originally handed Sgt. Holloway a termination letter which stated that Sgt. Holloway had failed to obey three direct orders and that to that date, September 14, 1978, the solicitation was continuing. Sgt. Holloway testified that: "I, you know, explained to him that no, the solicitation had been stopped last Friday, which was the 8th of September, was the last day that there was soliciting. "And he lined that out and said that if that's so, you know, I'll just redraft the letter and make it correct." 105 The Sheriff failed to offer sufficient evidence to show that there had been any public criticism differing from that received when other non-union departmental organizations had previously sponsored fund raisers. There was insufficient evidence to show that the Sheriff was indeed concerned about unfavorable public criticism, having himself engaged in actions guaranteed to result in such criticisms. There was also insufficient evidence offered to support a finding that the Sheriff acted in response to the public criticism engendered by the fund raiser when he neither took action nor threatened Sgt. Holloway with any action during the course of the solicitation. Sheriff Palmer did not terminate Sgt. Holloway until six days after the solicitation had been stopped by Wildwood on its own initiative. It is thus clear that there is not substantial evidence to support a finding that any public criticism engendered by the solicitation constituted such a "grave and immediate danger" to a legitimate state interest that Sheriff Palmer had "cause" to terminate Sgt. Holloway. B. Necessary and Timely Efforts The Commission upheld Sgt. Holloway's dismissal on the further ground that Sgt. Holloway "failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff." There was no evidence presented to the Commission that Sgt. Holloway did not immediately act on each and every one of the Sheriff's requests or orders. There were three meetings at which the Sheriff voiced opposition to some facet of the solicitation scheme. At the first meeting, the Sheriff essentially told Sgt. Holloway not to go through with the telephone solicitation at all. However, this order or request was rescinded by the Sheriff at later meetings at which he told Sgt. Holloway that "[i]f he was going to do it, he had to be legal." In response to the question by counsel for Sgt. Holloway: "But he could go ahead with the promotion as long as it was legal?" Sheriff Palmer answered, "Yes, I guess he could. I couldn't stop him." After the second meeting on August 30, 1978, Sgt. Holloway notified Wildwood of the Sheriff's complaints and requested that the cause of the complaints be rectified. It was at this time that Wildwood applied for a solicitation license with the Boise City License Commission. After the third meeting on September 7, 1978, Sgt. Holloway contacted Wildwood and again asked that no reference be made in the solicitation to the Sheriff or the Department. In addition, he composed a letter which again spelled out a proper solicitation format which would comply with the Sheriff's wishes.[12] The following day, the solicitation was discontinued by Wildwood on its own initiative after it was notified that a $5,000 bond would have to be posted in order to obtain a license from the Boise City License Commission. Six days after the solicitation was discontinued, on September 14, 1978, Sgt. Holloway was on duty when he was called to the office of Sheriff Palmer. As he stepped into the office, Sgt. Holloway was handed his "termination" letter notifying him of his dismissal, "effective immediately." The record clearly demonstrates that Sgt. Holloway did everything within his power to comply with the Sheriff's wishes and to not bring either the Sheriff or the Sheriff's Department into any disrepute. Thus, we hold that there is not substantial evidence to support the Commission's finding that Sgt. Holloway "failed to exert necessary and timely efforts ... to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff." Therefore, the record cannot support a determination that there existed such a "grave and immediate danger" to legitimate state interests as to constitute "cause" for Sgt. Holloway's dismissal. III. INDEPENDENT REVIEW Under the rule established in Local 1494 this Court, upon a determination that 106 an agency's decision is not supported by applicable law or by substantial evidence, must independently review the agency record to determine if there is any basis in law and fact to support its ultimate decision. If there is, we must uphold the Commission's decision and set forth the basis for so doing. Sheriff Palmer, in his termination letter of September 14, 1978, gave Sgt. Holloway three reasons for his dismissal: (1) failure to obey a direct order; (2) violation of a state statute; and (3) conduct unbecoming an officer that brings the department into disrepute. It is unnecessary to readdress the first and third stated reasons, based on our foregoing determination that these reasons did not provide an adequate basis for Sgt. Holloway's dismissal. The letter apprising Sgt. Holloway of his termination stated: "Violation of state statute. Via your telephone solicitation scheme you have been found by the Idaho State Attorney General's Office to be in violation of certain sections of the Consumer Protection Act. Additionally you have been found to be in violation of the Boise City Municipal Code regarding licensing requirements for telephone solicitation." On September 15, 1978, one day after Sgt. Holloway's termination, the Idaho Attorney General's office wrote Sheriff Palmer a letter informing him that Wildwood had apparently violated the Consumer Protection Act: "Based upon information we have recently received, it appears that there are violations of the Idaho Consumer Protection Act in the solicitation of Wildwood Productions, Inc., ... . ... . "It would appear that Wildwood Productions, Inc., has unlawfully attempted to use the name of the sheriff's department to promote its solicitation, without stating who the real principals are. Please be advised that our office will continue to pursue this matter, and to seek restitution." Respondent's Exhibit 11 Letter from Attorney General Wayne Kidwell to C.E. Palmer (September 15, 1978) (emphasis added). Although this letter shows that Wildwood was apparently acting in violation of the Idaho Consumer Protection Act, it does not charge Sgt. Holloway or any other Union member with such violations.[13] The record reflects that neither Sgt. Holloway nor any other Union member ever directly engaged in the solicitation themselves. The contract signed by Wildwood also provided that Wildwood would comply with all state laws relating to the sale of advertising. Sgt. Holloway never authorized Wildwood to implicate the Sheriff's Department in the fund raising. The evidence previously summarized in this opinion reflects that Sgt. Holloway, far from authorizing the sales pitch used by Wildwood, did everything in his power to ensure that Wildwood would represent that it was acting only on the behalf of the Union. Sgt. Holloway was never found to be in violation of the Boise City licensing requirements. On August 30, 1978, Sgt. Holloway was informed by the Sheriff that Wildwood, by not having obtained a solicitation license, was probably acting in violation of the City's licensing requirements. That same day Wildwood applied for a license with the Boise City Licensing Commission. No decision on the license requirement was made at the time of the application and no request was made of Wildwood to discontinue its promotion until such time as a decision was made. On September 8, 1978, Wildwood was informed that a license was required together with a $5,000 bond. Unable 107 to raise the $5,000 bond, Wildwood immediately discontinued the solicitation. There is no substantial evidence in the record to demonstrate that Sgt. Holloway violated either the Idaho Consumer Protection Act or the Boise City Code licensing requirements. Accordingly, the record cannot support a determination that there existed such a "grave and immediate danger" to legitimate state interests as to constitute "cause" for Sgt. Holloway's dismissal. For the foregoing reasons, we hold that there is not sufficient evidence in the record to uphold the Commission's ultimate determination that Sgt. Holloway was dismissed for cause and in good faith. IV. Sgt. Holloway additionally argues that (1) the district court erred in not granting his petition to enjoin the Commission from determining the validity of his dismissal; (2) there was not a quorum of the Commission present to determine the validity of his dismissal; and (3) his dismissal without pretermination notice or an opportunity to respond violated his constitutional rights to due process. Given our holding in this case, we find it unnecessary to address these additional allegations. The judgment is reversed and remanded to the district court for entry of judgment of reinstatement with rank, seniority, benefits, privileges, and back pay (after taking into consideration any income earned in mitigation). Costs to appellant. DONALDSON, C.J., and HUNTLEY, J., concur. BAKES, Justice, dissenting: The majority opinion as written abandons our traditional appellate function and presumes to perform the factfinding function reserved to the trial courts and commissions. I disagree with any approach to an appellate case in which this Court retries the facts on appeal. The majority purports to follow Local 1494 v. City of Coeur d'Alene, 99 Idaho 630, 586 P.2d 1356 (1978), for guidance in the present case. The two cases are substantially similar and the scope of review enunciated in that case should guide our review in the present case. The Local 1494 case also involved the termination of public employees. In that case the Coeur d'Alene Civil Service Commission held a public hearing and issued its decision affirming the discharge of those employees. In the present case the hearing was held before a merit commission and was presided over by a referee, who was an experienced and competent attorney and who provided assistance and guidance to the commission.[1] Based upon the recommendations of the hearing examiner the commission ruled that good cause existed for the discharge of the public employee. However, in both this case and in Local 1494 the district courts concluded that the local commissions issued inadequate findings of fact, and so the district courts made additional findings. In the Local 1494 case, we ruled that where such a commission submits inadequate findings and conclusions the district court, in reviewing the entire record to determine whether the commission's decisions are supported by substantial evidence, may make additional findings, but only to explain its review of the case. The ultimate factfinder is still the commission. The district court in this case did just that and developed extensive findings of fact and conclusions of law, all of which are supported by the record, just as was the case in Local 1494. Our function on appeal in this case is set out in Local 1494: "On appeal, it is our task to make the same review of the commission's action as 108 did the district court in order to determine whether, on the whole record, the commission's decision was substantially supported by the evidence and by applicable law." 99 Idaho at 638, 586 P.2d at 1354. Thus, our review requires us to examine the whole record; however, the purpose is to determine if the commission's findings and conclusions are supported by substantial competent evidence. The commission in this case essentially found that there was good cause for the dismissal of appellant. The commission's findings, though not detailed, indicate the following: "The Ada County Sheriff counseled and directed Mr. Holloway regarding the adverse effects and requested corrective measures of Mr. Holloway's action on multiple occasions. Contrary to the proper conduct of a prudent employee, Mr. Holloway failed to act in a proper manner in order to avoid conditions which would generate public criticism directed toward the Ada County Sheriff's Department and further failed to exert necessary and timely efforts within his authority, to terminate conditions generating aforementioned criticisms when identified and instructed by the Ada County Sheriff... . Mr. Holloway was the responsible individual for an adverse condition unacceptable to the proper conduct of the Ada County Sheriff's Department of which E.C. Palmer, Sheriff, is the responsible authority for such proper conduct. Mr. Holloway was advised to correct the identified cause of criticism. He failed to do so and was terminated, an action within, and appropriate of the authority of the Ada County Sheriff." Just as was the case in Local 1494, the district court, after its review of the entire record, developed even more substantial findings of fact and conclusions, all of which essentially supported the findings of the commission. Included below is an excerpt from the ultimate conclusions of the district court. "Sheriff Palmer had good cause to terminate Sgt. Holloway's employment because: (a) The solicitation was deceptive. (b) The solicitation violated the Idaho Consumer Protection Act. (c) The solicitations were not properly licensed. (d) The solicitation was bringing the Sheriff's Office into disrepute. (e) The solicitations were not using the `sales pitch' Holloway had told union members would be used. (f) It is appropriate to require members of a law enforcement agency to maintain a high level of moral and legal integrity, and to avoid giving any appearance to the public that such is not the case. (g) The deceptive, unlicensed solicitations continued despite the Sheriff's continuing protests about it to Holloway over a considerable period of time. (h) Sgt. Holloway, on behalf of the Union, had full authority to control the manner in which Wildwood Productions was conducting the solicitation of the business people of Ada County but failed to do so after notice and opportunity required it. (i) Holloway permitted improper solicitations even after telling union members otherwise in a newsletter, and was not acting with union authorization in not stopping Wildwood from improper soliciting. (j) Sgt. Holloway made no reasonable effort, either through or on behalf of the Union, to make Wildwood Productions solicit in a proper and legal manner. His attitude and actions gave an appearance that he was as concerned about any financial detriment to the solicitation as in correcting it, further indicated in appellant's Exhibit 7. "Sheriff Palmer acted in good faith in the termination since: (a) He repeatedly and consistently made it clear to Sgt. Holloway, ever *109 since he was advised on March 28, 1978, of the proposed manner of solicitation, and continuing until the termination on September 14, 1978, that there had been past problems with telephone solicitations, that he was opposed to it, and that they must be legally conducted. (b) A written letter at the time of termination clearly and sufficiently explained the reasons for Holloway's termination." (Emphasis added.) The findings of the commission are fully supported by the findings made by the district court, and the findings of both tribunals are supported by substantial, competent evidence in the record. For example, one of the critical findings, Finding (h), is supported by testimony from Sgt. Holloway himself indicating that a clause in the contract pertaining to the sales pitch used gave the right to control that sales pitch to the union, and specifically to Roy Holloway as the head of the union. Sgt. Holloway's testimony also indicates that he in fact exercised his control or right to control the sales pitch, albeit inadequately or unsuccessfully. The contract itself, Exhibit 2, signed by Roy Holloway, was in evidence. Testimony by Sheriff Palmer, the promoter Gary Allen, and Sgt. Holloway indicated that Sgt. Holloway had the right to control the solicitations. Finding (i) is supported by evidence that up until September 7, 1978, long after Sgt. Holloway had represented to the union and to Sheriff Palmer that improper solicitations were not being conducted, a taped trial telephone call was placed to the solicitor in which the solicitor was still misrepresenting its affiliation. The other findings and conclusions of the district court, and in turn the findings of the commission, are supported by substantial, competent evidence. On appeal, the appellant has the burden of proving error. Because of this, we must view the evidence in a light most favorable to the decision of the factfinder. Higginson v. Westergard, 100 Idaho 687, 604 P.2d 51 (1979); Furness v. Park, 98 Idaho 617, 570 P.2d 854 (1977); Brizendine v. Nampa Meridian Irr. Dist., 97 Idaho 580, 548 P.2d 80 (1976). In the present case, the majority has done just the opposite. They have taken the evidence and viewed it in a light most favorable to appellant in order to reach their factual result. Because the findings of the district court and the commission are supported by substantial, competent evidence, the ultimate finding of the commission and the district court that there was good cause to terminate the employee in the present case should be upheld. While individual members of this Court might have concluded otherwise if we were the finders of fact, we are not. This Court cannot retry these cases. By doing so, we are encouraging a flood of appeals. If we continually retry the facts on appeal, we are abdicating our appellate responsibility and are not performing our proper appellate function. SHEPARD, J., concurs. SHEPARD, Justice, dissenting: I concur with the dissent of Bakes, J., but find that a facet of the case coloring my decision has not been otherwise discussed. The precipitating cause of plaintiff's termination was the development of a scheme to raise money utilizing, in part at least, the name of the principal law enforcement agency in Ada County. Principally solicited were to be businesses in the county. The record indicates the sheriff was concerned with the public reaction to and perception of the fund raising scheme. In my view, such solicitations in the name of law enforcement agencies or conducted by law enforcement personnel are undesirable and suspect. In the eyes of many of the public, they smack of overreaching and coercion, and can be the subject of abuse. I believe the actions of the plaintiff and the defendant cannot be viewed in a vacuum, but rather must be viewed in the context of the fund raising scheme and its ramifications. I would affirm the decision of the district court which found that plaintiff's actions and participation in the scheme constituted cause for termination. NOTES [1] On or about August 25, 1978, Sgt. Holloway, as President of the Union, distributed a newsletter informing the Union membership that the Union intended to produce a fund raising concert. The letter also set forth the general sales pitch to be used by the promoter's sales personnel which specified that said personnel would state that they were "calling for the Ada County Deputy Sheriff's Union." A copy of this newsletter was also given to Gary Allen of Wildwood Productions. [2] Testimony was offered at the Merit Commission hearing that Wildwood did not obtain a local solicitation license because the work was being done on behalf of the nonprofit union chapter. Other local nonprofit groups, such as the Bronco Athletic Association and the Idaho Police Officers Association, which had previously sold similar advertising had not been required by the City to obtain solicitation licenses. [3] In explaining the order given at the August 30th meeting, Sheriff Palmer testified as follows: "THE WITNESS: [Sheriff Palmer] Well my order at that time if I can explain, Mr. Boyd, he couldn't get the sheriff's office involved in it. No way could the sheriff's office be involved. And that was the order then. "Q. BY MR. STOPPELLO: Okay. But he could go ahead with the promotion as long as it was legal? "A. Yes, I guess he could. I couldn't stop him." (Emphasis added.) [4] must agree with Plaintiff that the remand, under the circumstances brought out on the hearing of this motion, is ineffective. It appears that Ada County Ordinance No. 60, which by its terms creates the Merit System Commission, contains the following language in Section 21: `The provisions of this ordinance shall become operable for each fiscal year only after the prior approval of the Board of County Commissioners during the annual budget procedures of a table of organization describing the positions and salaries available in the sheriff's office for the ensuing year.' Plaintiff states that no such table has been submitted or approved for the current fiscal year, and that therefore the Merit Commission is no longer in existence and is without authority to enter additional findings of fact on remand. Defendant has not disputed the claim that Ordinance No. 60 has not been re-enacted by the Ada County Commissioners for the current year." Holloway v. Palmer, No. 65702, Slip op. at 8 (Fourth Dist. Idaho 1980). [5] In its October 6, 1980 opinion, the district court determined the scope of its review in light of the fact that a remand to the Commission would be ineffective thus: "[T]his Court's order for remand must be amended. The Court will have to proceed to review the entire record before the Commission as it presently stands and enter its own findings of fact and conclusions of law, based upon substantial evidence in such record, the procedure approved by our Supreme Court in the Local 1494 case. It is the only practical solution to the dilemma presented here." Holloway v. Palmer, No. 65702, Slip Op. at 9-10 (Fourth Dist. Idaho 1980). [6] The district court based its decision on the record before the Commission. The district court did not hold a trial de novo or open the record for additional evidence. [7] The Commission was composed of five persons consisting of two members appointed by the Sheriff, two members appointed by the Sheriff's deputies and one member appointed by the Ada County Commissioners. [8] Ada County Ordinance No. 60 § 11 provides: "[N]o person in the classified merit system who has been permanently appointed or inducted into the merit system ... shall be removed, suspended, or demoted, except for cause, in good faith ... ." (Emphasis added.) [9] The Idaho Constitution, Art. 1, § 10, similarly provides that: "The people shall have the right to assemble in a peaceable manner, to consult for their common good; to instruct their representatives, and to petition the legislature for the redress of grievances." [10] The Sheriff testified that many people who had purchased advertising complained that they were confused as to the identity of the sponsor of the show, however, he could only remember the name of one person in particular. The Sheriff testified that this person had said he was misled as to whether the Union or the Department was sponsoring the show. However, Sgt. Holloway introduced into evidence a check written by this same person to the "Ada County Sheriff's Union," rather than to the Sheriff's Department. [11] Sheriff Palmer testified at the Commission hearing that he had threatened Sgt. Holloway at their first meeting regarding the fund raiser that "I said I would even go to the news media if it was necessary to stop him." [12] There was no need for Sgt. Holloway to deliver this letter to Wildwood because by the next day, Wildwood had discontinued its telephone solicitation. [13] Mr. Rourke, Merit System Commissioner, asked Sgt. Holloway the following question: "Were you ever, Mr. Holloway Sergeant Holloway, were you ever contacted by any law enforcement agencies, attorney general's office, city police department, concerning illegal activities resulting from the carrying on of this solicitation? In other words, were you ever informed by any law enforcement agency that you were being held responsible for a violation of the law?" To which Sgt. Holloway replied "No." [1] The Court in Local 1494 did note the following: "The commission appears to have performed its functions without the benefit of any staff, legal or investigative... ." Apparently, this Court considered that factor in determining the standard of review. However, in this case the merit commission had the benefit of a competent and experienced lawyer as a hearing examiner who aided the commission in its factfinding process.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2896943/	NO. 07-08-0231-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JULY 28, 2008 ______________________________ IN RE WILSON E. BROWN, RELATOR _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Â Â Â Â Â Â Â Â Â Â By this original proceeding, Relator, Wilson E. Brown, an inmate proceeding in forma pauperis, seeks a writ of mandamus to compel the Honorable Shane Hadaway, Judge of the 39th Judicial District Court, to set aside his conviction for aggravated sexual assault of a child, which he alleges is a void conviction. We deny Relatorâs request. Â Â Â Â Â Â Â Â Â Â This Courtâs mandamus jurisdiction is limited. We have authority to issue a writ of mandamus, agreeable to the principles of law regulating those writs, against a judge of a district or county court in our district. See Tex. Govât Code Ann. Â§ 22.221(b)(1) (Vernon 2004). Â Background Â Â Â Â Â Â Â Â Â Â In 1989, Relator was indicted in cause number 729 for intentionally and knowingly causing the anus of a child younger than fourteen years of age and not his spouse âto contactâ his sexual organ, and in cause number 730 for intentionally and knowingly causing the sexual organ of a child younger than fourteen years of age and not his spouse âto contact and penetrateâ his sexual organ. According to the documents provided by Relator, he entered into a plea bargain in cause number 729 for thirty years confinement and waived his right to appeal. Â Â Â Â Â Â Â Â Â Â The certified copies of the indictments provided by Relator reflect that, when tri-folded for envelope style filing, the blanks provided for entry of the cause numbers on the back side of the respective indictments have 729 and 730 lined through and interchanged. In other words, cause number 729 is crossed out and replaced with cause number 730 and vice versa. Due to this interlineation, Relator complains that he was not lawfully convicted for the offense to which he pleaded guilty in cause number 729 as originally completed when returned by the Kent County Grand Jury on March 6, 1989. According to Relatorâs documents, he sought relief from the Court of Criminal Appeals in 1991 by writ of habeas corpus, which was denied in 1992. Â Â Â Â Â Â Â Â Â Â In March 2008, Relator filed in the convicting court a âMotion for Trial Court to Enter Nunc Pro Tunc Order Setting Aside Void Conviction.â He alleges that his conviction in cause number 729 is void and that he is entitled to relief by having his conviction in that cause set aside. By letter ruling dated April 2, 2008, the trial court denied Relatorâs motion. Standard of Review Â Â Â Â Â Â Â Â Â Â âMandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.â Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a relator must (1) show that he has no adequate remedy at law to redress the alleged harm and (2) the act sought to be compelled is ministerial and does not involve a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.Crim.App. 2007). An act is ministerial if the relator has âa clear right to the relief soughtââit must be âclear and indisputableâ such that its merits are âbeyond disputeâ with ânothing left to the exercise of discretion or judgment.â State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003), quoting Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927-28 (Tex.Crim.App. 2001). Â Â Analysis I. No adequate remedy at law. Â Â Â Â Â Â Â Â Â Â A party may not appeal a trial courtâs denial of a motion for judgment nunc pro tunc because it does not arise from a final judgment. See Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990). Thus, Relator has demonstrated that he has no adequate remedy at law by normal appeal. II. A ministerial act. Â Â Â Â Â Â Â Â Â Â The trial court may correct clerical errors made in a judgment at any time by using a judgment nunc pro tunc. State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App. 1994). The trial court cannot, however, correct a judicial error made in rendering a final judgment. Id. Relator has not provided a copy of his judgment of conviction with the documents provided in support of his Petition for Writ of Mandamus to determine whether it contains a clerical error. See Tex. R. App. P. 52.3(j)(1)(A). Â Â Â Â Â Â Â Â Â Â An act is ministerial where the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment. Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App. 1981). Relator has not demonstrated that the trial court had no discretion but to grant his motion. His complaint that his conviction should have been set aside by the trial court as void is outside the scope of a judgment nunc pro tunc. He sought to have the trial court correct a judicial error which may not be accomplished by judgment nunc pro tunc. The record before us does not show that the trial court failed to perform a ministerial act. Â Â Â Â Â Â Â Â Â Â Additionally, Relatorâs dissatisfaction with the trial courtâs denial of his motion is not properly addressed in the context of a mandamus proceeding. See generally Polaris Inv. Management Corp. v. Abascal, 892 S.W.2d 860, 861-62 (Tex. 1995). A particular ruling on a motion is generally discretionary for which mandamus will not lie. We conclude that Relator has not demonstrated his entitlement to mandamus relief. Â Â Â Â Â Â Â Â Â Â Consequently, the request for mandamus relief is denied. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Patrick A. Pirtle Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Â Â Â Â Â as written guidelines. In determining whether a business is sexually oriented, "[w]e look for several things. We look at the - the particular things that they have for sale or for rent, merchandise. The clientele, we look for clientele that's going into the business. We look for - we also look in the area of have they - did they have a sexually oriented business permit in the past. Things such as that." Smith said the police are "looking for a good faith effort [of] what the business is actually . . . doing." He admitted that the officers would make an "eyeball estimate" about what is being sold. Calculating a store's revenue from sexually oriented material as opposed to other merchandise would be very hard to do, but that it might be done in the case of a store that is a "close call." Smith had visited All Star "a couple of times" and, in his opinion, it was clearly a sexually oriented business and "wouldn't be a close call." Chapter 243 of the Local Government Code empowers cities to regulate sexually oriented businesses. In relevant part, it defines a sexually oriented business as: . . .a sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, or other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer. Tex. Local Gov't Code Ann. § 243.002 (Vernon 1999). In carrying out this authority, the city enacted its ordinance number 97-75. The ordinance defines "manager," "sexually oriented enterprise," and "adult bookstore" as follows: Manager. Any person who supervises, directs or manages any employee of an enterprise or any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise, including any "on-site manager." Houston City Ordinance No. 95-75 Â§ 28-251. Enterprise. An adult bookstore, adult cabaret, adult encounter parlor, adult lounge, adult modeling studio, adult movie theatre or any establishment whose primary business is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Adult Bookstore. An establishment whose primary business is the offering to customers of books, magazines, films, or videotapes (whether for viewing off-premises or on-premises by use of motion picture machines or other image-producing devices), periodicals, or other printed or pictorial materials which are intended to provide sexual stimulation or sexual gratification to such customers, and which are distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas. Houston City Ordinance No. 97-75 Â§ 28-121. Adult arcade . . . any premises that is subject to regulation under Chapter 243 of the Local Government Code, as amended, to which members of the public or members of any club, group or association are admitted and permitted to use one or more arcade devices. Arcade device . . . any coin- or slug-operated or electronically or mechanically controlled machine or device that dispenses or effectuates the dispensing of entertainment, that is intended for the viewing of five (5) or fewer persons in exchange for any payment of any consideration. Entertainment shall mean: 1) Any live exhibition, display or performance; or 2) Any still picture(s) or movie picture(s), whether mechanically, electrically or electronically displayed; or 3) Any combination of the foregoing, in which the specified anatomical areas or specified sexual activities are depicted. Houston City Ordinance No. 97-75 Â§ 28-81. In his first issue, appellant challenges the sufficiency of the evidence to sustain a holding that All Star was an adult bookstore, and that appellant served as a manager. In his second issue, appellant argues the evidence is insufficient to prove All Star was an adult arcade or that appellant acted as an operator of an adult arcade. Because these issues are so closely related, we will consider them together. The standards governing our review of legal and factual sufficiency challenges are now so well established as to be axiomatic and it is not necessary to reiterate them here. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). Suffice it to say that we must first determine whether the evidence is legally sufficient and, if it is not, render a judgment of acquittal. Id. at 133. If the evidence is legally sufficient, we must then determine if it is factually sufficient when measured by the standard explicated in Clewis. Id. The evidence which we have set out in some detail is ample to sustain the trial judge's finding that All Star is both an adult bookstore and an adult arcade. The question then presented is whether the evidence is sufficient to sustain a finding that appellant was acting as a manager/operator of All Star within the purview of the ordinance. The evidence is undisputed that at the time in question here, appellant was the only employee present and was operating the cash register and the electronic control admitting patrons to the arcade. The very recent decision of the 14th Court of Appeals in Pedraza v. State, 34 S.W.2d 697 (Tex.App.-Houston [14th Dist.] 2000, no pet.) is instructive in interpreting the ordinance. In that case, the court was also presented with the question of whether the evidence was sufficient to sustain a finding that the appellant was an "operator" of an adult arcade. The court of appeals noted the trial evidence concerning Pedraza was 1) he was the only person working behind the counter, and 2) he was "in charge" of the arcade while [the police officer] was there. Id. at 700. En route to reversing the conviction, the appellate court viewed the ordinance as a whole and, in particular, the detailed requirements the "operator" must comply with in order to obtain a permit. Id. at 699. After doing so, it commented that it was clear that in the ordinance, the city intended an operator to mean more than a clerk or an employee who simply minds the store, and concluded that the trial evidence was legally insufficient to show that Pedraza possessed "managerial control" such that he was an operator as that term is defined in the ordinance and was really nothing "more than a mere clerk." Id. at 700. Here, the evidence was very similar to that before the Pedraza court. As was the case in Pedraza, we can conclude that appellant was only a clerk who minded the store and whose responsibilities were not sufficient make him a "manager" as the term is defined in the ordinance. (1) Appellant's first two issues must be, and are, sustained. That action nullifies the necessity for a discussion of appellant's remaining two issues. Accordingly, the judgments of the trial court are reversed, and judgment rendered acquitting appellant of the offenses of which he was convicted. Tex. R. App. P. 43.2(c). John T. Boyd Chief Justice Do not publish. 1. As did the Pedraza court, we note that the ordinance does place a duty on employees and agents of the arcade to keep the view unobstructed. However, the State did not charge appellant as an employee or agent and that question is not before us.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1329179/	358 S.C. 10 (2004) 594 S.E.2d 478 RABY CONSTRUCTION, L.L.P., Respondent, v. Henry J. ORR, Jr., H & D Capital, LLC, d/b/a The South City Grill, Stanley C. Gibson, Bank of Travelers Rest, and Debra L. Dailey d/b/a Dailey & Associates, Defendants, Defendants, of whom Henry J. Orr, Jr. and H & D Capital. LLC d/b/a the South City Grill are Appellants. and Raby Construction, L.L.P., Respondent, v. Henry J. Orr, Jr., H & D Capital, LLC, d/b/a The South City Grill, Stanley C. Gibson, Bank of Travelers Rest, and Debra L. Dailey d/b/a Dailey & Associates, Defendants, Defendants, of whom Henry J. Orr, Jr. is Appellant. No. 25793. Supreme Court of South Carolina. Heard January 22, 2004. Decided March 22, 2004. 13 T.S. Stern, Jr., of Covington, Patrick, Hagins, Stern & Lewis, of Greenville, for appellants. Matthew P. Utecht, of Haynsworth Sinkler Boyd, P.A., of Greenville, for respondent. 14 Justice WALLER: These two direct appeals arise from the same mechanic's lien case and therefore have been combined for our review. We affirm on both. FACTS In Spring 1999, appellant Henry Orr[1] entered into an oral contract with respondent Raby Construction for the construction/renovation of a restaurant in Greenville to be known as the South City Grill. The contract was a "cost plus" agreement whereby Orr would pay respondent, as general contractor, the actual costs of the project, plus a 12% fee. On September 12, 2000, Orr signed a Statement of Account showing that the total project amount was $1,047,000 and that Orr had already paid $810,000. The statement expressly stated that the total amount due was $237,000. Both Orr, and Michael Raby, respondent's principal, signed the document. It is undisputed that Orr made no payments after signing the Statement of Account. Respondent filed a mechanic's lien for $237,000 on November 3, 2000, and in January 2001, respondent filed an action to foreclose on the lien. In his answer, Orr denied the allegations that $237,000 remained due on the project. The litigation proceeded through discovery,[2] and trial was set for December 11, 2001. However, on December 8, 2001, the parties entered into a settlement wherein Orr agreed to pay respondent $150,000 by January 24, 2002. Significantly, the settlement provided that if the $150,000 payment was not made by that date, then a confession of judgment would be filed for $200,000, plus interest and any attorneys' fees incurred in connection with foreclosure of the property. Furthermore, both the settlement and the confession of judgment stated that Orr would not oppose or contest any foreclosure on the property. 15 Orr did not pay the $150,000 settlement amount, and an order of judgment for $200,000 was entered in February 2002. Shortly thereafter, the trial court issued an order of foreclosure which required Orr to pay $200,000, plus interest, as well as attorneys' fees in the amount of $15,000. On April 4, 2002, Orr filed a motion pursuant to Rule 60(b)(2) and (3), SCRCP, to vacate the orders of judgment and foreclosure. Orr alleged that relief from the orders was warranted because they were the product of respondent's fraud and misconduct, and also because of after-discovered evidence. The Rule 60(b) motion was based on a sworn statement from Jan Bailey, a former employee of respondent. Bailey gave testimony that respondent had failed to produce computer records related to the South City Grill, including evidence of bills that had not been paid by respondent, and that she had fabricated backup documentation that was produced to Orr. Bailey worked for respondent from November 1999 until January 2002. In her own words, the circumstances under which she left respondent "were very strained." There is some contention as to what position Bailey held while employed with respondent. She, at one point, stated that she was "bookkeeper, office manager, secretary, anything." Raby called her his secretary in his deposition. Notably, however, in its response to Orr's first set of interrogatories, respondent identified Bailey (who was formerly known as Jan Whitfield) as follows: Ms. Whitfield is an employee of [respondent], and she may testify as to [respondent's] accounting for the South City Grill project and the amounts owed on the project. (Emphasis added). The trial court conducted an evidentiary hearing on the Rule 60(b) motion at which both Bailey and Raby testified at length. The gravamen of Bailey's testimony was that the computer records were not disclosed, they were more accurate than the manual ledgers (which had been produced during discovery), and that the computer accounting system revealed that respondent had overcharged Orr by at least $30,000. According to her own calculations based on the computer 16 records, Bailey estimated that Orr owed respondent just under $140,000. Raby, on the other hand, testified that the computer accounting system was started several months after the South City Grill project began, and therefore, the computer system was not as accurate as the manual ledgers. In addition, Raby stated that respondent remained liable for the unpaid bills that the computer records indicated. The trial court denied Orr's motion for relief and his subsequent motion for reconsideration. The trial court specifically noted that the order of foreclosure of the mechanic's lien remained "in full force and effect" except with certain date changes for the auction of the property. On July 15, 2002, Orr filed his notice of appeal from the denial of the Rule 60(b) motion. Meanwhile, the proceedings for the sale of the property had continued pursuant to the February order of foreclosure. Indeed, just days before Orr filed the Rule 60(b) motion, a Contract of Sale for the property had been executed on April 1, 2002. After the trial court denied the Rule 60(b) motion, Orr filed a motion to stay the judicial sale of the property. The sale of the property was finalized in October 2002; however, respondent was still left with a deficiency in the judgment. Orr then filed a petition for appraisal in November 2002. Respondent opposed the motion and filed its own motion for attorneys' fees. After a hearing, the trial court dismissed the petition for appraisal and granted respondent additional attorneys' fees in the amount of $31,025.75. Orr moved for reconsideration, but the motion was denied. Orr now appeals from both the denial of the Rule 60(b) motion and the granting of additional attorneys' fees. ISSUES 1. Did the trial court err in denying Orr's Rule 60(b) motion? 2. Did the trial court lack jurisdiction to award additional attorneys' fees? 17 1. Rule 60(b) Motion Orr argues that the trial court erred in denying him relief from judgment because respondent withheld documents and fabricated evidence. Specifically, Orr contends the trial court erred by: (1) applying the intrinsic/extrinsic fraud distinction since the judgment was not more than one year old; (2) finding there was no extrinsic fraud; and (3) applying improper standards on after-discovered evidence. Respondent disputes these arguments and raises several additional sustaining grounds. Rule 60, SCRCP, is entitled "Relief from Judgment or Order," and subsection (b) states in pertinent part as follows: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. (Emphasis added). Whether to grant or deny a motion under Rule 60(b) lies within the sound discretion of the judge. Coleman v. 18 Dunlap, 306 S.C. 491, 494, 413 S.E.2d 15, 17 (1992). Our standard of review, therefore, is limited to determining whether there was an abuse of discretion. The trial court found that relief under Rule 60 for fraud is only available for extrinsic fraud and because the allegations of fraud in the instant case amounted to intrinsic fraud, there could be no relief from judgment. Orr argues this was error because the intrinsic/extrinsic fraud analysis should only be used if the attack is on a judgment more than one year old.[3] We disagree. Orr relies in part on Mr. G v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101 (Ct.App.1995), for his argument that relief for intrinsic fraud may be had if a Rule 60(b)(3) motion is brought within one year of the judgment. In that case, the Court of Appeals stated the following: "A party may not use intrinsic fraud to mount an attack upon a judgment if the judgment is more than one year old." Id. at 307-08, 465 S.E.2d at 102-03 (citing Rule 60(b)(3), SCRCP; emphasis added). Looking at the above emphasized language, the Court of Appeals arguably indicated that if the judgment is less than a year old, intrinsic fraud could be the basis for relief. However, the Court of Appeals also discussed the distinction between extrinsic and intrinsic fraud and stated that intrinsic fraud is not a valid ground for setting aside a judgment. Id. at 308, 465 S.E.2d at 103. In addition, we note that factually, the Mr. G v. Mrs. G case involved a request for relief from judgment two and a half years after the original divorce decree was entered. Therefore, this opinion by itself does not resolve the issue presented by Orr. Instead, the issue 19 of whether relief under Rule 60(b)(3) may be had for intrinsic fraud if the motion is brought within one year is a novel one. Historically, this Court has held that in order to obtain equitable relief from a judgment based on fraud, the fraud must be extrinsic. See Bryan v. Bryan, 220 S.C. 164, 66 S.E.2d 609 (1951). In Bryan, we explained as follows: There is no doubt that a court of equity has inherent power to grant relief from a judgment on the ground of fraud. However, not every fraud is sufficient to move a court of equity to grant relief from a judgment. Generally speaking, in order to secure equitable relief, it must appear that the fraud was extrinsic or collateral to the question examined and determined in the action in which the judgment was rendered; intrinsic fraud is not sufficient for equitable relief. Id. at 167-68, 66 S.E.2d at 610. As recently as last year, we discussed the important distinction between extrinsic and intrinsic fraud. See Chewning v. Ford Motor Co., 354 S.C. 72, 579 S.E.2d 605 (2003).[4] We reiterated in Chewning that "[i]n order to secure equitable relief on the basis of fraud, the fraud must be extrinsic." Id. at 80, 579 S.E.2d at 610 (citing Bryan v. Bryan, supra). "Extrinsic fraud is `fraud that induces a person not to present a case or deprives a person of the opportunity to be heard.'" Id. at 81, 579 S.E.2d 605, 579 S.E.2d at 610 (citation omitted). Intrinsic fraud, on the other hand, is fraud which misleads a court in determining issues and induces the court to find for the party perpetrating the fraud. Id. The classic case of intrinsic fraud is perjured testimony or presenting forged documents at trial. See, e.g., Bryan v. Bryan, 220 S.C. at 169, 66 S.E.2d at 611; James F. Flanagan, SOUTH CAROLINA CIVIL PROCEDURE at 485 (2d ed.1996). Allegations that a party failed to disclose documents also generally amount to intrinsic, rather than extrinsic, fraud. Chewning, 354 S.C. at 82, 579 S.E.2d at 610-11. 20 "Relief is granted for extrinsic but not intrinsic fraud on the theory that the latter deceptions should be discovered during the litigation itself, and to permit such relief undermines the stability of all judgments." Mr. G v. Mrs. G, 320 S.C. at 308, 465 S.E.2d at 103 (citation omitted); see also Bryan v. Bryan, 220 S.C. at 168, 66 S.E.2d at 610 ("relief from a judgment is denied in cases of intrinsic fraud, on the theory that an issue which has been tried and passed upon in the original action should not be retried in an action for equitable relief against the judgment"). Furthermore, it is significant to note that when considering whether to grant relief from final judgments, "a court must balance the interest of finality against the need to provide a fair and just resolution of the dispute." Chewning, 354 S.C. at 80, 579 S.E.2d at 609. We recognized in Chewning both this Court's longstanding policy towards final judgments and that "important benefits are achieved by the preservation of final judgments." Id. at 86, 579 S.E.2d at 613. Thus, the weight of South Carolina authority clearly leads us to reject the argument that relief from judgment is permitted for intrinsic fraud if raised within one year of the judgment. This conclusion is compelled not simply from our precedents, as discussed above, but also from comparing our State rule to the Federal Rule. The corresponding clause in Federal Rule 60(b)(3) states that relief from judgment may be had due to "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." Rule 60(b)(3), Fed.R.Civ.P. (emphasis added). Significantly, however, this emphasized language, does not appear in South Carolina's rule. Accord Flanagan, SOUTH CAROLINA CIVIL PROCEDURE at 485 (Rule 60(b)(3), SCRCP, "preserves state practice that distinguishes between `intrinsic' and `extrinsic' fraud."). Accordingly, we hold that South Carolina maintains the distinction between extrinsic and intrinsic fraud, even when the allegations are raised through a Rule 60(b)(3) motion filed within one year of the entry of judgment. The trial court therefore properly analyzed the issue as one dependent on the distinction between intrinsic and extrinsic fraud. Because this is clearly a case where the allegations rise only to the level of 21 intrinsic fraud,[5] the trial court correctly denied relief under Rule 60(b)(3). Consequently, we affirm the trial court's decision. In any event, we also agree with respondent's arguments that, based on various additional sustaining grounds, the trial court's denial of relief should be affirmed.[6] We are particularly persuaded by respondent's argument that Orr is not entitled to relief for after-discovered evidence, pursuant to Rule 60(b)(2), or for any alleged fraud or misconduct pursuant to Rule 60(b)(3), because the evidence that was presented in the motion could have been discovered during the litigation. Pursuant to Rule 60(b)(2), SCRCP, a court may order relief from judgment based on newly discovered evidence "which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Likewise, "a party may not prevail on a Rule 60(b)(3) motion on the basis of fraud where he or she has access to disputed information or has knowledge of inaccuracies in an opponent's representations at the time of the alleged misconduct." Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 29 (1st Cir.1988); see also Bowman v. Bowman, 357 S.C. 146, 152, 591 S.E.2d 654, 657 (Ct.App.2004)(where a party could have discovered the "new" evidence prior to trial, the party is not entitled to relief under Rule 60(b)(2) or (3)).[7] 22 Bailey was identified in respondent's answers to interrogatories as a witness who could testify as to the accounting for the South City Grill project and the amounts owed on the project. Yet Bailey was not deposed. In her testimony at the Rule 60(b) hearing, she acknowledged that if she had been deposed prior to the settlement and asked if there were computer records, she would have testified as to the existence of those records. Therefore, we find that all of the evidence Bailey presented to support Orr's Rule 60(b) motion could have been discovered by due diligence. Additionally, testimony given by Raby in his deposition (taken on December 6, 2001, just two days before the parties settled) clearly put Orr on notice of the computer accounting system. Raby testified about this computer system, and how it was brought "up piece by piece." Orr's counsel then specifically stated: "Okay. Well, you didn't produce any of these records," to which Raby essentially responded that the computer records were not the "official" records for the project. The following colloquy occurred: Q. Okay. But you haven't produced these [computer time sheets]? A. I have no idea. Q. Well, I'll represent to you that you haven't produced these. So do you have these documents available? A. Those documents are available for certain time frames. I don't know if they're available for this job. Q. Okay. Well, you were requested to produce all of your records in connection with this case. A. And to my knowledge, I have produced them all. Q. Okay. Well, if you can find where you produced this to me, I'll stand corrected and offer you my humble apology, but I don't believe it's produced in this particular form, is it? (Emphasis added). Thus, Raby's deposition alone establishes Orr became aware that computer records were kept by respondent and had not been produced. Notwithstanding this information, Orr settled this case without further inquiry. We find it obvious that Orr 23 could have discovered the alleged "misconduct" and the "after-discovered evidence" that form the basis of his Rule 60(b) motion. For this additional reason, we affirm the trial court's decision to deny relief from judgment. 2. Award of Additional Attorneys' Fees Orr also argues the trial court lacked jurisdiction to award additional attorneys' fees because the filing of the notice of appeal regarding the denial of the Rule 60(b) motion stayed the matters on appeal. We disagree. The general rule is that "the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree." Rule 225(a), SCACR. The automatic stay "continues in effect for the duration of the appeal.... The lower court retains jurisdiction over matters not affected by the appeal including the authority to enforce any matters not stayed by the appeal." Id. (emphasis added). The order of foreclosure which directed the sale of the property is simply not a matter that was stayed by the appeal of the denial of the Rule 60(b) motion; it was a separate order which Orr did not appeal. Thus, the award of additional attorneys' fees, which was requested pursuant to that former order, was within the trial court's jurisdiction. See id. In other words, because the only appeal pending at the time the trial court awarded additional attorneys' fees was the denial of the Rule 60(b) motion, that is the only order that would be automatically stayed; the general rule does not authorize a stay of the underlying order of judgment or order of foreclosure. Cf. In re Zapata Gulf Marine Corp., 941 F.2d 293, 295 (5th Cir.1991) (where the court, applying analogous federal rules, reversed the district court's stay of execution of the underlying judgment where the only appeal pending was the denial of the Rule 60(b) motion). Accordingly, Orr's argument that the trial court lacked jurisdiction to award additional attorneys' fees is without merit. 24 CONCLUSION For the above stated reasons, the trial court's denial of the Rule 60(b) motion and the award of additional attorneys' fees are both AFFIRMED. TOAL, C.J., MOORE, BURNETT, JJ., and Acting Justice James E. Brogdon, Jr., concur. NOTES [1] While both Orr and H & D Capital, LLC d/b/a the South City Grill are appellants in one of these appeals, only Orr is appellant in the second. For ease of reading, we refer solely to Orr. [2] It appears from the record that discovery involved requests for production, requests for admission, interrogatories, and depositions; the only people deposed were Raby and Orr. [3] We note that the trial court initially made a finding that where there is a consent judgment, it is generally conclusive and not subject to collateral attack, citing Johnson v. Johnson, 310 S.C. 44, 425 S.E.2d 46 (Ct.App.1992). Respondent argues that because Orr has not appealed this finding, it is the law of the case. We disagree. In its order, the trial court correctly stated the general rule. See id. at 46, 425 S.E.2d at 48 ("Ordinarily, where a judgment or order is entered by consent, it is binding and conclusive and cannot be attacked by the parties either by direct appeal or in a collateral proceeding.") (emphasis added). Furthermore, we note the Johnson court ultimately granted relief pursuant to Rule 60(b)(5); therefore, even consent judgments are subject to attack under particular circumstances. [4] We recognize that Chewning was not a Rule 60 matter, but instead was an independent action for fraud upon the court. In that case, we found that where the attorney allegedly suborned perjury and concealed documents, a claim for extrinsic fraud had been sufficiently stated. Nevertheless, our general discussion on extrinsic and intrinsic fraud is instructive on the issue raised in this case. [5] Allegations of perjury, failure to produce requested discovery, or use of forged documents amount only to intrinsic fraud. See, e.g., Chewning, 354 S.C. at 82, 579 S.E.2d at 610-11; Bryan v. Bryan, 220 S.C. at 169, 66 S.E.2d at 611; Flanagan, SOUTH CAROLINA CIVIL PROCEDURE at 485. These are the types of allegations made by Orr, and so we reject Orr's alternative argument that this is a case of extrinsic fraud. [6] See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) ("The appellate court may review respondent's additional reasons and, if convinced it is proper and fair to do so, rely on them or any other reason appearing in the record to affirm the lower court's judgment."); Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, or judgment upon any ground(s) appearing in the Record on Appeal."). [7] Indeed, even in cases of extrinsic fraud, a party does not have a claim "if he failed to exercise due diligence in discovering the existence of facts or documents during the underlying litigation." Chewning, 354 S.C. at 82 n. 6, 579 S.E.2d at 611 n. 6.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874437/	694 F. Supp. 881 (1988) UNITED STATES of America v. Victor POSNER. No. 82-352-CR. United States District Court, S.D. Florida, Miami Division. August 24, 1988. 882 Linda Hertz, Asst. U.S. Atty., Miami, Fla., for U.S. Edward Bennett Williams, Mary Clark, Washington, D.C., for Posner. MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE SPELLMAN, District Judge. THIS CAUSE comes before the Court upon the Government's Fed.R.Crim.P. 35(a) Motion to Vacate Sentence. Upon careful review of all relevant memoranda and authorities, the Court is convinced that the sentence imposed upon the Defendant, Victor Posner ["Posner"], including all conditions of probation, was fully within the legislatively delegated discretion that Congress intended. The Court further notes that the Government has entirely misconstrued the conditions of probation. By arguing and briefing the legality of a charitable contribution per se as a probation condition, it has somehow missed the entire tenor of the probationary package constituting Posner's sentence. There is an enormous and obvious distinction between requiring a probationer to make a direct monetary charitable contribution to an organization unrelated to either the probationer or his crime, and requiring a probationer to foot the bill for a charitable service project inextricably related to the probationer's crime and to which the probationer must devote substantial time without compensation. See United States v. Danilow Pastry Co., 563 F. Supp. 1159, 1171 & n. 23 (S.D.N.Y.1983) ("Any community service condition can be given a monetary value. Under the government's logic any such condition arguably may be limited by the restitution section."); see also Note, Charitable Contributions as a Condition of Federal Probation for Corporate Defendants: A Controversial Sanction Under New Law, 60 NOTRE DAME L.REV. 530, 531 n. 9 (1985). Apparently, the Government has no legal difficulty with the concept of requiring Posner to perform extensive community service and to formulate a comprehensive plan to remedy one of this community's most serious plightsthe homeless. See, e.g., United States v. Arthur, 602 F.2d 660 (4th Cir.1979). It seems then, that the Government contends that the propriety of accepting Posner's offer to "foot the bill" for this project is the single contested factor in Posner's sentence. The Court notes that this point is moot by virtue of the fact that Posner has irrevocably committed the funds knowing that the Court was considering the Government's Motion to Vacate the sentence. The first Federal probation statute was enacted in 1925. As the Supreme Court noted, To accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion. The provisions of the Act are adapted to this end. It authorizes courts of original 883 jurisdiction, when satisfied "that the ends of justice and the best interests of the public, as well as the defendant, will be subserved ... to place the defendant upon probation for such period and upon such terms and conditions as they may deem best." Burns v. United States, 287 U.S. 216, 220-21, 53 S. Ct. 154, 155-56, 77 L. Ed. 266 (1932) (citing statute and referring to legislative history) (emphasis added). The language relied on by the Court as affording the District Court extremely broad discretion in fashioning flexible and appropriate conditions of probation survived largely unchanged in the probation statute applicable to the Defendant, 18 U.S. C. 3651. Within the context of its extremely broad discretion, the court has a duty to tailor probation conditions to meet the individualized needs of each defendant. See United States v. Tonry, 605 F.2d 144, 148 (5th Cir.1979). The Court's discretion is limited to imposing conditions "reasonably related to rehabilitation of the probationer, protection of the public against other offenses during its term, deterrence of future misconduct by the probationer or general deterrence of others, condign punishment, or some combination of these objectives." Id. The specifically enumerated conditions within the statute are not exhaustive, but merely illustrative. Other conditions may be imposed as long as they are "reasonably related to the rehabilitation of the probationer and protection of the public." Id. at 147 (citations omitted). Finally, the Court may not impose conditions that are unduly harsh when the same purposes may be achieved without so severe an impact on the probationer's rights. See Higdon v. United States, 627 F.2d 893 (9th Cir.1980). The Government's entire argument rests on two premises, neither of which is well taken by this Court. First, the Government mischaracterizes Posner's probation as primarily consisting of the imposition of a $3,000,000 charitable donation not within the scope of the probation statute's permissible restitution provision, or either of the other two monetary provisions of the statute. The Government ignores the fact that the heart and soul of Posner's probation is service, not the incidental costs of the service project which Posner has voluntarily and irrevocably assumed. Second, the Government contends that, despite the explicit and unequivocally broad grant of discretion manifest in the statute's language (as well as in the cumulative legislative history), the enumeration of three permissible monetary probation conditions prohibits the imposition of any other condition requiring the payment of money. 1. Posner's $3,000,000 is Merely Incidental to a Permissible Community Service Condition As the Court has noted, Victor Posner is a seventy-year-old man of extraordinary financial, managerial, and organizational talent who is capable of providing an immense benefit to this community. For the next five years, he will devote 20 hours per week to the formulation and implementation of a meaningful plan dedicated to alleviating the problem of the homeless in South Florida. As one of the highest paid individuals in the United States, this time commitment alone over five years is worth more than $16,000,000.[1] The crime to which Posner plead was that of overvaluing charitable contributions so as to lessen his tax liability. Thus, despite his unfathomable wealth, Posner abused charity for his own personal gain. There is no plausible punishment more reasonably related to Posner and his crime than to have him roll up his sleeves and dedicate a substantial part of his life to furthering a vital charitable cause. Charity will no longer merely mean a tax write 884 off to Victor Posner. The Court fashioned this project in the hope that Posner will learn humility, compassion, generosity, honesty, and, above all, a sense of respect for the law. No other sanction could possibly serve to better rehabilitate Posner for his misdeeds. Further, the public nature of his sentence and his service, especially due to the extensive and continuing national publicity surrounding this case, will have a strong deterrent effect on the public, as well as on Posner. See United States v. Missouri Valley Construction Co., 741 F.2d 1542, 1551 (8th Cir.1984) (overruling United States v. William Anderson Co., 698 F.2d 911 (8th Cir.1982) in which the Eighth Circuit had upheld the District court's allowance of the Defendants making charitable contributions in exchange for a reduction of fines). The probation statute has always given the court the power to impose financial probationary conditions in lieu of a prison term. See United States v. Krutschewski, 509 F. Supp. 1186, 1191 (D.Mass. 1981). Posner may have avoided prison, but his service obligations will be so personally demanding and time consuming, that he is by no stretch of the imagination, a "free man." He has been punished and meaningful retribution will be exacted for the five years to come. To a man of Posner's financial stature, time is his most valuable asset. Posner's three million dollar contribution was in no way intended by the Court to serve as a means of circumventing the statutory limitations to restitution or imposable fines.[2] The Court was obligated to devise a sentence individually tailored to a very unique Defendant under the particular circumstances that would further the purposes of criminal law and most benefit society. In fulfilling its judicial duty, the Court envisioned a community service project of such importance and magnitude, that its fruition depended on substantial funding. Posner volunteered to foot that bill. The Court considered this gesture favorably in its finalization of Posner's sentence. Further, the Court realized that without such funding, the project to which it had envisioned applying Posner's rare talents would be impracticable and ineffective. This was the Court's intent in accepting Posner's offer to fund the project. No one challenges the Court's authority to order Posner's service and planning contributions. Certainly, if those conditions were legitimately within the Court's discretion, so should it be within the Court's discretion to accept Posner's offer to pay the costs of implementing the community service plan. Without such authority, the Court would be unable to maximize the benefits to be derived by the community from Posner's services. The essence of Posner's sentence was his direct and fundamental participation in the furtherance of a compelling charitable cause and his rehabilitation through education of the critical significance of the concept of charity outside the limited context of the Internal Revenue Code. Posner's irrevocably committed funds were merely an incident, albeit a necessary one, to the imposition of the sentence. As was its obligation, the Court fashioned the most meaningful sentence it could in light of the Defendant, his crimes, the policy concerns underlying punishment and probation, and the protection and benefit of society. Without Posner's voluntary monetary compliance, this sentence would not have been possible. The Government has cited no authority for the proposition that the probation statute does not permit the Court to require or, as in this case, to allow, the probationer to bear costs incident to permissible non-monetary conditions of probation. 2. The Probation Statute does not Limit Monetary Conditions to Those Specifically Enumerated It is beyond dispute that the probation statute controlling this sentencing is 18 U.S.C. section 3651, which provides in relevant part: 885 Section 3651. Suspension of sentence and probation Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place on probation for such period and upon such terms and conditions as the court deems best. Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period of exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best. * * * * * * The period of probation, together with any extension thereof, shall not exceed five years. While on probation and among the conditions thereof, the defendant May be required to pay a fine in one or several sums; and May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and May be required to provide for the support of any persons, for whose support he is legally responsible. * * * * * * 18 U.S.C. 3651 (emphasis added). It is beyond question that the conditions listed in the statute were by no means intended to be exclusive, but merely illustrative of conditions to be considered by the court in fulfilling its duty to fashion a careful, flexible, individualized sentence for which the Supreme Court deemed an extraordinary degree of discretion essential. See Burns v. United States, 287 U.S. 216, 220-21, 53 S. Ct. 154, 155-56, 77 L. Ed. 266 (1932) (construing and explaining the significance of the first probation statute's language enabling district courts "`to place the defendant upon probation for such period and upon such terms and conditions as they may deem best.'" (emphasis added); United States v. Tonry, 605 F.2d 144 (5th Cir.1979) (alternative conditions may be imposed if they are reasonably related to the rehabilitation of the probationer and protection of the public) (citations omitted). Some courts have held that, with respect to monetary conditions imposable, those enumerated in the statute are exclusive. This Court is of the opinion that such a reading of the statute is completely incompatible with the Supreme Court's reading of the statute, the cumulative legislative history regarding this and other probation statutes, and the purpose and language of this particular statute. Moreover, such a reading is not even suggested by the statutory language or legislative history. Rather, it is internally and inexplicably inconsistent with the explicit language of the statute as to imposable nonmonetary conditions. The suggested restrictive reading is neither required by nor in keeping with the precedent of this Circuit. The logic asserted for reading the enumerated monetary conditions to be exclusive is weak. The most often cited basis for such a reading is the statutory doctrine of negative implication, i.e., Congress listed certain monetary conditions; if it had intended other such conditions to be available, it would have so provided. See, e.g., United States v. Missouri Valley Construction Co., 741 F.2d 1542, 1547 (8th Cir.1984); but see id. at 1551 (Gibson, J., dissenting). As Judge Gibson persuasively 886 notes, negative implication is an awfully weak and easily manipulable basis upon which to anchor so substantial a decision. Here, it is particularly inappropriate as the statute is replete with language of broad discretion and inclusive, open ended language, such as, "as the Court deems best." Finally, the listing of the three permissive monetary conditions in the statute is preceded by the word "among." This word clearly implies that the monetary list was merely illustrative as was the rest of the statute. See Id. at 1552 (quoting SEC v. Joiner Leasing Corp., 320 U.S. 344, 350-51, 64 S. Ct. 120, 123, 88 L. Ed. 88 (1943) ("courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of the context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy."). Here, the policy is unequivocally one of maximum judicial discretion and flexibility. The imposition of community service is beyond challenge. The statute cannot reasonably be read to prohibit the requirement of payment, voluntarily or otherwise, of costs arising incident to such permissible service as a further condition of probation. The Government relies on the concern of the Eighth Circuit in Missouri Valley, in justifying its prohibition of charitable conditions of probation because it might appear improper for a court to select from several worthy charitable causes, none of which was related to the probationer or his crime, which was to receive a potentially large sum of money. The "prospect of conflicts of interest and unnecessary criticism of the courts," therefore, seems to have motivated certain Circuit's overly restrictive reading of this portion of the statute. United States v. Missouri Valley Construction Co., 741 F.2d 1542, 1550 (8th Cir.1984); see United States v. Wright Contracting, 728 F.2d 648, 653 (4th Cir. 1984). The Court does not, however, find sufficient merit in such speculative and everpresent concerns as to require the vacating of this sentence. This sentence has been painstakingly and specifically tailored for the appropriate purposes, i.e., the fundamental rehabilitation of Victor Posner, the deterrence by means of exemplification of white collar crime, and the furtherance and protection of the general public's interest. The sentence is squarely within the clear contemplation of the probation statute and the Court's judicial duties thereunder. A final justification offered by the Government for its viewpoint is that the allowance of conditions of charitable contribution will encourage courts to divert funds that ought to enter the public treasury under the rubric of "fines," to private, charitable institutions. This, the argument contends, would amount to a usurpation of legislative fiscal power. This argument fails for the following reasons. First, as the Court noted during sentencing, the Government will receive every penny which the Court can require Posner to pay to the Government as part of the sentence.[3] The cases reversing a court's reduction of a probationer's imposed fine in exchange for his agreement to contribute a certain amount to a charitable institution have no bearing on this case. See, e.g., U.S. v. Haile, 795 F.2d 489 (5th Cir.1986). Therefore, the Government's reliance on this line of cases is misplaced. This Circuit has never considered whether non-enumerated monetary conditions are imposable when necessary to effect a clearly permissible condition under the statute. See, e.g., United States v. Mitsubishi International Corp., 677 F.2d 785 (9th Cir. 1982) (upholding condition of probation requiring Defendant Corporations to perform, through corporate employees, service for charitable project and to pay substantial funds in support of the project); United States v. Danilow Pastry Co., 563 F. Supp. 1159 (S.D.N.Y.1983) (condition of probation that Defendant baking company bake and donate fresh goods to needy organizations); cf. United States v. Krutschewski, 509 F. Supp. 1186, 1190-91 (D.Mass. 1981) (the Court denied Defendant's Motion for Alternative Sentence of probation including 887 as conditions community service and establishment of charitable trust solely because the Defendant's future ability to fulfill the monetary conditions was speculative, thus possibly undercutting the deterrent effect of the sentence. The Court clearly, however, approved of the sentence in principle and found that it was "useful to continue to experiment to combine criminal disposition with some measure of social gain."). This Court finds these cases persuasive and closely related to the underlying purposes and policies of the probation statute. The court is of the opinion that the entire statute was intended to be broadly read. See Burns v. United States, 287 U.S. 216, 220-221, 53 S. Ct. 154, 155-56, 77 L. Ed. 266 (1932). The statute's language gives the court extraordinarily broad authority to impose "such terms and conditions as [it] deems best." Moreover, the probation statute currently in effect mandates that a court condition probation on the performance of at least one of the following: restitution, payment of a fine, or performance of "community service as directed by the court." 18 U.S.C. 3563(a). Further, subsection (b)(20) of the statute, pertaining to additional discretionary conditions, states that a Defendant must "satisfy such other conditions as the court may impose." This language is clearly analogous to the language of section 3651 which allowed the court to impose conditions as it "deems best." See 1984 U.S.Code Cong. and Adm. News, p. 3276. The extensive legislative history accompanying the probation statute which superseded section 3651, although not binding authority, is highly persuasive as to the meaning of both statutes, as well as to the overall legislative policies common to both statutes. 1984 U.S.Code Cong. and Adm. News, p. 3182. The legislature notes that it sought to protect "the flexibility that the criminal justice system requires in order to determine the appropriate sentence in a particular case in light of increased knowledge of human behavior." Id. at 3275. In fact, in direct contravention to the authority upon which the Government relies, Congress states that the broad authority under section 3563(b)(20) would permit the imposition of restitutionary conditions not specifically enumerated under the explicit restitution provision. Id. at 3278-79. Inasmuch as the legislature viewed (b)(20) to be "like current law," id. at 3282 that is, equivalent of the broad "deems best" language of section 3651it seems that a court's sentencing discretion should not be read as limited to the imposition of the three monetary conditions contained in the earlier statute. This is especially so in that the legislature specifically stated that it intended "to encourage continued experimentation with community service as an appropriate condition in some cases." Id. at 3281 (emphasis added). Significantly, the legislature noted that the (b)(20) "wildcard" provision, "like current law," was intended to allow the court to fashion "conditions to achieve the assistance of the defendant in effectuating the goals of other listed conditions." Id. at 3282. The effectuation of the penal and community goals of this Court's painstakingly formulated sentence involving Posner's personal development of an extensive plan to benefit South Florida's homeless, would be unfeasible or merely nominal absent his voluntary funding of it. Therefore, it appears that Victor Posner's sentence, even if the Court had specifically ordered the $3,000,000 payment, would have been in keeping with the legislative intent of both section 3651 and its successor. CONCLUSION Since the filing of the Government's Motion to Vacate certain events have taken place which the Court feels it would be remiss in not commenting on. On April 4, 1988, fifty two (52) days after imposition of sentence, the Government filed its Motion to Vacate that sentence. From a period of time commencing the week following this Court's imposition of sentence, the Defendant commenced his probationary status with this Court carrying out the duties and responsibilities that had been imposed upon him. He was required 888 to be in attendance at the Camillus House, he did so; he was required to begin the planning of the program and study contemplated by this Court's Order of February 12, 1988, he did so. It was contemplated that he would meet with the Committee appointed by this Court under the Chairmanship of the Honorable Dewey Knight, Acting County Manager (now Assistant County Manager), he did that. He was called upon to formulate a study to be conducted in the South Florida area including Palm Beach, Broward and Dade Counties, and that study is in the process of being formulated. When the Government filed its Motion to Vacate on April 4, 1988, since it attacked the sentence imposed and demanded this Court to resentence the Defendant, this Court called an emergency hearing to inquire of Mr. Posner as to whether or not he desired to have a stay of his sentence pending further proceedings. On April 6, 1988, the Defendant appeared with his counsel, Edward Bennett Williams,[4] before this Court. After certain matters had been presented to this Court by Mr. Williams, Mr. Posner under oath stated (Transcript of Record, docket # 307, April 6, 1988, pages 7-9): THE COURT: State your full name, please. MR. POSNER: Victor Posner. THE COURT: You are the defendant in this case? MR. POSNER: Yes, I am. THE COURT: You have heard Mr. Williams indicate to this Court that: Number one, you do not desire that this Court stay the sentence which was imposed by the Court regardless of the motion which has been filed by the United States Attorney, and that, in fact, you are prepared fully to proceed to meet the commitment that you indicated in open Court you desired to do at the time of your sentencing on February the 12th of this year. Is that a correct statement? MR. POSNER: Yes, your Honor. THE COURT: This Court is of the view from the standpoint of the matter that if you do not desire that this Court stay the sentence, that the sentence will proceed. I have conferred with the probation office, Mr. (Jim) Lyons and Mr. Frank Schwartz, who have been, by the way, very satisfied with your conduct and the manner in which you conducted yourself in regard to this matter, and they have indicated a willingness to have the matter proceed accordingly if that was your desire. I wanted that affirmed from the standpoint and wanted to know what, in fact, your view was, although no motion had been filed one way or another with regard to it. Insofar as your decision with regard to making a full commitment of the money that was discussed in open Court, my feeling and view is that at this point in time, you have to be treating and considering that as a voluntary act on your part, because certainly you have the right, based on the motion that has been filed in this case by the Government of the United States to say, well, if I have my druthers, I will hold off, awaiting the outcome of the motion. If, however, on the other hand, you decide to follow through on your voluntary compliance, because at this point in time, it must be looked upon as voluntary on your part * * * * * THE COURT: you brought Barry University to assist you in the preparation of the study, my understanding is that they have engaged or brought in the University of Miami, Florida Atlantic University, and Florida International University at your discretion, and that the money and the financial commitment be lodged with Barry University with the understanding that it be deposited accordingly. MR. POSNER: Yes, sir. *889 Since the imposition of this Court's sentence on February 12, 1988 up to the present time, according to the Probation Department, the Defendant has fully complied with the conditions of his probation to their satisfaction. This included, consistent with his announcement of April 6, the voluntary placing of the sum of Three Million Dollars ($3,000,000) in an interest-bearing non-taxable account under the control of Barry University subject to the implementation of the study contemplated by this Court in its original sentence and any project or projects that might thereafter be forthcoming. He has appeared before the Advisory Committee appointed by this Court on more than several occasions and a determination is about to be made by way of a recommendation to this Court of what the future course of action is to be taken regarding the study of the homeless. The Court considers the Defendant's conduct and his voluntary compliance significant in two respects. First, it sets to rest forever the Government's concern that somehow Mr. Posner might successfully avoid the self-imposed financial obligation. Secondly, it clearly reflects the voluntary nature of the commitment on the part of the Defendant. It is the Court's opinion that the Government's Motion should be denied. Based upon the above and foregoing, it is ORDERED AND ADJUDGED that the Motion to Vacate be and the same is hereby DENIED. NOTES [1] Assuming that the Defendant is a workaholic, working 60 hours weekly, his hourly rate is $3,200. The Court arrived at this rate by assuming an annual income of $10,000,000 (although the record supports finding that the Defendant's yearly income is substantially higher than that) and then dividing this figure by 3,000 hours (the total annual number of hours worked based on a 60-hour work week over the course of a 50-week year, allowing for two weeks of annual vacation). The result is rounded down to a conservative $3,200 per hour rate, which when multiplied by 5,000 (20 hours per week for 5 years) yields a product of $16,000,000. [2] In addition to the contribution and service requirement, the Court imposed the maximum fine and repayment of total reimbursable costs. [3] This issue, for some reason, remains undisposed of by the parties. [4] This occasion was the last appearance of Mr. Williams in a court of law. He was summoned from this life on August 13, 1988. Edward Bennett Williams brought to this Court wit, wisdom, charm and the warmth of his presence. He will be missed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615065/	668 P.2d 309 (1983) 100 N.M. 193 STATE of New Mexico, Plaintiff-Appellee, v. Gilbert RAEL, Defendant-Appellant. No. 7242. Court of Appeals of New Mexico. July 5, 1983. Certiorari Denied August 18, 1983. 310 Paul G. Bardacke, Atty. Gen., Santa Fe, for plaintiff-appellee. Janet Clow, Chief Public Defender, Mary Ann Lunderman, Asst. Appellate Defender, Santa Fe, for defendant-appellant. OPINION WALTERS, Chief Judge. Although originally charged with aggravated burglary, contrary to NMSA 1978, § 30-16-4(C), defendant was convicted of breaking and entering in violation of NMSA 1978, § 30-14-8 (Cum.Supp. 1982). His docketing statement raised two issues upon which we proposed summary affirmance. NMSA 1978, Crim., Child.Ct., Dom. Rel. & W/C App.R. 207 (Spec.Supp. 1983). His timely memorandum in opposition does not contest the proposed disposition on these issues, but rather constitutes a motion to amend the docketing statement to raise an additional issue. For the reasons which follow, we deny the motion to amend and affirm the judgment and sentence. The original docketing statement states these basic facts of the case: A thirteen-year-old girl awakened one night to find a partially-clothed man in her bed. The girl struggled with the man and hit him in the face with a hammer; then went to get her parents. They ordered the man out of the apartment and called police. The man, bleeding from the face, put on his clothes after leaving the apartment, and left the building. There was evidence that the intruder was very intoxicated. Police officers found the defendant, with blood on his face, walking away from the apartment. They took him back to the apartment where members of the girl's family identified him as the man found in the apartment. Defendant testified that he had a problem with alcohol, and that he had drunk a substantial quantity of alcohol on the day in question. He remembered some of the things he did that day and night, but he had no recollection of being in the apartment. He admitted the possibility of being there, but firmly believed that he could not or would not have committed an act such as was described by the young girl. The defense tendered the testimony of an expert witness, concerning certain effects of intoxication. The court refused to admit that testimony. Defendant objected to instructing the jury on the crime of aggravated burglary, arguing that the evidence was insufficient to support the element of specific intent. The court, nevertheless, instructed on aggravated burglary and, at the request of both the State and the defendant, on breaking and entering. The issues raised in the original docketing statement alleged error in the exclusion of the expert testimony and error in submitting aggravated burglary to the jury. We proposed summary affirmance of those issues because both propositions went to proofs of a higher offense of which defendant was acquitted. Thus, any alleged error was harmless. State v. Horton, 57 N.M. 257, 258 P.2d 371 (1953); State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App. 1972). Defendant's memorandum in opposition to our summary calendaring did not address those issues or our proposed disposition of them in any manner except to abandon them. The proposed amended docketing statement does not refer to either of the issues raised in the original docketing statement. The issues raised in the original docketing statement are, therefore, deemed abandoned. State v. Martinez, 97 N.M. 585, 642 P.2d 188 (Ct.App.), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982). A docketing statement is required to contain "a concise, accurate statement of the case containing all facts material to a consideration of the issues raised." NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 205(a)(3) (Spec.Supp. 1983). No issue was raised initially in the docketing statement concerning defendant's conviction for breaking and entering. Accordingly, facts material to that conviction would not be expected to appear in that docketing statement. 311 Nevertheless, the docketing statement did contain the assertion: "[The girl's mother] stated that she did not notice the damage to the door until the next day and could not provide a very good description of the damage that was done to the door." Based on that sentence, defendant now has moved to amend his docketing statement to include an issue questioning sufficiency of the evidence to support the "breaking" element of breaking and entering. Although we look with disfavor upon the addition of issues not raised in the docketing statement, see State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978), our practice has been to grant motions to amend the docketing statement which are timely filed and which demonstrate to us that the new issue sought to be raised was either properly preserved below or is cognizable on appeal pursuant to NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 308 (Spec.Supp. 1983). We deem these limitations essential to a showing of good cause for our allowance of an amended docketing statement. See, NMSA 1978, Crim., Child. Ct., Dom.Rel. & W/C App.R. 208(h) (Spec. Supp. 1983). The allowance of an amendment to the initial docketing statement is discretionary with the appellate court on appeal. NMSA 1978, Crim., Child.Ct., Dom. Rel. & W/C App.R. 208(h), provides in part: The appellate court may, upon its own motion or upon motion of either party and for good cause shown, order or allow an amended docketing statement, or, after the transcript of proceedings has been filed, order or allow a supplemental transcript of proceedings. The fact that counsel on appeal was not the trial counsel shall be considered by the court in determining if good cause has been shown. [Emphasis added.] Prior cases have established that a motion to amend will be considered timely when filed prior to the expiration of the original briefing time in cases assigned to a non-summary calendar, Jacobs, supra, and prior to the expiration of the time for filing a memorandum in opposition in cases assigned to the summary calendar, State v. Norush, 97 N.M. 660, 642 P.2d 1119 (Ct. App.), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982). The motion to amend here, having been filed prior to the due date for the memorandum in opposition, was timely filed. Therefore, if the motion to amend is otherwise sufficient to show good cause for the amendment, our policy would be to grant it. In this case, however, the motion to amend is deficient in other respects and we are unwilling, at this stage in the appeal and for the reasons we hereafter set out, to permit another delay so that counsel may attempt to correct the deficiencies. Defendant's motion to amend seeks to raise the issue of "[w]hether or not the State met the burden of proof on the element of `breaking' to sustain the defendant's conviction." Authorities are cited for the elements of breaking and entering and for the proposition that the State has the burden of proving beyond a reasonable doubt every element of the crime charged. The grounds for the motion to amend are that trial counsel is not appellate counsel and that appellate counsel's review of the docketing statement finds it to have "omitted an issue that raised a jurisdictional question of fundamental error." We quote pertinent parts of the motion to amend: At the time the state rested their [sic] case the defendant argues there was very little evidence showing "breaking." * * The defendant argues that the State failed to fulfill this burden in as much as they were more concerned with a conviction on the one count of aggravated burglary * * * * The State did call [the mother] and she did testify that she did not notice the damage to the door until the next day and she could not provide a very good description of that damage. * * * * The evidence testified to by [the mother] does not tie the defendant to the damage. Further, at least from the docketing statement and phone conversations with trial counsel and with the defendant it would seem there is little more to support the States [sic] contention. If 312 such would be the case upon complete review of the record the defendant's conviction could not stand. The defendant feels that this is in fact the case and that this case should be recalendared so that the entire record can be reviewed by appellate counsel and so that this issue can be briefed for this court to consider fully. App.R. 205(a)(3) provides that a docketing statement contain an accurate statement of all facts material to a consideration of the issues raised. App.R. 205(a)(4), (Spec.Supp. 1983), then requires a statement of the issues and prohibits general conclusory statements. We deem it self-evident that the rules applicable to docketing statements apply with equal, if not greater, force to requests to amend docketing statements and to fulfill showings of good cause that would persuade us to allow any motion to amend. See State v. Sisneros, 98 N.M. 201, 647 P.2d 403 (1982), which holds that general conclusory statements in a memorandum in opposition to a proposed calendaring are insufficient to show cause for a recalendaring. Issues sought to be added under a motion to amend shall be simply and concisely stated, supported by appropriate legal authority, together with any contrary authority known by appellant. Argument on the law shall not be included, but a short, simple statement of the rule for which the case or text is cited, should accompany the citation. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 208(h). Finally, the motion to amend should recite the reason why the new issue was not originally raised. Our rules presuppose that trial counsel, who is required to file the docketing statement, is familiar with the case and will state such issues as are supported by the facts. Jacobs, supra. It would seem likely, in this case, that some reason must have existed to suggest to trial counsel for defendant, trial counsel for the State, the trial court, as well as the jury, that there was sufficient evidence of breaking to permit defendant's conviction on the charge of breaking and entering. See State v. Anaya, 98 N.M. 211, 647 P.2d 413 (1982). An appellate court, of course, is not bound by such perceptions and if, indeed, there exists insufficient evidence, it is our duty to reverse. State v. Doe, 92 N.M. 100, 583 P.2d 464 (1978). However, a showing of good cause in support of a motion to amend should first seek to convince us that reasons for conviction do not exist. The motion to amend an amended docketing statement filed in this case is deficient in the following respects: (1) It cites no authority for the proposition that the new issue is jurisdictional or fundamental error, although such authority exists. Doe, supra. (2) It does not contain all facts material to the issue. By its own contents, it admits that there was the testimony of the mother plus "little more." What this "little more" is, we are not told. (3) It is replete with conclusory statements, not facts. A statement "that there was very little evidence" does not aid this court in evaluating an issue of insufficiency. (4) We are not told why the issue was omitted by trial counsel. In the final analysis, defendant's "Conclusion" that the case should be recalendared because "[d]efendant states that the State failed to prove an essential element of breaking and entering" does not demonstrate, by itself, any good cause to allow the amendment. The conclusion is completely suppositious. Because defendant assesses the evidence to be insufficient does not adequately raise an appealable issue. Mindful of the sentiments expressed in Olguin v. State, 90 N.M. 303, 563 P.2d 97 (1977); Linam v. State, 90 N.M. 302, 563 P.2d 96 (1977); and Vigil v. State, 89 N.M. 601, 555 P.2d 901 (1976), this court, upon a showing of good cause, will grant amendments to docketing statements and recalendar cases so that all issues on appeal may be heard on their merits. Mindful, also, of the admonition in Eller v. State, 90 N.M. 552, 566 P.2d 101 (1977), that docketing statements be read liberally, we nevertheless do not believe Eller's cautions were intended to be applied blindly to trial and appellate counsel who, by constant practice in this court, should have intimate familiarity with 313 our appellate rules and who should know, also, how to raise an appellate issue. To recapitulate: In cases assigned to a summary calendar, a motion to amend the docketing statement (when asserting other than fundamental error or jurisdictional issues) will be granted only if: 1. It is timely; 2. It states all facts material to a consideration of the new issues attempted to be raised; 3. It states those issues and how they were preserved or shows why they did not have to be preserved; 4. It states the reason why the issues were not originally raised and shows just cause or excuse for not originally raising them; and 5. It complies in other respects with the appellate rules insofar as necessary under the circumstances of the case. We expect such motions to be concise and to the point. We have little hesitation to grant motions to amend which honestly and candidly raise new issues perceived to constitute genuine reversible error, and which meet the above five criteria. We do not espouse such liberality in granting motions to amend which appear to us designed solely for the purpose of obtaining a limited calendar assignment regardless of the viability of any issues attempted to be raised. See State v. Toussaint, 84 N.M. 677, 506 P.2d 1224 (Ct.App. 1973). Compare State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975). The motion to amend in this case appears to us to fall into the latter category. While we expressly do not decide the motion on that ground, we note that the docketing statement recitation concerning the damage to the door, together with the other facts of this case, appear sufficient under the appropriate standard of appellate review to directly or inferentially support the element of breaking by this defendant. See State v. Tovar, 98 N.M. 655, 651 P.2d 1299 (1982). We would observe, however, in expansion of the immediately foregoing statement, that the failure of the motion to amend to state specifically what facts were proved below leads us to believe that the motion was filed solely for the purpose of obtaining a transcript or a copy of the proceedings, if taped, to "pick through the transcript for possible error." Jacobs, supra, at 91 N.M. 450, 575 P.2d 954. That procedure is not permissible, nor is it to be tolerated. At some point, trial and appellate counsel must find the courage and integrity to be honest with the court and with their clients regarding the merits of an appeal; and that point should be, we think, either before or at the time of filing an initial docketing statement. State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), is instructive. The motion to amend is denied. The judgment and sentence is affirmed. IT IS SO ORDERED. DONNELLY and BIVINS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874965/	889 So. 2d 71 (2004) MORA v. CROSBY No. SC04-2184 Supreme Court of Florida November 15, 2004. Decision without published opinion. Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874927/	889 So. 2d 918 (2004) Henry GOINS, Appellant, v. STATE of Florida, Appellee. No. 2D04-2160. District Court of Appeal of Florida, Second District. December 10, 2004. *919 CASANUEVA, Judge. Henry Goins appeals the trial court's order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to Goins' right to file, within sixty days of this court's mandate, a motion to withdraw his plea pursuant to rule 3.850. In his motion, Goins alleged that his sentence was not executed in accordance with the written plea agreement. Goins did not, however, seek to withdraw his plea. Because Goins did not seek the appropriate relief, the trial court correctly denied his motion. See Green v. State, 857 So. 2d 304 (Fla. 2d DCA 2003). Accordingly, we affirm the trial court's order without prejudice to Goins' right to file in the trial court, within sixty days of the date of this court's mandate, a motion seeking to withdraw his plea pursuant to rule 3.850. If filed within sixty days, the motion should be considered timely and not deemed successive. We caution Goins that if he decides to withdraw his plea and not be bound by the plea agreement, the State, too, will not be bound by the plea agreement. See id. at 306. If Goins withdraws his plea, either side may pursue new plea negotiations or refuse them and proceed to trial. If Goins is convicted after trial, he may be sentenced to a longer term of imprisonment than the sentence he presently serves. Affirmed. CANADY and VILLANTI, JJ., Concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2452995/	982 S.W.2d 403 (1998) Samuel Lovert JOHNSON, Appellant, v. The STATE of Texas. No. 536-97. Court of Criminal Appeals of Texas, En Banc. October 7, 1998. 404 Charles Hinton, Houston, for appellant. S. Elaine Roch, Assistant District Attorney, Houston, Matthew Paul, State's Attorney, Austin, for the State. Before the court en banc. OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW MANSFIELD, Judge, delivered the opinion of the Court, in which BAIRD, MEYERS, KELLER, PRICE, and HOLLAND, Judges, joined. Article 35.16(c)(2)[1] provides that a defendant may challenge a prospective juror for cause if the prospective juror "has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor." We granted appellant's petition for discretionary review to determine whether a defendant may challenge a prospective juror for cause under Article 35.16(c)(2) if the prospective juror states unequivocally that he could not consider assessing the minimum legal punishment for a defendant found guilty of the offense charged as a principal. The Relevant Facts On July 5, 1995, a Harris County grand jury indicted appellant for aggravated robbery. See Tex. Penal Code § 29.03(a)(2). On July 25, 1995, the case went to trial in the 209th District Court of Harris County. During voir dire, the State, apparently concerned that it might be able to prove appellant's guilt only as a party to the offense, explained the law of parties to the prospective jurors and asked them whether, if the evidence warranted it, they could find a defendant guilty of aggravated robbery as a party. See Tex. Penal Code § 7.02(a)(2). The prospective jurors indicated that they could. Later, defense counsel picked up on this general theme and asked the prospective jurors whether they could consider assessing the minimum legal punishment (imprisonment for five years) for a defendant found guilty of aggravated robbery as a principal. See Tex. Penal Code § 12.32. Two prospective jurors, Kelley and Clevenger, stated unequivocally that they could not, and the State made no attempt to rehabilitate them. Shortly thereafter, defense counsel challenged 405 Kelley and Clevenger for cause on the ground that "a juror has to be able to consider the full range of punishment, not only for a person who would be a party, but for a person who would be a principal." The District Court, however, denied both challenges for cause. Defense counsel then took the necessary steps to preserve any error for appellate review. See Jacobs v. State, 787 S.W.2d 397, 405 (Tex.Crim.App.), cert. denied, 498 U.S. 882, 111 S. Ct. 231, 112 L. Ed. 2d 185 (1990); Cumbo v. State, 760 S.W.2d 251, 253-254 (Tex.Crim.App.1988). Later, at the guilt/innocence stage, the jury charge authorized conviction of appellant as a principal or as a party. The jury returned a general verdict of "guilty" and assessed appellant's punishment, enhanced by a prior felony conviction, at imprisonment for 75 years. See Tex. Penal Code § 12.42(c)(1). On direct appeal, appellant argued, inter alia, that the District Court had erred in denying his challenges of prospective jurors Kelley and Clevenger for cause. Specifically, appellant contended that Kelley and Clevenger had been properly challengeable under Article 35.16(c)(2) because they had been biased against the minimum legal punishment for a defendant found guilty of aggravated robbery as a principal. In response, the State argued that Kelley and Clevenger had not been challengeable for cause because voir dire had shown only that they could not consider the minimum legal punishment in a particular circumstance, i.e., when the defendant was found guilty as a principal. The Fourteenth Court of Appeals adopted the State's theory and affirmed appellant's conviction. Johnson v. State, No. 14-95-00860-CR (Tex.App.-Houston [14th Dist.], delivered March 27, 1997) (not published). The Court of Appeals cited no controlling precedent, but it reasoned as follows: The legislature has set forth a range of punishment applicable to all phases of this offense. See Tex. Penal Code Ann. § 12.32 (Vernon 1994). It may be, therefore, that a prospective juror cannot assess the maximum punishment against one acting solely as a party or the minimum punishment for one acting as a principal, but this alone does not render him unfit for jury service. There are an infinite number of ways in which a hijacker can commit the offense of aggravated robbery. In its wisdom, the legislature has created a broad range of punishment to permit judges and juries the freedom carefully to tailor a sentence to fit both the offender and the crime. A prospective juror, therefore, must be able to consider the full range of punishment for the offense generally, and not for some specific manner and means of committing the offense. ... Here, the venire persons stated that they could not consider the full range of punishment only for the one hypothetical situation being discussed. Under these circumstances, we do not believe the trial court abused its discretion in failing to strike for cause venire persons 17 [Kelley] and 33 [Clevenger]. Johnson v. State, slip op. at 4-5. We granted appellant's petition for discretionary review to determine whether the Court of Appeals had erred. See Tex.R.App. Proc. 66.3(c) & (d). Analysis In a criminal trial, "both the [defendant] and the State ha[ve] the right to have jurors who believe in the full range of punishment." Woodkins v. State, 542 S.W.2d 855, 862 (Tex.Crim.App.1976). The right of the defendant arises from Article 35.16(c)(2), and the right of the State arises from Article 35.16(b)(3).[2]Smith v. State, 573 S.W.2d 763, 764 (Tex.Crim.App.1977); Weaver v. State, 476 S.W.2d 326, 327 (Tex.Crim.App.1972). Prospective jurors "must be able, in a sense, to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum penalty would be appropriate." Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert. denied, 508 U.S. 941, 113 S. Ct. 2418, 124 406 L.Ed.2d 640 (1993). What we meant in Fuller was that prospective jurors must be able to accept that, for the offense in question, the minimum legal punishment will be appropriate in some circumstances and the maximum legal punishment will be appropriate in some circumstances. In other words, prospective jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried. Furthermore, they must be able to keep an open mind with respect to punishment regardless of whether the defendant might be found guilty as a principal or as a party, because the statutory range of punishment for any offense is the same whether the defendant is found guilty as a principal or as a party. Under Article 35.16(c)(2), appellant was entitled to jurors who could accept that the minimum legal punishment would be appropriate in some circumstances for a defendant found guilty as a principal.[3] Because prospective jurors Kelley and Clevenger could not accept that, they were, as a matter of law, biased against a law applicable to the case upon which appellant was entitled to rely. Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S. Ct. 257, 107 L. Ed. 2d 207 (1989). The District Court abused its discretion, therefore, in denying appellant's challenge of them for cause. Ibid. It is true, as a general matter, that "[a] prospective juror ... must be able to consider the full range of punishment for the offense generally, and not for some specific manner and means of committing the offense." Johnson v. State, supra, slip op. at 5. After all, the law actually requires jurors to use the facts of the case being tried to tailor the punishment to the offense and the offender. Sadler v. State, 977 S.W.2d 140 (Tex.Crim.App.1998). But the Legislature has determined and codified that the full range of punishment for any offense is the same whether the defendant is found guilty as a principal or as a party. Therefore, a prospective juror who does not "believe in the full range of punishment," Woodkins v. State, 542 S.W.2d at 862, for either a defendant found guilty as a principal or a defendant found guilty as a party, is biased against the law as established by the Legislature. We vacate the judgment of the Court of Appeals and remand the case to that court for a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See Schutz v. State, 957 S.W.2d 52, 74 (Tex.Crim.App. 1997); Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997). MEYERS and KELLER, JJ., each filed a concurring opinion. McCORMICK, P.J., filed a concurring and dissenting opinion. WOMACK, J., filed a dissenting opinion. OVERSTREET, J., dissented without a written opinion. MEYERS, Judge, concurring. I concur. In Texas, a prospective juror who cannot consider the full range of punishment, as set out by the law, is challengeable for cause. Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert. denied 508 U.S. 941, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993); see also Woodkins v. State, 542 S.W.2d 855, 862 (Tex.Crim.App.1976). The range of punishment is set by statute. In the present case, the relevant statute makes no distinction between one convicted as a party and one convicted as a principal both are subject to the same range of punishment if found guilty. As the majority points out, a juror who cannot keep an open mind as to the full range of punishmentthat is, remain open to the idea that in some circumstances the minimum punishment will be appropriate and in some circumstances the maximum will be appropriateis challengeable for cause via Article 35.16(c)(2) or Article 35.16(b)(3) of the Texas Code of Criminal Procedure. 407 The rule set out in the majority opinion is that a prospective juror who cannot consider that in some circumstances the minimum punishment allowed would be appropriate for one convicted as a principal would be challengeable for cause. I note that the same rule would apply in the opposite situationa prospective juror who could not consider that in some circumstances the maximum punishment allowed would be appropriate for one convicted as a party would also be challengeable for cause. With these remarks, I join the majority opinion. KELLER, Judge, concurring. "Qualified prospective jurors must be willing to consider the full range of punishment applicable to the offense submitted for their consideration." Banda v. State, 890 S.W.2d 42, 55 (Tex.Crim.App.1994), cert. denied, U.S. , 515 U.S. 1105, 115 S. Ct. 2253, 132 L. Ed. 2d 260 (1995). The inability to do so constitutes a bias or prejudice against the law and renders a prospective juror challengeable for cause by the defendant or by the State. Pyles v. State, 755 S.W.2d 98, 103 (Tex.Crim.App.1988), cert. denied, 488 U.S. 986, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988)(citing Texas Code of Criminal Procedure, Articles 35.16(b)(3) and (c)(2)). The question presented here is: what do we mean when we say "the offense submitted for consideration?" In voir dire, the issue arises when a party asks a prospective juror a question regarding his ability to consider the full range of punishment under a certain set of circumstances. If the party's question and the prospective juror's answer illustrate that the prospective juror would be unable to consider the full range of punishment under circumstances that merely comprise the offense submitted for consideration, then the prospective juror is challengeable for cause. If, however, the question and answer show only that the prospective juror would be unable to consider the full range of punishment for a set of circumstances that go beyond the "offense submitted for consideration," then the juror is not challengeable for cause on the basis that he could not consider the full range of punishment. Several alternative definitions of "the offense submitted for consideration" present themselves. I will characterize these differing approaches as (1) the classification approach, (2) the holistic approach, and (3) the evidentiary approach. (1) The Classification Approach. First, we could define "the offense submitted for consideration" as any statutory classification that could be applicable to the case at hand to which the full range of punishment would apply. Statutory classifications would include the elements of an offense as defined in a section or subsection of a statute, general principles of liability such as party liability and transferred intent, and/or certain mitigation issues that may further define the degree of punishment such as "sudden passion" in a murder case or "release in a safe place" in an aggravated kidnapping prosecution. See Texas Penal Code § 6.04(b)(transferred intent), § 7.02 (party liability), § 19.02(d)(sudden passion), § 20.04(d) (release in a safe place).[1] Under this definition, any combination of statutory elements constituting a convictable offense in the case in question would be an "offense submitted for consideration." Hence, a given case could well have multiple offenses submitted for consideration, based upon alternative legal theories for committing the offense, and persons on the venire would have to be able to consider the full range of punishment for each one. Take, for example, an indictment for murder which alleges alternate theories of liability, those being intentionally and knowingly causing the death of the victim (Sec.19.02(b)(1) murder) and felony murder (Sec.19.02(b)(3) murder.) Under the classification approach a prospective juror must be able to consider the full range of punishment for both intentional murder and for felony murder. If he could not consider the full range of punishment for even one of the theories he would be challengeable for cause. But, he would not be challengeable for cause for an inability to consider the full range of punishment for murder under Sec. 408 19.02(b)(2)(serious bodily injury murder), because that variant of murder was not plead. (2) The Holistic Approach. A second possible approach would be to hold that some but not all statutory classifications to which the full range of punishment applies are considered as part of the offense submitted for consideration. One formulation of this approach would be to exclude general principles of liability as constituting separately submittable offenses. Under this scenario, party and principle liability would simply be considered alternative methods for committing a particular offense submitted. A second formulation of the holistic approach would be to hold that alternative theories contained in a Penal Code section should not be considered as constituting separately submittable offenses. Under this formulation, a particular Penal Code section, such as § 19.02 (Murder) would constitute the submitted offense, and subsections (b)(1), (2), and (3)(intentional/knowing murder, serious bodily injury murder, and felony murder respectively) would constitute merely different methods of committing the submitted offense instead of being considered independently submitted offenses. Under this "section" definition, a prospective juror would not be challengeable for cause for being unable to consider the full range of punishment for a particular legal theory of the offense so long as he could consider the full range of punishment for the "submitted offense" (murder) as a whole. In the murder indictment example, a prospective juror would not be challengeable for cause even if he could not consider the full range of punishment for the two theories plead, as long as he could consider the full range of punishment for the unplead theory (Sec.19.02(b)(2) serious bodily injury murder). (3) The Evidentiary Approach. A third possible formulation would be that one should determine the submitted offense by examining the facts of the case. Such an inquiry would entail examining the particular conduct committed by the defendant and asking a prospective juror if he could consider the full range of punishment for a person committing that conduct. Of these three options, I believe that the classification approach is preferable. In my opinion, it is the formulation most consistent with the legislature's intent, case law, reason, and fairness. The evidentiary approach may be easily dispensed with. We have recently held that approach to be invalid. Sadler v. State, 977 S.W.2d 140 (Tex.Crim.App.1998) (prospective juror is not required to consider the full range of punishment under the particular facts of the case). This holding is consistent with past case law on the subject. See Faulder v. State, 745 S.W.2d 327, 339 (Tex.Crim.App.1987)(prospective juror must be able to consider the possibility of probation for the offense of murder but is not required to consider probation for the offense of murder in a particular factual situation). The downfall of the evidentiary approach paves the way for the conflict between the holistic and classification approaches. The holistic approach would characterize separate theories of the "same offense" (e.g., Sec.19.02(b)(1),(2), and (3)) as factual matters upon which prospective jurors may validly prejudge punishment, as long as they can consider the full range of punishment for at least one theory of the submitted offense (Sec.19.02(b) murder). The classification approach, by contrast, holds that separate legal theories are in fact legal definitions of the offense to which the full range of punishment must apply. Case law supports the classification approach. In the capital murder arena, we have stated that a prospective juror must be able to assess the death penalty for the particular statutory legal theory of capital murder found in § 19.03 that is on trial: [P]otential jurors must be able to set aside their personal preferences and biases to consider as death eligible all those defined as death eligible by Section 19.03 of the Texas Penal Code and Article 37.071 of the Texas Code of Criminal Procedure....[J]urors may not substitute legal categories of death eligibility with their personal preferences and biases and thereby place themselves above the law. 409 Howard v. State, 941 S.W.2d 102, 128 (Tex.Crim.App.1996)(emphasis in original, ellipsis inserted)(quoting Rachal v. State, 917 S.W.2d 799, 812-813 (Tex.Crim.App.1996) (plurality opinion)). For example, a juror, in deciding a capital murder case, is not free to reject "murder in the course of burglary" as a valid criteria for a sentence of death because the law provides otherwise. Howard, 941 S.W.2d at 128 (discussing Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992) and citing its holding that a juror was challengeable for cause when she indicated that she could assess the death penalty only for serial killers); see also Wilson v. State, 863 S.W.2d 59, 70 n. 2 (Miller, J. concurring)(prospective juror challengeable for cause when, to give the death penalty, he requires evidence of capital murder that constitutes an offense under a different subsection of the statute from the crime with which he is charged). If the holistic approach were correct, one would have to say that the "submitted offense" was "capital murder" and the various methods of committing that offense outlined in § 19.03(a)(1)-(8) are simply different fact situations which a juror is free to decide do not merit the death penalty (i.e. do not show future dangerousness). But, consistent with the classification approach, case law holds that a prospective juror must be able to consider assessing the death penalty for each statutory scenario for capital murder in issue in the case at hand. In addition, we have indicated that a prospective juror is challengeable for cause if he cannot assess the death penalty against a non-trigger person. Phillips v. State, 701 S.W.2d 875, 884 (Tex.Crim.App.1985). Phillips is not unequivocal authority for that proposition, however, because the prospective juror in that case also stated that he could not find a non-trigger person guilty of capital murder. Id.[2] And we have indicated that a juror is challengeable for cause if he cannot consider the full range of punishment for felony murderalthough that case is also ambiguous. Smith v. State, 683 S.W.2d 393, 398 (Tex.Crim.App.1984)(upholding State's challenge for cause on the ground that prospective juror could not consider minimum range of punishment for felony murder; the case is ambiguous because, arguably, the juror's response showed an inability to assess punishment for murder in general). One can, of course, draw distinctions between capital cases, non-capital cases, and general principles of liability. In capital cases, there are only two possible punishments: life or death. If a juror excludes one of the statutory classifications of capital murder from the purview of the death penalty, that juror has clearly frustrated the Legislature's intent, which was to make the death penalty an available punishment in that situation. Non-capital cases, by contrast, involve a range of punishment rather than two stark alternatives. And, general principles of liability, such as party liability and transferred intent, can be distinguished from questions involving offense-specific elements on the ground that these general principles are separated from the specific offenses in the Penal Code and need not be alleged in an indictment. But I question whether those difference are important. A persuasive argument can still be made, even in non-capital cases, that: the Legislature must have intended that prospective jurors be able to consider the full range of punishment for the different statutory classifications because it subjected those classifications to the range of punishment provided. That reasoning also applies to general principles of liability: the legislature subjected parties and persons with "transferred intent" to the same range of punishments as the principal offenses, and therefore, must have intended jurors to consider the range of punishment involved. And while general principles of liability need not be alleged in an indictment, those principles are nevertheless used in measuring evidentiary sufficiency, and such principles, if raised by the evidence, would be included in a correct jury charge. See Malik v. State, 953 S.W.2d 234, 239-240 (Tex.Crim.App. 410 1997). In most important respects, general principles of liability are treated as offense elements. Moreover, attempting to pick and choose which statutory classifications require consideration of the full range of punishment risks creating a muddled jurisprudence in which trial judges and litigants have difficulty distinguishing between prospective jurors who are challengeable and those who are not. By contrast, the classification approachholding that any statutory classification, implicated by the indictment, to which a range of punishment applies constitutes the submitted offensecreates a bright-line rule that is easy to apply. Bright-line rules can be fashioned under the holistic approach, but such rules create arbitrary results. For example, consider a bright-line rule holding that a "section" (such as § 19.02 "murder") is the submitted offense for which a juror must consider the full range of punishment. In a murder prosecution in which the State relies upon the felony murder subsection, a juror would not be challengeable for cause if he could not consider the maximum sentence for felony murder (an accidental killing during the course of a felony), so long as he could consider the maximum sentence for one of the other two types of murder outlined in § 19.02 (i.e. intentional/knowing killing or intent to commit serious bodily injury resulting in death). See § 19.02(b)(1)-(3). However, a prospective juror would be challengeable for cause if he could not consider the full range of punishment for intoxication manslaughter (in a prosecution for that offense) even if he could consider the full range for "ordinary" manslaughter, because the two offenses are found in separate Penal Code sections. See and compare § 19.04 (Manslaughter) and § 49.08 (Intoxication Manslaughter). This result holds true under the "section" formulation of the holistic approachdespite the fact that the two manslaughter offenses have the same range of punishment and are as much alike as intentional murder and felony murder are alike. There is no reason to believe that the Legislature organized the offenses in its statutes with jury selection in mind; in fact, the prospect seems unlikely. Hence, no legitimate reason exists for treating offenses differently for jury selection purposes simply because of differences in offense grouping. Further, there is no reason to believe that someone guilty as a party must necessarily be less culpable than one guilty as a principal. In some cases the accomplice may be less culpable, but in other cases he may be more culpable: sometimes the accomplice is the dominating influence exerted during the crime or the lead figure who plans the crime or sets the criminal action into motion. And, perhaps more importantly, the law of parties, when implicated, is functionally an element of the offense tried, and it makes little sense to attempt to distinguish that particular element from other elements for range of punishment purposes. Similarly, a defendant's status as the "principal" is a legal classification to which the full range of punishment attaches. Being charged as a principal simply means that the State relies upon the elements of the specific offense without the benefit of the law of parties. The classification approach to range of punishment issues avoids the problems inherent in the holistic approach. We need not attempt to pick and choose which legislative provisions require a respect for range of punishment and which do not. We need not draft a principle of law that will result in treating similarly related offenses differently. And we need not ignore the apparent legislative intent to subject its classifications to the ranges of punishment it specifies. A principled, bright-line rule is drawn by a rule that states: a prospective juror must be able to consider the full range of punishment for any legislative classification, implicated by the indictment, to which the range of punishment could apply. The present case involves the distinction between principals and parties. Because liability as a principal involves a legal classification to which the full range of punishment could applyto wit, the elements of the offense charged (without the benefit of the law of parties)the prospective jurors in the present case were challengeable for cause 411 because they could not consider the full range of punishment for a principal. With these comments, I join the majority opinion. McCORMICK, Presiding Judge, concurring and dissenting. I concur to remanding this case to the Court of Appeals for a harm analysis. However, I dissent to the Court's holding that the veniremembers were challengeable for cause. Both parties in a criminal case have a statutory right to challenge veniremembers who have a bias or prejudice against a phase of the law upon which a party is entitled to rely. See Article 35.16(b)(3) and (c)(2), V.A.C.C.P. The obvious intent of Article 35.16 is to effectuate a defendant's Sixth Amendment right to an impartial jury while also providing the prosecution a statutory right to an impartial jury. In other words, our Legislature has statutorily decided that both sides in a criminal case are entitled to a fair trial. The veniremembers in this case were not challengeable for cause under this Court's decision in Garrett v. State which overruled direct precedent, and has been used to overrule various other parallel precedents,[1] of this Court. See Garrett v. State, 851 S.W.2d 853, 860 (Tex.Cr.App.1993), and at 861-64 (Campbell, J.) (discussing parallel precedents Garrett effectively overruled). Fairly and consistently applied, Garrett should cut a wide swath through this Court's parallel precedents making no distinctions between defense challenges for cause and prosecution challenges for cause. See Garrett, 851 S.W.2d at 861-64 (Campbell, J., dissenting). To be consistent with Garrett, Howard, Zinger and Castillo, the Court should decide the veniremembers in this case were not challengeable for cause. Garrett relied on what it characterizes as a veniremember's "minimum threshold level of reasonable doubt" rationale to overrule precedent which had held a veniremember who categorically refuses in a capital case to consider affirmatively answering the "future dangerousness" special issue based on the facts of the offense itself is subject to a challenge for cause. See Garrett, 851 S.W.2d at 857-61.[2] The rationale for the unprecedented new rule announced in Garrett is "a venireperson who categorically refuses to answer the ["future dangerousness"] special issue on nothing more than evidence of the capital offense itself may only be indicating that his threshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient."[3]Rachal v. State, 917 S.W.2d 799, 820 (Tex.Cr. App.) (Clinton, J., concurring in the judgment), cert. denied, ___ U.S. ___, 117 S. Ct. 614, 136 L. Ed. 2d 539 (1996) (explaining Garrett's rationale); see Garrett, 851 S.W.2d at 860 (veniremember "who indicates he would set his reasonable doubt threshold higher than the legal minimum" does not demonstrate a prejudice against the law).[4] 412 After Garrett, this veniremember is not subject to a challenge for cause unless he says "he would not answer the ["future dangerousness"] special issue affirmatively [based on the facts of the offense itself] even if the facts of the offense itself convinced him beyond a reasonable doubt that" this special issue should be answered affirmatively. See Rachal, 917 S.W.2d at 820-21 (Clinton, J., concurring in the judgment). Under Garrett, this veniremember "really does hold the State to a higher burden of proof than the law allows." Id. Garrett's "minimum threshold level of reasonable doubt" rationale was applied in Castillo to overrule more precedent which had held a veniremember who categorically refuses to consider convicting on the basis of one eyewitness is subject to a challenge for cause.[5] See Castillo, 913 S.W.2d at 532-35.[6] After Castillo, this veniremember is not subject to a challenge for cause unless he categorically refuses to consider convicting on the basis of one eyewitness even if he believes that witness beyond a reasonable doubt. See Castillo, 913 S.W.2d at 533; see also Rachal, 917 S.W.2d at 818-21 (Clinton, J., concurring in the judgment).[7] Garrett's "minimum threshold level of reasonable doubt" rationale was applied in Howard to overrule more parallel precedent to the effect that a veniremember who categorically refuses in a capital case to consider affirmatively answering the "future dangerousness" special issue without evidence the defendant had committed a prior murder is subject to a challenge for cause. See Howard, 941 S.W.2d at 127-29 (op. on reh'g).[8] After Howard, this veniremember is not subject to a challenge for cause unless she categorically refuses to consider affirmatively answering the "future dangerousness" special issue without evidence the defendant had committed a prior murder even if other evidence convinces her beyond a reasonable doubt that this special issue should be answered affirmatively. See Howard, 941 S.W.2d at 127 (op. on reh'g); see also Rachal, 917 S.W.2d at 818-21 (Clinton, J., concurring in the judgment). In this case, the veniremembers categorically refused to consider the minimum (or full range of) punishment for a defendant convicted as a principal. Under Garrett's rationale, these veniremembers were not subject to a challenge for cause. They did not say they would categorically refuse to consider the minimum punishment even if the evidence otherwise convinced them the minimum punishment was appropriate. These veniremembers merely indicated their threshold for being convinced the minimum 413 punishment should be assessed was "somewhat higher than the minimum that the law recognizes as sufficient." Compare Rachal, 917 S.W.2d at 820 (Clinton, J., concurring in the judgment). "Unless we are prepared to hold that jurors must always" assess the minimum punishment, then under Garrett it cannot be said that such veniremembers have "a bias against the law." Compare id. Garrett rejects the principle that venire members must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried. But, this essentially is the principle the Court's opinion applies in this case to decide the defense challenges for cause were erroneously denied. See majority opinion, Johnson v. State, 406 S.W.2d at 4 (prospective jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried). To support its holding in this case, footnote three of the Court's opinion claims "the State is entitled to jurors who can accept that the maximum legal punishment will be appropriate in some circumstances for a defendant found guilty as a party." (Emphasis in Original). This states a pre-Garrett holding of this Court in Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985), cert. denied, 477 U.S. 909, 106 S. Ct. 3285, 91 L. Ed. 2d 574 (1986) (veniremember who says he could never answer special issues in such a way as to require imposition of the death penalty for defendant found guilty of capital murder as a party was subject to prosecution challenge for cause). Therefore, the Court essentially relies on Phillips for its holding in this case. But, Phillips and Garrett cannot be reconciled. Under Garrett, a veniremember like the one in Phillips is not challengeable for cause because this veniremember merely indicates his "threshold for proof beyond a reasonable doubt" is somewhat higher than the minimum that the law recognizes as sufficient. See Garrett, 851 S.W.2d at 860. It would appear Phillips is another one of Garrett's collateral casualties. See Garrett, 851 S.W.2d at 861-64 (Campbell, J., dissenting). Notwithstanding the foregoing, Garrett's "minimum threshold level of reasonable doubt" rationale is an irrelevant rabbit trail, and I would use this case to overrule Garrett. While a veniremember like the one in Garrett arguably may not increase the State's burden of proof, there is another and more important reason why this veniremember is subject to a challenge for cause which Garrett and its progeny completely ignored even though raised by the losing party in each one of these cases. See Zinger, 932 S.W.2d at 518 (McCormick, P.J., dissenting) (Garrett and Castillo completely ignored the losing party's alternative contentions on why the veniremembers were subject to a challenge for cause).[9] The simple fact of the matter is the veniremembers in Garrett and Castillo demonstrated an inability to follow the law by categorically refusing to consider all the evidence in deciding guilt and punishment issues. But see majority opinion, Johnson, 406 at 4 (prospective jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried). A trial court does not abuse its discretion to decide that a veniremember, who categorically refuses to consider affirmatively answering the "future dangerousness" special issue based on the facts of the offense itself, demonstrates an inability to consider all the evidence in answering this special issue which also effectively demonstrates an inability to consider the full range of punishment for the offense. A trial court does not abuse its discretion to decide that a veniremember, who categorically refuses to consider convicting on the basis of one eyewitness, demonstrates an inability to consider all the evidence in deciding guilt. A trial court does not abuse its discretion to decide these veniremembers demonstrate an inability to follow their oaths to render a verdict "according to the law and the evidence." See Article 35.22, V.A.C.C.P.