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https://www.courtlistener.com/api/rest/v3/opinions/3964239/	The unlawful possession of whisky for the purpose of sale in a dry area is the offense; the punishment, a fine of $100.00. Prior to announcing ready for trial, appellant filed a motion for severance, asking that one K. P. Jones — who was then under separate accusation for an offense growing out of the same transaction as that charged against appellant — be first tried. The motion complied with the statutory prerequisites. (Art. 651, C. C. P.) Appellant's exception to the action of the trial court in overruling the motion is preserved by a proper bill of exception, unqualified and unexplained by the trial court. Under the facts stated, appellant was entitled to the severance and the motion should have been granted. Willis v. State, 141 Tex.Crim. R., 148 S.W.2d 397. In the absence of explanatory testimony, we are unable to see the materiality of the figures and notations found in a small book upon appellant's person after arrest. This suggestion is made in view of another trial. For the error in overruling the motion for severance, the judgment of the trial court is reversed and the cause remanded. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2601696/	228 P.3d 1311 (2010) 2010 WY 46 Edgar Eduardo NAVA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). No. S-09-0144. Supreme Court of Wyoming. April 20, 2010. 1312 Representing Appellant: Scott Powers of Law Office of Scott Powers, Cheyenne, Wyoming. Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Anna C. Swain, Student Intern, Prosecution Assistance Program. Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ. VOIGT, Chief Justice. [¶ 1] Edgar Eduardo Nava (the appellant) appeals from his conviction for felony possession of a controlled substance. The appellant claims that the district court erred in denying his motion to suppress the evidence found in his car during a traffic stop. Specifically, he claims that he was subjected to custodial interrogation without first being given Miranda warnings and that his consent to the trooper's questioning and subsequent search of his vehicle was not voluntary. Finding no error, we will affirm the decision of the district court. ISSUES [¶ 2] 1. Whether the appellant should have been given Miranda warnings before the trooper asked any further questions after the initial traffic stop? 2. Whether the appellant's consent to further questioning and to the search of his vehicle was given voluntarily? FACTS [¶ 3] On October 23, 2007, the appellant was stopped on Interstate 25 by a Wyoming Highway Patrol Trooper for speeding (81 mph in a 75 mph zone).[1] The trooper approached the appellant's vehicle, advised him of the reason for the stop, and asked for his driver's license, insurance, and registration. As he approached the vehicle, the trooper noted that all of the vehicle's windows were rolled about half-way down and he could smell the overpowering odor of air freshener coming from the vehicle. He was also confronted with a strong odor of cologne and noticed a bottle of cologne located on the center console. As the appellant was searching for the requested information, the trooper observed that the appellant's hands were visibly shaking and he appeared extremely nervous. [¶ 4] The trooper asked the appellant to accompany him to the trooper's vehicle. Upon exiting his vehicle, the appellant rolled up all of the windows. Inside the patrol car, the appellant remained "considerably nervous," with his legs constantly moving and his hands shaking. This nervous behavior persisted through the entire stop. When asked about the nature of his trip, the appellant responded that he and his girlfriend, who was the passenger in the vehicle, were traveling to St. Louis, Missouri, to visit his 1313 family. However, a short time later, the appellant stated that he was going to Kansas City, Missouri. The appellant also told the trooper that he was a firefighter and had finished work for the year because the fire season was over. The trooper asked the appellant if he had been watching the news, noting that about a quarter of California was reportedly on fire at the time. The appellant did not respond to this comment. [¶ 5] The trooper issued a warning citation, returned the appellant's paperwork and told him he was free to go. The appellant then exited the patrol car and started walking toward his vehicle. At this time, the trooper exited his vehicle and asked the appellant if he could ask some more questions. The trooper told the appellant that he did not have to answer any more questions, but the appellant, without hesitation, said it was "okay" for the trooper to ask more questions. The trooper then told the appellant that he wanted to clarify where exactly he was going. The appellant stated that he was going to St. Louis. The trooper then asked the appellant if he had any marijuana, cocaine, or methamphetamine in his vehicle. The appellant said no, and offered to allow the trooper to search his suitcase. The trooper then asked if the appellant was carrying large amounts of cash, and the appellant responded that he had $1,500 in his pocket for gas money. The trooper then asked for permission to search the vehicle and the appellant told the trooper to go ahead. Upon receiving permission to search, the trooper directed the passenger to exit the vehicle. The trooper opened the suitcase the appellant specifically stated he could search, and underneath the clothes were several bags of high-grade marijuana. [¶ 6] The appellant was charged with one count of felony possession of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii) (LexisNexis 2009), and one count of possession with intent to deliver marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2009). The appellant filed a motion to suppress evidence, which motion was denied. The parties subsequently entered into a conditional guilty plea agreement. Pursuant to that plea agreement, the appellant entered a guilty plea on November 10, 2008 to Count II of the Information; Count I was dismissed. The district court imposed a sentence of three to five years incarceration, which sentence was suspended and the appellant was placed on supervised probation for a term of four years. The appellant timely appealed from the judgment and sentence. STANDARD OF REVIEW [¶ 7] The standard employed when reviewing a district court's denial of a motion to suppress is well established: When reviewing a district court's decision on a motion to suppress evidence, we defer to the court's findings on factual issues unless they are clearly erroneous. Campbell v. State, 2004 WY 106, ¶ 9, 97 P.3d 781, 784 (Wyo.2004). We view the evidence in the light most favorable to the district court's decision because it is in the best position to assess the witnesses' credibility, weigh the evidence and make the necessary inferences, deductions and conclusions. Id. The constitutionality of a particular search and seizure, however, is a question of law that we review de novo. Id. Garvin v. State, 2007 WY 190, ¶ 10, 172 P.3d 725, 728 (Wyo.2007) (quoting Hembree v. State, 2006 WY 127, ¶ 7, 143 P.3d 905, 907 (Wyo.2006)). DISCUSSION [¶ 8] In this appeal, the appellant claims that the search of his vehicle was illegal inasmuch as it violated his rights under the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution to be secure against unreasonable searches and seizures. Although the appellant mentions both our state and the federal constitutional provisions, and asserts that it "appears" that the Wyoming Constitution provides more protection than its federal counterpart, he fails to provide a "precise, analytically sound approach when advancing an argument to independently interpret the state constitution." Vasquez v. State, 990 P.2d 476, 484 (Wyo.1999). Thus, 1314 we find it unnecessary to conduct a separate analysis under Article 1, § 4.[2] [¶ 9] The appellant makes two arguments as to why the search of his vehicle was illegal. First, he contends that after he was issued a warning citation and told he was free to leave, the trooper's further questioning resulted in custodial interrogation and he should have been "Mirandized" before being subjected thereto.[3] Second, he argues that the search of his vehicle was improper inasmuch as his consent thereto was not voluntary. [¶ 10] With regard to when a suspect is subject to custodial interrogation, thus requiring Miranda warnings before further questioning, we have said the following: Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Jelle v. State, 2005 WY 111, ¶ 14, 119 P.3d 403, 408 (Wyo. 2005). In resolving the custodial status of a suspect we consider "whether a reasonable man in [the suspect's] position would have considered himself to be in police custody." Gompf v. State, 2005 WY 112, ¶ 31, 120 P.3d 980, 988 (Wyo.2005). General on-the-scene questioning as to facts surrounding a crime is not "custodial interrogation," nor are statements volunteered freely without compelling influences. Id. We consider the totality of the circumstances when determining whether a suspect was in custody when questioned. Id. Several factors are relevant to the determination: Among these are: (1) whether a suspect is questioned in familiar or neutral surroundings; (2) the number of police officers present; (3) the degree of physical restraint and whether it is comparable to those associated with a formal arrest; and (4) the duration and character of the interrogation. See 2 Wayne R. LaFave, Jerold H. Israel and Nancy J. King, Criminal Procedure § 6.6(c) at 527 (2nd ed.1999); see also Wunder [v. State], 705 P.2d [333,] 335 [ (Wyo.1985) ]. Jelle, ¶ 14, 119 P.3d at 408. Barnes v. State, 2008 WY 6, ¶ 14, 174 P.3d 732, 736-37 (Wyo.2008). We have also said that the following considerations may be relevant in some cases: The nature of the interrogator, the nature of the suspect, the time and place of the interrogation, the progress of the investigation at the time of the interrogation, whether the suspect is informed that his detention would not be temporary, and the elapsed amount of time between questioning and the arrest may be important factors as well. Jelle v. State, 2005 WY 111, ¶ 14, 119 P.3d 403, 408 (Wyo.2005). [¶ 11] The appellant does not analyze whether the trooper's further questioning was custodial in nature using the above-listed factors. Instead, he argues that it "appears that the [appellant] never truly felt that he was free to leave at any time after the issuance of the citation, especially true when the Trooper noted in his probable cause affidavit that he had already made up his mind that the [appellant] was transporting illegal drugs prior to following the [appellant] to the vehicle and requesting to ask additional questions." This argument is inadequate for two reasons. First, as noted above, we evaluate the nature of police interrogation using an objective "reasonable man" standard. See supra ¶ 10. Thus, the subjective beliefs or feelings of neither the trooper nor the appellant are relevant to the question 1315 of whether particular interrogation was custodial. We have said "[t]he Court has been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers and has held unanimously that `[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.'"' Damato v. State, 2003 WY 13, ¶ 10, 64 P.3d 700, 705 (Wyo.2003) (quoting Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996)); see also Marinaro v. State, 2007 WY 123, ¶ 11 n. 3, 163 P.3d 833, 836 n. 3 (Wyo.2007). [¶ 12] Secondly, our precedent on this issue leads us to conclude that the questioning here, under these circumstances, was not custodial in nature. For example, in Jelle v. State, the defendant was suspected of providing lethal mushrooms to another individual resulting in that person's death. 2005 WY 111, ¶ 3, 119 P.3d. at 405. The defendant was observed leaving a residence and then followed and stopped in an alley by a group of police officers in three vehicles. Three of the four officers present questioned the defendant at different times concerning his involvement in providing the lethal mushrooms. Id. at ¶¶ 5-10, at 406-07. The questioning lasted approximately thirty minutes. Id. at ¶ 11, at 407. Additionally, although the officers stated that they told the defendant he was free to leave and did not have to answer questions, the defendant testified at the suppression hearing that the officers did not tell him he could leave, but instead specifically instructed him that he could not leave until they were done asking their questions. Id. [¶ 13] In concluding that no Miranda warning was required because the appellant was not in custody, we made a number of observations concerning the nature of the encounter. Id. at ¶¶ 17-18, at 409-10. We noted the following: the encounter occurred in neutral territory, in an area where the appellant had been before and with which he was familiar, the appellant only noticed three officers at the scene, and at no time did the officers use "mass presence" to intimidate the appellant; no team or tandem interrogation took place; the questioning occurred in a public place in broad daylight; the appellant's car was not "blocked in" by the detectives' cars and he was able to drive away at the end of the encounter; the appellant was informed that he was not under arrest and that he did not have to talk to the officers; the detectives were in plain clothes and immediately identified themselves as police officers; the entire encounter lasted less than thirty minutes; there were no threats, raised voices, or weapons drawn; and the appellant was not arrested or restrained. Id. [¶ 14] Comparing the facts and circumstance presented here to those described in Jelle leads us to conclude that a reasonable person in the appellant's position would not have considered himself in police custody. When the trooper re-initiated questioning, the appellant had been advised he was free to go and was on his way back to his vehicle, the trooper was the only police officer present, the appellant was in no way restrained, the trooper informed the appellant that he did not have to answer additional questions, and the total time of questioning was relatively brief. Therefore, the trooper was not required to give Miranda warnings before further questioning. [¶ 15] We turn now to the appellant's second issue: whether his consent to the search of his vehicle was valid.[4] Although consent is a well-recognized exception to the warrant requirement, consent must be voluntary in order for it to be effective. [A] waiver of constitutional rights under our constitution must appear by clear and positive testimony, and, if a search or seizure 1316 is based upon the proposition that consent was given, there should be no question from the evidence that consent was "really voluntary and with a desire to invite search [or seizure], and not done merely to avoid resistance." Acquiescence and nonresistance have not been deemed sufficient under Wyoming law to establish consent. O'Boyle v. State, 2005 WY 83, ¶ 38, 117 P.3d 401, 412 (Wyo.2005) (citations omitted). When addressing whether consent is voluntary under the Fourth Amendment, we have said: In determining whether a warrantless search was justified by a valid consent, we inquire "into the `voluntariness' of the consent in light of the `totality of the circumstances'" of the particular case. Some of the factors that a court may consider in determining whether the consent was voluntary include: the way the law enforcement officer phrased the request for permission to search; whether the officer told the individual that he could refuse the request; and the presence of other coercive factors. We must consider all the circumstances surrounding the encounter to determine whether a reasonable person would have felt "free to decline the officers' requests or otherwise terminate the encounter." No single factor is determinative when we are ascertaining whether a seizure occurred. Grant v. State, 2004 WY 45, ¶ 22, 88 P.3d 1016, 1021 (Wyo.2004) (citations omitted). [¶ 16] In this case, the trooper testified at the suppression hearing that when he asked the appellant if he could ask him more questions, the appellant immediately responded that it was "okay." Also, the trooper testified that when he asked the appellant if he was in possession of any illegal drugs, the appellant responded in the negative and offered to allow the trooper to check his suitcase. Then, when the trooper asked for permission to search, the appellant said "go ahead." [¶ 17] The appellant does not dispute the officer's testimony in this regard, but instead claims that "no reasonable person would have felt free to leave" under the circumstances and therefore his consent to the search of his vehicle could not have been voluntary. To support this contention, he cites to O'Boyle v. State, where we found that a suspect's consent to search his vehicle was not voluntary. 2005 WY 83, ¶ 38, 117 P.3d at 412. However, in O'Boyle, the officer asked more than thirty "intrusive" and "repetitive" questions largely unrelated to the traffic stop; there were two troopers and a drug dog on the scene; and O'Boyle was never informed he did not have to answer any of the questions or that he was free to leave. Id. at ¶ 63, at 419. [¶ 18] The State contends that because of the factual difference, O'Boyle should not control here, and instead argues that two recent cases are more on-point. In the first case, Marquez-Guitierrez v. State, 2007 WY 155, 167 P.3d 1232 (Wyo.2007), after two officers separately questioned the defendant and the driver of the vehicle about the nature of their trip, the driver was issued a warning ticket, his paperwork was returned, and he was told they could be on their way. Id. at ¶¶ 6-8, at 1234. As the driver was returning to his vehicle, the trooper stopped him and asked if he could ask a few more questions. Id. at ¶ 9, at 1234. The trooper asked if he could search the vehicle and told the driver that a dog would be there soon to "take a quick sniff" and then they would be on their way. Id. The driver consented. Id. Approximately thirty-three minutes after the vehicle was pulled over, the drug dog arrived and indicated the presence of drugs in the vehicle. Id. at ¶ 11, at 1235. On appeal, we rejected the argument that the consent was not voluntary. Id. at ¶¶ 23-24, at 1237. To support our decision, we noted that the trooper told the appellant that he was free to go, that the trooper had returned the paperwork, that the trooper was easy-going and non-threatening, and that the driver had testified that he did not feel coerced or intimidated into giving consent. Id. at ¶ 24, 1237-38. [¶ 19] The other case cited by the State is Marinaro v. State, 2007 WY 123, 163 P.3d 833 (Wyo.2007). There, the driver was issued a warning ticket, his paperwork was returned, and he was told he could leave and to "have a safe trip." Id. at ¶ 4, at 834. The 1317 trooper radioed for assistance and a canine unit then re-approached the driver as he reached his car. Id. The trooper asked if he could ask more questions, to which the driver assented, then the trooper asked more questions about the driver's travel plans. Id. After a few more questions, the trooper asked if the appellant had any drugs, guns, or cash in his vehicle. Id. at ¶ 5, at 834. The trooper asked if he could search the car and the driver consented and began opening the car's doors for the trooper. Id. The driver then offered to, and opened the trunk, where two boxes of marijuana were discovered. Id. Finding that the consent to the search was consensual, we noted that the driver was told he was free to go; his departure was not stopped by the uniform, gun, or flashing lights; the entire traffic stop was very brief; the trooper's conduct was professional, courteous, and completely non-coercive; and all of the appellant's consents were unhesitant and immediate. Id. at ¶¶ 10-11, at 836. Following these findings we stated: The "coercive factors" present during this traffic stop are the same "coercive factors" that are present at every traffic stop: an armed and uniformed officer, plus the flashing lights on the patrol car. If these factors were sufficient to invalidate the voluntariness of a consent, no consent would ever be voluntary. Neither can these factors, alone, be seen as proving that the person stopped did not feel that he was free to go. In the present case, for instance, the appellant knew that he was free to go because the trooper had told him he could go. Id. at ¶ 11, at 836. [¶ 20] Although these cases present slight factual variations from the present case, we find their similarities significant, and the reasoning utilized therein compelling. Thus, after considering all of the facts and circumstances surrounding the further questioning and subsequent search in this case, we find that the appellant voluntarily consented thereto. CONCLUSION [¶ 21] The appellant was not in police custody and therefore not entitled to Miranda warnings before further questioning after he received a warning citation and was told he was free to leave. Also, no violation of the appellant's Fourth Amendment right to be free from unreasonable searches and seizures occurred because the appellant voluntarily consented to the further questioning and subsequent search of his vehicle. We affirm the decision of the district court. NOTES [1] No video or audio recording of this traffic stop is available as the recording equipment was in for repair at the time. [2] We have previously said in cases such as this, "we do not perceive any difference between the independent protection provided to [the appellant] under the Wyoming Constitution and that provided by the Fourth Amendment." O'Boyle v. State, 2005 WY 83, ¶ 45, 117 P.3d 401, 414 (Wyo.2005). [3] Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966), requires that a person who is being questioned while in custody first be advised that he "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires." Bhutto v. State, 2005 WY 78, ¶ 11, 114 P.3d 1252, 1258 (Wyo.2005) (quoting Dickerson v. United States, 530 U.S. 428, 435, 120 S. Ct. 2326, 2331, 147 L. Ed. 2d 405 (2000)). [4] In many Fourth Amendment cases, our analysis includes a discussion of whether the officer had reasonable suspicion of criminal activity justifying expanding the scope of questioning and eventual search of a vehicle. See Marquez-Guitierrez v. State, 2007 WY 155, ¶¶ 15-21, 167 P.3d 1232, 1235-37 (Wyo.2007); Negrette v. State, 2007 WY 88, ¶¶ 19-22, 158 P.3d 679, 684-85 (Wyo.2007); O'Boyle, 2005 WY 83, ¶¶ 23-33, 117 P.3d at 408-11; Damato, 2003 WY 13, ¶¶ 13-26, 64 P.3d at 706-10. We find such an undertaking unnecessary here because the appellant does not argue that the trooper lacked reasonable suspicion of criminal activity, because of the limited scope of the questioning by the trooper, and because the appellant consented to the questioning and search. See Marinaro, 2007 WY 123, ¶ 12, 163 P.3d at 836.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2327950/	473 F. Supp. 2d 932 (2007) UNITED STATES of America, Plaintiff, v. Peter Vincent BOESEN, Defendant. No. 4:05-cr-00262-.JEG. United States District Court, S.D. Iowa. February 6, 2007. 933 934 Mary C. Luxa, U.S. Attorney's Office, Des Moines,' IA, for Plaintiff. Guy R. Cook, Clark I. Mitchell, Nicholas J. Mauro, Grefe & Sidney, Des Moines, IA, for Defendant. ORDER GRITZNER, District Judge. This matter is before the Court on Defendant's August 13, 2006, Motion for New Trial and Judgment of Acquittal, and the Government's September 5, 2006, Motion for Order of Preliminary Forfeiture of Property. Both parties have filed responses to the pending motions. Hearing on the Government's motion took place on September 18, 2006; hearing on Defendant's motion took place on December 18, 2006. Defendant was represented by attorneys Guy Cook and Nicholas Mauro. The Government was represented by Assistant United States Attorney Mary Luxa. As directed by this Court's Order of December 18, 2006, supplemental briefing on the forfeiture issue was filed by the Government on January 8, 2007, and by the Defendant on January 15 and January 24, 2007.[1] The matter is fully submitted for review. PROCEDURAL BACKGROUND On December 14, 2005, a grand jury indictment was filed in the above-captioned case. The indictment contained 57 counts against Defendant Peter V. Boesen ("Defendant") and co-defendant James Boesen, charging them with conspiracy to commit health care fraud (count one) and specific acts of health care fraud (counts two through 56). The indictment also contained a forfeiture count (count fifty-seven). On February 15, 2006, a superseding indictment was filed, which contained eighty-four counts against both defendants. The superseding indictment again 935 charged both defendants with conspiracy to commit health care fraud (count one) and specific acts of health care fraud (counts two through eighty-three). The superseding indictment also contained a forfeiture count (count eighty-four). A trial against both defendants began on July 24, 2006. The jury returned its verdict on August 7, 2006. Both Defendant and co-defendant James Boesen were found guilty on counts one through eighty-three of the superseding indictment, and the jury was excused from service. Having reserved ruling on co-defendant James Boesen's Rule 29 motion pursuant to Fed. R.Crim. Pro. 29(b), once the jury was excused, the Court addressed the motion. As required by the rule, the Court considered the evidence as it was at the close of the Government's case and in the light most favorable to the Government. Upon careful consideration, the Court concluded that no reasonable jury could find beyond a reasonable doubt that co-defendant, and nonphysician, James Boesen had the necessary knowledge of actual underlying medical procedures and the inconsistency with billings, and therefore the requisite intent and knowledge of the purpose of a conspiracy, to be found guilty of any of the counts charged against him. Co-defendant James Boesen's Rule 29 motion was therefore granted, and James Boesen was acquitted on all counts charged against him in the superseding indictment. As a result of the Court's ruling on James Boesen's Rule 29 motion, the Court necessarily had to find Defendant Peter Boesen not guilty as to count one, the conspiracy count, as there were no other unnamed co-conspirators. United States v. Peterson, 488 F.2d 645 (5th Cir.), cert. denied, 419 U.S. 828, 95 S. Ct. 49, 42 L. Ed. 2d 53 (1974) (if the other conspirator has been acquitted of the conspiracy, there can be no conviction of the sole remaining alleged conspirator). The Court found the matter at bar did not implicate the rule of United States v. Morton, 412 F.3d 901, 904 (8th Cir.2005), because the determination was being made as a matter of law by the Court on a reserved ruling under Rule 29(b), following the jury verdict, and would not therefore implicate the considerations set out in Morton based upon United States v. Powell, 469 U.S. 57, 65-7, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). In his post-trial Motion for Judgment of Acquittal and Motion for New Trial, Defendant contends that (1) he is entitled to a judgment of acquittal or a new trial with respect to counts two through fifty-two and counts sixty-five through sixty-seven; (2) misconduct of the Assistant United States Attorney in various respects deprived him of his right to a fair trial; (3) the interests of justice dictate he is entitled to a new trial free from the unduly prejudicial evidence related to the conspiracy charge; (4) the admission of Agent Kohler's summary charts deprived him of a fair trial; (5) he was deprived of his right to cross-examine his accusers with DVD's that depicted the procedures at issue; and (6) the length of jury deliberations illustrate the unfairness of the proceedings. APPLICABLE LAW AND DISCUSSION Motion for judgment of acquittal. Rule 29(a) states that the court may grant a defendant "a judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." Fed. R.Crim.P. 29(a). The district court has very limited latitude when considering a motion for acquittal. United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). "In ruling on a motion for judgment of acquittal, the role of the district court is not to weigh evidence, or consider the credibility of the witnesses, but rather 936 to determine whether the Government has presented evidence on each element sufficient to support a jury verdict." United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir2000). Focusing upon the level of evidence presented by the Government and whether that evidence could support the jury determination, [u]nless the district court ultimately determines that a miscarriage of justice will occur, the jury's verdict must be allowed to stand." United States v. Campos, 306, F.3d 577, 579 (8th Cir.2002).[2] In order to establish guilt of the crime of health care fraud, the Government had to prove beyond a reasonable doubt at trial that Defendant knowingly and willfully executed or attempted to execute a scheme or artifice to defraud a health care benefit program by means of materially false or fraudulent representations or omissions, that the health care benefit program affected commerce, that the scheme or artifice to defraud was in connection with the delivery of or payment for health care benefits, items, or services, and the Defendant did so with the intent to defraud. 18 U.S.C. § 1347; United States v. Cooper, 283 F. Supp. 2d 1215, 1232 (D.Kan2003). Defendant does not challenge the verdict on all of these elements but focuses on whether the Government has demonstrated materially false or fraudulent representations or omissions, a scheme or artifice to defraud, and the requisite intent. In support of his argument that he is entitled to a judgment of acquittal with respect to counts 2 through 52, Defendant cites to a portion of the testimony of Dr. Thomas Kidder, a board certified otolaryngologist who testified on behalf of the Government. Defendant asserts that Dr. Kidder's unrebutted testimony regarding the procedures at issue in counts 2 through 52, which pertained to the nasal endoscopy with debridement procedure (CPT[3] code 31237), was such that no reasonable jury could have found Defendant guilty on any one particular procedure beyond a reasonable doubt. Defendant cites to the following portion of Mr. Weinhardt's cross-examination of Dr. Kidder for support: Q: All right. You can have crusting of the mucous or drying of 'the mucous without having allergic fungal sinusitis, cystic fibrosis, and et cetera, correct? A: Oh, yes. Q: And you could, without anesthetic, remove that crusted or dried mu cous using an endoscope and some other tool? A: Right. Assuming that you have a patient that will tolerate it and, you do it gently, yes, you could do that. Q: And you would say that's a debridement if you did that? A: Yes. Q: And so how many of the cases could there be in the indictment that sort of mismatch, a removal of dried or crusted mucous and nonetheless a mismatch between that procedure which you will call a debridement and the medical record that was written? 937 A: I believe a number of his cases that is probably what happened is that he removed crusts or dried secretions from the nose using suction or forceps and the endoscope to see what he was doing. Q: And you have no way of giving us a firm number of how many of the cases that is as you sit here today? A: I don't have that number on the top of my head. I would have to go back through all of these records and try to list them. Defendant claims that Dr. Kidder never went over the records to identify such a list; therefore his undisputed, unrebutted testimony is that the removal of dried or crusted mucous constitutes a debridement, and that is what indeed occurred in a number of the counts charged. This limited portion of the testimony of Dr. Kidder is what Defendant relies upon for asserting that he is entitled to a judgment of acquittal with respect to counts 2 through 52. The Court cannot weigh this testimony in isolation but must consider the entire record. Dr. Kidder testified that in forming his opinions regarding the actions of Defendant, he reviewed Defendant's patient files, including notes that were generated by Defendant, Defendant's dictations, operative reports, pathology reports, and CT scan reports. Dr. Kidder testified that he reviewed the entire medical file of each patient, to the extent it was presented to him. While Dr. Kidder's testimony cited above, in which he indicated that the removal of dried or crusted mucous could constitute a debridement, may in fact be correct, Defendant's own patient notes do not reflect that is what he removed. Dr. Kidder testified that Defendant's own patient notes or dictations indicated he was removing either granulation tissue or synechial banding; they did not indicate he was removing dried or crusted mucous. The Court could find only one count, count 19, which pertained to an April 25, 2002, nasal debridement procedure (CPT 31237) allegedly performed on patient Heather Henschel, where Dr. Kidder testified that the patient notes indicated Defendant debrided inspissated mucopus. Dr. Kidder went on to testify that he found these particular patient notes suspect for other reasons.[4] Dr. Kidder testified that there were a number of things he felt were either patterns or trends that ran throughout all of the patients' records relative to the nasal debridement procedure, which provided the basis of his opinion that Defendant did not actually perform the nasal debridement procedures as claimed in his patient notes. For instance, Dr. Kidder noted a great deal of similarity in all of the detailed patient notes, and that Defendant's descriptions of a patient from one visit to another, even over a three to five year period of time, and his description of different patients, were very similar to one another, in fact almost identical in some cases. Dr. Kidder testified that both the wording and the findings were the same, and that in his experience, there is a fair amount of variation in patients who come into the office of the general ENT doctor, and very seldom do you have patients who all have identical findings and the identical type of procedure performed. Another similarity Dr. Kidder found in the patient notes that he deemed odd was 938 the fact that the patient notes almost always indicated granulation tissue was removed. Dr. Kidder found this hard to explain because there was nothing to indicate the patients had prior sinus surgery that would cause granulation tissue to form; and further, if a patient has significant granulation tissue forming independent of an intervention such as sinus surgery, the clinician should be considering the possibility that the patient may have some unusual type of disease, such consideration tending to mandate a biopsy of the tissue be performed. Yet of the hundreds of debridements done by Defendant on patients who did not have prior sinus surgery, where he claimed to have removed granulation tissue, very rarely did Defendant ever send any actual tissue for examination by a pathologist. Another issue Dr. Kidder found common to the nasal debridement patients was that no topical anesthetic was used, despite the fact that the procedures Defendant described doing in his patient notes, particularly enlarging the sinus ostium or enlarging the antrostomy site, or even getting up into the frontal recess, would require an anesthetic. Dr. Kidder also noted that in about the mid to late part of 2002, Defendant's practice suddenly changed, in that Defendant pretty much stopped performing nasal debridements on patients on whom he had previously performed the procedure for years, with the patient notes now describing that either the patient had no evidence of sinus disease, the nose valve was clear, or, if the patient was diagnosed with sinusitis, Defendant did not feel it was necessary to perform the nasal debridement that he had allegedly done in the past.[5] Further, Dr. Kidder noted that there were a couple of patients on whom, when Defendant took them to the operating room, he did bilateral surgery, whereas the pathology was unilateral. Dr. Kidder provided specific testimony regarding each patient at issue and testified that based upon his knowledge as an otolaryngologist and his review of the medical documentation in this case, it was his opinion that Defendant did not correctly report what he truly observed or the procedures he truly performed on his patients. Generally supportive testimony was received from Dr. Thomas Paulson, a board certified otolaryngologist, who testified that a nasal endoscopy with debridement procedure is normally done in occasional instances after an extensive sinus surgery. Dr. Paulson testified that he has never heard of an ENT physician performing twenty or more debridements on a postsurgery sinus patient, and he could conceive of only one or two rare diseases, such as Wegener's disease, that might cause the kind of crusting that might need over a period of many years numerous debridements. Dr. Paulson testified he could not conceive of any need for a debridement for the routine patient who has had no sinus surgery. Dr. Paulson also testified that it was his opinion that it would be very difficult to do a nasal debridement to any extent without using topical anesthetic. More specifically to the practices in the Boesen Clinic, Dr. Heidi Close, an otolaryngologist and former employee of the Boesen Clinic, testified that it was her perception based upon working with Defendant that Defendant exaggerated his diagnosis of patients and the procedures he performed. Dr. Close testified that while she believed Defendant did a nasal endoscopy on the patients, she questioned whether he did an actual debridement. Kim Pollock, an employee of Karen Zupko & Associates, a company that consults 939 with physicians regarding the business operations of a medical practice, testified that in 2002 the Boesen Clinic sent her a group of patient records for review. Upon a review of the patient records, Pollock concluded the documentation was not supportive of the CPT coding for which the Boesen Clinic was billing the insurance companies. Pollock testified that based upon a conclusion that these patient records may be incriminating, they were returned to the Boesen Clinic. Dr. Mary Davis, senior medical director and vice-president of Wellmark, also testified at trial. Among Dr. Davis' duties at Wellmark is working with providers and acting as chair to the Peer Review Committee, a group of actively practicing physicians in Iowa who review records when ,a quality of care concern is brought to light. Dr. Davis testified that in 2001, Wellmark became concerned regarding Defendant and his treatment of patients. Dr. Davis conducted a review of file information for a period of one year for each of Defendant's patients. Dr. Davis did not examine the issue from the standpoint of whether Defendant was actually performing the procedures he was claiming but rather, assuming Defendant had in fact performed the procedures he was claiming, whether his actions violated a standard of care. After completing her review, Dr. Davis referred the matter to the Peer Review Committee. The Peer Review Committee ultimately recommended that Defendant be terminated from his preferred provider contract with Wellmark. This decision was ratified by the Peer Review Council. Defendant was sent a notification on December 20, 2002, that indicated his contract was going to be terminated.[6] Wellmark indicated in this notification that the Peer Review Committee had concluded that with respect to the nasal endoscopy with debridement (CPT 31237) procedure, the number of procedures Defendant performed on individual covered persons "demonstrated a consistent pattern of over-utilization and varies from current standards of care." Dr. Davis testified that their concern was that there was a pattern of care Defendant was performing that did not appear to be justified by the diagnosis or the symptomatology presented by the patients in all cases. Dr. Davis testified that Defendant appealed this decision and ultimately reached an agreement with Wellmark regarding a set of standards and requirements Defendant agreed to observe in order to continue his participation in Wellmark's plan. Dr. Davis testified, and the evidence shows, Defendant agreed on June 13, 2003, that for patients who have had sinus surgery recently who have three nasal endoscopies with debridement, Wellmark would not be reviewing Defendant's records; however, if Defendant wanted to do more than three nasal endoscopies with debridements on a patient, there was a set of agreed-upon diagnoses and evidence, laboratory evidence, and other documentation and notification required before Wellmark would cover the procedures; and if Defendant wanted to do more than six nasal endoscopies with debridements on any patient, a second opinion was required before any other nasal endoscopy services would be provided.[7] Once Defendant signed this agreement, Wellmark allowed him to return to his status as a participating provider, and Dr. Boesen has been participating at least until the verdict in this case. Dr. Bruce Steffens, Senior Vice-President and Chief Medical Officer of United Health Care of the River Valley,[8] testified 940 that one of his responsibilities was oversight of utilization management, which refers to how many medical procedures are done, how often they are done, to whom they are done, and whether they are done appropriately and are medically necessary. Dr. Steffens testified that Defendant was a participating physician with John Deere Health, and that in the fall of 2001, John Deere Health began reviewing Defendant's use of the nasal endoscopy with debridement procedure. Dr: Steffens testified that this review began due to a concern regarding the frequency of the nasal endoscopy with debridement procedure being performed and the number of repeat procedures being performed on individual patients. Dr. Steffens testified that once John Deere Health obtained and reviewed Defendant's patient files, concerns remained regarding how many procedures had been performed and the frequency with which they were performed. The audit findings were then reviewed with Defendant and his staff, anti Defendant subsequently submitted some written information to John Deere Health in November of 2001 attempting to explain and satisfy the quality review committee or the credentialing committee.[9] Dr. Steffens testified that this written information was insufficient to satisfy the concerns of John Deere Health, thus review by the Quality Improvement Committee and a Peer Review Committee followed. The matter was then referred by the Quality Review Committee to the Corporate Credentialing Committee, and upon review of the information, the Corporate Credentialing Committee asked that Defendant be removed as a participating physician from the panel. On May 6, 2002, Defendant was sent notification from the Corporate Credentialing Committee indicating that he was being removed as a participating physician from the various products that he belonged to as part of the John Deere Health Network.[10] On July 3, 2002, Dr. Steffens sent a letter to Defendant, indicating that he was reversing the termination decision/recommendation from the John Deere Health Corporate Credentialing Committee. This letter indicated that concerns about the frequency of the use of endoscopic sinus surgery persisted, as did concerns about the rote appearance of office notes, and the requirement for a second opinion for all endoscopic sinus surgery procedures was therefore left in place.[11] Dr. Steffens testified that this requirement for a second opinion meant that another physician, qualified to perform the nasal endoscopy with debridement procedure, would be expected to validate the medical necessity of any nasal endoscopy with debridement procedure before John Deere Health would pay for it. After this reinstatement, Defendant declined to remain as a participating physician with John Deere Health and instead sent a letter to John Deere Health dated August 14, 2002, indicating his intention to terminate his participation in John Deere Health's physician provider panels, effective December 31, 2002.[12] In addition to these witnesses, numerous patients of Defendant testified as a part of the Government's case. Debra McCombs testified that Defendant never used topical anesthetic before sucking "gunk" out of her nose, and that he only spent approximately two to three minutes of time per 941 nostril. Mary Kuhn testified that no surgery was performed on her, and she disagreed with Defendant on her care and decided not to see him anymore. Michelle Mosman testified she did not recall any suction or' anything, coming out of her nose, there was no bleeding, and the entire procedure took approximately one minute. Mosman testified that she overheard Defendant say to his assistant, "Wait until she gets the bill!", a comment Mosman found upsetting. Dr. Barbara Evans, an ophthalmologist and a former patient of Defendant's, also testified at trial. Dr. Evans testified that after receiving an explanation of benefits notification from Wellmark regarding what Defendant had billed to Wellmark for a recent office visit of Dr. Evans, she obtained the CPT code that was billed, looked up that code in her CPT code book, and then phoned the Boesen Clinic and ultimately spoke with James Boesen. Dr. Evans explained to James Boesen that there must have been a mistake because she did not have an office surgery done, as essentially all Defendant really did "was suck snot out of my nose." Dr. Evans testified that James Boesen made a comment to the effect of, "well, why would we buy a new piece of equipment if it wasn't to make money." Ultimately, Dr. Evans testified that she decided to transfer her care to a different ENT physician. Cynthia and Roger Brown both testified at trial regarding the billing they received from the Boesen Clinic for the treatment done to their son, Tyler. The Browns did not believe surgeries were being performed as billed, and Mrs. Brown felt so strongly about the matter she reported Defendant to the fraud unit of Blue Cross and Blue Shield, her insurance provider. Along with the patient testimony specifically outlined, numerous other patients testified regarding their own office visits with Defendant, how much time it took Defendant to perform any procedures on them, whether anesthetic was used, whether there was bleeding, and whether they experienced any pain or were required by the medical staff to wait after the procedure before being allowed to leave. "The jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt." United States v. Moore, 108 F.3d 878, 881 (8th Cir.1997) (citing United States v. White, 81 F.3d 80, 82 (8th Cir. 1996)). Given the nature of the trial testimony and evidence, the Court concludes the evidence produced at trial was sufficient for a reasonable jury to have found Defendant guilty beyond a reasonable doubt of counts 2 through 52. Motion for New Trial. "The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed.R.Crim.P. 33. "[T]he district court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority sparingly and with caution." United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002) (quotations omitted). The jury's verdict must be allowed to stand unless the district court ultimately determines that a miscarriage of justice will occur. See United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000). When determining whether a defendant is entitled to a new trial on the ground that the verdict is contrary to the weight of the evidence, "the district court weighs the evidence and evaluates anew the credibility of the witnesses to determine if a miscarriage of justice may have occurred." United States v. Davis, 103 F.3d 660, 668 (8th Cir.1996); see also Campos, 306 F.3d at 579 (citing White v. 942 Pence, 961 F.2d 776, 780 (8th Cir.1992)); Lacey, 219 F.3d at 783-84. The Court has highlighted the general nature of the evidence in the Government's case, supra. The Defendant's evidence is also considered at this juncture. Defendant called numerous physicians, some current patients, and a few other witnesses to testify in his defense. Dr. Carol Frier, an internist, testified that she frequently referred patients to Defendant for treatment. Dr. Frier testified that she was not familiar with Defendant's billing practices and that she had not reviewed any of the patient files that are involved in the case. Dr. Kelly Bast, a family practitioner, testified that he regularly referred patients to Defendant for treatment and that he would receive accurate reports from Defendant regarding the procedures or treatments that Defendant gave to Dr. Bast's referrals. Dr. Bast testified that in describing Defendant's reports as "accurate", he was relying on what Defendant told him he had done to the patient and also on the patients' reporting what Defendant had done. Dr. Bast testified that he was not familiar with Defendant's billing practices. Dr. Joellen Heims, a family practice physician, testified that she frequently refers patients to Defendant and that she never had any concern or question about Defendant's doctoring but admitted she was never in the procedure room with Defendant when he was doing procedures and that she had no knowledge of Defendant's billing practices to insurance companies. Dr. Susan Kennedy, a family practice physician, testified that she has referred patients to Defendant and that she had never had any question or issue regarding any of the procedures Defendant reported he had done, Dr. Kennedy testified that she had not reviewed any of the medical files of any of the patients involved in this case and that she had no, knowledge regarding Defendant's billing practices. Dr. Joy Trueblood, a pathologist, testified that Defendant sent specimens to her laboratory and that she has never had any hesitation about referring a patient to Defendant but that she had never been at Defendant's office when he performed a procedure and that she had no knowledge regarding Defendant's billing practices. Dr. Steven Quam, a board certified anesthesiologist, testified that he frequently worked with Defendant and that in the course of this work he had the opportunity to review Defendant's chart notes and dictation notes from procedures, notes which Dr. Quam felt were very thorough. Dr. Quam testified that other than his own personal experience as a patient of Defendant's, he had not observed Defendant performing procedures on patients in his clinic and that he had no knowledge regarding Defendant's billing practices. Dr. Timothy McCulloch, a board certified otolaryngologist, testified that there could be reasons for performing multiple debridements on chronic sinus patients, although he himself had only done multiple debridements on a patient after the patient had a head and neck surgical procedure. Although called by Defendant to testify as an expert witness, Dr. McCulloch testified that he had not reviewed the medical records of the patient files at issue in this case and that he was not rendering any opinions on specific patients in this case. Jan Hogan testified that she is a guardian of a woman named Caroline, and she takes Caroline to Defendant to treat some of Caroline's medical issues. Hogan testified that she has never had a concern with anything Defendant has said or done towards either herself or Caroline. Janet Woodruff, a patient of Defendant's for approximately five years, testified that given her experience with Defendant, she felt he 943 was a very truthful, straightforward physician. Kori Cannata testified that her entire family is treated by Defendant, and given the treatment Defendant had provided to her and her children over the years, she felt he was a remarkable person. Sherri O'Donnell testified that her family is treated by Defendant, and she believes Defendant to be a very sincere, kind, honorable man. Father Dave Santoro, a priest with Defendant's church, testified he believes Defendant is a person of the highest honor and honesty and integrity. Fern Perry, a receptionist at the Boesen Clinic, testified that at times some waiting occurs at the Boesen Clinic because Defendant spends a lot of time with his 'patients answering questions. Defendant's father, James Boesen, Sr., testified about his son's character and dedication to his role as a physician. Defendant took the stand to testify in his defense. Defendant testified that he performed all of the procedures reflected in his chart notes and provided testimony regarding the DVD exhibits that depict him performing the procedures at issue in this case. Defendant flatly denied committing health care fraud or conspiracy to commit health care fraud. "It is the sole province of the jury to weigh the credibility of a witness." United States, v. Martinez, 958 F.2d 217, 218 (8th Cir.1992). A review of the trial evidence and the testimony of Dr. Kidder, Dr. McCulloch, Dr. Paulson, Kim Pollock, Agent Kohler, Defendant, and that of all of the other witnesses, provides no reason to second-guess the jury's credibility determinations or the weight the jury gave to certain evidence. As the Court noted above regarding Defendant's Motion for Judgment of Acquittal regarding counts 2 through 52, there was legally sufficient evidence presented at trial to support the conviction on the specific health care fraud offenses. Although that conclusion was reached viewing the evidence in the light most favorable to the guilty verdict and giving the Government all reasonable inferences that may be drawn from the evidence, even applying the less restrictive standard required for a motion for a new trial, the Court finds that there was legally sufficient evidence to support a reasonable verdict by the jury, and a new trial is not required for Defendant on the ground that the verdict is against the weight of the evidence. Alleged Prosecutorial Misconduct. Defendant also argues he is entitled to a new trial because of the alleged misconduct of Assistant United States Attorney Stephen O'Meara, both during the examination of certain witnesses and during the rebuttal portion of closing arguments. In support of his allegations that prosecutorial misconduct occurred, Defendant first argues that AUSA O'Meara's statement to the jury during the rebuttal portion of the Government's closing argument in which he referenced an "honesty of your gut", incurably deprived Defendant of a fair trial. The statement to which Defendant refers in its entirety was as follows: The judge is going to ask you to hesitate and deliberate. Everyone here, the defendants and the government, are interested in you to hesitate and to deliberate. The point is not that that's what the hesitation instruction is talking about. This is like one of the most important decisions in your life, both from the standpoint of the defense and the standpoint of the government. But you have to take an action 'when you're making an important decision in your life. If you reach the point that you feel in the honesty of your gut that you can go ahead and take that action, that's beyond reasonable doubt. The government 944 believes that considering all of the evidence that you have received, that having given due and careful deliberations in the interest of all of the people concerned about this case, you can reach in your gut that honest feeling that Jim Boesen and Peter Boesen are guilty of these crimes as charged. If you reach that honest feeling in your gut, you should convict these defendants. Thank you. Defendant argues that, no real curative instruction or admonishment of AUSA O'Meara took place following defense counsel's objection to this remark and that the objection was not formally sustained, and the jury was easily left with the impression that AUSA O'Meara's remarks were a correct interpretation of the law. While true that no objection was sustained and no cautionary instruction given the jury, in fact a contemporaneous objection to AUSA O'Meara's statement was not made in the presence of the jury but instead defense counsel waited until after the jury had already been excused to commence their deliberations before making an objection to this remark; thus the Court had no opportunity to address this issue prior to the jury commencing its deliberations. "[I]f the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation." Estelle v. Williams, 425 U.S. 501, 509 n. 3, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). Due to defense counsel's failure to make a contemporaneous objection, the Court was not provided an opportunity to give a curative instruction, sustain the objection in front of the jury, or provide any of the other relief Defendant complains was not provided. "[P]rosecutors would be well advised to avoid trying to explain to the jury the meaning of 'beyond a reasonable doubt'." United States v. Drew, 894 F.2d 965, 969 (8th Cir.1990). For purposes of the current motion, AUSA O'Meara's "honesty in your gut" statement will be assumed to be a misstatement of the law, as clearly, the beyond a reasonable doubt standard is based on more than gut reactions or feelings. "[E]ven if the prosecutor misstates the law, such an error is harmless where, as here, the trial court properly instructed the jury to consider only the evidence, and further advised that statements and arguments of counsel are not evidence." Girtman v. Lockhart, 942 F.2d 468, 474 (8th Cir.1991) (quoting United States v. Yancy, 688 F.2d 70, 72 (8th Cir.1982)) (quotations omitted); Lingar v. Bowersox, 176 F.3d 453, 460 (8th Cir.1999) ("When counsel misstates the law, the misstatement is harmless error if the court properly instructs the jury on that point of law or instructs that the attorneys' statements and arguments are not evidence."); see also United States v. Sanchez-Garcia, 150 Fed.Appx. 909, 918 (10th Cir.2005) (reviewing for plain error the prosecutor's comment that .defendant "doesn't get the benefit of the doubt", the court found the comment constituted plain error, but was not so egregious such that it caused a miscarriage of justice); United States v. Gonzalez-Gonzalez, 136 F.3d 6, 10 (1st Cir.1998) (during closing argument, prosecutor told jury that if in their mind and in their heart they felt the defendant was a member of the illegal organization, they should say so with their verdict; on review for plain error, appellate court found jury was not lead astray by this comment because the trial court had properly instructed the jury regarding what constituted "reasonable doubt" and directed the jury to disregard statements about the law from counsel); Griffin v. Delo, 33 F.3d 895, 906 (8th Cir.1994) (on review of habeas appeal, agreeing with the district court that the state prosecutor's erroneous definition of reasonable doubt did not rise to the level of a constitutional violation where 945 the trial court had correctly defined reasonable doubt in the jury instructions); United States v. Alex Janows & Co., 2 F.3d 716, 723 (7th Cir,1993) (finding error harmless where prosecutor attempted in his closing argument to define "beyond a reasonable doubt" for the jury). The Court had previously read to the jury Model Instruction 3.11, and the jury was previously instructed by the Court that the opening and closing statements of counsel did not 'constitute evidence.[13] AUSA O'Meara himself read Eighth Circuit Model Jury Instruction 3.11, entitled "Reasonable Doubt", which the Court had utilized, to the jury immediately prior to the "honest feeling in your gut" statement. Juries are presumed to follow their instructions, Zafiro v. United States, 506 U.S. 534, 540-541, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993); Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987); Uncre rdahl v. Carlson, 462 F.3d 796, 801 (8th Cir.2006), and other than speculation, there is nothing in the record to indicate the jury did not follow the Court's instructions in reaching their verdict. The Court concludes the remark of AUSA O'Meara in which he referenced an "honest feeling in your gut" was not so prejudicial as to deny the Defendant a fair trial. Second, Defendant argues AUSA O'Meara blatantly misrepresented the testimony of Kim Pollack, citing to the following portion of the Government's rebuttal made during closing arguments: AUSA O'Meara: Just a side note on Zupko. You've a couple of times in closing arguments been invited to believe that what Kim Pollock from Zupko was talking about when she made the statement that they were concerned about the criminality of what she had seen, which, by the way, was in response to a question by Mr. Cook, not from the government Mr. Cook: Objection, Your Honor. That's not correct, and the statement of criminality was never said by the witness. The Court: Stop. The jury will use their own memory to recall what the evidence was. AUSA O'Meara: Do you really believe that is what Kim Pollock was referring to was that Zupko had done something criminal? As the judge has said, you remember what was said here. But, please, is that what Kim Pollock was talking about, or is it patently clear that what she was talking about was the criminality of Peter Boesen and James Boesen, James Boesen being the person with whom she was dealing? The testimony to which AUSA O'Meara was referencing took place during AUSA Luxa's redirect of Pollock. Specifically, the relevant portion of the testimony was as follows: AUSA Luxa: And why didn't you keep the documents that the Boesen firm had sent you? Pollock: Because we felt they were fairly incriminating and we decided as the firm decided, not me, the firm 946 decided not to keep documentskeep those documents, but to send them back to the practice. To appreciate the significance of this rebuttal statement to the jury, the Court considers the normal use of the relevant terms. The word "incriminating" is defined as "demonstrating or indicating involvement in criminal activity." Black's Law Dictionary (8th ed.2004). Thus, for AUSA O'Meara to paraphrase Pollock's testimony and use the' term "criminality" instead of "incriminating" is of no material consequence. Further, it is irrelevant whether this testimony was provided on direct or cross-examination. The Court finds Defendant is not entitled to a new trial based on AUSA O'Meara's comments regarding Pollock's testimony. Third, Defendant asserts that AUSA O'Meara's examination of Steve Irwin, a Boesen Clinic employee, regarding Iowa Workforce Development documents was improper. AUSA O'Meara conducted the following questioning of Irwin regarding documents from Iowa Workforce Development: AUSA O'Meara: Do you have any idea whether or not his income from the clinic went down after approximately 2001? Irwin: I don't know about that. AUSA O'Meara: If the work force numbers show that between 2001 descending almost annually to 2005 that his income from the clinic went down by almost a million dollars, would you Mr. Cook: Your Honor, I object to that. This is irrelevant and immaterial. The Court: Sustained. Defendant's objection grounded in relevancy and materiality was sustained by the Court, in the presence of the jury. No cautionary instruction was requested, and the Court did not find this passing reference to support a cautionary instruction sua sponte. Defendant's argument on this point fails to establish any prejudice suffered through this limited testimony, which was the subject of an objection that was immediately sustained by the Court. The Court concludes Defendant is not entitled to a new trial based on this very limited questioning. Fourth, Defendant asserts AUSA O'Meara's possession of Iowa Workforce Development records regarding Defendant's income is illegal, and the Government is not exempted from Iowa Code § 96.11(6)(g). Iowa Code § 96.11(6)(g), which pertains to the confidentiality of Iowa Workforce Development records, specifically states as follows: Information subject to the confidentiality of this subsection shall not be directly released to any authorized agency unless an attempt is made to provide written notification to the individual involved. Information released in accordance with criminal investigations by a law enforcement agency of this state, another state, or the federal government is exempt from this requirement. Iowa Code § 96.11(6)(g). The Government argues that even though there may be no explicit exception for federal law enforcement agencies to obtain these records, as there is for county attorneys in Iowa Code § 96.11(6)(b)(3), the language contained in Iowa Code § 96.11(6)(g), which references the federal government, demonstrates the Iowa legislature clearly contemplated such information would be disclosed during a federal criminal investigation. There is an absence of state case law interpreting Iowa Code § 96.11(6)(g). "Whether interpreting federal or state law, a federal court's analysis of a statute must begin with the plain language." In re M &. S Grading, Inc., 457 F.3d 898, 901 (8th Cir.2006). 947 [A] court's primary objective is to ascertain the intent of the legislature by looking at the language of the statute itself and giving it its plain, ordinary and commonly understood meaning. Consideration should also be given to the context of the statutes and the purposes for which they were enacted. Johnson v. Methorst, 110 F.3d 1313, 1315 (8th 1997). "In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." United States v. Boisdore's Heirs, 49 U.S. 113, 122, 8 How. 113, 12 L. Ed. 1009 (1850); see also U.S. Nat. Bank of Oregon v. Independent Ins. Agents, 508 U.S. 439, 455, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993).[14] Where the Iowa legislature specifically allows county prosecutors to obtain Iowa Workforce Development records during a state or local criminal investigation, although not expressly stated, it is a rational extension for federal prosecutors to be able to obtain the same information during the course of a federal criminal investigation, as such a construction advances the purpose of aiding law enforcement in their criminal investigations. Indeed, Defendant has articulated no rationale why county prosecutors would be able to obtain this information during the course of a state or local criminal investigation, yet a federal prosecutor would be precluded from obtaining the same information for the same purposes for a federal criminal investigation. The statute is to be read as a whole and courts are to avoid a statutory construction that would render another part of the same statute superfluous. King v. St. Vincent's Hosp., 502 U.S. 215, 221, 112 S. Ct. 570, 116 L. Ed. 2d 578 (1991); United States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir.2002). Section 96.11(6)(g) specifically exempts the notification requirement for information released in accordance with criminal investigations by a law enforcement agency of the federal government; such an exemption would be unnecessary had the legislature not contemplated that such information could be obtained by a federal law enforcement agency. This record does not support a conclusion that the Government engaged in prosecutorial misconduct in obtaining the Iowa Workforce Development information. For that reason, and because of the incidental fashion in which this issue arose before the jury, the Court concludes Defendant is not entitled to a new trial on this ground. Fifth, Defendant argues the Government was improperly given two closing arguments, claiming AUSA Luxa's closing argument lasted approximately 45 minutes, and AUSA O'Meara's rebuttal lasted approximately one hour. The clerk's court minutes indicate the Government's closing argument was 50 minutes long, Defense counsel Cook's closing argument lasted 50 minutes, Defense counsel Weinhardt's closing argument lasted one hour and fifteen minutes, and the Government's rebuttal lasted forty-five minutes. Fed.R.Crim.P. 29.1 provides the Government with the opportunity for a rebuttal, no time limitation on rebuttal exists in Rule 29. 1, and Defendant cites to no caselaw to support his assertion he is entitled to a new trial based on the length of time of the Government's rebuttal. In the context of this case, the Court finds no inherent unfairness in the relative length of arguments. Defendant is not entitled to a new trial on this ground. 948 Conspiracy Evidence. Defendant, next argues the interests of justice dictate that he is entitled to a new trial free from the unduly prejudicial evidence related to the conspiracy charge, specifically, the statements of James Boesen. The Government asserts that Defendant failed to make any Rule 801(d)(2)(E) objections at any point during the trial and that the law is clear that acquittal of a coconspirator does not retroactively make co-conspirator statements inadmissible. It is correct Defendant did not make any Rule 801(d)(2)(E) objections during trial, thus not requiring ultimate determinations by the Court regarding the admissibility of the evidence. Even if he had, Federal Rule of Evidence 801(d)(2)(E) allows the admission of "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). "Under this rule, the government must prove, by a preponderance of the evidence, that a conspiracy existed, that the defendant and declarant were members of the conspiracy, and that the statements were made during and in furtherance of the conspiracy." United States v. Williams, 87 F.3d 249, 253 (8th Cir.1996). This lower burden of proof was satisfied in this case, given the close nature of the working relationship. between Defendant and co-defendant James Boesen, the discussions that occurred between the two defendants pertaining to coding and billing procedures, and the timing of James Boesen's statements at issue, all of which occurred during the time period of the conspiracy charged. "[O]nce the court has determined that the Government has made the requisite showing of a conspiracy, the admission of testimony under the co-conspirator exception to the hearsay rule is not rendered retroactively improper by subsequent acquittal of the alleged co-conspirator." United States v. Kincade, 714 F.2d 1064, 1065 (11th Cir.1983) (quoting United States v. Cravero, 545 F.2d 406, 419 (5th Cir.1976), cert. denied, 429 U.S. 1100, 97 S. Ct. 1123, 51 L. Ed. 2d 549 (1977)) (quotations omitted); see also United States v. HernandezMiranda, 78 F.3d 512, 513 (11th Cir.1996) (same); United States v. Carroll, 860 F.2d 500, 506 (1st Cir.1988) (same). The Court concludes the admission of co-conspirator statements was proper, and Defendant is not entitled to a new trial on this basis.[15] Summary Charts. Defendant argues the admission of Special Agent Kevin Kohler's summary charts deprived him of a fair trial, asserting the information contained within the charts was not relevant in relation to counts 2 through 83, had little probative value to the conspiracy charge, and constituted undue prejudice by including all of the overt act procedures. The Government asserts the summary charts fairly summarized the claims evidence from each of the insurance companies as to each patient, assisted the jury in understanding Dr. Kidder's testimony and the testimony of the insurance company witnesses, and Agent Kohler was subjected to lengthy cross-examination regarding his preparation of the charts. 949 "The admissibility of summary charts, graphs, and exhibits rests within the sound discretion of the trial judge". United States v. Green, 428 F.3d 1131, 1134 (8th Cir.2005) (quoting United States v. King, 616 F.2d 1034, 1041 (8th Cir. 1980)) (quotations omitted). The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. Fed.R.Evid. 1006. "Summary evidence is properly admitted when (1) the charts fairly summarize voluminous trial evidence; (2) they assist the jury in understanding the testimony already introduced; and (3) the witness who prepared the charts is subject to cross-examination with all documents used to prepare the summary." Green, 428 F.3d at 1134 (quoting King, 616 F.2d at 1041) (quotations omitted). This case involved numerous charges of health care fraud with respect to various patients and various health insurance companies. In addition to the charges contained in counts 2 through 83, the jury had to consider the overt acts in relation to the conspiracy charge. Each alleged act of health care fraud, whether charged as an overt act or specifically charged in a separate count, had voluminous documentation evidencing such act. The Court finds the summary charts fairly depict this voluminous documentation. Summary charts in such an instance are extremely useful to the jury, and Agent Kohler was subjected to the necessary cross-examination regarding these charts and any inherent inaccuracies or underlying assumptions. The admission of Agent's Kohler's summary charts did not deprive Defendant of his right to a fair trial. Procedure DVDs. Defendant argues he is entitled to a new trial because he was deprived of his right to cross-examine his accusers with the DVDs of the procedures at issue. Throughout the course of the Government's case-in-chief, Defendant attempted to offer into evidence as exhibits three DVDs that depicted Defendant administering the procedures at. issue. These DVDs were made after the indictment was filed and were prepared for use at trial. Each time Defendant offered these DVDs into evidence, the Court sustained the Government's objection to their admission, finding that to allow the DVDs into evidence would essentially permit Defendant to testify regarding the manner in which he performed the procedures at issue in the case without being subject to cross-examination. The Court repeatedly informed defense counsel that if Defendant were to take the stand in his defense, the Court's ruling would change and the DVDs would then be admitted into evidence, as the requisite cross-examination would be available to the Government. Defendant did decide to testify in his defense and subsequently the DVDs were offered and admitted into evidence during the course of Defendant's testimony. At any time after these DVDs were allowed into evidence, Defendant could have recalled any of the witnesses he wished to cross-examine about these DVDs, yet Defendant elected not to do so. Defendant was not deprived of his right to effectively cross-examine any witness based on any action of the Court. Defendant's trial strategy in not recalling these witnesses is not an error of the Court that impacted the fairness of Defendant's trial. Counts 65-67. Defendant argues Dr. Kidder, provided no testimony, and the Government presented no evidence, that Defendant per 950 formed any CPT 69150s on Lisa Lovejoy, the patient incorrectly identified on the verdict forms as the patient to whom counts 65 through 67 pertained. The Government asserts that the evidence clearly showed that counts 29 through 31 referred to patient Lisa Lovejoy for the nasal endoscopy with debridement procedure (CPT 31237), and counts 65 through 67 referred to patient Leona Larsen for the cholesteatoma procedure (CPT 69150). The Government maintains that while the verdict forms may have incorrectly listed the wrong patient for counts 65 through 67, the jury certainly had ample evidence demonstrating Defendant's guilt as to the counts involving Leona Larsen. Counts 65 through 67 as charged in the superseding indictment listed Leona Larsen, and not Lisa Lovejoy, as the relevant patient for those counts. Lisa Lovejoy was a sinus patient; Leona Larsen was a cholesteatoma patient. There was no evidence presented that any cholesteatoma procedures (CPT 69150) were performed on Ms. Lovejoy, and clearly the listing of Lisa Lovejoy on the verdict form for counts 65 through 67 was a scrivener's error. Counsel were provided with a copies of the final jury instructions, along with the lengthy verdict form, for inspection prior to making formal objections; and the Court specifically advised counsel for all parties to carefully review the verdict forms, given the various procedures, health care providers, and patients that were at issue in each individual count. Neither the Government nor the Defendant pointed out the error with respect to counts 65 through 67 to the Court at any time prior to the filing of the instant motion, and neither party objected to the verdict forms at the time of lodging formal objections to the final jury instructions and verdict forms. "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Fed.R.Crim.P. 52(b). Under the plain error review, discretion should be exercised "to correct only errors serious enough to affect the fairness, integrity or public reputation of judicial proceedings, such as circumstances in which a miscarriage of justice would otherwise result." United States v. Harper, 466 F.3d 634, 644 (8th Cir2006) (quoting United States v. Olano, 507 U.S. 725, 735-36, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)) (quotations omitted); see also United States v. Smith, 2006 WL 3702656, 1 (D.Minn.2006) (in the absence of a contemporaneous objection, district court reviews alleged error under the plain error standard). A conviction on counts 65 through 67, where the verdict forms incorrectly identify a patient, on which there is no allegation that Defendant committed the crime of health care fraud with respect to a cholesteatoma removal on this patient, affects the integrity and public reputation of these judicial proceedings. The Court has concluded Defendant is not entitled to a judgment of acquittal on these counts, as evidence regarding the correct patient at issue, Leona Larsen, exists and was presented at trial. Defendant is, however, entitled to a new trial on counts 65 through 67, because to decide otherwise would be inconsistent with the fairness, integrity, and public reputation of these judicial proceedings. Jury Deliberations. Defendant argues that the jury's verdict for counts 65 through 67 demonstrates that the jury did not carefully read the verdict forms and that the jury conducted no meaningful, independent deliberations as to each count of the indictment as required by the jury instructions, pointing to 951 the "swiftness" with which the jury deliberated. The clerk's minutes reveal that although the trial spanned a two-week period from June 31, 2006, through the day the verdict was reached, August 7, 2007, the Court was in session with the jury for the presentation of evidence for approximately 41 total hours; the remainder of the court days were spent in proceedings with 'counsel outside the presence of the jury, or for recesses. The clerk's minutes also reveal the jury deliberated for almost nine hours. "[T]here is no clear rule as to the proper amount of deliberation time, and the appropriateness of the deliberation time is dependent on the facts of a particular case." United States v. Aldridge, 413 F.3d 829, 833 (8th Cir.2005); see also United States v. Dolan, 120 F.3d 856, 870 (8th Cir.1997) (no rule requiring a jury to deliberate for a specific length of time). While this case involved voluminous exhibits and testimony from numerous witnesses, much of the witness testimony was cumulative, and the factual issues involved were not complex. Each juror entered the jury room to commence deliberations with a grasp of the evidence and perceptions formed during the course of the trial that did not have to be developed out of whole cloth simply because the commencement of deliberations was the first time the jurors could discuss the case or view all of the exhibits more closely. This record does not support a conclusion that no reasonable jury could have considered separately whether each Defendant was guilty of conspiracy and whether each Defendant was guilty of the 82 separate counts of health care fraud within nine hours.[16] Motion for Forfeiture of Property. Count 84 of the superseding indictment seeks forfeiture of the proceeds of Defendant's health care fraud, pursuant to 18 U.S.C. § 982(a)(7), which provides as follows: The court, in imposing sentence on a person convicted of a Federal health care offense, shall order the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense. 18 U.S.C. § 982(a)(7). As soon as practicable after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted, on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute. If the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and. the offense. If the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay. The court's determination may be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt. Fed. R.Crim. Pro. 32.2(b)(1). This preliminary order of forfeiture becomes final at sentencing and must be made part of Defendant's 952 sentence and included in the judgment. Fed. R.Crim. Pro. 32.2(b)(3). The preponderance of the evidence standard governs criminal forfeiture proceedings, and the burden is on the Government. United States v. Wojcik, 60 F.3d 431, 434 (8th Cir.1995); United States v. Bieri, 21 F.3d 819, 822 (8th Cir.1994). The Government argues that Defendant was convicted of a scheme to defraud and that each of the claims listed in the substantive counts of the superseding indictment, counts 2 through 83, are a separate execution of that scheme. The Government further argues the health care fraud statute criminalizes a scheme to defraud, and while each substantive count may be a separate execution of that scheme, the Government is entitled to forfeit the proceeds of Defendant's entire scheme to defraud including uncharged executions of that scheme. The Government asserts that while it had the authority, it did not charge 948 other executions of the scheme (detailed in count one as overt acts), because to do so would have required an indictment containing over 900 counts. The Government states the trial evidence demonstrated Defendant billed for medical procedures not actually performed on patients and that the procedures billed were more expensive than those actually performed on the patients. The Government seeks a preliminary order of forfeiture in the form of a money judgment against Defendant in the amount of $428,971.00, an amount the Government contends constitutes the total amount of the gross proceeds from Defendant's scheme to commit health care fraud. This amount includes the 948 claims not specifically charged in substantive counts as separate executions of the scheme. Defendant argues that the amount of forfeiture is limited to the proceeds specifically traceable to the commission of the offenses for which he was convicted and therefore the 948 claims for reimbursement detailed in count one, but not specifically charged in substantive counts as executions of the overall scheme, are irrelevant in determining the forfeiture amount. Defendant asserts that per Agent Kohler's summary charts, the total amount of the proceeds received and traceable for the commission of the 82 substantive counts is $52,157.59, noting that this figure includes the three cholesteatoma procedures (CPT 69150) billed to Medicare as alleged in counts 65 through 67. Clearly, the amounts received by the Boesen Clinic for the procedures at issue in counts 2 through 64 and counts 68 through 83 should be included in the forfeiture amount. The issue the Court must determine is whether any additional executions of the scheme not specifically charged as substantive counts, but which fall within the boundaries of the overall scheme, can be included in determining the proper forfeiture amount. The federal health care fraud statute punishes anyone who knowingly and willfully executes, or attempts to execute, a scheme or artifice . . . to defraud any health care benefit program, or . . . obtain[s], by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items or services . . . 18 U.S.C. § 1347. The law does not require the Government to charge a defendant with every execution of a health care fraud scheme, and the Government could indict a defendant for a health care fraud scheme by charging only one execution of that scheme. United States v. Kirkham, 129 Fed.Appx. 61, 68 (5th Cir.2005) ("[A]lthough the government may charge defendants 953 for each execution of the scheme, it is not required to do so."); United States v. Hickman, 331 F.3d 439, 446 (5th Cir. 2003) ("[A]lthough the crime of health care fraud is complete upon the execution of a scheme, any scheme can be executed a number of times, and each execution may be charged as a separate count."). Other courts, in examining the bank fraud statute codified at 18 U.S.C. § 1344 and containing statutory language virtually identical to the health fraud statute, have found the same. United States v. Pless, 79 F.3d 1217, 1220 (D.C.Cir.1996) ("[I]t is not necessary for the government to charge every single act of execution of the scheme in order to prove the whole scheme."); United States v. Hammen, 977 F.2d 379, 383 (7th Cir.1992) ("[F]or each count of conviction, there must be an execution. However, the law does not require the converse: each execution need not give rise to a charge in the indictment."). Each execution does constitute a separate offense, and the Government could in fact have charged Defendant with the hundreds of other executions of the health care fraud scheme.[17] Instead, the Government chose to set forth the scheme in the indictment and specifically charge only 82 separate executions of the overall scheme. The statute criminalizes executions of the scheme; the overall scheme is thus inherently part of the offenses of which Defendant has been convicted. "Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct." United States v. Ursery, 518 U.S. 267, 284, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). Forfeiture of the gross proceeds of uncharged executions of the scheme that Defendant was convicted of serves this purpose. The Court will therefore include in the forfeiture amount the gross proceeds from the overall scheme charged in the indictment. Defendant also argues he is entitled to some amount of reimbursement or set-off for the procedures he actually did perform, essentially arguing that he should only be held responsible for the excess charges underlying his health care fraud, and not for charges for services actually performed. Defendant contends the evidence shows that at a minimum, he was performing a diagnostic nasal endoscopy procedure (CPT 31231) on each of the patients at issue, the amount of reimbursement he would have received for billing such a procedure was $150.00, he is entitled to a setoff of $150.00 for each of the sinus procedures the Court includes in its forfeiture ruling, and thus with respect to counts 2 through 52, the amount of forfeiture should be reduced by a total amount of $7,650.00. Applying this same argument to the cholesteatoma patients, Defendant argues the undisputed evidence was that he should have coded these procedures as the removal of ear canal lesions (CPT 69145), the amount of reimbursement he would have received for billing such a procedure was $197.00, he is entitled to a setoff of $197.00 for each of the cholesteatoma procedures included in the forfeiture ruling, thus with respect to counts 53 through 76, the amount of forfeiture should be reduced by $4,728.00. Defendant has cited no authority in support of his assertion that in determining the proper forfeiture amount he is entitled to a set-off for the procedures he actually did perform, though the argument has some initial logical appeal. Other courts have rejected similar arguments when 954 evaluating forfeiture pursuant to 21 U.S.C. § 853, which includes statutory language subjecting "any proceeds" to forfeiture. United States v. Keeling, 235 F.3d 533, 537 (10th Cir.2000) (concluding "proceeds" as used in 21 U.S.C. § 853 contemplates gross proceeds, and not merely profits); United States v. McHan, 101 F.3d 1027, 1042 (4th Cir.1996) ("The proper measure of criminal responsibility generally is the harm that the defendant caused, not the net gain that he realized from his conduct."). The relevant forfeiture statute for purposes of this case, 18 U.S.C. § 982(a)(7), specifically states gross proceeds shall be forfeited. The amounts received by the Boesen Clinic from the overall scheme and included in Agent Kohler's summary charts pertain solely to the procedures at issue; the dollar amounts do not include any office visits or any other charges incurred during the course of the office visit. The statute specifically states that gross proceeds "traceable to the commission of the offense" shall be forfeited. The offense was the submission of fraudulent claims under a specific code that called for a payment in a specific amount. Given the express language of the statute and the foregoing additional legal authority, this Court concludes it is irrelevant that Dr. Boesen could have legitimately charged a lesser amount for a different procedure, identified by a different code. To allow the perpetrator of a fraud to mitigate his eventual forfeiture exposure by such a setoff procedure would seem fundamentally inconsistent with the purpose of the statute and challenging, if not impossible, in its application from case to case. Based upon the specific language of the forfeiture statute, the precise nature of the offense of conviction, and the lack of authority to support the concept that Defendant is entitled to a set-off for whatever procedures he actually performed on his patients, the Court will not include any set-off in its determination of the proper forfeiture amount.[18] Agent Kohler testified at trial that the total dollar amount Defendant's clinic received from the insurance companies for the procedures listed, in the summary chart exhibits was $428,971.00. The Court has previously concluded that Defendant is entitled to a new trial on counts 65 through 67, thus the amount Defendant received for these procedures, $3,101.94,[19] cannot be included in this forfeiture determination. Using the total amount of $428,971.00 gleaned from the summary charts and Agent Kohler's testimony regarding those charts, and subtracting from that amount the $3,101.94 that pertains to counts 65 through 67, the Court has calculated the gross proceeds from the offense conduct to be $425,869.06. This amount represents the gross proceeds traceable to 955 the offenses on which Defendant was convicted, and this amount is subject to forfeiture. The Government's Motion for Preliminary Order of Forfeiture is granted, and Defendant is ordered to forfeit to the Government 8425,869.06. CONCLUSION For the above stated reasons, Defendant's Motion for Judgment of Acquittal (Clerk's No. 154) must be denied. Defendant's Motion for New Trial (Clerk's No. 154) must be denied, except with respect to counts 65 through 67. In the interests of protecting the integrity of the judicial proceedings and the public's faith in such, Defendant's Motion for New Trial as to Counts 65 through 67 must be granted. The Government's Motion for Order of Preliminary Forfeiture (Clerk's No. 162) must be granted, and the amount of the money judgment against Defendant shall be $425,869.06. IT IS SO ORDERED. NOTES [1] Defendant's counsel further provided the Court with a letter on January 30, 2007 regarding forfeiture amounts after the claimed set-off and the value of Counts 65-67. [2] It is this Court's duty to review the current motion under this standard and under the standard for a new trial set forth at pages 13 to 14, infra. The Court has to date received 74 letters from friends, colleagues, and patients of Dr. Boesen, in many instances asking this Court to exercise its own judgment in weighing the evidence and in the ultimate determination of the guilt or innocence of Dr. Boesen. While these letters have all been read and their sentiment appreciated, this, Court has clearly defined legal authority and obligations that do not include substituting its judgment for that of the jury, if there is legally sufficient evidence to support the jury verdict. [3] Current Procedural Terminology. [4] Specifically, Dr. Kidder testified that the patient notes stated that the maxillary ostium was widened posteriorly. Dr. Kidder found this notation striking because this patient did not have an antrostomy, which meant Defendant would have enlarged the patient's actual ostium in his office without using any anesthetic, a procedure which Dr. Kidder testified would have been virtually impossible under those conditions. [5] A reasonable juror, could connect this sudden change in treatment to inquiries made by health insurers questioning the validity of the procedures. [6] Trial Exhibit No. 1-19. [7] Trial Exhibit No. 121. [8] Formerly known as John Deere Health. [9] Trial Exhibit W. [10] Trial Exhibit No. 1-25. [11] Trial Exhibit No. 1-27. [12] Trial Exhibit No. 1-28. The record reflected that Dr. Boesen had few patients who were covered by the United Health Care of the River Valley plan, whereas he had many patients covered by Wellmark. [13] The Court referenced the beyond a reasonable doubt standard some 10 times during the Preliminary Instructions to the jury, in addition to specifically defining reasonable doubt for the jury at the beginning of the trial. The concept was referenced 13 times in the Final Jury Instructions, as well as specifically de' fined. Preliminary Instruction No. 8 and final Jury Instruction No. 3 advised that statements by the lawyers are not evidence. Each juror was given a copy of the final instructions to read along with the Court as the Court instructed the jury at the conclusion of the trial and had those written instructions available to them in the jury room. Final Instruction Nos. 1 and 2 specifically advised the jurors that they must follow the Court's instructions on the law. [14] Although not central to the Court's determination on this issue, the record reflects no legal issue presented by the state agency when complying with the United States Attorney's request for this, information. [15] The Government's burden in admitting statements under Rule 80I(d)(2)(E) is subject only to a preponderance of the evidence standard. The Court's ruling that the Government had not proved its case against James Boesen was based on the stricter beyond a reasonable doubt standard, therefore based upon these differing standards, concluding that the Government met its burden under Rule 801(d)(2)(E) is not inconsistent with the Court's ruling that ultimately the Government had not proved the case against James Boepen. The Court does not address whether the statements of James Boesen may have been admissible on some other legal basis. [16] While Defendant argues the jury did not conduct meaningful deliberations, and the specifics of their deliberations are properly beyond our reach, the Court notes that with regard to count one, the jury did not find the defendants guilty of the same overt acts. Upon examination of the overt acts, the jury did not find beyond a reasonable doubt as to each defendant, it is clear the jury read the jury instructions and engaged in significant consideration during the course of their deliberations. [17] If the indictment had charged Defendant with each execution of the scheme in a separate count, at $100 per count, Defendant would also have been exposed to a potential special assessment of over $100,000. 18 U.S.C. § 3013 (a)(2)(A). [18] Both parties argued at the hearing on the Motion for Preliminary Order of Forfeiture that for United States Sentencing Guidelines purposes, the loss amount and the forfeiture amount are the same. It is well-settled in the law that both uncharged and acquitted conduct, if proven by a preponderance of the evidence, may be used for sentencing purposes. United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir.2007) (citing United States v. Whatley, 133 F.3d 601, 606 (8th Cir.1998)); United States v. Valdivia-Perez, 185 Fed.Appx. 543, 545-544 (8th Cir.2006); United States v. High Elk, 442 F.3d 622 (8th Cir.2006); United States v. White, 354 F.3d 841, 844 (8th Cir. 2004). The Court does note Defendant's argument regarding set-off appears to have merit in the context of determining for sentencing purposes the proper loss amount pursuant to U.S.S.G. § 2B1.1(b)(1). United States v. Harms, 442 F.3d 367, 380 (5th Cir. 2006) ("[T]he amount of loss is the difference between the amount the defendant actually received and the amount he would have received absent the fraud."); United States v. Parsons, 109 F.3d 1002 (4th Cir.1997). [19] Trial Exhibit No. 112-2.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3354466/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO INTERVENE The plaintiff, Gary Way, filed a complaint sounding in product liability against the defendant Sears, Roebuck Co. On CT Page 8717 August 4, 1993, TJS Associates, the plaintiff's employer, filed a notice of intervention and intervening complaint. The defendant filed an objection to the TJS Associates' motion to intervene on August 20, 1993, in which the defendant asserts that General Statutes 52-572r(c) bars the plaintiff's employer from intervening in a product liability suit. General Statute 52-572r(c) bars an employer from intervening in a product liability action. Rodia v. Tesco Corp.,11 Conn. App. 391, 523 A.2d 914 (1987). However, effective July 1, 1993, this provision has been repealed by the legislature. Public Act No. 93-228 34 and 35. The repeal of General Statutes 52-572r(c) affects the substantive rights of litigants. See Bishop v. Navistar International Incorporated, 6 CSCR 440 (March 1, 1991, Flynn, J.) (where the court held that an employer's right to intervene is substantive). New legislation which affects the substantive rights of parties is applied retroactively only when the legislature "unequivocally declares the new legislation is to be given retroactive effect." Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 522, 562 A.2d 1100 (1989). There is no language in Public Act No. 93-228 to indicate that the legislature intended this Act to have retroactive effect, therefore it is not controlling. Schaghticoke Indians of Kent, Connecticut v. Potter, 217 Conn. 612, 616, 587 A.2d 139 (1991). In addition, the third party plaintiff, TJS Associates, Inc., is seeking intervention in this action pursuant to Connecticut General Statutes 31-293. It is important to point out, however, that TJS Associates, Inc. is a New York corporation. Further, the Workers Compensation benefits that were paid to the plaintiff, Gary Way, were paid by this New York corporation pursuant to New York state workers compensation law as the injury took place on Fisher's Island in New York. Connecticut General Statutes 31-293 states in pertinent part: When an injury for which compensation is payable under the provisions of this chapter has been sustained under the circumstances creating in a third party other than the employer a legal liability to pay damages for the injury, the injured employee may claim CT Page 8718 compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person recover damages for the injury; and any employer having paid, or having become and obligated to pay compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. (Emphasis added.) The language of this section is clear. When an employer has paid Workers Compensation pursuant to the provisions of Chapter 568 (Workers Compensation Act) of the Connecticut General Statutes, they then have a right to intervene in certain third party actions brought by the injured employee. However, the statute specifically states that the benefits must be paid pursuant to "this chapter". Id. Clearly, that is not the case in the instant proceeding. Any Workers Compensation benefits that were paid to the plaintiff were paid pursuant to New York State Workers Compensation Law and thus Connecticut General Statutes 31-293 creates no right to intervene on behalf of the third party plaintiff, TJS Associates, Inc., given that they are a New York state employer having paid workers compensation benefits pursuant to New York State Workers Compensation Law. Accordingly, because General Statutes 52-572r(c) bars an employer's right to intervene in a product liability action, and mindful that any workmen's compensation benefits that were paid to the plaintiff were paid pursuant to New York Compensation Law. TJS Associates' motion to intervene is denied. Austin, J. [EDITORS' NOTE: THE NEXT PAGE IS PAGE 8728.] [EDITORS' NOTE: The Case that formerly appeared here has been withdrawn.] CT Page 8728	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/837354/	Order Michigan Supreme Court Lansing, Michigan March 23, 2009 Marilyn Kelly, Chief Justice 137386 Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway, Plaintiff-Appellee, Justices v SC: 137386 COA: 285311 Cass CC: 97-009004-FC JAMES MARTIN JR., Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the August 5, 2008 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 23, 2009 _________________________________________ p0316 Clerk	01-03-2023	03-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/3354467/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: DEFENDANTS' MOTION TO DISMISS (#109) This matter comes before the court on defendants' motion to dismiss for want of subject matter jurisdiction. It is claimed that because ancillary administration has not been served in Connecticut, the plaintiff lacks legal standing or capacity to sue. "A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court." Zizka v. WaterPollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "It is well established that in ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks CT Page 5994 omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410,722 A.2d 271 (1999) "The qualification of an administrator or executor in a foreign jurisdiction does not, as such, give him the right to administer upon assets here, or to sue to recover a debt due here. He must first take out ancillary administration." EquitableTrust Co. v. Plume, 92 Conn. 649, 654, 103 A. 940 (1918). When a defendant contests the plaintiff's legal status to sue, and asserts that the plaintiff should have obtained an ancillary appointment, "[t]he attack [is] upon the capacity in which the plaintiff undertook to sue rather than an attack upon thejurisdiction of the court." (Emphasis added.) McCoy v. Raucci,156 Conn. 115, 117, 239 A.2d 689 (1968). "Any attack on the capacity in which the plaintiff undertook to sue should have been made in a preliminary pleading or in the defendant's answer." Id., 118-19; see also First Wisconsin Trust Co. v. Pine,6 Conn. Sup. 323 (1938) ("failure to qualify [as executor in Connecticut] is a defense, to be pleaded in the answer"); Estate of Tapia v.Burns, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 284858 (September 20, 1993, Fuller, J.) (8 CSCR 1141) ("a challenge to the right of a plaintiff to sue as a fiduciary must be raised by a special defense"); Practice Book § 10-46 (formerly § 160) ("Any defendant who intends to controvert the right of the plaintiff to sue as executor, or as a trustee, or in any other representative capacity, . . . shall deny the same in the answer specifically"). In the answer, the defendant must specifically deny the plaintiff's allegation of her having been duly appointed, not merely claim lack of knowledge or information. McCoy v. Raucci, supra, 156 Conn. 118. The plaintiff's complaint, paragraph one, alleges that "Donna Civitarese . . . on June 13, 1997, was duly appointed by the Court of Probate, District of North Stonington of the State of Connecticut as Administratrix of the deceased's estate, and has been acting as such." The defendants' answer to that allegation states that they "have no knowledge or information sufficient to form a belief and therefore leave the plaintiff to her proof." As special defenses, the defendants assert contributory negligence on the part of the decedent and the statute of limitations. The defendants have not raised an objection to the plaintiff's failure to secure an ancillary administration until the filing of the present motion to dismiss. As in McCoy v. Raucci, supra, the defendants' only objection CT Page 5995 is that the plaintiff should have secured an ancillary administration rather than a full administration in Connecticut. This objection does not implicate the subject matter jurisdiction of this court. Rather, this is an attack upon the plaintiff's capacity as a fiduciary, and "should have been made in a preliminary pleading or in the defendant's answer." McCoy v.Raucci, supra, 156 Conn. 119. Because the defendants' motion to dismiss does not attack the subject matter jurisdiction of this court, any other claims of lack of jurisdiction are waived if not raised by a motion to dismiss filed within thirty days of the defendants' appearance. See Practice Book §§ 10-32 (formerly § 144) and 10-33 (formerly § 145). The present motion to dismiss was filed long after the thirty-day time limitation for raising non-subject matter jurisdiction objections. The defendants' motion to dismiss is denied. Mihalakos, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2619233/	64 Wash. 2d 842 (1964) 394 P.2d 693 THE STATE OF WASHINGTON, Respondent, v. MARTIN L. WILLIAMS et al., Petitioners.