[10] 414 Garrett's "minimum threshold level of reasonable doubt" rationale also is based on a flawed premise. This premise is that without Garrett we must be "prepared to hold that jurors must always be convinced beyond a reasonable doubt on the basis of legally sufficient evidence." See Castillo, 913 S.W.2d at 533; Rachal, 917 S.W.2d at 820 (Clinton, J., concurring in the judgment) (explaining the premise of the "minimum threshold level of reasonable doubt" rationale). This is incorrect. All we must be prepared to hold is that jurors must be able to consider all the evidence in deciding guilt and punishment issues. See Article 35.22. And, a veniremember who categorically refuses to do so is challengeable for cause. This is what I always thought the law was until Garrett and its progeny came along. This case demonstrates Garrett's flawed premise. In reversing this conviction, I do not understand the Court's opinion to hold that jurors must always assess the minimum punishment. I understand the Court's opinion to hold jurors should be able to consider assessing the minimum punishment under appropriate circumstances. This is no different from saying a veniremember should be able to consider convicting on the basis of one eyewitness (Castillo) or should be able to consider affirmatively answering the "future dangerousness" special issue based on the facts of the offense (Garrett). However, Garrett has effectively interpreted Article 35.16 to mean the parties (or, at least the prosecution) in a criminal case are not entitled to a favorable ruling on a challenge for cause to veniremembers who categorically refuse to consider all the evidence in deciding guilt and punishment issues.[11] In Garrett the veniremember demonstrated an inability to consider the full range of punishment by categorically refusing to consider all the evidence in answering the "future dangerousness" special issue. Similarly the veniremembers in this case demonstrated an inability to consider all the evidence in deciding punishment by categorically refusing to consider the full range of punishment for a defendant convicted as a principal. They were not challengeable for cause under Garrett. In this case, the Court should either overrule Garrett or follow it. The Court picks a third and what I consider to be the least desirable option which is to wholly ignore Garrett creating a glaring inconsistency and imbalance in how the Court interprets Article 35.16(b)(3) (prosecution challenges for cause) and Article 35.16(c)(2) (defense challenges for cause). As this case demonstrates, Garrett apparently applies only to prosecution challenges for cause which means the citizens of this State, acting through their officials, are not entitled to a fair trial. This stands the clear legislative intent of Article 35.16(b)(3) on its head. With these comments, I join the Court's judgment to remand the case to the Court of Appeals for a harm analysis. I dissent to everything else. WOMACK, Judge, dissenting. I think the proper analysis is the one Judge Keller calls the second formulation of the "holistic approach," ante at 408 (slip op. at 2). All a juror need be able to do is to be open to assessing a minimum punishment for some form of aggravated robbery, and a maximum punishment for some form of aggravated robbery. This I believe to be consistent with the wide ranges of punishment attached to offenses in the Penal Code, and to the legislative directive that the Code be 415 construed "to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders." Penal Code § 1.02(3). I would affirm the judgment below. NOTES [1] All references to articles are to those in the Texas Code of Criminal Procedure. [2] Article 35.16(b)(3) provides that the State may challenge a prospective juror for cause if the prospective juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." [3] We hasten to point out that, under Article 35.16(b)(3), the State is entitled to jurors who can accept that the maximum legal punishment will be appropriate in some circumstances for a defendant found guilty as a party. In other words, what is sauce for the goose is sauce for the gander. [1] All further references to sections are to the Texas Penal Code unless otherwise specified. [2] Judge Campbell believed that Phillips stood for the proposition that a prospective juror is challengeable for cause if he cannot answer the future dangerousness punishment issue affirmatively when the defendant is a non-trigger person. Garrett v. State, 851 S.W.2d 853, 863-864 (Tex.Crim.App.1993)(Campbell, J. dissenting). [1] See Howard v. State, 941 S.W.2d 102, 126-30 (Tex.Cr.App.1996) (op. on reh'g) (prosecution challenge for cause erroneously granted); Zinger v. State, 932 S.W.2d 511, 513-14 (Tex.Cr.App. 1996) (same); Castillo v. State, 913 S.W.2d 529, 532-37 (Tex.Cr.App.1995) (same). [2] Therefore, under Garrett, the defense apparently is not entitled to a favorable ruling on a challenge for cause to a veniremember who categorically refuses in a capital case to consider affirmatively answering the mitigating evidence special issue based on the facts of the offense. But cf. First v. State, 846 S.W.2d 836, 837 (Tex.Cr.App.1992). [3] Therefore, under Garrett, a veniremember who says he will always affirmatively answer the "future dangerousness" special issue based on the facts of the offense itself is not subject to a challenge for cause since this veniremember only holds the prosecution to the low "end of the range" of reasonable doubt. See Garrett, 851 S.W.2d at 860; Castillo, 913 S.W.2d at 533 (as long as the law permits a range of "reasonable doubt," the veniremember who says he will hold the prosecution to the "high end of the range" is not requiring anything that the law does not tolerate). [4] Garrett mischaracterizes the nature of the inquiry. The inquiry in cases like Garrett is whether the veniremember can consider affirmatively answering the "future dangerousness" special issue based on the facts of the offense. This inquiry does not seek to commit the veniremember to answer this special issue affirmatively based on the facts of the offense. The inquiry is only whether the veniremember can consider all the evidence in answering the "future dangerousness" special issue. This has absolutely nothing to do with a veniremember's "minimum threshold level of reasonable doubt." [5] Castillo repeated Garrett's mistake by mischaracterizing the nature of the inquiry. The inquiry is whether the veniremember can consider all the evidence in deciding guilt which has nothing to do with a veniremember's "minimum threshold level of reasonable doubt." [6] Therefore, after Castillo, the defense apparently is not entitled to a favorable ruling on a challenge for cause to a veniremember who categorically refuses to consider an affirmative defense or any other defense based on the testimony of a single witness. And, the prosecution apparently is not entitled to a favorable ruling on a challenge for cause to a veniremember who categorically refuses to consider convicting without eyewitness testimony despite this Court's precedents to the contrary. See White v. State, 779 S.W.2d 809, 822 (Tex.Cr.App.), cert. denied, 495 U.S. 962, 110 S. Ct. 2575, 109 L. Ed. 2d 757 (1990) (veniremember who cannot convict without eyewitness testimony is subject to a challenge for cause). The prosecution also is apparently not entitled to a favorable ruling on a challenge for cause to a veniremember who categorically refuses to convict without 1,000 eyewitnesses. The defense also is apparently not entitled to a favorable ruling on a challenge for cause to a veniremember who categorically refuses to consider an affirmative defense without 1,000 eyewitnesses. [7] After the veniremember in Zinger categorically refused to consider convicting on the basis of one eyewitness, he later said he could never get to the point of saying even if he believed the witness beyond a reasonable doubt when the veniremember was asked the extra question required by Garrett and Castillo. See Zinger, 932 S.W.2d at 512. This demonstrates an inability to consider all the evidence in deciding guilt since the veniremember said he could never get to the point of considering whether the eyewitness convinced him beyond a reasonable doubt. This Court nevertheless held the veniremember in Zinger was not challengeable for cause. See id. [8] Howard repeated Garrett's and Castillo's mistakes by mischaracterizing the nature of the inquiry. [9] Fairness requires that a judicial opinion address all the contentions made by the losing party on appeal especially when the Court has used Garrett to overrule more precedents and to reverse more convictions costing the tax payers millions of dollars in retrials. [10] This Court has yet to address whether the veniremembers in cases like Garrett and Castillo demonstrate an inability to consider all the evidence in deciding guilt and punishment issues even though the losing party made this contention in each one of these cases. See Footnote 10. Garrett's "minimum threshold level of reasonable doubt" rationale does not answer, and is completely unresponsive to, the contention that these veniremembers categorically refuse to consider all the evidence in deciding guilt and punishment issues. See Zinger, 932 S.W.2d at 518 (McCormick, P.J., dissenting). [11] Therefore, under Garrett a defendant is not entitled to a favorable ruling on a challenge for cause to a veniremember who categorically refuses to consider all the evidence in answering the mitigating evidence special issue at the punishment phase of a capital murder trial. But see Garcia v. State, 919 S.W.2d 370, 399-400 (Tex. Cr.App.1994).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3341990/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This matter was first initiated incident to a summons and complaint dated September 21, 1998 and returnable October 13, 1998 in which complaint the plaintiff sought a dissolution of the marriage, custody of the one remaining minor child, an equitable distribution of the parties' property, both real and personal, temporary and permanent support, counsel fees, restoration of her maiden name of Janis P. LaCourse, and such other relief as the court felt would be proper. A financial statement accompanied the complaint as well as preliminary motions. The defendant appeared by counsel on October 9, 1998, and at that time, filed an answer to the complaint and a cross complaint, in which cross complaint the defendant sought a CT Page 14111 dissolution of the marital union, an order concerning custody of the minor child and an equitable division of all real and personal property. A stipulation was executed by the parties bearing date of November 2, 1998 as concerns the one minor child, use of the marital home, child support and provision as to debts. The defendant filed a financial affidavit on November 2, 1998. On March 2, 1999 a motion to modify child support pendente lite and a motion to modify contribution to household expenses was filed by the defendant but the same does not appear to have been acted upon. On October 15, 1999 the plaintiff and the defendant, with their respective attorneys and witnesses, appeared before the court and the matter was heard to a conclusion. The Court makes the following findings of fact. The plaintiff and the defendant were united in marriage on July 12, 1975 in Groton. The plaintiffs maiden name was LaCourse. Both parties have resided in the State of Connecticut for more than 12 months prior to the initiation of the petition. The plaintiff and the defendant have at present one minor child issue of their marriage, Michelle Rene Beeney, born January 30, 1982. No other minor children have been born to the plaintiff wife since the date of the marriage. Neither party has been the recipient of assistance from the State of Connecticut or any municipality or subdivision thereof It appears that the marriage has irretrievably broken down with no reasonable prospect for reconciliation. The testimony of the plaintiff indicates that the only common bond between the parties at this time are the children issue of this marriage. CT Page 14112 There has apparently been, of late, no effort to try and preserve the marital union. The plaintiff at an earlier point sought counseling, tried to improve the problems in the marriage and attended as many as six to eight sessions incident thereto. The plaintiff in September of 1998 left the marital home with the minor child Michelle Rene. There are two other children issue of this union; Lisa Beeney, age 22, presently residing in Arizona and Scott Beeney, who at present, resides with the plaintiff. The son Scott Beeney attends college. The minor daughter Michelle will graduate from high school in June of 2000. The plaintiff testified that she is not desirous of having her maiden restored nor is she seeking alimony from the court. The plaintiff is age 42 and indicates that her health is good. In July of this year the marriage is of 24 years duration. The defendant has medical problems and difficulties, more particularly, the fact that he experiences seizures in the night, sometimes being afflicted with six or seven in one evening. These seizures have effected the defendant's health. On occasion, the defendant has been unable to attend his regular work duties because of the problems attendant to the seizures. On occasion, the defendant has been hospitalized for this condition. The defendant has in the past and at present works for General Dynamics/Electric Boat. The plaintiff has worked two jobs for a considerable period of time in order to try and provide financial stability in the family. The plaintiff has been employed since 1982 in various tasks CT Page 14113 as a waitress, doing babysitting and working at an insurance agency as a customer service representative. The plaintiff is now a licensed insurance agent. The plaintiff was formerly employed by the Parks Insurance Agency. Her present employer is the Sound Insurance Agency. The plaintiff has acquired considerable expertise and experience as an insurance agent. Two weeks ago at a meeting with her employer, she learned that an insurance organization known as Amica has purchased her agency and there is a possibility that her employment may be terminated. The plaintiff and the defendant own a home and certain real estate known as 120 Mitchell Street in Groton. According to the testimony, there is an outstanding first mortgage on the property in the amount of $88,036.00, and a second mortgage in the amount of $5,938.00. The plaintiff feels on the basis of present market conditions, mindful of the encumbrances noted, that there is very little or zero equity in the real estate. The plaintiff described the relationship between the plaintiff and the defendant as having great tension. Since September of 1998 when the plaintiff left the home with the minor child and with the adult child, Scott, the plaintiff has been paying the defendant $200.00 monthly toward keeping the mortgage obligations current. The plaintiff moved back to the residence in April of 1999 due to financial constraints. The plaintiff is currently paying all expenses attendant to the subject real estate and the defendant is contributing $200.00 monthly to her. The plaintiff is desirous of keeping and maintaining the home for herself and the minor child. The plaintiff is willing to assume the debts and obligations that are presently attached to the real estate. The plaintiff wishes to retain her automobile and personal property and is desirous of having the court award her a suitable percentage of her husband's vested or prospective pension CT Page 14114 benefits. The plaintiff at this juncture has no retirement plan to which she can resort. The plaintiff has no present medical coverage incident to her present position. The plaintiff has relied on the defendant's medical coverage incident to his continued employment at Electric Boat. The plaintiff anticipates that in January 2000 she may be covered insofar as medical insurance is concerned, but is desirous in the interim of having the privilege at her own expense to have such coverage as Cobra provides incident to her husband's employment. The plaintiff is desirous of having life insurance presently covering the defendant be maintained and continued with the children being the beneficiaries. The residence at 120 Mitchell Street, Groton, according to the plaintiffs testimony is in need of electrical rewiring, she has indicated that all of the rooms in the residence are not finished, that the property needs painting. The plaintiff does not presently have the requisite funds to correct the deficiencies in the home. The plaintiff acknowledged that during the course of the marriage that the defendant helped in maintaining the home, cleaning and cooking. The plaintiff acknowledged that the defendant's medical condition contributed to the problems in the marriage. Four years ago the defendant underwent a series of tests at Yale New Haven with regard to trying to determine the source of the nocturnal seizures to which he was subject. During the defendant's stay at Yale New Haven the plaintiff visited him every other day. Apparently the lines of communication between the plaintiff and the defendant have not existed for a considerable period of time and there are feelings of considerable hostility. The adult child Scott, now age 18, had a problem with regard to the immoderate use of alcohol, which is hopefully being CT Page 14115 addressed. At the referenced real estate, 120 Mitchell Street, there are four bedrooms in the residence. A co-worker of the plaintiff, as of September 1999, was paying $300.00 a month for partial residency in the premises but this will be terminated shortly. The adult child Scott recently ran for political office in the area and was successful. He is presently an employee now of the City of Norwich at age 19. At some time in the past, the defendant suffered a back injury at Electric Boat and subsequently received the sum of $7,000.00, which monies were expended for various purposes. In the plaintiff's work as a licensed insurance agent, she receives a stated compensation and is not on a commission basis. The second mortgage on the property was in the main used for the daughter Lisa's wedding, which cost some $6,000.00. While under the same roof there were problems between the plaintiff and the defendant where they did not speak or communicate, one with the other, frequent arguments and loud speech. Approximately 12 years ago the plaintiff filed a petition for dissolution but it was subsequently withdrawn. The defendant, incident to his work at Electric Boat, is on a restricted duty status. The monthly mortgage payment on the first mortgage is to the amount of $830.00 and $50.00 on the second mortgage, which includes tax, escrow and insurance. If, as anticipated, the plaintiff by virtue of the takeover of the agency with which she has been employed by Amica occurs, she may have the option of moving to Amica's office in Glastonbury. The plaintiff's education extended through high school. CT Page 14116 During the ownership by the parties of the subject real estate, the defendant has apparently made extensive repairs and improvements, including rebuilding the kitchen, sanding floors, sheetrock work, electrical work, carpeting and a new deck on the rear of the premises. The last repair project was two years ago. The defendant indicated that he would not oppose the court granting title to the subject real estate to the plaintiff if it appeared appropriate to do so. The defendant maintains contact with and visits the 17 year old daughter, Michelle Rene, indicates that he has an abiding love and affection for the young lady. The defendant felt that there was a marked difference of opinion with regard to raising the children and that this created problems as well as alcohol problems with the son Scott. The defendant and the adult child Scott participated in counseling with regard to trying to solve Scott's problems with alcohol. The adult son Scott has attended Eastern Connecticut University, has had some problems with regard to keeping up with his classes, has now applied for admission to the University of Connecticut at Avery Point. There was some conflict between the plaintiff and the defendant with regard to conduct of the minor child, Michelle Rene, incident to her friendship with a boyfriend. The defendant testified that he has a serious problem with an arterial sclerotic condition and has had medical procedures involving probes into the brain. The defendant indicated that he has had a seizure as recently as this last week and has been advised medically that he suffers from a severe hardening of the arteries. One month ago the defendant had a seizure episode where he blacked out requiring his being taken to Lawrence and Memorial Hospital for treatment. In addition, he has a serious cholesterol problem. The defendant has a regimen of medication for every day. In CT Page 14117 addition, he has a heart problem that was diagnosed six or seven years ago. With reference to the aforementioned injury that he received while working at Electric Boat, he was out of work for three years. He presently has a 10% disability as a result of that injury and his work is restricted as concerns matters of lifting, duration of hours, and so forth. The defendant first became employed at Electric Boat in April of 1974. He is a model joiner. He participates in the preparation of full scale models and mockups of submarines and works 40 hours a week. No overtime is presently available. The defendant does not have a second job at this time due to health problems. In March of 2000 it is anticipated that the model shop at Electric Boat may be shut down resulting in employment problems for those in the department including the defendant. The defendant is a high school graduate. He is age 45. The defendant has no skills other than model joining. The defendant resides at present with a friend and co-worker, one Gary Moon, in Stonington in a trailer. Defendant pays $125.00 weekly to Moon for the privilege of his residency there. Prior to residing with Moon the defendant had moved in with his elderly father but that created a stressful situation which was terminated. Some time ago the adult son Scott damaged the defendant's S10 Chevrolet pickup to the amount of $1,000.00. The defendant, while he has medical coverage at Electric Boat, his medications are not covered. He is presently engaged in counseling with Dr. Ruffner at $15.00 a visit. CT Page 14118 At the hearing on this matter the plaintiff produced a witness by the name of Mary Stober. Mary Stober is a real estate broker and agent. She is familiar with the premises known as 120 Mitchell Street in Groton. She has listed the home for sale. She testified that the title was in the joint names of the parties. The first listing occurred on August 19, 1998 when the property was listed at $118,000.00. The witness did a market analysis with regard to the premises. The witness showed the premises on six occasions. No offers to purchase were received. The price was lowered to $109,500.00. Fourteen showings resulted at this price over three months. No offers were received. In February 1999 the price was further lowered to $105,000.00 and advertised at that figure. It was shown seven or eight times. No offers were received. In June of 1999 the price was raised to $109,500.00. There have been two viewings, no offers. The property has been shown a total of 31 times. There are apparently problems with regard to the location of the property, which is situated close by a busy road or highway and that for this type of property prospective purchasers would need government financing, needed repairs apparently would be costly, including matters pertaining to peeling paint, electrical rewiring, replacement of windows, problems of plumbing and heating. The witness Stober has been a licensed broker for 15 years and engages in 30 to 40 sales a year. The witness valued the property at the present time at between $90,000.00 and $100,000.00. The premises are not presently on the market. If rented, the witness Stober indicated that a fair rental value might be $600.00 to $700.00 monthly. CT Page 14119 From the exhibits, the Court finds Plaintiff's Exhibit 1 confirms the court testimony of the witness Stober with regard to the listing of the property, the various price changes, the number of showings and matters of like nature. See Plaintiff's Exhibit 2 with regard to statement of retirement account as concerns the plaintiff indicating its year-end value as of 12/31/98 to the amount of $67.39. See Plaintiff's Exhibit 3, statement from the Washington Trust, first mortgagee, verifying the monthly payments on that mortgage of $838.10, and indicating a principal outstanding balance on said mortgage of $88,613.59. See Plaintiff's Exhibit 4, statement from General Dynamics, concerning hourly rate employee's retirement plan indicating total monthly accrued benefit of $831.25 in favor of the defendant based on the number of months of his employment. Said Plaintiff's Exhibit 4 also reflects present value of monthly pension benefits to the amount of $43,652.00. In the same exhibit, there being a breakdown with regard to pension plan benefits at age 62 and age 55; insofar as age 55 is concerned, the present value of monthly pension benefits is to the amount of $62,430.00. See also Plaintiff's Exhibit 5 with regard to retirement and group insurance. See also Plaintiff's Exhibit 7 concerning disability retirement. From Defendant's Exhibit A the Court finds on the basis of a medical statement from Dr. Mary Murphy-Fiengo of Gales Ferry that the defendant in fact is subject to seizure disorders described as complex partial type requiring three medications for control; Lamictal, Tegretol and Dilantin. The defendant has Diffuse Arthogenic Disease including ASHD, cardiac catherization (March 99), single vessel disease. Defendant is also afflicted with Carotid Artery Disease and has a history of hyperlipidemia type IV. Defendant suffers from severe peripheral vascular disease and aeortoiliac bypass 10/96 and Left Femoral Bypass. The defendant is presently on the following medications: Lamictal, Ttricor, Lopressor, Tiolid, Dilantin and Tegretol. CT Page 14120 From the financial affidavits of the parties, including Defendant's Exhibit B, the Court finds that the defendant is employed by General Dynamics/Electric Boat Division, that his weekly gross is $654.80, deductions for taxes, life insurance, medical coverage and SSIP, $213.17 a week, for a net of $441.63. According to the defendant's financial statement, his weekly expenses total $506.20. The defendant reflects total debt of $4,150.00, which of course does not include the obligations owed on the real estate. The defendant values the property at 120 Mitchell Street in Groton at $105,000.00, claimed indebtedness $88,000.00, for an equity of $17,000.00. The defendant owns a 1997 Chevrolet S10 truck with a loan balance equal to its value, 0 equity. The defendant shows a bass boat valued at $1,500.00, various and sundry furnishings at $1,500.00, $450.00 in Charter Oak Credit Union checking account, stock in SSIP, $1,183.00. The plaintiff (see Plaintiff's Exhibit 6) indicates that her employment is with Sound Insurance Company. In addition thereto, she works at the Par 4 Restaurant and for the Groton Board of Education as a high school coach. Plaintiffs weekly gross, $588.16, deductions for taxes, $137.00, net $451.16. That is her income from her insurance position. In addition, she receives income from Par 4 as a waitress estimated at $166.71, which apparently includes $36.71 that she receives from the Groton Board of Education. Total net weekly income for the plaintiff, $605.97. Claimed weekly expenses, $585.70, which includes the mortgage payments. Debt to Sears in the amount of $4,100.00. The plaintiff values the 120 Mitchell Street property at $100,000.00, mortgage debt at $88,613.59, for a total equity, which she is entitled to half, of $5,482.89. In addition, the plaintiff shows the second mortgage as $5,933.52. The plaintiff values her 1993 Pontiac automobile at $3,500.00, free and clear. $25.00 in the Groton Municipal Credit CT Page 14121 Union and Charter Oak Federal Credit Union. The only other asset shown is a Merrill Lynch IRA valued at $100.00. Discussion This is a marriage of 24 years. There is a total of three children issue of this marital union of which one, Michelle Rene Beeney, is a minor. She will attain age 18 on January 30, 2000. It is manifestly apparent and clear that the defendant husband has a variety of medical problems and there is no indication of any marked improvement prospects in the near future. The plaintiff feels, notwithstanding the total amount due on a home and residence, that she can by virtue of hard work maintain and keep the home for herself, the minor child and the adult son who is living with her and that this would be more practical and feasible than requiring the premises to be sold with the resulting negative or modest equity. The Law The Court has considered all, of the statutes which apply in matters of this nature including without limitation C.G.S. §46b-56 et seq. regarding custody and visitation, C.G.S. §46b-82 regarding alimony, C.G.S. § 46b-84 regarding child support. The Court has considered all of the applicable case law that governs the matter. The Court has considered the testimony of all witnesses, their candor or lack thereof and all exhibits and the arguments of counsel. The Court has considered the length of the marriage, the problems with which it was beset, the age, health, station, occupation, employability, estate and the needs of the parties based on what is available to the Court. The Court enters the following orders and notes that neither counsel submitted any proposed orders to the Court. CT Page 14122 The plaintiff and the defendant shall share joint custody of the minor child Michelle Rene Beeney, now age 17, with the plaintiff mother being the primary custodial parent. Reasonable and liberal rights of visitation with the minor daughter are granted to the defendant father. Support for the minor child shall be in the amount of $90.00 weekly, payable by the defendant to the plaintiff until the child attains her 18th birthday and/or graduates from high school; this in accordance with the guideline worksheet. The defendant shall continue to provide medical and health coverage for the minor daughter during her minority. The defendant shall continue in full force and effect any outstanding life insurance naming the minor child or all of the children as irrevocable beneficiaries during the minority of the child Michelle Rene. The defendant shall convey and set over to the plaintiff all of his right, title or interest in and to 120 Mitchell Street. Based on the testimony of the witness Stober, it appears that there is only a very marginal equity in said premises, mindful of the mortgages, which would result in a negative equity if the property were sold with attendant expenses of real estate commission and attorney's fees. The defendant shall be entitled to all of his personal effects and such items of personalty or furnishings as are presently situated in the subject premises that are exclusively his. The plaintiff shall assume and be responsible for the mortgages on said real estate and hold the defendant harmless thereon. The plaintiff having indicated to the court in clear terms that she requests no periodic alimony, the court enters no order incident thereto. The defendant may retain his 1997 Chevrolet motor vehicle and his bass boat and such items of personalty as are presently in CT Page 14123 his possession. The plaintiff may retain her 1993 Pontiac motor vehicle and the modest balances in the Groton Municipal Credit Union and Charter Oak Federal Credit Union and her Merrill Lynch IRA valued at $100.00. The defendant may retain his SSIP valued at $1,183.00. The plaintiff shall be entitled, mindful of the length of the marriage but tempered by the defendant's medical condition, to 30% of the defendant's vested General Dynamics pension benefits once they attain pay-out status. Until the plaintiff has secured her own health insurance, she shall be entitled to avail herself of the defendant's coverage, Cobra, but at her sole cost and expense. Each party shall be responsible for their respective attorney's fees. Each party shall be responsible for the debts shown on their financial affidavits. The Court grants a dissolution of the marital union on the grounds of irretrievable breakdown and the parties are declared to be single and unmarried. Austin, JTR	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1913737/	981 A.2d 947 (2009) SCHUTTE & KOERTING, LLC v. M & M REALTY. No. 1809 EDA 2008. Superior Court of Pennsylvania. July 1, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874465/	288 Wis. 2d 459 (2005) 706 N.W.2d 702 2005 WI App 254 STATE v. CLEAVER.[] No. 2004AP000169 CR. Court of Appeals of Wisconsin. October 26, 2005. Unpublished Opinion. Affirmed. NOTES [] Petition to review filed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2907212/	In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-00528-CV ____________________ IN THE INTEREST OF J.C. On Appeal from the 317th District Court Jefferson County, Texas Trial Cause No. C-202,205 MEMORANDUM OPINION On April 2, 2009, we ordered the trial court to conduct a hearing to determine whether the appellant desires to prosecute his appeal. See Tex. R. App. P. 38.8(b)(3). Appellant appeared at the hearing, and appellant stated on the record that he no longer wishes to pursue his appeal. No opinion has issued in this case, and no other party has filed a notice of appeal. Therefore, we dismiss the appeal. See Tex. R. App. P. 2, 42.1(a)(1). APPEAL DISMISSED. __________________________________ CHARLES KREGER Justice Opinion Delivered June 11, 2009 Before McKeithen, C.J., Kreger and Horton, JJ.	01-03-2023	09-10-2015
https://www.courtlistener.com/api/rest/v3/opinions/2983420/	July 29, 2014 JUDGMENT The Fourteenth Court of Appeals APRIL BROWN, DAVID RAFFERTY, STEVE GANN, KATHY HILTON, IRENE GARCIA AND STEVE STUCKEY, Appellants NO. 14-14-00491-CV V. WILLIAM HENSLEE, TOM JENKINS, TROY JONES, DAVID MARKS, BARNARD PEARL, THOMAS WALSH, STAN WILLIAMS, JACK EREIRA AND ANDREW ROSENBERG’S, Appellees ________________________________ Today the Court heard appellants’ motion to dismiss the appeal from the judgment signed by the court below on May 22, 2014. Having considered the motion and found it meritorious, we order the appeal DISMISSED. We further order that each party shall pay its costs by reason of this appeal. We further order that mandate be issued immediately. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/3766781/	I do not believe that Anderson's constitutional rights were violated by his being charged with two offenses of driving while under the influence of alcohol under R.C.4511.19(A)(1). To follow the majority's reasoning would mean that a driver under the influence of alcohol could drive from Cuyahoga County to Hamilton County, traversing some twelve counties, have twelve or more accidents, over a period of five or six hours, and be answerable for a single charge of driving while under the influence of alcohol. Here, Anderson pleaded no contest and was found guilty under R.C. 4511.19(A)(1) and willfully fleeing, R.C. 4511.02(B), in Medina. He entered the Wadsworth Municipal Court jurisdiction in his attempt to avoid apprehension for the first accident. He had a second accident, running into the rear-end of another vehicle. Then he stopped. These offenses were independent from each other and constituted separate acts of driving while under the influence of alcohol. See State v. Gabor (1986), 33 Ohio App.3d 122, 514 N.E.2d 730, and State v. Torres (1986), 31 Ohio App.3d 118, 31 OBR 204, 508 N.E.2d 970. For these reasons, I believe that Anderson may be charged, convicted and punished for successive charges of driving under the influence of alcohol arising from a single course of driving where there are intervening facts, such as an accident and fleeing thereafter. I would overrule Anderson's assignment of error and affirm the judgment of the trial court.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2525634/	220 P.3d 209 (2009) 167 Wash.2d 1002 HOLLAND-JOHNSON v. PARNELL. No. 83388-5. Supreme Court of Washington, Department II. December 2, 2009. Disposition of Petition for Review Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601655/	228 P.3d 1 (2010) 168 Wash.2d 1 STATE of Washington, Respondent, v. Jason Lee FRY, Petitioner. No. 81210-1. Supreme Court of Washington, En Banc. Argued March 12, 2009. Decided January 21, 2010. 2 William D. Edelblute, Attorney at Law, Spokane Valley, WA, for Petitioner. John Allan Troberg, Clallam County Prosecuting Atty., Port Angeles, WA, Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, Timothy Rasmussen, Stevens County Prosecutor, Colville, WA, for Respondent. Alison Holcomb, ACLU of Washington, Paul J. Lawrence, Matthew J. Segal, K & L Gates LLP, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties. Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers. Pamela Beth Loginsky, Washington Ass'n of Prosecuting Atty., Olympia, WA, Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys. J.M. JOHNSON, J. ¶ 1 Two police officers were informed of a marijuana growing operation at the residence of Jason and Tina Fry. When the officers approached the home, the smell of burning marijuana was apparent. Jason Fry did not consent to a search, and Tina Fry presented a document purporting to be authorization for medical marijuana. The officers obtained a telephonic search warrant, entered the Frys' home, and seized over two pounds of marijuana. ¶ 2 At trial, Jason Fry (Fry) argued the marijuana evidence should have been suppressed because presentation of a medical marijuana authorization automatically negates probable cause. The judge denied the motion to suppress and also declined to allow 3 Fry to present a compassionate use defense on other grounds. Fry appealed both rulings. ¶ 3 We affirm the Court of Appeals, which upheld the trial court's decision to allow the evidence seized at the Frys' home pursuant to a warrant and declined to allow Fry to claim the compassionate use defense at trial. FACTS AND PROCEDURAL HISTORY ¶ 4 On December 20, 2004, Stevens County Sheriff Sergeant Dan Anderson and Deputy Bill Bitton (officers) went to the residence of Jason and Tina Fry. The officers had received information there was a marijuana growing operation there. ¶ 5 The officers walked up to the front porch and smelled the scent of burning marijuana. Jason Fry opened the door, at which time the officers noticed a much stronger odor of marijuana. Fry told the officers he had a legal prescription for marijuana and told the officers to leave absent a search warrant. Tina Fry gave the officers documents entitled "medical marijuana authorization." The authorization listed Fry's qualifying condition as "severe anxiety, rage, & depression related to childhood." Clerk's Papers (CP) at 20-23. ¶ 6 The officers obtained a telephonic search warrant and found several containers with marijuana, growing marijuana plants, growing equipment, paraphernalia, and scales in the Frys' home. The marijuana was found to weigh 911 grams (more than 2 pounds). ¶ 7 Prior to trial, Fry made a motion to suppress the evidence seized by the officers pursuant to the search warrant. The motion also indicated Fry would assert the affirmative defense of medical marijuana authorization (compassionate use defense) pursuant to former RCW 69.51A.040 (1999). ¶ 8 After hearing arguments, the superior court judge denied Fry's motion to suppress. The court concluded the officers demonstrated probable cause to search the Frys' home based on the strong odor of marijuana and other facts described in the telephonic affidavit. The court also concluded that Fry did not qualify for the compassionate use defense because he did not have a qualifying condition.[1] ¶ 9 After a stipulated facts bench trial, Fry was convicted of possession of more than 40 grams of marijuana. The court sentenced him to 30 days of total confinement, converted to 240 hours of community service. Fry appealed, and Division Three of the Court of Appeals held that Fry's production of a document purporting to be a marijuana use authorization did not prohibit the search of Fry's home by police officers who had probable cause and obtained a warrant. State v. Fry, 142 Wash.App. 456, 461, 174 P.3d 1258 (2008). The Court of Appeals also agreed with the trial court that Fry was not a "qualifying patient" and therefore was not able to claim the affirmative defense for medical marijuana use. Id. at 462-63, 174 P.3d 1258. Fry appealed the decision, and we granted review. State v. Fry, 164 Wash.2d 1002, 190 P.3d 55 (2008). ISSUES 1. Whether a telephonic search warrant was supported by probable cause when police officers were informed that marijuana was being grown at a certain residence, the officers smelled marijuana upon arriving, but the defendant provided a medical authorization form for marijuana 2. Whether the trial court erred in disallowing Fry's medical marijuana defense ANALYSIS A. Whether a telephonic search warrant was supported by probable cause when police officers were informed that marijuana was being grown at a certain residence, the officers smelled marijuana upon arriving, but the defendant provided a medical authorization form for marijuana ¶ 10 Fry argues the marijuana evidence seized by the officers should have been 4 suppressed. We review a trial court's conclusion of law pertaining to the suppression of evidence de novo. State v. Eisfeldt, 163 Wash.2d 628, 634, 185 P.3d 580 (2008) (quoting State v. Carneh, 153 Wash.2d 274, 281, 103 P.3d 743 (2004)). As the findings of fact in this case were stipulated and uncontested, they are verities on appeal. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006) (citing State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003)). ¶ 11 The warrant clause of the Fourth Amendment to the United States Constitution and article I, section 7 of our own constitution requires that a search warrant be issued upon a determination of probable cause. State v. Vickers, 148 Wash.2d 91, 108, 59 P.3d 58 (2002).[2] "The probable cause requirement is a fact-based determination that represents a compromise between the competing interests of enforcing the law and protecting the individual's right to privacy." State v. Neth, 165 Wash.2d 177, 182, 196 P.3d 658 (2008) (citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). "Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched." State v. Maddox, 152 Wash.2d 499, 505, 98 P.3d 1199 (2004) (citing State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999)). "It is only the probability of criminal activity, not a prima facie showing of it, that governs probable cause." Maddox, 152 Wash.2d at 505, 98 P.3d 1199. ¶ 12 There is no contention that the facts, including the information and smell of marijuana, do not support a finding of probable cause to search the Frys' residence.[3] However, Fry contends the probable cause was negated once he produced the authorization. Although there was a later dispute over the validity of the authorization, there is no indication in the record that the officers or the magistrate questioned the validity at the time the search warrant was issued. Nevertheless, the officers' search and arrest were supported by probable cause, and a claimed authorization form does not negate probable cause. Former chapter 69.51A RCW (1999) (the Act) ¶ 13 By passing Initiative 692 (I-692), the people of Washington intended that [q]ualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana. Former RCW 69.51A.005 (1999). Additionally, [i]f charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions. Former RCW 69.51A.040(1) (emphasis added). Based on I-692 and the derivative statute, we have recognized that Washington voters created a compassionate use defense against marijuana charges. See State v. Tracy, 158 Wash.2d 683, 691, 147 P.3d 559 (2006). An affirmative defense admits the 5 defendant committed a criminal act but pleads an excuse for doing so. State v. Votava, 149 Wash.2d 178, 187-88, 66 P.3d 1050 (2003) (citing State v. Riker, 123 Wash.2d 351, 367-68, 869 P.2d 43 (1994)). The defendant must prove an affirmative defense by a preponderance of the evidence. State v. Frost, 160 Wash.2d 765, 773, 161 P.3d 361 (2007). An affirmative defense does not negate any elements of the charged crime. Id. ¶ 14 Possession of marijuana, even in small amounts, is still a crime in the state of Washington. See RCW 69.50.4014. A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys' residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys' home, a reasonable inference was established that criminal activity was taking place in the Frys' residence. Therefore, the officers had probable cause and the search warrant was properly obtained. ¶ 15 This conclusion is supported by McBride v. Walla Walla County, 95 Wash. App. 33, 975 P.2d 1029, 990 P.2d 967 (1999). In McBride, a police officer arrested McBride for hitting his son. The officer had substantial facts and information to indicate McBride acted in self-defense. Nevertheless, the officer arrested McBride as mandated by the domestic violence section in former RCW 10.31.100(2)(b) (1996). ¶ 16 Like the compassionate use defense, self-defense is an affirmative defense. See City of Kennewick v. Day, 142 Wash.2d 1, 10, 11 P.3d 304 (2000). McBride argued it was the officer's duty to evaluate the self-defense claim and determine whether it negated the existence of probable cause to arrest him. McBride, 95 Wash.App. at 39, 975 P.2d 1029. The court concluded, "[t]he officer is not judge or jury; he does not decide if the legal standard for self-defense is met." Id. at 40, 975 P.2d 1029. The court determined the affirmative defense "did not vitiate probable cause." Id. ¶ 17 Fry attempts to distinguish McBride. He notes that the officers in that case were required to arrest an individual involved in a domestic violence dispute. There was no statutory requirement compelling the officers to search Fry's residence and seize the marijuana. However, probable cause is not created or negated by statutory mandate to search or arrest (or lack thereof). In most cases, including the one before us, officers have discretion as to whether they will conduct a search or make an arrest once they have probable cause. However, this discretion has no impact on whether probable cause exists. ¶ 18 Under the Act, a person "charged with a violation of state law relating to marijuana. . . will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter." Former RCW 69.51A.040(1). One of the requirements is that a qualifying patient "[p]resent his or her valid documentation to any law enforcement official who questions the patient regarding his or her medical use of marijuana" (presentment requirement). Former RCW 69.51A.040(2)(c). ¶ 19 An amici brief[4] calls our attention to the "presentment" requirement in the Act. It is argued that if the presentment requirement is to have meaning, presentation of a patient's authorization must establish lawful possession of marijuana, and thereby the absence of criminal activity that would provide probable cause for a search or seizure. Amici Br. at 7-8. ¶ 20 The presentment requirement must be read in context. It is only triggered when someone is "charged with a violation." Former 6 RCW 69.51A.040(1). A person who meets the presentment requirement (and all other requirements) will "be deemed to have established an affirmative defense." Id. Additionally, the requirements, taken together, do not indicate that the Act created more than an affirmative defense. One of the other requirements mandates that the charged individual "[p]ossess no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply." Former RCW 69.51A.040(2)(b). It would be impossible to ascertain whether an individual possesses an excessive amount of marijuana without a search. ¶ 21 Instead, the presentment requirement facilitates an officer's decision of whether to use his or her discretion and seize the marijuana and/or arrest the possessor. Once the officer has searched the individual and established that the individual is possessing marijuana in compliance with the Act (i.e., appropriate documentation, limited supply, etc.) the officer would then have sufficient facts to determine whether an arrest is warranted. This view is supported by the 2007 amendment to RCW 69.51A.040. The current version reads, "[i]f a law enforcement officer determines that marijuana is being possessed lawfully under the medical marijuana law, the officer may document the amount of marijuana, take a representative sample that is large enough to test, but not seize the marijuana." RCW 69.51A.040(1). It is difficult to imagine how a law enforcement officer, having been presented with a medical marijuana authorization, would be able to determine that the marijuana is otherwise being lawfully possessed (and take a sample) without some kind of search. ¶ 22 I-692 did not legalize marijuana, but rather provided an authorized user with an affirmative defense if the user shows compliance with the requirements for medical marijuana possession. See former RCW 69.51A.005, .040. As an affirmative defense, the compassionate use defense does not eliminate probable cause where a trained officer detects the odor of marijuana. A doctor's authorization does not indicate that the presenter is totally complying with the Act; e.g., the amounts may be excessive. An affirmative defense does not per se legalize an activity and does not negate probable cause that a crime has been committed. We therefore affirm the Court of Appeals on this issue. B. Whether the trial court erred in disallowing Fry's medical marijuana defense ¶ 23 Prior to trial, the State argued Fry was not a "qualifying patient" and could not, therefore, assert the compassionate use defense. The State also argued Fry could not claim the affirmative defense because the amount of marijuana in his possession exceeded a 60-day supply. The trial court concluded Fry was not a "qualifying patient" and declined to reach the State's other arguments. CP at 102-03. The Court of Appeals agreed with the trial court's ruling. ¶ 24 Whether the trial court erred in disallowing Fry's compassionate use defense is a question of law we review de novo. See Tracy, 158 Wash.2d at 687, 147 P.3d 559. Fry bears the burden of offering sufficient evidence to support the affirmative defense of compassionate use. Id. at 689, 147 P.3d 559 (citing State v. Janes, 121 Wash.2d 220, 236-37, 850 P.2d 495 (1993)). Fry bore the burden of producing at least some evidence that he was a qualified patient who could assert the compassionate use defense. Id. (citing Janes, 121 Wash.2d at 237, 850 P.2d 495). ¶ 25 The intent of the medical marijuana statute was that "[q]ualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana." Former RCW 69.51A.005 (emphasis added). ¶ 26 A "qualifying patient" is a person who: (a) Is a patient of a physician licensed under chapter 18.71 or 18.57 RCW; (b) Has been diagnosed by that physician as having a terminal or debilitating medical condition; 7 (c) Is a resident of the state of Washington at the time of such diagnosis; (d) Has been advised by that physician about the risks and benefits of the medical use of marijuana; and (e) Has been advised by that physician that they may benefit from the medical use of marijuana. Former RCW 69.51A.010(3) (1999). The State argues Fry is not a qualifying patient under the Act because Fry has not been diagnosed as having a terminal or debilitating medical condition under former RCW 69.51A.010(3)(b). Fry's doctor listed "severe anxiety, rage, & depression related to childhood" as the debilitating medical condition qualifying Fry to use medical marijuana. CP at 20-23.[5] These conditions did not qualify under I-692 as enacted. ¶ 27 In 2007, after the search and seizure in this case, the legislature revised the medical marijuana statute to include additional terminal or debilitating medical conditions that would qualify under the Act. RCW 69.51A.010(4). Fry's conditions of severe anxiety and rage are not included in the list of qualifying conditions, even as amended. In 2004, the State of Washington Department of Health Medical Quality Assurance Commission issued a final order denying a petition to include depression and severe anxiety in the list of "terminal or debilitating medical conditions" under RCW 69.51A.010(4). Final Order on Pet., In re Condrey, No. 04-08-A-2002MD (Wash. Med. Quality Assurance Comm'n Nov. 19, 2004). ¶ 28 Fry did not actually have a terminal or debilitating medical condition as provided in the Act. The stated intent of the statute was to allow a qualifying patient with a terminal or debilitating illness to be found not guilty of marijuana possession under certain circumstances. Former RCW 69.51A.005. ("The people of Washington state find that. . . [q]ualifying patients with terminal or debilitating illnesses . . . shall not be found guilty. . . ."). Conversely, the intent was not to excuse a marijuana user without a terminal or debilitating illness from criminal liability. Former RCW 69.51A.005. ¶ 29 In the only case we have decided under the Act, an otherwise qualifying patient received authorization to use medical marijuana from a doctor in California. Tracy, 158 Wash.2d at 686, 147 P.3d 559. This court interpreted the provision in the Act defining qualifying doctors as "those licensed under Washington law" to require a doctor formally licensed in Washington. Id. at 690, 147 P.3d 559. The majority opinion concluded that "[s]ince Tracy was not a patient of a qualifying doctor, she is not entitled to assert the defense." Id. The court stated unequivocally that "[o]nly qualifying patients are entitled to the defense under the act." Id. (citing former RCW 69.51A.005). ¶ 30 This court declined to extend the defense to Tracy, who was not in compliance with the statute because the doctor was not authorized to issue the medical marijuana authorization. Similarly, we will not extend the statute to permit an individual without a qualifying illness to claim its benefits. ¶ 31 In order to avail himself of the compassionate use defense, Fry must qualify under the Act. Fry does not have one of the listed debilitating conditions, and therefore does not qualify. We affirm the Court of Appeals decision to not permit Fry to claim the compassionate use defense. CONCLUSION ¶ 32 We interpret chapter 69.51A RCW and its affirmative defense to criminal violations as it was enacted by the people and amended by the legislature. According to the language of the statute, and consistent with the intent of I-692, an authorized user of medical marijuana will have an affirmative defense only if he or she shows full compliance with the Act. However, an affirmative defense does not negate probable cause for a search in the case, conducted with a valid warrant. 8 ¶ 33 The officers in this case had probable cause to search Fry's residence and seize the marijuana, which was in excess of two pounds. The trial court correctly decided that Fry could not avail himself of the compassionate use defense because his claimed health conditions did not qualify under the Act. We therefore affirm the Court of Appeals and uphold Fry's judgment and sentence. WE CONCUR: Chief Justice BARBARA A. MADSEN, and Justices MARY E. FAIRHURST, and GERRY L. ALEXANDER. CHAMBERS, J., concurring. ¶ 34 As a compassionate gesture, the people of this state, by initiative, allowed patients afflicted with medical conditions that might be eased by marijuana to use it under limited circumstances. Generally, whether a patient has a medical condition that qualifies under the Washington State Medical Use of Marijuana Act (the act), ch. 69.51A RCW, is a question of fact, not law. I disagree with the lead opinion's holding that as a matter of law Jason Fry did not have a qualifying condition under the act simply because the words used by Fry's doctor in issuing the authorization may have been inartful. The lead opinion approves the trial court's pretrial application of the law to the facts, its weighing of the evidence, and its decision as a matter of law that the compassionate use of marijuana defense was unavailable to Fry. In my view, a defendant in Fry's position should have the opportunity to offer evidence that he in fact had a qualifying condition and that his doctor issued the medical marijuana authorization for that condition. Criminal defendants have a due process right to have their defenses heard. State v. Lord, 161 Wash.2d 276, 301, 165 P.3d 1251 (2007) (citing Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)); accord Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). And their right to a trial by a jury must remain inviolate. WASH. CONST. art. I, § 21. However, because I agree in result, I concur. FACTS ¶ 35 Fry was smoking marijuana. Two Stevens County police officers smelled marijuana burning as they approached Fry's house. When questioned, Fry acknowledged the use of marijuana, and his wife, Tina, produced a form entitled "Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State" issued by Fry's physician, Dr. Thomas Orvald. Clerk's Papers (CP) at 67, 20. The authorization stated that Dr. Orvald was treating Fry for "a terminal illness or debilitating condition as defined in RCW 6951A.010." CP at 20. On a separate page under a section marked "Documentation of debilitating medical condition from previous healthcare provider," Dr. Orvald wrote, "severe anxiety, rage, & depression related to childhood." Under the "subjective" section of his own notes detailing Fry's background Dr. Orvald wrote, "Severe anxiety!!! Can't function." CP at 22. The authorization also included notes from Dr. Orvald's physical examination of Fry where he noted a scar behind Fry's right ear and on his chin from being injured by a horse. These notes also reflect that Fry suffered from neck and lower back pain. In the comments section Dr. Orvald wrote: "Pt has found use of medical cannabis allows him to function [with] self control of anger, rage, & depression. Pt has been kicked in head 3 times by horse." CP at 23. ¶ 36 After a hearing on a motion in limine, the trial judge determined that Fry did not have a terminal or debilitating medical condition as defined under the act, was not a qualifying patient as a matter of law, and refused to allow Fry to proceed with his affirmative defense. The trial judge believed that precedent required him, instead of the jury or other trier of fact, to make this determination at this stage of the proceedings. This belief was based partially upon an unintended reading of an opinion of this court and an earlier Court of Appeals opinion. See State v. Tracy, 158 Wash.2d 683, 147 P.3d 559 (2006); State v. Shepherd, 110 Wash.App. 544, 41 P.3d 1235 (2002). 9 ANALYSIS ¶ 37 In 1998, Washington voters approved Initiative 692, codified as chapter 69.51A RCW, often referred to as the compassionate use of medical marijuana act. Under the act "qualifying patients" are entitled to present an affirmative defense if charged with a violation of state law relating to marijuana. Former RCW 69.51A.040 (1999); Tracy, 158 Wash.2d at 688, 147 P.3d 559. A "qualifying patient" is defined as anyone who: (a) Is a patient of a physician licensed under chapter 18.71 or 18.57 RCW; (b) Has been diagnosed by that physician as having a terminal or debilitating medical condition; (c) Is a resident of the state of Washington at the time of such diagnosis; (d) Has been advised by that physician about the risks and benefits of the medical use of marijuana; and (e) Has been advised by that physician that they may benefit from the medical use of marijuana. Former RCW 69.51A.010(3) (1999). ¶ 38 Former RCW 69.51A.010 also provides the following definitions: (4) "Terminal or Debilitating Medical Condition" means: (a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or (c) Glaucoma. . . . (d) Any other medical condition duly approved by the Washington state medical quality assurance board [commission] as directed in this chapter.[1] (5) "Valid documentation" means: (a) A statement signed by a qualifying patient's physician, or a copy of the qualifying patient's pertinent medical records, which states that, in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient; and (b) Proof of Identity such as a Washington state driver's license or identicard, as defined in RCW 46.20.035. (Second alteration in original.) ¶ 39 There seems to be no question that Fry's physician was qualified, that he advised Fry of the risks and benefits of medical marijuana use, and that Fry was a resident of the state of Washington. Further, Fry possessed what would appear to be a valid authorization as defined by the statute. The issue before us is whether Fry could have had a qualified condition. The statute defines "Terminal or Debilitating Medical Condition" in the disjunctive. One permissible condition is intractable pain, meaning pain unrelieved by standard medical treatments and medications. Former RCW 69.51A.010(4)(b). It may be that Fry's doctor prescribed medical marijuana for chronic pain related to his head or neck injury. Or the authorization may have been to alleviate nausea, vomiting, or appetite loss caused by his severe anxiety and depression. In my opinion, whether Fry was suffering from any of these symptoms can only be determined after a factual inquiry. Without allowing Fry to present a defense, we cannot know whether a fact finder would conclude that Fry had symptoms that would qualify him under the terms defined under the statute. It is the role of the jury to apply the law to facts presented at a trial. See Champagne v. Dep't of Labor & Indus., 22 Wash.2d 412, 419, 156 P.2d 422 (1945). ¶ 40 Procedurally, the trial court struck Fry's medical use of marijuana defense upon the prosecutor's motion in limine, because anxiety was listed in the authorization and the court found as a matter of law that it was 10 not a qualifying condition.[2] Despite the signed authorization from Fry's physician that in his medical opinion "the potential benefits of the medical use of marijuana would likely outweigh the health risks for this patient" and that Fry had "a terminal illness or debilitating condition as defined in RCW 69.51A.010," CP at 20-21, the lead opinion nevertheless affirms the conclusion of the trial judge that Fry did not have a debilitating condition as a matter of law. In my view, Dr. Orvald's authorization was sufficient to satisfy the threshold showing required of Fry that he was a qualified person under the act. It was not the proper role of the trial judge to review the doctor's records and conclude as a matter of law that Fry did not have a qualifying condition. There is nothing in the act that requires the debilitating condition be listed or described in the authorization, and surely the voters did not intend that whether a person is guilty of a felony should turn on a physician's choice of words when filling out an authorization. Cf. Shepherd, 110 Wash.App. at 551, 41 P.3d 1235. Whether Fry had a qualifying condition under the act was a question of fact, not law. ¶ 41 The lead opinion uses our decision in Tracy to bolster its holding that Fry was not entitled to raise a defense. However, in Tracy, the issue was much different. In Tracy, the doctor was not authorized to issue the medical marijuana authorization. Tracy, 158 Wash.2d at 690, 147 P.3d 559. Our decision was controlled by the fact that a qualifying patient under the statute is one who has been diagnosed by a Washington-licensed physician and Tracy had been diagnosed only by a California physician not licensed in Washington. Id. Tracy presented a clear question of law, a question of statutory interpretation: could a physician not licensed in Washington satisfy the statutory condition of being diagnosed by a Washington licensed physician as required by former RCW 69.51A.010(3)(a)? We did not mean to imply that the issue of whether a person is a qualified person under the statute is always a question of law to be determined by the court. ¶ 42 When a defendant is charged with a violation of state law involving marijuana, he may assert that he intends to raise a medical marijuana defense under chapter 69.51A RCW. The State may make a motion to preclude the defendant from asserting the defense, arguing that the requirements of the statute have not been met. But in my view, if the defendant is able to present a written authorization from a Washington-licensed physician stating that the defendant has a qualifying condition, then he should be allowed to move forward with the defense. Whether a defendant can meet the burden of proving by a preponderance of the evidence that he in fact has a qualifying condition will of course depend on what is presented at trial to the trier of fact. ¶ 43 Although I conclude that the trial court erred by determining from the authorization alone that Fry did not have a qualifying condition and therefore was not a qualifying patient, I would affirm on alternative grounds. A trial judge has an additional role as a gatekeeper to ensure that there is sufficient evidence to permit any affirmative defense to proceed to trial. An opponent has the right to challenge any claimed defense. Here the prosecutor made a motion in limine to strike Fry's medical marijuana defense, arguing that Fry did not have a qualifying condition and that Fry had well more than a 60 day supply of marijuana. Although Fry was prepared to offer the testimony of a doctor and a botanist on the issue of the quantity of marijuana necessary for a 60 day supply, counsel conceded that Fry did not have a "qualifying condition" under the act.[3]11 While the trial court erroneously, in my view, concluded as a matter of law that Fry was not a "qualified person" under the act, when the State moved in limine to exclude the defense Fry failed to offer additional supporting evidence that he had a qualifying condition. Based on Fry's concession and failure to provide any additional evidence to support the medical use of marijuana defense I would affirm. ¶ 44 On the issue of whether probable cause supports the issuance of the search warrant, I concur with the lean opinion in result only. I would affirm the Court of Appeals. WE CONCUR: Justices SUSAN OWENS, CHARLES W. JOHNSON, and DEBRA L. STEPHENS. SANDERS, J., dissenting. ¶ 45 Former RCW 69.51A.040(1) (1999) provides, "Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions." (Emphasis added.) Under our state constitution we have a right to be free from searches and other invasions of privacy, absent authority of law. Const. art. I, § 7. This authority of law comes in the form of a warrant, which requires probable cause to believe a person is involved in criminal activity and a search will uncover evidence of that criminal activity. State v. Neth, 165 Wash.2d 177, 182, 196 P.3d 658 (2008); State v. Puapuaga, 164 Wash.2d 515, 522, 192 P.3d 360 (2008). ¶ 46 Here, police officers smelled burnt marijuana at Jason Fry's residence and therefore initially had probable cause to believe Fry was involved in criminal activity stemming from the possession of marijuana.[1] However, Fry produced documentation to the officers demonstrating he met the requirements of former RCW 69.51A.040(2) permitting him legally to possess marijuana. This documentation alleviated any probable cause to believe Fry was engaged in criminal activity based upon the smell of burnt marijuana. As the lead opinion recognizes, there is no indication the officers questioned the validity of the documentation at the time the search warrant was issued. Majority at 4. Nevertheless the officers conducted the search, invading Fry's home and his private affairs in violation of article I, section 7 and former RCW 69.51A.040(1). ¶ 47 The lead opinion reads the Washington state medical use of marijuana act to provide only an affirmative defense. Majority at 4 (quoting RCW 69.51A.005 (1999);.040(1)). Even so this ignores the protections of the second sentence of former RCW 69.51A.040(1): "Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions." (Emphases added.) Fry's wife provided documentation to the officers to show Fry's "status" under the chapter the status of a "qualifying patient." See former RCW 69.51A.010(3) (1999).[2] As a facially "qualifying patient" Fry should have been "considered to have engaged in activities permitted by this chapter"a presumption *12 that a qualifying patient is acting in accordance with the chapter. See former RCW 69.51A.040(1). The only basis for probable cause was the smell of burnt marijuana. That evidence is consistent with activities permitted for qualifying patients under the chapter. ¶ 48 The requirement under former RCW 69.51A.040(2)(c) supports this reading of the second sentence of former RCW 69.51A.040(1). That provision requires a person asserting compliance with the act to "[p]resent his or her valid documentation to any law enforcement official who questions the patient or provider regarding his or her medical use of marijuana." Doing so provides officers with the basis to determine whether a person meets the requirements for a "qualifying patient" and thus invokes the presumption. Conversely, if former RCW 69.51A.040(1) provides only an affirmative defense after one is charged with a crime, as the majority asserts, the requirement to provide valid documentation to the officer serves no purpose as the officer has no reason to view the documentation relevant only to establishing an affirmative defense in court. Therefore with or without the required documents the individual is still arrested and jailed. ¶ 49 The lead opinion clings to the notion that an officer must conduct a search, even when an individual produces documentation of his status, because the search is the only way for the officer to confirm the individual does not possess more than a 60-day supply of marijuana. See majority at 5-6 (quoting former RCW 69.51A.040(2)(b)). But this ignores the fact that the officers here did not have probable cause to believe Fry possessed more than a 60-day supply; thus a search on this basis is unconstitutional. Whereas former RCW 69.51A.040(1) provides a reason for an officer to confirm an individual's status and former RCW 69.51A.040(2)(c) provides the means to do it, nothing in the act suspends constitutional privacy rights (nor could a statute trump the constitution in any event) permitting officers to confirm that all criteria in the act are met by searches not supported by probable cause. ¶ 50 Ultimately the lead opinion's interpretation of the act provides an absurd form of protection to qualifying patients. When an officer smells burnt marijuana coming from the home of an individual with a terminal or debilitating illness who benefits from marijuana use, the individual must provide his documentation to the officer to show he is a "qualifying patient." Yet according to the lead opinion, he is still subject to a search of his home and to an arrest. Certainly, at the individual's trial, he can assert the affirmative defense of the lead opinion's neutered version of the Washington state medical use of marijuana act; however this does not cure the unconstitutional search. Upon release he can return home once again, exhausted and in pain, and use marijuana again to alleviate his pain. However, following another knock on his door from an officer smelling burnt marijuana, the individual is again subject to interrogation, home search, and arrest. I do not find the mercy of the people of Washington for individuals with terminal or debilitating illnesses to be so fickle. ¶ 51 The trial court erred by not suppressing the fruits of a search that was based upon a warrant lacking probable cause. In addition, I agree with the concurrence to the extent it would hold that whether Fry had a qualifying condition is a question of fact that should be decided by a jury. Defendants in Fry's position are entitled to bring in evidence at trial to prove by a preponderance of the evidence that they indeed have a qualifying condition. Fry should not have been precluded from asserting a medical use of marijuana defense. ¶ 52 I dissent. NOTES [1] Because the court found Fry was not a "qualifying patient," it declined to reach the State's other arguments. The State also argued Fry would not qualify because the amount of marijuana in his possession, over 2 pounds, exceeded the 60-day supply the statute allowed. CP at 103. [2] Article I, section 7 provides greater privacy protection than the Fourth Amendment, and an analysis under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) is not necessary. Vickers, 148 Wash.2d at 108 n. 43, 59 P.3d 58. [3] See, e.g., State v. Olson, 73 Wash.App. 348, 356, 869 P.2d 110 (1994) ("When an officer who is trained and experienced in marijuana detection actually detects the odor of marijuana, this by itself provides sufficient evidence to constitute probable cause justifying a search.") (citing State v. Huff, 64 Wash.App. 641, 647-48, 826 P.2d 698 (1992)). [4] Washington Association of Criminal Defense Lawyers and American Civil Liberties Union of Washington. [5] Fry's physical examination lists other ailments such as hearing loss, low back pain and a scar from being injured by a horse. However, there is no indication that these conditions were considered as a "qualifying condition." There is no indication that these conditions caused "intractable pain" that was "unrelieved by standard medical treatments." [1] Since Fry's arrest, the statute has been revised to include qualifying "Diseases . . . which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity" as "terminal or debilitating medical conditions" covered under the statute. RCW 69.51A.010(4)(f). [2] At the hearing on the motion in limine the trial judge stated, "What I'm finding here as a matter of law [is] that there's no medical marijuana defense available to Mr. Fry and, in turn, Mrs. Fry because this anxiety and other problem is not something that's on the list. And that would appear to [be] a condition, pre-condition to even asserting the affirmative defense." Transcript of Proceeding (TR) at 49. [3] The concession was actually made by counsel for Mrs. Fry who stated that "[the prosecutor] is saying well that wasn't a good authorization because that particular problem isn't covered by the statute. And I think we have to concede that. As we look at the statute, it wasn't. But the client believed it was." TP at 39. Counsel for Fry, present at the hearing, did not disagree and offered no evidence other than that offered by counsel for Mrs. Fry. [1] The officers were informed of a marijuana-growing operation at Fry's residence, but the State has provided no additional details regarding that information. The probable cause justifying the search warrant was based entirely on the officers' smelling burnt marijuana. See State v. Fry, 142 Wash.App. 456, 460, 174 P.3d 1258 (2008). There is no argument here that additional grounds existed to provide probable cause absent the smell. [2] "Qualifying patient" means a person who: (a) Is a patient of a physician licensed under chapter 18.71 or 18.57 RCW; (b) Has been diagnosed by that physician as having a terminal or debilitating medical condition; (c) Is a resident of the state of Washington at the time of such diagnosis; (d) Has been advised by that physician about the risks and benefits of the medical use of marijuana; and (e) Has been advised by that physician that they may benefit from the medical use of marijuana. Former RCW 69.51A.010(3).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601733/	228 P.3d 451 (2010) BINGMAN v. STATE. No. OP 09-0627. Supreme Court of Montana. February 3, 2010. Decision Without Published Opinion Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983401/	Order filed July 29, 2014 In The Fourteenth Court of Appeals ____________ NO. 14-14-00341-CV ____________ RICHARD ST. GERMAIN, Appellant V. ENHUI ST. GERMAIN, Appellee On Appeal from the 280th District Court Harris County, Texas Trial Court Cause No. 2014-15779 ORDER Appellant’s brief was due July 16, 2014. No brief or motion for extension of time has been filed. Unless appellant files a brief with this court on or before August 28, 2014, the court will dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/3346347/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION On March 21, 2001, the plaintiff, Round Hill Properties, Ltd., filed a complaint against the defendants, Cathlow Associates, LLC (Cathlow), Felice Rovelli, Melissa Rovelli and Jeremy Kaye (Kaye) (collectively, the defendants, alleging that the defendants fraudulently conveyed certain real property in order to avoid or hinder the plaintiff's ability to collect on a $1.3 million dollar debt for construction work that had been performed.1 The plaintiff seeks to have the conveyance set aside and/or money damages. On April 26, 2001, the defendants filed a motion to dismiss this action on the ground that the court lacks subject matter jurisdiction, as disputes arising between the parties are subject to an unrestricted arbitration agreement which requires resolution of the plaintiff's claim by arbitration.2 In present case, the record reveals the following pertinent facts: The parties' dispute arises out of the construction of a dwelling located in Greenwich. The plaintiff agreed to build the dwelling for defendants Felice and Melissa Rovelli pursuant to a contract dated March 15, 1996. At the time the contract was executed, title to the property was held by defendant Kaye, as trustee. In March of 1997, the plaintiff was dismissed from working on the construction project. The contract contains a clause providing for the arbitration of disputes arising out of, or relating to, the contract or its breach. In May of 1997, both Kaye and the plaintiff filed a demand for arbitration. In 1998, Kaye transferred title to the property and assigned the pending arbitration claim to Cathlow. Title to the land and the dwelling presently remains with Cathlow. Cathlow, a limited liability company, is managed by Felice Rovelli. In January of 1999, the plaintiff received notice of the transfer of title and assignment of the arbitration claim by virtue of a motion to substitute Felice Rovelli as claimant in the arbitration. The substitution entitled Felice Rovelli to act on behalf of Cathlow, in lieu of Kaye. On August 17, 2000, by agreement of the parties and the arbitration panel, the evidentiary portion of the arbitration closed and on March 9, 2001, the parties submitted final briefs in the arbitration. Shortly thereafter, the plaintiff commenced this action. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." CT Page 11933 (Emphasis in original; internal quotation marks omitted.) Gurliacci v.Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). A claim that the court lacks subject matter jurisdiction may be raised at any time. Dowling v.Slotnik, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, 525 U.S. 1017,119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." Id. Once a court's subject matter jurisdiction is called into question, it must be disposed of no matter in what form it is presented, and the court must fully resolve it before proceeding further with the case. Figueroa v. CS Ball Bearing,237 Conn. 1, 4, 675 A.2d 845 (1996). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . Where, however, . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; internal quotation marks omitted.)Barde v. Board of Trustees, 207 Conn. 59, 61-62, 539 A.2d 1000 (1988). "[A] motion to dismiss is the appropriate procedural vehicle for raising the claim that a plaintiff failed to submit a contract claimed to arbitration before filing . . . a lawsuit." Personal Reminders v. SNETMobility, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 160743 (September 25, 1998, Karazin, J.). The defendants argue that in accordance with the unrestricted arbitration agreement, the parties have been engaged in arbitration for over four years during which time the plaintiff could have appropriately pursued its present claim. Moreover, the defendants assert that less than one week after the parties filed their final briefs in the arbitration, the plaintiff commenced this action, despite having had a full and fair opportunity to raise its claim in the arbitration. Consequently, the defendants conclude that the plaintiff's action should be dismissed, either on the basis of lack of subject matter jurisdiction or, alternatively, on the ground that the plaintiff relinquished or waived its present claim by failing to raise it in arbitration. In opposition, the plaintiff argues that Connecticut courts have the authority to allow parties to arbitrations to protect their security interests in property. The plaintiff contends that the filing of a notice of a lis pendens3 is not precluded by the arbitration agreement and therefore, this court has subject matter jurisdiction to preserve the plaintiff's interest in the subject property. "Where a contract contains a stipulation that the decision of arbitrators on certain questions shall be a condition precedent to the right of action on the contract itself, such a stipulation will be enforced and, until arbitration has been pursued or some sufficient CT Page 11934 reason given for not pursuing it, no action can be brought on the contract. . . . Whether an agreement makes arbitration a condition precedent to an action in court depends on the language of the arbitration clause. While it is true that in the absence of express language a provision for arbitration may be construed, by implication, to be a condition precedent to suit that implication must be so plain that a contrary intention cannot be supposed. It must be a necessary implication. The mere agreement to arbitrate, standing alone, does not give rise to the necessary implication that arbitration is a condition precedent to an action in court. For arbitration to be a condition precedent, the agreement to arbitrate must expressly so stipulate, or it must necessarily by implied from the language used." (Citation omitted.)MultiService Contractors, Inc. v. Vernon, 181 Conn. 445, 447-48,435 A.2d 983 (1980). In Multi-Service Contractors, Inc. v. Vernon, supra, 181 Conn. 445, the arbitration clause read as follows: "all claims, disputes and other matters in question between the contractor and owner arising out of, or relating to, the Contract Documents or the breach thereof . . ., shall be decided by arbitration." (Internal quotation marks omitted.) Id., 446. After careful review, the Supreme Court held that the arbitration clause "does not require, either by express language or by necessary implication, arbitration as a condition precedent to court action." Id., 449. In the present case, the arbitration clause reads in pertinent part as follows: "Any controversy or Claim arising out of or related to the Contract, or the breach thereof shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof, except controversies or Claims relating to aesthetic effect and except those waived as provided for in Subparagraph 4.3.5." (Defendants' Memorandum, p. 11; Defendants' Exhibit submitted July 27, 2001, Contract Subparagraph 4.5.1.) This court finds, therefore, that the language contained in the arbitration clause does not expressly provide or necessarily imply that arbitration is a condition precedent to any court action. SeeMulti-Service Contractors v. Vernon, supra, 181 Conn. 447-8; comparePersonal Reminders v. SNET Mobility, supra, Superior Court, Docket No. 160743 (court granted motion to dismiss where arbitration clause expressly stipulated arbitration was condition precedent to action in court). Moreover, the arbitration clause language presently before this court is identical to that of the arbitration clause at issue in the well-reasoned decision of McLevy Builders v. Kavanagh, Superior Court, CT Page 11935 judicial district of Stamford/Norwalk at Stamford, Docket No. 169122 (April 3, 2001, Tobin, J.), where the court denied a motion to dismiss brought on similar grounds. See also Henry v. Cardinal Business Media,Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 147159 (March 15, 1996, Tobin, J.) (16 Conn. L. Rptr. 327) (denying motion to dismiss based on lack of subject matter jurisdiction due to arbitration clause); Skolnick Son, Inc. v. First Baptist Churchof Stratford, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 322330 (July 25, 1995, Tobin, J.) (same). "The courts have held almost universally that under the common law, the parties to a dispute may not oust the jurisdiction of the courts by an agreement to arbitrate." (Internal quotation marks omitted.) Tarlow v.Gateway Country Store, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 175198 (May 2, 2000, D'Andrea,J.) (27 Conn. L. Rptr. 115); see also Handrinos v. Lathouris, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 160692 (November 13, 1997, Mintz, J.); LDA Steel Corp. v. WayneConstruction, Inc., Superior Court, judicial district of Danbury at Danbury, Docket No. 323109 (April 30, 1997, Moraghan, J.). The court is similarly unpersuaded by the defendants' argument that the plaintiff's action must be dismissed on the ground that the plaintiff relinquished or waived its right to pursue its present claim, either in the Superior Court or in arbitration, by failing to raise it in the prior arbitration engaged in by the parties. The case relied upon by the defendants in support of their waiver argument is inapposite. In PremierRoofing Co., Inc. v. Insurance Co. of North America, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 312438 (November 22, 1996, Stodolink, J.), the court denied the plaintiff's motion for an order to compel arbitration and for a stay pending arbitration. The court held that the plaintiff acted inconsistently with any right to arbitrate and substantially prejudiced the defendant, because the plaintiff actively pursued its claim in the Superior Court for over three years, engaged in extensive pleading and motion practice, substantial discovery and pretrial proceedings, and twice represented that no agreement to arbitrate existed between the parties. The court concluded that the plaintiff waived any right to arbitration and therefore, denied the plaintiff's motion to compel arbitration. ThePremier decision does not, however, involve a motion to dismiss, nor does it lend support to the proposition that this court should dismiss this action and preclude the plaintiff from pursuing its present claim, either before the arbitrators or in the Superior Court. This court recognizes that the issues presented by this case are not the same as those presented in the arbitration. The parties have apparently agreed to present the merits of their dispute to an CT Page 11936 arbitrator. The plaintiff seeks here, at least in part, to protect its security interest in the subject property. Nothing has been presented to show this court that the arbitrator had the power or the authority to grant similar relief. The delay in seeking this relief may have its own repercussions to the plaintiff, but that delay is not cause to dismiss this action. This is not to say, however, that the defendants are without a process by which to enforce the arbitration clause. The defendants properly may move for a stay4 pursuant to General Statutes § 52-409;5 see e.g. Grisanti v. Round Hill Properties, Ltd., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 160887 (March 12, 1998, D'Andrea, J.); and/or make an application to the Superior Court for an order to compel arbitration pursuant to General Statutes §52-410.6 For the foregoing reasons, the defendants' motion to dismiss is hereby denied. Resha, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1874581/	288 Wis. 2d 462 (2005) 706 N.W.2d 702 2005 WI App 254 DEBRA S.F. v. RICHARD F.B. No. 2005AP001835. Court of Appeals of Wisconsin. October 20, 2005. Unpublished Opinion. Reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2896907/	NO. 07-07-0151-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C AUGUST 5, 2008 ______________________________ ARMANDO GONZALES, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY; NO. 05-11-6126; HONORABLE HAROLD PHELAN, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Following a plea of not guilty, Appellant, Armando Gonzales, was convicted by a jury of unauthorized use of a motor vehicle. Punishment was assessed by the trial court at fifteen months confinement. Presenting a sole point of error, Appellant maintains the trial court erred in denying his requested charge on the defense of mistake of fact. We reverse and remand. Background Facts On October 22, 2005, the Hockley County Sheriff’s Office was participating in an auction to sell some patrol cars and seized vehicles. Although the auction was conducted by Floyd Nesbitt, Sheriff David Kinney put Lieutenant Gordon Bohannon in charge of supervising the sale of the vehicles. Bohannon informed Nesbitt that the vehicles were to be sold “as is” with no test driving allowed. The vehicles had the keys in them. While Bohannon was gone for lunch, Appellant got into a red Dodge Neon and casually drove away from the auction. The Neon was reported missing and officers were notified to be on the lookout for it. Officer Justin Ty Land testified that he received a call concerning a possible stolen vehicle and approximately ten minutes later located the Neon at a Dollar General Store. When Land approached Appellant, who was inside the store, Appellant politely turned the keys over to him and explained that he had been given permission to test drive the Neon by a large Hispanic male at the auction. Bohannon arrived at the scene and as Appellant was being placed in the patrol car, he heard him holler and scream that he was merely test driving the vehicle. Bohannon testified that the Neon was parked in front of the store and in no way hidden. Appellant was charged with unauthorized use of a vehicle. 2 By his sole point of error, Appellant maintains the trial court erred in denying his requested charge on the defense of mistake of fact. We agree. During the charge conference, defense counsel objected to the court’s failure to include an instruction of mistake of fact and requested three alternative instructions which the trial court denied. Discussion A person commits the offense of unauthorized use of a vehicle if he intentionally or knowingly operates another’s . . . motor-propelled vehicle without the effective consent of the owner. Tex. Penal Code Ann. § 31.07(a) (Vernon 2003).1 The offense of unauthorized use of a vehicle encompasses two distinct conduct elements: (1) proof of the forbidden conduct (i.e. whether the defendant intentionally or knowingly operated a motor vehicle), and (2) proof of the attendant circumstances of the crime (i.e. whether the defendant knew his use was without the effective consent of the owner). McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App. 1989). See also Gardner v. State, 780 S.W.2d 259, 262 (Tex.Crim.App. 1989) (Emphasis in original). It is a defense to prosecution of an offense if the actor, through mistake, formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. See § 8.02(a). It is a defense to prosecution of the offense of unauthorized use of a vehicle if the actor, through mistake, formed a 1 Unless otherwise indicated, this and all future section references are references to the Texas Penal Code (Vernon 2003). 3 reasonable belief that he had the consent of the owner to operate the vehicle. McQueen, 781 S.W.2d at 603. If there is some evidence presented raising the issue of mistake of fact, a defendant is entitled to an instruction on the issue. See Woodfox v. State, 779 S.W.2d 434, 435-36 (Tex.Crim.App. 1989), citing Lynch v. State, 643 S.W.2d 737, 738 (Tex.Crim.App. 1983) (rejecting the State’s contention that unauthorized use of a motor vehicle was a strict liability criminal offense). It is not necessary that the defendant offer direct personal testimony in order to be entitled to an instruction on mistake of fact. Woodfox, 779 S.W.2d at 435. In the case at issue, Kinney and Bohannon both testified that neither had given Appellant permission to drive the Neon. However, Land and Bohannon both testified that Appellant claimed he had been given permission by a large Hispanic male to test drive the vehicle. Appellant also presented evidence through a friend, whom he had picked up while driving the Neon, that he had represented to his friend that he was merely test driving the vehicle. Nesbitt testified that none of the people helping him with the auction were identified by particular clothing or name tags. A novice attending an auction might not have known whom to approach with questions nor been aware of procedures and policies. Additionally, both Land and Bohannon testified that no follow-up investigation was conducted to determine if Appellant’s story was credible. In fact, in response to questioning from 4 defense counsel, Bohannon testified he “wouldn’t have cared” and didn’t think it was important to investigate whether someone had given Appellant permission to test drive the vehicle because he believed Appellant was lying. However, when asked to place himself in Appellant’s position, he conceded he would have been angry if no one had followed up on the allegation. Relying on Bruno v. State, 845 S.W.2d 910 (Tex.Crim.App. 1993), the State maintains that the evidence that Appellant had permission to test drive the vehicle was insufficient to entitle him to an instruction on mistake of fact. We distinguish Bruno. In Bruno, the appellant claimed that the true owner of the vehicle gave him permission to use her vehicle. Although a defensive instruction on mistake of fact was given, the appellant complained that doing so incorrectly placed the burden of proof on him. The Court of Criminal Appeals found that the charge as given properly placed the burden on the State, but went on to find that the instruction was not necessary in the first place because a mistake of fact instruction was not proper when the issue was whether or not the true owner did or did not give permission to operate the vehicle. We find the underlying facts to be closer to those in Gardner v. State, 780 S.W.2d 259 (Tex.Crim.App. 1989), which involved a third party whom the actor believed had authority to give him consent to operate a vehicle. Id. at 260. The Court found that a mistake of fact instruction was proper because the jury could have believed that both: (1) the defendant believed that he had the consent of the third party to use the vehicle and (2) 5 that the true owner of the vehicle had not given him permission. Id. at 262-63. In Bruno, the jury could not believe both the testimony of the true owner of the vehicle and the testimony of the appellant as it could in Gardner. Bruno, 845 S.W.2d at 913. In Bruno, the mistake of fact instruction was unnecessary because only one of the incompatible stories could have been believed. Id. The State did not present any evidence that Appellant believed that the large Hispanic male was the true owner of the Neon. As an auction attendee, Appellant could have believed that a third party with authority to give consent to test drive the Neon had done so. Land, Bohannon, and Appellant’s friend testified that Appellant claimed to have been given permission to drive the Neon by a large Hispanic male. Thus, under Woodfox, there was at least some evidence entitling Appellant to a defensive instruction on mistake of fact because the jury could have believed that both (1) Appellant believed he had the consent of a third party to drive the Neon and (2) the true owner of the vehicle had not given him permission. We conclude the trial court erred in denying Appellant’s requested instruction. Point of error one is sustained. Accordingly, the trial court’s judgment is reversed and the cause is remanded to the trial court for further proceedings. Patrick A. Pirtle Justice Do not publish. 6	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1000158/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-4412 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CHRISTOPHER LAMONT WHITE, Defendant - Appellant. Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (CR-98-332) Submitted: September 30, 1999 Decided: November 3, 1999 Before MURNAGHAN, WILKINS, and NIEMEYER, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. McClellan, IVEY, MCCLELLAN, GATTON, & TALCOTT, L.L.P., Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Christopher Lamont White appeals from his conditional guilty plea conviction for possession with intent to distribute cocaine base. On appeal, he only alleges that the district court erred by denying his motion to suppress evidence found in his vehicle fol- lowing a traffic stop. We have reviewed the order denying the motion to suppress and the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See United States v. Christopher, No. CR-98-332 (M.D.N.C. Jan. 14, 1999). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615063/	668 P.2d 868 (1983) Joseph A. MAIN, Appellant, v. STATE of Alaska, Appellee. No. 7625. Court of Appeals of Alaska. September 2, 1983. 869 Phillip Paul Weidner, Drathman & Weidner, Anchorage, for appellant. Elizabeth Sheley, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ. OPINION BRYNER, Chief Judge. Joseph A. Main filed this expedited appeal pursuant to Appellate Rule 216(a)(3), after his request to peremptorily challenge Superior Court Judge Victor D. Carlson was denied as untimely. The relevant facts may be briefly stated. Main was charged by indictment with four counts of sexual offenses involving a niece. His case was assigned for trial to Superior Court Judge Ralph Moody, and a 870 trial date of March 24, 1983, was established. On the day before trial, Main was informed that his case had been reassigned to Superior Court Judge Victor Carlson.[1] Main appeared before Judge Carlson the following day and immediately moved to stay the trial in order to assure that he would have a full, five-day period in which to decide whether to file a peremptory challenge as to Judge Carlson. This motion was denied by Judge Carlson. After a series of unsuccessful efforts to obtain a stay pending appellate review of Judge Carlson's ruling, jury selection commenced on the afternoon of March 24; a jury was impaneled on March 25.[2] Because of an intervening three-day weekend and Judge Carlson's involvement in another case, Main's trial was then recessed until March 30. Both Main and the state agree that March 30 constituted the fifth business day after Main received notice of reassignment of his case to Judge Carlson. Testimony in Main's trial was set to begin on the morning of March 30. Before the first witness was called, but after the jury had been sworn, Main attempted to exercise a peremptory challenge of Judge Carlson by filing an affidavit, personally executed by Main, indicating that, during the weekend, Main had received information leading him to believe that Judge Carlson would not conduct Main's trial in a fair and impartial manner. Judge Carlson denied the peremptory challenge, ruling that, under Alaska Criminal Rule 25(d)(5), Main's challenge was untimely because it was first asserted after commencement of his trial. Relevant portions of Criminal Rule 25(d) provide: (d) Change of Judge as a Matter of Right. In all courts of the state, a judge may be peremptorily challenged as follows: (1) Entitlement. In any criminal case in superior or district court, the prosecution and the defense shall each be entitled as a matter of right to one change of judge... . (2) Procedure. At the time required for filing the omnibus hearing form, or within five days after a judge is assigned the case for the first time, a party may exercise his right to change of judge by noting the request on the omnibus hearing form or by filing a "Notice Of Change Of Judge" signed by counsel, if any, stating the name of the judge to be changed... . * * * * * * (5) Waiver. A party loses his right under this rule to change a judge when he agrees to the assignment of the case to a particular judge or participates before him in an omnibus hearing, any subsequent pretrial hearing, a hearing under Rule 11, or the commencement of trial. (Emphasis added.) After Judge Carlson denied Main's peremptory challenge, Superior Court Judge Mark Rowland was appointed in accordance with AS 22.20.020(c) to review Judge Carlson's ruling. Judge Rowland upheld the denial of Main's attempt to exercise a peremptory challenge, also relying on the waiver provisions of Criminal Rule 25(d)(5). Main then filed this appeal, challenging the propriety of the rulings entered by Judges Carlson and Rowland. Main first asserts that AS 22.20.022, which authorizes a party to exercise a peremptory challenge of a judge within five days after the judge is appointed to a civil or criminal case, creates a peremptory challenge right that is independent of the peremptory challenge established under Criminal Rule 25(d). AS 22.20.022 provides, in relevant part: Peremptory Disqualification of a Superior Court Judge. (a) If a party or a 871 party's attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath the belief that a fair and impartial trial cannot be obtained, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district... . The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay. * * * * * (c) The affidavit shall be filed within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later, unless good cause is shown for the failure to file it within that time. * * * * * * In attempting to exercise a peremptory challenge of Judge Carlson, Main purposely filed an affidavit in accordance with the requirements of AS 22.20.022(a), rather than filing the more informal Notice of Change of Judge called for under Criminal Rule 25(d). Main argues that his attempt to challenge Judge Carlson peremptorily was made pursuant to the statutory provision and that it was not based on Criminal Rule 25. He further contends that, because the statutory provision does not provide for waiver of the right to exercise a peremptory challenge upon commencement of trial, he was entitled to challenge Judge Carlson within the five-day period provided for under AS 22.20.022(c), even though his trial had already begun.[3] We conclude that Main's theory of two independent, peremptory challenge rights one under the statute and one under the rule must be rejected. The Alaska Supreme Court has expressly indicated that Criminal Rule 25(d) is intended to be a procedural implementation of the substantive right to a peremptory challenge created by AS 22.20.022: Although the legislature has the power to create the right to a fair trial before an unbiased judge, and the right to pre-empt a judge without requiring actual proof of bias or interest, it has very limited power to provide for the means by which that pre-emption right may be exercised. Until the legislature validly changes Criminal Rule 25(d), that rule is the sole provision which may be consulted in determining whether the ... right [to exercise a peremptory challenge] was properly exercised and the effect of the pre-emption on the procedural and administrative functions of the court system. Therefore, insofar as Rule 25(d) regulates only the procedural aspects of the peremptory right created by AS 22.20.022, and to the extent that the rule does not infringe upon the substantive right created by statute, the provisions of Rule 25(d) supersede the legislative enactment. Gieffels v. State, 552 P.2d 661, 667-68 (Alaska 1976) (footnote omitted). This statement is an unequivocal expression by the supreme court of the view that Criminal Rule 25(d) simply does not establish an independent right to challenge a judge peremptorily. We are bound by the supreme court's ruling in Gieffels, and, accordingly, reject Main's contention that he was not subject to the waiver provisions of Criminal Rule 25(d)(5) because he elected to proceed under AS 22.20.022, rather than under Criminal Rule 25(d). The statute and rule do not create independent rights. This conclusion brings us to the second facet of Main's argument on appeal. Main correctly observes that, assuming 872 Criminal Rule 25(d) was intended to establish procedures implementing the peremptory challenge right created by AS 22.20.022, the procedural provisions of the rule would be powerless to alter any substantive right created by the statute. See, e.g., Morgan v. State, 635 P.2d 472, 476 (Alaska 1981); Gieffels v. State, 552 P.2d at 667-68. Main goes on to assert that the five-day period for exercise of a peremptory challenge provided for in AS 22.20.022(c) is part and parcel of the substantive right to a peremptory challenge created under that statute. Thus, Main urges us to hold that the waiver provisions of Criminal Rule 25(d)(5) are invalid to the extent that they conflict with the provisions of the statute. In particular, Main claims that, in cases such as his, where the waiver provisions of Criminal Rule 25(d)(5) conflict with the five-day period established under AS 22.20.022(c), the statute must be deemed to prevail. Thus, Main insists that his peremptory challenge of Judge Carlson was timely, even though exercised after the commencement of trial. Main's view does find some support in early Alaska Supreme Court decisions construing AS 22.20.022. Decisions written prior to enactment of Criminal Rule 25(d) contain language emphasizing the significance of the five-day period for exercise of the peremptory challenge right. See, e.g., Pope v. State, 478 P.2d 801, 804 (Alaska 1970); Roberts v. State, 458 P.2d 340, 345-46 (Alaska 1969); Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 575-76 (Alaska 1969). Moreover, in recent cases, broad language employed by the supreme court could be read to lend support to the view that the five-day statutory period should be construed as part of the substantive right to a peremptory challenge. See, e.g., Morgan v. State, 635 P.2d 472, 476 (Alaska 1981) ("The statute [AS 22.20.022] creates a right to challenge peremptorily within five days after the case is at issue on a question of fact, or within five days after the issue is assigned to a judge."). See also Kvasnikoff v. State, 535 P.2d 464, 466 n. 5 (Alaska 1975) (indicating an apparent conflict between the time requirements of Criminal Rule 25(d) and AS 22.20.022). We think the better view, however, is that the five-day time period established in AS 22.20.022(c) is a procedural component of the statutory right to peremptory challenge of a judge created by AS 22.20.022(a). The basic purpose of the legislation is to enable litigants to challenge a judge assigned to their case without making a showing of actual bias. The five-day period provided for in the statute does not appear to be a central part of that right; it is an incidental, procedural provision. Nothing in the language of the statute or in its legislative history indicates that the legislature intended to elevate the five-day period for exercise of a peremptory challenge to the stature of a substantive right. As the state correctly notes, the five-day period allowed under AS 22.20.022(c) is precisely the type of provision that is normally considered to be procedural. As the supreme court said in Ware v. Anchorage, 439 P.2d 793, 794 (Alaska 1968), substantive law "creates, defines and regulates rights, while procedural law prescribes the method in enforcing the rights." Applying this standard to AS 22.20.022 leads to the conclusion that its five-day clause is one that prescribes the manner in which the right to exercise a peremptory challenge may be exercised. The five-day statutory period must thus be considered procedural and not substantive. See also Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1042-43 (Alaska 1981) (in determining whether a statute is substantive or procedural, inquiry should be made into the question whether the "statute under scrutiny is more closely related to the concerns that led to the establishment of judicial rule making power, or to matters of public policy properly within the sphere of elected representatives.") Since the statutory five-day period is a procedural provision, it is subject to being amended by exercise of the supreme court's rule-making authority. Thus, to the extent that the waiver provisions of Criminal Rule 873 25(d)(5) conflict with the five-day period of AS 22.20.022(c), the provisions of the rule, and not those of the statute, must prevail. For this reason, we conclude that the superior court properly determined that Main's attempt to exercise a peremptory challenge of Judge Carlson was untimely under Criminal Rule 25(d)(5).[4] The superior court's denial of Main's request to challenge Judge Carlson is AFFIRMED. NOTES [1] The record before us does not indicate the reason for reassigning the case from Judge Moody to Judge Carlson for trial. For purposes of this appeal, the reason for reassignment is immaterial. [2] Main additionally sought to obtain a stay of trial pending resolution of this expedited appeal on the peremptory challenge issue. Main's requests for stays were denied, and his trial proceeded, ending in conviction on two counts and acquittal on one count; the jury was deadlocked as to the fourth count. [3] Main does not argue that his trial had not yet commenced, within the meaning of Criminal Rule 25(d), when he attempted to peremptorily challenge Judge Carlson. The Alaska Supreme Court has not previously determined the point at which a trial is deemed to commence for purposes of applying the waiver provisions of Criminal Rule 25(d). Here, since Main's jury had been selected and was sworn prior to his attempt to exercise a peremptory challenge, it seems apparent that, under virtually any view, his trial had commenced. [4] We do not mean to imply that the five-day period prescribed by statute for exercise of a peremptory challenge is insignificant. Where possible, efforts must be made by the court system to avoid the type of problem that was created in the present case by the last-minute reassignment of Main's trial from Judge Moody to Judge Carlson. We further emphasize that trial courts must refrain from an unduly rigid application of the waiver provisions of Criminal Rule 25(d)(5) in cases where last-minute reassignment of a trial judge becomes necessary. In the great majority of cases, a relatively short period of time will be sufficient to enable a defendant whose case has been reassigned immediately before trial to consult with his counsel and make an informed and intelligent decision as to whether a peremptory challenge should be exercised. However, in unusual cases, last-minute reassignment of a trial judge may give rise to circumstances that would make it unduly burdensome for a defendant and his counsel to make a decision concerning exercise of a peremptory challenge on short notice. In such cases, if the defendant makes an adequate showing that the time between notice of reassignment and commencement of trial is unreasonably short, trial judges would be well-advised to give serious consideration to the alternative of granting a reasonable continuance, in order to assure that the defendant's peremptory challenge right is not unduly fettered. Main has not established that the superior court abused its discretion in refusing to grant his request for continuance of trial until the full, five-day period provided for under Criminal Rule 25(d) had run. Nor has he attempted to argue the abuse of discretion issue in this appeal. In fact, given the limited scope of a peremptory challenge appeal filed under Appellate Rule 216, it is doubtful whether it would be appropriate to argue this issue in the context of the present appeal. We therefore do not foreclose Main from arguing in his direct appeal that the trial court's denial of his motion for continuance amounted to an abuse of discretion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615068/	9 Kan. App. 2d 6 (1983) 668 P.2d 193 CHARLES F. WARNER, PERSONAL REPRESENTATIVE OF THE ESTATE OF ERNA A. WARNER, DECEASED, Appellee, v. CHARLES M. WARNER, Appellant. No. 54,722 Court of Appeals of Kansas. Opinion filed August 18, 1983. Robert B. Yohe, of Overland Park, for the appellant. Craig U. Huntley and Lonnie A. Hamilton, of Shawnee Mission, for the appellee. Before FOTH, C.J., SPENCER and PARKS, JJ. FOTH, C.J.: Charles M. Warner appeals the trial court's denial of his motion to declare certain overdue payments required by a Missouri decree of separate maintenance registered in Kansas to be dormant judgments. A Missouri court awarded Erna A. Warner, the plaintiff (now deceased), a decree of separate maintenance against Charles M. Warner, the defendant, on January 12, 1971. The defendant was ordered to pay the plaintiff $600 per month, starting on January 15, 1971. The Missouri court reduced the monthly payments to $300 on April 26, 1976. On November 16, 1976, after defendant moved to Kansas, the plaintiff registered the Missouri decree in the District Court of Johnson County, Kansas, as a "foreign support order" under K.S.A. 23-487. She alleged that the past due support payments totalled $26,000, plus interest. There ensued considerable procedural maneuvering, including 7 a proceeding in aid of execution in October, 1981. Finally, in June, 1982, the defendant moved for a finding that payments due before October, 1976, five years before the attempted Kansas execution, were dormant judgments. The trial court denied the motion and entered judgment on that aspect of the case under K.S.A. 60-254(b). Defendant has appealed. The first issue to be resolved is the nature of the order registered in Kansas in November, 1976. Under Kansas law each installment of alimony becomes a judgment when due. Kendall v. Kendall, 218 Kan. 713, 717, 545 P.2d 346 (1976); Ediger v. Ediger, 206 Kan. 447, Syl. ¶ 2, 479 P.2d 823 (1971). Missouri law is the same. Barbara v. Charles, 632 S.W.2d 92, 93 (Mo. App. 1982); Wedel v. Wedel, 624 S.W.2d 869, 870 (Mo. App. 1981). And cf. In re Marriage of Holt, 635 S.W.2d 335 (Mo. 1982). Thus, as to past due installments, what was registered was a series of individual money judgments dating from January 15, 1971, through November 15, 1976. The second issue is whether all of these judgments were eligible for registration. The Missouri dormancy statute was ten years (Mo. Ann. Stat. § 516.350 [Vernon 1952]), so there is no question the judgments were enforceable in Missouri when registered here. The issue framed by the parties is based on the assumption that our dormancy statute, K.S.A. 60-2403, determines whether a foreign judgment is enforceable when it is filed in Kansas. The court addressed this issue in Alexander Construction Co. v. Weaver, 3 Kan. App. 2d 298, 594 P.2d 248 (1979). In that case, the plaintiff obtained a Colorado judgment against the defendant in 1968. Under Colorado law, judgments are enforceable for twenty years. In 1977 the plaintiff filed the judgment in Kansas. The defendant argued, and the trial court agreed, that the plaintiff's claim was barred by the dormancy provisions set out in K.S.A. 60-2403 and 60-2404. This court affirmed the result, but rejected the trial court's reasoning. Registration is a simplified alternative to bringing suit on the foreign judgment, and if suit is barred so is registration. Thus, K.S.A. 60-511, the general statute of limitations, and not the Kansas dormancy statutes governs the enforceability of foreign judgments in Kansas. See also Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 661 P.2d 1242 (1983). The statute of limitations for enforcement of overdue installments 8 runs from the date the payments become due. See McKee v. McKee, 154 Kan. 340, 342, 118 P.2d 544 (1941); Peters v. Weber, 175 Kan. 838, 843-44, 267 P.2d 481 (1954). The result here is that installments which became due more than five years before the registration on November 16, 1976, would be barred not because of dormancy but because of the five-year statute of limitations for bringing suit on those installments. While the limitations issue was raised in defendant's 1976 "petition to vacate registration" it was not ruled on in the order of June 22, 1982, from which this appeal was taken, and is not before us. The third question is the effect of the dormancy statute, 60-2403, on the judgments after they were registered. Both K.S.A. 23-487, the foreign support order statute, and K.S.A. 60-3002 of the general foreign judgments act, provide in essence that once the foreign judgment is registered it is to be treated as if it were a Kansas judgment. Under K.S.A. 60-2403 a Kansas judgment becomes dormant five years after its effective date. What is the effective date for dormancy purposes of a foreign judgment? We think it must be the date it is registered. Thus a foreign judgment four years and eleven months old when registered does not become dormant in Kansas a month later. Such a rule would defeat the purpose of the registration act and be totally inconsistent with the result achieved if the judgment holder sued on the foreign judgment, as permitted by K.S.A. 60-3006. Instead, registration of a foreign judgment which is enforceable when registered gives the judgment creditor a new and additional five years to execute, regardless of when the judgment was rendered in the foreign state. The judgment registered here had two elements. The provision for future support we are not concerned with it terminated in any event on the death of the original plaintiff. The past due installments, as noted above, amounted to a series of money judgments. When recorded in Kansas they became Kansas judgments which would not become dormant for five years from the date of registration. Since execution was attempted within that time the judgments were not dormant, and the trial court correctly so held. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615076/	668 P.2d 982 (1983) John PHILLIPS, Plaintiff-Appellee, v. MONARCH RECREATION CORPORATION, a Nebraska corporation, Defendant-Appellant. No. 81CA0731. Colorado Court of Appeals, Div. I. May 12, 1983. Rehearing Denied June 2, 1983. 984 Williams, Trine, Greenstein & Griffith, P.C., Bruce O. Downsbrough, William A. Trine, Boulder, for plaintiff-appellee. Wood, Ris & Hames, P.C., Eugene S. Hames, Denver, for defendant-appellant. STERNBERG, Judge. John Phillips sued the Monarch Recreation Corporation for injuries and damages he sustained when he collided with trail grooming equipment at Monarch's ski area. The jury returned a verdict for Phillips and Monarch appeals. We affirm. After skiing down a run at Monarch known as Ray's Romp, Phillips collided with a trail grooming machine called a sno-cat as he came around a blind corner at the bottom of the run. He testified that he was unable to see the sno-cat until several seconds before the collision and that he attempted to tighten his turn when he saw it but was unable to do so in such a short period of time. The sno-cat is similar in appearance to a very large tractor and has snow grooming equipment extending fifteen feet behind it. On the day of the accident it was being used to groom a run known as Ajax. Because Ajax was too steep to drive back up, the driver of the sno-cat was using a trail called the Catwalk (the one Phillips attempted to turn on to) to get back up to the top of Ajax. The Catwalk is a narrow, flat trail that connects several runs and is used by skiers to continue from run to run down the mountain to the ski lifts. There were no signs posted to warn skiers that the sno-cat was on the trail. Phillips testified that he was skiing slowly on Ray's Romp, making wide sweeping turns, and estimated his speed at between 20 and 30 miles per hour. Although there were no eyewitnesses to the accident, a ski patrolman named Morehead, who was skiing down a run separated from Ray's Romp by some trees, testified that he saw Phillips at the bottom of Ray's Romp where the two runs converge, and that Phillips was skiing in a tuck position at a high rate of speed. Several other witnesses who were familiar with Phillips' skiing style testified that he tended to ski beyond his ability and was not always in control. In the opinion of the treating physician, Phillips' injuries were consistent with a speed of 5 to 10 m.p.h. Evidence was introduced of Phillips' medical expenses and of permanent injury to his knees, as well as evidence of his need for continual medical attention as a result of the injuries. A number of jury instructions were given relating to sections of the Ski Safety Act of 1979, § 33-44-101 et seq., C.R.S.1973 (1982 Cum.Supp.). These included an instruction that violation of any requirement of the act which causes injury to any person constitutes negligence by virtue of § 33-44-104, C.R.S.1973 (1982 Cum.Supp.); an instruction that whenever maintenance equipment is being employed to maintain or groom any ski slope or trail while such trail is open to the public, a conspicuous notice to that effect shall be placed at or near the top of that slope or trail, § 33-44-108, C.R.S.1973 (1982 Cum.Supp.); and one that each skier has the responsibility for knowing the range of his ability, maintaining control, avoiding collision with persons and objects below him, and staying clear of snow grooming equipment and other equipment 985 on the slopes or trails, § 33-44-109, C.R.S. 1973 (1982 Cum.Supp.). Also included was an instruction on the sudden emergency doctrine. Based on C.J.I. 9:10 (2d ed. 1980), it stated that "a person who, through no fault of his own, is placed in a sudden emergency, is not chargeable with negligence if he exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances." The jury was given three verdict forms. The trial court instructed it to complete the first form if it found either that Phillips did not sustain injuries or the absence of causative negligence on the part of Monarch. If it found affirmatively on those issues, the jury was instructed to determine whether Phillips was negligent and whether his negligence contributed to his injury. If the answer to either of those questions was in the negative, i.e., that Phillips' injuries were solely attributable to Monarch's negligence, the court instructed the jury to complete the second form, which was a verdict for Phillips and an amount of damages. If the answer to all the questions was in the affirmative, i.e., that Monarch was negligent but that Phillips' negligence also contributed to his injuries, the jury was to complete the last form, stating the total amount of damages and apportioning the negligence between the parties as a percentage of 100. The jury completed the second form, finding Monarch responsible for Phillips' injuries, and finding that Phillips was negligent but that his negligence did not contribute to his injuries. Contrary to the court's instructions, the jury placed a 95% figure next to its finding of Monarch's negligence, and a 5% figure next to its finding of Phillips' negligence. Five months after the trial, Monarch submitted a motion for a new trial based on newly discovered evidence with the affidavits of two persons who were skiing down Ray's Romp while Phillips was on that run. In the affidavits, the affiants indicate that Phillips skied past them when they were about two-thirds of the way down the run and that he was skiing straight down the hill at a high rate of speed. They did not see the accident. The trial court denied the motion for a new trial because it considered the evidence to be merely cumulative to testimony already given. I. Monarch argues that the jury should not have been instructed on the statutory duty to post warning signs when snow grooming equipment is in use because the sno-cat was not grooming when the accident occurred. We disagree. The threshold determination of admissibility of a statute is one of relevancy. Sego v. Mains, 41 Colo. App. 1, 578 P.2d 1069 (1978). When the General Assembly has expressly designated the violation of a statute to be negligence, the statute is relevant if: (1) there is evidence that the alleged violation was the proximate cause of the injury, Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167 (1961); (2) the party injured is a member of the class of persons to be protected by the statute, Hamilton v. Gravinsky, 28 Colo. App. 408, 474 P.2d 185 (1970); and (3) the statute can be construed to apply to the facts at issue. Restatement (Second) of Torts § 285 (1976). On its face the Ski Safety Act reveals that its purpose is to require warnings to skiers that their path may be obstructed by heavy machinery. The sno-cat involved carried the same equipment and was being operated in the same manner as if it were grooming the Catwalk. The hazard of colliding with equipment on a blind corner was the same whether or not the sno-cat was grooming. Indeed, the sno-cat would have been "grooming" had the Catwalk not been groomed earlier that morning. The rule of strict construction is relaxed in the interpretation of an act designed to declare and enforce a principle of public policy. Rinnander v. Denver Milk Producers, Inc., 114 Colo. 506, 166 P.2d 984 (1946). Although the act only requires a sign when equipment is "grooming and maintaining" a ski slope, we hold that a 986 warning sign must also be posted when a sno-cat is present on the ski slopes for those purposes but is not actively "grooming" in that particular location. II. Because Phillips did not show that he would have pursued a different course of conduct had the sudden emergency left him time to reflect, Monarch argues that it was error to instruct the jury on the sudden emergency doctrine. It is error to give an instruction when it is not supported by the evidence. Converse v. Zinke, 635 P.2d 882 (Colo.1981). Early case law indicates that when a party's theory is that there was no time to reflect and no choice of conduct involved, a sudden emergency instruction should not be given. Iacino v. Brown, 121 Colo. 450, 217 P.2d 266 (1950). But more recent cases indicate that the question whether there is a choice involved or time to reflect is a jury issue and that the instruction is merely an evidentiary guide by which the trier of fact may apply the prudent man rule. Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972); Cudney v. Moore, 163 Colo. 30, 428 P.2d 81 (1967). Here, because of the finding that Phillips was negligent, the jury either found the instruction not to be applicable to the facts, or it applied the instruction and found that Phillips was negligent. Thus, giving the instruction was not reversible error. See Chart v. General Motors Corp., 80 Wis. 2d 91, 258 N.W.2d 680 (1977); Meyer v. Johnson, 254 N.W.2d 107 (S.D.1977); Schiro v. Raymond, 237 Minn. 271, 54 N.W.2d 329 (1952). III. Monarch also argues that the five percent figure for Phillips' negligence is inconsistent with the jury's finding that his negligence did not contribute to his injuries. Monarch reasons that by inserting the 5% figure on the verdict form demonstrates that the jury disregarded the court's instructions. Even if we assume, arguendo, the correctness of Monarch's position, reversal is not mandated. The policy in this state with regard to inconsistency in a verdict is to resolve it based upon the instructions given if it is possible to do so without violating the expressed intent of the jury. City of Aurora v. Loveless, 639 P.2d 1061 (Colo.1982). And, 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 a change in form rather than a change in substance. Weeks v. Churchill, 44 Colo. App. 520, 615 P.2d 74 (1980). Here, the jury was given detailed instructions on which of the several verdict forms to complete depending on its findings. In view of the physician's testimony that such injuries could have been sustained at lesser speeds, and Monarch's failure to show that it was possible to avoid the sno-cat at a lesser speed, the record supports the finding that Phillips' negligence did not cause his injuries. Accordingly, we are bound to presume that the jury followed the instruction of the court. Lindauer v. LDB Drainlaying, 38 Colo. App. 266, 555 P.2d 197 (1976). And, if it appears that the jury intended to render a verdict for one party, the irregularity in form will be disregarded. See Boynton v. Fox Denver Theaters, Inc., 121 Colo. 227, 214 P.2d 793 (1950). Hence, we must presume the jury intended to complete the verdict form under which damages would not be reduced in proportion to the parties' respective degree of negligence and, therefore, we disregard the additional markings. IV. With regard to the trial court's decision to deny Monarch's motion for a new trial based on newly discovered evidence, we find no abuse of discretion. Such a motion may be granted if there is newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at trial. C.R.C.P. 59(a)(4); American National Bank v. Christensen, 987 28 Colo. App. 501, 476 P.2d 281 (1970). Case law has expanded those enumerated requirements to include a requirement that the evidence would probably change the result. American National Bank v. Christensen, supra. Conflicting evidence at trial, and the discovery of new evidence that would only corroborate the evidence given, or contradict or impeach it, does not warrant the grant of a new trial unless it appears there would be a different result. Warshauer Sheep & Wool Co. v. Rio Grande State Bank, 81 Colo. 463, 256 P. 21 (1927). Thus, if the evidence is merely corroborative or cumulative, a motion for a new trial should be denied. Hudson v. American Founders Life Insurance Co., 151 Colo. 54, 377 P.2d 391 (1962). There were no eyewitnesses to the accident. Ski patrolman Morehead saw Phillips seconds before the collision and testified that he observed Phillips in a tuck position traveling fast. Phillips contradicted this testimony. Monarch introduced additional testimony tending to bolster Morehead's evidence. The newly discovered evidence would have only served to corroborate Monarch's evidence. And, significantly, the affiants observed Phillips at an earlier time than did Morehead, so their testimony would have been less probative of Phillips' speed at the time he observed the sno-cat. Thus, it cannot be said the evidence would have changed the result. The decision to grant a new trial for newly discovered evidence is within the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion. Meyer v. Schwartz, 638 P.2d 821 (Colo.App.1981). We find no abuse of discretion and will not disturb the trial court's ruling. V. As additional grounds for reversal Monarch argues that it was error to exclude language on the back of Phillips' lift ticket by which a skier was purported to have agreed that he understood and assumed the risk of skiing, and that the evidence did not support an instruction on future medical expenses and lost earning capacity. We find no error. Statutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute. In Re Marriage of Johnson, 42 Colo. App. 198, 591 P.2d 1043 (1979). The statutes at issue here allocate the parties' respective duties with regard to the safety of those around them, and the trial court correctly excluded a purported agreement intended to alter those duties. On the question of damages, the law permits approximation of the amount of damages provided the fact of damages is certain, Western Conference Resorts, Inc. v. Pease, 668 P.2d 973 (Colo.App.1983), and provided the plaintiff introduces some evidence which is sufficient to allow a reasonable estimate of damages. Great West Food Packers, Inc. v. Longmont Foods Co., 636 P.2d 1331 (Colo.App.1981). And, if there is evidence of permanent disability, a court may instruct the jury on impairment of future earning capacity. Kitto v. Gilbert, 39 Colo. App. 374, 570 P.2d 544 (1977). Phillips' medical bills were evidence upon which to make a reasonable estimate of his future expenses, and his physician's testimony on the likelihood of his developing arthritis and having impaired mobility supports an instruction on damages based on loss of future earning capacity. Thus, the instruction was proper. The judgment is affirmed. BERMAN and COYTE,[] JJ., concur. NOTES [] Retired Court of Appeals Judge sitting by assignment of the Chief Justice under provisions of the Colo. Const., Art. VI, Sec. 5(3), and § 24-51-607(5), C.R.S.1973 (1981 Cum.Supp.).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897515/	NO. 07-08-0032-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C APRIL 8, 2008 ______________________________ GERALD BROWN, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 362ND DISTRICT COURT OF DENTON COUNTY; NO. F-2007-0448-D; HONORABLE BRUCE MCFARLING, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. ABATEMENT AND REMAND Appellant, Gerald Brown, was convicted by a jury of theft, enhanced, and punishment was assessed at sixteen years confinement. He filed a notice of appeal challenging his conviction. The clerk’s record filed on April 1, 2008, contains the Trial Court’s Certification of Defendant’s Right of Appeal. However, the certification is not signed by Appellant as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure. (footnote: 1) Neither does the form comply with the Rule. (footnote: 2) Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a proper Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly completed and executed, the certification shall be included in a supplemental clerk’s record. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause this supplemental clerk's record to be filed with the Clerk of this Court by May 23, 2008. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d). Also pending before this Court is the Court Reporter’s letter indicating that no action has been taken regarding preparation of the Reporter’s Record because she has not received a designation of record pursuant to Rule 34.6(b)(1) and arrangements for payment have not been made as required by Rule 35.3(b)(3). A review of the Clerk’s Record reveals that a designation of record has been made. Appellant’s counsel is ordered to certify to this Court, on or before April 28, 2008, whether satisfactory arrangements for payment of the reporter’s fee have been made. Failure to comply with the Court’s directive may result in the appeal being abated a second time and the cause remanded to determine why Appellant is being deprived of a Reporter’s Record. See Tex. R. App. P. 37.3(a)(2). It is so ordered. Per Curiam Do not publish. FOOTNOTES 1:Effective September 1, 2007, Rule 25.2(d) was amended. Rule 25.2(d) now requires that a defendant sign the certification and receive a copy. Additionally, the form provides certain admonishments to a defendant not previously required. 2:The proper form for Certification of Defendant’s Right of Appeal is contained in Appendix D to the 2008 Texas Rules of Appellate Procedure.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2896961/	NO. 07-06-0318-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JULY 24, 2008 ______________________________ NOE GERMAN VARELA, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY; NO. 16,559-A; HONORABLE HAL MINER, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant Noe German Varela appeals from an order revoking his community supervision, adjudicating him guilty of possession of methamphetamine, a controlled substance, and imposing a sentence that includes confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of eighteen years. By his sole point of error, appellant contends that his pleas of true to allegations contained within the State’s motion to revoke were not made knowingly and voluntarily. We will dismiss for want of jurisdiction. In November 2004, appellant was charged by indictment with the offense of possession of a controlled substance, specifically methamphetamine. (footnote: 1) In June 2005, appellant plead guilty. The trial court entered an order deferring adjudication and placed appellant on community supervision for a term of ten years. Appellant’s deferred adjudication was conditioned on his compliance with specified terms and conditions. The State filed its motion to revoke in March 2006. At the hearing on the motion, appellant entered pleas of “true” to some of the State’s allegations and pleas of “not true” to others. Pursuant to appellant’s pleas of “true” and after hearing the evidence presented at the hearing, the court revoked appellant’s community supervision and sentenced him as we have noted. Appellant timely appealed. Appellant’s point of error presents the contention his pleas of true to the State’s allegations in its motion to revoke were not knowingly and voluntarily made, because the trial court did not admonish him at the time on the range of punishment or as to certain of his rights. The State initially argues applicable law bars us from considering the point. (footnote: 2) We agree with the State. At the time of appellant’s adjudication of guilt, the Code of Criminal Procedure did not permit appeal of the trial court’s determination to proceed to adjudicate the guilt of a defendant whose adjudication had been deferred. Phynes v. State, 828 S.W.2d (Tex.Crim.App. 1992); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004). (footnote: 3) The scope of that rule encompassed claims of error arising “in the adjudication of guilt process.” Connolly v. State, 983 S.W.2d 738 (Tex.Crim.App. 1999). Since the voluntariness of appellant’s pleas of “true” to the State’s allegations in the motion to revoke is a matter arising in that process, we have no jurisdiction to consider it. See Hargrave v. State, 10 S.W.3d 355, 360 (Tex.App.–Houston [1 st Dist.] 1999, pet. ref’d) (op. on reh’g) (holding that a challenge to the voluntariness of appellant's plea of true to the allegations in the State's motion to adjudicate guilt seeks review of the trial court's decision to adjudicate guilt). Having no jurisdiction to consider appellant’s sole point of error, we dismiss the appeal for want of jurisdiction. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Drew v. State, 942 S.W.2d 98, 99 (Tex.App.–Amarillo 1997, no pet.). James T. Campbell Justice Do not publish. FOOTNOTES 1: See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2007). This is a second degree felony punishable by imprisonment for a term of not more than 20 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (Vernon 2003). 2: The State also argues the admonishments appellant references are not required at the time the court takes a plea on allegations of violations of terms of probation. We do not address the argument. 3: The adjudication of appellant’s guilt occurred before the effective date of Senate Bill 909, which authorizes appeals from the decision to adjudicate. Act of June 15, 2007, 80 th Leg., R.S., Ch. 1308, § 1. 2007 Tex. Gen. Laws–(amending Tex. Code Crim. Proc. Ann. art. 42.12, § 5).	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2983405/	July 29, 2014 JUDGMENT The Fourteenth Court of Appeals MORLOCK, LLC, Appellant NO. 14-13-00076-CV V. AURORA LOAN SERVICES, LLC, Appellee ________________________________ Today the Court heard the parties’ agreed motion to dismiss the appeal from the judgment signed by the court below on October 31, 2012. Having considered the motion and found it meritorious, we order the appeal DISMISSED. We further order that each party shall pay its costs by reason of this appeal. We further order that mandate be issued immediately. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2983407/	July 29, 2014 JUDGMENT The Fourteenth Court of Appeals MICHAEL OKPAMEN AND AMAZING GRACE HEALTHCARE SERVICES, INC., Appellants NO. 14-14-00422-CV V. DANIEL OSUAGWU, CATHERINE OSUAGWU, LARRY EWEKA AND LUCKY HEALTH CARE SERVICES, INC., Appellees ________________________________ Today the Court heard its own motion to dismiss the appeal from the judgment signed by the court below on January 27, 2014. Having considered the motion and found it meritorious, we order the appeal DISMISSED. We further order that all costs incurred by reason of this appeal be paid by appellants, Michael Okpamen and Amazing Grace Healthcare Services, Inc.. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2615121/	668 P.2d 493 (1983) VALLEY BANK AND TRUST COMPANY, a Utah corporation, Plaintiff and Respondent, v. Curtis W. WILKEN d/b/a Curt Wilken Wholesale Auto and Connie Wilken, his wife, Defendants and Appellant. No. 17808. Supreme Court of Utah. January 20, 1983. Curtis W. Wilken and Connie Wilken, pro se. I.H. Biele, Gary Doctorman, Salt Lake City, for plaintiff and respondent. HOWE, Justice: The plaintiff Valley Bank and Trust Company was granted a summary judgment in this action which it brought against the defendants Curtis W. Wilken and Connie Wilken, his wife, on two promissory notes. Connie Wilken (appellant) alone appeals seeking reversal and a trial on the merits. Defendants executed two promissory notes in favor of the plaintiff. One note for $122,667.53 was executed by Curtis Wilken and is not at issue in this appeal. The other note for $50,000 was executed by both defendants. In her answer to the complaint of the plaintiff, appellant did not assert an affirmative defense but only generally denied plaintiff's allegations. In their answers to the Requests for Admission, the defendants admitted the genuineness of the notes and their signature thereon. Plaintiff moved for summary judgment against both defendants. Curtis Wilken then filed an affidavit in opposition thereto in which he averred that there was no consideration given by the plaintiff for the $50,000 note. The trial court found that the defendants had executed the notes, that the notes were in default, that neither defendant had raised an affirmative defense and that there were no genuine issues as to any material fact. Based on these findings the court granted plaintiff summary judgment against both defendants. The appellant's sole contention is that the trial court erred in granting summary judgment because her husband's affidavit had raised the defense of failure of consideration. The difficulty with her argument is that she was obligated to raise that defense in her answer to the complaint. She made only a general denial in her answer and did not raise any affirmative defenses. Failure of consideration is an affirmative defense and must be pleaded as such. Rule 8(c), U.R.C.P. She made no effort to move to amend her answer under Rule 15 to raise that defense. She could not raise it by means of an affidavit in 494 opposition to summary judgment. It is not the office of an affidavit in opposition to a motion for summary judgment to provide a means of introducing defenses which have not been raised by the answer or by proper motion. Rule 12(b), U.R.C.P. Affidavits are proper to address factual matters relating to issues already framed. Since the defense was not properly raised, she waived it. The dissenting opinion contends that "nothing would have been added to this case by filing a motion to amend the pleadings at the same time that the affidavit was filed asserting the defense." We must take exception to that statement. Had the defendant made a motion to amend her pleadings to assert an affirmative defense, the orderly procedure prescribed by the rules would have been observed. The plaintiff would have had advance notice of the defendant's motion for leave to amend and might have saved its efforts in bringing its motion for summary judgment until the court had ruled on appellant's motion. As it was, the plaintiff, after conducting discovery, properly concluded that there were no genuine issues of fact. It then moved for a summary judgment which was scheduled for hearing ten days later. The day before the hearing, plaintiff was served with an affidavit interposing an additional defense. Had appellant made a motion for leave to amend her answer, plaintiff would have been entitled to at least five days' advance notice of the hearing on that motion. Rule 6(d), U.R.C.P. If we were to uphold this manner of injecting new issues into a case, summary judgment could always be thwarted by the procedure attempted here by the appellant. While we have held that the rules must be liberally interpreted to accomplish justice, they should be sufficiently adhered to so there is an orderly procedure followed in the resolution of a case. Nor can the appellant raise failure of consideration as a defense on appeal when it was not properly presented to the trial court. It therefore appears that there was no genuine issue as to any material fact which had been properly placed in issue by the parties. The trial court did not err in granting summary judgment. The judgment below is affirmed. Costs are awarded to the respondent. HALL, C.J., and OAKS, J., concur. STEWART, Justice (dissenting): The majority opinion denies the defendants a trial on the basis of a pleading deficiency that is so hypertechnical as to recall the happily forgotten elaborate intricacies of common law pleading, to say nothing of code pleading, which our Rules of Civil Procedure displaced several decades ago. It is true that failure of consideration is an affirmative defense under Rule 8(c), but in ruling that because defendants did not plead failure of consideration, they could not properly raise the issue by an affidavit on a motion for summary judgment at the outset of the case, the Court ignores the basic spirit of our rules of procedure and the fundamental policy that cases should not be decided on meaningless pleading deficiencies. See Cheney v. Rucker, 14 Utah 2d 205, 211, 381 P.2d 86, 91 (1963). Notice pleading is designed to make the opposing party aware of the claims that will be asserted at trial. Since the claim of no consideration was clearly stated in Curtis Wilkins' affidavit, which obviously was filed on behalf of himself and his wife, the contention that the plaintiff was not on notice of the defense has little merit. The plaintiff was in no way prejudiced by defendant's failure to make a proper allegation in the answer and by her raising the issue for the first time in the affidavit. The case is a simple case; it is not one where substantial discovery had been done and where the raising of a new issue might have resulted in duplication of discovery efforts. Had defendant filed a motion to amend her pleading at the time of filing the affidavit, it undoubtedly would have been granted. See Lewis v. Moultree, Utah, 627 P.2d 94 (1981), and Thomas J. Peck & Sons, Inc. v. Lee Rock Products, Inc., 30 Utah 2d 187, 515 P.2d 446 (1973) (amendment permitted 495 before trial where adverse party was given fair opportunity to meet the issue raised). This Court has consistently followed the rule that amendments to pleadings should be liberally allowed, see Cheney v. Rucker, supra, 14 Utah 2d at 211, 381 P.2d at 91, even after a trial has commenced, and even after judgment, Utah R.Civ.P. 15(b). See, e.g., General Insurance Co. v. Carnicero Dynasty Corp., Utah, 545 P.2d 502 (1976) (trial court erred in denying amendment after plaintiff's evidence); Consolidated Steel-craft v. Knowlton, 114 Utah 368, 199 P.2d 149 (1948) (trial court erred in denying amendment after judgment); Hancock v. Luke, 46 Utah 26, 148 P. 452 (1915) (trial court erred in denying amendment after judgment); American Publishing Co. v. Fisher, 10 Utah 147, 37 P. 259 (1894) reversed on other grounds, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079 (1897) (amendment at trial). The majority opinion, in a rigid and doctrinaire application of the rules, denies the defendant the benefit of that rule even though the plaintiff was fully aware of the claim and was fully able to rebut the claim by an affidavit if it had the facts to do so. Nothing would have been added to this case by filing a motion to amend the pleadings at the same time that the affidavit was filed asserting the defense. The affidavit itself constituted sufficient notice. Indeed, it is not infrequent that a motion for summary judgment must be defended by a defendant even before he files an answer. In such a case, an affidavit may be the only notice which is given or required to be given the plaintiff. Certainly under those circumstances the majority rule could not be applied, and I am at a loss to understand why it should apply here. Finally, the majority's contention that the issue was not raised in the trial court rests entirely on the majority's view that notice could only be given by the answer. In my view, the affidavit filed was sufficient notice. DURHAM, J., concurs in the dissenting opinion of STEWART, J.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2355829/	946 A.2d 943 (2008) 107 Conn.App. 777 Russell P. BLOW v. Donald A. KONETCHY. No. 28512. Appellate Court of Connecticut. Argued February 20, 2008. Decided May 20, 2008. 946 Scott W. Jezek, Moodus, for the appellant (plaintiff). Joseph E. Milardo, Jr., Middletown, with whom, on the brief, was Linda J. Latimer, for the appellee (defendant). DiPENTIMA, McLACHLAN and GRUENDEL, Js. McLACHLAN, J. The present appeal arises out of a quiet title action involving a driveway area between adjoining landowners. The plaintiff, Russell P. Blow, appeals from the judgment rendered by the trial court in favor of the defendant, Donald A. Konetchy. On appeal, the plaintiff claims that the court improperly (1) treated his claim as one of adverse possession and, as a result, applied a higher standard of proof, (2) found consent and used that as a basis for denying his prescriptive easement claim, (3) found that he had built his porch on the south side of his property line, (4) found that the original grant of easement was located three feet north of the defendant's residence, (5) found in favor of the defendant on his counterclaim of entry and detainer, and (6) reformed the original grant of easement to exclude parking and storage. We affirm the judgment of the trial court. 947 The following facts, as found by the court in its memorandum of decision, are relevant to the resolution of the plaintiff's appeal. The plaintiff and the defendant are neighboring property owners in the Lake Pocotopaug Terrace subdivision in the town of East Hampton. The plaintiff owns lot 46, which he acquired by warranty deed in 1978. The defendant owns lots 44 and 45 located to the south of the plaintiff's lot, which he acquired by warranty deed in 2004. The common boundary line runs generally to the east and west. In 1983, the plaintiff constructed an addition to his home and added a garage. This construction narrowed the space between the buildings of the plaintiff and the defendant. As a result, the plaintiff sought an easement for the use of his neighbors' driveway from the defendant's predecessors in title. According to the court: "The defendant's predecessors in title, Bernard Wilson, Jr., and June F. Wilson, granted the plaintiff use of a portion of their property as part of his driveway. This agreement was subsequently formalized in a `grant of easement' . . . dated April 17, 1989."[1] (Citation omitted.) The grant of easement lies wholly on the defendant's land.[2] In 2004, after the defendant purchased his property, he discovered "encroachments by the plaintiff on the rear yard of his property." Subsequently, he filed a notice affecting title to the land under General Statutes § 47-38.[3] Although the plaintiff had an easement, which granted him the use of the driveway as a right-of-way, the plaintiff had parked his vehicles on the driveway and left them there when he traveled during the winter months. The defendant objected to the use of the entire driveway for parking and storage, especially a three foot wide area wholly within the defendant's land, which he claimed was not contemplated or referenced in the original grant of easement. On October 3, 2005, the plaintiff initiated this action. The plaintiff's amended complaint claims, inter alia, that he acquired a legal right to the use of the three foot area of the defendant's driveway because he "used and enjoyed [this portion of the defendant's property] for more than fifteen years prior to the commencement of [his] action, and such use and enjoyment ha[d] been at all times open, visible, continuous, uninterrupted, and under a claim of right. . . ."[4] The plaintiff requested that 948 the court determine the rights of the parties, release the notice affecting the land and grant further relief that the court deemed proper both at law and in equity. On January 30, 2006, the defendant filed his answer to the plaintiff's amended complaint and his counterclaim.[5] On January 19, 2007, the court rendered judgment in favor of the defendant on both the plaintiff's claim and the defendant's counterclaim. As the court explained: "The disputed area is the area within three feet of the defendant's [residence], which is not encompassed within the area delineated in the grant of easement. In this area, the plaintiff parked motor vehicles, trailers, boats and other material immediately adjacent to the defendant's residence within the three foot zone at issue." The court also stated: "Further, these vehicles were left in the area for extended periods, denying the defendant access to the exterior of his residence." The court acknowledged that the plaintiff had asserted a prescriptive easement claim; however, it found that the plaintiff never enjoyed exclusive use of the disputed property. It also found that the plaintiff had used the three foot wide disputed area of the drive-way with the consent of the defendant's predecessor in title and the defendant. The court enjoined the plaintiff from "parking vehicles, storing materials or storing any other of his property on or in the right-of-way area at any time that he is not physically present at his residence" and that the "right-of-way is to be used as a driveway, not a parking lot or storage area."[6] Subsequently, the plaintiff moved for an articulation of the court's decision. In its articulation, the court addressed the plaintiff's request for the court to explain where in the record the plaintiff had made a claim of adverse possession and whether a claim for a prescriptive easement had been made. The court construed the plaintiff's claims as an adverse possession claim in addition to a prescriptive easement claim, finding that the prescriptive easement claim failed because the use had not been continuous and uninterrupted. This appeal followed. I The plaintiff first claims that the court improperly applied the wrong burden of proof because it determined his case on the basis of a theory of adverse possession rather than as a prescriptive easement claim. The plaintiff contends that this was improper because an adverse possession claim requires a higher burden of proof, the clear and convincing standard, as opposed to the burden of proof for an easement by prescription, which is the preponderance of the evidence standard. "When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law." Cadle Co. v. D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004). The plaintiff's argument is predicated on the court's language in its 949 memorandum of decision. Specifically, the court stated that the plaintiff's claim "is based on a theory of adverse possession." As the plaintiff points out, "claims of adverse possession and prescriptive easements, though requiring proof of similar elements, are nevertheless distinct causes of action."[7]Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007), citing Schulz v. Syvertsen, 219 Conn. 81, 92 n. 8, 591 A.2d 804 (1991). "The proper inquiry in evaluating a claim that easement rights have been acquired by prescription is whether the claimant adversely used the property at issue and not whether he adversely possessed that property. . . . In addition, the two types of claims differ as to the burden of proof to be applied. Claims of adverse possession are evaluated under the heightened standard of clear and positive proof, whereas claims of prescriptive easements are assessed under the preponderance of the evidence standard." (Citation omitted; emphasis in original.) Smith v. Muellner, supra, 283 Conn. at 536, 932 A.2d 382. The plaintiff asserts that because the court used the term "adverse possession" in describing his prescriptive easement claim, it necessarily held him to the higher burden of proof associated with adverse possession claims. We do not agree. The court addressed its use of the term "adverse possession" and the burden of proof it applied in its articulation filed May 18, 2007. It stated: "The plaintiff requests the court to articulate where on the record a claim for adverse possession was made and whether a claim for prescriptive easement was made. The plaintiff in his posttrial brief, page three, states the following: `Further, the plaintiff claims that regardless of the proper measurement, he is entitled to an easement over the entire paved area either by deed or prescription. . . .' The court construed this as an adverse possession claim in addition to the prescriptive easement claim." (Emphasis added.) Additionally, the court wrote: "The court [was] asked to articulate the elements of proof it applied to the plaintiff's claims. The court indicates at page two that it is evaluating the plaintiff's claim of prescriptive easement. In proving its burden of establishing a prescriptive easement, the plaintiff was obligated to prove by a preponderance of the evidence that his use of the area claimed was `(1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim or right.' . . . The exclusive possession reference was to the necessary element of the adverse possession claim. The prescriptive easement claim failed, as the use was not continuous and uninterrupted with respect to the three foot area adjacent to the defendant's residence." (Emphasis added.). Therefore, 950 the plaintiff's first claim fails because the court addressed both theories and applied the appropriate standard of proof for each.[8] II The plaintiff next claims that the court improperly used consent as a basis for denying his prescriptive easement claim. The plaintiff claims that there was no consent and that even if there were consent, consent is not synonymous with permission and, therefore, is not a basis for defeating his prescriptive easement claim. The plaintiff relies on Gallo-Mure v. Tomchik, 78 Conn.App. 699, 829 A.2d 8 (2003), to support this argument. Gallo-Mure, however, is inapplicable. Here, as the court stated in its articulation, the plaintiff's prescriptive easement claim failed not because of consent but because the use was not continuous and uninterrupted, which is a critical element of the plaintiff's prescriptive easement claim. III The plaintiff next claims that the court erroneously found that he had built his porch on the south side of his property along the common line of the defendant's property. The plaintiff refers to the following statements in the court's memorandum of decision: "The factual origin of the suit begins with the plaintiff's expansion of his home and garage in approximately August, 1983. The expansion involved the narrowing of the space between the plaintiff's and the defendant's properties by the plaintiff's addition of the porch on the south side of the residence." The transcript reflects that the plaintiff was using the porch as a reference point but that he testified that he did not build the porch when he built the addition of the garage. Rather, the addition of the garage was the construction that actually narrowed the space between the properties of the plaintiff and the defendant.[9] Thus, he claims that the court's finding that the porch was built by the plaintiff on the south side, when it was not located on the south side or built by the plaintiff, suggests that the construction of the porch somehow narrowed the space between the plaintiff's and the defendant's houses. Accordingly, the plaintiff claims that this finding is contrary to all the evidence and is reversible error. In opposition, the defendant asserts that this inadvertent mistake was harmless and of no consequence to the case at hand. The testimony that the court relied on was confusing and could have led it to believe that the addition included a porch. The defendant concedes that this was a mistake but, nonetheless, that it was irrelevant and harmless. Our review of factual determinations requires that we do not attempt to retry a trial court's factual findings. Unless those findings are clearly erroneous, we do not disturb them. Lucas v. Lucas, 88 Conn. App. 246, 251, 869 A.2d 239 (2005). Although the court may have misstated the time of construction and the location of 951 the porch, the plaintiff has failed to provide any analysis that would demonstrate how this factual inaccuracy tainted the court's ultimate determination in the present case. See Winchester v. McCue, 91 Conn.App. 721, 734, 882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005) ("[u]nder . . . circumstances involving minor quibbles over nomenclature and technically inaccurate findings, we have declined to order a new trial."); see also Cuneo v. Cuneo, 12 Conn.App. 702, 703-704 n. 1, 533 A.2d 1226 (1987) ("[T]he court was incorrect in describing the defendant as a `practicing attorney.' . . . This factual error does not, however, affect the disposition of this case."); Goodsell v. Brighenti, 128 Conn. 581, 584-85, 24 A.2d 834 (1942) (stating, "we are of the opinion that the indicated use of east for west was rather the inadvertent mistake which occurs occasionally in such circumstances and that it had no material effect on the conclusion reached which must be based on the events as they actually occurred"). Regardless of when the porch was constructed or where the porch was located, the court found that the plaintiff did not satisfy his burden of establishing an easement by prescription or title by adverse possession. The time of construction and the location of the porch were immaterial to the court's holding. IV The plaintiff's fourth claim is that the court improperly found that the original grant of easement was located three feet north of the defendant's residence. In support of this contention, the plaintiff argues that "the original grant of easement . . . contained two distance marks with respect to the location of the easement. First, it showed it five feet in width from the [plaintiff's] southerly line. Second, as the court found, it also shows it as three feet and parallel to the north line of the [defendant's] residence. There is insufficient distance between the [plaintiff's] southerly line and the [defendant's] residence for both calls to be satisfied in their entirety." The plaintiff points out that the surveys of each party differ as to the location of the right-of-way. On the basis of the differing surveys, the plaintiff asserts that one of the readings, the defendant's survey, causes the easement to become narrower and taper toward the rear or east side of the plaintiff's property, while his survey gives him the full, original five foot easement. Conversely, the defendant argues that the plaintiff is incorrect because "the surveys in fact agree as to the location of the south line of the deeded easement being three feet north of the [defendant's] home, which supports the trial court's finding."[10] We agree with the defendant. "When the factual basis of a trial court's decision is challenged, [an appellate court's] function is to determine whether, in light of the pleadings and evidence in 952 the whole record, these findings of fact are clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Citation omitted; internal quotation marks omitted.) Smith v. Muellner, supra, 283 Conn. at 533, 932 A.2d 382. The plaintiff argues that the court's finding is clearly erroneous because the court found the point of measurement to be from the defendant's house, thus, depriving him of the full five foot easement. He claims that the original survey contained an ambiguity that must be construed against the grantor, the defendant. In the present case, the court was presented with several contradicting surveys that each placed the right-of-way in a slightly different location. After a careful review of the surveys and the record before us, we are not persuaded that the court's finding was clearly erroneous. The court relied on the survey that depicted the southerly boundary of the granted right-of-way to be three feet from the defendant's residence. In doing so, the court was respecting the original intention of the parties when they executed the grant of easement in 1989. Accordingly, the plaintiff's fourth claim fails. V The plaintiff's next claim is that the court improperly found in favor of the defendant on his counterclaim for entry and detainer. The plaintiff asserts that the facts and circumstances of this case do not support an entry and detainer claim. We disagree. "The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry. . . . [General Statutes § ] 47a-43 was made to protect a person in such possession . . . from disturbance by any but lawful and orderly means." (Citations omitted; internal quotation marks omitted.) Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987). "A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed." (Emphasis in original.) Communiter Break Co. v. Scinto, 196 Conn. 390, 393, 493 A.2d 182 (1985). "The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact. . . . Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise. . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion." (Citations omitted.) Id., at 394, 493 A.2d 182. The plaintiff claims that the defendant was never in possession of the 953 area in dispute.[11] On the basis of the facts before the court, it was evident that the defendant had actual possession of the disputed area because he "exercised the dominion and control that owners of like property usually exercise" over the disputed area. (Internal quotation marks omitted.) Evans v. Weissberg, 87 Conn.App. 180, 182, 866 A.2d 667 (2005). Moreover, the disputed area of land is immediately adjacent to the defendant's house, and the defendant has to walk through that area to gain access to his windows and utility box and for other various reasons.[12] The plaintiff next argues that the entry and detainer statute is inapplicable because there was no forcible entry. To support his argument, the plaintiff cites Hjorth v. Clark, 13 Conn.Supp. 409 (1945), in which a judge of the Court of Common Pleas stated: "To make a detainer forcible, there must be a detention with what is called strong handas, with an unusual number of people, with weapons, with menacesor accompanied with some circumstances of actual violence, calculated to intimidate the plaintiff, and deter him from asserting or maintaining his right." (Internal quotation marks omitted.). Id., at 411. Here, the court concluded that the plaintiff's behavior of parking his vehicles, storing materials on the driveway and leaving manure on the drive-way; see footnote 14; was menacing and led to intimidation of the defendant, making the detainer forcible.[13] Moreover, the court found that the defendant's testimony supported his entry and detainer claim. In its articulation, the court wrote: "The factual basis for the court's finding that the defendant proved his claim for entry and detainer is contained in the testimony of the defendant. The defendant testified credibly as to the plaintiff's actions in interfering with his efforts to put a fence on his property. The plaintiff further parked vehicles and stored other property directly adjacent to the defendant's home and on the defendant's property."[14] Thus, the plaintiff's fifth claim fails. *954 VI The plaintiff's last claim is that the court improperly reformed the original grant of easement to exclude parking and storage. He asserts that the defendant never requested a reformation of the deed and, even if he did request reformation, the plaintiff did not have notice of such claim. A cause of action for reformation of a deed "rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981). "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties." (Internal quotation marks omitted.) Id., at 532, 441 A.2d 151. The defendant responds to the plaintiff's argument that reformation of the easement was improper with the fact that the plaintiff specifically claimed in his prayer for relief for "such other and further relief as the court deems proper both at law and in equity." On the basis of this request, the defendant asserts that even if a claim of reformation was not enumerated, it clearly falls under the equitable powers of the trial court. "[T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . For that reason, equitable remedies are not bound by formula but are molded to the needs of justice." (Citations omitted; internal quotation marks omitted.) McKeever v. Fiore, 78 Conn.App. 783, 788, 829 A.2d 846 (2003). In its articulation, the court explained that it enjoined the plaintiff from using the easement area for parking and reformed the grant of easement accordingly because "the grant contained in the easement and the legal requirement that the use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." On the basis of its articulation, and because reformation falls under the equitable powers of the court, the plaintiff's sixth, and final, claim fails. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] In 1989, the plaintiff received two easements from the defendant's predecessors in title. One of the easements concerned drainage from the plaintiff's property over the rear of the defendant's property. The other easement, the one at issue in the present case, permitted the plaintiff to "use, maintain, operate, construct, reconstruct, repair and replace a driveway over and across" a portion of the defendant's property. [2] The court found: "The `right-of-way' referenced in the `grant of easement' was erroneously depicted on a map . . . filed on June 30, 1989, in the East Hampton land records as being on the property of the plaintiff and south of their common boundary three feet north of the [defendant's] residence. The grant of easement actually places the right-of-way on the defendant's property." (Citation omitted.) [3] General Statutes § 47-38 provides: "The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provided in sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter." [4] In his complaint, the plaintiff alleged this three foot area as the "portion located south of the [p]laintiff's common line with the [d]efendant and extending southerly to the six inch bituminous curb located on the northerly side of the [d]efendant's existing house and extending easterly from Brook Trail to a point off the southeast most corner of the [p]laintiff's existing residence and marked by the end of the bituminous paving. . . ." [5] In his counterclaim, the defendant asserted a claim of entry and detainer against the plaintiff pursuant to General Statutes § 47a-43(a). [6] The court denied the defendant's request for attorney's fees, and it awarded the defendant his cost of $1000 for the survey of his property. [7] "It is well established that one claiming title to real property by adverse possession must prove by clear and positive evidence each element of actual, open, notorious, hostile, continuous and exclusive possession for the full fifteen year statutory period." Mulle v. McCauley, 102 Conn.App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). "[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right. . . . The standard of proof that is required is a fair preponderance of the evidence. . . . To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised. . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use. . . . Use by express or implied permission or license cannot ripen into an easement by prescription." (Citations omitted; internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn.App. 296, 309, 880 A.2d 889 (2005). [8] The defendant contends that the court correctly applied both theories because the plaintiff opened the door to an adverse possession claim. Additionally, the defendant asserts that because the plaintiff used the land for storage rather than passage, an adverse possession claim is the appropriate claim on the basis of his use. [9] The plaintiff testified as follows: "Q. And the space between yours and [the defendant's] house is relatively narrow, isn't it? "A. Yes, it is. "Q. Do you have any estimate as to width or have you ever measured it? "A. Between the two houses it haswhere my porch and his house begins, is, probably, about twelve and one-half feet, maybe, at the narrowest point. Prior to that, it's more." [10] The defendant correctly explains the origin of the issues with the different surveys when he writes: "These more recent surveys of the original right-of-way exposed the erroneous depiction of the placement of the easement on the original survey map by its placement of the easement on the [plaintiff's] property, rather than on the [defendant's]. . . . This fact is in keeping with the [defendant's] need for a reasonable passing from the front to [the] rear of his property and to access the north side yards side of his home in emergencies and for maintenance and repairs." He further states: "If the right-of-way runs from the common boundary line, as [the plaintiff] claims it should, the plaintiff argues that [he] then has the benefit of a full five foot width easement rather than an easement, which runs from three feet from the [defendant's] dwelling, which causes the easement to become narrower." [11] The plaintiff further argues that because the defendant did not take possession of his property until after the fifteen year statutory period for the plaintiff's prescriptive easement claim had run, the plaintiff could not be in violation of the defendant's rights. This argument fails because the court concluded that the plaintiff did not satisfy all of the elements of a prescriptive easement. [12] The plaintiff also claims that General Statutes § 47a-43, the entry and detainer statute, only applies to landlord-tenant situations. There are, however, cases in which this court applied § 47a-43 to other situations. See Evans v. Weissberg, supra, 87 Conn.App. at 180, 866 A.2d 667 (affirming court's finding in favor of plaintiff's entry and detainer claim when defendants erected fence on property that court concluded plaintiff was in actual possession of at time defendants erected fence). [13] We have affirmed a court's finding of an entry and detainer claim when there were indications of violent designs but no actual violence. See Wilcox v. Ferraina, 100 Conn. App. 541, 920 A.2d 316 (2007); see generally Sullivan v. Delisa, 101 Conn.App. 605, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). [14] The record is replete with examples of the plaintiff's behavior that supports the defendant's entry and detainer claim. For example, one of the exhibits is a photograph of the defendant trying to remove snow from his driveway with a snowblower after a large snowstorm. The picture features the defendant trying to remove the snow around the plaintiff's parked cars to no avail. This photograph illustrates the plaintiff's blatant disregard for the defendant's quiet possession of his real property. Furthermore, the defendant asserts that after the two parties entered into an agreement when he sought injunctive relief, he came home to find manure and earthen materials deposited in the very area where the plaintiff had parked his cars.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615069/	668 P.2d 16 (1983) Robert W. MOORE, on his own behalf and on behalf of 1600 Downing Street, Ltd., a Colorado limited partnership, Plaintiff-Appellant, v. 1600 DOWNING STREET, LTD., a Colorado limited partnership, and John Vacek, Thomas W. Slack, Thomas W. Bennett, Tomio Kawano, North Downing, Inc., a Colorado corporation, George McIntosh, Ernest Bustamante, Walter Daniels, Ray Perschbacher, Wendell B. Fitzgerald, James W. Bennett, Dennis M. Thompson, Donald J. Walder, D.L. Durham, and Thomas M. Sullivan, Defendants-Appellees. No. 80CA0529. Colorado Court of Appeals, Div. III. March 31, 1983. Rehearing Denied April 28, 1983. Certiorari Denied August 15, 1983. 18 Head, Moye, Carver & Ray, John E. Moye, Craig R. Carver, Edwin A. Naylor, Denver, for plaintiff-appellant. C.E. Eckerman, Denver, for defendants-appellees 1600 Downing Street, Ltd. and North Downing, Inc. Paul D. Renner, P.C., Paul D. Renner, John R. Rodman, Denver, Wood, Ris & Hames, Christopher M. Brandt, Denver, for defendant-appellee Thomas M. Sullivan. Brenman, Epstein, Zerobnick, Raskin & Friedlob, P.C., Deborah Linn, Denver, for defendant-appellee Wendell B. Fitzgerald. Feder, Morris & Tamblyn, P.C., Harold A. Feder, Margaret N. Dillon, Denver, for defendants-appellees John R. Vacek and Thomas W. Slack. No appearance for defendants-appellees Thomas W. Bennett, Tomio Kawano, George McIntosh, Ernest Bustamante, Walter Daniels, Ray Perschbacher, James W. Bennett, Dennis M. Thompson, Donald J. Walder and D.L. Durham. BERMAN, Judge. In a derivative action by a limited partner, plaintiff, Robert Moore, appeals the summary judgment entered for defendants. Because we find that there are genuine issues of material fact to be determined, we reverse and remand to the trial court. This limited partnership derivative action was filed by Moore, a limited partner having a 6% interest, on behalf of himself and on behalf of the limited partnership, 1600 Downing Street, Ltd. Moore later conceded both in his appellate briefs and at oral argument that he was not pursuing any claims on his own behalf; rather, it was purely a derivative action. The claims include mismanagement, misrepresentation, and breaches of fiduciary duties by the general partners and third parties. A number of motions to dismiss were filed by defendants, but were denied by the trial court. While the case was pending, a new judge was assigned to the case. After an affidavit and additional factual materials were presented to the court, many of the same issues raised by the motions to dismiss were renewed in summary judgment motions. These motions asserted that a limited partnership derivative action may not be maintained in Colorado, that Moore's sole remedy is a return of his capital contribution, and that, in the alternative, if a limited partnership derivative action is permitted in Colorado, Moore did not fairly and adequately represent the interests of those similarly situated. Moore contested all of the above grounds, and also maintained that the denial of defendants' motions to dismiss was the law of the case as to all issues raised by those motions. Summary judgment was granted, and this appeal followed. Because no one reason was given for the trial court's ruling, we assume that it considered each of the grounds asserted in support of the motions, as well as Moore's counter arguments; thus, we discuss each separately here. I. Moore first argues that the denial of defendants' motions to dismiss constitutes the law of the case as to all issues raised in defendants' summary judgment motions. We disagree. 19 The rule of the law of the case is a discretionary "rule of practice, based upon sound policy that once an issue is decided, that should be the end of the matter." Verzuh v. Rouse, 660 P.2d 1301 (Colo.App.1982), citing United States v. United States Smelting, Refining & Mining Co., 339 U.S. 186, 70 S. Ct. 537, 94 L. Ed. 750 (1950). However, it does not generally apply to the denial of interlocutory motions. Connolly v. Pension Benefit Guaranty Corp., 673 F.2d 1110 (9th Cir.1982). Nor is it generally applied when there is new evidence before the court. Beedy v. Washington Water Power Co., 238 F.2d 123 (9th Cir.1956). See also 1B Moore's Federal Practice ¶ 0.404 (2d ed. 1982). A second judge assigned to a case may entertain an interlocutory motion denied by the previous judge. Denver Electric & Neon Service Corp. v. Gerald H. Phipps, Inc., 143 Colo. 530, 354 P.2d 618 (1960) (motion to dismiss). See People v. Lewis, 659 P.2d 676 (Colo.1983). If, as in Denver Electric, a motion to dismiss may be so reconsidered, it would be incongruous to hold that a motion for summary judgment, even if based on the same issues argued in earlier motions to dismiss, is barred by the law of the case doctrine. II. Moore argues that if the trial court's basis for granting summary judgment was a refusal to recognize the right of limited partners to sue derivatively, the court was in error. We agree. Preliminarily, we note that this limited partnership was formed in 1973. Hence, the provision of the Uniform Limited Partnership Act, as reenacted in 1981, which specifically permits a derivative action by a limited partner, § 7-62-1001, C.R.S.1973 (1982 Cum.Supp.), is not applicable; rather the action is governed by the Uniform Limited Partnership Law, § 7-61-101, et seq., C.R.S.1973, and the common law. Beginning with the landmark decision of Klebanow v. New York Produce Exchange, 344 F.2d 294 (2nd Cir.1965), the majority of jurisdictions to have considered the issue have concluded that, under the common law, a limited partner may bring a derivative action against the general partners for breach of fiduciary duty in the management of the affairs of the partnership if the general partners refuse to or are unable to bring such an action. See, e.g., Riviera Congress Associates v. Yassky, 18 N.Y.2d 540, 277 N.Y.S.2d 386, 223 N.E.2d 876 (1966); McCully v. Radack, 27 Md.App. 350, 340 A.2d 374 (1975); Smith v. Bader, 458 F. Supp. 1184 (S.D.N.Y.1978) (applying California law); Strain v. Seven Hills Associates, 75 A.D.2d 360, 429 N.Y.S.2d 424 (1980) (applying Ohio law); Engl v. Berg, 511 F. Supp. 1146 (E.D.Pa.1981); Phillips v. KULA 200, Wick Realty, Inc., 629 P.2d 119 (Haw.App.1981); Jaffe v. Harris, 109 Mich.App. 786, 312 N.W.2d 381 (1981). The rationale behind permitting such suits was stated succinctly by the New York Court of Appeals: "There can be no question that a managing or general partner of a limited partnership is bound in a fiduciary relationship with the limited partners ... and that the latter are, therefore, cestuis que trustent [sic] .... It is fundamental to the law of trusts that cestuis have the right `upon the general principles of equity'... and `independently of [statutory] provisions ... to sue for the benefit of the trust on a cause of action which belongs to the trust if' the trustees refuse to perform their duty in that respect." Riviera Congress Associates v. Yassky, supra (brackets in original). However, defendants argue that § 7-61-127, C.R.S.1973, prevents plaintiff from bringing this derivative action. This statute provides: A contributor, unless he is a general partner, is not a proper party to proceedings by or against a partnership, except where the object is to enforce a limited partner's right against or liability to the partnership. Beginning with the Klebanow opinion, and continuing through the majority of those cases to follow, the courts have rejected 20 arguments based on statutes identical to § 7-61-127, C.R.S.1973. The Klebanow court reasoned as follows: "The purposes of § 115 [New York's version of § 7-61-127] ... were reasonably plain. General partners need not join limited partners in an action by the partnership; ordinarily limited partners may not sue since this will interfere with the management by the general partners, Lieberman v. Atlantic Mutual Ins. Co., 62 Wash.2d 922, 385 P.2d 53 (1963); a suitor against the partnership need not join a limited partner; indeed, he may not do so if the partnership be solvent .... The words say this and say it well. But they do not have to be read as saying that a limited partner cannot bring an action on behalf of the partnership when the general partners have disabled themselves or wrongfully refused; and, although they could be so read, we see no sufficient reason for doing so when in quite similar situations the cestui que trust or the preferred stockholder is allowed to do exactly that." Klebanow v. New York Produce Exchange, supra (emphasis added). Accord Jaffe v. Harris, supra; Strain v. Seven Hills Associates, supra; Smith v. Bader, supra. III. The third issue raised during hearings on the summary judgment motions was whether a limited partner's sole remedy is the return of his contribution with interest. We hold such remedy to be non-exclusive. Defendants rely on Gundelach v. Gollehon, 42 Colo. App. 437, 598 P.2d 521 (1979) and § 7-61-117, C.R.S.1973, to argue that the trial court should have awarded Moore his contribution with interest, in lieu of permitting a derivative suit. However, the Gundelach court specifically recognized that a general partner owes a fiduciary duty to a limited partner, and recognized that the minimum amount of damages for such a breach is a return of contribution. It in no way limited the amount of damages recoverable, nor did it touch on the question of whether a suit seeking such damages was limited to one brought by a limited partner in his individual capacity, or included one brought on behalf of the business entity in the form of a derivative suit. IV. Moore's final argument is that he fairly and adequately represents the partnership members similarly situated. We hold that the record has not been adequately developed on this factual issue; thus, summary judgment was not proper. C.R.C.P. 56(c); Discovery Land & Development Co. v. Colorado-Aspen Development Corp., 40 Colo. App. 292, 577 P.2d 1101 (1977). C.R.C.P. 23.1 governs "derivative action[s] brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association. . . ." and provides that a "derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association." The record reveals that approximately 47 of the other limited partners, at the behest of defendants, submitted letters wherein they stated that they did not believe that Moore represented their interests in this lawsuit. In addition, one limited partner submitted an affidavit to that effect. However, it appears from the record that at least six limited partners have not expressed their opinion on this issue. The trial court must determine, on remand, whether any of these six limited partners are similarly dissatisfied with the actions of the general partners. See Clemons v. Wallace, 42 Colo. App. 17, 592 P.2d 14 (1978). If the court finds that one or more other limited partners are similarly dissatisfied, the court must consider, in addition to the extent of support shown by the members plaintiff seeks to represent, the following factors: "economic antagonisms between representative and class; the remedy sought by plaintiff in the derivative action; indications 21 that the named plaintiff was not the driving force behind the litigation; plaintiff's unfamiliarity with the litigation; other litigation pending between the plaintiff and defendants; the relative magnitude of plaintiff's personal interests as compared to his interest in the derivative action itself; [and] plaintiff's vindictiveness toward the defendants...." Davis v. Comed, Inc., 619 F.2d 588 (6th Cir.1980). The above list is not necessarily exhaustive, since in every new factual situation, new considerations may arise. See, e.g., Hornreich v. Plant Industries, Inc., 535 F.2d 550 (9th Cir.1976); G.A. Enterprises, Inc. v. Leisure Living Communities, Inc., 517 F.2d 24 (1st Cir.1975); Nolen v. Shaw-Walker Co., 449 F.2d 506 (6th Cir.1971); Roussel v. Tidelands Capital Corp., 438 F. Supp. 684 (N.D.Ala.1977). The judgment is reversed and the cause is remanded for further proceedings, including such evidentiary hearings as may be appropriate, consistent with this opinion. KIRSHBAUM and TURSI, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983215/	Order filed, September 25, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-14-00431-CV ____________ JASMINE RICKS, Appellant V. QUALITY CARRIERS, INC. & CRAIG L. SMITH, Appellee On Appeal from the 157th District Court Harris County, Texas Trial Court Cause No. 2011-17716 ORDER The reporter’s record in this case was due August 29, 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 Sheri Ullrich, the official court reporter, to file the record in this appeal within 30 days of the date of this order. PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2615114/	668 P.2d 959 (1983) Roger LOCKHART, Petitioner, v. The BOARD OF EDUCATION OF ARAPAHOE COUNTY SCHOOL DISTRICT NO. 6, State of Colorado. No. 80CA1191. Colorado Court of Appeals, Div. I. February 24, 1983. Rehearing Denied March 24, 1983. Certiorari Granted August 29, 1983. Law Offices of Larry F. Hobbs, Larry F. Hobbs, William P. Bethke, Denver, for petitioner. Banta, Hoyt, Malone & Banta, P.C., Eugene M. Sprague, William K. Malone, Stephen Everall, Englewood, for respondent. 960 BERMAN, Judge. Petitioner seeks review of an order dismissing him from his position as a tenured teacher on grounds of insubordination. We reverse. Petitioner, a psychology teacher at Heritage High School, refused to perform faculty hall supervision duties because he felt that it would "compromise [his] efforts to teach [his] classes in a democratic way." The principal thereafter suspended petitioner with pay, and recommended his dismissal to the school board. The board accepted for review charges against petitioner filed in accordance with § 22-63-117, C.R.S.1973. An evidentiary proceeding was conducted before a hearing officer, as required by § 22-63-117(5), C.R.S.1973 (1982 Cum.Supp.). The hearing officer issued findings of fact and a recommendation that petitioner be dismissed as insubordinate. The board called a special meeting to consider the hearing officer's report and recommendation. Present at the meeting were petitioner, petitioner's counsel, and the school board's attorney who had prosecuted petitioner's case before the hearing officer (prosecutor). After an abbreviated session, the board voted to accept the hearing officer's recommendation of dismissal. Petitioner argues that the role played by the prosecutor at the board meeting prejudiced the board's decision in contravention of Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976). We agree. In Weissman, our Supreme Court cautioned that: "[A] school board's attorney, who has taken part in the adversary proceedings in the role of prosecutor, should not be present during the board's deliberations.... In the future, counsel who has played such a role in the proceedings should take no part in the final deliberations of the board, in order to avoid any appearance of impropriety or unfairness." Here, not only was the prosecutor present during the board's deliberations, but he also substantially influenced the decision of the board. The prosecutor began the meeting with introductory remarks setting out what he considered to be the board's options: "The Board at this time should make an order concerning the status of Mr. Lockhart [petitioner]. The statute provides that there are three alternatives that the board can take. The board can either dismiss the teacher, suspend the teacher for one year, or retain the teacher. If the Board determines to proceed against the recommendation of the hearing officer, the Board would have to make specific findings that the findings of fact and recommendation of the hearing officer are not supported by the record."[1] The prosecutor also prepared "the appropriate form of resolution" which was submitted to the board. And, before reading the resolution, one of the board members asked the prosecutor whether it was necessary to "read this whole page." He advised them to do so. But the most egregious invasion into the board's decision-making province is evidenced by the following exchange: "[BOARD MEMBER]: Are you in a position to make a recommendation to the Board that the hearing officer's findings of fact correspond to the evidence that was offered at that hearing? [PROSECUTOR]: Yes, I can make that recommendation. The findings of fact are supported by the record." We recognize that the statute does not require the board to review the transcript, see § 22-63-117(10), C.R.S.1973 (1982 Cum.Supp.), but we also recognize that here, the transcript was available, and could have been requested, if necessary. If the board felt compelled to ask the above question, then rather than relying on the prosecuting attorney's verbal assurances that the evidence supported the findings, it should have conducted the "limited" review of the transcript permitted by Ricci v. Davis, 627 P.2d 1111 (Colo.1981). The prosecuting 961 attorney was in an advantageous position to use his credibility to influence the board. This was especially true here since he played the dual role of prosecutor at the hearing level as well as that of the board's private counsel. After the above exchange, petitioner's attorney interjected to speak briefly on petitioner's behalf. He was stopped by a board member, upon the prosecutor's recommendation that a statement by petitioner's counsel would be inappropriate. A board member then asked the prosecutor if his recommendation concerning the evidence still stood. He replied that it did, and a final vote was taken by the board. The prosecutor's extensive influence upon the board's deliberations resulted in just the due process violation the Weissman court sought to prevent. The "appearance of impropriety [and] unfairness" is vividly evidenced upon reviewing the transcript of the board meeting. The order is reversed, and the cause is remanded to the respondent Board of Education with instructions to reinstate the petitioner in his former position and to award full back pay, including benefits. Section 22-63-117, C.R.S.1973. COYTE and STERNBERG, JJ., concur. NOTES [1] We do not find it necessary to address the issue of the accuracy of the prosecutor's paraphrasing of the statute because we are reversing the dismissal on other grounds.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2235940/	929 N.E.2d 789 (2010) SMITH v. WRIGLEY. Supreme Court of Indiana. March 25, 2010. Transfer denied. All Justices concur, except Shepard, C.J., who did not participate in the disposition of this matter.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2308131/	410 F.Supp. 187 (1976) Charles Gene ROGERS and Dorothy Hagwood Rogers, Plaintiffs, v. Sgt. J. C. FULLER et al., Defendants. No. C-75-319-D. United States District Court, M. D. North Carolina, Durham Division. March 23, 1976. 188 Reginald L. Frazier, New Bern, N. C., for plaintiffs. Alexander H. Barnes, Durham, N. C., T. Lawrence Pollard, Associate Atty. Gen., N. C. Dept. of Justice, Raleigh, N. C., for defendants. MEMORANDUM ORDER HIRAM H. WARD, District Judge. This matter came before the Court on the defendant Ray Freeman's motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, and motion to dismiss pursuant to Rule 12(b), Federal Rules of Civil Procedure. Jurisdiction for this action is based upon 28 U.S.C. § 1331(a), 28 U.S.C. § 1343(3) and (4), and 42 U.S.C. § 1988. The plaintiff characterizes this cause as "an action to redress the deprivation under Color of State law, statute, ordinance, regulation, custom or usage or rights privileges and immunities secured by the constitution and laws of the United States, The Fourth Amendment Title 18, U.S.C. Section 1503, and Title 42 U.S.C. Section 1981 and 1983." Although the plaintiffs and defendants differ markedly on their versions of the events which form the basis of this action, the following facts are undisputed: (1) The plaintiffs were arrested on March 27, 1975, and charged, among other things, with manufacturing and possessing heroin. (2) Law enforcement officers brought the heroin charges against the plaintiffs following a search of their house in Durham, North Carolina. (3) The plaintiffs were sentenced to prison on December 11, 1975, as a result of the arrest on March 27, 1975. The defendants in this action are law enforcement officers who are alleged to have taken part in the search of the plaintiffs' house and in their subsequent arrest. Defendant J. C. Fuller is a member of the Durham Police Department's Vice Squad Division; defendant E. E. Sarvis is a Public Safety Supervisor for the City of Durham; and defendant Ray Freeman is an assistant supervising agent for the North Carolina State Bureau of Investigation. The plaintiffs basically allege that the defendants, in the course of arresting them and bringing them to trial, committed the following transgressions: (1) Made an illegal search of plaintiffs' house; (2) Planted heroin, or caused it to be planted, in plaintiffs' house, thus leading to the plaintiffs' conviction; (3) Brutally assaulted the plaintiff Charles G. Rogers; (4) Destroyed a tape recording which reproduced the search of plaintiff's house and thus destroyed evidence which would have incriminated the law enforcement officers involved; (5) Stole $35,000 worth of rare coins from the plaintiffs; (6) Intimidated and harassed plaintiffs and caused Charles G. Rogers to be illegally arrested and 189 charged with the crime of perjury;[1] and (7) Caused to be published in a local newspaper an account of the plaintiffs' arrest in an attempt to influence any juror who might be empaneled to hear the plaintiffs' case. The defendant Freeman first moved for summary judgment and submitted a number of affidavits in support of that motion. He later filed a separate motion to dismiss based upon different grounds. I. Motion for Summary Judgment Affidavits were filed by the defendants Ray Freeman, J. C. Fuller, and E. E. Sarvis; L. Reece Trimmer, Legal Advisor to the Durham Police Department; R. D. Jarmon, C. E. Britt and C. H. Smith, members of the Durham Police Department's Vice Squad; H. K. Fletcher, a Public Safety Officer for the City of Durham; and Jerry Chesson, who, on March 27, 1975, was branch manager of the Horton Road branch of the Wachovia Bank and Trust Company in Durham. Affiants Fuller, Jarvis, Jarmon, Britt, Smith, and Fletcher were present at the plaintiffs' premises on March 27, 1975, and took part in the search of plaintiffs' house. Affiant L. Reece Trimmer drafted the search warrant which was executed at the plaintiffs' house and waited in a car outside while law enforcement officers went into the house. According to the affidavits, each of which is similar to the other: (1) Sgt. J. C. Fuller requested Ray Freeman to assist him in the investigation of narcotics violations by the plaintiffs; (2) On March 27, 1975, Fuller, Jarvis, Jarmon, Britt, Smith, and Fletcher went to the plaintiffs' residence armed with a search warrant, executed the warrant, and arrested the plaintiffs; (3) Freeman was not present at the time of the search or arrest and did not participate in it but instead was then talking to Jerry Chesson at the Horton Road branch of Wachovia Bank concerning a safe deposit box which the plaintiffs had rented; (4) While talking to Chesson, Freeman was notified by telephone that a search of the plaintiffs' house was in progress; (5) Freeman at that time left the bank and travelled to the plaintiffs' house; (6) When Freeman arrived, he entered the residence pursuant to the search warrant already executed by Durham Police officers; (7) By that time, all search and seizure had taken place and Charles G. Rogers had been removed to the Durham County Jail; (8) Freeman did not participate in any search or seizure of the plaintiffs or their residence; (9) At no time did Freeman place any contraband either on the person or premises of the plaintiffs; (10) At no time did Freeman cause to be delivered any statements concerning the March 27, 1975, events to the local newspapers; (11) At all times Freeman was acting under lawful authority and in good faith. The plaintiffs' response to defendant Freeman's motion contained no counter-affidavits and failed to set forth specific facts showing that there are genuine issues for trial. The affidavits submitted by Freeman, if accepted as truthful, would absolve him of liability.[2] Although law enforcement officers enjoy no absolute immunity from suit, they may nevertheless avail themselves of the defense of good faith. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288, 296 (1967). Freeman has asserted a general good faith defense in addition to denying specific allegations. "When a motion for summary judgment is properly supported by affidavits, the adverse party may not rest upon the mere allegations of his pleadings, but 190 must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e)." Kipps v. Ewell, No. 75-1494 (4th Cir. March 3, 1976). Therefore, summary judgment in favor of the defendant Freeman is proper and will be granted. II. Motion to Dismiss Were it not for the fact that Freeman's motion to dismiss[3] also has implications for the remaining defendants, the Court would go no further than to grant the motion for summary judgment. The defendant Freeman argues in his motion to dismiss that the constitutional deprivations asserted by the plaintiffs are integrally related to presumptively valid state court proceedings and that, therefore, the plaintiffs must first attack those proceedings through appeal and habeas corpus routes. It is well settled that "[a] suit for damages under the civil rights statutes is improvidently brought when the asserted constitutional deprivation is an integral part of a presumptively valid state proceeding since the issue turns on the validity or invalidity of the conviction." Macklin v. Circuit Court, No. 75-1085 (4th Cir. Aug. 25, 1975); Alexander v. Emerson, 489 F.2d 285 (5th Cir. 1973); Denney v. Kansas, 436 F.2d 587 (10th Cir. 1971); Smith v. Logan, 311 F.Supp. 898 (W.D.Va.1970). "[T]he proper manner in which [a plaintiff in a case of this kind] may raise the alleged invasion of his constitutional rights is by a writ of habeas corpus. . . . [and] [b]efore a federal action for habeas corpus relief may proceed, . . . state court remedies must first be exhausted. 28 U.S.C. § 2254(b)." Macklin v. Circuit Court, supra. The plaintiff in Moore v. Frazier, 316 F.Supp. 318, 320 (D.Neb.1970), brought a civil rights action against a deputy sheriff, among others, alleging that the deputy intercepted confidential conversation between the plaintiff and his attorney and communicated those conversations to the prosecution, thus contaminating the plaintiff's trial. The court asked this question: May he pursue an action under the Civil Rights Act without first having his conviction invalidated by means of federal habeas corpus or pertinent state remedies? This court thinks not. To do so would permit the recovery of damages for an incarceration which at the time of the allowance of damages would be presumptively valid, because the incarceration continues and has not been attacked in any proceeding designed to release the prisoner from his incarceration. Furthermore, if the prisoner has not exhausted his state remedies for attacking his conviction, allowance of damages would effect a circumvention of the recognized doctrine of comity by which the courts of a state are permitted to test the validity of the conviction before the federal courts test such validity. It is, of course, a prerequisite to dismissal of a civil rights action of this nature that the alleged constitutional deprivations be an integral part of a presumptively valid state proceeding: The touchstone for any decision to defer a civil rights damage action which is parallel to state criminal proceedings is whether the federal court will be making rulings whose necessary implication would be to call in question the validity of the state conviction. Thus, not every situation where a section 1983 action is related to contemporaneous state proceedings will be one where completion of the state proceedings will appropriately be a prerequisite to trial of the federal claim. A denial of constitutionally protected rights may have occurred in 191 the course of the events leading up to trial, yet may only be marginally relevant, or may even be entirely irrelevant, to the trial and appeal. Guerro v. Mulhearn, 498 F.2d 1249, 1254 (1st Cir. 1974). The plaintiffs in this action have asserted a number of claims of constitutional deprivation which, with the exception of the claims of brutal assault and theft of $35,000 worth of rare coins, are integrally related to their state court criminal convictions and would "call in question the validity of the state conviction." Guerro v. Mulhearn, supra, at 1254. In light of the above-stated reasoning, those claims will be dismissed. a. The Alleged Assault The alleged assault by law enforcement officers, however, constitutes a claim of denial of a constitutionally protected right which "may have occurred in the course of the events leading up to trial, yet . . . [is] entirely irrelevant . . . to the trial and appeal." Guerro v. Mulhearn, supra, at 1254. Even if the assault did indeed occur, it would have no bearing whatsoever on the question of whether the plaintiffs committed the crimes with which they were charged. An alleged assault by law enforcement officers is a claim which is cognizable under 42 U.S.C. § 1983 and may therefore be considered by this Court. Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973). Cf. Patterson v. Leeke, 529 F.2d 516 (4th Cir. 1976). b. The Alleged Theft The claim that the defendants stole $35,000 worth of rare coins, although not integrally related to the plaintiffs' state court convictions, is nevertheless meritless as a federal civil rights claim. The plaintiffs have not claimed that the defendants misused their authority by confiscating the coins without justification. See Russell v. Bodner, 489 F.2d 280 (3rd Cir. 1973). They clearly charge that the defendants "did without warrant or legal justification steal and take rare coins valuing over $35,000 which were then in the possession of the plaintiffs and are now uncounted [sic] for by the said intruding defendants." (Emphasis added). Complaint, ¶ 6. This Court is of the opinion that even if the evidence revealed that the defendants did steal the coins, they could not have done so under the color of state law which is necessary to maintain the claim. In the absence of evidence that a state body or organization has actually authorized a theft, the act of stealing, even by a police officer on duty and in uniform, is a personal, private pursuit by that officer and is not an act committed under color of state law. The court in Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), enunciated the following criteria: Acts of police officers in the ambit of their personal, private pursuits fall outside of 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 185, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031 [1040], 89 L.Ed. 1495 [1507] (1945). However, "[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws, supra, at 111, 65 S.Ct. at 1040, [89 L.Ed. at 1507]. The fact that a police officer is on or off duty, or in or out of uniform is not controlling. "It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law." Johnson v. Hackett, 284 F.Supp. 933, 937 (E.D.Pa.1968). See Robinson v. Davis, 447 F.2d 753 (4th Cir. 1971), cert. denied, 405 U.S. 979, 92 S.Ct. 1204, 31 L.Ed.2d 254 (1972). In Johnson v. Hackett, supra, the plaintiffs charged that the defendant police officers, while in uniform and on duty, made racially insulting remarks to them and challenged them to fight. The court, in holding that the alleged acts *192 were not committed under color of law, stated: United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 [1383] (1941), laid down the rule that "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." That the acts of the officers must be under "pretense" of law was stressed in Screws v. United States, 325 U.S. 91, p. 111, 65 S.Ct. 1031, p. 1040, 89 L.Ed. 1495 [p. 1507] (1945), wherein it was noted that "acts of officers in the ambit of their personal pursuits are plainly excluded." The acts complained of here were not under "pretense" of law. They were not committed in the performance of any actual or pretended duty of policemen. They were not acts these defendants could not have committed but for the cloak of the state's authority. It is not alleged that the offer to fight was in any way related to the performance of police duties. Johnson v. Hackett, supra, at 937.[4] See Reed v. Philadelphia Housing Authority, 372 F.Supp. 686 (E.D.Pa.1974). Therefore, the plaintiffs' claim relating to the theft of $35,000 worth of rare coins will be dismissed. No defendant other than Freeman has moved to dismiss the plaintiffs' claims, and, in light of the fact that the Court has already granted Freeman's motion for summary judgment, it is not necessary to rule on his motion to dismiss. However, as explained previously, the Court is of the opinion that all of the plaintiffs' claims except for the claim of brutal assault should be dismissed. Therefore, the Court will, sua sponte, dismiss those claims for failure to state a claim upon which relief can be granted. Wright & Miller, Federal Practice and Procedure: Civil § 1357. Thus, this action will proceed only against the defendants Fuller and Sarvis and only on the basis of the claim involving the alleged brutal assault. Therefore, it is ORDERED that the defendant Freeman's motion for summary judgment be, and the same hereby is, GRANTED. It is further ORDERED that all of the plaintiffs' claims with the exception of the claim based upon the alleged brutal assault be, and the same hereby are, DISMISSED. A judgment will be entered accordingly. NOTES [1] This allegation is directed to the defendant Fuller in particular. The arrest for perjury apparently grew out of statements made by Charles G. Rogers at his trial on the drug charges. [2] It might be argued that since Freeman has failed to specifically deny that he "caused" heroin to be planted in the plaintiffs' house as charged in the complaint, the affidavits are inadequate to absolve him of all liability. However, the Court reads the assertion that Freeman acted under "lawful authority" and in "good faith" as a general denial of any such flagrant conduct. [3] Although it is not entirely clear from a reading of the motion which Rule 12(b) grounds the defendant Freeman asserts, it appears he moves that the action be dismissed pursuant to either Rule 12(b)(1) or Rule 12(b)(6). Since the disposition of the case will be the same whether the motion is considered as one pursuant to Rule 12(b)(1) or Rule 12(b)(6), the Court will consider it to be a Rule 12(b)(6) motion. [4] As previously indicated, this Court feels that a state official may indeed commit acts which are so foreign to any authority vested in him by the state that he thus steps outside of the bounds of "color of law" in committing those acts. Therefore, the Court does not agree with Professor Antieau that the reasoning in Johnson is "singularly unconvincing." J. Antieau, Federal Civil Rights Acts, Civil Practice, 54-55 (1971).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874606/	694 F. Supp. 140 (1988) Charles E. ABELS, Irene C. Abels, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY and Does 1 through 10, inclusive, Defendants. Civ. A. No. 87-2164. United States District Court, W.D. Pennsylvania. September 2, 1988. 141 James L. Crandall, Tod M. Castronovo, Hill Genson Even Crandall, Los Angeles, Cal., Paul K. Geer, Jones, Gregg, Creehan & Gerace, Pittsburgh, Pa., for State Farm Fire and Cas. Co. Daniel P. Powell, West Powell & Glass, Los Angeles, Cal., Mark B. Aronson, Pittsburgh, Pa., for Abels. MEMORANDUM OPINION COHILL, Chief Judge. Before us, for the second time, is defendant State Farm Fire & Casualty Company's ("State Farm") motion to dismiss. For the reasons set forth below, we will deny the motion to dismiss and once again order the case remanded to California. Background This case arises as a result of a fire which occurred at the plaintiffs' residence in Beaver Falls, Pennsylvania on October 19, 1981. At the time of the fire the plaintiffs were en route to California where they intended to live. Their house in Beaver Falls was for sale at the same time and was insured by State Farm under a homeowner's policy. In November, 1981, plaintiffs filed a claim for $59,300 under the policy. After investigating the fire, State Farm denied coverage, based in part on its belief that the fire was of incendiary origin and caused by the plaintiffs. Plaintiffs filed an action against State Farm and various Doe defendants in the Superior Court for the State of California, County of Los Angeles on December 2, 1982, alleging breach of duty of fair dealing and good faith, breach of fiduciary duties and unfair insurance practices. The Doe defendants were identified as employees and agents of State Farm who were responsible for processing plaintiffs' insurance claim. On February 9, 1983, State Farm removed the case to the United States District Court for the Central District of California alleging diversity of citizenship based on the complaint's description of plaintiffs as California residents, and State Farm, as an Illinois business corporation, and despite the fact that the Doe defendants were all alleged to be California residents. Thus began the storied travels of the record in this case. State Farm next moved to transfer the case to this court pursuant to 28 U.S.C. § 1404. This motion was initially denied. Plaintiffs thereafter moved to amend their complaint so that two of the Doe defendants would be named. Since these named individuals were specifically alleged to be California residents, plaintiffs moved for remand as well, arguing that the amendment of the complaint would destroy diversity. Without ruling on plaintiffs' motion, the California District Court reconsidered State Farm's motion to transfer, sua sponte, and granted the transfer in July of 1983. Plaintiffs attempted to prevent this transfer through a petition for Writ of Mandamus to the Ninth Circuit Court of Appeals but were unsuccessful. Once the case arrived here, State Farm filed a motion to dismiss based on plaintiffs' failure to comply with a one-year limitation period set forth in the insurance policy. Plaintiffs had not served State Farm with copy of their complaint until more than a year after the fire occurred, and State Farm therefore argued that plaintiffs' claims are time-barred. Applying California choice of law rules we determined that Pennsylvania law governs the dispute and that under Pennsylvania law 142 plaintiffs' claims are indeed barred. Accordingly, we granted State Farm's motion to dismiss. Abels v. State Farm Fire & Cas. Co., 596 F. Supp. 1461 (W.D.Pa.1984). Plaintiffs appealed this decision to the United States Court of Appeals for the Third Circuit, which vacated our order, holding that the subject matter jurisdiction for removal of this case to the federal courts did not exist. Abels v. State Farm Fire & Cas. Co., 770 F.2d 26 (3d Cir.1985). No decision or analysis was made as to whether our choice and application of Pennsylvania law in finding that plaintiffs' claims are time-barred was correct. Instead, the court indicated that inasmuch as the Doe defendants were alleged to be California residents in the original complaint, and because the plaintiffs' Doe allegations have sufficient basis and that plaintiffs did not appear to have been fraudulently joined in an attempt to avoid diversity, diversity was found to be lacking. Accordingly, the case was remanded to us, and we were directed to further remand this action to the California state court in which these proceedings began. On remand, State Farm moved to dismiss all of the Doe defendants, arguing that none had been served within the three year limitation period proscribed by California state law. This motion was granted by an order dated March 23, 1987. Plaintiffs filed a petition for writ of mandate, seeking review of this dismissal with the Second District of the Court of Appeals of the State of California on March 31, 1987. Petition for Removal, ¶ 9. State Farm then petitioned a second time for removal of this action on April 14, 1987. Id. at ¶ 10. On May 11, 1987, though, plaintiffs' case was remanded again to the California Superior Court, "presumably on the basis of the pending petition for writ of mandate." Id. at ¶ 11. On May 14, 1987, plaintiffs' petition for writ of mandate was denied. State Farm asserts that the Supreme Court of California also denied Plaintiffs' petition for review, by an order dated July 2, 1987. State Farm's Brief in Response to Plaintiffs' Opposition Brief, 5. A third petition for removal of this action was then filed on June 5, 1987, and a second motion to transfer was filed by State Farm on August 27, 1987. This motion was again granted by the United States District Court for the Central District of California, by order dated September 9, 1987. Thus, this action has come to us a second time with State Farm presenting the same motion to dismiss which we granted in 1984. State Farm argues in support of its present motion that our substantive analysis of its first motion was not overruled by the Third Circuit and since plaintiffs have presented no new law or evidence to supplement their previous argument, we should grant the present motion based on our previous analysis. Plaintiffs contend that subject matter jurisdiction is again improper because the California district court "abused its discretion" in transferring the case here, where plaintiffs' claims have been found to be time-barred, and also by transferring the case before a final appellate decision on the state court's dismissal of the Doe defendants was made. Plaintiffs also invite us to review the state court dismissal of the Doe defendants. Discussion As State Farm has indicated, it is beyond our authority to review the decision of the California federal district court to transfer the case here. Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir.1982) (decision by transferor court to transfer case pursuant to § 1404(a) "for the convenience of the parties and witnesses" and "in the interests of justice" is not reviewable by transferee court; opposing party should instead seek review through motion for reconsideration or by writ of mandamus to court of appeals of the circuit in which the transferor court is located). However, we may determine whether federal subject matter jurisdiction exists if such a determination has not previously been made. Indeed, the Third Circuit Court's earlier review of the instant action was addressed to the question of whether removal jurisdiction existed when this case 143 was first removed; such review was found not to interfere with the transferor court's conclusion that a transfer would serve the interests of justice and was possible because no record determination had previously been made as to whether federal subject matter jurisdiction was present. Abels, 770 F.2d at 28 n. 1 and n. 2. See Hayman, 669 F.2d at 166 (transferee court may make a determination of venue and jurisdiction when this determination has not been previously made by transferor court) (citing Hoffman v. Blaski, 363 U.S. 335, 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960)). In this case we find that the propriety of federal subject matter jurisdiction has still not been considered. The record reveals no consideration of the issue, nor has State Farm directed us to, or provided us with, any discussion thereof, despite plaintiffs' present arguments that subject matter jurisdiction does not exist. We acknowledge State Farm's belief that its second removal of this action to California federal district court was remanded because plaintiffs' petition for writ of mandate was pending. However, since defendant only "presumes" that this remand was ordered because of the pending petition, Petition for Removal, ¶ 11, we do not find that full and actual consideration was given to whether the finality of the decision to dismiss the Doe defendants allowed this action to be removed, or, indeed, whether subject matter jurisdiction was examined at all. Accordingly, we are not precluded from presently examining its existence. We also note that plaintiffs' argument that federal subject matter jurisdiction does not exist is based primarily on "abuse of discretion" claims. To the extent we inquire beyond these claims, we do so sua sponte. See Carlsberg Resources Corp. v. Cambria Savings & Loan Assn., 554 F.2d 1254 (3d Cir.1977) (federal court may address existence of subject matter jurisdiction sua sponte). State Farm, in its most recent petition for removal, based removal jurisdiction on diversity of citizenship, suggesting that dismissal of the Doe defendants had removed any nondiverse parties from the action. Petition for Removal, ¶¶ 4-12. 28 U.S.C. § 1446(b) permits removal of a case which initially could not be removed but later becomes removable by some pleading, motion or order. However, § 1446(b) has been construed in a manner which draws into question whether removal jurisdiction came into existence in this case through dismissal of the Doe defendants. Section 1446(b) has been interpreted as providing that "[i]f, ... apart from fraudulent joinder, plaintiff states a nonremovable case in his initial complaint, involuntary changes will not make the case removable; they must have been brought about by the voluntary act of the plaintiff." 1A J. Moore, B. Ringle & J. Wickler Moore's Federal Practice, ¶ 0.168 [3.-5-6] at 597 (2d Ed.1987). See also Rowe v. Johns-Manville Corp., 658 F.Supp 122 (E.D.Pa.1987) (voluntary dismissal of nondiverse defendants by plaintiff renders case removable); Cook v. Pep Boys, 641 F. Supp. 43 (E.D.Pa.1985) (where parties become diverse through dismissal of nonadverse defendant, such dismissal must have occurred pursuant to voluntary action by plaintiff in order for removal to be proper); 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3723 (2d ed. 1985) (Section 1446(b) incorporates distinction between voluntary and involuntary dismissal of nondiverse parties). Here, the dismissal of the Doe defendants was unquestionably involuntary. Plaintiffs sought to prevent this dismissal in the state trial and appellate courts of California. Thus, it appears that removal was again improper. As previously noted, an exception to this voluntary/involuntary distinction exists where the dismissed nondiverse parties were joined "fraudulently" at the inception of the case; that is, where unnecessary nondiverse defendants are named in the initial complaint to defeat removal of a case based on diversity. Cook, 641 F.Supp. at 45 (if nondiverse party is found to have been fraudulently joined in state court, joinder may be ignored for purposes of determining whether a case was properly removed to federal court). However, the 144 Third Circuit Court of Appeals has already addressed this issue in this case. In directing that this action be remanded to the California state courts, the Third Circuit found that the plaintiffs had evidenced a subjective intent to actually proceed against the Doe defendants and also that an objective basis in fact may have existed for plaintiffs' claims against the Doe defendants; therefore, the Third Circuit held that the Doe defendants were not fraudulently joined. Consequently, the fraudulent joinder exception does not apply here. We also recognize the argument that the underlying concerns of the voluntary/involuntary distinction may have been met because the California state court's decision to dismiss the Doe defendants has become final through appeal. Cook, 641 F.Supp. at 45 (the voluntary/involuntary dismissal has been justified on the ground that an involuntary dismissal of a nondiverse party might be reversed by state courts on appeal but this would be precluded by removal of the litigation prior to consideration of that issue by the appellate courts of the state). In this regard plaintiffs have argued before us that the transferor court abused its discretion in ordering this action transferred here a second time before plaintiffs' state court appeals of the order of dismissal were final. The record indicates, however, that plaintiffs' petition for writ of mandate to the California State Court of Appeals was denied, and State Farm claims the California Supreme Court has also declined to review the dismissal. Thus, reversal of the decision to dismiss the Doe defendants is unlikely, if not precluded. We conclude, though, that even if the decision to dismiss the Doe defendants has become final through appeal, such finality does not satisfy the voluntary/involuntary distinction for purposes of removal. We acknowledge that the United States District Court for the Eastern District of Pennsylvania might hold otherwise, see Cook, supra, and that other courts have found that involuntary dismissal of nondiverse defendants does not prevent removal where a state court decision to dismiss such defendants has been finalized by appeals. See LGP Gem. Ltd. v. Cohen, 636 F. Supp. 881, 883 (S.D.N.Y.1986) (it is the finality of the dismissal, not plaintiff's participation in it which determines removability). See also Quinn v. Aetna Life and Casualty Co., 616 F.2d 38 (2d Cir.1980); Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir.1967); Burke v. General Motors Corp., 492 F. Supp. 506 (N.D.Ala.1980); Saylor v. General Motors Corp., 416 F. Supp. 1173 (E.D.Ky.1976); Ennis v. Queen Ins. Co. of America, 364 F. Supp. 964 (W.D.Tenn.1973). However, the Court of Appeals for the Third Circuit has yet to provide any guidance on this point, and we, therefore, are not bound by these other decisions. Conducting our own analysis of the issue, we believe the better rule and interpretation of § 1446(b) and the voluntary/involuntary distinction is expressed in Self v. General Motors Corp., 588 F.2d 655 (9th Cir.1978) and Jenkins v. Nat. Union Fire Ins. Co. of Pennsylvania, 650 F. Supp. 609 (N.D.Ga.1986). In Self, the voluntary/involuntary distinction was recognized as having been defined by several Supreme Court decisions circa 1900. 588 F.2d at 658. Based on these decisions, the Court of Appeals for the Ninth Circuit concluded that the finality of state court proceedings which give rise to diversity are not the basis for this distinction, distinguishing the Weems and Ennis decisions, supra. Id. ("The Supreme Court, however, apparently does not rely on this basis as evidenced by Lothrop, Shea & Heywood Co. v. Interior Const. & Imp. Co., 215 U.S. 246, 249-51, 30 S. Ct. 76, 77-78, 54 L. Ed. 177, where the voluntary-involuntary rule was invoked to prohibit removal even though the state appellate process was complete.") In a well-reasoned opinion, the federal district court in Jenkins explains: Though most of the Supreme Court cases discussing the voluntary-involuntary rule contain no discussion of the rule's rationale, the few cases that do contain such a discussion point to a policy much different from the appealability/finality rationale. After summarizing the voluntary-involuntary rule cases, including *145 Powers [v. Chesapeake and O. Ry., 169 U.S. 92, 18 S. Ct. 264, 42 L. Ed. 673 (1898)] [Kansas City Suburban Belt Ry. Co. v.] Herman [187 U.S. 63, 23 S. Ct. 24, 47 L. Ed. 76 (1902)], Lothrop, Shea and Henwood Company, and [American Car & Foundry Co. v.] Kettelhake [236 U.S. 311, 35 S. Ct. 355, 59 L. Ed. 594 (1915)], the Supreme Court in [Great No. Ry. Co. v.] Alexander [246 U.S. 276, 38 S. Ct. 237, 62 L. Ed. 2d 713] stated: The obvious principle of these decisions is that, in the absence of a fraudulent purpose to defeat removal, the plaintiff may by the allegations of his complaint determine the status with respect to removability of a case, arising under a law of the United States, when it is commenced, and that this power to determine the removability of his case continues with the plaintiff throughout the litigation, so that whether such a case non-removable when commenced shall afterwards become removable depends not upon what the defendant may allege or prove or what the court may, after hearing upon the merits, in invitum, order, but solely upon the form which the plaintiff by his voluntary action shall give to the pleadings in the case as it progresses towards a conclusion. 246 U.S. at 282, 38 S.Ct. at 239-40 (emphasis added). What emerges from an examination of the Supreme Court cases on the voluntary-involuntary rule is the conclusion that the rule is not based upon an appealability/finality rationale but upon a policy favoring the plaintiff's "power to determine the removability of his case." It could perhaps be argued that the policy is antiquated or arbitrary, but the Supreme Court has never expressed dissatisfaction with the only justification it ever offered for the voluntary-involuntary rule. More importantly, whatever the actual justification for the voluntary-involuntary rule, the Supreme Court cases make it clear that finality is not synonymous with voluntariness. Otherwise, removal should have been allowed in Whitcomb, Herman, Lathrop, Shea and Henwood Company, and Alexander [cases which were recognized as having found removal improper even though involuntary dismissal of nondiverse defendants had become final on appeal]. 650 F.Supp. at 614-15 (citations and footnotes omitted). See also Strasser v. KLM Dutch Royal Airlines, 631 F. Supp. 1254 (C.D.Cal.1986). Applying the rule of Self and Jenkins, therefore, we conclude that removal was again improper in this case. It is of no consequence that the state court decision to dismiss the Doe defendants may have become finalized by appeals. Accordingly, we will direct that this action be remanded to the Supreme Court of California, County of Los Angeles. See 28 U.S.C. § 1447(c). Defendant State Farm's present motion to dismiss therefore becomes moot before us and will be denied as moot. State Farm may, of course, present the motion in California state court. An appropriate order will issue. ORDER AND NOW, to-wit, this 2nd day of September, 1988, for the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED, ADJUDGED and DECREED that defendants' Motion to Dismiss be and hereby is DENIED; IT IS FURTHER ORDERED that the above-captioned case be and hereby is REMANDED to the Superior Court for the State of California, County of Los Angeles. IT IS FURTHER ORDERED that the Clerk of Court for the Western District of Pennsylvania shall transfer the entire record of said case to said Superior Court of California forthwith.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2472278/	29 F. Supp. 2d 749 (1998) Frenanda L. JAMES, Plaintiff, v. MEDICALCONTROL, INC., Defendant. No. Civ.A. 3:98-CV-1313-L. United States District Court, N.D. Texas, Dallas Division. November 10, 1998. 750 Frenanda L. James, Dallas, TX, pro se. Douglas D. Haloftis, Craig R. Bennett, Gardere & Wynne, L.L.P., Dallas, TX, for Defendant. MEMORANDUM OPINION AND ORDER LINDSAY, District Judge. Before the court are Defendant MedicalControl, Inc.'s Motion for Summary Judgment, filed October 21, 1998; Plaintiff's Response to Defendant's Motion for Summary Judgment, filed October 28, 1998; Plaintiff's Motion For Sanction (sic) for Party's Bad Faith Use of Affidavits in Connection With Motion for Summary Judgment [FRCP 56(g)], filed October 28, 1998; Defendant MedicalControl, Inc.'s Response to Plaintiff's Motion for Sanction or, Alternatively, Reply to Plaintiff's Summary Judgment Response, filed November 2, 1998; Defendant MedicalControl, Inc.'s Motions to Dismiss, filed June 19, 1998 and October 16, 1998, and Plaintiff's Response to Defendant's Motion to Dismiss, filed October 20, 1998. After careful consideration of the motions, responses, reply, evidence submitted by the parties, and the applicable law, the court finds that there is no genuine issue of material fact present regarding any of the Plaintiff's claims.[1] Accordingly, summary judgment is hereby granted for Defendant. Plaintiff's Motion for Sanctions and Plaintiff's affidavit attached thereto also do not put any of the facts critical to Plaintiff's claims in issue and do not establish that Defendant has acted in bad faith; therefore, Plaintiff's Motion for Sanctions is hereby denied. In light of the court's ruling on Defendant's Motion for 751 Summary Judgment, Defendant's Motions to Dismiss filed June 19, 1998 and October 16, 1998 are denied as moot. I. Summary Judgment Standard Summary judgment shall be rendered when 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 judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir.1998). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Ragas, 136 F.3d at 458. Once the moving party has made an initial showing that there is no evidence to support the non-moving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586, 106 S. Ct. 1348. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support Plaintiff's opposition to Defendants' motion. Id., Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S. Ct. 98, 121 L. Ed. 2d 59 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S. Ct. 2548. II. Factual and Procedural Background Plaintiff was first employed by Medical-Control in February 1995.[2] In January 1997, Plaintiff's supervisor Stacy McGuire reprimanded him for leaving the premises to park his car and attend to other personal matters while he was "on the clock" at work.[3] From that point until Plaintiff's employment with MedicalControl was terminated, Plaintiff was informally and formally counseled by his supervisors on several occasions.[4] This counseling was for various misconduct, including misuse of the telephone, time clock violations, failure to follow supervisor's instructions, excessive absenteeism, failure to meet work deadlines, and the transmission of inappropriate, sexually explicit, and racially offensive e-mail messages in the office.[5] Despite these warnings, Plaintiff's misconduct continued, and Plaintiff was placed on probation in February 1998.[6] After he was placed on probation, Plaintiff failed to come in to work on Friday, March 6, 1998 and Monday, March 9, 1998.[7] Plaintiff admits in his affidavit that he did not come to 752 work on those days because he was ill and on paid sick leave;[8] however, Plaintiff has set forth no evidence whatsoever to indicate that he called MedicalControl to inform them of the reason for his absence. After this incident, MedicalControl decided to terminate Plaintiff's employment.[9] On March 10, 1998, Plaintiff was discharged from his job at MedicalControl by Patrick Kennedy, the Vice President for Information Management, and Donna Heaton, MedicalControl's Director of Human Resources.[10] The reason given to Plaintiff for his termination was his failure to follow company policies and procedures.[11] On June 5, 1998, Plaintiff filed suit against MedicalControl, claiming wrongful termination and conspiracy by MedicalControl. The court granted MedicalControl's Motion for More Definite Statement and ordered Plaintiff to file a more definite statement by August 14, 1998. Plaintiff filed his response to the order requiring a more definite statement ("Plaintiff's Response to an Order") on July 29, 1998. Plaintiff's Response to an Order alleges that MedicalControl terminated him in violation of the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), and conspired to interfere with his civil rights under 42 U.S.C. § 1985(2). MedicalControl now moves for summary judgment on all of Plaintiff's claims. III. Section 215(a)(3) of the Fair Labor Standards Act The Fair Labor Standards Act ("FLSA") prohibits retaliation against an employee who files a complaint, initiates proceedings, or assists in the initiation of proceedings under the FLSA. 29 U.S.C. § 215(a)(3). To prove his retaliation claim, Plaintiff must prove the same elements that are required under Title VII's three-step McDonnell Douglas test. Hashop v. Rockwell Space Operations Company, 867 F. Supp. 1287, 1299 (S.D.Tex.1994). The McDonnell Douglas test is a three-part analysis designed to determine the employer's motive behind the challenged employment decision. Id.; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). First, Plaintiff must prove a prima facie case of retaliation. If Plaintiff successfully establishes his prima facie case, MedicalControl must then rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its decision to terminate Plaintiff. If MedicalControl does so, Plaintiff must then produce evidence that MedicalControl's proffered reason for his discharge is merely a pretext, and that the real reason for his termination is an illegal retaliatory animus. Burdine, 450 U.S. at 255 n. 10, 101 S. Ct. 1089; Hashop, 867 F.Supp. at 1299-1300. To establish a prima facie case of retaliation for the exercise of a federally protected right, Plaintiff must show that (1) he engaged in a protected activity; (2) he was subjected to an adverse employment action following his protected activity; and (3) there was a causal connection between the activity and the adverse action. Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 554 (5th Cir.1997) (applying the standard in a Title VII case); Hashop, 867 F.Supp. at 1300. The FLSA protects employees who have filed a complaint or instituted a proceeding under or related to the FLSA, have testified or are about to testify in any such proceeding, or who have served or are about to serve on an industry committee. 29 U.S.C. § 215(a)(3); L & F Distributors v. Cruz, 941 S.W.2d 274, 278 (Tex.App. Corpus Christi 1996, writ denied). The FLSA only protects those employees who are asserting their statutory rights. Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 154 (5th Cir.1962); L & F, 941 S.W.2d at 278. Viewing the facts of this case in the light most favorable to the Plaintiff, there is no evidence in the record that raises a fact issue concerning whether Plaintiff engaged in 753 conduct protected by the FLSA. Plaintiff never complained to anyone that MedicalControl was violating the FLSA, or instituted any type of FLSA proceeding prior to his termination.[12] At most, Plaintiff had one conversation with his supervisor regarding his status as an exempt versus non-exempt employee, and requested a raise from MedicalControl on various occasions.[13] Plaintiff's allegation that he complained to Patrick Kennedy on several occasions regarding unspecified "unfair treatment"[14] is also insufficient to raise a fact issue regarding whether Plaintiff engaged in protected conduct, because there is no evidence in the record to suggest that these complaints had anything to do with the FLSA. Furthermore, Plaintiff has made no allegation whatsoever that he was testifying in an FLSA-based proceeding or serving on an industry committee of any type. Thus, Plaintiff has failed to establish the first prong of his prima facie case of retaliation. The second prong of Plaintiff's prima facie case of retaliation requires him to show that MedicalControl took adverse employment action against him after he engaged in activity protected by the FLSA. Although it is undisputed that MedicalControl eventually took adverse action against Plaintiff, Plaintiff has been unable to set forth any evidence showing that he engaged in protected activity prior to the adverse action. Plaintiff has failed to meet the second prong necessary to establish a prima facie case. Plaintiff is also unable to establish the third prong of his prima facie case. MedicalControl's witnesses have all stated that when they decided to terminate Plaintiff, they were unaware that he had engaged in any protected activity.[15] Plaintiff sets forth no competent summary judgment evidence to establish that these individuals knew that he had allegedly engaged in protected activity. Therefore, these individuals cannot have acted out of any retaliatory animus. Even when the court views the evidence in the light most favorable to Plaintiff, his periodic discussion of salary issues with persons at MedicalControl and his unspecified "complaints" to Patrick Kennedy[16] are insufficient to raise a fact issue regarding the third prong of Plaintiff's prima facie case: that "but for" his protected activity under the FLSA, he would not have been terminated. See Jones v. Flagship Int'l, 793 F.2d 714, 724 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S. Ct. 952, 93 L. Ed. 2d 1001 (1987); Hashop, 867 F.Supp. at 1300. Without evidence of a causal link between activity protected under the FLSA and MedicalControl's decision to terminate him, Plaintiff has failed to establish this element of his prima facie case. Even assuming that Plaintiff did successfully establish his prima facie case, the record shows that MedicalControl articulated and had several legitimate non-retaliatory reasons for terminating Plaintiff. Plaintiff, in essence, has admitted in his affidavit that he sent out e-mail with inappropriate sexual content, that he received numerous warnings from MedicalControl concerning his conduct, and that he was absent from work on March 6th and 9th, 1998, without notifying MedicalControl of the reason for his absence.[17] Plaintiff further states in his Complaint that after being cautioned not to send out provocative e-mails, he forwarded a sexually suggestive e-mail to some of his co-workers.[18] MedicalControl's stated reason for terminating Plaintiff was his inability or unwillingness to follow "company policy and procedure".[19] Defendant has therefore set forth a legitimate, non-discriminatory (non-retaliatory in this case) reason for its actions. When an employer meets this burden, the burden is on the employee to establish that the explanation for the adverse action is merely a pretext for discrimination. Armstrong v. 754 City of Dallas, 997 F.2d 62, 65 (5th Cir.1993). Plaintiff wholly fails to meet his burden that the explanation articulated by MedicalControl was pretextual. The lack of evidence supporting Plaintiff's prima facie case necessarily leads the court to find that Plaintiff has failed to establish a prima facie case of retaliation, and thus he has not carried his initial burden under McDonnell Douglas. Furthermore, there is no fact issue present concerning MedicalControl's defense that it had legitimate, non-retaliatory reasons for Plaintiff's dismissal. MedicalControl is entitled to judgment as a matter of law on Plaintiff's FLSA retaliation claim, and this claim should be dismissed. IV. Conspiracy to Interfere with Civil Rights Plaintiffs second claim alleges that MedicalControl conspired to interfere with his civil rights in violation of 42 U.S.C. § 1985(2). Specifically, Plaintiff alleges that MedicalControl interfered with his ability to file a lawsuit with the court, and also interfered with his ability to continue the case once it was filed.[20] Section 1985(2) reads as follows: § 1985. Conspiracy to interfere with civil rights (2) Obstructing justice; intimidating party, witness, or juror If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny a citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; To state a claim for conspiracy under the first part of section 1985(2), Plaintiff must establish a conspiracy of two or more people, which is causally connected to a federal court proceeding in that it directly affects or attempts to affect parties, witnesses, or jurors in a federal court. McLean v. Intl. Harvester Company, 817 F.2d 1214, 1218 (5th Cir. 1987); Bradt v. Smith, 634 F.2d 796, 800-01 (5th Cir. (Unit A) 1981). A conspiracy claim under the second part of section 1985(2) requires a showing that two or more persons conspired to obstruct justice in a state court proceeding, and that they were motivated by a race or class-based animus. Daigle v. Gulf State Utilities Co., 794 F.2d 974, 979 (5th Cir.), cert. denied. 479 U.S. 1008, 107 S. Ct. 648, 93 L. Ed. 2d 704 (1986). In the instant case, Plaintiff's only conspiracy allegation is that MedicalControl interfered with his ability to file his lawsuit with this court, and that it interfered with his prosecution of the case once it had been filed.[21] Therefore, Plaintiff's allegations fall under the first part of section 1985(2). Plaintiff's pleadings name approximately eight people who he "feels are involved" in the alleged conspiracy against him.[22] MedicalControl's summary judgment evidence shows that none of these people are past or present employees of MedicalControl.[23] Plaintiff's pleadings do not identify MedicalControl or any of its employees as co-conspirators.[24] Furthermore, Plaintiff does not state how MedicalControl interfered with his prosecution of this case. Plaintiff's allegations are conclusory and as a matter of law are insufficient to raise a fact issue concerning 755 his conspiracy claim. Eason, 73 F.3d at 1325. Plaintiff's summary judgment evidence also does not raise a fact issue concerning MedicalControl's alleged participation in a conspiracy to deprive him of his civil rights. To the contrary, Plaintiff has stated in his affidavit that he has never accused Patrick Kennedy, Stacy McGuire, or Donna Heaton of conspiring against him.[25] In any event, standing alone, Plaintiff's subjective belief about whom he "feels" is involved in the alleged conspiracy is insufficient to raise a fact issue concerning his conspiracy claim. Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1164 (5th Cir.1993). Thus, Plaintiff has failed to set forth evidence showing that a genuine issue of material fact exists in the record concerning his conspiracy claim. Plaintiff's conspiracy claim also must fail because he has made no allegation and presented no evidence that MedicalControl used force or intimidation to prevent him from attending or testifying in a federal court proceeding. All summary judgment evidence on this point is to the contrary.[26] His only conspiracy allegation is that MedicalControl interfered with his ability to file his lawsuit with this court, and that it interfered with his prosecution of the case once it had been filed.[27] Section 1985(2) is intended to protect those persons who are physically present to attend or testify in a federal court; it does not create a federal tort remedy for economic retaliation for those who pursue work-related claims. Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 758 (5th Cir.1987). As a matter of law, alleged retaliation for attempting to file a federal lawsuit is insufficient to state a claim under section 1985(2). Id. Therefore, Plaintiff's conspiracy allegations are insufficient to state a claim under section 1985(2), and MedicalControl is entitled to judgment as a matter of law on this claim. IV. Plaintiff's Remaining Allegations A liberal reading of Plaintiff's pleadings shows that Plaintiff also claims that MedicalControl carried out its alleged conspiracy and also invaded his privacy by illegally tapping his phone lines, setting up microphones to listen to him through his television and car radio, "yelling out of windows and doors", and using helicopters and planes, among other methods. Plaintiff has set forth no summary judgment evidence supporting these allegations. When MedicalControl's summary judgment evidence regarding these assertions is viewed in the light most favorable to Plaintiff, this evidence clearly supports MedicalControl's argument that it neither engaged in nor had any knowledge of these alleged activities.[28] Because Plaintiff has failed to present evidence raising a fact issue concerning these allegations, MedicalControl is entitled to judgment as a matter of law. All of Plaintiff's remaining claims should be dismissed. V. Conclusion For the reasons stated previously, Defendant's Motion for Summary Judgment is granted. Accordingly, all of Plaintiff's claims are dismissed with prejudice. Plaintiff's Motion for Sanctions is denied, and Defendant's Motions to Dismiss are denied as moot. Judgment will be entered separately for Defendant. JUDGMENT This judgement is entered pursuant to the court's memorandum opinion and order of November 10, 1998. It is therefore ORDERED, ADJUDGED, and DECREED that Plaintiff take nothing by his suit against Defendant, that this action is hereby dismissed with prejudice, and that all costs are taxed against Plaintiff. NOTES [1] Although Plaintiff did not attach evidence to his summary judgment response, the court has considered Plaintiff's affidavit, which is attached to his Motion for Sanctions, as evidence. Contrary to Plaintiff's assertion, Defendant has not acted in bad faith. That Plaintiff disagrees with Defendant's evidence does not constitute bad faith, and Plaintiff, other than his subjective belief, produces no evidence that Defendant acted in bad faith. [2] Plaintiff's Complaint ("Complaint") at Attachment A. [3] Affidavit of Patrick Kennedy ("Kennedy Aff.") at para. 4; Affidavit of Stacy McGuire ("McGuire Aff.") at para 4. [4] Affidavit of Frenanda L. James ("Plaintiff's Aff.") at paras. 8, 12, 13, and 25; Complaint at Attachment A; Kennedy Aff. at para. 5; McGuire Aff. at para. 6 and 7. [5] Id.; Complaint at Attachment A; Plaintiff's Aff. at para. 12-15. [6] Complaint at Attachment C; Kennedy Aff. at para. 6 and Exh. A; McGuire Aff. at para. 8; Affidavit of Donna Heaton ("Heaton Aff.") at para. 4 and 5. [7] Plaintiff's Aff. at para. 8; Kennedy Aff. at para. 7; Heaton Aff. at para. 6. [8] Plaintiff's Aff. at para. 8. [9] Kennedy Aff. at para. 7; Heaton Aff. at para. 6. [10] Kennedy Aff. at para. 8; Heaton Aff. at para. 7. [11] Id. [12] Kennedy Aff. at para. 10; McGuire Aff. at para. 10; Heaton Aff. at para. 9. [13] Plaintiff's Aff. at para. 24; Complaint at Attachments A and E; McGuire Aff. at para. 3. [14] Plaintiff's Aff. at para. 9. [15] Kennedy Aff. at para. 10; McGuire Aff. at para. 10; Heaton Aff. at para. 9. [16] McGuire Aff. at para. 3; Plaintiff's Aff. at paras. 9 and 24; Complaint at Attachments A and E. [17] Plaintiff's Aff. at paras. 8, 12, 13 and 19. [18] Complaint at Attachment A, items q and s. [19] Kennedy Aff. at para. 8. [20] Plaintiff's Response to an Order, Section II.B. [21] Id. [22] Complaint at Attachment B. [23] Kennedy Aff. At para. 11; McGuire Aff. at para. 11; Heaton Aff. at para. 10. [24] Complaint at Attachment B. [25] Plaintiff's Aff. at para. 10. [26] Kennedy Aff. at para. 12; McGuire Aff. at para. 12; Heaton Aff. at para. 11. [27] Plaintiff's Response to an Order, Section II.B. [28] Kennedy Aff. at para. 11; McGuire Aff. at para. 11; Heaton Aff. at para. 10.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2611847/	884 P.2d 30 (1994) MOUNTAIN CEMENT COMPANY, a Wyoming Joint Venture or Partnership, Appellant (Defendant), v. Millard C. JOHNSON and Deanna J. Johnson, Appellees (Plaintiffs). No. 93-227. Supreme Court of Wyoming. October 28, 1994. Rehearing Denied November 22, 1994. 31 Philip A. Nicholas and Stephen N. Goodrich, Nicholas Law Offices, Laramie, for appellant. Cary R. Alburn, III, Laramie, for appellees. Before GOLDEN, C.J., and THOMAS, CARDINE,[] MACY,[*] and TAYLOR, JJ. GOLDEN, Chief Justice. Appellant Mountain Cement Company appeals from a partial summary judgment which terminated an easement across land belonging to Appellees Millard C. Johnson and Deanna J. Johnson. We reverse the partial summary judgment to appellees and remand for further proceedings consistent with this opinion. Mountain Cement presents this issue: Partial Summary Judgment for appellees was improper because: (1) if the December 31, 1981 Agreement and Easement is ambiguous then genuine issues of material fact exist and neither party is entitled to summary judgment; or (2) if the Agreement and Easement is unambiguous the trial court has rewritten the agreement under the guise of interpretation and appellant rather than appellees is entitled to judgment as a matter of law. Johnson restates the issue as: Whether the District Judge correctly interpreted, that the December 31, 1981, Agreement and Easement was terminated by its own terms, because of the actions or inactions of Appellant or Appellant's predecessors in interest? FACTS Before 1981, Mountain Cement's predecessor, Monolith Portland Cement Company, owned the west half of Section 25, a parcel of land located south of Laramie, Wyoming, in Albany County. The east half of Section 25 was owned by Mrs. Johnson and her exhusband, William Despain. Monolith had operated a quarry on the land it owned for a long period and later began operating a quarry east of the Section 25 land owned by the Despains. In 1981, Monolith took steps to secure access to the latter quarry. By limited warranty deed, Monolith conveyed the west half of Section 25 to the Despains reserving two roads to Monolith, a north-south road and an east-west road. At the same time, the Despains, by Agreement and Easement, granted Monolith an easement across the east half of Section 25. Monolith built a road across both sections of the land that connected the quarry east of Section 25 to its plant west of the land. The easement agreement set out royalty payments for material transported over the east-west road. The parties also signed a royalty sales agreement setting out royalty payments for the materials hauled in or out along the north-south road in the west one-half of the section. In 1986, Mountain Cement acquired Monolith's interest and because of contested mining permits suspended most hauling on the easement road. Mountain Cement continued to pay the semi-annual minimum royalties, as provided for in the Agreement and Easement and contends it continued to use and maintain the road. In 1992, the Despains divorced, and Mrs. Despain received Section 25. When she married Millard Johnson, both became owners 32 of Section 25 and began plans to subdivide the land. Mrs. Johnson notified Mountain Cement that she was terminating the easement across the east half of Section 25 for nonuse. She sought, and the district court granted in the form of a partial summary judgment, a declaratory judgment that the easement was terminated. The district court also granted a partial summary judgment in favor of Mountain Cement and ruled that its two rights of way located on the west half of Section 25 were not terminated. That ruling was not appealed. DISCUSSION Standard of Review Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. WYO.R.CIV.P. 56(c). We review a summary judgment in the same light as the district court, using the same materials and following the same standards. "We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record." Four Nines Gold, Inc. v. 71 Constr., Inc., 809 P.2d 236, 238 (Wyo.1991). At issue in this case is the language of paragraphs two and four of the Agreement and Easement (document): 2. The said easement shall continue for so long a period as Grantee shall, in Grantee's sole discretion, require the road to enable Grantee to transport material to Grantee's aforementioned plant, and the said easement shall run with the land, and any subsequent conveyances of any interest in the land over and across which the said easement runs shall be subject to the said easement. 4. Grantee shall file for the record in the office of the County Clerk and ex-officio registrar of Deeds of the County of Albany, State of Wyoming, a release of the easement herein granted within thirty (30) days following the date on which Grantee has not used the road for one continuous twelve month period, and the failure of the Grantee to so file a release shall entitle Grantors, on demand made by them on Grantee, to be paid as liquidated damages for any and all loss occasioned Grantors by such failure the sum of Two Thousand and No/100 ($2,000.00) Dollars. Grantee shall within a reasonable time following Grantee's non-use of the road for such continuous twelve month period re-seed the road and fill in and re-seed the borrow pits created in the construction and maintenance of the road. Both parties agree the language of the contract is unambiguous. However, both offer completely different explanations of what that clear meaning supposedly is. Mountain Cement (grantee) contends the language of paragraph two clearly creates an easement terminable only at its sole discretion and claims paragraph four merely provides for damages if certain procedures do not occur following that termination. The Johnsons (grantor), however, contend that the paragraphs represent two methods of terminationone at Mountain Cement's discretion and one at the Johnsons' discretion if there is nonuse for a continuous twelve month period. Our basic purpose in construing or interpreting a contract is to determine the intention and understanding of the parties. Rouse v. Munroe, 658 P.2d 74, 77 (Wyo. 1983). In construing a written agreement, we must derive the meaning of the instrument from its language if the terms are clear and unambiguous. Tibbets v. P & M Petroleum Co., 744 P.2d 651, 652 (Wyo.1987). When the language is clear, we look no further than the four corners of a contract to determine the intent of the parties. Id. at 652. "The contract as a whole should be considered, with each part being read in light of all other parts." Rouse, at 77. If the terms are clear, then it falls within the province of the court to construe the instrument as a matter of law. Tibbets, at 653. Mindful that the document should be considered as a whole with the parts fitted harmoniously, it appears that each of these paragraphs has a different principal object. The principal object of paragraph two is to describe the nature and term of the easement, 33 i.e., "The said easement shall continue for so long a period as Grantee shall, in Grantee's sole discretion, require the road to enable Grantee to transport material * * and the said easement shall run with the land * * ." In other words, this language describes the easement as one of indefinite duration solely within the grantee's power to determine. Paragraph four, on the other hand, has as its principal object simply the method by which the grantee will effect the release of the easement and the consequences flowing from the grantee's failure to use that method. Also, under this provision, the easement-releasing grantee is obligated to re-seed the easement area. In this context, the parties have identified a point in time to be used as a reference point for the effectuation of the objects, viz., the grantee shall file the easement release "within thirty days following the date on which grantee has not used the road for one continuous twelve month period"; and the grantee shall re-seed "within a reasonable time following grantee's non-use of the road for such continuous twelve month period." Seeing the easement document in light of the objects of the two paragraphs in question, we find the document is unambiguous and the indefinite term of grantee's use is within the grantee's power of determination, that is, as long as grantee requires the road to enable it to transport material to its plant. Consequently, it cannot be found that the parties intended to use paragraph four's language as a qualifier to the term clearly set forth in paragraph two. We reverse the district court's grant of partial summary judgment to the Johnsons and remand for further proceedings consistent with this opinion. THOMAS, J., files an opinion concurring specially. CARDINE, J., files a dissenting opinion. MACY, J., files a dissenting opinion in which CARDINE, J., joined. THOMAS, Justice, concurring specially. I find additional insight into the proper construction of the Agreement and Easement by looking to the language of paragraph eight of that document and the manner in which it was followed by the parties. That paragraph of the Agreement and Easement reads: 8. Grantee shall as part of the consideration for the easement herein granted pay Grantors the sum of one and one-half cents ($.015) per ton of material hauled by Grantee (or by a contractor or contractors employed by Grantee) over the road. Payment of the royalties herein provided shall be made by Grantee to Grantors monthly, the first such payment to be made one month and ten days following the hauling of the first load of material over the road, and subsequent payments to be made to Grantors by Grantee at monthly intervals thereafter. It is specifically provided, however, that in the event that the royalties so paid Grantors by Grantee for any six month period as herein defined, to-wit: the first six month period to end six months after the date of the first such monthly payment, and each subsequent six month period to end at six month intervals thereafter; prior to Grantee's cessation of use of the road for a period of twelve consecutive months total less than One Thousand and No/100 ($1,000.00) Dollars, Grantee shall pay Grantors the difference between the total monthly royalties so paid by Grantee to Grantors during such six month period and One Thousand and No/100 ($1,000.00) Dollars. There appears to be no question that these payments were made in the amount of $1,000.00 each six months since 1986. Under the clear language of paragraph eight those payments were only to be made "prior to Grantee's cessation of use of the road for a period of twelve consecutive months * ." During those years, Mountain Cement was not hauling materials to its plant over the easement, but it was using the road for other purposes and maintaining it. Consequently, there was not a total cessation of use such as paragraph four of the Agreement and Easement seems to contemplate, and the parties 34 manifested their accord in that regard by the payment and receipt of the minimum royalties. It is clear to me that up until the commencement of this action the parties understood their agreement to permit Mountain Cement to not use the road to haul materials to its plant so long as the minimum royalty was paid. Since there was some use of the road and those payments were made, the Agreement and Easement did not terminate under paragraph four. The only other possibility is termination under paragraph two, and it is clear that Mountain Cement did not determine, in its sole discretion, that the road was no longer useful to transport material to its plant. The result of the majority opinion is entirely consistent with such a resolution, and I am in full accord with that disposition. CARDINE, Justice, Retired, dissenting. I also believe the agreement is unambiguous. It provides that the grantee will retain the easement as long as "Grantee shall * * * require the road * * * to transport material." That is a fair reading of the parties' agreement. It is the only one that is grounded in common sense. When material is no longer being transported, the road is not required "to transport material"; and if that situation continues for twelve months, the easement terminates. Both the majority of this court and this dissenting justice, however, find the agreement unambiguous. Each concludes its meaning to be totally contrary to the other's position. Perhaps, then, this is a classic case of an ambiguous agreement. If so, then the court must ascertain the intent of the parties to arrive at a correct disposition of the case. The easement will never terminate under the opinion as now written by the court, for appellant only need claim that it needs the easement to transport material and never thereafter transport material. It boggles the mind that the court can conclude that this is what the parties intended when they made their agreement. At a minimum, the summary judgment should be reversed and evidence taken to ascertain the parties' intent. MACY, Justice, dissenting, with whom CARDINE, Justice (Retired), joins. I dissent. Although the majority concedes that the Agreement and Easement should be considered as a whole, it has failed to consider paragraph 1: 1. Grantors do hereby for themselves, their heirs, executors, administrators, successors and assigns grant, assign and set over to the Grantee[,] its successors and assigns an easement for a right of way for a road for the purpose of hauling material to Grantee's plant in Albany County, Wyoming.. . . As stated in paragraph 1, the purpose of the easement was to permit Mountain Cement to haul material to its plant. According to paragraph 2, the easement continued for as long as Mountain Cement required the easement to enable Mountain Cement to transport material to its plant. Paragraph 4 required Mountain Cement to record a release of the easement within thirty days after it failed to use the easement for twelve continuous months. Mountain Cement was also required to reclaim the easement area within a reasonable period of time. The express purpose of the damages provision of paragraph 4 was to compensate the Johnsons in the event that Mountain Cement failed to record the release of the easement and to reclaim the surface of the land. The terms of the damages provision did not permit Mountain Cement to revive the easement by paying the stipulated sum after the easement had been terminated. Mountain Cement admitted that, for at least twelve continuous months, it had not used the easement to haul material to the plant. The easement automatically terminated after twelve continuous months of nonuse. I would affirm the partial summary judgment in favor of the Johnsons. NOTES [] Retired July 6, 1994. [*] Chief Justice at time of consideration.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2611848/	884 P.2d 1134 (1994) 77 Hawai'i 358 BOARD OF DIRECTORS OF the ASSOCIATION OF APARTMENT OWNERS OF the DISCOVERY BAY CONDOMINIUM, Plaintiff-Appellant, v. UNITED PACIFIC INSURANCE COMPANY, a foreign corporation, Defendant-Appellee, and G.W. Murphy Construction Corporation, a Hawai`i corporation, AC Products, Inc., a foreign corporation, W E Painting, Inc., a Hawai`i corporation, John Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, Doe Joint Ventures 1-10, and Doe "Non-Profit" Corporations 1-10, and Doe Governmental Entities 1-10, Defendants. No. 15584. Supreme Court of Hawai`i. December 2, 1994. Colleen H. Sakurai and Randall K. Sing of Sakurai & Sing, Honolulu, for plaintiff-appellant. James H. Lawhn of Oliver, Lee, Lawhn, Ogawa & Lau, Honolulu, for defendant-appellee United Pacific Ins. Co. Michael R. Marsh and Catherine H. Lesica of Case & Lynch, Honolulu, for defendant-appellee G.W. Murphy Const. Co., Inc. Before MOON, C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and SHIMABUKURO, Circuit Judge, in place of KLEIN, J., recused. MOON, Chief Justice. Plaintiff-appellant Board of Directors of the Association of Apartment Owners of the Discovery Bay Condominium (the AOAO) appeals from a circuit court order granting summary judgment in favor of defendantappellee United Pacific Insurance Company (UPIC) and defendant G.W. Murphy Construction Company (Murphy). On appeal, the AOAO contends that genuine issues of material fact exist regarding the scope of damages covered by the maintenance bond, issued by UPIC to the AOAO, for the work performed by Murphy, thus precluding summary judgment. The AOAO urges this court to rule that a cause of action sounding in tort can arise against a surety for failure to properly investigate a claim that is wholly independent of its liability on the underlying bond. Because we decline to create or extend surety liability when liability on the underlying bond is absent, we reject the AOAO's contentions and affirm the trial court's grant of summary judgment in favor of UPIC. 1135 I. BACKGROUND The AOAO contracted with Murphy, the general contractor, to perform repairs at the Discovery Bay Condominium, which included painting the building with "Wallflex," a water-resistant painting material. UPIC issued performance and maintenance bonds to the AOAO on the work to be performed by Murphy. Under the terms of the performance bond, the AOAO was assured that, in the event Murphy failed to promptly and carefully perform the contract, UPIC, as surety, would be bound to honor Murphy's performance. The maintenance bond also guaranteed against all defects in workmanship and materials for a five-year period. Murphy completed the work; however, a year later, the paint on the building exhibited a streaky, dirty appearance due to air particles and soot sticking to the Wallflex product. The elastic, waterproof nature of the paint made cleaning untenable, and the AOAO thereafter filed a claim with UPIC on the performance and maintenance bonds. UPIC conducted a preliminary investigation of the claim and denied payment of the AOAO's claims on the ground that the problems complained of were not covered by the bonds. In 1988, the AOAO filed a complaint against UPIC, alleging breach of the performance and maintenance bonds, punitive damages for bad faith, and treble damages for unfair and deceptive trade practices. The action was subsequently stayed pending arbitration. The parties to the arbitration included the AOAO, Murphy, UPIC, W E Painting, Inc., the painting subcontractor, Brewer Chemical Corporation, the supplier of Wallflex, and AC Products, Inc., the manufacturer of Wallflex. The arbitrator's Decision and Award (the Decision) sets forth the issues submitted to arbitration for determination and those that were excluded, which are not disputed. The Decision states in pertinent part: [T]he surety, UPIC, and the [AOAO] agreed to submit the [AOAO's] breach of contract claims to this arbitration to the extent that such claims asserted that the surety was in breach of its obligations under the Performance Bond and/or Maintenance Bond issued in connection with the Discovery Bay project. The Decision at 4. The arbitrator, in a comprehensive and well-reasoned decision found that [i]t was clear from the evidence that the quality of the workmanship, services or labor furnished by the General Contractor and Painting Subcontractor in applying the Wallflex product was of good quality. When the Discovery Bay Condominium was recoated with Wallflex, the work, in appearance, was excellent and even described by some as beautiful. The Decision at 16. The arbitrator ultimately ruled that Murphy was not in breach of its contractual obligations to the AOAO and that UPIC, as surety, was not in breach of its obligations to the AOAO under the performance bond. Relative to the maintenance bond, the arbitrator stated: With regard to the Maintenance Bond, the issue is whether the scope of the Maintenance Bond is broader than the contractor's obligation to provide materials which are of good quality and free of faults and defects. If the specified materials are provided by the General Contractor consistent with the contract requirements, has the Surety guaranteed that the materials are also not deficient with regard to suitability? The Maintenance Bond guarantees the obligations of the General Contractor [and] NOT those of the architect. It is determined that the intention of the [AOAO], General Contractor and Surety was to procure or provide the additional assurance of the Surety's performance in the event the General Contractor breached its contractual obligations. The arbitrator finds insufficient evidence to establish any intention on the part of the [AOAO] or the Surety nor any evidence of actual bargaining for the Surety to guarantee the aesthetic performance of the specified coating material or the performance of the Architect. The arbitrator concludes that the "defect" in the aesthetic performance of the elastomeric coating is not the responsibility 1136 of the General Contractor.