[] No. 37369. The Supreme Court of Washington, Department One. August 6, 1964. Roland C. Wightman, for petitioners. The Attorney General and Joseph S. Montecucco, Assistant, for respondent. HUNTER, J. Martin L. Williams and his wife (petitioners) are the owners of a cold storage warehouse abutting Browne Street in Spokane, Washington. The state of Washington 843 (respondent) plans to convert Browne Street in front of petitioners' property into part of Primary State Highway No. 3, and, in so doing, to lower the grade in front of petitioners' property in varying amounts from approximately 2 1/2 inches to 2 feet. An action was instituted by the state to condemn the access rights of the petitioners that would be damaged by the proposed change of grade. The jury awarded the petitioners $45,000. The state made a motion for a new trial, and the trial court entered an order granting the motion. The petitioners have applied for a review of the order by a writ of certiorari which has been granted by this court. [1] Several grounds were urged in the trial court in support of the motion for a new trial. The new trial was granted on the single ground that an exhibit, which had been admitted into evidence, inadvertently was not submitted to the jury during its deliberations. We may, however, consider all grounds asserted by the state, supporting its motion in the trial court, to support the order granting a new trial. State v. Maxfield, 46 Wn. (2d) 822, 285 P. (2d) 887 (1955). Since a new trial is necessary on another ground, we need not consider the issue upon which the new trial was granted. The primary issue raised by the state, and which we believe is the crux of this review, was the refusal of the trial court to instruct the jury that it could not consider any element of damage resulting to the petitioners by a possible change in the traffic and parking regulations. The state argues that traffic regulations constitute a reasonable exercise of the police power, and any change affecting the petitioners is not a compensable item of damage. The record shows that under the existing ordinance the petitioners have been permitted to load and unload trucks by parking them in such a manner that the front end of the trucks extend into the street; that one of the elements considered by the expert witnesses, when giving their opinions as to the difference in the market value of the property before and after the change of grade, was the 844 possible inability of the petitioners to have parked vehicles protrude into Browne Street, for loading and unloading purposes, after its conversion into Primary State Highway No. 3. It was the consideration of this evidence by the jury, in awarding damages, to which the state objected. [2] The law is well established in this state that a property owner abutting a public street has a vested right to an easement for reasonable ingress and egress to his property. State v. Calkins, 50 Wn. (2d) 716, 314 P. (2d) 449 (1957); McMoran v. State, 55 Wn. (2d) 37, 345 P. (2d) 598 (1959). A reduction of the street grade constitutes a damage to this right. State ex rel. Moline v. Driscoll, 185 Wash. 229, 53 P. (2d) 622 (1936). The law is equally clear, however, that once the abutting owner is on the street, to which he has free access, he is subject to all the traffic regulations just as any other member of the traveling public. Walker v. State, 48 Wn. (2d) 587, 295 P. (2d) 328 (1956). Traffic regulations, including parking while loading and unloading, are police power regulations and are not a part of an abutting property owner's vested right of ingress and egress. In Sandona v. Cle Elum, 37 Wn. (2d) 831, 226 P. (2d) 889 (1951), the plaintiffs operated a transfer business, and while loading and unloading trucks in front of their place of business, the front of the trucks protruded into the street. Plaintiffs brought an action to enjoin the city of Cle Elum from enforcing a city ordinance which prohibited parking on the side of the street within 75 feet opposite the entrance to any fire station. We there held that the ordinance was within the reasonable exercise of the police power, and quoted the following from Hickey v. Riley, 177 Ore. 321, 162 P. (2d) 371 (1945): "`Parking is not a right, but a privilege, and, as such, is subject to reasonable regulation under the police power. Gardner v. City of Brunswick, (1943), 197 Ga. 167, 28 S.E. (2d) 135.'" [3] It was error for the trial judge to permit the jury to consider evidence of an alleged decrease in the value of the property resulting from possible changes in the regulations 845 governing parking, while loading and unloading, since this is a reasonable exercise of the police power and is not a compensable item of damage. Walker v. State, supra. Such regulations do not invade the petitioners' vested right of ingress and egress to their property abutting Browne Street, and are unrelated to damages sustained by the petitioners resulting from the change of grade. The judgment of the trial court granting the state a new trial is affirmed, and the cause is remanded for trial consistent with the views expressed herein. HILL, ROSELLINI, and HALE, JJ., and CUSHING, J. Pro Tem., concur. October 16, 1964. Petition for rehearing denied. NOTES [*] Reported in 394 P. (2d) 693.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619234/	394 P.2d 274 (1964) 74 N.M. 430 Erna B. BILLS and Erna B. Bills as Executrix of the Estate of Alvin B. Bills, deceased, Plaintiffs-Appellants, v. ALL-WESTERN BOWLING CORPORATION, Don Lohbeck and George F. Winneberger, Defendants-Appellees. No. 7438. Supreme Court of New Mexico. July 20, 1964. 275 Ann Wilcox Hood, Albuquerque, for appellants. Snyder H. Downs, Santa Fe, for appellees. MOISE, Justice. Plaintiffs brought this action under § 48-18-31, N.M.S.A. 1953, to recover the purchase price of securities sold in alleged violation of The Securities Act of New Mexico, more commonly known as the Blue Sky Law. §§ 48-18-16 et seq., N.M.S.A. 1953. From a dismissal of their action, plaintiffs appeal. The defendant-appellees, who will be referred to by name, are: All Western Bowling Corporation, in which plaintiffs purchased stock; Don Lohbeck, president of All-Western Bowling Corporation, and the party who actually made the sale of stock here in question; George Winneberger, secretary of All-Western Bowling Corporation, and who, in his official capacity, signed the stock certificates that were issued to plaintiff. In their complaint, plaintiffs alleged that defendants were liable for the purchase price of the stock because the sale had been fraudulently induced and had been made in violation of §§ 48-18-16 et seq., N.M.S.A. 1953. Defendants claimed that the issuance and sale of this stock was exempt from the Blue Sky Law under § 48-18-22(J), N.M.S.A. 1953. This section provides in substance that if the number of stockholders in the corporation do not exceed twenty-five, and will not exceed this number as a result of the sale, or if the aggregate amount raised by the sale of stock does not, and will not, as a result of the sale, exceed $50,000.00, then the sale is exempt if the seller reasonably believes that the purchaser of the stock is purchasing for investment and no commission is paid for the solicitation of any prospective purchaser. The plaintiffs had done business with Lohbeck in connection with a tailoring business operated by them in Albuquerque. Bowling trophies displayed by plaintiffs in their place of business provided a topic for conversation on one of Lohbeck's visits to plaintiffs' shop. That was followed by Lohbeck advising plaintiffs of the formation of the All-Western Bowling Corporation to build bowling lanes in the state and offering 276 to sell stock in the corporation to plaintiffs. Plaintiffs subscribed for 1500 shares of stock in the corporation on January 27, 1961, and paid $150.00 "down." On March 8, 1961, the balance of the purchase price, $1,350.00, was paid. When plaintiffs signed the subscription agreement, they also signed a statement that the stock was being purchased for investment purposes, and not with a view to redistribution. On August 25, 1961, All-Western Bowling Corporation applied for registration by qualification pursuant to § 48-18-19.5, N.M.S.A. 1953. On December 7, 1961, the application for registration was refused and any further sale of the securities forbidden. Needless to say, the corporation ran into difficulties and the plaintiffs are here seeking a return of their money on the grounds that because of failure to register the stock for sale pursuant to § 48-18-19.5, supra, the purchase price may be recovered under § 48-18-31, N.M.S.A. 1953, which provides: "Every sale or contract for sale made in violation of any of the provisions of this act * * * shall be voidable at the election of the purchaser. The person making such sale or contract for sale, and every director, officer, salesman or agent of or for such seller who shall have participated or aided in any way in making such sale, shall be jointly and severally liable to such purchaser in any action at law * * ." Plaintiffs have raised three questions. In light of our view and disposition of the first two points, it will be unnecessary to consider the third. First, it is argued that defendants did not, as a matter of law, prove the sale to plaintiffs was exempt under § 48-18-22(J), N.M.S.A. 1953. By the terms of § 48-18-33(a), N.M.S.A. 1953, where the defense to an action is grounded on one of the exemptions provided in the statute, the party raising that defense has the burden of proving the existence of the exemption. The total evidence to sustain the exemption, found by the lower court to exist, was the testimony of Mr. Lohbeck, who testified concerning the facts surrounding the sales, which, if true, made them exempt under the statute. Peter Wainwright, who was commissioner of securities, testified concerning the number of sales and amount raised thereby on the basis of the information contained in the application forms filed for registration by All-Western Bowling Corporation. Plaintiffs contend that since the books and records of the corporation were available, and not produced, the defendants failed to sustain their burden of proof on such items as whether the $150.00 down payment was retained by Mr. Lohbeck as a commission rather than paid into the corporation; and further, that the books would have shown the number of stockholders in the corporation and the amount of capital to be raised by the sale of stock and, by not producing them, failure of defendants to sustain the burden of proof resting on them under the act resulted. To support this argument, plaintiffs cite us to three cases: Commonwealth v. Harrison, 137 Pa.Super. 279, 8 A.2d 733; People v. Wilson, 375 Ill. 506, 31 N.E.2d 959; McBreen v. Iceco, Inc., 12 Ill. App. 2d 372, 139 N.E.2d 845. Commonwealth v. Harrison, supra, was a criminal prosecution for violation of the Pennsylvania Blue Sky Law. The defendants in that case were attempting to prove they were exempt from the provisions of the law. One of the requirements was that the stock be sold exclusively for the benefit of the corporation, and that no commissions or other remuneration be retained by the person making the sale. To prove this, defendants put on the corporation's office manager, who was also the wife of one of the defendants. She testified that all proceeds from the sales in question went into the treasury of the corporation. None of the records or books of the corporation were produced, and the jury found the defendants guilty thereby determining the sales were not proven exempt. On a reading of the pertinent part of the opinion, it is evident that defendants had 277 failed to carry their burden of persuasion by the uncorroborated testimony of the office manager. Thus, the question was not whether, as a matter of law, the corporate books had to be produced to sustain the burden of proving an exemption, it was really a question of whether the defendants had persuaded the jury. The language used by the court was merely to illustrate what defendants might have done to be more convincing. The other two cases cited by plaintiffs, People v. Wilson, supra, and McBreen v. Iceco, Inc., supra, merely support the rule imposed on this court by statute, that when defendants rely on an exemption as a defense, the burden of proof thereof is on the party so alleging. § 48-18-33(a), supra. Although the introduction of the corporate records would have added to the quality of the evidence, we see nothing in § 48-18-33(a), supra, that indicates the legislature intended anything beyond fixing where the burden of proof lies, and did not intend to impose a higher standard of proof than that ordinarily required in civil actions. This being so, our review is limited to whether the facts found by the trial court, upon which a conclusion of exemption under § 48-18-22(J), supra, is based, are supported by substantial evidence. Adams v. Cox, 55 N.M. 444, 234 P.2d 1043; Mosely v. National Bankers Life Ins. Co., 66 N.M. 330, 347 P.2d 755. Of course, if the trial court's findings are supported, they will not be disturbed on appeal. Entertainment Corp. of America v. Halberg, 69 N.M. 104, 364 P.2d 358; Sellers v. Skarda, 71 N.M. 383, 378 P.2d 617; Gladin v. Compton, 72 N.M. 175, 381 P.2d 961. This is true even though a contrary finding would likewise be sustained, or might in our opinion be more appropriate. State ex rel. State Highway Comm. v. Tanny, 68 N.M. 117, 359 P.2d 350; Templeton v. Pecos Valley Artesion Conservancy Dist., 65 N.M. 59, 332 P.2d 465; Kutz Canon Oil & Gas Co. v. Harr, 56 N.M. 358, 244 P.2d 522. At the trial, there was testimony by both Lohbeck and Wainwright indicating that these sales fell within the exemption of § 48-18-22(J), supra. Although the proof produced may have left something to be desired, the findings of exemption did have support in the evidence, and were not inherently improbable. Compare, Kutz Canon Oil & Gas Co. v. Harr, supra; Addison v. Tessier, 65 N.M. 222, 335 P.2d 554. It follows that plaintiffs' first point must be ruled against them. Next, plaintiffs argue that the legislature did not intend for the exemption of § 48-18-22(J), supra, to apply to a situation such as this. Plaintiff argues that the exemption was intended to apply to the small close corporation where additional capital was to be raised by sales to friends and relatives familiar with the business; that, in the instant case, the plaintiffs had no knowledge of the dealings of the corporation and the sale was to a complete stranger. Plaintiffs continue that they were not sophisticated investors, and therefore the statute should not be construed to allow defendants the protection of an exemption. We cannot agree with plaintiffs for two reasons. First, the court found that plaintiffs purchased the stock after an independent investigation. The evidence also shows that plaintiffs had a certain amount of experience in business. They knew there were risks in this type of enterprise. Secondly, the legislature, in its wisdom, has set up criteria that will exempt certain sales from the Blue Sky Law. Although, as plaintiffs argue, it is the province of this court to interpret the legislation; nevertheless we cannot depart from the express language of the act. We can only say that the legislature intended what was enacted. That this court would have used other language, does not warrant a disregard for the legislative mandate. Burch v. Foy, 62 N.M. 219, 308 P.2d 199. See 62 Cases, etc., of Jam v. United States, 340 U.S. 593, 71 S. Ct. 515, 95 L. Ed. 566. Defendants brought themselves within the language of § 48-18-22(J), supra. We cannot now say that the legislature did not mean what it said, or intended to say something *278 that it didn't. We find nothing in Marney v. Home Royalty Association of Oklahoma, 34 N.M. 632, 286 P. 979, which in any way detracts from what we have said. In light of the disposition of plaintiffs' first two points, it is unnecessary to answer the third point as to George Winneberger's liability as secretary of the corporation in signing the stock certificates issued to plaintiffs. The judgment appealed from is affirmed. It is so ordered. COMPTON, C.J., and NOBLE, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619243/	96 Ariz. 305 (1964) 394 P.2d 420 Robert NEIDERHISER, Appellant, v. HENRY'S DRIVE-IN, INC., an Illinois corporation qualified in Arizona, Appellee. Nos. 7346, 7667. Supreme Court of Arizona. In Division. July 21, 1964. Rehearing Denied September 22, 1964. 306 McKesson, Renaud & Cook, Fred J. Pain, Jr., Phoenix, for appellant. Shortridge & Quisenberry, Phoenix, for appellee. STRUCKMEYER, Justice. Appellant, Robert Neiderhiser, appeals from a judgment entered on the pleadings in favor of appellee, Henry's Drive-In, Inc., defendant below. Appellant sued in two counts. Count one demanded the return of money paid to the appellee under two contracts executed by the parties. Count two sought damages for appellee's alleged representation to appellant at the time of entering into the contract that appellee was qualified to transact business in Arizona. Appellant moved the lower court for summary judgment and appellee moved for a judgment on the pleadings. The lower court denied appellant's motion for summary judgment, granted appellee's motion for judgment on the pleadings, and subsequently judgment was entered in appellee's favor. The appeal in Cause No. 7346 was from the lower court's order for judgment on the pleadings. This is not an appealable order. Meloy v. Saint Paul Mercury Indemnity Co., 72 Ariz. 406, 236 P.2d 732. Hence appellant perfected a second appeal from the judgment entered on that order, Cause No. 7667, and petitioned this Court to consolidate the two appeals, which was granted. Appellant's unverified complaint alleges that prior to December 1, 1959, appellee, a licensed Illinois corporation, leased property on West Camelback Road in Phoenix, Ariz. Sometime between December 1st and December 14, 1959, appellee entered into two contracts with appellant; one, essentially a sublease of the Phoenix property to commence after the erection of a building by appellee; and two, a franchise agreement 307 for the operation of a Henry's Drive-In in Arizona. There is no allegation in the complaint as to where these instruments were signed. The instruments provided that they were to take effect upon the completion of the construction of a restaurant at the Camelback Road property. On December 14, 1959, appellee, pursuant to A.R.S. § 10-481, qualified to do business in Arizona. On May 1, 1960, the restaurant was completed and notice thereof was given to the appellant to perform. At this time, appellant repudiated the lease and franchise by refusing to perform and brought this suit on the grounds that appellee was not qualified to do business in Arizona. The issue permeating the assignments of error is whether appellee was doing business within the meaning of A.R.S. § 10-482 prior to the time that it qualified as a corporation in Arizona. A.R.S. § 10-481, in its applicable part, provides: "A foreign corporation before entering upon, doing or transacting any business, conducting any enterprise, or engaging in any occupation in this state shall:" (File its articles of incorporation, etc.) A.R.S. § 10-482 provides: "No foreign corporation shall transact business in this state until it has complied with the requirements of § 10-481, and every act done prior thereto is void." (Emphasis supplied.) Appellant urges that appellee violated these statutes by entering into the enumerated business transactions. The first of appellee's transactions was the leasing of the Camelback Road property for the purpose of establishing one of its drive-in restaurants thereon. The problem presented here was specifically considered in Worcester Felt Pad Corporation v. Tucson Airport Authority, 9 Cir., 233 F.2d 44, 59 A.L.R. 2d 1121. There, the Worcester corporation, prior to qualifying in Arizona, leased property in Tucson upon which to construct a plant for the purpose of manufacturing household items. The Ninth Circuit Court of Appeals held: "In conclusion, the execution of a lease, an act which is merely incidental and preliminary to the business in which the corporation is ordinarily engaged or is about to engage, does not constitute `entering upon, doing, or transacting any business, enterprise or occupation' within the meaning of the Arizona statute, see 14(a) Corpus Juris, Sections 3982-3986; 20 C.J.S., Corporations, § 1831, Friedlander Bros. v. Deal, supra, [218 Ala. 245, 118 So. 508] and is not void." 233 F.2d 49. We find no merit in appellant's argument that the Worcester case is distinguishable from the case at bar on the grounds 308 that appellee is in the business of leasing real property. Plainly, appellee is in the business of establishing franchises for the purpose of having an outlet for its products thereby enhancing its total business picture. There remains to be considered the agreement between appellee and appellant establishing a franchise for Henry's Drive-In. The appellee, by its answer, alleged that both the lease and the franchise were executed in Chicago, Illinois. As pointed out, appellant did not allege in his complaint where the agreement was signed. It is the settled law in this jurisdiction that a plaintiff's motion for judgment on the pleadings requires the court to take into consideration the allegations of both the complaint and answer and the court necessarily assumes the truth of material allegations of both pleadings. Snyder v. Betsch, 56 Ariz. 508, 109 P.2d 613. By Rule 7(a), Rules of Civil Procedure, 16 A.R.S., only a complaint and an answer are required and no reply is allowed except where the court so orders. By Rule 8(e), Rules of Civil Procedure, 16 A.R.S., averments in the pleadings to which no responsive pleading is required or permitted shall be taken as denied. The allegations of the answer that the instruments were executed in Illinois are deemed denied; hence the defendant may not obtain a judgment on the pleadings on the basis of the allegations contained therein. Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017. The court below was compelled to look only to the allegations of the complaint and appellee was entitled to a judgment on the pleadings only if the complaint failed to state a claim for relief. Appellant's claim for relief is bottomed upon A.R.S. §§ 10-481 and 10-482. These statutes do not have application to acts done by a foreign corporation outside the territorial limits of Arizona. Bank of America, National Trust and Savings Association v. Barnett, 87 Ariz. 96, 348 P.2d 296. Hence a claim for relief cannot be stated unless it is alleged that the instruments were executed in this State. It is clear from the instruments attached as exhibits to the complaint that performance was called for in Arizona. But no act of performance is asserted to have taken place in Arizona prior to the appellee's compliance with A.R.S. § 10-481. Without allegations of performance in Arizona or that the contracts were executed here, there is nothing upon which the Arizona law may operate. The lower court was correct in finding that appellee corporation was not engaged in a transaction in this State consisting of some substantial part of its ordinary business and thus within the purview of A.R.S. §§ 10-481 and 10-482. Sandia Development Corporation v. Allen, 86 Ariz. 40, 340 309 P.2d 193; Monaghan & Murphy Bank v. Davis, 27 Ariz. 532, 234 P. 818. Judgment affirmed. LOCKWOOD, V.C.J., and BERNSTEIN, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619248/	64 Wash. 2d 823 (1964) 394 P.2d 686 THE STATE OF WASHINGTON, on the Relation of James Thigpen et al., Appellant, v. THE CITY OF KENT et al., Respondents.[] No. 37125. The Supreme Court of Washington, Department One. July 30, 1964. Parker & Borawick, by Wayne R. Parker, for appellants. John B. Bereiter and Elvidge, Watt, Veblen & Tewell, for respondents. BARNETT, J.[] Appellant relators commenced this quo warranto action challenging the validity of annexation ordinance No. 1124 of the city of Kent. Relators are residents, property owners, and businessmen whose homes and places of business are within the area described in the annexation ordinance. Respondents are the city of Kent, its mayor, city clerk, and members of its city council. 824 To understand better the problems presented by this appeal, we find it necessary to outline the three separate and distinct methods of annexation which are provided for in the statutes. (1) Election method, initiated by voter petition signed by qualified voters resident in the area to be annexed equal to 20 per cent of the votes cast at the last election. RCW 35.13.020. (2) Election method, initiated by the legislative body of the city or town. RCW 35.13.015. (3) Petition method, initiated by petition "... signed by the owners of not less than seventy-five percent in value, according to the assessed valuation for general taxation of the property for which annexation is petitioned, ..." RCW 35.13.130. There is no election under this method. The annexation method used in the instant case was that of petition. Pursuant to RCW 35.13.171, which is applicable to all three annexation methods, the mayor of Kent convened a review board, whose members are provided for in that statute. The purpose of the review board is to "... determine whether the property proposed to be annexed is of such character that such annexation would be in the public interest and for the public welfare, and in the best interest of the city, county, and other political subdivisions affected...." RCW 35.13.173. That section also sets forth some, but not all, of the factors the review board should take into consideration in making its decision. The review board met on December 28, 1961, and again on January 25, 1962. At the latter meeting the board determined by a three to two vote that the annexation of the area in question was not in the public interest. However, on March 19, 1962, the city council of Kent adopted a motion to accept the annexation despite the review board's unfavorable determination. It is this determination by the city council that brought about this action. Both parties moved for judgment in their favor. The trial court entered an order granting respondents' motion for 825 dismissal and denied relators' motion for summary judgment. At the outset, we are met by the contention of respondents that relators have no standing to maintain this action. RCW 35.24.440 provides that, in contesting the annexation into a third class city (into which class the city of Kent falls), the quo warranto action must be instituted by "... a person interested in the proceedings whose interest must clearly be shown...." Respondents contend that, in order to have standing to contest the annexation, relators' interest must be something special and different, that is, something greater than their interest as members of the general public. The agreed statement of facts relates that relators "are residents of King County, State of Washington, and are residents, operate businesses and own property within that area purportedly annexed ... and are generally affected by the regulations and taxes imposed upon said area by the City of Kent." [1] Although the statute in question does not define what that interest of the persons attacking the validity of the annexation must be, we hold that, within the purview of the statute (1) residents, operating businesses and owning property within the area annexed, are persons "interested in the proceedings" and (2) their interest is clearly shown. The major question remaining is whether a favorable determination of the review board is a condition precedent to the city council's approving the annexation when that annexation is by the petition method. We hold that it is not. RCW 35.13.173 provides in part: "... "Whether the review board determines for or against annexation, its reasons therefor, along with its findings on the specified factors and other material considerations shall: "(1) In the case of a petition signed by property owners calling for an annexation without election, be filed with the legislative body of the city or town concerned; ..." 826 The statutes are silent as to what effect, if any, the review board's determination, either favorable or unfavorable, has when the annexation is by the petition method. When the annexation is by the two election methods, as opposed to the petition method, a favorable determination by the review board is a condition precedent to the city council's allowing such annexation. RCW 35.13.174; RCW 35.13.040; Meek v. Thurston Cy., 60 Wn. (2d) 461, 374 P. (2d) 558 (1962). Relators contend that, by failing to provide what effect the determination of the review board has when the annexation is by petition, the statutes create an ambiguity, and that the legislature intended that a favorable review board determination is essential under the petition method, as well as under the two election methods. However, the legislature only stated so by implication in the petition method. [2] The statutes are not ambiguous. The legislature made express mention of the necessity of review board approval before action can be taken by the board of county commissioners in calling an annexation election and made no mention of review board approval as a prerequisite to action by the city council on a property owner's petition without election. If the legislature intended approval to be conclusive on the city council in the case of the petition method, it could have so provided. [3] The rules of statutory construction can be used only to ascertain the meaning of a statute and not to modify it. State v. Spino, 61 Wn. (2d) 246, 377 P. (2d) 868 (1963). The essence of relators' position is that it is illogical that the legislature intended the review board's findings to be a condition precedent when the election method is pursued, and only advisory when the petition method is invoked. This court cannot read into a statute language which we conceive the legislature has omitted. Department of Labor & Industries v. Cook, 44 Wn. (2d) 671, 269 P. (2d) 962 (1954) and cases cited therein; Shelton Hotel Co. v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478 (1940). 827 In Department of Labor & Industries v. Cook, supra, we said, p. 677: "... Moreover, there seems to be something illogical about giving the department a right to defend in the superior court those board decisions which are favorable to the department, but denying it the right to institute a court attack upon an adverse board decision. Likewise, it seems illogical to give the department, as a party to the superior court proceedings, a right of appeal to the supreme court (RCW 51.52.140), but to deny it a right of appeal to the superior court from the board of industrial insurance appeals, before which the department is also a party. "But, whether the seeming lack of logic in this situation is the product of inadvertence or intention, the fact remains that the act lacks such a provision. The court cannot read into a statute anything which it may conceive that the legislature has unintentionally left out. [citing cases]" Therefore, we hold that a favorable determination of the review board is not a condition precedent to the city council's approval of the annexation when that annexation is by the petition method. The judgment is affirmed. OTT, C.J., HILL, ROSELLINI, and HALE, JJ., concur. NOTES [] Reported in 394 P. (2d) 686. [] Judge Barnett is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1913726/	981 A.2d 324 (2009) COM. v. VAN FOSSEN. No. 3416 EDA 2008. Superior Court of Pennsylvania. June 15, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874694/	889 So. 2d 124 (2004) Ryan FORREST, Appellant, v. Katherine S. WILSON, Individually and on behalf of Minors, etc., Appellee. No. 1D04-0125. District Court of Appeal of Florida, First District. November 30, 2004. William Mallory Kent, Esq. of The Law Office of William Mallory Kent, Jacksonville, for Appellant. Katherine S. Wilson, pro se, for Appellee. PER CURIAM. Because the trial court's finding that appellant stalked and harassed appellee's minor child by repeatedly engaging in certain acts is not supported by competent, substantial evidence, the permanent injunction against repeat violence is REVERSED. See § 784.048(2), Fla. Stat. (2003) (providing that "[a]ny person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ..."); see also McMath v. Biernacki, 776 So. 2d 1039, 1040 (Fla. 1st DCA 2001) (applying *125 the competent, substantial evidence standard of review in reviewing an injunction against repeat violence). BROWNING, LEWIS and POLSTON, JJ., CONCUR.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619232/	394 P.2d 329 (1964) Thomas R. WALENTA, Plaintiff-Appellant, v. MARK MEANS CO., Inc., a corporation, and Vernon C. Storey, Defendants-Respondents, and Donald E. Hadley, Defendant. No. 9373. Supreme Court of Idaho. July 29, 1964. W. C. MacGregor, Jr., Grangeville, Paul C. Keeton, Lewiston, for appellant. Cox, Ware, Stellmon & O'Connell and Morgan & Morgan, Lewiston, for respondents. SMITH, Justice. Appellant (plaintiff) has appealed from a judgment of dismissal, as against respondents Mark Means Co., Inc., and Vernon C. Storey, entered pursuant to I.R.C.P. 12(b) (6), for alleged failure to state a claim upon which relief can be granted. Appellant, in his specifications of error, contends that the trial court erred in granting the judgment for the reasons: (1) that the allegations contained in his complaint state a claim upon which relief can be granted; and (2) that a jury should determine "whether there was an intervening efficient cause as would prevent the negligence charged against * * * defendants [respondents] Mark Means Co., Inc., and Vernon C. Storey, from being the proximate cause of plaintiff's injuries and damages." 330 In his complaint appellant alleges that about 1:35 p. m. on September 23, 1961, he, accompanied by two other persons, was driving his automobile on U. S. Highway 95 in a southerly direction toward Lewiston, Idaho; that at that time and place a pickup truck, owned by respondent Mark Means Co., Inc., driven by respondent Storey, was also proceeding southerly on such highway; that the pickup was towing a fertilizer spreader, at a distance of about 200 feet ahead of appellant's vehicle; that suddenly and without warning, the spreader broke loose from the pickup truck, spun into the northbound lane of traffic, and collided with an automobile proceeding in a northerly direction, thereby blocking the highway; that appellant immediately applied his brakes in order to prevent colliding with the spreader and with the northbound vehicle which had swerved into the southbound lane of traffic after striking the spreader; that at this sequential time and place, another automobile being driven southerly on said highway by defendant Hadley collided with the rear of appellant's vehicle, forcing it off the west side of the highway into a borrow pit, and then through a wire fence into a plowed field; that thereby appellant suffered personal injuries and damages to his automobile for which he seeks recovery. Appellant alleges that respondent Storey, as the employee of respondent Mark Means Co., Inc., was negligent in driving the pickup at a reckless rate of speed while pulling a heavy fertilizer spreader immediately prior to the accident; in failing to attach the spreader securely to the pickup, including the use of safety chains, so as not to become disconnected while being pulled on the public highway; in failing to inspect the trailer mechanism by which the spreader was attached to the pickup; and in not observing, immediately prior to the accident that the spreader was becoming disconnected from the pickup. Appellant alleges that defendant Hadley was negligent in driving his automobile at a reckless and dangerous rate of speed in excess of 60 miles per hour, and in failing to keep a proper lookout for traffic on the highway, including appellant's automobile; in driving his automobile in such a manner, particularly in following appellant's automobile "too close", which made it impossible for him to stop in time to avoid colliding with the rear of appellant's automobile; and in failing to drive with due care, caution and circumspection. Appellant then alleges that the acts of defendant and respondents were joint and concurrent and the proximate cause of appellant's damages and injuries. The trial court approached the motion to dismiss of respondents Mark Means Co., Inc., and Storey, on the premise, taken from the court's memorandum decision: "The sole question involved is whether or not the negligence of the defendant Storey was the proximate cause of the injury to the plaintiff." The trial court granted the motion to dismiss on the theory that the alleged negligent acts of respondents and defendant were not concurrent, as appellant alleges, but were successive; that defendant Hadley's negligence was the proximate cause, and that of respondent Storey was the remote cause, of the accident; that if an injury is only the indirect or remote result of alleged negligence, then such negligence must have been foreseen or anticipated in the light of the attending circumstances; and that respondent Storey could not have foreseen or anticipated that his negligence would cause defendant Hadley to run into appellant's car under the circumstances alleged. Succinctly stated, the trial judge's theory in granting the motion rested on the ground that the chain of proximate causation, put in motion by Storey's alleged negligence, was broken by an efficient intervening cause, without which the injury would not have occurred, i. e., Hadley's alleged negligence which proximately caused the injury was only remotely contributed to by the alleged negligence of the original tort-feasor 331 Storey, under circumstances not foreseeable. A motion to dismiss a complaint on the ground of failure to state a claim upon which relief can be granted, I.R.C.P. 12(b) (6), admits the truth of the facts alleged, and all intendments and inferences that reasonably may be drawn therefrom, and such will be considered in the light most favorable to the plaintiff. Williams v. Williams, 82 Idaho 451, 354 P.2d 747 (1960); see also Wackerli v. Martindale, 82 Idaho 400, 353 P.2d 782 (1960). It is to be discerned from the alleged circumstances, that the accident required the negligence of both tort-feasors; if Storey had not been negligent in allowing the towed spreader to come loose from the pickup, appellant would not have had to apply the brakes of his automobile to avoid colliding with the spreader; and if appellant had not so applied the brakes, defendant Hadley would not have driven his automobile into the rear of appellant's automobile. Thus, under the allegations of the complaint, the independent tortious acts of both alleged tort-feasors must be regarded as concurrent, even though they were successive in the respect that the negligence of the second tort-feasor allegedly occurred after that of the first tort-feasor, separated by only a moment of time. Pigg v. Brockman, 85 Idaho 492, 501, 381 P.2d 286, 291 (1963), supports the proposition that there may be more than one proximate cause of an injury; the quotation taken from that case touching thereon, is as follows: "It is elemental that there may be two or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating independently of each other; yet if they join and concur in producing the result complained of, the author of each cause may be held liable for the injuries inflicted, * * ." The subject of concurrent negligent acts as efficient proximate causes contributing to the injury is treated in Woodman v. Knight, 85 Idaho 453, 459, 380 P.2d 222, 226 (1963), in language as follows: "`Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes, and recovery may be had against any or all of the responsible persons.' 65 C.J.S. Negligence § 110c, page 683. "` * * where the independent tortious acts of two or more persons supplement one another and concur in contributing to and producing a single indivisible injury, such persons have in legal contemplation been regarded as joint tort-feasors, notwithstanding the absence of concerted action.' 52 Am. Jur., Torts, § 112, page 451." Russell v. City of Idaho Falls, 78 Idaho 466, 479, 305 P.2d 740, 748 (1956), quotes with approval the rule, taken from a jury instruction approved in Valles v. Union Pac. R. Co., 72 Idaho 231, 238, 238 P.2d 1154, 1158 (1951), as follows: "`* * * Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient proximate cause, without which the injury would not have resulted, * * . It is no defense to any one of the several defendants that the injury would not have resulted from his negligence alone, without the concurrent negligence or wrongful act of the other defendants.'" Ordinarily, the jury must determine whether the factual situation presented constitutes an intervening efficient cause relied upon to prevent the negligence charged from being the proximate cause. Mitchell v. Branch, 45 Haw. 128, 363 P.2d 969 (1961); Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A.2d 51 (1940); Dougherty 332 v. Hall, 70 Ohio App. 163, 45 N.E.2d 608 (1942). The question of foreseeability is also regarded as a question of fact for determination by the jury. This rule is well supported by Dewey v. Keller, 86 Idaho 506, 515, 388 P.2d 988, 993 (1964), in language as follows: "* * * It was for the jury to determine whether after the initial negligence * * * there was a totally unanticipated, intervening and superseding cause which in fact became the proximate cause of the accident, and whether the antecedent negligence * * * was therefore not the proximate cause or a contributing proximate cause of the accident. * * * Under the principles as announced by this court, before an intervening superseding cause of an accident can become the sole proximate cause of the injury, and thus relieve the first negligent wrongdoer of liability, such subsequent cause must have been unforeseen, unanticipated and not a probable consequence of the original negligence. * * * The intervention of a third person's negligence or of other and new direct causes of injury does not preclude recovery against the original negligent actor if the injury was the natural or probable result of the original wrong. * * * "* * * The question of foreseeability and natural or probable consequence is a question of fact for the jury to determine. * * *" See also Weaver v. Sibbett, 87 Idaho ___, 393 P.2d 601 (1964); Hackworth v. Davis, 87 Idaho ___, 390 P.2d 422 (1964); Shaffer v. Adams, 85 Idaho 258, 378 P.2d 816 (1963); Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960); Hoffman v. Barker, 79 Idaho 339, 317 P.2d 335 (1957). The determination of what constitutes the proximate cause of an accident is essentially a jury question, unless the proof is so clear that different minds cannot reasonably draw different conclusions or where all reasonable minds would construe the facts and circumstances in only one way. Hoffman v. Barker, supra; Anderson v. Blackfoot Livestock Commission Co., 85 Idaho 64, 375 P.2d 704 (1962); Rosevear v. Rees, 77 Idaho 270, 291 P.2d 856 (1955); Valles v. Union Pac. R. Co., supra; Alsup v. Saratoga Hotel, 71 Idaho 229, 229 P.2d 985 (1951); Hooten v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950); Mason v. Hillsdale Highway Dist., 65 Idaho 833, 154 P.2d 490 (1945). In disposing of the issues raised by this appeal, the following statement from Wackerli v. Martindale, supra, is also pertinent: "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (Emphasis supplied.) 82 Idaho at 405, 353 P.2d at 785. See also Peterson v. Idaho First National Bank, 83 Idaho 578, 367 P.2d 284, 92 A.L.R. 2d 891 (1961); Williams v. Williams, supra. The judgment of dismissal is reversed and the cause remanded. Costs to appellant. KNUDSON, C. J., and McQUADE, McFADDEN and TAYLOR, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601750/	228 P.3d 71 (2010) Lee WILLIAMS, Appellant, v. Larry FAGNANI, Appellee. No. S-13294. Supreme Court of Alaska. March 5, 2010. 72 Hal P. Gazaway, Anchorage, for Appellant. Randall G. Simpson, Greg Dorrington, Jermain Dunnagan & Owens, P.C., Anchorage, for Appellee. Before: CARPENETI, Chief Justice, WINFREE and CHRISTEN, Justices, and MATTHEWS, Senior Justice pro tem.[] OPINION MATTHEWS, Senior Justice pro tem. This case is before us for a second time. In our first decision we held that Lee Williams was entitled to an implied roadway easement over property owned by Larry Fagnani.[1] On remand the superior court ruled that Fagnani was entitled to maintain a locked gate across the roadway, so long as Williams was advised of the combination. Williams's challenge to this ruling is the main issue now before us. We vacate the ruling and remand with instructions that the superior court determine the facts relevant to the inconvenience that the gate will cause Williams and to Fagnani's justification for the gate. When these facts are determined the court should decide whether the gate unreasonably interferes with Williams's use of the roadway easement. Williams also argues that the superior court should have awarded him enhanced attorney's fees and that the amount actually awarded was miscalculated. We conclude that the court did not abuse its discretion in 73 declining to award enhanced fees, but that a minor calculation error was made that should be addressed on remand. I. THE GATE ISSUE On remand the superior court entered an order addressing the particulars of the roadway easement. At the outset the court noted that the scope of the easement was in dispute and had to be determined because it had not been considered during the trial. The court then ruled as follows: All parties seem to agree that the existing road is a 30 foot gravel road. The widening and graveling of the road benefitted all of the users of the road including both the dominant and servient estates. The Court finds that the improvement of the road was a part of the normal development of the dominant estate. Although widened and improved, the road continued to be a private road and was never a public road. Based on these facts, this Court finds that Williams is entitled to an implied easement over the disputed road. The easement is limited to 30 feet in width. The easement shall be maintained in its current nature, i.e. a gravel road. Williams is not entitled to more intensive use than he now has. Both Williams and Fagnani have a joint obligation to contribute jointly to the costs reasonably incurred for repair and maintenance of the road. Because the road is a "private" road Fagnani is entitled to post signs and to maintain a gated entrance with locks with combinations that allows Williams' access but prevents use by the general public to create a right of way. Williams moved for reconsideration of this order. He argued that when he purchased the landlocked property there was no gate on the roadway. He argued further that no justification for a gate existed because Fagnani's house is reached from a different driveway, the property crossed by the roadway is not fenced, and no buildings or personal property of value are accessible from the roadway. Williams also argued that he and his wife are seriously inconvenienced by the gate, noting that they are in their late fifties and Mrs. Williams has a bad knee. He described problems regarding the location of the gate as follows: The approach of the subject road to Hollywood Road is up a steep embankment slope. After their entry onto Hollywood Road, the Williams must cross two lanes before they would be able to stop. There is no pull out and a very limited shoulder on which they may stop. One must exercise great care traveling down Hollywood Road. Frequently people travel the road at speeds of over 50 miles per hour. To open and close the gate, it will be necessary to stop some fifty feet from the gate, walk up the steep slope, open the gate, walk back down the road, drive through the gate, stop on an arterial road and walk back across the road to shut and lock the gate. This creates a significant safety hazard. The gate provides no security for any property owned by Mr. Fagnani. It only serves to inconvenience the Williams.[[2]] Fagnani opposed Williams's motion for reconsideration. He argued that any burden imposed on Williams's use of the roadway by the gate was justified by the need to prevent others, primarily owners of neighboring homesteads, from using the roadway: "the Kutils, Boyd Connolly and even Williams have not yet internalized the distinction that `this [road] is a private place....' A padlocked gate on Fagnani's private road is the only way to convey to the Kutils, Boyd Connolly and the general public this simple fact." (First alteration in original.) (Citation omitted.) In addition, Fagnani minimized the inconvenience that the gate would cause Williams: "With full access to the combination on the lock of the gate, the sole burden he faces is getting out of his vehicle, remembering the combination of the lock, opening the gate and driving through. Williams makes unsupported claims that stopping and opening the gate will expose him to `danger.'" 74 Fagnani also observed that Williams "uses the property primarily as a recreational home and lives in Anchorage full time."[3] The superior court denied Williams's motion for reconsideration in an order that provided: "The easement established is not a general public easement. Testimony at trial established that members of the public did and would use the easement although it is private. A gate as currently established does not impose an unreasonable burden on the Williams' right of passage." In accordance with this ruling, the court entered a final judgment granting Williams a thirty-foot easement across Fagnani's property, requiring Williams and Fagnani to mutually share the cost of maintaining the easement, and allowing Fagnani to maintain a locked gate. On appeal the parties largely repeat the arguments they presented to the superior court. Williams contends that the gate unreasonably restricts his use of the easement while providing no significant benefit to Fagnani.[4] Fagnani argues that the gate is a minor burden on Williams's use and is justified by Fagnani's interest in preventing trespassers from using the easement. The purpose of the implied roadway easement was to provide normal vehicular access to Williams's property.[5] Fagnani, as the owner of the servient estate, is entitled to make any use of the easement that does not unreasonably interfere with this purpose.[6] The Restatement (Third) of Property: Servitudes, section 4.9, provides: "Except as limited by the terms of the servitude ..., the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude." The commentary to section 4.9 of the Restatement makes clear that section 4.9 serves as an aid to determining the intent or expectations of the parties in creating a servitude.[7] The commentary goes on to explain: Actions that make it more difficult to use an easement, that interfere with the ability to maintain and repair improvements built for its enjoyment, or that increase the risks attendant on exercise of rights created by the easement are prohibited ... unless justified by needs of the servient estate. In determining whether the holder of the servient estate has unreasonably interfered with exercise of an easement, the interests of the parties must be balanced to strike a reasonable accommodation that maximizes overall utility to the extent consistent with effectuating the purpose of the easement....[[8]] There are numerous cases from other jurisdictions involving questions of whether a servient easement owner can erect and maintain a closed or locked gate across a roadway easement.[9] A treatise has summarized the general rules that can be derived from the case law concerning gating an easement: 75 Absent an express arrangement for an open way, courts generally permit a landowner to maintain an unlocked gate if such structure is necessary for the enjoyment of the servient estate. For example, use of the burdened land to raise cattle or for other agricultural purposes might be significantly hindered without appropriate gates to prevent passage of animals or trespassers. On the other hand, courts are likely to find that a gate that serves no purpose concerning the use of the burdened land is an unreasonable obstruction of an easement.[[10]] The right of a servient owner to erect locked gates presents an additional issue. Generally, courts hold that a locked gate constitutes an unreasonable interference with the use of the easement, even though the dominant owner is furnished a key. A locked gate, notwithstanding the presentation of a key, curtails the dominant owner's use by restricting deliveries and social visits.... Each situation, however, is governed by its particular set of facts, and courts have permitted locked gates when such gates were necessary for the servient owner to make reasonable use of the servient land.[[11]] As indicated by this summary, courts have recognized that gates, especially locked gates, amount to a significant burden on a rural homeowner's right of access.[12] Every time a homeowner drives from or to his home he must stop, exit his vehicle and open the gate, get back in his vehicle, drive through, stop and exit again to close the gate, and then get back in his vehicle and drive on.[13] In the ice and darkness of an Alaska winter these multiple operations can be especially trying. Further, a gate may bar or deter guests, visitors, delivery and service providers, and emergency vehicles from reaching a home served by a roadway easement.[14] For these reasons, gates must serve a substantial benefit to the servient land if they are to be maintained across a roadway to a home.[15] Typical examples of benefits found sufficient are to prevent livestock from straying, to prevent valuable property from being stolen or vandalized (usually in light of a history of such conduct), or to protect personal safety.[16] Even where reasons of substance justify maintaining a gate, they may be outweighed by the inconvenience suffered by the owner of the dominant estate.[17] In cases 76 where there are reasons of substance on both sides, trial courts must weigh the benefits of a gate to the owner of the servient estate against the detriments to the owner of the dominant estate.[18] And sometimes a weighing process results in allowing gating only during periods when the need is most strongly justified.[19] The record on appeal is insufficient for us to determine whether the superior court struck an appropriate balance in permitting Fagnani to maintain a closed and locked gate across the roadway easement. At oral argument Williams's counsel stated that the house served by the easement is the Williamses' regular residence. Although this was not then contradicted by Fagnani's counsel, an unverified assertion filed by Fagnani in opposition to Williams's motion for reconsideration is contradictory.[20] Likewise, absent from the record on appeal is factual support for the particular burdens said to result from the physical circumstances regarding the location of the gate and the Williamses' infirmities. Williams's assertion that no property of value on the servient estate is protected by the gate is similarly not supported by record citations. Further, the superior court made no findings concerning any of these factual allegations. Accordingly this case must be remanded to the superior court. The court should make findings as to the facts that are relevant to the balance that must be struck to determine whether the gate constitutes an unreasonable interference with Williams's use of the roadway easement. When the court finds the relevant facts it should then determine whether the gate is an unreasonable interference in light of the facts and the principles of law expressed in this opinion. II. ATTORNEY'S FEES ISSUES A. Enhancements Williams argues that the superior court erred by failing to enhance the fees it awarded him under Alaska Rule of Civil Procedure 82(b)(3). Williams requested fifty percent of all his fees ($55,855.00), including the $2,000 he paid to prior counsel. The superior court denied his request, stating that it found "no reason to order enhanced fees." Instead, it awarded him thirty percent of calculated fees under Rule 82, excluding the $2,000 Williams paid prior counsel. The final award totaled $15,333.30. Rule 82(b)(2) states that the prevailing party in a case that goes to trial will receive, at a minimum, thirty percent of "reasonable actual attorney's fees which were necessarily incurred."[21] Rule 82(b)(3) gives the superior court the discretion to vary the fee award based on a consideration of various factors.[22] The court must base its decision to 77 enhance fees on one or more of the factors listed.[23] Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.[24] In this case, the superior court found "no reason to order enhanced fees" under Rule 82(b)(3). Williams argues that the complexity of the litigation in this case warrants fee enhancement because the case involved factual disputes regarding a forty-year-old road and complex legal theories. Williams also argues that (1) the reasonableness of his attorney's hourly rates;[25] (2) the reasonableness of the number of attorneys he used;[26] and (3) his attorney's efforts to minimize fees[27] justify fee enhancement. Williams essentially argues that, because the superior court found Fagnani's attorney's fees to be reasonable, he should receive enhanced fees because he was charged less by his attorney. Williams also argues that "the [un]reasonableness of the claims and defenses pursued" by Fagnani and his "vexatious or bad faith conduct" warranted fee enhancement because Fagnani provided false testimony to the court during trial. His accusations are based primarily on affidavits filed with a post-trial motion that allegedly refute much of Fagnani's trial testimony. Williams finally argues that "the relationship between the amount of work performed and the significance of the matters at stake" warrant fee enhancement because "[t]he potential loss of ingress and egress for Mr. Williams' property would destroy it[ ]s value." In response, Fagnani argues that complexity is a poor reason to justify enhancement in cases where fees are calculated on an hourly basis. Fagnani also argues that the reasonableness of the number of attorneys, hourly rates, and efforts to minimize fees are more properly used to decrease fees in cases where the prevailing party has expended an unreasonable amount of resources on the case. He argues that there was no finding of bad faith by the superior court that would warrant fee enhancement because Williams submitted the affidavits after the trial, when they were not subject to cross-examination. Finally, he argues that the significance of the matter at stake only warrants fee enhancement where the winning party litigates a case with unusual efficiency for important stakes, or the losing party does so inefficiently for insignificant issues. Our review of the record does not show the existence of compelling reasons to overcome the presumption of correctness that is afforded to attorney's fees awards under Rule 82(b).[28] Williams presents no reason why the complexity of this case is such that it was an abuse of discretion not to award enhanced fees. The fact that Williams employed fewer attorneys who charged less per hour and minimized fees does not, by itself, warrant enhancement. Williams has already benefitted from his frugal use of legal resources because his total bill on the remaining seventy percent of fees was reduced. Furthermore, the superior court did not find that Fagnani's behavior was in bad faith or excessively litigious. The superior court is in the best position to determine such questions.[29] Finally, although this court has previously affirmed an award of enhanced fees based purely on the importance of the subject matter and not because of any efficiency in the litigation of the case,[30] whether the loss of value in Williams's land was so important as to justify enhanced fees 78 was a question committed to the discretion of the superior court.[31] None of Williams's arguments persuade us that the superior court's refusal to award enhanced fees was an abuse of discretion. B. Calculations Williams argues that the superior court's deduction of $2,744 from his baseline fees because it was attributable to work on appeal was erroneous.[32] He argues that the superior court did not specify how it calculated the deduction; instead, the court adopted Fagnani's proposed deductions that were unsupported by the billing statements.[33] Fagnani argues that the invoices show that there was work attributable to the appeal. However, he does not show exactly how he arrived at the $2,744.31 amount for fees incurred from December 2007 to May 2008. He identifies some specific charges for work billed in November 2007 and April 2008, but the listed charges do not add up to $2,744.31. Williams argues that the charges listed by Fagnani were for work before the superior court on remand, and not part of work done for the appeal. Our review of the bills for December 2007 to May 2008 shows that support in the record for the deduction of the full $2,744 is doubtful. While Fagnani points out some items in the bill that arguably could be for work done on the appeal, there are several items on these bills that are most likely related to the case on remand. For instance, there are four itemized billings for work at least partially done on a "motion for attorney fees." No such motion was made on appeal. These charges total $1,054.50[34] out of total charges of $3,350.95. Thus, even if we assume that all the other charges from December 2007 to May 2008 were attributable to the appeal, the excludable amount would only be $2,296.45. It was an abuse of discretion to deduct $2,744 from calculated attorney's fees. On remand, the superior court should examine the relevant bills and determine which charges should be properly excluded from attorney's fees incurred in the superior court. III. CONCLUSION For the reasons expressed in this opinion, the judgment of the superior court is vacated insofar as it permits appellee to maintain a closed and locked gate across the roadway easement. On remand the superior court should determine the facts relevant to the question whether the gate is an unreasonable interference with appellant's use of the easement and decide that question in light of the facts and the law. The judgment is also vacated with respect to the award of attorney's fees. On remand, based on the evidence, the superior court should determine the amount of the fees that should be deducted from appellant's baseline fees under Civil Rule 82(b). The court should then revise the award of fees in accordance with this determination. The court is authorized to conduct a supplementary evidentiary hearing as to either issue if the court believes that such a hearing will be necessary or useful. EASTAUGH and FABE, Justices, not participating. NOTES [*] Sitting by assignment under article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a). [1] Williams v. Fagnani, 175 P.3d 38 (Alaska 2008). [2] Williams's allegations concerning the easement, its relationship to Fagnani's property, and the details of the inconvenience it caused the Williamses were presented in an unverified memorandum without record citations. [3] Fagnani's assertion on this point was unverified and not accompanied by record citations. [4] Williams also argues that the superior court erred in defining the scope of use of the easement on the grounds that doing so violated the mandate of this court and violated the law of the case doctrine. Neither contention has merit. Our opinion left open the scope of the implied easement. Williams, 175 P.3d at 42 ("We will therefore not address the scope of the implied easement here."). Although Fagnani filed a petition for rehearing in this court asking that issues as to the scope of the easement be considered, this petition was denied without comment. The denial of a petition for rehearing establishes no law binding on the trial court after remand. Ruggles ex rel. Estate of Mayer v. Grow, 984 P.2d 509, 513 (Alaska 1999). Thus the denial of the petition for rehearing did not establish the law of the case, and the superior court did not violate the law of the case doctrine by addressing the easement's scope. [5] Williams, 175 P.3d at 40-41. [6] Labrenz v. Burnett, 218 P.3d 993, 1002 (Alaska 2009) ("[T]he owner of the servient estate may utilize the easement area in any manner and for any purpose that does not unreasonably interfere with the rights of the easement holder.") (quoting JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS AND LICENSES IN LAND § 8.20, at 8-60 (2009)). [7] RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.9 cmt. a (2000). [8] Id. cmt. c. [9] See cases collected in the Reporter's note to § 4.9 of the Restatement, pp. 588-91. [10] JAMES W. ELY, JR. AND JON W. BRUCE, THE LAW OF EASEMENTS & LICENSES IN LAND § 8:26 (2009). [11] Id. § 8:28. [12] See, e.g., Crawford v. Butler, 924 So. 2d 569, 575 (Miss.App.2005); Van Klompenburg v. Berghold, 126 Cal. App. 4th 345, 23 Cal. Rptr. 3d 799, 801 (2005). [13] See, e.g., Van Klompenburg, 23 Cal.Rptr.3d at 802 (noting difficulty in using gate). [14] See, e.g., id. (noting problems that locked gates can cause dominant owners, guests, and agents). [15] An example in the Restatement illustrates the need for demonstrating a tangible detriment to a servient estate before gates may be maintained across an easement that provides access to a home: After repeated problems with vandalism, O, the owner of Blackacre, installed a locked gate at the entrance to the drive crossing Blackacre that leads from the public highway to Whiteacre. The drive is maintained pursuant to an easement appurtenant to Whiteacre. O furnished A, the owner of Whiteacre, with a key for the gate. Whiteacre is undeveloped property that A uses infrequently for recreational purposes. In the absence of other facts or circumstances, O is entitled to maintain the locked gate because the gate is needed for the security of Blackacre, and the lessened convenience to Whiteacre is not unreasonable. RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.9 illus. 4 (2000). [16] See, e.g., Watson v. Banducci, 158 Or.App. 223, 973 P.2d 395, 401-02 (1999) (gate necessary for livestock); Ericsson v. Braukman, 111 Or. App. 57, 824 P.2d 1174, 1178 (1992) (gate necessary where trespassers stole trees from Christmas tree farm). We have uncovered no case in which the risk of unauthorized use of a roadway easement in a rural area unaccompanied by substantial personal property or personal safety concerns has been held to justify gating a roadway easement that leads to a residence. [17] See, e.g., Strahan v. Bush, 237 Mont. 265, 773 P.2d 718, 721 (1989) (gate to prevent cattle from straying and to prevent vandalism was an unreasonable burden on residents because it presented snow removal and maintenance difficulties, one of the residents could not open the gate without assistance, and a cattle guard could be installed to prevent cattle from straying). [18] See, e.g., Tanaka v. Sheehan, 589 A.2d 391, 396-97 (D.C.Cir.1991). [19] Howes v. Howes, 499 So. 2d 314, 317-18 (La. App.1986) (holding that locked gate between 10 p.m. and 5:30 a.m. was reasonable to prevent trespassers at night; servient owners' daughters-in-law had personal safety concerns since their husbands worked nights); Ericsson v. Braukman, 111 Or.App. 57, 824 P.2d 1174, 1178 (1992) (Servient estate, a Christmas tree farm, was permitted to maintain locked gate from November 1 to December 25 as trees were most apt to be stolen during that period.). [20] See supra page 73-74. [21] Alaska R. Civ. P. 82(b)(2). [22] Alaska R. Civ. P. 82(b)(3). The listed factors are: (A) the complexity of the litigation; (B) the length of trial; (C) the reasonableness of the attorneys' hourly rates and the number of hours expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys' efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount of work performed and the significance of the matters at stake; (I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts; (J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer; and (K) other equitable factors deemed relevant. [23] See Tenala, Ltd. v. Fowler, 993 P.2d 447, 451 (Alaska 1999). [24] McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999). [25] Alaska R. Civ. P. 82(b)(3)(C). [26] Alaska R. Civ. P. 82(b)(3)(D). [27] Alaska R. Civ. P. 82(b)(3)(E). [28] We review a superior court's award of attorney's fees under the abuse of discretion standard and will disturb an award only if it is manifestly unreasonable. Lakloey, Inc. v. Ballek, 211 P.3d 662, 664 (Alaska 2009); Capolicchio v. Levy, 194 P.3d 373, 377 (Alaska 2008). If we were clearly convinced that the presumption that an award under Rule 82(b) is correct had been overcome, these standards would be satisfied. [29] See, e.g., Reid v. Williams, 964 P.2d 453, 461-62 (Alaska 1998); Wickwire v. McFadden, 633 P.2d 278, 281 n. 6 (Alaska 1981). [30] State v. Jacob, 214 P.3d 353, 362 (Alaska 2009) (holding enhanced fees were appropriate in part because "[t]he placement of children and the involvement of grandparents in their grandchildren's lives are not matters to be taken lightly," and thus fees were "reasonable in light of the significance of the case"). [31] We note that this court has never vacated a superior court's decision refusing to enhance fees under Rule 82(b)(3). Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 45 (Alaska 1998); see also Wasser & Winters Co. v. Ritchie Bros. Auctioneers (Am.), Inc., 185 P.3d 73 (Alaska 2008); Gibson v. GEICO Gen. Ins. Co., 153 P.3d 312 (Alaska 2007). [32] At issue here is $823 (.3 × $2,744) in attorney's fees that Williams claims should have been awarded. [33] Williams also argues that the total attorney's fees should have included $2,000 that he paid to another attorney before retaining his current counsel. But Williams did not provide the superior court with a receipt for fees paid his first attorney. Although we will not overturn a fee award solely because it was not based on itemized statements, we have stated that trial courts should base their awards on itemized statements. Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1138 (Alaska 1989). The superior court did not abuse its discretion by failing to include the $2,000 fee when the court was not provided a receipt or statement for the charge. [34] The charges are $74.00 (billed on 2/18), $370.00 (billed on 2/23), $462.50 (billed on 3/14), and $148.00 (billed on 4/10).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249610/	273 F.2d 1 Arthur SPARROW, Plaintiff-Appellant,v.YELLOW CAB CO., Defendant-Appellee. No. 12626. United States Court of Appeals Seventh Circuit. December 23, 1959. Rehearing Denied January 20, 1960. Junie L. Sinson, John W. Damisch, Chicago, Ill., for plaintiff-appellant, Jurco, Zahour & Damisch, Chicago, Ill., of counsel. Julius Jesmer, Gerald M. Chapman, Chicago, Ill., for appellee. Before HASTINGS, Chief Judge, KNOCH, Circuit Judge, and PLATT, District Judge. HASTINGS, Chief Judge. 1 Arthur Sparrow, plaintiff-appellant (plaintiff), brought this diversity action in the district court to recover damages for personal injuries he claims to have suffered arising out of the alleged negligence of Yellow Cab Co., defendant-appellee (defendant), in the operation of its taxicab by its driver Andrews. Following a trial by jury, a verdict was returned for plaintiff in the amount of $71,000. Subsequently, defendant filed its motion for judgment notwithstanding the verdict or in the alternative for a new trial. The trial court vacated and set aside the jury's verdict and entered judgment favorable to defendant. 2 Thereafter, the trial court denied plaintiff's motion to set aside the judgment n. o. v. and for a new trial, and further ordered that defendant's motion for new trial be granted in the event of reversal on appeal. It is from the denial of this motion that plaintiff has appealed. 3 Plaintiff, on appeal, has stated that the two contested issues to be considered are as follows: "I. Whether or not a judgment notwithstanding the verdict can be entered in a civil action where the evidence viewed most favorably toward the successful party below would not have allowed the directing of a verdict against said party prior to the jury's verdict," and "II. Whether or not, irrespective of the overwhelming evidence presented to the jury in behalf of a party who obtained a jury verdict in his favor, the trial court can enter a judgment notwithstanding the verdict against said party due to the party's admission of perjury in a subsequent criminal action resulting from statements made by the party in his original civil action." 4 We shall first consider that part of the record giving rise to the second contested issue relating to plaintiff's admitted perjury. The accident in question occurred on July 20, 1955, resulting from a collision between defendant's cab and plaintiff's parked car in which he was seated at the time. Plaintiff testified that he sustained, inter alia, severe back injuries, and that, prior to the accident, he was in good health and had had no previous trouble with his back. However, plaintiff's former wife, now divorced, testified that on a number of earlier occasions he had severely injured his back and through the years continued to complain about pain in his back. Her testimony was that he injured his back in 1938 and was absent from work for several weeks; that two years later he slipped on ice and reinjured his back and again was forced to be absent from work; that in 1946 he aggravated his back injury while carrying a stove, resulting in his hospitalization in the Jefferson Barracks Hospital in St. Louis, Missouri, and in the Marine Hospital in Kirkwood, Missouri; and that he was given traction treatment for his back in both of these hospitals. In rebuttal, plaintiff denied the truth of this testimony by his former wife. 5 At the conclusion of this conflicting testimony and before giving the case to jury, the trial court stated that "this matter will be referred to the District Attorney for investigation and action." The case was then sent to the jury with the resulting verdict for plaintiff on March 27, 1958. The trial court directed the clerk to defer entering judgment pending determination of any criminal prosecution of plaintiff arising out of possible perjury. 6 In April, 1958, plaintiff was indicted by a federal grand jury under 18 U.S.C. A. § 1621 on four counts of perjury, the pertinent part of the fourth count reading as follows: "That on the aforesaid trial [of the instant case] the defendant herein stated under oath in substance that he had been to the doctor on only two occasions prior to July 20, 1955, and these visits were in connection with his discharge from the Service and as a result of a previous auto accident when he knew said statement was not true." 7 On November 24, 1958, plaintiff entered a plea of guilty to the fourth count of the perjury indictment and was sentenced thereupon to three years probation. The first three counts of the indictment were then dismissed. Plaintiff admits in this appeal that his denial of prior back injuries and resulting hospitalization was perjured testimony. 8 After the jury verdict was returned in favor of plaintiff but prior to his indictment and confession of perjury, defendant, on April 7, 1958, filed its alternative motion for judgment n. o. v. or for a new trial, and on May 2, 1958, pursuant to Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., moved to set aside the verdict, alleging it to be a fraud upon the court. 9 On December 30, 1958, after plaintiff's perjury conviction, the trial court conducted a hearing on defendant's two post-verdict motions and the answers filed thereto and set aside the verdict and entered judgment for defendant. This ruling was based on three grounds set out in the order in substance as follows: (1) the jury was "erroneously permitted to guess and speculate" as to the circumstances and occurrences of the alleged negligence of defendant; (2) in assessing damages, the jury was "influenced by the false and perjurious testimony" of plaintiff; and (3) "reasonable men and women could not possibly reach the result represented by the verdict." 10 On December 31, 1958, plaintiff filed his motion to set aside the foregoing judgment for defendant and for a new trial. On January 6, 1959, in denying this motion and ordering a new trial only in the event of a reversal on appeal, the trial court gave as its four reasons for so ruling: (1) plaintiff committed a fraud on the court; (2) competent medical testimony indicated that plaintiff's injuries were not caused by the alleged negligence of defendant; (3) the amount of the verdict was grossly excessive; and (4) the evidence was so wanting that to permit the verdict to stand would result in a miscarriage of justice. 11 Plaintiff admits that in the light of his subsequent conviction for perjury it would be improper to permit the jury's verdict in his favor to stand. However, he contends that the court erred in entering the judgment n. o. v. and that he should have been granted a new trial. He argues that even without his own testimony there was sufficient evidence in the record to send the case to the jury and further that the perjured testimony related solely to his injuries and the element of damages and not to the question of causal negligence. 12 We revert now to plaintiff's first contested issue relating to the sufficiency of the evidence with reference to the granting of judgment n. o. v. It is well-settled that in reviewing a trial court's ruling on a motion for judgment n. o. v., the standards are the same as those raised by a motion for a directed verdict, Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147; that we must determine whether the evidence would justify submission of the case to the jury, Lambie v. Tibbits, 7 Cir., 1959, 267 F.2d 902, 903; and that in so doing, we have held that the trial court should deny such a motion "where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions." Smith v. J. C. Penney Co., 7 Cir., 1958, 261 F.2d 218, 219. See, Hardware Mutual Casualty Company v. Chapman, 7 Cir., 272 F.2d 614. This requires us to look to the evidence in this case in order to determine this issue. 13 In this connection, defendant aptly points out the requirements of Rule 16 (b) of the Rules of this circuit, 28 U.S. C.A., governing the "Contents of Appendices," in part as follows: 14 "* * * In all appendices, the evidence may be abstracted or reduced to narrative form. If appellant or petitioner raises a question of the sufficiency of the evidence to support a finding, ruling, order, verdict or judgment, he shall include in the appendix all evidence pertinent thereto." (Emphasis added.) 15 We have examined plaintiff-appellant's appendix with reference to the evidence on which he relies for reversal and a new trial. We find it completely wanting in this regard. There is, in effect, virtually no compliance with our Rule 16(b). The transcript of the proceedings in the trial court setting out the testimony of witnesses contains 528 pages. Three witnesses testified concerning the alleged negligence of defendant's driver, viz.: Andrews, the cab driver; Sparrow, the plaintiff; and Melba Beck, a bystander. 16 The appendix devotes four lines to the testimony of Andrews, merely stating that he testified he was the driver of defendant's cab on the day of the accident and that the vehicle in which he was traveling came in contact with plaintiff's car. Ten lines in the appendix relate to plaintiff's actions, showing that plaintiff drove to the scene of the accident, parked his car and while there, "felt something jar me in the back, into my car." Plaintiff saw Beck standing in a doorway approximately two parking meter spaces away. All that the appendix shows as to Beck's testimony (about 18 lines) is that she saw a Yellow Cab "come around the corner with a dash and strike the parked car of the plaintiff," heard an argument between the cab driver and plaintiff, and testified that the cab driver in anger "reversed back and struck him again." The appendix reports her cross-examination in two lines to the effect that the cab was traveling approximately 20 miles an hour at the time of impact. From this reported testimony in the appendix, chiefly conclusions of the briefwriter and surely not a narrative of the collision, we are utterly unable to understand with any reasonable clarity what took place. 17 Certainly the quantitative test is not to be applied in determining the sufficiency of an appendix. Counsel are encouraged to make a reasonable narrative condensation of testimony that will enable a reviewing court to understand the nature and purport of the testimony. The comparisons we have drawn are to supplement our conclusion of the complete inadequacy of the appendix furnished in this appeal. 18 We are not required to resort to the record to find a basis for reversal. Yet, in order to appraise the testimony within the scope of our appellate review, that is what we would have to do here. Plaintiff, an admitted perjurer, seeks a new trial at our hands in order that he may have a second chance to tell the truth. Under such circumstances we feel no compulsion to search the record for him in order to give him this relief. On the evidence as revealed in the appendix to his brief, we cannot say that the trial court erred in granting defendant's motion for judgment n. o. v. on the merits of the case. 19 In most instances, because of the importance of questions raised on appeal, we have overlooked this inadequacy and considered the merits. However, we have pointed out that in such cases there could have been an affirmance of the judgment, Interstate Folding Box Co. v. Empire Box Corporation, 7 Cir., 1934, 68 F.2d 500, or a dismissal of the appeal, Vlissidis v. Anadell, 7 Cir., 1959, 262 F.2d 398, 399; Chicago & Eastern Illinois R. Co. v. Southern Ry. Co., 7 Cir., 1958, 261 F.2d 394, 400. See also, National Labor Relations Bd. v. Knight Morley Corp., 6 Cir., 1957, 251 F.2d 753, 760-761; Esso Standard Oil Company v. Secatore's, Inc., 1 Cir., 1957, 246 F.2d 17, 22-23; and Feener Business Schools, Inc. v. School of Speedwriting, Inc., 1 Cir., 1956, 234 F.2d 1, 3. 20 We hold that, because of the failure of appellant to comply sufficiently with Rule 16(b) of the Rules of this court in the preparation of the appendix to his brief in this appeal, we cannot say that there was sufficient evidence of defendant's negligence, looking at it in the light most favorable to plaintiff, to warrant sending this case to the jury. 21 In view of this holding, we do not reach the second question of whether plaintiff's perjury in the trial, per se, was proper justification for the action taken by the trial court; and we express no opinion thereon. 22 Finding no error, the judgment of the district court is 23 Affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3347186/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO BIFURCATE The defendants, Andre Lerer, M.D. and Neurologic Associates, P.C., have moved to bifurcate the issues of liability and damages in the trial of this case. This is a medical malpractice action brought by the Wozniak family, who were not patients of the defendants, for injuries they sustained when one of the defendants' patients, Joseph Claffey, intentionally drove his vehicle into them, seriously injuring Adam Wozniak, who was an infant at the time. Claffey received treatment during a hospitalization from June 30, 1993 to July 9, 1993 at the New Britain General Hospital for alleged seizure symptoms. Approximately two months CT Page 1447 later on September 25, 1993, Claffey intentionally drove his vehicle into the Wozniak family. Under Connecticut law, the bifurcation of trial proceedings lies solely within the discretion of the trial court. Reichhold Chemicals, Inc. v.Hartford Accident Indemnity Co., 243 Conn. 402, 423 A.2d ___ (1997). InSwenson v. Sawoska, 18 Conn. App. 597, 559 A.2d 1153 (1989), the Appellate Court affirmed the trial court's sua sponte bifurcation of the liability and damages aspects of the trial. That case involved personal injuries resulting from a motor vehicle accident in which the plaintiff was driving her vehicle in a snow storm when the vehicle slid on ice and came to rest in the middle of the roadway near the crest of a hill. The defendant claimed that he was unable to stop his vehicle in time to avoid hitting the plaintiff. In O'Shea v. Mignone, 50 Conn. App. 577, 719 A.2d 1176 (1998), the plaintiff requested that the trial be bifurcated as to liability and damages in an effort to avoid unnecessary costs associated with the plaintiff's treating physician and expert witness. The plaintiff argued that because liability was a "hotly" contested issue and the expense of the key witness related to damages was great, it would be in the plaintiff's economic interest for the case to be bifurcated as to liability and damages. The trial court granted the motion to bifurcate and the jury ultimately found in favor of the plaintiff and awarded him a substantial amount of damages. In affirming the trial court's decision to bifurcate the issues of liability and damages the Court stated: "The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency. Vichare v. Ambac, Inc., 106 F.3d 457, 466 (2d Cir. 1996). Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue. See Morse/Diesel, Inc. v. Fidelity Deposit Co. of Maryland, 763 F. Sup. 28, 35 (S.D.N.Y.), modified in part on other grounds, 768 F. Sup. 115 (S.D.N.Y. 1991)." Reichhold Chemicals, Inc. v. Hartford Accident Indemnity Co., 243 Conn. 401, 423-24, 703 A.2d 1132 (1997). 50 Conn. App. at 582-583. In this case in order to reach the issue of damages, the plaintiffs will first have to establish that the defendants violated a duty which has never been recognized by any Connecticut Appellate Court. In Fraserv. United States, 236 Conn. 625, 674 A.2d 811 (1996) the Court considered CT Page 1448 whether psychotherapists were liable for the death of the plaintiff's decedent after their patient fatally stabbed the decedent. The Court held that the defendants owed no duty to the decedent, the patient's friend and former employer, because the decedent was not an identifiable victim, a member of a class of identifiable victims or within the zone of risk to an identifiable victim. The defendants have argued that the Wozniak family, people who did not know Claffey, were not identifiable victims under Fraser. According to the defendants the Wozniaks were within the class of all pedestrians in New Britain, a class so large that it could not conceivably be deemed "identifiable." Based on the foregoing, this is clearly a case in which the jury's decision on the issue of liability may obviate the need to proceed with the trial on the issue of damages. See Reichhold Chemicals, Inc, supra. The evidence concerning damages suffered by Adam Wozniak is likely to be substantial. Adam, who is now six years old, has not advanced from the three-month-old abilities he had at the time of the accident. According to his mother, he cannot swallow, eat, toilet, or walk independently. He cannot sit, stand, or speak at all. He sleeps in the same bed as his parents because he needs to be turned frequently. His vision is severely impaired and his prognosis is poor. The plaintiffs have identified only three expert witnesses who will testify on the issue of liability. They have identified twelve other expert witnesses on the issue of damages. The evidence relevant to the issues of liability and damages in this case is wholly unrelated. Therefore, the plaintiffs will not be prejudiced by the bifurcation. However, there is certainly a danger that in the absence of bifurcation the severity of Adam Wozniak's injuries could have a prejudicial impact upon the jury's liability determination. Bifurcation of the issues of liability and damages in this case will conserve judicial time and resources and the time and resources of the parties. Moreover, in the absence of bifurcation the defendants could suffer substantial prejudice, while bifurcation will cause little prejudice to the plaintiffs. For the foregoing reasons the Motion to Bifurcate is granted. By the court Aurigemma, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2611729/	181 Kan. 301 (1957) 310 P.2d 923 GAIL ALLEN, Appellee, v. HARRY N. BROWN and BERNARD BROWN, d/b/a HARRY BROWN MOTORS, Appellants. No. 40,489 Supreme Court of Kansas. Opinion filed May 11, 1957. Albert M. Ross, of Kansas City, argued the cause; Joseph Cohen, Charles S. Schnider, John E. Shamberg, Thomas E. Joyce, and Joseph P. Jenkins, all of Kansas City, were with him on the briefs for appellants. J.W. Mahoney, of Kansas City, argued the cause; David W. Carson and John K. Dear, both of Kansas City, were with him on the briefs for appellee. The opinion of the court was delivered by SCHROEDER, J.: This is an appeal from an order of the lower court overruling a demurrer to the petition of the plaintiff. Throughout this opinion the appellee, Gail Allen, will be referred to as the plaintiff, and Harry N. Brown and Bernard Brown, doing business as Harry Brown Motors, appellants, will be referred to as the defendants. The plaintiff purchased a new Plymouth automobile from the defendants who were automobile dealers, and after having some difficulty with the automobile brought an action against the dealers and the manufacturer upon an express warranty given in connection with the sale of the automobile. The appeal before this court does not involve the manufacturer, Chrysler Corporation, and therefore, no reference will be made to the manufacturer with respect to liability pursuant to the warranty. 303 The pertinent portions of the second amended petition filed by the plaintiff allege: "That the defendants, Harry N. Brown and Bernard Brown, are an authorized Plymouth dealer, doing business as Harry Brown Motors at 1701 Minnesota Avenue, Kansas City, Kansas. That on January 25, 1955, said defendants warranted to said plaintiff that Plymouth car No. 22190488 was in good order and, relying on said warranty, plaintiff purchased said Plymouth automobile and paid to the defendant, Harry Brown Motors, the sum of $2,476.00, a copy of which warranty is attached and made a part hereof. "That said Plymouth automobile was not in good order in that said automobile vibrated and shook violently and noisily at all times when driven, causing so much noise that it was impossible to carry on a conversation within said automobile, impossible to listen to the radio installed in said automobile because of said noise and vibration, to the damage of this plaintiff in the sum of $2,476.00. That plaintiff has been further damaged in that he has been deprived of the use of said automobile in taking it into the defendant, Harry Brown Motors, for service and has been without the use of a car due to the time the defendant, Harry Brown Motors, had said car attempting to repair it, to plaintiff's damage in the amount of $500.00. That further plaintiff has been inconvenienced and lost his time, all in and to his damage in the amount of $500.00." The document containing the warranty attached to the petition reads as follows: "PLYMOUTH OWNER SERVICE CERTIFICATE No. ____ Issued To Gail S. Allen Owner's Name 104 S. 16th Address Kansas City, Kansas City State FOR Plymouth car 22190488 Vehicle Number 1-25-55 Delivery Date Issued By Dealer Harry Brown Mtrs. City Kansas City State Kansas KEEP THIS CERTIFICATE IN YOUR CAR AT ALL TIMES FOR IDENTIFICATION AUTOMOBILE MANUFACTURES ASSOCIATION UNIFORM WARRANTY 304 "`The Manufacturer warrants each new motor vehicle manufactured by it to be free from defects in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof, including all equipment or trade accessories (except tires) supplied by the Motor Vehicle Manufacturer, which shall, within ninety (90) days after making delivery of such vehicle to the original purchaser or before such vehicle has been driven four thousand (4,000) miles, whichever event shall first occur, be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties expressed or implied and of all other obligations or liabilities on its part, and it neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of its vehicles. "`This warranty shall not apply to any vehicle which shall have been repaired or altered outside of an authorized Plymouth service station in any way so as, in the judgment of the Manufacturer to affect its stability or reliability, nor which has been subject to misuse, negligence or accident.' "Dealer extends the foregoing warranty to the Purchaser on the Plymouth car sold to Purchaser hereunder in the same manner as if the word `Dealer' were substituted for the word `Manufacturer' therein; it being understood that Dealer's obligation under this warranty is limited to making good at its place of business the defective part or parts referred to, within the warranty period, without charge for replacement labor. This warranty by Dealer is expressly in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on the part of Dealer, and the Dealer neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of its vehicles." Included in the written document attached to the second amended petition as a part thereof, and incorporated by reference, is the "Plymouth Owner Service Certificate." The portions material to our discussion herein are as follows: "1. NEW CAR CONDITIONING: "For your maximum enjoyment and satisfaction, we carefully inspected and conditioned your new Plymouth in accordance with standard procedures before delivery. .............. "4. EXPLANATION OF WARRANTY: "The Warranty Period is defined as the first 90 days you own your vehicle, or the first 4,000 miles you drive it, whichever event occurs first. (See Warranty on the back of this Certificate.) "During this period we will not charge for Plymouth replacement parts required because of defective material, or workmanship, or for labor required to install these parts. This Warranty applies to all original parts of the vehicle except tires. This Warranty will not apply: 305 "1. If parts and/or labor are required due to accident, abuse, or negligence; "2. If you have your car repaired by other than an authorized Plymouth dealer during the Warranty Period; "3. If any parts are used that are not made by, sold by, or approved by Chrysler Corporation, Plymouth Division." The demurrer challenges the petition on the ground that it does not contain facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant automobile dealers. It is unnecessary to unduly burden this opinion with a discussion concerning the liability of the defendant automobile dealers on an implied warranty. In the first place, the written warranty is expressly given in lieu of all other warranties, expressed or implied. This provision is binding on the purchaser. A mere dealer in machinery or equipment of standard make is not bound by any implied warranty and that is particularly true where, as here, the written terms of the contract of purchase expressly excluded any and all implied warranties. (Harmon v. Coonrod, 148 Kan. 146, 79 P.2d 831; Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179; Richardson v. G.W. Mfg. Co., 3 Kan. App. 445, 43 Pac. 809; Machinery Co. v. Schierkolk, 95 Kan. 737, 149 Pac. 680; Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982; and Parker v. Hutchinson Motor Car Co., 127 Kan. 765, 274 Pac. 1115.) Furthermore, plaintiff did not plead an implied warranty upon which a cause of action could be lodged against the defendants. Reference is made to the foregoing authorities cited and to the case of Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P.2d 964, and the authorities cited therein, for a full discussion of the Kansas law relative to Sales and Warranties. The only question before this court, therefore, is whether the petition states a cause of action against the defendants based upon the express written warranty. The defendants contend that the second amended petition of the plaintiff must be strictly construed. We do not so regard the petition. The defendants first attacked the petition of the plaintiff by a motion to make definite and certain. The lower court sustained this motion in all its meritorious respects. It did not require the plaintiff to plead that the automobile purchased was a new automobile, and did not require the plaintiff to itemize the damages which plaintiff claims to have amounted to $2,476.00. In other respects the 306 plaintiff complied with the order and the petition was again attacked by a motion to strike, which the lower court sustained. It was argued as a motion to make more definite and certain by agreement of the parties, and the plaintiff complied with the order of the court. The rules concerning the construction of a petition attacked by a demurrer are well stated in the recent case of Vitt v. McDowell Motors, Inc., 180 Kan. 800, 308 P.2d 115, as follows: "G.S. 1949, 60-704, provides that a petition must contain a statement of the facts constituting the cause of action in ordinary and concise language, without repetition, and a demand of the relief to which the plaintiff supposes himself entitled. In other words, the function of a petition is to advise defendant precisely what plaintiff claims against him. In the determination whether a petition is sufficient in this respect, we are to be guided by G.S. 1949, 60-736, which provides that in the construction of any pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties. If the allegations of a petition, liberally construed, fail to meet the test of 60-704, the function of a motion to make more definite and certain is to require plaintiff to supply the defect. In the event such motion is successfully resisted by plaintiff, then the petition, if later attacked by demurrer, is to be construed strictly against plaintiff. If the motion is sustained and plaintiff complies, the petition is to be liberally construed. On the other hand, if a petition is sufficient to comply with 60-704, a motion to make it more definite and certain lacks merit, and the rule of strict construction does not apply following the overruling of such motion. The sum and substance, then, of what has been said, is that it is only when a meritorious motion to make a petition more definite and certain is overruled that the rule of strict construction applies when the petition is subsequently attacked by demurrer. (Cale v. Johnson, 177 Kan. 576, 578, 579, 280 P.2d 588.)" See, also, Byerley v. Braucher, 180 Kan. 816, 308 P.2d 144; Snyder v. Haas, 175 Kan. 846, 267 P.2d 467; Hatcher's Kansas Digest [Rev. Ed.], Pleading, §§ 33 to 35; and West's Kansas Digest, Pleading, § 34 (4). In the instant case the meritorious portions of defendants' motions were sustained by the lower court and the plaintiff complied with the orders by twice amending his petition. The petition, therefore, is entitled to a liberal construction in favor of the plaintiff. It was unnecessary to require that the plaintiff make his original petition more definite and certain by stating whether the automobile purchased was new, since a fair construction of the petition including the document incorporated by reference in complying with the court's order warrants a construction that plaintiff's cause of action 307 is upon the breach of a written warranty involving the sale of a new Plymouth automobile. The attack upon the allegation of damages will be discussed later. As is often the case in the purchase of a new automobile, the purchaser on discovering mechanical conditions which do not seem to be normal in the operation of the motor vehicle, will return the automobile to the dealer from whom the purchase was made. The particular defect is usually unknown to the purchaser and it is upon the dealer that he relies for discovery of the defect causing the unusual mechanical functioning of the vehicle. In ordinary and concise language the plaintiff stated facts which describe a new automobile commonly referred to in the automobile industry as a "vibrator". This is neither unusual nor uncommon to the industry. The general cause of the vibrations is known. Some part or parts have been either defectively manufactured or improperly assembled in the construction and manufacture of the automobile. In the operation of an automobile, when these defective parts are rotating rapidly, they are spinning either eccentrically (off center) or concentrically out of balance (improper weight distribution). Both give rise to vibrations. The difficulty lies in locating the precise spot and cause. It may be a defect in the manufacture of the part or parts and it may be a defect in workmanship in the assembly of the automobile. Both are specified and covered by the written warranty. The purchaser of a new automobile does not know the precise cause, and the dealer with his mechanics may, after calling in the factory experts and representatives, take many months to locate the defect. Under an express warranty as alleged in the petition, it would place a tremendous burden upon the purchaser of a new motor vehicle to find the precise part or parts of the vehicle which were defective and direct the dealer to replace them or remedy the defect. If the operation of such vehicle is mechanically defective and the automobile is returned to the dealer for the purpose of correcting these defects, it is incumbent upon the dealer to find such defective part or parts and replace them pursuant to the terms of the warranty or to locate the assembly that has been improperly assembled and remedy the defect. This situation was recognized in a Louisiana case on a "new car guarantee" similar to the warranty in the case at bar, Cobb v. Truett, La. App., 11 So.2d 120, where the court said: 308 "We experience little difficulty in concluding that the car sold to plaintiff was not in good running order, not serviceable at the time it was purchased, and had such vices and defects as to prevent the normal, safe and comfortable use contemplated by the parties. .............. "... It is shown that defendant had every facility for ascertaining the trouble and providing a proper remedy. The car was left in defendant's garage and repair shop six or seven times and, on three of these occasions, remained there two full days, thus affording defendant the opportunity of making proper inspection and repairs, as it had expressly warranted to do ..." A similar new car warranty was the subject of litigation between a dealer and the purchaser in Peterson Co. v. Parrott, 129 Me. 381, 152 A. 313, where the court held that paint on an automobile not in good condition and not properly applied constituted "defective workmanship or material" within the warranty and the question of damages by reason thereof should have been submitted to a jury. Where, as in this case, the express warranty contemplates that the seller's liability for a breach of warranty does not attach until he has had an opportunity to remedy the defects, his failure or refusal to act, where such opportunity is afforded the seller, fixes his liability. Under these circumstances the following is quoted from 77 C.J.S., Sales, § 340, p. 1235: "... An unsuccessful effort to remedy the defects renders the seller liable on his warranty; and the buyer is not bound to allow him a second opportunity, or to permit him to tinker with the article indefinitely in the hope that it may ultimately be made to comply with the warranty. On the other hand, an offer on the part of the seller to remedy defects not accepted by the buyer releases the seller from liability on the warranty, provided the offer or effort to repair is made within what is, under the circumstances of the particular case, a reasonable time. Where no time is fixed by the contract within which defects should be remedied, they must be remedied within a reasonable time, or an agent of the seller may agree with the purchaser as to the time which shall be given for such purpose...." While the plaintiff did not allege in so many words that he returned the automobile to the dealers within 90 days or before he had driven 4,000 miles, whichever occurred first, he did allege that it was returned to the dealers for service and attempted repair. The defendants raise no question on this point and no motions were directed against these allegations. Under liberal construction the petition on this point is sufficient to withstand a demurrer. The defendants are advised by the petition what the plaintiff claims against them and may plead their defense. Of necessity, the plaintiff's *309 evidence at the trial must establish compliance with the terms of the warranty. To what extent the plaintiff has been damaged is primarily a question for the jury to determine. The burden of proving damages rests upon the plaintiff. The petition alleged damages to the full extent of the purchase price of the automobile. The plaintiff has further alleged consequential damages resulting from the loss of use of the automobile, inconvenience to himself and time lost. As to the items of damage a petitioner need not plead his evidence. The law concerning damages where there has been a breach of a warranty in a contract of sale is stated in McNaghten Loan Co. v. Sandifer, 137 Kan. 353, 20 p.2d 523: "Damages are defined, without any of the many qualifying features thereof, as a just compensation or reparation for a loss or injury sustained. (17 C.J. 716.) ... If, as stated above, the breach in such cases is to be regarded as a breach of warranty in the sale of chattels, the measure of damages as stated in 55 C.J. 866 is "`Where there has been a breach of a warranty in a contract of sale, the buyer can be compensated in damages.... The buyer is entitled to recover the actual damages he has sustained, both general and special, which are the natural and direct or proximate result of the breach, and which may reasonably be regarded as within the contemplation of the parties at the time of the sale as the probable consequence of a breach.'" (p. 358.) The measure of damages for breach of warranty is the loss directly and naturally resulting from the breach of warranty. In the absence of special circumstances showing proximate damage of a greater amount, this is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty. It is thus clear that consequential damages, if properly pleaded and proved, may be recovered by reason of breach of warranty. It follows that the plaintiff has stated a good cause of action against the defendants for breach of an express warranty, and the order of the lower court overruling the demurrer should be and hereby is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875099/	288 Wis. 2d 459 (2005) 706 N.W.2d 702 2005 WI App 254 STRATFORD STATE BANK v. GREEN GLASS USA, LLC.[] No. 2004AP001530. Court of Appeals of Wisconsin. October 4, 2005. Unpublished Opinion. Affirmed. NOTES [] Petition to review filed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615088/	668 P.2d 268 (1983) Chris BEATTIE, a single man, Appellant, v. William H. THOMAS, M.D., James D. Pitts, M.D., licensed health care providers; Medasonics, Inc., Respondents. No. 14006. Supreme Court of Nevada. August 31, 1983. Rehearing Denied October 18, 1983. 