[[1]] Finding no evidence of poor workmanship in the execution of the work and determining that the Contractor did not provide defective (in the sense of faulty) materials, it is determined that UPIC is not in breach of its contractual obligations to the [AOAO] pursuant to the Maintenance Bond. The Decision 34-35 (emphasis in original). Following the issuance of the arbitrator's decision, the AOAO did not move to vacate, modify or correct the Decision, pursuant to Hawai`i Revised Statutes (HRS) chapter 658, Arbitration and Awards. Thereafter, pursuant to UPIC and Murphy's motion, the circuit court issued its order confirming the Decision. Subsequent to the confirmation of the Decision, UPIC and Murphy sought summary judgment on the balance of the AOAO's claims premised on UPIC's alleged failure to investigate. The trial court granted the motion, noting that the AOAO had not raised any genuine issues of material fact as to why the AOAO would be able to obtain a judgment for bad faith or for unfair and deceptive acts when the underlying bond had not been breached and thus no liability attached to UPIC. Accordingly, the circuit court entered an order granting summary judgment in favor of UPIC and Murphy; the AOAO's timely appeal followed. II. STANDARD OF REVIEW Summary judgment is proper where there is no genuine issue as to any material fact and the moving party clearly demonstrates that it is entitled to judgment as a matter of law. Hawaiian Holiday Macadamia Nut Co. v. Industrial Indem. Co., 76 Hawai`i 166, 168, 872 P.2d 230, 232 (1994). This court applies a standard identical to that utilized by the trial court in its consideration of the motion. Id. The evidence is viewed in the light most favorable to the non-moving party. Wong-Leong v. Hawaiian Independent Refinery, Inc., 76 Hawai`i 433, 439, 879 P.2d 538, 544 (1994). III. DISCUSSION On appeal, the AOAO contends that summary judgment was improper because genuine issues of material fact exist regarding the scope of the maintenance bond and UPIC's alleged improper investigation. The 1137 AOAO argues that, although the performance bond was limited to the contractor's duties, the maintenance bond extended to all work performed under the contract. Thus, the AOAO asserts that UPIC's obligation under the maintenance bond incorporated the work done by the architect as well as the manufacturer and supplier of the Wallflex product. Because the AOAO is bound by the arbitrator's decision, we find this argument to be without merit. The arbitrator specifically ruled that the scope of the maintenance bond was limited to the liability of the general contractor. The arbitrator was equally explicit in delineating the liability of UPIC under the bond so as to exclude liability for the aesthetic defects claimed by the AOAO. The AOAO also argues that the circuit court erred in granting summary judgment because UPIC's principal duty was to the AOAO, as the obligee, and not to Murphy, the principal. The AOAO maintains that, because UPIC did not properly investigate the AOAO's claim on the maintenance bond, it committed a tort; therefore, the AOAO is entitled to relief separate from and notwithstanding the arbitrator's denial of relief on the bond itself. We disagree. It is well established that an insurer has no duty to investigate where the claim is excluded by the clear and unambiguous language in the insurance policy. Security Ins. Co. of Hartford v. Wilson, 800 F.2d 232, 235 (10th Cir.1986) (citation omitted). In O'Malley v. United States Fidelity and Guar. Co., 602 F. Supp. 56 (S.D.Miss.), aff'd, 776 F.2d 494 (5th Cir.1985), the court held that an insured cannot recover for the tort of a bad faith failure to investigate and pay losses incurred by the insured where the insured did not prevail on its claim that the insurers were liable on the underlying policies. Id. at 59. The court in O'Malley refused to allow a separate action where the property damage losses incurred by the plaintiffs were already deemed to have been excluded from their insurance policy in a bifurcated trial. Id. at 59-60; see also Schoonover v. West American Ins. Co., 665 F. Supp. 511, 516 (S.D.Miss. 1987) ("Although styled a tort, an action for bad-faith breach of contract is created by contract and requires proof of a breach of contract."); Szumigala v. Nationwide Mutual Ins. Co., 853 F.2d 274, 280 (5th Cir.1988) (where insurer has reasonably arguable basis for denying a claim, its conduct cannot constitute bad faith); Guy v. Commonwealth Life Ins. Co., 894 F.2d 1407, 1411 (5th Cir. 1990) (insurer will not be subject to punitive damages if it had legitimate or arguable reason for failing to pay claim); R.I. Hosp. Trust Nat. Bank v. Ohio Cas. Ins. Co., 789 F.2d 74, 81 (1st Cir.1986) (when surety's responsibility is to secure an obligation of the principal, extinction of obligation logically should extinguish surety's responsibility no matter who seeks to assert the claim). We adopt the law expressed in these cases as consistent with our interpretation of a surety's liability to its obligee on all bonds, including maintenance bonds. The AOAO argues that surety contracts differ from insurance contracts because, unlike an insurer, the surety owes its duty directly to the obligee and not the insured; therefore, a tort claim, based on inadequate investigation, can be asserted against a surety even without liability on the underlying bond. The AOAO's assertion is without merit. The AOAO cites to no authority, and we have found none, that recognizes a cause of action against an insurer or surety for failure to investigate where there is determined to be no contractual obligation under the policy or bond. Clearly, the surety owes a duty of good faith and fair dealing to both the principal and the obligee on the bond. Dodge v. Fidelity & Deposit Co. of Md., 161 Ariz. 344, 346-47, 778 P.2d 1240, 1241-42 (1989). If the surety pays too quickly to the obligee, it may invite liability claims from the principal. Conversely, if it refuses to pay anything pending an arbitration or judicial proceeding to determine its liability on the bond, the surety may incur liability to the obligee for failing to act promptly on a valid claim. See generally Hart, Bad Faith Litigation Against Sureties, 24 Tort & Insurance Law Journal 18, 19 (1988). This dual responsibility explains the surety's careful examination 1138 of the nature of all presented claims before acting upon them. Although the surety is not excused from intentionally delaying the processing of valid claims, it is not unreasonable for the surety to determine whether it is legally bound to pay such claims before it expends the time and expense to investigate their factual validity. IV. CONCLUSION Because UPIC is not liable on the maintenance bond, the AOAO has no cause of action against it; thus, UPIC and Murphy are entitled to summary judgment as a matter of law. Consequently, we need not address the issue whether the AOAO raised a genuine issue of material fact regarding the efficacy of the investigation conducted by UPIC, or whether Hawai`i will recognize a tort action against a surety for its bad faith failure to investigate a claim. Accordingly, we affirm the trial court's grant of summary judgment in favor of UPIC and Murphy. NOTES [1] In his decision, the arbitrator reasoned: In this case the General Contractor has warranted that its work (labor and materials) will be of good quality and free from faults and defects and in conformance with the construction documents. "Defects" can be distinguished between products that are faulty or not as specified or the result of a "bad batch." This definition of defect can be distinguished from the situation where a material in "unsuitable" or inappropriate for the applied use. In his book Sweet on Construction Industry Contracts, Section 13.6, Professor Sweet distinguishes such faulty materials from defects due to the use of unsuitable or inappropriate material. If the contractor is ordered or required to use a specific brand of material, the contractor should not bear responsibility for a defect caused by unsuitable material. However, if the contractor agreed to meet performance specifications i.e. that a particular construction system installed will meet specified performance characteristics, then the contractor, having been given a choice over the system to be used, can be held responsible for failure of the selected system to meet performance specifications. If the contractor is given the free choice to use whichever brand the contractor selects, the contractor may again be held responsible for breach of warranty because the contractor has been given the design choice and represents that it has the skill to make the proper choice and has not produced a successful outcome. In this case extensive effort and evidence was offered trying to establish that the Wallflex product to the Discovery Bay Condominium was a bad batch or not the Wallflex III generation of product. By a clear preponderance of the evidence, however, the Wallflex material applied at the Discovery Bay Condominium is determined to be Wallflex III, the intended and specified product called for in the construction documents. The arbitrator determines that the defect with regard to the Wallflex III material as applied at the Discovery Bay Condominium is of the category described by Professor Sweet as "unsuitable." In that context, it is a design defect, not the responsibility of the General Contractor or the Painting Subcontractor. Whether the Supplier or the Manufacturer are to be responsible for the unsuitability of the product or whether the Association's Architect should be responsible for the failure of Wallflex to perform acceptably as an aesthetically attractive exterior coating are issues not submitted to this arbitration. The Decision at 26-28 (emphasis in original).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874543/	268 B.R. 286 (2001) In re COMPUSPEAK, INC., Debtor. Compuspeak, Inc., Plaintiff, v. Dennis Simmons, Defendant. Bankruptcy No. 98-20141. Adversary No. 99-6065. United States Bankruptcy Court, D. Kansas. August 16, 2001. 287 Paul M. Hoffman, Morrison & Hecker, L.L.P., Kansas City, MO, for Unsecured Creditors Committee. Max Jevinsky, Berman, DeLeve, Kuchan & Chapman, L.C., Kansas City, MO, for Compuspeak, Inc. F. Stannard Lentz, Lentz & Clark, P.A., Overland Park, KS, for Dennis Simmons. MEMORANDUM OPINION JOHN T. FLANNAGAN, Bankruptcy Judge. Compuspeak, Inc.'s reorganization plan retained the existing Unsecured Creditors Committee to enforce the debtor's avoidance actions after confirmation of the plan. The plan also named a law firm to bring the actions as special counsel for the Committee. After the court confirmed the plan, a member of the law firm brought this avoidance action. But the Committee had failed to obtain a court order approving the attorney as a professional. When defense counsel discovered this omission at the commencement of trial, he moved to dismiss the action, claiming it was unauthorized.[1] This case presents two questions: First, should the Committee have obtained the court's approval of its special counsel as a professional to conduct post-confirmation litigation? The court rules that the Committee should have obtained an order approving its special counsel as a professional because (1) the plan language does not dictate otherwise, (2) the plan language does not adequately disclose to plan voters the employment terms of special counsel, and (3) the plan language does not inform the voters that special counsel is exempt from showing lack of adverse interest. Second, should the complaint be dismissed because the Committee did not obtain an order approving its special counsel 288 as a professional? The court rules that although the Committee should have obtained approval of its special counsel as a professional, the Committee did consent to the filing of the action by special counsel; therefore, the action should not be dismissed. Background Shortly after Compuspeak filed its voluntary Chapter 11 petition in January 1998, the United States Trustee appointed an Unsecured Creditors Committee, and the court approved Paul M. Hoffman as counsel for the Committee. After a year of negotiations, Compuspeak proposed a plan of liquidation. All creditor classes voted in favor of the plan, and the court confirmed it on March 17, 1999. The confirmed plan continued the existence of the Unsecured Creditors Committee, with its counsel, and granted the Committee the "right to seek appointment of special counsel"[2] to pursue post-confirmation avoidance actions. The plan also authorized the Committee to employ the law firm of Berman, DeLeve, Kuchan & Chapman, L.C., as that special counsel. In July 1999, Max Jevinsky, a member of the Berman firm, filed this adversary proceeding against insider Dennis Simmons in the name of the debtor.[3] The complaint charged Mr. Simmons with receiving a prepetition fraudulent conveyance. F. Stannard Lentz entered his appearance as counsel for Mr. Simmons. After scheduling the cause for trial, the court noticed that the court file did not contain an order approving Mr. Jevinsky as a professional to represent the Committee. On the morning of trial, wondering whether this omission might adversely affect Mr. Jevinsky's later claim for attorney's fees, the court asked him why he had not been approved as a professional. Mr. Jevinsky expressed surprise and suggested that if he had not been approved, it was because the Committee's counsel, Mr. Hoffman, had overlooked obtaining the order. At this point, F. Stannard Lentz lodged an oral motion to dismiss the adversary action, claiming it was unauthorized because Mr. Jevinsky had not been approved as a professional. This motion caused the court to abort the trial and schedule a status conference. At the status conference, Paul Hoffman appeared for the Committee. He pointed out that the confirmed plan authorized the employment of Berman, DeLeve, Kuchan, & Chapman, L.C., as special counsel to conduct post-confirmation litigation against insiders and that Max Jevinsky is a member of that firm. Since Mr. Jevinsky is a member of the firm authorized in the plan, and the confirmed plan is entitled to res judicata effect, Mr. Hoffman argued that the Committee was not required to obtain approval of Mr. Jevinsky as a professional. The confirmed plan being entitled to res judicata effect, in his view, distinguished this case from the usual pre-confirmation situation in which special counsel can serve the estate only after court approval as a professional under § 327 and Rule 2014. To give the question full consideration, the court requested briefs. Counsel furnished the briefs as part of a pretrial order, and the court took the matter under advisement. 289 Overview of the Plan The structure of the plan is uncomplicated. First, the plan calls for the liquidation of the estate in a manner analogous to a Chapter 7 liquidation, i.e., the estate remains in existence until distribution. The plan creates a Distribution Fund to be funded from: (1) all future recoveries from avoidance actions, (2) existing property of the estate, and (3) the proceeds of future estate property sales. Second, all recoveries of proceeds from sales and from avoidance actions, net of fees and expenses, are to be deposited into the Distribution Fund before any payment to creditors takes place. When avoidance litigation is completed, the contents of the Distribution Fund are to be paid to the unsecured creditors. Thus, the plan will not be substantially consummated until distribution. Third, the debtor and the Committee are to share the avoidance action duties. The debtor is to prosecute actions against both insiders and non-insiders while the Committee is to sue insiders if the debtor elects not to do so. Fourth, the post-confirmation attorneys' fees of counsel for the debtor and the Committee are to be based on customary hourly rates. These fees, however, are to be paid without court approval unless the debtor or the Committee disputes the reasonableness of the fees and expenses. Fifth, although special counsel is to represent the Committee, the plan does not mention attorney's fees or any contingent fee arrangement for special counsel. Sixth, and finally, the plan expressly reserves jurisdiction of the court over the post-confirmation avoidance litigation to be conducted by special counsel. The Controlling Plan Language Turning now to the language of the plan controlling this decision, the court notes that certainly, as Mr. Hoffman argues, a final order confirming a Chapter 11 plan and the plan terms approved by that order are entitled to res judicata effect.[4] But that effect must not extend beyond the true meaning of the plan language. That meaning informs the decisions of those interested parties voting on confirmation of the plan. The court concludes that here the plan language conveys an intent to have special counsel approved by the court according to the procedures customarily followed in the period between the filing of a petition and the confirmation of a plan. Sections 5.2 and 5.3 of the plan set forth the language controlling this decision. These sections declare that the existing Creditors Committee is retained, subject to the duties outlined in § 1103, until distribution. The Committee's retention is for the purpose of prosecuting post-confirmation avoidance litigation against insiders, such as Dennis Simmons, if the debtor itself elects not to pursue those causes of action. 5.2 Survival of Committee. The Committee shall continue to exist after confirmation of the Plan until completion of distributions under the Plan. The Committee shall continue to be represented by its existing counsel, and shall have the right to seek appointment of special counsel for the purpose of pursuing any causes of action specified in Section 5.3 below. In this regard, the Committee shall be and hereby is authorized to employ the law firm of Berman, DeLeve, Kuchan and Chapman, L.C. on the terms identified in that certain letter dated October 27, 1998. The Committee 290 shall further retain all of the powers and duties of a Committee under Section 1103 of the Code. 5.3 Liquidation of Causes of Action. The Debtor and the Committee shall communicate and cooperate in the liquidation, by settlement or litigation, of all causes of action the Debtor may have against any entity. The Committee will pursue and liquidate any causes of action the Debtor may have against or related to insiders which the Debtor's counsel elects not to pursue. . . . "The Right to Seek Appointment" The second sentence of Section 5.2 states, "The Committee shall continue to be represented by its existing counsel, and shall have the right to seek appointment of special counsel for the purpose of pursuing any causes of action specified in Section 5.3 below."[5] The significant phrase in this sentence is "the right to seek appointment of special counsel." This expression is not favorable to the Committee since it is difficult to imagine from whom the Committee could "seek" appointment of special counsel if it were not from the court. To creditors and other interested parties, this plan language suggested that the Committee would follow the normal employment procedure requiring a professional to show disinterestedness and lack of adverse interest. And nothing in the language suggests that the mere confirmation of the plan would act to appoint special counsel free from court supervision. In this case, the confirmation of the plan certainly "appointed" the Unsecured Creditors Committee as estate representative to retain the claims or interests of the estate for post-confirmation enforcement. No one has claimed otherwise. And it is evident that under § 1123(b)(3)(B), as interpreted by the 1989 Tenth Circuit decision of In re Sweetwater,[6] confirmation of the plan alone acted to "appoint" the Committee as such a representative. But there is no comparable Code section sanctioning the appointment of special counsel for a retained Unsecured Creditors Committee by merely confirming a plan. Nor can the language of § 1123(b)(3)(B) be stretched to include special counsel to the estate representative. "Authorized to Employ" The next sentence of Section 5.2 states, "In this regard, the Committee shall be and hereby is authorized to employ the law firm of Berman, DeLeve, Kuchan and Chapman, L.C. on the terms identified in that certain letter dated October 27, 1998."[7] According to the Committee, the phrase "authorized to employ" in this sentence relieves the Committee from complying with § 327 following confirmation. The Committee says that the plan provides for employment of the Berman firm; therefore, no further approval is required. But the Committee's argument improperly views this sentence in isolation when in fact the introductory phrase"in this regard"refers back to the previous sentence giving the Committee the "right to seek appointment of special counsel." When the two sentences are read together, the second sentence becomes merely a proposal to put forth the Berman firm when seeking court appointment of special counsel and to do so on the compensation terms expressed in the October 27, 1998, letter. This plan language falls short of expressing a clear intent to appoint the 291 Berman firm as special counsel by mere confirmation of the plan. Additional Grounds Other reasons require the Committee to seek approval of special counsel through the regular pre-confirmation procedures. The first involves the purported letter of October 27, 1998, a copy of which is attached to the pretrial order. Max Jevinsky authored the letter for the Berman firm long before confirmation of the plan. The letter offered to represent the Committee in avoidance litigation for a contingency fee of 25% of any recoveries plus expenses. But, unfortunately, the letter was never furnished to plan voters. Although the plan language did seek permission to employ special counsel, neither the plan nor the disclosure statement contained the letter or a paraphrase of its contents. This omission, of course, left the voting creditors uninformed about the terms upon which the Berman firm was to be employed as special counsel. Also, the plan language is completely silent about any hourly or contingency fee arrangement for special counsel. Although the Committee may be satisfied with the Berman firm and the agreement for a 25% contingency fee, which appears reasonable on its face, the plan voters should have been informed of those employment terms. This oversight lends further reason for the court to monitor the employment of special counsel. The final reason supporting this court's decision also involves misleading the plan voters. The plan language fails to inform the voters that special counsel can hold adverse interests and still serve the Committee. Rather, the plan language suggests that the court will screen the professional for freedom from such interests before approving employment. This is the normal procedure when "appointment" of a professional is sought during the case. If the debtor wishes to relieve special counsel of the duty to show lack of adverse interest, the plan must inform voters of the exemption. Without crystal clear plan language excluding the court's oversight, there is no reason to deviate from the statutory appointment procedures for professionals, especially in a liquidating plan that defers distribution until completion of litigation. In re Melridge One case supporting the court's ruling here is the 1989 decision of the Oregon District Court in In re Melridge, Inc.[8] In this case, a debtor-in-possession employed special counsel after confirmation to process a claim over which the plan retained jurisdiction. The court held that § 327(e) remained applicable to the professional because the plan had retained jurisdiction over the claim.[9] Similarly, Compuspeak's plan contains a provision reserving jurisdiction over post-confirmation avoidance actions. But in this court's view that reservation is an insufficient ground for the ruling expressed in this opinion. This is because this court favors the view that a provision in a confirmed plan cannot create jurisdiction. Therefore, basing its decision on such a jurisdictional reservation would be inappropriate. While this court agrees with the result in Melridge, it does not agree with its reasoning on this particular point. In this court's view, the question turns instead on the res judicata effect of the plan language, which in this case is insufficient to relieve the special counsel from qualifying as a professional under § 327 and Rule 2014. 292 Agency Suit Finally, Dennis Simmons argues that this adversary action is, according to his terms, "ultra vires" and "unauthorized" and must therefore be dismissed. If he were correct, the action would end because the parties have stipulated in the pretrial order that the statute of limitations has expired. But, even though the court has not been called upon to appoint Mr. Jevinsky as a professional, the Committee did consent to his filing of the action. Consequently, in that sense, he did not file the action without authority; he filed it as an agent with express authority. Accordingly, the court finds that the action was authorized. Conclusion The court therefore rules that in order to represent the Committee in its prosecution of post-confirmation avoidance actions, special counsel should have been approved by the court as a professional. But, although special counsel was not so approved, Simmons' motion to dismiss the adversary proceeding should be overruled because the Committee consented to the filing of the action by Mr. Jevinsky. If Mr. Jevinsky, some other counsel, or the Committee's counsel can qualify under § 327, the court will permit trial of this adversary proceeding at a date and time to be noticed by the Bankruptcy Clerk. Rule 7052 The foregoing discussion shall constitute findings of fact and conclusions of law under Fed. R. Bankr.P. 7052 and Fed. R.Civ.P. 52(a). A judgment reflecting this ruling will be entered on a separate document in compliance with Fed. R. Bankr.P. 9021 and Fed.R.Civ.P. 58. IT IS SO ORDERED. NOTES [1] The Unsecured Creditors Committee appears by its attorney, Paul M. Hoffman of Morrison & Hecker, L.L.P., Kansas City, Missouri. Compuspeak, Inc., appears by its attorney, Max Jevinsky of Berman, DeLeve, Kuchan & Chapman, L.C., Kansas City, Missouri. Defendant Dennis Simmons appears by his attorney, F. Stannard Lentz of Lentz & Clark, P.A., Overland Park, Kansas. [2] Plan of Reorganization filed January 20, 1999 (Doc. # 207), ¶ 5.2 at 10. [3] The court finds that this proceeding is core under 28 U.S.C. § 157 and that the court has jurisdiction under 28 U.S.C. § 1334 and the general reference order of the District Court effective July 10, 1984 (D. Kan. Rule 83.8.5). [4] Andersen v. UNIPAC-NEBHELP, et al. (In re Andersen), 179 F.3d 1253 (10th Cir.1999). [5] Italics added. [6] Citicorp Acceptance Co., Inc. v. Robison (In re Sweetwater), 884 F.2d 1323 (10th Cir.1989). [7] Italics added. [8] 108 B.R. 748 (D.Or.1989). [9] Id. at 751.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3097465/	NO. 07-12-00148-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A -------------------------------------------------------------------------------- SEPTEMBER 20, 2012 -------------------------------------------------------------------------------- CROWELL SNF, LLC D/B/A CROWELL NURSING CENTER, APPELLANT v. TERRI WALL, ELIZABETH KAY BAIZE, VICKIE TAMPLEN, DEBRA SANDERSON, AND KEITH MCDANIEL, ON BEHALF OF THE ESTATE OF CHARLIE H. MCDANIEL, APPELLEES -------------------------------------------------------------------------------- FROM THE 46TH DISTRICT COURT OF FOARD COUNTY; NO. 4675; HONORABLE DAN MIKE BIRD, JUDGE -------------------------------------------------------------------------------- Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Crowell SNF, LLC d/b/a Crowell Nursing Center, has filed an agreed motion to dismiss this interlocutory appeal because appellees, Terri Wall, Elizabeth Kay Baize, Vickie Tamplen, Debra Sanderson, and Keith McDaniel, on behalf of the Estate of Charlie H. McDaniel, have dismissed their case against appellant. The motion is signed by attorneys for both parties. Without passing on the merits of the case, we grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1). There being no agreement of the parties to the contrary, costs of the appeal are taxed against appellant. Tex. R. App. P. 42.1(d). Having dismissed the appeal at the parties' request, we will not entertain a motion for rehearing and will issue our mandate forthwith. Mackey K. Hancock Justice	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1504081/	703 S.W.2d 674 (1986) Ex parte Thaddeus Vandehue WILLIAMS. No. 68970. Court of Criminal Appeals of Texas, En Banc. February 5, 1986. 675 Thaddeus Vandehue Williams pro se. John B. Holmes, Jr., Dist. Atty., and Susan Spruce, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. OPINION ONION, Presiding Judge. These proceedings involve a post-conviction application for writ of habeas corpus brought under the provisions of Article 11.-07, V.A.C.C.P. Applicant seeks to set aside five (5) convictions for aggravated robbery. On June 17, 1978, an indictment was returned against the applicant in the 178th District Court. It contained five separate counts alleging aggravated robberies committed on different dates against different victims. A prior felony conviction was alleged for enhancement of punishment in connection with the first count of the indictment only. The basic allegations in each count were that applicant "... on or about (date) did then and there unlawfully while in the course of committing theft of money owned by (name of Complainant) hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a firearm." On October 2, 1978, applicant waived trial by jury, entered a plea of guilty to all counts of the indictment, and entered an agreement to stipulate evidence on each count. Each agreement also contained a sworn stipulation by the applicant. Applicant also stipulated he had been previously convicted of a felony as alleged in connection with the first count of the indictment. The court found applicant guilty of all five counts as well as being a repeat offender as alleged and ordered a pre-sentence investigation. On November 10, 1978, the court assessed applicant's punishment at 25 years' imprisonment on each count. The applicant then waived time in which to file a motion for new trial or in arrest of judgment, and the court sentenced applicant to not less than 15 nor more than 25 years on the first count, and from 5 to 25 years in connection with each of the other counts. Separate judgments and sentences were entered on each count. Applicant did not appeal any of these convictions. Subsequently applicant filed a pro se application for post-conviction writ of habeas corpus in the 178th District Court. In said 676 application it was urged that the evidence was insufficient to support his guilty pleas in trial court No. 280365 on the five counts of aggravated robbery as required by Article 12, V.A.C.C.P. (1925) (obviously meaning Article 1.15, V.A.C.C.P. [1965]) (as amended 1973). He urged the trial court was thus without jurisdiction, and he was deprived of due process under the Fourteenth Amendment. In support of his argument he calls attention to the stipulation on each count including the waiver of the appearance, confrontation and cross-examination of witnesses and the consent to stipulation which stated: "... I waive my rights against self-incrimination and confess the following facts: "On (date) in Harris County, Texas, I did intentionally and knowingly threaten imminent bodily injury to (name of Complainant) with the use of a deadly weapon, namely a firearm." The stipulation was sworn to by the applicant. In response the State answered applicant's allegations were an improper collateral attack on the sufficiency of the evidence, and without a transcript of the hearing on the guilty pleas there was no adequate showing that the written stipulations introduced at said hearing contained the only evidence submitted to support the convictions citing Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978). The trial court found no controverted, previously unresolved facts material to the legality of the confinement requiring an evidentiary hearing and ordered the record forwarded to this Court with judgments and sentences, stipulations, jury waivers, etc. This Court ordered the trial court to more fully develop the facts concerning applicant's allegations by affidavits, evidentiary hearing, etc., and to file findings of facts. The trial court complied with this Court's request. The affidavit of the court reporter showed that her notes in the case in question (Trial Court No. 280365) had been destroyed. The judgment reflected that evidence was heard. The defense counsel's affidavit stated the only written material introduced at applicant's trial were the five stipulations (one for each count). He did not recall anyone asking the applicant if all the allegations in the indictment were true and did not recall any oral judicial confession or confessions by the applicant. In his findings the trial court traced the history of the case, noted the two aforementioned affidavits, and further found the five written stipulations were the only evidence introduced to support the judgments. The trial court concluded that evidence was sufficient to show that applicant was guilty only of the lesser included offense of aggravated assault and that he had been previously convicted as alleged in connection with the first count of the indictment. It is well established that the Court of Criminal Appeals is not bound by the findings of the trial judge in post-conviction habeas corpus proceedings under Article 11.07, V.A.C.C.P. See Ex parte Stauts, 482 S.W.2d 638 (Tex.Cr.App.1972); Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App. 1977); Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980); Ex parte Acosta, 672 S.W.2d 470 (Tex.Cr.App.1984). It is equally well established that the burden of proof is upon the applicant in such proceedings, and includes the burden of proving his factual allegations. See Alexander v. State, 598 S.W.2d 308 (Tex.Cr. App.1980); Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982), cert. den. 459 U.S. 1036, 103 S. Ct. 447, 74 L. Ed. 2d 602; Ex parte Salinas, 660 S.W.2d 97 (Tex. Cr.App.1983). See also Ex parte Sanders, 588 S.W.2d 383 (Tex.Cr.App.1979). Further, there is a presumption of regularity with respect to guilty pleas under Article 1.15, V.A.C.C.P. Reed v. State, 610 S.W.2d 495 (Tex.Cr.App.1981). It is applicant's contention that the "sworn to" stipulation was the only evidence offered in each case, that while each stipulation might be a "judicial confession" as to an assault, each was not sufficient to 677 establish the allegations of aggravated robbery as alleged in each indictment upon his plea of guilty in each case. It is apparently his contention that, even though no effort was made to withdraw the guilty pleas, though no motion for new trial was filed, and though no appeals were taken, he may collaterally attack his convictions by post-conviction habeas corpus proceedings based on the failure of the State to comply with Article 1.15, V.A.C.C.P., and offer sufficient evidence to support the judgments in each case where he entered a plea of guilty. He makes this contention, although he waited until the court reporter's notes were destroyed. Thus applicant is attacking collaterally his conviction based on his guilty plea before the court by asserting the evidence was insufficient to support that conviction. It has long been the general rule that the sufficiency of the evidence cannot be attacked collaterally. Ex parte Rogers, 201 S.W. 1157 (Tex.Cr.App.1919); Ex parte Banspach, 130 Tex. Crim. 3, 91 S.W.2d 365 (1936); Ex parte Caldwell, 383 S.W.2d 587 (Tex.Cr.App.1964); Ex parte Muro, 394 S.W.2d 174 (Tex.Cr.App.1965); Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1972); Gaines v. State, 501 S.W.2d 315 (Tex.Cr. App.1973); Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978); Ex parte Smith, 571 S.W.2d 22 (Tex.Cr.App.1978); Ex parte Dantzler, 571 S.W.2d 536 (Tex. Cr.App.1978); Ex parte Dunn, 571 S.W.2d 928 (Tex.Cr.App.1978); Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982). See also Ex parte Easter, 615 S.W.2d 719, cert. den., Easter v. Texas, 454 U.S. 943, 102 S. Ct. 481, 70 L. Ed. 2d 252; 38 Tex. Jur.3rd Extraordinary Writs, § 48, p. 96. In Ex parte Banspach, supra, it was written: "It is well settled by the decisions of the Court of Criminal Appeals that the merits of a case involving the guilt or innocence of an accused are not a proper subject of inquiry in a habeas corpus proceeding." It has been frequently held that the writ of habeas corpus cannot be used as substitute for or to usurp the function of an appeal. Ex parte Overstreet, 129 Tex. Cr.R. 574, 89 S.W.2d 1002 (1936); Ex parte Hubbard, 153 Tex. Crim. 112, 218 S.W.2d 209 (1949); Ex parte Puckett, 161 Tex. Cr.R. 51, 274 S.W.2d 696 (1954); Ex parte Wingfield, 162 Tex. Crim. 112, 282 S.W.2d 219 (1955), cert. den. 350 U.S. 1002, 78 S. Ct. 553, 100 L. Ed. 866; Ex parte Lyles, 168 Tex. Crim. 145, 323 S.W.2d 950 (1959); Ex parte Sepalveda, 172 Tex. Crim. 455, 358 S.W.2d 630 (1962); Ex parte Powell, 558 S.W.2d 480 (Tex.Cr.App.1977); Ex parte McGowen, 645 S.W.2d 286 (Tex.Cr. App.1983); Ex parte Gomez, 667 S.W.2d 932 (Tex.App.Austin 1984) (review refused). Ex parte Burns, 133 Tex. Crim. 77, 109 S.W.2d 211 (1937), made clear that when the trial court has jurisdiction to render judgment and the law affords a remedy by appeal the court cannot in habeas corpus proceedings inquire into questions of the sufficiency of the evidence upon which the judgment was rendered. A study of the cases supporting the above general rule shows that it has been applied or intended to apply across the board to all types of criminal cases, whether the offense be a felony or misdemeanor or whether the trial be before the court or jury, and whether the plea is one of not guilty, guilty, or nolo contendere. In Ex parte Lyles, supra, the Court wrote: "Where, however, there is no appeal or where the record on appeal is not timely filed or properly certified and the conviction becomes final the defendant's right to complain of the insufficiency of the evidence is lost. "This is the rule where the defendant throughout insists that he is innocent and has pleaded not guilty. "It would be a strange doctrine to say that one who confesses to the crime and pleads guilty before the court, and waives a jury trial, should be afforded a remedy denied to one who asserts his 678 innocence throughout." (Emphasis supplied.) When the plea is not guilty, the burden of proof is upon the State beyond a reasonable doubt. V.T.C.A., Penal Code, § 2.01; Article 38.03, V.A.C.C.P., as amended. About this there can be no question. The necessity of evidence when the plea is guilty or nolo contendere needs to be explored. In a misdemeanor case when a defendant enters a plea of guilty before the court he admits every element of the offense. Ex parte Clinnard, 169 Tex. Crim. 460, 169 S.W.2d 181 (1943); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974). See also Dees v. State, 676 S.W.2d 403 (Tex.Cr.App.1984). The same rule applies where the guilty plea to a misdemeanor is before the jury. Brown v. State, supra. Article 27.14, V.A.C.C.P., provides that in pleas of guilty or nolo contendere in a misdemeanor case before the court punishment may be assessed by the court with or without evidence within the discretion of the court. See Foster v. State, 422 S.W.2d 447 (Tex.Cr.App.1967); Brown v. State, supra. Thus, normally on appeal from a misdemeanor conviction based on a plea of guilty or nolo contendere there can be no question of the sufficiency of the evidence. It follows that a collateral attack of the sufficiency of the evidence to support a misdemeanor conviction by habeas corpus is not permitted. In felony cases a plea of guilty before the jury admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1969), and cases there cited; Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974); Brison v. State, 570 S.W.2d 937 (Tex.Cr.App.1978); Williams v. State, 674 S.W.2d 315 (Tex.Cr. App.1984). In such cases there is no question of the sufficiency of the evidence on appeal, Brison v. State, supra, or on collateral attack. Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1973). As to the necessity of evidence where a plea of guilty or nolo contendere in a non-capital felony case is entered before the court, the rule is different. Texas has a procedural requirement in such cases unlike that of most jurisdictions and even unlike such pleas in misdemeanor cases in this state. Article 1.15, V.A.C.C.P. (former Article 12, V.A.C.C.P., 1925) requires that the State offer sufficient proof to support any judgment based on a guilty or nolo contendere plea to a felony case tried before the court. Under this statute evidence is received to support the judgment, not to accept a plea of guilty or nolo contendere. Thornton v. State, 601 S.W.2d 340, 347 (Tex.Cr.App.1980) (opinion on rehearing). Article 1.15, supra, is an additional procedural safeguard required by the State of Texas but not by federal constitutional law. The history of the statute and its requirements are discussed in Rodriguez v. State, 442 S.W.2d 376, 379 (Tex.Cr.App.1969), and Thornton v. State, supra. In 1931 former Article 12, V.A.C.C.P., 1925, was amended along with other statutes to permit a defendant to waive a jury trial and enter a plea of guilty before the court in a felony case less than capital. Prior to such time there had to be a jury trial in felony cases regardless of the plea. Since there would no longer be a verdict of one's peers before a defendant was sent to prison, the statute required sufficient evidence to support the judgment where he entered a guilty plea before the court to a non-capital felony. See Franklin v. State, 144 S.W.2d 581 (Tex.Cr.App.1940). While the sufficiency of the evidence to support a judgment of conviction under Article 1.15, supra, and its requirements may be challenged on appeal, such conviction may not be subject to challenge on collateral attack by habeas corpus. In Thornton it was stated that Texas is not bound by any federal common law doctrine 679 of conviction by plea; that doctrine has not been imposed on the criminal law of Texas by the Constitution of the United States or by the Supreme Court of the United States directly or through the Fourteenth Amendment "incorporation" or any other fashion and Article 1.15, supra, passes federal constitutional muster. Turning from the discussion of pleas of guilty, etc., we note that there is a "no evidence" exception to the general rule that the sufficiency of the evidence to support the conviction may not be collaterally attacked. In Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978), it was acknowledged that in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), a "no evidence" exception had been created to the foregoing general rule. In Moffett this Court allowed the defendant to collaterally attack an order revoking probation where the order was based on no evidence, not insufficient evidence. The Court based the decision expressly and squarely upon "the due process clause of the United States Constitution."[1] Moffett was an unusual case. Two indictments for robbery were returned against the defendant. Subsequently he pleaded guilty to one indictment before a jury which recommended probation. One of the probationary conditions imposed by the court was to "neither commit nor be convicted of any offense against the laws of the State of Texas...." The next day he pleaded guilty to the second robbery indictment before the court and was convicted. The defendant's probation was then revoked on the basis of evidence he had been "convicted" since the time probation was granted. On his post-conviction habeas corpus attack upon the revocation order, this Court held the probationary condition as to conviction was not consonant with the statutory conditions insofar as it was not dependent upon the defendant's conduct following the granting of probation, and the trial court's interpretation of the non-statutory condition was unreasonable. It was concluded that since there was no evidence of conduct after probation was granted there was a violation of due process and the revocation order was subject to collateral attack. There, of course, was evidence offered of a conviction after probation, but this Court interpreted the probationary condition as legally pertaining only to conduct after probation and concluded there was no evidence of such conduct. Moffett in retrospect appears to be more of a fundamental fairness case than a true no evidence case. In Ex parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978), the defendant was indicted for assault with intent to commit rape with two prior final felony convictions alleged to fix his status as an habitual criminal. The State offered proof of the two prior convictions, but the judgment in the first prior conviction reflected the defendant had been granted probation. There was no further showing the conviction had become final as alleged and as required by law. Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974). On collateral attack this Court held that since there was no evidence to show the finality of the first prior conviction that the life sentence was obtained in violation of the defendant's due process rights. Moffett was cited. The jury in Murchison convicted him of the primary offense and found the allegations of the two prior felony convictions to be "true." There was evidence to support all allegations and the jury's verdict except as to the single allegation of the finality of one prior conviction. This then was an 680 insufficient evidence case, not a no evidence case. The allegations were not totally devoid of evidentiary support. See Thompson v. City of Louisville, supra. Wolfe v. State, 560 S.W.2d 686 (Tex.Cr. App.1978), involved an appeal from an order of revocation of probation. In such an appeal the defendant sought to collaterally attack the criminal mischief conviction for which he was placed on probation. He contended the conviction was void as no evidence was offered to support it. The only evidence in the record on appeal was a judicial confession admitting an offense on December 21, 1977, when the indictment was returned on February 4, 1977 alleging an offense on or about December 21, 1976. The Court noted the record supported the contention, but that there was no transcription of the court reporter's notes. The Court then wrote: "Without that transcription, we are unable to ascertain whether other evidence was introduced to support the appellant's conviction. We therefore hold that that the appellant's contention does not fall within the purview of Ex parte Moffett, supra, but is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. Appellant's contention is overruled...." No effort was made to apply the general rule prohibiting collateral attack even if the court reporter's notes had been transcribed and in the record. In Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978), the applicant claimed on collateral attack the evidence showed two offenses of welfare fraud rather than felony theft as charged and for which he was convicted. On rehearing the Court applied Moffett, Murchison and Wolfe and found that without a transcription of the court reporter's notes it was an impermissible attempt to collaterally attack the sufficiency of the evidence. In Ex parte Barfield, 697 S.W.2d 420 (Tex.Cr.App.1985), the applicant collaterally attacked his life sentence imposed under V.T.C.A., Penal Code, § 12.42(d). He claimed in his post-conviction habeas corpus application the State failed to prove the second prior conviction was for an offense committed after his first prior conviction became final as required by § 12.42(d). Pen packets and other evidence were offered to support the allegations of the prior convictions. Only the date of the commission of the second prior felony alleged was missing from the proof. This Court found the missing date made this a "no evidence" case, a violation of due process, cited Murchison and set aside the entire conviction. See Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977). Here again this was merely a collateral attack upon the insufficiency of the evidence. The record was not totally devoid of evidentiary support of the allegations. Ex parte Benavidez, 696 S.W.2d 582 (Tex.Cr.App.1985), reached the same erroneous results as Barfield based on the same contention. In the earlier case of Ex parte Ash, 514 S.W.2d 762 (Tex.Cr.App.1974), the contention presented was the same as in Barfield and Benavidez in a post-conviction habeas corpus proceeding. There the Court considered the same as a collateral attack upon the sufficiency of the evidence and rejected the same citing the general rule set forth in Taylor v. State, 480 S.W.2d 692 (Tex.Cr.App.1972). Only Barfield questioned Ash and then only in a footnote. It is clear that Ash is at odds with Barfield, Barfield and Murchison. French v. Estelle, 692 F.2d 1021 (5th Cir.1982), amended 696 F.2d 318 (5th Cir. 1983), involved the same chronology of the commission of the prior felonies contention as in Ash, Barfield and Benavidez. The decision there granting relief came after Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and was based on insufficient evidence for the jury to have found the proper chronology of prior convictions, not on the basis of "no evidence." Nevertheless, French was cited in Barfield for its "no evidence" conclusion. It is here important to observe that in deciding these "no evidence" cases little attention was given to the plea of the defendants. 681 From the opinions and an examination of the original records it appears that in Ash, Barfield, Benavidez, Murchison and French[2] all involved pleas of not guilty and pleas of "not true" before a jury to the enhancement of punishment allegations. Moffett, Wolfe and Dantzler involved pleas of guilty before the court. French applied the rationality test of Jackson to the plea of not guilty and plea of "not true" to the enhancement allegations. It reached the same result as Barfield and Benavidez but on a different basis. We now turn to the impact, if any, of the opinion of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), upon the opinions by this Court which have traditionally held that the sufficiency of the evidence to sustain a conviction may not be challenged by post-conviction collateral attack by habeas corpus. For many years federal courts long declined to review the sufficiency of the evidence supporting state criminal convictions on the basis that such questions did not raise a federal constitutional question. See, e.g., Whitney v. California, 274 U.S. 357, 367, 47 S. Ct. 641, 645, 71 L. Ed. 357 (1927); Sinclair v. Turner, 447 F.2d 1158, 1161 (10th Cir.1971), cert. den. 405 U.S. 1048, 92 S. Ct. 1329, 31 L. Ed. 2d 590 (1972); Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960); cert. den. 362 U.S. 917, 80 S. Ct. 670, 4 L. Ed. 2d 738 (1960); United States ex rel. Brogan v. Martin, 238 F.2d 236, 237 (3rd Cir.), cert. den. 351 U.S. 928, 76 S. Ct. 785, 100 L. Ed. 1457 (1956). See 28 U.S.C., § 1257 (1976), and 28 U.S.C., § 2254 (1976). In Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960), the United States Supreme Court carved a narrow exception from the above stated rule, holding that a conviction based upon no evidence violated due process of law. Thompson made clear that it had not endorsed federal review of the sufficiency of the evidence, but only federal review for a total absence of evidence. Following the advent of Thompson, federal courts reviewed state criminal trial records but only to determine if there was at least some evidence to support the judgments. See, e.g., Brooks v. Rose, 520 F.2d 775 (6th Cir.1975); Cunha v. Brewer, 511 F.2d 894 (8th Cir.1975); Johnson v. Maryland, 425 F. Supp. 538 (D.Md.1976). However, in Jackson v. Virginia, supra, the United States Supreme Court broke sharply with this established precedent. Relying upon its earlier decision in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), which found that due process requires the prosecution to prove every element of a criminal offense beyond a reasonable doubt, the court held that in a challenge to a state conviction brought under habeas corpus statute, which requires federal courts to entertain a state prisoner's claim that he is being held in custody in violation of the Constitution or laws of the United States, the applicant is entitled to federal habeas corpus relief if it is found that upon the evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. The Court thus established the standard to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence. That standard is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[3] 682 It is to be observed that Jackson was convicted in a bench trial in a Virginia state court upon his plea of not guilty, thus placing upon the state prosecution the burden of proof as required by In re Winship, supra. Jackson and Winship are only applicable where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. Neither case is applicable where a defendant knowingly, intelligently and voluntarily enters a plea of guilty or nolo contendere. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). In Boykin the Court made clear that a guilty plea is more far-reaching than a confession admitting that a defendant performed certain deeds. It is a conviction with nothing remaining but for the court to determine punishment and render judgment. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-1712; Machibrada v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 479 (1962); United States v. Robertson, 698 F.2d 703 (5th Cir.1983); Wharton's Criminal Procedure, 12th Ed. (Tureca), Vol. 2, § 339, p. 224. In Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 2d 1009 (1927), it was written: "A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence." See also North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The entry of a valid plea of guilty has the effect of admitting all material facts alleged in the formal criminal charge. United States v. Bendicks, 449 F.2d 313 (5th Cir.1971); Brazzell v. Adams, 493 F.2d 489 (5th Cir.1974). See also McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Moore v. United States, 425 F.2d 1290 (5th Cir.1970), cert. den. 400 U.S. 846, 91 S. Ct. 91, 27 L. Ed. 2d 83. A plea of guilty waives all nonjurisdictional defenses including contention as to the insufficiency of the evidence. Mapson v. Cox, 313 F. Supp. 465 (D.C.Va.1970). If the court is satisfied a factual basis exists for the guilty plea, a federal court may enter judgment upon that plea. Fed. Rules Cr.Pro., Rule 11(f); United States v. Oberski, 734 F.2d 1030 (5th Cir.1984). See also American Bar Association Standards for Criminal Justice, 2nd Ed., Standards Relating to Pleas of Guilty, Chapter 14, § 1.6. It is clear then there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty plea in a state criminal prosecution, and that the "rationality" test of Jackson has no application thereto. After the decision in Jackson, in Baker v. Estelle, 715 F.2d 1031 (5th Cir.1983), a Texas state prisoner attacked his 1965 robbery conviction claiming that one of the prior felony convictions was void because the State failed to adduce any evidence in addition to his guilty plea as required by Article 12, V.A.C.C.P. (1925) (the forerunner of Article 1.15, supra). He claimed the trial court was without jurisdiction because no evidence was adduced. The Fifth Circuit Court of Appeals noted that under Texas jurisprudence the plea of guilty is not subject to post-conviction attack as to the sufficiency of evidence to support the plea citing Ex parte Lyles, 168 Tex. Crim. 145, 323 S.W.2d 950 (1959); Ex parte Keener, 166 Tex. Crim. 326, 314 S.W.2d 93 (1958). Thereafter the Court wrote: "... Whatever the post-conviction consequences under Texas state law of a contention that the state failed (despite a minute entry to this effect) to produce evidence to support a plea of guilty, we do not read these decisions as holding that the state court's acceptance of the plea, although erroneous, raised an issue *683 of such total want of jurisdiction as to make the conviction void rather than voidable. "No federal constitutional issue is raised by the failure of the Texas state court to require evidence of guilt corroborating a voluntary plea. In this circuit, we have specifically held that the petitioner in a habeas corpus proceeding is not deprived of any federally protected right by a conviction upon a plea of guilty obtained without compliance with the Texas statute. Hendrick v. Beto, 360 F.2d 618 (5th Cir.1966), aff'd 253 F. Supp. 994 (S.D.Tex.1965). Because the right to corroboration of a plea of guilty is not essential to a fair trial in a federal due-process sense, the failure to comply with the state criminal procedure in this regard does not raise a federal constitutional claim that justifies habeas corpus relief under 28 U.S.C. § 2254. Hendrick, supra, 253 F.Supp. at 995. "Therefore, we find no merit to Baker's claim that his 1965 burglary conviction was void because the state court was without jurisdiction to entertain the 1965 plea of guilty." See also Williams v. Estelle, 681 F.2d 946 (5th Cir.1982). For all the foregoing reasons we do not conclude that Jackson and Winship have any impact upon the guilty pleas entered by the applicant before the court in the instant case, nor does Jackson affect our longstanding state rule that an applicant may not collaterally attack the sufficiency of the evidence to support a felony conviction based upon a plea of guilty before the court such as the instant case. The general rule is still alive and well as to such guilty and nolo contendere pleas. We do not reach the question of the impact of Jackson upon collateral attacks upon the sufficiency of the evidence to support the conviction where the plea was "not guilty" and the burden of proof is upon the prosecution beyond a reasonable doubt. Nevertheless, see French v. Estelle, supra; Parker v. Procunier, 763 F.2d 665 (5th Cir.1985). See also footnote and cases there cited. In the instant case applicant Williams does not claim his pleas of guilty to the five counts of aggravated robbery were not intelligently and voluntarily made, nor does he assert his innocence of any of the charges or that he was misled by counsel or the court. He only belatedly asserts the record now after the court reporter's notes have been destroyed that there was insufficient evidence to satisfy Article 1.15, V.A. C.C.P. There was no attempt to withdraw the pleas of guilty, no motion for new trial and no appeal. In view of his guilty pleas the general rule still prevails. He cannot collaterally attack the sufficiency of the evidence. The relief prayed for is denied. CLINTON, J., dissents. NOTES [1] In Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960), the United States Supreme Court held a state conviction was unconstitutional where the criminal charge was totally devoid of evidentiary support. In that opinion the Court stated: "The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of evidence, but whether this conviction rests on any evidence at all." The Thompson holding came to be known as the source of the "no evidence" rule some years before the Moffett decision. [2] French v. State, 592 S.W.2d 638 (Tex.Cr.App. 1980) (Table of Cases affirmed). [3] The implications of Jackson are not limited to the habeas corpus context. After Jackson, federal and state courts assessing the evidence either at the trial level or on direct review will presumably be obligated to apply the "rationality" test. This Court has applied the test on direct appeals in both direct and circumstantial evidence cases. See Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (opinion on State's Motion for Rehearing); Bradley v. State, 691 S.W.2d 699, 703 (Tex.Cr.App.1985). See also Houston v. State, 663 S.W.2d 455 (Tex.Cr.App. 1984); Jackson v. State, 672 S.W.2d 801 (Tex.Cr. App.1984); O'Keefe v. State, 687 S.W.2d 345, 349 (Tex.Cr.App.1984); Dickey v. State, 693 S.W.2d 386 (Tex.Cr.App.1984); Van Guilder v. State, ___ S.W.2d ___ (Tex.Cr.App. 85). See also Parker v. Procunier, 763 F.2d 665 (5th Cir.1985).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1221943/	560 P.2d 1003 (1977) Johnny RUSSELL, Appellant, v. The STATE of Oklahoma, Appellee. No. F-76-436. Court of Criminal Appeals of Oklahoma. February 18, 1977. Rehearing Denied March 14, 1977. Whit Pate, Poteau, for appellant. Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Michael L. Darrah, Legal Intern, for appellee. *1004 OPINION PER CURIAM: The appellant, Johnny Russell, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, LeFlore County, for the offense of Sodomy, Case No. CRF-75-144. From a jury sentence of ten (10) years, defendant perfects this appeal. The facts are relevant here only so far as they deal with the voir dire examination. During the voir dire, defendant challenged, for cause the wife of a juror already empaneled. The court overruled this challenge as defendant failed to show bias or partiality. The defendant's sole assignment of error asserts that allowing a husband and wife to sit on the same jury denies the defendant his right to be tried by a fair and impartial jury as required by the Constitutions of the United States and Oklahoma. The defendant attempts to stabilize his argument by rallying behind him numerous citations which declare the sacred right to a public trial, and a fair and impartial jury. We agree; however, neither the Constitution nor our statutes prohibit a husband and wife from serving on the same jury. Defendant wishes us to assume, as he does, that an inherent fault exists when a married couple sits on the same jury; that they will necessarily "track" each other's thoughts. Such an assumption is without merit. The means exist to search for this tracking and a party should make use of the liberal rules of voir dire to do so. Gonzales v. State, Okl.Cr., 388 P.2d 312 (1964). Undoubtedly, married couples will be found that are unable to divorce one another's thoughts during a trial, but when voir dire uncovers no bias, partiality, or inability to form independent thought a party should not be excluded. The Legislature has provided for challenges of implied bias and has expressly limited the parties within this category. See 22 Ohio St. 1971, § 660. Married couples are not included therein. A party cannot rest his claims of error on conjecture alone, as the law must concern itself with facts and evidences, not vaporous speculations. Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950). From the above and foregoing reasons, the judgment and sentence appealed from is AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601671/	228 P.3d 183 (2009) Russell M. BOLES, Plaintiff-Appellant, v. Terry BARTRUFF, Jason Zwirn, John Lusk, and Karen Dietrich, Defendants-Appellees. No. 08CA0069. Colorado Court of Appeals, Div. I. August 6, 2009. Rehearing Denied September 3, 2009.[] 185 Russell M. Boles, Pro Se. John W. Suthers, Attorney General, James X. Quinn, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees. Opinion by Judge ROMÁN. In this C.R.C.P. 106(a)(4) action, plaintiff, Russell M. Boles, appeals the trial court's judgment affirming a prison disciplinary conviction. He asserts that he was denied due process at his disciplinary hearing, that the evidence supporting his conviction was insufficient, that the search of his cell was invalid, and that he was not provided discovery. We affirm. I. Background Plaintiff is an inmate in the custody of the Colorado Department of Corrections (DOC). Based on the discovery of two prescription pills in a dental floss container on a shelf in his assigned footlocker, plaintiff was charged with "Abuse of Medication," a Class II, Rule 14 violation of the DOC Code of Penal Discipline (COPD). After an administrative hearing before a DOC hearing officer, plaintiff was found to have violated the COPD. The administrative head later affirmed the decision of the hearing officer. Plaintiff then brought this C.R.C.P. 106(a)(4) action seeking judicial review. The trial court affirmed the hearing officer's decision and plaintiff appealed. II. Due Process Plaintiff contends the trial court erred in determining the DOC hearing officer did not violate his Fourteenth Amendment right to due process. Specifically, he argues the 186 hearing officer's prohibition on questioning the complaining officer about her alleged anti-semitism and her history of write-ups denied him due process in the disciplinary hearing. We disagree. An inmate in a disciplinary hearing enjoys only the most basic due process rights. Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Washington v. Atherton, 6 P.3d 346, 347 (Colo.App.2000). Procedures that are essential in criminal trials where the accused, if found guilty, may be subjected to the most serious deprivations, are not rights universally applicable to prison disciplinary proceedings. Wolff, 418 U.S. at 566-67, 94 S.Ct. 2963; Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812-13 (10th Cir.2007). Those due process rights available to inmates are (1) advance written notice of the claimed violation; (2) the ability to call witnesses and present documentary evidence when not unduly hazardous to institutional safety or correctional goals; and (3) a written statement of the evidence relied upon and the reasons for the disciplinary action taken. Wolff, 418 U.S. at 563-66, 94 S.Ct. 2963. The right to call witnesses does not include confrontation or cross-examination, due to the "inherent danger" such situations may pose, as well as "the availability of adequate bases of decision without them." Baxter v. Palmigiano, 425 U.S. 308, 322, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). The Supreme Court has admonished that "[m]andating confrontation and cross-examination, except where prison officials can justify their denial on one or more grounds that appeal to judges, effectively preempts the area that Wolff left to the sound discretion of prison officials." Id. Nonetheless, "prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify," but "so long as the reasons are logically related to preventing undue hazards to `institutional safety or correctional goals,' the explanation should meet the due process requirements as outlined in Wolff." Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985); see also DOC Admin. Reg. 150-01(IV)(E)(3)(j)(1), (3) (a hearing officer has discretion not to call, or limit questioning of, a witness who may be subject to verbal or physical harassment). A division of this court has held that an inmate's right to due process has been violated when that inmate was denied the opportunity to call a witness. See Villa v. Gunter, 862 P.2d 1033, 1034-35 (Colo.App.1993). Federal courts have held the same. See, e.g., Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir.2006) (denial of inmate's request to call complaining corrections officer violated inmate's due process; however, such error was harmless); Serrano v. Francis, 345 F.3d 1071, 1079-80 (9th Cir.2003) (violation of due process in denying inmate's request to call witness when no reason appeared on the record for denial); Pannell v. McBride, 306 F.3d 499, 503 (7th Cir.2002) (same); Smith v. Mass. Dep't of Correction, 936 F.2d 1390, 1400 (1st Cir.1991) (same); Brooks v. Andolina, 826 F.2d 1266, 1269 (3d Cir.1987) (same); Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir.1996) (prison policy prohibiting calling witnesses to testify in disciplinary hearings violated due process); Ramer v. Kerby, 936 F.2d 1102, 1104-05 (10th Cir.1991) (prison policy prohibiting prisoners from calling staff members as witnesses violated due process); Moran v. Farrier, 924 F.2d 134, 137 (8th Cir.1991) (failure to call witness requested by prisoner violated internal prison regulations and inmate's due process). However, our research has uncovered no case that has held that an inmate's right to due process was violated where, as here, the inmate's right to cross-examination was permitted but limited to the incident in question. And while prison regulations are primarily designed to guide correction officials in administration of a prison and "[are] not designed to confer rights on inmates," Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), in certain circumstances, when an agency creates procedures for review, due process of law requires the agency to adhere to those procedures even if they exceed what is constitutionally 187 required. Dep't of Health v. Donahue, 690 P.2d 243, 249 (Colo.1984).[1] Here, plaintiff was allowed to call and question the complaining officer regarding the discovery of the prescription pills in his cell, but was denied the opportunity to question the officer about (1) her feelings toward his religion, (2) her fears and prejudices against him, (3) other items she allegedly removed from his footlocker, and (4) the number of write-ups she had authored. The hearing officer asked plaintiff to illustrate the types of questions he wished to ask the complaining officer. Thereafter he explained to plaintiff that he believed the questions would go beyond the discovery of the pills and were likely to harass the complaining officer, and ultimately denied plaintiff's request. We conclude plaintiff received adequate due process, because unlike those cases in which an inmate's request for a witness was denied outright and without justification, the hearing officer here provided plaintiff with an opportunity to question the complaining officer about the incident in question, provided him an opportunity to explain the proposed line of questioning, and only denied those questions he believed to be harassing. As the Supreme Court stated in Baxter and Ponte, the right to call witnesses does not include the right to cross-examine witnesses. So long as the reasons provided for limiting cross-examination are logically related to institutional safety or correctional goals, the explanation meets the due process requirements outlined in Wolff. Ponte, 471 U.S. at 497, 105 S.Ct. 2192; Baxter, 425 U.S. at 322, 96 S.Ct. 1551. Inmates have the right to individualized balancing of the importance of their proposed evidence against the interests of the institution. See Ramer, 936 F.2d at 1104-05. Thus, as discussed, a blanket prohibition of testimony without any individualized analysis would violate due process. Id. Here, the hearing officer listened to plaintiff's request to cross-examine the complaining officer, ruled on that request and stated the reason for his ruling: plaintiff's questioning would be irrelevant and would constitute harassment. See DOC Admin. Reg. 150-01(IV)(E)(3)(j)(3) ("In no event should an accused offender, or his representative, be allowed to question, or to continue addressing questions to a witness, when it appears that the questions are primarily intended to harass the witness or are unduly repetitious or irrelevant.").[2] In determining whether the hearing officer limited cross-examination based on his determination that plaintiff's questions were either irrelevant or harassing, we must accord due deference to the decision of the hearing officer. See Baxter, 425 U.S. at 321-22, 96 S.Ct. 1551 (the extent to which prisoners may confront and cross-examine witnesses should be left to the sound discretion of prison officials and administrators). Affording proper deference to the hearing officer's decision, we conclude plaintiff's due process rights were not violated.[3] 188 III. Sufficiency of the Evidence Plaintiff also contends that there was insufficient evidence to support the hearing officer's determination that he was guilty of "Abuse of Medication." We disagree. In C.R.C.P. 106(a)(4) proceedings, appellate review is limited to whether the governmental body's decision was an abuse of discretion or was made without jurisdiction, based on the evidence in the record before that body. C.R.C.P. 106(a)(4)(I); Thomas v. Colo. Dep't of Corr., 117 P.3d 7, 10 (Colo.App.2004). When there is a challenge to the sufficiency of the evidence, the prison official's decision must be upheld if there is "some evidence" in the record to support it. See Kodama v. Johnson, 786 P.2d 417, 420 (Colo.1990). The weight and credibility of a witness's testimony are committed to the discretion of the hearing officer. Martinez v. Bd. of Comm'rs of Hous. Auth., 992 P.2d 692, 696 (Colo.App.1999). Appellate review of a district court's decision in a proceeding under C.R.C.P. 106(a)(4) is de novo. Leichliter v. State Liquor Licensing Auth., 9 P.3d 1153, 1155 (Colo.App.2000). An inmate commits "Abuse of Medication," a Class II, Rule 14 violation of the COPD, "when he, in any way, stores, saves, gives away, possesses, or removes any prescription medication without authorization." DOC Admin. Reg. 150-01(IV)(D). The incident report, the notice of charge, and the testimony of the complaining officer established that during a routine shakedown of plaintiff's cell two prescription pills were found wrapped in tissue paper inside a dental floss container on a shelf in plaintiff's footlocker. In defense, plaintiff argued that he had a self-medication card for the pills and had no need to hide them. Accordingly, he argued that the pills were planted by either the complaining officer or his former cellmate. Nevertheless, as noted, the weight and credibility of a witness's testimony are committed to the discretion of the hearing officer. Martinez, 992 P.2d at 696. Thus, although plaintiff claims that he did not hide the medication, there is sufficient evidence to support the hearing officer's determination that plaintiff saved or stored the two pills in his dental floss container and was guilty of "Abuse of Medication." Accordingly, we will not reverse that determination on appeal. See Kodama, 786 P.2d at 420. To the extent plaintiff argues that the "some evidence" standard is insufficient to support the DOC's actions in taking away any earned time or good time credits for a disciplinary conviction, we note that this argument has been rejected. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (the revocation of good time comports with the minimum requirements of procedural due process if the findings of the prison disciplinary board are supported by "some evidence" in the record); see also Villa, 862 P.2d at 1034. Therefore, we conclude that plaintiff is not entitled to additional due process protections based on the hearing officer's imposition of a sanction that included loss of thirteen days good time. IV. Other Issues A. Discovery We reject plaintiff's contention that the trial court erred in refusing to allow him to conduct discovery. Review under C.R.C.P. 106(a)(4) is conducted "based on the evidence in the record before the defendant body or officer." C.R.C.P. 106(a)(4)(I). No new evidence is allowed and the reviewing court does not independently weigh the evidence. See Kodama, 786 P.2d at 420; Hazelwood v. Saul, 619 P.2d 499, 501 (Colo.1980). Therefore, because no new evidence may be considered by the trial court in reviewing the hearing officer's determination, we conclude that plaintiff was not entitled to conduct discovery in the trial court regarding any exculpatory evidence that allegedly was not admitted at his disciplinary hearing. B. Search of Cell Finally, we reject plaintiff's contention that his disciplinary conviction must be reversed because the DOC violated Admin. 189 Regs. 300-06(IV)(H)(4) and 850-06(IV)(E)(5) by allowing the search of his cell to be performed by only one officer. Contrary to plaintiff's contentions, these regulations do not require that any search or inventory be performed by two DOC employees, but merely provide that searches and inventories be performed by two employees "when possible." Hence, we conclude that there is no basis for reversal on these grounds. The judgment is affirmed. Judge LICHTENSTEIN concurs. Judge TAUBMAN dissents. Judge TAUBMAN dissenting. Because I would conclude that plaintiff, Russel M. Boles, was denied due process at his disciplinary hearing since he was not allowed to cross-examine the complaining officer about her alleged anti-semitism, I respectfully dissent. As the majority notes, plaintiff was found to have violated a provision of the Code of Penal Discipline (COPD) of the Department of Corrections entitled, "Abuse of Medication," a class II, Rule 14 violation. The charge was based on the alleged discovery of two prescription pills in a dental floss container on a shelf in his assigned footlocker. At the hearing, three witnesses testified: (1) a prison official who simply related the charging incident report filed against plaintiff, (2) the complaining officer, who testified that she found the two pills in plaintiff's dental floss container, and (3) plaintiff, who denied the allegations against him. Because there were no other witnesses, the case turned on the issue of credibility. Plaintiff sought to impeach the complaining officer's credibility, inter alia, because of her alleged anti-semitism. The hearing officer refused to allow plaintiff to conduct any cross-examination on these issues, advising plaintiff that if he had any concerns about the propriety of the complaining officer's conduct he should raise them at a grievance hearing. I. Applicable Law In a C.R.C.P. 106(a)(4) proceeding, review is limited to whether the governmental body's decision was an abuse of discretion or was made without jurisdiction. An abuse of discretion occurs, as relevant here, when an agency misinterprets or misapplies governing law. See Gallegos v. Garcia, 155 P.3d 405, 406 (Colo.App.2006). In Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the seminal procedural due process case involving prison inmates, the Supreme Court held that the limited due process rights to which inmates are entitled are advance written notice of an alleged violation, the ability to call witnesses and present documentary evidence when not unduly hazardous to institutional safety or correctional goals, and a written statement of the evidence relied on and the reasons for the disciplinary action taken. The Wolff Court declined to hold inmates' due process rights extended to confrontation or cross-examination of witnesses. However, the Wolff Court acknowledged that there was "a narrow range of cases where interest balancing may well dictate cross-examination.. . ." Id. at 568-69, 94 S.Ct. 2963; Smith v. Mass. Dep't of Corr., 936 F.2d 1390, 1399 (1st Cir.1991). Later, as the majority notes, in Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985), the Supreme Court recognized that prison officials "may be required to explain, in a limited manner, the reasons why witnesses were not allowed to testify," "but so long as the reasons are logically related to preventing undue hazards to `institutional safety or correctional goals,' the explanation should meet the due process requirements as outlined in Wolff." When an agency creates procedures for review, due process of law requires the agency to adhere to those procedures even if they exceed what is constitutionally required. Dep't of Health v. Donahue, 690 P.2d 243, 249 (Colo.1984); Williams v. Colo. Dep't of Corr., 926 P.2d 110, 112 (Colo.App.1996). Thus, I believe that defendants were required to comply with the due process protections provided by Colorado's prison regulations 190 even in light of the decision by the United States Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418, which limited the creation of liberty interests protected by due process when those asserted liberty interests were established by internal prison regulations. In Sandin, the court held that "these interests will be generally limited to freedom from restraint which . . . imposes a typical and significant hardship on the inmate in relation to the ordinary incidence of prison life." Id. at 484, 115 S.Ct. 2293. Significantly, this language does not limit liberty interests to the above-described circumstances. Further, neither the district court, nor the defendants on appeal assert that Sandin is a barrier to plaintiff's due process claim. Additionally, other appellate courts have found due process violations of inmates' rights without addressing Sandin. See, e.g., Howard v. United States Bureau of Prisons, 487 F.3d 808 (10th Cir.2007) (prison officials violated inmate's due process rights by refusing to produce and review videotape of alleged assault for inmate's use at disciplinary hearing, which inmate asserted would refute charges against him); Piggie v. McBride, 277 F.3d 922 (7th Cir.2002) (inmate's due process rights were violated by prison official's refusal to view or permit him access to surveillance tape that inmate said was exculpatory); Ayers v. Ryan, 152 F.3d 77 (2d Cir.1998) (prison official violated inmate's due process rights by failing without rational explanation to obtain the testimony of witnesses requested by inmate during disciplinary hearing). In any event, the Sandin Court stated that prisoners retained their right to invoke the First Amendment where appropriate and could draw on state judicial review where available. Sandin, 515 U.S. at 487 n. 11, 115 S.Ct. 2293. Here, the underlying basis of plaintiff's claim is alleged violation of his First Amendment right to free exercise of his religion. Several federal courts have allowed inmates to pursue freedom of religion claims, concluding that they are not barred by Sandin. See Davis v. Biller, 41 Fed.Appx. 845 (7th Cir.2002) (not selected for publication) (Sandin did not apply to inmate's First Amendment claim that he was denied access to his Bible and to religious services while in segregation); Nyholm v. Pryce, 2009 WL 1106528 (D.N.J. No. 08-4824 RMB, Apr. 20, 2009) (unpublished order) (inmate could pursue claim that he was prohibited from attending religious services during confinement in administrative segregation); see also Allah v. Seiverling, 229 F.3d 220 (3d Cir.2000) (inmate's claim that he was kept in administrative segregation in retaliation for filing civil rights suits against prison officials was not foreclosed by Sandin). In any event, even if plaintiff's claim is not viable under the Due Process Clause, I would still conclude that defendants abused their discretion by incorrectly applying the prison regulations discussed below. See Gallegos v. Garcia, 155 P.3d 405, 406-08 (Colo.App.2006) (inmate may obtain relief under C.R.C.P. 106(a)(4) when prison officials misinterpret or misapply prison regulations). The Department of Corrections has promulgated detailed regulations concerning the presentation of witness testimony at disciplinary hearings. One regulation provides, "[T]he offender should be permitted to offer explanation, defense, or rebuttal to the charge. . . . An offender's defense should be relevant to the specific charge and may be limited at the discretion of the hearing officer or board." DOC Admin. Reg. 150-01(IV)(E)(3)(i)(2). As relevant here, the regulations also provide that an offender should have the right to request the testimony of witnesses at the hearing and that DOC employees should cooperate with all hearing officers' requests to testify. Further, "witnesses may be limited by the hearing officer. . . if their testimony is determined to be irrelevant, incompetent, or unduly repetitious and that determination is documented in the record. The offender may request testimony of persons who witnessed and/or investigated the violations charged, whenever feasible." DOC Admin. Reg. 150-01(IV)(E)(3)(j)(1). An additional regulation provides, "In no event should an accused offender, or his representative be allowed to question, or to continue addressing questions to a witness, when it appears that the questions are primarily intended to harass the witness or are unduly 191 repetitious or irrelevant." DOC Admin. Reg. 150-01(IV)(E)(3)(j)(3). Because DOC has promulgated these procedures, they establish the requirements of due process at prison disciplinary hearings. II. Analysis At the disciplinary hearing, plaintiff indicated that he wished to question the complaining officer about her credibility because he recognized that this case involved his word against hers. The hearing officer immediately responded that he would not allow any such testimony, and that he would limit plaintiff's questions to those about the charged incident. He commented, "When you start saying you're going to question [her] on credibility, I guess what I'm looking at is that you're going to harass her." Plaintiff denied that was his intention and indicated that he wanted to ask the complaining officer questions "like how she feels about [his] Judaism." Again, the hearing officer indicated that he would not allow such questions. Plaintiff then responded that the complaining officer had previously taken items out of his locker like matzah and "some religious stuff."[1] Once again, the hearing officer advised plaintiff that if he had any concerns about items taken from his cell, he was required to pursue them at a grievance hearing. The hearing officer added that he was not going to allow plaintiff to "harass the staff member" or ask her irrelevant questions. In my view, the hearing officer violated plaintiff's due process rights and abused his discretion in not allowing plaintiff to ask any questions of the complaining officer concerning her alleged anti-semitism. Because this case turned on credibility, it was important for plaintiff to have an opportunity to establish that the complaining officer was biased against him because of his Jewish faith. If plaintiff could have shown that matzah and other religious items had been improperly taken from his cell, this evidence would have supported plaintiff's contention that the hearing officer was biased against him and falsely accused him of the abuse of medication offense.[2] Thus, the hearing officer erred in concluding that such evidence was irrelevant. In criminal proceedings, the ability to impeach a witness by bias is broad. People v. Sommers, 200 P.3d 1089, 1096, (Colo.App. 2008). Further, motive is "always relevant to the question whether one did what is alleged against him and to the reason why" and "[t]he previous relations of the parties to any transaction may have been sufficient to excite motive." Wagman v. Knorr, 69 Colo. 468, 470, 195 P. 1034, 1035 (1921); see also Belden v. State, 73 P.3d 1041, 1083 (Wyo. 2003) (proof of motive is always relevant and admissible, particularly where the intent of the accused is at issue or the accused denies the commission of the crime). Here, of course, the right to confront and cross-examine witnesses is necessarily circumscribed because of the prison environment. However, the regulations quoted above do not preclude all cross-examination. Rather, an accused offender should not be allowed to question or continue addressing questions to a witness "when it appears that the questions are primarily intended to harass the witness or are unduly repetitious or irrelevant." DOC Admin. Reg. 150-01(IV)(E)(3)(j)(3). Here, plaintiff's proposed cross-examination was not irrelevant, repetitious, or harassing. Plaintiff questioned the complaining officer during the hearing, but was completely 192 prohibited from asking her any questions about her alleged anti-semitism. As noted above, such a line of questioning would have been relevant. To the extent that there was a valid concern about such questioning being repetitious, the hearing officer could exercise his discretion to limit the extent and manner of such questions. In my view, plaintiff's proposed questions regarding the hearing officer's alleged anti-semitism could not be considered harassment. In construing an administrative rule or regulation, we apply the same rules of construction as we do when interpreting a statute. See Woolsey v. Colo. Dep't of Corrections, 66 P.3d 151, 153 (Colo.App.2002). When the statute or regulatory scheme does not define a word, it is appropriate to look to the dictionary definition of that term. See Tidwell v. City & Cty. of Denver, 83 P.3d 75, 82 (Colo.2003) (because statute did not define "pursuit," court looked to dictionary to determine its plain and ordinary meaning). Harassment is defined as "words, conduct or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose." Black's Law Dictionary 733 (8th ed.2004). Plaintiff's intended questions were intended to serve the legitimate purpose of challenging the complaining officer's credibility. It is difficult for me to conclude that a proposed line of questioning would necessarily be considered harassment, particularly when no questions at all had been asked. As noted above, if plaintiff had been allowed to question the complaining officer about her alleged anti-semitism, the hearing officer could have limited such questions so that they would not be harassing. Indeed, during the initial colloquy at the hearing, plaintiff advised the hearing officer that he did not intend to directly ask the complaining officer if she was prejudiced against him because of his religion. Accordingly, he recognized that the questions he desired to ask could not be asked in a harassing manner. Finally, recognizing a prison's legitimate interest in curtailing testimony that would be hazardous to institutional safety or correctional goals, I cannot conclude that a blanket prohibition against testimony about alleged anti-semitism is warranted. Otherwise, prison officials could persecute inmates on religious grounds, limited only by an inmate's possible relief in a grievance proceeding or civil rights case. See Boles v. Neet, 486 F.3d 1177 (10th Cir.2007) (when prison regulation impinges on an inmate's constitutional rights, it is valid if it is reasonably related to legitimate penological interests; plaintiff here, Russell Boles, established in that case that prison officials did not establish a legitimate penological interest for regulation that prohibited him from being transported from prison to hospital for eye surgery wearing Jewish religious garments). The legitimate interest in institutional safety and correctional goals does not justify decisions in every instance in favor of prison officials, as recognized by the numerous cases cited by the majority, in which courts have found due process violations in other circumstances. See Villa v. Gunter, 862 P.2d 1033, 1034 (Colo.App.1993); see also Howard, 487 F.3d at 814 (rejecting prison officials' contention that production of incident videotape would be "unduly hazardous to institutional safety or correctional goals"); Substantive Rights Retained by Prisoners, 37 Georgetown L.J. Ann. Rev. Crim. Proc. 944, 975-77 (2008). For these reasons, I respectfully dissent. Because I would reverse on this issue, I do not address the other alleged errors asserted by plaintiff. NOTES [] Taubman, J., would grant. [1] The Colorado Department of Corrections has promulgated extensive regulations with regard to prison disciplinary hearings. Those regulations provide an inmate's right to request the testimony of witnesses at hearings, DOC Admin. Reg. 150-01(IV)(E)(3)(j)(1); however, the regulations do not provide inmates with the absolute right to confront and cross-examine witnesses in disciplinary hearings if, in the judgment of the hearing officer, there are sound reasons for denying confrontation or cross-examination. DOC Admin. Reg. 150-01(IV)(E)(3)(j). [2] Harassment is not defined in the regulations. In our view, however, the hearing officer was not constrained by a dictionary definition of the word; rather what constitutes harassment is within the sound discretion of the hearing officer, whose decision we will not disturb so long as it is not arbitrary or capricious. [3] In reaching this conclusion, we are mindful of the delicate balance that has been recognized between prisoners' religious guarantees and the legitimate concerns of prison administrators. See Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir.2007). In addition, prisoners have access to grievance procedures. For example, under DOC Admin. Reg. 850-04, inmates are permitted to bring grievances concerning "policies and conditions within the institution that affect the offender personally; actions by employees and offenders; and incidents occurring within the institution that affect the offender personally." DOC Admin. Reg. 850-04(IV)(B)(3). AR Form 850-04B, titled "Grievance Subject List," includes as valid grievance subjects both religion and staff conduct. [1] At the hearing, plaintiff did not identify what other religious items were allegedly taken from him, but in his brief on appeal, he asserts that the complaining officer had taken his phylacteries. Phylacteries, also known as tefillin, are "leather boxes with attached leather straps containing passages from the Torah that are used in Jewish prayer" by Conservative and Orthodox Jews. See Searles v. Bruce, 216 Fed.Appx. 812, 813 n. 2 (10th Cir.2007) (not selected for publication); see also Webster's Third New International Dictionary 1705 (2002) (defining "phylactery"). [2] Phylacteries are "allowable personal faith property" and matzah is an allowable faith item of group property, which inmates may have or use in specified circumstances. See DOC Admin. Reg. 800-01(IV)(Q)-(R). While DOC employees may search personal faith property, they must treat such property with professional respect. DOC Admin. Reg. 800-01(IV)(P).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608487/	249 Or. 147 (1968) 432 P.2d 519 437 P.2d 487 SAVAGE, Respondent and cross appellant, v. PETER KIEWIT SONS' CO., Respondent, STATE HIGHWAY COMMISSION, Appellant and cross respondent. Supreme Court of Oregon. Argued July 13, 1967. Reversed with instructions October 13, 1967. Former opinion modified Petition for rehearing denied February 21, 1968. 149 Alan H. Johansen, Assistant Attorney General, Salem, argued the cause for appellant and cross respondent. On the briefs were Robert Y. Thornton, Attorney General, G.E. Rohde, Assistant Attorney General and Chief Counsel for Oregon State Highway Commission, and J. Robert Patterson, Assistant Attorney General, Salem. Bruce M. Hall, Portland, argued the cause for respondent and cross appellant Savage. On the brief were Bonyhadi & Hall, Portland. Cleveland C. Cory, Portland, filed a brief for respondent Peter Kiewit Sons' Co. 150 Before PERRY, Chief Justice, and SLOAN, GOODWIN, DENECKE and LUSK, Justices. Bruce M. Hall and Bonyhadi & Hall, Portland, for the petition. Cleveland C. Cory, Portland, contra. Before PERRY, Chief Justice, and SLOAN, O'CONNELL, GOODWIN, DENECKE, HOLMAN and LUSK, Justices. REVERSED WITH INSTRUCTIONS. GOODWIN, J. 1. The Oregon State Highway Commission appeals from a declaratory decree allowing compensation to a subcontractor for extraordinary expenses incurred in performing his contract. As this suit was tried below as a suit in equity, we have considered the record de novo pursuant to ORS 19.125 (3). The defendant Kiewit was the prime contractor with the Highway Commission for the construction of the West Marquam Interchange on Interstate Five in Multnomah County. The plaintiff, Savage, subcontracted with Kiewit for the cleaning and painting of the structural steel used in the interchange. The contract between the Highway Commission and Kiewit provided for all structural steel to be cleaned by sandblasting, either (1) in the steel supplier's shop, (2) on the ground at the bridge site, or (3) in the air after erection. Savage elected to sandblast in the air, which witnesses agreed was the most economical method, and computed his bid accordingly. Savage had concluded after inspecting the site that, with certain precautions, the open-air method could be used without undue damage to nearby businesses. After the steel was in place and the other optional methods were thus precluded, Savage began the sandblasting. He proceeded without difficulty until a complaint of damage from falling sand was made by Alaska Steel Co., a concern which operated machinery under the work area. Savage then commenced to take the precautions which, he testified, he had anticipated probably would be necessary. These consisted of providing 151 covers for Alaska Steel's equipment, working on weekends, and working only when the winds were favorable. Despite Savage's precautions, Alaska Steel continued to complain that sand particles were damaging its machinery, and on June 3, 1965, obtained a permanent injunction against further sandblasting above its land. After the injunction was decreed, the Highway Commission asked Savage to conduct tests of cleaning methods other than sandblasting. During the tests, Savage received from the bridge engineer and from the assistant state highway engineer conflicting advice as to his duties under his contract. Confused by these communications, Savage commenced a suit for declaratory relief on July 1, 1965. Between the filing of this suit and the hearing thereof, the Commission again advocated some variation of the open-air sandblasting method. Savage and Kiewit then devised an enclosed structure, a sort of movable cocoon, which could be rolled along the spans and which was designed to contain the sand particles. After the hearing of the declaratory proceeding, the trial court concluded that Savage's original obligation to perform his contract with Kiewit had been discharged by impossibility (Alaska Steel's injunction). The court then treated the Commission's urging that Savage proceed by the newly devised method as an alteration of the original contract, and ordered Savage to finish the sandblasting on a quantum meruit basis. The Commission had been urging Savage to proceed, and had helped to have the existing injunction modified to permit him to do so, but the Commission vigorously opposed the portion of the declaratory decree which ordered Savage's compensation on a quantum meruit basis. 152 The Commission's appeal contends that Kiewit was bound to deliver for the contract price a finished product according to contract specifications, and that the injunction which prevented the completion of Savage's subcontract as planned did not constitute a legal excuse for nonperformance nor create a right to extra compensation. 2, 3. Savage contends that the injunction constituted a supervening event which made his performance impossible and thereby excused him from performance, citing 6 Corbin, Contracts § 1320, at 323 (1962). Supervening impossibility occurs "where, after the formation of a contract facts that a promisor had no reason to anticipate, and for the occurrence of which he is not in contributing fault, render performance of the contract impossible, the duty of the promisor is discharged, unless a contrary intention has been manifested * * ." Restatement of Contracts § 457 (1932). Included as one of the supervening events which in a proper case may excuse performance is prohibition by a court order. Restatement of Contracts § 458 (1932); Annotation, 84 ALR2d 12, 46 (1962). Cases dealing with impossibility caused by court order frequently speak of situations where an injunction prevents all performance, but this is not really what happened to Savage. He was eventually able to complete his promised sandblasting, but to do so he had to spend more money than he had planned on spending to protect third persons. The alleged impossibility in this case arises out of increased expense in complying with court orders. 4, 5. In applying the doctrine of impossibility, courts recognize that unexpected difficulty or expense may approach such an extreme that a practical impossibility exists. See, e.g., Natus Corporation v. 153 United States, 371 F2d 450 (Ct Cl 1967). To operate as a discharge, however, the hardship must be so extreme as to be outside any reasonable contemplation of the parties. Natus Corporation v. United States, supra. And see Restatement of Contracts § 454 (1932); Trans-atlantic Financing Corporation v. United States, 363 F2d 312, 315 (DC Cir 1966). 6-8. Unexpected difficulties and expense, therefore, whether caused by injunction or by other causes, do not necessarily excuse performance of a contract. The question is whether the unforeseen hazard was one that reasonably should have been guarded against. One purpose of a contract is to shift reasonably foreseeable business risks to the party promising the performance so that the promisee can devote his energies and capital to other matters. A mere showing of commercial unprofitability, without more, will not excuse the performance of a contract. Learned v. Holbrook, 87 Or 576, 170 P 530, 171 P 222 (1918). Returning to the Restatement limitations upon the excuse of impossibility (Contracts § 457), we need not search for contributing fault on the part of Savage. Whatever liabilities Savage may have incurred toward Alaska Steel, it is not necessary in this case to assign fault as a basis thereof. We assume for the purpose of this case that Savage did his pre-injunction sandblasting with reasonable care but that notwithstanding such care his operations caused harm to a nearby landowner and had to be drastically modified in order to avoid such harm. 9. The trial court found that "the situation which developed was beyond the contemplation and experience of all the parties to this case." The important question, however, is whether Savage should have anticipated the danger of serious harm to nearby 154 landowners. Perhaps Savage should not have been expected to anticipate that his work might be enjoined, since he had no previous experience with injunctions. But, putting the question more generally, it does not seem unreasonable to say that Savage should have anticipated that he might have to take out-of-the-ordinary precautions to avoid damage to businesses near the work area. Savage was in the sandblasting business, and assessing the risk of damage to third parties from his work appears to be within the scope of his expertness. The argument was made that Savage should have been entitled to rely on the safety of all three methods approved by the Commission, and had no duty to anticipate unusual difficulty. United States v. Spearin, 248 US 132, 39 S Ct 59, 63 L Ed 166 (1918), furnishes some support for such an argument, with its holding that the government impliedly warrants that the specifications it furnishes contractors will be adequate for producing the desired result. But the situation where a contractor encounters extra costs after relying on incorrect government specifications presents a far stronger case against the government than does the instant case, where the Commission deferred to the judgment of the contractor as to which of the authorized methods he would use in computing a bid. That Savage was allowed to choose between alternative methods of performance strengthens the conclusion that he should have anticipated the risks inherent in the chosen method. The inclusion of two more expensive yet safer alternatives could have put the bidder on notice that the cheapest method may not have been the safest one. There is, however, some authority for requiring the government to warn the 155 bidders expressly about certain kinds of hazards rather than merely to provide safer alternatives. Helene Curtis Industries, Inc. v. United States, 312 F2d 774 (Ct Cl 1963), held that the government was under a duty to disclose to persons bidding to manufacture a product that the normal methods for manufacturing such products probably would not work. Because the government failed to disclose its superior knowledge, a bidder was allowed to recover the extra cost of performing the contract by other than normal production methods. The difficulty of applying the Helene Curtis principle to the case before us is that Savage was in as good a position to gauge the risks as was the Commission. Helene Curtis involved a new product with which only the government had had experience. Savage, however, could be expected to know at least as much about the dangers of sandblasting as could anyone in the Highway Commission. Because of the competitive nature of the bidding, one could also argue, as Savage did, that the bidders felt they had no real choice other than the cheapest option if they wanted the job. It was thus argued that in effect the state was asking for bids based upon the open-air method only. If the options were truly illusory, Savage's choice of the only available method would not point so strongly to the conclusion that he should have anticipated the dangers of the cheaper method. This argument loses some of its impact, however, because the record shows that the contractor who painted the main span of the same bridge elected to have his sandblasting done in the shop. 10. In addition to Savage's failure fully to anticipate the dangers of open-air sandblasting, it appears that he expressly assumed the risk of having to take all 156 necessary precautions to avoid damage to third parties. The contract between Kiewit and Savage expressly placed liability for such damage on Savage. It is true that Savage had no choice whether to assume the damage risks or not, but he did have the choice of naming the price at which he would assent to Kiewit's (and the Commission's) terms. Thus, the contract differed from the most objectionable kind of adhesion contract where one party must assent to all the other's terms because he has no alternative. In a construction contract there is no injustice in requiring a subcontractor to be responsible for damage caused by his work. He is the one who controls how the work is done. Such a provision in a contract is a common one. 11. While assuming the risk of paying damage claims resulting from one's performance is somewhat different from assuming the risk of having the performance enjoined because of the damage caused, the difference is essentially one of degree. Savage expected to incur certain costs in the event of damage to third parties, but he ultimately had to pay more than he expected. 12, 13. If the damage leading to the injunction had been of a totally unexpected character, then Savage's argument would be more appealing. But here the alleged damage was exactly what any sandblasting contractor could expect from sand getting into a neighbor's machinery. If Savage had been required merely to pay for ruining an expensive machine belonging to Alaska Steel he clearly could not shift the added expense to Kiewit or to the Commission. He is in no better position when, because of the continuity and unmeasurability of the damage he was causing, an injunction 157 rather than damages resulted from his performance. The risk of damage to third parties is one of the costs, albeit an uncertain one, which the bidder must consider in computing his bid. Thus, we hold that Savage assumed the risk of consequences resulting from damage to third parties, and he is not entitled to be relieved merely because the degree of such damage was greater than he expected. 14. An argument was made by Savage that the Commission's conduct in causing the injunction to be modified and in urging him to complete the project somehow amounted to an implied promise to pay any extra costs incurred in completing the job. There was no trial court finding on this point, and the record is insufficient to support such a conclusion. Despite urging Savage to complete the job by the new method, the Commission repeatedly told Savage that he would not be paid extra compensation and that his contract bound him to complete the project no matter what it cost. The Commission's efforts to modify the injunction were entirely in its own interest, since once the injunction was modified Savage could no longer contend literally that his performance was impossible. The Commission has presented a number of assignments of error in addition to its principal argument that the contractors were bound to finish the job as contracted regardless of cost to them. Since we conclude that the additional expenses incurred in order to eliminate the damage to third persons which had brought about the injunction were not expenses that legally could be charged to the Commission, it is not necessary to discuss the other assignments. Reversed with instructions to enter a decree dismissing the complaint, without costs to either party. 158 ON PETITION FOR REHEARING FORMER OPINION MODIFIED; REHEARING DENIED. GOODWIN, J. In the opinion reversing the declaratory decree in this case we instructed the trial court to dismiss the complaint, without costs to either party. In a petition for rehearing, the plaintiff has pointed out that it was not necessary to dismiss the plaintiff's complaint insofar as it may have asserted claims against the defendant Peter Kiewit Sons' Co. We did not intend to pass upon the merits of any disputes that may exist between the plaintiff and Kiewit, because such questions were not before us on appeal. The trial court had granted the plaintiff relief against Kiewit and the Highway Commission, and had granted Kiewit relief against the Commission. We held that the Commission was not liable either to the plaintiff or to Kiewit. Some of the language of the trial court's findings See effect of partial reversal of judgment. 5 Am Jur 2d, Appeal and Error §§ 949, 950. 159 and conclusions touched upon issues between the plaintiff and Kiewit, but these views were premised upon the trial court's belief that both the plaintiff and Kiewit were entitled to recover against the Highway Commission. As that assumption was held to be in error, the rights of the remaining parties between themselves, if any, must be determined with the Commission out of the case. The mandate should provide that the proceedings against the Oregon State Highway Commission be dismissed without prejudice to the rights of the remaining parties. The cause is remanded for further proceedings to resolve any issues remaining to be litigated between the plaintiff and the defendant Kiewit. Former opinion modified; petition for rehearing in all other respects denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1029246/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6176 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSIE TRAMONT GILMORE, a/k/a J-Pooh, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Mark S. Davis, District Judge. (4:04-cr-00108-WDK-FBS-1; 4:06-cv-00039-WDK-FBS) Submitted: June 18, 2009 Decided: June 23, 2009 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Jessie Tramont Gilmore, Appellant Pro Se. Eric Matthew Hurt, Assistant United States Attorney, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jessie Tramont Gilmore seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). 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) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Gilmore has not made the requisite showing. Accordingly, we deny 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 the court and argument would not aid the decisional process. DISMISSED 2	01-03-2023	07-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615059/	69 Wash. App. 117 (1993) 847 P.2d 945 DAVID L. JONES, ET AL, Respondents, v. HALVORSON-BERG, ET AL, Defendants, FLOUR CITY ARCHITECTURAL METALS CORP., Appellant. No. 10954-2-III. The Court of Appeals of Washington, Division Three. March 16, 1993. 119 Michael J. McMahon, Raymond F. Clary, and Etter & McMahon, P.S., for appellant. Ross P. White, Gregory J. Arpin, John R. Layman, and Layman, Loft, Arpin & White, for respondents. MUNSON, J. David Jones was injured when he slipped and fell while carrying a window at a construction site. A jury found Flour City Architectural Metals Corporation, a subcontractor, liable for his injuries and awarded damages. Flour City appeals, assigning error to the court's: (1) determination as a matter of law that Mr. Jones was not a loaned servant of Flour City based on lack of consent and control; (2) refusal to instruct the jury that the subcontractor's control over the workplace is an element of its liability; (3) admission of lay opinion testimony and a videotape; (4) comments on the evidence and lack of impartiality; and (5) imposition of CR 11 sanctions. On March 9, 1981, David Jones was hired as a general laborer by Halvorson-Berg, the general contractor, to work on the Wagner Hall remodeling at Washington State University. Flour City, a subcontractor, was responsible for manufacturing and installing the windows in Wagner Hall. 120 Delivery of the windows to the site was delayed. Once the windows arrived, Richard Benzel, Halvorson-Berg's field superintendent, agreed to help Flour City by providing two laborers to unload windows from a trailer truck and carry them to the installation locations. On March 21, Mr. Benzel directed Peter Lazzarini, Halvorson-Berg's foreman, and Mr. Jones to the truck to unload the windows. Based on Mr. Benzel's decision before Flour City arrived at the site, the Flour City truck was parked 30 or 40 feet from the front steps of the building. The path from the truck to the steps was covered with dirt and pea gravel. Mr. Lazzarini testified it would have been impossible to clean up all the gravel without paving the entire area. Neither Mr. Lazzarini nor Mr. Jones had carried this type of window before. The windows were large and cumbersome, weighing over 200 pounds each and were carried by their attached handles. No equipment was provided by Flour City for carrying the windows. Mr. Benzel did not give any instructions on the method of carrying the windows. Flour City's superintendent, Robert Shilts, told Mr. Lazzarini where to take the windows; the parties dispute whether he instructed on safety procedures or methods of carrying. Mr. Lazzarini and Mr. Jones physically lifted the windows down off the truck, carried them by hand to the building and up 13 steps to the main level and then to one of four levels for installation. On the fourth day of carrying windows, Mr. Jones slipped on the pea gravel while carrying a window, injured his back and was unable to continue working. Since then he has undergone two back surgeries and is permanently disabled. Mr. Jones brought a negligence action against several parties, including Flour City.[1] Trial was held in May 1986. In a special verdict, the jury found Flour City negligent but not the proximate cause of injury. A new trial was granted 121 on a motion alleging jury misconduct. In April 1991, after a second trial, the jury returned a verdict against Flour City, awarding Mr. Jones damages. This appeal followed. LOANED SERVANT [1, 2] The trial court decided as a matter of law, after hearing arguments concerning lack of consent and right to control, that Mr. Jones was not Flour City's "loaned servant" and that Washington workers' compensation law did not bar his pursuit of a common law remedy against Flour City. Flour City contends this was a factual issue for the jury. Normally the determination of "loaned servant" status is a factual issue. Nyman v. MacRae Bros. Constr. Co., 69 Wash. 2d 285, 288, 418 P.2d 253 (1966). A trial court may not rule as a matter of law on this issue if "substantial evidence [exists] in the record upon which reasonable minds could differ". Nyman, at 288; see also Erickson Paving Co. v. Yardley Drilling Co., 7 Wash. App. 681, 686, 502 P.2d 334 (1972). [3, 4] An employee may become the loaned servant of another by submitting himself to the direction and control of the other with respect to a particular transaction or piece of work ... However, such a relation between the borrower and the servant is not established unless it appears that the servant has expressly, or by implication, consented to the transfer of his services to the new master, and unless the lender surrenders and the borrower assumes the power of supervision and control." Fisher v. Seattle, 62 Wash. 2d 800, 805, 384 P.2d 852 (1963) (quoting 56 C.J.S. Master and Servant § 2(d)(2)); see also Novenson v. Spokane Culvert & Fabricating Co., 91 Wash. 2d 550, 553, 588 P.2d 1174 (1979).[2] Restatement (Second) of Agency § 227, comments a, c (1958) are in accord and further state: [Whether an employee is a loaned servant] is a question of fact in each case. 122 .... ... Many of the factors stated in Section 220 [are useful in this determination] ... Thus a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist. The trial court and Mr. Jones rely on 1C A. Larson, Workmen's Compensation Law §§ 48.11-48.12 (1986) for the proposition the consent must be "deliberate and informed", consistent with the general principle that "[c]ommon-law rights and remedies are not lost by stumbling unawares into a new contractual relation. There can be no unwitting transfer from one service to another." Fisher, at 806 (quoting Murray v. Union Ry., 229 N.Y. 110, 127 N.E. 907 (1920)). Fisher, at 806 (quoting Murray) states the employment contract "cannot be thrust upon the servant without knowledge or consent.... He must understand that he is submitting himself to the control of a new master." The focus of the inquiry, therefore, should be on whether the employee understood he was submitting "to the control of a new master", not on whether the employee understood he was giving up his legal rights under workers' compensation law. At trial, Mr. Jones admitted he was "loaned" to and worked for Flour City; he testified Mr. Benzel, the Halvorson-Berg field superintendent, told him someone from the window company would tell him what to do and left; and Mr. Shilts, Flour City's superintendent, later instructed Mr. Lazzarini, in Mr. Jones' presence, to pack the windows upstairs. Conflicting with this was the testimony of Mr. Lazzarini, Halvorson-Berg's foreman, who testified he remained Mr. Jones' immediate supervisor during the unloading. Mr. Shilts testified he went through Mr. Lazzarini and did not talk directly to Mr. Jones. This constitutes substantial conflicting evidence on the consent issue. In deciding the control issue, the following factors indicate a master and servant relationship: "an agreement for close supervision or de facto close supervision of the servant's work"; unskilled labor; tools supplied by the employer; payment 123 by time not the job; regular employment over a considerable time; employment in a specific area; regular business of the employer; community custom; belief by the parties there is a master and servant relationship; and an agreement the work is nondelegable. Restatement (Second) of Agency § 220, comment h, at 489 (1958). Here, there is evidence Flour City was responsible for the close supervision of the unskilled labor provided by Halvorson-Berg; Halvorson-Berg backcharged Flour City for Mr. Jones' hourly wage; the job continued several days; and unloading windows was a part of Flour City's regular business. The evidence indicates Flour City's right to control the unloading of the windows. Mr. Shilts testified his responsibility as Flour City's job superintendent included assessing the jobsite for the best way to handle the windows, meeting and instructing unloading laborers, and looking out for their safety. He also testified he met once with Mr. Jones and Mr. Lazzarini, giving Mr. Lazzarini a blueprint with the location for the windows, instructing on safety procedure and how to carry the windows by the built-in handles. Mr. Benzel testified Mr. Shilts was responsible for planning the manpower needs of off loading and installing the windows and he would have deferred to the glass manufacturer's method of unloading the windows. This constitutes substantial conflicting evidence on the right to control. Thus, the trial court should have submitted the issues of consent and control, under proper instructions, to the jury. The case is reversed and remanded for a new trial. Because of the remand, we consider other assigned errors, some of which may recur. SUBCONTRACTOR LIABILITY Flour City contends the trial court erroneously gave instruction 10,[3] without including an instruction that Flour 124 City's control of the worksite is a condition of its liability. Flour City's theory of the case was Halvorson-Berg, the general contractor, controlled the safety of the workplace and Mr. Jones was contributorily negligent. [5, 6] Jury instructions are adequate if, read as a whole, they allow argument of the party's theory of the case, are not misleading, and properly inform the trier of fact of the applicable law. Gammon v. Clark Equip. Co., 104 Wash. 2d 613, 707 P.2d 685 (1985). The trial court is given considerable discretion to decide the wording and specificity of the instructions. Gammon, at 617. Instruction 10 accurately reflects WAC 296-155-040 and -105. Other instructions were given on burdens of proof, negligence, contributory negligence and proximate cause. A general contractor bears the primary responsibility for employee compliance with safety regulations because the general contractor's "innate supervisory authority constitutes sufficient control over the workplace." Stute v. P.B.M.C., Inc., 114 Wash. 2d 454, 464, 788 P.2d 545 (1990). But a subcontractor is liable to the extent it controls or creates a dangerous condition, Stute, at 461; see also Husfloen v. MTA Constr., Inc., 58 Wash. App. 686, 688-90, 794 P.2d 859, review denied, 115 Wash. 2d 1031 (1990). A subcontractor is liable for injuries arising from work areas under its control. Stute, at 461-64. Liability may arise if the subcontractor contractually assumed responsibility for safety precautions at the worksite or is shown to have been in control of the method of performing the work. See Bozung v. Condominium Builders, Inc., 42 Wash. App. 442, 711 125 P.2d 1090 (1985); Ward v. Ceco Corp., 40 Wash. App. 619, 626, 699 P.2d 814, review denied, 104 Wash. 2d 1004 (1985). [7] Flour City's proposed instructions state, in part: a subcontractor is liable only if the subcontractor (1) controls the workplace (instruction 20); (2) shares control of the workplace with the general contractor, and the subcontractor created the dangerous condition (instruction 21); and (3) has or shares control over the work area in question (instruction 24). These instructions are repetitious. In addition, a trial court is not required to rewrite proposed instructions to conform to the law. State v. Robinson, 92 Wash. 2d 357, 361, 597 P.2d 892 (1979). The trial court's rejection of the proposed instructions was not error. EVIDENTIARY RULINGS Flour City contends evidentiary rulings on the admission of lay opinion testimony and a videotape constituted reversible error. [8] Evidentiary rulings are reviewed for abuse of discretion. Brouillet v. Cowles Pub'g Co., 114 Wash. 2d 788, 801, 791 P.2d 526 (1990). A. Flour City assigns error to the admission of the lay opinion testimony of Daniel Cunningham and Jack Hites who testified they had worked 16 and 30 years, respectively, in construction jobs, part of the time as laborers. Mr. Cunningham was asked about the customary result of a laborer's refusal to do a task. He, and later Mr. Hites, testified based on their experience that a laborer does not ordinarily refuse to do an assigned task because he might get fired. [9] A lay witness may only testify based on personal knowledge. ER 602; State v. Vaughn, 101 Wash. 2d 604, 611, 682 P.2d 878 (1984). A nonexpert lay witness may only testify in the form of an opinion which is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." ER 701. This rule is based on "the traditional belief that a lay witness is no better equipped than a juror to arrive at an opinion or conclusion from the facts known to the witness." 126 5A K. Tegland, Wash. Prac., Evidence § 282, at 348 (3d ed. 1989). While neither Mr. Cunningham nor Mr. Hites had ever worked for Flour City or Halvorson-Berg or at the Wagner Hall remodeling job, their testimony was relevant to explaining a laborer's motivation for not refusing to perform a hazardous task. This was relevant to the issue of Mr. Jones' alleged contributory negligence. There was no error.[4] [10] B. Flour City also assigns error to the admission of a videotape made 10 years after the accident. The videotape demonstrates two men lifting a window off the truck with suction cups onto a dolly on the loading dock[5] at Wagner Hall and rolling it down the hallway. Flour City contends the videotape shows substantially different circumstances from those existing 10 years ago, raising collateral issues and misleading the jury. Demonstrative evidence is admissible if the experiment was conducted under conditions reasonably similar to the conditions existing at the time of the event at issue.... Whether the similarity is sufficient is a matter for the trial court's discretion. If the similarity is sufficient to justify admissibility, any lack of similarity goes to the weight of the evidence. (Citation omitted.) Kramer v. J.I. Case Mfg. Co., 62 Wash. App. 544, 555, 815 P.2d 798 (1991). The differences in circumstances were brought out in the testimony and cross examination of John Tormino, the expert on windows who had produced the videotape. These differences included showing a finished hallway, not a cluttered one; a pickup truck, not a delivery van; a fixed window, not an operable one; and a small glass dolly, not a Sheetrock dolly. Mr. Tormino's testimony sufficiently established the 127 videotape was adequate for its intended purpose to show an alternative method of carrying the windows. The trial court did not abuse its discretion in admitting the videotape. C. Flour City contends certain statements of the trial court were impermissible comments on factual matters in violation of Const. art. 4, § 16. [11] Const. art. 4, § 16 prohibits a trial judge from conveying to the jury the judge's personal opinion about the credibility, weight or sufficiency of the evidence. State v. Eisner, 95 Wash. 2d 458, 461, 626 P.2d 10 (1981). A judge's comment on the evidence is deemed prejudicial unless the record affirmatively shows the contrary. Seattle v. Arensmeyer, 6 Wash. App. 116, 121-22, 491 P.2d 1305 (1971). Flour City's complaints are focused primarily on the court's conduct during the testimony and cross examination of Mr. Tormino. The trial court's statements were directed at counsel to prevent repetitious questioning, waste of time and testimony not based on personal knowledge. Moreover, the parties stipulated Mr. Tormino lacked personal knowledge of the jobsite in 1981. The court's limitations were proper based on the record and the Rules of Evidence. See ER 403, 602. As to the remarks by the trial judge made outside the presence of the jury, they are harmless. See State v. Studebaker, 67 Wash. 2d 980, 984, 410 P.2d 913 (1966). [12] Flour City also challenges the trial judge's general fairness and impartiality. A judge is presumed to perform his functions "regularly and properly and without bias or prejudice." Kay Corp. v. Anderson, 72 Wash. 2d 879, 885, 436 P.2d 459 (1967). The statements by the judge cited by Flour City, when read in context in the record, do not overcome the presumption the trial judge functioned without bias. CR 11 SANCTIONS Flour City challenges the imposition of CR 11 sanctions, contending notice was untimely for an evidentiary hearing on the CR 11 sanctions; the allegation made by Flour City was not frivolous; the court improperly imposed CR 11 sanctions 128 as a contempt penalty; and the attorney making the allegation is solely liable for any sanctions, not the law firm. On May 9, 1990, Flour City made a posttrial motion for a new trial based in part on alleged prejudicial comments by the court during trial. The accompanying memorandum was signed by an associate of the firm on behalf of one of the partners and alleged, for the first time, the trial judge had "laughed" at Flour City's witnesses at an unspecified time during trial.[6] The allegation was not supported by affidavit. Counsel for Mr. Jones vigorously denied the factual basis of the allegation. On May 17, 1990, the trial court, sua sponte, notified the parties in writing an evidentiary hearing as to this unsupported allegation was to be held May 22, at which time the trial court would decide whether to impose CR 11 sanctions and file a complaint with the Washington State Bar Association Disciplinary Board. Flour City moved to strike the hearing and to disqualify the trial judge. At the hearing Flour City refused to present evidence based on its belief the court should recuse itself. Counsel for Mr. Jones submitted affidavits of counsel and a paralegal who attended the trial which stated they had not observed the alleged laughter. The trial court imposed sanctions of $250 attorney fees and a $500 fine, and required apologies to the jurors and other attorneys; and conditioned purging the sanctions, except for attorney fees, on Flour City's attorney filing a written, sworn acknowledgment the statement was false, or an affidavit stating a good faith belief the allegation was true, naming witnesses. [13] This case presents an unusual set of circumstances. First, because the memorandum at issue was submitted to support a request for a new trial, the trial judge must consider whether there is a basis for granting the new trial. The trial judge is in the best position to rule on whether the 129 moving party is entitled to a new trial as a matter of law based on what occurred during litigation. The nonmoving party has the right to have the trial judge make the decision and the moving party should not be able to force the judge to recuse himself in ruling on such a motion by including allegations directed at the trial judge himself. [14] However, once the ruling is made that the alleged facts do not constitute a basis for granting a new trial, consideration of additional motions may require a different judge. If, as in this case, the trial judge is of the opinion that the integrity of the court has been attacked and CR 11 sanctions are appropriate or a contempt proceeding is warranted, then such a hearing should be conducted before another judge. When the subject of the CR 11 hearing is the alleged inappropriate conduct of the trial judge, that judge should not rule on the truth or falsity of the accusations. Although it is unusual to require a judge to recuse himself from ruling on posttrial matters, the Code of Judicial Conduct, Canon 3(C)(1), requires judges "disqualify themselves in a proceeding in which their impartiality might reasonably be questioned ...". The trial judge should have disqualified himself and submitted that issue to another judge. If a hearing is held, a different judge must hear it. If the second judge deems CR 11 sanctions are appropriate, an additional issue is against which attorney or attorneys should the sanctions be imposed. Flour City contends an associate of the law firm is solely liable under CR 11 because he, not the partner, signed the memorandum. The associate signed "on behalf of [the partner]". CR 11 imposes certain requirements on the individual who signs the filed document. Bryant v. Joseph Tree, Inc., 119 Wash. 2d 210, 218, 829 P.2d 1099 (1992). [15] Because CR 11 is substantially similar to its federal counterpart, federal decisions provide guidance. Cooper v. Viking Ventures, 53 Wash. App. 739, 742, 770 P.2d 659 (1989). Flour City relies on two cases. In Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123-27, 107 L. 130 Ed.2d 438, 110 S. Ct. 456, 458-60 (1989), the Supreme Court held CR 11 establishes a nondelegable duty of the individual signer, which cannot render the law firm liable for sanctions. In another case, an associate signed the filing underneath the typewritten names of the law firm and senior attorney to the litigation. Giebelhaus v. Spindrift Yachts, 938 F.2d 962 (9th Cir.1991). The court held a typewritten name was not a substitute for a signature and absent a signature, the senior attorney could not be sanctioned under CR 11. Giebelhaus, at 965-66. These cases are not dispositive. [16] Under agency principles the associate's signature as agent makes the partner a principal responsible for satisfying the CR 11 requirements. The partner signed the motion to strike, his name alone, not the partnership's, was typed on the memorandum, and the associate's signature was apparently a matter of convenience. A filing signed by an authorized agent of an attorney should be treated as if the principal signed it for purposes of CR 11. See Robinson v. Chicago, 868 F.2d 959, 963 n. 2 (7th Cir.), cert. dismissed sub nom. Doulin v. Chicago, 493 U.S. 1012 (1989), cert. denied sub nom. Richardson v. Chicago, 493 U.S. 1035 (1990); Intra-Mar Shipping (Cuba) S.A. v. John S. Emery & Co., 11 F.R.D. 284, 286 (S.D.N.Y. 1951). As United States District Judge William W. Schwarzer stated in Sanctions Under the New Federal Rule 11 A Closer Look, 104 F.R.D. 181, 185 (1985): The person signing the paper may not necessarily be the one responsible for it. An associate in a law firm charged with preparing a paper for filing may be carrying out the instructions of a partner who made the decision to file it. In such a situation, sanctions are more appropriately imposed on the principal rather than the agent carrying out his orders, and nothing in the rule bars its application in that manner. The partner should be held solely liable. Reversed and remanded for a new trial; the sanctions imposed are also reversed. SHIELDS, C.J., and THOMPSON, J., concur. Review denied at 122 Wash. 2d 1019 (1993). NOTES [1] Mr. Jones voluntarily dismissed Washington State University and Halvorson-Berg from the action. Halvorson-Berg was immune from any common law action because Mr. Jones was a covered employee under its workers' compensation coverage. Mr. Jones bases his claim on his contention he was not Flour City's loaned servant. [2] Under workers' compensation law, an employment relationship exists if: (1) the employee and the employer mutually consent to the relationship; and (2) the employer has the right to control the servant's physical conduct in the performance of his duties. Novenson, at 553. [3] Instruction 10 provides: "A regulation of this State provides that every employer shall provide and require safety devices, furnish safeguards, and shall adopt and use practices, methods, operations and processes which are reasonably adequate to render employment and the place of employment safe. Every employer shall do everything reasonably necessary to protect the life and safety of all employees on a job site. "A regulation of this state provides employees shall attempt to eliminate accidents on the job, shall apply the principles of accident prevention in their daily work and shall use proper safety devices and protective equipment as required by their employment or employer. "The violation of a State regulation is negligence as a matter of law. Such negligence has the same effect as any other act of negligence, as set forth in instruction number 7." [4] Later in the trial James Durham, an ironworker for 14 years who worked at Wagner Hall for Flour City, testified: "Q: What's the custom of laborers and an ironworker refusing to do a task? "A: Well, there's an old saying that they usually use. If you can't cut it, you can't stay." There was no objection to this testimony. [5] There is testimony the loading dock was otherwise occupied while these windows were being unloaded in 1981. [6] Several references to laughter are made in the report of proceedings, in and out of the jury's presence; no objection or motion follows the references. Laughter does occur sometimes during trials; it is not a rarity. However, if a party believes he has been wronged, at least some comment should be made at the time of the occurrence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897571/	NO. 07-06-0431-CR NO. 07-06-0432-CR NO. 07-06-0433-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B MARCH 25, 2008 ______________________________ CLIFFORD EUGENE OSBORN, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; NOS. 17,126-C;17,127-C;18,231-C; HON. PATRICK PIRTLE, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. After a jury trial, Clifford Eugene Osborn was convicted of robbery, aggravated kidnaping, and unauthorized use of a motor vehicle. After finding the enhancements true, the jury assessed punishment at life for the robbery conviction, life for the aggravated kidnaping, and twenty years for the unauthorized use of a motor vehicle. Appellant’s appointed counsel has filed a motion to withdraw, together with an Anders brief, wherein he certifies that, after diligently searching the record, he has concluded that appellant’s appeals are without merit. Along with his brief, he has filed a copy of a letter sent to appellant informing him of counsel’s belief that there was no reversible error and of appellant’s right to file a pro se brief or response. By letter dated December 31, 2007, this court also notified appellant of his right to file his own brief or response by January 30, 2008, if he wished to do so. After requesting and receiving an extension of time, appellant filed a response wherein he contends 1) the trial court erred in refusing to grant the motion to suppress his statement, and 2) he was denied his right to counsel and meaningful access to the courts. In compliance with the principles enunciated in Anders, appellate counsel discussed several possible issues for appeal: 1) the sufficiency of the evidence to sustain the convictions, 2) the denial of motions to suppress appellant’s statement and his identification, 3) the sufficiency of the evidence to support a finding of “true” to the enhancement paragraphs during the punishment phase, 4) the appropriateness of the punishments assessed, and 5) the effectiveness of counsel. However, appellate counsel has explained why each argument lacks merit. We have also conducted our own review of the record to assess the accuracy of appellate counsel’s conclusions and to uncover any reversible error pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Our review has failed to reveal reversible error. Accordingly, the motion to withdraw is granted and the judgments are affirmed. Brian Quinn Chief Justice Do not publish.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/3345152/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM FILED MAY 7, 1997 The defendant's motion to dismiss this action for lack of subject matter jurisdiction is granted on the ground that a Mashantucket tribal member living on the reservation is not a resident of Connecticut for purposes of General Statutes §46b-44. CT Page 5059 I. Factual and Procedural History On November 1, 1995, the plaintiff, Marilyn Charles (hereinafter the "plaintiff") filed a complaint for dissolution of marriage against Owen Charles (hereinafter the "defendant") in the judicial district of New London at New London.1 The plaintiffs complaint alleges 1) that the plaintiff is a resident of Rhode Island, and that the defendant has continuously resided in Connecticut "for at least 12 months next preceding the date of the filing of this Complaint," 2) that the marriage between the two parties has broken down irretrievably, and 3) that the marriage has produced one minor child. The plaintiffs complaint requests various relief including alimony, temporary and permanent. custody of the minor child, child support, temporary and permanent, counsel fees, and equitable distribution of property.2 On November 22, 1995, the defendant filed an answer and cross-complaint. The defendant's cross-complaint alleges, inter alia, the following facts: 1) the parties were married in New Haven. Connecticut, on December 18, 1983 2) the defendant is "a resident and member of the Mashantucket Pequot Tribal Nation, Mashantucket, Connecticut;" 3) the marriage has broken down irretrievably with no hope of reconciliation; and 4) the marriage has produced one minor child. The defendant requests that this court dissolve the marriage, grant joint custody, bestow primary residence of the minor child in the Mashantucket Pequot Tribal Nation, and render a fair and equitable division of the personal property. On November 23, 1996, the defendant filed a motion to dismiss the complaint on the ground that the court lacked jurisdiction over the Person of the defendant and over the minor child. On March 25, 1996, the court, Teller J., heard oral argument on the defendant's motion to dismiss for lack of personaljurisdiction, at the end of which the court denied the defendant's motion to dismiss asserting that "[u]nder the circumstances of this case, the Court does have jurisdiction and is willing to exercise that jurisdiction, and therefore accepts such jurisdiction to make custodial determinations in this case. The motion to dismiss is therefore denied in all respects as stated."34 CT Page 5060 On October 7, 1996, the defendant filed a dissolution of marriage action with the Mashantucket Pequot Tribal Court (hereinafter the "tribal court").5 In conjunction with that action, the defendant also filed motions with the tribal court for custody and support of the minor child and payments of support from the plaintiff. On October 29, 1996, the defendant, at the direction of new counsel, filed a motion to dismiss and/or stay proceedings on the ground that the court lacked jurisdiction and, alternatively, that the preceding should be stayed pending resolution of the tribal court action. On March 10, 1997, this court denied the defendant's motion to stay the proceedings and ordered stricken the October 29, 1996 motion to dismiss, and ordered that the defendant file a new motion to dismiss.6 On March 24, 1997, the defendant filed a new motion to dismiss for lack of subject matter jurisdiction in compliance with the court's order dated March 10, 1997. On March 26, 1997, the plaintiff filed a memorandum in opposition to the defendant's motion to dismiss. On March 27, 1997, the court, Booth, J., heard oral argument on the defendant's motion to dismiss.7 II. Motion to Dismiss, Legal Standard "A motion to dismiss . . . properly attacks the jurisdiction of the court . . ." Gurliacci v. Mayer, 218 Conn. 531, 544,590 A.2d 914 (1991). "The motion to dismiss shall also be used to assert . . . lack of jurisdiction over the subject matter . . ." (Internal quotation marks omitted.) Sadloski v. Town ofManchester, 235 Conn. 637, 645 n. 13, 668 A.2d 1314 (1995). "[I]n deciding a motion to dismiss, [the trial court] must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Savage v. Aronson,214 Conn. 256, 264, 571 A.2d 696 (1990). However, "[a] ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action . . . [Rather,] [m]otions to dismiss are granted solely on jurisdictional ground[s]." (Citations omitted.) Discover Leasing,Inc. v. Murphy, 33 Conn. App. 303, 306-07, 635 A.2d 843 (1993). III. Jurisdiction over Dissolution Proceedings CT Page 5061 It is a familiar principle that a court which exercises ". . . statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Citations omitted; internal quotation marks omitted.) Figueroav. C and S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. (Citations omitted; internal quotation marks omitted.) Baldwin Piano and Organ Co. v. Blake, 186 Conn. 295,297, 441 A.2d 183 (1982). General Statutes § 46b-1 provides in pertinent part that: "[m]atters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving . . . dissolution of marriage, contested and uncontested . . ." General Statute § 46b-44 (a) provides in pertinent part: "[a] complaint for dissolution of a marriage or for legal separation may be filed at any time after either party has established residence in this state." [Emphasis added.] Furthermore, 46b-44 (c) provides that "[a] decree dissolving a marriage or granting a legal separation may be entered if: (1) [o]ne of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree . . ." [Emphasis added.] IV. Discussion It is uncontested that the parties resided in Florida before their separation. The plaintiff wife now resides in Rhode Island. Therefore, the jurisdictional requirement of residing in this state must be met, if at all, by the defendant husband. Nothing in this opinion is intended to address the issue which would have been presented if the plaintiff wife were a resident of Connecticut. The defendant argues that this court should grant his motion to dismiss because, as a tribal member and resident of the CT Page 5062 Mashantucket Pequot Indian Reservation, the defendant is not a resident of the state of Connecticut for the purposes of General Statutes § 46b-44. If neither party is a resident, this court lacks subject matter jurisdiction. Williams v. North Carolina,325 U.S. 226, 229-30 (1946). The plaintiff argues that the Superior Court has both subject matter and personal jurisdiction over the defendant, notwithstanding the defendant's residence on the reservation, and that Connecticut has civil jurisdiction over Indians and Indian lands within its boundaries on matters not affecting tribal sovereignty or tribal affairs. In view of the plaintiff's residence in Rhode Island, whether the court can exercise subject matter jurisdiction in this matter is dependent on whether reservation Indians are residents of the state of Connecticut for purposes of § 46b-44. Such an inquiry necessarily requires an analysis of federal law with regard to the jurisdictional relationship between the Indian tribe and the state. A. Federal Law As To State Jurisdiction Over Tribal Members Living On The Reservation While the primacy of federal jurisdiction in Indian affairs has never been in doubt, see Worcester v. Georgia, 31 U.S. 512 (6 Pet. 515) (1832); and Williams v. Lee, 358 U.S. 217, 219 (1959), the jurisdictional relationship between the several states and the various Indian tribes has been far less clear. "Essentially, absent governing Acts of Congress, the question has always been whether state action infringe[s] on the right of reservation Indians to make their own laws and be ruled by them." Williams v.Lee, supra, 358 U.S. 220. The United States Supreme Court has held that "the assertion of state authority over tribal reservations remains subject to two independent but related barriers . . . First, a particular exercise of state authority may be foreclosed because it would undermine the right of reservation Indians to make their own laws and be ruled by them . . . Second, state authority may be preempted by incompatible federal law."8 (Citations omitted; internal quotation marks omitted.) Three Affiliated Tribes v.Wold Engineering, 467 U.S. 138, 147 (1984); see also SchaghticokeIndians of Kent, Conn., Inc. v. Potter, 217 Conn. 612, 626-27,587 A.2d 139 (1991). CT Page 5063 In those cases where federal law has not preempted state law regarding Indians and Indian country, the state must determine whether the exercise of jurisdiction over matters concerning reservation Indians would "infringe on the right of reservation Indians to make their own laws and be ruled by them." Williams v.Lee, supra, 358 U.S. 220; White Mountain Apache Tribe v. Bracker,448 U.S. 136, 141-43 (1980). In determining whether jurisdiction infringes on the rights of reservations, a number of western states have developed a particularized inquiry meant to take into consideration the substantial federal interest in tribal self-government. This inquiry is in three parts: 1) whether the parties involved are Indians or non-Indians; 2) whether the cause of action arose within the Indian reservation; and 3) the nature of the interest to be protected. Chino v. Chino, 561 P.2d 476, 479 (N.M. 1977);Vega v. Medina, 549 N.W.2d 507, 509-10 (Iowa 1996); JacksonCounty Child Support Enforcement Agency v. Swayney,352 S.E.2d 413 (N.C. 1987), cert. denied, 484 U.S. 826 (1987); and Andersonv. Beaulieu, 555 N.W.2d 537 (Minn.App. 1996). B. Application In applying the above-mentioned analytical framework, the court notes that the Mashantucket Pequot tribe is a tribe officially recognized by the federal government and the state of Connecticut. 25 U.S.C.A. § 1758; § 47-59a of the Connecticut General Statutes, and that the Mashantucket Pequot reservation is Indian land for purposes of federal and state law.25 U.S.C.A. § 1755; see also State v. Spears, 234 Conn. 78,85 n. 6, 662 A.2d 80 (1995). This court can find no authority asserting that the state of Connecticut has assumed general civil jurisdiction over the Mashantucket Pequot reservation. SeeMashantucket Pequot Tribe v. McGuigan, 626 F. Sup. 245, 249 (D. Conn. 1986) (stating that Connecticut had acquired criminal but not civil jurisdiction over the Mashantucket Pequot reservation). Finally, this court has found no federal law specifically preempting state civil jurisdiction over reservation Indians in actions for dissolution of marriage. In LaBow v. LaBow, 171 Conn. 433, 370 A.2d 990 (1976), the Connecticut Supreme Court has stated that "[f]or the purposes of filing a complaint for dissolution of marriage or for the granting of alimony or support pendente lite, residence of one CT Page 5064 party, without a showing of domicile, is sufficient to give the court subject matter jurisdiction under [§ 46b-44].9LaBow v. LaBow, supra, 171 Conn. 438. However, for the court to have jurisdiction to grant a divorce decree, the statute requires that there be "domicile plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree. Those connections between either spouse and the state are sufficient to entitle the decree to full faith and credit."10 LaBow v. LaBow, supra, 171 Conn. 437. Thus, in order for this court to assume jurisdiction over this action one of the parties, the reservation Indian husband, must meet the residency requirement. Because this court cannot find any Connecticut law addressing the question of whether a reservation Indian is a resident of the state of Connecticut for purposes of § 46b-44, it is necessary to examine the law of other states. In Wells v. Wells, 451 N.W.2d 402 (S.D. 1990), the South Dakota Supreme Court addressed the subject matter jurisdictional requirement of domicile in a divorce action as it applied to an Indian plaintiff living off the reservation and an Indian defendant living on the reservation. In asserting that the State had jurisdiction, the Court first observed that the United States Supreme Court, in Willams v. State of North Carolina,325 U.S. 226, 229-30 (1946), had established that "[t]he domicile of one spouse within a State gives power to that State . . . to dissolve a marriage wheresoever contracted."11 Id. 404. Aware that Indian/state relations is governed by the presence or absence of federal law, the South Dakota Court next applied the Lee infringement test. In finding that the State's assertion of jurisdiction over the action did not infringe on Indian self-government, the South Dakota court stated that "when an Indian leaves the reservation and establishes a new domicile, a situation significantly different from [Williams v.] Lee arises."12 Id. 405. In reaching its conclusion, the Court first hypothesized that if it were faced with a dissolution proceeding in which all the parties were Indians residing on the reservation, a South Dakota Court would clearly lack subject matter jurisdiction to hear the matter. Id. 406. Second, the court observed that even if one of the parties were merely off the reservation in the state of South Dakota that the state court would not necessarily have CT Page 5065 jurisdiction over an Indian party. Id. 405. However, the court found that where one of the parties moves off the reservation and establishes domicile "the tribal sovereignty that the court inLee sought to protect is no longer threatened." Id. The Court concluded that "[o]nce Dolly left the reservation and took up residence in Rapid City, the state acquired an interest in the marriage of Dolly and William, and their divorce can no longer be characterized as a "reservation matter." Id. In Flammond v. Flammond, 621 P.2d 471 (Mont. 1980), the Montana Supreme Court also analyzed the issue of state subject matter jurisdiction over reservation Indians in a domestic relations dispute. In Flammond, the Montana court held that the district court lacked subject matter jurisdiction in an action for child support brought by an out-of-state plaintiff against a reservation Indian in that there were no off-reservation acts by the defendant in Montana sufficient to vest the state court with jurisdiction over him. In Flammond, the plaintiff mother brought an action in the Montana district court seeking to enforce child support payments against the defendant father under Montana's Uniform Reciprocal Enforcement of Support Act (hereinafter "URESA"). Id. 472. The couple was married in Montana; they then moved to California. Id. The wife was a non-Indian; the husband was an enrolled member of the Blackfeet Tribe. Id. Upon the couple's separation, the mother remained in California and established residency, and the father moved back to Montana and lived on the Blackfeet reservation. Id. The mother subsequently filed a petition under the state of California's URESA law seeking monthly child support. Id. The California Superior Court found that the husband had a duty to provide child support and ordered the filing of an enforcement action in Montana against the husband. Id. The wife brought an action in Montana, and the husband subsequently moved to dismiss the action alleging that the state of Montana had no jurisdiction over him. Id. In holding that the district court did not have subject matter jurisdiction to entertain the action, the Montana Court stated that "[w]here as here, neither the state nor the tribe has complied with the current federal enabling statutes, 25 U.S.C. § 1321-1326, regulating the extension of state civil and criminal jurisdiction to Indian reservations, Montana may not exercise subject matter jurisdiction over transactions arising on Indian reservations . . . unless the transaction entails CT Page 5066 `significant' or `substantial' contacts with the state outside of reservation boundaries."13 (Citations omitted.) Id. 472. The court concluded that "[h]ere there are absolutely no off-reservation acts in Montana sufficient to vest state courts with jurisdiction over the respondent, a reservation Indian. The only off-reservation acts occurred in California. It is well-settled that a reservation Indian's domicile on the reservation is not an in-state contact which grants jurisdiction to state courts. Id. 473, citing Fisherv. District Court, 424 U.S. 382 (1976); Kennerly v. District Court,400 U.S. 423 (1971); Williams v. Lee, supra, 238 U.S. 217. TheFlammond court clearly held that the reservation was outside the territorial jurisdiction of the state of Montana.14 Id. This court's analysis is framed by jurisdictional reference points gleaned from Wells, Flammond and Vega v. Medina,549 N.W.2d 507 (Iowa 1996).15 First, federal law has not preempted the state's jurisdiction over Indians involving dissolutions of marriage. Second, residence on a reservation located within the territorial boundary of a state does not satisfy the requirement that a party be domiciled within a state for purposes of granting a dissolution of marriage subject to full faith and credit. Third, Indians or non-Indians, such as the plaintiff here, domiciled off of the reservation, but within the geographical boundary of the state, are treated no differently than any other resident of the state for purposes of divorce actions. Fourth, Indians domiciled on the reservation may be subject to state court jurisdiction if they have sufficient contacts with the state to give the state a strong interest in the matter. Applying the above-mentioned analysis to the present case, this court is confronted by a dissolution proceeding between a non-Indian plaintiff and an Indian defendant concerning events which occurred off the reservation. Thus, this case is not one where the tribe could assert exclusive jurisdiction over the matter, assuming there was an appropriate tribal forum in which to bring the dispute. However, the non-Indian plaintiff is not a resident of Connecticut for purposes of § 46b-44. While the dispute is between an Indian and a non-Indian, giving the tribe less of a jurisdictional interest, Connecticut courts can only exercise jurisdiction if one of the parties is a resident of Connecticut for purposes of § 46b-44. The subject matter of this dispute, the breakup of the marriage, neither occurred on the reservation nor in the state of CT Page 5067 Connecticut. While the couple was married in Connecticut, the parties lived most of their married lives in Florida. When the couple returned to the area, the plaintiff established residency in Rhode Island and the defendant moved to the Mashantucket reservation. While these contacts do not weigh in favor of tribal jurisdiction, neither do they weigh in favor of jurisdiction by the state of Connecticut. The Wells case is most closely analogous to the facts currently before this court. The Wells court, as this court must, had to have residency over one of the parties before it could acquire subject matter jurisdiction. Wells v. Wells, supra. While the Wells case stands for the proposition that a reservation Indian cannot use his or her residency as a shield against a state court action where the party bringing the action is domiciled in that state, the Wells court did hold that the reservation was not a part of South Dakota; it was separate and distinct, and only the domicile of one of the parties in that state and off the reservation gave the court jurisdiction. Id. While less analogous, the Flammond case also has a telling similarity to the facts in this case. The plaintiff mother was domiciled out of state. The defendant father was domiciled on a reservation in Montana, and the "cause of action" accrued in yet a third state. Flammond v. Flammond, supra. In concluding that it could not exercise jurisdiction in the matter, the court determined that the defendant's residence on the reservation was not a sufficient contact in and of itself to give the court jurisdiction. Id. 473. The United States Supreme Court has stated that "[u]nder our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicile . . . The domicile of one spouse within a State gives power to that State . . . to dissolve a marriage wheresoever contract . . . Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance." (Citations omitted.) Williams v. North Carolina, 325 U.S. 226, 230 (1944). Divorce deeply affects not merely the individuals involved in the action but also the communities in which they reside. Rhode Island, by virtue of the plaintiff's residence, has an interest in the outcome of the divorce proceeding. The Mashantucket Pequot Tribe, by virtue of the defendant's residency and tribal membership, has an interest in the outcome of the proceeding. This court fails to find a corresponding interest for the state CT Page 5068 of Connecticut. For the foregoing reasons, the court concludes that a Mashantucket tribal member residing on the reservation does not satisfy the residency requirement of § 46b-44.16 In ruling thus, this court does not question the previous ruling of valid in personam jurisdiction over the defendant. This court is faced with the peculiar situation in which an out-of-state plaintiff brings a divorce action against a Mashantucket Pequot tribal member living on the reservation. Whether the tribal court has subject matter or personal jurisdiction over this dissolution is not a proper concern of this court. Clearly, even if the tribal court has subject matter jurisdiction over this matter, personal jurisdiction must be validly obtained if the decrees of the tribal court are to be free from collateral attack and entitled to full faith and credit. The defendant's motion to dismiss is granted on the ground that this court lacks subject matter jurisdiction to hear the case. BOOTH, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3345153/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM DATED DECEMBER 19, 1995 I. Introduction This is an appeal from the approval of a special permit by the defendant Glastonbury Town Planning and Zoning Commission (TPZ). Under the terms of the special permit, the defendants George and Mary Ferrando are authorized to create a rear lot abutting the property owned by the plaintiff, John Catania. Access to the rear lot will be via an easement in favor of the Ferrandos over the plaintiff's property. The plaintiff makes three claims in this appeal. The first is that approval of the rear lot is effectively the approval of an illegal resubdivision, and therefore barred by the applicable Glastonbury zoning regulations. The second is that the easement in favor of the Ferrandos is not "perpetual and indefeasible" as required by the regulations governing access to rear lots. Finally, the plaintiff argues that the TPZ erred by reconsidering what the plaintiff claims to be the identical application previously denied by the Commission. II. Facts Although this case arises out of a tangled procedural and factual history, the basic facts shaping this appeal are not disputed. In October, 1994, the Ferrandos applied to the TPZ for a rear lot special permit and a one lot subdivision for the purpose of creating a one lot subdivision at the rear of their property. The land owned by the defendants was previously owned by Mr. Ferrando's father. In 1947 the elder Ferrando conveyed a portion of his property to his daughter and son-in-law (the Manfredis). Subsequently, the balance of the father's property was conveyed to the defendants such that the Manfredi and Ferrando families are abutting landowners. Both parcels, known as 1137 and 1143 Main Street, are the sites of the Ferrando and Manfredi residences and are served by a common driveway which leads to both properties and to a garage that prior to 1960 was used and occupied by the Manfredi family but actually located on the Ferrando property. In 1960 the defendants conveyed to the Manfredi family a small, landlocked parcel containing the garage. This conveyance shifted the boundary of the abutting lots with the garage parcel becoming a part of the lot known as 1143 Main Street. In 1986 two developers, operating under the name of Red Hill Development Corporation (RHDC), purchased the rear portion of the Ferrando property for the purpose of creating a subdivision. The Ferrandos retained seven acres for themselves. As part of the transaction with RHDC, RHDC conveyed back to the defendants an easement providing access from the new subdivision to a future rear lot in the Ferrandos' remaining seven acres. The plaintiff's property is located on a portion of the property conveyed to RHDC by the Ferrandos, and is subject to the easement providing the defendants with a right of way to the lot they now seek to develop. In April, 1994, the defendants applied to the TPZ for a rear lot special permit. Because of the previous sale to RHDC, the Ferrandos concluded that the proposed rear lot would constitute a CT Page 14596 subdivision within the meaning of the Glastonbury Regulations and therefore also simultaneously applied for a permit for a one lot subdivision. By a vote of 3-3 the TPZ failed to approve the Ferrando application. One of the reasons for the Commission's decision was the Commission's concern that access to the rear lot ought to be through Main Street rather than through Red Hill and across the reserved easement area. Following this suggestion, the Ferrandos then made application to Glastonbury Inland and Wetlands Agency (Wetlands Agency) for approval to access the rear lot from Main Street through a regulated wetland area. The Wetlands Agency rejected the Ferrandos' application. They then again applied to the TPZ for permission for a rear lot special permit and one lot subdivision approval. After receipt of extensive evidence, including two opinions by the Town Attorney that the rear lot division of the Ferrando property constitutes a subdivision, and not a re-subdivision as argued by the plaintiff, the TPZ granted the rear lot special permit and approval for a one lot subdivision. This appeal followed. III. Standard of Review "It is axiomatic that a planning commission, in passing on a subdivision [and special permit] application, acts in an administrative capacity and is limited to determining whether the plan complies with applicable regulations. It is equally axiomatic that the trial court, in reviewing the action of a planning commission . . . may not substitute its judgment for that of the planning commission." R.B. Kent Son v. PlanningCommission, 21 Conn. App. 370, 373 (1990). "The decision of the Commission is reviewed in light of the record developed before it. It is enough to point out the reasonableness of the conclusions arrived at . . . the essential question, in any case, is whether the [commission's decision] is reasonably supported. Courts do not substitute their own judgment for that of the Commission so long as an honest judgment has been reasonably and fairly exercised after a full hearing." Westport v. Norwalk,167 Conn. 151, 161 (1974) (internal quotations and citations omitted). "[T]he court may grant relief on appeal only where the local authority has acted illegally or arbitrarily or has abused its discretion." Frito-Lay, Inc. v. Planning Zoning Commission,206 Conn. 554 (1988). IV. Aggrievement CT Page 14597 The evidence demonstrates that the plaintiff is the owner of the property abutting the defendant. Accordingly, the plaintiff is statutorily aggrieved. Bossert Corp. v. Norwalk, 157 Conn. 279 (1968). V. Discussion A. The plaintiff's first claim is that the Glastonbury Zoning Regulations prohibit the creation of a rear lot out of an existing subdivision. Because, according to the plaintiff, the Ferrandos had effectively created a subdivision by virtue of their 1960 and 1986 conveyances, the TPZ is barred from approving the Ferrandos' application for rear lot approval. This argument is based on the following sub-arguments: (1) a subdivision within the meaning of the Glastonbury Zoning Regulations was created, but never approved, when the Ferrandos divided the parcel originally conveyed to them by the elder Ferrando into three lots; (2) the Ferrando conveyance to the Manfredis of the parcel containing the garage created one of the three lots necessary for the creation of a subdivision; and (3) because the 1960 and 1986 conveyances created three lots and therefore a de facto subdivision, the TPZ's approval of the rear lot application constituted a resubdivision. Glastonbury Building Zone Reg. 6.8.3 provides: RESUBDIVISION LIMITATION: A § 6.8 Special Permit shall not be granted in conjunction with any rear lot created by the resubdivision of any lot(s) which are part of any subdivision approved after the effective date of this ordinance. General Statutes § 8-18 and § 2.23 define resubdivision as follows: a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use, or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval CT Page 14598 or recording of such map. Finally, § 2.20 of the Town of Glastonbury Subdivision Regulations defines "subdivision" as: . . . the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development . . . The plaintiff's argument is grounded on the claim that the conveyances by the Ferrandos created three lots and therefore a subdivision within the meaning of the Glastonbury Zoning Regulations. If the plaintiff cannot establish that predicate fact, the balance of his claim must necessarily fail. We therefore turn now to that part of his argument. Under § 2.20 of the Glastonbury Zoning Regulations a subdivision can only be created when a parcel of land is divided into three or more parcels for the purpose of sale or building development. This requires "two cuts" or two conveyances. It is undisputed that the 1986 conveyance to RHDC constitutes a division of the Ferrando property for the purpose of sale or development. The disputed issue in this case is whether the 1960 conveyance by the Ferrandos to the Manfredi family of the garage and the contiguous land was a division for the purpose of' sale or development. The defendant Commission concluded it was not. That decision is amply supported by the evidence. The Commission had before it evidence that the conveyance of the garage and parcel was between two siblings for the purpose of conveying to the Manfredi family a garage utilized by the Manfredis, but located on the Ferrando property. This view was confirmed by the opinion of the Town Attorney whose review of the land records indicated that the garage was conveyed with the property and for the express purpose of adjusting the boundaries of the siblings to reflect their actual use of the property and garage. The plaintiff has not pointed to any evidence indicating that the conveyance was for "the purpose of sale or building development." Indeed, the record is devoid of any evidence suggesting that sale or development was the reason for the conveyance. The Commission's conclusion on this issue is supported by substantial evidence. Feinson v. ConservationCommission, 180 Conn. 421, 425 (1980). Accordingly, the defendant CT Page 14599 Commission was justified in rejecting the plaintiff's claim that the approval of the rear lot application constituted a resubdivision. B. The plaintiff next argues that the defendants failed to comply with the condition that the owners of a rear lot own a perpetual, indefeasible interest in a right of way providing access to the rear lot. The plaintiff claims that the Ferrandos' easement across the plaintiff's property is subordinate to preexisting drainage and sewer easements in favor of the Town of Glastonbury, and therefore, is neither perpetual nor indefeasible. Section 6.8.4 of the Glastonbury Zoning Regulations provides: "Except as provided in § 6.8.4.i. the owner(s) of each rear lot or lots shall own a perpetual, indefeasible interest in a right-of-way at least 20 feet wide . . ." As part of the transaction with RHDC in which the Ferrandos conveyed seven acres to it, RHDC conveyed back to the Ferrandos an easement. As stated in the deed, the easement contains language reciting warrants and covenants that RHDC owned the land and was conveying an indefeasible estate. The express language of the deed clearly binds the grantor (RHDC) and its successors and assigns to the terms of the easement. In short, RHDC conveyed to the Ferrandos a fee simple interest. The plaintiff argues that notwithstanding the fee simple interest conveyed to the Ferrandos, the easement is not perpetual and indefeasible because of the Town of Glastonbury's preexisting drainage and sewer interest in the identical location conveyed to the Ferrandos. As the plaintiff correctly notes, there appears to be no Connecticut cases defining perpetual and indefeasible. Black's Law Dictionary defines perpetual as "never ending." Indefeasible is defined as, "[t]hat which cannot be defeated, revoked or made void." The RHDC conveyance of a fee simple interest, by its terms, is the conveyance of a never ending interest which cannot be revoked. "The term `absolute fee' is synonymous with `fee simple' and means whole or unlimited estate." Frank Towers Corporation v. Laviana, 140 Conn. 45, 52 (1953). The defendant's claim that the preexisting sewer and drainage easements in favor of the Town of Glastonbury renders the Ferrando easement either non-perpetual or defeasible is neither supported by the record nor consistent with the plain CT Page 14600 meaning of those terms. While the defendant is correct that the Ferrandos do not haveexclusive use of the easement, it does not follow that their interest — although shared with the Town — is not perpetual or voidable. Having received a fee simple interest in the easement, the Ferrandos' and their successors' interest in it is perpetual. It is also indefeasible since no event can occur that would divest the Ferrandos of their ownership interest in the property.Id. The TPZ did not err when it concluded that the Ferrando easement satisfied the requirements of § 6.8.4 of the Glastonbury Zoning Regulations. The plaintiff's last claim is that the defendant Commission erred by granting the Ferrandos' application after having previously rejected it. The facts giving rise to this argument are essentially uncontested. In April, 1994 the Ferrandos filed their initial application with the Commission. In August, 1994, by a 3-3 vote the Commission failed to approve it. The record discloses that one of the principal factors considered and relied upon by the Commission was the possibility that access to the rear lot could be obtained from an entrance on Main Street, rather than from the Red Hill subdivision. In response to the defendant's August decision, the Ferrandos applied to the Glastonbury Inland Wetlands and Watercourses Agency for permission to access the rear lot from Main Street. That agency's approval was necessary because such an entrance would affect protected wetlands areas. The Wetlands agency rejected the Ferrandos' application in September 1994. In October 1994, the Ferrandos again submitted applications to the TPZ Commission. Those applications were, of course, ultimately approved, and are the subject of this appeal. Relying on Consiglio v. Board of Zoning Appeals,153 Conn. 433, 438 (1966), the plaintiff argues that the second application to the Board should have been denied in the absence of a material change of circumstances. In Consiglio, the Court indicated that the following rule should govern the consideration of similar prior applications: The case comes clearly within the established law or this state which prohibits a zoning board of appeals from reversing its previous decision unless the facts and circumstances which actuated the decision are shown to have so changed as to vitiate CT Page 14601 or materially affect the reason which produced and supported it and no vested rights have intervened. Id., 438. Whether there has been a material change of circumstances is a matter which is entrusted to the sound discretion of the agency. Fuller, 9 Connecticut Practice Series, Land Use Law andPractice, § 9.6. In this matter, the Commission failed to approve the application because of the suggestion by the neighbors, including the plaintiff, that the entrance to the rear lot be located on Main Street and not through the Red Hill property. Acceding to that suggestion, the Ferrandos made application to the Inland Wetlands Commission for permission to construct the entrance through Main Street and across a regulated wetland area. The Wetlands Commission rejected the Ferrandos' application. Having unsuccessfully attempted to address the defendant Commission's concerns, it would be anomalous to conclude that the Ferrandos should now be barred from returning to the TPZ. Such a conclusion would create a Catch-22 in which an applicant, whose original request is in effect deferred in order for the applicant to accommodate a planning and zoning commission's concerns, would be prohibited from having the application considered on its merits when the efforts to address those concerns are unsuccessful. The defendant Commission did not abuse its discretion in considering the Ferrandos' second application. Frito-Lay, Inc. v. Planning Zoning. For the foregoing reasons, the plaintiff's appeal is dismissed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2908244/	Simmons v. State IN THE TENTH COURT OF APPEALS No. 10-95-301-CR Â Â Â Â Â Â Â Â ALBERT J. SIMMONS, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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 Â Â Â Â Â Â Â Â v. Â Â Â Â Â Â Â Â 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 Appellee From the 249th District Court Johnson County, Texas Trial Court # 28803 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â O P I N I O N Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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, Albert James Simmons, pled guilty to the felony offense of possession of a controlled substance, Tex. Health & Safety Code Ann. Â§ 481.115(a) (Vernon Supp. 1996), and was placed on two years' deferred adjudication. After the State filed a motion to revoke Simmons' probation based on probation violations, the trial court held a revocation hearing and sentenced Simmons to twelve years' incarceration for his original offense. Simmons raises one point of error on appeal: the trial court erred in proceeding to adjudication of his conviction because it lacked jurisdiction. However, because Simmons failed to preserve his complaint, we overrule it and affirm the trial court's judgment. Â Â Â Â Â Â Â Â Â Â Simmons contends that the trial court's failure to adjudicate his guilt on the original charge of possession of a controlled substance prior to the expiration of his probationary period deprived the trial court of its jurisdiction over him. Simmons relies on Article 42.12, Section 5(c), of the Code of Criminal Procedure for this contention. Tex. Code Crim. Proc. Ann. art. 42.12, Â§ 5(c) (Vernon Supp. 1996). In pertinent part, the section reads: "On expiration of a community supervision period . . . , if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him." Id. In Prior v. State, the Court of Criminal Appeals set forth the requirements of this section. 795 S.W.2d 179, 184 (Tex. Crim. App. 1990). The Court held specifically that "a trial court has jurisdiction to revoke deferred adjudication probation . . . after the probationary term has expired, as long as both a motion alleging a violation of probationary terms is filed and a capias or arrest warrant is issued prior to the expiration of the term, followed by due diligence to apprehend the probationer and to hear and determine the allegations in the motion." Id. Simmons' probationary period expired on March 18, 1995. On March 10, 1995, eight days before Simmons' probationary term expired, the State filed a motion alleging Simmons had violated his probation and a capias was issued for his arrest. Â Â Â Â Â Â Â Â Â Â Simmons' argument, however, focuses on the due diligence requirement imposed by Prior. Id. Simmons maintains that because the trial court did not adjudicate his guilt until September 28, 1995, over six months after his probationary term expired, the State failed to satisfy the due diligence requirement, resulting in the trial court's loss of jurisdiction over him. This Court has held that lack of due diligence is not a jurisdictional issue. Burch v. State, 821 S.W.2d 385, 386-87 (Tex. App.âWaco 1991, no pet.). Therefore, because a motion to revoke Simmons' probation had been filed and a capias issued for his arrest before the expiration of his probationary period, the trial court had proper jurisdiction over Simmons' revocation hearing. Â Â Â Â Â Â Â Â Â Â Lack of jurisdiction is considered a fundamental error which does not require preservation for appeal. Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App. 1995) (holding that lack of jurisdiction is a fundamental error that is appealable at any time even if it is raised for the first time on appeal). However, because we have determined that Simmons' complaint is not grounded in a jurisdictional basis and was thus not a fundamental error, he was required to properly preserve his complaint about due diligence at the trial level. Tex. R. App. P. 52(a). Â Â Â Â Â Â Â Â Â Â Prior holds that a probationer, who fails to specifically raise the issue of lack of due diligence by the State before or during his revocation hearing, waives his right to such complaint because it cannot be raised for the first time on appeal. Prior, 795 S.W.2d at 185. In Prior, the appellant sought to complain of the lack of due diligence in the State's apprehension of him after the arrest warrant had been issued. Id. at 184-85. In the present case, Simmons seeks to complain of the State's lack of due diligence in holding the revocation hearing after his arrest. The requirement of preserving a complaint of lack of due diligence is the same in both instances. At his revocation hearing, Simmons' only complaint was to the trial court's lack of jurisdiction to revoke his probation and adjudicate his guilt on the original charge. No specific complaint as to the State's lack of due diligence was made. Because the court had jurisdiction and Simmons did not properly preserve his complaint, we overrule his point of error. Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995); Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994), cert. denied, â U.S. â, 115 S. Ct. 1115 (1995); Fuller v. State, 827 S.W.2d 919, 920 (Tex. Crim. App. 1992) (complaint raised on appeal must comport with the objection made at trial). Â Â Â Â Â Â Â Â Â Â Â The judgment 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 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â BOBBY L. CUMMINGS Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Before Justice Cummings, Â Â Â Â Â Â Â Â Â Â Justice Vance, and Â Â Â Â Â Â Â Â Â Â Justice McDonald (Retired) Affirmed Opinion delivered and filed September 11, 1996 Do not publish rst issue, he contends that the evidence that he possessed a firearm was legally insufficient. We will overrule AppellantÂs issue. Â Â Â Â Â Appellant points to evidence that he was not found at the scene of the offense; and was not in possession of a firearm at the time of his arrest.Â The offense took place in Mexia, Texas, on April 27, 2002, after which a warrant for AppellantÂs arrest was issued; Appellant was arrested on the warrant on March 6.[1] Â The victim testified that Appellant pulled a pistol out of his pants and beat him with it.Â Photographs and medical records showed the victimÂs injuries, including fractures to the bones of his face.Â The radiologist and emergency room doctor who treated the victim testified that his injuries were Âconsistent with blows from a blunt object.ÂÂ Testimony of the investigating officer corroborated this other evidence.Â Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant possessed a firearm.Â See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Martinez v. State, 129 S.W.3d 101, 105 (Tex. Crim. App. 2004).Â We overrule AppellantÂs first issue. 2.Â Â Â Factual Sufficiency of the Evidence.Â In AppellantÂs second issue, he contends that the evidence that he possessed a firearm was factually insufficient.Â We will overrule AppellantÂs issue. Â Â Â Â Â Appellant points to the following evidence that, he argues, is contrary to the verdict:[2] Â·Â Â Â Â Â Â Â When the Mexia police officer responded to the initial call, to the bar where Appellant assaulted the victim, neither Appellant nor the victim was still there. Â·Â Â Â Â Â Â Â When the officer returned to the bar for follow-up investigation, he did not speak to anyone who could Âconfirm or denyÂ the victimÂs complaint; he did not speak to anyone. Â·Â Â Â Â Â Â Â A warrant was issued for AppellantÂs arrest, and he was later arrested. Â·Â Â Â Â Â Â Â The officer was not acquainted with Appellant. Â·Â Â Â Â Â Â Â The Âmedical evidence aloneÂ did not allow the victimÂs doctors to determine the instrument that caused his injuries any more specifically than to say that it was a Âblunt object.Â The evidence supporting the verdict is stated above.Â Considering the evidence in a neutral light, and giving due deference to the juryÂs credibility determinations, the jury was rationally justified in finding beyond a reasonable doubt that Appellant possessed a firearm.Â See Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004); Martinez, 129 S.W.3d at 106.Â We overrule AppellantÂs second issue. 3.Â Â Â Discovery.Â In AppellantÂs third issue, he contends he was denied due process in that the State did not produce the pistol, which law enforcement officers never found, for examination by an expert.Â Appellant does not point to any place in the record where his complaint is preserved, and thus forfeits the complaint.Â See Tex. R. App. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 267 (Tex. Crim. App. 2003), cert. denied, 124 S.Â Ct. 2837 (2004); cf. Cooks v. State, 844 S.W.2d 697, 737 (Tex. Crim. App. 1992) (Âwhere the existence ofÂ evidence Âis unknown, the court cannot compel production thereofÂ).Â We overrule AppellantÂs third issue. 4.Â Â Â Effective Assistance of Counsel.Â In AppellantÂs fourth issue, he contends that his trial counsel failed to render the effective assistance of counsel.Â We will overrule AppellantÂs issue.Â Â Â Â Â Â AppellantÂs primary complaint is that counsel did not object to evidence of a prior felony conviction, and did not object to references to that conviction throughout trial.Â A prior felony conviction is an element of the offense of possession of a firearm by a felon.Â See Tex. Penal Code Ann. Â§Â 46.04(a).Â Evidence thereof was thus admissible, and references thereto were proper.Â See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003), cert. denied, 124 S.Â Ct. 2022 (2004).Â Not objecting to admissible evidence does not constitute ineffective assistance.Â McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992); Bell v. State, 867 S.W.2d 958, 962 (Tex. App.ÂWaco 1994, no pet.); see Jackson v. State, 33 S.W.3d 828, 841 (Tex. Crim. App. 2000).Â Appellant also contends that counsel did not object to references to an extraneous offense in the Âpenitentiary packetÂ that the State offered to prove the prior conviction.Â See Tex. Code Crim. Proc. Ann. art. 42.09, Â§Â 8(b) (Vernon Supp. 2004).Â We do not perceive that two obscure references to dates in the penitentiary packet refer to a later conviction.Â Appellant also complains that counsel did not object to the admission, during the punishment phase, of the judgment of AppellantÂs conviction for aggravated robbery.Â The judgment recites, in error, that Appellant Âis guilty of the offense of AGGRAVATED ASSAULT.ÂÂ We do not perceive that counselÂs not objecting on that basis was professionally unreasonable, or that Appellant suffered any prejudice thereby.Â See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668, 694 (1984); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003), cert. denied, 124 S.Â Ct. 2098 (2004).Â We overrule AppellantÂs fourth issue. Â Â Â Â Â Having overruled AppellantÂs issues, we affirm the judgment. TOM GRAY Chief Justice Before Chief Justice Gray, Â Â Â Â Â Justice Vance, and Â Â Â Â Â Justice Reyna Â Â Â Â Â (Justice Vance concurring) Opinion delivered and filed September 15, 2004 Affirmed Do not publish [CR25] [1]Â Â Â Â Â Â In AppellantÂs brief, he states that the arrest warrant was executed in Austin.Â Appellant does not point to evidence of this in the record. [2]Â Â Â Â Â Â Appellant also points to evidence from the punishment phase of trial, which we do not consider in evaluating the sufficiency of the evidence of his guilt.	01-03-2023	09-10-2015
https://www.courtlistener.com/api/rest/v3/opinions/3342130/	The trial court found that the defendant and one Lorenzo Rowe were observed using one of the four self-service quarter-operated vacuum machines of Wurdig's Car Wash in Bloomfield. Rowe took a claw-type hammer from the trunk of the car and proceeded to bang on and pry open the coin box while the defendant was vacuuming the car. Later the car was moved to another vacuum machine. When the police were summoned the owner opened the four coin boxes and found two empty, one of which was damaged. There was evidence that the other empty box had been forcibly opened. There should have been at least one quarter in each box because the owner regularly inserted a quarter marked with a red dot into each of his *Page 768 machines. Upon a search of the car the police found, on the floor of the back seat, a claw-type hammer and, in a partially opened ash tray in the front-seat section, four dollars in quarters. At the trial the defendant admitted that he was in possession of the car but claimed that his only purpose in being at the car wash was to have it cleaned and washed for his aunt who owned it. The defendant concedes, as he must, that, based on the evidence adduced at the trial, Rowe had committed the crimes of possession of burglar's tools, criminal mischief in the third degree and larceny in the fourth degree. While the court found that the defendant was not actively engaged in the commission of any of the crimes charged, it did find that the defendant was guilty as an accessory. The defendant claims that there was insufficient evidence for the court so to find. An examination of the transcript reveals that there was ample evidence from which the court could find, as it did, that the defendant was acting in concert with Rowe in his criminal activities. Although the defendant claims that he was a mere passive bystander, the circumstances under which the defendant was using the vacuum point unmistakably to the conclusion that he was an accessory. State v. Laffin, 155 Conn. 531, 536. The defendant's assignment respecting the claimed unconstitutionality of 54-1a of the General Statutes has been dealt with and disposed of by our decision in State v. Auclair,33 Conn. Super. Ct. 704. The remaining assignments of error either have been abandoned in the brief or have not been briefed and are, therefore, considered abandoned. State v. Hall, 165 Conn. 599, 607. There is no error. SPEZIALE, PARSKEY, and SPONZO, Js., participated in this decision.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1407971/	658 S.E.2d 773 (2008) PRESLEY v. The STATE. No. A07A2440. Court of Appeals of Georgia. February 22, 2008. Reconsideration denied March 7, 2008. 774 Gerard Bradley Kleinrock, for Appellant. Gwendolyn Keyes Fleming, Dist. Atty., Daniel James Quinn, Asst. Dist. Atty., for Appellee. 775 PHIPPS, Judge. On this appeal from his conviction for cocaine trafficking, Eric Presley argues that the evidence was insufficient, that the trial court erred when it closed voir dire proceedings to the public and when it instructed the jury not to open a package of cocaine during its deliberations, and that trial counsel was ineffective. We find no error and affirm. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.[1] We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.[2] So viewed, the record shows that Presley was under surveillance in the course of a police buy-and-bust operation when he left a Wendy's parking lot and drove onto a nearby interstate. Four officers in pursuit saw a white puff rise from the area of Presley's car, pulled over to investigate, and found powder and chunks of suspected cocaine. Two of the officers scraped the white substance off the pavement. The other two officers apprehended Presley, who had bailed out of his car and fled on foot, at his residence. The white substance retrieved from the pavement was later identified as 40.86 grams of 72 percent pure cocaine. 1. The evidence outlined above was sufficient to sustain Presley's conviction for cocaine trafficking.[3] 2. Presley argues that the trial court violated his right to a public trial when it excluded the public from the courtroom during voir dire. We disagree. The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.[4] The record shows that before conducting voir dire, the trial court asked Presley's uncle to wait outside the courtroom because the limited available seats would be filled with prospective jurors. The trial court told the uncle that although he was "welcome to come in after we complete selecting the jury," he could not "sit and intermingle with members of the jury panel." At the hearing on Presley's motion for new trial, a bailiff testified that the county courtrooms become very crowded during voir dire, that it is difficult to maintain security under those circumstances, and that only one deputy is assigned to each courtroom when a defendant is not in custody. Presley was not in custody at the time of his trial. There was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return afterward.[5] 3. Presley argues that the trial court erred when it instructed the jury not to open the package containing the recovered cocaine. Specifically, he asserts that the jury 776 should have been free to open the package in order to conduct "its own review of the physical evidence." The jury was not equipped to do anything more than scrutinize the package of cocaine, however, and the trial court did not abuse its discretion when it instructed the jury not to open the package.[6] 4. Presley argues that trial counsel was ineffective when he (a) failed to argue that the state's testing of the cocaine was inadequate and neglected to highlight gaps in the chain of custody of the cocaine; (b) failed to object to hearsay evidence concerning the weight of a package of cocaine unrelated to the charge on which Presley was convicted; and (c) failed to object to the court's instruction not to open the package of cocaine. We disagree with these contentions. To show ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense.[7] The question of ineffectiveness is a mixed one of both law and fact: "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."[8] To show deficient performance, a defendant must overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct and that counsel's decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case.[9] (a) At the hearing on Presley's motion for new trial, trial counsel testified that he did not cross-examine the state's laboratory analyst concerning her testing of only a small portion of the cocaine because an attack on the analyst's methodology would have been "ludicrous" and likely to alienate a jury. Counsel also testified to his judgment that there had been no significant problems with the chain of custody and that additional cross-examination on the issue might have undermined the credibility of Presley's case. We will not second-guess the trial court's conclusion that these tactical decisions concerning the scope of cross-examination were reasonable.[10] (b) One of the officers testified that police were surveilling the Wendy's restaurant as part of their buy-and-bust "operation . . . for a kilo[gram]" of cocaine. A kilogram of the drug was later recovered at Presley's residence after his arrest. The trial court granted a directed verdict on charges relating to possession of this material, and twice instructed the jury to disregard all evidence related to those charges. Even assuming that the kilogram found at Presley's residence was not the specific target of the police's investigation at the Wendy's restaurant, the officer's characterization of the surveillance as attempting to buy a "kilo" was based on his own personal knowledge and was not hearsay.[11] Trial counsel was thus not ineffective when he failed to object to this testimony on the ground of hearsay.[12] 777 (c) Presley has cited no law suggesting that the trial court's instruction not to open the cocaine was erroneous. Thus he has no basis for his assertion that counsel's failure to object to the instruction amounted to ineffective assistance.[13] Judgment affirmed. JOHNSON, P.J., and MIKELL, J., concur. NOTES [1] Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). [2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). [3] See OCGA § 16-13-31(a)(1) (defining cocaine trafficking as knowing possession of twenty-eight grams or more of a cocaine mixture with a purity of ten percent or more); Pitts v. State, 260 Ga. App. 553, 556(2)(b), 580 S.E.2d 618 (2003) (possession of 54 grams of 85 percent pure cocaine was sufficient to sustain conviction notwithstanding the state's failure to test two of three bags of the drug). [4] Edmonds v. State, 275 Ga. 450, 453(2), 569 S.E.2d 530 (2002) (citations and punctuation omitted). [5] See R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 581(9), 292 S.E.2d 815 (1982) (reversing the entire exclusion of the public, including news media, from a criminal proceeding, but affirming the "traditional right and obligation of the trial court to maintain dignity and decorum in the courtroom, as by excluding from the courtroom overflow audiences"). [6] See Goger, Daniel's Georgia Criminal Trial Practice (2006 ed.), § 24-18, p. 1109, n. 1, quoting American Bar Association Standards, Trial by Jury, Vol. III, Standard 15-4.1 (trial court "in its discretion" may allow evidence, including exhibits, to go out with the jury, taking into account "whether the material may be subjected to improper use"). [7] Suggs v. State, 272 Ga. 85, 87-88(4), 526 S.E.2d 347 (2000), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [8] Suggs, supra at 88, 526 S.E.2d 347 (footnote omitted). [9] Edwards v. State, 282 Ga. 259, 262(8), 646 S.E.2d 663 (2007) (citations omitted). [10] See Cooper v. State, 281 Ga. 760, 762(4)(a), 642 S.E.2d 817 (2007) (the scope of cross-examination is grounded in trial tactics and strategy and will rarely constitute ineffective assistance). [11] See Castellon v. State, 240 Ga.App. 85, 86(1), 522 S.E.2d 568 (1999) (testimony of investigating officer concerning the officer's personal knowledge of the investigation is not hearsay). [12] See Sims v. State, 281 Ga. 541, 543(2), 640 S.E.2d 260 (2007) (failure to raise meritless objection cannot constitute ineffective assistance of counsel). [13] Id.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601668/	228 P.3d 900 (2010) The STATE of Arizona, Appellee, v. David Charles HENRY, Appellant. No. 2 CA-CR 2009-0035. Court of Appeals of Arizona, Division 2, Department B. February 23, 2010. 901 Terry Goddard, Arizona Attorney General By Kent E. Cattani and Alan L. Amann, Tucson, Attorneys for Appellee. Barton & Storts, P.C. By Brick P. Storts, III, and William Perry, Tucson, Attorneys for Appellant. OPINION ECKERSTROM, Presiding Judge. ¶ 1 Following a bench trial, the court convicted appellant David Henry of one count of failing to obtain an identification card or driver's license as a person previously convicted of a sex offense. The court then sentenced Henry to an enhanced term of 3.75 years' imprisonment and ordered him to register as a sex offender. On appeal, Henry argues the court's refusal to dismiss the indictment against him violated principles of double jeopardy and resulted in an ex post facto application of the law. He also contends the court denied him his right to a speedy trial.[1] We affirm his conviction and sentence for the reasons set forth below. Factual and Procedural Background ¶ 2 In 1974, Henry was convicted of several felony offenses, one of which was first-degree armed rape committed on May 25, 1974, in violation of former A.R.S. §§ 13-611 and 13-614(C). See 1967 Ariz. Sess. Laws, ch. 62, § 9 (former § 13-614(C)); 1962 Ariz. Sess. Laws, ch. 52, § 1 (former § 13-611(A)). On September 8, 2007, a Tucson police officer requested identification from Henry in the course of a traffic stop. Henry could not produce any identification at the time, and certified documents from the Motor Vehicle Division of the Arizona Department of Transportation revealed his last identification card had been issued on October 5, 2001.[2] ¶ 3 Henry subsequently was arrested and charged with three offenses relating to his status as a sex offender: failure to give notice of a change of address or name on September 8, 2007 (count one); failure to obtain a "nonoperating identification license or a driver license" on September 8, 2007, in violation of A.R.S. §§ 13-3821 and 13-3824 (count two);[3] and failure to give notice of a 902 change of address or name between February 14 and February 26, 2008 (count three).[4] In response, Henry filed a motion to dismiss the indictment on grounds that the charges constituted double jeopardy and that, as applied to him, Arizona's sex offender registration and notification statutes, A.R.S. §§ 13-3821 and 13-3825, were ex post facto laws violating the United States and Arizona Constitutions. The trial court denied the motion. Henry then waived his right to a jury trial and represented himself with the assistance of advisory counsel. ¶ 4 The trial court dismissed count one of the indictment on the state's motion before trial. It entered a judgment of acquittal on count three and found Henry guilty of count two.[5] After determining Henry had been previously convicted of two felonies, the court sentenced him to a term of 3.75 years in prison and, over his objection, ordered him to register as a sex offender. Ex Post Facto ¶ 5 As he did below, Henry argues his 1974 rape conviction neither subjected him to the laws he was charged with violating, A.R.S. §§ 13-3821 and 13-3824, nor exposed him to the community notification requirements of A.R.S. § 13-3825. Consequently, he contends his present conviction and required registration as a sex offender violated his rights, guaranteed by both the federal and state constitutions, to be free from ex post facto laws.[6] We review these legal issues de novo. See State v. Kuntz, 209 Ariz. 276, ¶ 5, 100 P.3d 26, 28 (App.2004) ("Whether the trial court properly applied § 13-3821(A) is a question of law that we review de novo."); State ex rel. Romley v. Rayes, 206 Ariz. 58, ¶ 6, 75 P.3d 148, 150 (App.2003) (ex post facto claims reviewed de novo). ¶ 6 Ex post facto laws are prohibited by both article I, § 10, cl. 1 of the United States Constitution[7] and article II, § 25 of 903 the Arizona Constitution.[8] Because the language of these provisions is materially the same, we generally interpret them as having the same scope, and we typically follow federal precedent in the area. See State v. Noble, 171 Ariz. 171, 173, 829 P.2d 1217, 1219 (1992). ¶ 7 An ex post facto law is defined exclusively as a law falling into one of the four categories delineated in Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). See Carmell v. Texas, 529 U.S. 513, 537-39, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); Collins v. Youngblood, 497 U.S. 37, 41-42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Noble, 171 Ariz. at 173-74, 829 P.2d at 1219-20. As Calder explained, an ex post facto law is: 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. 3 U.S. at 390. In Noble, our supreme court concluded that § 13-3821, which requires sex offenders to register with law enforcement agencies or face penalties for failing to do so, "violates the ex post facto clause only if it is a `law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.'" 171 Ariz. at 174, 829 P.2d at 1220, quoting Calder, 3 U.S. at 390. We similarly address only the third Calder category in the present case. See id. ¶ 8 To determine whether the application of sex offender registration and notification laws inflicts a greater punishment than was provided by law at the time of an offense, the ultimate question to be decided is whether the subsequent laws are punitive or regulatory in nature. See Noble, 171 Ariz. at 175, 829 P.2d at 1221; Ariz. Dep't of Pub. Safety v. Superior Court (Falcone), 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997). Whereas a punitive law cannot be applied retroactively, a regulatory law will withstand an ex post facto challenge. Falcone, 190 Ariz. at 494, 949 P.2d at 987. ¶ 9 When evaluating the punitive or regulatory character of a law, a court first looks to the legislative intent behind it. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Noble, 171 Ariz. at 175, 829 P.2d at 1221; Falcone, 190 Ariz. at 494, 949 P.2d at 987. If the legislature intended a nonpunitive purpose, a court must then inquire "`whether the statutory scheme [i]s so punitive either in purpose or effect as to negate that intention.'" Noble, 171 Ariz. at 175, 829 P.2d at 1221, quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980); accord Smith, 538 U.S. at 92, 123 S.Ct. 1140; Falcone, 190 Ariz. at 495, 949 P.2d at 988. A person challenging a purportedly nonpunitive law on ex post facto grounds must demonstrate by "`the clearest proof'" that the law is in fact punitive. Smith, 538 U.S. at 92, 123 S.Ct. 1140, quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); accord Falcone, 190 Ariz. at 496, 949 P.2d at 989. Statutes ¶ 10 Arizona's first sex offender registration statute was enacted in 1951. See 1951 Ariz. Sess. Laws, ch. 105, § 1; Fushek v. State, 218 Ariz. 285, n. 2, 183 P.3d 536, 538 n. 2 (2008). Under what first was codified as § 43-6117 of the 1939 Arizona Code (Supp. 1952), a person convicted of an enumerated sex offense such as rape was required to register with the sheriff of his county of residence, have his photograph taken, be fingerprinted, and provide a written statement required by the state's bureau of criminal identification. These materials were only shared with law enforcement officers, and 904 the failure to register or update one's residential information after moving was a misdemeanor. 1951 Ariz. Sess. Laws, ch. 105, § 1. ¶ 11 When the Arizona Code was revised in 1956, former § 43-6117 was separated into four sections. See 1956 Ariz. Sess. Laws, 3d Spec. Sess., ch. 3, § 1. Sex offender registration in general was required by A.R.S. § 13-1271; the requirement that sex offenders inform the sheriff of an address change was codified in A.R.S. § 13-1272; public access to a sex offender's information was prohibited by A.R.S. § 13-1273; and any violation of the registration statutes was punishable as a misdemeanor pursuant to A.R.S. § 13-1274.[9] ¶ 12 In 1977, the legislature again renumbered the principal sex offender registration statute, former § 13-1271, as A.R.S. § 13-3821, making minor changes to it in the process. See 1977 Ariz. Sess. Laws, ch. 142, § 115. The legislature also specified that a violation of registration requirements was punishable as a class two misdemeanor. See 1977 Ariz. Sess. Laws, ch. 142, § 116 (amending former § 13-1274 and renumbering it as A.R.S. § 13-3824). Lawmakers then repealed § 13-3821 in 1978, with the result that our state was without a registration statute for over five years.[10]See 1978 Ariz. Sess. Laws, ch. 201, § 242; State v. Lammie, 164 Ariz. 377, 378, 793 P.2d 134, 135 (App.1990), disagreed with on other grounds by State v. Peek, 219 Ariz. 182, ¶¶ 15-17, 195 P.3d 641, 644 (2008). In 1983, the legislature enacted the modern sex offender registration statute, A.R.S. § 13-3821, which at its inception was substantially similar to its predecessor. See 1983 Ariz. Sess. Laws, ch. 202, § 13. Since that time, "the registration and monitoring statutes, A.R.S. §§ 13-3821 to [13]-3829, have undergone several changes." Fushek, 218 Ariz. 285, n. 2, 183 P.3d at 538 n. 2. ¶ 13 For instance, in 1985 the legislature began to loosen restrictions on who could access a sex offender's information, permitting disclosure to others than law enforcement officers for the first time. See 1985 Ariz. Sess. Laws, ch. 54, § 2 (granting access to potential employers and child welfare agencies). As our supreme court recently summarized in Fushek: Access to registration information is today considerably broader. In 1998, the legislature provided for a sex offender website, making the information of some offenders available to the public at large. 1998 Ariz. Sess. Laws, ch. 291, § 5 (codified as amended at A.R.S. § 13-3827). In addition, the current statute requires that individuals and groups in the communities where offenders live and work be notified of the offenders' presence. A.R.S. §§ 13-3825(C), (G), 13-3826(E)(1)(a). 218 Ariz. 285, n. 6, 183 P.3d at 541 n. 6.[11] ¶ 14 Section 13-3821 was amended in 2001 to apply expressly to people such as Henry who had been convicted of certain sexual offenses under Arizona laws in effect before 1978. 2001 Ariz. Sess. Laws, ch. 109, § 2. The legislature provided for retroactive application of community notification requirements in § 13-3825(I), and we assume it similarly intended that additional statutes relating to sex offender registration and monitoring apply retroactively.[12]See Fushek, 218 Ariz. 285, n. 2, 183 P.3d at 538 n. 2. The specific provisions of these statutes, detailed by the court in Fushek, include requirements 905 that sex offenders register for life for most qualifying offenses;[13] notify law enforcement of any change of name or address;[14] report any enrollment or employment at post-secondary educational institutions to the sheriff of that county;[15] notify law enforcement of any online identifiers, such as e-mail addresses or screen names, disclose where they are used, annually confirm them, and promptly report any changes to them;[16] and annually update and continuously carry an identification card or driver's license.[17]Id. ¶¶ 23-25 & nn. 7-8. Sex offenders must also provide law enforcement officials with a DNA sample. § 13-3821(O). ¶ 15 As the duties placed on sex offenders and the access to their information have steadily increased over the years, so, too, have the penalties for failing to comply with registration requirements. In 1985, the penalty for failing to register was increased from a class two misdemeanor to a class six felony. 1985 Ariz. Sess. Laws, ch. 364, § 33. In 1998, failure to comply with any registration requirement was deemed a class four felony. See 1998 Ariz. Sess. Laws, ch. 291, § 3 (former § 13-3824). The legislature made a brief exception to this rule in 2004 when it designated the failure to update and carry an identification card a class one misdemeanor subject to a mandatory $250 assessment upon conviction. 2004 Ariz. Sess. Laws, ch. 142, § 3. However, in 2006 it reclassified the offense a class six felony, leaving the financial assessment in place. 2006 Ariz. Sess. Laws, ch. 160, § 3. Today, failure to update or carry photographic identification remains a class six felony, as is the failure to annually confirm one's online identifiers. §§ 13-3824(B), 13-3821(J). All other registration violations are punished as class four felonies. § 13-3824(A). Intent ¶ 16 In conducting our ex post facto analysis of §§ 13-3821, 13-3825, and the other related statutes, we first inquire "`whether the legislative aim was to punish [an] individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation.'" Noble, 171 Ariz. at 175, 829 P.2d at 1221, quoting De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (alteration in Noble). When analyzing the version of § 13-3821 enacted in 1983 to determine whether it was punitive or regulatory, the court in Noble noted there was scant legislative history of the statute's purpose. See id. Balancing both the punitive and regulatory effects of the law, however, the court ultimately concluded § 13-3821 primarily served the nonpunitive goal of "facilitating the location of child sex offenders by law enforcement." 171 Ariz. at 178, 829 P.2d at 1224; see also In re Maricopa County Juv. Action No. JV-132744, 188 Ariz. 180, 183, 933 P.2d 1248, 1251 (App.1996) (recognizing nonpunitive purpose behind juvenile sex offender registration). ¶ 17 Upon reexamining the sex offender registration scheme in Falcone, Division One of this court found express evidence of nonpunitive purposes behind the community notification statute in effect in 1997, 190 Ariz. at 495, 949 P.2d at 988, which did not then require any community notification via the internet. See 1997 Ariz. Sess. Laws, ch. 136, § 25. The Falcone court observed "the legislature furnished ample indication that it intended to protect communities, not punish sex offenders." 190 Ariz. at 495, 949 P.2d at 988. When internet publication of certain sex offenders' information was later instituted, former § 13-3827(A) provided: "The purpose of the [Department of Public Safety's] internet sex offender website is to provide sex offender information to the public." 1998 Ariz. Sess. Laws, ch. 291, § 5. Effects ¶ 18 Because the legislature has indicated nonpunitive purposes for sex offender registration and notification laws, we next consider whether the laws' punitive effects 906 outweigh their regulatory purposes. See Noble, 171 Ariz. at 175, 829 P.2d at 1221; see also Smith, 538 U.S. at 92, 123 S.Ct. 1140; Falcone, 190 Ariz. at 495, 949 P.2d at 988. In conducting this analysis, we consider the various factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), see Noble, 171 Ariz. at 175, 829 P.2d at 1221, in addition to any other relevant considerations. See Smith, 538 U.S. at 97, 123 S.Ct. 1140 (Mendoza-Martinez factors provide "useful framework" but are "`neither exhaustive nor dispositive'" when determining if statute punitive), quoting Ward, 448 U.S. at 249, 100 S.Ct. 2636. The factors listed in Mendoza-Martinez are [w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.... 372 U.S. at 168-69, 83 S.Ct. 554 (footnotes omitted). Bearing these factors in mind, courts assess "the effects of the registration requirement on convicted sex offenders and... the rationality between the requirement and its purported non-punitive function." Noble, 171 Ariz. at 175, 829 P.2d at 1221. ¶ 19 In Smith, the United States Supreme Court held that Alaska's Sex Offender Registration Act, which established a registration and public notification scheme similar to Arizona's, was regulatory in character rather than punitive and therefore did not violate the Ex Post Facto Clause when retroactively applied to offenders convicted before the Act's passage. 538 U.S. at 89-90, 105-06, 123 S.Ct. 1140. Neither party has cited Smith in its briefs. Without rehashing its analysis at length here, we find it necessary to touch upon two points in affirming Henry's conviction and sentence. ¶ 20 First, although the Arizona Supreme Court expressly found sex offender registration to be a traditional form of punishment, Noble, 171 Ariz. at 176, 829 P.2d at 1222, Smith thereafter found the contrary. 538 U.S. at 97-99, 123 S.Ct. 1140. However, because Noble drew this conclusion from American cultural and legal traditions broadly rather than from Arizona's in particular, we do not interpret Noble's analysis as representing or requiring a departure from federal precedent. Indeed, Smith and Noble similarly analyzed the stigmatizing effect of sex offender registration. Compare Smith, 538 U.S. at 98, 123 S.Ct. 1140 ("[T]he stigma ... results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment."), with Noble, 171 Ariz. at 177, 829 P.2d at 1223 ("[T]he provisions in the statute limiting access to the registration information significantly dampen its stigmatic effect.... [M]uch of the information that convicted sex offenders must provide under § 13-3821 is available... independent of the registration statute.") (citations omitted). To the extent these cases conflict, we regard Noble's finding that registration has been traditionally viewed as a form of punishment under the Ex Post Facto Clause of the United States Constitution as having been undermined by Smith. ¶ 21 Second, in upholding Alaska's Sex Offender Registration Act, the United States Supreme Court acknowledged that the registration system's similarities to probation or supervised release presented a forceful argument that the Act was punitive. Smith, 538 U.S. at 101, 123 S.Ct. 1140. The Court noted, however, that the Act specified no procedures for implementing the statute's requirements. 538 U.S. at 96, 123 S.Ct. 1140. Arizona's statutes, by contrast, contain implementation procedures for law enforcement agencies and provide for enforcing registration laws not through administrative means, but through criminal prosecution. See §§ 13-3822(B), 13-3825(B). In this way, Arizona's scheme is even more analogous to probation or supervised release 907 than the Alaska scheme addressed in Smith.[18] ¶ 22 Yet, Arizona's supreme court previously has upheld our sex offender registration system as regulatory despite its codification in title 13, A.R.S., our criminal code; its enforcement solely through criminal prosecution; and its designation of registration violations as felony offenses. See Noble, 171 Ariz. at 172-73, 178, 829 P.2d at 1218-19, 1224; see also Fushek, 218 Ariz. 285, ¶ 18, 183 P.3d at 541 ("Noble held that the then-extant sex offender registration statute could be applied to defendants who had committed their crimes before the statute's enactment without violating the ex post facto clauses of the federal and state constitutions."). Our controlling jurisprudence therefore prevents this court from distinguishing on this basis the Alaska scheme the United States Supreme Court found regulatory in nature from the Arizona scheme Henry now challenges. ¶ 23 Moreover, although the registration and notification laws certainly have some punitive effects, our legislature has taken steps to tailor the statutes to serve more precisely their nonpunitive ends. For example, mandatory community and website notification is required only for offenders deemed to pose a heightened risk to the community, see §§ 13-3825(C), 13-3826(E), 13-3827(A), and other provisions limit public disclosure of an offender's online identifiers. § 13-3827(D), (E). In addition, A.R.S. § 13-923, the statute under which a trial court reviews the probation of sex offenders younger than age twenty-two, also allows a court to terminate both registration and community notification requirements pursuant to §§ 13-3821(H) and 13-3825(L). ¶ 24 Although neither Noble nor Falcone analyzed the exact registration scheme we address here, many of the salient components of the current statutes already existed in some form and were addressed in those cases. Indeed, in Noble our supreme court considered Arizona's first registration scheme authorizing potential felony imprisonment sanctions and found it applicable to defendants who had faced no registration requirements at all when they committed their predicate offenses. See Noble, 171 Ariz. at 172-73, 178, 829 P.2d at 1218-19, 1224. Although Henry has maintained on appeal that Noble should be overruled, he acknowledges this court is constrained by the decisions of our supreme court. See State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App.2003). We recognize, as discussed earlier, that the registration requirements have become decidedly more burdensome since Noble addressed the issue. However, because Smith controls our analysis here, we are compelled to conclude that Arizona's sex offender registration and notification statutes do not constitute impermissible ex post facto laws as applied to Henry. ¶ 25 Although we follow Smith today, we might well have reached a different result under controlling state precedent predating Smith. See Noble, 171 Ariz. at 173, 829 P.2d at 1219 (cautioning against blind adherence to federal precedent). When Noble examined the sex offender registration system in effect nearly eighteen years ago to determine whether § 13-3821 constituted an impermissible ex post facto law, our state supreme court noted, after balancing the Mendoza-Martinez factors, that its "decision [wa]s close." 171 Ariz. at 178, 829 P.2d at 1224. In ultimately finding the then-existing regime applicable retroactively, the court acknowledged the traditionally punitive nature and "stigmatic effect" of registration provisions but emphasized that the specific statutory scheme before it mitigated any such punitive effect. Noble, 171 Ariz. at 176-77, 178, 829 P.2d at 1222-23, 1224. "Registrants are not forced to display a scarlet letter to the world; outside of a few regulatory exceptions, the information provided ... pursuant to the registration statute is kept confidential." Id. at 178, 829 P.2d at 1224. As Henry correctly observes, the Arizona legislature 908 has since removed those features of the scheme protecting the confidentiality of an offender's registration status and now specifically requires broad community disclosure of that status for most classes of offenders, including notification of the registrant's neighbors and prospective employers. See § 13-3826(E)(1)(a); 1997 Ariz. Sess. Laws, ch. 136, § 26. Thus, under the scheme we address here, sex offenders are not only "forced to display a scarlet letter to the world," but state authorities are required to shine a spotlight on that letter. ¶ 26 Noting these very developments, our supreme court recently has held that sex offender registration is a sufficiently severe potential consequence for a sexually motivated misdemeanor that a person so charged has a right to a trial by jury under article II, § 24 of the Arizona Constitution. Fushek, 218 Ariz. 285, ¶¶ 26, 30, 183 P.3d at 542-44. In so ruling, the court noted that the language of article II, § 24 is "virtually identical to that of the Sixth Amendment" and, consequently, our courts have interpreted them to provide the same protections. Fushek, 218 Ariz. 285, ¶ 8, 183 P.3d at 539. Although Fushek made clear that the issue of "whether sex offender registration is criminal punishment for ex post facto purposes" was not before the court in that case, id. ¶ 19, "the protections provided by the Sixth Amendment are available only in `criminal prosecutions.'" Ward, 448 U.S. at 248, 100 S.Ct. 2636, quoting U.S. Const. amend. VI. Thus, our adherence to Smith today requires us to conclude that, under Arizona law, sex offender registration is both a sufficiently severe sanction to trigger the Sixth Amendment right to a jury trial and a nonpunitive civil regulation for purposes of the Ex Post Facto Clause results we find difficult to harmonize. Cf. Ward, 448 U.S. at 254, 100 S.Ct. 2636 (observing "it would be quite anomalous to hold that § 311(b)(6) [of the Federal Water Pollution Control Act] created a criminal penalty for the purposes of the Self-incrimination Clause but a civil penalty for all other purposes"). As an intermediate appellate court, however, we are bound to uphold the application of sex offender registration and notification statutes that are not meaningfully distinguishable from those in Smith. Double Jeopardy ¶ 27 Apart from citing the Fifth Amendment to the United States Constitution and article II, § 10 of the Arizona Constitution, Henry has failed to develop an argument in his opening brief that his conviction and sentence violate the prohibition against double jeopardy. We therefore need not address the issue. See Ariz. R.Crim. P. 31.13(c)(1)(vi) (opening brief must contain citations to record and argument for each issue raised); State v. Cons, 208 Ariz. 409, ¶ 18, 94 P.3d 609, 616 (App.2004) (failure to develop argument properly in opening brief results in waiver of issue on appeal). However, given our conclusion that sex offender registration is a nonpunitive, regulatory scheme pursuant to Noble and Smith, we would not find Henry's conviction for violating Arizona's registration statutes to constitute double jeopardy even if the issue had been presented properly to this court. See E.B. v. Verniero, 119 F.3d 1077, 1092 (3d Cir.1997) ("[N]either [the Ex Post Facto nor the Double Jeopardy C]lause is implicated unless the state has inflicted `punishment.'"). Speedy Trial ¶ 28 Henry last contends "the trial court erred in denying [his] motion to dismiss the charges for [a] violation of his right to a speedy trial." A transcript attached as an exhibit to Henry's motion below shows that certain charges against him in a different cause, number CR-20073489, were dismissed without prejudice at the state's request due to the inability of a state's witness to testify at Henry's trial. The indictment in that case is not included in the record on appeal, and there is otherwise scant evidence of the procedural history of the case. The record does not clearly show, as Henry asserts, that the previously dismissed charges were refiled as counts one and two of the present indictment. The relevance of the earlier cause number, therefore, has not been established, and we find the record insufficient to allow appellate review of the issue. See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App.1990) (appellant has duty *909 to ensure record contains any document necessary to argument; court will not speculate on content not in record). ¶ 29 Even if the appellate record were more extensively developed, we would still reject Henry's argument. Without providing any standard of review for the issue he raises, and with minimal support from legal authorities, see Ariz. R.Crim. P. 31.13(c)(1)(vi), Henry contends "[t]he prosecutor's argument that she was dismissing [the earlier charges] because she didn't have a witness, rather than to avoid Rule 8 [, Ariz. R.Crim. P.,] is frivolous," given that her own actions in "wait[ing] until the last minute to attempt to subpoena [the witness] ... put her in a position to have to move to dismiss to avoid the time requirements." ¶ 30 Rule 8.2(a) requires that defendants be tried within a certain number of days from arraignment, and Rule 16.6(a), Ariz. R.Crim. P., permits a court to dismiss charges on the state's motion only "upon finding that the purpose of the dismissal is not to avoid the provisions of Rule 8." Hence, the trial court already had determined the prosecutor did not seek a dismissal to avoid the requirements of Rule 8. And, as the state points out, the record shows there were difficulties in locating and securing the presence of the witness at the previously scheduled trial. In any event, "the proper method to raise the issue was through a motion for reconsideration or petition for special action filed in [CR-20073489], not by a motion to dismiss" in the present case. State v. Paris-Sheldon, 214 Ariz. 500, 123, 154 P.3d 1046, 1054 (App.2007). Consequently, we lack jurisdiction to review the propriety of the earlier dismissal. See id. ¶ 20. Disposition ¶ 31 For the foregoing reasons, Henry's conviction and sentence are affirmed. CONCURRING: J. WILLIAM BRAMMER, JR., and GARYE L. VÁSQUEZ, Judges. NOTES [1] In his reply brief, Henry withdrew the argument that his conviction violated the separation of powers doctrine in the Arizona Constitution. [2] The state, apparently misreading these documents, represented to the court that Henry's last identification card had been issued on April 18, 1997. Although Henry did not challenge the error, the disparity between the two dates is irrelevant to this appeal. [3] The versions of §§ 13-3821 and 13-3824 in effect when Henry committed the offense are the same in relevant part as the current versions. See 2006 Ariz. Sess. Laws, ch. 184, § 1; 2006 Ariz. Sess. Laws, ch. 160, § 3. [4] Although count two of the indictment cited § 13-3821(E), this subsection specifies the registration requirements for nonresident sex offenders and was not applicable to this case. The trial court later implicitly amended the indictment to reflect that Henry was charged with violating the former § 13-3821(I), which required him to obtain and carry identification, a class six felony. See 2006 Ariz. Sess. Laws, ch. 184, § 1; 2006 Ariz. Sess. Laws, ch. 160, § 3. This subsection was renumbered as § 13-3821(J) by 2007 Ariz. Sess. Laws, ch. 176, § 4, where it remains codified today. However, because this amendment did not take effect until September 19, 2007 eleven days after Henry committed the offense charged in count two the state was technically incorrect in its repeated assertion at oral argument that Henry was convicted of violating § 13-3821(J), not former § 13-3821(I). See Ariz. Const. art. IV, pt. 1, § 1(3) (laws generally do not take effect until ninety days after close of legislative session); Baker v. Superior Court, 190 Ariz. 336, 339-40, 947 P.2d 910, 913-14 (App. 1997) (operative criminal law generally that in effect on date of offense); cf. State v. Helmer, 203 Ariz. 309, ¶¶ 5, 7, 12, 53 P.3d 1153, 1154, 1156 (App.2002) (when defendant indicted for failure to register as sex offender over period of years, continuing nature of offense allowed trial court to sentence defendant for class four felony rather than class six felony, which offense had been when originally committed). [5] Henry did not raise the issue of whether the state had shown "actual knowledge of the need to []register as a sex offender or proof of the probability that he had knowledge of the requirement and thereafter failed to [comply with it]," an element of the offense under § 13-3821 imposed by the Due Process Clause and Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). See State v. Garcia, 156 Ariz. 381, 382-83, 384, 752 P.2d 34, 35-36, 37 (App. 1987). Although the state did not emphasize Henry's awareness of his general or specific statutory obligations at trial, the court admitted into evidence an exhibit showing Henry had been convicted in 2003 in Pima County cause number CR-20022443 of failing to report a change of address as a registered sex offender. Because we presume the court knew and correctly followed the law in conducting the bench trial, see State v. Moody, 208 Ariz. 424, ¶ 49, 94 P.3d 1119, 1138 (2004), we find the evidence was sufficient to support Henry's present conviction. See State v. Bryant, 359 N.C. 554, 614 S.E.2d 479, 488-89 (2005) (sex offender's awareness of obligation to register in one state sufficient, for due process purposes, "to put [him] on notice to inquire into the applicable law of" state to which he moved). [6] Because Henry has challenged the general applicability to him of the present-day sex offender registration and monitoring statutes, irrespective of his most recent conviction, we do not limit our ex post facto analysis to the specific provision under which he was convicted, as the state invites us to do. [7] The federal provision reads, in part: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts...." [8] The Arizona provision reads: "No bill of attainder, ex-post-facto law, or law impairing the obligation of a contract, shall ever be enacted." [9] Henry mistakenly asserts in his opening brief that, "[a]t the time of [his] conviction there was no such thing as sex offender registration." [10] Former §§ 13-1272 and 13-1273, which were renumbered as A.R.S. §§ 13-3822 and 13-3823, respectively, see 1977 Ariz. Sess. Laws, ch. 142, § 114, remained in place, as did § 13-3824. [11] The subsections Fushek cited have not materially changed. See 2008 Ariz. Sess. Laws, ch. 9, § 1. [12] Authorities are divided whether the terms "retroactive" and "retrospective" have the same or different meanings. Compare 16B Am.Jur.2d Constitutional Law § 735 (2009) ("The terms `retrospective' and `retroactive' are frequently used interchangeably, even though, in fact, they have different meanings ...."), with Black's Law Dictionary 1318, 1319 (7th ed. 1999) (defining "retroactive law" and "retrospective law" as interchangeable). Our supreme court appears to use the terms interchangeably, compare Fushek, 218 Ariz. 285, n. 2, 183 P.3d at 583 n. 2, with Noble, 171 Ariz. at 174, 829 P.2d at 1220, and we therefore draw no critical distinction between them. [13] § 13-3821(D), (F)-(H), (M). [14] See §§ 13-3821(I); 13-3822(A)-(B). [15] § 13-3821(N). [16] See §§ 13-3821(I)-(J), (P), (R); 13-3822(C). [17] See § 13-3821(I), (J). [18] At oral argument, counsel for Henry erroneously sought to distinguish Smith on the ground that Alaska's registration scheme imposed only misdemeanor sanctions for violations. See Smith, 538 U.S. at 96, 123 S.Ct. 1140 (observing Alaska's "scheme is enforced by criminal penalties" and citing Alaska Stat. §§ 11.56.835 and 11.56.840); see also Alaska Stat. § 11.56.835(d) ("Failure to register as a sex offender or child kidnapper in the first degree is a class C felony.").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874546/	706 N.W.2d 411 (2005) Russell P. BOTTOMS, Jr., Appellee, v. Jack W. STAPLETON, Individually, S & S Equipment & Supply, Ltd., Paducah Gear & Machine Co., L.C., and Jack W. Stapleton, as Officer and Majority Owner of Paducah Gear & Machine Co., L.C., Appellants. Paducah Gear & Machine Co., L.C., and Jack W. Stapleton, Individually and as Officer and Majority Owner of Paducah Gear & Machine Co., L.C., Appellants, v. Russell P. Bottoms, Jr., Appellee. No. 04-0132. Supreme Court of Iowa. December 2, 2005. 413 Mark E. Weinhardt and Margaret C. Callahan of Belin Lamson McCormick Zumbach Flynn, A Professional Corporation, Des Moines, for appellants. J. Campbell Helton and Jonathan Kramer of Whitfield & Eddy, P.L.C., Des Moines, for appellee. TERNUS, Justice. A minority shareholder brought this action against a limited liability company and its majority shareholder seeking damages for breach of fiduciary duty and conversion, judicial dissolution of the company, an accounting, and appointment of a receiver. Upon the minority shareholder's motion to disqualify the defendants' counsel, the district court held that counsel could not represent the company, but could continue to represent the majority shareholder. We granted the defendants' application for interlocutory appeal. Although the potential for a conflict of interest exists, the record does not establish there is currently a significant risk that the defense attorneys' representation of one defendant will materially interfere with their zealous representation of the other defendant. Therefore, we reverse the district court's order and remand this case for further proceedings. I. Background Facts and Proceedings. The appellant, Paducah Gear & Machine Co., L.C., is an Iowa limited liability company that provides industrial machine shop repairs and service from a facility located in Paducah, Kentucky. Paducah Gear was formed in 1998 and has two shareholders. The appellant, Jack Stapleton, owns fifty-one percent of the company, and the appellee, Russell Bottoms, owns the remaining forty-nine percent. Pursuant to the parties' agreement, Stapleton handled the financial, recordkeeping, and corporate aspects of the company from Iowa, where Stapleton lived, while Bottoms worked on site at the Paducah, Kentucky shop, supplying the machinist services and managing the machinist crew. After several years, the relationship between the co-owners began to deteriorate. In March 2002, Bottoms and Stapleton ceased doing business together. That same month Bottoms incorporated Global Gear & Machine Co. in competition with Paducah Gear. On July 17, 2003, Bottoms filed this lawsuit against Stapleton and Paducah Gear.[1] The plaintiff alleged "Stapleton converted certain assets of Paducah Gear to his own use, made certain distributions to himself at the expense of Plaintiff and Paducah Gear, and has refused to fulfill his contractual and fiduciary duties." Based 414 on this conduct, the plaintiff pursued various remedies in six counts. In Count I Bottoms sought compensatory and punitive damages due to Stapleton's alleged breach of fiduciary duty to the plaintiff. In Count II Bottoms requested a judicial dissolution of Paducah Gear or, alternatively, an order requiring Paducah Gear to pay to Bottoms his "fair share of the assets" of the company. In Count III the plaintiff asserted Stapleton "intentionally misappropriated and took dominion and control over [the plaintiff's] ownership interests." As in Count I, the plaintiff sought a money judgment against Stapleton. In Count IV Bottoms demanded an accounting, and in Count V he asked for the immediate appointment of a receiver to control the assets of Paducah Gear. In Count VI Bottoms requested a temporary injunction as an alternative to the appointment of a receiver and sought an order preserving the assets of Paducah Gear. The defendants, represented by Richard R. Chabot of Sullivan & Ward P.C., filed an answer denying the plaintiff's accusations of wrongdoing and entitlement to equitable relief. The defendants also filed counterclaims alleging Bottoms had misappropriated proprietary information and other assets of Paducah Gear and had improperly interfered with Paducah Gear's business relationships. Subsequently, the plaintiff filed a motion to disqualify the law firm of Sullivan & Ward, P.C. from representing both defendants. This motion precipitated the appearance of Mark Weinhardt of the law firm of Belin Lamson McCormick Zumbach Flynn, A Professional Corporation, on behalf of the defendants and Sullivan & Ward. Bottoms then filed a motion to disqualify the Belin law firm as well from simultaneously representing Stapleton and Paducah Gear. The district court granted the plaintiff's motions to disqualify and held that neither Sullivan & Ward nor the Belin law firm could represent Paducah Gear. It observed, "Assuming that the allegations of wrongdoing against Stapleton can be proven, there is a significant potential for divergence of the interests of Paducah and Stapleton." The court noted that under the Iowa Code of Professional Responsibility, which was in effect at the time, as well as under the Iowa Rules of Professional Conduct, which were then under consideration, clients were allowed to consent to conflicting multiple representation. But the court concluded such consent on behalf of an entity must come from a disinterested person, a person other than the client who would be jointly represented with the entity. Here, the only persons who could consent were Bottoms, who would not consent, and Stapleton, who would not be disinterested. The court concluded, therefore, that it was necessary for Paducah Gear to retain separate counsel. If the parties could not agree on such counsel, the court required the parties to submit the dispute to the court for resolution. This court granted the defendants' application for interlocutory appeal. The sole issue on appeal is whether the district court abused its discretion in ruling the potential for a conflict of interest between Paducah Gear and its majority shareholder was sufficient to preclude joint representation of the company and Stapleton.[2]See Doe v. Perry Cmty. Sch. Dist., 415 650 N.W.2d 594, 597 (Iowa 2002) ("We review a ruling on an attorney disqualification motion for abuse of discretion."). A court abuses its discretion when its ruling is based on clearly untenable grounds, such as reliance upon an improper legal standard or error in the application of the law. Id. The district court's "factual findings in disqualification cases will not be disturbed on appeal if they are supported by substantial evidence." Killian v. Iowa Dist. Ct., 452 N.W.2d 426, 428-29 (Iowa 1990). II. Discussion. A. General principles regarding attorney disqualification. The right of a party to choose his or her own attorney is important, but it must be balanced against the need to maintain "the highest ethical standards" that will preserve the public's trust in the bar and in the integrity of the court system. Id. at 430. In balancing these interests, a court must also be vigilant to thwart any misuse of a motion to disqualify for strategic reasons. See id.; accord 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering § 10.2, at 10-10 (3d ed. 2004 Supp.) (stating "policymaking with respect to conflicts of interest regulation must take account of the opportunities for manipulation and tactical infighting") [hereinafter "The Law of Lawyering"]. Thus, our starting point in evaluating a claim that an attorney should be disqualified from representing a party is the ethical principles outlined in the Iowa Rules of Professional Conduct. See Killian, 452 N.W.2d at 429. (We focus on the Iowa Rules of Professional Conduct, which became effective on July 1, 2005, since the future conduct of the attorneys in this litigation will be governed by these rules rather than the old Iowa Code of Professional Responsibility.) The rule governing the conflict at issue here is rule 32:1.7,[3] which addresses the problem of concurrent conflicts of interest: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: 416 (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. (c) In no event shall a lawyer represent both parties in dissolution of marriage proceedings. Iowa R. of Prof'l Conduct 32:1.7; see also id. r. 32:1.13(g) (stating "lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of rule 32:1.7[, but any] consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders" (emphasis added)). Bottoms does not argue that the defendants' interests are "directly adverse," but rather that these parties have potentially differing interests. See generally 1 The Law of Lawyering § 11.8, at 11-22 (stating rule 1.7(a)(1) "applies where directly adverse representation will take place, as when one current client is about to file suit against another current client"). Therefore, we focus our discussion on rule 32:1.7(a)(2). See Iowa R. of Prof'l Conduct 32:1.7 cmt. [23] (stating "simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2)"). B. Existence of disqualifying conflict. The question to be answered under rule 32:1.7(a)(2) is whether there is "a significant risk" that counsel's representation of one client "will be materially limited by [his or her] responsibilities to another client." See id. r. 32:1.7(a)(2). Although related to the old "appearance of impropriety" test, the modern approach focuses on the degree of risk that a lawyer will be unable to fulfill his or her duties to both clients. See generally 1 The Law of Lawyering § 10.4, at 10-12 to 10-13 (noting the old standard was "too vague and subjective" and was dropped from the ABA Model Rules of Professional Conduct). A comment to rule 32:1.7 sheds light on when a conflict of interest will materially limit an attorney in the performance of the attorney's responsibilities: [A] conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities.... The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Iowa R. of Prof'l Conduct 32:1.7 cmt. [8]; see also id. r. 32:1.7 cmt. [29] ("[R]epresentation of multiple clients is improper when it is unlikely that impartiality can be maintained."). The representation of codefendants will give rise to a conflict in situations involving a "substantial discrepancy in the [represented] parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement 417 of the claims or liabilities in question." Id. r. 32:1.7 cmt. [23]. Our examination of the plaintiff's brief shows a marked absence of any specification of the precise conflict in the present case. Nonetheless, since the plaintiff asks that we affirm the district court, we will examine the district court's ruling for an elucidation of the plaintiff's claim. As summarized by the district court, "[t]he gist of Bottoms' argument is that Stapleton has breached duties to the company by `converting or embezzling funds' and that the interests of Stapleton and Paducah are therefore adverse to each other." The court's ruling was succinct: Assuming that the allegations of wrongdoing against Stapleton can be proven, there is a significant potential for divergence of the interests of Paducah and Stapleton. A potential conflict of interest is sufficient to require that steps be taken to assure that all parties are adequately represented. In considering this ruling, we first note that the concept of a potential conflict of interest is foreign to the new ethical rule. That is because rule 32:1.7(a)(2) states that a conflict of interest "exists if ... there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client." Iowa R. of Prof'l Conduct 32:1.7(a)(2) (emphasis added). In other words, if there is a significant risk that representation of one client will materially limit the representation of another client, a conflict of interest actually exists; it is not merely potential. See 1 The Law of Lawyering § 10.4, at 10-13. Thus, only an actual conflict of interest, as defined in rule 32:1.7(a), will justify disqualification. Our review, then, will focus on the district court's conclusion that "there is a significant potential for divergence of the interests of Paducah and Stapleton." Translated to the terminology of rule 32:1.7, the court, in essence, found there was a significant likelihood that the defendants would have differing interests in this lawsuit. See Iowa R. of Prof'l Conduct 32:1.7 cmt. [8] (stating one of the critical questions under rule 32:1.7 is "the likelihood that a difference in interests will eventuate"). We must decide whether there is substantial evidence to support this finding. As the litigation is presently postured, the interests of Stapleton and Paducah Gear are not directly adverse. Bottoms' claims against Stapleton are brought in his individual capacity and not on behalf of the company. He seeks only amounts to which he is personally entitled as an owner of the company, including sums he claims were tortiously converted by Stapleton. Moreover, the equitable claims asserted by Bottoms against Paducah Gear are merely ancillary to his damage claims against Stapleton. Bottoms seeks to identify company assets and preserve them so he can receive his "fair share" of the company. Importantly, the plaintiff has not articulated why a defense of the claims against Stapleton would be inconsistent with Paducah Gear's defense of the claims alleged against it. We reject the plaintiff's contention that this case is governed by our decision in Rowen v. LeMars Mutual Insurance Co., 230 N.W.2d 905 (Iowa 1975). In Rowen, policyholders of LeMars filed a derivative action against various officers and directors of LeMars, naming LeMars as a nominal defendant. 230 N.W.2d at 907. The plaintiffs also sued Iowa Mutual Insurance Company of DeWitt (DeWitt) as well as corporate insiders of DeWitt. Id. While the case was on appeal, the plaintiffs filed a motion to disqualify counsel for some of the individual defendants from 418 also representing the two insurance companies. Id. This motion as it pertained to LeMars was "grounded on the principle that in a derivative action the corporation, though a nominal defendant, is the real plaintiff in interest and beneficiary of any judgment recovered." Id. at 913. Even though there was no derivative action filed for the benefit of DeWitt, the plaintiffs argued "that under the allegations of the petition DeWitt would have an action over against [the] officers and directors of DeWitt [who] participated in the wrongdoing," and therefore, DeWitt was in a potentially antagonistic position with respect to the individual defendants. Id. Noting that even a potential conflict of interest was sufficient to warrant disqualification, this court granted the plaintiffs' motion. Id. at 914-15. Clearly, Paducah Gear is not in a position comparable to LeMars. LeMars, a nominal defendant, was the anticipated beneficiary of any recovery from the other defendants. Thus, the interest of LeMars was directly adverse to those of the other defendants. Here, however, Paducah Gear is a true defendant; plaintiff seeks no relief from Stapleton that will inure to Paducah Gear. We are convinced the defendants' attorneys are not disqualified from representing both defendants simply because the plaintiff has asserted separate claims against these defendants. See Stanley v. Brassfield, Cowan & Howard, 152 Ill.App.3d 378, 105 Ill. Dec. 442, 504 N.E.2d 542, 543-44 (1987) (refusing to disqualify attorneys representing corporation and individual shareholders and directors where action sought recovery from corporation, not for corporation, distinguishing derivative suits in which disqualification would be required). Bottoms' argument is actually similar to that made by the plaintiffs in Rowen with respect to DeWitt, namely, that DeWitt may have a cross-claim against the individual defendants. Bottoms argued in the district court that Paducah Gear had a duty to its employees and owners to investigate the claims of personal wrongdoing made against Stapleton to determine the merits of those claims. The implication from this argument was that if there was any merit to the claims, Paducah Gear may have a cross-claim against Stapleton. The only problem with analogizing Paducah Gear to DeWitt is the differing standard applied in Rowen and that applicable here. In Rowen the mere potential for differing interests triggered disqualification. Under rule 32:1.7(a)(2), there must be some likelihood of differing interests. See Iowa R. of Prof'l Conduct 32:1.7 cmt. [8]. Bottoms, as the moving party, bore the burden of proving facts that established the necessary factual prerequisite for disqualification. See Richers v. Marsh & McLennan Group Assocs., 459 N.W.2d 478, 481 (Iowa 1990); Quality Developers, Inc. v. Thorman, 29 Kan. App. 2d 702, 31 P.3d 296, 304 (2001). Our review of the record does not reveal substantial evidence that the defendants' interests will likely become adverse, particularly given the fact that one defendant is a limited liability company and the other defendant holds the controlling interest in the company. Cf. Philips Med. Sys. Int'l B.V. v. Bruetman, 8 F.3d 600, 606 (7th Cir.1993) (refusing to disqualify counsel jointly representing individual defendant and several corporations that he controlled, noting it appeared "the corporations have no interests separate from [the individual defendant]" and "[n]o determination of an actual conflict of interest was ever made"); Field v. Freedman, 527 F. Supp. 935, 940 (D.Kan.1981) (refusing to disqualify attorneys representing defunct corporation and majority shareholders in suit filed by minority *419 shareholder). Counsel will not be disqualified simply because the opposing party alleges the possibility of differing interests. See Nat'l Child Care, Inc. v. Dickinson, 446 N.W.2d 810, 812 (Iowa 1989) (holding movant's allegation of conflict was insufficient to require disqualification in absence of proof that attorney's testimony would be adverse to client's interests); accord Philips Med. Sys. Int'l B.V., 8 F.3d at 606 (stating "judge should have held a hearing to determine whether there were adverse interests"); Field, 527 F.Supp. at 940-41 (denying motion to disqualify defendants' counsel because the plaintiff "made no record which would allow [a finding] that ... adverse interests are present or are likely to become present," noting "there must be some facts in the record to enable the Court to make a finding that an ethical violation has or will occur"). Although we hold disqualification of the defendants' attorneys from dual representation is not mandated at this time, we make no determination that a divergence of interest may not in the future become sufficiently likely so as to warrant disqualification. Thus, the plaintiff is not precluded from reasserting its motion to disqualify if it has proof that the test set forth in rule 32:1.7(a) has been met. See generally Iowa R. of Prof'l Conduct 32:3.1 (stating "[a] lawyer shall not ... assert ... an issue ... unless there is a basis in law and fact for doing so that is not frivolous"). Without prejudging what lies ahead, we simply observe that the defendants' attorneys should be mindful of their ethical obligations under rules 32:1.13 and 32:1.7 and their clients' interest in having consistent and continuing representation in this lawsuit. See generally Iowa R. of Prof'l Conduct 32:1.7 cmt. [29] (stating "a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment, and recrimination" and that "[o]rdinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails"). III. Conclusion and Disposition. The plaintiff failed to produce evidence showing it is likely that a difference in interests will develop between the defendants. Therefore, the trial court's finding of a significant potential for a divergence of interests is not supported by substantial evidence. Accordingly, the court's disqualification of the defendants' attorneys was an abuse of discretion. Although the potential for divergent interests exists, we will not deprive the defendants of their counsel of choice based solely on the plaintiff's allegations that the company may have a claim against the majority shareholder, particularly when this lawsuit is based solely on wrongdoing that has purportedly harmed the plaintiff's ownership interests. We reverse the district court's ruling disqualifying Sullivan & Ward and the Belin law firm from representing Paducah Gear, and we remand this case for further proceedings. REVERSED AND REMANDED. NOTES [1] Bottoms also sued S & S Equipment & Supply, Ltd., a business owned by Stapleton. Apparently at one time Stapleton held his interest in Paducah Gear through S & S. Bottoms does not dispute Stapleton's assertion that any possible involvement of S & S has no significance to the issues at hand. Therefore, we do not separately discuss S & S in our opinion. [2] Because we determine the evidence does not support a finding that there is a significant potential for divergent interests, we do not decide whether the district court properly ruled the conflict was not waivable. See Iowa R. of Prof'l Conduct 32:1.7(b) (outlining circumstances under which dual representation is permitted notwithstanding concurrent conflict of interest, including requirement of "each affected client giv[ing] informed consent, confirmed in writing"); id. r. 32:1.13(g) (stating consent to dual representation of organization and its "directors, officers, employees, members, shareholders, or other constituents" may not be given by "the individual who is to be represented"). [3] The comparable provision of the discarded Iowa Code of Professional Responsibility is DR 5-105(C). It provided that "[a] lawyer shall not continue multiple employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the representation of another client, except to the extent permitted under DR 5-105(D)." See Iowa Code of Prof'l Responsibility DR 5-105(C). DR 5-105(D) allowed multiple representation when "it is obvious that the lawyer can adequately represent the interest of each [client] and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent professional judgment on behalf of each." See id. DR 5-105(D).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902563/	120 B.R. 101 (1990) In re T.M. SWEENEY & SONS, LTL SERVICES, INC., d/b/a/ SDS, Inc., Debtor. T.M. SWEENEY & SONS, LTL SERVICES, INC., d/b/a SDS, Inc., Plaintiff, v. James D. CRAWFORD, Trustee of James D. Crawford Trust, Defendant. Bankruptcy No. 89 B 8111, Adv. No. 89 A 0640. United States Bankruptcy Court, N.D. Illinois, E.D. September 21, 1990. 102 Sheldon L. Solow, Sachnoff & Weaver, Ltd., Chicago, Ill., trustee. Edward U. Notz, Law Offices of Edward U. Notz, Chicago, Ill., for defendant. Thomas C. O'Brien, O'Brien & Barbahen, Chicago, Ill., for debtor. FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE COMPLAINT OF TRUSTEE TO RECOVER PREFERENCE AND AVOID JUDGMENT LIEN PURSUANT TO SECTIONS 547(b) AND 544(a) (Amended and Reissued) JACK B. SCHMETTERER, Bankruptcy Judge. This cause was tried on Debtor's Adversary Complaint to recover a preferential transfer to and avoid a judgment lien claimed by James D. Crawford ("Crawford"). Upon conversion of Debtor's Chapter 11 proceeding to one under Chapter 7, Trustee Sheldon Solow adopted and prosecuted the Complaint. This action is pursuant to Sections 547(b) and 544(a) of the U.S. Bankruptcy Code, Title 11 U.S.C. (the "Code"). Following trial held August 27, 1990, and having considered the evidence and pleadings, the Court now makes and enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Pursuant to written lease, beginning November 15, 1983, T.M. Sweeney & Sons, LTL Services, Inc. ("Debtor") was the tenant of property commonly known as 12418 South Cicero Avenue, Alsip, Illinois 60658 (the "Lease"). Debtor breached the Lease by failing to pay substantial amounts of rent. Prior to Debtor's default under the Lease, one James D. Crawford became the owner of the leased property and assignee of the former landlord. 2. On or about July 23, 1987, Crawford sued Debtor in the Circuit Court of Cook County, First Municipal District, Case No. 87 M1-154834, seeking payment of the rent arrearage. On March 16, 1988, Debtor and Crawford entered into a stipulation and agreement which resulted in dismissal of that complaint without prejudice. 3. On October 12, 1988, Crawford moved to vacate the dismissal order and sought reinstatement of the suit based upon Debtor's alleged default under the stipulation and agreement. After prove-up of damages on January 5, 1989, the trial judge entered judgment in favor of Crawford and against Debtor in the amount of $76,098.60. 4. Pursuant to Ill.Rev.Stat. ch. 110, ¶ 2-1401, on January 6, 1989 Crawford caused the following Citations to Discover the Assets of Debtor (collectively the "January 6th Citations") to be issued by the Clerk of the Circuit Court of Cook County: 103 a. Citation against Thomas M. Sweeney, president of Debtor; b. Citation against Mary Sweeney, secretary of Debtor; c. Citation against Palos Bank and Trust Company ("Palos Bank"). After their issuance, the January 6th Citations were served by the Sheriff of Cook County. The citations against Thomas and Mary Sweeney were each served on January 13, 1989, whereas the citation against Palos Bank was served on January 17, 1989. 5. On March 21, 1989, Crawford caused the Clerk of the Circuit Court of Cook County to issue a Citation to Discover the Assets of Debtor against Suburban Federal Savings ("Suburban Federal"). That citation was served on March 24, 1989. 6. As of March 31, 1989, Debtor was solvent, as evidenced by a March 31, 1989 balance sheet (the "balance sheet") and testimony by Thomas Sweeney ("Sweeney") who was the president of the Debtor at that time. The balance sheet indicates that as of March 31, 1989, Debtor's assets were greater than its liabilities in the amount of $139,674. 7. The credibility of asset valuations set forth on the balance sheet was established by the testimony of Sweeney during the trial. Sweeney was duly qualified to attest to the information given on the balance sheet. He was involved substantially in the preparation of the document while he was president of Debtor, shared in bookkeeping duties, handled the actual buying and selling of inventory, and supervised all aspects of the business operation. 8. Although Sweeney's testimony revealed that certain deductions should be taken from the $139,674 equity shown on the balance sheet, the evidence nonetheless established that Debtor maintained a positive net worth as of March 31, 1989. 9. Because Debtor defaulted under the Lease, Debtor never received back its $37,500 lease deposit. That asset therefore had no value, and the reported value of it should be subtracted from the $139,674 equity balance. Similarly, because Debtor's lease receivable and approximately 3% to 5% of Debtor's account receivables were never collected, an additional $21,000 for the lease and at most $2,107.15 for the receivables should also be deducted from the assets. However, Sweeney's testimony established that all other valuations on the balance sheet, including that regarding Debtor's inventory, were accurate. Therefore, even after the above deductions are taken, as of March 31, 1989 Debtor still maintained a positive net worth of over $79,000. Sweeney further testified that as of March 31, 1989, Debtor was in fact paying its debts as they became due. Debtor was clearly solvent at that time. The evidence did not show any change in solvency over the next eleven days, and the Court finds that Debtor was solvent on April 11, 1989. 10. On April 11, 1989, Crawford moved for turnover of funds from Palos Bank to Crawford that had been discovered through the citation against that Bank. The State Court ordered the requested turnover. The turnover order resulted in payment of $5,155.05 from Palos Bank to Crawford. The check in that amount was received by Crawford on or about April 13, 1989 and cleared on or about April 20, 1989. Crawford applied $3,278.65 of that payment as a principal payment on its judgment and the remainder to Illinois statutory interest on that judgment, thereby leaving a balance of $72,819.95 remaining due on the January 5, 1989 judgment. 11. On April 14, 1989, Crawford caused the following Citations to Discover Assets (the "April 14th Citations") to be issued by the Clerk of the Circuit Court of Cook County: a. Citation and Alias Citation against Thomas E. Grotta and Thomas E. Grotta, P.C.; b. Citation against Canfields Company and American Juice, Inc., a division of Canfields Company; c. Citation against Cooper Industries and Kirasch Company; d. Citation against Spiegel, Inc.; e. Citation against Edgewood Bank; 104 f. Citation against Heritage Bremen Bank; g. Citation against Richmond Bank. The citations against Canfields and American Juice, Spiegel, Edgewood Bank, and Heritage Bremen Bank, were served on April 27, April 19, April 25, and April 28 of 1989, respectively. 12. On May 15, 1989, Debtor filed its voluntary petition under Chapter 11 of the Code. The case was later converted to a Chapter 7 proceeding on December 8, 1989. The current Trustee was appointed on December 21, 1989. 13. On July 14, 1989, Debtor filed this complaint seeking to recover as a preference the $5,155.05 transfer from Palos Bank to Crawford, and to avoid the citation liens which Crawford claims resulted from the issuance and service of the remaining citations. The Trustee adopted Debtor's Complaint. CONCLUSIONS OF LAW A. Jurisdiction 1. United States district courts have subject matter jurisdiction over cases under Title 11 and proceedings arising under, arising in, or related to proceedings under Title 11. 28 U.S.C. § 1334(a), (b). Each district court is authorized to refer such proceedings to the bankruptcy judges for the district. 28 U.S.C. § 157(a). In the Northern District of Illinois, such a referral has been made pursuant to Local Rule 2.33. 2. In a core proceeding that arises in or under Title 11, a bankruptcy judge is empowered to hear and determine the proceeding and issue final orders and judgments. 28 U.S.C. § 157(b)(1). A proceeding to recover a preference is a core proceeding under 28 U.S.C. § 157(b)(2)(F). Similarly, a proceeding to determine the priority of competing liens is a core proceeding under 28 U.S.C. § 157(b)(2)(K). Count I 3. Section 547 of the Bankruptcy Code establishes the requirements for avoiding preferential transfers. Title 11 U.S.C. § 547. Under subsection (b), a trustee may avoid any transfer of the debtor that was made (1) to or for the benefit of a creditor; (2) on account of an antecedent debt; (3) while the debtor was insolvent; (4) on or within 90 days before the filing of the petition (a year when insiders are transferees); (5) where such transfer allowed the creditor to receive a greater percentage of the debtor's estate than it would have received had the transfer not taken place and had the debtor's assets been liquidated and distributed in a Chapter 7 case. 4. The first, second and fifth elements of § 547(b) are not contested. The two elements required under § 547 that are in dispute in this case are: (1) whether payment of $5,1055.05 from Palos Bank to Crawford was the "transfer" of Debtor's property within 90 days before the filing of Debtor's Chapter 11 filing, or whether a citation lien effected transfer before the 90 days; and, (2) whether Debtor was insolvent at the time of the transfer from Palos to Crawford, whenever it took place. 5. A "transfer" within the meaning of the Code is defined as: every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption. 11 U.S.C. § 101(50). 6. This definition of "transfer" has been held to include any judicial proceeding that fixes a lien upon property of the debtor. In re Foluke, 38 B.R. 298, 300 (Bankr.N.D.Ill.1984). This Court therefore must determine whether a judicial lien attached to Debtor's property in favor of Crawford, and if so when that occurred; or when a transfer otherwise took place. Because bankruptcy courts look to state law in determining property rights, the question of whether and when Crawford's lien arose is resolved by reference to Illinois law. See In re Skelly, 38 B.R. 1000, 1001 (Bankr.D.Del.1984). 7. Debtor filed its Chapter 11 petition on May 15, 1989. The 90-day "reachback" period under Section 547 therefore began on February 14, 1989. Crawford 105 contends that under Illinois law there was a "transfer" within the meaning of Section 547 when the January 6th Citation was issued against Palos Bank on January 6, 1989, or at the very least when it was served upon that Bank on January 17, 1989. His argument is that a judicial lien attached to the amount on the deposit in the Bank on one of those dates. Trustee, on the other hand, argues that no transfer occurred until the state court issued a turnover order against Palos Bank on April 11, 1989, within the 90-day period. 8. The Illinois statute governing citation proceedings, Ill.Rev.Stat. ch. 110, ¶ 2-1402, does not specify whether or not a lien arises upon service of citation summons following judgment. That legislative silence has resulted into an area of state law correctly described as being "muddled." General Telephone Co. of Ill. v. Robinson, 545 F. Supp. 788, 797 (C.D.Ill. 1982). However, the weight of authority in Illinois holds that a lien arises on intangible property by service of citation summons. Mid-West Natl. Bank v. Metcoff, 23 Ill. App. 3d 607, 319 N.E.2d 336 (Ill.App.Ct. 1974); Bank of Broadway v. Goldblatt, 103 Ill.App.2d 243, 243 N.E.2d 501 (Ill.App. Ct.1968); General Telephone Co. of Illinois v. Robinson, 545 F. Supp. 788 (C.D.Ill. 1982); Asher v. United States, 570 F.2d 682 (7th Cir.1978). 9. The bankruptcy judges in this district, including this Court, have almost uniformly ruled that the clear weight of Illinois authority finds service of citation summons to create a lien while it also compels the discovered assets to be used toward satisfaction of the judgment. In re Waner, 89 B.R. 751, 755 (Bankr.N.D.Ill.1988) (Schmetterer, J.); In re Fowler, 90 B.R. 375, 377 (Bankr.N.D.Ill.1988) (Coar, J.); In re Einoder, 55 B.R. 319, 325 (Bankr.N.D. Ill.1985) (Ginsberg, J.); In re Gus Hormovitis and George Karahalios, 57 B.R. 471, 475 (Bankr.N.D.Ill.1985) (Schwartz, J.); In re Foluke, 38 B.R. 298, 300 (Bankr.N.D.Ill. 1984) (Hertz, J.); In re Lapiana, 31 B.R. 738, 742 (Bankr.N.D.Ill.1983) (Fisher, J.), aff'd on other grounds, 909 F.2d 221 (7th Cir.1990). 10. The one exception to the above line of cases is In re Jaffe, 111 B.R. 701, 704 (Bankr.N.D.Ill.1990) (Barliant, J.). In Jaffe, Judge Barliant found that service of a citation summons does not create a lien on a debtor's bank account until a turnover order is entered by the state court requiring transfer of the discovered assets. This Court cannot agree with the conclusion in Jaffe. 11. The Jaffe decision, scholarly though it is, reaches a conclusion contrary to the clear weight of Illinois authority which all other bankruptcy courts in this district have followed. In deciding that a lien is not created in a citation proceeding until a turnover order is entered, the Jaffe court was able to cite only one case in support of its finding. See Jaffe, 111 B.R. at 706, citing Kaiser-Ducett Corp. v. Chicago-Joliet Livestock Marketing Center, Inc., 86 Ill.App.3d 216, 41 Ill. Dec. 651, 407 N.E.2d 1149 (3rd Dist.Ill.1980). The Jaffe decision also undertook an analysis which criticized established state law precedent. However, it was the Jaffe court itself which observed that it is for the Illinois legislature, and not the bankruptcy court, to determine how judgment liens are created. Although the reasoning of Illinois courts that we follow may well be questioned, this Court feels bound to follow the weight of state court authority. 12. Thus, this Court abides by the reasoning of prior bankruptcy decisions which have followed Illinois court authority, in finding that the service of the Citation summons against Palos Bank created at that time a lien upon Debtor's bank account. However, for purposes of § 547 the time of "transfer" of an interest is fixed by § 547(e)(2). Perfection of the citation lien on the Palos Bank account did not take place within 10 days after the lien arose by service of citation summons. That summons was served on January 17, 1989. Perfection of the lien took place on April 11, 1989 when the turnover order was entered. Therefore under § 547(e)(2)(B) the "transfer" took place on the latter date, less than 90 days before the Debtor filed its Petition for Relief. 106 13. Count I nonetheless fails pursuant to Section 547(b)(3) since the evidence has shown that Debtor was solvent at the time of "transfer" which took place on April 11, 1989, upon entry of the turnover order. While insolvency is presumed during the 90-day period preceding filing of the Petition for Relief, 11 U.S.C. § 547(f), that presumption was clearly rebutted by the evidence. Count II 14. Count II of the Complaint seeks to avoid all judgment liens which Crawford claims attached to Debtor's assets as a result of the service of Citation summons against Suburban Federal, those parties served with the April 14th Citations, and on others served with citations. In doing so, Trustee invokes his avoidance powers pursuant to Section 544(a) of the Code, Title 11 U.S.C. 15. The purpose of Section 544(a) is to enable the trustee to marshal or increase the potential assets of the estate. Collier's On Bankruptcy, ¶ 544.01 (15th ed.). Section 544(a)(1) in particular accomplishes this by affording a Chapter 7 trustee the status of and power to avoid transfers voidable by a judicial lien creditor. Thus, the trustee's powers are those which state law would allow to a hypothetical creditor of the debtor who, as of the commencement of the case, had completed the legal or equitable processes for perfection of a lien upon property available for the satisfaction of his claim against the debtor. Id. It follows that a trustee's interest as a lien creditor is superior only to those security interests which are unperfected as of the filing of the bankruptcy petition. Therefore, the issue before the Court is whether Crawford's citation liens that arose upon service of citation summonses were "perfected" or "unperfected" at the time Debtor's petition was filed. 16. Ill.Rev.Stat. ch. 110, ¶ 2-1402 provides that: "when assets or income of the judgment debtor . . . are discovered, the court may, by appropriate order or judgment . . . (3) [c]ompel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment. . . ." Ill.Rev.Stat. ch. 110, ¶ 2-1402(b)(3). The statute clearly does not require an actual delivery of the discovered assets until the turnover order is entered. Absent entry of a turnover order, the discovered assets will not necessarily go to the judgment creditor who issued the citation. If another creditor wins a turnover order first, the assets may go to it. 17. Service of a Citation summons is designed to aid the judgment creditor in discovering a debtor's assets and apply them in satisfaction of the judgment. In re Fowler, 90 B.R. 375, 380 (Bankr.N.D. Ill.1988) (Coar, J.). As previously discussed, service of citation summons creates a lien upon discovered property. The lien, however, does not constitute a final order or an order for the payment of money. Id. It is not until a turnover order is entered that a citation lien creditor's rights to the discovered property become fixed and inalienable as against the lien rights of other competing creditors. 18. Ill.Rev.Stat. ch. 110A, ¶ 277(f) provides that a citation proceeding continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent's first personal appearance pursuant to the citation. . . . Ill.Rev.Stat. ch. 110A, ¶ 277(f). Thus, in Fowler Judge Coar found that while a citation proceeding did create a lien on debtor's intangible property, the lien was a temporary remedy which terminated upon termination of the citation proceeding. Id. at 379, citing King v. Ionization Internatl., Inc., 825 F.2d 1180, 1188 (7th Cir.1987) ("[t]he reason for the six-month limitation is to force creditors to move promptly to collect their judgments, so that property does not remain encumbered by liens indefinitely. . . . "). 19. Until a turnover order compelling payment of discovered assets is entered, a lien is not "perfected" in that the creditor's 107 rights to the discovered assets remain subject to termination, either by the lapse of the six-month period or by the entry of a turnover order in favor of another competing creditor. It is not until a turnover order is entered that a debtor loses all interest in his property. In re Dean, 80 B.R. 932, 934 (Bankr.C.D.Ill.1987). 20. Because no turnover orders were entered with regard to the Citation against Suburban Federal, the April 14th Citations, and other parties served with citations other than Palos Bank, Crawford failed to "perfect" his lien except for Palos Bank; that is he failed to fix his rights in Debtor's discovered assets as to parties other than Palos Bank. Thus, Trustee's interest as a hypothetical lien creditor under Section 544(a) is superior to Crawford's interests which remained unperfected as of the filing of the petition. Trustee's strong-arm powers prevail under Count II, except for moneys turned over by Palos Bank under turnover order. Conclusion 21. Accordingly, Palos' transfer of $5,155.05 of Debtor's assets to Crawford did not constitute a voidable preference. Although under 11 U.S.C. § 547(e)(2) the transfer took place within the 90-day reachback period, it took place at a time when Debtor was solvent. Trustee fails on Count I; by separate order judgment will enter accordingly. 22. However, Trustee prevails on Count II. Crawford's Citation liens arising from the Citation against Suburban Federal and parties served with the April 14th Citations, as well as other parties other than Palos Bank that were served with citations were not "perfected" at the time Debtor's petition was filed. Therefore his liens from those Citations are voided due to Trustee's status as a hypothetical perfected lien creditor. By separate order judgment will enter for Trustee on Count II, except as it applies to the moneys formerly held by Palos Bank.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897266/	NO. 07-08-0161-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 27, 2008 ______________________________ CHARLOTTE WELCH, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF L.V. WELCH, APPELLANT V. PINNACLE TECHNOLOGIES, INC., APPELLEE _________________________________ FROM THE 415TH DISTRICT COURT OF PARKER COUNTY; NO. CV-05-1676; HONORABLE GRAHAM QUISENBERRY, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Charlotte Welch, perfected an appeal from the trial court’s summary judgment. Welch has now filed a motion to dismiss her appeal and has conformed to the requirements of Rule 10.1 of the Texas Rules of Appellate Procedure. This disposition is authorized by Rule 42.1(a)(1) and 43.2(f) of the Texas Rules of Appellate Procedure. Finding the motion complies with the requirements of Rules 10.1 and 42.1(a), we dismiss the appeal. Further, the court will tax costs against Welch. Tex. R. App. P. 42.1(d). Having disposed of this appeal at Welch’s request, we will not entertain a motion for rehearing and our mandate shall issue forthwith. Per Curiam . denied, 543 U.S. 820, 125 S. Ct. 69, 160 L. Ed. 2d 29 (2004). An order granting new trial deprives an appellate court of jurisdiction over the appeal. Boris v. Boris, 642 S.W.2d 855, 856 (Tex.App.–Fort Worth 1982, no writ). Accordingly, because there is no final order or judgment in this case, and having given the parties the required ten days notice, we dismiss the appeal on our own motion for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). James T. Campbell Justice	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2983701/	June 24, 2014 JUDGMENT The Fourteenth Court of Appeals FILIBERTO DUARTE PACHECO, Appellant NO. 14-13-00875-CR V. THE STATE OF TEXAS, Appellee ________________________________ This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED. We further order appellant pay all costs expended in the appeal. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1874562/	889 So.2d 87 (2004) Alan A. KIND and Patricia A. Kind, his wife, Appellants, v. Dr. Alan GITTMAN, Appellee. No. 4D03-1447. District Court of Appeal of Florida, Fourth District. November 10, 2004. Rehearing Denied January 4, 2005. 88 John J. Shahady and Thomas R. Shahady of Adorno & Yoss, P.A., Fort Lauderdale, for appellants. Keith T. Grumer and Maidenly Sotuyo-Macaluso of Grumer & Levin, P.A., Fort Lauderdale, for appellee. TAYLOR, J. This appeal arises from the sale and purchase of a two-story office building in Pompano Beach, Florida. The sellers, defendants below, appeal from a final judgment entered upon a jury verdict for the plaintiff/buyer on his claim of fraud in the inducement. We reverse, because the plaintiff failed to prove the proper measure of damages for fraud. In December 1999, when Alan and Patricia Kind sought to refinance their property, Union Planters obtained a "limited appraisal" of the property to determine if they qualified for a loan. The appraisal report estimated the "as is" fair market value of the building at $1.5 million. Although the report included information concerning the building's then current leases and rental income, it expressly stated that the appraised value was based only on the fee simple value of the property and not the leases. Upon learning that the building was valued at $1.5 million, the Kinds decided to sell the building instead of refinancing it. Alan Kind made copies of the limited appraisal to hand out to prospective buyers to assist them in obtaining financing. In mid-February 2000, Dr. Gittman and his business partner, Cindy Estes, while scouting a location for their new medical clinic, spotted the "for sale" sign outside the Kinds' building. Dr. Gittman and Estes met with Alan Kind and discussed, among other things, Dr. Gittman's need for a guaranteed rental income stream from the second floor office suites. Kind provided Dr. Gittman with a copy of the limited appraisal, which described a rent roll as of December 19, 1999. At that time, the second floor was fully leased. Ultimately, the Kinds accepted an offer of $1.6 million from Dr. Gittman to purchase the building. On May 9, 2000, Dr. Gittman and the Kinds executed a contract for sale and purchase. The contract states in pertinent part: Other agreements: no prior or present agreements or representations shall be binding upon Buyer and Seller unless included into this contract. Leases: Seller shall, not less than fifteen (15) days before closing, furnish the Buyer copies of all written leases and estoppel letters from each tenant specifying the nature and duration of the tenants occupancy, rental rates, advanced rent and security deposits paid by the tenant. If Seller is unable to obtain estoppel letters from each Tenant, the same information shall be furnished by Seller to Buyer within that time period in the form of a Seller's affidavit and Buyer may thereafter contact Tenants to confirm such information. Seller shall, at closing, deliver and assign all original leases to Buyer. 