270 Durney, Guinan & Brennan, Reno, for appellant. Gary G. Bullis, Ltd., Reno, for respondents Thomas and Pitts. Leggett & Hamilton, Reno, for respondent MedaSonics, Inc. OPINION MOWBRAY, Justice: In this medical malpractice and products liability suit, Beattie appeals from an order of the district court denying him a new trial and awarding respondents Thomas and Pitts $29,700 in attorney's fees. While we disagree with appellant's assertions regarding error during trial, we hold that, by awarding Drs. Thomas and Pitts all of their requested attorney's fees pursuant to NRCP 68 without analyzing on the record the factors relevant to such a decision, the district court abused its discretion. The court also erred in requiring appellant to pay the cost of including certain portions of the trial transcript in the record on appeal. We therefore affirm in part and reverse and remand in part for a redetermination on the record of the amount of attorney's fees to be awarded, the redetermination to accord with the factors set forth in this opinion. THE FACTS On May 18, 1978, appellant Beattie was seriously injured in a motorcycle accident. He was admitted to Carson-Tahoe Hospital with a dislocated right knee, considerable tissue damage in and around the knee, and a transected popliteal artery. The popliteal artery is the principal artery to the lower leg. Within a reasonably short time after Beattie was admitted, respondents Dr. Thomas and Dr. Pitts successfully completed an anastomosis of the popliteal artery, sewing the ends of the artery back together and restoring blood flow to the lower leg. Dr. Thomas also made an incision, known as a fasciotomy, in one of the muscle compartments of the leg, to relieve pressure on the leg's arteries caused by internal swelling. An orthopedic surgeon then repaired the major structural damage to the knee. An instrument known as a hand-held Doppler, manufactured by respondent MedaSonics, was used both during the operation and frequently during the post-operative period to check for pulses indicating restored blood flow. The Doppler is a noninvasive electronic diagnostic instrument used, among other things, to detect the presence and velocity of blood flow when for one reason or another a pulse cannot be detected manually. The instrument is very sensitive, and can pick up pulses when the blood pressure is very low. Without the use of a blood pressure cuff to take pressure readings, the Doppler cannot indicate the volume of circulation, but only the presence of some circulation. The doctors at Carson-Tahoe Hospital did not use the Doppler in conjunction with a pressure cuff in Beattie's case. For the first few days following the surgery, Beattie appeared to be recuperating favorably. Then, on or around May 22, the condition of his leg began to deteriorate. Dr. Thomas suspected that blood clots in the veins of the leg were interfering with circulation, and began heparin therapy to reduce clotting. Beattie's condition seemed 271 to improve temporarily, but again worsened following Dr. Thomas' departure on the 26th. Dr. Pitts eventually performed a second fasciotomy on the 28th in an attempt to restore circulation to Beattie's deteriorating leg. On May 29th, Beattie was transferred at his parent's request to Stanford University Hospital. After further fasciotomies and debridement of dead tissue, Beattie's leg was amputated below the knee on June 7th. Beattie filed suit against respondents on April 25, 1980, alleging that Drs. Thomas and Pitts were negligent in their care and treatment of him. He also alleged that the Doppler blood flow monitor manufactured by MedaSonics, Inc. was defective in that MedaSonics failed to provide adequate instructions or warnings concerning the use and limitations of the Doppler. Ultimately, the jury found against Beattie and for all respondents. The district court denied Beattie's motion for a new trial, and awarded $29,700 in attorney's fees to respondents Thomas and Pitts under NRCP 68. At the request of Drs. Thomas and Pitts, the district court also required Beattie to pay for inclusion of the opening statements and final arguments of counsel in the record on appeal. This appeal followed. APPELLANT'S PROPOSED INFORMED CONSENT INSTRUCTION Appellant contends that the district court erred in refusing to give a proposed jury instruction on informed consent. He argues that the instruction was justified by evidence that Drs. Thomas and Pitts did not discuss with him or his parents the possibility of early amputation to save more of his leg. A party is entitled to have the jury instructed on all of his theories of the case that are supported by the evidence. See American Cas. Co. v. Propane Sales & Serv., 89 Nev. 398, 400, 513 P.2d 1226, 1227 (1973); Rocky Mtn. Produce v. Johnson, 78 Nev. 44, 52, 369 P.2d 198, 202 (1962). In addition to being supported by evidence, the requested instruction must be consistent with existing law. Federal Ins. Co. v. Public Service Co., 194 Colo. 107, 570 P.2d 239, 242 (1977). If the other instructions given to the jury adequately cover the subject of the requested instruction, or if there is no proof in the record to support the instruction, the trial court should not give it. Village Development Co. v. Filice, 90 Nev. 305, 312, 526 P.2d 83, 87-88 (1974). See Watters v. Querry, 626 P.2d 455, 458 (Utah 1981). Appellant's proposed instruction varies from the traditional and perhaps still majority view of informed consent. Under the traditional view, the physician's duty to disclose is measured by a professional medical standard, which the plaintiff must establish with expert testimony. The standard is either the customary disclosure practice of physicians in the relevant "community," or what a reasonable physician would disclose under the circumstances. Annot., 88 A.L.R. 3d 1008, 1011-12 (1978). See Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1107 (1963). Insofar as we have considered standards of care for the medical profession, our holdings have been consistent with the traditional view. See, e.g., Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193-94 (1979). In addition, the Nevada Legislature has seen fit to enact a general rule requiring plaintiffs to demonstrate the alleged negligence of a physician with expert testimony. See NRS 41A.100(1).[1] Appellant does not explain why this statutory rule does not apply. Moreover, he fails to direct us to sufficient expert testimony in the record to support an informed consent instruction under the rule. For these reasons, the district court 272 did not err in refusing appellant's informed consent instruction. THE PROPOSED "INCREASED RISK OF HARM" INSTRUCTION Beattie attempted to show at trial that MedaSonics, Inc. had not adequately communicated to the users of the Doppler the inability of the machine, when used without a pressure cuff, to determine whether blood flow is adequate to sustain tissue life. The requested instruction on the concept of increased risk of harm was an attempt by Beattie to lighten his burden of showing that MedaSonic's breach, if any, of its duty to warn was a proximate cause of the eventual high amputation of Beattie's leg. The requested instruction closely follows the language of Section 323 of the Restatement (Second) of Torts.[2] This section by its terms relates only to the rendering of services, and the comment on the section makes the focus on services clear. Appellant cites no authority indicating that Section 323 applies to products as well. MedaSonics did not render any services in Beattie's case. In addition, most of the cases cited by appellant are concerned with the trial court's improper taking of the question of proximate cause from the jury. The district court left the question of proximate cause to the jury in the instant case, and gave several instructions that, taken together, correctly outlined the applicable law. Where the instructions given adequately cover the applicable law, it is not error to refuse further instructions on the same subject. Crown Controls Corp. v. Corella, 98 Nev. 35, 639 P.2d 555 (1982). See Village Development Co. v. Filice, 90 Nev. at 314, 526 P.2d at 88. Therefore, the district court did not err in refusing appellant's proposed instruction on increased risk of harm. THE EVIDENCE THAT MEDASONICS HAD NOT BEEN PREVIOUSLY SUED At one point during the three-week trial, over appellant's objection, the court admitted into evidence testimony on behalf of MedaSonics that it had never before been sued regarding the Doppler. This was error. In strict tort liability cases, evidence of prior or subsequent mishaps similar to the one in issue, involving the same product, are admissible to show faulty design or manufacture or other elements of the strict liability cause of action. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415-16, 470 P.2d 135, 139-40 (1970). See Reiger v. Toboy Enterprises, 45 Or. App. 679, 609 P.2d 402 (1980); Stoltz v. McKowen, 14 Wash. App. 808, 545 P.2d 584 (1976). However, there is a distinct difference between showing the accident/injury history of a product and the legal history of a product. Many factors influence the filing of a lawsuit, among them the amenability of defendant's insurer to prompt out-of-court settlements. Even if the absence of prior lawsuits concerning a particular product remotely tends to indicate that no substantial defect exists, the prejudicial value and confusing nature of such evidence would seem to outweigh considerably its probative value. Respondent cites no cases holding that the prior legal history of a product is admissible. However, in its order denying appellant's motion for a new trial, the district court specifically held that even if the evidence of the absence of prior suits against MedaSonics was irrelevant and inadmissible, the admission of the evidence did not affect the substantial rights of the parties. Given the massive amount of evidence introduced both for and against MedaSonics, the court did not palpably abuse its discretion in so holding. As we have stated in the past, 273 Even if error had been present ..., the appellant has not revealed any particular prejudice other than an adverse verdict. It has failed to show that the errors complained of would have so substantially affected its rights that it could be reasonably assumed that if it were not for the alleged errors, a different result might reasonably have been expected. El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484 P.2d 1089, 1091 (1971). See Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 666-67, 448 P.2d 46, 49-50 (1968), cert. denied, 395 U.S. 910, 89 S. Ct. 1753, 23 L. Ed. 2d 223 (1969). THE TESTIMONY OF APPELLANT'S FATHER REGARDING THE TREATMENT OF HIS SON Near the end of the trial, over objection, the district court allowed the following question to and answer from appellant's father: Q: You're not critical of Dr. Pitts or Dr. Thomas' treatment of your boy, are you? A: No, sir. Appellant characterizes his father's testimony as a lay opinion on the issue of the negligence of Drs. Thomas and Pitts, noting that a lay witness may not express an opinion "as to matters which are beyond the realm of common experience and which require the skill and knowledge of an expert witness." Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir.1979). Under NRS 50.265, a lay opinion is admissible only when the opinion is both "rationally based on the perception of the witness" and "helpful to a clear understanding of his testimony or the determination of a fact in issue." As respondents point out, Mr. Beattie's testimony could just as easily be characterized as an expression of his personal feelings about his son's treatment. Moreover, the district court cured any possible prejudice by instructing the jury to consider only expert testimony when determining the standard of professional learning, skill, and care required of the doctors. Given this curative instruction, and in the context of a three-week trial amassing twenty volumes of record, the district court did not abuse its discretion by refusing to grant a new trial on the basis of two words of testimony. ATTORNEY'S FEES UNDER NRCP 68 Prior to trial in the instant case, Drs. Thomas and Pitts each tendered a $15,000 offer of judgment to Beattie under NRCP 68.[3] Beattie elected to proceed to trial against both Thomas and Pitts, although he accepted a $15,000 settlement offer from the orthopedic surgeon. The jury returned a verdict in favor of Drs. Thomas and Pitts. On proper motion, the district court held that their settlement offers had been reasonable and in good faith, and awarded them their costs in the amount of $7,415 and attorney's fees in the amount of $29,700. Appellant first contends that insofar as NRCP 68 permits an award of attorney's fees, it is an invalid court rule, because it is inconsistent with NRS 17.115 and NRS 18.010. The latter statute authorizes the court to award attorney's fees to a prevailing defendant, but only when the plaintiff has not sought more than $10,000. See Ecklund v. State, 95 Nev. 430, 596 P.2d 218 (1979). NRS 17.115 expressly governs judgment offers, but varies from NRCP 68 in that it allows recovery of only costs and expert witness fees, and not attorney's fees, by an offeror whose opponent fails to obtain a judgment more favorable than the offer. 274 NRS 17.115(4). Appellant does not cite any authority holding that these statutes are exclusive, and our comments in Armstrong v. Riggi, 92 Nev. 280, 549 P.2d 753 (1976), indicate just the opposite.[4] Appellant argues secondly that NRCP 68 does not apply where the jury gave its verdict for the defendant. He relies on Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 286 (1981), in which the High Court, in a 5-4 decision, held that the phrase "judgment finally obtained by the offense" as used in Federal Rule of Civil Procedure 68 does not encompass a judgment against the offeree as well as a judgment in favor of the offeree. We decline to follow the Delta Air Lines reasoning, not only because of the differences between NRCP 68 and FRCP 68,[5] but because such reasoning leads to an anomalous result. Under the rule proposed by appellant and followed by the majority in Delta Air Lines, an offeree would be penalized for recovering a judgment less favorable than the offer, but would suffer no penalty if he did not recover any judgment whatsoever. As the Alaska Supreme Court held in Wright v. Vickaryous, 611 P.2d 20, 23 (Alaska 1980), "[w]e see nothing to recommend such a result, and thus reject the interpretation offered by [appellant]." On the other hand, while the purpose of NRCP 68 is to encourage settlement, it is not to force plaintiffs unfairly to forego legitimate claims. In exercising its discretion regarding the allowance of fees and costs under NRCP 68, see Armstrong v. Riggi, supra, the trial court must carefully evaluate the following factors: (1) whether the plaintiff's claim was brought in good faith; (2) whether the defendants' offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether the plaintiff's decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the offeror are reasonable and justified in amount. After weighing the foregoing factors, the district judge may, where warranted, award up to the full amount of fees requested. On the other hand, where the court has failed to consider these factors, and has made no findings based on evidence that the attorney's fees sought are reasonable and justified, it is an abuse of discretion for the court to award the full amount of fees requested. In the instant case, the district court found only that the settlement offers of Drs. Thomas and Pitts had been reasonable and in good faith. The district court took no evidence and made no findings on the other factors mentioned above. We therefore reverse the district court's award of $29,700 in attorney's fees to respondents Thomas and Pitts, and remand for a redetermination on the record of the amount of attorney's fees to be awarded in light of the factors enumerated in this opinion. THE COST OF SUPPLEMENTING THE RECORD ON APPEAL Respondents Thomas and Pitts obtained a court order requiring appellant to include in the record on appeal the opening and closing statements of counsel. No issue on appeal concerned the propriety of such statements, and of course they cannot constitute evidence. NRAP 10 does not invest the party who prevailed in the lower court with the unqualified right to require the appellant to file a full trial transcript. Appellant and his counsel are under a duty 275 to omit from the record on appeal all material that is not essential to decision of the questions on appeal. See Driscoll v. Erreguible, 87 Nev. 97, 102, 482 P.2d 291, 294 (1971). In the case of Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105 (1959), the respondents had required the appellant to include in the record on appeal trial testimony that was not relevant to any of the issues raised on appeal, and we held that the appellant was entitled to be reimbursed for the costs of including that irrelevant testimony. Id. at 348, 341 P.2d at 108. The same reasoning applies in this case. We hold that the district court erred in requiring appellant to bear the cost of adding the requested portions of transcript. In sum, we reverse and remand for further proceedings both the district court's award of attorney's fees to respondents Thomas and Pitts and its order requiring appellant to include at his cost certain portions of the trial transcript in the record on appeal. We uphold the judgment of the district court in all other respects. MANOUKIAN, C.J., and SPRINGER, STEFFEN and GUNDERSON, JJ., concur. NOTES [1] NRS 41A.100(1) provides in relevant part as follows: Liability for personal injury or death shall not be imposed upon any provider of medical care based on alleged negligence in the performance of such care unless evidence consisting of expert medical testimony ... is presented to demonstrate the alleged deviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the alleged personal injury or death... . [2] Section 323 reads as follows: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. [3] NRCP 68 provides in relevant part as follows: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued... . An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall not recover costs, nor attorneys' fees, but shall pay the costs and attorneys' fees, if any be allowed, of the party making the offer from the time of the offer. [4] As we said in that case, "[i]nsofar as counsel fees for the defendants who lost the case are concerned, [NRS 18.010] obviously has no application since they did not prevail. The court need only have concerned itself with Rule 68 in deciding whether to exercise its discretion in favor of the motion for fees." 92 Nev. at 282, 549 P.2d at 754. [5] NRCP 68 expressly includes attorney's fees, while FRCP 68 applies only to costs. Thus, NRCP 68 provides an additional incentive to settle. Moreover, Nevada has not adopted FRCP 54(d), on which the High Court partially relied. Rather, Nevada enacted NRS 18.020, under which allowance of costs to the prevailing party in certain specified cases is mandatory rather than discretionary. See Lyon v. Walker Boudwin Constr. Co., 88 Nev. 646, 650, 503 P.2d 1219, 1221 (1972); Randono v. Turk, 86 Nev. 123, 133, 466 P.2d 218, 224 (1970).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874690/	288 Wis. 2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 KLEUTGEN v. McFADYEN, JR. No. 2004AP002469. Court of Appeals of Wisconsin. October 27, 2005. Unpublished Opinion. Affirmed/reversed/remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983269/	August 14, 2014 JUDGMENT The Fourteenth Court of Appeals MARK ANTHONY KENTISH, Appellant NO. 14-13-00266-CR V. THE STATE OF TEXAS, Appellee ________________________________ This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2615083/	34 Cal. 3d 530 (1983) 668 P.2d 755 194 Cal. Rptr. 448 MICHAEL A. LEVERSEN, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE et al., Real Parties in Interest. Docket No. L.A. 31666. Supreme Court of California. September 6, 1983. 532 COUNSEL Michael A. Leversen, in pro. per., Robert P. App, Giles, Stewart & Barnett and Giles, Stewart, Barnett & Harmon for Petitioner. No appearance for Respondent. Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and Connie S. Ferris, Deputy District Attorneys, and William Morrissey, under appointment by the Supreme Court, for Real Parties in Interest. OPINION GRODIN, J. Petitioner is counsel for defendant Walter Gibbs in a criminal trial that we have stayed pending this proceeding. He seeks a writ of mandate directing the trial court to allow him to withdraw as counsel because of a conflict of interest stemming from confidential information received 533 in the course of his firm's representation, in other proceedings, of a witness, Richard Crisan, called by codefendant Velma Hogan.[1] The question presented is what standards govern disposition of a motion made during a criminal trial by defendant's attorney to be relieved as counsel because of a conflict of interest arising out of the attorney's representation of another client in a different proceeding when the nature of the conflict is unclear and, according to counsel, cannot be clarified without breaching the other client's confidences. I. Gibbs and Hogan were jointly charged with felonies in connection with a jewelry store robbery on July 30, 1981. As counsel for Gibbs the trial court appointed a law firm that was under contract with Orange County to represent indigent defendants as to whom the public defender declared a conflict of interest. Petitioner was an employee of that firm and, as such, represented Gibbs. Hogan had separate counsel. The case was called for trial on March 9, 1982, but jury selection did not commence until the afternoon of March 11. On March 10, both defendants moved for severance of their trials, one ground for the motion being inconsistency of their defenses. The court permitted counsel to support their motions by presenting testimony in lieu of affidavits demonstrating inconsistency. Hogan then testified that though she had participated in the crimes, she was forced to do so by Gibbs and two others, Linda Bogan and Rick Serano. Gibbs testified he was not present at the scene of the crime, but his testimony was stricken after he refused on advice of counsel to submit to cross-examination concerning his exact whereabouts at the time. Severance was denied. Trial testimony was presented March 15 through 18. After the prosecution rested, Hogan again testified that she had been coerced to participate by Gibbs, Rick Serano, and Linda Bogan. Gibbs testified and presented two other alibi witnesses. Petitioner then announced that his last alibi witness, a municipal court clerk, was ill, and it was agreed that Hogan might call a rebuttal witness out of order. At her counsel's request, Richard Crisan was brought from jail under subpoena. Soon after Crisan arrived, petitioner informed the court that he had just learned from his investigator that his office represented Crisan in other matters and that if Crisan were called as a witness, petitioner would have to 534 declare a conflict of interest and move for a mistrial. Crisan, advised by specially appointed counsel, told the court he would claim his privilege against self-incrimination and refuse to testify. Petitioner nonetheless reiterated that he would ask to be relieved as counsel simply upon Crisan's being called to the stand. He explained that in connection with his office's representation of Crisan he had "seen the interview" and "read the police report with regard to Mr. Crisan." "We have meetings daily with regard to the cases that we have. So I have heard general conversation with regard to his case for a period of time. I just didn't connect the name." The court then elicited from Gibbs that he understood his right to waive a conflict of interest but that if one were to exist he would "disregard [petitioner] as my attorney and ask to be appointed another attorney at the trial." The court stated it intended to deny the motion because Crisan was not a codefendant and his refusal to testify would eliminate any need for petitioner to cross-examine him. In front of the jury, Crisan took the stand, gave his name, and refused on the ground of self-incrimination to state whether he was present at the time and place of the charged crimes. Hogan resumed the stand and testified that Crisan was the person she had referred to in her direct testimony as the Rick Serano who, along with Gibbs, had forced her to participate. The court told petitioner, "You may examine," to which petitioner replied that he was "not able to examine." The jury was excused and petitioner reasserted a conflict of interest, explaining that (1) Crisan "has been asserted as an uncharged codefendant in this particular case," (2) petitioner's office was representing Crisan in a similar jewelry store robbery prosecution, and (3) petitioner might have to use confidential information in calling rebuttal witnesses. The court denied petitioner's motion to be relieved, declaring its inability to see any possible conflict in light of the facts that Crisan was not a defendant and had declined to testify and that it was too late in the trial to recall Gibbs for examination on matters testified to earlier. The court ordered petitioner "as an officer of this court to proceed in your examination if you feel it is appropriate to cross-examine the witnesses that are called," but then agreed to hear further argument on March 22. At the March 22 hearing petitioner appeared along with two other attorneys in his firm and submitted a "Memorandum of Law re Conflict of Interest and in Support of [petitioner's] Motion to Be Relieved as Counsel and Defendant Gibbs' Motion for a Mistrial." The memorandum was signed by four of the firm's attorneys, including those present, who represented "as officers of the court" that "a conflict of interest has arisen between 535 other clients of the firm and Defendant Gibbs" and that "they cannot adequately or fully represent Gibbs without violating the privilege of other clients." The memo stated they would immediately ask to be relieved as Crisan's counsel in the other matters in which they represented him, and at the hearing counsel stated that those requests had been granted. The memo further said that the firm "possesses privileged information from a client other than Gibbs germane to Gibbs' trial; counsel cannot discuss that information with Gibbs without violating the privilege, and cannot independently pursue it without adversely affecting the interests of another client and further violating the privilege. [¶] While a conflict of interest arose as soon as Hogan's counsel called Crisan to the stand, the full extent of that conflict, and the relevance of privileged information in the possession of counsel, did not become apparent until Crisan was identified as an uncharged crime partner in this robbery."[2] After submission of petitioner's memorandum, the prosecutor introduced a police report that she asserted had been in petitioner's hands since January 1982. The report, dated August 1, 1981 (two days after the robbery), listed Hogan, Gibbs, Crisan, and Linda Bogan as suspects and stated (on the last page) that the district attorney would be requested to amend the complaint "to add the additional suspects." In a police report of July 30 that had been shown to the court at the March 10 hearing on petitioner's motion for severance it appeared that Hogan was the only suspect arrested at the scene and that after waiving Miranda rights she had stated that the others involved in the robbery were Gibbs, Bogan, and "Rick." The August 1 report states that using information supplied by Hogan, police had traced Rick's address to the residence of Emil Crisan, age 55. They then found Department of Motor Vehicles records of Richard Crisan, born 1954, who matched the description of Rick supplied by Hogan, and they learned that Richard Crisan had given Emil Crisan's residence as his own address in arrest bookings. Finally, the jewelry store owner selected Crisan's picture from a photographic lineup as a customer she knew as "Lee" and had encountered outside the store just before she entered and discovered the robbery in progress. Other store personnel similarly identified Crisan as Lee; they and the owner also photographically identified Gibbs as one of the robbers. Petitioner admitted receiving the police reports before trial. He told the court that when he was first appointed to represent Gibbs in this case, he reviewed the police reports, including one with Crisan's name in it, and 536 checked files to see whether his office represented any potential witnesses, "and at the particular time we did not represent Mr. Crisan, or it was not brought to my attention." In trial testimony Hogan "gave us the name [Rick Serano] of the person who she indicated was the master-mind, and also an uncharged defendant," and said he was then in the Orange County jail. Petitioner said that on hearing this testimony, he checked the jail records and found no one of that name. Thus, he did not realize Crisan's connection with the case until Crisan was brought in as a witness. The court reiterated its March 18 denial of petitioner's motion to be relieved and further denied the motion for mistrial. The court expressly disclaimed any doubt of the honesty of the representations made by petitioner and his firm, or of their good faith in urging their contentions.[3] The court nonetheless ruled that the showing of conflict was insufficient, declaring that it, not counsel, must be the "final arbiter" of the existence of a material conflict of interest. It stated that there was no showing that counsel had confidential information that (1) would impeach any of the trial testimony and (2) would be available to substitute counsel. It explained that if Crisan had waived his privilege and elected to testify, petitioner's motions would have been granted, but that the "main witnesses" had "already been thoroughly examined and cross examined," and the alleged conflict clearly could not affect examination of the only remaining witness known to the court a municipal court clerk being called to testify to "seeing Mr. Gibbs on some day" and to explain "some changes in some bail slips." Counsel said that the conflict was based on privileged information of which counsel could not reveal the nature or source "other than to tell the court it is privileged and that we feel, in accordance with our oath, that it is germane and that it creates a conflict." Counsel further asserted that a substitute attorney might "very well get the information from other sources." The court told counsel that "there has to be some clue to the court" and that here there was no basis for even a "reasonable, informed speculation" that a disqualifying conflict existed. II. (1) It has long been established that "the `assistance of counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall 537 simultaneously represent conflicting interests." (Glasser v. United States (1942) 315 U.S. 60, 70 [86 L. Ed. 680, 699, 62 S. Ct. 457]; accord, People v. Chacon (1968) 69 Cal. 2d 765, 774 [73 Cal. Rptr. 10, 447 P.2d 106, 34 A.L.R. 3d 454].) Questions of conflicting representation violative of that principle usually arise out of an attorney's representation of more than one defendant in the same trial. (2) "[W]henever a trial court improperly requires joint representation over timely objection reversal is automatic." (Holloway v. Arkansas (1978) 435 U.S. 475, 488 [55 L. Ed. 2d 426, 436, 98 S. Ct. 1173].) In Holloway, supra, a public defender, appointed to represent three codefendants accused of robbery, moved before trial that separate counsel be appointed for each defendant because of "a possibility of a conflict of interest" (id., at p. 477 [55 L.Ed.2d at p. 430]) and because "`one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them because I have received confidential information from them.'" (Id., at p. 478 [55 L.Ed.2d at p. 430].) The motion was denied and defendants were convicted. Reversing, the United States Supreme Court held that the trial judge's failure "either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel ... deprived [defendants] of the guarantee of `assistance of counsel'." (Id., at p. 484 [55 L.Ed.2d at p. 434].) In Holloway, as here, the prosecution argued that "to credit [counsel's] representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel." (Id., at p. 486 [55 L.Ed.2d at pp. 435-436].) But the high court noted that to attempt to present the separate-counsel claim in more detail would confront counsel "with a risk of violating, by more disclosure, his duty of confidentiality to his clients." (Id., at p. 485 [55 L.Ed.2d at p. 435].) It found these considerations persuasive: that counsel "is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop"; that defense attorneys have an obligation to advise the court of any conflict of interest; and that attorneys are officers of the court, and their representations concerning conflicts "should be given the weight commensurate with the grave penalties risked for misrepresentation." (Id., at pp. 485-486, 486, fn. 9 [55 L.Ed.2d at p. 435].) Further, the trial court remains free to deal with "untimely motion[s] for separate counsel ... made for dilatory purposes" and to "explor[e] the adequacy of the basis of defense counsel's representations regarding a conflict of interest without improperly requiring disclosure of the confidential communications of the client." (Id., at pp. 486-487 [55 L.Ed.2d at p. 436].) Even before Holloway, this court had required that great weight be accorded trial counsel's 538 assertion of a conflict of interest that would impair counsel's representation of multiple defendants. (People v. Douglas (1964) 61 Cal. 2d 430 [38 Cal. Rptr. 884, 392 P.2d 964]; People v. Robinson (1954) 42 Cal. 2d 741 [269 P.2d 6]; People v. Lanigan (1943) 22 Cal. 2d 569 [140 P.2d 24, 148 A.L.R. 176]; see People v. Donohue (1962) 200 Cal. App. 2d 17, 27 [19 Cal. Rptr. 454].) Petitioner here, however, asserts not a conflict of interest between codefendants whom he simultaneously represents but a conflict between his duty to provide adequate assistance of counsel to defendant Gibbs and his professional fiduciary obligations arising out of his former representation of Crisan in different proceedings. (3) An attorney is forbidden to use against a former client any confidential information that was acquired during that client relationship. (Galbraith v. The State Bar (1933) 218 Cal. 329, 333 [23 P.2d 291]; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574 [15 P.2d 505]; Bus. & Prof. Code, § 6068, subd. (e) (preserving client's secrets); Rules Prof. Conduct, rule 4-101 (employment adverse to former client), rule 5-102 (B) (representation of conflicting interests).) Moreover, the attorney has a duty to withdraw, or apply to a court for permission to withdraw, from representation that violates those obligations. (Rules Prof. Conduct, rule 2-111(B)(2).) So important is that duty that it has been enforced against a defendant's attorney at the instance of his former client (who was also a codefendant) even at the expense of depriving the defendant of his choice of counsel. (Yorn v. Superior Court (1979) 90 Cal. App. 3d 669 [153 Cal. Rptr. 295].) (4) Conflicts of interest based on those obligations to clients in different proceedings, as well as conflicts arising out of simultaneous representation of codefendants, may impair a defendant's constitutional right to assistance of counsel. In Uhl v. Municipal Court (1974) 37 Cal. App. 3d 526 [112 Cal. Rptr. 478], a public defender declined a municipal court's appointment as counsel, declaring a conflict with representation of another, unnamed client and explaining that "he could not disclose the nature of the relationship that gave rise to the conflict without breaching the confidence of the existing client." (Id., at p. 529.) The Court of Appeal affirmed the superior court's order directing the municipal court to appoint different counsel, holding that the same deference must be given counsel's declaration of conflicts inherent in representation of defendants in different proceedings as to a declaration of conflict between defendants in the same proceeding. "[T]he mere fact that the conflict exists as to defendants in different proceedings is not a sufficiently significant distinction. Separate and distinct proceedings can pose the same problems of constitutional and ethical conflicts of interests." (Id., at p. 535; see People v. Perry (1966) 242 Cal. App. 2d 724 [51 Cal. Rptr. 740] (request to be relieved as trial counsel 539 for conflict based on representation of codefendants who had pleaded guilty).) We agree.[4] (5) Under these principles, respondent court failed to give sufficient weight to the assertions of petitioner and members of his firm that their continued representation of Gibbs was precluded by a conflict of interest based on confidential information received during representation of Crisan. The court ruled that conflict had not been established because (1) there was no evidence of the nature of the confidential information or of how it would impeach any witness, and (2) any conflict could not adversely affect Gibbs since there was no showing that the confidential information would be available to substitute counsel or could be used to Gibbs' advantage, in light of Crisan's refusal to testify and the late stage of the trial. The facts before the court sufficiently corroborated petitioner's representation of a conflict. Hogan's testimony indicated that the person she later identified as Crisan was the "mastermind" of the robbery charged against Gibbs. One of the matters in which petitioner's firm had been appointed to represent Crisan was another, similar jewelry store robbery. It is not implausible that Crisan had furnished information that might lead to evidence, apart from Crisan's testimony, that would tend to exculpate Gibbs even though perhaps incriminating Crisan. Another possibility might have been to seek leniency for Gibbs in exchange for testimony against Crisan. Petitioner's duty not to use Crisan's confidences against him prevented petitioner from even discussing these or other possibilities with his client, Gibbs, let alone revealing them in open court. Having accepted the good faith and honesty of petitioner's statements on the subject, the court was bound under the circumstances to rule that a conflict of interest had been sufficiently established.[5] There was also sufficient indication from the circumstances before the court to establish a danger that the conflict would adversely affect petitioner's performance as Gibbs' lawyer. Crisan's refusal to testify did not eliminate *540 all likelihood that substituted counsel, alerted to the possibility of additional evidence helpful to the defense, would ferret it out. Nor was the trial necessarily too far along for new evidence to be useful. It is true that Gibbs had already testified and petitioner had announced only one relatively minor witness yet to be called for direct examination. On the other hand, petitioner had not yet rested Gibbs' direct case, so it remained legally possible to call additional witnesses, or perhaps, on sufficient showing, to recall witnesses who had already testified (Evid. Code, §§ 774, 778; see People v. Manchetti (1946) 29 Cal. 2d 452, 460-462 [175 P.2d 533]). Moreover, there remained the tasks of closing argument and, if Gibbs were convicted, of posttrial proceedings such as sentencing. In those matters Gibbs was entitled to "the undivided loyalty and untrammeled assistance of counsel of his own choice," free of any reservations or irresolution stemming from concerns over professional obligations toward Crisan. (See People v. Douglas, supra, 61 Cal. 2d 430, 438; People v. Robinson, supra, 42 Cal. 2d 741, 748; People v. Lanigan, supra, 22 Cal. 2d 569, 577.) Thus, petitioner's good faith representations to the court, coupled with the evidence in the record and the posture of the trial, established as a matter of law that to deny petitioner's motion to be relieved would deprive Gibbs of his constitutional right to assistance of counsel free from any conflict of interest adversely affecting counsel's performance. Let a writ of mandate issue, directing respondent court to vacate its order denying petitioner's motion to be relieved as counsel and to make an order granting the motion. Bird, C.J., Mosk, J., Richardson, J., Kaus, J., Broussard, J., and Reynoso, J., concurred. NOTES [1] The trial was stayed as to Gibbs only, not as to Hogan. [2] In the return to the writ the People speculate whether the memo's reference to "a client other than Gibbs" was intended to broaden the basis of the claimed conflict to include privileged information from a client other than Crisan. There is nothing further in the record to indicate that petitioner claimed, or was understood to have claimed, a conflict based on representation of anyone other than Gibbs and Crisan, and we assume that to be so. [3] The court also upheld counsel's good faith in another respect. In opposing the motions the prosecutor had insinuated that petitioner arranged with Hogan's counsel for the calling of a former client of petitioner as Hogan's witness as a means of "getting their way with regards to a severance motion when all else fails." Referring to that charge, the court said that there was no evidence petitioner or Hogan's counsel had acted improperly. [4] Statements in People v. Pineda (1973) 30 Cal. App. 3d 860, 864-865 [106 Cal. Rptr. 743], indicating that a conflict of interest denying the constitutional right to effective counsel may arise only out of simultaneous representation of codefendants, are disapproved. [5] We accordingly find it unnecessary to consider the People's contention, first raised in supplementary briefing shortly before oral argument, that the trial court should have requested or ordered petitioner to disclose confidential information underlying the conflict in an in camera hearing. The prosecutor argued to the trial court that petitioner should have known from police reports furnished before trial that Crisan was the "Rick" whom Hogan accused of forcing her to participate in the robbery. But petitioner represented to the court that he did not in fact realize Crisan's connection with the case until Hogan called Crisan as a witness, and the court accepted that representation as honest and made in good faith. Gibbs' right to conflict-free representation is not to be forfeited simply on account of counsel's oversight.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1029354/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6561 ROBERT JUNIOR WARDRICK, Plaintiff - Appellant, v. UNITED STATES OF AMERICA; JAMES H. GREEN, Cop or Prosecutor; ALEXANDRA WILLIAM, Judge; ROBERT OVERFIELD, Detective; CHRISTIAN M. KAHL; SUZANNE MENSH; THOMAS LOVE, ATF Agent; ANDRE DAVIS; MARVIN J. GARBIS; THOMAS MICHAEL DIBIAGIO, Prosecutor; DEBRA LYNN DWYER, Prosecutor; MARY SAMPSON; JOHN KELLY; LIEUTENANT GEARHEART; SHAUN GARRITY; DENNIS W. SHEDD; ROBERT B. KING; ALLYSON K. DUNCAN; HENRY WILLIAM; HARVEY LAPIN; PATRICIA S. CONNOR; WARDEN OF BECKLEY, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:09-cv-00121-JFM) Submitted: June 4, 2009 Decided: June 29, 2009 Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Robert Junior Wardrick, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Junior Wardrick appeals from a district court order dismissing without prejudice his civil rights complaint. We have reviewed the memorandum and the record and affirm for the reasons cited by the district court. See Wardrick v. United States, No. 1:09-cv-00121-JFM (D. Md. Jan 26, 2009). To the extent Wardrick’s complaint was a successive 28 U.S.C.A. § 2255 (West Supp. 2009) motion, we construe Wardrick’s notice of appeal and his informal brief filed in this court as an application to file a second or successive § 2255 motion. See United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense. 28 U.S.C.A. § 2255(h). Wardrick’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion. 2 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 3	01-03-2023	07-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/1913697/	981 A.2d 938 (2009) COM. v. WALSH. No. 1615 WDA 2008. Superior Court of Pennsylvania. July 20, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601693/	228 P.3d 61 (2010) 2010 WY 39 Joshua Todd ALPHIN, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent). No. S-09-0085. Supreme Court of Wyoming. April 1, 2010. 63 Representing Appellant: Donna D. Domonkos, Cheyenne, Wyoming. Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen; Deputy Attorney General; and James Michael Causey, Senior Assistant Attorney General; and Cara Boyle Chambers, Assistant Attorney General. Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ. HILL, Justice. [¶ 1] In this worker's compensation case, Appellant, Joshua Todd Alphin (Alphin), challenges the order of the district court which affirmed the "Findings of Fact, Conclusions of Law and Order" issued by a hearing examiner for the Office of Administrative Hearings. Alphin contends that the hearing examiner abused his discretion and acted in a manner that was arbitrary, capricious or not otherwise in accordance with applicable law in denying Alphin's claim for benefits. He also contends that the findings made by the hearing examiner were not supported by substantial evidence. We will affirm. ISSUES [¶ 2] Alphin raises these issues: I. Whether the [hearing examiner] abused his discretion, acted arbitrarily, capriciously or otherwise not in accordance with [law] when he denied [Alphin's claim for] benefits. II. Whether the [hearing examiner's] decision denying benefits was supported by substantial evidence. The Workers' Safety and Compensation Division (Division) asks: I. Did the hearing examiner have sufficient evidence to support the finding that [Alphin's] low back injury was a preexisting condition which was not related to nor materially aggravated by his workplace injury of December 12, 2005? II. Was the hearing examiner's decision in accordance with the law and neither the result of arbitrary or capricious reasoning? In his reply brief, Alphin responds: I. Whether the arbitrary and capricious standard of review applies when the hearing examiner acts without considering all the facts and circumstances. II. This Court has the authority to review whether a lower court's action enforced an illegal contract even when raised for the first time on appeal. FACTS AND PROCEEDINGS [¶ 3] For purposes of context, we relate these preliminary facts and circumstances. It is undisputed that Alphin was injured in the course and scope of his employment on 64 December 12, 2005. It is also undisputed that his employer, Black Horse Construction, Inc., convinced him to seek medical treatment outside the constraints of the Worker's Compensation Act because that was of significant benefit to the employer. The employer paid for Alphin's medical treatment for a short period of time, but fired him because he was unable to work, due to his injury, and then discontinued making such payments on his behalf. It was not until Alphin was incarcerated at the Wyoming State Penitentiary in mid-2006, that he filed a claim for benefits. [¶ 4] Alphin's claim was initially denied because it was not timely filed with the employer or with the Division. However, at the hearing the Division conceded that, given the above-described circumstances, Alphin's claim was to be heard as if it had been timely filed and was to be decided on its merits. [¶ 5] The hearing examiner concisely identified the issue to be considered at the hearing: "[W]hether or not Mr. Alphin can prove that his current low back condition and need for continued treatment is directly related to his December 2005 work injury (either as an acute new injury or a material aggravation of a preexisting condition)." [¶ 6] Alphin described his December 12, 2005, injury in his "Wyoming Report of Injury," which he filed on August 29, 2006, while incarcerated at the Wyoming State Penitentiary: On the injury date I was unloading a trailer of trash into the trash bin at the intersection of Luman and Burma Rd. when Juan brought the backhoe around to grab bigger pieces off the trailer. [M]y back was to him and the equipment and I could not see when the hoe on the backhoe slipped and I was standing beside the trailer and another employee Jose was on the trailer when the backhoe struck me and pinned me to the trailer. The operator Juan backed off and helped me to the truck where we then notified a supervisor[.] [¶ 7] Alphin first saw Robert Berg, M.D., on December 13, 2005, in Pinedale. He assessed Alphin's condition like this: "Impression is severe left pelvic bone contusion and hip joint, muscle contusion of left thigh secondary to a backhoe accident." He was also treated by Blane A. Woodfin, M.D., on December 13, 2005, and Dr. Woodfin's notes briefly described the injury Alphin reported. Dr. Woodfin went on to say: He was able to ambulate into the clinic here at Pinedale today and was seen by Dr. Berg. He found evidence of no soft tissue injury to the abdomen or pelvis. The patient's complaints are centered about the anterior iliac area and the anterior aspect of the hip. He has no past history of injury. He does have an extensive history of lumbar spine problems, but has no current complaints of back pain. [¶ 8] Alphin testified that about three weeks after the event described above, he began experiencing severe back pain, although he reported no such pain immediately following the accident. Alphin denied previous back injury, but he did concede that in late June of 2005, he did present at the Memorial Hospital of Sweetwater County with low back pain. The treatment he received at that time revealed that he had "moderate size disc herniations at L4-5 and L5-S1." The attending physician's notes indicate that Alphin reported he "had four years of on and off low back pain since falling off a roof [in 2001]." The attending physician also noted that after that June 2005 appointment, Alphin was given an epidural steroid injection to treat the back pain. That did not produce the desired results and Dr. Ludwig F. Kroner recommended "operative treatment." Alphin further testified that after his last visit with Dr. Kroner, his back did get better, and that is when he began looking for work which, in turn, led to the job with Black Horse where he suffered the injury which is directly at issue in this case. [¶ 9] Alphin claimed that he did not hurt his back in the 2001 incident and that when he went to work for Black Horse, he was not experiencing any back problems. Nevertheless, it was Alphin's intention, as well as that of Black Horse, that he not put significant strain on his back while working. However, beginning several weeks after the injury involving 65 the backhoe, Alphin was experiencing severe back pain. [¶ 10] The Division sent Alphin's medical records to Mark R. Rangitsch, M.D., for an evaluation. Dr. Rangitsch provided this report to the Division: Specifically, Mr. Alphin, apparently, has had longstanding lumbar spinal problems, dating back to, likely a fall, from a roof back in 2001. He was treated for low back problems. Actually, before the injury of 12/2005, Dr. Kroner had recommended surgical intervention to his lumbar spine. At the time of his accident, he apparently did not injure his lumbar spine, per Dr. Berg's note. He had epidural steroid injection for the lumbar spine, in June 2005. And, again, he was recommended to have surgery prior to his accident of December 13, 2005. Therefore, for your specific questions: 1. Did the patient have any apparent injuries to his lumbar spine on 12/13/2005? It appears that he did not. He had an injury to the left hip and pelvis, but not to the lumbar spine. And, actually, he was denying back pain at the time of his injury. 2. Is the patient's lumbar spine condition, or a need for lumbar spine treatment, due to the work incident on 12/13/2005, or more due to his lumbar spine degenerative disease, from his MRI scan noted on 6/24/2005? I do not believe his current lumbar spine condition is due to any injury on 12/13/2005, but likely due to his longstanding problems prior to that point. 3. Did the work incident on 12/13/2005 cause a material aggravation to Mr. Alphin's preexisting lumbar spine condition and cause the need for future treatment? I do not believe it did. [¶ 11] Alphin's treatment at the state penitentiary revealed that he was prescribed pain medication for his back problems. Eventually, he was sent to see Kenneth Schulze, M.D., during August and September of 2007 for further evaluation of his back problems. Dr. Schulze had a new MRI done and compared it with the MRI done in Rock Springs in June 2005. In an August 19, 2007 letter to penitentiary medical staff, Dr. Schulze opined: Comparing the 2005 with the 2007 MRI study there has been a marked increase in the disc herniation at L4-L5 with significant prolapse of disc material and inferior migration of that disc material. Nerve root impingement as described by Roy Hediger, M.D., is noted. It is my recommendation that Joshua Alphin undergo a micro-laminotomy for disc excision to relieve the nerve root entrapment. [¶ 12] A part of Alphin's evidence included a letter sent to Dr. Schulze, dated October 24, 2007, asking that he answer several questions. The answers given by Dr. Schulze are underscored below, but in the letter his hand-written answers are difficult to decipher: 1. Please summarize the history and treatment you have provided to Mr. Alphin, including your diagnosis. Answer: Attached (The document attached is the information quoted immediately above from Dr. Schulze's August 19, 2007 letter. In the briefs, the hearing examiner's findings, and in the district court's decision letter, the word "answered" is used, rather than "attached." Our close examination of the document in question convinces us that the word is attached, although it makes no difference in the outcome of this case.) 2. Would it be unusual for Mr. Alphin's low back symptoms to appear shortly after the accident in the context of his initial complaints of hip and pelvic pain as set forth in Dr. Woodfin's treatment notes? Answer: No. 3. Did Mr. Alphin's work related injury in December of 2005 cause a material aggravation of any preexisting condition or was this a new injury? Please state the basis of your opinion. A material aggravation has been defined for the purposes of Wyoming law as: "The work effort contributed to a material degree to the precipitation, aggravation or acceleration of the preexisting 66 condition of the employee. The injury is compensable if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the injury or infirmity." Answer: Yes [4.] Please state whether in your opinion, based on a degree of medical probability, whether Mr. Alphin will require future medical care regarding those conditions causally related to his work related injury in December of 2005, and if so, the expected duration and cost for that treatment. Answer: Yes. Cannot tell you duration/cost. [5.] I have enclosed Dr. Rangitsch's record review report for your review. Please state if you agree or disagree with Dr. Rangitsch's opinion and the basis of your opinion. Answer: Disagree. DISCUSSION Standard of Review [¶ 13] Because of the issues raised here, there are three aspects of the applicable standard of review that we must apply. In Dale v. S & S Builders, L.L.C., 2008 WY 84, ¶¶ 22-24, 188 P.3d 554, 561 (Wyo.2008) we detailed our revised statement of those standards: Thus, in the interests of simplifying the process of identifying the correct standard of review and bringing our approach closer to the original use of the two standards, we hold that henceforth the substantial evidence standard will be applied any time we review an evidentiary ruling. When the burdened party prevailed before the agency, we will determine if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. See, Wyo. Consumer Group v. Public Serv. Comm'n of Wyo., 882 P.2d 858, 860-61 (Wyo.1994); [Board of Trustees v.]Spiegel, 549 P.2d [1161] at 1178 [Wyo.1976] (discussing the definition of substantial evidence as "contrary to the overwhelming weight of the evidence"). If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Importantly, our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it. The arbitrary and capricious standard remains a "`safety net' to catch agency action which prejudices a party's substantial rights or which may be contrary to the other W.A.P.A. review standards yet is not easily categorized or fit to any one particular standard." Newman[v. State ex rel. Wyoming Workers' Safety and Compensation Div.], [, 2002 WY 91, ¶ 23, 49 P.3d [163] at 172 [2002]. Although we explained the "safety net" application of the arbitrary and capricious standard in Newman, we will refine it slightly here to more carefully delineate that it is not meant to apply to true evidentiary questions. Instead, the arbitrary and capricious standard will apply if the hearing examiner refused to admit testimony or documentary exhibits that were clearly admissible or failed to provide appropriate findings of fact or conclusions of law. This listing is demonstrative and not intended as an inclusive catalog of all possible circumstances. Id. There will be times when the arbitrary and capricious standard appears to overlap with some of the other standards. For example, a decision against the great weight of the evidence might properly be called arbitrary or capricious in everyday language. However, the words "arbitrary" and "capricious" must be understood in context as terms of art under the administrative review statute and should not be 67 employed in areas where the more specifically defined standards provide sufficient relief. [Emphasis added.] Were the Hearing Examiner's Credibility Determinations Sustainable under the Substantial Evidence Test [¶ 14] The hearing examiner made several determinations concerning credibility. The only witness to testify in person was Alphin. To the extent the hearing examiner made credibility determinations with respect to him, those determinations are clearly sustainable under the substantial evidence test. This is so because Alphin contradicted his own testimony several times. He denied a back injury in 2001, although he appears to have at least suggested such an injury to Dr. Kroner. He did not report a back injury to the physicians he saw on December 13, 2005. Alphin's self-report of injury was generally inconsistent and we conclude that, considered in its totality, his testimony might well have been deemed not credible, in significant part, by the hearing examiner. [¶ 15] The hearing examiner also made credibility determinations as to documents used as exhibits. In particular, he found Dr. Rangitsch to be more credible than Dr. Schulze, because Dr. Schulze's answers were incomplete, excessively terse, and he did not "explain," although some questions called for at least some explanation. The hearing examiner also scored Dr. Schulze for at least one significant inaccuracy in his summary of Alphin's medical history (the timing of his treatment with Dr. Kroner and the December 12, 2005 injury). Both the district court and this Court have had the same materials available for examination as did the hearing examiner. The hearing examiner couched his assessment of these matters as going to credibility, although they might more accurately be described as going only to the "weight" to be given the testimony in question. To the extent the hearing examiner did discount the exhibits described above, we conclude that there is substantial evidence in the record to sustain the hearing examiner's findings in those regards. Did the Hearing Examiner Properly Conclude That Alphin Did Not Meet His Burden of Proof [¶ 16] The principles governing a claimant's burden of proof are well established: In order to be eligible to receive worker's compensation benefits, a claimant must have sustained an "injury" as defined by Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2001). "`Injury' means any harmful change in the human organism other than normal aging ... arising out of and in the course of employment while at work...." To demonstrate that an injury arose out of the course of employment, the claimant must establish a causal connection between the work-related incident and the injury. Hanks v. City of Casper, 2001 WY 4, ¶ 6, 16 P.3d 710, 711 (Wyo.2001). The claimant bears the burden of proving this causal connection by a preponderance of the evidence. Clark v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2001 WY 132, ¶ 19, 36 P.3d 1145, 1150 (Wyo.2001). "A `preponderance of the evidence' is defined as `proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence.'" Matter of Worker's Compensation Claim of Thornberg, 913 P.2d 863, 866 (Wyo.1996) (quoting Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo. 1979)). Anastos v. General Chemical Soda Ash, 2005 WY 122, ¶ 20, 120 P.3d 658, 665-66 (Wyo.2005). "Injury," as the term is defined in Wyo. Stat. Ann. § 27-14-102(a)(xi) (LexisNexis 2003) of the Wyoming Workers' Compensation Act, does not include any injury or condition preexisting at the time employment begins with the employer against whom a claim is made. However, "in Wyoming an employer takes the employee as he finds him." Lindbloom v. Teton International, 684 P.2d 1388, 1389 (Wyo.1984). If an employee suffers from a preexisting condition, that employee may still recover if 68 his employment substantially or materially aggravates that condition. Id. In Lindbloom, we cited with approval the widely accepted treatise, Larson's Workmen's Compensation Law, for the proposition that: Preexisting disease or infirmity of the employee does not disqualify a claim under the "arising out of employment" requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. 1 Larson's Workmen's Compensation Law, § 12.20, p. 273-276. Larson goes on to say: Since the rule of law stated at the beginning of this section is so widely accepted, in practice most of the problems in this area are medical rather than legal. * * * * It will be found, then, that denials of compensation in this category are almost entirely the result of holdings that the evidence did not support a finding that the employment contributed to the final result. Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point * * * * based on any medical testimony * * * * will not be disturbed on appeal. Id., § 12.20, p. 313-16. Boyce v. State ex rel. Wyoming Workers' Safety & Comp. Div., 2005 WY 9, ¶ 10, 105 P.3d 451, 454-55 (Wyo.2005). Expert opinion testimony ordinarily will be required to establish the link between the employee's work activity or injury and the preexisting disease or condition; the expert need not state with specificity that the work activities or injury materially or substantially aggravated, accelerated, or combined with the preexisting disease or condition to necessitate the medical treatment for which compensation is sought; and the expert need not apportion between the work activity or injury and the preexisting disease or condition; the relative contribution of the work activity or injury and the preexisting disease or condition is not weighed. Ramos v. State ex rel. Wyoming Workers' Safety & Comp. Div., 2007 WY 85, ¶ 18, 158 P.3d 670, 677 (Wyo.2007) (citing Boyce, ¶¶ 11, 16, 105 P.3d at 455-56). Straube v. State ex rel. Wyo. Workers' Safety and Compensation Div., 2009 WY 66, ¶ 15, 208 P.3d 41,47-48 (Wyo.2009). [¶ 17] The hearing examiner's findings of fact mirrored those we have set out above. Alphin, of course, had the burden of proof in these proceedings: The claimant has the burden of proving each of the essential elements of his claim by a preponderance of the evidence. Sherwin-Williams Co. v. Borchert, 994 P.2d 959, 963 (Wyo.2000). As a part of that burden, the claimant must prove a causal connection exists between a work-related injury and the injury for which worker's compensation benefits are being sought. That determination involves a question of fact. Taylor, ¶ 9, 123 P.3d at 146; Morgan v. Olsten Temp. Servs., 975 P.2d 12, 16 (Wyo.1999). Dale, ¶ 35, 188 P.3d at 563. [¶ 18] Alphin asserted that he did not hurt his back until the time he went to work for Black Horse. However, the medical evidence was not entirely consistent with his claims in that regard, as we have set out more fully above. Given these circumstances, the hearing examiner was required to sift through that evidence with great care: [The claimant's] injury presented complex medical issues related to causation that would normally signify a need for the trier of fact to rely on the technical medical knowledge of an expert. A finder of fact is not necessarily bound by an expert's medical testimony. Morgan v. Olsten Temporary Services, 975 P.2d 12, 16 (Wyo. 1999) (citing Forni v. Pathfinder Mines, 834 P.2d 688, 693 (Wyo.1992)). It is the hearing examiner's responsibility, as the trier of fact, to determine relevancy, assign probative value and ascribe the relevant weight given to medical testimony. [Clark v. State ex rel. *69 Wyoming Workers' Safety and Compensation Div., 934 P.2d 1269, 1271 (Wyo. 1997)] (citing Matter of Workers' Compensation Claim of Thornberg, 913 P.2d [863] at 867 [Wyo. 1996]). "The hearing examiner [is] also in the best position to judge the weight to be given to the medical evidence." [Matter of Goddard, 914 P.2d 1233, 1237 (Wyo.1996); Latimer v. Rissler & McMurry Co., 902 P.2d 706, 711 (Wyo.1995)] "The trier of fact may disregard an expert opinion if he finds the opinion unreasonable or not adequately supported by the facts upon which the opinion is based." Clark, 934 P.2d at 1271. Morgan, 975 P.2d at 16. Hicks v. State ex rel. Wyo. Workers' Safety and Compensation Div., 2005 WY 11, ¶ 21, 105 P.3d 462, 471 (Wyo.2005). [¶ 19] Moreover, This Court has been equally clear in its requirements for the consideration to be given medical opinion testimony. When presented with medical opinion testimony, the hearing examiner, as the trier of fact, is responsible for determining relevancy, assigning probative values, and ascribing the relevant weight to be given to the testimony.... In weighing the medical opinion testimony, the fact finder considers: (1) the opinion; (2) the reasons, if any, given for it; (3) the strength of it; and (4) the qualifications and credibility of the witness or witnesses expressing it. Decker[v. State ex rel. Wyoming Medical Comm'n], [2005 WY 160] ¶ 33, 124 P.3d [686] at 697 [2005] (quoting Baxter v. Sinclair Oil Corp., 2004 WY 138, ¶ 9, 100 P.3d 427, 431 (Wyo.2004) (quoting Bando v. Clure Bros. Furniture, 980 P.2d 323, 329 (Wyo.1999))). Worker's Compensation Claim of Rodgers v. State ex rel. Wyo. Workers' Safety and Compensation Div., 2006 WY 65, ¶ 24, 135 P.3d 568, 576 (Wyo.2006). [¶ 20] Alphin also advances what sounds like a "res ipsa loquitor" argument in support of his claims. That is, the only reasonable conclusion that can be reached, given the record extant, is that a blow from a backhoe, such as that suffered by Alphin, requires that the fact-finder accept as a given that Alphin must have suffered the sort of back injury he claims to have sustained. Although Alphin does not support this contention with pertinent authority, our inquiry reveals that the facts and circumstances of this case do not merit bringing that legal construct to bear. See 27 Am.Jur.2d Employment Relationships § 362 (Application of res ipsa loquitor doctrine) (2004). [¶ 21] Having gone through the exercise set out above, we conclude that there is substantial evidence to support the agency's decision to reject the evidence offered by Alphin after considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. Applicability of the Arbitrary and Capricious Standard [¶ 22] Alphin contends that his ability to successfully prosecute his claim for worker's compensation benefits was so hampered by his side deal with Black Horse and his subsequent inability to get timely medical attention for his back problems, following the December 12, 2005 incident, that this Court should apply the arbitrary and capricious safety net described in Dale. We have carefully examined this contention, and we conclude that Alphin's circumstances are not ones that call into play that "safety net." CONCLUSION [¶ 23] We affirm the district court's order which affirmed the hearing examiner's findings and conclusions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615082/	35 Wash. App. 496 (1983) 668 P.2d 589 THEODORE L. HERIOT, ET AL, Respondents, v. LESTER SMITH, ET AL, Appellants. No. 5278-4-II. The Court of Appeals of Washington, Division Two. August 9, 1983. Douglas O. Whitlock, for appellants. James B. Finlay, for respondents. REED, J. This boundary dispute concerns the ownership of a narrow, wedge-shaped parcel of land located on the north bank of the Columbia River in Pacific County. State Route 401 divides the contested area into north and south portions. The neighbor residing to the west (Heriot) bases his claim to the parcel on the results of a survey conducted in December 1979. The easterly neighbor (Lewis) asserts ownership by operation of the doctrines of (1) adverse possession and (2) boundary by acquiescence. The contested area, depicted in the sketch, lies between the old fence line and the eastern boundary of the 1979 survey. The trial court quieted title to the parcel in Heriot, rejecting the theories urged by the Lewises. For the reasons that follow, 498 499 we too reject the claim founded on the doctrine of boundary by acquiescence. The trial court's findings of fact, however, are sketchy regarding the theory of adverse possession. Further, there is uncontroverted evidence in the record supporting such a claim, at least as to that portion of the disputed area located north of SR 401. Because this court is not a factfinding body we would ordinarily remand to the trial court for additional factfinding. The evidence, however, is not only uncontroverted but undisputed as well. Accordingly, we hold that adverse possession has been established as a matter of law. This dispute had its origin in 1933. At that time Charles Calendar divided a single parcel of land, conveying the easterly parcel to the Gundersons and the westerly parcel to the Seablooms. Shortly thereafter, Calendar conducted a survey and set a series of stakes to delineate the property line dividing the parcels. A fence was erected along this line by the joint efforts of Mr. Gunderson and Mr. Seabloom. The fence consisted of four cedar posts connected by three strands of barbed wire. The area where the fence was located was bushy and was not actively used to any appreciable extent by either party during the next several years. In 1963 Theodore Heriot became interested in purchasing the Seablooms' property. Before a conveyance was made, Mr. Heriot and Mr. Seabloom set several posts in the ground east of the old fence line. The next morning the posts were gone they had been removed at Mrs. Gunderson's direction. In response, Mr. Seabloom sued Mrs. Gunderson. For reasons not appearing in the record, the lawsuit was dropped. Mr. Heriot testified that he placed another set of posts in the ground east of the old fence line prior to 1965 but these posts were removed also. In 1973 the Lewises purchased Mrs. Gunderson's parcel. They cut some trees in the area of the old fence and cleared brush up to the fence line. In 1979 Heriot had a survey conducted which established the true property line to be east of the old fence. This litigation followed. 500 [1-3] The Lewises first assign error to the trial court's refusal to accept the old fence as the true boundary line by operation of the doctrine of acquiescence. In order to prevail, a party claiming under the doctrine of acquiescence must show by clear, cogent and convincing evidence that he and his neighbor recognized a physical boundary as a true line, not just a barrier, for the statutory period necessary to establish adverse possession. Muench v. Oxley, 90 Wash. 2d 637, 584 P.2d 939 (1978). The trial court made two findings particularly relevant to the Lewises' claim: (10) That the land on each side of the fence was bushy and not used by either party or their predecessors in interest. (12) That the predecessors of plaintiffs and defendants did not agree that the fence was to be the mutual boundary line. The Heriots would have us treat these findings as verities because the Lewises did not refer to them by number or set them out verbatim in their assignments of error as required by RAP 10.3(g). It is clear, however, from the assignments of error which findings are challenged. Accordingly, we choose to overlook the defect. See Kaufman Bros. Constr., Inc. v. Estate of Olney, 29 Wash. App. 296, 299 n. 3, 628 P.2d 838 (1981). Although we will not treat the findings as verities, they must stand if supported by substantial evidence. Copymate Mktg., Ltd. v. Modern Merchandising, Inc., 34 Wash. App. 300, 660 P.2d 332 (1983). We have reviewed the record and conclude that the evidence and reasonable inferences therefrom support the trial court's finding that there was no mutual recognition that the fence was the true boundary line. A reasonable synopsis of the evidence is found in the trial judge's memorandum opinion. The fence was considered by Gundersons to be the property line, though there is no showing the land to be fenced on the east was treated by Seabloom as Gundersons' land, or that Seabloom considered the fence to be the true boundary line ... 501 The proof in this case shows only the subjective intent of defendants' predecessor. There is little or no reference to the acts of Seabloom; there is no reference to any agreement by him or knowledge by him that the fence was a boundary line. His conduct, in view of the brushy property, is inconclusive to establish acquiescence. Acquiescence in a property line cannot be established by the unilateral acts of one party. Houplin v. Stoen, 72 Wash. 2d 131, 431 P.2d 998 (1967). Accordingly, the Lewises' first assignment of error is without merit. [4] If the evidence is insufficient to fix the old fence line as a boundary by acquiescence, the Lewises urge us to hold that they and their predecessors in interest have been in adverse possession of the disputed property for the statutory period. Possession of property for the statutory period (10 years) ripens into title only if the possession was (1) open and notorious, (2) actual and uninterrupted, (3) hostile, and (4) exclusive and under a claim made in good faith. Peeples v. Port of Bellingham, 93 Wash. 2d 766, 613 P.2d 1128 (1980). See also Stoebuck, Adverse Possession, 35 Wash. L. Rev. 53 (1960). On review, "adverse possession is a mixed question of law and fact. Whether the essential facts exist is for the trier of fact; but whether the facts, as found, constitute adverse possession is for the court to determine as a matter of law." Peeples v. Port of Bellingham, supra at 771. [5] The trial court rejected the Lewises' claim of adverse possession because, in the trial judge's opinion, there was no actual possession of the disputed property. Our review of the undisputed evidence in the record convinces us that the trial judge construed the element of "actual possession" too narrowly. Unfortunately for the Lewises, the findings of fact do not reflect the evidence necessary to support their claim. We, of course, are not a factfinding body. Certainly we cannot disregard findings supported by substantial evidence. Can this court, however, search the record for facts to supplement the trial court's findings? Ordinarily, this, too, is not a proper function of an appellate court. Old 502 Windmill Ranch v. Smotherman, 69 Wash. 2d 383, 418 P.2d 720 (1966). We will not, however, remand for further factfinding when to do so would be a useless act, e.g., where there is undisputed, competent evidence in the record supporting a party's claim. State v. Mecca Twin Theater & Film Exch., Inc., 82 Wash. 2d 87, 507 P.2d 1165 (1973); Cogswell v. Cogswell, 50 Wash. 2d 597, 313 P.2d 364 (1957); Seattle Flight Serv., Inc. v. Auburn, 24 Wash. App. 749, 604 P.2d 975 (1979); LaHue v. Keystone Inv. Co., 6 Wash. App. 765, 496 P.2d 343 (1972); see also Schoonover v. Carpet World, Inc., 91 Wash. 2d 173, 588 P.2d 729 (1978); Chmela v. Department of Motor Vehicles, 88 Wash. 2d 385, 561 P.2d 1085 (1977) (administrative law context). We hasten to add that undisputed evidence is not synonymous with uncontradicted evidence. This court cannot add to a trial court's findings of fact merely because a fact was testified to and was not directly contradicted by another witness. By "undisputed" fact we mean a fact disclosed in the record or pleadings that the party against whom the fact is to operate either has admitted or has conceded to be undisputed. Yale Univ. v. New Haven, 169 Conn. 454, 363 A.2d 1108 (1975). Turning to the verbatim report of proceedings we find the following testimony by Mr. Heriot: Q. Mr. Heriot, when did you purchase the property from the Seablooms? A. I believe it was around 1960 in the middle sixties. The exact year, I can't remember it offhand. Q. You were aware of the lawsuit between the Seablooms and Gundersons? A. Yes. Q. So you had actual knowledge there was some apparent dispute at that time, is that correct? A. Yes. Q. You were also aware, were you not, that the fence line and those fence posts were there at the time you purchased the property from the Seablooms? A. Yes. 503 Q. So for 15 years now you've been aware of the fact that Mrs. Gunderson considered that to be the line, is that correct? A. Well, no, that is not correct. I did something about it. When I purchased that property from Gus, he told me where he thought his line was. I went down there with him and we put some fence posts in on the line that he thought was his. The next morning, the fence posts were gone that we put in. That is, I believe, what Mrs. Gunderson is referring to as removing posts. We were putting posts in. Q. Those four posts that have been testified to here today were there in the middle sixties when you purchased the property, is that correct? A. As far as I know, yes. Q. You were aware at the time you purchased the property that Mrs. Gunderson considered those four posts to be the boundary? That's a true statement? A. I understood what she said that that was her line. Q. You actually sat in on part of the trial, didn't you? A. No. Q. You were aware of what was going on, is that correct? A. I was aware of the trial. Q. And aware there was a dispute about the line? A. Yes. Q. Is your you knew that those four fence posts were there in the middle sixties when you purchased the property, and you didn't do anything until you filed this lawsuit, is that correct? A. Like I said, I tried to do something, but everytime we tried to put the fence line where I thought I had purchased, the fence posts were pulled out. Q. You only did that one time? A. No, no. Twice. Q. Would that be in the middle sixties? A. That would be just prior to the suit that they went to court over. Q. That would have been prior to 1965? A. Yes. Q. From '65 until you filed this lawsuit, during that period of time, you didn't do anything? A. No. Q. During that time you were aware of the fact that Mrs. Gunderson considered that to be the line? 504 A. Yes. In response to his own attorney's question, Mr. Heriot also testified as follows: Q. You heard Lewis testify that he brushed it out once a year. Did you see evidence of that? A. I've seen evidence of it being brushed out, but whether it was once a year, I don't know. Moreover, Mr. Heriot introduced as an exhibit a survey conducted in December 1979 which acknowledged the presence of the four cedar posts set in 1933. From Mr. Heriot's own testimony and exhibits, the following facts are established as a matter of law: 1. A fence set in 1933 was in existence in the disputed area between 1965 and December 1979. 2. Mr. Heriot knew that Mrs. Gunderson and her successors in interest, the Lewises, considered the old fence to be the boundary. 3. On two occasions Mr. Heriot set fence posts east of the old fence and on both occasions the posts were removed at Mrs. Gunderson's direction. 4. The Lewises cleared brush up to the fence line. [6, 7] We review the facts as found by the trial court, and those established by undisputed evidence, mindful that "what constitutes possession or occupancy of property for purposes of adverse possession necessarily depends to a great extent upon the nature, character, and locality of the property involved and the uses to which it is ordinarily adapted or applied." Frolund v. Frankland, 71 Wash. 2d 812, 817, 431 P.2d 188 (1967); Howard v. Kunto, 3 Wash. App. 393, 477 P.2d 210 (1970). Accordingly, the claimant need only demonstrate use of the same character that a true owner might make of the property considering its nature and location. Frolund v. Frankland, supra. Acts of actual possession serve two purposes. First, actual possession gives the claimant a stake in the property. Second, acts of possession raise the "flag of hostile possession," putting the true owner on notice of the adverse claim. Mr. Heriot conceded that he was well aware of his neighbor's 505 adverse claim. Thus, the essential issue here is whether the Gundersons and Lewises had possession sufficient to give them a stake in the property. We consider first Mrs. Gunderson's acts of possession. The land in dispute is located at the edge of Mrs. Gunderson's property and is overgrown with berry vines. Considering the nature and character of the land, a rightful owner might very well make little active use of such property. Indeed, the one distinctive act of dominion and control that a true owner could assert over such property is to exclude others. On two occasions Heriot encroached upon the land claimed by Mrs. Gunderson by setting posts in the ground east of the old fence line. On both occasions his posts were swiftly removed. The ejectment of intruders is an act both characteristic and indicative of the dominion and control a true owner might exercise over the property, considering its nature and location. Accordingly, we hold that Mrs. Gunderson demonstrated sufficient acts of possession to satisfy the "actual possession" element of adverse possession. Turning to the Lewises, we note that they are in privity of title with their predecessor in interest. Thus, they are entitled to tack their period of possession to that of Mrs. Gunderson. See El Cerrito, Inc. v. Ryndak, 60 Wash. 2d 847, 376 P.2d 528 (1962); Howard v. Kunto, supra. The Lewises kept the brush cleared to the old fence line. Such acts are customarily considered sufficient to constitute possession of land of the character in dispute here. If one asserting ownership of a vacant lot goes on it at reasonable intervals, marks its limits or corners with visible monuments, clears it of brush, grass, and weeds to the limits so indicated, and points it out as his property to his neighbors and friends, it constitutes adverse possession within the meaning of the law. 2 C.J.S. Adverse Possession § 42 (1972). We are particularly comfortable with our holding that the Lewises' acts of possession were sufficient in light of the fact that Heriot was well aware of his neighbor's adverse claim. See Stoebuck, Adverse Possession, 35 Wash. L. Rev. 53, 71 (1960). *506 In sum, the facts as found by the trial court, when coupled with other undisputed evidence, establish the Lewises' claim of adverse possession as a matter of law at least as to the disputed area located north of SR 401. The old fence lies entirely north of the highway. The facts fail to support the Lewises' claim to the disputed area south of SR 401. Accordingly, the trial court is reversed and title to the disputed strip located north of SR 401 is quieted in the name of the Lewises. As to the disputed area located south of the highway, the trial court is affirmed. WORSWICK, A.C.J., and PETRIE, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615092/	668 P.2d 1018 (1983) 105 Idaho 287 STATE of Idaho, Plaintiff-Appellant, v. Lester GISSEL, Conrad Gissel and Dave Lewis, Defendants-Respondents. No. 13921. Court of Appeals of Idaho. August 10, 1983. Petition for Review Denied October 5, 1983. 1019 David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-appellant. Thomas A. Mitchell, Coeur d' Alene, for defendants-respondents. This Opinion Supersedes the Court's Prior Opinion Issued March 8, 1983, which is Withdrawn. WALTERS, Chief Judge. This is an appeal by the state from an order of the district court reversing judgments of conviction for criminal trespass, entered upon jury verdicts in the magistrate division. On appeal from the magistrate court, the district court held the evidence insufficient to show malice, as required by the trespass statute. The state contends the district court's order must be reversed for two reasons. First, the state asserts the district court was without jurisdiction to consider the appeal from the magistrate's court because the notices of appeal from the magistrate division were prematurely filed. Second, the state argues that if the district court had appellate jurisdiction, it erred by holding the evidence insufficient. In an earlier opinion in this case we agreed with the state on its first point and we held that the district court was without jurisdiction to hear the appeal from the magistrate's division. We did not address the appeal on its merits. Having been requested, by a petition for rehearing, to further review the matter, however, we now hold that the district court was vested with jurisdiction; and we therefore have withdrawn our earlier opinion. Addressing the merits, we further hold the district court erred in setting aside the jury's verdicts and in reversing the convictions. I. Proceedings in Magistrate Division. Lester Gissel, Conrad Gissel and Dave Lewis were charged with misdemeanor offenses of trespass. The charges arose from alleged harvesting and removal of "wild rice" from property managed by the Idaho Fish and Game Department. The defendants were tried jointly before a jury; and verdicts of guilty were returned on November 20, 1979, against all three defendants. When the verdicts were returned, the magistrate announced in open court that "it is the judgment of the court that the defendants are guilty." The magistrate continued the matter to November 29 for sentencing. The defendants filed motions for new trial. These motions were heard and denied by the magistrate in open court on November 1020 29. The magistrate then proceeded to sentence the defendants upon the trespass offenses. Each defendant was fined $300 plus $10 in court costs. At the conclusion of the sentencing proceeding, the defendants filed written notices of appeal to the district court. The notices stated that the defendants were appealing from "that certain judgment of conviction entered herein on or about the 20th day of November, 1979." However, it was not until December 3, 1979, that the magistrate signed written judgments of conviction, reciting the adjudications of guilt and the fines imposed. II. Jurisdiction of District Court. We first address the effect of filing the notices of appeal before the judgments were signed by the magistrate and entered by the clerk. There appear to be two lines of authority on this issue; and both depend largely upon the appellate rules found in the respective jurisdictions. One line of authority holds that where a notice of appeal is filed prematurely, i.e., after oral pronouncement of a judgment but before a written judgment is filed, the appeal is not subject to dismissal. Rather, the notice remains in a "state of limbo" until the judgment is filed. Under this view, when the written judgment subsequently is entered the notice of appeal "matures" and vests jurisdiction in the appellate court. See e.g., United States v. Moore, 616 F.2d 1030 (7th Cir.1980); United States v. Thoreen, 653 F.2d 1332 (9th Cir.1981); Williams v. State, 324 So. 2d 74 (Fla. 1975); Cunningham v. State, 232 Ga. 416, 207 S.E.2d 48 (1974); People v. Allen, 71 Ill. 2d 378, 16 Ill. Dec. 941, 375 N.E.2d 1283 (1978); State v. Willette, 402 A.2d 476 (Me. 1979); State v. Wilke, 560 S.W.2d 601 (Mo. Ct. App. 1978); State v. Tripodo, 50 Ohio St. 2d 124, 363 N.E.2d 719 (1977); State v. Garvey, 283 N.W.2d 153 (N.D. 1979); Mayfield v. State, 627 S.W.2d 474 (Tex. App. 13 Dist. 1981). The other line of authority holds that, in the absence of an express statute or rule, no appeal will lie from anything other than a formal written order or judgment signed by the judge and filed in the case or entered upon the records of the court and signed by the judge thereof. See State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961), citing State v. McClain, 186 Tenn. 401, 210 S.W.2d 680 (1948) and State v. Thorne, 39 Wash.2d 63, 234 P.2d 528 (1951). See also United States v. Mathews, 462 F.2d 182 (3rd Cir.1972); State v. Johnson, 18 Ariz. App. 474, 503 P.2d 829 (1973); People v. Burns, 152 Cal. App. 2d 329, 314 P.2d 79 (1957); People v. Bowman, 132 Cal. App. Supp.2d 915, 282 P.2d 1042 (1955); State v. Bulgo, 45 Haw. 501, 370 P.2d 480 (Hawaii 1962); People v. Boston, 27 Ill. App. 3d 246, 327 N.E.2d 40 (1975), but compare People v. Allen, 71 Ill. 2d 378, 16 Ill. Dec. 941, 375 N.E.2d 1283 (1978); State v. Hendel, 468 S.W.2d 664 (Mo. Ct. App. 1971), but compare, State v. Wilke, 560 S.W.2d 601 (Mo. Ct. App. 1978); State v. Gonzales, 79 N.M. 414, 444 P.2d 599 (Ct.App. 1968); State v. Phillips, 78 N.M. 405, 432 P.2d 116 (Ct. App. 1967); Allgood v. State, 78 Nev. 326, 372 P.2d 466 (1962); Gordon v. State, 627 S.W.2d 708 (Tex. Crim. App. 1982), but compare Mayfield v. State, 627 S.W.2d 474 (Tex. App. 13 Dist. 1981); Jackson v. State, 547 P.2d 1203 (Wyo. 1976). Under this latter view, a premature notice of appeal, filed before the subsequent entry of a formal written order or judgment, is ineffective to vest the appellate court with jurisdiction, and the appeal must be dismissed. Prior case law in Idaho supports the proposition that a premature notice of appeal is a nullity and does not vest jurisdiction in the appellate court, notwithstanding a subsequently entered written judgment. In State v. Barnard, 13 Idaho 439, 90 P. 1 (1907) our Supreme Court dismissed an appeal from the district court because no judgment yet had been entered by the district court from which an appeal could be taken. In State v. Mason, 102 Idaho 866, 643 P.2d 78 (1982), a decision of the district court, which had been rendered on appeal from the magistrate division, was vacated by our Supreme Court because the judgment of the magistrate had not been included in the record on appeal. The Court held that, without such a judgment, the appellate 1021 jurisdiction of the district court was not established. Numerous civil cases in Idaho hold that a premature notice of appeal is ineffective to vest jurisdiction on appeal. See Kraft v. State, 99 Idaho 214, 579 P.2d 1197 (1978) (notice of appeal filed before written findings of fact, conclusions of law or judgment was entered; appeal dismissed as premature); Hamblen v. Goff, 90 Idaho 180, 409 P.2d 429 (1965) (written judgment filed subsequent to notice of appeal; appeal dismissed for lack of appellate jurisdiction); Heidemann v. Krueger, 66 Idaho 612, 164 P.2d 591 (1945) (order of dismissal of appeal by district court from probate court affirmed, where judgment of probate court was entered in the docket subsequent to the notice of appeal to district court); Haddock v. Jackson, 51 Idaho 560, 8 P.2d 279 (1932) (cause remanded to district court with instructions to dismiss appeal from probate court because notice of appeal to district court was filed before written judgment had been entered in probate court docket); First National Bank of Pocatello v. Poling, 42 Idaho 636, 248 P. 19 (1926) (appeal from oral decision dismissed, in absence of judgment, order or decree entered in permanent form in the record); Dalton v. Abercrombie, 35 Idaho 290, 206 P. 1051 (1922) (order of dismissal by district court, of appeal taken from justice of peace court, affirmed, where notice of appeal to district court was filed before a formal judgment was entered on the docket of the justice's court); and Goade v. Gossett, 35 Idaho 84, 204 P. 670 (1922) (appeal from order denying new trial dismissed where notice of appeal was filed prior to entry of the written order denying motion for new trial). Most of these cases were decided when the courts below the district court level in Idaho were not courts of record. No record was required to be maintained of oral rulings, pronouncements or decisions made by such courts. With the advent of the magistrate division system, however, those courts became courts of record. Electronic recordings and minute records of proceedings in those courts are now maintained, thereby preserving oral rulings of the lower courts. Nevertheless, in our first opinion in the present case, we deemed ourselves constrained to follow the pattern of Idaho authority, holding a premature appeal to be a nullity. However, while the petition for rehearing was pending in this case, our Supreme Court amended Idaho Appellate Rule 17, effective July 1, 1983. The amendment, 17(e)(2), provides: Premature Filing of Notice of Appeal. A notice of appeal filed from an appealable judgment, order or decree before formal written entry of such document shall become valid upon the filing and the placing the stamp of the clerk of the court on such appealable judgment, order or decree, without refiling the notice of appeal. This amendment clearly falls in line with the authorities from other jurisdictions which recognize that a premature notice of appeal filed after pronouncement of an otherwise appealable decision but before entry of a written order, decree or judgment is not a nullity but is held in abeyance and matures upon filing by the clerk of a formal written judgment, order or decree. The approach reflected by this amendment is a diametric change from the earlier decisions of our Supreme Court concerning premature notices of appeal. It indicates to us a policy of judicial fairness, preserving appeals for determination on their merits rather than penalizing litigants for their eagerness in seeking appellate review. We believe the adoption of this amendment affords us the freedom in this case to decide that the premature notices of appeal to the district court matured and validly vested jurisdiction in that court, upon entry of record of the written judgments of conviction in the magistrate division. We do this, not by applying the amendment to this case, but by applying the enlightened concept reflected by the amendment. We hold that the district court did have jurisdiction to hear the appeal. 1022 III. Sufficiency of the Evidence to Support the Verdicts. We turn next to the merits of the appeal from the district court, addressing the question of whether the district judge erred in holding the evidence insufficient to support the jury's verdicts. Under the then existing rule 18, Idaho Criminal Appellate Rules (rescinded effective July 1, 1980), the district court, on an appeal from the magistrate division, was empowered as follows: The district court may reverse, affirm, modify the judgment or order appealed from or grant a trial de novo in the district court and may set aside, affirm or modify any or all proceedings subsequent to or dependent upon such judgment or order and may, if proper, order a new trial in the magistrates division of the district court from which the appeal was taken. In their statement of issues to be considered on appeal to the district court, the defendants raised a number of evidentiary and procedural errors allegedly occurring at the trial. Of these issues, the district court addressed, and determined the appeals on, but one issue whether the evidence, admitted at trial, was sufficient to justify a finding that the defendants acted "maliciously," as that term was statutorily defined and included in the crime of trespass. The defendants were charged with criminal trespass under I.C. § 18-7008(3). That section provides: Every person who wilfully commits any trespass by . .. [m]aliciously injuring or severing from the freehold of another, anything attached thereto, or the produce thereof ... [i]s guilty of a misdemeanor. The terms "wilfully" and "maliciously" are defined in I.C. § 18-101. The statute states: The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word "wilfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage. ..... 4. The words "malice," and "maliciously," import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof, or presumption of law... . On this appeal, the state attacks the district court's reversal of the verdicts and judgments in three respects. It argues that the district court did not view the evidence in the light most favorable to the state. Next, it urges the district judge committed error by substituting his own opinion on the evidence for that of the jury. Finally, the state asserts that there was substantial competent evidence to support the jury verdict. We agree with the state on each of these points. The question whether an act was committed with malice or whether a person was actuated by malice is ordinarily a question for the jury, as the triers of fact, to be determined in the light of all the surrounding facts and circumstances which tend to establish or dispute the existence of malice. See generally, cases cited at 52 Am.Jur.2d, Malice, § 6 pp. 166-167 (1970): A question for the jury is presented where there is evidence tending to show malice, or where there may be a fair difference of opinion on the issue of malice. The weight to be given an inference of malice is for the jury to determine... . ... Assuming there is some evidence to substantiate a claim of malice, the determination of the question of malice in criminal prosecutions ... is to be made by the jury upon a consideration of all the facts and circumstances bearing upon the issue of malice. The court has no right to withdraw the question from the jury by assuming to draw the proper inferences from the facts proved, as presumption of law... . 1023 Functioning as an appellate court on review, the district court was subject to several well settled rules. ... We have consistently held that where the verdict of conviction is supported by substantial, competent, though conflicting evidence, it will not be disturbed on appeal. [Citations omitted.] The appellate court's function is not to weigh and consider the contradictions and inconsistencies which appellant finds in the testimony, but rather to determine whether there is substantial evidence in support of the verdict of the jury, taking the view of the evidence most favorable to the sustained party. The court's function is not to determine whether on the record reasonable doubt could or would exist. [Citations omitted.] State v. Cypher, 92 Idaho 159, 166-67, 438 P.2d 904, 911-12 (1968). As a corollary, however, where the evidence is insufficient to support a verdict, the verdict and judgment must be set aside. State v. Warden, 97 Idaho 752, 754, 554 P.2d 684, 686 (1976). In reviewing this matter, the district court acknowledged that the word "wilfully," as defined by I.C. § 18-101(1), does not require any intent to violate the law or to cause injury. The court noted that the word "maliciously," as defined by the statute required an intent to do something more than merely severing from real property something attached thereto. The court determined that the "severing" must be accompanied by a manifested intent to either (1) injure another, or (2) to annoy another, or (3) to do an act known to be prohibited by law. Reviewing the evidence in the case, the court found there was no evidence that the defendants intended to vex, annoy, or injure the Idaho Fish and Game Department or the State of Idaho. The court also stated "[n]or can it be said that they [the defendants] knew the acts were illegal or even wrong. Every act on the part of the Defendants indicates that they harvested the rice involved with a belief that they were doing only what was permitted." We believe the district court erred in arriving at this latter conclusion, while performing its function as an appellate court. It is clear from the evidence that the rice belonged to the State of Idaho and was growing in an area managed by the Fish and Game Department. It did not belong to the defendants. One of the defendants was a former employee of the department, with knowledge that the rice was raised as cover, habitat and feed for migratory waterfowl. Evidence was also presented that the defendants did not have express permission from any entity to harvest the rice. It reasonably could be inferred from this evidence that the defendants knew they were committing a wrongful act i.e., taking, without permission, property belonging to someone other than themselves. The drawing of such an inference properly would be within the province of the jury, not the court, in deciding whether, as a matter of fact, the conduct of the defendants was "malicious" under the trespass statute. By rendering verdicts of guilty, in light of the inferences which could be drawn from the evidence, the jury could, and did, find the element of malice was proven. Viewing the evidence in the light most favorable to the state (the sustained party in this instance), and allowing the jury to draw all reasonable inferences therefrom, and declining to substitute our judgment as to the credibility of the witnesses and the weight to be given to their testimony, we conclude there was substantial, competent evidence to support the jury's verdicts. We hold the district court erred in ruling that the evidence was insufficient, on the question of whether the malice element was proved, to support the verdicts. IV. On Remand. In the appeal before the district court, the defendants asserted that other errors were committed by the magistrate during the trial. They questioned the admission of evidence which allegedly was hearsay or which was incompetent, irrelevant, or immaterial. 1024 They contended that improper and inflammatory argument was made by counsel for the state. They argued that the magistrate erred in not dismissing the case at the close of the state's evidence, or at the close of all of the evidence. They claimed the trial court erred in not granting a new trial. They asserted that the magistrate lacked jurisdiction over the subject matter of the suit. And they contended "the complaint failed to state a crime." As noted earlier, the district court reversed the judgments of conviction solely on the basis that the evidence was insufficient to support the verdicts. Because of that determination, the court concluded it was unnecessary to address the other issues raised by the appeals. On remand those other issues should be addressed by the court. Disposition of the appeals should be made pursuant to the present rule governing appeals from magistrate division to the district court in criminal cases, I.C.R. 54, unless the district court finds that the application of that rule would prejudice the rights of any party. See I.C.R. 59. The order appealed from is reversed and the matter remanded for further proceedings consistent herewith. SWANSTROM and BURNETT, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1647983/	9 So. 3d 577 (2007) JOHN WINDON MANLEY v. STATE. No. CR-05-1268. Court of Criminal Appeals of Alabama. May 18, 2007. Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601688/	228 P.3d 1237 (2010) 234 Or. App. 595 VENTRIS v. HOWTON. A138525. Court of Appeals of Oregon. March 31, 2010. Affirmed without opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1205295/	920 P.2d 1223 (1996) 83 Wash.App. 149 Heidi Sue COOK, a single woman, and Marilyn Keeton and Ronald Keeton, husband and wife, Appellants, v. Jerome EVANSON and Jane Doe Evanson, husband and wife, d/b/a Adnil Design Contractor, Defendants, American States Insurance Company, Respondent. No. 35941-0-I. Court of Appeals of Washington, Division 1. August 19, 1996. 1224 Breean Lawrence Beggs, Bellingham, for appellants. Mary R. DeYoung, Peter M. Fabish, Seattle, for respondents. 