89 An addendum to the contract, added at Dr. Gittman's request, states in pertinent part: The Sellers warrant that the entire second floor of the real property, which is the subject matter of this Contract, is fully leased and all leases have a least two (2) years remaining and are transferable to the Buyers. Pursuant to the contract, and prior to closing, Kind delivered to Dr. Gittman's attorney four subordination and estoppel letters from the second-floor tenants. He also delivered an affidavit to Dr. Gittman's attorney stating that five of the six office suites were fully leased and providing the names of the tenants. At that time, three of the tenants whose leases were described in the 1999 Limited Appraisal had already vacated the premises. After the contract was signed, Kind advised Dr. Gittman that one of the tenants would not be renewing its lease. However, Kind agreed to sign a supplemental addendum warranting that, if the tenant did not renew its lease, the Kinds would be leasing that suite. Dr. Gittman received $1.2 million from Metro Bank to purchase the property, and the Kinds agreed to finance the $400,000 remainder and give Dr. Gittman a second mortgage. On the eve of closing, Dr. Gittman borrowed an additional sum from the sellers to pay for closing costs. On August 30, 2000 Dr. Gittman closed on the purchase of the building and executed a note and purchase money mortgage in favor of the Kinds. After Dr. Gittman (hereinafter referred to as "the buyer") purchased the property, he made payments on the $400,000 note and the second promissory note and collected rents as expected from the second floor leases. However, five months after the closing, a major tenant that occupied four of the suites vacated the building and the buyer was left with just one tenant. The buyer ceased making mortgage payments to the Kinds (hereinafter referred to as "the sellers") and commenced this lawsuit against them. The complaint alleged fraud in the inducement. More specifically, it alleged that the sellers misrepresented the length and rental income of the leases described in the limited appraisal presented to the buyer prior to closing. As a result, the buyer alleged, he paid an inflated value for the property. The complaint stated, in pertinent part: 10. As an inducement to purchase said property, Defendants represented to Plaintiff that the Property generated certain rental income and there existed certain long term leases as represented in the Limited Appraisal prepared for Union Planters Bank. 14. Plaintiff significantly overpaid for the Property due to the false representations of its value by defendants. Plaintiff did not receive the benefit of his bargain as a result of Defendant's fraudulent misrepresentations. 19. Plaintiff has been damaged by Defendant's fraudulent misrepresentation by not receiving the benefit of his bargain and paying an inflated price for the Property. The buyer's complaint did not contain a breach of contract or warranty count and did not plead special damages, such as lost profits or lost rental income. The sellers denied the fraud allegations and counterclaimed against the buyer for foreclosure on the $400,000 note and mortgage and for nonpayment of the money he borrowed for closing costs. The case proceeded to trial, with the jury hearing the buyer's claim for fraud in the inducement and the court trying the sellers' mortgage foreclosure action and suit on both notes. 90 At trial, the buyer extended his theory of fraud to include misrepresentations concerning the two-year leases in the contractual warranty and affidavit. Over the sellers' objection, he introduced evidence of the warranty and affidavit and testified concerning them. The buyer also presented evidence of lost profits (rents) over objection. He did not have a witness testify as to the actual value of the building absent the allegedly fraudulent leases. After presenting his evidence, the buyer moved to amend his pleadings to conform to the evidence to allow a breach of contract count. The sellers objected. They argued that they would be prejudiced by insertion of this new claim mid-trial because of their inability to undergo discovery as to contractual damages and mitigation efforts. The trial court agreed and denied the motion to amend. The sellers moved for directed verdict based on several grounds; however, the trial court reserved ruling until after the jury returned a verdict. The jury found the sellers liable for fraud in the inducement and awarded damages in the amount of $175,000 based solely on the evidence of "lost rental income." The trial court entered a final judgment in the buyer's favor for $175,000. On the seller's mortgage foreclosure action, the court found for the buyer on his affirmative defense and entered a setoff in the buyer's favor, partially canceling the original promissory note and mortgage to the extent of the jury's $175,000 award. The sellers moved for a directed verdict on numerous grounds at the close of the buyer's case and after the jury's verdict. However, we address just one ground, because it is dispositive: the buyer's failure to prove damages for fraud. We agree with the sellers that the trial court erred by not entering a directed verdict on this issue. In our district, there are two standards for measuring damages in an action for fraud, and either may be used depending upon the circumstances. See Martin v. Brown, 566 So.2d 890 (Fla. 4th DCA 1990). According to Martin: The first standard is the "benefit of the bargain" rule which awards as damages the difference between the actual value of the property and its value had the alleged facts regarding it been true. The second standard is the "out-of-pocket" rule which awards as damages the difference between the purchase price and the real or actual value of the property. Id. at 891-892. Either measure of damages requires a plaintiff to prove the actual value of the property at the time of purchase. See Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999). Lost profits or lost rents are not the proper measure of damages in a fraudulent misrepresentation case. Id. In this case, the buyer did not prove the element of damages. Although he alleged in his complaint that he did not receive the benefit of his bargain because he paid an "inflated price" for the property, at trial he presented no testimony fixing the actual value of the property on the date of the sale. The only evidence of damages he presented was a description of lost rental profits. Lost rental profits were not a proper measure of damages in this fraud case. Because there was no proof at trial of the correct measure of damages, judgment should have been entered for the sellers. See Teca, Inc., 726 So.2d at 830. On cross-appeal, the buyer argues that the trial court abused its discretion in denying his rule 1.190(b) motion to amend the pleadings to conform to the evidence. 91 We disagree and affirm the court's ruling. Allowing the mid-trial amendment to introduce a new and different cause of action for breach of contract would have prejudiced the sellers, as the new issues and grounds of relief would have required additional discovery and possibly additional witnesses. See Allett v. Hill, 422 So.2d 1047 (Fla. 4th DCA 1982) (finding that trial court erred in permitting plaintiffs in slip-and-fall negligence case to amend their complaint on the eve of trial to assert a breach-of-contract theory). We reverse and remand this case with directions to enter judgment in favor of the defendants/sellers on the fraud claim. We further reverse the order granting the plaintiff/buyer an offset against the amount due on the mortgage and note and remand for further proceedings consistent with this opinion. GROSS and HAZOURI, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601670/	228 P.3d 533 (2009) 2009 OK CIV APP 99 Karen NELSON, Trustee of the Revocable InterVivos Trust of Karen Nelson, Dated May 4, 1989, Plaintiff/Appellant, v. LINN MIDCONTINENT EXPLORATION, L.L.C., f/k/a Dominion Midcontinent Exploration, L.L.C., Defendant/Appellee. No. 105,751. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. Court of Civil Appeals of Oklahoma, Division No. 3. September 4, 2009. Certiorari Denied November 30, 2009. 534 Gregory L. Mahaffey, Cody Joe McPherson, Mahaffey & Gore, P.C., Oklahoma City, OK, for Appellant. Rob F. Robertson, E. Talitha Ebrite, Gable Gotwals, Oklahoma City, OK, for Appellee. LARRY JOPLIN, Judge. ¶ 1 Plaintiff/Appellant Karen Nelson, Trustee of the Revocable InterVivos Trust of Karen Nelson, Dated May 4, 1989, seeks review of the trial court's order granting the motion for summary judgment of Defendant/Appellee Linn Midcontinent Exploration, L.L.C., f/k/a Dominion Midcontinent Exploration, L.L.C., on Plaintiff's claims to recover allegedly due and unpaid mineral royalties. In this accelerated review proceeding, Plaintiff challenges the trial court's judgment as affected by errors of both law and fact. ¶ 2 Plaintiff commenced the instant action, asserting that she owned an overriding royalty interest in oil and gas produced and sold by Defendant, and that Defendant both failed to pay her the share of the payments from production to which she was entitled, and improperly deducted "mesne" charges from her share of the payments from production for "certain items including marketing, compression, gathering, transportation[,. . .] treating and `miscellaneous deductions.'" Plaintiff accordingly sought an accounting and damages for violation of the Oklahoma Production Revenue Standards Act, 52 O.S. § 570.1, et seq., and conversion. ¶ 3 Defendant answered, and denied liability. Defendant asserted it properly withheld charges due from Plaintiff on other wells from the production proceeds to which Plaintiff claimed the right to payment. ¶ 4 Plaintiff then filed a motion for partial summary judgment. Plaintiff presented evidentiary materials demonstrating her ownership of an overriding royalty interest in production by Defendant, Defendant's non-payment, and argued that Oklahoma law proscribed the recovery of overpayments attributable to one well from the production payments due from a different well. See, Shanbour v. Phillips 66 Natural Gas Co., 1993 OK 128, 864 P.2d 815. ¶ 5 On the same day, Defendant also filed a motion for partial summary judgment. Defendant presented evidentiary materials demonstrating the overpayment of royalties to Plaintiff from the Merrick 7-C well in Roger Mills County, Oklahoma, and from the Clay 1-5 well in Caddo County, Oklahoma, its recovery of those overpayments from the revenue attributable to those wells, and asserted that Oklahoma law permitted such a recoupment of the overpaid royalties. ¶ 6 The trial court granted the motion for summary judgment of Defendant, and denied the motion for summary judgment of Plaintiff.[1] Plaintiff appeals,[2] and the matter stands submitted on the trial court record.[3] ¶ 7 "A `recoupment' is the `right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.'" Bank of Oklahoma, N.A. v. Briscoe, 1995 OK CIV APP 156, ¶ 25, 911 P.2d 311, 318. (Citations 535 omitted.) (Emphasis added.) "[T]he defining characteristic of set-off is that the mutual debt and claim are generally those arising from different transactions." 80 C.J.S., Set-off and Counterclaim, § 38 (West 2009). (Emphasis added.) Consequently, "[i]n an action against one upon a contract, he may offset or plead as a defense thereto any claim arising to him by virtue of any contract with the one instituting the same." Sanders v. Street's of Tulsa, 1950 OK 41, ¶ 0(1), 202 Okla. 427, 214 P.2d 910, 911. ¶ 8 Further, and regardless of the characterization as set-off or recoupment, it goes without saying that, in an appropriate circumstance, overpayments of royalty made by mistake may be recovered from the payee. 3 Williams, Oil and Gas Law, § 657; 3 Kuntz, A Treatise on Oil and Gas, § 42.8. Oklahoma clearly follows this rule: "The Court of Appeals correctly decided that overpayments of royalty due to a mistake of fact may be recovered from the payee." Shanbour v. Phillips 66 Natural Gas Co., 1993 OK 128, ¶ 6, 864 P.2d at 817. (Footnote omitted.) ¶ 9 In the present case, it is uncontroverted that Plaintiff was paid more than that to which she was entitled from the Merrick 7-C well in Roger Mills County, Oklahoma, and from the Clay 1-5 well in Caddo County, Oklahoma, and Defendant was entitled to recover the overpayments, either as a matter of recoupment or set-off. Nothing in Shanbour or the Oklahoma Production Revenue Standards Act proscribes the offset of revenue due from one well against the overpayment of revenue attributable to another well. The equitable doctrine of set-off permits the set-off of an obligation under one contract against the obligation of any other contract between the same parties, so that Defendant could properly recover overpayments on one well against the amounts due Plaintiff from the other. ¶ 10 The order of the trial court is AFFIRMED. HANSEN, P.J., and MITCHELL, C.J., concur. NOTES [1] Plaintiff accepted Defendant's offer to confess judgment on the claim of improper deduction of expenses. [2] On the parties' joint applications representing the impending settlement of this appeal, the Court has delayed disposition of this case since February 2009. [3] See, Rule 13(h), Rules for District Courts, 12 O.S.2001, Ch. 2, App.; Ok.S.Ct.R. 1.36, 12 O.S. 2001, Ch. 15, App.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1884970/	942 F. Supp. 136 (1996) Freddie HAMILTON, Administratrix, et al., Plaintiffs, v. ACCU-TEK, et al., Defendants. In re COURTROOM TELEVISION NETWORK, Applicant/Proposed Intervenor. No. 95 CV 0049 (JBW). United States District Court, E.D. New York. October 18, 1996. Elisa Barnes, New York City, for Plaintiffs. John F. Renzulli, Renzulli, Gainey & Rutherford, New York City, for Defendants. Robert L. Joyce, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, for Defendants Accu-tek, A.M.T., Browning Arms Co., Caspian Arms Co., Davis Industries, Inc., European American Armory, Freedom Arms Co., Glock Inc., H & R 1871 Corp., International Armament, K.B.I. Corp., Mitchell Arms Inc., Navegar Inc., Para Ordnance Mfg. Inc., Savage Arms Corp., Thompson/Center Arms Co. Daniel T. Hughes, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York City, for Defendant American Arms Inc. Timothy A. Bumann, Christopher J. York, Cozen and O'Connor, Atlanta, GA, for Defendants American Derringer, Bryco Arms, Calico Inc., Excam Inc., Firearms Import and Export Corp., Jennings Firearms Inc., Lorcin Engineering Co., Phoenix Arms Co., S.W. 137 Daniels Inc., Taurus International Firearms Inc. Michael J. Sommi, Cozen and O'Connor, New York City, for Defendants A.M.T., Bryco Arms, Calico Inc., Excam Inc., Lorcin Engineering Co., Taurus International Firearms Inc., Thompson Center Arms. Patricia Fried Moores, Pino & Associates, White Plains, NY, for Defendants Beretta Firearms, Beretta U.S.A. Corp. Peter James Johnson, Jr., Leahey & Johnson, P.C., New York City, for Defendant Century International Arms Inc. Timothy Atwood, Ansonia, CT, for Defendant Charco. Anne Giddings Kimball, Wildman, Harrold, Allen, Dixon & Smith, Chicago, IL, for Defendants Colt Industries Operating Corp., Colt's Mfg. Co., Inc., Marlin Firearms Inc., Remington Arms Co., Seecamp, Smith and Wesson Inc., Sturm, Ruger and Co., Inc. Steven Jay Harfenist, Carroll & Harfenist, New York City, for Defendant S.W. Daniels, Inc.. Floyd Abrams, Jonathan Sherman, Cahill Gordon & Reindel, New York City, for the Intervenor. AMENDED MEMORANDUM AND ORDER WEINSTEIN, Senior District Judge: Courtroom Television Network ("Court TV") moved to intervene and for permission to broadcast the argument of pending motions. No objection was made by any party. General Rule Seven of the Eastern District of New York permits an individual judge to decide if part or all of a case should be recorded for television broadcast, and what the conditions of that recording should be. Entitled "Photographs, Radio, Recordings, Television," it reads in part: No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court. Decisions interpreting the rule affirm the authority of each judge to permit with conditions, or to deny, television recording or broadcasting from the courtroom over which she or he presides. See Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580 (S.D.N.Y.1996) (Sweet, J.) (permitting civil proceedings to be televised under the authority of identical local court rule, S.D.N.Y.Gen.R. 7); Marisol A. v. Giuliani, 929 F. Supp. 660 (S.D.N.Y.1996) (Ward, J.) (same; extensive description of history and authority under Gen.R. 7 and of desirability of continuing current discretion of trial judges). The present reluctance of the United States Judicial Conference to utilize television in civil cases is clear. In September 1994 the Conference "declined to approve" a recommendation favorable to television after a national study. In March 1996 the Conference suggested that judicial councils of the circuits abrogate local rules that permit televising in civil cases. Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580, 584. The Judicial Council of the Second Circuit has not followed the Conference suggestion. It has taken no action, leaving Rule Seven operative. A district judge is not bound by Conference suggestions, although, of course, it gives them great weight since they reflect much of the wisdom and experience of the federal judiciary. See 28 U.S.C. §§ 331 ("suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business"), 2071(c) (rule-making power generally; "A rule of a district court ... shall remain in effect unless modified or abrogated by the judicial council of the relevant circuit"); Marisol A. v. Giuliani, 929 F. Supp. 660, 661 (policy of the Conference does not overrule or supplant Local Rules); Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580, 584 (same). No reason has been suggested to depart from previously expressed views that, in general, the public should be permitted and encouraged to observe the operation of its courts in the most convenient manner possible, 138 so long as there is no interference with the due process, the dignity of litigants, jurors and witnesses, or with other appropriate aspects of the administration of justice. See Diane L. Zimmerman et al., Let the People Observe Their Courts, 61 Judicature 156 (1977); N.Y.L.J., March 31 & April 1, 1977, at 1; Morton Mintz, High Court Taping Urged, Federal Judge Advocates Public's Right to Know, Wash. Post, November 18, 1977, at A2. In his article, Milton's Areopagitica and the Modern First Amendment, Columbia Law School Bulletin 35 (Fall 1996), Professor Vincent A. Blasi referred to the English Parliament's regulation of pamphlet printing in the mid-17th century, because this revolutionary new medium of communication might be used to embolden the masses. The Parliament's action, he suggested, may be analogized to controlling access of the eye and ear of television to public institutions: "Never before ... have the technologies of mass communication made the susceptibilities of audiences so dangerous." Id. at 40. See also Justice Brandeis, the strong supporter of letting the sunshine in: "The greatest menace to freedom is an inert people." Whitney v. California, 274 U.S. 357, 375-76, 47 S. Ct. 641, 648, 71 L. Ed. 1095 (1926) (Brandeis, J., concurring). In our democracy, the knowledgeable tend to be more robustly engaged in public issues. Information received by direct observation is often more useful than that strained through the media. Actually seeing and hearing court proceedings, combined with commentary of informed members of the press and academia, provides a powerful device for monitoring the courts. Court TV's applications to intervene and to broadcast argument of the pending motions are granted. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902586/	120 B.R. 597 (1990) In re AIRLIFT INTERNATIONAL, INC., Debtor. William D. SEIDLE, Trustee, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Bankruptcy No. 89-1053-CIV. United States District Court, S.D. Florida. May 31, 1990. ORDER MARCUS, District Judge. THIS CAUSE comes before the Court on an Appeal by the Internal Revenue Service ("IRS") on behalf of the United States of America, Appellant, from a Final Judgment of the United States Bankruptcy Court for the Southern District of Florida entered March 21, 1989. The Bankruptcy Court granted the Trustee's (Appellee's) Motion for Summary Judgment holding that the IRS's claim for taxes pursuant to 26 U.S.C. § 4971(a) was not entitled to administrative priority under the Bankruptcy Code. In addition, the Court subordinated the IRS' claim to the claims of the general creditors pursuant to 11 U.S.C. § 510(c). Appellant argues that the bankruptcy court erred as a matter of law in granting the Trustee's Motion for Summary Judgment. I. Standard of Review A district court must review the bankruptcy court's findings of fact by the "clearly erroneous" standard of review, even when the lower court's findings do not rest on credibility determinations but on physical or documentary evidence or inferences from other facts. Jefferson v. Mississippi Gulf Coast YMCA, Inc., 73 B.R. 179 (S.D.Miss.1986); see Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985); 11 U.S.C. Bankruptcy Rule 8013 (1990). Legal conclusions by the bankruptcy court, however, are subject to de novo review by the district 598 court. Matter of Consolidated Bancshares, Inc., 785 F.2d 1249 (5th Cir. 1986). The issues raised by Appellant in the instant case concern matters of law properly subject to plenary review. II. IRS Appeal The IRS appeals the decision of the bankruptcy court denying administrative expense priority to IRS's claims in Claim Number 3551, based on 26 U.S.C. § 4971(a).[1] On appeal, the IRS asserts claims for Section 4971(a) taxes for periods up to and including June 30, 1984 on two pension plans maintained by the Debtor. The IRS has also appealed the bankruptcy court's subordination, pursuant to 11 U.S.C. § 510(c), of the IRS's Section 4971(a) claims to the claims of the general unsecured creditors. We reproduce and incorporate the bankruptcy court's narration of the background and procedural history which has not been challenged by the parties: [W]hen Airlift filed its petition for relief under Chapter 11 of the Bankruptcy Code on June 4, 1981, Airlift, maintained two pension plans, the A Plan and B Plan (collectively the "Plans"), as part of the then-existing collective bargaining agreement between the Debtor and the Air Line Pilots Association ("ALPA"). The record reflects that at no time after the filing of the bankruptcy petition were the Airlift pilots, collectively holding very substantial claims against the Airlift estate, led to believe that they would accrue any additional pension benefits from continuing to perform services. The record demonstrates that the Airlift pilots were on notice that there would be no further accrual of pension benefits. Because of Airlift's financial condition, Airlift failed to meet the minimum funding standards for both Plans for the plan year ending June 30, 1981, subjecting Airlift to potential liability under 26 U.S.C. § 4971. IRC section 4971 imposes on an employer who maintains a qualified retirement plan subject to the minimum funding requirements a tax of five percent (referred to as "first tier tax") of the amount of the "accumulated funding deficiency" determined as of the end of the plan year. If the accumulated funding deficiency is not corrected within a certain period, IRC section 4971(b) imposes a tax (referred to as "second tier tax") equal to 100 percent of the accumulated funding deficiency. The IRS denied Airlift's request as to a waiver of the first tier tax provided under IRC section 4971(a), but granted the waiver request as to the 100 percent second tier tax prescribed by IRC section 4971(b). On June 15, 1984, the Trustee sought court approval of the rejection of the collective bargaining agreement with ALPA and all the Debtor's obligations under the attendant pension plans. The record reflects that both the PBGC and the IRS were given notice of the Trustee's motion. The PBGC objected to Trustee's rejection motion, but the IRS did not do so. On September 17, 1984, this Court entered an Order approving the rejection of the collective bargaining agreement and its attendant pension plans, including the obligations arising thereunder. Following the rejection of the pension plans, the PBGC sought administrative expense priority for its claims including those for unpaid contributions due pursuant to ERISA in regard to Plan A, among other claims. On July 11, 1985, this Court entered an Order disallowing the PBGC's administrative priority claims on the grounds that rejection of the collective bargaining agreement relegated any post-petition funding obligations which may have accrued to pre-petition status by virtue of 11 U.S.C. § 502(g), and that any post-petition funding obligation was not essential to preserving the estate. The PBGC filed an appeal to the District Court which was 599 subsequently dismissed on procedural grounds. On August 30, 1988, the IRS filed a Request for Payment of Internal Revenue Taxes (Form 6338-A), amending and superseding the IRS' previous two amendments to its proof of claim (Claim Number 3152 and 3153), claiming, among other things, an administrative expense for taxes and accrued interest with respect to Plan A for the year ending March 25, 1982 and with respect to Plan B for the plan years ending June 30, 1982-86. The IRS also filed a proof of claim for taxes due with respect to both Plans for the plan year ending June 30, 1981, claiming an unsecured priority status under section 507(a)(6) of the Bankruptcy Code. After the action had been set on the trial calendar, the IRS filed an amended claim contending the entire amount claimed was entitled to administrative expense priority (Claim Number 3551). At the hearing on the Trustee's motion for summary judgment, the Court permitted the IRS' tardy amendment and deemed the Trustee's Objection and Counterclaim amended to address the IRS' last amended claim (Claim Number 3551). Order of the Bankruptcy Court on Trustee's Motion for Summary Judgment, March 21, 1989. 97 B.R. 664. In its Order on Trustee's Motion for Summary Judgment, entered March 21, 1989, the bankruptcy court held against the IRS's claim to administrative priority for Section 4971(a) taxes on the basis of three independent reasons: First, the claim is not for post-petition taxes because, as a matter of law, the rejection of the collective bargaining agreement and its attendant pension plans terminated the Plans prior to the filing of the bankruptcy petition and relegated to pre-petition status any obligation arising under the Plans pursuant to section 502(g). Any contrary argument advanced by the IRS is barred by the doctrine of collateral estoppel. Second, the IRS' claim is not for actual, necessary costs and expenses of preserving the estate. 11 U.S.C. § 503(b)(1)(A). As recognized in this Court's prior decision, which the IRS cannot now collaterally attack, any funding obligations accruing post-petition are attributable to services rendered pre-petition. Finally, the IRS' claim is punitive in nature; thus, the underlying liability does not qualify as a tax for bankruptcy purposes. Further, the Court grants the Trustee's request to have the IRS' claim subordinated pursuant to section 510(c) on the ground that it would be inequitable to allow the claim, especially in light of the punitive purpose behind the IRS' claim and the fact that the failure to subordinate the IRS' claim would harm Airlift's innocent creditors. Appellant challenges all three grounds cited by the bankruptcy court in support of its decision to deny the IRS priority claim. Fundamental to all of Appellant's arguments, however, is the contention that the Debtor incurred § 4971(a) taxes post-petition that is, Appellant's claim of administrative expense priority will prevail only if the Debtor incurred post-petition § 4971(a) taxes. On appeal, the IRS contends that 11 U.S.C. § 502(g)[2] does not operate to relegate its claims to pre-petition status. Appellant argues that its § 4971(a) tax claims, in connection with the Debtor's pension plan accumulated funding deficiency, did not "aris[e] from the rejection . . . of an executory contract" pursuant to Section 502(g). Appellant argues that the taxes in question did not arise upon the rejection of the collective bargaining agreement; but instead, that they arose at the end of each plan year upon the determination that there was an accumulated funding deficiency 600 for the plans. Since the taxes claimed were incurred post-petition, it is argued, the IRS is entitled to first priority as to the administrative expenses of the bankruptcy estate pursuant to 11 U.S.C. § 503(b). In essence, Appellant's argument on appeal is based on the timing of the bankruptcy court's approval of the Trustee's rejection of the collective bargaining agreement. Appellant argues that until the court approved the rejection and consequent termination of the pension plans, the Debtor continued to incur post-petition § 4971(a) tax liability for failure to adequately fund its pension plans. We note that Appellant does not contest the termination of the pension plans effective immediately prior to the filing of the bankruptcy petition. Yet, Appellant urges that its claims arose post-petition at the end of each succeeding year in which the pension plans, presumably, would have been in effect if not for the bankruptcy court's approval of their termination. We are not persuaded by Appellant's argument. The bankruptcy court did not err as a matter of law in finding that the § 4971(a) tax liability claimed by Appellant was not incurred post-petition and consequently not entitled to administrative expense priority. The tax liability claimed by Appellant is dependent on the effective term of the pension plans. That is, § 4971(a) tax liability accrues, on the basis of an accumulated funding deficiency, at the end of a pension plan year for each taxable year in which an employer maintained an applicable pension plan. See In Re: Wheeling-Pittsburgh Steel Corp., 103 B.R. 672 (W.D.Pa.1989) (The court noted that it is a well-settled rule that the time when a tax obligation accrues is the critical factor rather than the date the tax return is due. Under substantially similar factual circumstances as presented in the instant appeal, the Court held that Section 4971(a) taxes were based on pre-petition transactions or events and thus were not entitled to administrative expense status.) There is no dispute here that the Debtor's pension plans were effectively terminated as of June 4, 1981. On September 17, 1984 the bankruptcy court entered an order approving the rejection of the former collective bargaining agreement, including the pension plans in force and running concurrent with that agreement. By operation of Section 502(g), claims arising from the rejection of the collective bargaining agreement and the relevant pension plans were relegated to pre-petition status. See Order on Objection to PBGC Administrative Priority Claims, In Re: Airlift International, Inc., Case No. 81-00846-BKC-SMW (July 11, 1985) ("The Court concludes that the rejection of the ALPA collective bargaining agreement effectively rejected the Debtor's obligation to continue funding the pension plans. Accordingly, any post-petition funding obligations which may have accrued under ERISA's minimum funding standards have been relegated to pre-petition status by virtue of 11 U.S.C. § 502(g).") Consequently, on the basis of the pension plans' termination immediately prior to the filing of the bankruptcy petition, any tax liability with respect to the Debtor's funding of those plans was incurred pre-petition and is not entitled to administrative expense priority. Furthermore, we are not persuaded by the distinction drawn by the Appellant here between "obligations under an executory contract" and "claims arising from the rejection of an executory contract" for purposes of Section 502(g). In support of its argument, Appellant asserts that the United States was not injured by the rejection of the collective bargaining agreements and suffered no damages as a result of that rejection. Consequently, Appellant maintains, its claims did not arise from the Trustee's rejection of the collective bargaining agreement and are not subject to Section 502(g) relegation to pre-petition status. In our view, the Trustee's rejection of the collective bargaining agreement was, in fact, an event triggering Appellant's § 4971(a) claims. Rejection of the collective bargaining agreement by the Trustee included rejection and consequent termination of the pension plans. In turn, termination of the pension plans marked the end of the plan year and gave rise to a 601 § 4971(a) taxing event. See In Re: Mid Region Petroleum, Inc., 111 B.R. 968 (N.D.Oklahoma 1990) (finding that accrued but unpaid post-petition rent pursuant to a rejected executory lease agreement was "a claim arising from the rejection" of a lease and was to be treated as a general unsecured claim under 11 U.S.C. § 502(g).) Appellant, itself, has conceded that its claim for § 4971(a) taxes for the period ending June 30, 1985 arose from the rejection of the collective bargaining agreement, at the time of the bankruptcy court's approval on September 17, 1984, and is consequently subject to § 502(g) relegation to pre-petition status. Appellant has not appealed the bankruptcy court's ruling as to its claim for Section 4971(a) tax for the period ending June 30, 1985. In our view, Appellant's claims come within the language of Section 502(g) and should be accorded pre-petition status. In addition, we find no error in the bankruptcy court's decision to subrogate the IRS's claims to the claims of the general creditors of the estate under Section 510(c). Title 11, Section 510(c) of the United States Code provides: Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. It is not disputed, and we agree, that under Section 510(c), tax penalties or punitive damage claims are susceptible to subordination. See Matter of GAC Corp., 681 F.2d 1295 (11th Cir.1982); In the Matter of Virtual Network Services Corp., 902 F.2d 1246 (7th Cir.1990); In Re: Merwede, 84 B.R. 11 (Bkrtcy.D.Conn.1988); Matter of Mansfield Tire & Rubber Co., 80 B.R. 395 (Bkrtcy.N.D.Ohio 1987); Matter of Colin, 44 B.R. 806 (Bkrtcy.S.D.N.Y.1984); see also 124 Cong.Rec. H 11,095 (daily ed. Sept. 28, 1978); S 17,412 (daily ed. October 6, 1978) ("To date, under existing law, a claim is generally subordinated only if the holder of such claim is guilty of inequitable conduct, or the claim itself is susceptible to subordination, such as a penalty . . . ") Furthermore, Section 4971 taxes have been construed as a penalty and not a tax for bankruptcy purposes. Matter of Mansfield Tire & Rubber Co., 80 B.R. 395 (Bkrtcy.N.D.Ohio 1987). In a detailed analysis of the nature and purpose of 26 U.S.C. Section 4971, the court in Mansfield found that § 4971 did not meet the requirements for a tax under the Bankruptcy Code. See City of New York v. Feiring, 313 U.S. 283, 61 S. Ct. 1028, 85 L. Ed. 1333 (1941); Mansfield, 80 B.R. at 398; In Re: Lorber Industries of California, Inc., 675 F.2d 1062 (9th Cir.1982). The Court held that assessments levied pursuant to § 4971 are not for the "purpose of defraying expenses of the government or undertakings authorized by it" but rather to sanction an employer who fails to make minimum pension plan funding contributions. Indeed, the legislative history behind § 4971 reflects its punitive nature. Both the House and Senate Reports confirm the punitive aim of the legislation. H.R.Rep. No. 807, 93rd Cong., 2nd Sess. reprinted 1974 U.S. Code Cong. & Admin.News 4694 ("The bill also provides new and more effective penalties where employers fail to meet the funding standards. . . . the committee bill places the obligation for funding and the penalty for underfunding on the person on whom it belongs namely, the employer."); S.Rep. No. 383, 93rd Cong., 2nd Sess. reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4909 ("[T]he committee believes that current sanctions on an employer for failure to adequately fund his qualified plan are inappropriate since they may affect an employer's decision to underfund his plan.") In our view, the bankruptcy court did not err as a matter of law in subrogating, pursuant to 11 U.S.C. § 510(c), the IRS's claim for § 4971 taxes. The bankruptcy court found the § 4971 tax to be a penalty, and, since its purpose is to deter future *602 underfunding of pension plans, that it is inequitable to have the wrongdoer's estate pay to the detriment of its innocent creditors. The bankruptcy court held that equity demands the IRS's claim be subordinated. In the alternative, employees, the intended beneficiaries of the pension plans who constitute a substantial group of Airlift's creditors, will lose to a tax because of their defunct pension plans. We believe the bankruptcy court was correct. Accordingly, on the basis of the foregoing analysis, the bankruptcy court's decision of March 21, 1989 is AFFIRMED. DONE AND ORDERED. NOTES [1] 26 U.S.C. § 4971(a), for the years in question, provided: Initial Tax. For each taxable year of an employer who maintains a plan to which section 412 applies, there is hereby imposed a tax of 5 percent on the amount of the accumulated funding deficiency under the plan, determined as of the end of the plan year ending with or within such taxable year. [2] 11 U.S.C. § 502(g) (1990) provides: A claim arising from the rejection, under section 365 of this title or under a plan under chapter 9, 11, 12, or 13 of this title, of an executory contract or unexpired lease of the debtor that has not been assumed shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1544630/	133 F.2d 803 (1942) MID-CONTINENT INV. CO. et al. v. MERCOID CORPORATION (two cases). Nos. 8008, 8009. Circuit Court of Appeals, Seventh Circuit. December 23, 1942. Rehearing Denied March 27, 1943. 804 Richard Spencer, Richard L. Johnston, Wm. P. Bair, Will Freeman, Lloyd C. Root, and Spencer, Marzael, Johnston & Cook, all of Chicago, Ill., for appellants. Langdon Moore, of Chicago, Ill., for appellee. Before SPARKS, MAJOR, and MINTON, Circuit Judges. SPARKS, Circuit Judge. The original plaintiff, Mid-Continent Investment Company (hereafter referred to as Mid-Continent) charged the Mercoid Corporation (hereafter referred to as Mercoid), with contributory infringement of United States Combination Patent No. 1,758,146 to Cross. The patent was issued May 13, 1930, on an application filed November 11, 1926. On June 2, 1932, it was assigned to Mid-Continent, subject, however, 805 to an exclusive license, dated December 23, 1931, to Minneapolis-Honeywell Regulator Company (hereafter referred to as Honeywell). The invention relates to improvements in domestic heating systems, and refers more particularly to a hot air system of heating in which the combustion gases passing to the flue are reduced in temperature in their passage through a heat exchanging device below the kindling temperature of wood. Among the particular objects of the invention are to provide a system having a furnace into which is mechanically and automatically fed a comminuted coal, such as disintegrated coal; also a system which is automatically controlled by a dual system of control, one phase of which operates the fuel feed and a force draft mechanism by variations in the room temperature, and the other operates the fuel feed and force draft by predetermined minimum temperatures in the furnace or combustion pot. There are five claims and Claim 1 is typical: "A heating system comprising a combustion pot, means for feeding fuel thereto, a combustion space above the combustion pot, means controlled by the temperature of the rooms to be heated for automatically regulating the fuel feeding means, and a separate thermostatic control actuated by predetermined minimum temperatures in said combustion space for preventing extinguishment of the fire when operating under low heat requirement conditions." The accused controls are referred to by the parties as Mercoid's M-61; TJV and M-11; and JMV. The complaint alleges that the issues of validity, and infringement by heating systems employing Mercoid's equipment, are res adjudicata in this suit by reason of their having been adjudicated in a proceeding in a District Court of Missouri, wherein the defense was conducted by the attorney for and at the expense of Mercoid. That court found, concluded, and decreed that this patent was valid and infringed by heating systems employing equipment made by Mercoid, and that decree was affirmed by the Eighth Circuit in Smith v. Mid-Continent Inv. Co., 106 F.2d 622. Mercoid in its answer herein denied infringement or that the patent was duly and legally issued to Cross, or that its validity was res adjudicata. It also counterclaimed upon the allegations of the answer that none of the elements of the combination were the invention of Cross, but all had been sold by Mercoid and its predecessor since the latter part of November, 1925; that the effect of the Honeywell license to make, use and sell the old elements of the patent was to create a monopoly beyond the boundaries of the patent, which disclosed a lack of good faith and unfair competition and which had resulted in irreparable damage to Mercoid. It asked for a declaratory decree defining the parties' rights under the premises recited, for triple damages, and for injunctive relief both preliminary and permanent. Thereupon the court, upon Mercoid's motion, made Honeywell an additional party plaintiff. Thereafter Honeywell involuntarily appeared specially and replied to Mercoid's counterclaim, admitting its license, setting it forth as an exhibit, but denied all allegations as to a monopoly, conspiracy, bad faith, intimidation, misuse, coercion or improper threats. It alleged full and faithful performance of the license on its part and averred its willingness to release its exclusive license in order to permit Mid-Continent to license Mercoid if the latter so desired. This pleading avoided a response to all paragraphs of the counterclaim directed solely to allegations relating to Mid-Continent. Mid-Continent replied to Mercoid's counterclaim, and besides denying its actionable allegations, averred that those sections purporting to seek relief under the Declaratory Judgment Act, 28 U.S.C.A. § 400, should be dismissed because they set up alleged causes of action that had previously been placed in issue by the complaint and Mercoid's answer. Furthermore, the reply urged that the entire counterclaim should be dismissed because all issues raised therein were res adjudicata in favor of Mid-Continent because of the fact that they were, or could have been, decided in Mid-Continent v. Smith, supra. The District Court found the facts specially and therefrom concluded that neither Mercoid nor its dealer installed the heating system referred to in the Smith case, supra, and that the decree in that case was not res adjudicata against Mercoid as to contributory infringement of the Cross patent, nor to the defense of laches, nor to the defense that Mid-Continent had attempted through its method of doing business to expand its patent to monopolize the sale of combustion stoker switches. It further concluded that Mid-Continent through its predecessor had knowledge of 806 Mercoid's low limit control prior to the issuance of the patent, and that Mid-Continent was thereby guilty of laches in not instituting this action prior to September 10, 1940, citing Wheatley v. Rex-Hide, D.C., 25 Fed.Supp. 543; Id., 7 Cir., 102 F.2d 940. The District Court further concluded that Mercoid M-61 stoker control was a modification of a patented Mercoid (Figure 50) furnace control which was on the market in 1925; that Mercoid M-61 was not built for the express purpose of providing purchasers with means to perform the Cross patented heating system and did not contribute to the infringement of the Cross patent in suit, nor did two other Mercoid devices, referred to as TJV and JMV. It further concluded that Mid-Continent's method of doing business fell within the condemnation of Carbice Corporation v. American Corporation, 283 U.S. 27, 51 S. Ct. 334, 75 L. Ed. 819, and Leitch Mfg. Co. v. Barber Company, 302 U.S. 458, 58 S. Ct. 288, 82 L. Ed. 371, as the practical equivalent of granting a written license with the condition that the patented system might be practiced only with combustion stoker switches purchased from its licensees; that the patent was being utilized to gain a monopoly beyond its legitimate scope, and its sole purpose as used by Mid-Continent was to suppress competition in the manufacture and sale of combustion stoker switches; that Mid-Continent's method of doing business led to the suppression of competition in unpatented appliances and was sufficient to deny the relief sought in its complaint; that Mid-Continent was not in a position to maintain this suit, under the ruling of American Lecithin Co. v. Warfield, 7 Cir., 105 F.2d 207; that Mid-Continent had conspired with Honeywell which had developed its combustion stoker switch independently of the Cross patent, and marketed it before the grant of that patent, and then conspired with Mid-Continent in restraint of trade in interstate commerce to establish a monopoly in interstate commerce in an unpatented appliance beyond the scope of the patent in suit, in violation of the Anti-Trust laws; and that that conspiracy constituted a restraint of trade, and an attempt to monopolize, under 15 U.S.C. A. §§ 1 and 2, by reason of which Mercoid was entitled to injunctive relief under section 4 of that title. See 43 F. Supp. 692. On these conclusions the court decreed that the bill of complaint be dismissed, and enjoined each plaintiff from bringing suit for contributory infringement of the patent against Mercoid's customers, and from directly or indirectly threatening its customers with suit for such infringement of the patent, or in any manner interfering with Mercoid's business by use of the patent in suit. It further decreed that the Honeywell license including power thereunder to Honeywell to also sub-license others to make, use and sell and to sub-license the invention of the system patent on the payment of a royalty on each sale of an unpatented appliance, and by conveying with each sale of such unpatented appliance in interstate commerce by Honeywell, a license to practice the invention of the patent in suit constituted a conspiracy and combination in restraint of trade in violation of 15 U.S. C.A. §§ 1 and 2. The decree further ordered a perpetual injunction against both plaintiffs, their officers and agents, both individually and collectively, from doing the following things: (1) From further engaging in or carrying out said conspiracy or any other conspiracy having a similar purpose or effect; (2) From doing any act or thing having the same purpose or effect as the acts done in pursuance of such controversy, or promoting, or tending to promote the purpose or effect thereof involving the patent in suit; (3) From enforcing or carrying out, directly or indirectly, any of the provisions of the Honeywell license or its sub-licenses, or any similar licenses of the same tenor or effect, which involve the patent in suit. Such injunction was ordered not to become effective until 45 days after the date of the decree. The decree dismissed the defendant's counterclaim with respect to damages, and the costs were assessed against both plaintiffs. All parties have appealed from this decree. The validity of this patent is conceded. In Smith v. Mid-Continent Investment Company, supra, M-61 was involved, and the defenses were that there was no infringement, and that if the claims relied upon read upon the accused device, the patent was invalid as being an aggregation and a mere paper patent. Those issues were there decided adversely to Smith. He did not rely upon invalidity because of anticipation or prior publication, although he might have done so, and Mercoid might have done so, because it conducted and paid 807 for the defense. Whether that decree is res adjudicata as to the question of infringement by the use of Mercoid's M-61 is of little moment at present, for we approve that opinion both in its logic and conclusions with respect to infringement. That opinion very clearly sets forth the patent and its elements, and fully describes their functions, as well as those of M-61. They will not be repeated here, except to say that the separate thermostatic control (as described in Claim 1) actuated by predetermined minimum temperatures in the combustion space is the same as the M-61 control. In that case Mercoid contended that plaintiffs' commercial structure placed this control in the breeching of the furnace, which is the by-pipe connected at one end to the furnace and at the other end to a portion of the flue extending from the furnace to the chimney, and that while a similarly functioning thermostat is in the accused structure, the patent locates the thermostat inside the fire pot of the furnace. The court in that case fully discussed this contention and held that the change of position by Mercoid of that particular thermostatic control was not sufficient to avoid infringement. With the reasons and conclusions of that court in this respect we fully agree, and for the same reasons we hold that M-61 when used in the Cross combination patent is an infringement of that patent. The District Court thought that if Mercoid owned or controlled a valid patent on the element M-61, which it claims it does, it would have the right to make that element and to sell it to any one for any purpose. We think that would extend Mercoid's rights beyond the limits of the statute. We have no doubt that Mercoid under such circumstances would be permitted to make as many of those controls as it might desire without being guilty of infringement or contributory infringement, and if such control could be used for purposes other than that of Cross' combination, Mercoid could sell the element and fully instruct the purchasers as to such other uses, because plaintiffs do not hold a patent on the control itself. However, plaintiffs own and control the combination patent before us, of which the control in question is an element, and Mercoid will not be permitted to infringe that combination either directly or by contribution. If plaintiffs, without license, make use of Mercoid's patented control in its combination they would be liable to respond to Mercoid in profits or damages for such use, and it would seem that the rights of all parties under their respective patents would be fully protected. Whether the use of Mercoid's TJV and M-11 controls in domestic heating systems amount to infringement of the Cross patent depends upon whether they operate at predetermined minimum temperatures. These controls are best illustrated by a comparison with M-61. The M-61 is directly connected with the automatic stoker and it operates at a predetermined low temperature to start the stoker when the temperature of the stack, or other place in the furnace where such control may be located, reaches that predetermined low degree. In other words, it causes the stoker to start feeding the furnace at an estimated time when the fire is soon likely to go out. TJV and M-11 are two separate devices. They cooperate to produce the same result as does M-61. M-11, in operating position is placed wherever M-61 may be placed for operation, and in general outside appearance they are quite alike. M-11 is so constructed that it functions whenever the temperature at its location begins to drop. It is not directly connected with the stoker but it is directly connected electrically with TJV, and is designed to be located at any convenient place without the furnace. This latter device is also directly connected electrically with the stoker. It is so constructed as to close the circuit to the stoker at a predetermined period of time, after M-11 has functioned, usually from ten to sixty minutes, as the operator may desire. It contains, among other things, a clock-like structure which measures the predetermined time, and at the expiration of that time TJV operates to close the switch to the stoker. Hence, when the room thermostat stops the stoker, and the temperature at M-11 begins to drop, the latter begins to operate, which starts the clock in TJV, which in turn starts the stoker at the end of the predetermined time. In other words, M-61 operates to close the circuit directly to the stoker motor, after a predetermined low temperature in the stack has been reached, and operates to open that circuit after the fuel has been replenished and the stack temperature reaches a predetermined high. It also has a dial which can be set to enable the switch to open or close at a certain specified temperature. 808 The M-11 switch, which instead of operating directly to close immediately the circuit to the stoker motor, operates a timing device which delays operation of the stoker for a predetermined period. After the fuel has been replenished and the stack temperature begins to rise, the M-11 operates to open the circuit to the timing device and immediately stops further operation of the stoker. It has no dial for opening or closing the switch at certain specified temperatures. However, plaintiffs assert that the combination of M-11 and TJV still operates at a temperature which can be predetermined. Mercoid denies this assertion. The undisputed evidence discloses that under ordinary conditions the average furnace, after being heated to a known high temperature, will cool at a known rate of speed and that such cooling under ordinary conditions of the furnace, when plotted on graph paper, using time against temperature, is generally known as the "cooling curve." Such a "cooling curve" was in evidence in the Smith case, supra, and can be made easily for any furnace. In a curve of that type, where the temperature is plotted against time, after the temperature of the furnace rises to a known high, it can be determined what the temperature in that furnace will be at the end of a given period of time. Hence, plaintiffs contend that since the TJV can be set to function at different intervals of time, then it can be determined, knowing from what high temperature the furnace is cooling, at what temperature the stoker will operate after any given period of time. True, the predetermined temperature involved in the "cooling curve" process is an approximation, and may be affected by different conditions in different furnaces, yet the undisputed evidence discloses that that approximation is very close to the predetermined temperature relied upon in M-61, and in the Cross patent, and all produce practically the same result. The experts were substantially agreed on this but they differed as to the interpretation of the words in the claim "predetermined minimum temperatures." Mercoid's expert interpreted these words narrowly and thought that the word "predetermined" meant a rigidly fixed and specific degree of temperature at which the relay must operate at all times. Plaintiffs' expert based his opinion on a more liberal interpretation of that word. He said: " * * it is my understanding that the patent is to be interpreted as broadly as possible in view of limiting prior art. Judge Reeves' decision (in the Smith case) was to the effect that the patent is entitled to extremely broad interpretation. Therefore, in the absence of limiting prior art, and there is no prior art in this particular situation that requires the patent to be limited to any particular operating temperature, it is my opinion the language over which Mr. Schultz and I are in disagreement is entitled to a broad interpretation, and so interpreted covers not only the infringing arrangement shown in Exhibit 37 (Mercoid's wiring diagram, in its former infringing installation, not here in issue) but also the TJV and JMV devices." A reading of the Smith case convinces us that the interpretation of plaintiffs' expert is correct, and we think that the use of M-11 and TJV in the Cross combination is an infringement of that patent. In other words, we think that TJV and M-11, in conjunction, are actuated by predetermined minimum temperatures, in the combustion space, although expressed in terms of the known time in which those low temperatures will approximately be reached in the natural course of events. The accused device JMV is merely a combination of TJV and M-11 in one device, and in its installation it is placed in the same position as M-11 or M-61. It works in the same manner and produces the same result as do the accused devices TJV and M-11. For the same reason, when used in Cross' combination, we think it clearly infringes the patent. It is not here contended that Mercoid infringes the patent directly, for it does not sell or install furnaces. However, it does manufacture and sell the accused devices, or it has done so, and for the purpose of promoting those sales it has advertised extensively the use of such devices in the Cross combination to accomplish the same purpose in the same manner, or its equivalent, as does Cross with his control. Included in those advertisements are detailed specifications and drawings to aid the purchaser in making the installation. While the Cross patent, as such, is not referred to in those advertisements, yet it is asserted by plaintiffs, without contradiction, that there is no use for the accused devices other than in the patented Cross combination. We are unable to conceive of any other such use. Under these circumstances we think it cannot be denied that a purchaser of any 809 of Mercoid's accused devices, who used it in his furnace for the purpose intended by Mercoid, other than for repair and replacement made necessary by deterioration so as to preserve its fitness, would be guilty of infringement. Leeds & Catlin Co. v. Victor Talking Machine Company, 213 U.S. 325, 29 S. Ct. 503, 53 L. Ed. 816. Likewise, under the same circumstances, and under the ruling of the same case, we think Mercoid must be held guilty of contributory infringement. See also this court's ruling, Fehr v. Activated Sludge, Inc., 7 Cir., 84 F.2d 948; Lincoln Engineering Company v. Stewart-Warner Corporation, 7 Cir., 91 F.2d 757. The latter case was reversed on the question of validity only, 303 U.S. 545, 58 S. Ct. 662, 82 L. Ed. 1008. There was much evidence offered by Mercoid and admitted, over plaintiffs' objections, disclosing prior use by Mercoid of its other controls, and patented controls of others, some of these uses being for more than a year prior to the date of the Cross application, and some later. None of the cited patents bore date of application or issuance as early as those of Cross, except the patent of McCabe, No. 1,734,016, which was earlier than Cross as to both. However, we assume that none of these prior uses nor the prior invention of McCabe discloses the invention of Cross, because of the presumption of validity of the Cross patent arising from its issuance, supported by the concession of the parties hereto that validity is not here in issue. Furthermore, the Cross patent is in combination, while McCabe, and the other uses admitted in evidence, refer only to one element of that combination, and Mercoid will not be permitted to infringe that combination by any contributive use of any of his controls in that combination, whether they be patented or not. The only reason suggested by Mercoid for offering such evidence was to show that long before Mercoid existed it was customary in hot air heating systems to employ a room thermostat to control the operation of a motor to operate dampers, and with safety devices to close the dampers in case the temperature in the furnace became excessive. Neither McCabe nor any of the prior uses thus relied upon, except the accused devices of Mercoid, disclosed a thermostatic control actuated by predetermined minimum temperatures in the combustion space for preventing extinguishment of the fire when operating under low heat requirement conditions. Of course, McCabe's disclosures and the prior uses might be suggestive of the Cross disclosure to such an extent that one might consider the Cross disclosures as nothing more than mechanical skill, but again, that would involve validity with which we are not here concerned, unless the protection of public interest demands it. We are convinced that such protection is not warranted here. We realize that this court is bound by the findings of fact of the District Court, if they are supported by substantial evidence, but we are not bound by such findings unless they are so supported, nor are we bound by fact conclusions drawn therefrom. In this respect we refer more particularly to Findings 6, 11, and 12, and findings of fact contained in conclusion 4, with which we disagree. Finding 6 states that the accused controls do not operate at a predetermined low temperature. This we have heretofore discussed. Finding 11 states that there was no evidence that the Cross Coal-O-Matic Company (Mid-Continent's assignor) ever practiced the Cross invention prior to the assignment in 1930. Mr. Cross, Jr., gave affirmative testimony to the contrary, and it was not denied. Finding 12 refers to the royalty clause in the license agreements, and states that royalty payments were to be based upon what were known to the parties as combustion stoker switches, which the finding defines as "a combustion stoker control unit including an automatic electric switch responsive directly to temperatures of combustion gases or boiler water produced by an automatic coal fed stoker." The license, however, defined this unit as a "combustion stoker control unit including an automatic electric switch responsive" as stated in the finding, but it further added as a part of such definition, when such stoker and switch is "adapted, in combination with other devices and apparatus, for the control of automatically operated coal fuel stokers, to prevent the extinguishment of its fire when operating under low heat requirement conditions." The District Court's ruling was to the effect that royalty payments under plaintiffs' license were to be based on any switch which was responsive directly to temperatures of combustion gases or boiler water produced by an automatic coal fed stoker, regardless of how the switch was to be used, when in fact the license states that royalty payments are to be based on such unit only when it is to be used with other 810 devices and apparatus as a fire maintenance control. Conclusion of law 4 states that M-61 was not built for the express purpose of providing purchasers with means to perform the Cross heating system. It is not denied that it is one element thereof. The record discloses no other use, and Mercoid suggests none. We think this finding has no factual support. Plaintiffs further contend that the District Court erred in ruling that they are barred from maintaining this action because of laches in bringing it. Under the rulings of Stearns-Roger Mfg. Co. v. Brown, 8 Cir., 114 F. 939; Searchlight Horn Co. v. Victor Talking Machine Co., D.C., 261 F. 395; and Smith Hardware Co. v. Pomeroy Co., 2 Cir., 299 F. 544, we think this contention must be sustained. The District Court based its ruling in this respect upon Wheatley v. Rex-Hide, Inc., 25 F. Supp. 543, affirmed, 7 Cir., 102 F.2d 940, and analogous cases. A reading of those cases, however, discloses facts which readily distinguish them from the facts before us, and from those set forth in the cases upon which we rely. Appellants further contend that the District Court erred in holding that Mid-Continent's method of doing business with respect to the patent is the practical equivalent of granting a written license with the condition that the patented system may be practiced only with combustion stoker switches purchased from Mid-Continent's licensee, and in further holding that such conduct amounted to an unlawful combination in restraint of trade on the part of appellants, and an attempt on their part to suppress competition and to establish a monopoly in interstate commerce in an unpatented appliance beyond the scope of the Cross patent, in violation of 15 U.S.C.A. §§ 1, 2, and 4. We think the District Court's holdings in this respect are erroneous. Congress, by authority of our Constitution, has pledged the public faith to each patent owner to exclude others from practicing his invention for a limited time, and the anti-trust laws do not forbid contracts between the owners of patents and their licensees which are legitimate and within the scope of the patent. Bement v. National Harrow Co., 186 U.S. 70, 22 S. Ct. 747, 46 L. Ed. 1058. A patent owner, in the legitimate exercise of his rights, may restrain contributory infringement of his patent by the sale of the "advance of the art," if such sale is made with the knowledge and intention that the subject matter thus sold is to be used for the purpose of contributing to infringement of the patent. Leeds & Catlin v. Victor Talking Machine Co., 213 U.S. 325, 29 S. Ct. 503, 53 L. Ed. 816; Wallace v. Holmes, 29 Fed.Cas. page 74, No. 17,100, 9 Blatchf. 65. It seems to us that there is nothing objectionable in Mid-Continent's method of doing business with respect to this patent. It was a valid patent, as is conceded here, and the owner had a right to manufacture and sell the patented combination and to license others to do so. At first it attempted to manufacture and sell it, but after a short time it abandoned that course and granted and offered licenses to companies that would take them, including Mercoid, who refused. Moreover, Mid-Continent sent letters to non-licensed manufacturers who were contributing to the infringement of the patent. Finally, Mid-Continent granted an exclusive license to Honeywell, and by that act it lost all control over the further licensing of the patent but retained the right to bring suit against infringers, and upon that right this suit is instituted. There is nothing wrong in any of these actions providing the license did not exceed the limits of the patent, and herein lies the point in controversy. Mercoid does not deny that Mid-Continent had the right to constitute Honeywell its exclusive licensee, but its contention is based on the method by which the royalties due from Honeywell to Mid-Continent are calculated, as set forth in section 2 of the license. The only complaint which Mercoid urges here is that the royalty payments are based on the stoker switch without regard to how or where this switch is to be used. We think, however, that this is a misinterpretation of the plain language of the license. The switch referred to is specifically defined in the claims as an automatic electric switch, which is responsive to stack temperatures or boiler water, and which is used in combination with other devices and apparatus to prevent extinguishment of the fire when operating under low heat requirement conditions. From this italicized language, which Mercoid does not emphasize in its argument, it is clear to us that Honeywell does not intend to pay, and Mid-Continent does not intend to receive royalties on any switch which is not used for fire maintenance purposes under the Cross patent. *811 It was upon such interpretation that Mid-Continent and Honeywell adopted the method of basing the royalties upon the control when thus used. This record discloses that Mid-Continent has never received royalty on anything other than complete installations coming within the scope of the Cross claims. If these accused controls can be used for any purpose other than in the Cross combination, Mercoid or anyone else is at liberty to sell and use them for that purpose. If such control cannot be used for any other purpose, that fact would not give Mercoid any right to infringe the Cross combination either directly or by contribution. We see nothing here that would violate the anti-trust laws or that would constitute unfair competition. Certainly it cannot be said that notices given or circulars distributed to the trade, setting forth the licensee's rights under a patent, and warning against infringement, would constitute unfair competition. Alliance Securities Co. v. DeVilbiss Mfg. Co., 6 Cir., 41 F.2d 668; Cheney Co. v. Cunningham et al., D.C., 37 F. Supp. 224. The only issue between Mercoid and Honeywell is whether the latter by itself, or in combination with others, attempted to use the Cross patent and monopolize an article beyond the bounds of the patent, and thereby violated the anti-trust laws. From what we have said we are convinced that Honeywell, under this evidence, is not guilty of that charge. In support of Mercoid's contention to the contrary, it relies upon Carbice Corporation v. American Patents Corp., 283 U.S. 27, 51 S. Ct. 334, 75 L. Ed. 819; Leitch Mfg. Co. v. Barber Company, 302 U.S. 458, 58 S. Ct. 288, 82 L. Ed. 371; Morton Salt Company v. Suppiger Co., 314 U.S. 488, 62 S. Ct. 402, 86 L. Ed. 363; American Lecithin Co. v. Warfield Co., 7 Cir., 105 F.2d 207, and other kindred cases. The facts in those cases are readily distinguishable from those here. They are consistent with the ruling in the case of Leeds & Catlin v. Victor, supra, and are so held by the Supreme Court in the Carbice and Leitch cases, supra. Mid-Continent further contends that the case of Mid-Continent Inv. Co. v. Smith, supra, is res adjudicata as to all questions which were there decided or which might have been put in issue and decided in that case. Honeywell does not and cannot present that issue here because it was not a party to that action, nor was it in any way connected with that case. As between Mid-Continent and Mercoid, we think the contention must be sustained, except as to the question of laches. See Doherty Research Co. v. Universal Oil Products Co., 7 Cir., 107 F.2d 548; Warford Corp. v. Bryan Screw Co., 6 Cir., 44 F.2d 713; Galion Iron Works v. Adams Mfg. Co., 7 Cir., 128 F.2d 411; General Motors Corp. v. Swan Carburetor Co., 6 Cir., 88 F.2d 876. On the contrary, Mercoid relied upon Minneapolis-Honeywell Regulator Co. v. Thermoco, Inc., 2 Cir., 116 F.2d 845, and analogous cases. It is clear from the reading of those cases that they are not here in point. From what we have said it is clear that the District Court was not in error in disallowing damages under the cross complaint. In that respect the District Court's ruling is affirmed, and in all other respects it is reversed and this case is ordered remanded to the District Court for further proceedings not inconsistent with this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902575/	594 F. Supp. 2d 1226 (2009) Chris Bernard HUGHES, on behalf of himself and all others similarly situated, Plaintiff, v. COLORADO DEPARTMENT OF CORRECTIONS, a Department of the State of Colorado, Colorado Parole Board, a Department of the State of Colorado, and RRK Enterprises, Inc., d/b/a Independence House, Inc., a Colorado Corporation, Defendants. Civil Action No. 07-cv-00354-PAB-KLM. United States District Court, D. Colorado. January 15, 2009. 1230 Anne Thomas Sulton, Sulton Law Offices, Olympia, WA, Gregory Alan Hall, Law Office of Gregory A. Hall, Denver, CO, for Plaintiff. James Xavier Quinn, Colorado Attorney General's Office-Employment Law, Denver, CO, Susan M. Stamm, Harris, Karstaedt, Jamison & Powers, PC, Englewood, CO, for Defendants. ORDER PHILIP A. BRIMMER, District Judge. This matter before me is a Motion to Dismiss [Docket No. 55] filed by defendants, the Colorado Department of Corrections (the "CDOC") and the Colorado Parole Board (the "Parole Board"), on March 27, 2008. The CDOC and the Parole Board (collectively, the "State defendants"), relying on a variety of legal and factual arguments, move to dismiss plaintiff Chris Bernard Hughes' ("Hughes") Second Amended Complaint [Docket No. 42] in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Hughes responded to the State defendants' motion to dismiss on April 21, 2008 [Docket No. 61]. The State defendants 1231 replied on May 9, 2008 [Docket No. 63]. I find that the parties' arguments are adequately presented in their briefs and that oral argument would not significantly aid the Court's determination of the motion to dismiss. The matter is thus ripe for review. I. FACTUAL BACKGROUND In his Second Amended Complaint, Hughes asserts claims against the CDOC, the Parole Board, and defendant RRK Enterprises, Inc. Hughes alleges that the defendants failed to adequately respond to his needs as a mentally ill prisoner and parolee. For purposes of deciding the State defendants' motion to dismiss, the relevant facts from the Second Amended Complaint are as follows: Plaintiff Hughes is an honorably-discharged veteran currently incarcerated in a prison facility operated by the CDOC. Since 2001, Hughes has been under the CDOC's supervision, either in prison or on community parole. Hughes alleges that he suffers from mental illnesses stemming from his military service, including bi-polar disorder and schizophrenia, and that he has been affected by these illnesses for over thirty years. Following a term of imprisonment between late 2001 and the middle of 2004, Hughes was assigned to Independence House, a residential community corrections facility located in Denver, Colorado and operated by defendant RRK Enterprises, Inc. After walking away from that facility, Hughes was arrested and charged with escape in March 2005. He was held in the Arapahoe County Jail and later transferred to the CDOC's Sterling Correctional Facility ("SCF"). On November 29, 2005, Hughes was released on parole. Shortly thereafter, on December 10, 2005, Hughes left the homeless shelter where he had been assigned on parole. Hughes was again arrested and charged with escape in March 2006, at which time he was held in the Denver County Jail. In January 2007, Hughes pled no contest to one count of escape from Independence House in return for dismissal of the escape charge relating to his walk away from the homeless shelter. Hughes' parole officer recommended that Hughes' parole be revoked, although it is unclear from the Second Amended Complaint when this recommendation was made. Hughes remained in the Denver County Jail until February 8, 2007, when the Parole Board conducted a hearing regarding revocation of Hughes' parole. The Parole Board, through a presiding member, decided to revoke Hughes' parole. Hughes has since been imprisoned under the supervision of the CDOC. II. STANDARD OF REVIEW A. Lack of Subject Matter Jurisdiction Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir.2003)). Here, the State defendants assert Eleventh Amendment immunity, which constitutes a facial attack on the allegations of subject matter jurisdiction contained in the Second Amended Complaint. See Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002). Accordingly, 1232 the Court "must accept the allegations in the complaint as true." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). However, "[t]he burden of establishing subject matter jurisdiction is on the party asserting jurisdiction." Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.2008). B. Failure to State a Claim Pursuant to Rule 12(b)(6), dismissal of a claim for relief is appropriate where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003). In testing the legal sufficiency of the complaint, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007). Under Rule 12(b)(6), the Court need not accept conclusory allegations as true. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). Rather, to survive dismissal pursuant to Rule 12(b)(6), "a complaint must include `enough facts to state a claim to relief that is plausible on its face.'" TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1236 (10th Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, ___, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). The plausibility standard articulated by the Supreme Court in Twombly did not, however, displace Federal Rule of Civil Procedure 8(a)(2), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (per curium). "Specific facts are not necessary; the statement need only `give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Id. (quoting Twombly, 127 S.Ct. at 1964). III. ANALYSIS A. Sovereign Immunity 1. Section 1983 Claims The CDOC argues that Hughes' claims against it under 42 U.S.C. § 1983 must be dismissed because they are barred by the Eleventh Amendment of the United States Constitution. Hughes responds that his claim for prospective injunctive relief against the State defendants is cognizable under the doctrine announced in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). Hughes also contends that his claims alleged under Title II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12131 et seq., provide a vehicle to sue both the CDOC and the Parole Board notwithstanding the Eleventh Amendment. While only the CDOC raises the Eleventh Amendment as a defense to Hughes' Section 1983 claims, I address the extent of immunity from suit as to both the CDOC and the Parole Board in light of the mandate of 28 U.S.C. § 1915A. See 28 U.S.C. § 1915A(b) (2006) (requiring courts to dismiss, in whole or in part, a complaint in a civil action brought by a prisoner against a governmental entity "if the complaint ... fails to state a claim ... or seeks monetary relief from a defendant who is immune from such relief"). The Eleventh Amendment bars suits in federal court against a state by its own citizens. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L.Ed.2d 1233 662 (1974). The immunity conferred by the Eleventh Amendment extends to a state and its instrumentalities, including state agencies. Northern Ins. Co. of New York v. Chatham County, Ga., 547 U.S. 189, 193, 126 S. Ct. 1689, 164 L. Ed. 2d 367 (2006); Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir.1988) (immunity extends to the state, its instrumentalities, and its officers in their official capacities). There are two recognized exceptions to this immunitywaiver by the state and valid abrogation of the state's immunity by Congress. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978) (per curiam); Nelson v. Geringer, 295 F.3d 1082, 1096 (10th Cir.2002) (citing Seminole Tribe v. Florida, 517 U.S. 44, 54-55, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)). If a state and its agencies are immune from suit under the Eleventh Amendment, such immunity applies regardless of the relief requested, thus protecting the state and its agencies from suits for both legal and equitable relief. Fed. Mar. Comm'n v. South Carolina State Ports Auth., 535 U.S. 743, 765-66, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002); Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007). Colorado has not waived its Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988) (holding that Colorado Governmental Immunity Act, Colo.Rev.Stat. § 24-10-101, et seq., does not waive the State's Constitutional immunity; affirming dismissal of claims against the State and its Department of Corrections). Nor has Congress abrogated state sovereign immunity from claims brought under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 341, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979). The CDOC and the Parole Board are state agencies, created pursuant to Colo. Rev.Stat. §§ 24-1-128.5 and 17-2-201, respectively. See Hoffler v. Colorado Dep't of Corr., 27 P.3d 371, 374 (Colo.2001) (characterizing the Parole Board as a state agency). Without question, the Eleventh Amendment precludes Hughes' Section 1983 claims against the CDOC. Griess, 841 F.2d at 1044 (stating that application of Eleventh Amendment immunity to the Colorado Department of Corrections is "undeniable" absent waiver by the State) (citing Alabama, 438 U.S. at 782, 98 S. Ct. 3057). The Tenth Circuit Court of Appeals has not addressed a state parole board's immunity under the Eleventh Amendment in a published opinion. But the Court of Appeals has consistently held that such immunity extends to parole boards in recent unpublished opinions. See Rouse v. Colorado State Bd. of Parole, 242 Fed.Appx. 498, 500 (10th Cir.2007) (unpublished) (holding Colorado State Parole Board immune from Section 1983 claims for damages as a state agency); Giese v. Scafe, 133 Fed.Appx. 567, 569 (10th Cir. 2005) (unpublished) (parole board entitled to immunity under Eleventh Amendment); Reid v. Oklahoma Pardon & Parole Bd., 67 Fed.Appx. 515, 517 (10th Cir.2003), cert. denied 541 U.S. 906, 124 S. Ct. 1608, 158 L. Ed. 2d 250 (2004) (unpublished) (suit for declaratory and injunctive relief against state department of corrections and parole board barred by Eleventh Amendment). Although not binding, I find these opinions persuasive. Therefore, I conclude that the Parole Board, as a Colorado state agency, benefits from the immunity conferred by the Eleventh Amendment to the same extent as the CDOC. I find meritless Hughes' contention that the Eleventh Amendment bar is negated by the doctrine of Ex parte Young, which allows federal courts to entertain suits seeking prospective injunctive relief against state officials. Ex parte Young does not apply here because Hughes has not named any individual defendant in his 1234 Second Amended Complaint. See Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 866 (10th Cir.2003); Elephant Butte Irrigation Dist. v. Dep't of Interior, 160 F.3d 602, 607 (10th Cir.1998) ("The Ex parte Young doctrine ... applies only when the lawsuit involves an action against state officials, not against the state."). Accordingly, plaintiff's Section 1983 claims against the State defendants are barred by the Eleventh Amendment. 2. ADA Claims As with his Section 1983 claims, Hughes' ADA claims against the State defendants are barred by the Eleventh Amendment absent a valid exception. The State defendants, however, do not assert the Eleventh Amendment as a defense to Hughes' ADA claims. Because the parties have neither raised nor briefed the issue of the validity of Congress's purported abrogation of state sovereign immunity in the ADA, see 42 U.S.C. § 12202, as to the conduct at issue in this case, I decline to decide the issue sua sponte.[1]See United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 941-42 (10th Cir.2008) (court may raise Eleventh Amendment immunity sua sponte, but is not obligated to do so; "[u]nless the State raises the matter, a court can ignore it" (quoting Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 389, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998))). B. Statute of Limitations Hughes filed his Complaint [Docket No. 1] alleging claims against the CDOC, among others, on February 20, 2007. Hughes filed his Second Amended Complaint [Docket No. 33, Ex. 1], which added claims against the Parole Board, on January 30, 2008. The CDOC asserts that the statute of limitations bars Hughes' claim that the CDOC violated the ADA by failing to provide Hughes mental health treatment with medications while he was in prison, including the time he was incarcerated at the SCF.[2] Mot. to Dismiss at 4-5. Hughes responds that at least some of the conduct he challenges occurred while he was incarcerated in the SCF from March 2005 to November 2005. Resp. to Mot. to Dismiss at 6-7. Hughes posits that such allegations fall within the statute of limitations period because the conduct occurred 1235 less than two years before he filed his lawsuit in February 2007. Id. at 7. The Parole Board also raises the statute of limitations as a bar to Hughes' allegation that the Parole Board failed to facilitate his access to mental health treatment and medications when he was released on parole. Id. at 5-6. Hughes contends that none of his claims against the Parole Board are time-barred because his addition of the Parole Board as a party to the Second Amended Complaint merely supplied the identity of a previously named "John Doe" defendant and, therefore, relates back to the date of his original pleading under Fed.R.Civ.P. 15(c)(1). Colorado's general two-year statute of limitations, Colo.Rev.Stat. § 13-80-102, applies to actions arising under Title II of the ADA. See Quinn v. Univ. of Okla., 276 Fed.Appx. 809, 810 (10th Cir.2008) (unpublished) (affirming grant of summary judgment against plaintiff on claims brought under Title II of the ADA based on two-year limitations period); Wilkins v. Colo. Dep't of Soc. Servs., 9 Fed.Appx. 818, 819 (10th Cir.2001) (unpublished). "In general,... claims accrue and the statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004). "A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir.1994). Although the statute of limitations is an affirmative defense, the issue may be resolved on a motion to dismiss where the application of the limitations period is apparent on the face of the complaint. Dummar v. Lummis, 543 F.3d 614, 619 (10th Cir.2008); Aldrich v. McCulloch Prop., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980). 1. Amended Claims Against the CDOC In support of its assertion that any claim involving Hughes' incarceration prior to November 29, 2005 is time-barred, the CDOC argues that Hughes knew or should have known of his claims regarding mental health treatment in prison in 2001 when he allegedly began making complaints about the adequacy of his treatment. Mot. to Dismiss at 5. This argument is unavailing for two reasons. First, the Court finds no allegation regarding Hughes' alleged complaints beginning in 2001 in the Second Amended Complaint. Second, and more importantly, Hughes' incarceration at the SCF was a separate event from his prior imprisonment. He could not have discovered or known of any alleged ADA violations occurring during his confinement at the SCF until he was transferred to that facility. Notably, however, Hughes essentially concedes that any claims relating to conduct prior to the time he served at the SCF are untimely because he fails to proffer any reason why claims arising more than two years before the filing of the original complaint in this matter are not time-barred. See Resp. to Mot. to Dismiss at 6-7. Under Federal Rule of Civil Procedure 15(c)(1)(B), an amendment that "asserts a claim or defense that arose out of the conduct, transaction, or occurrence set outor attempted to be set outin the original pleading" relates back to the date of the original complaint. In his first pleading, filed on February 20, 2007, Hughes alleged that "while in prison, the person(s) evaluating Mr. Hughes did not recommend he receive, and therefore, he did not receive the mental health treatment or medications he needed." Orig. Compl. ¶ 45. Hughes also alleged in that 1236 pleading that the defendants "consistently refused and utterly failed to honor their promises to provide help to all their residents or clients, depriving Mr. Hughes of the specific mental health services and medications he needs to successfully complete his sentence." Id. ¶ 61. The CDOC was thus on notice as of service of the original complaint that Hughes brought suit challenging the CDOC's alleged failure to provide mental health treatment during his imprisonment. Because Hughes' original complaint put the CDOC on notice of his claims regarding denial of medical care while he was in prison, the surprise that Rule 15(c)(1)(B) guards against appears to be nonexistent. See Benton v. Bd. of County Comm'rs., No. 06-cv-01406-PSF-MEH, 2007 WL 4105175, 3 (D.Colo. Nov. 14, 2007) ("As long as there is a `factual nexus' between the original and amended complaints, the amended claim `is liberally construed to relate back to the original complaint if the defendant had notice of the claim and will not be prejudiced by the amendment.'" (quoting Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir.1983))). Hughes' Second Amended Complaint alleges that he was incarcerated at the SCF between March 2005 and November 2005. Second Am. Compl. ¶¶ 38-39. His allegation that the CDOC failed "to provide to Mr. Hughes mental health treatment with medications when he was in prison, including his incarceration at the Sterling prison until in or about November 2005," Second Am. Compl. ¶ 84, merely amplifies the conduct and occurrences referred to in the original complaint. Hughes' claims alleging ADA violations against the CDOC while he was confined at the SCF are therefore timely under Rule 15(c)(1)(B). See Kidwell v. Bd. of County Comm'rs, 40 F. Supp. 2d 1201, 1217 (D.Kan.1998) ("As a general rule, amendments will relate back if they amplify the facts previously alleged...."); Benton, 2007 WL 4105175 at 3. However, given that the essence of Hughes' ADA claims is that the CDOC failed to provide mental health medication, Hughes reasonably should have known of any deficiencies in the CDOC's mental health treatment at the time that he allegedly required such services and did not receive them. Accordingly, any claims asserted pursuant to the ADA based on conduct that occurred before February 20, 2005 are untimely and may not be pursued in this action. 2. Amended claims against the Parole Board Hughes first asserted claims against the Parole Board in his Second Amended Complaint, which is dated January 30, 2008 and was accepted for filing on February 22, 2008.[3] The date that the Second Amended Complaint was filed controls for purposes of applying the statute of limitations. See Koch v. Shell Oil Co., 8 F. Supp. 2d 1264, 1268 (D.Kan.1998). The Parole Board maintains that the statute of limitations bars Hughes' claims concerning the Parole Board's alleged failure to set appropriate parole conditions and to inform Hughes' parole officer about Hughes' mental health needs prior to releasing him on parole. For statute of limitations purposes, Hughes argues that the addition of the Parole Board as a defendant in the Second Amended Complaint relates back to the date that the original complaint was filed, February 20, 2007, making claims 1237 against the Parole Board relating to conduct that occurred in November 2005 timely. Hughes submits that the replacement of the "One or More John Does" named in the original complaint with the Parole Board allows him to invoke the provisions of Rule 15(c)(1) of the Federal Rules of Civil Procedure. For an amendment that "changes the party or the naming of the party against whom a claim is asserted" to relate back to the date of the original pleading under Rule 15(c)(1)(C), the requirements of Rule 15(c)(1)(B) must be satisfied, i.e., the amendment must address the same facts set out in the first pleading. Fed.R.Civ.P. 15(c)(1)(C). Further, within the 120-day period provided by Federal Rule of Civil Procedure 4(m), the new party must have "received such notice of the action that it will not be prejudiced in defending on the merits." Id. Finally, relation back under Rule 15(c)(1)(C) is limited to circumstances where the new party "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Id. In the Tenth Circuit, "[a] plaintiff's designation of an unknown defendant as `John Doe' in the original complaint is not a formal defect of the type [Rule 15(c)(1)(C) ] was meant to address." Garrett v. Fleming, 362 F.3d 692, 697 (10th Cir.2004). Stated differently, replacing an unknown defendant on the basis of new information is not a "mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C)(ii); Garrett, 362 F.3d at 697. Therefore, Hughes' substitution of the Parole Board for a previously unknown "John Doe" defendant does not allow relation back of his amended claims against the Parole Board to the date of his original complaint. See Garrett, 362 F.3d at 697. Because Hughes does not identify any other reason why the statute of limitations should be equitably tolled with respect to his claims against the Parole Board, I now outline which ADA claims against the Parole Board are barred by the two-year statute of limitations. See Aldrich, 627 F.2d at 1041 n. 4 ("[W]hen the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute."). Hughes alleges he was placed on parole on November 29, 2005. Second Am. Compl. ¶ 39. He charges the Parole Board with failing to include appropriate information regarding parolees' mental heath conditions in the parole conditions documents issued at the time the Parole Board releases a prisoner on parole. Id. ¶¶ 11-12. Hughes also claims the Parole Board fails to timely deliver these parole conditions documents to parole officers. Id. ¶ 12. Hughes alleges that, in his case, his parole officer did not receive any information concerning Hughes' alleged mental illness before or at the time Hughes was released on parole. Id. ¶ 40. In turn, Hughes attributes his December 10, 2005 walk away from the homeless shelter to the State defendants denying him access to mental health treatment and medications while on parole. Id. ¶ 42. Hughes further claims that the State defendants deliberately impeded his access to mental health treatment throughout his parole period. Id. ¶¶ 65-66. Hughes also claims that the Parole Board's revocation of his parole at a February 8, 2007 hearing was marred by violations of the ADA. Id. ¶¶ 48, 65. Comparing the date on which Hughes filed his Second Amended Complaint, January 30, 2008, with the allegations detailed above, I conclude that the statute of limitations prevents Hughes from going forward with ADA claims based on alleged conduct by the Parole Board before January 30, 1238 2006. Specifically, claims based on the Parole Board's alleged failure to include and timely transmit appropriate information about his mental health in its parole conditions documents are time-barred since Hughes alleges that this happened from November to December 2005. See Second Am. Compl. ¶¶ 39-42. So too are any claims deriving from the Parole Board's alleged failure to facilitate Hughes' access to mental health treatment and medications prior to January 30, 2006. Hughes reasonably should have known of any such claims by the time he walked away from the homeless shelter in December 2005. For reasons detailed below, I further conclude that Hughes' timely ADA claims against the Parole Board must also be dismissed. C. Prison Litigation Reform Act The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, provides in relevant part that a "prisoner confined in a jail, prison, or other correctional facility" may not bring a federal civil action "for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e) (2006). Section 1997e(e) prohibits claims for money damages, but does not bar declaratory or injunctive relief where a prisoner fails to allege or prove the requisite physical injury. Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 808 (10th Cir.1999). Hughes is currently incarcerated for parole violations, see Second Am. Compl. ¶ 4, and he seeks money damages on his ADA claims for mental injuries. Id. ¶¶ 67-68. Thus, the PLRA applies in this case. See 42 U.S.C. § 1997e(h) (defining the term "prisoner" to include, among others, "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for ... violations of criminal law or the terms and conditions of parole"). The State defendants seek dismissal of Hughes' claims seeking money damages, arguing that Hughes' allegations of physical injury are insufficient under Section 1997e(e). The Second Amended Complaint alleges that "Mr. Hughes' injuries and damages include ... physical and mental injuries, including ... depression and anxiety and their related physical illness manifestations, and lost liberty." Second Am. Compl. ¶¶ 67, 88. Nowhere else does the Second Amended Complaint mention or infer that Hughes sustained any physical injury as a result of the defendants' conduct. Indeed, in his response to the State defendants' Section 1997e(e) argument, Hughes relies on this same allegation, but elaborates that anxiety is "commonly known" as having physical manifestations including dizziness, chest pain, nausea, increased heart rate, headaches, and other similar symptoms. Resp. to Mot. to Dismiss at 15. While Hughes alleges that he suffered "physical injuries," he defines such injuries as the physical manifestations of depression and anxiety. I find these allegations insufficient to withstand the "physical injury" requirement of Section 1997e(e). A straightforward reading of Section 1997e(e) requires that a prisoner cite a physical injury that is separate from mental and emotional injuries he may have suffered. Consistent with this reading, a number of courts have held that a prisoner cannot satisfy Section 1997e(e) by alleging only that he suffered from the physical manifestations of mental or emotional injuries. See, e.g., Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998) (affirming sua sponte dismissal with prejudice despite prisoner's affidavit stating that he suffered weight loss, appetite loss, and insomnia after disclosure of his medical status because the language and purpose of Section 1997e(e) "preclude reliance on the 1239 somatic manifestations of emotional distress"); Cooksey v. Hennessey, No. C 07-3829 MHP, 2007 WL 2790365, 1 (N.D.Cal. Sept. 20, 2007) ("Physical symptoms that are not sufficiently distinct from a plaintiff's allegations of emotional distress do not qualify as `a prior showing of physical injury.'"); Minifield v. Butikofer, 298 F. Supp. 2d 900, 905 (N.D.Cal.2004) (same); Cannon v. Burkybile, No. 99 C 4623, 2000 WL 1409852, 6 (N.D.Ill. Sept. 25, 2000) (allegations of headaches, insomnia, stress, and stomach anxiety insufficient to meet the physical injury requirement under Section 1997e(e)); Cain v. Virginia, 982 F. Supp. 1132, 1135 & n. 3 (E.D.Va.1997) (depression and severe headaches caused by emotional distress not a "physical injury" under the PLRA). Here, Hughes' allegations suggest that any physical injuries he suffered stemmed directly from his alleged mental and emotional injuries and constituted only common manifestations of depression and anxiety. As derivative manifestations of mental or emotional injuries, these alleged physical injuries cannot support claims for damages pursuant to 42 U.S.C. § 1997e(e).[4] D. Failure to State a Claim for Relief Under Title II of the ADA Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (2006). "To state a claim under Title II, the plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability." Robertson v. Las Animas County Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir.2007). The State defendants seek dismissal of Hughes' ADA claims on four grounds: (1) Hughes fails to adequately plead a disability; (2) Hughes' claims for denial of mental health treatment are not cognizable under Title II; (3) the State defendants' actions were per se nondiscriminatory because they were mandated by the laws of Colorado; and (4) Hughes' failure to accommodate claim is fatally flawed because he never requested reasonable accommodations. See Mot. to Dismiss at 7-11. I address each of these theories in turn. 1. Pleading a Disability Under the ADA A disability within the meaning of the ADA requires proof that an individual has an impairment that limits one or more of his major life activities, has a record of such an impairment, or is regarded as having such an impairment. 42 U.S.C. § 12102(2). As the State defendants correctly point out, a "disability" under the ADA requires more than a diagnosis of mental or physical impairment. Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 151 L. Ed. 2d 615 (2002). Thus, a plaintiff must ultimately 1240 prove either an actual or perceived substantial limitation in a major life activity to prevail on a claim under the ADA. The State defendants acknowledge that Hughes alleged that his mental illness substantially limits one or more of his major life activities. See Second Am. Compl. ¶ 27. But they counter that the Second Amended Complaint fails to specify any particular major life activity in which he is substantially limited and argue that this lack of detail warrants dismissal of Hughes' ADA claims. The State defendants rely on Tenth Circuit precedent addressing a plaintiff's prima facie burden on an ADA claim. These cases, however, do not detail what is required of a plaintiff at the pleading stage. In Doebele v. Sprint/United Management Company, 342 F.3d 1117, 1129 (10th Cir. 2003), the Court of Appeals discussed proof of disability in the context of a motion for summary judgment. Likewise, Lanman v. Johnson County, 393 F.3d 1151, 1154 (10th Cir.2004), which the State defendants cite for the proposition that a plaintiff must establish his disability under the ADA "as a threshold matter," was decided in the summary judgment context. And in Poindexter v. Atchison, Topeka & Santa Fe Railway Co., 168 F.3d 1228, 1232 (10th Cir.1999), the Tenth Circuit detailed a plaintiff's burden in order to prevail on the merits, rather than addressing what a plaintiff must include in his "short and plain statement of the claim." Fed. R.Civ.P. 8(a)(2). The Poindexter court made clear that "a plaintiff must articulate with precision the impairment alleged and the major life activity affected by that impairment." Poindexter, 168 F.3d at 1232. But it specifically cautioned that its holding did not affect federal pleading standards, stating that "[a] plaintiff has the option of clarifying his or her position at the pleading stage or waiting until trial to prove with particularity the impairment and major life activity he or she asserts are at issue." Id. In short, none of the cases relied on by the State defendants require Hughes, at the pleading stage, to identify a particular life activity affected by his alleged mental impairment or detail the nature of his substantial limitations. Hughes identifies an impairment of which the State defendants were allegedly aware and alleges that such impairment constitutes a disability under the ADA. Of course, Hughes must ultimately prove that he is substantially limited in a recognized major life activity to prevail on his ADA claims. At the pleading stage, however, Hughes' allegation regarding disability is sufficient. See Equal Employment Opportunity Comm'n v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir.2001) ("[S]o long as the complaint notifies the defendant of the claimed impairment, the substantially limited major life activity need not be specifically identified in the pleading."); cf. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (holding that a plaintiff need not plead a prima facie case of employment discrimination to adequately allege a claim under Title VII of Civil Rights Act of 1964), abrogated in part on other grounds by Twombly, 550 U.S. 544, 127 S. Ct. 1955. 2. Denial of Mental Health Treatment The State defendants challenge Hughes' right to relief under the ADA with respect to their alleged denial of medical treatment of Hughes' mental illnesses. The State defendants correctly note that the Tenth Circuit is among a number of circuits that hold that the ADA does not provide a remedy for medical malpractice. In Fitzgerald v. Corrections Corporation of America, the Tenth Circuit Court of Appeals explained that "the term otherwise qualified cannot ordinarily be applied 1241 in the comparatively fluid context of medical treatment decisions without distorting its plain meaning." 403 F.3d 1134, 1144 (10th Cir.2005) (internal quotations marks omitted). This aversion to analyzing medical treatment decisions under the rubric of the ADA does not, however, go so far as the State defendants would have it. The ADA "unmistakably includes State prisons and prisoners within its coverage." Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998). The Supreme Court has also noted that "it is quite plausible that the alleged deliberate refusal of prison officials to accommodate [an inmate's] disability-related needs in such fundamentals as ... medical care ... constitute[s] exclusion from participation in or ... denial of the benefits of the prison's services, programs, or activities." Georgia, 546 U.S. at 157, 126 S. Ct. 877 (alterations and internal quotation marks omitted). The question is thus in what circumstances does the ADA afford a remedy when a plaintiff alleges denial of medical treatment. Addressing this question, courts have distinguished between claims asserted under the ADA that allege that the medical treatment that a plaintiff received or had access to was inadequate, versus claims alleging that a plaintiff was discriminatorily precluded from access to medical treatment altogether. See, e.g., Buchanan v. Maine, 469 F.3d 158, 174 (1st Cir.2006); Rashad v. Doughty, 4 Fed.Appx. 558, 560 (10th Cir. Jan.29, 2001) (unpublished) (noting that allegations that a disabled prisoner has been denied medical-related services that have been provided to other prisoners may state an ADA claim); Moore v. Prison Health Servs., Inc., 1999 WL 1079848, 1 (10th Cir. Dec.1, 1999) (unpublished table opinion) (holding that the ADA affords "disabled persons legal rights regarding access to programs and activities enjoyed by all, not a general federal cause of action for challenging the medical treatment of their underlying disabilities"); McNally v. Prison Health Servs., 46 F. Supp. 2d 49, 58 (D.Me.1999). While Fitzgerald did not explicitly address this distinction, the incident involved in that case clearly fell into the first categoryclaims that actually resemble medical malpractice claims because the prisoner challenges the course of treatment that was selected. There, the plaintiff fractured his femur and was seen by a physician who recommended that one treatment option was "to do nothing." Fitzgerald, 403 F.3d at 1137. The plaintiff then attempted to hold the state department of corrections liable under the ADA for following the doctor's advice. Id. Given this context, the Court of Appeals concluded that "[t]hese are the sort of purely medical decisions that we have held do not ordinarily fall within the scope of the ADA or the Rehabilitation Act." Id. at 1144. Fitzgerald, then, does not foreclose Hughes from pleading a claim under the ADA for discriminatory exclusion from generally available medical services offered by the State defendants. Turning to the Second Amended Complaint, Hughes alleges that the CDOC completely denied him access to medical treatment for his mental disability. A sample of Hughes' allegations that fall within the relevant time period, i.e., those not barred by the statute of limitations, reveal that Hughes has proffered facts that create a plausible inference of discriminatory denial of access to medical care. Hughes alleges that the CDOC maintains a policy of assuring that inmates and parolees receive mental health treatment that they require. Id. ¶¶ 58, 69-70. Hughes further alleges that the CDOC intentionally failed to provide him mental health treatment while he was in the SCF. 1242 Second Am. Compl. ¶¶ 66, 84. He alleges that the CDOC also denied his access to such treatment while on parole. Id. ¶¶ 41-42, 66. Taken together, these allegations suffice to plead a claim that Hughes was discriminatorily denied access to medical care in contravention of Title II of the ADA by the CDOC. On the other hand, I am unable to find similar allegations regarding conduct occurring since January 30, 2006 that plausibly implicate the Parole Board in discriminating against Hughes by denying him access to necessary medical care. Therefore, to the extent Hughes asserts ADA claims against both of the State defendants for denial of medical care, his claims against the Parole Board must be dismissed. I dismiss such putative ADA claims against the Parole Board without prejudice. From the Second Amended Complaint, it appears that Hughes' relevant contact with the Parole Board took place on or around November 29, 2005 when he was released on Parole and on February 8, 2007, when the Parole Board revoked his parole. See Second Am. Compl. ¶¶ 11-13, 39, 48-49. Amended claims against the Parole Board would be appropriate only if Hughes can identify instances in which the Parole Board discriminatorily denied him access to medical care separate from these November 2005 and February 2007 interactions. 3. Discriminatory Revocation of Parole Relying on Colorado statutes that pertain to the arrest of a parolee and parole revocation proceedings, the State defendants argue that any of their actions affecting the revocation of Hughes' parole cannot give rise to discrimination claims under the ADA. Section 17-2-103(1) of the Colorado Revised Statutes requires that a parole officer "file a complaint seeking revocation of the parole of any parolee who... [i]s arrested and charged with ... [a] felony." Colo.Rev.Stat. § 17-2-103.5(1)(a)(II)(A) (2008). If a parolee has been convicted of a criminal offense while on parole, the Parole Board "shall accept said conviction as conclusive proof of a violation and shall conduct a hearing as to the disposition of parole only." Colo.Rev. Stat. § 17-2-103(9)(b). Citing these statutes, the State defendants argue that (1) the CDOCwhich oversees parole officerscould not have discriminated against Hughes by recommending the revocation of his parole because he was charged with escape, a felony offense, and (2) the Parole Board could not have discriminated against Hughes during his parole revocation hearing because it was required to accept his no contest plea to one count of escape as conclusive evidence of a parole violation. In response, Hughes argues that his parole officer "improperly charged him with felony escape" because Hughes walked away from Independence House and the homeless shelter as a result of not receiving mental health medication. Resp. to Mot. to Dismiss at 11-12. Hughes also asserts that the Parole Board discriminated against him and failed to make reasonable accommodations by revoking his parole based on the parole officer's recommendation, rather than continuing his parole. Id. at 12; see also Second Am. Compl. ¶ 48. Hughes admits that he "was convicted of escape related crimes for walking away from community-based residential facilities." Resp. to Mot. to Dismiss at 9. Hughes' claim that the State defendants denied him "the benefits of completing his sentence in the community on parole," Second Am. Compl. ¶ 65, is not cognizable under Title II of the ADA. Hughes was not denied the opportunity to participate in parole. Instead, he was placed on parole 1243 but later disciplined for failure to comply with parole conditions. In essence, Hughes contends that his mental disability caused him to walk away from Independence House and the homeless shelter and that the State defendants' penalization of such conduct constitutes discrimination. The court in Scherer v. Pennsylvania Department of Corrections, No. 3:2004-191, 2007 WL 4111412 (W.D.Pa. Nov. 16, 2007), addressed a similar claim. There, the plaintiff alleged that the state department of corrections discriminated against a deceased prisoner in violation of the ADA by revoking his parole and assigning him to restrictive housing confinement in response to the prisoner's disability-caused conduct. Id. at 9. The court rejected such allegations as adequate to state a claim under Title II of the ADA: The Court is at a loss to see how a service or program was not provided to the Decedent because of the fact that he was disciplined. The Decedent was disciplined for his conduct, conduct that the Court must assume for purposes of this motion to dismiss was a result of the [Decedent's] mental illness. There is no indication that the Decedent was disciplined differently from other prisoners because of his disability, only that the Plaintiff believes the Decedent's discipline should have been meted out with a consideration of his disability. Id. As in Scherer, Hughes claims that the State defendants should have reprimanded his disability-caused conduct differently, namely, by allowing him to retain his parole. As discussed above, Hughes' parole officer was required to recommend parole revocation and the Parole Board was required to accept Hughes' admission of felony escape as a parole violation. See Colo. Rev.Stat. §§ 17-2-103, 17-2-103.5. Thus, even if continuation of Hughes' parolea matter wholly within the Parole Board's discretioncould be considered one of the "benefits of the services, programs or activities" offered by the State Defendants per Title II, 42 U.S.C. § 12132, there is no indication Hughes was subject to different disciplinary standards than other non-disabled parole violators. The Court finds the rationale underlying the Scherer opinion persuasive and is similarly unable to ascertain an alleged violation of Title II of the ADA based on the State defendants' discipline of Hughes' parole violation. The Court declines to scrutinize the State defendants' disciplinary action revoking Hughes' parole under the ADA for two additional reasons. First, in Purkey v. Simmons, 29 Fed.Appx. 546, 547 (10th Cir.2002) (unpublished), the Tenth Circuit held that "it is clear that state corrections and parole officials have no duty to a parolee to prevent him or her from committing further crimes and being sent back to prison." Although Purkey is a nonprecedential order and judgment, the Court of Appeals drew the above conclusion from Supreme Court case law and I find it persuasive here. Recognizing Hughes' claim that the ADA obligates the State defendants to disregard parole violations committed by a mentally disabled parolee when the conduct is caused by such disability could significantly undermine the State's legitimate penological interests. See Thompson v. Davis, 295 F.3d 890, 894 n. 4 (9th Cir.2002). While Hughes relies on the Ninth Circuit's decision in Thompson v. Davis for the proposition that "parole revocation decisions are covered by the ADA," Resp. to Mot. to Dismiss at 11, the Court finds that case is instructive in other respects. Specifically, Thompson held that "Title II does not categorically bar a state parole board from making an individualized assessment of the future dangerousness of an inmate by taking into account the inmate's disability." Id. As the Thompson court explained, "[a] 1244 person's disability that leads one to a propensity to commit crime may certainly be relevant in assessing whether that individual is qualified for parole." Id. Thus, even assuming that the Parole Board revoked Hughes' parole based on his disability-caused conduct, the Parole Board is entitled to account for how a parolee's disability affects his fitness for continuation of parole following a parole violation. Second, according to the Colorado statutory scheme governing parole revocation, Hughes cannot satisfy the requirement stated by the Tenth Circuit in Fitzgerald that, under Title II of the ADA, he must "show that he was `otherwise qualified' for the benefits he sought and that he was denied those `solely by reason of disability.'" 403 F.3d at 1144. In light of Hughes' admission of felony escape, the State defendants did not revoke his parole, or recommend the same, solely by reason of Hughes' alleged disability. For the foregoing reasons, Hughes' ADA claims stemming from the CDOC's recommendation that his parole be revoked and the Parole Board's revocation of his parole must be dismissed.[5] 4. Failure to Accommodate Claim The State defendants challenge the viability of Hughes' claim that they failed to make reasonable modifications as required under Title II of the ADA, claiming that Hughes failed to allege that he ever requested such modifications. Because Hughes fails to state a claim against the Parole Board for revocation of his Parole as explained above, I analyze Hughes' failure to accommodate claim only as to the CDOC. As it is used in Title II, the term "qualified individual with a disability" means "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). Thus, a plaintiff may prove a violation of Title II by demonstrating that a public entity failed to make "reasonable modifications"[6] allowing the individual to partake in services, programs, or activities offered by the public entity. See Robertson, 500 F.3d at 1195. Without knowing of Hughes' need for reasonable modifications to the programs, services and activities offered, the CDOC argues that it had no obligation offer Hughes any individualized alterations. While the Second Amended Complaint is not a model of clarity with respect to whether Hughes requested reasonable modifications and when he did so, some allegations do suggest that such requests may have occurred. See, e.g., Second Am. Compl. ¶¶ 45, 47-48, 50, 85. Even if these allegations were insufficient, however, the CDOC ignores the fact that a public entity need not always learn of an individual's need for reasonable modification by that individual's request. Rather, "[w]hen a 1245 disabled individual's need for an accommodation is obvious, the individual's failure to expressly `request' one is not fatal to the ADA claim." Robertson, 500 F.3d at 1197. Applied here, Hughes has alleged enough facts that it is at least plausible that his need for reasonable modifications was obvious. Hughes alleges that the CDOC was aware of his mental health condition by virtue of a state court sentencing order dating to early 2001, Second Am. Compl. ¶¶ 29-30, and it unquestionably was aware of his repeated attempts to participate in a supervised program of parole. The CDOC's contention that Hughes has inadequately pleaded a failure to accommodate claim against it is therefore without merit. IV. CONCLUSION Therefore, it is ORDERED that the State defendants' Motion to Dismiss [Docket No. 55] is granted in part and denied in part. It is further ORDERED that Hughes' claims asserted pursuant to 42 U.S.C. § 1983 are dismissed with prejudice. It is further ORDERED that Hughes' claims against the Parole Board are dismissed. As explained herein, Hughes' claims against the Parole Board under Title II of Americans with Disabilities Act, §§ 12131 et seq., for discriminatory denial of medical care are dismissed without prejudice, but Hughes' Title II claims against the Parole Board arising out of the revocation of Hughes' parole are dismissed with prejudice. It is further ORDERED that Hughes' claims seeking equitable relief pursuant to Title II of the Americans with Disabilities Act, §§ 12131 et seq., against the CDOC may proceed according to the terms of this Order. Thus, any claims against the CDOC that arose before February 20, 2005 are time-barred and, therefore, dismissed with prejudice. So too are claims against the CDOC arising from the CDOC's recommendation that Hughes' parole be revoked. In addition, Hughes' Title II claims for money damages are dismissed without prejudice. NOTES [1] Forgoing consideration of the interaction between Congress's enactment of Title II of the ADA and the State defendants' immunity under the Eleventh Amendment at this time is further supported by the synergy of two doctrines outlined by the Supreme Court. First, "[a] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988). Second, under United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 163 L. Ed. 2d 650 (2006), district courts addressing the validity of Congress's abrogation of state sovereign immunity via Title II of the ADA must determine "on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." Thus, before this Court could properly reach the question of the extent of the State defendants' constitutional immunity to Hughes' ADA claims, it must first determine "which aspects of the State's alleged conduct violated Title II." I find that even if the inquiry mandated by United States v. Georgia is required in this case, it must await further briefing by the parties on an appropriate motion. [2] Given my conclusion that the Eleventh Amendment bars Hughes' Section 1983 claims, I do not address the State defendants' assertion that such claims are also barred, in part, by the applicable statute of limitations. [3] Hughes filed a motion for leave to file a second amended complaint on January 17, 2008 [Docket No. 30], but later moved to withdraw the first version of his Second Amended Complaint and filed the revised version on January 30, 2008 [Docket No. 33], making the later date the operative date of the pleading. [4] Because I hold that Hughes' damages claims are barred by the PLRA, I need not address the Parole Board's contention that it is absolutely immune from damages claims stemming from its quasi-judicial actions. Nonetheless, even if my conclusion regarding the application of the PLRA differed, controlling case law undeniably affords the Parole Board immunity from damages claims tied to its adjudicatory actions at Hughes' parole revocation hearing. See Russ v. Uppah, 972 F.2d 300, 303 (10th Cir.1992) (holding that damages "simply are not available" against parole board members in connection with their revocation of a prisoner's parole). [5] Because Hughes fails to state a claim under Title II of the ADA relating to revocation of his parole, I need not address the State defendants' argument that such a challenge is barred by the doctrines announced in Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), and Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). [6] The term "reasonable accommodation" derives from the language of Title I of the ADA, which differs from Title II's use of the term "reasonable modifications," but the Tenth Circuit "has used the terms interchangeably, referring to an individual's request for a `modification' under Title II as a request for `accommodation.'" Robertson, 500 F.3d at 1195 n. 8.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249555/	272 F.2d 817 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFTDRINK AND DISTILLERY WORKERS OF AMERICA, AFL-CIO, and LocalNo. 366, international Union of United Brewery, Flour,Cereal, Soft Drink and Distillery Workers of America,AFL-CIO, Respondents. No. 6081. United States Court of Appeals Tenth Circuit. Nov. 19, 1959. Duane B. Beeson, Washington, D.C. (Jerome D. Fenton, Thomas J. McDermott, Marcel Mallet-Prevost and James C. Paras, Washington, D.C., were with whom on the brief), for petitioner. James C. Paradise, Cincinnati, Ohio (Philip Hornbein, Jr., Denver, Colo., was with him on the brief), for respondents. Before MURRAH, Chief Judge, and HUXMAN and PICKETT, Circuit. Judges. MURRAH, Chief Judge. 1 In this action under Section 10(e) of the National Labor Relations Act as amended 29 U.S.C.A. 160(e), the Labor Board seeks enforcement of an order directing respondent union to cease and desist from an alleged secondary boycott of Adolph Coors brewery, with which it was engaged in a labor dispute. The order is based upon Board findings that the union had engaged in an unfair labor practice condemned under Section 8(b)(4)(A) of the Act as amended 29 U.S.C.A. 158(b)(4)(A), by inducing and encouraging the employees of certain retail establishments 'to refuse to perform their normal job functions of accepting deliveries of Coors products,' with the object of compelling 'the retail store owner to cease handling Coors beer.' 2 Section 8(b)(4)(A) provides, in presently material part, 'It shall be an unfair labor practice for a labor organization or its agents * * * ot induce or encourage the employees of any employer to engage in * * * a concerted refusal in the course of their employment to use * * * commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer * * * to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer * * *.' Consistent with its dual purposes of preserving to unions their right to strike and of shielding unoffending employers from employee pressures in disputes not their own, see N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 95 L.Ed. 1284, the Act does not proscribe peaceful picketing or related agitation at or near the premises of neutral employers, so long as it is neither directed toward, nor has the effect of inducing the neutral employees to a concerted refusal to perform some of their duties. See 13 of the National Labor Relaions Act as amended 29 U.S.C.A. 213; N.L.R.B. v. International Rice Milling Co., 341 U.S. 665, 672-673, 71 S.Ct. 961, 95 L.Ed. 1277; N.L.R.B. v. Service Trade Chauffeurs, etc., 2 Cir., 191 F.2d 65. Specifically, the union may rightfully picket Coors trucks wherever they are found in normal business, Sales Drivers, etc. v. N.L.R.B., 97 U.S.App.D.C. 173, 229 F.2d 514; or seek a consumer boycott of Coors beer at retail establishments, N.L.R.B. v. Service Trade Chauffeurs, etc., supra; or endeavor to influence the retailer, independent of his employees, not to handle Coors, Rabouin v. N.L.R.B., 2 Cir., 195 F.2d 906; or even encourage an isolated employee of a retailer not to handle Coors, provided it does not tend to incite prohibited concerted action. N.L.R.B. v. International Rice Milling Co., supra. And the union simply contends that their activities fall within these latter areas of permissible conduct. The question is presented on the following undisputed facts. 3 Coors customarily distributes its product to its Denver retailers in its own trucks from a Denver warehouse. When, during the collective bargaining for a new contract in April, 1957, the warehouse and delivery personnel struck, Coors leased its Denver trucks to certain of its independent distributors and thus continued to operate the warehouse and service its Denver accounts. In May, 1957, the strikers began following the delivery trucks on their routes, and during the time of each delivery engaged in picketing and distributing pamphlets in and about the retail establishment, and on certain occasions conversed with retail establishment personnel, discouraging acceptance of the delivery. The pickets generally patrolled near the truck, the delivery entrance, and the main entrance. Their signs carried the legend, 'To the beer drinking public-- Coors Brewery-- ON STRIKE-- don't buy Coors beer,' followed by the name of the union local. Only the words 'on strike' were larger than the others, and all of the message was easily readable. The strikers also frequently told the retailer that they were not picketing him, but only the truck. The pamphlets carried a bold-lettered exhortation, 'Don't buy Coors beer,' and generally appealed for support of the strikers' cause. In several instances, oral pleas not to buy Coors and pamphlet distributions were made to employees as well as customers of the retailer. As for the entreaties to employees not to accept the delivery, three specific instances are described: At a drug store, the pharmacist was at first persuaded not to accept delivery, but after phoning the store owner, did accept; at another drug store, the clerk at the liquor department was similarly encountered but he referred the strikers to the store manager; and in a market, the entreaty was made to a person behind the counter. No refusals to accept any delivery are shown. 4 To be sure, we recognize that picketing frequently involves potent implications absent in other modes of communication. See N.L.R.B. v. Dallas General Drivers, etc., 5 Cir., 264 F.2d 642; and Cf. N.L.R.B. v. Local 50, Bakery and Confectionery Workers, 2 Cir., 245 F.2d 542. But here, we find in the evidence neither any attempt to influence retailers' employees not to cross picket lines, which were of only momentary duration anyway, nor any work stoppage among these employees from which such an influence could be inferred. See N.L.R.B. v. Business Machine, etc., 2 Cir., 228 F.2d 553, 559; N.L.R.B. v. Associated Musicians, etc., 2 Cir., 226 F.2d 900, 905,; N.L.R.B. v. Laundry, Linen Supply & Dry Cleaning Local No. 928, 9 Cir., 262 F.2d 617. Indeed, we find in the union's picketing, pamphlet distribution, and exhortation of beer consumers, nothing more than legitimate embarrassment of the strike-breaking Coors driver and the advocacy of a consumer boycott of Coors beer. 5 And we fail to see where the encouragement of retail personnel to refuse to accept deliveries, even if directed at 'employees' within the meaning of the Act, was intended or had the effect of invoking 'concerted' action any more than in N.L.R.B. v. International Rice Milling Co., supra. In that case, the Court held that isolated efforts directed at 'secondary' employees did not constitute an unfair labor practice, recognizing that only efforts to promote concerted action by the secondary employees are condemned. Cf. Amalgamated Meat Cutters, etc. v. N.L.R.B., 99 U.S.App.D.C. 24, 237 F.2d 20. The only distinction between the Rice Milling case and ours is the locus of the union effort, which in both cases was a place where the primary employer was engaged in its normal business, and that is a proper locus for such union agitation. See N.L.R.B. v. Service Trade Chauffeurs, etc., supra; In re Sailors' Union of the Pacific, etc., 92 N.L.R.B. 547; Sales Drivers, etc. v. N.L.R.B., 97 U.S.App.D.C. 173, 229 F.2d 514; N.L.R.B. v. General Drivers, etc., 5 Cir., 225 F.2d 205; cf. N.L.R.B. v. Denver Building & Construction Trades Council, 10 Cir., 193 F.2d 421. 6 We of course recognize the primary function of the Board to find facts, draw inferences, and construe the Act to effectuate its purposes. But we nevertheless have the 'ultimate responsibility for the rationality of the Board's decision,' and we will not enforce it if upon the whole record we are convinced that it is not justified in fact and law. See N.L.R.B. v. Tri-State Casualty Ins. Co., 10 Cir., 188 F.2d 50, 53; N.L.R.B. v. Machine Products Co., 10 Cir., 198 F.2d 313; Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. 7 Upon consideration of this record, we are convinced that the undisputed facts do not justify the inference that the unions encouraged or induced employees of any retailer to engage in a concerted refusal to perform any service with the object of forcing any such retailer-employer to cease selling, handling or dealing in Coors products. The petition for enforcement must therefore be denied.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/4517341/	DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT GEORGE L. JONES, JR., Appellant, v. MERIEL C. JONES, Appellee. No. 4D19-1519 [March 18, 2020] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case No. 50-2018-DR- 001080-XXXX-SB. Roger Levine and Amy D. Shield of Shield & Levine, P.A., Boca Raton, for appellant. Bruce S. Rosenwater of Bruce S. Rosenwater & Associates, P.A., West Palm Beach, for appellee. CONFESSION OF ERROR PER CURIAM. In this case, the trial court declined to exercise its jurisdiction to dissolve the parties’ marriage consistent with the wife’s objection that she wanted to seek relief in Arizona. The husband appealed. The wife has reconsidered her earlier position and confessed error in this appeal. We reverse the final order dismissing the husband’s amended petition for dissolution of marriage and remand with instructions for the trial court to proceed with the marital dissolution for all aspects over which the trial court has subject matter jurisdiction. Reversed and remanded GROSS, MAY and DAMOORGIAN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. -2-	01-03-2023	03-18-2020