1225 WEBSTER, Judge. Appellants Heidi Cook and Marilyn Keeton sustained respiratory injuries from exposure to fumes from a concrete sealant negligently applied by Adnil Design Contractor (Adnil). At issue is whether a pollution exclusion clause in Adnil's commercial liability policy precludes coverage for the injuries. Because the exclusion clause unambiguously covers the injuries, we affirm the summary judgment order in favor of Adnil's insurer, American States Insurance Company. FACTS Adnil contracted to pressure wash and apply a sealant known as White Roc 10 to the exterior of the building where appellants worked. The contractors did not seal off a six- by eight-foot fresh air intake, which drew air into the building's HVAC system. White Roc 10 fumes entered the building, requiring evacuation. The appellants suffered serious respiratory damage when the fumes entered their workspaces. The Material Safety Data Sheet describes White Roc 10 as a "[r]espiratory irritant." The manufacturer's information also warns that the product may cause respiratory irritation, among other problems, and that the vapor should not be inhaled. Use of the product requires adequate ventilation and equipment, including an approved organic vapor respirator. Adnil's employees covered their faces with Vaseline and wore coveralls, gloves, hats, boots, and respirators while using the product. Adnil had a commercial general liability policy through American States. Jerome Evanson, Adnil's vice president, did not read the policy or inquire whether it would cover specific types of injuries. In a deposition, he indicated that his goal was to obtain the least expensive coverage that would satisfy the state's licensing requirements. The appellants sued Adnil's owners, Jerome and Linda Evanson, for damages sustained when Adnil "negligently allowed toxic vapors from the White Roc 10[to] enter the HVAC system." They obtained default judgments totaling $392,725.06 when the Evansons failed to appear. They then commenced an action against American States to collect on the judgment. The appellants and American States both moved for summary judgment on the single question of whether a pollution exclusion clause in Adnil's liability policy precluded coverage. The trial court determined that the injuries fell within the exclusion and granted American States's motion for summary judgment. DISCUSSION Pollution Exclusion Clause Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review summary judgment orders de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wash.2d 715, 722, 853 P.2d 1373 (1993). The interpretation of insurance policies is a question of law. American Star Ins. v. Grice, 121 Wash.2d 869, 874, 854 P.2d 622 (1993). When the language is clear and unambiguous, we must enforce the contract as written. McMahan & Baker, Inc. v. Continental Casualty, 68 Wash.App. 573, 578, 843 P.2d 1133 (1993). A policy is ambiguous if the language, on its face, is fairly susceptible to two different reasonable interpretations. Greer v. Northwestern Nat'l Ins., 109 Wash.2d 191, 200, 743 P.2d 1244 (1987). We interpret insurance policies as the average person would and give undefined terms their plain, ordinary, and popular meaning. Queen City Farms v. Central Nat'l Ins., 126 Wash.2d 50, 77, 882 P.2d 703 (1994). We also give policies a practical and reasonable interpretation, not one that would lead to absurd results. McMahan & Baker, 68 Wash.App. at 578, 843 P.2d 1133. In doing so, it is appropriate to consider that the average purchaser of a comprehensive general liability policy would expect broad coverage for liability arising from business operations. See Queen City, 126 Wash.2d at 78, 882 P.2d 703. An insurer may limit its liability so long as it does so with clear language. Teague Motor v. Federated Serv. Ins., 73 Wash.App. 479, 484, 869 P.2d 1130 1226 (1994). Accordingly, we construe exclusionary clauses narrowly. McMahan & Baker, 68 Wash.App. at 578, 843 P.2d 1133. Applying these rules of construction, the question here is whether an average person would understand that the pollution exclusion clause unambiguously denied coverage for the appellants' injuries. See American Star, 121 Wash.2d at 875, 854 P.2d 622. Adnil's policy excludes coverage for injuries arising out of the discharge, dispersal, or release of "pollutants": 2. Exclusions This insurance does not apply to: .... f. (1) "Bodily injury" or "property damage" arising out of actual, alleged or threatened discharge, dispersal, release or escape of pollutants: .... (d) At or from any site or location on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations: (i) if the pollutants are brought on or to the site or location in connection with such operations[.] (emphasis added). The policy defines "pollutants" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." (emphasis added). This language is not ambiguous on its face as there are not two reasonable interpretations. White Roc 10's product literature describes it as an irritant and a vapor. Appellants themselves alleged that "toxic vapors" caused their injuries. White Roc 10 meets the definition of a "pollutant" and the appellants' injuries fall squarely within the pollution exclusion clause. The appellants contend that this interpretation leads to an absurd result because it precludes coverage for routine workplace torts and that the policy language is ambiguous when applied to traditional tort situations. But they do not identify an ambiguity in the policy's plain language. They suggest that we interpret the clause to apply to traditional environmental pollution but not to injuries arising from business operations. This might be a reasonable interpretation if the policy simply precluded coverage for "pollution." Here, however, it specifically defines "pollutants." The exclusion makes no exception for pollutants used in the insured's business operations. Nor does the exclusion limit its application to classic environmental pollution. In fact, the exclusion specifically applies to injuries at the insured's work site if the injuring pollutants are at the site in connection with the insured's operations. It is difficult to imagine why an insured would take pollutants to a work site if it did not use them in its business operations. Moreover, a reasonable person would recognize that a chemical product requiring protective gear and proper ventilation could be a pollutant under the policy definition. Absent an ambiguity, we cannot impose limitations on the policy language. Courts in other jurisdictions have reached the same conclusion when applying similar clauses to injuries resulting from an insured's business operations. See, e.g., American States Ins. Co. v. Nethery, 79 F.3d 473 (5th Cir.1996) (pollution exclusion clause precludes claim that fumes from paint and glue inflamed claimant's hypersensitivity to chemicals); Brown v. American Motorists Ins., 930 F. Supp. 207 (E.D.Pa.1996) (fumes from chemical waterproofing sealant applied to exterior of plaintiff's home falls within pollution exclusion clause); Bernhardt v. Hartford Fire Ins. Co., 102 Md.App. 45, 648 A.2d 1047 (1994) (rejecting insured landlord's argument that tenant's carbon monoxide poisoning was covered because it was the kind of accident generally covered by a comprehensive liability policy rather than industrial pollution of the environment), cert. granted, 337 Md. 641, 655 A.2d 400 (1995); Madison Constr. Co. v. Harleysville Mut. Ins. Co., ___ Pa.Super. ___, 678 A.2d 802 (1996) (fumes from commonly used sealant fell within definition of pollutant in pollution exclusion clause). The appellants rely on cases from other jurisdictions in which courts found that the pollution exclusion clause did not apply to routine workplace torts. In Island Associates, Inc. v. Eric Group, Inc., the court found the same clause ambiguous when applied to 1227 an injury from cleaning compound fumes confined to a small area within the worksite. 894 F. Supp. 200, 203 (W.D.Pa.1995). The court found that the fumes fell within a broad reading of the "pollutant" definition, but invoked a "common sense approach." It determined that a reasonable policyholder would not characterize routine accidents in the course of the insured's business as pollution. Id. at 203. The court, however, applied Pennsylvania's reasonable expectation doctrine: when the insurer creates a reasonable expectation of coverage that is not supported by the policy's terms, the expectation will prevail over the policy language. Id. at 202. Washington has never adopted the reasonable expectation policy. Findlay v. United Pac. Ins., 129 Wash.2d 368, 378, 917 P.2d 116 (1996). Rather, we consider how a reasonable person would interpret the policy's language, but do not allow an insured's expectations to override the plain language of the contract. See Queen City, 126 Wash.2d at 78, 882 P.2d 703. The Island Associates court also determined that the terms "irritant" and "contaminant," viewed in isolation, are boundless, because all substances would irritate or damage some person or property. Without a limiting principle, the court feared the clause would extend beyond its intended scope, resulting in absurd results. As an example, the court suggested that the clause would preclude coverage for injuries sustained when a person slips and falls on the spilled contents of a bottle of Drano. Id. at 203 (quoting Pipefitters Welfare Educ. Fund v. Westchester Fire Ins., 976 F.2d 1037, 1043 (7th Cir.1992)). Because the injuries in this case fall within the plain language of the pollution exclusion clause, we decline to find an ambiguity based on the clause's application to hypothetical cases. The appellants also cite West American Insurance v. Tufco Flooring East, 104 N.C.App. 312, 409 S.E.2d 692 (1991). In that case, fumes damaged chicken stored in the warehouse where Tufco was installing floors. Without identifying a specific ambiguity, the court stated that a reasonable person in Tufco's position would have understood that it had coverage for claims arising in its central activity. Id. at 321, 409 S.E.2d 692. Ignoring the policy's definition of pollutants, the court stated that Tufco understood pollutants to mean "unwanted impurity." Id. at 322, 409 S.E.2d 692. In this case, we will not similarly ignore the policy's unambiguous language. Appellants contend that the drafting history of the pollution exclusion clause, discussed in opinions from other jurisdictions, supports limiting the clause to environmental pollution cases. A party can present drafting history to assist in determining a reasonable construction after the court finds a clause ambiguous. Queen City, 126 Wash.2d at 87, 882 P.2d 703. We cannot use the drafting history to find the clause ambiguous, however. Appellants contend for the first time on appeal that the pollution exclusion clause violates public policy because it is in derogation of the contractor's statutory financial responsibility requirements. Matters not raised in the trial court are not considered on appeal. RAP 9.12; see also Nelson v. McGoldrick, 127 Wash.2d 124, 140, 896 P.2d 1258 (1995). Because the appellants' injuries fall within the pollution exclusion clause, they are not entitled to recover from American States and we affirm the summary judgment order. Attorney Fees A party may recover attorney fees and costs on appeal only when granted by applicable law. See RAP 18.1(a). American States requests attorney fees pursuant to RCW 6.27.230. That statute provides fees to the prevailing party when an answer to a writ of garnishment is controverted. Caplan v. Sullivan, 37 Wash.App. 289, 294-95, 679 P.2d 949 (1984). Because the record contains no documentation of the filing of a garnishment action, we can only speculate that this action arose in contravention of a garnishment answer.[1] Thus, we do not *1228 award fees because American States has not demonstrated that an applicable law entitles it to a recovery. We affirm. KENNEDY, Acting C.J., and ELLINGTON, J., concur. NOTES [1] Presumably, appellants applied for a writ of garnishment against American States (the garnishee) for the funds owed to them by Adnil under the judgment. See RCW 6.27.060. American States likely submitted an answer stating that it owed no compensation to Adnil that appellants could garnish. See RCW 6.27.190. Then, appellants presumably filed an affidavit controverting American States's answer, presenting the legal question at issue here as to whether the pollution exclusion clause precludes coverage.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608568/	94 Wash. 2d 860 (1980) 621 P.2d 143 THE STATE OF WASHINGTON, Respondent, v. ROBERT W. ALLEN, Appellant, GREGORY LAMONT CASTERLOW, Petitioner. No. 46646. The Supreme Court of Washington, En Banc. December 18, 1980. Gregory L. Lewis, Sinnitt, Teitge, Sinnitt, Inc., P.S., and Carl D. Teitge, for petitioner. Don Herron, Prosecuting Attorney, and Michael R. Johnson, Deputy, for respondent. 861 STAFFORD, J. Gregory Casterlow and codefendant Robert Allen were convicted of first degree robbery and first degree kidnapping. The convictions were affirmed in an unpublished opinion by the Court of Appeals. Casterlow's petition for review was granted. We affirm the Court of Appeals. At approximately 3 a.m. on August 19, 1977, Daniel Rodriguez, a Stop-and-Go Store employee, was sweeping doormats in front of the store. No customers were present at the time. Defendants stopped their automobile in front of the store and the passenger asked Rodriguez to come to the car. As he approached the car, the passenger pointed a rifle at him, told him it was a "holdup" and directed him to get into the back seat. Rodriguez complied. Upon his entering the car the passenger asked Rodriguez how to operate the store's cash register and received instructions. Thereafter, the passenger gave his rifle to the driver and went into the unoccupied store. The driver ordered Rodriguez to lie down with his face toward the back so they could not be observed. He threatened Rodriguez with the comment that "if [he] hadn't told him exactly how to operate, [he] would be going all the way with them." The passenger returned in one or two minutes, demanded further instructions as to the operation of the cash register and thereafter returned to the store. Subsequently, the passenger returned to the car with the cash register drawer, placed it on the front seat and again took possession of the rifle. The passenger pointed the rifle at Rodriguez, telling him to keep his face down and added that they were going to take him on a small trip. Thereafter they drove approximately two blocks to a side street, drove down another block and stopped. Rodriguez was told to get out, start running back to the store and not to look back. Rodriguez did as he was told. Shortly thereafter defendants Casterlow and Allen were arrested and each was charged with one count of first degree robbery and a second count of first degree kidnapping. A jury convicted each defendant on both counts. After 862 an unsuccessful appeal to the Court of Appeals, this court was petitioned for review of the following issues: (1) failure of the trial court to dismiss the kidnapping charge; (2) failure of the trial court to give defendants' supplemental instruction No. 2; and (3) preservation of witness Rodriguez' testimony on video tape later shown to the jury. I Whether the trial court erred in refusing to dismiss the first degree kidnapping charge. Petitioner argues that the trial court should have dismissed the first degree kidnapping charge (hereinafter kidnapping) asserting the elements of proof that would support a conviction under RCW 9A.40.010 and .020 are the same as those which would constitute first degree robbery (hereinafter robbery) under RCW 9A.56.190 and .200. It is urged that, at best, the kidnapping was only incidental to the robbery and thus the kidnapping charge was duplicitous. We do not agree with the contention and affirm the Court of Appeals. RCW 9A.56.190 and .200 define robbery as follows: 9A.56.190 ... A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. 9A.56.200 ... (1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he: (a) Is armed with a deadly weapon; or (b) Displays what appears to be a firearm or other deadly weapon; or (c) Inflicts bodily injury. RCW 9A.40.020 and .010 define kidnapping as follows: 863 Kidnaping in the first degree. (1) A person is guilty of kidnaping in the first degree if he intentionally abducts another person with intent: ... (b) To facilitate commission of any felony or flight thereafter ... (Italics ours.) 9A.40.010 Definitions. The following definitions apply in this chapter: (1) "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, ... (2) "Abduct" means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force ... (Italics ours.) A review of the foregoing statutes makes it clear robbery and kidnapping require different elements of proof. As applied to the facts of this case, robbery requires (1) a taking of personal property, (2) from the person or in one's presence, (3) by the use or threatened use of force, or violence or fear of injury, (4) such force or fear being used to obtain or retain the property, (5) while armed or displaying a deadly weapon. On the other hand, as applied to the facts of this case, kidnapping involves an abduction to facilitate a subsequent flight from the commission of a felony, said abduction involving: (1) a restriction of a person's movement, (2) without consent, by (3) secreting or holding the victim in a place where he is not likely to be found, or by (4) using or threatening to use deadly force. [1] In the instant robbery the force or fear was employed to obtain personal property (i.e., the money) from Rodriguez. In the subsequent kidnapping the force was used to abduct the victim by secreting him in a place where he was not likely to be found (i.e., lying flat in the back seat of a car) or to facilitate the flight from the scene 864 of the robbery, thus unlawfully restraining or restricting the victim's movement by physical force or intimidation. Once the money had been obtained by force, the robbery was completed. Any incidental abduction or restraint occurring during this short period of time would merge into the robbery as a matter of law. State v. Johnson, 92 Wash. 2d 671, 676, 600 P.2d 1249 (1979). "[T]he mere incidental restraint and movement of a victim which might occur during the course of a [crime] are not, standing alone, indicia of a true kidnapping." State v. Green, 94 Wash. 2d 216, 227, 616 P.2d 628 (1980). A kidnapping which occurred thereafter would be a wholly separate event, however. Neither the flight from the scene of the robbery nor the means of flight therefrom was statutorily or logically a part of the robbery. We are aware of no case which supports the unique theory that a felon is entitled, as a part of the criminal act, to escape from the scene of the crime. Most certainly it is not an element of the crime of robbery. Thus, the kidnapping involved in the instant case was not incidental to, a part of, or coexistent with the robbery. The first crime (robbery) had come to an end before the second crime (kidnapping) began. We do not hold that under other facts a kidnapping may not be incidental to or merged with robbery or some other felony.[1] We hold only that under the facts of this case the kidnapping and the robbery occurred as separate events, albeit close in time, and that the subsequent kidnapping was neither incidental to nor merged with the robbery. We hold the trial court did not err by refusing to dismiss the kidnapping charge. 865 II Whether the trial court erred by refusing to give petitioner's supplemental proposed instruction No. 2. Petitioner contends the trial court erred by failing to give his supplemental proposed instruction No. 2 which reads: Any restraint or abduction that is an integral part of another crime, and is [merely] incidental to the other crime, is insufficient to support a conviction of kidnapping in the first degree. It is urged the requested instruction should have been given because whether the existent restraint or abduction (essential to kidnapping) was incidental to the robbery is a jury question. We do not agree and affirm the Court of Appeals. [2] We recognize an instruction on the theory of "merger" would be proper in some cases.[2] It is not proper, however, to instruct on an issue or theory of law which is not supported by the evidence. State v. Piche, 71 Wash. 2d 583, 588, 430 P.2d 522 (1967). As previously indicated under the facts of this case, there was no merger of the subsequent kidnapping as a matter of law. As we indicated above, there is no evidence in the record other than that the robbery had been committed and completed before the kidnapping took place. The abduction was not merely incidental to the robbery, but was separate and distinct therefrom. The facts of this case fall squarely within the language of RCW 9A.40.020 and .010(1), (2) quoted above. Consequently, it was not error to have refused an instruction on the theory of "merger". III Whether the trial court erred in allowing the testimony of witness Rodriguez to be preserved on video tape and presented to the jury. 866 Petitioner does not challenge the general proposition that deposition may be taken by means of video tape for use in criminal cases. This mode of procedure is authorized by CrR 4.6(a), (c) and CR 30(b)(4). State v. Hewett, 86 Wash. 2d 487, 491, 545 P.2d 1201 (1976). He protests the use of a video tape in this case, however, by asserting the State failed to establish that witness Rodriguez would be unavailable for trial as required by CrR 4.6(d). Prior to authorizing use of a video tape deposition the trial was scheduled for October 5, 1977 (later continued to November 21, 1977). It was also established that witness Rodriguez had received a second lieutenant commission and had been ordered by the Army to report for active duty at Fort Sill, Oklahoma, on September 30, 1977. The trial court concluded there was a sound and legitimate reason for the witness being out of the jurisdiction at the time of trial and made the following findings of fact to which no error was assigned. 1. Daniel C. Rodriguez is a necessary and material witness in this cause, being the victim. 2. Daniel C. Rodriguez will be unavailable at time of trial due to duty with the United States Army, alteration of which would disrupt his military career. 3. The interest of justice will best be served by preserving the testimony of Daniel C. Rodriguez on tape. [3] Petitioner argues that the foregoing was an insufficient showing that the witness could not be in attendance at trial. There was, he contends, no showing of an attempt to have the orders changed. While it is true there was no apparent attempt to have the Army change its orders for the convenience of the court, the record is clear that any delay in reporting for active duty would have caused witness Rodriguez a substantial setback in his Army career, including a 3- to 5-month delay in his specialized training and would have been a detriment to his elevation in rank. The question of "unavailability to testify at trial" is one of fact to be determined by the trial judge. We hold the trial court correctly resolved the issue of availability. A *867 witness (victim) under Army orders to be in another state at the time of trial clearly falls within the ambit of CrR 4.6(d). Cf. State v. Hewett, supra (complaining witness, a ship's officer scheduled to sail for Japan the day after the crime and who was at sea the day of trial, found unavailable); State v. Firven, 22 Wash. App. 703, 591 P.2d 869 (1979) (complaining witnesses, Navy seamen scheduled to ship out prior to trial, found unavailable); see also State v. Roebuck, 75 Wash. 2d 67, 448 P.2d 934 (1968) (complaining witness who became incompetent after his testimony was taken at a preliminary hearing found unavailable). The Court of Appeals is affirmed. UTTER, C.J., and ROSELLINI, BRACHTENBACH, HOROWITZ, DOLLIVER, HICKS, and WILLIAMS, JJ., concur. NOTES [1] See State v. Johnson, 92 Wash. 2d 671, 600 P.2d 1249 (1979), kidnapping merged with rape in the first degree in a situation where the kidnapping did not have an independent purpose or effect. In other words, the force employed in the kidnapping was the same as that which would support the charge of rape. The injury to the victim did not have a separate and distinct existence from and was merely incidental to the crime of which it formed an element. See also State v. Green, 94 Wash. 2d 216, 616 P.2d 628 (1980). [2] An instruction directing the jury to consider only acts occurring after the robbery was completed, in deciding on the kidnapping charge, may be proper in similar cases. We do not decide this issue, however, because such an instruction was neither offered nor argued.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3098016/	Opinion filed April 29, 2010 In The Eleventh Court of Appeals __________ No. 11-10-00108-CR __________ CHARLOTTA PEEBLER, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 217th District Court Angelina County, Texas Trial Court Cause No. CR-28559 MEMORANDUM OPINION Charlotta Peebler has filed in this court a motion to dismiss her appeal. In her motion, she states that she has decided not to pursue this appeal. The motion is signed by both appellant and her counsel. The motion is granted, and the appeal is dismissed. April 29, 2010 PER CURIAM Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2235322/	929 N.E.2d 178 (2006) 367 Ill. App.3d 1114 MOSER v. KIZER. No. 4-06-0195. Appellate Court of Illinois, Fourth District. October 5, 2006. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249575/	272 F.2d 883 Arthur R. WEIR and Quikbrik Company of Chicago, Inc.,Plaintiffs-Appellants,v.CHICAGO PLASTERING INSTITUTE et al., Defendants,-Appellees. No. 12694. United States Court of Appeals Seventh Circuit. Dec. 23, 1959. Kenart M. Rahn, Chicago, Ill., Parkhill, Severns & Stansell, Shicago, Ill., of counsel, for appellants. John L. Vette, William T. Kirby, Thomas M. Thomas, Hugh J. McCarthy, Thomas B. Martineau and John J. Enright, Chicago, Ill., John M. O'Connor, Jr., Chicago, Ill., of counsel, for appellees. Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and PLATT, District Judge. CASTLE, Circuit Judge. 1 Plaintiffs-appellants, Arthur R. Weir and Quikbrik Company of Chicago, Inc., brought suit in the District Court to recover for damages alleged to have been suffered by plaintiffs to business and property by reason of a boycott. Defendants-appellees are Chicago Plastering Institute Inc.,1 Jourenymen Plasterers Protective and Benevolent Society, OP & CFIA, Local Union No. 5,2 Employing Plasterers Contractors Association of Chicago,3 Byron W. Dalton,4 J. W. Farr & Co.5 and J. Woodcock.5 2 Plaintiffs predicate liability of defendants for treble damages under 15 U.S.C.A. 15 on conduct alleged to constitute a violation of the antitrust provisions of 15 U.S.C.A. 1. In addition plaintiffs claim a 'secondary boycott' by defendants Dalton and Local No. 5 in violation of, and entitling them to damages under, 29 U.S.C.A. 187. 3 The district court at the conclusion of plaintiffs' evidence granted the motions of all defendants for a directed verdict and entered judgment for defendants. Plaintiffs appealed and contend that the court erred in not submitting the case to the jury. Subsidiary contentions made by plaintiffs include claims that the court erred (1) in rulings on the admission of evidence and on offers of proof, (2) in refusing to hear oral argument, (3) in failing to certify to the Attorney General that the consitutionality of an Act of Congress affecting the public interest had been put in issue by defendants' pleadings, (4) in failing to make findings of fact, and (5) that the District Court's executive committee erred in reasigning the case to the trail judge. 4 The main contested issue is whether there was evidence which when viewed in the light most favorable to plaintiffs, together with all reasonable inferences that might be drawn therefrom, would, as a matter of law, sustain a verdict for plaintiffs. 5 It would serve no purpose to attempt to summarize all of the evidence. In so far as it is pertinent to establishing the existence of a boycott in violation of either the Sherman Act (15 U.S.C.A. 1) or the Labor Management Relations Act (29 U.S.C.A. 187), and viewed in the light most favorable to plaintiffs, accepting plaintiffs' version of that most favorable to plaintiffs where there is difference or conflict in the testimony, the record establishes the following facts. 6 The Institute is a not-for-profit membership corporation the officers and directors of which are representative officers of labor unions, plastering contractors and persons engaged in the plastering business. Its purpose, to promote the use of plaster products, is stated in its charter as follows: 7 'The advancement of plaster construction over inferior substitutes, by (1) education of the public, and (2) by sponsoring legislation calculated to preserve the health and safety of the public by the use of plaster construction, and (3) discourage attempts to pass ligislation derogatory to plaster construction, and (4) to do those things which are necessary and proper to promote and enhance the plastering industry.' 8 Institute provides retirement pensions, compensation for illness and injuries, and death benefits for those employed in the plastering industry. 9 The Association is an incorporated notfor-profit, trade association. Its members are approximately 36 Chicago plastering contractors. Local Union No. 5 is an unincorporated trade union composed of approximately 1200 journeymen and apprentice plasterers who engage in their trade as employee of plastering contractors. The Constitution and By-Laws of Local No. 5 provide: 10 'Sec. 96. May person or firm desiring to become plastering contractors and employ members of Local No. 5 must qualify according to the following rules: They must be examined by our Examining Board and prove that they knew the fundamentals of plastering. They must show sufficient bank account or credit to meet their material bills and pay-rolls, and they must also furnish a surety bond not less than Ten Thousand Dollars ($10,000) to insure the payments of our members at all times. Any member of Local No. 5 desiring to become a plastering contractor must make application in writing and appear before the Examining Board for a hearing. He must also be a member of Local No. 5 in good standing for a period of five years. This does not necessarily apply to honorably discharged mem from the armed services. A thirty (30) days notice must be posted for all applicants who are to be examined as Contracors.' 11 A collective bargaining agreement between Local No. 5 and the contractor members of the Association contains provisions under which each makes financial contributions to Institute for the following purposes: 12 '(a) Educating the public of the superiority of plaster construction over inferior substitutes. 13 '(b) Sponsoring legislation that is calculated to preserve the health and enhance the plastering industry. of plaster construction. 14 '(c) To do those things which are necessary and proper to promote and enhance the plastering industry. 15 '(d) To provide health and hospital insurance and other benefits for the aforesaid employees.' 16 The Association agrees to assess and collect from its members, and to contribute, a sum equal to 6% of employee's wages (later changed to 16 cents per hour per man employed). Local No. 5 agrees to contribute a sum not to exceed 1/2 cent per hour for each hour each of its members are employed by contractor members of the Association. 17 Early in 1952 plaintiff Weir entered into an agreement with American Cement Products Company of Detroit, Michigan under which he became an authorized applicator of its product known as Quikbrik. Quikbrik, as a process, may be described as a method whereby an imitation brick surface may be applied to the interior or exterior surface of a building. A lath-like frame is first affixed to the surface. A coating of cement is then applied. While the cement is still soft the product Quikbrike, a mixture of crushed building material similar to ground brick, is pressed into the cement. When the mixture is partially dried the 'joints are struck', that is, by means of a rack and a cutting tool, grooves are formed which show the underlying cement and cause the finished surface to have the appearance of a brick wall. 18 Weir called on defendant Dalton, President of Local No. 5, and showed him samples of and literature concerning Quikbrik. Dalton was impressed with the product. Weir advised that he wanted to become a plastering contractor and hire union plasterers, members of Local No. 5. Dalton promised full cooperation and telephoned the lathers' union requesting that it cooperate with Weir. Dalton told Weir that 'he could hire at that time union help'. Weir thought his conversation with Dalton constituted approval of Weir as a plastering contractor by Local Union No. 5. Weir proceeded to purchase contracting equipment and obtained a Quikbrik job. Weir telephoned phoned Albert J. Frost, then business agent of Local No. 5, and told him he wnated a plasterer to work on a job, stating that Dalton said it was O.K. Weir told Forst that his work was cleared through the union. Forst was unable to reach Dalton by Telephone to verify Weir's statement. Forst sent a plasterer, member of Local No. 5, to Weir to work on the job he then had. The job was completed in about a week. 19 At a second interview with Dalton, Weir discussed the matter as to whether or not the 'striking of the joints' was to be performed by union plasterers or by ordinary union labor. Dalton insisted that this operation be performed by union plasterers. 20 Weir organized or caused to be organized the plaintiff Quikbrok Company of Chicago, Inc., and subscribed to 75% of its capital stock. 21 Upon obtaining two additional contracts for Quikbrik jobs Weir telephoned John Boland, a business agent for Local No. 5, to secure union plasterers. At Weir's request Boland called at Weir's home on a Saturday where he was told that Weir had two jobs to do and wanted union plasterers. Boland said he would have to check with Dalton. Weir suggested that he telephone Dalton as he needed the men for Monday morning. After making the telephone call Boland told Weir 'I am sorry you did not make an impression on Dalton. I can do nothing for you. You are through.' Weir proceeded to perform the work with non-union plasterers. 22 Weir never did appear before Local No. 5's examining board and obtain approval of himself or the corporation as a plastering contractor eligible to employ its members as required by Sec. 96 of the Union's Constitution and By-Laws. The corporate plaintiff, Quikbrik Company of Chicago proceeded to do twelve or more Quikbrik jobs between July and Cotober 1952. 23 In February of 1953 plaintiff Weir obtained a distributor's franchise from American Cement Product Company giving him the right to appoint dealer-applicators within a territory consisting of portions of Illinois, Wisconsin and Indiana. Weir solicited and obtained contracts from seven Chicago plastering contractors. Each such dealer was required to purchase an initial order of Qulikbrik and to rent various tools at a total cost of $1,350. 24 In April of 1953 one of these Chicago Plastering contractors, defendant J. Woodcock, who was not a member of the Association, told Weir he had turned down an offer of a Quikbrik job, stating 'You know I can't it. Dalton is mad at you and I can not proceed. I can not do any more Quikbrik jobs until you get straightened out with Dalton. Go down to the Union hall and make a date to go before their executive board. Maybe that will straighten it out.' Weir called at the union hall where Forst told him that 'Dalton is handling that whole deal of yours'. Weir tried to reach Dalton by telephone many times and called at his office but Dalton refused to talk to him. Some of the Chicago plastering contractor dealer-applicators of Quikbrik did not reorder after their initial order. American Cement Products Company cancelled its contracts with plaintiff Weir in January of 1954. Following a meeting with Dalton, Sands, manager of American Cement Products had written Dalton in December of 1953 that 'we have completely washed our hands of Art Weir as a distributor.' 25 The Sherman Act (15 U.S.C.A. 1) declares illegal: 26 'Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations * * .' 27 A contract, combination or conspiracy is an essential element of a violation. 28 The record clearly establishes that plaintiffs were unable to secure union plasterers. Whether this was because of Dalton's displeasure with Weir because of the latter's desire to use other than union plasterers for that phase of Quickbrik application described as 'striking the joints', Weir's subsequent employment of non-union help, or for some other reason, it is equally apparent that the record is barren of any evidence of a combination, agreement or conspiracy among the defendants either to boycott the product Quikbrik, boycott Weir as a distributor, or boycott Weir or Chicago Quikbrik Company, Inc., as dealer-applicators. Nor, in our opinion, could the jury have properly reached a conclusion that such a conspiracy existed by any reasonable inference from the facts proven. There is a total absence of proof that any restraint of any kind existed as to the flow of Quikbrik materials in interstate commerce or as to its use. Plastering contractors, members of Association, performed Quikbrik jobs with union plasterers and plaintiffs performed Quikbrik jobs with non-union hepl without interference from Local No. 5 or from any of the defendants. Dalton's or Local No. 5's refusal to furnish union plasterers to plaintiffs was not shown to have been pursuant to any combination, agreement or conspiracy with any of the other defendants. The requirements of Sec. 96 of the Constitution and By-Laws of Local No. 5 were not shown to have been the result of any agreement or conspiracy with the Association, the Institute or the plastering contractor defendants. Sec. 96 is not, as plaintiffs infer, a part of the collective bargaining agreement between Local No. 5 and the Association. And neither the requirements of Sec. 96 nor any refusal of Dalton or Local No. 5 to furnish union plasterers to plaintiffs constituted a violation of 15 U.S.C.A. 1. In Hunt v. Crumboch, 325 U.S. 821, 824, 65 S.Ct. 1545, 1547, 89 L.Ed. 1954, it is pointed out that: 29 'It is not a violation of the Sherman Act for laborers in combination to refuse to work. They can sell or not sell their labor as they please, and upon such terms and conditions as they choose, without infringing the Anti-trust laws. Apex Hosiery Co. v. Leader, 310 U.S. 469, 502-503, 60 S.Ct. 982, 997, 998, 84 L.Ed. 1311. A worker is privileged under congressional enactments, acting either alone or in concert with his fellow workers, to associate or to decline to associate with other workers, to accept, refuse to accept, or to terminate a relationship of employment, and his labor is not to be treated as 'a commodity or article of commerce.' Clayton Act, 38 Stat. 730, 731, 15 U.S.C.A. 12 et seq.; Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. 101 et seq.; see also American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189.' 30 There being no evidence of concert with others in either connection, the doctrine of allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 has no application. That points of contact or relationships for promotion of umutual interests existed among the defendants on other matters, such as support of Institute, does not on the facts here proven give rise to any reasonable inference that plaintiffs' difficulties with Dalton or Local No. 5 were the result of agreement or concert of action between the Local and its president and any one or more of the other defendants. 31 Plaintiffs claim a violation of that portion of 29 U.S.C.A. 187 which makes it unlawful for any labor organization: 32 ' * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is-- 33 '(1) forcing or requiring any * * * employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *'. 34 In this connection plaintiffs contend that Local No. 5 engaged in a concerted refusal to furnish labor to Weir with the object of compelling him to cease doing business with his supplier of Quikbrik materials and that after Weir became a distributor Local No. 5 engaged in a refusal to supply labor to contractor-dealers of Weir for the purpose of forcing Weir out of business. An examination of the record discloses no evidence that Dalton or Local No. 5 were in any manner opposed to Quikbrik or the supplier, American Cement Products Company. None of the defendants regarded Quikbrik as an inferior substitute for plaster or opposed its use. Plastering contractor members of the Association perform ed Quikbrik jobs with union labor without interference. The refusal to furnish union plasterers to Weir was not a secondary boycott. We find no merit in plaintiffs' contentions with respect to a violation of 29 U.S.C.A. 187. 35 It is our conclusion that the evidence when viewed most favorably to plaintiffs, together with all reasonable inferences that might be drawn therefrom, would not warrant a jury finding that the conduct of defendants or any of them constituted a violation of either the Sherman Act (15 U.S.C.A. 1) or the Labor Management Relations Act (29 U.S.C.A. 187). 36 We have considered but find no merit in plaintiffs' claims of error in rulings on admission of evidence and offers of proof. Nor was the trial court's refusal to hear oral argument on the motions for a directed verdict reversible error. Cf. Federal Communications Commission v. WJR, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353. 37 The failure to make findings of fact was not error. The Federal Rules of Civil Procedure 28 U.S.C.A. do not support plaintiffs' complaint of absence of findings. Findings of fact are not required on the granting of a motion for directed verdict. 38 The defendants' pleadings did not raise a question as to the constitutionality of 29 U.S.C.A. 1 87 on its face and therefore certification to the Attorney General was not required. Cf. Keyes v. Madsen,86 U.S.App.D.C. 24, 179 F.2d 40. In any event it does not appear that plaintiffs were in any way prejudiced by failure of such certification. 39 Plaintiffs contend that it was error for the District Court's Executive Committee to make the reassignment of the case to the trial judge who heard it. A case involving similar issues had been heard previously by that judge and the rules of the district court authorized reassignment of a related cause. In any event no prejudice to plaintiff was shown. 40 The plaintiff has discussed other points in his brief. We have considered them and find them to be without merit. 41 The judgment of the District Court is affirmed. 42 Affirmed. 1 Herein referred to as Institute 2 Herein referred to as Local No. 5 3 Herein referred to as Association 4 President of Institute and president of Local No. 5, sued individually and as representative of the membership of Local No. 5 5 A plastering contractor	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/249579/	272 F.2d 906 Mildred WOOLEY, a widow, individually and as Guardian of Samuel Albert Wooley and Mary Jane Wooley, Appellant,v.SOUTHWESTERN PORTLAND CEMENT COMPANY, Appellee. No. 17728. United States Court of Appeals Fifth Circuit. December 17, 1959. Rehearing Denied February 18, 1960. John J. Watts, Odessa, Tex., James E. Irion, El Paso, Tex., Thomas A. Sneed, Odessa, Tex., for appellant. Eugene T. Edwards, El Paso, Tex., for appellee. Before CAMERON, JONES and BROWN, Circuit Judges. JOHN R. BROWN, Circuit Judge. 1 The Texas Constitution guarantees a right of action for the recovery of exemplary damages against "every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect * * *." Texas Const. Art. 16, § 26, Vernon's Ann. St. In the face of this, the Texas Workmen's Compensation Act, which otherwise marks the exclusive liability of an employer for industrial injuries, takes cognizance of this constitutionally protected right. Tex.Civ.Stat. art. 8306, § 5 (Vernon 1956). This case presents such an action. After a jury verdict for the surviving widow and children of the deceased employee, Patrick Wooley, the Court by j.n.o.v., F.R.Civ.P. 50, 28 U.S.C.A., entered judgment in favor of the employer, Southwestern Portland Cement Company. 2 Broadly speaking, Texas attaches great significance to two factors which come into sharper focus when, as is so often true, the employer-defendant is a corporation. The first relates to the quality of the act of omission or commission. The second concerns the status of the actor. The importance of the latter comes from the limitation, in the Texas view, that a corporation only be punished as a public example if it, in a corporate institutional sense, and not mere imputation, was guilty of the acts. Unless expressly authorized or subsequently ratified when the acts are those of mere agents, this requires that the actors be those who stand in relation to the corporation as vice principals. Fort Worth Elevators Co. v. Russell, 1934, 123 Tex. 128, 70 S.W.2d 397. 3 While this case finally turns on the first factor concerning the quality of the acts, the second has special significance although not in the usual way. Ordinarily the question of status of the actor is relevant to determine whether the corporation, as such, has done the acts. Here there is no such problem for no real point is made that the safety engineer under the circumstances here present was not a vice principal. Rather it is important here because Wooley, the decedent, was a vice principal with respect to the very operations giving rise to the fatal burns. And it is his status as vice principal which becomes relevant in evaluating the quality of the acts claimed to have been grossly negligent toward him. 4 Patrick Wooley was a young man 37 years of age, of fine education and much industrial promise. After graduation as an electrical engineer, he joined the Employer and began a series of jobs of increasing responsibility and considered by the Employer as in-service training looking ultimately toward positions of substantial management responsibility. At the time of his fatal burns, he was, and had been for the past five years of his six and one-half years of service, kiln foreman over the four kilns of the plant. He was immediately in charge of the operation of the kilns, and could stop or start or interrupt such operation whenever in his judgment this was necessary. 5 Wooley received his fatal burns when preheated cement dust was blown on him. Though the record is vague and leaves much to be desired in portraying the industrial mechanism involved, this summary will suffice. The cement dust came from a storage bin through a preheating device that raised its temperature to 600 to 800 degrees after which it went into the kiln for heating to a range of 2600-2800 degrees. From time to time the feed pipe leading from the mixing-storage manifold to the kiln, became plugged up. There was a metal access door to such feed line, apparently hinged on one side and dogged on the other. When the feed line became clogged up, the usual way to remedy the situation was to open up the access door and insert into the cement dust material in the feed pipe a metal pipe to which was fastened an air hose connected to an air pressure pump. During this unplugging operation, there had been a number of instances (none as severe as this one) in which pressures, apparently built up from the high temperatures in the preheating device or in the kiln, caused some of the material to "belch" out of the feed pipe through the opened access door. To perform this repair operation, the workers had to stand on a raised platform which was so constructed that if the material belched out under some pressure, it would spew onto the platform and the access stairway. Again, while the details are undisclosed, the preheating system had just been in operation for about six months and was described occasionally as experimental. 6 On the occasion of Wooley's fatal burns, the feed pipe became clogged up as it had in the past. Wooley knew this because he personally directed the two men assigned to him as a repair crew to clear the pipe. The two labor-repairmen proceeded to kiln No. 4 and found the feed pipe clogged up. While one of them was getting ready to determine what to do, the feed pipe, he said, blew out and blew some dust on him causing a burn on one of his arms. On his way down the stairway to the first aid room he met Wooley ascending the stairs. He testified that he warned Wooley "to be careful, that it was dangerous," but considering the language difficulty of this Latin-American witness and his possible interest, the jury could disregard this. 7 Although, as we have said, the proof is woefully vague, we may assume that the jury could find that the feed pipe had frequently clogged up in the past, and in the process of opening it up, hot cement dust had belched out. More important the jury could find that the belching on this occasion was greater and perhaps occurred without the access door first being opened. On such inferences and the testimony of the safety engineer, called by the plaintiff as an adverse witness, it is urged that gross negligence of the Employer is established as a jury issue from several particulars. As we distill these specific charges from the evidence and argument, they included the claims that the basic design of the apparatus was faulty since it frequently clogged up and belched out hot dust; that the access door was so located that if the feed pipe belched, the dust would fall on the workers on the platform or access stairway; that the access door was insufficient and could be blown open by the pressure of the hot gases; that in view of this asbestos clothing should have been mandatorily furnished and required and the kiln should have been shut down during unplugging operations. 8 The safety engineer acknowledged that he knew that gases of sufficient pressure to spew out cement dust were generated and he had never required that the company undertake tests to determine whether the access door (cap) would withstand these expected pressures and still remain closed. No such tests were required by him nor was a change of design recommended or undertaken even though he knew that were the hot cement dust to spew out, it would cause severe injuries to workers in the immediate area. 9 To assume that these acts were negligent is not sufficient to justify exemplary damages. Those factors bearing upon the quality of the acts have been the frequent subject of judicial opinions in Texas. In Bennett v. Howard, 1943, 141 Tex. 101, 107, 170 S.W.2d 709, 712, the Supreme Court of Texas quoted without qualification the summary of this vast body of law found then in 13 Texas Juris., Damages, § 133, and now found with slight changes as § 215 in 13 Tex.Jur., Damages, (Rev.1955). "In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or willfully, or with a degree of `gross negligence' which approximates a fixed purpose to bring about the injury of which the plaintiff complains. The mental factor is also described in the reports by the terms `malice,' `fraud,' `oppression,' `recklessness,' and the like. Regardless of the expression which is used to describe it, the purpose or intention of the defendant is determinative of his liability for exemplary damages." 10 Bennett v. Howard, supra, likewise reiterated the rule from Missouri Pac. Ry. Co. v. Shuford, 1888, 72 Tex. 165, 10 S.W. 408, 411. "Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it." (Emphasis in the original.) And the term "conscious indifference" was amplified in Texas Pac. Coal & Oil Co. v. Robertson, 1935, 125 Tex. 4, 79 S.W.2d 830, 831, 98 A.L.R. 262. "Mere indifference is not enough. The indifference must be conscious. The indifference is to the rights or welfare of the person or persons who may be affected by the act or omission. Thus the doctrine of foreseeableness becomes important." (Emphasis in original.) 11 To these cases may be added the many listed in Helms v. Universal Atlas Cement Co., 5 Cir., 1953, 202 F.2d 421, 423, as well as Union Transports, Inc. v. Braun, Tex.Civ.App.1958, 318 S.W.2d 927, 939; Upham Gas Co. v. Smith, Tex. Civ.App.1952, 247 S.W.2d 133; Gill v. Minter, Tex.Civ.App.1950, 233 S.W.2d 585; Bolton v. Stewart, Tex.Civ.App. 1945, 191 S.W.2d 798; 30B Tex.Jur., Negligence, § 28, at 199-201 (1954 Rev.). 12 Of course, as our decision in Cagle v. McQueen, 5 Cir., 1952, 200 F.2d 186, illustrates, the statement of the Texas standard in these terms is a composite one so that specific elements are not to be read in isolation from their context. 13 It is our task to apply this Texas standard. In doing so, we must determine whether the Employer vis-à-vis this injured employee, Wooley, was guilty of conscious indifference toward his safety and welfare. We find no basis for the jury to draw any such harsh conclusions. The Employer had an established safety program with frequent safety meetings. Those for supervisory management were attended by Wooley. The strong emphasis on the industrial safety program reflected a concern by the company for the welfare of its employees. But we need not determine the legal significance, as a matter of law, of such a safety program. See J. S. Abercrombie Co. v. Scott, Tex.Civ.App.1954, 267 S.W.2d 206, 211. For here Wooley, as a vice principal with respect to the operations of the kilns, was charged with, and undertook to perform, duties for the safety of employees in that department. It was uncontradicted that he had worked with the West Coast engineers who had designed this new preheating system and it was his obligation to bring to the attention of the local plant superintendent the need for corrective steps. He knew, better than anyone else, of the history of the feed pipe clogging and the belching of hot cement dust as a consequence. There was no showing that with his own immediate knowledge as well as responsibility, he ever made recommendations for changes which were ignored or rejected. While at first this may appear to be a left-handed application of principles of contributory negligence or assumed risk, we do not place it on such grounds. Rather, it is significant here because it demonstrates that the Employer had charged the very person now claiming to be the victim of a conscious indifference to health and welfare, with specific responsibilities and duties for the safety of those in his own department. 14 This has a double significance. First, it establishes that the Employer had taken some substantial steps for the safety of its employees and second, that it was looking to Wooley as the departmental head to carry out its duties with respect to that operation. It can hardly be said, in the light of his experience and training and education, that in looking to Wooley as the person immediately charged with responsibility for the safety of himself and those working in his department, the Employer was consciously indifferent to his welfare and that of his fellow workers. Whatever might have been the Company's legal situation had the person burned been a mere employee rather than the kiln foreman, the continuation of the use of this preheating system was not with conscious indifference to the safety of the foreman Wooley. On the contrary, from his standpoint, far from indicating a callous, almost wanton, unconcern, the record shows that the Employer looked to him for consultation and advice on the proper operation of the machinery, and recommendations to corrective changes needed in its design. Committed to him as well was the choice of operating methods and this included the decision to shut down or the use of asbestos clothing. 15 Nothing in Morton Salt Co. v. Wells, 1934, 123 Tex. 151, 70 S.W.2d 409, which, with Fort Worth Elevators Co. v. Russell, supra, and Southwestern Gas & Electric Co. v. Stanley, 1934, 123 Tex. 157, 70 S.W.2d 413, comprised the triumvirate opinions by Chief Justice Cureton concerning exemplary damages in Texas calls for a different result. As to it, we may say, as we did in Helms v. Universal Atlas Cement Co., supra, it "is distinguishable on the facts." [202 F.2d 423.] 16 Affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1902730/	116 F. Supp. 455 (1953) DINKELSPIEL v. WEAVER. Civ. A. No. 542. United States District Court W. D. Arkansas, Hot Springs Division. November 23, 1953. 456 McMath, Leatherman & Woods, Little Rock, Ark., for plaintiff. D. D. Panich, Little Rock, Ark., for defendant. JOHN E. MILLER, District Judge. On March 7, 1953, plaintiff, as trustee in bankruptcy for Harry Archer Davis, bankrupt, filed his complaint against the defendant, Charles Weaver, seeking to set aside certain transfers of money from the bankrupt to defendant on the ground that said transfers were preferences under the provisions of Section 60 of the Bankruptcy Act, 11 U.S.C.A. § 96. On April 11, 1953, defendant filed his answer in which he admitted receiving the money but denied that said transfers were preferences. The defendant also pleaded a setoff under the provisions of Section 60, sub. c of the Bankruptcy Act. The case was tried to the Court on October 7 and 8, 1953, and at the conclusion of the trial the Court took the case under advisement pending the submission of briefs by the parties in support of their respective contentions. The briefs have been received, and now the 457 Court, having considered the pleadings, ore tenus testimony of the witnesses, exhibits, stipulations, and briefs, makes and files herein its findings of fact and conclusions of law, separately stated. Findings of Fact I. On April 11, 1951, Harry Archer Davis filed his voluntary petition in bankruptcy in this Court, and on the next day, April 12, was adjudicated a bankrupt. The plaintiff, Leon Dinkelspiel, is the duly appointed and qualified trustee in bankruptcy for the said Harry Archer Davis, bankrupt, and brings this suit in his capacity as trustee. II. Prior to September 20, 1950, Mattar's Art Galleries, Hot Springs, Arkansas, was owned and operated by Eli G. Mattar and the said Harry A. Davis as a partnership, but on that date the partnership was dissolved by mutual consent of the partners, and under the terms of the dissolution Harry A. Davis became the sole owner of the said Mattar's Art Galleries and continued to do business under that name. At that time the business was solvent. Prior to the dissolution of the partnership, the defendant made the following loans to Mattar's Art Gallaries: March 20, 1950, $12,000; April 21, 1950, $8,000; May 20, 1950, $9,734.75; May 23, 1950, $1,342.50; and June 12, 1950, $10,000, making a total of $41,077.25. All of these loans were unsecured except the loan dated June 12, 1950, which loan was secured by certain jewelry and diamonds on that date delivered to defendant by Mattar's Art Galaries. Seven of the diamond rings which were pledged to defendant on June 12, 1950, were consigned by defendant to Mattar's Art Galleries on June 30, 1950. Three of these rings were redeemed by the said Mattar's Art Galleries but the other four rings having a total value of $4,700 were neither paid for nor returned to the defendant. On January 5, 1951, subsequent to the dissolution of the partnership, Harry A. Davis paid to the defendant $292.50 on the indebtedness and secured the release from him of one of the pledged rings. On the same date Davis, by check, paid defendant $734.75 as "part payment of loan." Also on the same date, Harry A. Davis executed a series of checks numbered from 414 to 439 inclusive, each in the sum of $500 payable to defendant, and each of the checks was marked "part payment of loan." The $10,000 which defendant loaned to Mattar's Art Galleries on June 12, 1950, had been borrowed by defendant from the Arkansas Trust Company of Hot Springs, Arkansas, and, after receiving the above-mentioned checks, defendant took them to George Sexton, Vice-President of said bank, and asked him to collect them as he could and apply them on defendant's note with the bank. Being a friend of the defendant, Sexton complied with his request and, when funds were available, he would clear one of the checks by crediting the amount on defendant's note and charging said amount against the Davis account. In this manner the following checks were paid: Check No. 414, paid on January 27, 1951 Check No. 415, paid on January 29, 1951 Check No. 416, paid on February 2, 1951 Check No. 417, paid on February 12, 1951 Check No. 418, paid on February 17, 1951 Check No. 419, paid on February 27, 1951 Check No. 420, paid on March 8, 1951 Check No. 421, paid on March 27, 1951 Check No. 422, paid on March 28, 1951 Checks numbered 423 through 439, both inclusive, of the said series of checks were not paid and are now attached to a proof of claim filed by defendant as a part of his common claim against the estate of the bankrupt. During the period of time when checks numbered 414 to 422 were paid, the bank account of Harry A. Davis was very active, but usually at the end of the day there was a very small balance. Checks were turned down practically every day, 458 and, in the words of Sexton, it was "more or less a case of first come, first served." Sexton knew the state of said bank account of Davis, and handled the checks in the manner above stated as an accommodation to a customer and to aid the customer to pay the bank his debt. Defendant left the entire matter in the hands of the bank and apparently had very little knowledge of the status of the account. The jewelry and diamonds which were pledged to the defendant on June 12, 1950, with the exception of the seven items defendant consigned to Mattar's Art Galleries, were held by him until January 5, 1951, and on various dates subsequent to January 5 and within about two and one-half months thereafter the defendant, upon the request of Davis, delivered to Davis the remaining jewelry and diamonds defendant had been holding as security. The value of the jewelry returned to Davis by defendant subsequent to January 5, 1951, was $3,938.70, and defendant received no new security. Approximately sixty days after January 5, 1951, defendant loaned Davis the sum of $1,000, which loan was unsecured and was never repaid. III. The amount of unsecured claims filed against the bankrupt's estate is approximately $100,000 and the maximum amount which will be available for distribution to unsecured creditors is approximately $25,000 to $30,000. Therefore, the maximum percentage unsecured creditors may be able to recover is 25 to 30 per cent. Defendant has filed a proof of claim as an unsecured creditor in the amount of $11,773.90, and if the transfers involved herein are permitted to stand, defendant will receive a greater portion of his debt than other creditors of the same class. IV. Harry A. Davis did not keep a proper or recognized set of books in the operation of his business. He had a daily sales record in which he entered sales by general classifications; a diamond register; watch register; check book with the stubs of checks he had written; invoice files and similar files of data. He did not have a general register or general ledger, nor did he have a book in which he recorded checks as written. He had no cash receipts and disbursement register and no journal. He had no complete record of notes payable, although he did have a small diary in which he entered the due date of merchandise notes payable. In June, 1951, plaintiff employed Oscar W. Luebben, a certified public accountant, to review the records of the bankrupt in an effort to ascertain whether a tax deficiency that had been assessed by the Government against Harry Davis and Eli Mattar was a proper deficiency. Luebben did not audit the books but started with the date of September 20, 1950, the date of the dissolution of the partnership, and prepared a "reconstructed" balance sheet for the dates, September 20, 1950, and December 31, 1950. He also prepared a profit and loss statement for the period from September 20, 1950, to December 31, 1950, and for the period from January 1, 1951, to April 9, 1951. Luebben frankly admitted that these documents were not prepared in accord with general accounting principles because it was impossible, due to the state of the bankrupt's books, to verify the assets and liabilities. The difficult nature of Luebben's work in preparing the documents is demonstrated by the fact that he did not complete them until July or August, 1952, more than a year after he was first employed by plaintiff. If the balance sheet and profit and loss statement prepared by Luebben are correct, there is little doubt but that Davis was insolvent during the period from January 5, 1951, to March 28, 1951, the time within which the checks were paid. However, the meager and incomplete records of the bankrupt did not contain sufficient information from which to construct an accurate balance sheet and 459 profit and loss statement. This is especially true in view of the questionable nature of the inventory. The inventory of September 20, 1950, merely reflected totals for merchandise, fixtures, notes payable, liabilities, etc., without any effort to state an accurate item by item inventory. And, as to subsequent inventories it is very questionable whether all the bankrupt's property was included in said inventories. In other words, the Court feels that the balance sheet and profit and loss statement were based upon too many assumptions and uncertainties to be considered a valid estimate of the bankrupt's financial condition. In fact, it is very doubtful if anyone, including Davis, could have ascertained his true financial condition at the time in question. Plaintiff introduced no other proof of the bankrupt's financial condition except the testimony of Mr. Sexton concerning the non-payment of certain checks and notes. V. The defendant knew very little about the bankrupt's business. In fact, the loans made by defendant to Mattar's Art Galleries were made prior to the time the partnership between Mattar and Davis was dissolved, and it was not until after the bankruptcy of Davis that defendant learned the said partnership had been dissolved. That is, at the time of the transactions involved herein defendant still thought Davis and Mattar were partners. Both defendant and Sexton knew that some of Davis' checks were being dishonored, but this condition had existed for some time and Davis was still doing a large volume of business. In other words, defendant and Sexton knew that Davis was having some difficulty maintaining sufficient cash to meet his current obligations, but the testimony does not disclose any facts that were then known tending to show that his total assets might not be sufficient to pay his total debts. And, even if they had become suspicious of Davis' financial condition, an inquiry or an examination of Davis' books would not have revealed his true financial condition. Discussion The plaintiff admits, as indeed he must, that in order to establish a preference under the provisions of Section 60, sub. a of the Bankruptcy Act he must prove the following elements: (1) Transfer by the debtor of his property. (2) Creditor relationship of transferee. (3) That the transfer was for an antecedent debt and resulted in diminution of the debtor's estate. (4) Insolvency of debtor at the time of said transfer. (5) That the transfer was within four months before the filing of the petition in bankruptcy. (6) That the transfer enabled the transferee to obtain a greater portion of his debt than others of the same class. (7) That the transferee or his agent knew or had reasonable cause to believe that the debtor was insolvent at the time of the transfer. See Dinkelspiel v. Garrett, D.C.Ark., 96 F. Supp. 800, 803. At the outset it may be stated that requirements (1), (2), (5) and (6) are clearly established by the evidence and no discussion is necessary concerning them. The remaining elements will be discussed in numerical order. Diminution of Debtor's Estate In order to establish a preferential transfer the trustee must prove that the transfer resulted in a depletion of the bankrupt's estate. In Continental & Commercial Trust & Savings Bank v. Chicago Title & Trust Co., 229 U.S. 435, at page 443, 33 S. Ct. 829, at page 831, 57 L. Ed. 1268, the Court said: "To constitute a preferential transfer within the meaning of the bankruptcy act there must be a parting with the bankrupt's property for the benefit of the creditor, and a consequent diminution of the bankrupt's estate." In Miller v. Fisk Tire Co., D.C.Minn., 11 F.2d 301, 304, the Court said: 460 "There can be no preferential transfer without a depletion of the bankrupt's estate. * * "The burden of showing that the bankrupt's estate was diminished by the payment to the defendant was upon the trustee." In Walker v. Wilkinson, 5 Cir., 296 F. 850, 852-853, certiorari denied 265 U.S. 596, 44 S. Ct. 639, 68 L. Ed. 1198, the Court said: "The purpose of the law of preferences is to secure an equal distribution of the bankrupt's assets among his creditors of like class. If a transaction, in its entirety, does not interfere with this purpose of the law, it does not constitute a voidable preference. The fact that one creditor is paid in full from a source, to which other creditors have no right to resort, does not entitle other creditors to complain or the trustee to recover the amount so received. The transfer or payment must be one that diminishes the fund to which creditors of the same class can legally resort for the payment of their debts, and to an extent that makes it impossible for such other creditors to obtain as great a percentage as the favored one, in order that the transaction constitute a preference. * * "The right of offset as against the recovery of a preference given by section 60c is not exclusive. In any case in which the result of allowing the offset does not disturb, but promotes, equality of distribution among creditors of the same class, it is proper; and the effect of allowing it, in this respect, is to be determined by the entire transaction between the creditor and the bankrupt." In Root Mfg. Co. v. Johnson, 7 Cir., 219 F. 397, 401, affirmed in 241 U.S. 160, 36 S. Ct. 520, 60 L. Ed. 934, the Court said: "On the other hand, it is unquestionable that the statute does not denounce as preferential all payments so obtained by a creditor within the four-months period; that payment may lawfully be accepted for discharge of a valid lien, either legal or equitable; * * * and that a transaction is not an unlawful preference unless `the estate of the bankrupt was thereby diminished.'" To the same effect, see Citizens' Nat. Bank of Gastonia, N. C. v. Lineberger, 4 Cir., 45 F.2d 522, 526; Israel v. Woodruff, 2 Cir., 299 F. 454 (pledged potatoes); In re K. G. Whitfield & Bro., D. C.Tenn., 290 F. 596, 599; Lucey v. Matteson, D.C.N.Y., 215 F. 244, 247; Cheek v. Beverly-Wilshire Properties, Inc., D. C.Cal., 103 F. Supp. 913, 914. In the instant case, subsequent to January 5, 1951, defendant returned to Davis pledged jewelry of the value of $3,938.70. This jewelry was pledged to the defendant on June 12, 1950, long prior to the filing of the petition in bankruptcy, and defendant had a valid lien upon said jewelry. Plaintiff contends that in returning the pledged jewelry to Davis the defendant was merely returning Davis' own property, and that this did not add to Davis' estate because his statement of assets and liabilities would remain the same. However, the question is not whether the book value of Davis' estate was increased, but whether the value of his estate subject to distribution among his creditors was increased. In other words, defendant had a valid lien upon the pledged jewelry, and, had he retained possession, the said jewelry or the proceeds thereof would not have been available for distribution to other creditors unless the proceeds amounted to more than the debt secured by said jewelry. See, Manhattan Co. v. New York, N. H. & H. R. Co., 2 Cir., 171 F.2d 482, 483; Gins v. Mauser Plumbing Supply Co., Inc., 2 Cir., 148 F.2d 974, 979; Harrison v. Merchants Nat. Bank of Fort Smith, Ark., 8 Cir., 124 F.2d 871, 875; In re McCown, D.C.Pa., 31 F.2d 334, 335, affirmed in Middleton v. Fidelity-Philadelphia Trust Co., 3 Cir., 35 F.2d 851; 461 8 C.J.S., Bankruptcy, § 266(5), page 963. Thus, when defendant returned said pledged jewelry to Davis, thereby relinquishing his lien, that part of Davis' estate available for distribution to creditors was increased. During the period of time when defendant was returning said pledged property of the value of $3,938.70, Davis paid to defendant the sum of $5,234.75, and the net effect of these transactions was to deplete Davis' estate (available for distribution to creditors) in the amount of $1,296.05. Therefore, even if all the other elements of a preference were present the total amount of the preference would only be $1,296.05. Insolvency of Debtor at Time of Transfer Section 1(19) of the Bankruptcy Act, 11 U.S.C.A. § 1(19), provides: "A person shall be deemed insolvent within the provisions of this title whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not at a fair valuation be sufficient in amount to pay his debts". The value of the assets must be determined as of the time of the transaction and not according to the price they might bring subsequent to bankruptcy. Mutual Savings & Loan Association v. McCants, 4 Cir., 183 F.2d 423, 425. And, inability to meet current obligations does not, in itself, amount to insolvency. Cusick v. Second Nat. Bank, 73 App.D.C. 16, 115 F.2d 150, 155; Fly & McFall v. Watts, 209 Ark. 282, 293, 190 S.W.2d 533. The adjudication in bankruptcy creates no presumption of the bankrupt's insolvency at a prior date. In Arkansas Oil & Mining Co. v. Murray Tool & Supply Co., 8 Cir., 127 F.2d 564, 566, the Court said: "No inference arises from an adjudication in bankruptcy that the bankrupt was insolvent within the meaning of the act four months before he was adjudged such, or at any other prior date. Many contingencies might happen to reduce a person from a status of solvency to that of insolvency within a short space of time. "Insolvency, under the act here involved, must be determined according to whether or not the aggregate of a person's property at a fair valuation is sufficient to pay his debts." See also, In re K. G. Whitfield & Bro., supra, at page 600 of 290 F. There is some question as to whether the transfer of a check is complete at the time the check is given to the payee or at the time the check is paid by the drawee. See, Vol. 3, Collier on Bankruptcy, 14th Ed., Section 60.14, Page 805; 7 A.L.R. 2d 1016-1019. The Court is of the opinion that where, as in this case, the drawer did not have sufficient money in the bank to cover the checks, the transfer of said checks would not be completed until paid by the drawee. However, the result is the same in the instant case regardless of which time the transfers were completed, because the Court has concluded that plaintiff failed to prove that Davis was insolvent at any time prior to his adjudication in bankruptcy on April 12, 1951. Courts realize the difficulty often confronting a trustee in attempting to prove the insolvency of a bankrupt at the time of an alleged preference, and, if it can be shown that no substantial change in the bankrupt's financial condition occurred between the time of the alleged preference and the time of the adjudication in bankruptcy, it may reasonably be assumed that he was insolvent at the time of said alleged preference. Brown Shoe Co. v. Carns, 8 Cir., 65 F.2d 294, 296. But, in the instant case the bankrupt was engaged in a business which fluctuated rapidly, and, as pointed out in Arkansas Oil & Mining Co. v. Murray Tool & Supply Co., supra, many contingencies might have arisen to 462 reduce him from a state of solvency to one of insolvency in a very short time. It is true that the reconstructed balance sheet and profit and loss statement prepared by Luebben, if correct, would be sufficient to show Davis' insolvency during the period of time when the transfers involved herein were made, but the Court is convinced that these documents are based upon too many assumptions and uncertainties to be entitled to serious consideration. The books and records of the bankrupt were so incomplete that it was impossible for Luebben to make proper verification. He admitted that the only reliable figure he had to work with was the amount of the claims filed against the bankrupt's estate. Aside from that figure, and the records of Davis' bank account which were obtained from the bank, Luebben was forced to work with the incomplete and entirely untrustworthy books of the bankrupt. He necessarily had to rely, to a large extent, upon Davis' meager inventory records in ascertaining said inventory upon the dates of September 20, 1950, and December 31, 1950, and there is no way of knowing whether said amounts represented the actual cash value of said merchandise at that time. And, since Davis' inventory constituted practically all of his assets, any error made in stating the inventory would have a substantial effect upon both the balance sheet and profit and loss statement. Likewise, the evidence was unsatisfactory on the question of whether several loan or pledge transactions were properly represented on the balance sheet and profit and loss statement. (See transcript, 82-92.) In other words, there are so many uncertainties concerning Davis' financial condition during the time the transfers were being made that the Court is unable to determine his financial condition, and plaintiff has failed to prove that Davis was insolvent on any or all of the dates when the said transfers were made. Therefore, plaintiff has failed to prove that the said transfers were preferences within the meaning of the Bankruptcy Act. Reasonable Cause to Believe Debtor Insolvent The rule regarding "reasonable cause" to believe the debtor insolvent is stated in the case of In re Eggert, 7 Cir., 102 F. 735, 741, as follows: "The resultant of all these decisions we take to be this: That the creditor is not to be charged with knowledge of his debtor's financial condition from mere nonpayment of his debt, or from circumstances which give rise to mere suspicion in his mind of possible insolvency; that it is not essential that the creditor should have actual knowledge of, or belief in, his debtor's insolvency, but that he should have reasonable cause to believe his debtor to be insolvent; that if facts and circumstances with respect to the debtor's financial condition are brought home to him, such as would put an ordinarily prudent man upon inquiry, the creditor is chargeable with knowledge of the facts which such inquiry should reasonably be expected to disclose." In other words, it is not essential that the creditor have actual knowledge of the debtor's insolvency, because, if he has knowledge of facts sufficient to put a prudent man upon inquiry, he is charged with knowledge of the facts such an inquiry would disclose. Rollins v. Repper, D.C.Mich., 69 F. Supp. 976, 979. Knowledge by the creditor of dishonored checks issued by the bankrupt is evidence which may be considered in determining whether the creditor had sufficient notice to put him upon inquiry. Robie v. Myers Equipment Co., D.C.Minn., 114 F. Supp. 177, 181. However, such knowledge on the part of the creditor is not, of itself, conclusive of the question of reasonable cause. Bostian v. Levich, 8 Cir., 134 F.2d 284, 286. And this is particularly true in cases 463 where the bankrupt maintains poor records and ordinarily does business in a slovenly manner. In Brookheim v. Greenbaum, D.C.N.Y., 225 F. 635, 637, affirmed 2 Cir., 225 F. 763, the Court said: "Now, that being admitted, the longer the situation remained and the bankrupt continued to do business, the more reason had the persons who dealt with him to suppose that, although he was dealing on a very narrow margin and practically had no free capital, he nevertheless was not insolvent. It must be remembered that a man who is always short in cash is only a man who has no free capital. It does not follow necessarily, as both sides concede, that he is insolvent because he is not quick pay. However, the fact that a man in business is not able to pay up when he is pressed in many cases may well be a ground for inquiry, and even for sufficient suspicion of insolvency to justify a suit like this, as, for example, in the case of a large business conducted with prudence and accuracy; but it does not seem to me that, in the case of a man who concededly did business in such an unbusinesslike way as this bankrupt, shortness of cash and absence of free capital, continuing for so long a period of time without any insolvency, ought to be enough to put on inquiry all those who dealt with him. It must be remembered that something more than suspicion is necessary." Furthermore, the facts must be considered in the light of the circumstances existing at the time of the alleged preference. In Harrison v. Merchants Nat. Bank of Fort Smith, Ark., supra, the Court at page 873 of 124 F.2d said: "As one views any business failure in the retrospect, many incidents and circumstances bearing upon a bankrupt's financial condition loom much larger and more formidable than they did before the crash occurred. All well-considered cases have enunciated the doctrine that mere apprehension on the part of the creditor is not equivalent to good cause to believe that insolvency exists. Grant v. First National Bank, 97 U.S. 80, 24 L. Ed. 971. "`Reasonable cause to believe that a preference was intended cannot be held to be proved by circumstances that would merely excite suspicion. And circumstances may seem suspicious after the bankruptcy occurs that would not appear unusual at the time of their occurrence, and would then have presented no "reasonable cause" on which to found a belief of intended preference. Merchants and other business men constantly continue to make payments up to the very eve of failure, and it would be disastrous to have them set aside on slight proof or mere suspicion.' Sabin v. Western Dry Goods Co., 9 Cir., 2 F.2d 130, 131." In view of the foregoing authorities, the Court is of the opinion that even if Davis were insolvent at the time of the transfers, neither the defendant nor Sexton knew or had reasonable cause to believe that Davis was insolvent. It is true that both defendant and Sexton knew that a substantial number of Davis' checks were being dishonored, but it is also true that this condition had existed for a number of months and apparently Davis was continuing to do business in his ordinary unbusinesslike manner. His bank account during this time was very active and he was seemingly doing a large volume of business. Under these circumstances, the defendant might reasonably have assumed that Davis was merely short on ready cash, but that his inventory and other assets were entirely sufficient to pay his debts. And, even if defendant had knowledge of sufficient facts to put him upon inquiry, such an inquiry would have gained him nothing. The state of Davis' books was such that neither the defendant nor anyone else could have ascertained his financial condition unless a complete audit 464 was made, and even then the accuracy of the audit would be doubtful. See, In re Solof, 9 Cir., 2 F.2d 130, 131. It follows from the foregoing discussion that the transfers complained of by the plaintiff herein were not preferences within the meaning of the Bankruptcy Act, and that the complaint of plaintiff should be dismissed. Conclusions of Law I. The Court has jurisdiction of the parties to and the subject matter of this cause of action. II. The transfer of checks numbered 414 to 422, inclusive, and check number 440, in the total amount of $5,234.75, by Harry Archer Davis to the defendant, Charles Weaver, did not amount to a preference within the meaning of Section 60 of the Bankruptcy Act, and therefore the complaint of the plaintiff should be dismissed. A judgment in accordance with the above should be entered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601695/	228 P.3d 451 (2010) PRICE v. LAW. No. OP 10-0015. Supreme Court of Montana. March 3, 2010. Decision Without Published Opinion Dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2897572/	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 251 ST 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 (footnote: 1) 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. (footnote: 2) 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. FOOTNOTES 1:See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 2:Appellant contends he requested counsel but was not permitted to talk to an attorney for approximately six months after his arrest for the subject offenses. The record shows that appellant told Officer Paul Horn on May 24, 2005, after ten minutes of questioning, that he would rather not say anything more without speaking to a lawyer. This was an invocation of appellant’s Fifth Amendment right to be free of custodial questioning without the presence of counsel. See Russell v. State, 215 S.W.3d 531, 535 (Tex. App. –Waco 2007, pet. ref’d). There is no indication that police continued to interrogate appellant after that time. This request is not the same as a request for appointment of counsel under a defendant’s Sixth Amendment right. Thereafter, the record shows that appellant was indicted on November 9, 2005, and that he filed a request for attorney on December 5, 2005. Counsel was appointed the same day and appellant did not proceed to trial until October 2006. The record is unclear as to appellant’s whereabouts during the period from May 24, 2005, until his indictment.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2908224/	Jordan-JL v. State IN THE TENTH COURT OF APPEALS No. 10-95-076-CR JEROME LAMONT JORDAN, Appellant v. THE STATE OF TEXAS, Appellee From the 40th District Court Ellis County, Texas Trial Court # 21220CR O P I N I O N A jury convicted the appellant, Jerome Lamont Jordan, of aggravated robbery, Tex. Penal Code Ann. § 29.03 (Vernon 1994), and sentenced him to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In his sole point of error, the appellant argues that there is insufficient evidence to prove one of the elements of aggravated robbery, specifically, that the victim was in fear of imminent bodily injury or death during the course of the robbery. Tex. Penal Code Ann. § 29.03(a). We will affirm. An offense of aggravated robbery occurs when a person in the course of committing a theft knowingly and intentionally threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Id.; Fortenberry v. State, 889 S.W.2d 634, 636 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd) (citing Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980)). The appellant maintains the evidence is insufficient to support his conviction because the victim's acts after the robbery negate the "fear of imminent bodily injury or death" element. Under the standard of review for legal sufficiency, we must "consider all the record evidence in the light most favorable to the jury's verdict, and [ ] determine whether, based on that evidence and all reasonable inferences therefrom, any rational jury could have found the defendant guilty beyond a reasonable doubt." Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995); see also Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789 (1979). At trial, the complainant, Walter R. Stigall, testified to the following facts: On August 19, 1994, while on an errand for his employer, Stigall was turning a corner at Wyatt and Henry Streets in Waxahachie, when a man suddenly walked in front of the vehicle he was driving. To avoid hitting the man, Stigall stopped the pickup. When he stopped, two other men, one later identified as the appellant, approached the passenger-side of the vehicle and through the opened window, offered to sell Stigall some marijuana and crack cocaine. When Stigall refused, the two men began cursing Stigall, and the third man, who had been crossing the street, ordered the appellant to "take him out." Pointing a gun at Stigall, the appellant said, "Give me your mother-fucking money, pop, or I'll blow your bitch head off." Fearing that his life was about to come to an end, Stigall complied, handing the appellant ten dollars. Stigall drove away, stopping approximately thirty feet from the men. Angered by the incident, Stigall got out of his pickup and asked for his money back, saying that he "could take a joke." The appellant pulled out his gun and began running toward Stigall, and the man who had been crossing the street in front of Stigall started picking up rocks to throw at him. Stigall got back in his pickup and hurriedly drove away. When he returned to work, Stigall's employer convinced him to report the incident to the police. Fearing retaliation from the robbers, Stigall did not want to get involved; however, he did call the police and asked them to confiscate the gun. Later that same day, he also returned to the area where the crime occurred in order to help the police locate the robbers and the weapon, albeit unsuccessfully. Several days later, while on another errand for his employer, Stigall encountered the same three men standing on a different street. The record is unclear as to whether the men recognized Stigall or whether Stigall called attention to himself. In either event, the men began throwing rocks and bricks and cursing at Stigall, and Stigall yelled to the men that they were "going to jail." Backing his vehicle out of range of the hurling objects, Stigall asked people nearby to call the police. The police quickly arrived on the scene but could not arrest any of the robbers without a warrant. Upset the police could not take the robbers into custody at that time, Stigall agreed to make a formal complaint so a warrant could be issued for the robbers' arrests. The appellant was arrested at a later date and identified by Stigall as one of the men who had robbed him at gunpoint. The appellant argues that Stigall's acts of bravado in confronting the robbers immediately after the robbery and several days later nullify any fear of death or bodily injury Stigall might have felt during the robbery. Winkfield v. State, 792 S.W.2d 727, 732 (Tex. App.-Corpus Christi 1990, pet. ref'd). In Winkfield, the court held that testimony regarding the after-effects each victim experienced was relevant to prove the victims had been put in fear of imminent death or bodily injury during the robbery. Id. The appellant urges this court to expand the holding in Winkfield by holding that after-effects evidence can also negate an element of an offense. However, in undertaking a review of the legal sufficiency of the evidence, we consider only the evidence supporting the trial court's judgment. Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Alvarado, 912 S.W.2d at 207. Evidence of Stigall's actions after the robbery do not support the verdict; therefore, it is not for our consideration. The jury, not appellate judges, are the fact-finders, and in a review of the legal sufficiency of the evidence, we "may not re-evaluate the weight and credibility of the record evidence." Alvarado, 912 S.W.2d at 207. Based on the evidence presented at trial, a rational jury could have found beyond a reasonable doubt that Stigall was in fear of imminent bodily injury or death at the time of the robbery. Consequently, the evidence was legally sufficient to support the appellant's conviction. The appellant's point of error is overruled. The judgment is affirmed. BOBBY L. CUMMINGS Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed October 30, 1996 Do not publish	01-03-2023	09-10-2015
https://www.courtlistener.com/api/rest/v3/opinions/2608577/	127 Ariz. 362 (1980) 621 P.2d 49 GREENLAW JEWELERS, Petitioner Employer, State Compensation Fund, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Nathan G. Morris (Deceased), Toni M. Morris (Widow), Timothy Lee Morris (Minor Child), Respondent Employee. No. 1 CA-IC 2391. Court of Appeals of Arizona, Division 1, Department C. December 4, 1980. 363 Robert K. Park, Chief Counsel, State Compensation Fund by Arthur B. Parsons, Phoenix, for petitioner employer and petitioner carrier. Calvin Harris, Chief Counsel, Phoenix, The Industrial Commission of Arizona, for respondent. Mangum, Wall, Stoops & Warden by Daniel J. Stoops, Flagstaff, for respondent employee. OPINION OGG, Chief Judge. This is an appeal from an award of the Industrial Commission finding that an employee's injuries did arise out of and in the course of employment. The petitioners, employer and carrier, contend that the award is not supported by the evidence. We disagree and affirm the decision of the Industrial Commission. The facts necessary for a determination on this matter are as follows. Nathan Morris was President of Allied Jewelers, Inc. Allied had various inter-relationships with enterprises in which Morris was involved, including the defendant employer, Greenlaw Jewelers. Greenlaw Jewelers, a fine jewelry store located in Flagstaff, was owned by Allied. Morris was employed by Greenlaw and made weekly out-of-town trips to Albuquerque, Dallas and Phoenix by buy merchandise for resale at Greenlaw. On December 27, 1978, Morris was advised by the manager and assistant manager of Greenlaw Jewelers that certain kinds of jewels were needed by the store. Thereafter, Morris departed from the Flagstaff airport in an aircraft owned by and registered to Allied Jewelers. He flew to Albuquerque, where he stayed for two days. On the morning of December 29, 1978, Morris left Albuquerque and flew to Phoenix. In the late afternoon of the 29th, Morris commenced his flight back to Flagstaff, arriving in the vicinity of the Flagstaff airport around 6:30 p.m. While attempting to land his plane at the Flagstaff airport, his plane accidentally crashed. Morris, the sole occupant, was instantly killed. At the site of the crash, numerous small stones were found which appeared to be diamonds needed for the Greenlaw business. Morris' survivors filed a claim for workmen's compensation benefits and compensation was denied by the defendant insurance carrier. The respondent widow timely filed a request for a hearing. The administrative law judge found that Morris' trip from Flagstaff to Albuquerque was for business relating to Greenlaw. This finding was based on the fact that stones thought to be diamonds were found at the crash site and that Morris' activities in Phoenix did not allow time for him to contact anyone concerning the purchase of the stones. The administrative law judge, however, found that the evidence concerning Morris' trip from Albuquerque to Phoenix established that it involved business unrelated to that of Greenlaw Jewelers. Nevertheless, the administrative law judge concluded that at the time of the accident, Morris had completed his diversionary trip and arrived at the Flagstaff airport, a "common point" of destination. Therefore he was acting in the course and scope of his employment. The decision to award workmen's compensation was affirmed upon review, and this petition for special action was perfected pursuant to Rule 10 of the Rules of Procedure for Special Action. This court will consider the evidence in a light most favorable to sustaining the award and the Commission's findings must be sustained if reasonably supported by the evidence. Micucci v. Industrial Commission, 108 Ariz. 194, 494 P.2d 1324 (1972). Where the hearing officer has resolved a conflict in the evidence, the court of appeals must affirm the award if it is supported by any reasonable theory of the evidence, even if the court would have decided the case differently had it been the trier of fact. 364 Bergstresser v. Industrial Commission, 118 Ariz. 155, 575 P.2d 354 (App. 1978). A.R.S. § 23-1021(A) provides that: "Every employee ... who is injured ... by an accident arising out of and in the course of his employment ... shall be paid ... compensation...." To "arise out of the employment", an injury must result from a risk of the employment. To "arise in the course of the employment", an injury must have occurred in the time, place and circumstances of the work environment. Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970); Hartford Accident and Indemnity Company v. Industrial Commission, 126 Ariz. App. 309, 614 P.2d 851 (1980). In the present case there is no question that the injury arose out of the employment if in fact it arose in the course of the employment. Petitioner argues that the respondent widow failed under the dual purpose doctrine to prove that the deceased was acting within the course of his employment. The dual purpose doctrine states that: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If however, the work has had no part in creating the necessity of travel, if the journey would have gone forward though the business errand had been dropped ... the travel is then personal and personal the risk. Kriese v. Industrial Commission, 27 Ariz. App. 318, 320, 554 P.2d 914, 916 (1976), quoting Marks' Dependents v. Gray et al., 251 N.Y. 90, 167 N.E. 181, 183 (1929). See A. Larson, Workmen's Compensation Law, § 18.12 (1972). In the present case, the record permits the inference that the trip to Albuquerque would have been made regardless of whether Morris had private errands in either Albuquerque or Phoenix. The record indicates that Mr. Morris' work created the necessity for travel. It was established that Morris functioned as a buyer of gems and stones for Greenlaw, and that Morris frequently conducted his buying activities in Albuquerque. Upon hearing of the need for certain gems and stones by Greenlaw Jewelers, Morris promptly headed for Albuquerque using a customary method of transportation. That Morris purchased the gems and stones in Albuquerque is further supported by the fact that such gems and stones were found at the crash site, and Morris did not have sufficient time in Phoenix to purchase them there. Nothing in the record permits the inference that the trip to Albuquerque would have been cancelled if the private errand in Phoenix had been cancelled. Having concluded that the deceased was primarily on a business trip, we must now consider whether on traveling to Phoenix he abandoned or so deviated from his employment as to preclude compensability. Arizona courts follow the rule that once an employee resumes a direction that will take him back to his destination, he is presumed to be back in the course of his employment even if, at the time of the accident, he has not returned to the route he would have followed had there been no deviation. Gurovich v. Industrial Commission, 113 Ariz. 469, 556 P.2d 1131 (1976). See Sherrill & LaFollette v. Herring, 78 Ariz. 332, 279 P.2d 907 (1955); Stoddard v. Industrial Commission, 23 Ariz. App. 235, 532 P.2d 177 (1975); 1 A. Larson, Workmen's Compensation Law § 19.00 (1978). This court has noted, however, that this test should not be applied in a purely mechanical manner. "Due regard should be given to whether the length of the abandonment and the nature of the activities during the abandonment, ... preclude effective return to employment and added substantial risks, not otherwise present to the continuation of the journey." Fisher Contracting Co. v. Industrial Commission, 27 Ariz. App. 397, 401, 555 P.2d 366, 370 (1976). In the present case, the evidence supports the administrative law judge's decision. At the time of the accident, Morris had not only resumed a direction that would take him back to his business destination, *365 he had returned to the route he would have followed had there been no deviation. In addition, the administrative law judge found that the evidence did not establish that the deviation had increased the risk of an accident occurring. Finding number thirteen in part states: It is basically unascertainable whether there was any substantial increased risk by reason of said time/distance deviation; that thus, it may be inferred from nominal evidence in the record that the weather conditions were worse on the evening of the crash and it may be speculated said conditions would have been better during the midday hours, but it is unknown whether this is in fact what caused the crash; that it is likewise possible other weather/mechanical conditions would have been different had the return trip been made directly to Flagstaff rather than via Phoenix; that contrarily, there may have been no difference in the weather conditions (from the record available), and/or the crash may have been due solely or primarily to "pilot error" which would have occurred on a direct trip from Albuquerque to Flagstaff, as well as via the deviation through Phoenix to Flagstaff; ... Petitioner argues that the length and distance of the delay in and of itself should require this court as a matter of law to infer Morris had abandoned his employment. This court, however, declines to so rule. This court will not usurp the function of the fact finder. See Fisher Contracting Co. v. Industrial Commission, supra. The question of whether Morris abandoned his employment by traveling to Phoenix involved factual determinations which the administrative law judge resolved. We cannot say that the evidence compelled any other conclusion. The award is affirmed. DONOFRIO and O'CONNOR, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2608578/	621 P.2d 325 (1981) The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. George Randall FOUNDS, Defendant-Appellee. No. 80SA364. Supreme Court of Colorado, En Banc. January 5, 1981. 326 Robert L. Russel, Dist. Atty., Keith Cross, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant. J. Gregory Walta, State Public Defender, Denver, Jeffrey Dworkin, Deputy State Public Defender, Colorado Springs, for defendant-appellee. LOHR, Justice. In this interlocutory appeal under C.A.R. 4.1, the People seek reversal of the El Paso county district court's order granting the defendant's motion to suppress certain statements made by him to Colorado Springs police officers. We affirm. On the evening of March 28, 1980, two police officers were dispatched to a store in a Colorado Springs shopping center after the burglar alarm in that store had been triggered. Upon arrival at the store, the officers saw the defendant, George Randall Founds, standing by a broken store window. Nearby was a suitcase. When the defendant saw the police he began to run. The officers pursued in their vehicle and caught the defendant after a short chase. He was arrested, searched, handcuffed, and placed in the back seat of the police car. Without advising the defendant of his Miranda[1] rights, the officers sought to learn from him whether anyone else was inside the store. In reply to their questions, the defendant said that another person, whom he named and described, was or might be in the store and that the person was unarmed. Thereafter, another officer arrived and, again without a Miranda advisement, asked the defendant some of the same questions and received similar answers. The defendant then was transported to the police station in a police car. During the trip, in response to questions by an officer, the defendant stated that the other party had a vehicle. In answer to further inquiries, the defendant described 327 that vehicle and its location. No Miranda advisement preceded this questioning. After the defendant arrived at the police station, he was interrogated and gave a detailed statement with respect to the break-in at the store and the events which led to it. Two days later, while he was still in custody, the defendant supplemented that statement in answer to further questions by the police. Each of the two interrogations at the police station was preceded by a proper Miranda advisement. The defendant moved to suppress all the statements made by him after he was arrested. The trial court found that all the statements made before the defendant arrived at the police station were obtained in violation of his Miranda rights and that both statements made at the police station were tainted by the prior illegal statements and therefore were inadmissible pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In this appeal the People contend that all of the statements are admissible. We conclude that the trial court properly suppressed each of the statements. I. First, we consider the statements made before the defendant arrived at the police station. Statements obtained by the police as a result of interrogation of one who is in custody cannot be received in evidence unless the person questioned was first advised of certain constitutional rights, including the privilege against self-incrimination and the right to counsel. Miranda v. Arizona, supra. The People do not contend that the defendant was not interrogated on three occasions while he was seated in the back of a police car or that he was not in custody when the questioning took place. Rather, they urge that we recognize an exception to the Miranda rule to permit custodial interrogation directed to obtaining information important to protect the safety of officers engaged in the immediate on-scene investigation of a crime. See People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975). No such exception is appropriate here. The trial court specifically found that the questions asked by the officers went far beyond matters relevant to self-protection, noting in particular the questions about the general description of the other participant and whether he was driving a vehicle. It found that the officers asked the questions to build a case for apprehension of the other person as well as to build a case against the defendant. This is the very type of questioning for which the Miranda safeguards were designed. The trial court's factual findings are supported by the record and cannot be disturbed on review. E. g., People v. Lowe, Colo., 616 P.2d 118 (1980); People v. Scott, Colo., 600 P.2d 68 (1979); People v. Kelley, 172 Colo. 39, 470 P.2d 32 (1970). Accordingly, we conclude that the statements made by the defendant before he arrived at the police station were properly suppressed. II. We next consider the statements made at the police station. Any statements which were obtained as a product of a prior illegally obtained statement are "fruit of the poisonous tree" and cannot be received in evidence. Wong Sun v. United States, supra. As we have recently said, "If the evidence to which the objection is made has been produced by exploitation of the initial illegal police action, the evidence is tainted and inadmissible. But if the evidence has been obtained by means sufficiently distinguishable to be purged of the primary taint, the evidence is admissible." People v. Lowe, Colo., 616 P.2d 118, 123 (1980); accord, e. g., People v. Bates, 190 Colo. 291, 546 P.2d 491 (1976). The People have the burden to establish that the statements made at the police station were not products of the defendant's earlier statements, which were illegally obtained. Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968); People v. Lowe, supra. *328 In the present case, the People did not carry that burden. The defendant testified that one reason he made his statements at the police station was that he had already admitted the crime in the earlier statements which we have concluded were obtained in violation of his Miranda rights.[2] This evidence supports the trial court's factual finding that the statements at the police station were the products of the illegally obtained earlier statements.[3] Because that finding is supported by the record, it cannot be disturbed on review. E. g., People v. Lowe, supra; People v. Scott, supra; People v. Kelley, supra. The statements made at the police station were properly suppressed. See People v. Hutton, 190 Colo. 382, 547 P.2d 237 (1976). The ruling of the trial court is affirmed. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [2] The defendant's testimony was not fully consistent as to whether he thought his earlier statements could be used against him. It was within the province of the trial court as finder of fact to resolve those inconsistencies. [3] The trial court noted but did not resolve a question whether the defendant's statements at the police station were otherwise voluntary. The conclusion, with which we agree, that the statements must be excluded as fruit of the poisonous tree made it unnecessary to consider this question.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1903236/	748 So.2d 454 (1999) Gene O. NORTON v. CLAIBORNE ELECTRIC CO-OP, INC. et al. No. 99-C-1823. Supreme Court of Louisiana. October 1, 1999. Denied. JOHNSON, J., not on panel.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2611724/	210 Or. 317 (1957) 310 P.2d 624 WATERS v. BIGELOW ET AL Supreme Court of Oregon. Argued April 3, 1957. Affirmed May 1, 1957. Norman L. Easley argued the cause for appellant. On the brief were Easley & Whipple, Portland. Wayne A. Williamson, Portland, argued the cause for respondents. With him on the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland. Before PERRY, Chief Justice, and ROSSMAN, BRAND and McALLISTER, Justices. AFFIRMED. 318 ROSSMAN, J. This is an appeal by the plaintiff from an order of the circuit court which sustained a plea in abatement entered by the defendant, James A. Bigelow, and thereupon dismissed the complaint as to him. The appeal is not concerned with the other defendant, Oscar Winesap. The action was instituted by the plaintiff to recover damages for injuries incurred by a truck and trailer in a collision with a vehicle owned by the defendant-respondent Bigelow and driven by the other defendant, Winesap. The complaint alleged that the damages resulted from the negligent acts of the defendants and prayed for judgment in the amount of $5,876.92. Defendant Bigelow answered by way of a plea in abatement that plaintiff had recovered all or a part of his damage from an insurance company under a policy of "collision" insurance; that the insurance company had thereby become subrogated to the rights of the plaintiff for the damage; and that the insurance company was, accordingly, a necessary party to the action. Upon a hearing, plaintiff admitted that a portion of his damage had been paid by his insurance carrier. The court thereupon allowed the plea in abatement and entered the challenged judgment. 1. The single question before this court, then, is whether an insured, who sues an alleged tort-feasor for the full amount of the damage allegedly sustained, must, upon the objection of the tort-feasor, join as a party to the action insured's insurance carrier when the latter has already paid a portion of the insured's loss. ORS 13.030 declares: "Every action or suit shall be prosecuted in the name of the real party in interest * ." 319 This court has ofttimes indicated that that provision requires mandatory joinder of the insurance carrier under the present circumstances. State Insurance Co. v. Oregon Ry. & Nav. Co., 20 Or 563, 26 P 838, was an action brought by the insurance carrier to recover from the tort-feasor the amounts which the carrier had paid to the insured. Those payments were less than the insured's total damage. It was held that the carrier could not bring the action alone, but would have to join with the insured if it desired to be a party to the action. Speaking of the insured and its carrier, the court said: "* * * Together they have a united interest in a single cause of action or liability to which the negligent act of the defendant gave rise. The insurer acquires, not a new and separate cause of action, but only a right or interest with the owner of the property in a single cause of action or liability, and cannot, therefore, in such case, sue in his own name alone. It is upon this principle, which preserves the indivisibility of the action arising out of one loss and one liability, that under the old practice the action would have been brought in the name of the insured for the benefit of all concerned; but, the Code requiring the action to be brought in the name of the real party in interest, the insurance companies and the owners of the property destroyed constituting such party, would have to join in the recovery." Home Mutual Insurance Co. v. Oregon Ry. & Nav. Co., 20 Or 569, 26 P 857, arose under facts similar to those in the State Insurance Co. case, except that the insured had already recovered from the defendant an amount equal to the difference between the total damage and its recovery from the insurance carrier. The 320 court held that the carrier could not prosecute the action without joining the insured. It remarked: " * * where the property is insured for less than its value, and is destroyed by the negligence of a third party, the insurance companies, who have paid the owner the insurance money, must be joined with him in an action to recover damages for the destruction of such property, and * * * upon a refusal of such parties to join as plaintiffs, they must be made defendants." Firemen's Fund Insurance Co. v. Oregon Ry. & Nav. Co., 45 Or 53, 76 P 1075, 67 LRA 161, was an action in which the insurance carrier paid insured a part of the loss and then both joined in an action against the tort-feasor. The court held that under those circumstances "the insurer and the insured become jointly interested in a single liability or cause of action, and united they are the real parties in interest, and entitled in that capacity to prosecute a joint action against the wrongdoer." It was added that if payment by the insurance carrier covers a part of the loss only "his subrogation entitles him to an interest merely equitable, which he has and holds in joint capacity with the assured, and they together may maintain an action for the entire loss against the wrongdoer." The court was answering defendant's contention that plaintiffs had been improperly joined and its use of the word "may", therefore, does not imply a holding that the joinder is merely permissive. Olds v. Von der Hellen, 127 Or 276, 263 P 907, 270 P 497, was an action in which plaintiff, the insured, had been paid $1,500 by his insurance carrier for a loss, 321 which allegedly totaled $4,000. Plaintiff asked for and recovered judgment for $2,500. The court first held that, although plaintiff should have recovered the full amount of his loss without deducting the amount received on the insurance, the judgment would be allowed to stand because the total loss was $2,500 and not $4,000. Upon rehearing, the court held that, although the deduction was not proper, it was, nevertheless, what the plaintiff had asked for, and his recovery was ordered reduced to $1,000. The court said that "Plaintiff should have joined the insurance company with him in this action and demanded the full amount of the damage suffered." It added: "The complaint was demurrable on the ground of defect of parties." Salzwedel v. Pinkley, 140 Or 671, 15 P2d 718, was an action by the insured against the tort-feasor. Plaintiff's insurer had paid him $800, the full amount of the policy (fire insurance) and, therefore, plaintiff prayed for judgment in the amount of his loss less $800. Defendants entered a plea in abatement on the ground that the insurer was a necessary party to the action, but the court refused to rule on it before their plea in bar and counterclaim were considered. Plaintiff won judgment for $575. The judgment was reversed and the cause remanded for a new trial. This court said: " * * It will be observed that the value of the property as alleged was in excess of the amount of insurance. Hence, under the well-settled rule in this jurisdiction, the insurance company was a proper and necessary party to the action: * * * Plaintiff and the insurer had a joint interest in the damages arising out of this single liability. There could not be a complete determination of the controversy without a joinder of the necessary parties to the action. It was the duty of the plaintiff to 322 make the insurance company a party when timely objection was made on account of defect in parties. The trial court was right in overruling the demurrer of plaintiff to the plea in abatement. It should have followed through by directing the joinder." The Salzwedel case is persuasive. It is, however, possible to distinguish it from the case at bar if one accepts the distinction recognized in Bryan v. Southern Pacific Co., 79 Ariz 253, 286 P2d 761. It was there pointed out that if the insurance payment covers the loss only partially, the insurance company should be forced to join only where the insured sues for the portion of the loss not compensated by the insurer. Thus, the Arizona court agreed with the result of the Salzwedel case, but the rule which it employed would not require joinder in the present case. However, this court has not recognized the distinction which is pointed out in the Bryan decision. The above completes a review of the Oregon decisions which have spoken upon the point at issue. None of them are direct holdings that the insurance company must be joined in like circumstances. However, the statements contained in them indicating that the joinder procedure is mandatory, reiterated as they have been many times, are not lightly to be cast aside. One further decision should be mentioned. Furrer v. Yew Creek Logging Co., 206 Or 382, 292 P2d 499, was an action to recover for property damage. Plaintiff had received $4,850 from his insurance carrier as a loan to be repaid only to the extent of any recovery the plaintiff might make from defendant. Defendant filed a plea in abatement, contending that the insurance company was a real party in interest and should be joined as a party plaintiff. The plea was denied, but, after plaintiff won a judgment in the amount of 323 $9,738.98, the court granted a new trial because it was of the opinion that the insurer was a necessary party. This court reversed, with directions to reinstate the judgment in favor of plaintiff. It was held that the money received by the insured was a loan and not payment under the policy and that, therefore, the insurance company was not a subrogee and was not a real party in interest. See Sosnow, Kranz & Simcoe v. Storalli Corp., 269 App Div 122, 54 NYS2d 780, aff. 295 NY 675, 65 NE2d 326. It is implicit that had the loan not been given effect, the lower court's ruling as to the necessity of plaintiff's joining the insurance company, upon objection by defendant, would have been upheld. 2. Plaintiff states that if the insurance company refused to join as a plaintiff, the insured would be without a remedy at law because ORS 113.170, the compulsory joinder statute, applies only to suits in equity. It has long been held, however, that unwilling plaintiffs can be joined as defendants at law as well as equity. Williams v. Pacific Surety Co., 66 Or 151, 127 P 145, 131 P 1021, 132 P 959, 133 P 1186; Williams v. Pacific Surety Co., 70 Or 203, 139 P 934; Rorvik v. North Pacific Lumber Co., 99 Or 58, 190 P 331, 195 P 163; and see ORS 1.160. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1354811/	711 P.2d 723 (1985) Patsy MINK and Marilyn Bornhorst, in their official capacity as council members of the City and County of Honolulu, State of Hawaii on behalf of themselves and all other voters of the City and County of Honolulu, Petitioners, v. Raymond K. PUA, City Clerk, City and County of Honolulu, Toraki Matsumoto and Rudy Pacarro, Respondents, and Republican Party of Hawaii, Intervenor. No. 10998. Supreme Court of Hawaii. December 4, 1985. 724 David C. Schutter, (David F. Simons and Janice E. Teramae with him on the petition, Schutter Cayetano Playdon, Honolulu, of counsel), for petitioners Mink and Bornhorst. Boyce R. Brown, Jr. (Mary Blaine Johnston and Cynthia H.H. Thielen with him on briefs, Brown & Johnston, Honolulu, of counsel), for respondents Matsumoto and Pacarro. Ronald B. Mun (A. Edward Fyffe, Jr. with him on brief), Deputy Corp. Counsels, Honolulu, for respondent Pua. George L. Dyer, Jr., Honolulu, for intervenor Republican Party of Hawaii. Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI, JJ., and Intermediate Court of Appeals Associate Judge TANAKA in place of WAKATSUKI, J., Recused. PADGETT, Justice. On Tuesday, November 26, 1985, we issued an order directing respondent Raymond K. Pua, Clerk of the City and County of Honolulu, to take appropriate action pursuant to HRS § 11-117(b) to carry into effect our ruling that respondents Toraki Matsumoto and Rudy Pacarro were disqualified to run in the special election held to fill their unexpired terms as a result of their having been recalled. In that order, we noted that a written opinion would follow. This is that opinion. Respondents Matsumoto and Pacarro were recalled when a majority of voters, voting on the question of their recall at a special election held for that purpose, voted in favor of the recall. The recall election was held pursuant to Sections 12-102 and 12-103 of the Revised Charter of the City and County of Honolulu. Section 12-103 provided in part: No person who has been removed from his elected office or who has resigned from such office after a recall petition directed to him has been filed, shall be eligible for election or appointment to any office of the City within two years after his removal or resignation. Pursuant to the direction of the United States Court of Appeals for the Ninth Circuit, the United States District for the District of Hawaii enjoined respondent Pua from refusing, on the basis of the provision just quoted, to place the names of respondents Matsumoto and Pacarro on the ballot to elect the persons to fill the unexpired terms from which they had been recalled. The question of whether, under other provisions of the Revised Charter, the recalled councilmen were eligible to run in the special election to fill their unexpired terms was not dealt with in the injunction. When a vacancy in the office of councilman occurs, the special election to fill that vacancy is held pursuant to the provisions of the Revised Charter of the City and County of Honolulu, Section 3-105(b), which provides as follows: Vacancy in Office A vacancy in the office of any councilman shall be filled in the following manner: .... (b) If the unexpired term is for one year or more, the vacancy shall be filled by special election to be called by the council within ten days and to be held within sixty days after the occurrence of the vacancy. At such time, the electors of the district shall elect a successor to fill the vacancy for the remainder of the term. If any special or general election is to be held in the city after thirty days and within one hundred eighty days after the occurrence of the vacancy, then the election shall be held in conjunction with such other election. 725 The above provision, by its terms, is a general one, providing for the filling of any vacancy, whether resulting from death, disability, resignation, recall, impeachment or because the councilman has moved out of his district. The key word in that section is the word "successor" and it necessarily must mean the same in all cases of vacancies, no matter how they occur. The definition of "successor" in Black's Law Dictionary at 1283 (5th ed. 1979) begins: One that succeeds or follows; one who takes the place that another has left, and sustains the like part or character; one who takes the place of another by succession. In 83 C.J.S. Successor at 770 (1953), it is stated: The term "successor" is variously defined as meaning he that followeth, or cometh in another's place; one that succeeds or follows; one who follows another into a position; one who succeeds or takes the place of another; one who succeeds to the rights or place of another; one who takes the place of another by succession; one who takes the place of a predecessor or preceding thing; one who takes the place which another has left, and sustains the like part or character; also, a person who has been appointed or elected to some office after another person. See also 40A Words and Phrases (1964) beginning at page 20. Thus, the usual meaning of the word "successor" is one who takes the place of another. No one has pointed to anything in the Charter, or in the history leading up to the adoption thereof, which would indicate an intention to depart from that ordinary meaning of the word "successor" in Section 3-105(b). On the other hand, it is difficult to conceive that the Charter was intended to allow, for example, an impeached councilman, or a councilman who had resigned, to run to fill the vacancy created by his or her impeachment or resignation. In such situations, the common sense of construing "successor" to mean what it ordinarily means and thus to bar the impeached or resigned councilman from running to succeed himself or herself is obvious. We see no reason why the ordinary signification of the word "successor" should not be also used with respect to one who fills a vacancy created by a recall election. A recalled councilman, by the special recall election, has had one opportunity to have the question of his or her continuance in office voted upon by the people. We find no evidence, in the Charter, of an intention to give him or her a second. Respondents Matsumoto and Pacarro contend that our construction of the Revised Charter violates Article I, section 8 of the Constitution of the State of Hawaii, which provides: No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unless by the law of the land. Clearly, Matsumoto and Pacarro have not been disfranchised by the provisions of the Charter. State and local governments have obvious and legitimate interests in provisions limiting an office holder's right to reelection or reappointment. Thus, for example, we have a constitutional provision which limits the number of consecutive terms a governor may serve. Article V, section 1, Constitution of the State of Hawaii. We also have statutory provisions which limit the number of years an appointee to administrative boards may serve. HRS § 26-34. The persons who take office, knowing of those requirements and accept them, are subject to such requirements. They thus are not deprived of any of the rights or privileges secured to other citizens except by the law of the land. Respondents Matsumoto and Pacarro also argue that our construction of the Charter is contrary to the First and Fourteenth Amendments to the Constitution of the United States under Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). 726 In that case a third party candidate, for President of the United States, did not get his papers filed with the proper Ohio officials by a March deadline. Under that statute, major party candidates did not have to file at that early date.[1] In that case, the Supreme Court of the United States said: Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any "litmus-paper test" that will separate valid from invalid restrictions. [Citation omitted.] Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. Id. at 789, 103 S.Ct. at 1570, 75 L.Ed.2d at 558. Applying that test, it seems clear to us that there is virtually no character or magnitude to the asserted injury to their rights that respondents Matsumoto and Pacarro seek to assert. They ran for office knowing they were subject to recall. A recall petition was duly circulated, signed and verified. A recall election was held as provided by statute. They lost by a majority vote of those voting on the issue of their recall. They now seek to be reelected to the office from which they have been vacated, hoping that, because there is no primary election as a forerunner to the special election to fill the vacancy, they may now be elected by a plurality less than a majority and thus vitiate the will of the people expressed in the recall election. Secondly, the interest of the City and County, as expressed in the Charter, is to give the citizens a right by a majority vote to recall councilmen for whatever reason the citizens may deem appropriate. If respondents Matsumoto and Pacarro could run again, the people would be required to reject them twice in order to have them out of office for the remainder of the term from which they were recalled.[2] Moreover, the provision with respect to vacancies is, as we have pointed out above, a general one and must be construed so as to apply to all vacancies, no matter how created. This adds another interest on the part of the City and County of Honolulu in barring recalled councilmen, along with resigned and impeached councilmen, from running to fill the vacancies created by their disqualification from office. Thirdly, the disqualification is necessary to accomplish the Revised Charter's purpose of letting the citizens decide whether or not to recall a councilman. The process of recall by a majority and reelection by a plurality which respondents urge, could, given the time limitations expressed in Section 12-103 of the Revised Charter of the City and County of Honolulu, be repeated several times during the second and third years of a councilman's four-year term. The people of the City and County of Honolulu adopted the Revised Charter. They had the right to provide for the recall of their elected officials and they likewise 727 had the right, within constitutional limitations, to create thereby a mechanism which would prevent the frustration of that right. This they have done, and their interest in so doing outweighs any possible impingement upon the interests of respondents Matsumoto and Pacarro to run again to fill their own vacancies. We find no constitutional impediment to the enforcement of the Charter provisions as we have construed them. We therefore hold that a recalled councilman is ineligible to run in the special election to fill the remainder of his or her unexpired term. Our previous judgment of disqualification stands. NOTES [1] The majority opinion in Anderson noted that the State's interest in political stability was adequately vindicated by another statute prohibiting a defeated candidate in a party primary from running as an independent. 460 U.S. at 783, 103 S.Ct. at 1567, 75 L.Ed.2d at 554. That provision is much closer to the Charter provisions of which respondents Matsumoto and Pacarro are complaining than the statute struck down in Anderson. [2] A provision expressly allowing recalled councilmen to run could have been included in the Charter if that was what was wanted. It was not.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874718/	889 So. 2d 965 (2004) DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. C.C., a Child, Respondent. No. 1D04-3977. District Court of Appeal of Florida, First District. December 20, 2004. Lucy Goddard-Teel, District Legal Counsel, Department of Children and Family Services, Gainesville, for petitioner. *966 No appearance for respondent. PER CURIAM. The Department of Children and Families (DCF) petitions for certiorari review of an order adjudicating C.C., a minor, incompetent to proceed in pending juvenile delinquency proceedings, and committing C.C. to DCF for placement in a community treatment program. We agree that the circuit court departed from essential requirements of law by committing C.C. in the absence of any competent, substantial evidence establishing that his incompetency to proceed is attributable to mental illness or retardation, and we therefore grant the petition. Addressing the commitment of minors to DCF for restoration-of-competency treatment, section 985.223(2), Florida Statutes (2004), provides that a child who is mentally ill or retarded who is adjudicated incompetent to proceed and who has committed a delinquent act or violation of law which would be a felony if committed by an adult must be committed to DCF for treatment or training. Conversely, however, the statute dictates that a child who is adjudicated incompetent to proceed because of age or immaturity, or for any reason other than mental illness or retardation, must not be committed to either DCF or the Department of Juvenile Justice for treatment or training. Although the trial court's form order in this case makes a finding that C.C. is incompetent to proceed due to mental illness, we agree with DCF that the written reports of the mental health providers relied upon by the trial court do not provide an evidentiary basis for this finding. Instead, these reports suggest that C.C.'s incompetence to proceed is attributable to his youthful age and consequent immaturity. Under these circumstances, the trial court was statutorily precluded from committing C.C. to DCF custody for restoration-of-competency treatment or training services. See Department of Children and Families v. C.R.C., 867 So. 2d 592 (Fla. 5th DCA 2004). Accordingly, the order of commitment is quashed and the matter is remanded for further proceedings consistent herewith. PETITION GRANTED, ORDER QUASHED and REMANDED. BOOTH, VAN NORTWICK and PADOVANO, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615089/	668 P.2d 265 (1983) NAMOW CORPORATION, dba Womens Hospital, Appellant, v. Alison McKay EGGER and John Egger, Respondents. No. 12584. Supreme Court of Nevada. August 31, 1983. 266 Ordowski & Eads, Las Vegas, for appellant. Morse & Foley, Las Vegas, for respondents. OPINION PER CURIAM:[1] This is an appeal from a judgment awarding appellant an equitable lien in the amount of $8,959.36 on the proceeds of a pending sale of a condominium located at Incline Village, Nevada. Appellant contends that it should have been allowed to enforce a constructive trust upon the property rather than being limited to the amount of the lien. Additionally, appellant contends that the community property of the respondents is available to satisfy the amount of a default judgment entered against respondent, Alison Egger. In 1973, Alison Egger commenced working in the accounting department of the Womens Hospital, a hospital located in Las Vegas and owned by appellant. Over the course of the next four years, she embezzled some $215,000 from the hospital. In 1976, the Eggers purchased the condominium at issue here, and some of the embezzled funds were used to make the down payment.[2] In 1977, Alison Egger's misappropriations were discovered and she was discharged. Shortly thereafter, she quitclaimed her interest in the condominium to her husband John Egger. In 1978, John Egger signed escrow instructions for the sale of the condominium for a price approximately $37,000 267 greater than the Eggers paid. Close of escrow has been held up by a lis pendens pending the outcome of this case. In November of 1977, appellant filed suit against the Eggers seeking to recover its funds. Appellant contended that the Eggers jointly conspired to deprive it of its funds. It sought a judgment holding the Eggers jointly and severally liable for the amount of the misappropriations and sought to enforce a constructive trust upon property held by the Eggers or other third parties which had been purchased with the misappropriated funds. At trial it was determined that John Egger was unaware of his wife's activities. This finding is not challenged by appellant. The trial court also found that John Egger had not benefitted from his wife's activities, that there was no existing community property as of the time of trial and that the misappropriated funds could not be traced into any former community asset. In its judgment the trial court held Alison Egger personally liable for the full amount of the misappropriated funds based on her default. The court refused to hold John Egger personally liable, but it did grant an equitable lien on the proceeds of the sale of the condominium in the amount of the down payment. Appellant contends that because misappropriated funds were used for the down payment on the condominium, the condominium was held subject to a constructive trust for appellant's benefit. Respondents do not contest that the down payment was made with misappropriated funds; they do assert that an equitable lien is the proper remedy for the return of misappropriated property in the hands of an innocent party. A constructive trust is a remedial device by which the holder of legal title to property is deemed to be a trustee of that property for the benefit of another who in good conscience is entitled to it. Locken v. Locken, 98 Nev. 369, 650 P.2d 803 (1982); see also Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d 991 (1966). When a thief embezzles money and uses it to purchase property, he or she can be required to convey the property to the person from whom the money was taken, by means of a constructive trust. See Haskel Engineering & Supply v. Hartford Acc., 78 Cal. App. 3d 371, 144 Cal. Rptr. 189 (1978); G & M Motor Co. v. Thompson, 567 P.2d 80 (Okl. 1977); Lane County Escrow Serv., Inc. v. Smith, 277 Or. 273, 560 P.2d 608 (1977); Restatement of Restitution § 202 (1937). Where the property which is subject to a constructive trust is gratuitously transferred to a donee, the donee holds the property upon a constructive trust for the equitable owner. See Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691 (1974); Corporation of Pres. of Ch. of Jesus Christ v. Jolley, 467 P.2d 984 (Utah 1970); Restatement of Restitution § 201; see also Restatement (Second) of Trusts § 289 (1959); Annot., 38 A.L.R. 3d 1354 (1971). John Egger contends that a constructive trust is inapplicable because the condominium has now been sold. As mentioned earlier, however, the contract of sale is still executory. Legal title is consequently still in respondent Egger. Thus, Egger's contention is without merit. We find no basis for the district court's judgment limiting appellant to an equitable lien in the amount of the down payment. Appellant should have been awarded a constructive trust on the condominium. Insofar as John Egger has made principal payments on the mortgage, and improvements, and has paid taxes and other charges related to the condominium, he is entitled to reimbursement. See Church v. Bailey, 90 Cal. App. 2d 501, 203 P.2d 547 (1949); cf. Janson v. Schier, 117 N.H. 570, 375 A.2d 1159 (1977) (reimbursement for costs of improvements available where transfer set aside as being in fraud of creditors); Angers v. Sabatinelli, 235 Wis. 422, 293 N.W. 173 (1940) (reimbursement for taxes, other charges, and payments on mortgage available where transfer set aside as in fraud of creditors); Restatement (Second) of Trusts § 291 comment p, § 292 comment d (1959) (reimbursement for expenses of taxes, other charges and improvements available where property subject to *268 constructive trust because transferred in breach of express trust). Appellant also seeks a declaration that other community property of the Eggers is available to satisfy the liability incurred as a result of Alison's misappropriations. The trial court made findings that no community assets existed between the Eggers, and that funds of plaintiff could not be traced into any former community asset. Appellant has challenged the evidence in support of this finding only insofar as it relates to the condominium. As it has already been determined that appellant is entitled to a constructive trust on the condominium, this issue need not be addressed. The district court's judgment against John Egger is reversed. This matter is remanded for a determination of the amount of reimbursement to which John Egger is entitled, and for entry of a judgment declaring a constructive trust on the condominium and any sale proceeds. NOTES [1] Justice John Mowbray voluntarily disqualified himself from the decision in this case. [2] The district court did not make a specific finding that the down payment was made with embezzled funds. Nevertheless, the amount of the equitable lien imposed by the district court was the exact amount of the down payment. There is no explanation for the district court's action other than an implied finding that the $8,959.36 down payment was made entirely with embezzled funds.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3099587/	DISMISS and Opinion Filed August 16, 2013 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00960-CV CONNIE LOOP, CONNIE LOOP RNFA, LLC, AND SURGICAL STAFFING, LLC D/B/A TX SURG. SERVICES, LLC, Appellants V. DR. DOUGLAS S. WON, MDCL CONSULTING, LTD., AND SKW PARTNERS, LP, Appellees On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-11494 MEMORANDUM OPINION Before Justices Moseley, Bridges, and Lang-Miers Opinion by Justice Bridges Before the Court is appellants’ July 24, 2013 motion to dismiss the appeal. Appellants have informed the Court that the parties have settled their differences. Accordingly, we grant appellants’ motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(1). /David L. Bridges/ 130960F.P05 DAVID L. BRIDGES JUSTICE S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CONNIE LOOP, CONNIE LOOP RNFA, On Appeal from the 162nd Judicial District LLC, AND SURGICAL STAFFING, LLC Court, Dallas County, Texas. D/B/A TX SURG. SERVICES, LLC, Trial Court Cause No. DC-11-11494. Appellants Opinion delivered by Justice Bridges. Justices Moseley and Lang-Miers, No. 05-13-00960-CV V. participating. DR. DOUGLAS S. WON, MDCL CONSULTING, LTD., AND SKW PARTNERS, LP, Appellees In accordance with this Court’s opinion of this date, the appeal is DISMISSED. Subject to any agreement between the parties, it is ORDERED that appellees, DR. DOUGLAS S. WON, MDCL CONSULTING, LTD., AND SKW PARTNERS, LP, recover their costs of this appeal from appellants, CONNIE LOOP, CONNIE LOOP RNFA, LLC, AND SURGICAL STAFFING, LLC D/B/A TX SURG. SERVICES, LLC. Judgment entered August 16, 2013 /David L. Bridges/ DAVID L. BRIDGES JUSTICE –2–	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1875155/	490 So.2d 1257 (1986) Theodore Robert BUNDY, Appellant, v. STATE of Florida, Appellee. No. 68960. Supreme Court of Florida. June 26, 1986. James E. Coleman, Jr. and Polly J. Nelson of Wilmer, Cutler & Pickering, Washington, D.C., for appellant. Jim Smith, Atty. Gen. and Gregory Costas, Andrea Smith Hillyer and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee. PER CURIAM Finding that no motion for post-conviction relief under rule 3.850 has been filed, we affirm the circuit court's order denying the application for stay of execution. Our order is without prejudice to the appellant's right to file a motion for post-conviction relief in the trial court. See State ex rel. Russell v. Schaeffer, 467 So.2d 698 (Fla. 1985). It is so ordered. BOYD, C.J., and OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur. BARKETT, J., concurs specially with an opinion. NO MOTION FOR REHEARING WILL BE ALLOWED. BARKETT, Justice, concurring specially. I agree that this case is controlled by State ex rel. Russell v. Schaeffer, 467 So.2d 698 (Fla. 1985), and therefore, I concur in the decision of the court. I am troubled, however, by the apparently unequal treatment afforded capital defendants under death warrant in the exercise of their rights under Florida Rule of Criminal Procedure 3.850. This rule establishes the right of a criminal defendant to collaterally attack his conviction. The rule specifically provides: Any person whose judgment and sentence became final prior to January 1, *1258 1985, shall have until January 1, 1987, to file a motion in accordance with this rule. The defendant's case falls within these parameters. To permit the shortening of this time period by execution prior to a defendant's opportunity to exercise the right afforded him by Rule 3.850 would seem to violate the equal protection and due process guarantees of our constitutions. "[T]he government violates the essence of due process when it creates a right to petition and then makes the exercise of that right utterly impossible." Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir.1982). Those criminal defendants whose convictions have become final prior to January 1, 1985, are given the opportunity to carefully and deliberately evaluate and present their claims until January 1, 1987. Should not capital defendants be afforded the same opportunity?	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875175/	288 Wis.2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 STATE v. BURSINGER.[] No. 2004AP002911 CR. Court of Appeals of Wisconsin. October 4, 2005. Unpublished Opinion. Affirmed. NOTES [] Petition to review filed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3097587/	Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-13-00828-CR Saul Matthew CASTILLO, Appellant v. The STATE of Texas, Appellee From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR10721 Honorable Lori I. Valenzuela, Judge Presiding BEFORE CHIEF JUSTICE STONE, JUSTICE MARION, AND JUSTICE BARNARD In accordance with this court’s opinion of this date, the trial court’s judgment is AFFIRMED. SIGNED July 9, 2014. _____________________________ Marialyn Barnard, Justice	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2611723/	150 Cal.App.2d 740 (1957) ELIZABETH B. JOHNSON, Plaintiff, v. DON RICH et al., Defendants; DONALD REICHGOTT, Respondent; INTERNATIONAL AIRPORTS, INC. (a Corporation), Appellant. Civ. No. 22029. California Court of Appeals. Second Dist., Div. Three. May 9, 1957. A. J. Blackman for Appellant. Goodstein, Moffitt & Rosen for Respondent. SHINN, P. J. Elizabeth B. Johnson, assignee of George Batchelor, Batchelor Enterprises and International Airports, Inc., recovered judgment against Don Reichgott, who calls himself Don Rich, and Ann Rich in the sum of $7,320.28 and attorney's fees, the balance unpaid on a promissory note, and a judgment against Don Rich and Fred A. Miller for $1,500 744 for services rendered. By the judgment Rich was awarded $7,700 upon his cross- complaint against appellant International Airports, Inc. The contentions on appeal all relate to claims of error in the trial of the issues raised by the cross-complaint of Rich and International's counterclaim to the cross- complaint. The court determined that $7,700 was owing by International to Rich as compensation under an agreement by which International agreed to pay Rich $2.00 out of each $32 earned by International for the servicing of airplanes which Airline Ground Service brought to International for maintenance. (Rich and Airline were one and the same. Rich was the sole owner of Airline.) The court found that the agreement related to three transport airplanes, namely, Numbers N59483, N62528 and N1651M, the first two of which were operated by Air America, Inc., and the third by Paul Mantz Air Services. International charged for maintenance $32 for each hour a plane had been flown since the last servicing. The court found that the airplanes had been flown for a total of 3,850 hours and this finding is not questioned. The answer to the cross-complaint alleged affirmative defenses. The first alleged that Rich "and his instrumentality, Airline Ground Service, Inc." were the agents of Air America, Inc.; America operated four aircraft; International maintained three of them for a charge of $32 per hour; Airline paid on behalf of America maintenance charges and was reimbursed by America. It was alleged that a fiduciary relationship existed between America and Airline. No question is presented on the appeal with respect to the second affirmative defense. By the third affirmative defense it was alleged that the agreement to pay Rich $2.00 for each hour of maintenance service on said planes was without consideration for the reason that International already had a written contract with America for maintenance of said aircraft. The fourth affirmative defense alleged that International had entered into a contract with one Fred A. Miller and Rich on the one hand, and International on the other, under which Rich and Miller agreed to furnish airplanes for maintenance service and that they had failed to perform the terms and conditions of said agreement for the reason that payment of $2.00 per hour of maintenance service was conditioned upon payment in full to International of all maintenance charges against the several aircraft. It was alleged that "said maintenance charges have never been paid." International filed a counterclaim to the cross-complaint 745 alleging that on May 8, 1952, one Fred A. Miller and Rich were partners, that Miller, an agent of Rich, agreed to deliver certain planes to International for service, and claiming damages for failure of Rich and Miller to deliver planes as agreed. It was alleged that four aircraft were not delivered on the agreed dates and that a fifth (N53472) was not delivered at all. Damages were alleged in the sum of $13,644. The points on appeal are the following: (1) Airline was the alter ego of Rich and the agent of America, with a duty to arrange for the maintenance of America's planes; Airline and Rich could not profit at the expense of America by accepting compensation from International for maintenance of America's planes; (2) any agreement of International to pay Rich for directing America's planes to International for service was without consideration for the reason that International already had a contract with America for maintaining the planes; (3) the agreement to furnish the planes for service was never fully performed; (4) the court committed error in admitting testimony as to the knowledge of Airline's directors of the Rich agreement with International; (5) the court failed to make findings upon material issues. Before entering upon a discussion of these several contentions we are impelled to say that we have seldom been confronted with a more confusing, inadequate and unsatisfactory record in what should have been a simple case. We have found it difficult to choose between reversal of the judgment because of the manifest inadequacy of the trial proceedings, including the decision of material issues, and the onerous burden of determining whether under appropriate rules of appellate procedure the judgment can and should be affirmed. It was admitted that Airline was the agent of America. The following were factual issues the court was called upon to decide: (1) whether America had knowledge of Rich's agreement with International for payment of so-called commissions at the rate of $2.00 per hour, and gave its consent to the arrangement (the court found that America had knowledge of the agreement); (2) whether International knew that Airline was the agent of America, had authority to place planes for maintenance and was compensated by America for the services (the court made no finding); (3) whether a certain agreement of May 8, 1952, for delivery of planes to International signed by Miller was executed on behalf of Rich as well as on his own behalf. This would depend upon the existence of a partnership between Rich and Miller with 746 respect to that transaction, as alleged by International (the court made no finding); (4) whether the agreement to pay Rich commissions was without consideration for the reason that he was a party to the agreement of May 8th under which the planes in question had, prior to the agreement with Rich, been delivered to International for service. If Rich was a party to the May 8th agreement there would be involved the question whether that agreement was superseded by one entered into November 25, 1952, to pay Rich commissions (the court made no finding); (5) if Rich was a party to the May 8th agreement, whether that agreement obligated him and Miller to deliver to International five planes, or was only an agreement to use their efforts to deliver five planes, and if the former, whether there was a breach of the agreement and whether International was damaged thereby. The latter were material facts for the reason that International was claiming damages of $13,644 for failure to deliver the planes as agreed (there was no express finding); (6) whether there was an agreement that commissions would be paid to Rich only in the event all charges for service of the planes in question had been paid, and whether such charges had been paid prior to the institution of the action (the court found there was such an agreement but made no finding whether the charges had been fully paid). It was found that on or about May 31, 1953, an account was stated between Rich and International and there was found due to Rich, by reason of the commission agreement, $7,700. It was also found that International became indebted to Rich for money had and received in the sum of $7,700, no part of which had been paid. Rich sought recovery of $1,079 for overpayment on the note, but, although the decision was against him upon this claim, he has not appealed and the point is not to be considered. As previously mentioned, International was given judgment for $1,500 against Rich and Miller for personal services of plaintiff's assignor, Batchelor, as an aviation consultant. The correctness of this feature of the judgment is not in question on the appeal. Plaintiff contends that the failure of the court to make findings on all material issues requires a reversal of the judgment. At the outset of our inquiry into this contention we note that at the direction of the court the attorney for plaintiff prepared the findings. It appears from the record that the court signed the findings, conclusions and judgment as prepared by plaintiff's attorney. The spectacle of an attack 747 made upon the sufficiency of the findings by counsel who prepared them is a novel one in our experience although, as we shall see, it has been viewed by other courts. [1] It is trite to say that it is the duty of the trial judge to see that the findings dispose of the essential factual issues to his satisfaction. But it is well known that frequently, if not usually, if findings are prepared by the party directed to prepare them and, as proposed, are not objected to, the judge signs them in the form in which they are presented. It is equally well known that for a trial judge to rely implicitly upon counsel in the preparation of findings is to invite reversal of his judgments. [2] An attorney who prepares inadequate or erroneous findings invites error on the part of the court, and if error is unwittingly committed by the court the responsibility rests upon the attorney and his client. [3] It is settled that where findings are prepared by counsel designated by the court and it appears that the attorney was at liberty to use his own judgment as to the text of findings, no claim of insufficiency of the findings will be entertained on appeal from the judgment. (Snow Mountain W. & P. Co. v. Kramer, 191 Cal. 312, 325 [216 P. 589]; Anderson v. Derrick, 220 Cal. 770, 775-776 [32 P.2d 1078]; Tucker v. Cave Springs Min. Corp., 139 Cal.App. 213, 218 [33 P.2d 871].) This is merely a phase of the rule that a party may not complain of error which he has invited. (4 Cal.Jur.2d 420-421.) Although the rule would not be strictly applied if to do so would penalize the party unjustly, we have no doubt that in the present case it should be applied in the manner and to the extent hereinafter set forth. [4] From the fact that plaintiff's attorney prepared the findings it follows that he requested no findings upon the issues as to which he contends the findings were deficient. Therefore, plaintiff must be held to have waived findings on those issues. [5] It is the general rule that where findings are waived it will be presumed that every fact essential to support the judgment was proved and found by the court. (24 Cal.Jur. 956.) There is an intention to admit the sufficiency of the findings and the evidence. [6] Here we have only a waiver of findings as to some of the material issues, and it is contended that as to some of the findings the evidence was insufficient. In this somewhat peculiar situation we think we should proceed as if the court had made findings on all issues that would be consistent with the evidence and 748 the judgment. It is reasonable to suppose that if plaintiff's attorney had believed that findings which he claims were omitted would have been in plaintiff's favor he would have asked the court to make them. Certainly findings favorable to International upon some of the issues respecting which no findings were requested would have been inconsistent with the judgment that was rendered on the cross-complaint and the counterclaim, and would have resulted in a judgment in favor of International. We shall therefore discuss the omitted findings, and the evidence pertaining to the subject matter of each, as if findings had been made in favor of Rich on all issues with respect to which the evidence was sufficient to justify the same. We shall discuss first the contention that there was insufficient evidence to support the finding that the terms of the commission agreement were disclosed by Rich to America. [7] Appellant relies upon the rule that an agent may not, without the consent of his principal, make a profit through use of his position. Therefore, it is contended Rich could not recover the commissions without proof that America consented to his receiving them. Without considering whether International could have developed facts that would have given International the benefit of the rule it is clear that it did not develop sufficient facts. The basis of the rule is that the agent has kept something for himself to which he has no right. It was therefore incumbent upon International to prove that America did not get the benefit of the commissions earned by Rich. There was a presumption against fraud to be overcome, and no evidence to overcome it. There were many ways in which America could have derived a benefit through Rich's arrangement with International. Mere suspicion that none of them existed is not sufficient. [8] But aside from this, there was testimony by Rich that he informed Miller of the arrangement while Miller was president of America and that he also informed a General Randall of the commission arrangement shortly before Randall became president. From the fact that America did not complain of the arrangement it was inferrible that the commission agreement was satisfactory to the company. There was also circumstantial evidence from which it could have been inferred that the receipt of commissions by Rich was not kept secret from America. Rich testified, and there was no evidence to the contrary, that all Airline's employers, namely, America, Mantz, Caribbean America (operated by Rich and Miller) 749 and one Illitch had knowledge of the payment of commissions. It appears to have been a general practice of Airline and International. [9] Appellant says there was no evidence that International knew that Rich had authority to place America's planes for maintenance service and then argues that in the absence of knowledge of that fact the commission agreement would have been invalid under the rules pertaining to dual agency. Batchelor, who represented International throughout, testified that at the time the agreement was made Rich and Miller had authority to place the planes in question for maintenance service. This was sufficient. [10] The court made no finding upon the defense to the cross- complaint of want of consideration. This defense was advanced on the theory that on November 25th International already had an agreement for the servicing of America's planes. It is true that by agreement entered into in June, 1952, the servicing of America's planes by International was the subject of a formal written agreement. However, by that agreement America did not promise to place with International any specific planes and although the agreement was to run for a year it was subject to termination by either party on 10 days' notice; moreover, regardless of this agreement, there was a consideration for the November 25th agreement. On May 8, 1952, an agreement was entered into between International and Miller (then president of America) reading as follows: "Maint Price to be $32--3 Comm. $8,000 per aircraft to be paid to Inter prior to each ship receiving 8,000 hr inspection. Thirty day cancellation. (Signed) Fred Miller, G. Batchelor. Schedule: 1st ship in 5 days, 2nd ship in 10 days, 3rd ship in 20 days, 4th ship in 30 to 45 days, 5th ship in 45 to 60 days." Under this agreement International had been paying Miller commissions at the rate of $3.00 per hour for maintenance. The November 25th agreement read as follows: "Miller, Rich and Batchelor. No commission on 487 of $3.00 per hr. unless ship allowed 1,000 hour on engines. From December 1, only $2.00 commission until a difference of $4,000. minimum to International Airports or until Slick does 8,000 hour overhaul 472 and 73M. Then maintenance on these ships goes to International Airport. This supersedes all other agreements." One copy of this agreement contained the notation "$29." It is clear from the evidence that by November 25th Miller had resigned as president of America, that Rich was taking over the matter of placing not only 750 America's planes but also other planes for service, that the May 8th agreement was superseded by the November 25th agreement and that instead of paying $3.00 per hour to Miller as in the past a commission of $2.00 was to be paid to Rich. Also by the later agreement International accomplished the purpose of preventing a cancellation by America of the June agreement which was subject to cancellation. This was substantial consideration. [11] Appellant contends that the May 8th agreement was made on behalf of Rich as well as by Miller, that it bound them to deliver five planes on certain dates, that they were not delivered on the agreed dates, one of them was never delivered to International and that International suffered damage. Rich was claiming commissions for work on only three planes, the court found that the November 25th agreement, which superseded all former agreements, related to work on only three planes and this finding had support in the testimony of Rich. There is no merit in the contention that there was a breach of contract on the part of Rich to deliver planes for service. Appellant contends that the evidence was insufficient to show that the maintenance charges on the airplanes delivered to International were paid. The court made no finding as to this issue although it was found that payment of commissions was conditioned upon payment of the charges. [12] It was alleged in the answer to the cross-complaint that the agreement between Rich and International provided that the $2.00 commission would be payable only against full payment to International of the maintenance charges against the aircraft. By this pleading and at the trial appellant assumed the burden of proving that the maintenance charges had not been fully paid. [13] Batchelor testified that there were maintenance charges with respect to Air America's three planes which were unpaid at the time of trial. However, there was evidence that invoices of International for maintenance services on America's planes were paid as late as August 1953 upon bills dated in July. The period for which Rich sought commissions was from December 1, 1952 to May 31, 1953. It was a reasonable inference that if invoices presented in July 1953 were paid when due, bills for maintenance services for prior months had also been paid; it is presumed that in business transactions the ordinary course of business has been followed (Code Civ. Proc., 1963, subd. 20), and in the absence of indisputable evidence to the contrary the presumption will support a finding based thereon. 751 Furthermore, Batchelor's testimony did not compel an inference that the unpaid maintenance charges related to the period for which Rich is seeking a commission. Although the court made no finding as to the issue of nonpayment, had counsel for appellant believed the court would have found that the condition of the oral agreement had not been performed, he would have requested such a finding. [14] Finally, since International tried the issue in the court below upon the assumption that nonpayment of the maintenance charges was a part of International's defense, it may not now assert that proof that the charges had been paid was a part of Rich's case. It cannot change the theory upon which it elected to stand in the trial court. (3 Cal.Jur.2d, 607.) The briefs discuss the evidence as to Airline's knowledge that Rich was collecting commissions. This is wasted effort. Rich, admittedly, was the sole stockholder of Airline. We have considered at length the contentions of International but there is yet a finding that is not mentioned in the briefs, namely, that an account was stated between Rich and International by which it was found that $7,700 was due Rich as commissions. This finding, alone, would be sufficient to support the judgment. However, for several reasons, we have refrained from adopting this finding as a basis for affirmance of the judgment; counsel have entirely overlooked the significance of the finding; the cross-complaint alleged that an account was stated May 31, 1953, by which it was found there was due to Rich $6,000, and this figure was changed by amendment during the trial to $7,700; we are in doubt whether plaintiff's counsel intentionally incorporated the finding in the findings he prepared, and whether the court intended to find an account had been stated. That finding is merely another of the oddities that have perplexed us. In view of the evidence we do not understand why counsel for plaintiff requested the court to make the finding nor why the court made it. Neither do we understand why it is ignored in the briefs. Nevertheless the finding, in the absence of any attack upon it, would preclude a reversal. The judgment is affirmed. Wood (Parker), J., and Vallee, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3167010/	Filed 1/4/16 P. v. Gowey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ---- THE PEOPLE, C079949 Plaintiff and Respondent, (Super. Ct. No. CRF15-253) v. MATTHEW ELLIS GOWEY, Defendant and Appellant. This appeal comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436. A complaint filed in May 2015 charged defendant Matthew Ellis Gowey with failing to register as a sex offender within five days of his birthday (count 1; Pen. Code, §§ 290.012, subd. (a)/290.018, subd. (b)),1 failing to register change of address (count 2; § 290.013), and failing to register annually (count 3; § 290, subd. (b)). 1 Undesignated statutory references are to the Penal Code. 1 Defendant entered into an open plea of guilty to count 1, with counts 2 and 3 to be dismissed, and with the right to argue for a grant of probation.2 The prosecutor stated the factual basis for the plea as follows: “The Defendant is required to register pursuant to 290 because of -- multiple prior convictions for sex offenses, including a first degree sexual abuse conviction out of Oregon in 2005. He also is required to register pursuant to a 290.018 violation in Sutter County in 2011, case F-11-674. [¶] In this case, the Court would learn, if witnesses were called, that in the county of Yuba, the Defendant was residing from approximately March of 2014 through May of 2015, and he, after moving to Yuba County from Yuba City, failed to register in Yuba County, despite residing at -- I believe it was the Rio Inn in Marysville. He was not registered there. He was not registered as a transient. And, particularly, for Count I, he turned -- he had a birthday on May 11th, 2014, and he did not register or reregister within five working days of that birthday, knowing that he had a duty to do so.” The trial court thereafter sentenced defendant to the midterm of two years in state prison on count 1. The court awarded no presentence custody credits because defendant had not been incarcerated for the present offense. The court imposed a $900 restitution fine (§ 1202.4, subd. (b)), a $900 suspended parole revocation restitution fine (§ 1202.45), a $40 court security assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, 2 Defendant’s written plea agreement states that the plea is “no contest,” but in open court defendant pleaded guilty. 2 and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. DISPOSITION The judgment is affirmed. NICHOLSON , Acting P. J. We concur: MAURO , J. MURRAY , J. 3	01-03-2023	01-04-2016
https://www.courtlistener.com/api/rest/v3/opinions/1033186/	court will reverse sentencing decision supported only by impalpable and highly suspect evidence). Accordingly, we ORDER the judgment of conviction AFFIRMED. Gibbons J. J. Douglas Saitta cc: Hon. Michelle Leavitt, District Judge Kristina M. Wildeveld Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk SUPREME COURT OF NEVADA 2 (0) 1947A _a I V>MEINFFMNIERBE	01-03-2023	07-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/2611737/	50 Wash. 2d 229 (1957) 310 P.2d 863 JOHN L. MILLER, Respondent, v. THE CITY OF PASCO et al., Appellants.[1] No. 33766. The Supreme Court of Washington, En Banc. May 2, 1957. Richard G. Patrick, for appellants. John Horrigan and Theodore D. Peterson, for respondent. OTT, J. John L. Miller sought a judgment to declare chapter 294, Laws of 1955, p. 1317, unconstitutional, and to enjoin the city of Pasco (a city of the third class) from leasing or disposing of the real property described in the act. The city's demurrer, challenging the right of the plaintiff to institute the action, was overruled. By its answer, the city alleged that it was authorized by chapter 294, Laws of 1955, to sell or lease the property in question, and that the law was constitutional. Further answering the complaint and as an affirmative defense, the city alleged that it was expressly authorized to lease or sell the real estate by RCW 35.24.010 [cf. Rem. Rev. Stat. (Sup), § 9914] and RCW 35.24.300 [cf. Rem. Rev. Stat., § 9128, Laws of 1915, chapter 231 184, § 15, p. 658]. The reply denied the affirmative matters pleaded. Upon the trial, the issues being thus joined, the court determined (1) that John L. Miller was a proper party plaintiff, (2) that the city of Pasco could not lease or dispose of the property by sale, and (3) that chapter 294, Laws of 1955, was unconstitutional. The city of Pasco has appealed. In determining that the respondent had the capacity to maintain this action, the court relied upon State ex rel. Lemon v. Langlie, 45 Wn. (2d) 82, 273 P. (2d) 464 (1954). In that case, this court held that a resident taxpayer was a proper party plaintiff in a mandamus proceeding against state officers, where, as in the instant case, the attorney general had declined to institute the action after being requested so to do. The rule announced in the Lemon case permitted such a proceeding to be instituted by a taxpayer under those circumstances, and where the proceeding related to the performance of duties by state officers. [1] The rule is not apposite to the issue here presented. This is a declaratory judgment proceeding in which an act of the legislature is challenged as being unconstitutional. The uniform declaratory judgment act (RCW 7.24) specifies who may institute such proceedings. RCW 7.24.020 [cf. Rem. Rev. Stat. (Sup.), § 784-2] provides in part: "A person interested ... whose rights, status or other legal relations are affected by a statute, municipal ordinance, ... may have determined any question of construction or validity arising under the ... statute, ordinance, ... and obtain a declaration of rights, status or other legal relations thereunder." RCW 7.24.050 [cf. Rem. Rev. Stat. (Sup.), § 784-5] provides in part: "The enumeration in RCW 7.24.020 ... does not limit or restrict the exercise of the general powers conferred in RCW 7.24.010, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty." 232 RCW 7.24.120 [cf. Rem. Rev. Stat. (Sup.), § 784-12] provides: "This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered." Applying the legislative mandate of liberal construction to the facts in this case, the record establishes that John L. Miller is a resident and taxpayer of Pasco, and otherwise meets the qualifications of an interested person, as defined by RCW 7.24.020, supra. The court did not err in its finding that John L. Miller was a proper party plaintiff. Does RCW 35.24.010, supra, grant to cities of the third class the power to dispose of property, the fee title to which was obtained by condemnation? RCW 35.24.010 provides in part as follows: "Every city of the third class ... may purchase, lease, receive, hold, and enjoy real and personal property and may control and dispose of it for the common benefit; ..." (Italics ours.) [2] The intention of the legislature is clear that, when cities of the third class obtain unqualified title to real estate, they may dispose of it when such disposition is for the common benefit. There is nothing in the act which would indicate that fee title to real estate must remain irrevocably in the municipality. The act provides that third-class cities may "dispose of it [property] for the common benefit." [3] To ascertain legislative intent in the interpretation of a statute, the words used are to be given their usual and ordinary meaning. Pacific Northwest Alloys v. State, 49 Wn. (2d) 702, 705, 306 P. (2d) 197 (1957). What is the usual and ordinary meaning of the words "dispose of"? Webster's New International Dictionary (2d ed.) defines the words as "To get rid of; ... part with; ... bargain away." [4] Since the city's acquisition of this property in 1945, Pasco has had an unusual growth, both in area and in population. Parks and playgrounds were needed and provided 233 in other sections of the city. In the exercise of their discretion, the city authorities determined that the property here in question was no longer needed for the purpose for which it was acquired, and that the common benefit required that it be leased or sold. Giving the words, "dispose of," their usual and ordinary meaning, RCW 35.24.010 authorizes the sale of the property, under the facts of this case. Does RCW 35.24.010, supra, grant to cities of the third class authority to lease such property? [5, 6] The act grants to cities of the third class the right to control such property for the common benefit. In the absence of a specific legislative grant to cities of the third class to permit the leasing of municipally-owned property, such cities are not authorized to delegate the control of their property to others. The power to grant the control of municipally-owned property, by lease or otherwise, is not given to cities of the third class by RCW 35.24.010. Is the power to lease municipally-owned real estate for parking lot purposes granted to cities of the third class by RCW 35.24.300, supra? The section provides in part: "The city council of such city shall have power to purchase, lease, or otherwise acquire real estate and personal property necessary or proper for municipal purposes and to control, lease, sublease, convey, or otherwise dispose of the same; to acquire and plat land for cemeteries and parks and provide for the regulation thereof; to lease any water front and other lands adjacent thereto owned by it for manufacturing, commercial or other business purposes; to lease for wharf, dock and other purposes of navigation and commerce such portions of its streets which bound upon or terminate in its waterfront or the navigable waters of such city, subject, however, to the written consent of the lessees of a majority of the square feet frontage of the harbor area abutting on any street proposed to be so leased." [7, 8] Two rules of statutory construction, to which we have uniformly adhered, apply to the issue presented by this proceeding: (1) that each and every section of a legislative enactment must be given meaning, and (2) where general powers are granted with specific powers enumerated, the general powers are modified, limited, and restricted 234 to the extent of the specific enumeration. Groves v. Meyers, 35 Wn. (2d) 403, 213 P. (2d) 483 (1950); State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951); Public Hospital Dist. No. 2 of Okanogan County v. Taxpayers of Public Hospital Dist. No. 2 of Okanogan County, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954); 50 Am. Jur. 244, § 249; 82 C.J.S. 658, § 332. [9] If, as appellant contends, cities of the third class, by RCW 35.24.300, supra, have general power to lease, sublease, convey or otherwise dispose of their real estate, then the remainder of the quoted portion of the section, which authorizes specific types of leases, is surplusage and meaningless. By this section, the power of a city of the third class to lease its municipally-owned lands is limited to (1) waterfront property to be used for the purposes of manufacturing, etc., and (2) property to be used for wharves, docks, and other navigation purposes. The legislative grant to lease municipally-owned property, as provided by RCW 35.24.300, supra, is ambiguous and requires judicial interpretation. The general and specific powers above enumerated are all contained in a single sentence. In order to give the entire sentence meaning and to retain the limited types of leases which the legislature specifically authorized cities of the third class to execute, the general grant of power must yield in its scope to the specific powers enumerated. For the reasons stated, the authority to lease municipally-owned property for the purpose of establishing a parking lot is not conferred upon cities of the third class by RCW 35.24.300, supra. The trial court did not err in its determination that the city should be enjoined from leasing the property involved in this proceeding. Is chapter 294, Laws of 1955, supra, unconstitutional as being special legislation? The act provides: "The city council of the city of Pasco, upon finding that the property is not required for park purposes, shall have power to lease, sell, or otherwise dispose to the best and highest bidder after advertising for bids in not less than three editions of the official newspaper, the following described 235 property located in Franklin county, state of Washington: [property description]." Art. II, § 28, of the state constitution, provides in part: "The legislature is prohibited from enacting any private or special laws in the following cases: ... "6. For granting corporate powers or privileges." [10] In Terry v. King County, 43 Wash. 61, 86 P. 210 (1906), we held that Art. II, § 28, subd. 6, of the constitution, applies to legislation granting special powers to municipal corporations. Chapter 294, Laws of 1955, grants to the city of Pasco authority to lease its municipally-owned property. Such power has not been granted to other cities of the third class. The legislature has attempted to limit the grant of this authority to one particular city of the third class, and, hence, it is special legislation as that term is defined in Young Men's Christian Ass'n v. Parish, 89 Wash. 495, 154 P. 785 (1916), where we stated: "A special law is one which relates to particular persons or things, while a general law is one which applies to all persons or things of a class." The trial court did not err in declaring chapter 294, Laws of 1955, unconstitutional as violative of Art. II, § 28, of the state constitution. The judgment of the trial court is modified by dissolving the injunction restraining the sale of the property by the city. In all other respects, the judgment is affirmed. HILL, C.J., DONWORTH, WEAVER, ROSELLINI, and FOSTER, JJ., concur. MALLERY, J. (dissenting) I dissent. The respondent brought this action to restrain the city of Pasco from leasing a tract of its land for a parking lot. He predicated his cause of action upon the damage the parking lot would do to his residential property five blocks away by reason of decreasing its market value, and the damage to his construction business resulting from the construction by a competitor of a contemplated private shopping district adjacent to the parking lot. No zoning violation is alleged. 236 Parking is a police power problem to be solved by the legislative, not the judicial, branch of the government. This action does not lie because (1) the city acted within its legislative authority, and (2) the respondent has no justiciable interest in the public policy here in question. (1) RCW 35.24.290 [cf. Rem. Rev. Stat., § 9127] provides, inter alia: "The city council of each third class city shall have power: ... "(18) To make all such ordinances, bylaws, rules, regulations and resolutions, not inconsistent with the Constitution and laws of the state of Washington, as may be deemed expedient to maintain the peace, good government and welfare of the corporation and its trade, commerce and manufactures, and to do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter, and to enact and enforce within the limits of such city all other local, police, sanitary and other regulations as do not conflict with general laws; ..." RCW 35.24.300 [cf. Rem. Rev. Stat., § 9128] provides, inter alia: "The city council of such city shall have power to purchase, lease, or otherwise acquire real estate and personal property necessary or proper for municipal purposes and to control, lease, sublease, convey or otherwise dispose of the same; ..." The appellant has ample statutory authority to lease the land for a parking lot. (2) The respondent cannot maintain his action. Minorities have many constitutional rights which majorities cannot violate with impunity, but no such right is here involved. His only constitutional right, in the instant situation, is to advance his cause in the legislative field where the majority rules. He has no right to obstruct the orderly legislative processes of the city of Pasco by recourse to the courts, in the absence of a justiciable issue. SCHWELLENBACH and FINLEY, JJ., concur with MALLERY, J. NOTES [1] Reported in 310 P. (2d) 863.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874756/	889 So.2d 119 (2004) STATE of Florida, Appellant, v. Mark COOPER, Appellee. No. 4D03-2803. District Court of Appeal of Florida, Fourth District. November 24, 2004. Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant. Terrence Moons, Jr., Fort Lauderdale, for appellee. SHAHOOD, J. We reverse appellant's downward departure sentence, and remand for resentencing within the guidelines. A mitigating factor which justifies a downward departure from the sentencing guidelines is, "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." § 921.0026(2)(j), Fla. Stat. (2003). To justify departure on this basis, all three elements must be articulated by the trial judge and supported by the record. See State v. Thompson, 844 So.2d 814, 815 (Fla. 5th DCA 2003). In this case, the trial court articulated these factors as the basis for the departure sentence; however, the record does not support the findings. Although there was some evidence that appellant had shown remorse, there was no evidence to show the manner in which the crime was committed. Moreover, the evidence clearly disputed the finding that this was an isolated event. See generally State v. Deleon, 867 So.2d 636, 637-38 (Fla. 5th DCA 2004) (holding that "where defendant's scoresheet reflected previous felonies and misdemeanors, his conduct could not have been characterized as isolated."). Thus, the trial court should have imposed a guidelines sentence. REVERSED AND REMANDED. KLEIN and STEVENSON, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2610036/	77 Wash. 2d 819 (1970) 467 P.2d 301 CLARENCE P. PATE et al., Appellants, v. THE TYEE MOTOR INN, INC., et al., Respondents.[] No. 40657. The Supreme Court of Washington, Department One. April 2, 1970. M.K. Westgard and J.L. Coniff, for appellants. Parr, Baker, Alexander & Cordes and Frank E. Baker, for respondents. WEAVER, J. This is an action for damages for alleged slander. It was commenced by eight women (joined by their husbands, if married) employed as chambermaids, against their employer, Tyee Motor Inn, a corporation, and against Esther Skiff and LaVera Hart, the head and assistant head housekeepers of the defendant inn. We do not reach the merits of the case. The trial court granted defendants' motion for summary judgment and dismissed 820 the action with prejudice. The question before us is whether there are genuine issues of material fact that should be decided by trial on the merits. Defendant corporation operates a large motor hotel. Its maid supervisor, defendant Mrs. Esther Skiff, called a meeting of the maids working under her direction. The meeting was occasioned by the purported unionization of the maid service staff. It was attended by 19 of defendant corporation's employees, including all but one of the plaintiffs. By the time of the meeting, plaintiffs had become union members. It is charged that Mrs. Skiff, in addressing the meeting, stated: This sneaking around behind my back and Mr. James Swanson in joining the union there is a word for it. I know the word for it is Communism and in my own little group; ... Plaintiffs claim this statement was directed at them, that it was untrue, slanderous, and that they suffered damages from it. In granting defendants' motion for summary judgment the trial court held that Mrs. Skiff's remark was protected by qualified privilege and that the disposition of the case was governed by the rationale of Prins v. Holland-North America Mortgage Co., 107 Wash. 206, 181 P. 680, 5 A.L.R. 451 (1919). In Prins the alleged libelous statement was a letter from the head office of the corporation to the sole manager of a branch office criticizing the local manager's conduct of company business. The court held that there was no publication of the alleged libel for the letter was a communication between officers of the company whose duty it was to conduct the ordinary business of the corporation. The receipt of the letter by the corporate officer was as much the act of the corporation as was the writing of the letter. The opinion does not discuss the question of qualified privilege. [1] A privileged communication involves the occasion where an otherwise slanderous statement is shared with a third person who has a common interest in the subject and 821 is reasonably entitled to know the information. Ward v. Painters' Local 300, 41 Wash. 2d 859, 866, 252 P.2d 253 (1953). [2] Tort liability for slander requires that the defamation be communicated to someone other than the person or persons defamed. There must be a publication of the defamation. See, W. Prosser, Torts § 108, at 786 (3d ed. 1964). In the ordinary course of her work Mrs. Skiff had no duty to comment upon the ideology of unions. Her statement is patently outside the circumstances and principles of the Prins case. The affidavits accompanying the motion for summary judgment raise an issue of fact as to whether the allegedly slanderous statement was directed only at those who had joined the union or was made to the entire group. Plaintiffs' affidavit asserts: the statement was made at a meeting called by Esther Skiff to approximately 19 employees of the Tyee Motor Inn, Inc., most of whom did not belong to the union and that those who did belong to the union were well known to the other employees and to Esther Skiff . .. Defendants' affidavit disagrees: ... Esther Skiff had no knowledge as to who had joined the union and who had not. The alleged statement made by Esther Skiff was not made to any one person. She was talking to all the girls present... If the maids were addressed as a group, then there was no third person to whom the slander was published. See Lunz v. Neuman, 48 Wash. 2d 26, 290 P.2d 697 (1955). On the other hand, publication occurred if the statement referred to the union members alone and was made in the presence of the nonunion members. The question can only be resolved by the trier of fact. It should not have been determined upon motion for summary judgment. The judgment of dismissal is reversed and the cause remanded for further proceedings. HUNTER, C.J., HAMILTON, J., and LEAHY, J. Pro Tem., concur. 822 NEILL, J. (concurring) I concur that summary judgment should not have been granted, but disagree with the court's continuation of the rationale used in Prins v. Holland-North America Mortgage Co., 107 Wash. 206 181 P. 680, 5 A.L.R. 451 (1919). Clarity and effective analysis require that the term "publication" in slander and libel suits be restricted to the physical concept of publication in fact. See, W. Prosser, Torts § 108, at 786 (3d ed. 1964). Thus understood, the requisite element of publication in defamation actions consists of the communication of the defamatory matter to a person other than the one defamed. Restatement of Torts § 577 (1938). In Prins, supra, there was a communication of defamatory statements between corporate officials which was also read by other corporate employees. This court properly held for the defendant under the circumstances but, in doing so, issues of qualified privilege and publication were, unfortunately, intermingled. There can hardly be a doubt that under the facts of Prins there was a publication. The letter or memorandum defamatory of the plaintiff was actually read by at least two other employees of the defendant company. Thus, the holding in Prins was properly on the basis of qualified privilege. In the present case, there does not appear to be any dispute of fact that the purportedly defamatory words were spoken to the assembled housekeepers, some of whom were union members and some of whom were not. It follows that there was a publication of the allegedly defamatory words to nonunion housekeepers concerning housekeepers who were union members. There remains, however, the matter of the possible defense of qualified privilege. I disagree with the statement of the majority that "Mrs. Skiff had no duty to comment upon the ideology of unions." Such a statement goes to the very heart of the issue of qualified privilege. The purpose of the meeting, the content of the remarks by Mrs. Skiff, and the relationship between those remarks and her responsibilities 823 and duties, are all very much in issue, are unresolved by the present record and involve questions of fact. See, Ward v. Painters' Local 300, 41 Wash. 2d 859, 252 P.2d 253 (1953). Accordingly, I would reverse and remand for further proceedings. NOTES [] Reported in 467 P.2d 301.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/855687/	Case: 12-13345 Date Filed: 03/20/2013 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-13345 ________________________ D.C. Docket No. 6:11-cv-00137-ACC-DAB INDYNE, INC., Plaintiff - Appellant, versus ABACUS TECHNOLOGY CORPORATION, JERRY RENINGER, MATTHEW BOYLAN, Defendants - Appellees. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (March 20, 2013) Before CARNES, HULL, and FAY, Circuit Judges. PER CURIAM: InDyne, Inc. appeals the district court’s grant of summary judgment in favor of Abacus Technology Corporation, Jerry Reninger, and Matthew Boylan on the Case: 12-13345 Date Filed: 03/20/2013 Page: 2 of 2 copyright infringement claim brought by InDyne. InDyne contends that the district court erred when it concluded that InDyne failed to present sufficient evidence of the copyrighted material. Having carefully considered the record and the parties’ briefs and having heard oral argument, we AFFIRM on the basis of the thorough and well-reasoned opinion of the district court, InDyne, Inc. v. Abacus Tech. Corp., 876 F. Supp. 2d 1278 (M.D. Fla. 2012). 2	01-03-2023	03-20-2013
https://www.courtlistener.com/api/rest/v3/opinions/220192/	FILED United States Court of Appeals Tenth Circuit July 1, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT MELISSA J. QUALLS, Plaintiff-Appellant, v. No. 10-6288 (D.C. No. 5:09-CV-00922-M) MICHAEL J. ASTRUE, Commissioner (W.D. Okla.) of the Social Security Administration, Defendant-Appellee. ORDER AND JUDGMENT * Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges. Melissa J. Qualls appeals from a district court order affirming the Commissioner’s decision to deny her application for social security disability insurance benefits (DIB). Ms. Qualls alleged a disability onset date of March 22, 2004. Her date last insured was December 31, 2008; “thus she had the burden of proving that she was totally disabled on that date or before,” Wilson v. Astrue, * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 602 F.3d 1136, 1139 (10th Cir. 2010). Our jurisdiction arises under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). Because the Commissioner’s decision is supported by substantial evidence and the law was properly applied, we affirm. I. Ms. Qualls was 28 years old on her date last insured (DLI). She is a high school graduate and attended one year of college. She has worked as a customer service representative, as a cashier/sales clerk/stocker, and as a childcare provider assistant. In 2001, Ms. Qualls was diagnosed with Multiple Sclerosis (MS). In 2006, she applied for DIB, alleging an inability to work since March 22, 2004, due to MS, severe migraines, and depression. The agency denied her application initially and on reconsideration. Following a 2008 hearing before an Administrative Law Judge (ALJ), at which Ms. Qualls and a Vocational Expert (VE) testified, the ALJ denied benefits at steps four and five of the five-step sequential evaluation process for determining whether a claimant is disabled. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (describing five-step process); see also Murrell v. Shalala, 43 F.3d 1388, 1389 (10th Cir. 1994) (recognizing benefit of alternative determinations in the social security review process). The ALJ found that between Ms. Qualls’ alleged onset date and her DLI: (1) she had not engaged in substantial gainful activity; (2) she was severely impaired by MS and -2- migraines; 1 (3) she did not have an impairment or combination of impairments that met or medically equaled any of the per se disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) she retained the residual functional capacity (RFC) to perform the full range of light work and was not disabled because—having compared her RFC with the physical and mental demands of her past relevant work (PRW) as a customer service representative and as a cashier/sales clerk/stocker—she could perform her PRW as it is generally performed; and (5) in the alternative, taking into account the testimony of the VE, as well as Ms. Qualls’ age, education, work experience, and RFC, she was not disabled because she could make a successful adjustment to other light and sedentary work that exists in significant numbers in the national economy. The Appeals Council denied Ms. Qualls’ request for review, making the ALJ’s decision the Commissioner’s final decision for purposes of review. See Wilson, 602 F.3d at 1140. The district court affirmed the ALJ’s denial of benefits, and Ms. Qualls appeals. She contends the ALJ (1) erred at steps four and five of the sequential evaluation process, and (2) failed to perform a proper credibility determination. 1 The ALJ found Ms. Qualls’ “medically determinable mental impairment of depression did not cause more than minimal limitation in [her] ability to perform basic mental work activities and was therefore non-severe.” Aplt. App., Vol. 2 at 14. -3- II. “[W]e review the ALJ’s decision only to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence in the record.” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance. We consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but we will not reweigh the evidence or substitute our judgment for the Commissioner’s. Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (internal quotation marks omitted). Because “the purpose of the credibility evaluation is to help the ALJ assess a claimant’s RFC,” which is used at steps four and five, “the ALJ’s credibility and RFC determinations are inherently intertwined.” Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009); see also Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at 2 (July 2, 1996) (“The . . . [claimant’s] RFC is used at step 4 of the sequential evaluation process to determine whether an individual is able to do past relevant work, and at step 5 to determine whether an individual is able to do other work, considering . . . her age, education, and work experience.”). With this in mind, we turn first to Ms. Qualls’ arguments about the ALJ’s credibility determination. -4- The ALJ’s Credibility Determination When a claimant establishes a medically determinable physical or mental impairment that could reasonably be expected to produce the symptoms complained of, the ALJ must evaluate the intensity, persistence, and functionally limiting effects of the symptoms to determine the extent to which the symptoms affect the claimant’s capacity for work. 20 C.F.R. § 404.1529(c)(1). To do this, the ALJ must “make a finding about the credibility of the [claimant’s] statements about [her] symptom(s) and [their] functional effects.” SSR 96-7p, 1996 WL 374186, at 1 (July 2, 1996). Factors the ALJ may consider in assessing a claimant’s complaints include “the levels of [her] medication and [its] effectiveness, . . . the frequency of [her] medical contacts, the nature of [her] daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, . . . and the consistency or compatibility of nonmedical testimony with objective medical evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). See also 20 C.F.R. § 404.1529(c)(3) (listing seven factors relevant to claimant’s symptoms that the ALJ will consider); SSR 96-7p, 1996 WL 374186, at 3 (same). In this case, the ALJ found Ms. Qualls’ medically determinable impairments could reasonably be expected to cause her alleged symptoms. 2 But 2 Ms. Qualls’ symptoms “include[d] migraines triggered by stress/anxiety (continued...) -5- he found her “statements concerning the intensity, persistence and limiting effects of [her] symptoms . . . not credible to the extent they [we]re inconsistent with” performing a full range of light work (her RFC). Aplt. App., Vol. 2 at 16. Ms. Qualls first attacks the ALJ’s credibility determination on the grounds that he imposed an incorrect standard of proof that consisted of boilerplate language. Specifically, she challenges the ALJ’s statement that her “allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty” and that “even if [her] daily activities were truly as limited as she alleged, it is difficult to attribute that degree of limitation to [her] medical condition as opposed to other reasons, in view of the relatively weak medical evidence and other factors discussed in this decision.” Id. at 18. 3 2 (...continued) which come[] and go[]; double vision; balance [problems]; problems with numbness in [her] hands, arms, and legs; and her biggest problem is that she can not retain information and has to write things down all the time.” Aplt. App., Vol. 2 at 16 (ALJ’s recitation of some of Ms. Qualls’ hearing testimony). 3 The ALJ cited no authority for his requirement that Ms. Qualls’ stated activities of daily living “be objectively verified with any reasonable degree of certainty.” Aplt. App., Vol. 2 at 18. Indeed, 20 C.F.R. § 404.1529(c)(3)(i) does not require verification. The regulations simply state that such evidence will be evaluated “in relation to the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). In Wall v. Astrue, 561 F.3d 1048 (10th Cir. 2009), we observed that the ALJ had made a very similar “objectively verified” statement. Id. at 1070. But the ALJ did so after “and thus in light of, his adverse determination of Claimant’s credibility.” Id. at 1069. We determined in Wall that the objectionable statement was merely the ALJ’s “observation that [he] would not treat Claimant’s testimony as ‘strong evidence’ of her disability due to his prior determination that Claimant’s testimony was not ‘fully credible.’” (continued...) -6- As we have often emphasized, boilerplate language, “in the absence of a more thorough analysis,” is insufficient to support an ALJ’s credibility determination. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004). Instead, “findings as to credibility should be closely and affirmatively linked to substantial evidence.” Kepler, 68 F.3d at 391 (internal quotation marks and brackets omitted). To be sure, an ALJ is required to do more than “simply recite[] the general factors he considered . . . . [without] refer[ring] to any specific evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). But “our opinion in Kepler does not require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific evidence he relie[d] on in evaluating the claimant’s credibility, the dictates of Kepler are satisfied.” Id. The ALJ began his credibility assessment by citing the applicable Social Security regulations and rulings governing the evaluation of symptoms. He observed that Ms. Qualls “testified . . . that she is unable to work due to her inability to retain information.” Aplt. App., Vol. 2 at 16. He then listed her reported symptoms, see supra note 2, and detailed her subjective complaints, 3 (...continued) Id. at 1070 (emphasis added). As such, we rejected the claimant’s assertion in Wall “that the ALJ evaluated Claimant’s credibility under an improper [objectively-verified] standard.” Id. at 1069. The same is true in this case, as is demonstrated in our discussion of the ALJ’s credibility analysis below, and we therefore reject Ms. Qualls’ argument that the ALJ imposed an incorrect standard of proof in evaluating her credibility. -7- see Aplt. App., Vol. 2 at 16. In doing so, he recounted Ms. Qualls’ testimony that she “can do the majority of housework except that she does not vacuum often[,]” “[h]er step-daughter plays softball and she goes to the games except when it’s hot[,]” “[s]he is able to care for her personal hygiene except when her hand[s] and arms are numb,” she “drive[s] and shop[s] with her husband[,]” and “does scrap-booking (when she can); sewing (using the same pattern); and girl scouting (20 girls that she basically baby sits).” Id. 4 It was at this point that the ALJ found Ms. Qualls’ “statements concerning the intensity, persistence and limiting effects of [her] symptoms . . . not credible to the extent they [we]re inconsistent with” performing a full range of light work. Aplt. App., Vol. 2 at 16. The ALJ’s credibility assessment did not end there though. 4 Earlier in his decision, when the ALJ was considering Ms. Qualls’ depression, he recited her reported daily activities (taken from the Function Report Ms. Qualls completed and submitted to the Social Security Administration): she gets up; gets dressed; wakes her daughters; and gets them dressed for school. Claimant prepares breakfast, feeds the children and [her]self. She takes her daughter to school and then comes home to work on cleaning the house. [She] [p]repares her youngest daughter lunch and then puts her down for a nap. Claimant will usually also take a nap. After nap [she] goes to pick up [her] other daughter from school. [Then she prepares] dinner; cleans up [the] kitchen; then get[s] the children ready for bed. Claimant then goes to bed to sleep. Claimant list[s] houshold chores of cleaning, laundry, and ironing. Aplt. App., Vol. 2 at 14 (citing id. at 140, 147). -8- The ALJ next turned to the medical evidence, which he chronicled. He noted that Ms. Qualls’ treating neurologist, who diagnosed her with MS in 2001, only saw her once in 2006, twice in 2007, and three times in 2008, and that the treating neurologist’s “progress notes reflect MS as stable” throughout. Id. at 17. 5 The ALJ also described a consulting physician’s documentation of Ms. Qualls’ subjective complaints and the physician’s examination findings, including his determination that Ms. Qualls’: bone[s] and joints revealed the cervical, thoracic and lumbar spines are perfectly supple and can be put through a full range-of-movement. There is no scoliosis, tenderness or muscle spasm. The upper extremities are unremarkable. The thumb effectively opposes to the finger tips. Fine movement is well-preserved and she can manipulate small objects. Grip strength is rated 5/5 bilaterally. The lower extremities are unremarkable. She can heel-walk, toe-walk and adduct the lower extremities. Gait is perfectly safe, stable and of normal speed and she requires no assistive device. Aplt. App., Vol. 2 at 17-18; see also id. at 18 (according consulting physician’s opinion “controlling weight”). The ALJ also described Ms. Qualls’ two visits to the Eye Clinic in Ponca City, noting double vision that comes and goes (but is increased when she is tired), and that glasses help to decrease her double vision. 6 5 We count three office visits in 2006, but this minor difference is immaterial. See Aplt. App., Vol. 2 at 195, 196. 6 The ALJ’s decision did not mention esophoria, “[a] tendency for the eyes to turn inward,” Stedmans Medical Dictionary 138540 (27th ed. 2000), which is documented in one of Ms. Qualls’ two visits to the Eye Clinic in Ponca City, Aplt. App., Vol. 2 at 242. Additionally, Ms. Qualls complains that the ALJ’s (continued...) -9- Next, the ALJ identified Ms. Qualls’ daily medications (Copaxone for MS, Wellbutrin for depression, and Nasonex for allergies), and medications she takes on an as-needed basis (Midrin for tension and migraines and Relpax for migraines). He also observed that Ms. Qualls testified that her treating neurologist advised her “she would just have to learn to deal with the migraines,” and that Ms. Qualls “appears to have the depression stabilized with the medication.” Aplt. App., Vol. 2 at 18. Having discussed all of the foregoing, the ALJ then made the statement Ms. Qualls finds objectionable, that her “allegedly 6 (...continued) decision did not mention her “abnormal toe signs, . . . asymmetrical deep tendon reflexes, . . . positive Lhermitte’s sign,” or her alleged need for “a cane for ambulation.” Aplt. Opening Br. at 27-28 (citing Aplt. App., Vol. 2 at 205, 207); Aplt. Opening Br. at 34. Lhermitte sign, “sudden electric-like shocks extending down the spine on flexing the head,” Stedmans Medical Dictionary 373770 (27th ed. 2000), is documented in a March 2001 letter from Ms. Qualls’ treating neurologist, Aplt. App, Vol. 2 at 207, which the ALJ explicitly considered in his decision, id. at 17. Abnormal toe signs and asymmetrical deep tendon reflexes are documented, as best we can decipher, in an April 2001 progress note made by Ms. Qualls’ treating neurologist, id. at 205. Her treating neurologist’s 2001 letter and 2001 progress note do not, however, list any work-related limitations associated with her positive Lhermitte’s sign, abnormal toe signs, and asymmetrical deep tendon reflexes. (These records also pre-date Ms. Qualls’ alleged onset date by nearly three years.) And, there is not a prescription for a cane noted anywhere in the medical evidence. Moreover, where, as here, the ALJ’s decision states that he considered all of the evidence, “our general practice, which we see no reason to depart from here, is to take a lower tribunal at its word when it declares that it has considered a matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (stating that the “ALJ is not required to discuss every piece of evidence”). -10- limited daily activities cannot be objectively verified with any reasonable degree of certainty . . . .” Id.; see Wall, 561 F.3d at 1069-70 (rejecting claimant’s argument that ALJ evaluated claimant’s credibility under an improper objectively-verified standard, concluding that ALJ’s alleged improper standard was merely the ALJ’s “observation that [he] would not treat Claimant’s testimony as ‘strong evidence’ of her disability due to his prior determination that Claimant’s testimony was not ‘fully credible’” (emphasis added)). See also supra note 3. The ALJ went on to bolster his adverse credibility finding, stating: After all, the claimant did testify that she was able to help care for her family, [do] household chores, girl scouts, and sewing. She testified to memory problems but she stated that she was able to sew and use the computer which one would reasonab[ly] assume[] requires concentration and hand dexterity. Additionally, claimant testified that her treating [neurologist] wanted claimant to stop work yet there was no mention of work in any of [the doctor’s] notes . . . . Overall, the claimant’s reported limited daily activities are considered to be outweighed by the other factors discussed in this decision. The evidence of record clearly shows that claimant has been diagnosed with MS; and claimant’s testimony, under oath, [was] that the reason she stopped working was due primarily to her inability to retain information [and the requirement that] she . . . write everything down. During her testimony, claimant did not appear to have any problem understanding the questions from the Administrative Law Judge [or from] claimant’s representative. Claimant appeared to be able to respond appropriately to all questions and answered the questions in a logical manner without any -11- difficulty. [7] It would be reasonable to believe that claimant did not suffer from retention issues as disabling as presented. Aplt. App., Vol. 2 at 18-19. As our discussion above demonstrates, and despite the ALJ’s use of disfavored language, his ultimate credibility determination is grounded in a thorough analysis that is closely and affirmatively linked to substantial record evidence. See generally Kepler, 68 F.3d at 391 (setting forth factors ALJ should consider in making a credibility assessment). Although Ms. Qualls suggests otherwise, this is not a case where “specific facts behind the generalities” regarding her alleged minimal activities of daily living “paint a very different picture” than the one painted by the ALJ. Krauser v. Astrue, 638 F.3d 1324, 1332 (10th Cir. 2011). 8 7 Ms. Qualls’ argument that the ALJ improperly relied on a “‘sit and squirm’ demand” in noting that she “‘did not appear to have any problem understanding questions,’” Aplt. Opening Br. at 33, is without merit. “Although an ALJ may not rely solely on his personal observations to discredit a [claimant’s] allegations, he may,” as the ALJ in this case did, “consider his personal observations in his overall evaluation of the claimant’s credibility.” Qualls, 206 F.3d at 1373; see also SSR 96-7p, 1996 WL 374186, at 8 (“In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject the individual’s complaints solely on the basis of such personal observations, but should consider any personal observations in the overall evaluation of the credibility of the individual’s statements.” (emphasis added)). 8 Contrary to Ms. Qualls’ assertion that it “was never established how often she went [to church],” Aplt. Opening Br. at 30, the consulting psychologist documented Ms. Qualls’ “report[]” that she “attends church once a week.” Aplt. App., Vol. 2 at 193. Likewise, and contrary to Ms. Qualls’ assertion, it is not “well documented in the medical records” that her “symptoms were at times (continued...) -12- Further, the ALJ was under no obligation to confirm Ms. Qualls’ activities of daily living by contacting Ms. Qualls’ mother, the individual that Ms. Qualls had “named for that purpose.” Aplt. Opening Br. at 26. Nor does Ms. Qualls offer any authority in support of that argument. See id. Similarly, the ALJ was under no obligation to recontact Ms. Qualls’ treating neurologist to inquire about why his medical records did not reflect Ms. Qualls’ testimony that the treating neurologist did not want her to work, see id. at 32, because the evidence from the treating neurologist was not “inadequate to determine if the claimant [was] disabled,” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Cf. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (observing that ALJ had obligation to recontact treating physician if validity of his report was open to question). Finally, Ms. Qualls contends the ALJ “demonstrated bias” by making up “his mind that [she] was not disabled before hearing the evidence.” Aplt. Opening Br. at 35. In support, she cites two statements the ALJ made at the beginning of her administrative hearing: (1) “some people have MS, and work for 20 years”; and (2) “quite frankly, on the medical I have right now, I’d send her 8 (...continued) more severe than others.” Aplt. Opening Br. at 28. Rather, the two medical records to which she directs us on this point (one from 2001 and one from 2006) contain isolated self-reports about her symptoms. See Aplt. App., Vol. 2 at 173, 206-08. -13- back to work, okay?” Aplt. App, Vol. 2 at 27, 29. In response, the Commissioner contends that these “stray” remarks, in the context of the entire hearing, show that the ALJ was “commenting on the lack of medical evidence and in fact, told Qualls[’] [representative that she] could submit additional evidence.” Aplee. Br. at 30. On the facts of this case, we agree with the Commissioner and reject Ms. Qualls’ bias argument. Our review of the record reveals that Ms. Qualls “received a full and fair opportunity to develop the record and [to] present” evidence. Puckett v. Chater, 100 F.3d 730, 734 (10th Cir. 1996); see also Harline v. Drug Enforcement Admin., 148 F.3d 1199, 1204 (10th Cir. 1998) (observing that ALJ “enjoys a presumption of honesty and integrity”). The ALJ’s Step Four Determination Ms. Qualls raises what appear to be two arguments under the broad category of alleged errors at “steps 4 and 5.” Aplt. Opening Br. at 20. First, she takes issue with the ALJ’s hypothetical to the VE, asserting that it erroneously omitted specific limitations for physical demands set forth in 20 C.F.R. § 404.1545(b). As a result, she claims we “have no way of knowing what limitations, if any, the VE applied in formulating her answers to the ALJ.” Aplt. Opening Br. at 21. Second, she contends the ALJ erroneously failed to consider all of her impairments throughout the disability process, arguing that the ALJ’s hypothetical to the VE erroneously omitted “all the limitations of record, even the nonsevere ones.” Id. at 22. In particular, she challenges the ALJ’s omission of -14- limitations due to migraine pain, dizziness and vertigo, poor balance, the cyclical nature of MS, and impaired vision. We understand these arguments to be challenges to the ALJ’s RFC assessment. Given the applicable sequential evaluation process, we begin by examining Ms. Qualls’ arguments at step four, where she bore the burden of demonstrating “that her impairment prevents her from performing work she has previously performed.” Fischer-Ross, 431 F.3d at 731; see also Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (observing that step four “is comprised of three phases”: (1) evaluating the claimant’s physical and mental RFC, (2) determining the physical and mental demands of claimant’s PRW, and (3) determining “whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one”). “In determining a claimant’s physical abilities, the ALJ should . . . assess the nature and extent of the claimant’s physical limitations and then determine the claimant’s residual functional capacity for work on a regular and continuing basis.” Winfrey, 92 F.3d at 1023 (brackets and internal quotation marks omitted). This involves consideration of the claimant’s “impairment(s), and any related symptoms . . . [that] may cause physical and mental limitations that affect what [the claimant] can do in a work setting.” 20 C.F.R. § 404.1545(a)(1). -15- Here, the ALJ indicated that he had carefully considered the entire record and found that between Ms. Qualls’ alleged onset date and her DLI, she retained the RFC to perform a full range of light work. See 20 C.F.R. § 404.1567(b) (defining light work). In making this finding, the ALJ explained that he had considered all of Ms. Qualls’ “symptoms and the extent to which [they could] reasonably be accepted as consistent with the objective medical evidence and other evidence.” Aplt. App., Vol. 2 at 15. He detailed her hearing testimony, including subjective complaints; considered her daily activities; documented the medical and other evidence of record, including her medications; adversely assessed her credibility; and evaluated her demeanor. See SSR 96-8p, 1996 WL 374184, at 5 (identifying evidence relevant to an RFC assessment). Prior to posing his hypothetical, the ALJ asked the VE to describe Ms. Qualls’ “work history.” Aplt. App., Vol. 2 at 48. The VE stated that Ms. Qualls had worked as “a cashier, which is light in exertion, semiskilled, SVP of three[,]” and that she had worked as “customer support, or customer service representative,” which is sedentary in exertion, with a SVP of three. Id. 9 9 The VE also described Ms. Qualls’ prior work as a “child care assistant,” which the VE explained was medium in exertion with a SVP of five. Aplt. App., Vol. 2 at 48. At the end of the hearing, however, it was clarified that Ms. Qualls had only worked in the childcare position for two weeks, a duration the ALJ found too brief for Ms. Qualls to have acquired the position’s required skills. Id. at 51. See 20 C.F.R. § 404.1560(b)(1) (defining PRW as work that occurred within the past fifteen years, was substantial gainful activity, and that “lasted long (continued...) -16- In his hypothetical, the ALJ asked the VE to consider an individual who possessed a [twelfth] grade education; good ability to read, write, and use numbers. She would have the capability of performing -- are you familiar with the elements of medium, light, and sedentary work activity? A [VE] Yes, I am. .... Q [ALJ] Okay. She has been diagnosed as having [an] affective disorder; however, it’s nonsevere. There would be no work-related limitations in that regard. She is taking currently certain medications to help her with any symptomatology she might have. The medication usage does not interfere with her ability to, to remain reasonably alert to perform required functions presented in a work setting. Assuming this hypothetical, could she return to any of her past relevant work, either as she has described it, or as that work is customarily performed? A [VE] Yes, she could. There are no limitations in that hypothetical that would prevent her return to [her past relevant work]. Aplt. App., Vol. 2 at 48-49 (emphasis added). Based on the foregoing, we reject Ms. Qualls’ allegation that we have no way of knowing what limitations the VE applied in formulating her answers to the 9 (...continued) enough for [the claimant] to learn to do it”); SSR 82-62, 1982 WL 31386, at 2 (1982) (explaining that how long it takes for one to learn to do a job “depends on the nature and complexity of the work”). When the VE stated that Ms. Qualls had only worked in the childcare position for two weeks, the ALJ seemingly dismissed that occupation as exceeding Ms. Qualls’ RFC, stating, “that was at medium, anyway? Was that correct?” The VE responded, “Right.” Aplt. App., Vol. 2 at 51. -17- ALJ. The VE specifically testified that she was familiar with the requirements of medium, light, and sedentary work activity, and we are therefore not left to guess what occurred in the VE’s head. Cf. Winfrey, 92 F.3d at 1025. The limitations the VE applied in formulating her answer are clearly the limitations set forth in 20 C.F.R. § 404.1567 (defining sedentary, light, medium, and heavy work). See also supra note 9. We also reject Ms. Qualls’ contention that the ALJ’s hypothetical to the VE erroneously omitted “all the limitations of record, even the nonsevere ones.” Aplt. Opening Br. at 22. The ALJ’s decision does not reflect that he ignored many of Ms. Qualls’ so-called “limitations of record,” but rather, that he found her subjective complaints and statements concerning the intensity, persistence and limiting effects of her symptoms—including, as he observed, migraines that come and go, double vision; balance problems, problems with numbness, and an inability to retain information—not credible to the extent they were inconsistent with performing a full range of light work. This credibility determination enjoys substantial evidentiary support in the record, as previously detailed. With respect to Ms. Qualls’ contention regarding nonsevere impairments, she misrepresents the ALJ’s hypothetical. It specifically enumerated Ms. Qualls’ affective disorder (depression), the single nonsevere impairment identified by the ALJ. And the ALJ instructed the VE that this nonsevere impairment did not yield any “work-related limitations.” Aplt. App., Vol. 2 at 48. -18- Accordingly, we conclude that the ALJ’s hypothetical adequately reflected the “impairments and limitations that [were] borne out by the evidentiary record,” and that Ms. Qualls has not identified any reversible error in the ALJ’s decision to deny benefits at step four of the sequential evaluation process. Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (citation omitted); Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (stating that the ALJ’s hypothetical questions “must include all (and only) those impairments borne out by the evidentiary record”). Because we affirm the ALJ’s finding of nondisability at step four, we do not need to consider Ms. Qualls’ arguments at step five. See Murrell, 43 F.3d at 1389 (“[D]ue to the way the sequential analysis is structured, a proper finding of disability (at step three) or nondisability (at steps two, four, or five) is conclusive and, thus, cannot be overturned by consideration of a subsequent step.”). III. The judgment of the district court is AFFIRMED. Entered for the Court Stephen H. Anderson Circuit Judge -19-	01-03-2023	07-01-2011