https://www.courtlistener.com/api/rest/v3/opinions/1913596/	513 N.W.2d 545 (1994) 2 Neb.App. 598 Randy L. BARTUNEK, Appellant, v. GEO. A. HORMEL & COMPANY, a Corporation, Appellee. No. A-93-436. Court of Appeals of Nebraska. March 1, 1994. 548 William G. Line, of Kerrigan & Line, Fremont, for appellant. Jay L. Welch, of Rickerson, Welch, Wulff & Childers, Omaha, for appellee. SIEVERS, C.J., and IRWIN and MILLER-LERMAN, JJ. SIEVERS, Chief Judge. Randy L. Bartunek brought a declaratory judgment action in the county court for Dodge County against Geo. A. Hormel & Company (Hormel). Bartunek sought a declaratory judgment that Hormel had no subrogation rights in a $45,000 judgment Bartunek recovered against Michael Gentrup in a negligence action in the district court for Cuming County. Hormel was not a party to the action against Gentrup. The county court for Dodge County sustained Bartunek's 549 motion for summary judgment, and Hormel appealed to the district court for Dodge County. The district court reversed the county court judgment and remanded the matter for further proceedings. Bartunek now appeals the decision of the Dodge County District Court to this court, asking that the decision of the county court be reinstated. Bartunek was employed at Hormel at the time of an automobile accident in which Bartunek was injured. After the accident, Hormel paid Bartunek $4,808 in disability benefits and $3,992 in medical benefits under its local union contract. Hormel claimed a subrogation interest in Bartunek's $45,000 judgment against Gentrup, the tort-feasor, to the extent of these payments. When the county court sustained Bartunek's motion for summary judgment, it stated that "[t]he subrogation claim fails because the verdict of the Cuming County District Court upon which the [tort] claim is based was a general verdict. This Court can not determine whether the general verdict covered any of the amounts or subject matter of the subrogation claims." On appeal, the district court reversed the decision of the county court. Bartunek next filed a motion for new trial in the district court, which motion was overruled. That ruling causes us to briefly digress. A motion for new trial is restricted to a trial court, where a district court sits as an appellate court reviewing the judgment of a county court, such a motion is not properly presented to the district court and it does not toll the time for appealing to the Nebraska Court of Appeals or Nebraska Supreme Court. See, Hueftle v. Northeast Tech. Community College, 242 Neb. 685, 496 N.W.2d 506 (1993); In re Guardianship and Conservatorship of Sim, 233 Neb. 825, 448 N.W.2d 406 (1989); State v. Deutsch, 2 Neb. App. 186, 507 N.W.2d 681 (1993). The record in this case shows, however, that Bartunek's appeal to this court was filed within 30 days of the date when the district court reversed the decision of the county court. Therefore, Bartunek's appeal was timely filed. See Neb.Rev.Stat. § 25-1912 (Cum. Supp.1992). We also note the recent Nebraska Supreme Court decision of Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 618 (1994), which held that a judgment of the district court which disposes of the appeal of a final order of an inferior court is a final order, even when the case is remanded for further proceedings in the inferior court. In the present case, the district court, acting as an appellate court, reversed the decision of the county court granting Bartunek's motion for summary judgment. Accordingly, under Rohde, the district court's reversal is a final, appealable order. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993). A summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences to be drawn therefrom and that the moving party is entitled to judgment as a matter of law. Transamerica Commercial Fin. Corp. v. Rochford, 244 Neb. 802, 509 N.W.2d 214 (1993). On appeal to this court, Bartunek's assignments of error can be summarized as follows: (1) The district court erred in not summarily affirming the decision of the county court because of Hormel's failure to file a statement of errors in the district court pursuant to Neb.Ct.R. of Cty.Cts. 52(I)(G) (rev. 1992); (2) the district court erred by not finding that Bartunek did not recover his full loss, which is a prerequisite to Hormel's claim for subrogation; and (3) the district court erred by failing to find that there was no identifiable portion of the verdict to which Hormel's subrogation interest, if any, could attach. Bartunek's first assignment of error involves rule 52(I)(G), which provides that "[w]ithin 10 days of filing a notice of appeal, the appellant shall file with the district court a statement of errors, which shall consist of a 550 separate, concise statement of each error a party contends was made by the trial court." The record reveals that Hormel timely filed its notice of appeal to the district court for Dodge County, but Hormel did not file a separate statement of errors within 10 days of the filing of the notice of appeal. However, with its notice of appeal Hormel filed a pleading entitled "Statement of Issues Upon Appeal," which contained separate, concise statements of each error Hormel argues was made by the county court. We have previously held that the purpose of rule 52(I)(G) is to "specifically direct the attention of the reviewing court to precisely what error was allegedly committed by the lower court and to advise the nonappealing party of what is specifically at issue in the appeal." State v. Boye, 2 NCA 684, 686, 499 N.W.2d 860, 861 (1993). In Boye, the appellant's notice of appeal contained several general errors and one specific assignment of error with regard to the excessiveness of the appellant's sentence. We held that generalized statements are directly contrary to the clear purpose of the rule and need not be considered by the district court or by this court on appeal from the district court. However, the statement in the notice of appeal claiming excessive sentence was concise, fulfilled the purpose of the rule, and was, therefore, a properly assigned error reviewable by appellate courts, despite the fact that a separate "Statement of Errors" was not filed. It is also true that compliance with the requirements of rule 52(I)(G) is not a prerequisite to the district court's or an appellate court's jurisdiction over an appeal of a decision rendered by the county court. That rule is simply a procedural tool designed to frame the issues to be addressed in the appeal to the district court. Lindsay Ins. Agency v. Mead, 244 Neb. 645, 648, 508 N.W.2d 820, 823 (1993). Since Hormel's "Statement of Issues Upon Appeal" filed with its notice of appeal of the county court judgment contained separate, concise, and specific errors allegedly made by the county court, Hormel sufficiently complied with rule 52(I)(G). The district court was also free to consider plain error committed by the county court that was not assigned. Id. Accordingly, the district court did not err by failing to summarily affirm the judgment of the county court based on Hormel's failure to file a "Statement of Errors." Bartunek's first assignment of error is without merit. Bartunek's next assignments of error are that the district court erred by not finding that Bartunek did not recover his full loss, which would be a prerequisite to Hormel's claim for subrogation, and that the district court erred by failing to find that there was no identifiable portion of the verdict to which Hormel's subrogation interest, if any, could attach. We address these jointly. As an employee of Hormel, Bartunek was the beneficiary of a group medical and disability benefit plan funded by Hormel pursuant to a collective bargaining agreement between United Food and Commercial Workers International Union, Local No. 22, AFLCIO, and Hormel. Hormel based its right to subrogation on language contained in its "Employee Benefits" handbook. With regard to health care benefits, the employee handbook provided: Subrogation Rights In the event of any payment by the Company for health care expenses, the Company shall be subrogated to all rights of recovery which you or your dependent, receiving such payment, may have against any person or organization. You or your dependent must execute and deliver instruments and papers and do whatever else is necessary to secure such rights. In addition, you or your dependent must do nothing after the loss to prejudice such rights. The "Sick Leave Pay Plan" section of Hormel's employee handbook provided: In the event of any payment of sick leave pay by the Company where the disability period exceeds four weeks, the Company shall be subrogated to all rights of recovery which an employee, receiving such payment, may have against any person or organization. The employee shall execute and deliver instruments and papers and do whatever else is necessary to secure such 551 rights. The employee shall do nothing after the loss to prejudice such rights. In Nebraska, a subrogation clause that gives an insurer a right to subrogation against a third-party tort-feasor for medical payments made is a valid and enforceable contractual provision. See, Shelter Ins. Cos. v. Frohlich, 243 Neb. 111, 498 N.W.2d 74 (1993); Milbank Ins. Co. v. Henry, 232 Neb. 418, 441 N.W.2d 143 (1989). The rule would be the same where that contract expressly provides for subrogation with respect to sick leave benefits. The subrogation clause is enforceable against Bartunek, even though he is a third-party beneficiary of the collective bargaining agreement between the union and Hormel. See, Shelter Ins. Cos. v. Frohlich, supra; Haakinson & Beaty Co. v. Inland Ins. Co., 216 Neb. 426, 344 N.W.2d 454 (1984) (a third-party beneficiary who accepts a benefit under a contract also assumes an obligation imposed by the contract conferring the benefit). Generally, subrogation "is substitution of one person who is not a volunteer, a subrogee, for another, a subrogor, as the result of the subrogee's payment of a debt owed to the subrogor so that the subrogee succeeds to the subrogor's right to recover the amount paid by the subrogee." ... "`"`Subrogation is the right of one, who has paid an obligation which another should have paid, to be indemnified by the other.'"'" ... The preceding applies to subrogation based on a contract, known as conventional subrogation, as well as to subrogation arising by operation of law, that is, legal subrogation. (Citations omitted.) Shelter Ins. Cos., 243 Neb. at 117, 498 N.W.2d at 78. The rationale behind the right of subrogation is that (1) an insured should not be allowed to recover twice for a single injury, which might occur if the insured was allowed to recover from both the tort-feasor and the insurer, and (2) the insurer should be reimbursed for payments it made that should have been paid by the wrongdoer. See, id.; 16 George J. Couch, Cyclopedia of Insurance Law § 61:18 (rev. ed. 1983). Subrogation is an equitable principle, the purpose of which is to prevent a double recovery by the insured. Under circumstances where an insured has received full damages from the tortfeasor and has also been paid for a portion of those damages by the insurer, he receives double paymenthe has been made more than whole. Only under those circumstances is the insurer, under principles of equity, entitled to subrogation. Subrogation is to be allowed only when the insured is compensated in full by recovery from the tortfeasor. The insured is to be made whole, but no more than whole. Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis.2d 263, 272, 316 N.W.2d 348, 353 (1982). The Nebraska Supreme Court has recently held that "in the absence of a valid contractual provision or statute to the contrary, an insurer may exercise its right of subrogation only when the insured has obtained an amount that exceeds the insured's loss." Shelter Ins. Cos., 243 Neb. at 122, 498 N.W.2d at 81. Shelter sought subrogation for $10,000 in medical payments against Frohlich's $212,500 settlement from the Denbestes, one of whom was the tort-feasor, when Frohlich's medical expenses exceeded $50,000. However, Frohlich refused Shelter's demand on the ground that her settlement notwithstanding, she had not been fully compensated for her injuries, a prerequisite to Shelter's subrogation. The Supreme Court reversed the grant of summary judgment in Shelter's favor, holding: Whether Shelter's subrogation right can be enforced against Frohlich requires resolution of factual issues, such as the amount of medical costs incurred by Frohlich and other damages sustained by her. See, Skauge v. Mountain States Tel. & Tel., supra [172 Mont. 521, 565 P.2d 628 (1977) ]; Oss v. United Services Auto. Ass'n, supra [807 F.2d 457 (5th Cir.1987) ]. Additionally, other factors affecting enforceability of a subrogation right may include the tort-feasor's ability to pay beyond the amount of the subrogor's settlement and whether the settling parties have stipulated that the settlement satisfies all damages sustained by the subrogor. See Rimes, supra. If Frohlich's damages, as 552 later determined at the trial level, exceed the amount which she received in settlement of her claim against Denbestes, Frohlich has not been fully compensated for her loss, and, consequently, Shelter is not entitled to any part of the proceeds from settlement of Frohlich's claim against the Denbestes. (Emphasis supplied.) Shelter Ins. Cos. v. Frohlich, 243 Neb. 111, 124, 498 N.W.2d 74, 82 (1993). The difference between Shelter Ins. Cos. and the instant case is obvious. Shelter Ins. Cos. involved a voluntary settlement with the tort-feasor's insurer, whereas here, Bartunek's recovery results from a jury verdict. Thus, although it is clear that "full recovery" by Bartunek is a prerequisite to Hormel's recovery of its subrogation interest, we must address how to determine if "full recovery" has occurred in the instance of a jury verdict, as distinguished from recovery by settlement as was involved in Shelter Ins. Cos. Bartunek recovered a $45,000 judgment against the tort-feasor, but he argues that since his damages are well in excess of that amount, Hormel cannot assert subrogation rights because he did not receive "full recovery." Bartunek's position, fleshed out at oral arguments, is that he is entitled, should the district court's remand be upheld, to adduce evidence anew on the extent of his damages. Bartunek argues that such evidence would include the cost of obtaining the $45,000 verdict which Bartunek now characterizes as less than "full recovery." In other words, Bartunek argues for a second trial on damages, including his litigation costs, if there is to be a remand. Jury verdicts have a certain sanctity in our judicial system, evidenced, at least in part, by the limited appellate review. A jury verdict may not be set aside unless clearly wrong, and it is sufficient if there is any evidence presented to the jury upon which it could find for the successful party. McClymont v. Morgan, 238 Neb. 390, 470 N.W.2d 768 (1991). Credibility of witnesses and the weight to be given to their testimony are solely for the consideration of the jury. Stauffer v. School Dist. of Tecumseh, 238 Neb. 594, 473 N.W.2d 392 (1991). Conflicts in expert testimony are also for the jury's resolution. Palmer v. Forney, 230 Neb. 1, 429 N.W.2d 712 (1988). There is no formula for computing damages in a personal injury case, and the final verdict is usually made up of a number of factors. If the verdict is not so disproportionate to the injury as to disclose prejudice and passion, it will not be disturbed upon appeal. Steinauer v. Sarpy County, 217 Neb. 830, 353 N.W.2d 715 (1984). We bear in mind the high place that jury verdicts occupy in our judicial system when considering whether Bartunek's recovery against the tort-feasor, Gentrup, is "full recovery" and whether there is to be another trial on damages. Most importantly, when we consider Bartunek's argument that the jury verdict against the tort-feasor cannot be deemed "full recovery," we take into account the doctrine of collateral estoppel, often referred to as "issue preclusion." See, Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 230 N.W.2d 99 (1975); Vincent v. Peter Pan Bakers, Inc., 182 Neb. 206, 153 N.W.2d 849 (1967). We quote the following from State v. Gerdes, 233 Neb. 528, 530, 446 N.W.2d 224, 227 (1989): The U.S. Supreme Court characterized the phrase "collateral estoppel" in Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189 [1194], 25 L.Ed.2d 469 (1970): "`Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." In State ex rel. Douglas v. Morrow, 216 Neb. 317, 320, 343 N.W.2d 903, 905 (1984), this court stated: "Collateral estoppel may be applied where an identical issue was decided in a prior action, there was a judgment on the merits which was final, the party against whom the doctrine is to be applied is a party or is in privity with a party to the prior action, and there was an opportunity to fully and fairly litigate the issue in the prior litigation." 553 The court in Gerdes also said that implicit in the principle is the notion that collateral estoppel applies "when an issue in a present proceeding has necessarily been determined in a prior proceeding." 233 Neb. at 531, 446 N.W.2d at 227. Gerdes also imposes the burden of proof upon the litigant who seeks to rely upon the doctrine of collateral estoppel. Writing about issue preclusion in Krohn v. Gardner, 238 Neb. 460, 471 N.W.2d 391 (1991), the court stated that the basis of the doctrine is that the party to be affected, or someone with whom he or she is in privity, has litigated or has had an opportunity to litigate the same matter in the prior action. "`Due process requires that the rule of collateral estoppel operate only against persons who have had their day in court either as a party to a prior suit or as a privy.'" Id. at 463, 471 N.W.2d at 394, quoting Hickman v. Southwest Dairy Suppliers, Inc., supra. The doctrine of issue preclusion applies even though the claim, demand, purpose, or subject matter of the two suits is not the same, if the other conditions for its application are met. See Brommer v. City of Hastings, 212 Neb. 367, 322 N.W.2d 787 (1982). That a stranger to the first suit can assert the theory of issue preclusion in the second suit is well established, as is the notion that mutuality of estoppel is not a prerequisite for the doctrine's application. See JED Constr. Co., Inc. v. Lilly, 208 Neb. 607, 305 N.W.2d 1 (1981). Accordingly, applying the doctrine of collateral estoppel against the backdrop of the sanctity of jury verdicts, we find that Bartunek had "full recovery" against the tort-feasor for purposes of determining whether Hormel is entitled to subrogation. Bartunek's suit against the tort-feasor involved an adjudication of his medical expenses and lost wages resulting from his tortious injury. The record in this case, which is the "second case" for issue preclusion purposes, shows that Hormel introduced the petition from the tort case in which Bartunek alleged that he had incurred aggregate medical bills in the amount of $13,706 and that he had "suffered loss of earnings to date aggregating $7,305." Bartunek alleged each of those elements as separate "causes of action" and prayed for judgment in those amounts against Gentrup. Thus, the matter of medical expenses and lost wages, for which Hormel seeks subrogation, was obviously in issue from the pleadings. Remembering that the burden of proof on collateral estoppel was Hormel's, we observe that Hormel introduced into evidence jury instruction No. 11 given in Bartunek's suit against Gentrup. Instruction No. 11 charged the jury that it should award those elements of damage proximately caused by Gentrup's negligence, including "[t]he reasonable value of the medical and hospital care and supplies reasonably needed by and actually provided to the plaintiff" and "[t]he wages the plaintiff has lost because of his inability to work." Clearly, the issues of medical expenses and lost wages were submitted to the jury for its determination in the first case. Next, we find that Bartunek's testimony to the jury in the first case was also placed in evidence in the case at bar. That testimony establishes the days he was unable to work from the time of the accident on January 12, 1991, until the time of the trial. The evidence in this case also shows that Bartunek's medical bills, $3,992 of which Hormel paid under its contract with the labor union, were received into evidence in the first case against Gentrup and were then introduced again in this case. It is an inescapable conclusion that the amount of Bartunek's lost wages and medical expenses incurred as a result of injuries caused by the accident was directly litigated in the tort case which resulted in the jury verdict of $45,000. The pleadings made these matters issues, there was evidence introduced thereupon, the jury was instructed to consider lost wages and medical expenses as items of Bartunek's damage, and a verdict in excess of the amount of those items was returned in Bartunek's favor. We are convinced that all of the elements for issue preclusion are present in the evidentiary record presented to the county court. Contrary to the county court's holding, it is not a question of whether the jury actually included lost wages or medical expenses in its verdict. This could be determined 554 only by special verdict or jury interrogatories, since Neb.Rev.Stat. § 27-606 (Reissue 1989) prohibits evidential inquiry into the deliberations of the jury. The question is whether the issues of medical expenses and lost wages were litigated by Bartunek. Even though Bartunek, who did not appeal the jury's verdict, now contends that the verdict was not fully reflective of all of his damages, that argument misses the point. If Bartunek fully litigated the issues of medical expenses and lost wages in the tort case, then he is not entitled to a second adjudication of these same issues when Hormel asserts its contractual subrogation rights, so long as the jury's verdict exceeds the amount of Hormel's payments. The evidence in the instant case establishes that issues of medical expenses and lost wages were previously litigated and were part of the tort verdict. Therefore, Bartunek is collaterally estopped from claiming that the jury's verdict is not "full recovery" for purposes of determining whether Hormel can recover its subrogation. Although the reported decisions on this precise issue are surprisingly few, a similar result on nearly identical facts was reached in United Pacific Ins. Co. v. Boyd, 34 Wash. App. 372, 661 P.2d 987 (1983). Boyd appealed the determination that United Pacific Insurance Co. was entitled to a subrogation interest in a judgment Boyd recovered from a tort-feasor. Boyd was injured in an automobile accident with an employee of Northwest Landscaping Co. After the accident, Boyd was paid $6,200 for lost earnings and $2,138.84 for medical expenses by United Pacific, the company which insured Boyd. Boyd filed suit against Northwest Landscaping seeking, among other things, the recovery of medical expenses and lost wages. After a jury trial, Boyd received a verdict of $14,550.91. United Pacific filed an action to recover its subrogation interest in this judgment. In that action, Boyd argued that he was not made whole by the jury verdict and that this should be taken into consideration with regard to United Pacific's subrogation interest. The court granted summary judgment in favor of United Pacific. On appeal, the Washington Court of Appeals held: In his complaint, Mr. Boyd sought the recovery of medical expenses and lost earnings. The jury was instructed to fully compensate Mr. Boyd for these and determined he sustained injuries of $14,550.91. The jury determined the money necessary to make Mr. Boyd "whole". The fact Mr. Boyd has placed a greater value on his damages than the jury did does not allow him to relitigate the issue in a subsequent proceeding. We hold Mr. Boyd is collaterally estopped from denying that he was made whole by the jury verdict. Id. at 376, 661 P.2d at 990. See, also, Incollingo v. Maurer, 394 Pa.Super. 352, 575 A.2d 939 (1990) (holding that an injured motorist was collaterally estopped from relitigating in a separate civil action the extent of his damages against the driver of a third vehicle, when an arbitration proceeding had assessed damages at $70,000 under the injured motorist's uninsured motorist coverage invoked due to a "phantom vehicle," even though injured motorist argued that $70,000 was inadequate). While Bartunek may place a greater value on his damages than the jury did (he asserts loss of earnings in excess of $240,000 in his brief), the law considers that he has obtained "full recovery." Consequently, he is collaterally estopped from relitigating the amount of his damages in this proceeding, since his recovery exceeded the amount of Hormel's subrogation interest and he had litigated the issues of lost wages and medical expenses in the tort action. Thus, the district court correctly reversed the judgment of the county court and remanded this matter. We also dispose of a constitutional challenge set forth by Bartunek. In its brief, Hormel cites Neb.Rev.Stat. § 44-3,128.01 (Cum.Supp.1992) in support of one of its arguments. After Hormel's brief was filed, Bartunek filed a notice in this court, pursuant to Neb.Ct.R. of Prac. 9E (rev. 1992), challenging the constitutionality of § 44-3,128.01. While we recognize that the Nebraska Court of Appeals does not have jurisdiction to determine the constitutionality of a statute, see Neb.Rev.Stat. § 24-1106(1) (Cum.Supp.1992), this court may, when necessary to the decision in the case before us, determine whether a constitutional question 555 has properly been raised. In the present case, Bartunek has not properly challenged the constitutionality of this statute. A constitutional issue not presented to or passed upon by the trial court is not appropriate for consideration on appeal. Houska v. City of Wahoo, 235 Neb. 635, 456 N.W.2d 750 (1990); Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990). Since Bartunek's constitutional challenge is not considered by the lower court and was raised for the first time on appeal, the issue was not properly preserved for appellate review. When a challenge to the constitutionality of a statute is properly raised, the Supreme Court has jurisdiction; however, when a constitutional challenge is not properly raised, as is true here, then we proceed to decide the remaining issues the case presents. In his brief, Bartunek argues the issue of attorney fees and potential setoff amounts for trial costs against Hormel's subrogation in the event Hormel is allowed subrogation against the $45,000 judgment. However, since the county court sustained Bartunek's motion for summary judgment in the declaratory judgment action, these issues were never considered by the county court. The district court also did not consider these issues because it reversed the decision of the county court and remanded the case for further proceedings. In appellate proceedings, the examination by the appellate court is confined to questions which have been determined by the trial court. Barthel v. Liermann, 2 Neb.App. 347, 509 N.W.2d 660 (1993). See, also, Lickert v. City of Omaha, 144 Neb. 75, 12 N.W.2d 644 (1944). Therefore, these assignments of error will not be considered by this court, and the issues may be addressed upon remand. The county court erred by sustaining Bartunek's motion for summary judgment in the declaratory judgment action. The district court was correct when it reversed the judgment of the county court and remanded the matter for further proceedings. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2524181/	949 N.E.2d 1100 (2011) 351 Ill. Dec. 5 PEOPLE v. COOKS. No. 110426. Supreme Court of Illinois. May 1, 2011. Disposition of Petition for Leave to Appeal[] Denied. NOTES [] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3167416/	Michigan Supreme Court Lansing, Michigan Chief Justice: Justices: Syllabus Robert P. Young, Jr. Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis LEGO v LISS Docket Nos. 149246 and 149247. Argued October 14, 2015 (Calendar No. 3). Decided January 4, 2016. Michael Lego and his spouse, Pamela Lego, brought an action against Jake Liss in the Wayne Circuit Court, alleging that Liss, a police officer, acted with gross negligence when he shot Michael Lego, a fellow officer, while attempting to apprehend an armed-robbery suspect. Defendant moved for summary disposition, arguing that the suit was barred by MCL 600.2966, which provides immunity from tort liability for injuries arising from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession. The court, John H. Gillis, Jr., J., denied the motion, and defendant appealed. The Court of Appeals, OWENS and SHAPIRO, JJ., (JANSEN, P.J., concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam, issued March 27, 2014 (Docket Nos. 312392 and 312406), holding in part that the applicability of MCL 600.2966 could not be decided as a matter of law because plaintiffs’ allegations, if true, would demonstrate that defendant had acted in disregard of his police training and violated numerous safety procedures. The Supreme Court granted defendant’s application for leave to appeal. 497 Mich. 926 (2014). In a unanimous opinion per curiam, the Supreme Court held: The Court of Appeals erred by holding that defendant would not be entitled to immunity if he acted with gross negligence. MCL 600.2966 immunizes governmental entities and employees from all tort liability for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the police officer’s profession. These risks may include being shot by a fellow officer while engaging an active shooter, regardless of the degree of recklessness with which the injuring party acted. Accordingly, defendant was entitled to immunity as a matter of law. Court of Appeals judgment reversed in part; case remanded to the Wayne Circuit Court for entry of an order granting summary disposition to defendant. ©2016 State of Michigan Michigan Supreme Court Lansing, Michigan Chief Justice: Justices: OPINION Robert P. Young, Jr. Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen FILED January 4, 2016 STATE OF MICHIGAN SUPREME COURT MICHAEL LEGO and PAMELA LEGO, Plaintiffs-Appellees, v Nos. 149246 and 149247 JAKE LISS, Defendant-Appellant. BEFORE THE ENTIRE BENCH PER CURIAM. We granted leave to appeal in this case to consider the scope of the immunity provision of the firefighter’s rule for governmental entities and employees, MCL 600.2966. During an attempted apprehension of an armed-robbery suspect, the defendant, Jake Liss, a police officer, shot the plaintiff Michael Lego, also a police officer. Lego and his spouse, Pamela Lego, filed suit against the defendant, asserting gross negligence. The trial court denied the defendant’s motion for summary disposition based on MCL 600.2966 and the Court of Appeals affirmed in a divided opinion. 1 We granted leave to appeal. 497 Mich. 926 (2014). We reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant. Specifically, we disagree with the Court of Appeals majority that the applicability of MCL 600.2966 could not be decided at this time as a matter of law under the facts presented in this case. MCL 600.2966 provides in part as follows: The state, a political subdivision of this state, or a governmental agency, governmental officer or employee, volunteer acting on behalf of a government, and member of a governmentally created board, council, commission, or task force are immune from tort liability for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession. [Emphasis added.] The majority erred by affirming the denial of summary disposition to the defendant on the basis that the plaintiffs’ allegations, if true, would demonstrate that the defendant acted in disregard of his police training and violated numerous safety procedures. The majority essentially determined that the defendant might not be entitled to immunity if his actions were especially egregious; in other words, if the defendant were grossly negligent, he would not be entitled to immunity because the injury resulting from his actions would not “arise[] from the normal, inherent, and foreseeable risks of 1 Lego v Liss, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2014 (Docket Nos. 312392 and 312406). The Court of Appeals also affirmed the trial court’s denial of summary disposition to defendant based on the worker’s compensation exclusive remedy provision, MCL 418.131(1), and defendant has not appealed that ruling. 2 [Michael Lego’s] profession” as required under MCL 600.2966. This interpretation of the language “normal, inherent, and foreseeable risks,” however, contravenes MCL 600.2966, especially when it is read in conjunction with the general firefighter’s rule, MCL 600.2967. 2 That rule provides that a firefighter or police officer may sue for damages for injuries arising out of a normal, inherent, and foreseeable risk of his or her profession if the injuring party acted with (among other mental states) gross negligence. MCL 600.2967(1)(a)(i). But MCL 600.2966 exempts governmental entities and employees from that general rule by immunizing them from all tort liability “for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable 2 MCL 600.2967(1) provides in pertinent part: Except as provided in [MCL 600.2966], a firefighter or police officer who seeks to recover damages for injury or death arising from the normal, inherent, and foreseeable risks of his or her profession while acting in his or her official capacity must prove that 1 or more of the following circumstances are present: (a) An injury or resulting death that is a basis for the cause of action was caused by a person’s conduct and that conduct is 1 or more of the following: (i) Grossly negligent. (ii) Wanton. (iii) Willful. (iv) Intentional. (v) Conduct that results in a conviction, guilty plea, or plea of no contest to a crime under state or federal law, or a local criminal ordinance that substantially corresponds to a crime under state law. 3 risks of the firefighter’s or police officer’s profession.” To hinge the applicability of this immunity provision on the degree of recklessness with which the defendant acted would undermine the statutory language by potentially denying immunity to a governmental defendant on the very basis for which the statute is intended to provide such immunity. Rather, when determining the applicability of the immunity provision of MCL 600.2966, the inquiry must be whether the injury arose from the normal, inherent, and foreseeable risks of the police officer’s or firefighter’s profession. The undisputed facts here are that Michael Lego was shot by the defendant as both were attempting to apprehend an armed robbery suspect. As the Court of Appeals partial dissent correctly concluded, “being shot by a fellow police officer while engaging an active shooter is one of ‘the normal, inherent, and foreseeable risks of . . . [a] police officer’s profession’ within the meaning of MCL 600.2966.” This is true irrespective of whether the defendant was acting consistently with his training and departmental safety procedures or whether the defendant was grossly negligent while attempting to apprehend the suspect in this case. 3 Thus, no question of material fact remains unresolved. 4 3 This conclusion does not mean, as the Court of Appeals majority suggested, that being shot by another officer is “always, as a matter of law, a normal, inherent, and foreseeable risk of being a police officer.” Lego, unpub op at 2. It simply means that the fact that there is a question whether the defendant acted with gross negligence cannot alone transform a normal, inherent, and foreseeable risk of a police officer’s profession into one that is not normal, inherent, and foreseeable. 4 To the extent that the Court of Appeals majority opinion relied on the federal district court decision in Rought v Porter, 965 F Supp 989, 994 (WD Mich, 1996), we agree with Court of Appeals Judge JANSEN in her partial dissent that it is not binding. Lego, unpub op at 2 (JANSEN, P.J., concurring in part and dissenting in part). See also Abela v Gen Motors Corp, 469 Mich. 603, 607; 677 NW2d 325 (2004) (stating that lower federal court decisions are not binding on state courts). Further, while the phrase “normal, inherent, 4 Accordingly, the defendant is entitled to immunity as a matter of law. We reverse in part the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant. Robert P. Young, Jr. Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen and foreseeable risks” can be traced to our interpretations of the common-law firefighter’s rule, see e.g., Kreski v Modern Wholesale Electric Supply Co, 429 Mich. 347, 351, 372; 415 NW2d 178 (1987), we are not bound by those interpretations because the common-law rule has been abolished, MCL 600.2965, and the phrase has not clearly acquired a “peculiar and appropriate meaning in the law,” MCL 8.3a. 5	01-03-2023	01-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/1874600/	694 F. Supp. 836 (1988) John DILLARD, et al., Plaintiffs, v. BALDWIN COUNTY COMMISSION, Defendant. Civ. A. No. 87-T-1159-N. United States District Court, M.D. Alabama, N.D. June 6, 1988. James U. Blacksher, Mobile, Ala., Larry Menefee, Edward Still, Reeves & Still, Birmingham, Ala., Julius L. Chambers, Lani Guinier, Pamela Karlan, NAACP Legal Defense Fund, New York City, Allan R. Chason, Chason & Chason, Bay Minette, Ala., for plaintiffs. 837 Don Siegelman, Alabama Atty. Gen., Susan Russ, Asst. Atty. Gen., David Boyd, Balch & Bingham, Montgomery, Ala., Taylor D. Wilkins, Jr., Claude E. Bankester, Wilkins, Bankester & Biles, P.A., Bay Minette, Ala., for defendant. MEMORANDUM OPINION MYRON H. THOMPSON, District Judge. The plaintiffs have brought this lawsuit on behalf of all black citizens in Baldwin County, Alabama.[1] They charge that the at-large system used to elect the Baldwin County Commission violates § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973.[2] A violation of § 2 is established if official action was taken or maintained with a racially discriminatory "intent" or the action has racially discriminatory "results," determined according to certain Congressionally approved criteria. McMillan v. Escambia County, 748 F.2d 1037, 1046 (5th Cir.1984) (Former Fifth); Buskey v. Oliver, 565 F. Supp. 1473, 1481 & n. 18 (M.D.Ala.1983). The Baldwin County Commission has conceded that its at-large election system violates § 2, and thus the only issue before the court is what measures are necessary to remedy the violation. The special master in this case, United States Magistrate John L. Carroll, has recommended that the court adopt the plaintiffs' proposed plan of seven single-member districts, rather than the county commission's proposed plan of a "pure" at-large system. For reasons that follow, the court concludes that the magistrate's recommendation should be adopted. I. Baldwin County is located in southwest Alabama. According to the 1980 census, there are 78,556 people in the county of whom 12,047, or 15.34%, are black, and 65,840, or 83.81%, are white.[3] Most of the black population is concentrated in neighborhoods on a strip along the county's western border. Baldwin County is currently governed by a board of four commissioners. The system used to elect the commission has three structural features particularly relevant here. First, a candidate for commissioner must run at-large, or countywide, with all voters in the county allowed to vote for the candidate. Second a candidate must run for a "numbered post" or separate place. Each commissioner position carries a separate number, and each candidate qualifies 838 for a specific number and place, with each voter allowed to vote for only one candidate in each place.[4] And third, a candidate must receive a majority of votes cast in the primary to win the nomination of a political party. If no candidate receives a majority of votes, a run-off primary election is held. The majority-vote requirement does not apply to general elections. The Baldwin County Commission has proposed a "pure" at-large election system to cure the § 2 violation in its current system. Under the commission's plan, elections would continue to be at-large, but the numbered-place and majority-vote components would be abandoned. The size of the commission would be increased to five. The plaintiffs contend that the county commission's plan does not remedy the § 2 violation, and, indeed, violates § 2. They have proposed a remedy of their own, of seven single-member districts, one of which would have a substantial majority of black voters. II. Congress has made clear that in determining a remedy for a § 2 violation, a court should exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice. S.Rep. No. 417, 97th Cong.2nd Sess. 31, reprinted in 1982 U.S.Code Cong. & Ad. News, 177, 208 (emphasis added). Thus, in the appeal of another Dillard case, the Eleventh Circuit Court of Appeals instructed that this court could not adopt any remedy that itself violates § 2, or that does not itself "completely" and "with certitude" remedy the § 2 violation. Dillard v. Crenshaw County, 831 F.2d 246, 249, 252 (11th Cir.1987). However, in exercising this broad equitable authority, a court must, whenever practicable, afford the jurisdiction an opportunity to remedy the violation first, Wise v. Liscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497, 57 L. Ed. 2d 411 (1978), with deference accorded the jurisdiction's plan if it provides a full, legally acceptable remedy. Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1438-40 (11th Cir.1987). But if the jurisdiction fails to remedy completely the violation or if its proposed remedial plan itself violates § 2, the court must itself take measures to remedy the violation, but any court remedy must be narrowly tailored to include only those measures necessary to cure the defect. Upham v. Seamon, 456 U.S. 37, 42-43, 102 S. Ct. 1518, 1521-22, 71 L. Ed. 2d 725 (1982) (per curiam). Because the nature and scope of a required remedy depends on the nature and scope of the violation, the first issue for the court is, What exactly is the § 2 violation here? Although the Baldwin County Commission conceded liability, it did not reach an agreement with plaintiffs as to how its present election system violates § 2. Fortunately, the at-large system used by the commission is the same as the one used by the county school board, and this court recently addressed in some detail in another, companion case involving the school board, just how the system violates § 2.[5]Dillard v. Baldwin County Board of Education, 686 F. Supp. 1459 (M.D.Ala. 1988).[6] Much abridged, the holdings and findings of the court in the school board case were as follows. First, the court held that the at-large scheme was a product of "intentional" racial discrimination. The evidence reflected that, for the purpose of minimizing black voting strength, the Alabama legislature reshaped local at-large election 839 schemes by enacting "anti-single shot" laws in the 1950's and by replacing those laws in 1961 with "numbered place" laws. The evidence also established that the legislature engaged in a century-long pattern and practice of switching between local at-large election systems and local single-member district systems as needed to diminish black voting strength. Baldwin County Board of Education, 686 F.Supp. at 1467-69; see also Dillard v. Crenshaw County, 640 F. Supp. 1347 (M.D.Ala.1986). The court went on to conclude that the at-large system used by the school board was a product of both invidious schemes and that the at-large system was still having its intended racist effect. Baldwin County Board of Education, 686 F.Supp. at 1468. Second, the court held that § 2 was violated because, as a "result" of the county's at-large system, black voters in Baldwin County do not have an opportunity equal to that of whites to participate in the political process and to elect candidates of their choice. This holding was based on two significant findings. First, the court found extensive "racially polarized voting" in the county: that is, that black citizens in the county constitute a politically cohesive unit, but that the white majority usually votes as a block to defeat the preferred candidate of the black voters. Because of this polarization, it is difficult, if not impossible, for black electors to elect candidates of their choice. Baldwin County Board of Education, 686 F.Supp. at 1464-67. Second, the court found that this difficulty is for the most part attributable to the at-large election system used by the county, or, to put it another way, that black electors would have the potential to elect representatives in the absence of the system. The plaintiffs demonstrated that a system of seven single-member districts would allow them to elect a candidate of their choice, even with a majority-vote requirement and even in the context of intensively racially polarized voting. The evidence reflected that, if the county were divided into at least seven districts, the county's black citizens are sufficiently large and geographically compact to constitute a substantial voting-age majority in one of these districts.[7]Id. This second finding of the court was also premised on evidence that, by 1990, the county population will have increased to 98,820, with the white population having increased by 19,280 to 85,120 or 86.14% of the population, but with black population having increased by less than a 840 thousand and with a percentage point decrease from 15.34% to less than 14%. Based on these findings and others, the court concluded that the Baldwin County Board of Education's at-large election system, including in particular its majority-vote and numbered-post features, has interacted with the extensive racial polarization in the county to render the ability of the black voters to elect their representative substantially inferior to that of whites. Indeed, the court is convinced that the black citizens of Baldwin County have been effectively left unrepresented because the school board representatives in the county may for the most part ignore the interests of blacks in the county without fear of political consequences. The court is also convinced that this dilution of the black voteor more appropriately annihilation of itis not only exacerbated by the depressed social and economic conditions for most blacks in the county, it is perpetuating these conditions. Moreover, and perhaps most sadly, because these depressed conditions are due to this state's long and immoral history of treating its own black citizens as second class, this dilution of the black vote is also effectively perpetuating this discrimination, such that each black child born in Baldwin County is automatically a new victim to this history. Id. at 1467. Shortly after the court issued its memorandum opinion in the school board case, the board agreed to forgo an appeal and accept the seven single-member districting system, with some minor line changes agreed to by plaintiffs.[8] III. The county commission contends, as stated, that its proposed "pure" at-large system cures any § 2 violation in its present system. It is, however, apparent from the evidence now before the court that the commission's proposed plan not only fails to provide an adequate cure, the plan violates § 2 itself. A. First of all, the commission's plan violates § 2's results test. As this court explained in some detail in the school board case, the Supreme Court recently set forth in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), the manner in which a trial court should assess a § 2 results claim. The claim is established where the "totality of the circumstances," 42 U.S.C.A. § 1973(b), reveals that "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." Id. at 44, 106 S.Ct. at 2763, quoting S.Rep. No. 417, 97th Cong. 2nd Sess. 28, reprinted in 1982 U.S.Code Cong. & Ad.News, 177, 206. The Thornburg Court went on to list nine Congressional factors typically considered in evaluating a results claim.[9] The 841 Court observed that the compilation of these factors is premised on the notion "that a certain electoral law, practice or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representative." Id. at 47, 106 S.Ct. at 2764-65. The Court further observed that there is one significant limit on a results claim. A minority group has no right under § 2 to proportional representation; "the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation." Id. at 46, 106 S.Ct. at 2764. Rather, as stated, the plaintiffs must show that, under the totality of circumstances, the challenged electoral scheme results in an unequal access to the electoral process. The Thornburg Court then refined the above general observations to address the specific type of governmental decision being challenged: the decision of a government to employ, in the face of a majority-vote requirement, at-large districting rather than single-member districts with one or more majority black districts. Id. at 45, 106 S.Ct. at 2764. The Court held that while all nine of the Congressional factors typically considered remain relevant, two circumstances are more important, and indeed are essential, to success on this challenge. Id. at 48-50 & ns. 15 & 16, 106 S.Ct. at 2765-67 & ns. 15 & 16. The Court required, as a first "precondition" to such a challenge, that the minority must be able to show that it experiences substantial difficulty electing representatives of its choice. To do this it must show the existence of "racially polarized voting": that is, that the minority group constitutes a politically cohesive unit and that the white majority votes sufficiently as a block, usually to defeat the minority's preferred candidate. Id. at 52, 54, 106 S.Ct. at 2767, 2769. If the minority group is not politically cohesive, it cannot be said that distinctive minority group interests are being thwarted, id.; and without significant white bloc voting, usually to defeat minority preferences, it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters. Id. at 48 n. 15, 106 S.Ct. at 2766 n. 15. Indeed, for these reasons, racially polarized voting is viewed as the key element of a vote dilution claim. Id. at 30, 106 S.Ct. at 2769. It cannot also be overlooked that racially polarized voting not only deprives minority voters of their preferred representatives, it also leaves them effectively unrepresented because it allows those elected to ignore minority interest without fear of political consequences. Id. at 48 n. 14, 106 S.Ct. at 2765 n. 14. In a very real sense, therefore, racially polarized voting perpetuates the effects of past discrimination. Id. at 44 n. 9, 106 S.Ct. at 2763 n. 9. The Court required, as a second precondition, that the minority be able to demonstrate that its difficulty in electing candidates of its choice is in some measure attributable to the challenged election feature, id. at 48, 106 S.Ct. at 2765, or, to put it another way, that the minority has the potential to elect representatives in the absence of the challenged feature. Id. at 50-51 & n. 17, 106 S.Ct. at 2766-67 & n. 17. Because the questioned choice in Thornburg was in the context of a majority vote requirement and because it was between an at-large system and a scheme with a majority-black single-member district, the Court logically required that "the minority group ... be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." Id. at 50, 106 S.Ct. at 2766. As the Court explained, "If it is not, as would be the case in a substantially integrated district, the multi-member form of the district cannot be responsible for minority voters' inability to elect its candidates." Id. (emphasis in original) (footnotes omitted). In effect, therefore, under Thornburg if a minority seeks to require that a jurisdiction with a majority-vote requirement adopt single-member districts with one or more majority-black districts, the minority must be able to show in 842 the liability phase of its case that the remedy of a majority-black single-member district is in actuality possible. The plaintiffs here have met the second Thornburg precondition, that they be sufficiently large and geographically compact to constitute a majority in a single-member district. They have submitted the same plan approved by this court in the school board case: a districting plan with seven single-member districts, one of which, district one, has a black voting-age majority.[10] The critical question therefore is whether the first Thornburg precondition is met, that is, whether black voters in Baldwin County will continue to experience, under the commission's proposed plan, substantial difficulty electing representatives of their choice. As this court found in the school board case, there is extensive racial polarization in the county. Black voters constitute a politically cohesive unit in the county, and white voters vote as a block to defeat the black voters' preferred candidate. The answer to this critical question therefore turns on whether the commission's plan offers black voters in the county a substantial potential to elect representatives of their choice, even in the face of such polarized voting. The commission's principal contention in support of its plan is that black voters will be able to elect their preferred candidate through the use of "single-shot voting." The evidence refutes this contention, however. The United States Supreme Court explained single-shot voting as follows: Consider [a] town of 600 whites and 400 blacks with an at-large election to choose four council members. Each voter is able to cast four votes. Suppose there are eight white candidates, with the votes of the whites split among them approximately equally, and one black candidate, with all the blacks voting for him and no one else. The result is that each white candidate receives about 300 votes and the black candidate receives 400 votes. The black has probably won a seat. This technique is called single-shot voting. City of Rome v. United States, 446 U.S. 156, 184 n. 19, 100 S. Ct. 1548, 1565 n. 19, 64 L. Ed. 2d 119 (1980), quoting U.S. Commission on Civil Rights, "The Voting Right Act: Ten Years After," pp. 206-07 (1975). The county commission fails to appreciate that single-shot voting can be an effective tool only if the group utilizing it constitutes a substantial percentage of those voting. The court has not attempted to calculate the exact cut-off point where single-shot voting would not be effective, but suffice it to say that a figure between 13 and 14%, the estimated 1990 percentage of black citizens in Baldwin County, falls far below this point, as the court will demonstrate.[11] If the City of Rome's numerical frame-work of 1000 voters is used, a community that is 14% black would have 140 black voters and 860 white voters. With five commissioner positions available and with each voter thus able to cast five votes for separate candidates, as is the case with the commission's proposed plan, the 1000 voters would be able to cast a total of 5000 votes; the white voters would have a total of 4,300 votes and the black voters would have a total of 700 votes. But if the black electors choose to single-shot their votes, they would have only 140 votes. The black voters would be able, with 140 votes, to elect someone only if there were 31 or more other candidates and the white voters split their votes evenly among all 31 candidates.[12] No one can seriously question that the concurrence of both these conditions in Baldwin County is not only unlikely on a regular basis, it is unlikely to happen ever. Under the commission's plan, therefore, white voters would be able to continue to vote, as they have done in the past, to 843 defeat the black voters' preferred candidate. The commission's plan does not provide black voters in the county with an equal opportunity to participate in the political processes and to elect candidates of their choice.[13] B. Moreover, the county commission's plan is still a product of the legislature's intentional racial discrimination. The commission incorrectly assumes that by deleting the numbered-place feature in its at-large system, it also completely removes any racially discriminatory taint. To be sure, this court specifically found in the school board's case that the Alabama legislature adopted numbered-place laws with the intent of discriminating against black voters. Baldwin County Board of Education, 686 F.Supp. at 1468. The commission overlooks, however, that the legislature did this to "reshape[] at-large systems into more secure mechanisms for discrimination." Id., quoting from Dillard v. Crenshaw County, 640 F.Supp. at 1357 (emphasis added). Thus, the state legislature intentionally used not just numbered-place laws, but at-large systems themselves to discriminate; the tool of discrimination was the at-large system itself. Removing one feature, by itself, does not necessarily remove the taint. Furthermore, the court found that the county's at-large election system was a product of a century-long legislative scheme of switching between local at-large systems and local single-member district systems as needed to diminish black voting strength. The commission has not explained how deleting just one feature of an at-large system would also delete the invidious taint of this broad legislative scheme. IV. In contrast to the county commission's plan, the plan proposed by the plaintiffs does not violate § 2 and it fully remedies the § 2 violation. It provides for a district, district one, with an expected 1990 black population of over 63% of the total district population. The evidence reflects that, when all political, socio-economic and historical characteristics are considered, this district will also have a clear majority-black voting-age population, capable of electing a representative of its own choice.[14] The county commission does, however, challenge whether the plaintiffs' plan meets the Thornburg requirement of "sufficient compactness." The court rejects this challenge for the same reasons it rejected a similar challenge in the school board case. Baldwin County Board of Education, 686 F.Supp. at 1465-66. The county commission also objects to the increase in the number of commissioners, from four to seven, in the plaintiffs' plan. It is clear that, to create a majority-black voting-age district in the county, the size of the commission must be increased to seven. Thus, an increase is essential to vindicating the § 2 rights of the county's black citizens. On the other hand, the commission has failed to articulate, and the evidence does not support, any substantial and compelling interest the commission has in limiting the size of the commission to four, or even five as embodied in its proposed plan. Absent such interest, the strong Congressional command of § 2that the political porcess be open to blacks and whites equally directs that the court accede to the plaintiffs' request that the size of the commission be increased to seven. See e.g., Dillard v. Crenshaw County, 649 F. Supp. 289 (M.D.Ala.1986) (size of commission increased), affirmed in part and remanded in part for reconsideration, 844 831 F.2d 246 (11th Cir.1987), reaffirmed on remand, 679 F. Supp. 1546 (M.D.Ala.1988); cf. Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1563 (11th Cir.1987) (trial court erred in not allowing plaintiffs to proffer "evidence relating to the geographic concentration of voters by race in proposed three member and five member form of commission government in Carroll County, [Georgia].") The commission also complains that the plaintiffs' plan splits cities and other communities. Preserving municipal and other community or political boundaries cannot outweigh the requirement placed on this court to approve or fashion only that remedy which fully cures the § 2 violation. See, e.g., Mirrione v. Anderson, 717 F.2d 743, 744-45 (2d Cir.1983), cert. denied, 465 U.S. 1036, 104 S. Ct. 1308, 79 L. Ed. 2d 706 (1984) (interest in avoiding diminution of black voting strength outweighed problems caused by splitting Rosedale, New York, four ways); cf. Reynolds v. Sims, 377 U.S. 533, 579-81, 84 S. Ct. 1362, 1390-91, 12 L. Ed. 2d 506 (1964) (preserving integrity of political boundaries cannot outweigh right to vote). The commission has failed to submit a plan that mets this requirement while at the same time fully preserving all political boundaries. Finally, the county commission proffers a number of arguments against single-member districting in general. The commission argues, for example, that single-member districts prevent "coalition building" among the two races and, indeed, foster racial polarization in voting, and that such districting does not help those black citizens who live outside majority-black single-member districts. These arguments and others were rejected by Congress when it amended § 2 in 1982. As the three-judge court in Gingles v. Edmisten, 590 F. Supp. 345, 356-57 (E.D.N.C.1984), affirmed in part and reversed in part on other grounds sub nom. Thornburg, supra, stated, In enacting amended Section 2, Congress made a deliberate political judgment that the time had come to apply the statute's remedial measures to present conditions of racial vote dilution that might be established in particular litigation..... * * * * * * In making that political judgment, Congress necessarily took into account and rejected as unfounded, or assumed as outweighed ... the risk that creating "safe" black-majority single-member districts would perpetuate racial ghettos and racial polarization in voting behavior; the risk that reliance upon the judicial remedy would supplant the normal, more healthy processes of acquiring political power by registration, voting and coalition building; and the fundamental risk that the recognition of "group voting rights" and the imposing of affirmative obligation upon government to secure those rights by race-conscious electoral mechanisms was alien to the American political tradition. (emphasis in original) (footnotes omitted). In any event, significant coalition building between the races has not been characteristic of politics in Baldwin County in the past, and there is no credible evidence that circumstances will be different in the immediate future. V. In conclusion, the court holds that the pure at-large system proposed by the county commission fails to cure the § 2 violation and itself violates § 2. For this court to adopt and implement the commission's plan, "it would condemn the black citizens of Baldwin County to continued second class citizenship, but this time with the imprimatur of a federal court." Baldwin County Board of Education, 686 F.Supp. at 1470. In contrast, the plaintiffs' plan, which has seven single-member districts, fully remedies the § 2 violation, does not itself violate § 2, and meets all one-person one-vote requirements. The court will therefore require that the county commission implement the plaintiffs' plan in time for the upcoming 1988 elections. An appropriate judgment and injunction will be entered. 845 JUDGMENT AND INJUNCTION In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court: (1) That defendant Baldwin County Commission's objections to the recommendation of the magistrate be and they are hereby overruled, and that the recommendation of the magistrate be and it is hereby adopted; (2) That judgment be and it is hereby entered in favor of the plaintiffs and against defendant Baldwin County Commission; (3) That it be and is hereby DECLARED that the current at-large system used to elect the members of defendant Baldwin County Commission violates § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973; (4) That it be and is hereby DECLARED that the proposed `pure' at-large election plan submitted by defendant Baldwin County Commission is unacceptable under § 2 of the Voting Rights Act; (5) That it be and is hereby DECLARED that the single-member redistricting plan, consisting of seven members, submitted by the plaintiffs is acceptable under § 2 of the Voting Rights Act; and (6) That defendant Baldwin County Commission, its officers, agents, servants, and employees, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, be and each is hereby RESTRAINED and ENJOINED: (A) From using its current at-large election system in any future elections; (B) From failing to implement the single-member redistricting plan, consisting of seven members, submitted by the plaintiffs; and (C) From failing to conduct elections for all members of the defendant Baldwin County Commission under the plaintiffs' redistricting plan by January 1, 1989. It is further ORDERED that the plaintiffs have and recover from defendant Baldwin County Commission their reasonable attorney fees, and that the plaintiffs be and they are hereby allowed until the completion of all the Dillard cases to file their request for attorney fees. It is further ORDERED that costs be and they are hereby taxed against defendant Baldwin County Commission, for which execution may issue, and that plaintiffs be and they are hereby allowed until the completion of all the Dillard cases to file their bill of costs. The clerk of the court is DIRECTED to issue a writ of injunction. 846 NOTES [1] This lawsuit is one among many Dillard cases, now pending in this court, challenging the at-large election systems and various features of those systems used by many cities, counties, county school boards across Alabama. The plaintiffs in these Dillard cases have charged that these at-large systems violate § 2. In Dillard v. Baldwin County Board of Education, 686 F. Supp. 1459 (M.D.Ala.1988), this court traced, in some detail, the evolution of these Dillard cases. This lawsuit against the Baldwin County Commission is one of the "Group B" cases discussed there. [2] Section 2, as amended, reads as follows: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 42 U.S.C.A. § 1973. [3] The remaining population of 669 consists of those who are neither black nor white. In a companion case involving the Baldwin County school board, Dillard v. Baldwin County Board of Education, 686 F. Supp. 1459 (M.D.Ala.1988), this court incorrectly lumped the 669 in with the black population. The inclusion of this group with the black population was a minor inaccuracy and in no manner affected the findings of the court in the school board case. [4] The county also has a district residency requirement. Although the candidates run at-large, the county is divided into four districts, with each position corresponding to a district. To qualify for a particular position, a candidate must live in the district that corresponds with the position. [5] In addressing the recommendation of the magistrate, both the plaintiffs and the county commission have, without objection, pointed to and relied on the opinion of the court in the school board case. [6] The opinion in the school board case was issued on April 8, 1988. [7] The court found that the following conditions also existed in Baldwin County: First, ... from the late 1880's to the present the State of Alabama and its political subdivisions have "openly and unabashedly" discriminated against their black citizens by employing at different times such devices as the poll tax, racial gerrymandering, and at-large elections, and by enacting such laws as the anti-single-shot voting laws, numbered places laws, and the Sayre law..... Without question, the present depressed levels of black voter participation in Baldwin County may be traced to these historical devices and laws. Second, [there is] historic discrimination in all areas of the economic and social life of Alabama blacks, including in education, employment, and health services. The evidence now before the court reflects that this discrimination has resulted in a lower socio-economic status for Alabama blacks as a group than for whites, and that this lower status has not only given rise to special group interests for blacks, it has depressed levels of black voter participation and has thereby hindered the ability of blacks to participate effectively in the political process and to elect representatives of their choice to the Baldwin County Board of Education. Third, Baldwin County has a majority-vote requirement for primary elections for its county school board. There is also a numbered post requirement for the board. The evidence reflects that these two requirements in conjunction with the at-large election requirement have served as a substantialindeed, the court is convince insurmountable political barrier to the ability of the county's black voting minority to elect candidates to the school board. Fourth, the Baldwin County Board of Education has been particularly unresponsive to the black citizens' concern about race relations in the county's schools, in particular concerns arising out of school desegregation and the apparent resulting displacement of black administrators. Fifth and finally, the Baldwin County Board of Education has not articulated, or offered evidence of, any policy underlying its past and intended continued use of at-large elections. Baldwin County Board of Education, 686 F.Supp. at 1466-67 (citation omitted). [8] The election system, as modified, is subject to approval of the court after a fairness hearing for the plaintiff class, scheduled for June 17, 1988. See Fed.R.Civ.P. 23(e). [9] These factors are: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; (7) the extent to which members of the minority group have been elected to public office in the jurisdiction; (8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; (9) whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. Thornburg, at 36-37, 106 S.Ct. at 2759-60. [10] A copy of the plaintiffs' plan is attached. [11] As stated in Part II of this memorandum opinion, the evidence reflects that, by 1990, the percentage of black citizens in Baldwin will decrease from the 1980 census figure of 15.54% to less than 14%. [12] The court arrived at 31 by dividing 4,300 by 140. Both the commission and the plaintiffs agree with the method of analysis used as well as with the figures derived from it. [13] The actual scenario for Baldwin County would be a lot worse than the one used by the court. Although the county's expected 1990-black population is less than 14%, its expected black voting-age population would be even smaller. A larger percentage of blacks than whites are under 18 and thus not of voting age. Moreover, the percentage of black eligible voters who vote is smaller than that for white eligible voters, due to long-standing adverse socio-economic conditions for blacks in the county. [14] The plaintiffs' plan also meets one-person one-vote requirements.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615072/	668 P.2d 1075 (1983) OAK GROVE INVESTORS, a California limited Partnership, Appellant, v. BELL & GOSSETT COMPANY, an Illinois corporation, Respondent. No. 14062. Supreme Court of Nevada. August 31, 1983. 1076 Petersen & Petersen, Robison, Lyle, Belaustegui & Robb, Reno, for appellant. 1077 Hibbs, Roberts, Lemons & Grundy, Reno, for respondent. OPINION MOWBRAY, Justice: The district court in this products liability action entered summary judgment for respondent Bell & Gossett Company on several grounds. Appellant Oak Grove Investors contends that the district court erred in its conclusions regarding the statute of limitations, the potential existence of a product defect, and the effect of an intermediary in the distribution chain. We agree with appellant's contentions, and therefore reverse and remand this matter for further proceedings consistent with this opinion. THE FACTS Appellant Oak Grove Investors (Oak Grove), a California limited partnership, owns an apartment complex in Washoe County known as Sundance West. Oak Grove purchased the complex in January 1979 from Elwood Partners, another limited partnership. Soon after the purchase, Oak Grove discovered extensive water damage from the plumbing and heating system of the complex. Respondent Bell & Gossett Company (Bell & Gossett), an Illinois corporation, manufactured the "Monoflo" plumbing fittings used in the apartment complex plumbing and heating system. The fitting is a copper "T," incorporating an internal cone, that diverts part of the water flowing through the pipe into the heating unit for each apartment and eventually back into the original pipe. The Monoflo fittings allegedly were inappropriate for the open-loop system developed for the apartment complex. The system involved sending both hot water for domestic use and hot water for heating through the same pipes, requiring the constant introduction of outside "aggressive"[1] water and high water velocities. The Monoflo fitting allegedly increased the water velocity beyond safe limits, causing erosion and corrosion. Oak Grove filed its first amended complaint against respondent and others on June 30, 1981. The complaint alleged that the plumbing and heating system was defective in design, manufacture, and installation, and that the defects had caused extensive corrosion and leakage throughout the apartment complex. The complaint also alleged that the defendants, including respondent, knew or reasonably should have known that the defective design of the system would cause the damage that occurred. Oak Grove alleged that it did not know of the defects in the system when it purchased the complex, although it admitted that the defects had begun to manifest themselves while its predecessor in interest was operating the complex, in December 1977. Respondent moved for summary judgment on several grounds. Following a hearing, the district court granted the motion. In concluding that there was no genuine issue as to any material fact, the court found "that there was no defect in the Bell & Gossett product which was used in the plumbing system at plaintiff's apartment complex, that the product was not from Bell & Gossett but was through an intermediary, and that the four year statutes of limitations are available to Bell & Gossett and are a complete defense to the claims." This appeal followed. APPELLANT'S STATEMENT OF POINTS Oak Grove designated only a partial record on appeal, and pursuant to NRAP 10(d)[2] served on respondent Bell & Gossett 1078 and included in the record a concise statement of the points on which it intended to rely. As a threshold matter, Bell & Gossett contends that it was prejudiced by three discrepancies between the statement of points and appellant's arguments on appeal. The purpose of the statement of points is to inform the respondent of the points in issue on appeal, so that the respondent may determine whether the material designated for inclusion in the record is sufficient for him to answer the appellant's contentions and present a fair and complete picture of the issues. Noncompliance with the rule is not ground for dismissal of the appeal unless the respondent has shown that he was misled or prejudiced by the appellant's noncompliance, and has had insufficient time to supplement an otherwise incomplete record. See Basic Refractories v. Bright, 71 Nev. 248, 256, 286 P.2d 747, 751 (1955); Christensen v. Pryor, 75 Ariz. 260, 255 P.2d 195, 197 (1953). See also Island Creek Coal Co. v. Local 1827, UMW, 568 F.2d 7 (6th Cir.1977). In its Statement of Points, appellant averred that respondent manufactured the Monoflo fittings and failed to warn of the dangers from the increased water velocity caused by the fittings. Respondent asserts that appellant's opening brief demonstrates that appellant is basing its allegations of liability on respondent's alleged participation in the design of the plumbing and heating system. A fair reading of appellant's entire brief indicates otherwise. The allegations of liability on appeal rest on Bell & Gossett's role as manufacturer of the Monoflo fittings, not on any alleged role as designer. Second, respondent notes that while in its Statement of Points appellant contended that NRS 11.205 was the applicable statute of limitations, appellant did not mention NRS 11.205 in its opening brief; rather, appellant argued that NRS 11.220 was the relevant statute. Both statutes of limitation were discussed during the district court hearing. Respondent does not show how it was prejudiced by the asserted discrepancy, nor does it indicate what additional portions of the record would be necessary to decide the issue fairly. Appellant has supplied a record adequate to determine the issue concerning the operation of NRS 11.220. Lastly, respondent argues that appellant failed to claim in its Statement of Points that the Monoflo fittings were defective. This argument is frivolous, because appellant stated that Bell & Gossett failed to warn of the dangers of its product. As we point out below, a failure to warn may constitute a "defect" for the purposes of a products liability cause of action. THE STATUTE OF LIMITATIONS In its motion for summary judgment, respondent argued that appellant's negligence and strict liability claims were barred by NRS 11.220, which provides that "[a]n action for relief, not hereinbefore provided for, must be commenced within 4 years after the cause of action shall have accrued." NRS 11.220 is the applicable statute for suits concerning tortious damage to real property. Hartford Ins. v. Statewide Appliances, 87 Nev. 195, 484 P.2d 569 (1971). Respondent contends, and the district court apparently agreed, that the four-year limitations period began to run at some time prior to appellant's discovery of the damage to its property, although neither respondent nor the district court specified when the period began to run. Appellant asserts that a cause of action "accrues" within the meaning of NRS 11.220 at the time the injury is discovered or becomes reasonably discoverable, rather than at the time the damage physically occurs or begins to occur. Appellant convincingly argues that in situations where the occurrence and the manifestation of damage are not contemporaneous, a "discovery" rule will not only satisfy the purpose of the statute of limitations, but will produce more equitable results than an "occurrence" rule. We have held that an action for legal malpractice does not accrue until the plaintiff discovers, or should have discovered, 1079 all facts material to the elements of the cause of action, including the sustaining of damages. The rationale for the rule is that a client has the right to rely on the attorney's expertise; moreover, the injury is often to intangible property interests, and is thus difficult to detect. Sorenson v. Pavlikowski, 94 Nev. 440, 443-44, 581 P.2d 851, 853-54 (1978). See Jewett v. Patt, 95 Nev. 246, 591 P.2d 1151 (1979). This rule was adopted legislatively in 1981, when NRS 11.207 was enacted to limit actions against attorneys, accountants, and veterinarians to a four-year period "after the plaintiff sustains damage and discovers or through the exercise of reasonable diligence should have discovered the material facts which constitute the cause of action." NRS 11.207(1). See also NRS 11.190(3)(b)-(d); NRS 41A.097(1). Many jurisdictions have adopted a "diligent discovery" rule with respect to tortious damage to property. As the Oklahoma Supreme Court noted in Smith v. Johnston, 591 P.2d 1260 (Okl. 1978), the statute of limitations is intended to run against those who fail to use reasonable and proper diligence in the enforcement of their rights. In Smith, a homeowner had failed to discover a hazardous condition created by a hidden defect in electrical wiring not because he had been negligent in investigating, but because he lacked sufficient knowledge to perceive the injury. The court held that the statute of limitations did not begin to run until the plaintiff learned or in the exercise of reasonable diligence should have learned of the harm to his property caused by the existence of the defect. Id. at 1263-64. Accord Regents of the Univ. of Cal. v. Hartford Accident & Indemn. Co., 21 Cal. 3d 624, 147 Cal. Rptr. 486, 581 P.2d 197, 200 (1978); Malesev v. Bd. of County Road Comm'rs, 51 Mich. App. 511, 215 N.W.2d 598 (1974). See Thompson v. Nebraska Mobile Homes Corp., 647 P.2d 334, 338 (Mont. 1982). Respondent attempts to distinguish the cases cited by appellant on their facts, but does not cite any authority that rejects a discovery rule for real property damage; nor does respondent explain why this Court should not adopt such a rule. We therefore hold that the term "accrued," as used in NRS 11.220, incorporates the same "diligent discovery" rule that is present in NRS 11.190(3), 11.207, and 41A.097. As the court said in Malesev v. Bd. of County Road Comm'rs, supra, "[t]o hold otherwise would transmute the statute from one of limitation into one of abolition... . Such a result is not consonant with the legislative purpose of the statute." 215 N.W.2d at 599. When the plaintiff knew or in the exercise of proper diligence should have known of the facts constituting the elements of his cause of action is a question of fact for the trier of fact. See Havas v. Engebregson, 97 Nev. 408, 411-12, 633 P.2d 682, 684 (1981); Millspaugh v. Millspaugh, 96 Nev. 446, 449, 611 P.2d 201, 202 (1980); Golden Nugget, Inc. v. Ham, 95 Nev. 45, 48-49, 589 P.2d 173, 175-76 (1979). A litigant has the right to a trial where the slightest doubt as to the facts exists. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981). In evaluating the propriety of a grant of summary judgment, we will review the evidence in the light most favorable to the party against whom summary judgment was rendered. Id.; McDermond v. Siemens, 96 Nev. 226, 607 P.2d 108 (1980). Appellant alleged in its complaint that its predecessor in interest, Elwood Partners, discovered the damage to the apartment complex from the defective plumbing and heating system in December 1977. Appellant also averred that Elwood Partners represented to it before the January 1979 sale that the only problems in the complex "were minor maintenance problems pertaining to a few insignificant leaks in the space heating and domestic hot water system." In support of its motion for summary judgment, respondent had the burden of showing the absence of a genuine issue of material fact as to when appellant discovered or should have discovered the defects in the system and the resulting damage to the apartment complex. Respondent failed to support its burden, as it argued only that the discovery rule should not apply in Nevada. The district court therefore erred in 1080 granting the motion for summary judgment on statute of limitations grounds. A FAILURE TO WARN MAY BE A PRODUCT DEFECT In its order granting summary judgment, the district court found, inter alia, "that there was no defect in the Bell & Gossett product which was used in the plumbing system ... [and] that the product was not from Bell & Gossett but was through an intermediary... ." Respondent argued at the hearing and in its appellate brief that the Monoflo fitting was not "dangerous," "unsafe," or defectively manufactured. It appears that respondent did not accompany its summary judgment motion with evidence relating to the need for a warning or the adequacy of any warnings given, although it presented evidence that it did not in fact know of appellant's proposed use of its product. Appellant presented evidence indicating that respondent should have foreseen the use of the Monoflo fitting in dual systems such as appellant's. Where the defendant has reason to anticipate that danger may result from a particular use of his product, and he fails to warn adequately of such a danger, the product sold without a warning is in a defective condition. Strict liability may be imposed even where the product is faultlessly made, if it was unreasonably dangerous to place the product in the hands of the consumer without adequate warnings concerning its safe and proper use. Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 162-63, 561 P.2d 450, 453 (1977). See General Electric Co. v. Bush, 88 Nev. 360, 364-65, 498 P.2d 366, 369 (1972); Jacobsen v. Ducommun, Inc., 87 Nev. 240, 484 P.2d 1095 (1971). See also Anderson v. Heron Engineering Co., 198 Colo. 391, 604 P.2d 674, 676 (1979); McKee v. Moore, 648 P.2d 21, 23 (Okl. 1982). The adequacy of the warnings provided is ordinarily a jury question. Reiger v. Toby Enterprises, 45 Or. App. 679, 609 P.2d 402, 405 (1980). Strict liability applies to claims based on property damage as well as to personal injury cases. See Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971); Rocky Mountain Fire & Cas. Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 640 P.2d 851, 855 (1982). See also Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 651 P.2d 637 (1982). Strict liability may extend not only to the dealer and retail seller of the product, but to the manufacturer of the product and the manufacturers of its component parts. Rocky Mountain Fire & Cas. Co. v. Biddulph Oldsmobile, 640 P.2d at 854. As the above authorities amply demonstrate, the district court erred insofar as the grant of summary judgment was based on the purportedly nondefective condition of the Monoflo fittings and the presence of an intermediate party in the chain of distribution of the fittings. THE DAMAGES ISSUE Respondent attempts on appeal to raise an additional argument in support of the grant of summary judgment, by contending that appellant is seeking to recover only "economic" losses rather than damages for injury to property. The district court did not rule on the issue of damages in its order granting summary judgment. Thus, the issue is abstract and not properly before this Court. See NCAA v. Univ. of Nevada, 97 Nev. 56, 624 P.2d 10 (1981); Boulet v. City of Las Vegas, 96 Nev. 611, 614 P.2d 8 (1980). Cf. Sink v. School Dist. No. 6, 649 P.2d 1263 (Mont. 1982) (since trial court did not rule that plaintiff's claim for statutory penalties was barred by statute of limitations, court's discussion of limitations issue was gratuitous, and issue was not properly before Supreme Court). To guide the district court upon remand, however, we shall note that appellant alleged in both its strict liability and negligence causes of action that the defective plumbing and heating system caused "substantial leakage of water throughout, and damage to, the apartment [sic] within the ... complex." The amount of property damage sustained is a question for the finder of fact. Appellant is not seeking to recover purely economic losses, and therefore 1081 has stated causes of action in negligence and strict liability. See Local Joint Exec. Bd. v. Stern, supra. See also Hales v. Green Colonial, Inc., 490 F.2d 1015, 1022 (8th Cir.1974); Russell v. Ford Motor Co., 281 Or. 587, 575 P.2d 1383, 1387 (1978). Bell & Gossett failed to show that Oak Grove discovered or reasonably should have discovered the damage to its property at a time more than four years before Oak Grove filed its complaint in the instant case. Moreover, the allegation regarding Bell & Gossett's failure to warn supplied an averment of "defect" adequate to support a products liability action. Bell & Gossett was not insulated from liability by the passing of its product through an intermediary. For all of these reasons, the district court erred in granting summary judgment to Bell & Gossett. We therefore reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion. MANOUKIAN, SPRINGER, STEFFEN and GUNDERSON, JJ., concur. NOTES [1] Appellant's counsel at oral argument represented that Reno water is "aggressive," i.e., is high in minerals and dissolved gases. Apparently, such water loses its "aggressive" qualities over time in a closed system, but has no opportunity to do so in an open system where outside water is continually being introduced. [2] NRAP 10(d) provides as follows: No assignment of errors is necessary. If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615077/	668 P.2d 948 (1983) The BISHOP AND DIOCESE OF COLORADO, a Colorado non-profit corporation, the Reverend Charles Larry Day, Allen Uyeda, Robert Douglass, H. David Huskin, Harry Thom, John Brown, Joseph Esch, Carla Parnell, Mildred Mullenax, John Helmore, Otis Drury, Marian Lattimore, as members of the Vestry of the Episcopal Parish of St. Mary's, the Episcopal Parish of St. Mary's, and Episcopal Church of St. Mary, Plaintiffs-Appellees, v. The Reverend James O. MOTE, John Archibold, Marvin Olsen, John Brainerd, Wayne Gill, Chris Woodbury, Richard Atchison, Charles Buell, Rick Hill, Walter Kulp, James Lucero, Lorne Scofield, and Saint Mary's Church, a Colorado non-profit corporation, Defendants-Appellants. No. 80CA0406. Colorado Court of Appeals, Div. III. January 13, 1983. Rehearing Denied February 24, 1983. Certiorari Granted August 22, 1983. 949 Fishman, Geman, Gersh & Bursiek, P.C., Miles M. Gersh, Holland & Hart, Denver, for plaintiffs-appellees. Skelton, Oviatt & O'Dell, Forrest C. O'Dell, Wheat Ridge, for defendants-appellants. John E. Archibold, Denver, defendant-appellant pro se. BERMAN, Judge. This is an appeal from a judgment granting legal title to St. Mary's Church to the minority of its members upon a split of the parish. We reverse. St. Mary's Church was established as a mission within the Protestant Episcopal Church of the United States of America (Episcopal Church) in the early 1930's, and was incorporated under the laws of the State of Colorado in 1934. Twenty years later the mission of St. Mary's sought and obtained parish status from the Colorado Diocese of the Episcopal Church. As a condition of the parish status, St. Mary's unanimously adopted a resolution acceding to the constitutions of the national church and the Diocese, and promising obedience to the national church's canons and to the canons of the Diocese. Its articles of incorporation were amended to reflect the same accession. St. Mary's also adopted corporate by-laws which, in an article captioned "accession," provided that "the parish shall have control of its own local affairs but nothing shall be done which conflicts with the Canons of the Church, either General or Diocesan." Beginning in the early 1970's, a number of doctrinal controversies arose within the Episcopal Church. Among these controversies was whether women should be ordained to the priesthood. The General Convention of the Episcopal Church formally approved the ordination of women in 1976. Two months later, at the Annual Convention of the Diocese of Colorado, the St. Mary's delegation presented a resolution calling upon the Diocese to withdraw from the Episcopal Church in protest to the ordination of women priests. When the convention rejected the resolution, Father 950 Mote, the rector of St. Mary's, announced that he could no longer be a member of the Episcopal Church and walked out of the convention, along with most of the members of the St. Mary's delegation. Upon Mote's failure to retract his public declarations, he was removed by the Bishop from the ministry of the Episcopal Church. The dissident majority, including Mote, voted to secede from the Episcopal Church. They amended the articles of incorporation to reflect the secession. About the same time as the majority's secession, the Bishop met with the minority of St. Mary's members still loyal to the church. He formally recognized this minority as representing St. Mary's parish. These individuals have since been meeting in quarters rented from another Denver church, while the majority continues to occupy the original St. Mary's building. The Diocese of Colorado then adopted a resolution declaring that it "does not approve or recognize the action taken by St. Mary's Church to withdraw from the Diocese of Colorado, supports those members of St. Mary's Church who voted against such withdrawal and affirms its ecclesiastical ties and its rights with respect to the non-profit corporation known as St. Mary's Church." Because the secessionist majority considered themselves possessed of the property of St. Mary's Church, the Bishop of the Colorado Diocese of the Episcopal Church, the Colorado Diocese, and the members of St. Mary's Church loyal to the Episcopal Church sued to recover possession of all real and personal property held by the majority. The trial court held that the minority was entitled to the property. It considered it necessary to defer to the decision of the Diocese which recognized the minority faction as the "true" Saint Mary's Church because it found that the Episcopal Church was hierarchical as to both doctrinal and temporal matters. The trial court explained in its findings that deference was "necessary" because high church officials had testified that the ownership of local parish property was a matter of church "polity." In this regard the court stated: "The evidence showed that the Executive Council of the Diocese of Colorado and the Bishop of Colorado considered the issues in the St. Mary's controversy to be fundamental to the integrity of the polity of the Episcopal Church." Accordingly, it ordered the majority to surrender control of all real and personal property held in the name of St. Mary's Church, and the majority appeals. The appellants argue that the trial court need not have deferred to the diocesan decision as to property ownership. They maintain that if a "neutral principles of law" approach is applied, they are entitled to possession. We agree. Judicial review of the internal affairs of church organizations has long been a subject of intense debate. Whenever a court is called upon to settle church property disputes, the spectre of the First Amendment freedom of religion and establishment clauses is raised. For fear of excessive entanglement in church affairs, the courts have long struggled with where the line is to be drawn between disposing of the matter as a civil property dispute and deferring to church polity. This question has largely been settled by the case of Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). However, for the sake of completeness, and because we believe that a short disposition on the history of the judicial debate may be helpful in our future application of Jones, we begin with an exegesis. The seminal Supreme Court decision concerning judicial review of disputes over church property is Watson v. Jones, 80 U.S. (13 Wall) 679, 20 L. Ed. 666 (1871). In Watson, the Court divided church property disputes into three categories. In the first category, if the local church property has been dedicated to the church subject to express conditions of trust, a court must enforce those conditions. Secondly, if the property is held by a congregational church, i.e., one that is not subject to decisions from higher authority within a church hierarchy, then a majority of the church members may control the disposition of the property. In 951 the third category, if the property is held by a local church under the control of a hierarchical organization, courts must defer to the appropriate church tribunal's resolution of any question of religious doctrine upon which the settlement of the church property dispute depends. This third category has been variously labeled the "polity" or "compulsory deference" rule. It was applied to settle the dispute in Watson because the deed to the property as well as the charter of the local church "subjected both property and trustees alike to the operation [of the general church's] fundamental laws." Watson at 683. Because the compulsory deference doctrine announced in Watson allows a hierarchical church almost unlimited power over its local churches, later decisions have imposed minimal fairness requirements on the management of local property by such churches. See, e.g., Gonzales v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S. Ct. 5, 74 L. Ed. 131 (1929). The "neutral principles" approach first appeared in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969). Presbyterian Church presented a hierarchical church dispute between a general church and two of its local member churches over the right to use the local churches' property. The schism arose because the local churches claimed that the general church had violated the organization's constitution. At the time, Georgia law implied a trust of local property for the benefit of the general church on the condition that the general church adhere to church doctrine as it existed at the time of affiliation of the local churches. Because the jury found that the general church had abandoned its original doctrines, the Georgia Supreme Court upheld the right of the local congregations to withdraw and to maintain possession of the local property. The Supreme Court held that such a civil court inquiry into whether the general church had departed from doctrine was improper because such questions are matters of purely ecclesiastical concern. The court remanded with instructions to avoid "resolving underlying controversies over religious doctrine." And, for the first time, the Supreme Court stated that "neutral principles of law, developed for use in all property disputes," should be applied by civil courts when faced with church property disputes. On remand, the Georgia Supreme Court concluded that, without the departure-from-doctrine element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S.E.2d 658 (1969), cert. denied, 396 U.S. 1041, 90 S. Ct. 680, 24 L. Ed. 2d 685 (1970). The neutral principles rule was examined in Maryland & Virginia Eldership v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970), and was then somewhat circumscribed by the decision in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976). However, neither of these cases gave concrete guidance as to the strict application of the rule, and this resulted in a number of divergent lower court decisions. See, e.g., First Presbyterian Church v. United Presbyterian Church, 430 F. Supp. 450 (N.D.N.Y.1977); Presbytery of the Covenant v. First Presbyterian Church, 552 S.W.2d 865 (Tex.Civ.App.1977); Kelley v. Riverside Boulevard Independent Church of God, 44 Ill.App.3d 673, 3 Ill. Dec. 298, 358 N.E.2d 696 (1976); Board of Church Extension v. Eads, 230 S.E.2d 911 (W.Va.1976). This ambiguity was dissipated in Jones v. Wolf, supra. By applying the Jones definition of neutral principles and comparing its facts to the facts of this case, we conclude that the trial court should not have deferred to the diocesan decision. Rather, the dispute should have been settled according to the Jones neutral principles approach. Jones involved a dispute over control of the local church between two factions of a Presbyterian congregation. Just as in the case at bar, a majority of the local congregation had voted to withdraw from the general church and had retained control of the local church property. Representatives 952 of the minority faction brought suit seeking declaratory and injunctive relief establishing their right to exclusive control of the local church's property as the faction loyal to the general church. Applying the neutral principles rule, the trial court ruled the majority was entitled to possession, and the Georgia Supreme Court affirmed. Jones v. Wolf, 241 Ga. 208, 243 S.E.2d 860 (1978). The United States Supreme Court agreed with Georgia's application of the neutral principles rule, but remanded for a more definite statement of the grounds for its decision. Jones v. Wolf, supra. On remand, the Georgia Supreme Court ruled that the presumption in favor of majority control is overcome only by statements contained in church documents pertaining directly to church property.[1]Jones v. Wolf, 244 Ga. 388, 260 S.E.2d 84 (1979), cert. denied, 444 U.S. 1080, 100 S. Ct. 1031, 62 L. Ed. 2d 763 (1980). In its Jones decision, the United States Supreme Court stated: "There can be little doubt about the general authority of civil courts to resolve [the] question [of church property ownership]." And, it ruled that when a court attempts to resolve that question, it may apply the neutral principles rule to inquire into "the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property." But, it cautioned that, "in undertaking such an examination, a civil court must take special care to scrutinize the documents in purely secular terms." If a religious organization wishes to avoid searching examination into its documents, it may, "[t]hrough appropriate reversionary clauses ... specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy." The Supreme Court explained that the primary advantage of the neutral principles approach is that "it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity." It "shares the peculiar genius of private-law systems in generalflexibility in ordering private rights and obligations to reflect the intentions of the parties." The Supreme Court in Jones encouraged the states to adopt a "presumptive rule of majority representation," defeasible upon a showing that the identity of the local church is to be determined by some other means. We adopt the majority rule for control of church property in this state. In Bernson v. Koch, 35 Colo. App. 257, 534 P.2d 334 (1975) this court applied a neutral principles approach set out in pre-Jones church property dispute cases, specifically, the "formal title" approach suggested by Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367, 90 S. Ct. 499, 24 L. Ed. 2d 582 (1970) (Brennan, J., concurring). Under the formal title approach, a court can "determine ownership by studying deeds, reverter clauses and general state corporation laws." Because the constitution of the local church construed in Bernson gave control of the corporate property to the members of the Church Council, which followed directives of the congregation, the Bernson court found that the majority of the voting members of the church was entitled to the use, possession, and enjoyment of the church properties. To the same effect, the Vestry, the Episcopal equivalent of the Bernson Church Council, controlled the St. Mary's parish at 953 the direction of the majority of members of the parish. Here, the local church does not have a constitution which expressly vests control of the local property in the majority. However, the formal title approach also requires that a court examine general state corporation laws. The laws under which this parish was incorporated provide for majority control of property. Thus, consistent with Bernson, we apply the neutral principles approach to grant title to the majority. We will here examine the relevant church documents to determine whether that presumption has been overcome in this case.[2] The trial court found that it could not inquire into church property ownership, because it found that the Episcopal Church was hierarchical as to temporal as well as doctrinal matters. However, this inquiry stopped short of that required by the Supreme Court in Jones, supra. Under Jones, a court, when viewing a church property dispute, should not stop with the general conclusion that a church is hierarchical as to temporal matters. Rather, a court should specifically inquire as to whether the documents indicate that the parties intended to create a trust in favor of the general church. Because the trial court did not determine that the documents expressly created such a trust, its unquestioning deference to the diocesan decision which recognized the minority bordered on violating the establishment of religion clause of the First Amendment. Upon conducting the search required by Jones, we find nothing in the deed, the articles of incorporation, the by-laws, or the canons or constitutions of the national church or the Colorado Diocese which creates an express trust in favor of the general church. First, the deed is in the name of St. Mary's Church, with no reference to a trust in favor of the Diocese or national church. And, although it is true that St. Mary's formally acceded through its articles of incorporation and by-laws to the canons and constitution of the national church and the Colorado Diocese, there is nothing in either the articles or by-laws which creates a trust in the church property in favor of the national church or Diocese. There is also no language in the canons or constitution of the Diocese or national church which reserves such a trust. Thus, there is nothing here which indicates that the majority presumption should not apply. Additionally, the local parish properly observed corporate procedures in voting to secede. The majority of the board of directors of a non-profit corporation manage the affairs of that corporation. Section 7-24-101, C.R.S.1973. If the board of directors wishes to amend its articles of incorporation, it adopts a resolution setting forth the proposed amendment and directing that it be submitted to a vote of the members, and a two-thirds vote of the members constitutes approval. Section 7-2-107, C.R.S.1973. There is no evidence in the record to indicate that these procedures were not followed in this case. Accordingly, the majority's vote should be enforced by Colorado courts under general principles of law relating to non-profit corporations in this state. Just as the Supreme Court did in Jones, we feel it advisable to counsel religious organizations that such intra-church disputes may be kept from the courts, if proper procedures are followed: "Under the neutral-principles approach, the outcome of the church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, 954 the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form." Jones v. Wolf 443 U.S. at 606, 99 S. Ct. at 3027, 61 L.Ed.2d at 786.[3] The judgment is reversed and the cause is remanded for entry of judgment granting all real and personal property owned by the original St. Mary's Episcopal parish to the majority of the members of the original St. Mary's Episcopal parish, appellants herein. KIRSHBAUM and TURSI, JJ., concur. NOTES [1] It stated: "Georgia has adopted for use in church local schism cases a `presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means.' Jones v. Wolf, supra, at [607], 99 S. Ct. at 3027. That presumption is overcome under Georgia law by an application of what has come to be known as `neutral principles' of lawthat is, `state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination'... [C]hurch documents will be considered only insofar as they determine or assist in the determination of the persons who are `entitled to possess and enjoy the property....'" [2] Normally, this court would remand for application of the legal principles announced herein to the facts. However, because all the relevant evidence in this case is documentary, and has been included in the record on appeal, in the interest of time, we have conducted our own examination of those documents. See Grossman v. Sherman, 198 Colo. 359, 599 P.2d 909 (1979). [3] Subsequent to the action discussed herein taken by the parish of St. Mary's, the above was accomplished by the Protestant Episcopal Church of the United States of America. In 1979, at its General Convention, the church adopted the following amendment to its canons: "[a]ll real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission, or Congregation is located."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983417/	Order filed July 29, 2014 In The Fourteenth Court of Appeals ____________ NO. 14-14-00495-CR ____________ DONALD RAY WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 239th District Court Brazoria County, Texas Trial Court Cause No. 20451-G ORDER The clerk’s record was filed July 24, 2014. Our review has determined that a relevant item has been omitted from the clerk’s record. See Tex. R. App. P. 34.5(c). The record does not contain the trial court’s order signed June 17, 2014, denying appellant’s application for writ of habeas corpus. The Brazoria County District Clerk is directed to file a supplemental clerk’s record on or before August 8, 2014, containing the trial court’s order signed June 17, 2014, denying appellant’s application for writ of habeas corpus . If the omitted item is not part of the case file, the district clerk is directed to file a supplemental clerk’s record containing a certified statement that the omitted item is not a part of the case file. PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/203156/	517 F.3d 8 (2005) Misael ACEVEDO-AGUILAR, Petitioner, v. Michael MUKASEY,[] Attorney General, Respondent. No. 07-1261. United States Court of Appeals, First Circuit. Submitted October 2, 2007. Decided February 15, 2008. 9 Peter Darvin on brief for petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, and Kathryn L. Deangelis, Trial Attorney, Office of Immigration Litigation, United States. Justice Department, on brief for respondent. Before LIPEZ, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge. HOWARD, Circuit Judge. Misael Acevedo-Aguilar, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals ("BIA") order affirming the decision of an immigration judge ("IJ") that he was ineligible for cancellation of removal because he was not continuously present in the United States for the requisite 10 years prior to his application, as required by section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b. We deny the petition. STANDARD OF REVIEW Where, as here, the BIA adopts and affirms a portion of the IJ's decision, while also providing additional analysis of its own, we directly review the adopted portions of the IJ decision, Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir.2005), as well as the BIA's additions, Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.2006). We review the decisions of the IJ and BIA according to a "substantial evidence" standard, under which we will uphold the decisions if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir.2004) (citation and internal quotation omitted). Under this deferential standard, we will reverse only if "the record evidence would compel a reasonable factfinder to make a contrary determination." Stroni, 454 F.3d at 87 (citation omitted). FACTUAL BACKGROUND AND LEGAL ANALYSIS The petitioner claims to have first entered the United States without inspection in August 1992, when he was 16 years old, by crossing the Mexican border. In March 2001, he married Kobi Littlefield, the mother of his then one-year old daughter, and shortly thereafter filed an 1-485 adjustment of status application containing 10 an 1-130 immediate relative visa petition, filed by his wife. As a result of marital discord which eventually culminated in divorce, Ms. Littlefield withdrew her 1-130 petition, which led to the denial of Acevedo-Aguilar's 1-485 application in November 2001. On August 7, 2003, federal immigration authorities issued Acevedo-Aguilar a `Notice to Appear, charging him with removability. He eventually conceded removability, but filed an application for cancellation, pursuant to 8 U.S.C. § 1229b(b), under which removal of a deportable alien may be cancelled if, inter alia, he "has been physically present in the United States for a continuous period of 10 years immediately preceding the date of [his] application." Such "physical presence time" stops accruing upon service of a notice to appear. 8 U.S.C. § 1229b(d)(1). In addition, an alien departing the United States for "any period in excess of 90 days or aggregate periods exceeding 180 days" is considered to have failed to "maintain a continuous physical presence in the United States." 8 U.S.C. § 1229b(d)(2). Under this construct for cancellation of removal, Acevedo-Aguilar's burden was to prove that he was continuously present in the United States for the 10 years preceding August 7, 2003. The dispute in this case centers on a period in 1998 when he returned to Mexico to attend his brother's wedding. He testified that he left the United States on March 20, 1998, and submitted into evidence an airline ticket receipt bearing that date. Thus, he would have had to return to this country by June 18, 1998, to fall within the 90 day rule. Pinpointing the petitioner's return date, however, is no simple task, since he reentered to the United States by illegally crossing the border at Nogales, Arizona. Weighing heavily against him was the 485 application for adjustment he submitted in 2001, in which he noted that his last entry into the United States was July 9, 1998, 21 days outside the allowable time window. He testified however, that he returned to the United States on June 10, 1998, which would be within the allowable time. He explained that the discrepancy was due to confusion about his departure date, which caused him to put the wrong date on the 1-485. He testified that he knew he was away for approximately two months and a few days after his brother's April 18 wedding, so when his mother showed him the plane ticket with the March departure date, he realized that his correct return date was in June, not July. In addition to his own testimony, Petitioner's mother testified about his absence from the United States in 1998. She did little to clear up the confusion, however, as she offered three different accounts of Acevedo-Aguilar's return, testifying first that she last saw him in Mexico on May 10, 1998, prior to an expected border crossing between May 10 and June 10. She also testified that her son was in her house in Mexico between May 10 and June 10, and later stated that he crossed the border into the United States on June 5. In finding that Acevedo-Aguilar had not met his burden of proving his continuous presence in the United States, the IJ cited the discrepancy between petitioner's testimony regarding his absence, the plane ticket receipt and his sworn 1-485 form. The BIA adopted that finding and placed additional reliance on the inconsistent testimony of petitioner's mother regarding petitioner's whereabouts between March and July 1998. As these conclusions are supported by substantial record evidence, 11 the petition for review is denied.[1] NOTES [*] Pursuant to Fed. R.App. P. 43(c)(2), Attorney General Michael B. Mukasey has been substituted for former Attorney General Alberto R. Gonzales. [1] Because we resolve this petition on the issue of Acevedo-Aguilar's 1998 absence from the United States, we do not reach his other claims of error.	01-03-2023	02-07-2011
https://www.courtlistener.com/api/rest/v3/opinions/2615054/	847 P.2d 181 (1992) Linda JORGENSEN and Daniel Jorgensen, Plaintiffs-Appellants and Cross-Appellees, v. Richard Harold HEINZ, a/k/a Richard Harold Williams, Defendant-Appellee and Cross-Appellant. No. 91CA1162. Colorado Court of Appeals, Div. III. August 13, 1992. Rehearing Denied September 24, 1992. Certiorari Denied March 15, 1993. 182 Grant, Bernard, Lyons & Gaddis, P.C., H. William Sims, Jr., Bradley A. Hall, Longmont, for plaintiffs-appellants and cross-appellees. Sommermeyer, Wick, Dow & Campbell, Robert N. Clark, Fort Collins, for defendant-appellee and cross-appellant. Opinion by Judge ROTHENBERG. Plaintiffs, Linda G. and Daniel S. Jorgensen, appeal from the judgment entered on a directed verdict for defendant, Richard Harold Heinz. Defendant cross-appeals the trial court's order awarding him only his reasonable costs. We affirm. In March 1990, plaintiffs were driving in a car that was struck from behind by a car driven by defendant. Plaintiffs sued defendant, claiming they sustained injuries in the accident. At trial, both plaintiffs testified that they had sustained back and neck injuries in the accident and that they had seen a number of doctors. However, plaintiffs did not present any medical testimony concerning the amount of their medical bills or whether the bills were reasonable. At the close of the plaintiffs' case-in-chief, defendant moved for a directed verdict contending, in part, that plaintiffs had failed to meet the statutory threshold requirements of § 10-4-714(1), C.R.S. (1987 Repl.Vol. 4A). The court agreed with defendant and granted his motion for directed verdict. Defendant then filed a bill of costs. After a hearing, the court awarded defendant only those costs it found reasonable and disallowed his other costs. I. In challenging the directed verdict for defendant, plaintiffs first contend that the trial court erred in finding that they had not met the threshold requirements of § 10-4-714(1). We disagree. A trial court may grant a motion for a directed verdict only in the clearest of cases. Indeed, a motion for directed verdict should be granted "only when the evidence has such quality and weight as to point strongly and overwhelmingly to the fact that reasonable [persons] could not arrive at a contrary verdict." Ogden v. McChesney, 41 Colo. App. 191, 584 P.2d 636 (1978). In passing upon a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the party against whom the motion is directed, and every reasonable inference to be drawn from the evidence presented is to be considered in the light most favorable to that 183 party. Ricklin v. Smith, 670 P.2d 1239 (Colo.App.1983). Section 10-4-714(1) allows a party to recover in tort only after certain threshold requirements are met. One such requirement, set out in § 10-4-714(1)(e), C.R.S. (1987 Repl.Vol. 4A), is that the accident cause a "reasonable need for [medical] services ... having a reasonable value in excess of $2,500." See Jones v. Cox, 828 P.2d 218 (Colo.1992). Here, plaintiffs contend that their testimony alone was sufficient to meet this requirement. We disagree. At trial, Linda Jorgensen testified as follows: PLAINTIFFS' ATTORNEY: Now, you've seen doctors since the accident? MS. JORGENSEN: Yes, I have. PLAINTIFFS' ATTORNEY: And can you give us the names of the doctors that you've seen? MS. JORGENSEN: Well, I added up my medical bills the other day and they were around $7,000. This was the only evidence plaintiffs introduced relating to Linda Jorgensen's medical bills; they did not introduce any testimony that there was a reasonable need for the medical services. Similarly, plaintiffs did not present any testimony that there was a reasonable need for the medical services Daniel Jorgensen received. The only evidence that was introduced at trial concerning his medical bills was as follows: PLAINTIFFS' ATTORNEY: Give me the names of all the doctors that you've seen. MR. JORGENSEN: Dr. Britton, Dr. Hammerberg, Dr. Hinman, Dr. Ceriani, Dr. Rupp, Dr. Cletcher. And there's a lot ofthere's a lot of doctors. I've got $9,000 worth of bills. Defendant's attorney objected to this testimony, and the court sustained the objection. Moreover, although the plaintiffs attempted to introduce into evidence their actual medical bills, defendant successfully objected on the basis that plaintiffs had failed to establish that they were reasonably and necessarily incurred as a result of the accident. We perceive no error in the trial court's finding that the plaintiffs' testimony alone was insufficient to meet the statutory requirement at issue here. Plaintiffs testified only that their medical bills totalled a certain amount. While this testimony may have been sufficient to show a reasonable value of the medical services rendered, see Kendall v. Hargrave, 142 Colo. 120, 349 P.2d 993 (1960), we conclude that it was insufficient to show a reasonable need for those services as required by the statute. Nor are we persuaded by plaintiffs' contention that Pyles-Knutzen v. Board of County Commissioners, 781 P.2d 164 (Colo.App.1989) requires a different result. In Pyles-Knutzen, plaintiff testified at trial that he had incurred over $7,000 in medical bills for treatment of injuries he sustained in an accident. The court found that plaintiff's testimony was admissible as evidence of the reasonable value of the medical services rendered; however, it did not find that this testimony alone was sufficient evidence of the reasonable need for those services. Moreover, in Pyles-Knutzen, one of plaintiff's treating physicians testified as to the permanency of plaintiff's injuries. Thus, in that case, the plaintiff met the threshold requirements by proving he had a permanent disability. See § 10-4-714(1)(c), C.R.S. (1987 Repl.Vol. 4A). We also reject plaintiffs' contention that the burden shifted to defendant to show that plaintiffs' medical services were unreasonable or unrelated to the accident. A plaintiff bears the burden of proving the elements of his or her case. See Exchange National Bank v. Sparkman, 191 Colo. 534, 554 P.2d 1090 (1976). And, although concededly, there is dictum in Pyles-Knutzen suggesting otherwise, we decline to depart from this long settled principle. In sum, the plaintiffs failed to prove a reasonable need for their medical services, and therefore, the court did not err in finding they had failed to meet the statutory *184 threshold as required to maintain their cause of action. Accordingly, the trial court correctly granted defendant's motion for a directed verdict. Finally, plaintiffs contend that the trial court erroneously excluded the testimony of their vocational rehabilitation expert. However, even assuming, arguendo, the trial court erred in this respect, we conclude that this expert's opinion would not have satisfied the threshold requirements of § 10-4-714. Thus, the court's error, if any, was without significance. II. On cross-appeal, defendant contends that the trial court erred in failing to award all costs incurred by defendant after plaintiffs rejected his offer of settlement. We disagree. Section 13-17-202(1)(a)(II), C.R.S. (1991 Cum.Supp.) provides that if a defendant makes an offer of settlement which is rejected by the plaintiff and the plaintiff thereafter does not recover a final judgment in excess of the amount offered, the court must award defendant actual costs accruing after the offer of settlement. Here, at the hearing on defendant's bill of costs, defendant requested actual costs of $4,472.90. However, the court found that certain of the costs were not reasonable and awarded defendant only partial costs. Defendant contends that the statute does not give the trial court discretion in awarding costs. The issue before us is one of first impression in Colorado: Whether § 13-17-202(1)(a)(II) requires a court to award defendants all of their actual costs, or just those costs that the court finds reasonable. We hold that § 13-17-202(1)(a)(II) requires only an award of reasonable costs. In interpreting a statute, a reviewing court must presume that the General Assembly intended a just and reasonable result and must seek to avoid an interpretation that leads to an absurd result. People v. Pflugbeil, 834 P.2d 843 (Colo.App.1992). The interpretation urged by defendant here would lead to unjust and absurd results because it would allow a defendant to incur unreasonable costs and then claim an entitlement to them. Accordingly, we hold that a court, in its discretion, may disallow costs which it finds unreasonable. See § 13-17-102, C.R.S. (1987 Repl.Vol. 6A) (trial court may award reasonable attorney fees); Cf. Dorrance v. Family Athletic Club, 772 P.2d 667 (Colo.App.1989) (awarding of costs pursuant to § 13-16-122, C.R.S. (1987 Repl. Vol. 6A) is at the discretion of the trial court). See also Fenton v. Fibreboard Corp., 827 P.2d 564 (Colo.App.1991) (trial court must make findings which establish the basis upon which it arrived at its determination of the reasonableness of defendant's costs). The judgment in favor of defendant and the order relative to defendant's costs are affirmed. SMITH and CRISWELL, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902636/	120 B.R. 178 (1990) In re CROUCH C STORES, INC., Crouch C Stores, Inc. II, Edward Leroy Crouch, and Patricia Rae Crouch, Debtors. Bankruptcy Nos. 89-21534-11 to 89-21536-11. United States Bankruptcy Court, D. Kansas. October 25, 1990. F. Stannard Lentz, of Lentz & Clark, Overland Park, Kan., for debtors. John P. Bennett, of Cloon & Bennett, Overland Park, Kan., for debtors. Richard C. Wallace, of Evans & Mullinix, Kansas City, Kan., for Unsecured Cred. Comm. Richard A. Wieland, Wichita, Kan., for U.S. Trustee. MEMORANDUM OPINION AND ORDER BENJAMIN E. FRANKLIN, Chief Judge. This matter comes on before the Court pursuant to the April 16, 1990, hearing on the Motion of Debtor, Patricia Rae Crouch, For Determination of Debtor's Joint Tenancy Interest. The debtors, Edward Leroy Crouch and Patricia Rae Crouch, appeared in person and by and through their attorneys, F. Stannard Lentz and John P. Bennett. The Unsecured Creditors' Committee appeared by and through its attorney, Richard C. Wallace. The United States Trustee appeared by and through Richard A. Wieland. FINDINGS OF FACT Based upon the parties stipulations, the pleadings and the record, this Court finds as follows: 1. That on December 7, 1988, Ida Louise Fenton, mother of debtor Patricia Rae Crouch, deeded certain real property, located in Johnson County, to herself, Patsy (Patricia) Crouch, John Fenton, and Barbara Burton as joint tenants and not as tenants in common. 179 2. That on April 20, 1989, the deed was recorded with the Recorder of Deeds of Johnson County, Kansas in Book 2973 at Page 180. 3. That on October 3, 1989, the debtors, Edward Leroy Crouch and Patricia Rae Crouch (Patsy Crouch), and their corporations filed for relief under Chapter 11 of the Bankruptcy Code. 4. That on November 23, 1989, the debtor, Patsy Crouch filed her Notice of Intended Sale of Joint Tenancy, said notice stating that Mrs. Fenton had contracted to sell the property for $50,000. 5. That on December 11, 1989, the Objection of the Unsecured Creditors Committee to the Intended Sale of Joint Tenancy was filed with this Court. Said objection was not to the sale of the property but to the disclaimer by Patsy Crouch of the proceeds from the sale. 6. That on December 12, 1989, a hearing was held on the Notice of Intended Sale and after hearing the arguments of counsel this Court authorized the sale. Both parties had agreed to allow the sale to proceed provided that one-fourth of the proceeds (the purported one-fourth joint tenancy share of Patsy Crouch) were placed in an interest-bearing escrow account at Merchants Bank of Kansas City in the name of the debtors and the Unsecured Creditors Committee. Funds from this account would not be released without the specific consent of the debtors and the chairman of the Unsecured Creditors Committee or by specific order of this Court. An Amended Agreed Order was signed by the Court on January 12, 1990. 7. That the real property was sold by Mrs. Fenton. 8. That prior to the sale of the real property, it was the personal residence of Ida Louise Fenton (the mother of Patricia Rae Crouch, John Fenton and Barbara Burton), said property having been purchased 30 years ago by Mrs. Fenton and her now deceased husband. The purchase price of the property had been paid in full by the Fentons. 9. That on December 21, 1989, pursuant to an agreed order three-fourths of the net proceeds from the sale of the real property were released to the other joint tenants. The remaining one-fourth interest is being held in an interest bearing account at Merchants Bank of Kansas City in both the names of the debtors and the Unsecured Creditors' Committee, pending the outcome of this matter. 10. That at the time of the sale Ida Fenton was 85 years old and supported by a social security pension in the approximate amount of $300 per month. It was Mrs. Fenton's expectation that the proceeds from the sale of the property would be used as her support for the remainder of her life. 11. That the debtors gave no consideration for the one fourth interest that was deeded to her (Patricia Crouch). The addition of the debtor Patricia, and Mrs. Fenton's other children was made for purposes of estate planning and avoiding probate. Mrs. Fenton alleges that it was not intended at the time as a gift of present interest but was deeded at the suggestion of an attorney. 12. That on March 15, 1990, the debtor, Patsy Crouch, filed her motion for determination of her interest, if any in the property. 13. That on April 16, 1990, a hearing was held on the debtor's motion and after hearing the arguments of counsel this Court took the matter under advisement upon the parties filing their Stipulations of Facts and Memorandums of Law. CONCLUSIONS OF LAW Section 541(d) of 11 U.S.C. states as follows: Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a)(1) or (2) of this 180 section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. Although it appears from the foregoing that since the daughter had legal title when this petition was filed it would result in her interest becoming property of the estate, the Court finds that this case is an exception to that rule and finds in fact, that the property involved herein was not property of the estate for reasons hereinafter set out. As a general rule, legal and equitable interests in property must be determined by state law. Butner v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed. 2d 136 (1979) ("Property interests are created and defined by state law..... [T]here is no reason why such results should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." Id. at 57, 99 S. Ct. at 918). Thus, this Court must look to the laws of the State of Kansas to determine the debtor's interest and the estate's interest in the jointly held property. Under Kansas law a joint tenancy creates the presumption of equal ownership amongst the parties. See K.S.A. 58-501. However, this is a rebuttal presumption and the burden of proof is on the party attacking the equal ownership presumption. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 574 P.2d 1382 (1978). Anyone attacking equal ownership should assume the burden of proof, and this includes the debtor herein. In Duston v. Duston, 31 Colo. App. 147, 498 P.2d 1174, 1175 (1972) the Court found: Grantees under a joint tenancy deed are presumed to own equal shares in the property conveyed. . . . However, this presumption is rebuttable. . . . Further, parol evidence is admissible to overcome the presumption. . . . The determination as to whether the presumption was overcome by the evidence is a question of fact for the trial court. One factor that the Court must consider is which party provided the purchase price. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 574 P.2d 1382, 1384 (1978). In the case at bar, the parties have stipulated that no consideration was given to Patsy Crouch's mother for the creation of the joint tenancy deed in her residence; and that the joint tenancy was not created as a gift of a present interest at the time of its creation. The parties further stipulated that Mrs. Fenton and her husband purchased the property some 30 years ago and the same is paid in full; that the joint tenancy was created as an estate planning device to avoid probate; and, Mrs. Fenton, at the time of the sale of her residence intended that the proceeds be used to support her for the remainder of her lifetime. Thus, the Court finds that based upon the evidence presented and the stipulations of the parties, the joint tenancy created between Ida Louise Fenton (mother), Patsy (Patricia) Crouch, John Fenton and Barbara Burton was not an equally owned joint tenancy. The Court further finds that the debtor, Patsy Crouch owns no equitable interest in her mother's property and that the debtor has merely a bare legal title to the property. United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S. Ct. 2309, 76 L. Ed. 2d 515 (1983) ("The legislative history to [§ 541(a)(1)] indicates that Congress intended to exclude from the estate property of others in which the debtor had some minor interest such as a lien or bare legal title." Id. at 204 n. 8, 103 S. Ct. at 2313 n. 8); Cf. In re Granada, Inc., 92 B.R. 501 (Bankr.D.Utah 1988) ("Had the Partnership's [unrecorded equitable] interest been of public record, § 541(d) would operate to limit property of the estate to bare legal title." Id. at 510) (In Granada, the Bankruptcy Court was asked to quiet title in real property that the debtor was record fee title holder on the date the bankruptcy petition was filed. The Court held that under § 544 the Chapter 11 trustee took title to the real property free of any unrecorded equitable interest of a limited partnership in the property. Id.). In this case, the interest was recorded. *181 This Court further finds that the monies being held in the interest bearing escrow account consisting of one-fourth of the net sale proceeds should be released to Ida Louise Fenton in that the proceeds are not property of the bankruptcy estate. IT IS THEREFORE, BY THE COURT, ORDERED That debtor Patricia Crouch's joint tenancy interest is only a bare legal title in the proceeds now being held in escrow and as such she holds no equitable interest in the proceeds from the sale of the property; hence, the bankruptcy estate has no interest in the proceeds. IT IS FURTHER, BY THE COURT, ORDERED That the proceeds currently being held in an interest bearing escrow account be turned over to Ida Louise Fenton. This Memorandum shall constitute my Findings of Fact and Conclusions of Law under Bankruptcy Rule 7052 and Rule 52(a) of the Federal Rules of Civil Procedure.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615079/	668 P.2d 544 (1983) In the Matter of the DISCONNECTION OF CERTAIN TERRITORY FROM HIGHLAND CITY. No. 18191. Supreme Court of Utah. July 12, 1983. 545 Vernon B. Romney, Salt Lake City, for appellant. Bryce E. Roe, Salt Lake City, John C. Backlund, Provo, for respondent. OAKS, Justice: This is an appeal from an order of disconnection. Appellant Highland City (also known as Highland Town) seeks a new trial, arguing that the district court erred in (1) holding that justice and equity require disconnection; (2) failing to consider all the evidence produced at trial; and (3) refusing either to amend its findings and the order of disconnection or to grant the City a new trial on newly discovered evidence. (4) Additionally, the City contends in oral argument that statutory amendments enacted after the district court's decision apply retroactively and require a new trial. Appellant Highland City is a third-class city, located in northern Utah County between Alpine on the north and American Fork on the south. It contains a total of approximately 2,142 acres, including the 131-acre area contested here. The disputed acreage forms a rectangular peninsula extending east of the main part of the City. This petition to disconnect was filed June 2, 1978, by the owners of the 131 acres: Gibbons Realty Company, Utah Power and Light Company, and various members of the Hayes family. Gibbons Realty Company, which owns or controls most of this property, had made known its intention to begin sand and gravel extraction and to establish a concrete products plant on its property if the area were disconnected and returned to county control. The City opposed the petition, largely because of its residents' fears that such operations would seriously threaten their quality of life. The district court took evidence at trial on February 11 and 29, 1980, and entered a memorandum decision on August 28, 1980, that the area should be disconnected. A commission was then appointed in accordance with U.C.A., 1953, § 10-2-502, which conducted a public hearing. After receiving the commissioners' report, the district court entered an order on November 4, 1981, granting the petition to disconnect. After denial of its motion for a new trial or amended judgment, the City took this appeal. 1. Justice and equity. The statutes governing disconnection provide that a district court may order land disconnected from a municipality if it finds "[1] that the petition [for disconnection] was signed by a majority 546 of the registered voters of the territory concerned and [2] that the allegations of the petition are true and [3] that justice and equity require the territory ... to be disconnected from the municipality... ." § 10-2-502. The first two requirements are undisputed: no registered voters (nor any other persons) reside in the territory concerned, the petitioners constitute all of the owners of the property in the territory and are therefore entitled to file a petition for disconnection, § 10-2-501, and the City does not challenge the district court's finding that the allegations in the petition are true. However, the City does contend that the district court erred in concluding that justice and equity require disconnection. The determination of what constitutes "justice and equity" turns on the facts of each individual case. Once the district court has ruled on a petition for disconnection, its findings will not be disturbed unless clearly erroneous. In re Disconnection of Territory and Restriction of the Corporate Limits of Draper, Utah, 646 P.2d 699, 701 (1982); Continental Bank & Trust Co. v. Farmington City, Utah, 599 P.2d 1242, 1247 (1979). We have concluded that the findings in this case are not clearly erroneous. The entire area is vacant and unimproved except for lights, a pond, and picnic areas. The only roads in the area are two highways maintained by the state and some private roads built and maintained by the property owners. The City has zoned the area as residential property, but none has been used for that purpose. There are no sidewalks and no subdivisions platted on the City map. Although City authorities testified that the City wanted to use the area as a park or cemetery, no master plan had officially set it aside for such uses. The district court found that there were no publicly owned and operated water mains or water services in the disputed area; the City has no water system. At the time this proceeding was commenced, the City had no sewer system. The City subsequently tied into a regional sewer system, which, at the time of trial, served an elementary school and some homes from a trunk line on the western side of the City, remote from the contested area. No lateral sewer connections had been extended into the contested area, and there were no plans to do so. The district court found that law enforcement would be the same whether the contested area was part of the county or part of the City and that disconnection would not burden the City with any added expense for law enforcement. (The City has no police force of its own but contracts with the Utah County Sheriff and his deputies to serve as the city marshall and assistant marshalls.) The court found that disconnection would reduce the City's expense for fire protection by eliminating its contractual obligation for the contested area. (The City has no fire department, but obtains fire protection under contract with Alpine City.) The City provides no garbage disposal; the residents receive this service by contract with a private company. Although disconnection would remove the contested area from the City's zoning authority and place it under the aegis of the county, the district court found that zoning restrictions on the property would remain essentially the same. Finally, the district court found that disconnection would create no islands or peninsulas within the City's boundaries that would make it more expensive or difficult to provide municipal services to the area remaining after disconnection. Being supported by sufficient evidence in the record, none of these findings was clearly erroneous. In total, they provide an ample basis for the district court's conclusion that "justice and equity" required the disputed territory to be disconnected from the municipality. 2. Evidence of quality of life. Many witnesses for the City testified that they were opposed to further industrialization of the City[1] and that if the contested area 547 were disconnected and used for sand and gravel extraction, the quality of the City's air and water would be reduced, noise and dust would increase, property values would be threatened, and the residents' lifestyles would be damaged. Witnesses for neighboring intervenor cities testified that their cities would also be adversely affected. The City's mayor testified concerning various uses the City intended to make of the disputed area in the future, including a park and a cemetery, a sewer line, a water tower, and a holding pond. He also stated that if the area were disconnected, it would be difficult for the City to protect the peace, health, and safety of its residents. The district court heard all of this evidence, but concluded that much of it was irrelevant to a determination of whether disconnection should be granted. The court ruled that "the only evidence legally relevant in these proceedings is that which relates to the criteria for disconnection as set forth [in Section] 10-2-503." The City terms this an erroneous ruling that can only be corrected by a new trial. Historically, the only statutory criteria for disconnection of territory from a municipality was that it be required by "justice and equity." U.C.A., 1953, § 10-4-2 (now codified at § 10-2-502 (Supp. 1981)). Decisions interpreting that standard have uniformly turned on what municipal services, improvements, or other benefits the territory received from the city; the tax base and revenue the territory provided to the city and the financial impact of its loss by disconnection; the effect of disconnection on the city's continued growth, financial health, and administration; and the economic interdependency of the city and the territory. In re Disconnection of Territory from Layton City, 27 Utah 2d 241, 494 P.2d 948 (1972); Kennecott Copper Corp. v. City of Bingham Canyon, 18 Utah 2d 60, 415 P.2d 209 (1966); Howard v. Town of North Salt Lake, 7 Utah 2d 278, 323 P.2d 261 (1958); In re Peterson, 92 Utah 212, 215-16, 66 P.2d 1195, 1197 (1937); In re Chief Consolidated Mining Co., 71 Utah 430, 266 P. 1044 (1928) (denying disconnection); Christensen v. Town of Clearfield, 66 Utah 455, 243 P. 376 (1926); In re Fullmer, 33 Utah 43, 45-46, 92 P. 768, 768-69 (1907); Young v. Salt Lake City, 24 Utah 321, 327, 67 P. 1066, 1066 (1902). In 1971, the Legislature enacted specific economic and practical criteria to be applied by the courts in making determinations relating to disconnection of areas from municipal corporate limits. Disconnection of Territory from Municipalities, ch. 10, 1971 Utah Laws 26. We have held that these criteria, which (as slightly amended in 1977) appear in § 10-2-503, "are relevant in determining whether a disconnection would be consistent with justice and equity and sound principles of city planning." In re Disconnection of Territory and Restriction of the Corporate Limits of Draper, 646 P.2d at 702. In the present case, the district court interpreted these statutory criteria (which are consistent with the economic and practical criteria specified in the earlier cases cited above) as constituting, in effect, an exhaustive definition of the "justice and equity" standard specified in § 10-2-502. That interpretation is consistent with our application of the statute in cases decided since its adoption. Id.; Continental Bank & Trust Co. v. Farmington City, supra. In opposition, the City relies on the statutory language that requires the district court to consider the effect of disconnection on various municipal services, "among other factors." § 10-2-503. The City contends that the concerns and desires of its residents for their lifestyle constitute such "other factors," which the district court was therefore required to consider in making its decision. We have often stated that in interpreting statutory language, "care must be taken to construe the words used in light of the total context of the legislation." Cannon v. McDonald, Utah, 615 P.2d 1268, 1270 (1980); Crist v. Bishop, Utah, 520 P.2d 196, 198 (1974). See also Osuala v. Aetna Life & Casualty, Utah, 608 P.2d 242, 243 (1980). Where general language such as "other factors" is used together with specific words like the list of municipal services 548 contained in § 10-2-503, familiar rules of construction (noscitur a sociis, "it is known from its associates," and ejusdem generis, "of the same kind") require that the general words be restricted to a sense analogous to the specific words. Lark v. Whitehead, 28 Utah 2d 343, 345, 502 P.2d 557, 559 (1972); Heathman v. Giles, 13 Utah 2d 368, 369-70, 374 P.2d 839, 840 (1962); Sutherland, 2A Statutes and Statutory Construction §§ 47.16, 47.17 (C. Sands 4th ed. 1973); 82 C.J.S. Statutes §§ 331, 332 (1953). Hence, the "other factors" the district court is required to consider under § 10-2-503 are those factors bearing on the city's ability to continue to provide services to the residual area akin to those specifically listed or on considerations related to that ability, such as tax base, tax revenue, and irregular city boundaries. This interpretation is not contrary to the direction that the officers of the municipality or any interested person "may appear before the court and contest the granting of the petition for disconnection by presenting the evidence as they deem relevant." § 10-2-501. This statute merely assures that all points of view will be fully heard on the question of disconnection and that the court will have unrestricted access to any and all information which may possibly bear on the statutory criteria it is required to apply. But, having received the widest possible range of evidence, the court must nevertheless reach its decision on the basis of the considerations the statute makes relevant to disconnection proceedings.