https://www.courtlistener.com/api/rest/v3/opinions/220033/	FILED NOT FOR PUBLICATION JUN 29 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10252 No. 10-10253 Plaintiff - Appellee, v. D.C. No. 4:09-cr-50163-JMR D.C. No. 4:09-cr-01219-JMR FAUSTO ALDAY-ARVIZO, a.k.a. FAUSTO ALDAY, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Arizona John M. Roll, Chief District Judge, Presiding ** Submitted June 15, 2011 Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges. Fausto Alday-Arvizo appeals from the 57-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326, and the 6-month sentence imposed upon revocation of his supervised release in connection with a 2003 drug-trafficking conviction. We have * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291, and we affirm. Alday-Arvizo contends that his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated by the government’s failure to disclose information relating to his work with the Drug Enforcement Administration (“DEA”) as a confidential informant (“CI”). The record reflects that the issue was discussed with the district court and that the government represented to the court that the DEA ordinarily will neither confirm nor deny an individual’s work as a CI. Although “the DEA cannot undermine Brady by keeping exculpatory evidence out of the prosecutor's hands,” United States v. Blanco, 392 F.3d 382, 394 (9th Cir. 2004) (internal quotations omitted), the claim fails because Alday-Arvizo “possessed the salient facts regarding the existence of the records that he claims were withheld” but never invoked court process by subpoenaing the DEA materials, see Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006). Alday-Arvizo also contends that the district court could have relied upon the statements in the uncontroverted presentence report regarding his alleged cooperation with the DEA to mitigate his sentence. The record reflects that the district court did consider Alday-Arvizo’s contentions of cooperation. Nothing in either Fed. R. Crim. P. 32 or United States v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000), required the court to do more. AFFIRMED.	01-03-2023	06-29-2011
https://www.courtlistener.com/api/rest/v3/opinions/2615117/	668 P.2d 1225 (1983) 295 Or. 598 IN THE MATTER OF THE COMPENSATION OF JIMMY MATHIS, Claimant. MODOC LUMBER Company, Petitioner On Review, v. EBI COMPANIES, Respondent On Review. WCB No. 81-00162, CA A26576; SC 29514. Supreme Court of Oregon, In Banc.[] Argued and Submitted August 2, 1983. Decided September 7, 1983. 1226 Douglas S. Parker, Portland, argued the cause and submitted briefs for petitioner on review. With him on the briefs were Jonathan T. Harnish, and Bullard, Korshoj, Smith & Jernstedt, P.C., Portland. Emil R. Berg, Portland, argued the cause and submitted briefs for respondent on review. With him on the briefs was Griffith, Bittner, Abbott & Roberts, Portland. PER CURIAM. The Court of Appeals dismissed petitioner's appeal from an order of the Workers' Compensation Board for lack of a proper showing that the notice of appeal had been timely mailed. ORS 19.028. Petitioner sought reinstatement of the appeal by offering proof in the form of an affidavit of counsel accompanied by a written statement of the postmaster, but the court declined to reinstate the appeal. We allowed petitioner's petition for review because the requirements of the relevant statutes have not previously been decided and are of obvious practical importance to the appellate practice. A notice of appeal must be "filed within 30 days after the entry of the judgment appealed from," ORS 19.026(1), and filing within that period "is jurisdictional and may not be waived or extended." ORS 19.033(2). A 1979 statute, however, was enacted to facilitate notices of appeal and petitions for review by mail. ORS 19.028 provides: "Filing a notice of appeal or petition for review in an appeal or petition for review to the Court of Appeals or the Supreme Court may be accomplished by mail. The date of filing such notice or petition shall be the date of mailing, provided it is mailed by registered or certified mail and the appellant has proof from the post office of such mailing date. Inclosure with the mailed notice of the appropriate filing fee shall be considered timely deposit of that fee. Proof of mailing shall be certified by the appellant and filed thereafter with the court to which the appeal is taken." Under this section, filing is accomplished on "the date of mailing" on two conditions: one, that the mailing be by "registered or certified mail" and two, that the appellant "has proof from the post office of such mailing date." The proof of mailing in turn must be certified and filed "thereafter" with the court, but the statute does not expressly make this, too, a condition of a valid filing by mail. According to an affidavit accompanying petitioner's motion to reinstate the appeal, petitioner's counsel mailed a notice of appeal to the Court of Appeals by certified mail on November 29, 1982, the last possible date for filing the notice. The envelope containing the notice was dated by the law firm's postage meter as November 29, 1982, and had affixed to it two post office forms used for certified mail and for securing a return receipt, but the envelope was placed in the mail without being taken to the post 1227 office for a date stamp on the receipt portion of the certified mail form. The notice of appeal reached the Court of Appeals the following day, November 30. The motion for reinstatement also attached a letter from the postmaster in Portland, Oregon, stating that the letter must have been mailed no later than November 29 in order to have reached Salem on November 30. In opposition to the motion for reinstatement, respondent argued that the evidence described above did not constitute "proof from the post office of such mailing date" within the meaning of ORS 19.028. The Court of Appeals denied the motion for reinstatement without opinion. On review, petitioner makes several arguments, which we take up in turn. First, it contends that compliance with ORS 19.028 is not jurisdictional because that section is not among those listed as jurisdictional in ORS 19.033. But what ORS 19.033 makes jurisdictional is the filing of notice "within 30 days after the entry of the judgment," ORS 19.023, 19.026, and mailing is only a way to accomplish the filing. Petitioner also cites ORS 19.033(3), which allows an appeal dismissed on the court's own motion to be reinstated upon a showing of good cause, but petitioner neglects to note that this subsection applies only to steps omitted "[a]fter the Supreme Court or the Court of Appeals has acquired jurisdiction of the cause." Petitioner also suggests that substantial compliance with the mailing procedure should suffice because the statute is imprecise and did not give clear notice that the only acceptable proof would be a date-stamped postal form obtained at the time of mailing. This combines two arguments. Insofar as the argument is that substantial compliance generally would suffice, the legislative specification of compliance as "jurisdictional" leads us to reject it. The contention that the statute leaves the permissible means of compliance uncertain until clarified by the court has more substance. The statute does not specify a required form of "proof from the post office." There is an inherent risk in using such terms as "registered or certified mail" in a state statute of indefinite duration, because post office practices or even the use of those terms themselves may be changed at any time. Even if one were to assume that by "proof from the post office" the legislature meant the particular forms in use when ORS 19.028 was enacted, the phrase could not be limited to those particular forms without vitiating the statute if post office practice or terminology were to change. As that result is not an evident legislative purpose, the statute does not unambiguously require proof only by means of the date-stamped Postal Form 3800 presently in use. Mailing by registered or certified mail satisfies the filing deadline if the appellant "has" the required proof from the post office. This proof must be "certified by the appellant and filed thereafter with the court." Literally, the word "thereafter" appears to mean "after being certified by the appellant," though this hardly needed saying. We understand the phrase "has proof" to refer to the time of mailing, but again it is not inconceivable that a party might read the statute to mean that the party must have the proof of mailing "thereafter" when it certifies the proof and files it with the court. Petitioner claims to have been surprised by the court's decision that only a dated receipt from the post office would satisfy ORS 19.028, because the Postal Service itself provided petitioner's counsel both with the postal metering machine which leaves a dated post-mark and with the forms for certifying mail. Petitioner notes that postal regulations require actual mailing on the date printed by the postage meter. 39 CFR § 111.1 and 111.5(a)(4)(iv) (1982), incorporating Domestic Mail Manual, § 144.471 (Issue 12, 6-2-83). Respondent answers that the setting of postage meters in private offices is not controlled by Postal Service personnel and that this way of dating the mailing of certified mail is not tamperproof. Respondent also argues that proof in the form of affidavits or statements from postal personnel would be unreliable as well as 1228 a burden both on the Postal Service and court staff, but these are prudential arguments that do not necessarily preclude such affidavits from being "proof from the post office." We conclude that although it is easy to comply with ORS 19.028 by having a receipt for certified or registered mail date-stamped at the post office, the precise legal requirements of compliance are sufficiently uncertain that they should be clarified by the Oregon Rules of Appellate Procedure. Pending promulgation of the rule, this opinion serves to advise litigants to follow that simple procedure. Meanwhile, we face the question what to do with the present case. Because it is not clear that the statute of its own force requires this procedure nor that the actual date of mailing cannot be "thereafter" shown by "proof from the post office" obtained after mailing, we hold that the present appeal should be reinstated. This holding will not serve to justify any similar ex post facto proof of the date of any filing made after the effective date of a rule of appellate procedure on the point. Dismissal reversed with instructions to reinstate the appeal. NOTES [*] Justice Lent was Chief Justice when case was argued; Justice Peterson Chief Judge when this decision was rendered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249644/	273 F.2d 104 106 U.S.App.D.C. 369 Frederick J. McMANUS, Jr., a minor, by his father and nextfriend, Frederick J. McManus, Sr., et al., Appellants,v.Winifred ROGERS, Appellee. No. 15199. United States Court of Appeals District of Columbia Circuit. Argued Oct. 30, 1959.Decided Dec. 3, 1959. Mr. David N. Webster, Washington, D.C., with whom Mr. Frank F. Roberson, Washington, D.C., was on the brief, for appellants. Mr. Douglas A. Clark, Washington, D.C., with whom Mr. Louis Rabil, Washington, D.C., was on the brief, for appellee. Before EDGERTON, BASTIAN and BURGER, Circuit Judges. PER CURIAM. 1 The plaintiff appeals from a judgment on a directed verdict for the defendant in a suit for personal injuries. We are unable to agree that 'reasonable men could not reach different conclusions' from the evidence, which the court summarized fully in a thoughtful opinion. McManus v. Rogers, D.C., 173 F.Supp. 118, 125-126. 2 At the time of the accident the defendant's son was driving the defendant's car and the plaintiff was riding on the outside right rear deck or fender. The car was filled to overflowing with other young people who, like the driver and the plaintiff, had attended a churchsponsored party in a private home. The plaintiff fell and was injured when the car made a left turn at an intersection. He was found lying unconscious in the street. We think a jury might reasonably find from the evidence that when the car arrived at the intersection it was going downhill at about 25 miles an hour; that the turn the driver made was 'sharp';1 that although there was no evidence of exactly when he learned there was somebody riding on the rear deck, he learned soon enough so that he might, by using reasonable care, have refrained from making a turn; and that the turn increased the danger of a person in the plaintiff's position, was negligent as to him, and was a cause of the accident. 3 As the court said in its opinion, according to the driver's statement to the police 'he heard that someone was on the back of the car as he came down the street, he cut the wheels to turn into Belt Road, and at that time he put the brakes on because he knew he was going too fast 'if there was someone on the back of the car." 173 F.Supp. at page 124. The court correctly stated the law to be that 'To either a trespasser whose presence is known or may reasonably be known or a bare licensee, the driver owes a duty to use reasonable care not to commit any negligent act which will create a danger * * *.' 173 F.Supp. at page 120. 4 We agree with the court that the plaintiff was 'negligent as a matter of law' in putting himself in the dangerous place from which he fell. This negligence was a cause of the accident. But as we have indicated, we think a jury might reasonably find that negligence of the driver, after he learned of the plaintiff's danger, was also a cause of the accident. In that case the plaintiff would be entitled to recover, provided either (1) at the time of the accident it was too late for him to save himself by using reasonable care, or (2) the requirements of the 'last clear chance' doctrine were met in some other way. In the District of Columbia this 'doctrine is broader than its name.' Capital Transit Co. v. Garcia, 90 U.S.App.D.C. 168, 194 F.2d 162. 5 Reversed. 6 BASTIAN, Circuit Judge (dissenting). 7 I would affirm the judgment on the opinion of the District Judge. McManus v. Rogers, D.C.1959, 173 F.Supp. 118. 1 One witness so described it. Another said it seemed the driver 'just grabbed the wheel and pulled it to the left' and it seemed 'the car wasn't going to make it around the turn.' 173 F.Supp. at page 124	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2897300/	NO. 07-08-0001-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 20, 2008 ______________________________ MICHAEL ANTHONY WHITESELL, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B17345-0709; HONORABLE ED SELF, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Michael Anthony Whitesell, appeals the denial of his application for writ of habeas corpus challenging his arrest pursuant to a governor’s warrant. We affirm. Appellant’s attorney has filed an Anders brief and a motion to withdraw. See Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be arguably predicated. Id . at 744-45. In compliance with High v. State , 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State , 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Appellant has in fact filed a response and further filed a document he denominates as an application for writ of habeas corpus. We have made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio , 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State , 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such grounds. Additionally, we have reviewed appellant’s pro se response and other documents appellant has filed in connection with this case. All of the purported arguable grounds put forth by appellant would have this court go behind the governor’s warrant. The record before us contains no irregularities and, as such, is prima facie proof to the allegations contained therein. Michigan v. Doran , 439 U.S. 282, 289, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978). There was no contest at the writ hearing about the identity of appellant as the person named in the governor’s warrant. Appellant alleges that he was not timely brought before the trial court, alleging that more than 90 days transpired before the hearing on the writ was conducted. See Tex. Code Crim. Proc. Ann. art. 51.07 (Vernon 2006). However, appellant failed to take into consideration the provision that allows a person, once released on bond under provisions of article 51.07, to be subsequently arrested upon the issuance of a governor’s warrant. See Tex. Code Crim. Proc. Ann. art. 51.08 (Vernon 2006). The record affirmatively reflects that the above procedure was followed. Accordingly, we agree with counsel that the appeal is frivolous. Therefore, we grant counsel’s motion to withdraw and affirm the order of the trial court. Mackey K. Hancock Justice Do not publish.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2983495/	July 17, 2014 JUDGMENT The Fourteenth Court of Appeals RODOLFO JESUS MORALES, Appellant NO. 14-13-00171-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/2371369/	607 F. Supp. 75 (1985) Linda SHEPHERD, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Civ. A. No. J84-0520(L). United States District Court, S.D. Mississippi, Jackson Division. February 19, 1985. Joseph E. Roberts, Cothren, & Pittman, Jackson, Miss., for plaintiff. Jerome B. Steen & William C. Griffin, Steen, Reynolds, Dalehite & Currie, Jackson, Miss., for defendant. MEMORANDUM OPINION TOM S. LEE, District Judge. This cause is before the court on the Motion for Summary Judgment filed by the defendant, State Farm Mutual Automobile Insurance Company (State Farm). After consideration of the memoranda with attachments submitted by the parties, this court is of the opinion that the defendant's motion is well taken and should be granted. The plaintiff, Linda Shepherd, was injured when the vehicle which she was driving was struck from the rear by a car operated by Mohammad Esmail Amini. She allegedly sustained severe injuries to the head, neck, cervical spine and shoulders and required treatment by an orthopedic surgeon for several months. The automobile driven by Amini was insured by Stonewall Insurance Company (Stonewall). Linda Shepherd was the named insured of an insurance policy issued by State Farm with a policy limit of $10,000 and her mother, Juanita Atkins, also held a policy issued by State Farm with a policy limit of $25,000. After the accident, Stonewall paid Shepherd $10,000.00 on behalf of Amini and, in return, Shepherd executed a covenant not to sue by which she agreed not to sue or "make any claim against Mohammad Esmail Amini, Stonewall Insurance Company, or Dixie Insurance Company...." The agreement further provided that "the execution of this Covenant Not to Sue ... does not in any way prejudice the rights of the undersigned to assert or make a claim against the undersigned's automobile liability insurance carrier, State Farm Mutual Automobile Insurance Company....". Shepherd alleges that her damages exceed the $10,000.00 paid to her by Amini's insurer and that she is entitled to recover from State Farm pursuant to the provisions of policies issued to her and her mother and *76 the Mississippi uninsured motorist statutes.[1] State Farm asserts that it is entitled to summary judgment because Shepherd's execution of the covenant not to sue without the consent of State Farm was in violation of the uninsured motorist provisions of the policy which state in part: This insurance does not apply: (a) to bodily injury to an insured ... with respect to which such insured ... shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.... The covenant not to sue, according to State Farm, furthermore abrogated its subrogation rights against Amini.[2] In United States Fidelity & Guaranty Company v. Hillman, 367 So. 2d 914 (Miss. 1979), Hillman, the insured, had sustained injuries when a truck, driven by an uninsured motorist, collided with Hillman's automobile. Without the knowledge of U.S.F. & G., Hillman executed a release of the uninsured motorist. The U.S.F. & G. policy stated that the uninsured motorist coverage did not apply "to bodily injury to an Insured with respect to which such insured ... shall, without written consent of [U.S.F. & G.], make any settlement with any person or organization who may be legally liable therefor". The court held that, since Hillman had violated an unambiguous provision of the policy and had, in releasing the uninsured motorist, foreclosed U.S.F. & G.'s subrogation rights guaranteed by Mississippi's uninsured motorist statutes, recovery from U.S.F. & G. must be denied. Id. at 922. The plaintiff has attempted to distinguish the release in Hillman from the covenant not to sue executed by her. Shepherd contends that the covenant not to sue is personal to her and not prejudicial to the subrogation rights of the defendant. Subrogation, however, "is the substitution of one person in place of another ... so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and to its rights, remedies or securities". Indiana Lumberman's Mutual Insurance Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 754 (Miss.1984) (quoting Lyon v. Colonial United States Mortgage Co., 129 Miss. 54, 91 So. 708 (1922)). State Farm's ability to recover from Amini or his insurer is dependent entirely on Shepherd's rights. By foreclosing her own right to sue, Shepherd has also abrogated State Farm's rights. Furthermore, since the covenant not to sue executed by Shepherd constitutes a "settlement" in violation of the policy, the court finds that the legal distinctions between a release and covenant not to sue are immaterial.[3] For the reasons stated herein, it is the court's opinion that the defendant's motion for summary judgment should be granted. A separate judgment shall be submitted in accordance with the local rules. NOTES [1] Section 83-11-103, Miss.Code Ann., defines an uninsured motor vehicle as, inter alia, "An insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage." Although the automobile driven by Amini was covered by an insurance policy, it is an uninsured motor vehicle for purposes of the statutes because Shepherd alleges her damages exceeded the amount of coverage. [2] Miss.Code Ann. § 83-11-107 (1972) provides in part: An insurer paying a claim under the endorsement or provisions required by section 83-11-101 shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made, including the proceeds recoverable from the assets of the involvent insurer. [3] In Dancy v. State Farm Mutual Automobile Insurance Co., 324 F. Supp. 964 (S.D.Ala.1971), the insured executed a covenant not to sue in favor of a man against whom he had a tort claim, as well as the man's insurance company, and then sought recovery under the uninsured motorist provision of his policy with State Farm. The court, in granting summary judgment for the insurer, found that the covenant not to sue, like a release, breached the policy provision prohibiting settlement without the insurer's consent and interfered with the insurer's subrogation rights. Id. at 965.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619231/	394 P.2d 886 (1964) Nicholas ZERBINOS, Appellant, v. Kathleen LEWIS, Appellee. No. 400. Supreme Court of Alaska. August 21, 1964. 887 John M. Savage, of Irvine, Clark & Savage, Anchorage, for appellant. James J. Delaney, Jr., of Plummer, Delaney & Wiles, Anchorage, for appellee. Before NESBETT, C.J., and DIMOND and AREND, JJ. 888 AREND, Justice. This is a personal injury case growing out of an automobile accident in the City of Anchorage on April 30, 1962. The plaintiff, Zerbinos, alleged in his complaint that as he was driving his car south on Gambell Street and came to a careful stop in a line of automobiles, he was struck from the rear by another car owned and negligently driven by the defendant, Kathleen Lewis, to his injury and damage in the sum of $25,000. The defendant admitted the occurrence of the accident but denied any negligence on her part or personal injury to the plaintiff. She alleged that the accident was the result of a sudden mechanical failure of the brakes on the car she was driving. The case was tried, to a jury which found for the defendant, and the plaintiff has appealed. The plaintiff has specified a number of errors, the first being that the trial court committed reversible error by repeatedly refusing to allow him to propose certain hypothetical questions to his expert medical witness. The only hypothetical question which he points up in connection with this specification of error was put to the witness as follows: "Q Dr. Mead, I'm going to ask you a hypothetical question now. I'll withdraw the previous question and I'll ask you this: Taking a man the age of Mr. Zerbinos in July of 1960 who has the symptoms that Mr. Zerbinos was exhibiting at that time; than [sic] assume that an operation is performed on this man who had the same the herniated disc is treated and then assume that an arthritic problem is also present arthritic problem in the back area that there's anxi partial anxiety problem in that area and assume that this man is treated over the next 10 months or so like being given muscle relaxants, arthritic drugs, things of that nature assume this man does go back to work does go back to his job and assume that approximately 10 months later suffers an accident or an injury and assume that uh the diagosis [sic] or the doctor diagnoses this injury as an acute cervical sprain and an acute lumbro-sacral sprain I'd like to know in your medical opinion and don't answer this question until Mr. Delaney has a chance to object if he wants to whether this acute lumbro-sacral sprain or the acute cervical sprain would in any way, normally, or could reasonably tend to aggravate the original disc problem?" Counsel for the defendant objected to the question on the ground that there was no evidence in the case to support the assumptions which the witness was asked to make, and the court sustained the objection. We find that the court ruled correctly.[1] In our examination of the record we find that at the time the hypothetical question was asked, there had been no evidence introduced to the effect that the plaintiff had been diagnosed as having suffered an acute cervical sprain and an acute lumbro-sacral sprain in the car collision of April 30, 1962. After the objection had been sustained counsel for the plaintiff admitted to the trial court that the ruling was "technically correct" and intimated that he might decide to recall Dr. Mead after another expert, Dr. Keister, had testified. Dr. Keister did later testify that he had made the diagnosis assumed in 889 the hypothetical question, but Dr. Mead was never recalled and again asked the hypothetical question. The second error specified is as to the refusal of the trial court to admit into evidence certain hospital records covering the period that the plaintiff spent in the hospital after the accident and duly authenticated by stipulation. The defendant objected to the admission of the records on the ground that they constitute hearsay and the trial judge sustained the objection, stating that the records contained information which he did not think should go to the jury "in the best interest of justice" and that the records did not contain any information which the plaintiff could not prove by the doctor who attended him. It cannot be denied that the hospital records constituted hearsay,[2] but by court rule in Alaska they are admissible as evidence if they meet the requirements of Civil Rule 44(a) (1) which reads: "Writings offered as memoranda or records of acts, conditions, or events are admissible as evidence of the facts stated therein if the court finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness. The word `business' as used herein shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not." The hospital records in this case were authenticated by stipulation. The defendant makes no claim that they were untrustworthy or privileged and we have no way of judging the defendant's assertion that they contained irrelevant matter because the records were not sent up on appeal. Under these circumstances we conclude that it was error for the trial court to refuse to admit the records in evidence. In many jurisdictions today, under statutes similar to our Rule 44(a) (1), hospital records are held to be admissible when relevant to an issue and when a proper foundation has been laid.[3] However, we consider the error of the trial court in this instance to have been harmless. Civil Rule 61 provides in that respect: "No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." [Emphasis added.] The foregoing rule is identical to Rule 61 of the Federal Rules of Civil Procedure and has been interpreted by the federal courts to require the appellant on 890 appeal to bear the burden of proving prejudice as well as error.[4] We regard this as being a correct interpretation of the rule. In the instant case the plaintiff has not sustained the burden that was his. While he asserts in his second specification of error that the hospital records would have substantiated his own testimony concerning his experience in the hospital, he does not explain how this would have come about or why his testimony needed to be substantiated as, for instance, where it might have been discredited by other evidence in the record. Furthermore he did not make the hospital records a part of the record on appeal so that we might examine them to determine whether it constituted prejudicial and reversible error for the trial court to reject them as evidence. The plaintiff next contends that the trial court committed reversible error by admitting into evidence two receipts purportedly issued to the defendant for money paid to a service station for services rendered on her car, including items for brake adjustment and brake fluid, about two months prior to the accident. The plaintiff objected to the admission of these receipts on the grounds that they contained hearsay and that no proper foundation had been laid for their admission. We fail to find any substantiation in the record for this claim of error by the plaintiff. They were properly identified by the defendant in her testimony and they were relevant and material on the issue of unavoidable accident due to mechanical failure pleaded by the defendant. This brings us to the question arising out of the plaintiff's fourth specification of error,[5] that is, what must be included in the fact predicate of a hypothetical question propounded to an expert witness? Charles Timbrook, called as a witness by the defendant, who was his stepdaughter, testified that he examined the defendant's car after the accident and found that the foot brake when depressed went all the way to the floor board. He also discovered that the brake connection on the left front wheel was loose and that this had permitted brake fluid to squirt out onto the wheel. He tightened the connection and replaced the brake fluid, and the foot brake then worked again. On cross-examination he stated that it took him only one complete turn of the flexible connection on the brake line to tighten the connection. Wayne Baskett, a police officer, also called as a witness by the defendant, gave an account of his investigation of the accident immediately after it occurred and before either of the cars involved had been moved. He noted the same defect in the foot brake of the defendant's car as was testified to by Timbrook. Under the left front wheel of the car he found a puddle of brake fluid which had left a trail of drippings for a distance of about thirty-six feet to the rear. He estimated the total amount of brake fluid on the pavement to have been about one pint, which he believed was the approximate brake fluid capacity of the defendant's car a 1955 Oldsmobile. The foregoing testimony of Timbrook and Baskett stood undisputed in the record 891 at the time that the plaintiff called Lloyd Smith, an expert automobile mechanic, as a rebuttal witness. He testified on direct examination that, if a brake connection is loosened by one turn, he would expect the brake fluid to be lost gradually; that in such circumstances he would expect to find leakage; and that, if the wheel cylinder is leaking, it will lead first to the brake slipping and grabbing and cause the pedal to become gradually soft and spongy. Then on redirect examination, after several unsuccessful attempts by plaintiff's counsel to frame an acceptable hypothetical question for this witness to answer, the following question was asked of the witness: "Assume that you have a 1955 Oldsmobile that's exhibited no difficulty with the brakes prior to this accident; no sponginess in the pedal, no loss of pedal or anything of that nature. Assume that the flexible line, that's the flexible connection, is loose approximately one turn, that means a 360 degrees on a minute, and assume that it's finger loose so at least you can turn it with your finger at that point; assume that this vehicle was in an accident and that for 36 feet prior to the accident there's a trail of brake fluid on the ground and after the accident there's a puddle of brake fluid under [sic] the puddle and that the total accumulation of this fluid is approximately one pint; now in terms of reasonable probabilities, is it reasonably probable that as this accident occurred, the person putting on the brakes would lose the brake pedal all at once, in other words the brake pedal would just go right down to the floor." Defense counsel objected to the question on the grounds that it called for an answer on a matter already established by the undisputed evidence in the case. The trial court, however, permitted the witness to answer and he then replied to the question as follows: "It's not reasonably possible for if with just that type of a leak for there to be that much brake fluid on the ground;" whereupon the court instructed the jury to "disregard his answer because that [the presence of a pint of brake fluid on the ground] must be assumed in the action." The plaintiff interposed no objection to the court's peremptory instruction to the jury. We find here no error, for where the material facts are undisputed as they were in this case regarding the amount of brake fluid observed on the ground after the accident, and the sole question is whether a certain admitted condition might or could have produced a claimed result (sudden, complete loss of the braking effect of the foot brake), the prevailing rule is that every fact in evidence which might affect the opinion called for must be incorporated in the hypothesis.[6] By his answer Lloyd Smith indicated that he would have to dispute the likelihood of some of the very facts that he was properly asked to assume. Finally the plaintiff charges that the trial court committed reversible error in giving an instruction on unavoidable accident[7] over the plaintiff's objections where the complaint alleged ordinary negligence and the evidence showed, without contradiction, that the defendant never engaged 892 the emergency brake of the crashing vehicle when she realized that her foot brake was inoperative. This charge of error we find to be well taken and serious enough to require the granting of a new trial. The plaintiff points out that in Harrison v. Garner[8] this court held that if the evidence in the case was such that the jury could have found that the defendant's own lack of care created or brought about the situation where the accident became inevitable or unavoidable, the giving of an instruction on unavoidable accident constituted reversible error. From this he seems to argue that the instruction would have been proper in this case if the evidence had shown only sudden brake failure as the cause of the collision. But, since the evidence showed also an affirmative failure on the part of the defendant to apply her emergency brake to prevent the collision or lessen the impact thereof, he contends that it was reversible error to give the instruction. We find the plaintiff to be correct in the position he takes on this issue. The defendant herself testified that her car had an emergency brake which was in working condition at the time of the accident, but that she did not use it for the reason that she was not accustomed to using it and in her own words, "just didn't think to use it." Under such circumstances it was reversible error to give the instruction on unavoidable accident.[9] The case is therefore reversed and remanded for a new trial in accordance with this opinion. NOTES [1] Sullivan v. City & County of San Francisco, 95 Cal. App. 2d 745, 214 P.2d 82, 92 (1950); Temple v. Continental Oil Co., 182 Kan. 213, 320 P.2d 1039, 1051 (1958). See also Willis v. Western Hosp. Ass'n, 67 Idaho 435, 182 P.2d 950, 957 (1947), in which it was held that the trial judge may permit an examining counsel at any stage to include in a hypothetical question facts of which he proposes to furnish evidence, the answer being received subject to being stricken in case the necessary evidence is not furnished; but that ordinarily the facts upon which a hypothetical question is based must be proved before the question is asked, and it is within the judge's discretion to refuse to allow the question to be put until the foundation in the evidence is actually laid. [2] For an informative discussion of the hearsay aspect of business records in general and hospital records in particular and the circumstances under which such records have been held admissible in evidence as an exception to the hearsay rule, see McCormick, Evidence, §§ 281-90 (1954). [3] Carney v. RKO Radio Pictures, 78 Cal. App. 2d 659, 178 P.2d 482, 487 (1947); Wickman v. Bohle, 173 Md. 694, 196 A. 326, 329 (1938), Brown v. St. Paul City Ry., 241 Minn. 15, 62 N.W.2d 688, 696, 44 A.L.R. 2d 535 (1954); Allen v. St. Louis Pub. Serv. Co., 365 Mo. 677, 285 S.W.2d 663, 666-667, 55 A.L.R. 2d 1022 (1956); Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 (1955); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245, 249-252, 169 A.L.R. 668 (1947); Gallagher v. Portland Traction Co., 181 Or. 385, 182 P.2d 354 (1947). See also 6 Wigmore. Evidence § 1707 (3d ed. 1940). [4] Palmer v. Hoffman, 318 U.S. 109, 116, 63 S. Ct. 477, 87 L. Ed. 645, 651, 144 A.L.R. 719 (1943); Creekmore v. Crossno, 259 F.2d 697 (10th Cir.1958); Railway Express Agency v. Epperson, 240 F.2d 189, 193-194 (8th Cir.1957). [5] The plaintiff states his fourth specification of error as follows: "The court's ruling that all facts suggested by opposing counsel and/or the court, previously in evidence, must be included in the proposed hypothetical inquiry to appellant's expert mechanic, Mr. Lloyd Smith, placed an unreasonable evidentiary burden on appellant's shoulders as was reversible error. The objections raised by the defendant and the suggestions made to appellant, as to what facts should be incorporated in his proposed hypothetical question, both by the appellee and the court are too lengthy to set out (transcript p. 293-297). The full substance of the witness' answer, in his capacity as an expert mechanic, would have been that it was not reasonably probable that one's brakes would go all the way to the floor upon contact merely because the wheel cylinder screw is loose approximately one turn." [6] Dobbs v. State, 191 Ark. 236, 85 S.W.2d 694, 699 (1935); Cochran v. Gritman, 34 Idaho 654, 203 P. 289, 295-296 (1921); Opp v. Pryor, 294 Ill. 538, 128 N.E. 580, 583-584 (1920); Brown v. Ann Arbor R.R., 183 Mich. 574, 149 N.W. 1031, 1034 (1914); Smith v. Twin City Motor Bus Co., 228 Minn. 14, 36 N.W.2d 22, 25-26 (1949); Cates v. State, 171 Miss. 106, 157 So. 95 (1934); Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833, 836-837 (1917); Stuhr v. Barkwill, 215 Or. 285, 332 P.2d 603 (1958); Karavas v. Poulos, 381 Pa. 358, 113 A.2d 300, 304 (1955); Tugman v. Riverside & Dan River Cotton Mills, 144 Va. 473, 132 S.E. 179, 184-185 (1926); Helman v. Sacred Heart Hosp., 62 Wash.2d 136, 381 P.2d 605, 613 (1963). [7] The instruction complained of in the plaintiff's fifth and last specification of error was given as follows: "In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence." [8] 379 P.2d 948 (Alaska 1963). [9] See Tyree v. Dunn, 315 P.2d 782, 784 (Okl. 1957), in which the factual situation was quite similar to that in the case under consideration and the appellate court speaking of the defendant's admitted failure to use his emergency brake stated: "This evidence does not raise the issue of `unavoidable accident' and the submission of the issue to the jury was prejudicial to the rights of plaintiff, resulting in a miscarriage of justice. No negligence was shown on the part of plaintiff whatsoever. By the use of means suggested by common prudence, the defendant could have prevented the accident; therefore, the accident was not unavoidable."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249662/	273 F.2d 179 REX SHOE COMPANY, Inc.v.JUVENILE SHOE CORPORATION OF AMERICA. Patent Appeal No. 6421. United States Court of Customs and Patent Appeals. December 21, 1959. Mason, Fenwick & Lawrence, Boynton P. Livingston, G. Cabell Busick, Washington, D. C. (Peck & Peck, Allen E. Peck, Washington, D. C., of counsel), for appellant. Kingsland, Rogers & Ezell, St. Louis, Mo. (Edmund C. Rogers, St. Louis, Mo., of counsel), for appellee. Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and JOHNSON (retired), Judges. RICH, Judge. 1 The sole issue here is whether the Patent Office correctly held that registration of the trademark "Thrill-mates" for "women's and children's shoes" is proscribed by Sec. 2(d)1 of the Lanham Act (Trade-Mark Act of 1946) in view of the opposer's prior registration and use of "Foothrills" as a trademark for "Shoes and Slippers of Leather or Kid." 2 The facts are concisely summarized and the reasons supporting the decision below are clearly stated in the opinion of the Assistant Commissioner, acting for the Commissioner, from which we quote as follows (114 USPQ 545): 3 "The record shows that since 1950, both parties have had substantial national sales of shoes under their respective marks through the same types of retail outlets, and both have advertised shoes under their marks in the same trade periodicals and in newspapers under their dealer cooperative programs. Opposer's shoes sold under its mark are professional and casual shoes, and applicant's are casual and sport shoes. The shoes of both parties are sold to the same average purchasers. 4 "There is nothing in the record to aid in determining probability of confusion, so it becomes necessary to attempt an evaluation of the probable associations and reactions in the minds of average purchasers when they encounter applicant's trademarked shoes in the retail outlets under the usual market conditions. Since opposer entered the field with its mark first, and since the average purchasers of the shoes of the parties are the same, it must be assumed that such average purchasers are familiar with opposer's mark, `Foothrills'. Are they likely, when they see or hear applicant's mark `Thrill-mates', to associate it with opposer's `Foothrills' shoes and to assume that both trademarked shoes are in the line of a single company? `Thrill' is a rather unusual word to use in connection with shoes, and it is therefore likely to remain in the minds of women shoe buyers. It is believed probable, therefore, that a portion of the buying public familiar with the mark `Foothrills' will associate `Thrillmates' with it. This is a type of confusion envisaged by the draftsmen of the statute. 5 "Although some doubt is created by a record which shows that applicant's unit sales have been substantially greater than opposer's during the period of concurrent use of the marks, it is not sufficient to resolve the controversy in applicant's favor." 6 Appellant takes issue with the above and argues that the marks, when viewed in their entireties, do not look alike, sound alike, or have the same meaning; that despite extensive advertising in the same trade publications and newspapers and extensive sales of shoes through the same retail outlets, there is no evidence of actual confusion of any kind; that the word "thrill" is an ordinary dictionary word in common use as a part of several trademarks for various products, including shoes, and is entitled to limited protection; and that when an applicant has built up substantial goodwill in a market, its rights are entitled to consideration in an opposition proceeding such as this. 7 Whether marks are likely to cause confusion or mistake or deceive average purchasers is, in final analysis, a matter of opinion. Both of the tribunals in the Patent Office held that concurrent use of the instant marks would be likely to cause confusion as to origin of the goods. 8 While it is obvious that the marks, which have the word "thrill" in common, have differences in spelling, pronunciation, appearance, and meaning, we do not feel these are sufficient to obviate the possibility of confusion as to origin. The word "Thrill" in appellee's mark is, as the Commissioner said, "a rather unusual word to use in connection with shoes." The other parts of the marks have little, if any, trademark significance, that is to say they would not tend to indicate origin. "Foot" is quite descriptive of shoes and shoes are sold in pairs, the shoes of each pair being "mates." "Thrill" is, therefore, the significant portion of each mark and entirely arbitrary when applied to shoes, notwithstanding it is a common English word. 9 The issue here is not likelihood that purchasers would confuse the marks on the basis of side-by-side comparison. We think it is reasonable to say that average purchasers of shoes may be confused as to the origin of the goods where the two marks here involved are applied to similar shoes. It is, in our opinion, of little or no significance that opposer has produced no evidence of actual confusion. 10 We think concurrent use of the instant mark would be likely to result in at least some confusion as to origin. We must, therefore, affirm the decision below. 11 Affirmed. 12 WORLEY, C. J., and JOHNSON, J., dissent. Notes: 1 Sec. 2(d) provides, with certain specified exceptions, that no trademark shall be registered if it "consists of or comprises a mark which so resembles a mark registered in the Patent Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of applicant, to cause confusion or mistake or to deceive purchasers." 15 U.S.C.A. § 1052(d) 13 MARTIN, Judge (concurring). 14 In my opinion, this case is one which raises some doubt as to whether concurrent use of the instant marks would result in confusion as to origin. Any such doubt must be resolved against the newcomer, and for this reason only I join in the affirmance.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3347120/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION I. The Dissolution of the Marriage It is found that all of the allegations of plaintiff's complaint have been proven and that the marriage of the parties has broken down irretrievably. Their marriage is ordered dissolved for that reason. II. The Marital Estate of the Parties Plaintiff 1/2 interest in family home at 358 Camp Street, Plainville, CT F. M. V. $120,000 Less 1st mtg. $20,197 Less 2nd mtg. $10,905 ------- TOTAL — 31,102 TOTAL EQUITY $88,898 1/2 interest $44,449 Household furniture, etc. — Peoples Bank 53 Webster Bank J/T T = $11,500 1\2 interest 5,750 Metropolitan C.U. J/T T = $300 1/2 interest 150 Franklin Conn. Tax Free Inc. J/T T = 1000 1/2 int. 500 Life Ins. F.V. $20,000 C.S.V. 601 CT Page 9202 Retirement Trust R C ($75, 119-$29,527 loan) 45,592 1989 Volkswagon 2,000 1986 Honda Accord 1,200 21 Savings Bonds J/T T = $1,650 1\2 interest 825 ________ $101,120 Defendant 1/2 interest in equity in family home $44,449 1990 Chevrolet Cavalier her 1,400 Golf Clubs, personal property — Life insurance A.A.L. Life F.V. $50,000 C.S.V. 4,000 Life insurance A.A.L. Life F.V. $15,000 C.S.V. 150 Life insurance Globe Life F.V. $25,000 — — Bank Accounts Webster Bank (s) P.O.D. Brendan 925 Webster Bank (s) 8,800 Webster Bank (s) S/J/T T = $11,500 1/2 5,750 Webster Bank (s) 2,300 Webster Bank (s) J/D's father T = $5,200 1/2 2,600 Webster Bank (s) J/D's mother T = $9,300 1/2 4,650 Metropolitan C.U. J/T T = $300 1/2 150 Webster Bank C/A 900 I.R.A. (2) 4,000 ________ $30,075 Savings Bonds 3 bonds J/D's mother T $712 1/2 356 5 bonds J/D's sister T $20 1/4 1,007 9 bonds J/D's son T = 3568 1,795 9 bonds D.P.O.D. son 928 13 J/D's son T = $878 439 21 bonds J/T T = $1,650 825 53 bonds J/son T = $17,166 8,583 1 bond D.P.O.D. son 100 ------- TOTAL $14,033 $14,033 CT Page 9203 4 bonds sold by D. in violation of court order $411 Pension Stop Shop $40,478 Securities Dean Witter $5,800 Franklin Temp. Fund 1/2 500 ------ $6,300 $6,300 Advest Inc. Zero Coupon Bonds Valued at $21,008 are in a custodial account for son Brendan and are not considered part of the distributable marital estate. *Because of the orders entered in Article Other Orders these policies are not included in the marital estate. $137,146 TOTAL MARITAL ESTATE $239,266 III An Examination of the Evidence as it Relates to Sec. 46b-81c C.G.S. General Background Information The plaintiff wife and the defendant husband were married in New Britain, Connecticut on May 18, 1973, twenty five years ago. They have one child, a son Brendan, who was born May 12, 1980, became eighteen during the course of the trial and graduated from Plainville High School this June. Both of the parties are presently forty six years of age. Prior to her marriage plaintiff had graduated from high school and had also in 1972 received an AA degree from Greater Hartford Community College which she had attended for two years. Following the completion of her schooling she was employed as a paralegal at the law firm of Gilman and Marks for seven years, and after a short stay at Day, Berry and Howard has been engaged as a legal assistant at Robinson and Cole since 1981. Her most recent financial affidavit reflects a gross weekly income of $759 CT Page 9204 with a weekly net after the usual deductions of $550. From all appearances plaintiff is in reasonably good health. In 1980 she suffered for a period of time from depression and made weekly visits to a psychologist for counseling but has no later medical history. Defendant's educational background includes his graduation from high school and his attendance at Central Connecticut State College for two or three years without obtaining a degree. Since 1973 he has been employed in the produce department of a Stop Shop Supermarket where he works the night shift. His current financial affidavit indicates a gross weekly income of $1,132 with a weekly net after the customary deductions (excepting stock and bond purchases and loan repayments) of $763. Defendant also appears to be in reasonably good health. He plays golf frequently and enjoys other outdoor activity. The parties spent most of their married years together in a home in Plainville, Connecticut which they purchased in 1978. Gifts and Inheritances a. Plaintiff Plaintiff's mother died in 1993 and the following years plaintiff received $15,000 from her estate as an inheritance. Plaintiff testified that this money was used to pay household bills, for family purposes including expenses for son Brendan, and for weekend trips for the family. b. Defendant Defendant's parents gave the parties $1,000 toward their purchase of the family home, gave them a washer and dryer when they moved in, and on at least one occasion gave the parties their old automobile when they purchased a new one. They have also been most generous to their only grandchild, Brendan, over the years. Of particular concern to the court is the manner in which to treat various savings bonds purchased by defendants parents, particularly his mother, during the course of the marriage, and placed in the names of the parties and their son Brendan in one form or another. These gifts began in November, 1977 and with some interruption have continued on an irregular basis until CT Page 9205 fairly recently. Some bonds are in the names of both plaintiff and defendant, others in the name of defendant and Brendan, while still others stand in the joint names of defendant and either his mother or sister. To add to the confusion, defendant during this extended period has also purchased savings bonds by means of pay deductions at his place of employment. These were for the most part placed in the name of defendant and his son. There is some evidence that certain of these bonds were kept by defendant's mother and never delivered to the named owners, and that still other bonds were returned to defendant's mother by him following the commencement of the present dissolution action. There is also evidence that defendant liquidated a number of these bonds, at least four of them subsequent to a court order prohibiting the dissipation of family assets. Defendant suggests as a solution to the various problems presented by these bonds that all of them be expended by him for the college education of Brendan. Unfortunately, to follow such a suggestion would only make matters worse. The authority of the trial court to assign a portion of the marital estate to a third party is limited to real property. It is "without authority to transfer marital property to the children of the marriage." Wolfv. Wolf, 39 Conn. App. 162, 171 (1995). Plaintiff in turn proposes that all bonds in which defendant has an interest be included in the marital estate and that the parties in effect have an equal share in all of them. The court declines to exclude from the marital estate savings bonds purchased by defendant's mother and standing in his name. "The fact that the defendant, subsequent to his marriage to the plaintiff received substantial property from his parents in his name only does not operate to exclude this property from the marital assets." Watson v. Watson, 221 Conn. 698, 711 (1992). Having reviewed and weighed all of the evidence on the subject of the savings bonds, all the while being mindful that while defendant's contribution to their acquisition exceeds by far that of plaintiff, plaintiff's unquestioning offering of her mother's inheritance of not too dissimilar a value must also not be overlooked at this moment, this court concludes that in balancing fairly the equities, it should treat all savings bonds wherein defendant has an interest as part of the distributable marital estate. CT Page 9206 Fault An examination of the evidence relating to this factor discloses the opinion of each of the parties concerning the causes for the irretrievable breakdown of their marriage. Plaintiff Plaintiff testified that the marriage started to deteriorate during their first year together because defendant continued living a single lifestyle, keeping late hours and using both alcohol and drugs excessively. On two occasions he was charged with drunken driving and spent weekends in jail. He gambled excessively and spent much of his spare time and family funds at the Connecticut casinos. On one occasion he angrily punched a hole in the bedroom wall and threw chairs, tires and garbage cans around the garage. Shortly before defendant left the family home in September, 1996 plaintiff learned that he had begun a relationship with another woman. Defendant Early in the marriage plaintiff had a five year affair with a fellow employee which resulted in the separation of the parties for eight months. Defendant's gambling addiction was shared to a lesser degree by plaintiff. In plaintiff's words "all during the marriage my husband and I lived higher than our means. Whenever creditors pressed us we borrowed, charged things." In summary, defendant had very little to offer on this issue. Conclusion Following a review of the court's motion on this factor, it concludes that fault for the breakdown of the marriage rests for the most part with defendant. Other Factors The vocational skills and employability of the parties are about equal, as are the opportunities of each of them for the future acquisition of capital assets and income. Defendant has with the generous assistance of his parents contributed more to the marital estate than has plaintiff, but CT Page 9207 this contribution has to no small degree been offset by his gambling habits. These have adversely affected the preservation or appreciation in value of their estate. The liabilities of defendant exceed those of plaintiff. Conclusion The court has reviewed and weighed all of the evidence as it pertains to Sec. 46b-81c C.G.S. and has given special consideration to such predominant factors as the length of the marriage, fault, and the relative liabilities of the parties. It concludes that the marital estate of the parties should be divided equally between them. IV. The Distribution of the Marital Estate Total Marital Estate $239,266 Plaintiff's share 50% 119,133 Defendant's share 50% 119,133 Plaintiff Shall Take and Have: Entire interest in family home at No. 358 Camp Street, Plainville, CT Total Equity $88,898 Household furniture, etc. Life insurance F.V. $20,000 C.S.V. 601 Retirement Trust R C balance 45,592 1989 Volkswagon 2,000 1986 Honda Accord 1,200 ----- Sub Total $138,291 Less debit for payment of defendant's share of son's expenses — 1,170 $137,121 Less amount due Defendant — 17,988 -------- $119,133 CT Page 9208 Defendant Shall Take and Have 1990 Chevrolet Cavalier $1,400 Golfclubs, other personal property — 3 life insurance policies C.S.V. $1,450 — All bank accounts 30,075 All savings bonds 14,858 All plaintiff's bank accounts securities 6,453 Stop Shop pension 40,478 Securities 6,300 4 bonds sold in violation of court order 411 Credit for 1/2 expenses incurred by son Brendan for car and health care in accordance with court order of October 2, 1996. 1,170 ----- Subtotal $101,145 Plus amount due defendant from plaintiff 17,988 -------- Total $119,133 V. Supplemental Orders Relating to the Distribution As Used in Article A. Defendant is ordered to convey to plaintiff all of his interest in the family home situated at No. 358 Camp Street, Plainville, Connecticut. Plaintiff in turn will hold defendant harmless concerning all mortgages and other incumbrances on said property. B. Plaintiff is ordered to give defendant her promissory note in the amount of $17,988 which shall be secured by a mortgage on said family home. Said note shall bear interest at the rate of 4 percent per annum and shall be due and payable upon the earliest to occur of the following events: 1. The remarriage of the plaintiff; 2. The death of the plaintiff; 3. The sale of said premises; 4. The failure of the plaintiff to occupy said premises as her primary residence; CT Page 9209 5. Five years from date hereof. C. The parties shall execute all documents necessary to carry out these and any other orders of the court. VI. Liabilities A. The credit card debts of the parties are allocated as follows: ApproxAccount Account No. Balance P. D. 1) AT T 1,263.49 1,263.49 2) Bank of NY/UFCW/#5432354001869989 7,469.60 3,734.80 3,734.80 Household Credit 3) Fleet VISA #5413809091463079 4,557.17 2,278.58 2,278.59 4) First USA VISA #5417122445219825 5,184.96 2,592.48 2,592.48 5) Chase #5260210081681636 5,344.45 2,672.23 2,672.22 6) Citibank VISA #4128003211927580 3,394.31 1,697.16 1,697.15 7) People's #4116070008778314 3,234.63 1,617.31 1,617.32 8) American Express #373494307831002 3,024.13 3,024.13 9) Citibank VISA #4128003220061223 7,094.10 7,094.10 10) Metropolitan CU a) VISA #462685006009614 8,765.17 8,765.17 b) Loan #43256311-0 6,471.24 6,471.24 11) Citibank VISA #412800322006 7,094.10 7,094.10 TOTAL $62,897.35 $15,856.05 $47,041.30 Defendant's obligation to pay his share of the credit card debt listed in this paragraph shall be considered a duty directly related to the support and maintenance of plaintiff and shall be nondischargeable by defendant in bankruptcy. B. The parties shall be jointly responsible for real estate taxes due the Town of Plainville in the approximate amount of $2,800. C. With the exception of the above allocations, each of the parties shall be solely liable for all liabilities listed on his or her financial affidavit and shall hold the other party harmless in that regard. CT Page 9210 VII. Alimony The Court has considered all the provisions of Sec. 46b-82 C.G.S. as they apply to the evidence. In particular it has noted the length of the marriage, twenty five years, the variation in the present incomes of the parties and their vocational skills and employability. On the evidence it is ordered that defendant pay to plaintiff as alimony the sum of $150 per week. Said order is modifiable only as to amount but shall sooner terminate upon the remarriage of the plaintiff, the death of either party, or plaintiff's co-habitation with an unrelated male within the meaning and intent of Sec. 46b-86 (b) C.G.S. The parties shall annually, commencing April 15, 1999 and continuing while said order is in effect, exchange federal income tax returns. Article Other Orders A. Life Insurance Defendant shall continue to maintain his three existing life insurance policies in the total face value of $90,000 with plaintiff as irrevocable beneficiary during such time as defendant shall be required to pay alimony to the plaintiff. B. Health Insurance Defendant shall permit plaintiff to have COBRA coverage on his existing policy for the maximum period prescribed by law at plaintiff's sole cost and expense. C. Attorney's Fees In view of the previous orders of the court, no award of attorney's fees is made to either party. D. Other Obligations of Defendant 1. Defendant shall pay plaintiff $1,169.88 representing of car and health care expenses incurred by son Brendan and in accordance with the order of the court on October 2, 1996. CT Page 9211 Said sum shall be deducted from the amount plaintiff owes defendant in accordance with the provisions of Article IV (supra). 2. Plaintiff's claims for $7,227.86 representing mortgage and other house upkeep costs are disallowed, she having sole occupancy of the family home during that period in which said costs were incurred. 3. Plaintiff is ordered to transfer to defendant his Sentry safe, the big screen t.v. and the yellow portable t.v. 4. If not previously delivered, defendant shall pay plaintiff $275 representing alimony and support for one week. By the Court John D. Brennan Judge Trial Referee	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1913631/	126 B.R. 489 (1991) In re Joseph Eugene WILLS, Debtor. Thomas A. SCHULTZ, Jr. and Rex L. Sturm, in their capacities as trustees and substitute trustees, Plaintiffs, v. Joseph Eugene WILLS, et al., Defendants. Bankruptcy No. 89-01374-AB, 90-52-AB. United States Bankruptcy Court, E.D. Virginia, Alexandria Division. April 11, 1991. 490 Joseph W. O'Malley, Bethesda, Md. and Roy B. Zimmerman, Alexandria, Va., for debtor. Kurt C. Rommel, Thomas E. Helf, Frank, Bernstein, Conaway & Goldman, Tysons Corner, Va., for William L. Walde. Malcolm M. Mitchell, Jr., Ross, Marsh, Foster, Myers & Quiggle, Alexandria, Va., for Thomas L. Swarek, D. Cecil Culbertson, Doyle C. Culbertson, Jr. and Nancy F. Culbertson. MEMORANDUM OPINION MARTIN V.B. BOSTETTER, Jr., Chief Judge. This matter arises out of objections filed by Joseph Eugene Wills (the "Debtor"), a Northern Virginia real estate developer, to three proofs of claim. The first claim, filed by Thomas L. Swarek ("Swarek"), relates to two promissory notes, each dated November 10, 1988, made by the Debtor and payable to the order of Swarek 30 days after issuance in the aggregate principal amount of $2,171,459.40 (collectively, the "Notes"). The second proof of claim was filed by D. Cecil Culbertson, Doyle C. Culbertson, Jr. and Nancy F. Culbertson (collectively, the "Culbertsons") who claim to have a beneficial interest in the Notes. The third proof of claim was filed by William L. Walde ("Walde") who contends that he is the holder in due course of the Notes entitling him to the amounts evidenced thereby free and clear of any defenses asserted by the Debtor. Swarek and the Culbertsons, who concede that Walde is the holder in due course of the Notes, filed their proofs of claim to protect their interests in the Notes in the event Walde's claims are satisfied and there is an additional amount owing by the Debtor under the Notes. The three claims are not intended to be duplicative. On July 17, 1990, the parties agreed to have the validity of the three proofs of claim determined within this adversary proceeding. All three claims arose from a written contract entered into in June 1988 between the Culbertsons and the Debtor (the "Purchase Agreement") whereby the Culbertsons agreed to sell, and the Debtor agreed to buy, certain real property located in Loudoun County, Virginia known as Bluff Farm and Harrison Island (collectively, the "Properties") for $4,500,000 in cash. Prior to the closing of the transaction, the Debtor informed Doyle Culbertson that the Debtor was having cash flow problems and that, instead of paying all cash for the 491 Properties, he wanted to finance part of the purchase price by issuing the Notes. During discussions over the payment of the purchase price, the Culbertsons advised the Debtor that the Culbertsons were negotiating with Swarek to purchase farm land in Mississippi as part of a tax free exchange to shelter the Culbertsons' capital gain resulting from the sale of the Properties. The Culbertsons determined that, by naming Swarek as the nominal seller of the Properties, they could effect a tax free exchange. This arrangement was acceptable to the Debtor and on November 9, 1988, the parties amended the Purchase Agreement to reflect that Swarek would be the seller of the Properties and that at the closing the Debtor would be required to pay $250,000 in cash and deliver the Notes for the remainder of the purchase price. With documents naming Swarek as the seller, the Culbertsons, Swarek and the Debtor met at the Debtor's home office on November 10, 1988, for the closing on which date the Debtor delivered the Notes to Swarek. On the morning of November 11, 1988, the Culbertsons, Swarek and the Debtor took the closing documents to a hotel in Arlington, Virginia, where they had their signatures on some of the closing documents acknowledged by a notary public. On November 23, 1988, the Culbertsons and Swarek sought and received a $1,700,000 loan from Walde and pledged the Notes and the liens securing the Notes as collateral to secure their loan. The Debtor defaulted on his obligation to pay the Notes in full on their due date, December 10, 1988, thereby causing the Culbertsons and Swarek to default on their loan from Walde. In July 1989, the Debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code. In November 1989, Walde filed a proof of claim based on his contention that he is the holder of the Notes. In January 1990, the plaintiffs filed a motion seeking, inter alia, relief from the automatic stay to foreclose certain real property. In May 1990, the Debtor filed an answer which asserted that the "alleged transfer of property . . . was void by reason of the fact that the [Debtor] was inebriated and had been so for an extended period of time and incapable of entering into a contract." In September 1990, Walde, asserting that he is a holder in due course with respect to the Notes and therefore not subject to the defense raised by the Debtor, filed a motion for summary judgment. In response, the Debtor asserted that the Debtor was mentally and physically incompetent to enter into, form or consummate a contract and that he was further subject to a court order . . ., which barred him from entering into the transaction [contemplated by the Purchase Agreement]. It is further [the Debtor's] position that the Culbertsons, Swarek and Walde knew, were put on notice, or should have known of these disabilities (which rendered the entire transaction and particularly, the . . . Notes, void or voidable) and that therefore the . . . Notes are invalid as to [the Debtor]. Memorandum in Support of the Debtor's Opposition to Motion for Summary Judgment at 2. After affording the parties extensive opportunity for discovery, this Court conducted a hearing on Walde's summary judgment motion where this Court examined the parties' pleadings, affidavits, depositions, answers, interrogatories and admissions on file. On October 17, 1990, this Court granted Walde summary judgment. Motions for reconsideration of the summary judgment were filed by the Debtor, the Official Committee of Unsecured Creditors and Gloria H. Wills. Such motions were denied. On October 17 and 18, 1990, this Court heard evidence from the Debtor relating to his affirmative defense of incapacity to the proofs of claim filed by the Culbertsons and Swarek. After the close of the Debtor's evidence, the Culbertsons and Swarek filed a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Culbertsons and Swarek contended that the Debtor failed to prove by clear and convincing evidence that the Debtor's intoxication or manic depression rendered the Debtor unable to understand 492 the nature and consequences of his acts in purchasing the Properties from the Culbertsons and Swarek. On November 14, 1990, this Court granted their motion to dismiss. This Memorandum Opinion supplements the findings and conclusions set forth in the record of the hearings held on October 17, 1990, and November 14, 1990. In order to grant Walde's motion for summary judgment, this Court must determine that there is no genuine issue as to any material fact and that Walde is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Although several facts in this matter are in dispute, to determine whether those facts are material we must examine the substantive law governing the holder in due course doctrine. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The effect of achieving holder in due course status is that the holder takes an instrument free from certain defenses, such as the defenses asserted by the Debtor. See Va.Code Ann. § 8.3-305(2) (1965) ("To the extent that a holder is a holder in due course he takes the instrument free from . . . all defenses of any party to the instrument with whom the holder has not dealt. . . ."). To attain holder in due course status, a person must be a holder who takes a negotiable instrument for value, in good faith and without notice of any defense or claim to it. Va.Code Ann. § 8.3-302(1) (1965). The parties in this matter do not dispute that the Notes are negotiable instruments and that Walde is a holder who took the Notes for value. However, the Debtor contends that Walde did not take the Notes in good faith and without notice of any defense. The Debtor further contends that even if Walde is a holder in due course, a state court decree allegedly prohibiting the Debtor from executing certain contracts, including the Notes, relieves the Debtor from its obligations thereunder. The issue of whether one is a holder in due course of a note does not arise until it is first determined that the maker has a defense to payment that would be good against a mere holder. See Comment 3, Va.Code Ann. § 8.3-307(3) (1965) ("Until it is shown that a defense exists the issue as to whether the holder is a holder in due course does not arise."); J & B Schoenfeld Fur Merchants, Inc. v. Kilbourne & Donohue, Inc., 704 F.Supp. 466, 470 (S.D.N.Y. 1989) ("[T]he issue of whether plaintiff is a holder in due course does not arise until it is shown by defendants that a defense exists which would be good against a mere holder.").[1] The Debtor has the burden of establishing all defenses by a preponderance of the evidence. See Comment 3, Va.Code Ann. § 8.3-307 (1965). Although in ruling on the Culbertsons' and Swarek's motion to dismiss this Court found that the Debtor was not legally incompetent at the time he executed the Notes and therefore has no defense to payment, our conclusion that Walde is a holder in due course does not depend solely on such a finding. In Virginia, to constitute notice of a claim or defense, a person taking a negotiable instrument must have knowledge of such claim or defense or knowledge of such facts as would amount to bad faith. Va. Code Ann. § 8.3-304(7) (1965)[2]. Section 3-304(7), a nonuniform amendment to the U.C.C. adopted only by Virginia and New York (see N.Y.U.C.C. Law § 3-304[7] [McKinney 1984]), requires that questions of notice be determined by a subjective test of actual knowledge rather than an objective test. See Va.Code Ann. § 8.1-201(25) (1965) ("A person . . . has `knowledge' of a 493 fact when he has actual knowledge of it."); Lawton v. Walker, 231 Va. 247, 252, 343 S.E.2d 335, 338 (1986); Hartford Accident & Indemnity Co. v. American Express Co., 74 N.Y.2d 153, 162-163, 544 N.Y.S.2d 573, 577-78, 542 N.E.2d 1090, 1094 (1989). By adopting Section 8.3-304(7), Virginia retained a concept contained in Section 56 of the pre-U.C.C. Uniform Negotiable Instruments Law, Va.Code Ann. § 6-408 (1950) (repealed 1965), which concept was rejected by the drafters of the U.C.C. See Note, Notice and Good Faith Under Article 3 of the Uniform Commercial Code, 51 Va.L. Rev. 1342, 1353 (1965). Notice of defenses against an instrument, therefore, means "[o]nly actual, subjective knowledge, . . . [of defenses]. . . ." J & B Schoenfeld, 704 F.Supp. at 473. Notice of suspicious circumstances is insufficient to deny holder in due course status. Lawton, 231 Va. at 253, 343 S.E.2d at 338. According to a recent New York Court of Appeals decision interpreting New York's version of Section 3-304(7), "[h]olders in due course are to be determined by the simple test of what they actually knew, not by speculation as to what they had reason to know, or what would have aroused the suspicion of a reasonable person in their circumstances." Hartford Accident, 74 N.Y.2d at 162-163, 544 N.Y.S.2d at 578, 542 N.E.2d at 1095 (1989) (citation omitted). It would appear, therefore, that for purposes of holder in due course analysis, Section 8.3-304(7) implicitly supersedes that portion of the definition of "notice" contained in Article I of the Virginia U.C.C. which introduces a degree of objectivity to the concept of lack of notice. See Va.Code Ann. § 8.1-201(25)(c) (defining "notice" as "[F]rom all the facts and circumstances known to him at the time in question he has reason to know that it exists."). Nowhere does the U.C.C. define the term "bad faith" used in Va.Code Ann. § 8.3-304(7). Good faith is defined as "honesty in fact in the conduct or transaction concerned." Va.Code Ann. § 8.1-201(19) (1965). To evidence bad faith, therefore, the purchaser of an instrument must have actual knowledge of such facts as would result in his taking the instrument dishonestly. See Hartford Accident & Indemnity Co. v. American Express Co., 136 Misc.2d 62, 65, 518 N.Y.S.2d 93, 96 (1987) ("They must be facts, ignorance of which amounts to dishonesty."), aff'd, 143 A.D.2d 1074, 533 N.Y.S.2d 356 (1988); 74 N.Y.2d 153, 544 N.Y.S.2d 573, 542 N.E.2d 1090 (1989). Bad faith has been said to be "obviously something far more extreme than a failure to observe reasonable commercial standards or the standards of a reasonably prudent man. It `is not mere carelessness. It is nothing less than guilty knowledge or willful ignorance.'" Corporacion Venezolana de Fomento v. Vintero Sales Corp., 452 F.Supp. 1108, 1119 (S.D.N.Y.1978), quoting Manufacturers & Traders Trust Co. v. Sapowitch, 296 N.Y. 226, 229, 72 N.E.2d 166, 168 (1947). As with the test in Virginia for determining whether a holder had notice, the test for determining whether a holder took an instrument in good faith is a subjective one. Lawton, 231 Va. at 251, 343 S.E.2d at 337. It is determined by looking to the mind of the particular holder who asserts that he is a holder in due course, and not by focusing on what the state of mind of a reasonably prudent person should have been. Id. Walde supported his motion for summary judgment with affidavit and deposition testimony wherein he stated that when he took the Notes on November 23, 1988, he had no knowledge of the Debtor's alleged alcohol or psychological problems, any court order restricting the Debtor's ability to contract, or any other facts that might make the Notes unenforceable. The Debtor contends that when Walde took the Notes from Swarek on November 23, 1988, Walde "knew or should have known" that the Debtor was incompetent on November 10, 1988, because of the Debtor's "intoxication, severe manic depression and physical disability." Memorandum in Support of the Debtor's Opposition to Summary Judgment at 6. In his opposition to Walde's summary judgment motion, the Debtor presented affidavit 494 and deposition testimony to the effect that Walde had known the Debtor since the parties were teenagers; that the two had transacted business with one another; that the two patronized some of the same establishments where alcohol was served and where the Debtor was frequently intoxicated; that the Debtor was largely incapable of thinking rationally; that Walde told a witness that the Debtor is "really acting strange;" that a witness told Walde that the Debtor had been put on and taken off medication for depression and that the Debtor was "doing silly, stupid things"; and that the bank for which Walde served as chairman of the board and chief executive officer would not make the $1,700,000 loan to the Culbertsons and Swarek which was secured by the Notes. In addition, the Debtor asserted in an affidavit attached to his motion to reconsider the summary judgment that "it was obvious to . . . [Walde] that in 1988-89 I was in ill health and intoxicated most of the time,"[3] and "Mr. Walde knew or should have known of my divorce proceeding and the orders restricting my ability to contract." Finally, with his motion for reconsideration, the Debtor offered identical affidavits of two bartenders who each stated that "I saw [the Debtor and Walde] together in the Guards from January 1, 1988, through December, 1988, not less than ten times. . . . [The Debtor] was intoxicated and acting strangely most of these times and Mr. Walde knew he was. . . . Mr. Walde knew Mr. Wills was a manic depressive who had stopped taking his medication and who was subject to divorce proceedings and court orders."[4] Summary judgment procedure is properly regarded "not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). It has been said that summary judgment enables a court to "streamline the process for terminating frivolous claims and to concentrate its resources on meritorious litigation." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). Summary judgment is to be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). In determining whether this showing has been made, this Court must assess the evidence in the light most favorable to the party opposing the motion. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). This Court's responsibility is not to resolve disputed issues of fact but to determine whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). 495 A party opposing summary judgment has raised a genuine issue of material fact when "the record taken as a whole could . . . lead a rational trier of fact to find for the non-moving party." See Rosas v. Stone, 923 F.2d 849 (4th Cir.1991), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."). If the evidence is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-250, 106 S.Ct. at 2510-11, citing First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968). "In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-252, 106 S.Ct. at 2512. The party moving for summary judgment has the burden of showing that no genuine issue as to a material fact exists. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. It has been held that where a maker of a note, opposing the holder's motion for summary judgment, asserts that the holder had knowledge of a claim or defense, the holder must show that he did not have knowledge. First Int'l Bank of Israel v. L. Blankstein & Son, Inc., 59 N.Y.2d 436, 444, 465 N.Y.S.2d 888, 891, 452 N.E.2d 1216, 1220 (1983). Because this involves proof of a negative fact, the holder's burden is a slight one that will be satisfied by testimony of the holder that it had no knowledge. Id. The burden then shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. Summary judgment should be rendered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-323, 106 S.Ct. at 2552-53 (where non-moving party will bear burden of proof at trial on a dispositive issue, Rule 56 requires the nonmoving party to show that there is a genuine issue for trial to defeat motion for summary judgment). Facts that are material in this matter relate to the issue of whether Walde, when he took the Notes on November 23, 1988, had knowledge of the Debtor's alleged legal incapacity to contract on November 10, 1988, or of the court order allegedly applicable to the Notes, or knowledge of such facts as would amount to Walde's taking the Notes in bad faith. The affidavits and deposition testimony offered by the Debtor in opposition to Walde's motion, viewed in a light most favorable to the Debtor, are devoid of any evidentiary facts which raise a triable issue as to whether Walde had such knowledge or acted in bad faith. Nothing put forth by the Debtor would allow a trier of fact to rationally infer that when Walde took the Notes, Walde knew that the Debtor was legally incompetent to contract when the Debtor executed the Notes on November 10, 1988, or that Walde was acting in bad faith. Furthermore, the Debtor failed to present any facts that Walde knew the terms of the court order when he took the Notes.[5] We fail to see how the facts presented by the Debtor, considered separately or collectively, would allow a rational trier of fact to conclude that Walde was acting with "guilty knowledge or willful ignorance." Corporacion Venezolana, 452 F.Supp. at 1119. What is important here is not Walde's possible knowledge of the Debtor's drinking, marital or psychological problems but rather Walde's knowledge of any defenses to the payment of the Notes, or knowledge of any facts which, if ignored, would amount to bad faith. Mere allegations of knowledge devoid of specific evidence showing that there is a genuine issue of material fact 496 require this Court to grant summary judgment. Because no rational trier of fact could find for the Debtor and therefore no triable issue of fact exists with respect to whether Walde had notice of the Debtor's alleged defenses or acted in bad faith, we find that Walde is a holder in due course and takes free from all defenses asserted by the Debtor, including the defense of incapacity. See Va.Code Ann. § 8.3-302 (1965). Although the United States Court of Appeals for the Fourth Circuit observed in Magill v. Gulf & Western Indus., Inc., 736 F.2d 976, 979 (4th Cir.1984), that summary judgment is seldom granted when issues involve a party's state of mind or knowledge, this motion presents one of those cases where it is appropriate. Indeed, it is not uncommon for courts to grant summary judgment in suits to enforce negotiable instruments where the holder's knowledge of a claim or defense is in issue. See, e.g., J & B Schoenfeld Fur Merchants, Inc. v. Kilbourne & Donohue, Inc., 704 F.Supp. 466, 470 (S.D.N.Y.1989); Washington Trust Co. v. Fatone, 104 R.I. 426, 244 A.2d 848, 853 (1968) ("A court should be cautious in granting a motion for summary judgment where state of mind is involved, . . . and should be sure that the party opposing the motion has had a fair opportunity to use the discovery process to probe his opponent's mental state and to examine the facts his opponent has at hand. But if, after such an opportunity, the opposing party cannot point to anything tangible which will create a genuine issue of material fact, the motion should be granted.") (citation omitted); Sundsvallsbanken v. Fondmetal, Inc., 624 F.Supp. 811, 817-818 (S.D.N.Y.1985) (where holder of note had allegedly been notified before note's execution of suspicions of conversion, receipt of such information did not preclude summary judgment in his favor). At the time Walde took the Notes, the Debtor had not been declared legally incompetent. Indeed, no court has ever declared the Debtor incompetent.[6] It is one thing for a purchaser of an instrument to have actual knowledge that the maker or drawer is, for example, a minor but quite another thing for the purchaser to have actual knowledge when he takes an instrument that the maker or drawer is legally incompetent due to intoxication or mental illness even though the maker or drawer has never been declared legally incompetent. To allow a maker to automatically defeat a holder's summary judgment motion by the presentation of evidence of nothing more than the holder's possible knowledge of the maker's or drawer's drinking, psychological or marital problems would not only be contrary to the law but would subject innumerable transactions to a level of scrutiny that would have a chilling effect on the transferability of commercial paper, contrary to the general intent of the drafters of Article 3.[7] The Debtor's position, if adopted here, would require every purchaser of an instrument to ask himself whether he had ever observed the maker or drawer intoxicated or whether he had ever heard of rumors of the maker's or drawer's psychological or marital problems. By chilling the secondary market for instruments, the position advanced by the Debtor would effectively limit the ability of anyone suspected by a prospective purchaser of an instrument of having drinking, psychological or marital problems from issuing drafts 497 or promissory notes, even before the drawer or maker has been declared legally incompetent. Because this Court finds that Walde is a holder in due course, the defense of intoxication does not defeat Walde's right to recover under the Notes. Under the Virginia U.C.C., a holder in due course takes free from all defenses except, among others, any incapacity that "renders the obligation of the [maker or drawer] a nullity." Va.Code Ann. § 8.3-305(2)(b) (1965). Incapacity resulting from intoxication does not render a contract void, merely voidable, in Virginia. Taliaferro v. Emery, 124 Va. 674, 678-679, 98 S.E. 627, 628 (1919). Comments to the Virginia U.C.C. provide that "[i]f under the local law the effect [of incapacity] is to render the obligation voidable . . . the defense [of incapacity] is cut off [as to holders in due course]. Comment 5, Va.Code Ann. § 8.3-305 (1965). Moreover, the existence of a court order does not defeat Walde's rights as a holder in due course. Nonparties may be bound by an injunction if they have actual knowledge of the injunction and are legally identified with the parties or are acting in concert with them. United States v. McAndrew, 480 F.Supp. 1189, 1194 (E.D.Va. 1979). The court order applicable to the Debtor is in the nature of an injunction. Because Walde was not party to that action and the Debtor offered no evidence that Walde had knowledge of such order, Walde should not be affected by such order. Turning now to the proofs of claims filed by the Culbertsons and Swarek, the Debtor contends that on November 10, 1988, when he closed the transactions contemplated by the Purchase Agreement, he was so incapacitated due to intoxication and manic depression as to not possess sufficient mental capacity to understand the nature and consequences of his acts. The Culbertsons and Swarek contend that, after presenting all of his evidence, the Debtor has failed to prove by clear and convincing evidence that he was legally incompetent, and that his objections should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, made applicable to this proceeding by Bankruptcy Rule 7041(b). Under Rule 41(b), this Court may dismiss the Debtor's case if, after weighing the evidence and resolving issues of fact and credibility, it determines that the Debtor has failed to carry the requisite burden of proof. Taylor v. Combustion Engineering, Inc., 782 F.2d 525, 527 (5th Cir.1986). The Court must weigh the evidence and resolve issues of fact and credibility that are in dispute, as well as consider evidence that arises as a result of direct and cross-examination. Lyncott Corp. v. Chemical Waste Management, Inc., 690 F.Supp. 1409, 1415 (E.D.Pa.1988). Furthermore, the Court is not required to examine the Debtor's testimony in the light most favorable to the Debtor, but rather to give the Debtor's testimony such weight as the court believes it is worth in light of the credibility of the witnesses. Henry v. Moore-McCormack Lines, Inc., 134 F.Supp. 71, 72 (S.D.N.Y.1955). The primary question presented here is whether the Debtor proved by clear and convincing evidence that on November 10, 1988, he was so incapacitated due to intoxication and manic depression as not to possess sufficient mental capacity to understand the nature and consequences of his acts. In Virginia, the law presumes that every adult who executes a contract is mentally competent to enter into such contract. Chesapeake & Ohio Ry. Co. v. Mosby, 93 Va. 93, 94, 24 S.E. 916, 916 (1896). A party may refute this presumption by clear and convincing evidence that such party was incapable of understanding the nature and consequences of his acts, or more exactly, whether such party's mental powers have become so far affected as to make him incapable of understanding the character of the transaction in question. Lohman v. Sherwood, 181 Va. 594, 607, 26 S.E.2d 74, 79-80 (1943). It is not necessary that the party have the ability to make a reasoned judgment concerning the agreement. Drewry v. Drewry, 8 Va.App. 460, 467, 383 S.E.2d 12, 15 (1989). It is critical that, at the time of execution of the instrument, a party have sufficient mental capacity 498 to understand the nature of the transaction and assent to its provisions. Id. at 468, 383 S.E.2d at 15. Although the party's capacity before or after the execution of the agreement is relevant in determining competency, the dispositive factor is the party's mental capacity to understand the nature of the agreement and the consequences of such party's act at the time the agreement is executed. Price's Ex'r v. Barham, 147 Va. 478, 481, 137 S.E. 511, 512 (1927). "[A] person may have great weakness of mind yet may possess sufficient mental capacity to understand the nature of the transaction and to assent to the provisions of the challenged instrument." Brown v. Resort Devs., 238 Va. 527, 531, 385 S.E.2d 575, 578 (1989). On October 17 and 18, the Debtor presented evidence in support of his affirmative defense of incapacity to contract. The Debtor's evidence included testimony by his son, John, that on November 10, John saw his father in the middle of the day intoxicated and asleep in front of the fireplace; that his father drank alcohol until about 5 p.m.; that it was apparently difficult for his father to put his pants on; that John helped his father climb some stairs; that John walked his father out to his father's car where his father tried to get in but couldn't because John had taken his keys; that John left his father next to his car; and that John was not present at the time his father executed the closing documents. Other evidence that was introduced by the Debtor included testimony of Doyle Culbertson that Doyle and the Swareks arrived at the Debtor's residence about 5:30 p.m. on November 10; that they observed the Debtor sign the closing documents that evening; and that at that time the Debtor appeared to be neither intoxicated nor acting irrationally. The Debtor attempted to introduce the deposition of Dr. Moscarillo, the Debtor's psychiatrist. The deposition, if admitted[8], would have established that Dr. Moscarillo, commencing in 1970, treated the Debtor for a psychotic illness and continued to treat him sporadically during the 1970s and 1980s; that in 1988, Dr. Moscarillo saw the Debtor four times, April 28, August 26, August 31 and September 7, more than two months prior to the November 10, 1988 closing; that Dr. Moscarillo diagnosed the Debtor as suffering from a manic depressive illness; and that a person suffering from such an ailment can be logical and clear at times. Neither the Debtor's son, John, nor Dr. Moscarillo was present at the November 10 closing. Although their testimony is certainly relevant to the issue of the Debtor's capacity, this Court does not give their testimony as much weight as the testimony of Doyle Culbertson and Swarek who testified that when they observed the Debtor sign the closing documents on the evening of November 10, 1988, the Debtor was neither intoxicated nor acting irrationally. We find Culbertson's and Swarek's testimony to be both credible and persuasive. In addition, it is the law in Virginia that the testimony of witnesses who are present when an instrument is executed is entitled to greater weight than the testimony of those witnesses not present. See Brown, 238 Va. at 529, 385 S.E.2d at 576 (1989). Based on all of the evidence presented by the Debtor, we find that he has not demonstrated by clear and convincing evidence 499 that he was incapable of understanding the nature and consequences of his acts. The Debtor further contends that court orders issued on August 26, 1988, and on November 10, 1988, by the Arlington County Circuit Court in connection with divorce proceedings between the Debtor and his wife, allow the Debtor to rescind the sale of the properties to the Debtor. As previously observed, nonparties may be bound if they have actual knowledge of the injunction and are legally identified with the parties or are acting in concert with them. United States v. McAndrew, 480 F.Supp. 1189, 1194 (E.D.Va.1979). Doyle Culbertson testified that on November 9, 1988, John Wills, the Debtor's son, mentioned the existence of court orders but did not give any details, despite Culbertson's request for specific information. John Wills' testimony did not contradict Culbertson's recollection. The Debtor offered no evidence that the Culbertsons and Swarek had knowledge of the court orders or acted in concert with the Debtor or his wife. Therefore, this Court finds that they had insufficient knowledge as to affect their rights. For the foregoing reasons, we grant Walde summary judgment and grant the Culbertsons and Swarek their motion to dismiss. An appropriate order will be entered. NOTES [1] In accordance with the Virginia Code, we look not only to decisions of Virginia courts dealing with holder in due course issues but also to decisions from other jurisdictions to assist this Court in its analysis. See Virginia Comment, Va.Code Ann. § 8.3-101 (1965) ("Decisions from other jurisdictions are persuasive authority in interpreting the statute."). [2] The text of Section 8.3-304(7) reads, in pertinent part, as follows: "In any event, to constitute notice of a claim or defense, the purchaser must have knowledge of the claim or defense or knowledge of such facts that his action in taking the instrument amounts to bad faith. . . ." Va. Code Ann. § 8.3-304(7) (1965). [3] Walde contends that this statement is hearsay in that the Debtor stated earlier in a deposition that he had no independent recollection of the period in question. Therefore, the Debtor's statement, according to Walde, could be based only on what the Debtor has been told by others who are not witnesses in this matter and should not be considered for purposes of summary judgment. Because the Debtor's statement constitutes mere speculation which cannot defeat a summary judgment motion, see Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-412 (4th Cir.1986) ("[Unsupported] speculation is not sufficient to defeat a summary judgment motion."), it is not necessary to determine whether, under Antonio v. Barnes, 464 F.2d 584, 585 (4th Cir. 1972), or Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), such affidavit was "made on personal knowledge" and sets forth "such facts as would be admissible in evidence" as required by Fed.R. Civ.P. 56(e). [4] Because none of these three affidavits was presented to this Court prior to the hearing on the motion for summary judgment, they will not be considered. However, even if they were filed in a timely manner, they could not defeat a summary judgment motion because they are speculative and conclusory. See Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-412 (4th Cir.1986) ("[Unsupported] speculation is not sufficient to defeat a summary judgment motion."). [5] Under the Virginia U.C.C., the filing of a public document does not constitute constructive notice to a person who would otherwise be a holder in due course. Va.Code Ann. § 8.3-304(5) (1965). [6] In 1988, at the request of the Debtor's wife who asserted that the Debtor was dissipating marital assets, the Arlington County Circuit Court appointed a conservator over the property, but not the person, of the Debtor. There was no finding by such court of legal incompetence on the part of the Debtor. [7] According to a recent decision of the New York Court of Appeals, "[The holder in due course doctrine] has as its objective encouraging and facilitating the ready transaction of negotiable instruments, central to our credit economy; people can rely on the fact that negotiable instruments in the hands of good faith purchasers will be paid according to their tenor and intent and not paid otherwise. Holder in due course status advances that objective by providing that persons in that category take free of virtually all claims and defenses." Hartford Accident, 74 N.Y.2d at 162-163, 544 N.Y.S.2d at 578, 542 N.E.2d at 1092 (citation omitted); see also Cohen v. Lincoln Savings Bank, 275 N.Y. 399, 412, 10 N.E.2d 457, 465 (1937). [8] At the close of the Debtor's case, this Court granted the Debtor's motion to admit Dr. Moscarillo's deposition, in lieu of his live testimony, because Moscarillo failed to appear to testify despite being subpoenaed. The Culbertsons and Swarek filed a motion to strike Dr. Moscarillo's deposition on the ground that Dr. Moscarillo was served by an attorney who was assisting the Debtor's counsel and that such service was in violation of Rule 45(c) of the Federal Rules of Civil Procedure (which provides that a subpoena may not be served by a party) and Local Bankruptcy Rule 110(c) (which provides that a subpoena may not be served by a party or a person otherwise interested in the proceeding). The Culbertsons and Swarek argued that the attorney who served the subpoena was an agent of the Debtor and was interested in the proceeding. The Culbertsons and Swarek also contended that the subpoena was defective on its face in that it required Dr. Moscarillo to appear at 9:30 a.m. on October 18 and that he was not served until 2:50 p.m. on October 18. This Court granted the motion to strike. See In re Evanishyn, 1 F.R.D. 202, 203 (S.D.N.Y.1939) (an attorney stands in the same relationship as a party for purposes of serving a subpoena).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601731/	228 P.3d 425 (2010) In The Matter of the PATERNITY OF Jessica J. JANZEN, an Adult DOB * / /1988, Appellee, v. Kenneth A. JANZEN, Appellant, and Diana Kay Williams, Defendant. No. 102,133. Court of Appeals of Kansas. April 15, 2010. 427 Daniel L. Baldwin, of Baldwin Law Office, of Marion, for appellant. Kristin Fisher Boyer, of Boyer Law Offices, of McPherson, for appellee. Before RULON, C.J., GREENE and HILL, JJ. HILL, J. In this appeal, we affirm the trial court's determination of paternity and child support award in this case of a recently emancipated young woman seeking judicial determination of her parentage. Because the Kansas Parentage Act allows a child to bring an action to determine a father-child relationship, despite any agreement to the contrary between the presumed father and the child's mother, we hold the parents' divorce decree did not bar this action. Also, considering the genetic testing results and the lack of any evidence indicating paternity in another man, we affirm the trial court's finding of paternity. Finally, since no provision for child support was made in the parents' divorce case and the Parentage Act authorizes retroactive awards for child support, we uphold the district court's child support award. The parties do not dispute the facts. A few days after her 18th birthday, Jessica J. Janzen filed a petition in the Marion County District Court alleging Kenneth A. Janzen was her father. Using the Kansas Parentage Act, Jessica sought judicial determination of her parentage and a court order for support and reimbursement of expenses. Kenneth Janzen denied he was Jessica's father and, in turn, sought damages from her mother, Diana Kay Williams, for misrepresenting that he was Jessica's father. Jessica Janzen was born on October 20, 1988. Her mother is Diana Kay Williams (f/k/a Hamburger). When Jessica was born, Diana and Kenneth were married and Kenneth was listed as Jessica's father on her birth certificate. Then, in 1989, Kenneth and Diana divorced. They made a separation agreement which recited that Kenneth was not Jessica's father. We note in passing that both parents were represented by counsel and no guardian ad litem represented Jessica in the divorce. Ultimately, the district court approved their agreement and granted a divorce. (We also note that for some reason unknown to us, the parties have failed to include the divorce decree or separation agreement in the record on appeal. We presume the district court had access to these documents since the court quoted from them in its memorandum opinion.) After Jessica's Parentage Act case commenced, the district court ordered genetic testing. The results of the testing indicated a 99.99% probability that Kenneth was Jessica J. Janzen's father. After hearing that, the court found Kenneth was Jessica's father. The court also decided that Kenneth had a duty to support her for the period beginning when he separated from her mother in January 1989 until the time Jessica graduated from high school in June 2007. The district court decided to award Ms. Janzen $62,920 for support based on a calculation of $286 per month for each month during the entire period. On appeal, neither party challenges the amount of support awarded nor how it was computed. Therefore, questions arising from the award are not before us. In his appeal, Kenneth Janzen makes two arguments. In his view, the finding of the district court in his divorce case that he was not Jessica's father rebutted the statutory presumption of paternity found in the Kansas Parentage Act, K.S.A. 38-1114. Also, he contends the finding in the divorce case that he was not Jessica's father was, in actuality, a support order finding that he owed no support to Jessica. This means, in his view, the court in the Parentage Act case was powerless to modify a prior support order after it has come due. This is a case arising from the Kansas Parentage Act, not a divorce case. The Kansas Parentage Act is found at K.S.A. 38-1110 et seq. Pertinent to this case is K.S.A. 38-1115, a law that gives general 428 guidance about who may bring an action under the act: "(a) A child or any person on behalf of such a child, may bring an action: `(1) At any time to determine the existence of a father and child relationship presumed under K.S.A. 38-1114 and amendments thereto.... . . . . "(d) Any agreement between an alleged or presumed father and the mother or child does not bar an action under this section." Since Jessica was born while her parents were married, a statutory presumption found at K.S.A. 38-1114 comes into play. That law establishes the presumption of paternity and describes how it is to be applied and how it may be rebutted: "(a) A man is presumed to be the father of a child if: `(1) The man and the child's mother are, or have been, married to each other and the child is born during the marriage.... "(b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence. "(c) If two or more presumptions under this section arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control." We find no evidence in the record that rebuts the presumption that Kenneth Janzen is the father of Jessica Janzen. Basically, Kenneth Janzen waved his divorce decree before the district court in the paternity action contending it rebutted the statutory paternity presumption repeated above. Apparently, he contends that there must have been clear and convincing evidence before the court in 1989 when his divorce was granted and therefore the court in 2008, when the paternity action was tried, must consider the same evidence as clear and convincing in this case. We find this argument unpersuasive for two reasons. First, in the divorce case, mother and father apparently stipulated that Kenneth was not Jessica's father based on their stipulation agreement. Second, if any evidence was presented in the paternity action, it is not in the record. Without such a record, Kenneth Janzen's claim of error fails. See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008). Going further, we are not persuaded that the divorce decree rebuts the paternity presumption under K.S.A. 38-1114(b). While it is a court decree, it does not establish paternity in another man as it is set out in the statute. K.S.A. 38-1114(b). We must conclude the trial court properly ignored the 1989 divorce decree when deciding paternity here. The divorce decree was not an original support order. Kenneth Janzen argues the 1989 divorce decree finding he was not Jessica's father was, in reality, an original support order. Therefore, under the general rule, any subsequent support orders cannot modify amounts past due under the original order. We have no quarrel with Kenneth Janzen's contention that past due support amounts in divorce cases cannot be retroactively modified. See In re Marriage of Bunting, 259 Kan. 404, 410, 912 P.2d 165 (1996). Where the court commented that K.S.A. 60-1610(a)(1) permitting child support modifications retroactive only to a month after the motion to modify was filed "codifies a longstanding common-law rule." 259 Kan. at 410, 912 P.2d 165. Unfortunately, we cannot read the divorce decree in question because it was not included in the record on appeal. The appellant has the burden to designate a record sufficient to establish the claimed error and Kenneth Janzen has failed in this regard. The district court in its memorandum opinion did quote from the decree but made no mention of support. Why would it? We assume the 429 decree was silent about support and therefore could not be considered an original support order. It seems clear that the divorce decree merely put Jessica in a position equivalent to one born out of wedlock. But we must now state the obvious. This is not a divorce case. It is a paternity action governed by the Parentage Act. Jessica can maintain this action despite the divorce decree and separation agreement. In the case In re Marriage of Ross, 13 Kan.App.2d 402, 772 P.2d 278 (1989), aff'd in part and rev'd in part on other grounds, 245 Kan. 591, 783 P.2d 331 (1989), this court held an action to determine paternity brought by a guardian ad litem for a child in a divorce case could continue since the child was not a party to the divorce and was not given a full and fair opportunity to litigate the issue of paternity. 13 Kan.App.2d at 408, 772 P.2d 278. The Supreme Court reversed another part of the Ross decision but specifically affirmed this holding. 245 Kan. at 592, 783 P.2d 331. Obviously, Jessica was not a party to her parents' divorce so res judicata does not bar her from bringing this action. But more importantly the Parentage Act itself says she is not constrained by the agreement of her mother and father. See K.S.A. 38-1115(d). Retroactive support orders are permissible in this context. Because this is an action under the Kansas Parentage Act, the cases dealing with support orders and their modification in divorce cases are irrelevant. The most notable difference between divorce support orders and support orders in Parentage Act cases is that the Parentage Act permits retroactive awards of support that are prohibited in divorce cases. K.S.A. 38-1121 provides: "(e) In entering an original order for support of a child under this section, the court may award an additional judgment to reimburse the expenses of support and education of the child from the date of birth to the date the order is entered. If the determination of paternity is based upon a presumption arising under K.S.A. 38-1114 and amendments thereto, the court shall award an additional judgment to reimburse all or part of the expenses of support and education of the child from at least the date the presumption first arose to the date the order is entered, except that no additional judgment need be awarded for amounts accrued under a previous order for the child's support." Such retroactive awards have been upheld. See Skillett v. Sierra, 30 Kan.App.2d 1041, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002) and In re Parentage of Shade, 34 Kan.App.2d 895, 903, 126 P.3d 445, rev. denied 281 Kan. 1378 (2006). Finally, because we have ruled the divorce decree was not an original support order, the holding cited by Kenneth Janzen in Harder v. Towns, 1 Kan.App.2d 667, 573 P.2d 625 (1977), rev. denied 225 Kan. 844 (1978), is inapplicable here. In Harder, a panel of this court ruled an attempt by the SRS to recover support from a parent where a court had approved an agreement that the father need not pay support was an impermissible collateral attack on a judgment. 1 Kan.App.2d at 670, 573 P.2d 625. In this case, Jessica Janzen is not arguing an order is invalid, she is, instead, bringing an independent action permitted by law. In conclusion, we hold that the trial court properly determined Kenneth Janzen was the father of Jessica Janzen. We also affirm the court's award of support. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1329510/	102 Ga. App. 518 (1960) 116 S.E.2d 885 ROBERTS v. KING et al. ROBERTS v. KING et al. 38374, 38375. Court of Appeals of Georgia. Decided September 19, 1960. Rehearing Denied October 5, 1960. 520 Greene, Neely, Buckley & DeRieux, Burt DeRieux, John D. Jones, John L. Jernigan, Sanders McD. Marshall, for plaintiffs in error. Sam F. Lowe, Jr., Clarence Vaughn, Jr., Smith, Field, Doremus & Ringel, W. D. Ballard, King, Ballard & King, contra. FELTON, Chief Judge. 1. The plaintiffs in these cases contend that the evidence did not demand a verdict for the defendants for the reason that the contributory negligence of the deceased son in participating in the race is not a bar to their recovery because the drivers of the racing automobiles were guilty of wilful and wanton misconduct, and for the reason that the deceased did not assume the risks of an "all-out" race because he thought that the race would be only a "drag" race. It is true that in certain types of cases the contributory negligence of a person, injury to whom forms the basis of the right of action, is not a bar to an action for wilful and wanton misconduct. Central R. & Bkg. Co. v. Denson, 84 Ga. 774 (11 S.E. 1039); Young v. South Georgia Ry. Co., 34 Ga. App. 537 (130 S.E. 542); Fairburn & Atlanta Ry. Co. v. Latham, 26 Ga. App. 698 (1) (107 S.E. 88). These cases are distinguishable from the instant case in that in them there was no conscious choice of the injured parties to assume the risk of wanton misconduct which the injured party knew was contemplated by the party inflicting the injury. Where one assumes the risk of wilful and wanton misconduct and is injured or killed thereby a cause of action for such injury or death is barred. Code § 105-1803. The true defense in these cases is the doctrine of assumption of the risks. This doctrine has sometimes been mistakenly referred to as contributory negligence. In the cases in which this has been done the term contributory negligence truly means assumption of risk or consent to the injury for the reason that in such cases the so-called contributory negligence would not necessarily have barred the action where wilful and wanton misconduct was involved, 521 whereas the assumption of risk doctrine would have. Georgia R. & Bkg. Co. v. Greer, 7 Ga. App. 292, 298 (66 S.E. 961). In that case the court stated: "Even where the defendant's act is such, by reason of its wantonness or otherwise, as to cut off the defense of contributory negligence, the plaintiff can not recover, if it appears that he consented to the injury." Insofar as cases like the instant case are concerned we can see no difference between the consent principle and the principle of assumption of risk. The doctrine of assumption of risk in general is of recent development, but has been applied to Georgia under the consent doctrine but almost always in the name of contributory negligence. Williams v. Owens, 85 Ga. App. 549 (69 S.E.2d 787). Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. "The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with the knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded for tacitly or impliedly agreeing to take his own chances." Prosser, Law of Torts, (2d ed.) p. 303, "Assumption of Risk." § 55. "In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care." Id. § 55, p. 305. The necessary elements of assumption of risk by the guest have been clearly defined as follows: first, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have a knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest 522 to proceed in the face of danger. Knipfer v. Shaw, 210 Wis. 617 (246 N.W. 328, 247 N.W. 320); 15 A.L.R. 2d 1180, "Assumption of Risk," § 9. Thus, it will be seen that the basis of the doctrine of assumption of risk is that a party assumes the risk of danger which he knows and appreciates or that the law will hold that he does know and appreciate. The evidence in this case shows that a drag race is one for a limited distance of approximately a quarter of a mile on a straight road and that entering into a drag race or being in an automobile involved in one is a dangerous undertaking. The evidence also shows that an "all-out" race is a race for a long duration, over a long distance, including curves, hills, bridges, etc., and an inference is authorized that under certain circumstances an "all-out" race is exceedingly more hazardous than a drag race. However, in certain circumstances a drag race could be more dangerous than an "all-out" race. The evidence shows that the minor son of the plaintiffs was killed on a curve in an all-out race knowingly entered into by the drivers of the respective cars when the cars so engaged were being operated over 100 miles per hour. The evidence is conflicting on the question of whether the plaintiff's son realized that the automobile in which he rode was to be engaged in a drag race or in an all-out race, giving the plaintiffs the benefit of all serious doubts on the subject. Under the fundamental definition of the assumption of risk doctrine we think that even if the jury had found from the evidence that the plaintiffs' minor son did not know that he was participating in an "all-out" race and that he had no reason to suspect that he would be engaged in an "all-out" race the plaintiffs in these cases would be barred from recovery. The law cannot condone any kind of illegal racing on the public highways of the State and we hold all persons strictly responsible for their participation in drag racing, whether knowing the consequences attendant thereon or not, and we hold that under the doctrine of assumption of risk one would assume the risk involved in an all-out race when he only intended to participate in a drag race, especially in the absence of evidence that he sought assurance that the race would only be a drag race or that he made any effort to cause the driver to desist or permit him to get out of the automobile. 523 Under the evidence in this case the drivers of the automobiles were guilty of wilful and wanton misconduct in racing on a public highway contrary to the laws of the State. This would have been true if the race had been a drag race. When one assumes the risk of the wilful and wanton misconduct of another a recovery on the basis of such misconduct is precluded and the law will not undertake to divide the wantonness into degrees or fractions of degrees to ascertain whether the death or injury resulting was fully realized and appreciated by the one so assuming the risks. The law will hold such a one to have assumed whatever risks develop in the process of the activity engaged in. In Landers v. French's Ice Cream Co., 98 Ga. App. 317 (106 S.E.2d 325), the passenger did not enter the automobile with the knowledge of an intended race. These conclusions render a decision on the family-purpose question unecessary. The court did not err in directing a verdict for the defendants nor in overruling the plaintiffs' motions for judgment n.o.v. and their motions for new trial. Judgments affirmed. Nichols and Bell, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1874772/	288 Wis. 2d 459 (2005) 706 N.W.2d 702 2005 WI App 254 STATE v. BELL. No. 2004AP001458. Court of Appeals of Wisconsin. October 26, 2005. Unpublished Opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3347122/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION Paintiffs, Caroline Gordon and Lonzia Gordon, bring this complaint, as amended, in four counts alleging damages resulting from the sale of an automobile by the defendant to the plaintiffs. The defendant, Christopher Pio, denies the material allegations of the complaint, as amended. Both parties agree that the defendant and the plaintiff, Caroline Gordon, participated in the sale/purchase of an automobile, and that the defendant provided a thirty (30) day and/or a 1,500 mile warranty as set out in defendant's Exhibit F. Nor, that subsequently the defendant repossessed the automobile. What is at issue is the defendant's right to the repossession of the automobile and whether the defendant failed to honor the terms of the warranty. The material facts herein involved are: The plaintiff, Caroline, went CT Page 15727 to defendant's place of business and after dealing with a salesman, Brian, agreed to buy a used 1987 Toyota. She made a down payment and was to pay the balance in monthly installments. The title to the car was placed in Caroline's husband's name, Lonzia Gordon, at Caroline's request. The necessary sales documents and motor vehicle department papers were executed by Lonzia Gordon at the time of the sale. The plaintiff, Caroline, drove off with the car. Subsequently, the defendant repossessed the Toyota for failure to receive the monthly payments set out in the installment sales contract, Exhibit F. At the trial on the complaint, the title holder to the Toyota automobile, Lonzia Gordon, was not present. Caroline testified that he was in a hospital in Boston, although no attempt was made to have the trial postponed to permit him to appear; nor, was any medical evidence presented to support her testimony that Lonzia was in fact hospitalized and unable to be present. On the contrary, Caroline testified that she was the real party in interest and actual owner of the car; that she had paid the initial payment and made the installment payments; that, the title was in Lonzia's name because he had automobile insurance. She also testified that she signed Lonzia's name to the various title documents at the time of the purchase of the Toyota. The defendant testified that the documentation was prepared by his salesman, Brian, that he, the defendant, was called to examine and approve the sales papers when they were completed. He noted that Caroline's name was not on the documents and was told that Lonzia was named the title holder. Since there was a male accompanying Caroline, he assumed that the male was Caroline's husband, Lonzia, and was the person who signed the documents. At the trial, Caroline testified that at the time of the purchase of the Toyota she was accompanied by a male friend and not her husband. She did not identify him in more detail. Thus, a threshold question raised was the absence of Lonzia, the title holder to the automobile, and a named plaintiff who was subject to being defaulted for failure to appear for trial. Further, was the plaintiff, Caroline, as the remaining plaintiff, qualified to press for either or both plaintiffs a damages claim relating to the automobile? The court finds that the plaintiff, Lonzia, is a plaintiff in this action; that he failed to appear for the scheduled trial; that he made no attempt to have the trial continued so that he could appear; nor did he provide to the court any reason for not appearing. The co-plaintiff and wife of Lonzia reported him to be in a hospital in Boston, but provided CT Page 15728 no substantiated medical basis for his failure to appear. On the contrary she testified that he was not a real party in interest since she negotiated the purchase of the automobile and made all payments toward the purchase price; and, even signed his name to the documents so that there would be insurance coverage on the automobile. The court thus determines that the plaintiff, Lonzia Gordon, did not appear for the herein scheduled trial and did not provide a valid basis for not appearing. Therefore, the court defaults him for failure to appear for trial. As to the plaintiff, Caroline Gordon's claim to be the real party in interest and the person who purchased the automobile and made the payments on it, the court finds insufficient evidence presented to support her allegations. It is true that she negotiated the purchase; however, a man accompanied her at these negotiations and during the execution of the various documents for the sale, financing and registration of the automobile. The defendant testified that he understood that this man was the husband of Catherine, and the fact that the automobile was registered in his name alone was nothing out of the ordinary, especially since he was to provide the insurance coverage. Further, if, as Catherine claims, that it is she and not her husband that is the real party in interest herein, then documentation to that effect could have been provided to the court. In addition, to support her position that she signed her husband's name to the documents and that he was not present at the execution of those documents, evidence to that effect could have been provided by the man who did accompany her at that time or at least a reasonable explanation why he was not available to testify. Thus, the court finds that the plaintiff, Catherine Gordon, is not the owner of the Toyota automobile legally or in fact; that, she has no claim resulting from ownership of that automobile herein at issue as against the defendant, Christopher Pio, d.b.a. Therefore, Judgment may enter on the plaintiffs' complaint for the defendant and against the plaintiffs, together with court costs. Kremski, J.T.R.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1221940/	161 Ga. App. 120 (1982) 289 S.E.2d 277 BRAWNER v. THE STATE. 63146. Court of Appeals of Georgia. Decided January 15, 1982. Rehearing Denied January 29, 1982. Ben Lancaster, for appellant. Darrell E. Wilson, District Attorney, for appellee. DEEN, Presiding Judge. Following the denial of his motion for a new trial, Sam D. Brawner brings this appeal from his conviction of armed robbery. 1. Enumerations one through six contend that the trial court erred in its charge on presumption of innocence, reasonable doubt, that the jury is the judge of the law and the facts in a criminal case, that the jury's duty is to reconcile the conflicts in the evidence, and on the sufficiency of evidence needed to convict. These charges are essentially the same as those set forth in the Judicial Council's Pattern Jury Instructions in Criminal Cases and we find that when the charge is considered as a whole it was not burden shifting as contended by the defendant as the state carried the burden of proving his guilt beyond a reasonable doubt and that these charges were a correct statement of the legal principles charged. 2. As the seventh enumeration was not supported by argument or citation to authority, it is deemed to be abandoned. Court of Appeals Rule 15 (c) (2). 3. Enumerations eight through fourteen assert the general grounds and are without merit. The victim testified that she was working as a desk clerk at the Crown Inn on the evening of the robbery when the defendant entered carrying a gun and a paper sack and instructed her to fill the bag with her money, her watch and her rings. When he was later arrested, the defendant was found with the victim's rings on his person and one of the men at the arrest scene gave the officers a gun which he claimed belonged to the defendant. The defendant denied taking part in the robbery, claimed that he had purchased the rings from a third party named "Gary" who did not appear at trial, and that the gun belonged to his friend Brian who also did not testify. The credibility of the witnesses is solely a question for the jury. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980). From the evidence presented at trial a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Driggers v. State, 244 Ga. 160 (259 SE2d 133) (1979). 4. The defendant's next two enumerations of error contending the trial court erred in allowing the state to reopen its case and allowing the gun into evidence are without merit. The trial judge has the discretion to permit either party to reopen the case after the *121 evidence is closed. Leach v. State, 143 Ga. App. 598 (239 SE2d 177) (1977). The gun was identified by the victim as similar to the one used in the robbery and was also identified as being in possession of the defendant subsequent to the robbery. Thus, there was relevant evidence that the pistol was possibly the weapon used in the crime and it was for the jury to determine the weight and effect to be given this evidence. Washington v. State, 243 Ga. 329 (253 SE2d 719) (1979); West v. State, 232 Ga. 861 (209 SE2d 195) (1975). 5. In his final (seventeenth) enumeration of error, the defendant complains of the trial court's charge as to identification testimony. We have examined the charge and find that it was a complete and thorough charge of the law on this issue. The trial court instructed the jury that the state carries the burden of proving identity beyond a reasonable doubt and that factors such as the possibility of human error or mistake and the opportunity that the witness had to observe the accused were factors to be considered in determining whether the defendant was the perpetrator of the crime for which he is charged. This enumeration is without merit. Judgment affirmed. Banke and Carley, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1715644/	303 So. 2d 598 (1974) Walter P. WHITE, Plaintiff-Appellant, v. LAMAR REALTY, INC., et al., Defendants-Appellees. No. 12423. Court of Appeal of Louisiana, Second Circuit. November 7, 1974. Rehearing Denied December 10, 1974. 599 Brown & Wicker, by Robert A. Lee, Monroe, for plaintiff-appellant. Parkerson & Guerriero, by Joe D. Guerriero, Monroe, for Lamar Realty, Inc., defendant-appellee. Theus, Grisham, Davis & Leigh, by Charles H. Heck, Monroe for John B. Salley, Jr., d.b.a. John Salley Realty, defendant-appellee. Snellings, Breard, Sartor, Shafto & Inabnett, by W. S. Shafto, Jr., Monroe, for Monroe-West Monroe Bd. of Realtors, Inc., defendant-appellee. Before AYRES, PRICE and HALL, JJ. En Banc. Rehearing Denied December 10, 1974. AYRES, Judge. This cause arose out of a purchase of a residence by plaintiff from Michael R. Marrs. Plaintiff, Walter P. White, prays that the sale be rescinded and that he have judgment for the purchase price paid of $35,000 against the vendor and Lamar Realty, Inc., John Salley Realty, and the Monroe-West Monroe Board of Realtors, Inc., who, as agents of the vendor, sold him the property, all of whom entered pleas of no cause of action which were sustained by the trial judge dismissing plaintiff's suit. By a subsequently filed amended petition plaintiff prayed, in the alternative, for damages in the sum of $15,000. A brief statement of the alleged facts appears appropriate at this point. Plaintiff purchased a residence situated at 49 Jana Drive, Monroe, Louisiana, from Michael R. Marrs for $35,000 cash in hand paid through realtors Lamar Realty, Inc., and John Salley Realty, who are members of the Monroe-West Monroe Board of Realtors, Inc. This residence was listed with the multi-list operated by the Board of Realtors who prepared a standard-form specification sheet reflecting dimensions and other physical characteristics of the house and property. Plaintiff contends that he relied on certain statements of the realtors and representations on the specification sheet as to 600 the dimensions of several rooms, the capacity of the air-conditioning unit and the amount of closet space, which proved inaccurate and erroneous, the result being, so he alleged, that the house purchased is so inconvenient as to be unfit for his intended use and enjoyment. Marrs and defendant Lamar Realty filed exceptions of vagueness for the failure of plaintiff to sufficiently allege the damages he sustained, the "statements" and "representations" of defendants which induced him to purchase the residence, the contemplated purpose for which he bought the property, and particularly in what manner the property is unfit for such purpose. The learned judge of the lower court sustained these exceptions. All defendants filed exceptions of no cause of action. Marrs urged that no wrongful conduct on his part had been alleged to support a cause of action against him. Lamar Realty, John Salley Realty and the Monroe-West Monroe Board of Realtors contend no cause of action was stated in the petition against them for redhibition or nullification of the contract because they were not parties to the contract; nor is there a cause of action stated in the alternative demand for damages because the petition does not disclose that plaintiff suffered any damages. Plaintiff was allowed 15 days by the lower court to amend his peition in light of its vagueness or to have his action dismissed. Plaintiff failed to timely amend his petition and, on motion of Michael R. Marrs, the lower court rendered judgment dismissing the suit as against him. A supplemental and amending petition was filed by plaintiff in which he alleged he was misled by the misrepresentations of the remaining defendants who again urged their exceptions of no cause of action stating that the supplemental petition had not satisfied their objections. The trial judge sustained these peremptory exceptions in a judgment of April 23, 1974. It is from this judgment that plaintiff appealed. The exception of no cause of action as to plaintiff's suit in redhibition or to rescind the sale was sustained for failure of plaintiff to allege that a contract of sale existed between him and any of the defendants remaining in the action. This part of the judgment is apparently not now in dispute. The issue before this court is, therefore, whether plaintiff has stated in his petition a cause of action for damages against any of the defendants on other grounds. Plaintiff contends that he has stated a cause of action against the defendants for fraudulently inducing him to enter a purchase contract with a third person. This element of the case was, in our opinion, properly disposed of by the learned judge of the trial court in a written opinion wherein he stated: "With regard to plaintiff's action for damages, defendants have, in written and oral argument, urged that plaintiff cannot recover in damages because he has alleged that he `was afforded an opportunity to walk through the dwelling and inspect its condition' prior to making the purchase. Defendants have cited decisions in which plaintiffs have been defeated in attempts to rescind sales because the defects complained of were apparent and discoverable by a buyer who had inspected the property before the sale. Pursell v. Kelly, La.App., 139 So. 2d 12 (4th Cir. 1962); La Croix v. Recknagel, 230 La. 842, 89 So. 2d 363 (1956). Although the plaintiff has cited no cases involving actions for damages based upon the alleged fraud of a person not a party to the contract, we have concluded that such a cause of action has been established by the same civil code article providing for the nullity of contracts resulting from fraud. "La. Civil Code Art. 1847: "`Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain 601 some unjust advantages to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules: * * * * * "`9. If the artifice be practiced by a party to the contract, or by another with his knowledge or by his procurement, it vitiates the contract; but if the artifice be practiced by a third person, without the knowledge of the party who benefits by it, the contract is not vitiated by the fraud, although it may be void on account of error, if that error be of such a nature as to invalidate it; in this case the party injured may recover his damages against the person practicing the fraud.' (Emphasis added.) * * * * * * "Therefore, since plaintiff's cause of action against the defendants for fraudulently inducing him to enter a sale with a third person appears to be based upon Article 1847 of the Code, logic and the language of that article indicate that such an action for damages would be subject to the same defenses as an action to rescind a contract brought under the same article. Accordingly, we conclude that plaintiff could not recover damages due to defendants' alleged fraudulent practices because the defects he has alleged would have been discoverable upon an inspection of the property which was afforded him before the sale. "However, during oral argument, plaintiff contended that his case was based upon Article 2315 of the Civil Code. By this we take it that plaintiff intended to assert, in lieu of or in addition to a cause in fraud, a claim based upon negligent misrepresentations by the defendants. We have not been cited and have been unable to discover any cases in which a Louisiana court has recognized such an action under the article. Nevertheless, we recognize that Articles 2315 and 2316 afford a broad ambit of protection for persons damaged by intentional and negligent acts of others and would not, because of mere lack of jurisprudence on the subject, dismiss plaintiff's case. But we think that justice demands, and that the redactors of the Code probably intended, that persons guilty of negligence under Article 2315 or Article 2316 should be entitled to the same defense based upon the apparent nature of defects as persons guilty of fraudulent practices under Article 1847. "Thus, we reason that the decisions relied upon by defendants, although rendered in cases concerned with rescission of contract, are equally applicable here. `When the person to whom the alleged false representation is made does not rely on the representations but conducts his own investigation, he will not be heard to complain of fraud.' La Croix v. Recknagel, supra. We think this holds true where he complains of negligent misrepresentations as well as fraud, and we are supported in this conclusion by the similar results reached in other jurisdictions dealing with the common law cause of action of deceit. See Prosser on Torts, Chapter 18, Misrepresentation (4th Ed. 1971). Therefore, since plaintiff has alleged that he inspected the property before the sale and he has complained only of defects which should have been patent and discoverable upon a simple inspection, we find that he has failed to state a cause of action under which he could recover." We may, however, emphasize that the principle appears settled that where defects in an object purchased are apparent and discoverable on a simple inspection, and where a buyer inspects the property before the sale, he will not be heard to complain of fraud. La Croix v. Recknagel, supra. The court in La Croix v. Recknagel, supra, referred to an earlier case of Rocchi v. Schwabacher, 33 La.Ann. 1364, 1368 (1881), in which it was stated: "The rule which governs such a case is laid down in clear language by the Supreme Court of the United States, in *602 [Slaughter's Adm'r v. Gerson] 13 Wallace, 379 [20 L. Ed. 627], as follows: "`The misrepresentations which will vitiate the contract of sale, and prevent a court of equity from aiding its enforcement, must relate to a material matter, constituting an inducement to the contract, and respecting which the complaining party did not possess at hand the means of knowledge; and it must be a misrepresentation, upon which he relied, and by which he was actually misled to his injury. "`Where the means of knowledge are at hand, and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor's misrepresentations.'" (Emphasis supplied.) A recent case, Packwood v. Johnson, 264 So. 2d 663, 666 (La.App., 1st Cir., 1972), with a different factual situation nevertheless discussed the buyer's duty to inspect. The court held that the evidence was insufficient to establish fraud on the part of the seller of the business in his dealings with the plaintiff purchaser, who alleged that failure of the seller to disclose the existence of a workmen's compensation claim against the business amounted to fraud and created an error of fact which justified rescission of the purchase contract, where the record was replete with proof that the purchaser was afforded every reasonable opportunity to become informed about the claim but did not do so. Plaintiff urges in brief, however, that a cause of action for damages has been stated against defendants as brokers who by their misrepresentations have breached their fiduciary duty as established by Art. 3017 of the Louisiana Revised Civil Code. However, Art. 3018 specifies that: "Brokers are not responsible for events which arise in the affairs in which they are employed; they are only, as other agents, answerable for fraud or faults." (Emphasis supplied.) It has already been concluded that because of plaintiff's own allegation that he had inspected the premises, a cause of action for damages based on fraud cannot be sustained; nor, for the aforementioned reasons, can a cause of action be asserted based on the wrongful or negligent acts of defendants under Arts. 2315 and 2316 of the Louisiana Revised Civil Code. Accordingly, the judgment is affirmed at plaintiff-appellant's costs. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8326470/	Donovan, Elizabeth B., J. The plaintiffs, Steven P. Kenney and Ellen B. Kenney (Kenneys) brought three claims against GMAC Mortgage, LLC (GMAC): Count I - breach of implied contract; Count II - violation of G.L.c. 93A; and Count V - seeking injunctive relief. GMAC moves to dismiss the three claims pursuant to Mass.R.Civ.P. 12(b)(6). For the following reasons the motion is allowed. BACKGROUND The Kenneys allege that in August 2003 they refinanced their home in Wrentham, Massachusetts with GMAC. The 15-year mortgage loan was in the sum of $296,000.00. In October 2003 they opened a Home Equity Line of Credit with Citibank in the maximum amount of $80,000.00. In June 2007 Mr. Kenney suffered an injury which ended his career as a police officer. With limited financial resources, the Kenneys contacted GMAC in July 2009 to seek a loan modification under HAMP (Home Affordable Modification Program). GMAC was a servicer in the loan modification program for distressed homeowners. The Kenneys sent the documentation GMAC requested but it was lost, misplaced or not received. This happened a second time. After a third submission the Kenneys received a letter on May 11,2010 denying the loan modification under the “HAMP Program.” Mr. Kenney contacted GMAC by telephone and was told the family expenses were too high. Mr. Kenney can-celled a health insurance policy to save $500.00 per month and sent GMAC notice of the cancellation and savings. The Kenneys received a letter dated June 14, 2010 stating their application was being processed and they would receive a response within 20 business days. On June 30, 2010 GMAC proceeded with the foreclosure. The Kenneys received a letter dated July 2, 2010 denying their request for loan modification because the records indicate the foreclosure sale was held or will be held. The Kenneys sent a demand letter pursuant to G.L.c. 93A. DISCUSSION The Kenneys claim GMAC acted in bad faith in failing to process the loan modification in a timely manner, proceeding with the foreclosure before deciding whether to allow or deny the loan modification, and selling the house at a price which eliminated their equity in the house. In Carney v. Shawmut Bank, N.A., 72 Mass.App.Ct. 1117 (2008), the plaintiff claimed the bank did not negotiate in good faith. The Court held that the claim against Shawmut for failure to negotiate debt restructure or extensions of a note in good faith was properly dismissed because the documents were integrated. While Shawmut was free to negotiate with Carney, it was under no obligation to do so, and was equally free to exercise the rights which it had acquired under the loan agreements to foreclose. Here the claims are brought under HAMP which was created by Congress under the Emergency Economic Stabilization Act of 2008. It is governed by guidelines set forth by Fannie Mae and the United States Department of the Treasury. A bank may participate as a Servicer if it executes a Servicer Participation Agreement (Agreement). The parties to the Agreement are the Federal National Mortgage Association, a federally chartered corporation, as financial agent of the United States (“Fannie Mae”), and the Servicer. Federal law controls the interpretation of the Agreement because the United States is a party to the contract. The plaintiffs have failed to show where either the guidelines or the Agreement give a borrower a right to enforce the Servicer’s obligations under HAMP. Speleos v. BAC Home Loans Servicing, L.P., 2010 WL 5174510, 7 (D.Mass. 2010). After review of both the guidelines and the standard Agreement, the court cannot find any rights given to the borrower to pursue a claim against the Servicer for foreclosing on the plaintiffs’ property before the review of their eligibility is completed. At most their only remedy is a complaint to Fannie Mae that the Bank violated the guidelines. No contract can be implied as requested in Count I. The Kenneys argue G.L.c. 93A applies because the bank failed to process their loan modification application. Since neither the HAMP guidelines nor the Agreement give the borrowers any right to enforce the Servicer’s obligation they have no rights under State Consumer Protection Statute. State law does not apply. Thus Count II is dismissed. A party cannot seek by injunctive relief to enforce a right it does not have. 252ORDER For the foregoing reasons the motion to dismiss Counts I, II and V is allowed.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/2983530/	July 15, 2014 JUDGMENT The Fourteenth Court of Appeals RHONDA LOZANO, Appellant NO. 14-14-00364-CV V. PAMELA BROOKS, Appellee ________________________________ Today the Court heard its own motion to dismiss the appeal from the judgment signed by the court below on April 28, 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 appellant, Rhonda Lozano. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1874773/	889 So. 2d 622 (2004) Quintus Bernard CASEY v. STATE of Alabama. CR-01-2572. Court of Criminal Appeals of Alabama. April 30, 2004. *623 Gary Wilkinson, Florence, for appellant. William H. Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for appellee. On Remand from the Alabama Supreme Court BASCHAB, Judge. In accordance with the Alabama Supreme Court's opinion in Ex parte Casey, 889 So. 2d 615 (Ala.2004), we reverse the trial court's judgment and remand this case to the trial court for proceedings that are consistent with that opinion. REVERSED AND REMANDED. McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1875287/	288 Wis.2d 460 (2005) 706 N.W.2d 702 2005 WI App 254 GOETZKA v. CITY OF BLACK RIVER FALLS.[] No. 2004AP002917. Court of Appeals of Wisconsin. October 20, 2005. Unpublished Opinion. Affirmed. NOTES [] Petition to review filed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3346282/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The defendant, Eyelets for Industry, Inc. (Eyelets), moves to strike the seventh, eight and ninth counts of the complaint of the plaintiff, Rodney Michele, by motion dated April 21, 1999. The ground for Eyelets' motion is the plaintiff did not comply with the notice and certification requirements of the Family and Medical Leave Act (FMLA), as codified in 29 U.S.C. § 1161 et seq. Michele filed a six-count complaint against Eyelets on December 16, 1997 and an amended complaint on September 1, 1998. The amended complaint adds the seventh, eighth and ninth counts to the original complaint; all three of these counts are based on violations of the FMLA.1 CT Page 11836 Michele alleges that Eyelets employed him from September 15, 1993, to October 18, 1996, as a data processor. (Amended Complaint, Count One, ¶ 1.) He alleges that he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in April of 1996 and that he informed Eyelets of this diagnosis shortly thereafter. (Am. Compl., Count Seven, ¶ 4.) Michele had meetings in September, 1996, with Eyelets concerning Michele's request for workplace accommodations. (Am. Compl., Count Seven, ¶ 8-10). Eyelets denied most of Michele's requested accommodations. (Am. Compl., Count Seven,6¶ 9.) Beginning at some point after these meetings, Michele failed to report for work. Michele submitted a letter from a physician that "indicated that [Michele] was unable to work at this time" on September 27, 1998. (Am. Compl., Count Seven, ¶ 14.) On October 8, 1996, he "indicated to Eyelets' representative that the stressful environment [of the workplace] had exacerbated his ADHD symptoms." (Am. Compl., Count Seven, ¶¶ 4, 14.) On October 18, 1996, Eyelets stated to Michele "in absence of adequate medical certification, [Michele's] failure to report to work would be considered a voluntary termination." (Am. Compl., Count Seven, ¶ 613.) Michele alleges that "[Eyelets'] failure to notify [Michele] of his rights under the [FMLA] and defendants' failure to grant leave pursuant to that statute constituted a violation of the FMLA . . ." (Am. Compl., Count 7, ¶ 15.) "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaints to state a claim upon which relief can be granted." Peter-Michael, Inc. v. SeaShell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Id. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix MedicalSystems v. BOC Group. Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992) The FMLA provides employees with unpaid leave time for serious illness. See 29 U.S.C. § 2612 (a) (1998). In the event an employee seeks FMLA leave because of a serious illness, he/she must furnish notice of the illness to his/her employer. See 29 U.S.C. § 2612 (e) (1998). Additionally, "[a]n employer may require that a request for leave . . . be supported by a certification issued by the health care provider of eligible CT Page 11837 employee. . . ." 29 U.S.C. § 2613 (a) (1998). The FMLA provides in part that "certification provided under subsection (a) shall be sufficient if it states: (1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regarding the condition . . ." 29 U.S.C. § 2613 (b) (1998). Michele argues that the letter from his physician, which stated "[Michele] was unable to work in the stressful environment at this time," was the certification required by the FMLA. However, Michele alleges no facts to support his conclusion. There is no allegation that the certification is sufficient because it addresses, for example, the probable duration of Michele's condition, as required by 29 U.S.C. § 2613 (b). The facts alleged in the complaint, viewed in the light most favorable to Michele, do not support his allegation that he submitted a proper medical certification. Eyelets' motion to strike the seventh, eighth and ninth counts is granted on the ground that Michele did not plead facts sufficient to state a cause of action under the certification provision of the FMLA. So Ordered. THE COURT Walter M. Pickett, Jr., J.T.R.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3346283/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Date of Sentence May 23, 1995 Date Application Filed May 31, 1995 Date of Decision November 28, 1995 Application for review of sentence imposed by the Superior Court, Judicial District of New London. Docket No. CR21-59792; Carolyn O. Brotherton, Esq., Defense Counsel, for Petitioner. CT Page 14205 John Gravalec-Pannone, Esq., Assistant State's Attorney, for the State. Sentence Affirmed. BY THE DIVISION: The petitioner, who was 49 years of age at the time of sentencing, was convicted following a trial by jury of Sexual Assault, 1st degree, in violation of General Statutes § 53a-70 (a)(2) and Risk of Injury to a Minor, in violation of §53-21. On March 10, 1994 Norwich police received a criminal complaint from the Department of Children Families of a sexual assault by the petitioner on the 10 year old daughter of his fiance earlier that day in her bedroom. The child reported the rape to school personnel. The child was taken to a hospital and seminal fluid matching that of the petitioner was found in her underpants. The petitioner was sentenced to a term of 15 years, execution suspended after 10 years, with probation for 5 years on the Sexual Assault count, and to a concurrent term of 10 years on the Risk of Injury count, for a total effective sentence of 15 years, execution suspended after 10 years, with a 5 year term of probation. Defense counsel argues that the sentence was disproportionately severe because the Court appeared to have considered the child's claim that he had similarly assaulted her in the past. A fair reading of the transcript does not substantiate this claim. The sentencing court focused its comments on the seriousness of the crime, the long lasting effect it will have on the child, who was in foster care since reporting it. (The child's mother continued to reside with the offender until he was sentenced and CT Page 14206 took the position that her daughter lied about the charge.) The petitioner adamantly maintained his innocence thus was deemed to be unlikely to benefit from rehabilitative services available to sex offenders. The Division has reviewed this sentence in accordance with the provisions of Practice Book § 942, and has considered the positive aspects of the petitioner's background. This was a crime of great severity for which a sentence of 30 years could have been imposed. The child was forced to endure the stress of repeating her humiliating experience to a group of strangers. The petitioner is in denial and resistant to treatment. The victim's life has been turned around and the petitioner it seems, could pose a threat to new victims. This sentence was not disproportionate nor unreasonable. It is affirmed. Purtill, Klaczak and Norko, J.s, participated in this decision	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3346286/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This case comes before the court on the motion of Jean E. Clement to intervene as a party plaintiff in a complaint brought by Frank J. Giron, who alleges the existence of a class of individuals who have suffered losses as a result of violations of the federal Truth in Leasing Act, 15 U.S.C. § 1640 and the Connecticut Unfair Trade Practices Act ("CUTPA"). The defendants are Milford Gateway, Inc. ("Milford") American Honda Finance Corporation ("AHFC") and American Honda Motor Co., Inc. ("AHMC"). The proposed intervenor has not filed a proposed complaint but alleges in her motion to intervene that she "seeks to join in the CT Page 2325 claims made by Mr. Giron in Counts I, II, IV and V of the First Amended Complaint as to defendant American Honda Finance Corporation" and that she seeks to represent the alleged class of plaintiffs as to claims against American Honda Finance Corporation arising under the federal Consumer Leasing Act. The defendants, Milford Gateway, Inc. d/b/a Acura of Milford, American Honda Finance Corporation and American Honda Motor Company, Inc., have objected to Ms. Clement's motion to intervene. In Count I of the First Amended Complaint, the plaintiff alleges that he entered into a transaction with defendant Milford on September 28, 1991 in which he agreed to lease a 1991 Acura Legend that did not operate properly; that defendant Milford never put the car into satisfactory running order; and that he traded it in to another dealer which paid off the lease agreement, creating a loss to Giron. Giron claims that the "form contract and disclosure statement attached to the complaint as Exhibit A does not comply in several respects with the requirement of 15 U.S.C. § 1640." (Complaint, Count 1, para. 14). The defendant contends that Counts I and IV were dismissed by the federal court while the case was in that forum on removal. Examination of the ruling of U.S.D.J. Alfred V. Covello, dated August 15, 1994, reveals that the first count was dismissed because plaintiff Giron's transaction was found to exceed $25,000., the limit for a claim based on the Consumer Leasing Act pursuant to15 U.S.C. § 1667 (i); 12 C.F.R. § 213.2 (a)(6). The federal court's dismissal of Count I was therefore substantive, and that count is no longer before this court upon remand because of the doctrines of res judicata and issue preclusion. Upjohn Co. v. Planning ZoningCommission, 224 Conn. 82, 93 (1992); Tucker v. Crikelair, 4 Conn. App. 150,151, cert. denied, 196 Conn. 813 (1985). Count Four of the complaint, in which the specific lease contract entered into by plaintiff Giron (as opposed to the form of the contract) was alleged to violate the Consumer Leasing Act, was likewise dismissed because the claim exceeded the limits of transactions made actionable by the statute. Because the claims set forth in Counts I and IV have been dismissed, the movant cannot be granted leave to intervene as a party plaintiff as to those claims. In Count II of the amended complaint, plaintiff Giron alleges CT Page 2326 that the conduct of the defendants with regard to his transaction with defendants Milford and AHFC violated CUTPA by failing adequately to disclose charges for default and/or early termination in the form used for the lease. The defendants claim that because the proposed intervenor has not alleged that she entered into a lease transaction with Milford Gateway, Inc., she has failed to demonstrate that she has standing to join the claim made on behalf of the alleged claims in Count II of the amended complaint. This court takes judicial notice of the order of the United States District Court for the Central District of California in Jean E. Clement v. American Honda FinanceCorporation, CV 94-3307 DT (BQRX), in which the CUTPA claim of the proposed intervenor was noted to involve a lease not with Milford but with Trans Oceanic Motors, Ltd. of Groton, Connecticut. The proposed intervenor evidently contends that the same AHFC form was used in her transaction as in Giron's. The claimed circumstance that the same allegedly unfair or deceptive form was allegedly furnished to and used by two separate dealerships in Connecticut by defendant AHFC does not demonstrate a lack of standing to challenge the form as a deceptive act of defendant AHFC. The fact that the claim of the proposed intervenor does not also extend to Milford merely limits her potential recovery to defendant AHFC but does not impermissibly extend the claims to different forms and different issues. Practice Book § 87 authorizes a class claim to be asserted by "[o]ne or more members of a class." Accordingly, the status of the proposed intervenor as a member of the class described by Giron is not a reason to deny her motion to intervene. The defendants' objection of lack of standing is, however, valid as to the proposed intervention of the movant as to Count V of the amended complaint. In that count, Giron asserts that his individual transaction with the defendant violated CUTPA. The proposed intervenor has not claimed to have been a party to that transaction or to have suffered any ascertainable loss arising from that transaction. Accordingly, she lacks standing to intervene in the claims set forth in Count V. Since the proposed intervenor does not seek to intervene as to any other counts of the complaint, no further analysis is necessary. CT Page 2327 The motion of Jean Clement to intervene is denied as to Counts I, IV and V and granted as to Count II only, and only as to the claims made against AHFC. This court's ruling allowing the movant to intervene as to the indicated claim in the present amended complaint does not authorize the addition of any new parties defendant in connection with the claims made in Count II. Beverly J. Hodgson Judge of the Superior Court	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3346285/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiffs in this action are Constance Pappas (hereinafter referred to as Pappas) and Andrew Kass (hereinafter referred to as Kass). The defendant in this action is Quality Associates, Inc., a Connecticut Corporation (hereinafter referred to as Quality). The plaintiffs, who are married to each other, are the owners of the property located at 67 Tawney Drive, Bethany, Connecticut. In 1985 the plaintiffs were building a new home at the aforementioned address. In April 1985 the plaintiffs entered into a contract with the defendant whereby the defendant would provide the plumbing and heating for said house. (Exhibit A). The main issue in this matter concerns the furnace and air conditioning in said home. The plaintiff Pappas and Stephen Russo, an owner of Quality, testified that the plaintiffs wanted a Yukon Husky Furnace which had three zones and which could be fueled by wood, coal and/or oil and which would allow for air conditioning to be added to the system in the future. Pappas had a friend who had such a furnace and she wanted the same. Mr. Russo testified that he tried to convince Pappas to use a conventional furnace but to no avail, because the Yukon Husky Furnace required a lot of maintenance. The defendant installed the Yukon Husky Furnace that the plaintiffs wanted in 1985. That same year the plaintiff Pappas went to the "Big E" Exposition and talked with a representative of Yukon Husky Furnace and learned that that company did not recommend a three-zoned heating system with the type of furnace the plaintiff had put in their new home. Pappas then told Mr. Russo about this, who then confirmed it during a call to the Yukon representative. Mr. Russo testified that nowhere in the Yukon CT Page 2260 Husky Furnace brochures did it state that a three-zoned heating system should not be used with this system. As a result Quality removed the zone chambers on this furnace on October 17, 1985 and the system thus became a one-zoned heating system. Further, as a result, the defendant reduced their bill due from the plaintiffs by $650.00 since it was now only a one-zoned system. In September 1985, the plaintiffs advised the defendant that they wanted air conditioning installed into their home. The defendant then installed a larger blower motor to the furnace to accommodate the air conditioning system as per the contract between the parties. The plaintiffs had various complaints against the defendant. Pappas testified that the hot and cold faucets were reversed on one of the bathtubs, that the kitchen sink sprayer did not work, and that the dishwasher drained right into the garbage disposal causing a back-flooding of same into the kitchen sink when the dishwasher was in operation. The latter problem has not been rectified but the faucet reversal and sprayer problems have been corrected by the plaintiffs. Also Pappas testified that the heat and air conditioning did not reach the whole house area. The plaintiff Pappas testified that when she turned on the air conditioner the first time, the basement became flooded. She could not reach Quality as all their workers were at other job sites, so she called another firm and they came and rectified the problem, which was an incorrect installation of a pan. She then turned on the air conditioner and the cellar flooded again. This time she testified it was due to a plugged up pipe in the system. Again she called someone other than Quality when their employees were not immediately available to repair this problem. She testified she was concerned for safety reasons and that is why she did not wait for Quality to come and repair the problem. The plaintiff Pappas then testified that the air conditioner kept freezing up after use. Thus, she said, the plaintiff did not use the air conditioner until a new furnace was installed as hereinafter set forth. She did not call Quality about this, she testified, because she had lost all faith in them. The plaintiffs called Ralph Mann Associates and subsequently installed a new furnace in 1987 or 1988. The plaintiffs were not sure just when this new furnace was installed. This new furnace was an oil burning, hot air furnace. The plaintiffs testified that the original furnace's fan was not large enough to force cold air through the whole house and that said fan was the largest fan that particular furnace could use. They stated that the new furnace corrected all of their heating and air conditioning problems. The plaintiff Pappas also testified that the defendant incorrectly installed a chimney pipe which resulted in the CT Page 2261 narrowing of a stairwell. Mr. Russo stated that the chimney pipe was installed by another contractor, Russell Smith, and that Mr. Smith returned to the plaintiffs' home and rectified the problem. This problem was pointed out by a Bethany building official. Russo said all Quality did was disconnect the pipe running from the furnace to the chimney and then reconnected it when the problem was repaired. The plaintiffs also claim that Quality installed the humidifier on the furnace's cold air return line and that it should have been installed on the hot air line, which was subsequently done by Ralph Mann Associates. Mr. Kass testified that three months ago the plaintiffs installed three-zoned heating again in their home. Stephen Russo of Quality testified that a plastic tubing melted on the humidifier his company installed with the plaintiffs' system. This tubing was replaced by Quality with copper tubing. He stated that the plaintiffs paid Quality in full in 1986 and that Quality did not hear from them again until this suit was commenced in 1989. The plaintiffs are claiming damages of $3497.00 for the new furnace installed by Ralph Mann Associates, and for $2100.00 which it cost them to reinstall the three-zoned heat system. These sums total $5597.00. After hearing the evidence, the court finds the issues for the defendant on each count in the Amended Complaint. The plaintiffs did not sustain their burden of proof on any of said counts. Judgment may enter accordingly. WILLIAM J. SULLIVAN, JUDGE	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4561288/	STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Wendy Elswick, Plaintiff Below, Petitioner FILED August 28, 2020 vs.) No. 19-0054 (Ohio County 18-CAP-5) EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Adelle J. Carson, Defendant Below, Respondent MEMORANDUM DECISION Petitioner Wendy Elswick, self-represented litigant, appeals the November 19, 2018, order of the Circuit Court of Ohio County granting Respondent Adelle J. Carson’s motion to dismiss petitioner’s appeal from a judgment of the Magistrate Court of Ohio County. Respondent, by counsel Bradley K. Shafer, filed a response in support of the circuit court’s order. Petitioner filed a reply. The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case is remanded to the circuit court with directions to hold an evidentiary hearing as to whether, in respondent’s prior action against petitioner, (1) the magistrate court adjudicated petitioner’s claim that respondent also owed her money; and (2) respondent improperly named petitioner in her personal capacity as the defendant rather than Wendy Elswick, Inc. d/b/a Fish Reporting Services. Petitioner is a certified court reporter and the owner of Wendy Elswick, Inc. d/b/a Fish Reporting Services (“the corporation”). Respondent, a court reporter, worked for the corporation as an independent contractor. On September 7, 2016, respondent filed a complaint in the Magistrate Court of Ohio County in Case No. 16-M35C-00635 (“first action”). On April 12, 2017, petitioner filed a complaint in the magistrate court in Case No. 17-M35C-00196 (“second action”). In the first action, respondent filed her complaint against “Wendy Elswick d/b/a Fish Reporting Services,” alleging that between 2014 and 2016, petitioner failed to pay respondent her share of commissions earned in the performance of court reporting services. Respondent asked for 1 a judgment against petitioner in the amount of $5,856.21,1 plus $95 in court fees and costs and post-judgment interest. On October 4, 2016, petitioner filed an answer to respondent’s complaint and did not check the box indicating that she was asserting a counterclaim against respondent. However, petitioner submitted evidence to show that respondent owed petitioner for providing, in petitioner’s personal capacity, audio proofreading services to respondent between 2014 and 2016. Subsequently, the magistrate court held a bench trial in respondent’s action against petitioner on January 23, 2017. At the beginning of trial, petitioner states that she requested the dismissal of respondent’s complaint because respondent should have sued the corporation, and the magistrate court denied that request. Following trial, the magistrate court entered judgment on March 9, 2017, in respondent’s favor in the full amount she claimed, $5,856.21, plus $95 in court fees and costs and post-judgment interest at 7% per year. The magistrate court’s judgment order fails to reflect whether it adjudicated only respondent’s claim against petitioner or whether it also adjudicated petitioner’s claim against respondent, either as a setoff against respondent’s claim or as an independent counterclaim. Petitioner did not file an appeal from the March 9, 2017, judgment order in the Circuit Court of Ohio County until April 12, 2017. Accordingly, by order entered May 17, 2017, the circuit court dismissed petitioner’s appeal as untimely filed. Petitioner did not appeal that order. However, on the same day petitioner filed her appeal from the magistrate court’s judgment order in the first action, petitioner filed her complaint in the second action and submitted substantially the same evidence to the magistrate court as she submitted with her answer in the first action. Petitioner sought payment for providing respondent with audio proofreading services between 2014 and 2016. Subsequently, respondent filed a motion to dismiss the second action, arguing that the doctrine of res judicata barred petitioner’s claim due to the magistrate court’s adjudication of that claim in the first action. The magistrate court did not rule on respondent’s motion until after holding a bench trial on petitioner’s claim on March 8, 2018. On March 13, 2018, the magistrate court entered a judgment order and filed separate findings of fact and conclusions of law (“opinion letter”). In the opinion letter, the magistrate court denied respondent’s motion to dismiss based on the doctrine of res judicata, finding that an examination of the record in the first action revealed “no written record of a counterclaim . . .[,] and the [March 9, 2017, judgment order] reflects no dismissal of a counterclaim.” On the merits of petitioner’s claim, the magistrate court found that petitioner failed to prove that respondent owed her for providing audio proofreading services. Accordingly, in the March 13, 2018, judgment order, the magistrate court entered judgment in respondent’s favor. Petitioner filed a timely appeal from the March 13, 2018, judgment order in the circuit court, and respondent filed a motion to dismiss the appeal. Unlike the magistrate court, by order entered on November 19, 2018, the circuit court found that the doctrine of res judicata barred 1 The Legislature amended West Virginia Code § 50-2-1 to raise the monetary limit of the magistrate court’s jurisdiction from $5,000 to $10,000, effective June 5, 2016. See 2016 W. Va. Acts ch. 55. 2 petitioner’s claim in the second action. The circuit court acknowledged that petitioner did not file a counterclaim in the first action, but determined that petitioner presented evidence to support such a claim in that action. The circuit court further found, in the alternative, that if petitioner failed to present the evidence in support of a counterclaim in the first action, the doctrine of laches prevented petitioner from raising the claim in the second action given her failure to present the claim in the first action when she had the evidence to do so. We review de novo the circuit court’s November 19, 2018, order granting respondent’s motion to dismiss. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). However, we initially address petitioner’s argument that the circuit court’s May 17, 2017, order dismissing her appeal in the first action is also erroneous. Respondent counters that the May 17, 2017, order is not before us due to petitioner’s failure to file an appeal from that order. We agree with respondent. West Virginia Code § 58-5-4 and Rule 5(f) of the West Virginia Rules of Appellate Procedure provide that there is a four-month period to appeal a final judgment or order. In West Virginia Department of Energy v. Hobet Mining and Construction Company, 178 W. Va. 262, 358 S.E.2d 823 (1987), we found that “[the] failure to file a timely appeal presents a jurisdictional infirmity precluding the court from accepting the appeal.” Id. at 264, 358 S.E.2d at 825. Here, petitioner filed no appeal from the May 17, 2017, order. Therefore, we conclude that petitioner is precluded from arguing that the circuit court’s dismissal of her appeal in the first action was erroneous. However, we find that the validity of the magistrate court’s March 9, 2017, judgment order petitioner attempted to appeal in the first action is before us for two reasons. First, in Syllabus Point 2 of Beane v. Dailey, 226 W. Va. 445, 701 S.E.2d 848 (2010), we reiterated: “‘“A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment.” Syl. pt. 3, State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418 (1957).’ Syl. Pt. 3, State ex rel. Lemley v. Roberts, 164 W.Va. 457, 260 S.E.2d 850 (1979), overruled on other grounds by Stalnaker v. Roberts, 168 W.Va. 593, 287 S.E.2d 166 (1981).” Syllabus Point 5, State ex rel. Farber v. Mazzone, 213 W.Va. 661, 584 S.E.2d 517 (2003). Second, for the doctrine of res judicata to bar a subsequent action, the court entering judgment in the prior action is required to have possessed jurisdiction to render that judgment. See Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W. Va. 469, 498 S.E.2d 41 (1997) (holding that one of the elements necessary for res judicata to apply is a final adjudication on the merits by a court having jurisdiction of the proceedings). Here, petitioner argues that the magistrate court did not have personal jurisdiction over the proper defendant in the first action given respondent’s filing of a complaint against petitioner rather than the corporation. See State ex rel. West Virginia Truck Stop, Inc. v. Belcher, 156 W. Va. 183, 187, 192 S.E.2d 229, 232 (1972) (“To hear and determine an action[,] the court must have jurisdiction of the parties.”). Petitioner further argues that West Virginia Code § 50-4-9 and Rule 5(b) of the West Virginia Rules of Civil Procedure for Magistrate Courts permit her to raise her claim in the second action. West Virginia Code § 50-4-9 provides that, in a magistrate court action: 3 A defendant in a civil action may file a counterclaim and if such counterclaim arises from the same transaction or occurrence that is the subject matter of the initial claim they shall be tried together. The failure to institute a counterclaim permitted by this section shall not preclude the institution of an action on such claim at a later date. The adjudication of the original claim shall not constitute res judicata as to any such permitted counterclaim nor shall it act as an estoppel as to such permitted counterclaim. Rule 5(b) similarly provides that “[t]he failure of a defendant to institute a counterclaim permitted by this rule shall not preclude the institution of a separate action on such claim at a later time.” Here, we find that the clear language of West Virginia Code § 50-4-9 and Rule 5(b) precludes the circuit court’s alternate ruling that the doctrine of laches bars the second action. As we held in the Syllabus of Weller v. Moffett’s Pharmacy, Inc., 167 W. Va. 199, 279 S.E.2d 196 (1981): Under the express terms of W.Va. Code, 50-4-9 (1978), a defendant in a civil action in magistrate court who fails to assert a counterclaim is not precluded from instituting an action on such claim at a later date, nor will the adjudication of the original claim constitute res judicata or act as an estoppel as to any such counterclaim.[2] (Underlined emphasis and footnote added). In addition, there was no unreasonable delay because, as the circuit court itself found, petitioner filed the second action the same day she filed her appeal from the magistrate court’s March 9, 2017, judgment order in the first action. See State ex rel. Webb v. W.Va. Bd. of Medicine, 203 W.Va. 234, 237, 506 S.E.2d 830, 833 (1998) (“The elements of laches consist of (1) unreasonable delay and (2) prejudice.”) (Internal quotation and citations omitted). Therefore, we conclude that the circuit court’s alternate ruling, that the doctrine of laches applies to this case, is erroneous. With regard to the doctrine of res judicata, respondent argues that regardless of whether petitioner filed a counterclaim in the first action, she presented evidence to support such a claim in that action. Assuming arguendo that petitioner raised her claim in the first action, we find that we cannot determine whether the doctrine of res judicata applies on the present record given that the doctrine requires a final adjudication on the merits in the first action. In Crouse v. Hobday, No. 15-1186, 2016 WL 6835735 (W. Va. Nov. 21, 2016) (memorandum decision), the petitioners appealed a circuit court’s order awarding summary judgment based on a prior magistrate court judgment against them. This Court in Crouse remanded the case to the circuit court for an evidentiary hearing as to whether the magistrate court held a bench trial in the prior action. Id. at 2 The West Virginia Rules of Civil Procedure for Magistrate Courts were not promulgated until 1988. 4 *1. Here, while there is no dispute that the magistrate court held a bench trial in the first action,3 the magistrate court’s March 9, 2017, judgment order is silent as to whether it adjudicated petitioner’s claim against respondent either as a setoff against respondent’s claim or as an independent counterclaim. Therefore, we conclude that it is necessary to remand this case to the circuit court for an evidentiary hearing as to whether the magistrate court adjudicated petitioner’s claim in the first action. Because the magistrate court’s alleged lack of personal jurisdiction in the first action affects the application of the doctrine of res judicata and also constitutes a separate issue, we direct that the circuit court further determine whether respondent improperly named petitioner in her personal capacity rather than the corporation as the defendant in the first action.4 Therefore, we reverse the circuit court’s November 19, 2018, order dismissing petitioner’s appeal and remand this case for an evidentiary hearing as to whether, in the first action, (1) the magistrate court adjudicated petitioner’s claim that respondent also owed her money; and (2) respondent improperly named petitioner in her personal capacity as the defendant rather than Wendy Elswick, Inc. d/b/a Fish Reporting Services.5 For the foregoing reasons, we reverse the circuit court’s November 19, 2018, order dismissing petitioner’s appeal and remand this case with directions. Reversed and Remanded with Directions. ISSUED: August 28, 2020 CONCURRED IN BY: Chief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison 3 Petitioner argues that procedural irregularities surrounded the magistrate court’s holding of the January 23, 2017, bench trial. However, as concluded above, because of petitioner’s failure to file an appeal to this Court in the first action, all nonjurisdictional issues regarding that action are not before us. 4 In Laya v. Erin Homes, Inc., 177 W. Va. 343, 352 S.E.2d 93 (1986), we set forth standards for determining when the corporate veil may be pierced under the law of West Virginia. 5 Should petitioner’s action survive dismissal following the evidentiary hearing, she would be entitled to a trial de novo on her claim that respondent owed her money for providing respondent with audio proofreading services between 2014 and 2016. See W. Va. Code § 50-5-12(b) (“In the case of an appeal of a civil action tried before the magistrate without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.”); W. Va. Rul. Civ. Proc. Magis. Cts. 18(d) (“An appeal of a civil action tried before a magistrate without a jury shall be by trial de novo in circuit court without a jury.”). 5	01-03-2023	08-28-2020
https://www.courtlistener.com/api/rest/v3/opinions/1329531/	214 Ga. 708 (1959) 107 S.E.2d 186 WORRELL et al. v. GANNS, Executor. 20347. Supreme Court of Georgia. Submitted January 14, 1959. Decided February 6, 1959. Eva L. Sloan, James M. Watts, for plaintiffs in error. J. A. Gilmore, contra. CANDLER, Justice. An instrument purporting to be the last will and testament of Ushel L. Ganns was offered for probate in solemn form by Joseph L. Ganns, the nominated executor. It bequeathed all of her property to Joseph L. Ganns without condition or limitation. Julia Mae Worrell, George Young, Arthur Young, Leon Young, Juanita Reeves, and Abbie Chatham, alleging themselves to be heirs at law of the deceased, objected to the probate on the grounds of mental incapacity, undue influence, and non est factum. The ordinary probated the instrument, ordered it recorded as the will of the deceased, and directed issuance of letters testamentary to the propounder. The case was in due time appealed to the Superior Court of Baldwin County. On the trial in that court, at which both sides introduced evidence, a jury found in favor of the propounder, and the caveators moved for a new trial on the usual general grounds. Their motion, which they later amended by adding two special grounds, was denied, and they except to that judgment. Held: 1. While the evidence respecting each ground of the caveat was in sharp conflict, nevertheless, it was sufficient to support the verdict. Hence the general grounds of the motion for new trial are not meritorious. 2. During the trial, the caveators sought to introduce as evidence a deed which the deceased gave to Joseph L. Ganns on November 29, 1945, as security for the repayment of a loan of $1,500 that he had made to her; the land conveyed by such security deed being the same land which the deceased owned at the time of her death. Admission of the deed was refused by the court on the ground that it was irrelevant to and not illustrative of any issue raised by the caveat. As to the correctness of this ruling, we agree with the trial judge. Consequently, that special ground of the motion which complains of this does not authorize a reversal of the judgment refusing a new trial. 3. On objection thereto by counsel for the propounder, the court refused to allow in evidence four warranty deeds which were executed and delivered to the deceased during May, 1925, and which conveyed to her an undivided four-fifths interest in all of the realty that she owned at the time of her death. Since probate of the will was contested on the ground of mental 709 incapacity of the testatrix to make a will, and on the ground of undue influence exerted over her by the propounder the sole beneficiary of the will we think that the court erred in not admitting the deeds in evidence. The oral testimony shows without dispute that the caveators are nephews and nieces of the testatrix who were reared by her, they being the children of a deceased brother. The propounder testified: that he and his first wife separated in Cleveland, Ohio; that she now resides in Chicago; that he had been told that she obtained a divorce from him, but he did not know when, where or in what court; that he married the testatrix at Macon, Georgia; and that they have no child or children. But, as to his marriage to the deceased, he offered no proof of a ceremonial marriage. Several witnesses for the caveators testified that the testatrix was unconscious during all of the day on which the will was purportedly signed by her, and had been for several days immediately prior thereto as the result of a paralytic stroke, and that she died on the day following the one on which the will was allegedly signed. The descriptive averments of the rejected deeds recite that each grantor conveyed to the grantee, for a consideration of $1 and natural love and affection, his or her respective interest in all of the realty which S. M. Doles conveyed in 1872 to Lizzie Young, the mother of the testatrix; and that the grantors and the grantee in those deeds were at the time of such conveyances the sole and only heirs at law of Lizzie Young, who died intestate leaving no debts. Under substantially like facts and circumstances, this court has at least five times held that testimony showing the source from which property disposed of by will came into the decedent's possession was relevant and material. See Pergason v. Etcherson, 91 Ga. 785 (1) (18 S.E. 29); Holland v. Bell, 148 Ga. 277 (1) (96 S.E. 419); Murphy v. Murphy, 152 Ga. 275 (1) (109 S.E. 903); Shaw v. Fehn, 196 Ga. 661 (2) (27 S.E.2d 406); and Northwestern University v. Crisp, 211 Ga. 636 (4) (88 S.E.2d 26). In the Holland case, supra, it was said in the first headnote: "Where probate of a will is contested for incapacity of the marker, or for fraud or undue influence, it is proper to inquire whether the provisions of the will are just and reasonable and accord with the state of the testator's family relations, or the contrary. (a) The source from which the property disposed of by the will came into the decedent's possession may be shown, 710 as well as the reasonableness of the provisions of the will." Hence this special ground of the motion requires a reversal of the judgment refusing a new trial. Judgment reversed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615113/	668 P.2d 1210 (1983) 295 Or. 574 Thomas P. DENNEHY, Appellant, v. THE DEPARTMENT OF REVENUE, a Department of the State of Oregon; Baker County; Crook County; Deschutes County; Gilliam County; Grant County; Harney County; Hood County; Klamath County; Lake County; Malheur County; Morrow County; Sherman County; Umatilla County; Union County; Wallowa County; Wasco County; Wheeler County; Benton County; Clackamas County; Clatsop County; Columbia County; Coos County; Curry County; Jackson County; Josephine County; Lane County; Lincoln County; Linn County; Marion County; Multnomah County; Polk County; Tillamook County; Washington County; and Yamhill County, All Located in the State of Oregon, Respondents. No. OTC 1816; SC 29309. Supreme Court of Oregon, In Banc.[] Argued and Submitted August 3, 1983. Decided September 7, 1983. Emil R. Berg, Portland, argued the cause and submitted the briefs for appellant. With him on the brief was Wolf, Griffith, Bittner, Abbott & Roberts and with him on the reply brief was Griffith, Bittner, Abbott & Roberts, Portland. Ira W. Jones, Asst. Atty. Gen., Salem, argued the cause for respondent, The Dept. of Revenue. John B. Leahy, Portland, argued the cause for respondents counties. With him on the brief were Daryl S. Garretson, Portland, 1212 John M. Junkin, Hillsboro, Michael E. Judd, Oregon City, and Paul Snider, Salem. CAMPBELL, Justice. Plaintiff appeals from an order of the Oregon Tax Court dismissing with prejudice his complaint on the ground that the court lacked jurisdiction because the plaintiff failed to exhaust his administrative remedies. Plaintiff contends that he did exhaust his administrative remedies and, alternatively, that he should be exempted from exhaustion in this cause. Plaintiff also alleges that the tax court erred in rejecting his complaint as a class action. We affirm the dismissal. This court has jurisdiction over the exhaustion issue pursuant to ORS 305.445, which vests jurisdiction "in the Supreme Court to hear and determine all appeals from final decisions and final orders of the tax court * * ." The order by the tax court dismissing complaint is such a final order. Plaintiff's claim on the merits is that in applying ORS 310.090 and 457.440(1), county assessors under the supervision of the department of revenue (the department) have assessed and collected property taxes in excess of the six percent limitation imposed in Article XI, Section 11 of the Oregon Constitution. The tax court did not, and we shall not, reach the merits. Before instituting suit in the Oregon Tax Court, a person is required to exhaust administrative remedies before the department. ORS 305.275(4).[1] Thus it is a legislatively imposed statutory exhaustion requirement which we interpret in this case. Plaintiff has identified three activities that he alleges are sufficient to warrant a finding that he has exhausted his administrative remedies. First, plaintiff filed a tax refund request with Multnomah County pursuant to ORS 311.806.[2] This section mandates the refund of taxes only when the county is so ordered by the department, the Oregon Tax Court or this court, and in three other situations not applicable here. Without such an order, plaintiff's request for refund fell outside the purview of this section, and is of no consequence in determining whether he has exhausted administrative remedies available to him.[3] Second, plaintiff's attorney met twice with the Oregon Attorney General and counsel for the department to discuss his claims. This is patently insufficient to exhaust administrative remedies. This court has stated that a "party does not exhaust his administrative remedies simply 1213 by stepping through the motions of the administrative process without affording the agency an opportunity to rule on the substance of the dispute." Mullenaux v. Department of Revenue, 293 Or. 536, 541, 651 P.2d 724 (1982). Mullenaux affirmed a dismissal of a suit instituted in tax court after the plaintiff had requested and then failed to appear at a hearing before the department. Third, plaintiff sought from the department a declaratory ruling on his claims pursuant to ORS 305.105.[4] This petition was denied on the ground, inter alia, that the department lacked jurisdiction because it had not issued rules or regulations pursuant to either challenged statute. ORS 305.105 authorizes petitions for declaratory rulings "with respect to the validity or applicability * * * of any rule or regulation * " promulgated by the department. The order denying the petition was not appealed to the tax court. We therefore do not decide whether it would have provided a basis for an appeal. The adequate remedy available to, but not exhausted by, plaintiff is found in ORS 305.275(1).[5] Persons aggrieved by actions of the department and/or county assessors are therein provided with a right of appeal to the director of the department. After a hearing, pursuant to ORS 305.115(1), the director or his deputy would issue an order. ORS 305.115(4). This order would be appealable to the tax court, ORS 305.560(1), and that decision appealable to this court. ORS 305.445. Failure to follow this available appeal procedure precluded plaintiff from obtaining a department order which could form the basis of an appeal to the tax court. Plaintiff, having available an appropriate recourse which would provide a department order, may not invoke the jurisdiction of the tax court without first obtaining such an order. Plaintiff also argues that even if he has not exhausted his administrative remedies, he should not be required to in this case. He contends that the doctrine of exhaustion should not apply because the issues involved are legal as opposed to factual, and that courts are more proficient in deciding such issues than are administrative agencies.[6] The mere characterization of the merits of this case as law is not a sufficient basis on which to claim an exemption from the exhaustion requirement. Statutorily required administrative review may not be ignored simply because the issue is a question of law. Miller v. Schrunk, 232 Or. 383, 388, 375 P.2d 823 (1962). The fact that plaintiff was before the tax court completely devoid of any administrative 1214 record to review is important to our decision. Although the tax court hears appeals from the department de novo, it is clear from the statutory scheme establishing the tax court that it is to decide whether to set aside administrative orders or determinations and not to proceed without any such order or determination in actions such as the instant case. See ORS 305.425(2); ORS 305.845. Other jurisdictions have reached the same conclusion we reach when confronted with challenges to the constitutionality of tax assessments. The United States Supreme Court has pronounced that "[a] taxpayer who does not exhaust the remedy provided before an administrative board to secure the correct assessment of a tax, cannot thereafter be heard by a judicial tribunal to assert its invalidity." Gorham Mfg. Co. v. Tax Commission, 266 U.S. 265, 269-70, 45 S. Ct. 80, 81, 69 L. Ed. 279 (1924) (constitutional attack against New York State tax on foreign corporations).[7] We conclude that plaintiff was statutorily required to exhaust administrative remedies, that he failed to do so, and that therefore the tax court lacked jurisdiction to entertain his complaint. Because of our determination on the exhaustion issue, we do not decide whether the tax court may summarily reject certification of class actions in suits such as plaintiff's. Affirmed. NOTES [] Justice Lent was Chief Justice when case was argued; Justice Peterson was Chief Justice when this decision was rendered. [1] ORS 305.275(4) provides: "(4) Except as provided in ORS 118.350, 118.370 and 305.410, [irrelevant here] no person shall appeal to the Oregon Tax Court or other court on any matter arising under the revenue and tax laws administered by the department unless he first exhausts the administrative remedies provided him before the department and the director." [2] In relevant part, ORS 311.806 provides: "(1) The county governing body shall refund to a taxpayer, out of the general fund or the unsegregated tax collections account provided in ORS 311.385, taxes collected by an assessor or tax collector pursuant to a levy of the assessor or of any taxing district or tax levying body plus interest thereon as provided in ORS 311.812, in the following cases: "(a) Whenever ordered by the Department of Revenue and no appeal is taken or can be taken from the department's order, or whenever ordered by the Oregon Tax Court or the Supreme Court and the order constitutes a final determination of the matter * *." [3] Whether plaintiff could have received a refund from the county pursuant to ORS 311.806(1)(c) on grounds that he overpaid taxes due to "excusable neglect" is a separate question. We doubt that a county governing body would decide the issues involved in this action and it is therefore unlikely they would authorize a refund. If the request were denied, plaintiff's remedy would be to appeal to the department of revenue; a remedy available to him without making such request to the county. The 311.806 remedy may be available to plaintiff here, but it is not well suited to obtain the result he desires. The county will not refund the collected tax until it decides it should or until the department of revenue, the tax court, or the Supreme Court orders the county to refund it. Sisters of Charity v. Washington Cty. Comm'rs, 3 Or. Tax 106, 109 (1967). [4] ORS 305.105 provides: "The Department of Revenue may, on petition by any interested person, issue a declaratory ruling with respect to the validity or applicability to any person, property or state of facts of any rule or regulation promulgated by it. The department shall prescribe by rule the form, content and procedure for submission, consideration and disposition of such petitions. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the department and all parties to the proceedings on the state of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the Oregon Tax Court and Supreme Court in the manner provided by ORS 305.445." [5] ORS 305.275(1) provides: "(1) Any person aggrieved by an act or omission of: "(a) The Department of Revenue in its administration of the revenue and tax laws of this state; or "(b) A county board of equalization other than an order of the board; or "(c) A county assessor, including but not limited to the denial of a claim for exemption, the denial of special assessment under ORS 308.370 or other special assessment statute, or the denial of a claim for cancellation of assessment; or "(d) A tax collector, which affects his property and for which there is no other statutory right of appeal, may appeal to the Director of the Department of Revenue in the manner provided by this section." [6] Plaintiff cites Marbet v. Portland General Electric, 277 Or. 447, 561 P.2d 154 (1977) in support of this proposition. Marbet, however, is applicable to only one facet of the exhaustion doctrine; whether a person who was a party must have objected to errors before the agency in order to preserve those errors for judicial review. [7] Accord: Williams v. Bankers Nat'l Ins. Co., 80 Ariz. 294, 297 P.2d 344 (1956); United States v. Superior Court, 19 Cal. 2d 189, 120 P.2d 26 (1941); Franden v. Jonasson, 95 Idaho 792, 520 P.2d 247 (1973); Associated Petroleum Transport v. Shepard, 53 N.M. 52, 201 P.2d 772 (1949).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1329560/	116 S.E.2d 374 (1960) 253 N.C. 112 James H. POTTER, Jr., James H. Potter, III, and Gilbert M. Potter, t/a and d/b/a Potter's Store, a Partnership; and New Hampshire Insurance Company, a Corporation, v. CAROLINA WATER COMPANY, a Corporation. No. 91. Supreme Court of North Carolina. October 12, 1960. 377 C. R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for plaintiff appellees. John G. Dawson, Albert W. Cowper, Kinston, and Luther Hamilton, Morehead City, for defendant appellant. RODMAN, Justice. Defendant, by motion to nonsuit and by exception to the charge as a whole, challenges plaintiffs' right to recover notwith-standing the undisputed testimony that there was a total failure to furnish any water to the hydrants during the critical period, and because of such failure plaintiffs' property was destroyed. It bases its denial of liability on two propositions: (1) Breach of a definite and specific contract between a private corporation and a municipality to furnish water for fire purposes creates no right of action in a citizen who suffers damage as a result of such breach; (2) even if such right of action may exist for breach of a contract definite and specific in its terms, the contract on which plaintiffs base their claim is so indefinite and uncertain that plaintiffs' evidence fails to establish a breach. Counsel for defendant open their argument with the statement: " * * the question here directly presented is almost a brand new question in this state to the present generation of lawyers." They then concede that the question which they first pose for determination was decided adversely to their contention in Gorrell v. Greensboro Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L.R.A. 513, decided at the Spring Term 1899, followed by Fisher v. Greensboro Water Supply Co., 128 N.C. 375, 38 S.E. 912, decided at the Spring Term 1901 (See Guardian Trust & D. Co. v. Fisher, 200 U.S. 57, 26 S. Ct. 186, 50 L.Ed 367); Jones v. Durham Water Co., 135 N.C. 553, 47 S.E. 615, decided at the Spring Term 1904; Id. 138 N.C. 383, 50 S.E. 769; Morton v. Washington Light & Water Co., 168 N.C. 582, 84 S.E. 1019, decided at the Spring Term 1915; and Powell & Powell v. Wake Water Co., 171 N.C. 290, 88 S.E. 426, decided at the Spring Term 1916, all holding that a citizen injured by breach of a contract by a private corporation to supply water to his municipality for fire protection might maintain an action for damages personal to him resulting from a breach of the contract, and he might sue for a breach of the contract or for a negligent failure to comply with the contract. Counsel for defendant urge us to now overrule those cases and to hold that no such action may be maintained. True, as defendant points out, the Gorrell case was decided by a divided Court, but Gorrell was unanimously accepted as the law of this State in Fisher and Jones. In 1915 this Court was asked to re-examine the question and to join with the majority of the states in holding that property owners have no right of action because of a breach of such contract. Morton v. Washington Light & Water Co., supra. That the question again propounded was carefully considered is manifest from the several opinions and an inspection of the cases cited in the opinions of Justice Allen, who spoke for the majority, and Justice Walker, who spoke for the minority. An examination of the cases there cited will disclose that North Carolina, Kentucky, and Florida were in accord, and the decisions in other states were to the contrary. Kentucky and Florida continue to adhere to the rule as declared by us in the Gorrell case. See Clay v. Catlettsburg, Kenova & Ceredo Water Co., 301 Ky. 456, 192 S.W.2d 358; Florida Public Utilities v. Wester, 150 Fla. 378, 7 So. 2d 788. 378 The Morton case was followed a year later by Powell & Powell v. Wake Water Co., supra, where the right to sue was again recognized. It is manifest from the decision in the Morton case that the doctrine of stare decisis played an important part. Allen, J., said [168 N.C. 582, 84 S.E. 1020]: "Another reason for refusing to sustain the position of the defendant is that it entered into the contract with the city of Washington in 1901, two years after the Gorrell case was decided, and as all laws relating to the subject-matter of a contract enter into and form a part of it as if expressly referred to or incorporated in its terms (citations), it was within the contemplation of the parties at the time the contract was made that the defendant would be liable to the citizen for loss by fire caused by its negligent failure to perform the terms of the contract, as held in the Gorrell case, and to hold otherwise now would relieve the defendant of a responsibility which it knowingly assumed." Brown, J., concurring in the result, said: "I recognize the fact that the overwhelming weight of authority, including that of the Supreme Court of the United States, is against the decisions of this court in the Gorrell, Fisher, and Jones cases, cited in the opinions in this case. But all three of those cases were decided and the opinions published before the contract in this case was entered into. Those decisions were well known to be the law of North Carolina when the franchise given to the defendant was applied for, and when it was agreed upon and its terms accepted. Whether those cases were correctly decided or not, they were the accepted law of this state at that time, and upon well-established principles entered into and formed a part of the contract under which the defendant operated, unless there is something to be found in the contract excluding such hypothesis." The conclusion reached in the cases we are now asked to overrule has not been challenged for nearly half a century. To the contrary, the principles enunciated have been repeatedly approved. Illustrative, see Shepard Citations for the cases citing with approval the Gorrell case. See also Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893; Council v. Dickerson's Inc., 233 N.C. 472, 64 S.E.2d 551; Jones v. Otis Elevator Co., 231 N.C. 285, 56 S.E.2d 684. The reasons why a court should adhere to conclusions deliberately reached in prior cases was well stated by Johnson, J., in Williams v. Randolph Hospital, 237 N.C. 387, 75 S.E.2d 303, 305: "The salutary need for certainty and stability in the law requires, in the interest of sound public policy, that the decisions of a court of last resort affecting vital business interests and social values, deliberately made after ample consideration, should not be disturbed except for most cogent reasons." Ward v. Cruse, 234 N.C. 388, 67 S.E.2d 257; State v. Dixon, 215 N.C. 161, 1 S.E.2d 521; Wilkinson v. Wallace, 192 N.C. 156, 134 S.E. 401; Fowle & Son v. O'Ham, 176 N.C. 12, 96 S.E. 639; Hill v. Atlantic & N. C. R. Co., 143 N.C. 539, 55 S.E. 854, 9 L.R.A., N.S., 606. The contract here under consideration bears evidence, we think, that Tide Water and Beaufort were advertent to and recognized the rule in the Gorrell and other cases which followed. The contract provides: "The party of the first part shall not be liable for any failure or neglect to supply service to the said hydrants by reason of strike or accident beyond its control." (Emphasis supplied.) Here was apparently a recognition of the water company's right as declared by Brown, J., in Morton v. Washington Light & Water Co., supra. He said: "It could easily have been made to appear from the contract, if such was the agreement of the parties, that the defendant was dealing exclusively with the city, and was accountable only to it." Had it been the intent of the parties to the contract under consideration to deny a right of action to a property owner injured by failure to furnish water for fire protection, 379 more inclusive language would have been chosen. We are not justified, under the facts here presented, in reversing the rulings made in Gorrell v. Greensboro Water Co., supra; Morton v. Washington Light & Water Co., supra, and Powell & Powell v. Wake Water Co., supra. Is the contract so indefinite that the intent and agreement of the parties cannot be determined? Certainly failure to include a date on which the contract would expire cannot relieve defendant of the duty to comply so long as it recognizes the contract as a continuing one. Defendant might have the right to terminate upon reasonable notice, Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368, but defendant did not defend on the ground that the contract was not in force at the time of the fire. To the contrary, the evidence tended to establish that the parties thereto recognized the contract as being in effect. Defendant's contention that the contract does not show an agreement on its part to provide water for fire protection is, we think, without merit. True the contract does not in express language so provide, nor does it prescribe the quantity of water to be furnished or the pressure to be maintained. It does, however, obligate defendant to furnish and maintain "fire hydrants." It obligates Beaufort to use and pay the rental fixed for the hydrants furnished. It exculpates defendant from liability for failure "to supply service to the said hydrants by reason of strike or accident beyond its control." The order of the Utilities Commission, based on the joint application of Beaufort and defendant seeking approval of the sale by Carolina Power & Light and rates to be charged, provided: "Water in excess of present ordinary city's requirements for flushing sewers, streets, and fire protection to be metered and billed." (Emphasis supplied.) It is, we think, apparent that the parties contemplated that defendant would exercise reasonable care to provide such water supply and pressure to the hydrants as might be reasonably necessary to accomplish the purpose for which the contract was made, that is, to furnish fire protection to property in Beaufort. The agreement to provide and maintain the fire hydrants is analogous to a sale of an article by a manufacturer for a particular purpose, that is, to provide fire protection. Such sale imposes an obligation to provide an article reasonably suitable for the purpose for which it is purchased. Southern Box & Lumber Co. v. Home Chair Co., 250 N.C. 71, 108 S.E.2d 70; Stokes v. Edwards, 230 N.C. 306, 52 S.E.2d 797. The rule finds a parallel in contracts for services. Hazelwood v. Adams, 245 N.C. 398, 95 S.E.2d 917; Hagan v. Jenkins, 234 N.C. 425, 67 S.E.2d 380; Ivey v. Bessemer City Cotton Mills, 143 N.C. 189, 55 S.E. 613; Annotations to Robertson v. Wolfe, 49 A.L.R. 473; 35 Am.Jur. 530. The Court of Appeals of Kentucky said with respect to a similar situation: "When a public service corporation such as a gas company obtains the privilege of occupying and using the streets for a particular public service that will be beneficial to the people of the city, and there is no express contract between it and the city defining its duties and obligations, the law will raise an implied and enforceable contract to take the place of the omitted express contract, and imposes on the company the obligation to render the service that was reasonably within the contemplation of the parties when the contract was made." Humphreys v. Central Kentucky Natural Gas Co., 190 Ky. 733, 229 S.W. 117, 119, 21 A.L.R. 664. Plaintiffs have stated a cause of action based on the negligent failure to reasonably comply with its contract. The total failure to furnish water under the existing conditions for a period of time variously estimated at from thirty minutes to one and one-half hours is sufficient to *380 support a finding of negligence. The court placed the burden of establishing negligence on plaintiffs. Defendant took no exception to this portion of the charge. It has neither pleaded nor offered evidence that its failure to perform was due to a strike or accident. To exculpate itself on either of these grounds, it would carry the burden of proof. Fallins v. Durham Life Insurance Co., 247 N.C. 72, 100 S.E.2d 214; Thomas-Yelverton Co. v. State Capital Life Insurance Co., 238 N.C. 278, 77 S.E.2d 692; Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16; Jones v. Waldroup, 217 N.C. 178, 7 S.E.2d 366; Pasquotank & N. R. Steamboat Co. v. Eastern Carolina Transportation Co., 166 N.C. 582, 82 S.E. 956. The other assignments of error have been examined. We find nothing to indicate prejudicial error. None is of sufficient importance to require discussion. No error.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619212/	96 Ariz. 309 (1964) 394 P.2d 423 John Edward FITZPATRICK, Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of Arizona, Appellee. No. 7329. Supreme Court of Arizona. En Banc. July 21, 1964. 310 Jack C. Cavness and Walter W. McMillen, Phoenix, for appellant. Robert W. Pickrell, Atty. Gen., and Charles T. Stevens, Sp. Asst. Atty. Gen., Phoenix, for appellee. LOCKWOOD, Vice Chief Justice. Dr. John Edward Fitzpatrick, appellant, applied to the Board of Medical Examiners of the State of Arizona, hereafter designated as Medical Board, for a license to practice medicine. The Medical Board denied his application on the ground that he was guilty of unprofessional conduct in that he practiced medicine without a license in the State of Arizona in violation of § 32-1456 311 A.R.S.