[2] 3. Retroactivity of recent legislation. In any event, the City argues, the district court's decision was erroneous because of amendments to §§ 10-2-501 and 10-2-503 passed in the 1983 General Legislative Session. House Bill 88, titled "An Act ... Providing for a Burden of Proof and Additional Criteria in Hearings for Disconnection of Territory from a Municipality," added the underscored language, so these sections now read in pertinent part as follows: 10-2-501... . The question of disconnection shall be tried before the district court in the same manner as civil cases are tried... . The burden of proof in disconnection proceedings is on the petitioner and is by a preponderance of the evidence. 10-2-503... . The court shall consider [among other] all relevant factors including, but not limited to, the effects of the disconnection on the following: the city or community as a whole, adjoining property owners, existing or projected streets or public ways, water mains and water services, sewer mains and sewer services, law enforcement, zoning and other municipal services and whether or not the disconnection will result in islands or unreasonably large or varied-shaped peninsular land masses within or projecting into the boundaries of the municipality from which the territory is to be disconnected. These amendments, which appear to have some relationship to this litigation,[3] became effective May 1983, eighteen months after the decision challenged in this appeal. Nevertheless, the City argues that the amendments apply retroactively and require a new trial. It relies on Okland Construction Co. v. Industrial Commission, Utah, 520 P.2d 208, 210-11 (1974), in which we stated that the judicial policy against retroactive laws "has no application where the later statute or amendment deals only with clarification or amplification as to how the law should have been understood prior to its enactment." However, the amendments in this case do not merely "clarify" or "amplify" how the earlier law should have been understood. They alter the substantive law governing disconnection by creating new factors the district court must consider in making its decision. The 549 amendments constitute a fundamental change in the substantive law on which both sides relied in preparing and presenting their cases and which the district court applied in reaching its decision. As we said of a similar amendment in In re J.P., Utah, 648 P.2d 1364, 1370 n. 4 (1982), "Changes of this magnitude do not fit within the relatively narrow exception" illustrated by the Okland Construction case. Nor is this a case like Pilcher v. State Department of Social Services, Utah, 663 P.2d 450 (1983), or State Department of Social Services v. Higgs, Utah, 656 P.2d 998 (1982), or the cases they cite, where "a statute changes only procedural law by providing a different mode or form of procedure for enforcing substantive rights." Pilcher, 663 P.2d at 455. Here, the amendment dealt with the substantive rights of the parties because it changed the substantive criteria for decision. "The well-established general rule is that statutes not expressly retroactive should only be applied prospectively." In re J.P., 648 P.2d at 1369 n. 4, and authorities cited; U.C.A., 1953, § 68-3-3; 73 Am.Jur.2d Statutes § 349 (1974). There being no provision to the contrary in this circumstance and the amendment being substantive rather than procedural, the general rule governs, and the 1983 amendments do not apply to this case. 4. Newly discovered evidence. Finally, the City contends that the district court erred in refusing either to amend its findings and the order of disconnection or to grant a new trial on the basis of newly discovered evidence of the City's annexation of property adjoining the contested area. On September 17, 1981, over a year after the court's decision that the area should be disconnected, the City advised the court that it had annexed the "Kjar property." This property, which contained approximately 80 acres, adjoined the disconnected property on the east, forming a further extension of that same peninsula. When the district court entered its findings of fact and conclusions of law and its final order of disconnection on November 4, 1981, on the basis of the evidence at trial and the commission's report, the court did not mention the annexation of the Kjar property. Claiming "newly discovered evidence," the City then moved for a new trial or an amended judgment under Utah R.Civ.P. 59(a)(4) in order to present evidence of its changed boundaries. The City contended that, after the Kjar annexation, disconnection of the disputed area would leave the Kjar property as an island, completely separated from the rest of the City. The motion for new trial was denied. To be entitled to a new trial or an amended order under Utah R.Civ.P. 59(a)(4), the movant must show "[n]ewly discovered evidence ... which he could not, with reasonable diligence, have discovered and produced at the trial." The City's motion did not meet this requirement.[4] Newly discovered evidence must relate to facts which were "in existence at the time of the trial." Campbell v. American Foreign S.S. Corp., 116 F.2d 926, 928 (2d Cir.1941). A motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial. Patrick v. Sedwick, Alaska, 413 P.2d 169, 177 (1966); City and County of Honolulu v. Ambler, 1 Haw. App. 589, 592, 623 P.2d 92, 94 (1981); Fox v. First Western Savings & Loan Association, 86 Nev. 469, 473-74, 470 P.2d 424, 427 (1970); Sullivan v. Hoffman, 207 Neb. 166, 173, 296 N.W.2d 707, 712 (1980). If the rule were otherwise, there would be no end to litigation. Campbell v. American Foreign S.S. Corp., supra; Rogers v. Ogg, 101 Ariz. 161, 416 P.2d 594 (1966); In re Monson, 180 Neb. 818, 823, 146 N.W.2d 198, 201 (1966). 550 In this case, the annexation of the Kjar property was a fact that occurred and was submitted to the district court over a year after trial and entry of the memorandum decision of disconnection. The court's refusal to grant a new trial or reopen and amend its judgment on that basis was not such "a manifest abuse of discretion" as to require reversal. Doty v. Town of Cedar Hills, Utah, 656 P.2d 993, 995 (1982); Schmidt v. Intermountain Health Care, Inc., Utah, 635 P.2d 99, 101 (1981). Judgment affirmed. Costs to respondents. HALL, C.J., and HOWE and DURHAM, JJ., concur. STEWART, Justice: (concurring) I concur in the majority opinion in all respects. However, I think it important to add one additional observation. U.C.A., 1953, § 10-2-502 requires that a petition for disconnection be signed by a majority of the registered voters in the territory to be disconnected. In the instant case, the area to be disconnected was not inhabited, and the petition was not signed by any registered voter of the area in question. For that reason, it would appear to me that the petition for disconnection was probably not valid on its face. I make this point simply because in my view it is important that the disconnection statute be construed to support sound principles of city planning. The requirement that the petition be signed by a majority of registered voters who live in the area was no doubt intended to prevent absentee landowners from seeking to circumvent city planning and zoning laws by having odd chunks of land disconnected from the city. In the instant case, however, the appellant has failed to raise the issue on appeal, and pursuant to the accepted standards of judicial review, that issue is not before us. NOTES [1] An existing operation within the City extracted about 200,000 tons of ash rock annually. [2] Residents' concerns for their health, safety, property values, and quality of life can be pursued through the zoning powers conferred on cities and counties. See §§ 10-9-1 to -18; §§ 17-27-1 to -27. [3] The bill was sponsored by Representative Donald R. LeBaron, who, at the time of the proceedings challenged here, was also serving as mayor of Highland City. [4] Our decision on this requirement makes it unnecessary to discuss other requirements under rule 59(a)(4), such as that the evidence "be of sufficient substance that there is a reasonable likelihood that with it there would have been a different result." Gregerson v. Jensen, Utah, 617 P.2d 369, 372 (1980).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874593/	889 So. 2d 1075 (2004) STATE of Louisiana v. Jo E. COWDEN. No. 2004-KA-707. Court of Appeal of Louisiana, Fifth Circuit. November 30, 2004. 1078 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee. Salvador G. Longoria, Michele Gaudin, New Orleans, LA, for Defendant/Appellant. 1079 Panel composed of Judges EDWARD A. DUFRESNE, Jr., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD. WALTER J. ROTHSCHILD, Judge. On November 25, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jo E. Cowden, with third offense DWI in violation of LSA-R.S. 14:98(D). Defendant was arraigned on December 16, 2003 and pled not guilty. On February 5, 2004, the case was tried before a six-person jury which found defendant guilty as charged. Defendant filed a combined motion for post-verdict judgment of acquittal and motion for new trial, which was denied on March 1, 2004. On that same date, the trial court sentenced defendant to imprisonment at hard labor for two years, suspended all but 30 days of that sentence, and imposed a fine of $2,000 with all but $750 suspended. The trial court also placed defendant on active probation for three years.[1] Defendant filed a motion for appeal that was granted. FACTS Andrew Claverie, age 20 at the time of the incident, testified that, on January 20, 2003, he and his father, also named Andrew Claverie, were performing service work on a pool behind a house on Central Avenue.[2] Although his father had parked his truck in front of the customer's house, part of it was blocking the neighbor's driveway. Claverie noticed that a woman was walking around next door, but he did not get a good look at her and would not be able to recognize her. Claverie asked his father if he could move the truck because it was blocking the woman's driveway. Once he got permission, Claverie got into the truck and the woman approached. Claverie told her that he was going to move the truck, but she yelled at him and told him that "this is illegal" and "this is not right of him to do this." He assumed she was referring to the truck being in front of her driveway. Claverie put the truck in reverse and backed it up. As he put the truck into park, he heard a noise. He thought that he had hit something, so he turned off the engine. As he got out of the truck, he heard the noise again. Claverie looked over the neighbor's fence and saw that the woman was in her vehicle spinning her tires, and the rear of the vehicle was scraping against her house. Claverie looked over again and saw that the woman was backing her vehicle down the driveway. He testified that the woman stopped the vehicle right before the sidewalk at the end of her driveway and got out. She began yelling at Claverie again, so he walked into the backyard of the customer's house. The woman followed him. Claverie testified that the woman started kicking the fence, so he asked the customer's son to go and get his father. He complied, and the owner of the house came outside. Claverie told his father, 1080 Andrew Claverie, Sr., what he had observed. Thereafter, the police arrived. Claverie never spoke to a police officer regarding what he saw that day. Claverie testified that he did not give a statement to the officers, and that the signature on the statement shown to him at trial was not his, but looked like his father's. He stated that his father was 45 years old. Jefferson Parish Sheriff's Officer K.K. Karanja testified that, on January 20, 2003, at approximately 3:19 p.m., he responded to a 911 call from 320 Central Avenue. He stated that another 911 call came in approximately one minute later from defendant at 316 Central Avenue. Defendant told the operator that her next door neighbor had hit her and "roughed her up." When Officer Karanja arrived at 320 Central Avenue, the homeowner advised him that he was having a problem with his neighbor at 316 Central Avenue, and that she refused to get off his property. Officer Karanja saw a vehicle next door in the driveway of 316 Central Avenue and a person in the vehicle. He spoke to "Andy" who gave him information regarding what had transpired. Officer Karanja went to the vehicle next door and observed that it was running. He told the woman, later identified as defendant, to turn off the vehicle and to step out, but got no response. Officer Karanja repeated his commands and then opened the door and told defendant to get out of the vehicle. She got out of the vehicle, but did not turn off the engine, so Officer Karanja turned off the engine and removed the keys. Officer Karanja asked defendant some questions, but he did not understand most of her responses because she was slurring her words. Defendant told him she was having problems with her neighbor. He explained that defendant was using profanity and a loud tone of voice, and that her attitude was very aggressive and combative. Officer Karanja testified that, when defendant got out of the vehicle, she was staggering, had problems standing, and was balancing herself on the door of her vehicle. He explained that he thought defendant might be under the influence of alcohol and/or drugs because her eyes were extremely bloodshot, her speech was slurred and incoherent, and she had to hold on to the vehicle for balance. Officer Karanja testified that he took a statement from Claverie's father who told him what Claverie had seen that day, but he did not indicate that the statement was being given to him by someone other than Claverie. Officer Karanja testified that it was his understanding when he arrested defendant that she had been driving down Central Avenue in reverse. Jefferson Parish Sheriff's Officer Dominic Imbornone testified that he reported to 320 Central Avenue in response to a request by Officer Karanja for a traffic officer. He observed defendant, whom he positively identified in court, leaning on the back of a police car. Officer Imbornone suspected that defendant was under the influence of alcohol or drugs because she stuttered her words, could not speak "proper English," had bloodshot eyes, a strong odor of alcoholic beverage on her breath, and was unable to balance herself or walk without swaying. He asked defendant to perform field sobriety tests, but she would not comply. Defendant was then arrested for DWI and reckless driving. Officer Imbornone testified that he asked defendant to sign an arrestee's form related to Miranda[3] rights and the Intoxilyzer test, but that she 1081 would not sign it. He stated that defendant was belligerent and refused to cooperate with the investigation. At trial, Lieutenant Patricia Adams, a qualified expert in the field of taking and examining latent fingerprints, testified that she took defendant's fingerprints that day and compared them to fingerprints on a certified copy of a bill of information in case No. 350157 in the 22nd Judicial District Court charging defendant with second offense DWI that occurred on March 30, 2002. The State also introduced a minute entry pertaining to defendant's guilty plea to second offense DWI in case No. 350157 in the 22nd Judicial District Court. Lt. Adams testified that both sets of fingerprints were made by the same person, defendant. The State then introduced into evidence: certified copies of minute entries, a bill of information charging defendant with DWI that occurred on November 11, 2001, a guilty plea form, and a copy of fingerprints in case No. F1402400 from First Parish Court in Jefferson Parish; a fingerprint card showing a date of arrest of November 11, 2001; and a copy of a suspect rap sheet showing a booking date of November 11, 2001. Lt. Adams testified that the fingerprints taken from defendant that day were made by the same person whose fingerprints were on the fingerprint card showing an arrest date of November 11, 2001. Defendant did not call any witnesses. DISCUSSION On appeal, the defendant asserts nine assignments of error. When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, such as the erroneous admission of evidence, the reviewing court should first determine the sufficiency of the evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted. State v. Hearold, 603 So. 2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Accordingly, defendant's assignments of error numbers eight and nine will be addressed first, because they involve sufficiency of the evidence. In assignment of error number eight, defendant argues that the trial court erred in denying her motion for judgment of acquittal, because the totality of the evidence was insufficient to support the verdict. In assignment of error number nine, defendant asserts that the State failed to meet its burden of proof, because Andy Claverie could not identify Jo Cowden as the driver. The State responds that the evidence was sufficient to support the conviction. The standard for appellate review of the sufficiency of evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Lapell, 00-1056 (La.App. 5 Cir. 12/13/00), 777 So. 2d 541, 545, writ denied, 01-0439 (La.1/4/02), 805 So. 2d 1192. Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of 1082 the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So. 2d 372, 378 (La.1982). Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So. 2d 922, cert. denied, 524 U.S. 943, 118 S. Ct. 2352, 141 L. Ed. 2d 722 (1998). Defendant was convicted of third offense DWI, a violation of LSA-R.S. 14:98. At the time of the underlying offense, LSA-R.S. 14:98 provided, in pertinent part: A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when: (a) The operator is under the influence of alcoholic beverages; or (b) The operator's blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or (c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964. In order to convict an accused of driving while intoxicated, the prosecution need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Bourgeois, 00-1585 (La.App. 5 Cir. 3/14/01), 785 So. 2d 848, 853. To convict a defendant of driving while intoxicated, third offense, the State must also show that the defendant had two other valid convictions. LSA-R.S. 14:98(D). It is not necessary that a DWI conviction be based upon a breath or blood alcohol test; the observations of the arresting officer may be sufficient to establish the defendant's guilt. State v. Landry, 01-0784 (La.App. 4 Cir. 12/12/01), 804 So. 2d 791, 794. Intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify, and some behavioral signs, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. Bourgeois, supra at 853. What behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Id. In the instant case, Andrew Claverie, Jr. testified that he observed a woman in a vehicle, spinning the tires in her driveway, scraping the vehicle up against her house, and then backing the vehicle down to the sidewalk. Both Officers Karanja and Imbornone testified that defendant exhibited signs of being under the influence of alcohol and/or drugs. Officer Karanja explained that defendant had bloodshot eyes, that her speech was slurred, and that she was staggering and could not keep her balance while standing. Officer Imbornone testified that he suspected defendant was under the influence of alcohol or drugs, because she stuttered her words, had bloodshot eyes, a strong odor of alcoholic beverage on her breath, and was unable to balance herself or walk without swaying. The testimony of Lieutenant Adams, along with the exhibits submitted by the State, established that defendant had two other valid DWI convictions. With respect to identity, defendant is correct that Claverie could not identify her as the person who operated the vehicle. However, when combined with the other testimony elicited at trial, the jury could have reasonably inferred that defendant was the operator of the vehicle. The evidence showed that defendant lived at 316 Central Avenue and that the Claveries were working at 320 Central Avenue. Claverie indicated that the woman at 316 Central Avenue got into her vehicle 1083 and backed down the driveway. Officer Karanja testified that a 911 call came in from 320 Central Avenue, and another 911 call came from 316 Central Avenue from a woman who told them that her next door neighbor had hit her. The homeowner at 320 Central Avenue told Officer Karanja upon his arrival that he was having a problem with his neighbor. When Officer Karanja walked next door to 316 Central Avenue to investigate, he discovered a woman, whom he positively identified in court as defendant, sitting in her vehicle with her hands on the steering wheel and with the engine running. When she exited the vehicle, he noticed signs of intoxication. After learning from Claverie's father that Claverie had seen her operating the vehicle, he arrested defendant for DWI. It is not the function of the appellate court to second-guess the credibility determinations of the trier of fact or to re-weigh the evidence. State ex rel. Graffagnino v. King, 436 So. 2d 559, 563 (La.1983); State v. Carter, 98-24 (La. App. 5 Cir. 5/27/98), 712 So. 2d 701, 708, writ denied, 98-1767 (La.11/6/98), 727 So. 2d 444. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So. 2d 1052, 1056. Considering the testimony and evidence in this case, we find that the jury could have found beyond a reasonable doubt that the evidence was sufficient to support the conviction and that any reasonable probability of misidentification was negated. Accordingly, the trial court did not err in denying the motion for post-verdict judgment of acquittal based on those grounds. In her first assignment of error, defendant contends that the trial court erred in prohibiting defense counsel from cross-examining the State's witnesses concerning proffered Defense Exhibits D-1, D-4, D-5, and D-6, and by repeatedly sustaining the prosecution's hearsay objection, which was legally erroneous. She contends that these exhibits were not hearsay, because the exhibits contained prior statements by the witness. Defendant also argues that these exhibits were admissible to attack the credibility of the witness, and they would have proven that she was arrested based on the false allegation that she was driving while intoxicated on Central Avenue. The State responds that the exhibits were properly excluded by the trial court because they contained hearsay. Alternatively, the State argues that any error in the exclusion was harmless. During the cross-examination of Andrew Claverie, Jr., defense counsel showed the witness Defense Exhibit D-1, a Jefferson Parish Sheriff's Office Voluntary Statement from Andy Claverie. He asked Claverie whether he had ever seen that statement before, and Claverie said he had not. When defense counsel asked Claverie to read the document to the jury, the State objected. The trial court sustained the objection based on improper foundation. When questioning resumed, defense counsel asked Claverie whether it was his signature at the bottom of D-1, to which Claverie replied that it was not his, but that it looked like his father's. The State objected to any further questions regarding the matter. The trial court sustained the objection and told defense counsel that he could not cross-examine Claverie with something that was not his statement. During the cross-examination of Officer Karanja, the officer identified his signature on D-1. When defense counsel began reading the document to the officer, the State objected based on hearsay. The trial court sustained the objection and told defense counsel that it was hearsay within hearsay. Defense counsel began reading 1084 the document again, and the State objected. The trial court sustained the objection and told defense counsel again that it was hearsay. Defense counsel later showed Officer Karanja Defense Exhibit D-5, the arrest register. When defense counsel started reading from the document, the State objected, and the trial court sustained the objection based on hearsay. Defense counsel asked a question regarding the probable cause affidavit, Defense Exhibit D-6; however, the State objected based on hearsay, which the trial court sustained. The trial court added that every document defense counsel had referred to involved an out-of-court statement made by a declarant who was not on the stand and, therefore, the documents in question were inadmissible. After the State rested its case, defense counsel proffered D-1, D-4, D-5, and D-6. Defense counsel said that she wanted to introduce the exhibits to show that the arrest was based on erroneous statements that defendant was driving down the street, as opposed to her driveway. Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801(C). Hearsay evidence is not admissible except as specified in the Louisiana Code of Evidence or other legislation. LSA-C.E. art. 802; State v. Hartwell, 03-1214 (La.App. 5 Cir. 1/27/04), 866 So. 2d 899, 905, writ denied, 04-0448 (La.6/25/04), 876 So. 2d 832. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So. 2d 454, 460 (La.1984); State v. Sarrio, 01-543 (La.App. 5 Cir. 11/27/01), 803 So. 2d 212, 223, writ denied, 02-0358 (La.2/7/03), 836 So. 2d 86. In the instant case, Claverie testified at trial that he observed defendant backing her vehicle down the driveway and stopping right before the sidewalk at the end of her driveway. He further testified that he did not see defendant driving down the street. Defense counsel sought to impeach Claverie with D-1, his purported statement, which provided that Claverie observed defendant driving southbound on Central Avenue towards River Road. However, Claverie testified that he had never seen D-1 before, that the signature at the bottom of D-1 was not his, that the signature appeared to be that of his father, and that he never spoke to a police officer about what had occurred. Additionally, Officer Karanja corroborated this when he testified that he took the statement from Andrew Claverie, Sr., who relayed to him what his son, Andrew Claverie, Jr., had told him regarding the incident. The trial court was correct in refusing to allow defense counsel to impeach Claverie with D-1, because the statements in D-1 were not made by Claverie, but by his father, Claverie, Sr. The trial court was also correct in preventing defense counsel from using the statement during the testimony of Officer Karanja. The statements made by Claverie, Sr. to the officer were hearsay, because they were made by someone other than the officer who was testifying at trial, and they were offered in evidence to prove the truth of the matter asserted, i.e., that Claverie told his father that defendant was driving down the street. Further, the statement is not a "business record" that is admissible under the business records exception to the hearsay rule, per LSA-C.E. art. 803(8)(b), as argued by defense counsel at trial. With respect to the Louisiana Uniform DWI Arrest Report (D-4), the Arrest Register (D-5), and the Probable Cause Affidavit (D-6), those exhibits were prepared 1085 by Officer Imbornone, not Officer Karanja. Each of those documents contained hearsay that Claverie observed defendant spinning her tires in front of 320 Central Avenue and driving across her front yard. We find that the trial court did not err in refusing to admit the proffered exhibits into evidence, in refusing to allow defense counsel to cross-examine the State's witnesses concerning these exhibits, or by repeatedly sustaining the prosecutor's hearsay objections. Furthermore, even if the trial court had erred by excluding the exhibits and the testimony related to them, it was harmless because the guilty verdict was clearly not attributable to such an error, but to the overwhelming evidence of defendant's guilt. Additionally, we note that defendant was not prejudiced by the trial court's rulings on this issue, because defense counsel brought before the jury the information contained in these proffered exhibits. Officer Karanja testified that he took a statement from Claverie, Sr. who told him what Claverie had observed. He further testified that it was his understanding when he arrested defendant that she had been driving down Central Avenue. Thus, the jury heard the discrepancy between what Claverie, Sr. told the officer his son said, and what Claverie testified to at trial. The jury obviously concluded that Claverie's father misunderstood what his son said and relayed it incorrectly to the officer. Additionally, the State did not maintain at trial that defendant left her driveway in the vehicle. In her second assignment of error, defendant asserts that the trial court erred in overruling a request for sequestration of witnesses during voir dire, allowing the most crucial witness, Andrew Claverie, Jr., to stay in the courtroom over defense counsel's objection. She claims that this error, coupled with the refusal to admit the proffered evidence and related cross-examination, deprived her of a fair trial. The State responds that defendant is precluded from raising this issue on appeal, because she did not lodge a contemporaneous objection to the alleged error at trial. Alternatively, the State argues that defendant cannot demonstrate prejudice in this matter and, therefore, she is not entitled to relief. During voir dire, the following exchange occurred: MS. GAUDIN [Defense counsel]: Excuse me, Your Honor, a witness has just arrived and I'm not sure if there is a sequestration rule? THE COURT: Any problem with him being in the courtroom during voir dire? MR. COX [The prosecutor]: Judge, the trial hasn't started. THE COURT: I'm not going to exclude him unless you can give me a specific reason. Ma'am, go ahead. The record reflects that defense counsel did not move to sequester the witnesses; she only asked if there was a sequestration order. As such, defendant is not in a position to complain about what witnesses may have heard during the examination of prospective jurors. Additionally, she did not lodge a contemporaneous objection. In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. LSA-C.Cr.P. art. 841. Accordingly, because the defendant did not move for a sequestration of witnesses or lodge a contemporaneous objection, this issue is not properly before us on appeal. However, we note that a review of the record reveals that there 1086 were no specific facts or evidence mentioned during voir dire which may have affected the witness' testimony. Accordingly, we see no material prejudice suffered by defendant as a result of the witness' presence during voir dire. In her third assignment of error, defendant asserts that the trial court erred in granting challenges for cause to the State even though the jurors had been rehabilitated and had all agreed to follow the court's instructions and the law, even if they disagreed with it. Specifically, defendant argues that the trial court erred in granting challenges for cause to the State in connection with jurors, Pernel Jones and Paul Powers. The State responds that the trial court did not abuse its discretion in granting the contested challenges for cause. During voir dire, Pernell Jones stated that he was a self-employed carpenter, that he was single and had one child, and that he did not have any family in law enforcement. When asked whether he had ever been the victim of a crime, Jones responded that he had a "couple of DUI's" about five years ago, and that he had been convicted of them. The trial court advised Jones that it was his responsibility to judge the guilt or innocence of defendant based solely on the evidence at trial, and not on past incidents. Defendant indicated he understood and could do this. Jones further stated that he had been on a jury before, that the defendant in that case was charged with murder, and that defendant was found guilty. Later during voir dire, the prosecutor asked Jones whether he would be a fair and impartial juror in this case, and Jones replied, "[n]o." The prosecutor asked the trial judge to excuse Jones for cause because he had two DWI convictions and said he could not be fair. The trial judge granted the challenge, stating, "I think he cannot be fair and I think he's made that clear. I think it would be difficult for him to even if he wanted to." During voir dire, Paul Powers stated that he did flooring work, was single, and had no children. He said that he had no family in law enforcement, that he had never been the victim of a crime, and that he had never been on a jury. When asked if any jurors had friends or relatives who had been arrested for DWI, Powers responded that he had friends and relatives who went to court for DWI and that their cases were still pending. The prosecutor then asked Powers whether he would be able to be a fair and impartial juror in this case, considering that he had friends and relatives who were currently charged with DWI. Powers stated, "I wouldn't be able to be fair or nothing like that." The prosecutor also asked whether any jurors had friends or relatives who had been accused or convicted of a crime other than DWI. Powers answered that he had a brother who was incarcerated in Gretna at the present time, and that his case was pending. Defense counsel questioned Powers regarding his brother. She asked Powers whether his brother's situation would affect his ability to sit in this case, and Powers replied, "I just, personally, myself, I don't feel comfortable." Powers said that he accepted that the judge was going to charge him with the law and that his job was to follow the law, even though he might be uncomfortable. During the bench conference, the prosecutor challenged Powers for cause because he said that he could not be fair, that he had relatives and friends with DWI's pending, and that he had a brother who had charges pending. Defense counsel responded that Powers said he would follow the law. The trial judge said, "I did see that but I really didn't find him convincing. 1087 Although I wish I didn't have to, I'm going to grant that for cause." Defense counsel noted her objection. A trial court is vested with broad discretion in ruling on challenges for cause, and the ruling of a trial court judge will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. State v. Carmouche, 01-405 (La.5/14/02), 872 So. 2d 1020, 1029. Although the trial judge has broad discretion, a challenge for cause should nevertheless be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. Id. In the instant case, Jones, who had two DWI convictions, stated that he would not be a fair and impartial juror in this case, even after he told the trial judge that he could base his decision regarding defendant's guilt or innocence solely on the evidence at trial. Powers, who had friends and relatives with pending DWI charges and a brother in prison with a pending charge, stated that he would not be able to be fair or impartial, and that he did not feel comfortable sitting on this case. Although Powers later indicated he could follow the law, the trial judge found him unconvincing. The trial judge had the benefit of observing the expressions and mannerisms and hearing the vocal intonations of both Jones and Powers, and found that they could not be fair and impartial jurors. Although both jurors indicated at some point during voir dire that they could be fair and impartial, the jurors' responses as a whole revealed facts from which bias, prejudice, or inability to render judgment according to law might be reasonably implied. As such, we find that the trial court did not abuse its discretion in granting the challenges for cause in connection with prospective jurors, Jones and Powers. In her fourth assignment of error, defendant argues that the trial court erred in denying her motion for post-verdict judgment of acquittal, because the trial court gave an improper jury charge regarding the law of driving while intoxicated, stating to the jury that, "`[i]t is not necessary for completion of the offense for it to have occurred on a public street, highway, or other public property.'" The State responds that neither LSA-R.S. 14:98 nor the jurisprudence limits prosecution of the offense to specific areas within the State, nor does it make a distinction for public versus private property. Therefore, the State contends that the trial court did not err in denying the motion for post-verdict judgment of acquittal based on that reason. After closing arguments, a charge conference was held. The trial judge stated that defense counsel had told him off the record that she objected to the sentence in the jury charges that said, "`[i]t is not necessary for completion of the offense for it to have occurred on a public street, highway or other public property,'" and that she wanted it removed. The trial judge denied the request and noted counsel's objection, stating that it was a correct statement of the law. Defendant was convicted of third offense DWI, a violation of LSA-R.S. 14:98. LSA-R.S. 14:98 does not include as an element of the crime that the offense must have occurred on public property, roads, or highways. Further, in State v. Landeche, 447 So. 2d 1201 (La.App. 5 Cir.1984), this Court held that a person could be charged and convicted under LSA-R.S. 14:98, even if the operation of a motor vehicle was not on a public street or highway. Also, in State v. Smith, 93-1490 (La.App. 1 Cir. 6/24/94), 638 So. 2d 1212, 1215, the appellate 1088 court stated that, "[t]he DWI statute does not limit the prohibition of driving while intoxicated to driving on state highways, and evidence of operating a vehicle while intoxicated, even in the ditch, constitutes evidence of the offense." The Landeche and Smith cases are similar to the instant case, because the vehicles were being operated in a parking lot and a ditch, respectively, not public streets or highways. Based on the foregoing, we find that the trial court did not err by giving an improper jury charge or by denying the motion for post-verdict judgment of acquittal based on that reason. In her fifth assignment of error, the defendant contends that the trial court erred by allowing Officer Imbornone to testify relative to the breathalyzer exam, as Louisiana R.S. 32:661 applies only to "public highways," and the trial court erred in refusing to grant the motion in limine on that issue. The State responds that the trial court did not err in refusing to grant the motion in limine as it was untimely, pursuant to LSA-C.Cr.P. art. 521, and the evidence was relevant and admissible. Alternatively, the State argues that any error in admitting the evidence was harmless. On January 30, 2004, defendant filed a motion to quash or dismiss or in the alternative, a motion in limine. In that motion, defendant argued that evidence of the breath test or alleged refusal to take the breath test was inadmissible under LSA-R.S. 32:661 because the offense occurred on private property. On February 5, 2004, the morning of trial, the following exchange occurred relative to the motion: THE COURT: Secondly, you move to exclude from evidence any chemical, any evidence with regard to chemical tests. First of all, I'm going to deny your motion. It is untimely. Secondly, though, on the merits, so that you will know what I intend to rule, I don't know whether there is going to be a rule needed because my recollection is that the state doesn't have the chemical test. Is that right Mr. Cox? MR. COX: That is correct, Your Honor. THE COURT: Your most compelling argument is in part two of your memo which I think I've made known to you, I thought, was where you refer to Title 32 in Section 661 and quoted saying that "Tests may only be administered when an officer has reasonable ground to believe that the person has been driving in actual physical control of a motor vehicle on public highways under the influence of alcoholic beverages." Again, like I said, I'm not making a ruling on what I would do if the state offered a test, but as far as I know, they are not offering one. MR. LONGORIA: May I interrupt? THE COURT: No. MR. LONGORIA: For the record, Your Honor? THE COURT: No. There's no more need for it Mr. Longoria. I already told you your motion in limine is untimely and that's why I don't set motions on the morning of trial because you get into longwinded motions and arguments and then you don't get the trial underway. MR. LONGORIA: Note our objection for the record, Your Honor, on ruling on motion to quash, motion to dismiss and motion in limine. THE COURT: They're noted. 1089 Bring in the jury. LSA-C.Cr.P. art. 521 sets forth as follows: Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate. Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions. Defendant did not file the motion in question within 15 days after her arraignment, nor did she file a motion showing good cause why she should have been allowed to file the motion untimely, as mandated by LSA-C.Cr.P. art. 521. As such, the trial court did not err in denying the motion as being untimely. Further, although Officer Imbornone's testimony relative to the defendant's refusal to take the breathalyzer exam was erroneously admitted, it was harmless. The State introduced strong evidence establishing defendant's guilt, and the testimony regarding defendant's refusal to take the breathalyzer test clearly did not contribute to the verdict. In her sixth assignment of error, defendant asserts that the trial court erred in repeatedly threatening defense counsel with contempt, incarceration, and other punitive measures in front of the jury and at bench conferences, all of which undermined the defendant's right to a fair trial. The State responds that the issue is precluded from review on appeal, because defendant failed to make any contemporaneous objection at the time of the contested statements. Alternatively, the State argues that the trial judge acted in an appropriate manner within the bounds of his authority as presiding judge. During voir dire, defense counsel asked the prospective jurors whether they were going to make the State prove that defendant was driving her car while intoxicated in this case. The State objected to the question, saying that it was a misstatement of the law. The following bench conference was then held out of the hearing of the jury: THE COURT: What's your objection? MR. COX [The prosecutor]: The objection is she stands before the jury and acts like she's driving and she says driving a vehicle. It's operation. It's not driving. THE COURT: What do you say about that Ms. Gaudin? MS. GAUDIN [Defense counsel]: I say the charge is DWI. "D" stands for driving. THE COURT: He's actually right. Don't make any motions to show that sort of thing. I wish I have to admit what he said was true. You are painfully close to dealing with the facts of the case. Although you didn't get there, you didn't get quite that close. You don't need to say anything, all right? Stay away from the facts and don't motion. I think that the point of Mr. Cox's objection is that no matter whether you said it or motioned it, you are implying something that is not an element or that distorts what the elements are. Is that what your point is Mr. Cox? MR. COX: Yes. MR. LONGORIA [Defense counsel]: Is this on the record? THE COURT: Yes, it is. 1090 MR. LONGORIA: Okay. Because I'd like to say something, too. THE COURT: No. We're going to do one at a time. We don't have two counsel arguing. It's her turn, she MR. LONGORIA: Your Honor, it's THE COURT: Sit down, Mr. Longoria. I'm not going to argue with you. Sit down and don't come back up here. Now. MR. LONGORIA: I apologize, Judge. THE COURT: One more time, sit down or you're going to be removed for the remainder of the trial. (COUNSEL RETURNS TO HIS SEAT) You can tell Sal [defense counsel] that I am not going to have him argue with me every time I make a ruling. MS. GAUDIN: I will, Your Honor. THE COURT: Every time he's in this Court and in motion, he argues. One more time, he's out for good. MS. GAUDIN: I will, Your Honor. Defendant did not lodge contemporaneous objections to the comments she complains of on appeal. Accordingly, this issue is not properly before us on appeal. However, we note that even if defendant had lodged a contemporaneous objection, the trial judge's comments were not comments on the evidence and the trial judge did not give an opinion as to defendant's guilt or innocence. Further, the record does not show that the jury overheard either the substance of the discussions or the purported tone of the exchanges. Defendant also contends that the trial judge threatened defense counsel in front of the jury at the bench conference during Officer Karanja's cross-examination. He claims that, although the comments occurred off-the-record, they were clearly loud enough for the jury to hear them. Because the alleged comments were made off-the-record, there is nothing in the record for this court to review. There is also nothing in the record that indicates the comments were loud enough for the jury to hear. In light of the foregoing, we find that the trial court's comments did not undermine defendant's right to a fair trial, nor did they constitute reversible error. In her seventh assignment of error, defendant asserts that the trial court erred in denying her motion for mistrial after the prosecution argued in its closing well beyond the evidence admitted, appealing to prejudice. The State responds that the comments were proper and that a mistrial was not warranted because it was addressing arguments the defense made in closing argument. The exchange at issue is as follows: MR. COX: Because but for the fact that the Claverie's pool truck was blocking her driveway, she would have been putting peoples lives in danger. She would have gotten out there and put your lives, your children's lives MS. GAUDIN: I really have to object. THE COURT: Sustained. After the State completed its rebuttal argument, the following exchange occurred: MS. GAUDIN: 1091 The prosecutor just made an argument that was completely inappropriate which was, but for the pool truck, Ms. Cowden was headed on the road to kill people, which has injected a whole new level of invective without proof and I'm asking for a mistrial. THE COURT: Denied. MS. GAUDIN: Okay. THE COURT: I don't think he did anything that prejudiced the jury and besides Mr. Longoria has repeatedly argued and got things into evidence or got things before the jury that I already ruled on. I don't know how many times I heard references to how it was on private property and so forth. Time after time after time, you cannot seriously be complaining about Mr. Cox's remark that was in my opinion inadmissible but certainly did not rise to the level of a mistrial. You were scarcely out of your chair before I sustained your objection. I saw you standing and before you got a word out, I said sustained. MS. GAUDIN: Well THE COURT: And so, I can't see where he really did any damage that would justify a mistrial so I'm not going to grant it. MS. GAUDIN: Okay. The decision to grant or deny a mistrial is within the sound discretion of the trial court. The denial of a motion for a mistrial will not be reversed on appeal unless the court has abused its discretion. State v. Ratcliff, 98-101 (La.App. 5 Cir. 2/23/99), 731 So. 2d 356, 363, writ denied, 99-1112 (La.9/3/99), 747 So. 2d 541. Mistrial is a drastic remedy and is warranted only where remarks result in substantial prejudice sufficient to deprive defendant of a fair trial. State v. Overton, 618 So. 2d 439, 441 (La.App. 5 Cir.1993). LSA-C.Cr.P. art. 774 provides the scope of closing argument as follows: The argument shall be confined to evidence admitted, to lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state's rebuttal shall be confined to answering the argument of the defendant. A prosecutor has considerable latitude in making closing arguments. State v. Taylor, 93-2201 (La.2/28/96), 669 So. 2d 364, 374, cert. denied, 519 U.S. 860, 117 S. Ct. 162, 136 L. Ed. 2d 106 (1996). A conviction will not be reversed because of improper argument, unless the reviewing court is" `firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict.'" Id. at 375. In the instant case, the prosecutor's comments about defendant, particularly regarding putting the lives of the jurors and their children at risk, were outside the scope of proper rebuttal argument under LSA-C.Cr.P. art. 774, and the trial judge properly sustained the objection. However, the comments made by the prosecutor do not fall under the provisions of LSA-C.Cr.P. art. 770 that automatically warrant a mistrial. The remarks were only of such magnitude as to fall within LSA-C.Cr.P. art. 771, which requires an admonition if requested. Defense counsel did not request an admonition. Additionally, there is no indication in the record that these particular comments influenced the jury or contributed to the verdict. Although improper, considering the strong evidence in this case, they were 1092 harmless. See State v. Robertson, 02-373 (La.App. 5 Cir. 10/29/02), 831 So. 2d 389, 395. Further, it is noted that the trial judge instructed the jury that the statements and arguments of counsel were not evidence. Based on the foregoing, we find that the trial court did not err in denying defendant's motion for mistrial. Defendant also contends that defense counsel was not allowed to argue during closing that she should not be found guilty of driving while intoxicated for only being in her driveway, and that the jury was told to disregard the comments. However, we find that the trial court did not err by, in effect, sustaining the objection, and admonishing the jury to disregard defense counsel's comment, because he was simply preventing defense counsel from quoting the wrong law, as discussed in assignment of error number four. ERROR PATENT DISCUSSION The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990). The following errors require corrective action. First, the trial judge did not advise defendant of the two-year prescriptive period for filing post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. Therefore, we remand and order the trial court to inform defendant of this prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received such notice. State v. Miller, 02-729 (La.App. 5 Cir. 12/30/02), 836 So. 2d 614, 618, writs denied, 03-0200 (La.10/10/03), 855 So. 2d 326, and 03-0503 (La.10/10/03), 855 So. 2d 329. Second, according to the transcript, the trial judge sentenced defendant to two years at hard labor and suspended "all but 30 days of that sentence." The commitment states, "[s]entence is suspended," but does not indicate that 30 days of the sentence was not suspended and must be served. Accordingly, we order the trial court to correct the commitment to reflect that 30 days of defendant's sentence was not suspended. Third, the trial judge failed to specify the conditions of home incarceration, as required by LSA-R.S. 14:98(D)(3)(a), at the time of sentencing. The record does not reflect whether the trial judge gave defendant a certificate setting forth the conditions of her home incarceration. In State v. Parent, 01-50 (La.App. 5 Cir. 5/30/01), 788 So. 2d 685, 690, defendant was convicted of theft. Part of defendant's sentence included home incarceration pursuant to LSA-C.Cr.P. art. 894.2. However, according to the record, the trial judge failed to specify the conditions of home incarceration at the time of sentencing or give defendant a certificate setting forth the conditions of her home incarceration. Thus, this Court affirmed defendant's conviction and sentence, and remanded the matter to the trial court to hold a hearing regarding the conditions of defendant's home incarceration within ten days and to file written proof in the record that this requirement was met. Accordingly, as was done in Parent, we remand this case to the trial court and order it to hold a hearing within ten days of this opinion regarding the conditions of defendant's home incarceration, in order to comply with the provisions of LSA-C.Cr.P. art. 894.2 and R.S. 14:98(D)(3)(a). We further order the trial court to file written proof in the record indicating that this hearing was held and that defendant's conditions of home incarceration have been specified. 1093 DECREE For the reasons set forth above, we affirm defendant's conviction and sentence. However, we remand the case and order the trial court to inform defendant of the two-year prescriptive period by sending her written notice within ten days after the rendition of this opinion and to file written proof in the record that defendant received such notice. Further, we order the trial court to correct the commitment to reflect that 30 days of defendant's sentence was not suspended. Finally, we order the trial court to hold a hearing within ten days of this opinion regarding the conditions of defendant's home incarceration and to file written proof in the record indicating that this hearing was held and that defendant's conditions of home incarceration have been specified. AFFIRMED; REMANDED WITH INSTRUCTIONS. NOTES [1] The trial court imposed special conditions of probation as follows: (1) one year and eleven months of home incarceration; (2) enter and complete a four to six week in-patient substance abuse program; (3) enter and complete an out-patient substance abuse and driver's improvement program; (4) vehicle seized unless an exemption can be shown. [2] The younger Claverie will be referred to as "Claverie," and his father will be referred to as "Claverie, Sr." [3] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1100197/	415 So. 2d 226 (1982) Harvey T HAMMOND, et ux., Plaintiffs-Appellants, v. Henry Aster AVERETT, Jr., et al., Defendants-Appellees. No. 14811. Court of Appeal of Louisiana, Second Circuit. April 5, 1982. Smith & Hingle by Gilmer P. Hingle, Monroe, for plaintiffs-appellants. Blaine Adkins, Monroe, for defendants-appellees. Before MARVIN, JASPER E. JONES, and NORRIS, JJ. MARVIN, Judge. Plaintiffs appeal a judgment that rejected their demands in a possessory action to a 20 acre fenced tract on which they paid taxes for more than 30 years. The dispositive issue is whether plaintiffs possessed as owners, quietly and without interruption, for more than one year before *227 they brought the action on August 1, 1979. Cole v. Martin, 343 So. 2d 334 (La.App.2d Cir. 1977), writ refused; McCoy v. Toms, 384 So. 2d 518 (La.App.2d Cir. 1980), writ denied; Jones v. Skannal, 368 So. 2d 774 (La.App.2d Cir. 1979); Matthews v. Carter, 138 So. 2d 205 (La.App.2d Cir. 1962). See also CCP 3658, 3659; La.C.C. 3488. The 20 acres was ostensibly owned by plaintiffs' Uncle Henry, and was across the road from plaintiffs' homesite. Plaintiffs cared for Uncle Henry and notified his children when his health failed. About a month after his children removed him to Texas, Uncle Henry died in November 1944. Plaintiffs began their possession, gardening the tract and raising cattle, when Uncle Henry died. After a few years following Uncle Henry's death, plaintiffs had no contact with his heirs. Plaintiffs received the notices of and paid the annual ad valorem taxes on the property that was assessed to the H. A. Averett Estate, in care of Harvey Hammond, the co-plaintiff in this action. Defendants are the heirs of Uncle Henry. A possessor whose possession begins other than as owner must do something to make generally known that he has changed his intent and he must prove specifically when he manifested to others his intent to possess as owner. Continued physical possession alone does not suffice to rebut the presumption that the possession remains precarious. CC Art. 3446. Jones, supra, 368 So.2d at p. 777. The character and notoriety of the possession must be sufficient to inform the public and the record owners of the possession as owner. See Cole, supra, 343 So.2d at p. 336, and McCoy, supra. Substantial testimony of plaintiffs and of plaintiffs' witnesses support the conclusion that plaintiffs were paying the taxes in lieu of rent and that plaintiffs were simply "using" the land. When a real estate agent of the heirs visited the property in 1978, plaintiffs became disgruntled that the heirs had not paid them any respect or acknowledged what plaintiffs had done to maintain the property.[1] After the visit by the agent, the plaintiffs did not contact the heirs or declare by their actions or their words that they had changed their intent and were possessing as owners. None of plaintiffs' witnesses testified that plaintiffs had been heard to claim that they possessed as owners. See Cole and McCoy, supra. In October 1978, the heirs of Uncle Henry opened his succession and placed of record a judgment putting them in possession of the 20 acres. Under these circumstances, plaintiffs have not rebutted the CC 3446 presumption that their possession remained precarious. For reasons assigned below and summarized here, and at appellants' cost, judgment is AFFIRMED. NOTES [1] The date of this visit is not readily determined. The real estate agent did not know, but thought that it occurred a few days after one of the heirs contacted him on July 10, 1978, about selling the property. Plaintiff Mr. Hammond did not know the date. Mrs. Hammond thought the visit was made in September when the garden was "dead". The evidence most favorable to plaintiffs is the agent's testimony that he understood from plaintiffs' conversation with him that plaintiffs "felt" that the heirs "owed" them something and that if anybody should "get" the property it should be plaintiffs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615097/	668 P.2d 620 (1983) Maurice WILLIAMS, Appellant (Plaintiff), v. Joseph H. WATT and Nellie Arlene Watt, Trustees for the Joseph H. Watt Trust, dated December 30, 1972; and Tim Watt, the Robert E. Watt Trust, Tim Watt and Vance Watt as Co-Trustees, and Tim Watt and Vance Watt as Trustees of the Robert E. Watt Trust, Appellees (Defendants). No. 5799. Supreme Court of Wyoming. August 12, 1983. 621 S. Thomas Throne, Sheridan, for appellant. Henry A. Burgess of Burgess & Davis, Sheridan, for appellees. Before ROONEY, C.J., and RAPER,[] THOMAS, ROSE and BROWN,[*] JJ. ROSE, Justice. In this appeal we are asked to examine the effect of deed and contract language in order to resolve an ownership-of-minerals issue. FACTS On April 10, 1940 the Federal Land Bank of Omaha, Nebraska entered into a contract for deed with appellant Maurice Williams, pursuant to which it agreed to transfer 622 ranch land titles to him upon payment of the purchase price. On December 28, 1954, the Land Bank delivered its warranty deed containing the following language. "* * * [E]xcepting and reserving an undivided one-half interest in all oil, gas, and mineral rights in and under the balance of the land for a period of 20 years from the 10th day of April, 1940, and as long thereafter as oil, gas, or other minerals continue to be produced therefrom or said property is being so developed or operated".[1] On October 27, 1949 Mr. Williams executed a contract for warranty deed with appellee Joseph H. Watt, undertaking to convey and, by deed dated December 7, 1956, did convey an undivided two-thirds interest to Joseph H. Watt and an undivided one-third interest to Robert E. Watt in certain of the lands which had been included in the Land Bank transaction. The contract and deed contained this provision: "Excepting and reserving to the first party [Williams], his heirs, successors and assigns, all of the oil, gas and mineral rights running with said lands and to which he is entitled under the present ownership of said lands, and which have not been reserved to the United States or heretofore have been reserved or conveyed by previous owners and as may show of record * * ." As can be seen, this exception was effected before the base term of the 20-year-or-production condition in the first deed had expired. The only minerals or interest in mineral rights with which this appeal has any concern whatsoever have to do with those which the Land Bank excepted from its grant. It is certain rights which pertain to these minerals that Williams asserts he withheld from his subsequent transfer of real property to the Watts. It is conceded that the half of the minerals which were not excepted by the Land Bank were excepted from the deed from Williams to Watts and the Watts make no claim to these minerals. On April 10, 1960, (20 years from the date of the agreement between the Land Bank and Williams) there had been no production of oil, gas or other minerals from the lands and therefore the Federal Land Bank exception no longer burdened the controversial mineral interest. The trial court held that the disputed half of the minerals became the property of the Watts in fee simple absolute when the contingency expired. We will reverse, holding that by expressly excepting from the Williams-Watt contract for deed and deed, "all of the oil, gas and mineral rights * to which he is entitled under the present ownership of said lands, and which have not been * * * heretofore * * * reserved or conveyed by previous owners * * ", the parties intended to and did withhold from the grant to the Watts a vested remainder. This remainder was owned by Williams at all times following the Land Bank-Williams transaction until the minerals themselves were automatically transferred to him upon the expiration of the 20-year contingency, no other oil, gas or other minerals then having been produced. When the condition contemplated by the 20-years-or-production provision in the Land Bank contract for deed and deed expired, the minerals became the property of Williams in fee simple by operation of law and thus did not either remain with the Land Bank by reason of any rule against perpetuity proscriptions,[2] nor did they follow the land to its ownership in the Watts. 623 ISSUE The appellant Williams describes the issue for our resolve as follows: "Did the District Court err in holding that the Appellees-Watts were the owners of 50% of the mineral rights in the subject real property despite the facts that: (1) Both Appellant-(Seller) Williams and Appellees-(Buyer) testified that it was their intent at the time of the sale of this property for all minerals to be reserved to Appellant; (2) the deed on its face reserves all of the minerals to Appellant Williams." The Court's Identification of the Relevant Questions We view the essential questions for consideration to be these: When Williams agreed to sell and did sell the land to the Watts in 1949 with delivery of deed in 1956, and, given the fact that the Land Bank's exception of one-half of the minerals was not to terminate until 1960 or until oil, gas or other minerals ceased to be produced, what was the nature and what were the characteristics of the mineral interest or estate that the Federal Land Bank had excepted from its grant to Williams? What present and/or future interest or interests in these minerals did Williams possess after the conveyance from the Land Bank but prior to the expiration of the condition if any? If, following the Land Bank's exception from its grant, Williams was then possessed, or at some later time was to be possessed, of some sort of mineral interest or estate which he attempted to withhold when he conveyed the land to the Watts, was this such an interest as he then possessed and could lawfully withhold? Finally, did the minerals which were excepted by the Land Bank from its conveyance to Williams ultimately pass to the Watts upon the expiration of the term contemplated by the 20-year-or-production exception as the trial court held or did they remain the property of the Land Bank for the reason that the conveyance was void as being in violation of the rule against perpetuities, supra n. 2 or did the minerals then become the property of Williams in fee simple by reason of the purported exception language which is contained in the deed to the Watts? Introduction By way of introduction to the decisional aspects of this opinion, it is appropriate to make this observation: All participating justices are secure in their interpretation of the Williams-Watt contract to the effect that it was the intent of these parties that Williams would come into ownership of the remaining disputed minerals when the condition contained in the Land Bank-Williams contract and deed no longer encumbered them. We consider the overriding obligation of this court to be to give effect to this intention of the parties if that is possible. In fulfilling this obligation, the majority and the concurring justice reach the same result, but, in traveling through the complicated maze of future-interest concepts, we disagree about the labeling of the interest held by Williams as we all undertake to give effect to the intention of the parties. The majority of the justices hold that, contemporaneous with the execution of the Land Bank contract for deed and deed to Williams, Mr. Williams was possessed of a vested remainder. Justice Thomas, on the other hand, would identify Williams' interest as an executory interest. The majority take issue with the executory-interest theory for the reason that the Wyoming statute (n. 2, supra) which adopts the rule against perpetuities would be violated under this concept. Justice Thomas objects to the majority position because he finds the law to be that there can be no remainder after an estate in fee simple determinable,[3] which estate we all hold to be the interest which the Land Bank possessed in the disputed minerals prior to the expiration of the condition. The majority concede the historical viability of Justice Thomas' objection, but find 624 the modern law to be to the contrary i.e., that a remainder can, in circumstances such as those which confront us here, follow a limited or qualified fee and may be excepted from a subsequent grant prior to the expiration of the qualification. On this issue, Gray, The Rule Against Perpetuities, 4th Ed., § 114, p. 108, n. 3, says that the concept which holds that there can be no remainder following a fee "must be regarded, under modern conditions at least, as purely artificial * ." Thus, in more recent times, the rule against the possibility of an estate remaining after a fee is thought about as an historical anachronism. Indeed, were it not for the perpetuities problem discussed infra, it would not be necessary to distinguish between executory interests and remainders. In 28 Am.Jur.2d Estates § 197, "Distinctions generally; from executory interest," p. 341, the text undertakes to distinguish remainders and executory interests and comes to this conclusion: " * * Most of the litigation involving remainders, vested and contingent, and executory interests, has been concerned with such questions of construction. Once the question of construction is settled, however, the further question of the technical designation of the future interest whether it is a remainder or an executory interest and, if a remainder, whether it is vested, vested subject to being divested, or contingent is one of decreasing significance. There is a tendency to disregard the historical distinctions between contingent remainders and executory interests, and some modern statutes in effect abolish the practical distinctions between them. Also, there is a rule that a limitation will be construed as creating a remainder rather than an executory interest if such can be done consistently with other rules of law." (Emphasis added.) Broadly speaking, executory interests or limitations are no longer distinguished from remainders but are grouped with them as future estates, 28 Am.Jur.2d Estates § 337, pp. 541-544. Justice Cardozo said in Doctor v. Hughes, 225 N.Y. 305, 122 N.E. 221, 222 (1919): "* * * Executory limitations are no longer distinguished from remainders, but are grouped with them as future estates (Real Prop.Law, §§ 36, 37; Tilden v. Green, 130 N.Y. 29, 47, 28 N.E. 880, 14 L.R.A. 33, 27 Am. St. Rep. 487), and deeds, like wills, must be so construed as to effectuate the purpose of the grantor (Real Property Law, § 240, subd. 3)." The Land Bank's Estate By reason of its exception, the Bank owned a fee simple defeasible estate in one-half of the minerals We have said that: "Oil and gas, while in situ, are part of the realty; part of the corpus of the land." State ex rel. School Dist. No. 1 in Weston County v. Snyder, 29 Wyo. 163, 212 P.2d [P.] 758, 762 (1923). See Burnell v. Roush, Wyo., 404 P.2d 836 (1965), and Denver Joint Stock Land Bank of Denver v. Dixon, 57 Wyo. 523, 122 P.2d 842, 140 A.L.R. 1270 (1942). In Denver Joint Stock Land Bank of Denver v. Dixon, supra, we affirmed the district court's decision, which held that the royalty interest was real and not personal property. See also State ex rel. Cross v. Board of Land Commissioners, 50 Wyo. 181, 58 P.2d 423 (1936), and Picard v. Richards, Wyo., 366 P.2d 119 (1961), where it was held that a conveyance or reservation of a mineral interest gave title to oil in place. A landowner has the power to create separate interests in oil and gas by grant or exception, they being leasehold, mineral and royalty interests.[4] It follows that he may create such interests for years, for life, or in fee. See 1A Summers Oil and Gas, Ch. 6, Landowner's Powers and Liabilities, § 136 Nature of the Legal Interest in Oil and Gas Created by Deed, Exception or Reservation. See also, Goodson v. Smith, 69 Wyo. 439, 243 P.2d 163, reh. denied 244 P.2d 625 805 (1952). See Krug v. Reissig, Wyo., 488 P.2d 150 (1971), where we recognized a life estate in the minerals. In a conveyance excepting the minerals from the grant, we said in Ohio Oil Co. v. Wyoming Agency, 63 Wyo. 187, 179 P.2d 773, 774-775 (1947): " * * It is admitted that a severance of the mineral estate from the surface estate was effected by this conveyance. See Tiffany on Real Property (3d ed.) § 587; Lindley on Mines (3d ed.) §§ 9,812; cases cited in State ex rel. Cross v. Board of Land Com'rs, 50 Wyo. 181, 200-203, 58 P.2d 423, 429, 430. 62 P.2d 516. The mineral estate, after severance, is often called the `mineral fee' (see Dabney-Johnston Oil Corp. v. Walden, 4 Cal. 2d 637, 650, 52 P.2d 237, 243) * * ." In State ex rel. Cross v. Board of Land Commissioners, 58 P.2d at 430, we referred, with approval, to a case citing Thompson on Real Property, where that author said: "`"Since minerals in place are part of the land, the owner of the fee in the land has the absolute right of property in the mines and quarries beneath the surface (citing cases), and all the mineral substances, while thus in place, are things of a real, and not a personal character (citing cases). As we have seen, that part of the land consisting of minerals, or specified minerals, may become the subject of separate ownership by grant of the minerals by the owner of the land, or by a grant of the land with an exception of the minerals, and in either case an estate in fee simple is created in the minerals, as corporeal hereditaments. (Citing cases)."' [Barlow v. Security Trust & Savings Bank, 197 Cal. 263, 240 P. 19, quoting from 1 Thompson on Real Property, § 87.]" In Summers Oil and Gas, supra, the author says: "Separate estates or interests in oil and gas may be created for a definite term of years and as long thereafter as oil or gas is produced from the land in paying quantities." (Emphasis added.) § 136, supra, p. 282. As has been noted, the Land Bank's exception was subject to a contingency for an indefinite term, i.e. 20 years and as long thereafter as oil and gas are produced therefrom. Since mineral and surface estates may be severed one from the other under the circumstances of this case, it follows that the Federal Land Bank's exception severed the minerals from the land conveyed to Williams. In his brief and argument, appellant Williams reaches the erroneous conclusion that the contingency contained in the Land Bank grant to Williams expressed a term for years which was not a freehold interest.[5] From this faulty term-for-years assumption, it is reasoned that, since it was necessary that the fee be held to reside in someone, it must be in Williams and therefore he could and did reserve it when he executed the warranty deed to the Watts. Even though this court and Williams come to the same ultimate result i.e., that Williams owned an exceptable interest which he could and did except we do not travel the same path in order to arrive there. Appellant Williams represents that at the time of the Land Bank's deed to him " * * 100% of the minerals became vested in Maurice Williams, subject to a twenty (20) year term interest in 50% of the minerals held by the Federal Land Bank." He goes on to say: "The Federal Land Bank reserved an undivided one-half interest in the minerals for a period of twenty years. `Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years.' 2 Blackstone, Commentaries on the Common Law, 143, quoted in Ralston Steel Car Company v. Annie M. Ralston, [112 Ohio 626 St. 306], 147 N.E. 513, 516, 39 ALR. 334, 338 (1925). The interest reserved by the Federal Land Bank is an estate for years. An estate for years is not a free-hold interest. King v. White, 499 P.2d 585. (Wyo. 1972). "Since the Federal Land Bank reserved only an estate for years in 50% of the minerals, seizen to 100% of the minerals had to be vested in someone at the time of the conveyance from the Federal Land Bank to Maurice Williams. Because a term interest is not a freehold interest, the minerals could not have been vested in the Federal Land Bank. All of the mineral rights were vested in Maurice Williams. "Maurice Williams had a present vested interest in 100% of the minerals, subject to a twenty-year estate for years in 50% of the minerals reserved by the Federal Land Bank. See Bergin and Haskel, Preface to Estates and Land and Future Interest, p. 41 (Foundation Press 1966). "Maurice Williams owned the entire mineral estate. He owned 50% of the minerals in fee simple absolute, and 50% of the minerals in fee subject to an estate for years. On April 10, 1960, when the term of years held by the Federal Land Bank expired, Maurice Williams became owner in fee simple absolute of 100% of the minerals in the subject lands." The exception in the Land Bank's grant to Williams did not describe an estate for years and, during the life of the contingency, a determinable fee interest in the minerals did in fact reside in the Land Bank and the fee estate was not held by Williams. The term of the contingency was not definite as the appellee contends. Had there been production within the base period, the Federal Land Bank's right to save, keep and dispose of its one-half of the disputed minerals would have continued for such a period of time as could only be considered to be beyond ascertainment when either of the deeds with which this appeal is concerned is executed and delivered. The appellant was therefore in error in making the assumption that the contingency was for a term of years and that for this reason fee title to 100% of the minerals was in Williams at all times following the grant from the Federal Land Bank. As we have previously noted, this court has on other occasions inquired into the status of an oil and gas lease which conveys such a mineral interest to its lessee as that which is retained by a grantor who excepts minerals from a grant by deed. In Torgeson v. Connelly, Wyo., 348 P.2d 63, 68-69 (1959), where the court was concerned with an oil and gas operating agreement with a primary term of 20 years and "` * * so long thereafter as oil and gas and hydrocarbon substances are produced in commercial quantities,'" the agreement undertook to grant the exclusive right to drill in accord with a federal lease. The court was of the opinion that "* * * it in effect conveys a portion of the lease or the rights thereunder and constitutes real property." We held in Torgeson, supra, that leases for a limited term are personalty, while leases for an indefinite period are realty. In that same opinion we said, in referring to our holding in Denver Joint Stock Land Bank of Denver v. Dixon, supra: "* * * We noted Dutton v. Interstate Investment Corporation, Cal. App., [19 Cal. 2d 65], 113 P.2d 492 and Arrington v. United Royalty Co., 188 Ark. 270, 65 S.W.2d 36, 90 A.L.R. 765, as holding that leases for a limited term of years had been held to be personalty * * " 348 P.2d at 68, but that " * * [t]he Dutton and Arrington cases both held that leases for an indefinite term had been considered to be realty, the latter indicating that the term of the lease is indefinite if the contract provided `and so long as oil and gas is produced.'" (Emphasis added.) 348 P.2d at 69. It was said in Arrington v. United Royalty Co., 188 Ark. 270, 65 S.W.2d 36, 38, 90 A.L.R. 765 (1933): "* * * It seems, also, that whether the royalty, when severed from the reversion, 627 is to be deemed real or personal property, depends upon the duration of the lease. If the oil and gas lease is for a term of years expiring at a certain time, it is a chattel real, and the severed royalty would be personal property; but, where the lease may endure for an indeterminate period, it creates an estate in the nature of a qualified fee, and the royalty reserved would be an interest in realty. "We have held that leases given for a definite period in which exploration and discovery of the mineral might be made, to continue as long thereafter as oil and gas is produced conveys not merely a license but an interest and easement in the land itself. Standard Oil Co. v. Oil Well Salvage Co., 170 Ark. 729, 281 S.W. 360; Clark v. Dennis, 172 Ark. 1096, 291 S.W. 807; Henry v. Gulf Refining Co., 176 Ark. 133, 2 S.W.(2d) 687; and Henry v. Gulf Refining Co., 179 Ark. 138, 15 S.W.(2d) 979." (Emphasis added.) Accordingly, the exception for 20 years and as long thereafter as oil, gas or other minerals continue to be produced therefrom constituted a real-property interest in the Land Bank. There is no doubt but that such an exception as that contained in the Land Bank's deed is acceptable to real property and to mineral and oil and gas law. The estate structured by such an exception is a base or determinable fee which is defeasible at the end of the base term or in the event production is attained when production ceases. The Restatement of the Law of Property calls it an "estate in fee simple determinable." Restatement of the Law of Property § 44, p. 121. " * * [A] `determinable,' `qualified,' or `base' fee is an estate limited to a person and his heirs, with a qualification annexed to it providing that such estate must determine whenever that qualification is at an end. Because the estate may last forever, it is a fee; and because it may end on the happening of an event, it is called a `determinable or qualified fee.'" 28 Am.Jur.2d Estates § 22. It was said in United States v. Union Pacific Railroad Company, 230 F.2d 690, 694 (1956), rev'd on unrelated grounds: "Generally the terms `limited', `determinable', `qualified', or `base' fee, as applied to the title of real estate, are used synonymously. Because of the possibility that it may endure forever, the owner of such an estate, so long as it exists, even though title may revert upon the happening of a condition, has the same rights as an owner in fee simple and may remove underlying minerals. 19 Am.Jur., Estates, Secs. 28, 30, 31; 31 C.J.S., Estates, §§ 9, 10; Restatement of Property, Sec. 193, Comment (h); United States v. Illinois Central R. Co. [D.C., 89 F. Supp. 17], supra; Frensley v. White, 208 Okl. 209, 254 P.2d 982; Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318; Johnson Irrigation Co. v. Ivory, 46 Wyo. 221, 24 P.2d 1053; D.C., 126 F.Supp 646." The existence of an estate in fee simple determinable requires the presence of special limitations. Restatement of the Law of Property, § 44, p. 121. The term "special limitation" denotes that part of the language of a conveyance which causes the created interest automatically to expire upon the occurrence of a stated event. Restatement of the Law of Property, § 23, p. 55. An estate in fee simple determinable may be created so as to be defeasible upon the occurrence of an event which is not certain ever to occur. Restatement of the Law of Property, § 44, p. 125. As we have seen, we approved the Arrington v. United Royalty rule in Denver Joint Stock Land Bank of Denver, supra, where the Arrington court said: "* * * [W]here the lease may endure for an indeterminate period it creates an estate in the nature of a qualified fee * ." 65 S.W.2d at 38. Chapter 4 of the Restatement of the Law of Property, pp. 117-118, provides: "Introductory Note: An estate in fee simple defeasible is defined as an estate in fee simple which is subject to a special limitation, a condition subsequent, an executory 628 limitation or a combination of these restrictions. "The estate in fee simple subject to a special limitation is also designated as an `estate in fee simple determinable.' It expires in accordance with its terms. It ends automatically upon the occurrence of the event stipulated in its limitation." In Baker v. Hugoton Production Company, 182 Kan. 210, 320 P.2d 772 (1958), the grant of a mineral interest from A to B carried the proviso that it was to be held by B for a term of twenty years and as long thereafter as oil, gas or either of them, are being produced from said land. The court held that the instrument grants "* * * a base or determinable fee in the oil, gas and other minerals in place * ." 320 P.2d at 774. In Wilson v. Holm, 164 Kan. 229, 188 P.2d 899, 904 (1948), it was said: " * * [I]t should be stated that in this state a deed, conveying oil and gas in place for a fixed term of years and so long thereafter as either or both are produced in paying quantities, creates a base or determinable fee and that title to the estate so created vests immediately upon the execution and delivery of such an instrument but remains defeasible in the event of cessation of production, [citing a Kansas case]." In the case at bar, the Land Bank's exception carried no restriction as to use only a condition which made it subject to the possibility of defeasance. It was, therefore, a determinable qualified or base fee. Characteristics of a Base or Determinable Fee "A determinable or qualified fee has all the attributes of a fee simple, except that it is subject to be defeated by the happening of the condition which is to terminate the estate." 28 Am.Jur.2d Estates, Determinable Qualified or Base Fee, § 26, Attributes and incidents generally: rights of holder, p. 103. We said in Johnson Irrigation Co. v. Ivory, 46 Wyo. 221, 24 P.2d 1053, 1058 (1933): "We may also agree that a grantee who takes a limited or qualified fee,[[6]] liable to be defeated * * * may, while the estate continues, have the same rights and privileges as an owner in fee simple." In the Restatement of the Law of Property § 49, p. 170, it is said: "The privilege of the owner of a possessory estate in fee simple defeasible to use the land [minerals in the instant case] is identical with that of an owner of a possessory estate in fee simple absolute except that the privilege is limited by a duty not to commit waste." The Restatement goes on to say: "Except as modified by the terms of the limitation creating an estate in fee simple defeasible, the power and the privilege of the owner of such an estate to create an interest in the affected land are identical with those of an owner having an estate in fee simple absolute therein, but all interests so created are subject to the defeasibility which existed as to the estate of the transferor." Restatement of the Law of Property § 50, p. 173. We conclude that the Federal Land Bank, in excepting one-half of the minerals from the grant to Williams "* * * for a period of 20 years * * * and as long thereafter as * * * minerals continue to be produced * * " was possessed of an estate in fee simple in the excepted minerals subject to the qualification expressed in the deed. It was during the life of the qualification that Williams conveyed the land to the Watts and Williams did not hold fee title to the minerals during the life of the contingency. That freehold interest resided in the Federal Land Bank, subject to the contingency. 629 Williams' Interest A Vested Remainder After the grant from the Land Bank, Williams' interest in the disputed minerals is properly identified as a vested remainder. I Characterization of various interests based upon historical concepts In its deed to Williams, the Land Bank excepted: "* * * an undivided one-half interest in all oil, gas, and mineral rights in and under the balance of the land for a period of 20 years * * , and as long thereafter as oil, gas, or other minerals continue to be produced therefrom or said property is being so developed or operated * ." As has been noted, the interest held by the Land Bank following the grant is properly identified as a fee simple determinable. Once it is established that the Land Bank withheld a determinable fee in the mineral estate, classical concepts of property law (absent statutory rule against perpetuities proscriptions), disassociated from the unique characteristics of mineral law, would indicate that the interest created in Williams be identified as an executory interest. Given historical guidelines, the only other designations for Williams' interest are a possibility of reverter and a remainder. It is conceded that Williams' interest cannot be labeled a possibility of reverter, because a possibility of reverter is such an interest as is retained by the transferor, following the conveyance of a fee simple determinable. Simes and Smith, The Law of Future Interests, 2d Ed., § 281 (1956); 28 Am.Jur.2d Estates § 22; Restatement of the Law of Property, § 154(3) (1936). Since the disputed interest was transferred to Williams, rather than retained by the Land Bank, it cannot properly be designated a possibility of reverter. Under antiquated historical concepts it could be and in Justice Thomas' concurring opinion is argued that a remainder is likewise an inappropriate designation of Williams' interest for the reason that a remainder cannot follow a fee. Simes and Smith, supra, § 103; 28 Am.Jur.2d Estates § 196; Restatement of the Law of Property, § 156(2). The justification for this rule is that once the owner of an estate in fee simple conveys his estate in fee simple, there is nothing left to constitute a remainder. Bergin & Haskill, Preface to Estates in Land and Future Interests (1966), p. 72. In Simes and Smith, The Law of Future Interests, 2d Ed., § 103, the authors say: "The second characteristic [of a remainder] is that there can be no remainder after a fee simple. This is true even though the fee simple be subject to a special limitation. This is explainable only on historical grounds. All fees simple were regarded as of the same quantum and infinite duration. Hence it was thought that, when the fee simple had been given, no `remnant' could be left to grant or devise." Once the possibility of reverter and the remainder have been ruled out as appropriate labels for Williams' interest, it follows from these traditional principles that Williams should be held on historical grounds to have possessed an executory interest in the mineral estate excepted by the Land Bank. The Restatement of the Law of Property, § 158, says: "(1) An executory interest is any future interest created by an executory limitation (defined in § 25). "(2) Executory interests as defined in Subsection (1) include all future interests, other than remainders * * which can be created in a transferee." Section 25 of the Restatement of the Law of Property provides in part: "* * * [T]he term `executory limitation' denotes that part of the language of a conveyance, by virtue of which * * * * * * "(b) an estate in fee simple determinable, * * * concurrently with its expiration, is to be succeeded forthwith by another interest in a person other than the conveyor or his successor in interest." The exception by the grantor of a determinable fee and the resulting interest in the 630 grantee are discussed in 28 Am.Jur.2d Estates § 37: "By reservation or exception. "While a fee simple determinable is created by the grant of the fee simple determinable to the grantee, thereby reserving the possibility of reverter to the grantor, where an attempt is made to reverse the positions of the grantor and grantee by excepting a determinable fee from the grant, the grantor is held to take a determinable fee, but the grantee takes a future interest in the nature of a springing use, rather than a possibility of reverter, which future estate may, unlike a possibility of reverter, be subject to the rule against perpetuities." An executory interest, by definition, does not vest so long as it remains a future interest. Simes and Smith, supra, § 221. Consequently, all executory interests are subject to invalidation by the rule against perpetuities. Gray, The Rule Against Perpetuities, 4th Ed. (1942), § 317. To say that a rule-against-perpetuities result is contrary to the intentions of the parties is of no avail, because the rule against perpetuities always operates to frustrate the parties' intentions. Despite the foregoing conclusion that the exception by the grantor of a determinable fee may subject the granted executory interest to problems with the rule against perpetuities, only a few courts have found such interests to be void. Walker v. Marcellus & O.L. Ry. Co., 226 N.Y. 347, 123 N.E. 736 (1919); Victory Oil Co. v. Hancock Oil Co., 125 Cal. App. 2d 222, 270 P.2d 604 (1954); 2 Williams and Meyers, Oil and Gas Law (1981), § 335, pp. 177-180. Many cases simply assume the validity of these interests without any discussion of the rule against perpetuities. 2 Williams and Meyers, supra at 180, and cases cited therein. A recent Texas case found that in such situations the law implies that the grantor conveyed his entire estate to the grantee, who then regranted a determinable fee to his grantor. This fictitious regrant resulted in a possibility of reverter in the original grantee which was valid under the rule against perpetuities. Bagby v. Bredthauer, Tex.Civ.App., 627 S.W.2d 190 (1981). A number of other courts, while not dealing directly with an excepted determinable fee, have held that conveyances in the commercial context are exempt from the rule against perpetuities. Camerlo v. Howard Johnson Company, 545 F. Supp. 395 (W.D. Pa. 1982); Forderhause v. Cherokee Water Company, Tex.Civ.App., 623 S.W.2d 435 (1981), rev'd on other grounds 641 S.W.2d 522, 526 (1982); Producers Oil Company v. Gore, Okl., 610 P.2d 772 (1980). In view of the fact that the rule against perpetuities is embodied in a statute[7] and in the Constitution[8] in Wyoming, this court is without authority to carve out an exception to the constitutional and statutory provision or to circumvent the Constitution and statute through the inference of a fictitious regrant or by the utilization of any other fictitious device and it is at this juncture that the majority parts company with Justice Thomas. In light of Justice Thomas' concurring opinion, it is well to pause here and further explore the perpetuities problem. It is worth noting that a holding designating Williams' interest as "executory" and thus violative of the rule against perpetuities would have the result of finding the Land Bank to be possessed of the disputed minerals a result which was not contemplated either by the parties or the Land Bank. Wyoming has adopted the common-law rule against perpetuities through § 34-1-139, supra n. 2. This statute implements Art. 1, § 30 of the Wyoming Constitution. See n. 8. In any effort to circumvent the rule against perpetuities by fiction or otherwise, or to carve out an exception to the rule for any reason we are first off confronted with well-established rules having 631 to do with the necessity to give effect to statutory and constitutional provisions.[9] We said in Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965, 968-969 (1979): "* * * It is the duty of courts to endeavor by every rule of construction available to ascertain the meaning of and give full force and effect to the legislative product. 1A Sutherland, Statutory Construction, § 21.16 (fn. 2) (1972). The legislature will not be presumed to intend futile things. De Herrera v. Herrera, Wyo. 1977, 565 P.2d 479; See West's Digest System, Statutes, Key Number 212.4.", and in McGuire v. McGuire, Wyo., 608 P.2d 1278, 1285 (1980), we said: "It is this court's obligation to make sense out of a statute and give full force and effect to the legislative product. Yeik v. Department of Revenue and Taxation, Wyo. 1979, 595 P.2d 965. In construing statutes, the intention of the law-making body must be ascertained from the language of the statute as nearly as possible. Wyoming State Treasurer v. City of Casper, Wyo. 1976, 551 P.2d 687. We must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation." With respect to the construction, operation and enforcement of constitutional provisions, we have said in Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 991 (1918): "The general principles governing the construction of statutes apply to the construction of Constitutions. * * * And the fundamental purpose in such construction is to ascertain the intent of the framers and the people who adopted it, and give effect thereto." In Schaefer v. Thompson, 240 F. Supp. 247, 253 (1964), it was said: "* * * In construing constitutional provisions, the fundamental purpose is to give effect to their purpose and intent. Courts will not ignore the general spirit of the instrument." Since the rule against perpetuities is applicable to executory interests, and since Wyoming's statute § 34-1-139, adopts the rule, the only question with respect to whether the interest at hand should be designated as executory is whether, under the exception by the Land Bank, the interest would offend the statutory rule. In this case, we must hold it would. As we have said, one of the characteristics of the executory interest is that it does not vest until possession. Under the Land Bank contingency language, there is no way to know that the interest in question will vest "not later than twenty-one (21) years after some life in being at the creation of the interest * * " § 34-1-139, and thus, if identified as executory, the interest is void as being in violation of the rule against perpetuities and in which case the intentions of the parties would be thwarted because fee title to the disputed minerals would remain in the Land Bank. II Characterization of the interests created by the grant based on the attributes of the mineral estate The discussion in Part I of this topic focuses exclusively on historical concepts 632 which are applicable to the interests created by deed in the Land Bank and Williams. If we were to temper these historical concepts by considering the unique attributes of a mineral estate, then the interest that Williams held following the Land Bank grant authoritatively and logically may be designated as a "vested remainder." As we have said, the Land Bank withheld a present fee interest in the mineral estate for 20 years and so long thereafter as production continues. An analogous example in the surface estate context would be a grant of Blackacre from A to B, reserving to A a present fee interest in Blackacre so long as no gambling occurs on the premises. A would own a fee simple determinable in Blackacre and B would have an executory interest. However, B's interest would be void under the rule against perpetuities, with the result that A would possess Blackacre in fee simple absolute. The interest in B in the above example is typical of the vast majority of executory interests. It is limited upon a condition precedent not certain ever to be fulfilled and it follows an estate in fee simple not certain to end. Gambling may never occur on Blackacre. Jones, The Rule Against Perpetuities as it Affects California Oil and Gas Interests, 7 U.C.L.A.Law Rev. 261, 265 (1960). In contrast, the event upon which Williams is to take the mineral estate is one certain to occur. Production of minerals will eventually cease; the only unknown is the time of cessation. When production of minerals ceases, the estate in the Land Bank automatically terminates. There is no doubt that the Land Bank's estate in the excepted minerals will eventually come to an end. See Jones, supra at 265-266. Remainder Interest Since the mineral estate in Williams differs significantly from the typical executory interest in Blackacre, it makes sense to call it something other than an executory interest. It is undisputed that the interest retained by the Land Bank is of a lesser duration than its original estate. The Land Bank excepted an estate which will eventually terminate, either because production was halted (for whatever reason) or the recoverable minerals were exhausted. Thus, some interest will remain after the estate excepted by the Land Bank expires and it is that interest which was conveyed to Williams. If Williams' interest satisfies all of the other requirements of a remainder, it should be possible, conceptually, to call it a remainder. According to Simes and Smith, supra, § 103, the other characteristics of a remainder are: 1. The remainder is always created by express limitation or by implication of fact and by the same instrument which creates the preceding estate. 2. At the time of its creation, the remainder must be capable of taking effect in possession at the expiration of the preceding estate, although it does not terminate the preceding estate. 3. The remainder does not normally divest or cut short the preceding possessory estate. Williams' interest was created by express limitation in the same deed that created the preceding estate in the Land Bank, and he stands ready to take possession upon the expiration of the Land Bank's estate. In addition, the estate in the Land Bank will terminate naturally upon the exhaustion of recoverable minerals or the cessation of mineral production for whatever cause. With only a little exercise of property-law imagination, the fee simple determinable in the mineral estate may be analogized to the ordinary life estate. When the minerals "die" (the passage of 20 years or the cessation of production), the present estate in the Land Bank expires and passes automatically to Williams. In light of the above discussion, it is therefore reasonable and proper to identify an interest in a mineral estate following a determinable fee as a remainder without doing impermissible damage to traditional common-law concepts. Vested Versus Contingent If Williams' interest is properly identified as a remainder, the next question 633 is: What kind of a remainder did Williams possess over and above the interest excepted by the Land Bank? As discussed above, the event upon which Williams will take is certain to occur. The only unknown is when the event will occur. In 28 Am.Jur.2d Estates § 242, p. 396, it is said: "The broad distinction between vested and contingent remainders is this: In the first, there is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat. In the second, it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have been determined, so that the estate in remainder will never take effect." A remainder is not rendered contingent merely because the time at which the estate will become possessory is uncertain. Section 243 of 28 Am.Jur.2d Estates provides: "There is a definite distinction between the uncertainty which makes a remainder contingent and the uncertainty of the estate's ever taking effect in possession, which is incident to even a vested remainder. In a contingent remainder, the right to the estate is uncertain, while in a vested remainder, the time of possession and enjoyment being deferred, there is an uncertainty as to whether the estate will ever be enjoyed in possession. It is in this respect only that a vested remainder is contingent and expectant; for, unlike a contingent remainder, it is vested in right, and the remainderman has an immediate right of future enjoyment. Although it may be uncertain whether a remainder will ever take effect in possession, it will nevertheless be a vested remainder if the interest is fixed. It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent and distinguishes it from a vested remainder." See also Jones, supra at 266-267. Bergin and Haskell, Preface to Estates in Land and Future Interests, supra at 71, identify two requirements for a vested remainder: (1) that there is no condition precedent to the future interest becoming a present estate other than the natural expiration of the prior life estate [or fee tail] and (2) that it is theoretically possible to identify who would get the right to possession if the prior estate should end at any time. Since the condition upon which Williams will take a present estate is certain to occur, and since the condition is the natural expiration or "demise" of the prior mineral estate, then Williams' estate is vested rather than contingent. Since Williams' estate was vested at the time of its creation, it is valid under the rule against perpetuities. Conclusion We of the majority are, by this discussion, forced to the observation that we now find ourselves playing games with respect to these future-interest brain twisters games in which only real-property professors should be permitted to indulge themselves. Suffice it to say, for purposes of disposing of this appeal, that a limitation will be construed as creating a remainder rather than an executory interest if such can be done consistently with other rules of law. 28 Am.Jur.2d Estates § 197, p. 341. Certainly this may be accomplished here. If, on the other hand, we were not able to come to the conclusion which is reached by the majority in this case, we would not be able to give effect to what all justices acknowledge was the intent of the parties. This is so because the interest remaining after the determinable fee would, if it were designated an executory interest, be in violation of the rule against perpetuities and therefore void. This would leave fee title absolute in the Land Bank a result which would defeat the intent of all parties. Williams' interest, after the Land Bank exception, was a vested remainder which was exceptable from the grant to the Watts 634 and when the contingency in the Land Bank deed expired, the minerals became his in fee simple absolute. Reversed and remanded for entry of an order which will give effect to this opinion. THOMAS, Justice, specially concurring. I concur in the result reached by the majority of the court in this case. I must, however, part company from the other members of the court with respect to the rationale for this decision. The difference between my views and those of the majority is over the most appropriate technique to avoid the rule against perpetuities which has been adopted by statute in Wyoming. Section 34-1-139, W.S. 1977 (quoted above in the majority opinion). All of us are in accord that the application of the rule against perpetuities would achieve a frustration of the intent of the parties in this instance. That result is intolerable. None of the parties in this case want the Federal Land Bank of Omaha, Nebraska, to own the mineral estate which is in issue. I cannot accept the recognition of a vested remainder interest in Williams following a determinable fee. My position is expressed in the following language found in Restatement of Property, § 156, p. 535 (1936): "* * * The word `remainder' does not include a future interest which becomes a present interest, if ever, upon the expiration of an estate in fee simple determinable, or of an analogous interest in a thing other than land, or of an estate in fee simple conditional." Citing Madison v. Larmon, 170 Ill. 65, 48 N.E. 556 (1897), overruled on another point Harrison v. Weatherby, 180 Ill. 418, 444, 54 N.E. 237 (1899); Outland v. Bowen, 115 Ind. 150, 17 N.E. 281 (1888); Sayward v. Sayward, 7 Me. 210 (1831); Church in Brattle Square v. Grant, 69 Mass. (3 Gray) 142 (1855); Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071 (1918); Lyford v. Laconia, 75 N.H. 220, 72 A. 1085 (1909); and Jordan v. Benwood, 42 W. Va. 312, 26 S.E. 266 (1896), the same proposition is expressed in 28 Am.Jur.2d Estates § 196, p. 340, in the following language: "* * * Wherever a grant is of a fee, there cannot be a remainder, although the fee may be a qualified or determinable one, because the fee is the whole estate and there is nothing left out of which a remainder may be carved." See also Simes and Smith, The Law of Future Interests, § 228, p. 264 (1956). I am in complete accord with the part of the majority opinion which identifies the interest created by the exception in the deed from the Federal Land Bank to Williams as a determinable fee. The interest which the Federal Land Bank retained by virtue of the exception in the deed is an interest which terminates automatically upon the expiration of 20 years or the cessation of production of oil, gas or other minerals from the property. It is noted in Restatement of Property, § 44, Comment i (1936) that a determinable fee can be created "as to be defeasible upon the occurrence of an event which is certain to occur some time, if the event is of such a character that the time of the occurrence thereof is neither fixed, nor computable nor certain to happen within the duration or at the end of any designated life or lives." Such an interest was created in this instance in the Federal Land Bank. It is my conclusion that the future interest in this instance properly is identified as an executory interest. There seems to be no question that had the determinable fee been created by grant rather than exception it would have been identified as a possibility of reverter. 28 Am.Jur.2d Estates § 27, p. 104. As noted in the majority opinion, 28 Am.Jur.2d Estates, § 37, p. 119, states, however: "While a fee simple determinable is created by the grant of the fee simple determinable to the grantee, thereby reserving the possibility of reverter to the grantor, where an attempt is made to reverse the positions of the grantor and grantee by excepting a determinable fee from the grant, the grantor is held to take a determinable fee, but the grantee takes a future 635 interest in the nature of a springing use, rather than a possibility of reverter, which future estate may, unlike a possibility of reverter, be subject to the rule against perpetuities. * " (Footnote omitted.) Generally executory interests are subject to the rule against perpetuities although it does not apply to a possibility of reverter. Walker v. Marcellus & O.L. Ry. Company, 226 N.Y. 347, 123 N.E. 736 (1919); 2 Williams and Meyers, Oil and Gas Law, § 335 (1981); Simes and Smith, The Law of Future Interests, §§ 1236 and 1239 (1956). The Legislature of the State of Wyoming has adopted the Model Rule Against Perpetuities Act drafted by the Commissioners on Uniform State Laws. Session Laws of Wyoming 1949, Ch. 92, §§ 1 and 2; §§ 34-1-138 and 34-1-139, W.S. 1977. The Model Rule Against Perpetuities Act also has been adopted in California (§ 715.2, Cal.Civil Code (West 1982)), and Montana (§ 70-1-408, Mont. Code Ann. (1981)). The effect of an adoption of the Model Rule Against Perpetuities Act has been described as that of "restoring the American common-law rule against perpetuities." VI American Law of Property, § 25.91, p. 358 (1952); Comment, Statutes Reinstating the Common Law Rule Against Perpetuities, 48 Mich.L.Rev. 1158, 1165 (1950); Fraser and Sammis, The California Rules Against Restraints on Alienation, Suspension of the Absolute Power of Alienation, and Perpetuities, 4 Hastings L.J. 101 (1953). At common law the rule against perpetuities was created by judicial decision. Gray, The Rule Against Perpetuities, §§ 123 to 200.1 (4th Ed. 1942); VI American Law of Property, § 24.4, pp. 14-16 (1952); 5 Powell on Real Property, ¶¶ 759-762 (1981). In his classic treatise, Gray takes the position that the rule is one limiting the time within which future interests can be created, i.e., a rule forbidding remoteness of vesting. Gray, supra, § 1-4, pp. 3 and 4; VI American Law of Property, § 24.3, p. 13 (1952). Modern commentators have not followed Gray's lead as to the rationale of the rule, but have instead taken the position that the underlying purpose of the rule is to provide for the free alienation of property. 5 Powell on Real Property, ¶¶ 762 and 767(a). The modern view is adopted by the Restatement of the Law of Property, § 370, comment i, p. 2150 (1944): "Thus the rule against perpetuities promotes alienability by destroying future interests which interfere therewith either by eliminating the power of alienation for too long a time or by lessening the probability of alienation for too long a time, * ." I would construe the language of Art. 1, § 30 of the Constitution of the State of Wyoming as adopting this modern view. In this case the difficulty with subjecting the executory interest of Williams to the rule against perpetuities is that there logically flows from that treatment a conclusion that the executory interest would be void resulting in a fee simple absolute with respect to that mineral interest in the Federal Land Bank of Omaha. The incongruity of such a result is manifested by the fact that it would be antithetical to the purpose and intent of the deed from the Federal Land Bank to Williams. Certainly even the Watts do not want to have this mineral interest owned by the Federal Land Bank of Omaha, Nebraska. If, however, the interest of Williams is regarded as vested for purposes of transferability and inheritability, and there is substantial authority to support such a proposition, then there would not occur a violation of the rule against perpetuities. This would be consistent with the modern view as to the underlying purpose of the rule against perpetuities because alienability would be facilitated, not diminished. The executory interest owned by Williams properly may be deemed "vested" if that term is taken to mean that the holder of the interest is at all times ascertainable and the preceding estate is certain to terminate. In his treatise, Gray notes that there is a dual meaning ascribed to the term "vested." Gray, The Rule Against Perpetuities, § 118, pp. 111-113 (4th Ed. 1942). Gray notes that the secondary meaning of the term "vested" is transmissible, but he takes the position that the rule against perpetuities 636 does not concern itself with this secondary meaning but instead deals only with notions of remoteness of possession. If Gray's position is adopted the executory interest in the instant case would not be considered vested because it may not become possessory within the period proscribed by the rule against perpetuities. More recent commentators take the position that executory interests which share many of the same characteristics as so-called vested remainders should be considered as "vested" within the meaning of the rule against perpetuities. In Simes and Smith, Law of Future Interests, § 223, pp. 254-255 (1956), the matter is addressed in the following way: "It should be pointed out that an executory interest limited on an event certain to happen is likely to be a much more substantial interest than one which depends upon an uncertain event. Thus, in the cases discussed above, an executory interest which is certain to come into enjoyment at the death of a designated person is closely linked with a vested remainder. It may well be, therefore, that they should have the same legal characteristics as their related (but differently named) interests. Rules which are adopted relative to the rather tenuous interests which depend upon uncertain contingencies may be poorly conceived when applied to an interest which bears the same name but is in fact of greater substance." Other commentators support the view of Simes and Smith that the rule against perpetuities should not be applied to executory interests in ascertainable persons which take effect upon events which are certain to occur. See Restatement, Property, § 370, comment h.p. 2146 (1944); VI American Law of Property, § 2420 (1952); Lynn, The Modern Rule Against Perpetuities, p. 15 (1966); 5 Powell on Real Property, ¶ 779[3] (1981). See further Simes and Smith, The Law of Future Interests, § 1236 (1956). Powell states the concept in this way: "Executory interests can either operate in defeasance of a prior vested fee or can be limited to take effect on a future event uncertain of occurrence. Both types of executory interest violate the common-law rule against perpetuities, when the event on which the executory interest is limited to arise or to shift is not certain to occur within the permissible period. Executory interests limited on an event certain to occur, however, require different consideration. Thus, a grant `to A twenty-five years from date' involves no contingency except the passage of time. Such an executory interest is not usefully regarded as `subject to a condition precedent.' It is, therefore, not subject to the common-law rule against perpetuities. It causes no inconvenient fettering of alienability because of the existence of actuarial techniques for valuing both the preceding and the future interest." (Footnotes omitted.) 5 Powell on Real Property, ¶ 779[3], at pp. 73-6 and 73-7 (1981). It is not correct, as assumed by the majority opinion, that recognizing the interest in Williams as an executory interest necessarily must lead to its invalidation under the common-law rule against perpetuities. The executory interest here is limited upon alternative contingencies, the expiration of the 20-year term without production, or the cessation of production, only the latter of which is violative of the rule against perpetuities. The common law in such cases recognized an exception to the rule against perpetuities. This exception is encompassed in the Restatement, Property, § 376, p. 2199 (1944), which stated: "The validity of each separate limitation is determined separately under the rule against perpetuities." The inception of this exception to the rule against perpetuities is found in Longhead v. Phelps, 2 W. Blackstone 704, 96 English Reports 414 (1770), in which the court refused to consider the effect under the rule against perpetuities of alternative contingencies created by will which structured a trust because in fact the first alternative did not violate the rule against perpetuities and had taken effect. See also VI American Law of Property, § 24.54 (1952); Simes 637 and Smith, The Law of Future Interests, § 1257 (1956); Annot. 64 A.L.R. 1077 (1930); Annot. 98 A.L.R. 2d 807 (1964), and the cases cited in these annotations. This rule would fit the instant case because here also the rule against perpetuities was not violated; the 20-year term had passed without production at the time the present action was instituted. Essentially this is the rule that is recognized in First Portland National Bank v. Rodrique, 157 Me. 277, 172 A.2d 107 (1961), as summarized in Annot. 98 A.L.R. 2d 807, 816 (1964). I would hold in the case before us that since the executory interest is limited upon alternative contingencies, one of which violates the rule against perpetuities and the other of which does not, the invalid provision had no impact upon the validity of the other contingency because the event occurred upon which the efficacy of the valid contingency depended. There was no mineral production, development, or operation within the 20-year period, and the rule against perpetuities should not be applied to void Williams' interest. Bagby v. Bredthauer, Tex. App., 627 S.W.2d 190 (1981), demonstrates that there are other ways of reaching the same result. In that case the Court of Appeals of Texas avoided applying the rule against perpetuities by treating an apparent springing executory interest as a possibility of reverter, which, as I have noted, is not subject to the rule. This was accomplished by a legal fiction of an implied regrant. In effect the Texas court held that the grantor had reserved a right to have the defeasible fee granted back to its grantee. After invoking the fiction the defeasible fee then was regarded as created by grant, not by exception, and the future interest became a possibility of reverter. While such a rule is somewhat awkward, it does not seem to me to be any more awkward than calling this interest a vested remainder, and it does effectuate the intent of the parties. The history in California with respect to the application of the rule against perpetuities to executory interests is demonstrative of the extent to which that jurisdiction has been willing to go in order to avoid the rule against perpetuities. California's statutory rule against perpetuities is identical to that contained in our statutes. In construing a deed in which a very similar future interest to the one in this case was created, the California Appellate Court held the interest to be void for violation of the rule against perpetuities. Victory Oil Co. v. Hancock Oil Co., 125 Cal. App. 2d 222, 270 P.2d 604 (1954). The court reasoned that the future interest, which was created upon the condition that minerals be discovered on the property within five years from the date of grant, was dependent upon the dubious, uncertain future event, and therefore was subject to the rule against perpetuities. Four years later the Supreme Court of California reached an opposite result in Brown v. Terra Bella Irrigation District, 51 Cal. 2d 33, 330 P.2d 775 (1958). Brown had obtained a quitclaim deed from a common grantor who previously had given a deed to the Irrigation District in which the grantor reserved a mineral estate for a period of 25 years and so long thereafter as production continued. The deed provided that the grantor "hereby grants, bargains, sells and conveys all of said real property aforesaid, to the [Irrigation District] together with the tenements, hereditaments, and appurtenances thereunto belonging or appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof." The Supreme Court of California held that the grantor's interest upon the failure of the future interest in the Irrigation District also was transferred to it under the language of the deed. This inconsistent result was criticized in Simes, Perpetuities in California Since 1951, 18 Hastings L.J. 247, 264-265 (1967). Finally, in Rousselot v. Spanier, 60 Cal. App. 3d 238, 131 Cal. Rptr. 438 (1976), the Court of Appeals specifically refused to follow the rule of Victory Oil, holding that under California law the mineral estate is in the nature of a profit a prendre, which is an incorporeal interest not subject to the rule against perpetuities. The California approach perhaps presents an extreme in avoiding the application of the rule against perpetuities. 638 In 2 Williams and Meyers, Oil and Gas Law, § 335, p. 185 (1981), a more straight-forward approach is advocated. It there is said: "* * * [D]efeasible term interests serve a useful social purpose, whether reserved or granted. The term interest, as compared with a perpetual interest, tends to remove title complications when the land is no longer productive of oil or gas. This simplification of title promotes alienability of land, which is one purpose served by the Rule against Perpetuities. We believe, therefore, that the courts should simply exempt interests following granted or reserved defeasible term interests from the Rule, on the straight-forward basis that they serve social and commercial convenience and do not offend the policy of the Rule against Perpetuities." While this approach apparently has not been taken by any other court, it does seem that there is a good deal of merit in having the same result in an instance in which the determinable fee is created by exception as in the instance in which it is created by grant. I am disposed to advocate such an approach as a rational and appropriate method of cutting through the intricacies of the common law in order to effectuate the intent of the parties. Essentially Williams and Meyers, supra, is advocating the application to this situation of the maxim that when the reason upon which a rule is justified is not present the rule should not be invoked. See Wong v. Digrazia, 35 Cal. Rptr. 241, 60 Cal. 2d 525, 386 P.2d 817 (1963). The discussion in the majority opinion ignores those executory interests which are certain to take effect in possession or enjoyment in the future, and therefore are not contingent, but which cannot be classified as vested in the traditional sense. See Simes and Smith, Law of Future Interests, § 223 (1956). The analysis made in the majority opinion ignores the substantive rules which have developed with respect to the transferability of future interests. The general rule which is recognized in the Restatement of Property, § 162 (1936), is that all remainders and executory interests are alienable by ordinary conveyance without any condition attached based upon whether the interest is vested or contingent. See also Simes and Smith, The Law of Future Interests, §§ 1852, 1857 and 1859 (1956). The language found in 28 Am.Jur.2d Estates, § 371, p. 578, is peculiarly applicable in this situation: "Executory devises are now generally considered not as bare possibilities, but as certain interests and estates, and as such to be assignable, devisable, and transmissible to the representatives of the devisee, provided the identity of the latter is certain and the object of the devise is fixed. * * " I am sensitive to a suggestion that this approach is judicial legislation because it alters the statutory rule against perpetuities adopted by our legislature. At common law the rule against perpetuities was judicially created, and even though the language of § 34-1-139, W.S. 1977, is quite positive, it seems appropriate to judicially recognize the exception to the rule against perpetuities advocated in Williams and Meyers, Oil and Gas Law, § 335 (1981). We should remember that the purpose of the statute was to adopt the American common-law rule against perpetuities. The legislature well may have intended to adopt the American common-law rule with the exception engrafted. This certainly would be consistent with the purpose articulated in Art. 1, § 30 of the Constitution of the State of Wyoming. Further, this court has recognized that in those instances in which the justification for a judicially created rule is no longer viable, the court is at liberty to follow comparatively recent decisions or to base its decision upon fundamental principles underlying the rule of law. McClellan v. Tottenhoff, 666 P.2d 408, Wyo. (1983); Choman v. Epperly, Wyo., 592 P.2d 714 (1979); and Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339 (1974). This same philosophy should extend to the adoption of exceptions to the statutory rule against perpetuities which were recognized prior to the adoption of the statute, particularly when the recognition of the exception serves the ultimate purpose of the rule promoting the free alienability of property and 639 removing restraints otherwise imposed upon alienability. In summary I would dispose of this case by recognizing that under the common law the interest created in Williams by virtue of the deed from the Federal Land Bank with respect to the determinable fee excepted from its grant by the Federal Land Bank is an executory interest, not a remainder. I would conclude that the rule against perpetuities should not be invoked in such an instance to void the interest created in Williams, and upon the termination of the determinable fee the balance of the minerals became Williams' property. I have suggested to the court that perhaps wisdom would be found in abandoning at this time any reliance upon common-law labels with respect to future interests. All of us are satisfied that, at the time of his conveyance to the Watts, Williams owned a future interest which enjoyed the properties of alienability and inheritability, and was not subject to the rule against perpetuities. The result is that he had such an interest as could be retained when he made his grant to the Watts, and it is clear from the intention of the parties manifest in this record that he did so. Perhaps it would suffice to simply address the problem in these terms without resort to the historical labels of the common law. We might find that such a resolution would be perceived as a benefit to the practicing bar. NOTES [] Retired June 13, 1983, but continued to participate in the decision of the court in this case pursuant to order of the court entered June 13, 1983. [*] BROWN, J., did not participate in the decision. [1] This language was also contained in the 1940 contract for deed between the Federal Land Bank and Williams. [2] Section 34-1-139, W.S. 1977 adopts the rule against perpetuities and provides: "No interest in real or personal property shall be good unless it must vest not later than twenty-one (21) years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of vesting must not be so numerous nor so situated that evidence of their deaths is likely to be unreasonably difficult to obtain. It is intended by the enactment of this statute to make effective in this state the American common-law rule against perpetuities." [3] Restatement of the Law of Property, § 156. [4] 1 Williams and Meyers Oil and Gas Law, § 203.1 (1981). [5] We have held that a term for years is not a freehold interest. King v. White, Wyo., 499 P.2d 585 (1972). [6] In an exception in a deed, it would be the grantor who possessed the fee simple determinable estate. [7] See n. 2. [8] Article 1, § 30 of the Wyoming Constitution provides: "Perpetuities and monopolies are contrary to the genius of a free state, and shall not be allowed." [9] Justice Thomas in his concurring opinion advocates "cutting through the intricacies of the common law" by following the suggestion of 2 Williams and Meyers Oil and Gas Law, § 335, p. 185 (1981) where it is said: "We believe, therefore, that the courts should simply exempt interests following granted or reserved defeasible term interests from the Rule, on the straight-forward basis that they serve social and commercial convenience and do not offend the policy of the Rule against Perpetuities." Justice Thomas says: "While this approach apparently has not been taken by any other court, it does seem that there is a good deal of merit in having the same result in an instance in which the determinable fee is created by exception as in the instance in which it is created by grant. I am disposed to advocate such an approach as a rational and appropriate method of cutting through the intricacies of the common law in order to effectuate the intent of the parties." (Emphasis added.) 668 P.2d at 638.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2609778/	866 P.2d 1166 (1994) 116 N.M. 699 In the Matter of Tony LOPEZ, Jr., An Attorney Admitted to Practice Before The Courts of the State of New Mexico. No. 21451. Supreme Court of New Mexico. January 6, 1994. David A. Baca, Deputy Disciplinary Counsel, Albuquerque, for Disciplinary Bd. Tony Lopez, Jr., pro se. DISCIPLINARY PROCEEDING OPINION PER CURIAM. This matter is before the Court following disciplinary proceedings conducted pursuant to the Rules Governing Discipline, SCRA 1986, 17-101 to -316 (Repl.Pamp. 1991), in which attorney Tony Lopez, Jr., in accordance with an agreement for discipline by consent admitted to various violations of the Rules of Professional Conduct, SCRA 1986, 16-101 to -805 (Repl.Pamp. 1991). Pursuant to Rule 17-211(B)(1)(a) we adopt the disciplinary board's recommendation that the agreement not to contest and consent to discipline be accepted and that Lopez be disbarred pursuant to Rule 17-206(A)(1). On November 16, 1992, in the District Court for the Eighth Judicial District of the State of New Mexico, Lopez was convicted by way of a guilty plea of the crime of embezzlement over $2,500, a third degree felony in violation of NMSA 1978, Section 30-16-8. Formal disciplinary proceedings were initiated by the filing of formal charges *1167 against Lopez on February 8, 1993, alleging (on the basis of Lopez' felony conviction) violations of Rules 16-804(B), (C), (D), and (H) of the Rules of Professional Conduct. In the agreement not to contest and consent to discipline, Lopez agreed that his conduct was violative of the aforementioned Rules of Professional Conduct, and that the sanction of disbarment was appropriate under the circumstances. IT IS THEREFORE ORDERED that Tony Lopez, Jr. be and hereby is disbarred from the practice of law pursuant to SCRA 1986, 17-206(A)(1). IT IS FURTHER ORDERED that Lopez may file a motion for permission to apply for reinstatement pursuant to SCRA 1986, 17-214(A) three years from the date of his disbarment provided that he has been fully released from probation as having successfully fulfilled all requirements of the Department of Corrections in connection with the sentence imposed upon him as a result of his felony conviction. IT IS FURTHER ORDERED that nothing in the agreement for discipline by consent is intended to bind this Court with respect to its future ruling on any such motion for reinstatement at whatever time it may be filed by the respondent. IT IS FURTHER ORDERED that, should this Court enter an order permitting the filing of an application for reinstatement, it will be Lopez' burden to demonstrate by clear and convincing evidence that he has the moral qualifications, that he is once again fit to resume the practice of law, and that the resumption of his practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest. IT IS FURTHER ORDERED that this opinion be published in the Bar Bulletin and New Mexico Reports. IT IS FURTHER ORDERED that Lopez shall pay $73.30 in costs incurred in this disciplinary action. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2609780/	866 P.2d 729 (1993) Billie L. MOWRY, Appellant (Plaintiff/Petitioner), v. STATE of Wyoming, ex rel., WYOMING RETIREMENT BOARD, Appellee (Defendant/Respondent). No. 93-99. Supreme Court of Wyoming. December 23, 1993. Mitchell E. Osborn of Grant & Osborn, Cheyenne, for appellant. Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee. 730 Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ. CARDINE, Justice. Appellant, Billie L. Mowry (Mowry), a retired school district superintendent, seeks judicial review of appellee Wyoming Retirement Board's (board) decision which held that severance pay received by Mowry in 1989 would not be included in calculating his retirement benefits. We affirm the decision of the board. Mowry phrases the issue as: Is "severance pay," received pursuant to a valid employment contract, "cash remuneration" and, therefore, "salary" as defined under Wyoming Statute § 9-3-402(a)(xvi)? The board phrases the issue differently: Whether the Wyoming Retirement Board's decision to not include severance pay as salary in calculating the Appellant's retirement benefits was arbitrary, capricious or an abuse of discretion or otherwise not in accordance with law. FACTS In 1979, Mowry was hired by Lincoln County School District No. One as the superintendent of schools. From 1981 through 1987, Mowry and the school board made a series of two-year employment contracts. The two-year contract signed in 1987 was due to expire in 1989; however, in June of 1988, Mowry and the school board negotiated a new one-year contract which included a provision stating that if his contract was not renewed the following year, then the district would pay "in addition to the salary provided for in this contract, severance compensation of an amount equal to one-third of the contract amount." Mowry's contract was not renewed for 1989-90, and he was paid his regular monthly salary and the severance pay in one check each month over the last six months of employment with Lincoln County School District No. One. During these last six months of employment, the school district contributed, on behalf of Mowry, to the retirement system based on the total amount Mowry received, including the severance pay. From 1989 until his retirement in June of 1992, Mowry was the high school principal in Burns, Wyoming. In 1992, Mowry inquired with the retirement system about retirement benefits available if he retired. On April 27, 1992, a benefit specialist at the retirement system forwarded Mowry a letter describing his estimated monthly retirement benefits, which were calculated based on the inclusion of his 1989 severance pay. Mowry retired in June of 1992. On July 16, 1992, Mowry received a second estimate letter from the retirement system, which excluded the 1989 severance pay from its calculations and reduced his estimated monthly benefits by approximately $300.00 per month. When the benefits were first calculated in April, the benefit specialist had not realized that Mowry's 1989 salary checks included severance pay. Mowry challenged the retirement system's reduction in his estimated benefits before a hearing officer, asserting that his severance pay should have been included in the benefits calculation. The hearing officer ruled in favor of the retirement system staff, concluding that Mowry's 1989 severance pay was not salary and thus should not be included in the benefits calculation. The board adopted the hearing officer's decision. Mowry sought judicial review of the board's decision in district court, which then certified the matter to this court. DISCUSSION The issue presented to this court concerns statutory construction and thus is purely a question of law. Parker Land & Cattle Co. v. Wyoming Game & Fish Comm'n, 845 P.2d 1040, 1042 (Wyo.1993). We review legal conclusions of an administrative agency to determine whether those conclusions are in accordance with law. Amax Coal Co. v. Wyoming State Bd. of Equalization, 819 P.2d 825, 829 (Wyo.1991). Our method for determining the meaning of statutes is firmly established. See Parker Land & Cattle Co., 845 P.2d at 1042-45. We may resort to certain rules of construction to ascertain legislative intent 731 but only after we have determined that the statute is ambiguous. Id., at 1043. One of those rules of statutory construction requires us to give deference to the construction given a statute by the administrative agency charged with administering the ambiguous statute. Id., at 1045. In other words, we will affirm that agency's construction unless we find it to be clearly erroneous. Id. The formula for calculating Mowry's retirement benefits is described in W.S. 9-3-418(a) (1991), which provides: The retirement allowance for a member who first becomes covered under this article after June 30, 1981 is equal to two percent (2%) of the average salary for the highest three (3) continuous years of covered service multiplied by the years of covered service. [emphasis added] 1989 was one of the years first used to calculate Mowry's "average salary." That year included the severance payments of 1989 as part of Mowry's 1989 salary. Mowry asserts that the April estimate, which included the severance payments, was correct as a matter of law because the plain and ordinary meaning of "salary" includes severance payments. The board argues that severance payments are not "salary." The term salary is defined in W.S. 9-3-402(a)(xvi) (1991), which provides: "Salary" means the cash remuneration paid * * * in any calendar year to an employee * * *. "Words used within statutes are to be given their plain and ordinary meaning." Vandehei Developers v. Public Serv. Com'n, 790 P.2d 1282, 1285 (Wyo.1990). Mowry argues that the plain and ordinary meaning of remuneration is "any kind of payment" received, while the board asserts that remuneration means only those payments made in return for services performed. Black's Law Dictionary defines remuneration as "[r]eward; recompense; salary; compensation." Black's Law Dictionary at 1165 (5th ed. 1979). Each of the terms used to define "remuneration" are also defined in Black's as referring to payments made in exchange for something equivalent, such as services rendered. Id., at 1188, 1144, 1200, 256. Websters' Third New International Dictionary (1966) defines "remunerate" as: "1: to pay an equivalent for (as a service, loss or expense) 2: to pay an equivalent to (a person) for service, loss or expense," and defines "remuneration" as "remunerating." Thus, the plain and ordinary meaning of remuneration clearly contemplates payments made in return for something equivalent. Severance pay is "[p]ayment by an employer to employee beyond his wages on termination of his employment." Black's, at 1232. "The historical meaning of severance payor `dismissal compensation' to use the older parlanceis payment `made by an employer to an employee for permanently terminating the employment relationship primarily for reasons beyond the control of the employee.'" Howard A. Specter and Matthew W. Finkin, 1 Individual Employment Law and Litigation § 5.26 at 327 (1989). These definitions suggest that "severance pay" is primarily gratuitous and, although it may be intended to partially alleviate the loss of employment, it is not an attempt to equally compensate the employee for services rendered, losses suffered, or expenses incurred. Based on the plain and ordinary meanings of "severance pay" and "remuneration," Mowry's 1989 severance pay is not "remuneration" and, therefore, not "salary" and should not be included when calculating his retirement benefits under W.S. 9-3-418. DISPOSITION The board's decision to exclude Mowry's 1989 severance payment when it calculated Mowry's retirement benefits is affirmed because severance payments are not "salary" as defined in the Wyoming Retirement Act.	01-03-2023	10-30-2013

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