[1] Dr. Fitzpatrick petitioned the superior court for a review of the action of the Medical Board pursuant to § 32-1453 A.R.S. The petition sought a reversal of the action of the Medical Board on the grounds that (1) its decision was unsupported by competent material and substantial evidence in view of the entire record, and (2) that the decision was arbitrary and capricious. The matter was submitted to the superior court on motions for summary judgment. The court granted the respondents' motion and entered summary judgment for the Medical Board. The petitioner thereupon appealed. The facts appear as follows: The White Mountain Communities' Hospital, Inc. Board of Directors, hereafter designated Hospital Board, desired to open a hospital at Springerville, Arizona. In order to take advantage of a promised donation of $10,000, it was necessary that the hospital be opened by July 1, 1960. Merle Harper was President of the Hospital Board. R.V. Vandiver was the hospital administrator hired by the Hospital Board. It was necessary to secure a medical doctor to operate the hospital. Since there was no medical doctor in the area which the hospital would serve, the Hospital Board instructed the administrator to contact and hire a doctor. The administrator contacted Dr. John Edward Fitzpatrick, who was a licensed medical doctor practicing in Clovis, New Mexico. Early in June of 1960, Dr. Fitzpatrick made application for a license to practice in Arizona. In the latter part of June, the doctor came from New Mexico to Springerville, but did not then enter the practice of medicine there. Sometime before July 1st he telephoned Dr. Roy Young a member of the Medical Board who was in Flagstaff, Arizona and asked what could be done to expedite the obtaining of a license or temporary license. Dr. Young told Dr. Fitzpatrick: "Don't touch a patient until you get your license." Thereafter Dr. Fitzpatrick continued to refrain from practicing medicine in Arizona, until July 1st. Being anxious to open the hospital on or before July 1st so that the promised $10,000 donation would be forthcoming, one of the members of the Hospital Board contacted the Governor of Arizona in regard to Dr. Fitzpatrick's license. Thereafter, about a day or two before July 1st, Mr. Robert Carpenter, the Executive Secretary of the Medical Board in Phoenix, at the request of a member of the Medical Board (who had been contacted by the Governor) telephoned Mr. Harper. In the telephone conversation, Mr. Carpenter told Mr. Harper there was no way that Dr. Fitzpatrick could get a temporary license or permit before 312 July 1st. Mr. Carpenter stated the Medical Board was to meet on or about July 16. During the conversation Mr. Harper asked if there were any possibility that the hospital might be opened in time to secure the promised donation. Mr. Carpenter stated that there were several hospitals in the state who had resident staff physicians not licensed in the State of Arizona, and that they were hired and paid by the Hospital Board of Directors. Mr. Carpenter also stated that he did not have authority to "ok" such a procedure. The Hospital Board president, in the presence of the administrator, told Dr. Fitzpatrick that Mr. Carpenter "gave us the go-ahead signal," and that if the hospital hired Dr. Fitzpatrick, the latter could practice in the hospital. Dr. Fitzpatrick asked whether they should wait for written confirmation, but Mr. Harper assured him this was unnecessary. The Hospital Board hired Dr. Fitzpatrick as a resident physician. Dr. Fitzpatrick then engaged in the general practice of medicine in the hospital in Springerville from July 1 to July 14. During the course of the usual investigation of Dr. Fitzpatrick's application for an Arizona license, the Medical Board discovered that Dr. Fitzpatrick had been acting as the resident physician in the White Mountain Communities' Hospital. On July 16 the Medical Board held an interview with Dr. Fitzpatrick regarding his application for a license. The interview was reduced to writing. The attorney for the Medical Board, a Special Assistant Attorney General, was present throughout the entire interview. Numerous questions were put to Dr. Fitzpatrick. He frankly admitted he had been practicing medicine in the hospital at Springerville after July 1st. But he explained he had done so because he had been assured by Hospital Board members that the Medical Board Executive Secretary said it was all right to do so as a resident physician until his license came through. The Medical Board told Dr. Fitzpatrick that his application would be denied at that time solely on the basis of his practicing at Springerville without a license. He agreed he would no longer practice in Arizona and would have to return to New Mexico. During the course of the discussion Dr. Fitzpatrick was told the Medical Board had been advised it was their duty to report to the County Attorney the commission of a felony (violation of § 32-1456, supra). The Medical Board told Dr. Fitzpatrick that he could withdraw his application but, if he did not, he would be cited for unprofessional conduct. Dr. Fitzpatrick refused to withdraw the application and the Medical Board thereafter formally cited him to appear before them to show cause why his application should not be denied, pursuant to § 32-1452 A.R.S. He was charged with being guilty of unprofessional conduct in 313 that he had engaged in the practice of medicine without a valid recorded license to do so. A hearing was had before the Board of Medical Examiners on October 14, 1960. Dr. Fitzpatrick, Mr. Harper, Mr. Vandiver, and Robert Carpenter testified. There was no substantial conflict in the testimony of any of the witnesses. Harper maintained that although the Secretary of the Medical Board, Carpenter, had said he had no authority to approve the hiring of an unlicensed resident physician by the Hospital Board, Carpenter had made the suggestion that this was a practice in other hospitals in the State, and, therefore, Harper felt the way had been cleared for the Hospital Board to hire Dr. Fitzpatrick and open the hospital and "still stay within the law." Mr. Carpenter admitted that he had talked with Mr. Harper, and had told Mr. Harper that Dr. Fitzpatrick's application and credentials were in order although the Board was routinely investigating the matter regarding a regular license. He further stated that he had mentioned the practice of several Arizona hospitals hiring house staff physicians, but had stated there was some question as to the legality of the practice and that the Medical Board could not suggest or recommend such practice but such decision "must be that of the Hospital Board and it must assume full responsibility therefor." Dr. Fitzpatrick again confirmed that Mr. Harper had hired him and had told him that the way had been cleared for him to act as resident physician in the hospital although he had not yet received an Arizona license Dr. Fitzpatrick freely admitted that he had practiced medicine as the resident physician in the hospital under these circumstances. However, it was his position that he relied on the Hospital Board's assurance that this procedure had been cleared with the Executive Secretary of the Medical Board, as entirely legal, and that he believed his license would be forthcoming on July 16th. He knew that he had not been promised an Arizona license, but his papers were in order and he supposed that it would be issued. The Board of Medical Examiners formally denied the issuance of a license to Dr. Fitzpatrick in the following language: "It is the findings of this Board that said JOHN EDWARD FITZPATRICK, M.D. is guilty of unprofessional conduct in that he is guilty of practicing medicine without possessing a valid recorded license of this state in violation of Section 32-1456 A.R.S. and it is therefore ordered that the application of JOHN EDWARD FITZPATRICK, M.D. to practice medicine and surgery in the State of Arizona be denied." (Emphasis supplied.) 314 It is the position of the appellant that the Medical Board in determining what constitutes unprofessional conduct, is restricted to the definitions set out by the Legislature in § 32-1401 A.R.S.[2] It is obvious that only subparagraph (l) could be applicable in determining unprofessional conduct in this case. Appellant claims that it is not applicable, and cites Aiton v. Board of Medical Examiners, 13 Ariz. 354, 114 P. 962, L.R.A. 1915A, 691 (1911), as authority for the definition of "unprofessional conduct". However, the Aiton case was decided before a legislative definition of the words "unprofessional conduct", and therefore has no application here. Appellant contends that because the Legislature preceded subparagraph (l) by an enumeration of specific acts of conduct constituting unprofessional conduct, we should apply the rule of ejusdem generis in interpreting the general words used in subparagraph (l), to the end that the general words would apply only to the same general nature and class as the preceding specific enumerations. We do not agree. Such a rule is merely a device for ascertaining the true meaning of the Legislature when it is not clear. Ackerman v. Boyd, 74 Ariz. 77, 244 P.2d 351 (1952). Subparagraph (e) clearly enumerates two separate and distinct items of unprofessional conduct, i.e., (l) "[a]ny conduct or practice contrary to recognized standards of ethics of the medical profession" and (2) "any conduct or 315 practice which constitutes a danger to the health, welfare or safety of a patient or the public." There was no evidence at the hearing on October 14, 1960, of any conduct or practice on the part of Dr. Fitzpatrick which constituted a danger to the health, welfare, or safety of a patient or the public. Therefore the findings of the Medical Board were based solely upon the premise the conduct of Dr. Fitzpatrick was "contrary to recognized standards of ethics of the medical profession." The Medical Board specifically found that the conduct in question was the violation of § 32-1456, supra. While there is no specific finding to the effect that a doctor who violates the law is guilty of unprofessional conduct, the implication that this is a standard of unprofessional conduct is obvious. Certainly we would agree that as a general standard this criterion could and should be applied in every profession in the interests of good citizenship. A professional board, authorized to pass upon qualifications of applicants for a license to practice the profession, however, is not a court for determination of guilt or innocence of an alleged crime. Proceedings before such a board are not required to conform in every respect to those controlling in strictly judicial proceedings. State Board of Technical Registration v. McDaniel, 84 Ariz. 223, 326 P.2d 348 (1958). In a criminal trial, the issue is to determine the guilt or innocence of the defendant in the commission of a specific crime. While ordinarily a criminal intent must exist in order to support the conviction of a crime, it is also true that the Legislature may enact a law making certain conduct a crime in the absence of a criminal intent. Borderland Con. Co. v. State, 49 Ariz. 523, 68 P.2d 207 (1937). Such a law is designated malum prohibitum and the mere doing of the act prohibited constitutes the crime. Section 32-1456 is such a law. Although extenuating circumstances would be no legal bar to conviction, they would certainly be important factors in determining a penalty, and might even warrant granting of probation. We are of the opinion that a professional board, authorized by statute to pass upon qualifications for licensing, should be no less hesitant to take into consideration extenuating circumstances which may exist when an applicant for license has committed a legal offense. In the present case, the evidence presented before the Board was (1) that Dr. Fitzpatrick did practice medicine without having secured an Arizona license; (2) that he purposely refrained from general practice, confining his practice to the hospital; (3) that he believed the Hospital Board had secured an official opinion that such practice was legally permitted; (4) that the source of such opinion was the Medical Board's own Executive Secretary; (5) that even if the Executive Secretary did not actually authorize 316 Dr. Fitzpatrick to engage in practice at the hospital as a "resident physician" the Secretary's telephone conversation justified the Hospital Board and Dr. Fitzpatrick in believing they would not be violating the law by such conduct. Such circumstances do not constitute a legal defense to the criminal charge of violation of § 32-1456, supra. But they do demonstrate a lack of intent to violate the law. While we cannot say the Hospital Board and Dr. Fitzpatrick were entrapped, certainly the evidence strongly indicated the doctor was induced into a course of action in reliance on what he believed were assurances from the recognized agent of the official board of his own profession.[3] Under such circumstances, we believe there was not sufficient material and substantial evidence in view of the entire record to support the findings of the Medical Board that Dr. Fitzpatrick was guilty of unprofessional conduct merely because there was technical violation of § 32-1456. We further believe that the decision to deny a license to Dr. Fitzpatrick upon such evidence was arbitrary. The judgment of the superior court affirming the order of the Board of Medical Examiners is reversed. The Board of Medical Examiners is directed to reinstate the application of Dr. Fitzpatrick for consideration without reference to the charge of unprofessional conduct based upon the purported violation of § 32-1456 involved. UDALL, C.J., and STRUCKMEYER, BERNSTEIN and JENNINGS, JJ., concur. NOTES [1] A.R.S. § 32-1456 " * * B. A person who practices or attempts to practice medicine or surgery without having a valid recorded license to so practice issued by the board of medical examiners is guilty of a felony." [2] A.R.S. § 32-1401: "1. * * * "2. `Unprofessional conduct' includes: "(a) Procuring, or aiding or abetting in procuring a criminal abortion. "(b) Wilful betrayal of a professional secret. "(c) Advertising medical business which is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons, and so be harmful or injurious to the public morals or safety. "(d) Advertising any medicine or any means whereby the monthly period of women can be regulated or the menses re-established if suppressed. "(e) Conviction of an offense involving moral turpitude, in which case the record of such conviction shall be conclusive evidence. "(f) Giving or receiving rebates. "(g) Habitual intemperance in the use of alcohol or narcotic drugs. "(h) Personation of another licensed practitioner of medicine and surgery of a like or different name. "(i) Having professional connection with or lending one's name to an illegal practitioner of medicine or any of the healing arts. "(j) Gross malpractice resulting in death of a patient. "(k) Fraudulent representation that a manifestly incurable condition of sickness, disease or injury of a person can be permanently cured, or that a curable condition of sickness, disease or injury can be cured within a stated time if such is not a fact. "(l) Any conduct or practice contrary to recognized standards of ethics of the medical profession or any conduct or practice which constitutes a danger to the health, welfare or safety of a patient or the public." [3] Cf. State ex rel. Williams v. Whitman, 116 Fla. 196, 156 So. 705, 95 A.L.R. 1416 (Fla. 1934), wherein dental board revoked license of dentist on ground of violation of statute. The statute had been declared unconstitutional by a circuit court when the alleged violation occurred. Florida Supreme Court later reversed, holding the law valid. Held, in reversing dental board: That for a dentist to "be guilty of" violation of law as to subject his license to revocation, there must be a "conscious and culpable act amounting to a willful design to do that which is denounced as unlawful professional practice" and not an act done in recognition of supposed correctness of judicial decision that such an act was lawful.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3098079/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00372-CR Deondra Redic § From the 396th District Court § of Tarrant County (1307042D) v. § October 10, 2013 § Per Curiam The State of Texas § (nfp) JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed. SECOND DISTRICT COURT OF APPEALS PER CURIAM	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1905773/	559 So.2d 1321 (1990) STATE of Louisiana v. John Francis WILLE. No. 87-KA-1309. Supreme Court of Louisiana. March 12, 1990. Rehearing Denied April 5, 1990. 1323 William J. Guste, Jr., Atty. Gen., John M. Crum, Jr., Dist. Atty., Thomas Daley, George Ann Hayne Grougnard, Asst. Dist. Attys., for appellee. Michael S. Fawer, Denise LeBoeuf, New Orleans, for appellant. LEMMON, Justice. This is an appeal from a conviction of first degree murder and a sentence of death. The principal issues on appeal involve (1) the admission of hearsay testimony by a Federal Bureau of Investigation (FBI) agent relating to his interview with defendant's girlfriend and the girlfriend's daughter, who were witnesses to the murder and did not testify at trial; (2) the admission of pretrial identification testimony 1324 by a fast food store employee without requiring her to identify defendant at trial as the person she saw in the area on the night of the murder; (3) the denial of a mid-trial request for a recess to secure the presence of two witnesses; (4) the invalidity of an aggravating circumstance found by the jury; (5) requiring defendant's girlfriend's daughter to plead the privilege against self incrimination before the jury; and (6) the actual conflict of interest between defendant and his trial attorney.[1] Facts These proceedings arose out of the June 2, 1985 abduction, rape and murder of eight-year old Nichole Lopatta. This tragic episode began when defendant, accompanied by his girlfriend, Judith Walters, and Walters' fourteen-year old daughter, Sheila, drove from their residence in Milton, Florida to Louisiana, where defendant had lived most of his life. After they entered Louisiana, defendant stopped to pick up an acquaintance, Billy Phillips, who was hitchhiking on the highway. Defendant had been drinking alcohol during the trip, and he continued drinking with Phillips as they drove into New Orleans. The following excerpts from defendant's tape-recorded confession, given on August 27, 1985 while he was in custody in Florida on unrelated charges, vividly relate the events surrounding the murder:[2] A. Uh, he [Phillips] had started talking about he had screwed several other young girls. Q. By young, what did he mean by young? A. Around eleven, twelve, thirteen years old.... He said there was this young girl he wanted to go pick up and take her riding.... He started giving directions. Q. Are you on the Westbank now? A. On the Westbank. And, we stopped there and he gets out the car, he goes and . . . . . Q. Then what happened? A. He come back to the car with the little girl and Q. This little girl is Nicole Lopata (sic). A. Uh, huh. Q. Okay, go ahead. A. And well, we just left and went riding, you know, a little while later he fixed me another drink. Q. Where is the girl sitting? A. In the back seat. Q. Where is Billy sitting? A. In the back seat, too. . . . . . Q. Tell us exactly what Billy was saying? A. Asked me if I'd ever screwed anybody real young. He told me that I ought to try it. I told him it wasn't my game and it shouldn't be his. Q. Okay, then what happened? A. He kept rubbing, you know, saying you know man, come on man, don't be no chicken, come on do it, man. . . . . . Q. Then what happened? A. He ended up talking me into doing it. Q. Where did this take place, John? A. I guess back on 51 [Highway 51 north of LaPlace]. Q. Were you in the car, out of the car, or where? A. Out of the car. 1325 Q. Who was there at the time? A. Me and Billy. Q. And who else? A. Sheila and Judy they were in the car. . . . . . Q. Tell me what happened in the sequence of events, who did what, when. Will you do that for me, please? A. Little Billy screwed her first, then I did, then he did again. Q. This is all in her vagina. A. Yea, and then, you know, he kept beating on her, you know. Q. He kept what? A. Beating on her. Q. He kept beating on her. A. She wouldn't behave, she wouldn't be still at least. . . . . . Q. Did you or Billy or both put your penises in her mouth. A. Billy did. She bit him, I'd expect any young girl would do that. Q. What happened? What did Billy do when she bit him? A. He punched her. Q. Where did he punch her at? A. Punched her once in the head. She cried out. Q. Was heDid he have his penis in Little Nicole's (sic) mouth while you were having your penis in her vagina, was that going on at the same time? A. Yes. . . . . . Q. When he hit her and she started crying, what happened after that? A. I stopped, sat down on the side. Q. What did he do? A. He continued on doing what he wanted to. Q. What was that? A. Screwing her in her behind. Q. Was she still alive then? A. Yea, she screamed two or three times. Q. What did she scream out, John? A. She called for her mama. Q. Calling her mama? A. Yea. Q. What happened then after he was having anal intercourse with her, what happened then? A. The more she'd yelled the more he'd beat her. . . . . . Q. How do you think she died? John. How did she really die? A. I smothered her to get her out of her misery. Q. Did you do that? A. Yes, I did. Q. To put her out of her misery. You smothered her to put her out of her misery. She was in awful pain wasn't she John? What's your answer? A. Yes. Q. Okay. Did you choke her or did you smother her? A. A little of both. Q. A little bit of both. Did you choke her first and then smother her, or did you smother and then choke her? A. Smothered her and then she passed out. Then I choked her. Q. And then you choked her after she passed out? A. Yes. . . . . . Q. Tell me about little Nicole (sic) after she was dead. Were you sure she was dead after you finished choking her? A. No, I wasn't. She just wasn't moving. Q. Did she have her eyes open or closed when she died? 1326 A. Open. Q. Open. Was her face badly beaten? A. Billy split her face a couple of times with his fist. Q. Okay. Did you or Billy have intercourse with her after she was dead? John did you see Billy do that? A. Yes. It pissed me off. I was sitting there just freaking out and I looked up and this motherfucker was back on her again. Q. Where was he, where is he inserting his penis? A. Up her rectum. Q. Up her rectum. A. Up her vagina. Q. He was, he then had sexual intercourse in both her vagina and her rectum after she was dead? A. Yea. Q. John did you? A. No, I didn't, not that I remember. Q. Do you think you might have? A. It's possible, I don't know. Q. Did Billy ask you to? A. Billy was saying try this, try that, try this. Q. Do you think maybe you did? A. As fucked up as I was, probably. Q. John, in reality what do you remember, did you, did you? I know this is hard John, did you have intercourse with that little girl's dead body? A. Yes, I did. Q. Did you have intercourse in her anus after she was dead? A. Yes. Q. Did you have intercourse in her vagina? A. Yes. . . . . . Q. Why don't you tell us about what happened that made you kill Billy Phillips? A. It just got me mad. Q. Why? A. He talked me into doing something that I didn't want to do. And then he was going to fuck with my girlfriend and my daughter. Q. What happened? A. I flipped out. Q. Okay, then what happened? A. I started stabbing him and shit. I knocked him down on the ground and sat on him and just kept stabbing him, stabbing him, and stabbing him, stabbing him. Q. Then what happened? A. I tried to cut his prodicals off. Q. You mean his penis and balls? A. Yea. Q. Alright. Then what happened? A. I got a hacksaw out of the tool box in the trunk. I cut his hand off. Q. Why did you cut his hand off? A. So if the son of a bitch would die wasn't dead, he wouldn't fuck with nobody else. Bled to death. Q. What did you do with his hand? A. Kept it and disposed of it at Popeyes. . . . . . Q. You put, you and Judy put Billy's body in the trunk and you put Nicole's (sic) body in the back seat, where'swhere's Sheila? A. In the front seat. . . . . . Q. Okay. Then what happened? A. I wanted to get rid of the bodies. I disposed of Billy's body over the side of the bridge. . . . . . Q. Alright, and you were looking for a place to deposit Nicole's (sic) body, is that right? A. Yes. 1327 Q. What did you do? A. Got out and put her out of the car. Q. You put who out? A. Nicole (sic). Q. How did you put her out? A. I picked her up. Q. Okay. A. And carried her. Q. Alright. A. To the woods. Q. Alright. Then you're on 51 again, is that correct? A. Yes. I think we went to New Orleans, I'm not sure, I think. Q. Okay. Where did you go? A. To a Popeye's Chicken. . . . . . Q. While Judy is ordering something inside Popeye's, what were you doing, if anything? A. Getting all the evidence together to get rid of it. Q. What evidence is that? A. Knife and hacksaw. Q. The knife and hacksaw? Anything else? A. The hand. Q. Billy's hand. A. Yea. . . . . . Q. Alright. Then what did you do? A. Put the stuff in the bags and put it in the garbage can. . . . . . Q. Then what did you guys do? What happened then? A. We headed back towards Florida. After the tape-recorded interview defendant made an additional verbal statement which an FBI agent reported as follows: He stated that during his sexual intercourse with the little girl he had achieved sexual orgasms. He stated that he was able to achieve sexual orgasms with the little girl before her death and after her death. WILLE further admitted that after he had dumped the little girl's body, he engaged in anal intercourse with her dead body. He said that WALTERS had followed him down to where he had dumped the little girl's body. He stated that while he was engaging in anal intercourse with the dead girl he dragged WALTERS over to him by her hair. He stated that he threatened her. He told her that he would kill her if she ever told anyone about what had happened to the little girl or BILLY. WILLE admitted that he achieved a sexual orgasm while having anal intercourse with the dead girl. WILLE went on to state that he immediately wanted to have vaginal intercourse with WALTERS. WILLE stated that he did so in the old fashion "man on top" position. WILLE stated that he also achieved a sexual orgasm with WALTERS. WILLE stated that he is not sorry for killing BILLY and BILLY deserved to die. WILLE concluded by looking at SA SCOTT and making the following statement, "I think I just put my ass in the electric chair." According to the victim's mother, the child was kidnapped late in the afternoon of June 2, 1985. The bodies were discovered in separate locations on June 6, 1985. The autopsy report on the child indicated death by strangulation, as well as a broken jaw with three different areas of fracture, violent tearing of the vagina and rectum, blunt injuries to the chest, and a fractured skull. Phillips' body had been stabbed eighty times, and one hand had been cut off. His inner thigh was also mutilated. Deborah Davis, an employee of Popeye's Fried Chicken in Kenner, positively identified defendant in a photographic lineup as the person who asked for two empty bags on the night of the murder. On the basis of defendant's confession and the corroborating evidence the jury 1328 found defendant guilty of first degree murder.[3] After the presentation of additional evidence in the bifurcated sentencing phase the jury recommended a sentence of death. The jury unanimously found the existence of three aggravating circumstances: (1) the offender was engaged in the perpetration or attempted perpetration of an aggravated rape and an aggravated kidnapping; (2) the offender had been previously convicted of an unrelated murder; and (3) the offense was committed in an especially heinous, atrocious, or cruel manner. See La.C.Cr.P. art. 905.4(a), (c) and (g). Hearsay Testimony Defendant urges that the trial court erred in allowing FBI Special Agent Victor Harvey to testify as to the substance of assertions made by Judith and Sheila Walters in interviews conducted by Harvey. Even though Judith and Shelia Walters did not appear as witnesses in this case, Agent Harvey was allowed to testify as follows: A. We had, once again, the usual investigative steps, but no real suspects. This continued for approximately two months, from the 6th [of June] to the, about August the 10th, when one of the agents assigned to the task force advised that perhaps we should go to Milton, Florida. Specifically to interview one Judy Walters of Norco that may have some, some information concerning the Lopatta killing. Myself and another agent traveled to, to Milton, Florida. And on the 10th of August interviewed Miss Walters for an extensive period. Based upon the information supplied, and the investigative conclusions that we were able to draw, we were able to force or focus our entire investigative attention on Judy Walters and her alleged boyfriend, John Wille. John Wille, based upon not only the interview of the 10th but all of the interviews with Miss Wille, I mean Miss Walters, immediately became a prime suspect in this matter. Through Walters' information we were able to determine that her daughter might have information, Sheila Walters. We interviewed her on two difference [sic] occasions and became certain that John Wille was, was our prime suspect. . . . . . Q. So what what did you do at that time? A. All right. Like I said, one of, we interviewed Miss Walters on numerous occasions. Each time she would tell us more about the crime, more specific facts, things that were, were possible to cooberate [sic]. One of the first things we did, of course, was show her a picture of the child to make sure that we were dealing with, with the same abduction. There are abductions going on all over the country. Miss Walters had (Interrupted by objection) . . . . . A. Yes, sir. Based upon the series of interviews with Miss Walters our investigative conclusion became very strengthened that John Wille was responsible for these, these crimes. These crimes being both the murders we've discussed. Further cooberation [sic] was, as to this conclusion, was, was, furnished by the two interviews of her daughter. . . . . . Q. After that what was done? A. Based upon the peculiarity of the story as it was related to me personally I asked prior to the formal interview of Mr. Wille that Miss 1329 Walters be brought back to this area and her story physically retraced as to times, dates, movements. This was also done in my presence and recorded by me. I have a log of that. Once again, this meshed chronologically and totally with her, with her, with her evidence that she had supplied to me concerning Mr. Wille. I have that available. On the 27th I asked that Special Agent Terry Scott and Lieutenant Boy Hay of this Sheriff's Office formerly interview Mr. Wille. They did. Mr. Wille furnished them with a taped statement as to his involvement in both murders. . . . . . Q. After, what did you do after this was done? A. Based upon, based upon the statements given, the fact that the information and the statements matched the, matched the peculiarity of the offense, and the other information I mentioned, the State, I prepared and submitted a report, and the State charged Mr. Wille with the crimes he's on trial here for. Q. Was Sheila Walters ever interviewed? A. Yes, sir. I personally interviewed Sheila Walters, the fourteen year old daughter of Judy Walters, on two occasions and she completely cooberated [sic](interrupted by objection). (emphasis added). Although defense counsel entered several hearsay objections about identification of the victim and corroboration of the eyewitnesses' statements, Agent Harvey was permitted to testify that assertions by the eyewitnesses to the murder had led him to conclude defendant was the prime suspect and to become "certain" defendant was responsible for the two killings. Defendant argues that the jury could only conclude from Harvey's testimony that Judith and Sheila Walters had told him defendant was the murderer while admitting to their own involvement in the events. Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, when the statement is being offered as an assertion to show the truth of matters asserted therein and thus rests for its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978); La.C.Evid. art. 801(C). One of the primary justifications for the exclusion of hearsay is that the adversary has no opportunity to cross-examine the absent declarant to test the accuracy and completeness of the testimony. The declarant is also not under oath at the time of the statement. Moreover, the confrontation clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him". U.S. Const amend. VI. There is no opportunity for confrontation when an assertion by one party is presented through the testimony of another party. The relationship between the confrontation clause and hearsay evidence was discussed in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The Court recognized that the reasons for excluding hearsay assertions were (1) to insure that the witness will make his assertions under oath, thus impressing him with the seriousness of the matter and subjecting untrue statements to a penalty for perjury; (2) to force the witness to submit to cross-examination, characterized as the "greatest legal engine ever invented for the discovery of truth"; (3) to permit the jury which decides the defendant's fate to observe the demeanor of the witness in making his statements, thus aiding the jury in assessing the witness' credibility. Id. at 158, 90 S.Ct. at 1935. Many decisions have additionally recognized the inherent unreliability of hearsay statements by accomplices who do not appear at trial. In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), 1330 the defendant and co-defendant were charged with committing a double murder and were tried jointly in a bench trial in which neither defendant testified. The Court held that the trial court's reliance on the co-defendant's confession as substantive evidence against the defendant violated the defendant's right under the confrontation clause. The Court stated: Our cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination. As has been noted, such a confession `is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally.... More than this, however, the arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence. Id. at 541, 106 S.Ct. at 2062 (citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). Because the conviction of the defendant was based, at least in part, on this unreliable evidence, the Court reversed the conviction. In State v. Dupree, 377 So.2d 328 (La. 1979), this court reversed the defendant's conviction obtained on the basis of hearsay testimony. The trial court had permitted police officers to narrate statements given by accomplices that implicated Dupree in the crime, although those accomplices did not testify. The officers testified that the accomplices named the defendant as the instigator of the plan to bomb a car. This court noted that these statements, which were made to the police during the custodial interrogation following their arrests, were not made in furtherance of the conspiracy and did not fall within the co-conspirator exception to the hearsay rule. Thus, admission of the hearsay testimony constituted reversible error which deprived the defendant of his right to confront and cross-examine the witnesses against him. In the present case the prosecutor, citing State v. Calloway, 324 So.2d 801 (La.1976), State v. Monk, 315 So.2d 727 (La.1975), and State v. Smith, 400 So.2d 587 (La.1980), argues that testimony by a police officer, as to his action taken in response to a person's out-of-court statement, is admissible, not to prove the truth of the out-of-court statement, but to explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer. However, those cases are distinguishable from the present case. The substance of Officer Harvey's testimony in the present case was that two eyewitnesses named defendant as the perpetrator of the crime, while the substance of the out-of-court assertions in the cited cases did not significantly connect the defendant with the crime.[4] 1331 Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer's presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. McCormick on Evidence § 249 (E. Cleary 3d ed. 1984).[5] Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. Id. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule.[6] G. Pugh, Louisiana Evidence Law 429-431 (1974). When an out-of-court statement, such as information received by a police officer during an investigation of a crime, has both an impermissible hearsay aspect and a permissible nonhearsay aspect, the issue of relevancy becomes significantly interrelated with the hearsay issue. If the nonhearsay content of the statement has little or no relevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhearsay evidence should not be used as a vehicle to permit the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial. There was no true issue in the present case as to the propriety of any action taken by Agent Harvey during his investigation of the Lopatta murder. Indeed, an investigating officer's testimony at trial (as opposed to testimony at a motion to suppress), explaining his conduct after an investigation, almost always has only marginal relevance at best.[7] The real purpose of Harvey's testimony in the present case about the information received from Judith and Sheila Walters was to place before the jury the fact that their statements had named defendant as the 1332 killer of Nichole Lopatta.[8] The value of the statements rested upon the credibility of the out-of-court assertions. Because Judith and Sheila Walters did not testify, evidence of the fact that their statements named defendant as the killer was otherwise barred by the hearsay rule. Clearly, the extremely marginal relevance of Agent Harvey's testimony for the purpose of explaining his conduct in the investigation was greatly outweighed by the danger that the jury would use this testimony as substantive evidence that Judith and Sheila Walters had named defendant as the killer.[9] The only truly relevant information conveyed by Agent Harvey to the jury was his conclusion, after interviewing two eyewitnesses to the crime for which defendant was on trial, that defendant was the perpetrator and that the eyewitnesses' version of the events was completely corroborated by physical and other evidence uncovered by the investigation. Because the assertions related by Judith and Sheila Walters to Agent Harvey, the substance of which was conveyed to the jury, were presented almost solely for their relevance and assertive value in establishing defendant's guilt and were not given under oath or ever subjected to cross-examination, and because such assertions by accomplices are inherently suspect, the testimony should have been excluded as hearsay and irrelevant evidence. Nevertheless, the erroneous admission of the hearsay and irrelevant evidence does not require a reversal of defendant's conviction because the error was harmless beyond a reasonable doubt. Reversal is mandated only when there is a reasonable possibility that the evidence might have contributed to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Gibson, 391 So.2d 421 (La.1980); Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Confrontation errors are subject to a Chapman harmless error analysis. Delaware v. Van Arsdell, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case". Id. at 684, 106 S.Ct. at 1438. In the present case Agent Harvey's testimony regarding the statements by Judith and Sheila Walters was essentially cumulative of much more detailed information contained in defendant's own confession, the voluntariness and reliability of which have not been substantially challenged. Significantly, defendant's confession itself was otherwise fully corroborated by numerous evidentiary links between defendant, the victim and the crime. The victim was identified through her fingerprints; circumstantial evidence linked the disappearance of the victim with the arrival of defendant and others at the apartment complex; defendant was identified as the person who asked for a bag at Popeye's on the night of 1333 the murder; the locations of the bodies of Nichole Lopatta and Billy Phillips were found was consistent with defendant's statements regarding disposition of the bodies; and the physical evidence of the injuries sustained by Nichole Lopatta and Billy Phillips matched the details of the incident related by defendant. Thus, the prosecutor presented an extremely strong case consisting of a very detailed confession which was fully corroborated by physical, circumstantial and identification evidence. As the reviewing court, we conclude there is no reasonable possibility that Agent Harvey's erroneously admitted testimony, which conveyed undetailed information that two accomplices had named defendant as the perpetrator, contributed to the verdict.[10] The error was harmless beyond a reasonable doubt. See State v. Walters, 523 So.2d 811 (La.1988), a per curiam denial of certiorari in Judith Walters' case which corrected the intermediate court's recitation of an improper harmless error standard and concluded that the trial court had correctly admitted the "interlocking" statement of Sheila Walters. Identification by Deborah Davis Defendant contends that the trial court erred in allowing Deborah Davis, who was not called upon to identify defendant in court, to testify as to her out-of-court identification of defendant as the person who asked for a bag at Popeye's on the night of the murder. Relying on State v. Jacobs, 344 So.2d 659 (La.1977), defendant argues that a positive identification by Davis of defendant in court was a prerequisite to her testimony that she had previously identified a picture of defendant as the man she saw at Popeye's on June 2, 1985. In the Jacobs case the victim testified that the defendant "looked very much like" the perpetrator of the crime. The state then called several police officers who testified that the victim had made a positive identification of the defendant prior to trial at a photographic lineup. The court, distinguishing State v. Ford, 336 So.2d 817 (La. 1976), noted that an officer's testimony concerning a pretrial identification by a witness may be allowed to corroborate the testimony of the witness, but is inadmissible, because of its hearsay nature, when the witness does not testify about the pretrial identification, especially when the witness could not make a definite identification at trial. This court held earlier in Ford that the admission of hearsay identification testimony is not reversible error if the person who made the pretrial identification also testifies at trial as to the identification. The case at bar is factually more closely aligned with Ford than with Jacobs, where the positive pretrial identification was used to bolster a tentative identification at trial. In the present case Davis specifically testified, without objection, as to her pretrial identification of defendant's picture in a photographic lineup as the person who entered the restaurant on June 2, 1985 and asked for a specific size bag. Since there was no suggestion that Davis could not identify defendant in court, the fact that she was not specifically asked to make an identification in court relates only to the weight of her testimony regarding the photographic lineup. Moreover, Davis did answer affirmatively a question by defense counsel asking if Photograph No. 3 was "Mr. Wille's photograph". The record as a whole establishes that Davis' out-of-court identification, repeated by her at trial, referred to the accused who was in court at the trial. Finally, in United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), the Court allowed evidence that the witness had previously identified the defendant 1334 as his assailant, even though the witness could not remember at trial (because of injuries inflicted in the attack) enough details of the attack to positively identify the defendant in court. The Court concluded that the use of the witness' prior identification as substantive evidence did not violate the confrontation clause which insures only the opportunity to cross-examine a witness, and not necessarily cross-examination which is beneficial to the defendant. In the case at bar, even if Davis did not make (or could not make) a positive identification of defendant in court, her prior out-of-court identification would not necessarily be excluded because she was available for cross-examination. Mid-Trial Recess Defendant contends that the trial court erred in denying his mid-trial request for a recess to secure the presence of two witnesses crucial to his defense. Defendant argues that the testimony of Sandy Becker, a witness to his presence in Florida on the afternoon of June 2, 1985, and of Dr. William Rodriguez, a time-of-death specialist who might testify that Nichole Lopatta and Billy Phillips did not die within the same twenty-four hour period, was critical to the defense since there was no other evidence to cast doubt upon the accuracy of the confession. Defense counsel notified the prosecutor several days prior to trial of his intent to call Sandy Becker, who was then residing in Virginia, as an alibi witness. Counsel secured an order on December 1, 1986 to obtain Becker's attendance at the trial on December 6. During the state's case-in-chief Agent Harvey testified that Sandy Becker's name first arose during his initial interview with Judith Walters. According to Harvey, he contacted Becker, who had Walter's son at her home in Florida during the period of time in which the murder occurred, and she stated that she did not know defendant's whereabouts between May 29 and June 6. Two days before his trial testimony Agent Harvey recontacted Becker, who told him she definitely remembered that defendant was at her home in Florida in the early afternoon of June 2. After further questioning, Becker conceded that it could have been June 3. Harvey further testified that the drive from Florida to New Orleans takes four to four and one-half hours. When the state rested its case, defense counsel moved for a recess, stating that he had just learned Becker could verify defendant's presence in Milton, Florida on June 2, but had not spoken to Becker. The trial judge denied the motion, stating that the uncertainity of Becker's testimony did not warrant the recess. Defendant argues that he was entitled to have the jury assess Becker's credibility rather than to have the witness excluded on the basis of biased hearsay testimony. Both U.S. Const. amend. VI and La. Const. art. I, § 16 guarantee that a criminal defendant has the right of compulsory process and the right to present a defense. Defendant's claim of violation of his right to present a defense relates to the denial of his motion for a mid-trial recess. A motion for a recess is evaluated by the same standards as a motion for a continuance. State v. Warren, 437 So.2d 836 (La.1983). To be entitled to a recess to secure the presence of a witness, the defendant must establish that (1) the absent witness is expected to testify to material facts so that the presence of the witness at the trial is necessary; (2) the witness will probably be available at the time to which the trial is deferred; and (3) due diligence was used in an effort to procure attendance of the witness. La.C.Cr.P. art. 709. The decision on a motion for a recess lies within the discretion of the trial court and will not be overturned absent an abuse of that discretion. State v. Gordy, 380 So.2d 1347 (La.1980). Defendant did not introduce any evidence about the material facts to which Becker would be expected to testify. The 1335 only evidence in this regard came from Agent Harvey, who testified that Becker could not testify positively one way or the other. Moreover, any testimony by Becker that defendant was in Florida in the early afternoon of June 2 would not rule out defendant's presence in the New Orleans area in late afternoon. Defendant also failed to demonstrate that Becker would be available to testify at any time in the immediate future. Finally, defendant failed to demonstrate that due diligence was exercised in attempting to procure Becker's presence at trial. The existence of possible alibi witnesses was shown in defendant's November 26, 1986 motion for continuance, which noted that counsel learned five days earlier of potential alibi witnesses in Florida which the investigator furnished by the court was then in the process of interviewing. Despite the knowledge of both sides as to Becker's whereabouts prior to trial, only the state's investigator spoke to her. Significantly, if defendant was at Becker's home on June 2, he could have advised his attorney of that fact well in advance of trial. Considering the circumstances surrounding defendant's request for a recess in order to secure Becker's presence, we cannot say that the trial judge abused his discretion in denying the motion. The second aspect of defendant's argument is that he should have been granted the recess in order to secure the services of Dr. William Rodriguez, a time-of-death specialist. Defendant asserts that since the state did not supply the defense with copies of the photographs taken at the scene of the crime until December 5, 1986, the day before the state rested its case, Dr. Rodriguez did not receive the photographs in his Shreveport office until after the trial was over. According to the defense, the expert, after examining the photographs, concluded that the deaths of Lopatta and Phillips did not occur on the same day. On the other hand, the prosecutor points out that the autopsy records and photographs had been available to defendant for inspection since March 12, 1986 and that copies of all but one of the twenty-six photographs had been supplied prior to trial. The one photograph, which had been taken with an instamatic camera and could not be easily copied, was not supplied to the defense until the trial was almost complete. There is no indication in the record why the other available photographs and autopsy reports were not forwarded to Dr. Rodriguez prior to December 4, 1986 or why Dr. Rodriguez, the Director of Laboratories for the Caddo Parish Coroner's Office, could not have traveled from Shreveport to St. John the Baptist Parish to view the one missing photograph. There is also no indication why the analysis could not have been performed without the one photograph that was difficult to duplicate.[11] Defendant has thus failed to establish that the court erred in denying his motion to recess until Dr. Rodriguez could finish a scientific analysis of the crime scene and autopsy photographs and reports. There was a total failure to demonstrate due diligence in securing the witness' presence for trial. We cannot say that the trial judge abused his discretion in denying the request. Invalid Aggravating Circumstance Defendant claims that the aggravating circumstance of "especially heinous, atrocious, or cruel manner" in La.C.Cr.P. art. 905.4(g) does not provide clear and objective standards to channel the jury's discretion. Citing Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), defendant argues that La.C. Cr.P. art. 905.4(g) is unconstitutionally vague, even in light of the narrowing construction placed on that aggravating circumstance by the trial judge's instruction 1336 to the jury.[12] This aggravating circumstance can be supported only by proof that the defendant engaged in torture of the victim or the pitiless infliction of unnecessary pain. State v. Brogdon, 457 So.2d 616 (La.1984); State v. Sonnier, 402 So.2d 650 (La.1981). This court has upheld the validity of the "especially heinous, atrocious or cruel manner" aggravating circumstance when the trial judge has given an appropriate narrowing instruction, as occurred in this case. The Maynard decision does not require a different result. In State v. Deboue, 552 So.2d 355 (La.1989), this court stated: Maynard, however, does not preclude the application of this aggravating circumstance with a limiting construction, which permits the jury to distinguish those types of murders which qualify as being committed in an especially cruel, heinous or atrocious manner and those which do not. In fact, the United States Supreme Court recognized that one limiting construction which has been employed by other states is the requirement of torture or serious physical abuse, and it implicitly approved that limiting construction by noting that "[w]e also do not hold that some kind of torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally permissible". (citation omitted). There was sufficient evidence to establish that there was torture or the pitiless infliction of unnecessary pain on the victim in this case. In addition to defendant's confession, the medical evidence clearly demonstrated that the eight-year-old victim was raped both anally and vaginally, repeatedly beaten to the point of broken and shattered bones, and strangled to death. On this record the jury could have reasonably concluded that defendant sexually assaulted the victim and participated in the severe beatings, despite defendant's protestations that he smothered and choked her to put her out of her misery after severe beatings inflicted by Phillips alone. The jury, properly guided by the limiting construction contained in the jury charge, could have found on the record in this case that this aggravating circumstance was proved beyond a reasonable doubt. Moreover, even if there was insufficient evidence to support this aggravating circumstance, this court has repeatedly held that when a statutory circumstance is found invalid or not supported by the evidence, a death sentence will be upheld if the evidence was sufficient to support at least one valid aggravating circumstance and the introduction of evidence on the invalid circumstance did not inject an arbitrary factor into the proceeding. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Jones, 474 So.2d 919 (La.1985). The evidence offered in support of this particular aggravating circumstance was otherwise clearly admissible to show the nature of the offense and the character and propensities of the offender. Therefore, this evidence did not inject an arbitrary factor into the proceedings. Requiring Witness to Plead Privilege before Jury Defendant contends that the death sentence should be reversed because the prosecutor called Sheila Walters, the fourteen-year old daughter of Judith Walters, to the stand during the sentencing phase for the sole purpose of exercising her privilege against self-incrimination. Defendant argues that the prosecutor did not call the witness during the guilt phase because he knew she would invoke the privilege and chose to exploit her invocation of the privilege in the sentencing phase in order to prejudice the jury against defendant. Defendant 1337 cites State v. Haynes, 291 So.2d 771 (La.1974), State v. Berry, 324 So.2d 822 (La.1976), and State v. Day, 400 So.2d 622 (La.1981), as cases in which this court condemned such a practice.[13] On two occasions during his closing argument in the guilt phase, defense counsel made references to the fact that the prosecutor did not call Judith or Sheila Walters to testify. Counsel argued to the jury: You were not there, I was not there. Judith Walters, was under subpoena, was there. Yet she had not been called to testify one word from that witness chair. She was there. Sheila, the daughter, was there. Not one word of testimony came from that witness chair from either one of those people.... [W]e are saying there is doubt as to what happened at that scene. There are people alive today who know and were not called to testify in this case. During rebuttal argument the prosecutor responded that Judith Walters had not been called because she had charges pending against her. During the presentation of evidence in the sentencing phase defense counsel made three additional references to the fact that there were living witnesses to the crime who had not been called by the state. After the repeated assertions by the defense that neither Judith nor Sheila Walters had been called to the stand, the state called Sheila Walters during the penalty phase. The defense did not object to the state's calling the witness or to any questions asked of her.[14] If the prosecutor knows a witness will claim a valid privilege not to testify, the prosecutor should not call the witness for the purpose of impressing upon the jury the fact of the claim of privilege. Standards for Criminal Justice § 3-5.7 (2d ed. 1980). A similar prohibition is imposed on defense counsel. Standards, supra, § 4-7.6. However, because of the legitimate concern when the prosecutor fails to call a witness who possibly has relevant information that the jury will be unaware of the reason for the failure, the defense counsel has a correlative obligation not to argue any evidentiary inference from the absence of the witness. Standards, supra, Commentary. Issues relating to a claim of privilege should be heard outside the presence of the jury whenever possible. This court has recognized that it is error to allow the prosecutor to call before the jury a witness who he knows will invoke the privilege against self incrimination, when there is no other purpose for 1338 calling the witness except to have the jury draw evidentiary inferences from the fact that the witness claimed the privilege. There was another purpose, however, for calling the witness before the jury in this case. During the guilt phase the prosecutor had properly refrained from calling Judith and Sheila Walters because he knew that they would invoke their privilege not to testify. Defense counsel (who is not the present counsel on appeal) improperly commented on the prosecutor's failure to call these witnesses and urged the jury to draw evidentiary inferences from the absence of the witnesses. The prosecutor was able to explain, by rebuttal argument, his not calling Judith Walters, an eyewitness to the events surrounding the murder, as a witness during the guilt phase. As a method of rebutting evidentiary inferences arising from his failure to call Sheila Walters as a witness in the guilt phase, the prosecutor called her in the second portion of the bifurcated trial. The prohibition against the prosecutor's calling before the jury a witness who he knows will assert a privilege not to testify is designed not only to prevent the jury from drawing improper inferences from the fact of the witness' claiming the privilege, but also to deter the prosecutor from using bad faith trial tactics. Here, the prosecutor acted in utmost good faith in this regard in the guilt phase, but was frustrated by counsel's improper comments on the absence of the witness and his urging the jury to draw inferences from the absence. Under similar circumstances the Court in United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), held that while the prosecutor generally is prohibited from commenting on the defendant's failure to testify, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), such a comment is permissible if made as a fair response to an argument that the defendant was never given a fair chance to explain his position. Under the circumstances of the present case we conclude the prosecutor's calling Sheila Walters before the jury, although he knew she would invoke the privilege not to testify, was a fair response to the comments made by defense counsel and did not violate the purpose of the pertinent prohibition. Conflict of Interest Defendant contends that he was denied effective assistance of counsel because of an actual conflict of interest that existed between him and his trial attorney. Defendant argues this conflict was known to counsel and the trial court, but was not revealed to him. Referring to documents attached to his brief in this court, defendant argues that his trial counsel, a former state senator, pleaded guilty on November 21, 1984 to the federal felony charge of submitting a false statement to an agency of the United States; that the indictment, guilty plea, and sentence received substantial media coverage, particularly in St. John the Baptist Parish where the attorney resided and the trial was held; that the attorney received a three-year suspended sentence, one of the conditions of probation being performance of 416 hours of community service; that the attorney's appointment to represent defendant was in partial fulfillment of the condition of probation; and that neither his attorney nor the trial court ever advised him of these facts. Defendant contends there was an actual conflict between his interest in an impartial jury and his attorney's interest in not publicizing the fact of his felony conviction. Defendant's position is that only conflict-free counsel could have properly questioned the jurors on voir dire whether their attitude toward defendant would be affected by their knowledge that the person who had confessed to the murder was being represented by a convicted felon who was appointed by the court as part of his obligation to perform community service. Suggesting that his attorney may have failed to pose these questions on voir dire because of personal embarrassment, defendant asserts that this unrevealed conflict 1339 prevented his trial attorney from being dedicated solely to his client's interest and from rendering effective assistance of counsel, especially during the critical stage of jury selection. Citing Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), defendant argues that the basic evil in conflict of interest situations lies in "what the advocate finds himself compelled to refrain from doing". Id. at 490-91, 98 S.Ct. at 1181-82. Defendant further argues that the failure of the court or his attorney to reveal this conflict deprived him of the right to object to this appointment or to choose to represent himself. When a claim of ineffective assistance of counsel is raised on appeal, the issue is generally referred to post-conviction proceedings in which both sides can introduce evidence and the validity of the claim can be properly determined. A narrow exception to this general rule of deferring ineffective assistance claims to post-conviction proceedings has been recognized when "the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy". State v. Ratcliff, 416 So.2d 528, 530 (La.1982); State v. Seiss, 428 So.2d 444 (La.1983). The present case, however, does not present an instance when the narrow exception should be exercised, inasmuch as the record on appeal does not contain any evidence on the issue. Nevertheless, this court on several occasions in capital cases has pretermitted determination of the validity of a death sentence because of a possibly meritorious claim of ineffective assistance of counsel and has remanded the case to the trial court under Supreme Court Rule XXVIII, § 5, for an evidentiary hearing on the claim and a determination whether the evidence creates a reasonable doubt as to the death sentence. State v. Williams, 480 So.2d 721 (La.1985); State v. Fuller, 454 So.2d 119 (La.1984); State v. Smith, 400 So.2d 587 (La.1981). This procedure allows an expeditious determination of ineffective assistance claims while the case is still in the state system and before the affirmation of a death sentence. The ineffective assistance claim in the present case warrants an evidentiary hearing. However, unlike the claim in the Williams, Fuller and Smith cases, the present claim involves the guilt determination as well as the penalty. We therefore conditionally affirm both the conviction and sentence, but remand the case to the district court and reserve to the trial judge the power to grant a new trial if he determines after the evidentiary hearing that the ineffective assistance claim so requires. See State v. Simmons, 328 So.2d 149 (La. 1976). If the judge determines that the claim is without merit, defendant's right to appeal that ruling is reserved, but the conviction and sentence will be affirmed in the absence of a timely appeal. Capital Sentence Review This court is required to review every death sentence to determine whether the sentence is constitutionally excessive. Supreme Court Rule XXVIII; La.C.Cr.P. art. 905.9. The court considers (1) whether the sentence was imposed under the influence of passion, prejudice or arbitrary factors; (2) whether the evidence supported a finding of a statutory aggravating circumstance; and (3) whether the sentence, in view of both the offense and the offender, is disproportionate to the penalty imposed in other cases. At the time of the crime defendant was a twenty-five year old white male who had never married and had no children. He was the oldest son of five children of living parents. He completed the twelfth grade, and his intelligence level (IQ of 70 to 100) was in the medium range. Psychological testing revealed no character or behavior disorders and no other pertinent psychiatric or psychological information. He was not under the influence of narcotics or dangerous substances at the time of the offense. The victim was an eight-year old white female. Defendant and the victim did not know each other prior to the murder. 1340 Defendant was represented by two appointed attorneys. His lead attorney had over thirty years of legal experience, and his practice involved criminal and civil cases in equal proportions. The other attorney, who had under five years of experience, practiced both criminal and civil law. Defendant's parents stated that defendant had no significant emotional problems before the age of fourteen, but they noticed a change in his behavior after two of his grandparents died within a span of two days. According to his parents, defendant had an extensive history of telling grandiose lies to anyone who would listen. At about age sixteen his parents suspected that he may have a drug problem. He may have attempted suicide at least once during this time period. Defendant's parents put him out of their home on several occasions because of his constant stealing from relatives and others. He drifted from place to place and began his involvement with several women, most of whom had small children. He told his parents he was attracted to such women because he wanted to help care for neglected and abused children. Defendant was convicted of a September, 1985 criminal trespass and received a sentence of fifty-seven days in parish prison. For the December, 1985 murder conviction in Florida defendant was sentenced to life imprisonment without possibility of parole for twenty-five years.[15] Charges of simple battery, criminal trespassing, disturbing the peace and simple criminal damage to property in March, 1985 were dismissed. There is no disposition recorded for June, 1985 charges of simple kidnapping, cruelty to a juvenile, and sexual battery. As to the influence of passion, prejudice or arbitrary factors, both the defendant and the victim were caucasian, and race was not a factor at trial. A sanity commission found defendant sane at the time of the crime and capable of assisting his counsel at trial. There was no suggestion that defendant suffered from a mental disease or defect, and no evidence was presented by defendant in support of his insanity defense. Defendant's confession was properly admitted, as were photographs of the victim. Defendant specifically argues that several prejudicial and arbitrary factors were introduced into his trial. The first argument involves Agent Scott's testimony that defendant admitted orally, after completing the taped confessions, to achieving sexual satisfaction with the body of the victim and to enjoying the killing of Billy Phillips. Defendant cites Herzog v. State, 439 So.2d 1372 (Fla.1983), and Jackson v. State, 451 So.2d 458 (Fla.1984), in support of his argument. However, in those cases the court held that actions after the death of the victim (evidence of burning the victim's dead body and evidence of hiding the murder weapon and cleaning the automobile) were irrelevant to the aggravating circumstance of "a crime which is especially heinous, atrocious, or cruel". The statements in the present case, however, were not offered to support a particular aggravating circumstance, but were introduced to show the circumstances of the offense and the character and propensities of the offender. La.C.Cr.P. art. 905.4. Defendant next argues that an element of arbitrariness was injected into the proceedings when the prosecutor called Sheila Walters to the stand during the sentencing phase, knowing that she would assert the privilege against self incrimination. As discussed in detail earlier, this action did not unfairly prejudice defendant in any way. Defendant further argues that two statements by Special Agent Harvey improperly put before the jury his conclusion that defendant beat the victim. The statements by Harvey were that "[t]he most glaring 1341 inconsistency in this case was who beat the child's jaw and broke it. And John Wille was responsible for that" and that "[t]he child was rendered unconscious when John Wille, with his hands, made her unconscious". These statements were elicited on cross-examination by defense counsel in answer to questions concerning the discrepencies between the confession of Judith Walters and that of defendant. Defense counsel asked specifically what those discrepencies were, and Harvey stated that one was whether defendant or Phillips had broken the child's jaw. The answer, at least in part, was not responsive to the question, but there was no objection and no request for an admonition. Because of the nature of the crime itself, it is unlikely that this one statement injected prejudice, passion or other arbitrary factors into the jury's determination of an appropriate sentence. The statement by Harvey that the child was rendered unconscious when defendant began to strangle her was also an unresponsive answer to the specific question. Again there was no objection or request for an admonition. Nevertheless, defendant in his confession stated that he "[s]mothered her then she passed out" and then "choked her". Agent Harvey's challenged answer, although unresponsive, was a correct characterization of the evidence presented at trial. This statement could not have interjected undue prejudice at the sentencing phase. As to evidence supporting the finding of an aggravating circumstance, the jury returned three: defendant had been previously convicted of an unrelated murder; the killing occurred during an aggravated rape and an aggravated kidnapping; and the offense was committed in an especially heinous, cruel and atrocious manner. Defendant first urges that the jury could not have found that he had a prior conviction for an unrelated murder. This court has squarely held that a conviction for a murder committed subsequent to the murder for which the murderer is on trial can support the finding of this aggravating circumstance, as long as the conviction occurred before the sentencing phase of the current trial. State v. Brooks, 541 So.2d 801 (La.1989). Here, the prosecutor introduced a certified copy of defendant's guilty plea to first degree murder in Florida, as well as testimony by the Florida prosecuting attorney. This aggravating circumstance is fully supported by the record. Defendant next argues that the evidence did not support a finding that the crime was committed in an especially heinous, cruel or atrocious manner. As noted earlier, the evidence supports a conclusion that the crime involved elements of torture or pitiless infliction of unnecessary pain and suffering. As to the sufficiency of the evidence of an aggravated rape, the victim's mother testified that the child was eight years old at the time of the crime, and the evidence supports a conclusion that she was unmarried. Defendant admitted in his confession that he penetrated the child's vagina and rectum by the use of force. This aggravating circumstance is fully supported by the record.[16] A proportionality review is not required by federal constitutional law. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Nevertheless, comparative proportionality review remains a relevant consideration in determining the issue of excessiveness of sentence in Louisiana. State v. Kyles, 513 So.2d 265 (La.1987). 1342 The death penalties in State v. Loyd, 489 So.2d 898 (La.1986), State v. Brogdon, 457 So.2d 616 (La.1984), and State v. Watson, 449 So.2d 1321 (La.1984), which were imposed in St. John the Baptist Parish or adjoining St. Charles Parish, fully demonstrate that the death penalty in this case was not disproportionate.[17] Moreover, the fact that co-participant Judith Walters received a life sentence in State v. Walters, 514 So.2d 257 (La.App. 5th Cir.1987), cert. denied, 523 So.2d 811 (La.1988), does not affect this conclusion. Walters did not inflict any injury on the child, did not rape or sodomize the child, and did not actually kill her. Any leniency of the jury in Walters' case cannot arguably be used to demonstrate excessiveness in the present case. Decree The conviction and the sentence of death are conditionally affirmed on the evidence in the record on appeal. However, a final determination of the appeal is pretermitted, and the case is remanded to the district court for an evidentiary hearing and for determination of the claim of ineffective assistance of counsel resulting from a conflict of interest, in accordance with this opinion, with defendant's right reserved to appeal from an adverse decision on the issue. COLE and MARCUS, JJ., dissent and assign reasons. COLE, Justice (dissenting). I respectfully dissent from the majority's holding insofar as it conditionally affirms defendant's conviction and sentence and remands to the trial court for an evidentiary hearing on the issue of conflict of interest. I believe the relevant facts, even considered in the light most favorable to defendant, do not disclose a conflict of interest between defendant and his attorney. Therefore, an evidentiary hearing would be futile. Defendant did not raise his ineffective assistance of counsel claim at trial. Therefore, in order to establish a violation of the Sixth Amendment, he must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. State v. Edwards, 430 So.2d 60 (La.1983). Such claims are generally deferred to post conviction relief. State v. Barnes, 365 So.2d 1282 (La.1978). As the majority notes, there is a "narrow exception" to this rule set forth in State v. Ratcliff, 416 So.2d 528 (La.1982): if the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy the issue will be considered. See also State v. Seiss, 428 So.2d 444 (La.1983). I believe the case before us falls under this exception and the conflict issue may be resolved in this court. The record shows defendant's attorney did not question jurors on whether their attitude toward defendant would be affected if they knew the attorney was a convicted felon. On remand, the only additional 1343 "evidence" on this issue defendant could offer would relate to the facts surrounding his attorney's earlier conviction and resulting public service obligation. However, accepting such facts and considering them in the light most favorable to defendant, I do not find a conflict as recognized at law. The classic conflict situation is one where the trial counsel is representing two distinct persons with adverse interests. In the present case, it is difficult to say the attorney is "representing" his own interest in a way adverse to defendant's interest. Defendant argues his attorney had an adverse interest since he was attempting to avoid publicizing his own conviction. Defendant's sole support for this proposition are three federal circuit court cases: United States v. Mouzin, 785 F.2d 682 (9th Cir.1986); United States v. White, 706 F.2d 506 (5th Cir.1983); United States v. DeFalco, 644 F.2d 132 (3rd Cir.1979). On closer examination, two of the cases are distinguishable; the third actually argues against D's position. In White, supra, White was charged with escaping from the custody of a U.S. Marshall. He was represented by Jimmy Brumfield. At the time of trial, both Brumfield and his wife were under investigation for complicity in White's escape. The court found representation of White by Brumfield was an actual conflict of interest which constituted ineffective assistance of counsel as a matter of law. In White, supra, is clearly distinguishable from the present case. White was an example of the classic conflict, in that the attorney and client had different and conflicting interests. As the court noted, Brumfield might not present detailed evidence of the escape or call certain witnesses for fear of incriminating himself, would be ineligible to testify as a witness to the escape, and might resist plea bargaining for fear White would turn state's evidence against him. Obviously, none of these considerations are present in the case before us, since the attorney's prior conviction was totally and completely unrelated to defendant's case. In DeFalco, supra, DeFalco was indicted in the U.S. District Court of New Jersey. He retained Verdirama as his attorney. Unknown to DeFalco, Verdirama was indicted before the same judge who presided over DeFalco's case. During DeFalco's appeal, Verdirama entered into a plea bargain on the charges against him with the same U.S. Attorney's office that was his adversary on DeFalco's appeal. The court held the facts showed "a possible conflict." It therefore reversed a lower court ruling denying post-conviction relief and remanded for a showing of whether there was a deliberate and knowing waiver by DeFalco of his right to effective assistance. DeFalco is of questionable authority, since the U.S. Supreme Court subsequently rejected the "possible conflict" standard and instead required defendants to prove an actual conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). It is unclear whether DeFalco could have met this heightened standard. Secondly, DeFalco is again distinguishable from the present case. The attorney's indictment arose in the same court and before the same judge as defendant's trial. The attorney was actively plea bargaining on his own behalf with the same U.S. Attorney's office that was acting as his adversary in defendant's trial. By contrast, in the case before us, the attorney's conviction was in a completely separate system (federal as opposed to state). The attorney's conviction was final; he was not actively plea bargaining during defendant's trial. The third case cited by defendant, Mouzin, supra, actually runs counter to his argument. In that case the defendant's attorney was disbarred during the course of the defendant's trial for conduct in an unrelated matter. The defendant argued since neither the attorney nor the trial judge informed him of this fact, the services of the lawyer must be deemed ineffective under the Sixth Amendment. The court disagreed, finding no conflict under the circumstances. 1344 Clearly, if an attorney's failure to inform the client of his disbarment during the course of a trial does not create a conflict that rises to the level of ineffective assistance, it it difficult to see how an attorney's earlier, unrelated felony conviction could do so. Defendant in the present case, like the Mouzin defendant, makes vague allegations that the attorney's performance was somehow impaired. However, a review of the record shows defendant's attorney acted in a competent and professional manner during the trial. His earlier conviction was irrelevant to his behavior at trial. Therefore, it appears there is no legal authority for defendant's argument that he has shown a conflict of interest. The only case cited by defendant in which the court found an actual conflict between a defendant and his attorney was White. White involved extensive involvement by the attorneys in the underlying crime. Those unusual circumstances are not present here. None of the cases suggest there is a basis for an ineffective assistance claim simply because an attorney was convicted of an unrelated crime in a separate court system. Under defendant's argument, virtually any fact in the attorney's background not revealed to the jury could form a basis for an ineffective assistance claim. This is not the state of the law. Since defendant's claim has no basis in law, an evidentiary hearing is clearly unnecessary. For the foregoing reasons, I respectfully dissent from the majority's holding. MARCUS, Justice (dissenting). I would affirm the conviction and sentence of death finding no merit to defendant's contention that he was denied effective assistance of counsel because of a conflict of interest that existed between him and his trial attorney. Accordingly, I respectfully dissent from the remand to the district court for an evidentiary hearing on this issue. NOTES [1] Defendant's other assignments of error involve only settled principles of law and are treated in an unpublished appendix, which is attached to this opinion and is part of the official record. [2] The law enforcement officers who questioned defendant had already obtained a detailed statement from Judith Walters and were able to ask probing questions. [3] Walters was tried separately for her participation in the crime. She was convicted of first degree murder and sentenced to life imprisonment. State v. Walters, 514 So.2d 257 (La.App. 5th Cir.1987), cert. denied, 523 So.2d 811 (La. 1988). [4] In the Smith case an officer was allowed to testify that he was advised of the shooting incident. Because this testimony was offered to show why the officer began an investigation of the incident and not to prove the truth of the assertion, this court concluded that the testimony was not hearsay. Significantly, the report of the shooting did not connect the defendant with the crime. In the Calloway case an arresting officer was allowed to testify that he had received a radio communication that the two suspects in a store robbery were travelling in a black Cadillac. This court held that the admission of the testimony was not hearsay since it was admitted merely to explain events preceding the arrest of the defendants in a black Cadillac. Significantly, there was other proper evidence that a black Cadillac was parked in front of the store at the time of the robbery, and the officer's testimony was merely cumulative as to this fact. Finally, the Monk case held it was not hearsay when a deputy testified that he had received a radio message that a robbery had been committed at a bank by two men who fled on a motorcycle. The robbers were apprehended on a motorcycle shortly after the robbery four miles from the bank. Significantly, numerous other witnesses testified that the two robbers wearing motorcycle helmets and ski masks were seen leaving the bank on a motorcycle, and the deputy's testimony as to the motorcycle was merely cumulative as to this fact. [5] The treatise identified the area of widespread abuse as follows: In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted "upon information received", or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great. [6] This court has previously restricted the admission of this kind of evidence. In State v. Thompson, 331 So.2d 848 (La.1976), the trial court permitted an officer, under the guise of explaining his subsequent conduct, to testify that an anonymous informant had specifically identified the defendant as one of two men involved in an armed robbery. In reversing the conviction, this court stated that the officer could testify as to his receipt of information from the informer and his subsequent conduct, but not as to "the content of the statement of this anonymous witness, not sworn o[r] subject to cross-examination at the trial, to the effect that this defendant had committed the crime for which he was on trial". Id. at 849. The court noted that the content of the out-of-court statement (which was used before the judge to obtain a search warrant) was not admissible at trial for any relevant issue before the jury. [7] In Teague v. State, 252 Ga. 534, 314 S.E.2d 910 (1984), the court observed: It will be seen that only in rare instances will the "conduct" of an investigating officer need to be "explained", as in practically every case, the motive, intent, or state of mind of such an officer will not be "matters concerning which the truth must be found." At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something. (emphasis in original). [8] Harvey, an experienced investigator, carefully avoided saying that the Walters told him defendant killed the child. However, his testimony that statements by the Walters caused him to conclude defendant was the prime suspect and to become convinced that defendant was responsible for the crimes clearly conveyed to the jury the substance of the Walters' out-of-court assertions, as well as his belief in the reliability of the statements. [9] The relevancy issue is at the core of the problem. The statements by the Walters may have been relevant to the issue of probable cause for arresting defendant, but that issue was one for the judge and not for the jury. State v. Thompson, 331 So.2d 848 (1976). [10] We further note that no objection was made until Agent Harvey attempted to state that the information obtained from the Walters was corroborated by other evidence secured in the investigation. While this court generally considers assignments of error in a capital case without regard to the timeliness of an objection, the lack of a timely objection may be considered as a relevant factor in determining harmless error. [11] According to the prosecutor's brief, the instamatic photograph portrayed the same crime scene as set forth in twenty-five 8 × 11 prints provided to the defense prior to trial. [12] As to this aggravating circumstance, the trial judge instructed the jury that "[i]n order for the jury to find that the offense was committed in an especially heinous, atrocious, or cruel manner there must exist evidence from which they, the jury, can find beyond a reasonable doubt that there was torture or the pitiless infliction of unnecessary pain on the victim". [13] In State v. Haynes, 291 So.2d 771 (La.1974), this court noted in dicta, after reversing the conviction on other grounds, that "the deliberate attempt of the prosecution to question a member of the defense staff on what the defendant had told him, in violation of the attorney-client privilege, and the belittling before the jury of defense counsel for asserting it, is not compatible with the standards of fair trial and of fair prosecution expected in American courts". Id. at 773. In State v. Berry, 324 So.2d 822 (La.1976), the defendant attempted, over the state's objection, to require a witness to take the stand and claim the privilege against self incrimination in front of the jury. The trial judge held a hearing outside the presence of the jury and determined that the witness could properly claim the privilege. This court held that "[i]t is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege". Id. at 830. In State v. Day, 400 So.2d 622 (La.1981), the state called the defendant's wife to the stand and forced her, over defense counsel's objection, to assert her spousal privilege. The state then referred to the testimonial privilege on four separate occasions, arguing that use of the privilege indicated her testimony would be detrimental to the defendant. This court concluded this procedure was reversible error, holding that "when the State knows that a witness will exercise a valid privilege, it is reversible error to require the witness to exercise his privilege in front of the jury". Id. at 624. [14] Sheila Walters gave her name and address and answered a few preliminary questions. When asked if she had traveled to LaPlace with her mother, defendant and Billy Phillips on June 2, 1985, her counsel asserted the privilege. A second question about the events of the evening brought the same response. She was then excused as a witness. [15] Defendant was convicted on December 3, 1985 in Florida of the first degree murder of a young black male hitchhiker. His statement indicated that he beat the man, threw him out of his car, and rolled over him several times. Judith Walters was also present at the time of this offense. [16] Defendant did not question the sufficiency of the evidence of an aggravated rape and an aggravated kidnapping. The prosecutor, however, did not argue aggravated kidnapping as an aggravating circumstance. Nevertheless, the failure of one statutory aggravating circumstance does not invalidate a death penalty if another aggravating circumstance is supported by the record, so long as the evidence offered in support of the arguably unproven aggravating circumstance did not inject an arbitrary factor into the proceedings. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Sawyer, 422 So.2d 95 (La.1982). The kidnapping evidence here clearly was properly admitted. [17] In Loyd the twenty-five-year old white defendant kidnapped the three-year old white female victim, raped her vaginally and anally, and drowned her in a ditch. The defendant had one prior conviction for misdemeanor theft, a steady work history, two years of college, and had been honorably discharged from the service. In Brogdon the nineteen-year old white defendant and a seventeen-year old accomplice lured the eleven-year old white female victim into their car, drove her to an isolated spot, raped her repeatedly, forced oral sex, and then tortured her by beating her with a brick, shoving sharp objects into her vagina, and cutting her with a broken bottle. The defendant, who was borderline mentally retarded, was under the influence of alcohol at the time. In Watson the twenty-four-year old black defendant kidnapped a twenty-five-year old white female medical student, robbed her with a gun, raped her vaginally and anally, and shot her in the back of the head to prevent her identifying him. He had low to normal intelligence, a seventh grade education, a minimal employment record, a history of drug abuse, and an extensive history of incarceration during his adult life. See also State v. Jones, 474 So.2d 919 (1985), and State v. Copeland, 530 So.2d 526 (1988), for death penalty cases from other judicial districts in which the defendant kidnapped and raped young victims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/491842/	824 F.2d 971 Rodriguezv.Laughlin* NO. 87-2330 United States Court of Appeals,Fifth Circuit. JUL 10, 1987 Appeal From: S.D.Tex. VACATED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2619220/	394 P.2d 737 (1964) Arthur J. WATSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. No. 20640. Supreme Court of Colorado. En Banc. August 10, 1964. Jim R. Carrigan, Boulder, for plaintiff in error. Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, John P. Moore, Asst. Attys. Gen., Denver, for defendant in error. MOORE, Justice. We will refer to plaintiff in error as defendant or by name. This action is here on writ of error directed to a judgment which imposed a sentence of life imprisonment on the defendant following a trial in which a verdict of guilty on a charge of first degree murder was entered. This is the second time that the facts involved in this case have been before this court. In Kostal and Watson v. People, 144 Colo. 505, 357 P.2d 70, a new trial was ordered. For a statement of facts forming the basis of the murder charge we refer to that case. Watson now seeks reversal of the judgment entered following his second trial and as grounds therefor contends: 1. That the trial judge was shown to have an interest in the case and should have sustained defendant's motion to disqualify himself. 2. That defendant requested the production of certain statements made by eyewitnesses to the alleged crime, and that the trial judge erred in failing to order immediate production thereof for defendant to use in the cross-examination of those witnesses. 3. That testimony of an unrelated crime was admitted and considered by the jury over objection of defendant. 4. That the trial court erred in admitting in evidence the circumstances surrounding the arrest of defendant in Detroit, Michigan. 5. That the trial court erred in admitting into evidence two 45-caliber cartridge casings in connection with testimony given by ballistics experts. 738 6. That the trial judge erred in denying defendant's request for the appointment of psychiatrists, investigators, and ballistics experts in equal numbers to those used by the state. 7. That, taken as a whole, the state's evidence relating to firearms identification and ballistics is in such a state of conflict and confusion that it should have been taken from the jury. 8. That the failure of the trial judge to grant defendant's motion for a directed verdict of acquittal was error. 9. That the state failed to sustain its burden of proof. In connection with the above mentioned first ground urged for reversal, two motions were filed seeking to disqualify Judge Christian D. Stoner from presiding at the trial. One supporting affidavit was signed by Watson and another was a joint statement by Watson and his co-defendant Kostal. The only statement contained in these affidavits warranting mention in this opinion was the assertion that an action was pending in the district court of the United States in which Watson as plaintiff sought damages against Judge Stoner as defendant. The claim was based on the allegation made by Watson that Judge Stoner and the district attorney, in the performance of their official duties connected with the first trial, conspired to deprive defendant of a fair trial, pursuant to which conspiracy Watson alleged that Judge Stoner participated in the subordination of perjured testimony, the suppression of evidence vital to his defense, and the admission of evidence of other offenses committed by him. In disposing of this ground for reversal we think it sufficient to say that an adverse interest sufficient to disqualify a trial judge from presiding at the trial of a criminal case must be based on a more substantial foundation than appears from the record in this case. The action instituted against Judge Stoner by defendant was filed in the Federal District Court of Colorado. It was dismissed, and Watson appealed to the United States Court of Appeals for the Tenth Circuit where the action of the Federal District Court was affirmed. See Kostal and Watson v. Stoner, et al., 10 Cir., 292 F.2d 492. The contention of Watson is that Judge Stoner, who presided at the first trial, is answerable to him in damages for errors committed in that trial which resulted in a reversal, and that the pendency of the action for damages created an adverse interest which should have prevented Judge Stoner from hearing the second trial. We are thoroughly familiar with the record in the first trial, and although error was committed which required a reversal, there was nothing to indicate any bias or prejudice on the part of the trial judge. The applicable rule is stated in 30A Am.Jur. p. 68, § 113, as follows: "A judge made a party for the mere purpose of disqualifying him is not thereby effectively joined, and thus is not disqualified. The filing of sham or frivolous pleading in which a judge is made a party for the sole purpose of disqualifying him should not be allowed. But a pleading is not to be deemed sham or frivolous merely because it would probably be held bad on demurrer. Rather, a sham or frivolous pleading in this sense is one so palpably and manifestly false on its face as to leave no room for doubt thereof, and of such a character that the court may on a mere inspection pronounce it to be indicative of bad faith." Another pertinent principle is to be found in 30A Am.Jur. p. 64, § 101, as follows: "To work a disqualification of a judge, the interest must be a direct, certain, and immediate interest, and not one which is indirect, contingent, incidental, or remote. Thus, a direct, apparent, substantial, immediate, or certain interest in the subject matter of the action disqualifies a judge, while an indirect, remote, unreal, uncertain, speculative, incidental, inconsequential, contingent, or merely theoretical, possible, or unsubstantial interest in it does not disqualify him. * " 739 We quote from Kostal and Watson v. Stoner, et al., supra, the following: "* * * The case was admittedly within the jurisdiction of the court over which the defendant judge presided * * . "We have held that the Civil Rights Act does not impair the traditional common law immunity of judges from personal liability in damages for their official acts in matters within their jurisdiction. * *" To create an adverse interest sufficient to disqualify a trial judge from presiding over a criminal trial a suit brought against him by the accused person must have some probability of success. In the instant case there is no such showing and it appears on the face of the complaint that it is a sham pleading "so palpably and manifestly false on its face as to leave no room for doubt thereof." Defendant argues that the trial court erred in refusing to require the production of certain statements made to the police by eyewitnesses to the crime. The record does not disclose any such refusal. Moreover the complete transcript of evidence taken at the first trial was available to defendant and he knew the full substance of those statements. In the instant case the witnesses who made said statements were thoroughly and ably cross-examined with reference thereto, as well as to all prior utterances made by them to the police and investigating officers. As soon as it was learned from whom the statements could be obtained the court ordered and obtained their production into court, after which defendant made no move or expressed no desire to further cross-examine those witnesses. There is no merit to the contention that the trial court erred in its failure to grant defendant's motion for the appointment of experts. A well qualified ballistics expert was appointed for the defendant and in practically all particulars he agreed with the ballistics experts used by the state. The record discloses that defendant's counsel was not wanting in technical information with which to test the testimony of the experts called by the people. We know of no authority supporting the contention that defendant should have been furnished with a psychiatrist to explain his motive for attempting to escape or fleeing from arrest; nor do we know of any authority supporting the contention that the court was obligated to appoint an investigator for defendant. The other points raised by the defendant are without merit and no good purpose would be served by further comment in connection therewith. Upon the whole record we are convinced that defendant had a fair and impartial trial; that the verdict was fully justified under the evidence; and that the law was correctly applied. The judgment is affirmed. DAY, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1903064/	873 A.2d 698 (2005) WILSON AREA SCHOOL DISTRICT, Petitioner v. Franklin E. SKEPTON, Joseph Bozzelli, Individually and t/a J.B. Plumbing Company, and Dual Temp Company, Inc., Respondents. Supreme Court of Pennsylvania. April 26, 2005. ORDER PER CURIAM. AND NOW, this 26th day of April, 2005 we GRANT the Petition for Allowance of Appeal, LIMITED to the issue of whether the Wilson Area School District is entitled to restitution of the permit fees refunded by Wilson Borough to Franklin E. Skepton, Joseph Bozzelli, individually and t/a J.B. Plumbing Company, and Dual Temp Company, Inc.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619216/	64 Wash. 2d 787 (1964) 394 P.2d 371 THE STATE OF WASHINGTON, Respondent, v. WILLIAM DALE WILLIFORD, Appellant.[] No. 37123. The Supreme Court of Washington, Department One. July 23, 1964. Irving C. Paul, Jr., for appellant. Charles O. Carroll and William L. Kinzel, for respondent. BARNETT, J.[] Defendant William Dale Williford was tried by a jury in the King County Superior Court and 788 found guilty of two counts of first degree forgery. Judgment and sentence was imposed, and the defendant appealed to this court. The facts are: January 28, 1963, an amended complaint charging appellant with two counts of forgery in the first degree was filed in the Seattle Justice Court. Count 1 alleged that appellant forged or uttered a forged instrument in the amount of $114.37 to Marketime Drugs on July 10, 1962. Count 2 charged that appellant forged or uttered a forged instrument in the amount of $114.37 to Lindsay's Thriftway on July 10, 1962. On February 13, 1963, appellant was arraigned and, with counsel, entered a plea of not guilty to both counts of the amended complaint. A preliminary hearing was held on both counts of the amended complaint on February 28, 1963, when testimony was taken from respondent's witnesses, and the instruments or checks set forth in the amended complaint were introduced into evidence. During the entire proceeding, appellant was present and was represented by counsel. The judge ordered appellant bound over to superior court on both counts on March 7, 1963. Pursuant to the order of March 7, 1963, binding the appellant over, respondent filed an information in superior court on March 20, 1963. For reasons unknown, this information contained only one count the charge set forth in count 1 of the justice court amended complaint. March 29, 1963, appellant appeared with his counsel before the presiding judge of the King County Superior Court for arraignment on the aforementioned information. At that time, appellant was granted a 7-day continuance for entry of plea. April 5, 1963, appellant entered a plea of not guilty and the presiding judge set May 21, 1963, as the trial date. The presiding judge, on May 15, 1963, permitted respondent to file an amended information charging appellant with two counts of forgery in the first degree. Appellant moved for a continuance, which was denied. 789 Appellant was arraigned upon the amended information on May 17, 1963. May 18, 1963, the appellant entered a plea of not guilty to the amended information. May 10, 1963, appellant's counsel received a copy of a notice that respondent would move the presiding judge of the King County Superior Court on May 17, 1963, to endorse upon the information "Det. G. Kelson." This notice was filed May 13, 1963. May 17, 1963, counsel for appellant appeared at the arraignment calendar in response to notice that the respondent intended to move for the endorsement of an additional witness, Detective G. Kelson, of the Seattle Police Department, known to be a handwriting expert. At that time, counsel had a written motion and supporting affidavit requesting a continuance to allow the appellant to consult another handwriting expert with the hope of obtaining contravening evidence. However, the respondent failed to move for the endorsement of Detective Kelson until the trial, when Detective Kelson was called to testify. Appellant came on for trial on May 21, 1963, before the superior court, and was found guilty as charged. On appeal, appellant assigns error as follows: (1) In failing to grant appellant's motions for continuance prior to trial; (2) In endorsing a handwriting expert during the trial and denying appellant's motion to continue to obtain another expert and prepare for cross-examination. Assigned error No. 1 relates to the failure of the court to grant a continuance, when it permitted the state to file an amended information charging two counts of forgery in the first degree. The amended information differed from the original only to the extent that a second count of forgery in the first degree was added. The second count of the amended information was identical in all respects to count 1 of both the original and amended information, except that it named a different victim. It is contended by the appellant that, after the court allowed the amendment, the court's denial of a continuance constituted an abuse of discretion. 790 The record indicates that appellant's counsel received notice from respondent of the latter's intention to file an amended information containing a second count, and that, pursuant to this notice, appellant's retained counsel appeared with the respondent before the presiding judge on May 15, 1963, and, at that time, the amended information was filed and a copy was served upon counsel. The record further discloses that the amended information is identical to the amended complaint filed in the Seattle Justice Court. Evidence supporting both counts was presented at the preliminary hearing, with both appellant and his former counsel, Henry Opendack, present. Shortly thereafter, appellant's present counsel, Irving C. Paul, Jr., reviewed the notes made by the justice court judge during the preliminary hearing. Appellant's counsel had 6 days in which to prepare the defense to count 2 of the information. Furthermore, appellant's counsel was aware of the two-count forgery charge in justice court and the fact that appellant was bound over to the superior court as a result of the evidence adduced to support those charges. The trial judge endeavored to learn from appellant's counsel his reason for wanting a continuance. The judge said, "Now, if you can point out some substantial prejudice to the rights of the defendant, by not granting a continuance, I would be glad to hear you." In reply, counsel said: "It seems to me that there is an inherent prejudice. Now, frankly, I am willing to try a case tomorrow or the next day if it is in the field of law that I practice. So I am not suggesting that I am going to break into tears if I have to be forced to try the case.... I do have a scheme in my mind which I have developed in relation to Count I. Now, there is not time for me to develop that scheme as to Count II. And I don't want to let the cat out of the bag. It is not a very big cat, but it is the best I have got. And if we can get a continuance, it might be a bigger cat." [1] It is the general rule that it is within the discretion of the trial judge to grant or deny an application for the 791 continuance of the trial of a case, but such discretion necessarily has limitations, and the action taken must not be arbitrary or without justification under the circumstances then existing. State v. Hartwig, 36 Wn. (2d) 598, 219 P. (2d) 564; State v. Thompson, 59 Wn. (2d) 837, 370 P. (2d) 964. In the case at bar, the trial judge conscientiously explored the possibility of prejudice to the appellant and found there was no sufficient cause for a continuance. We agree with the conclusion of the trial judge, and find no merit in assignment of error No. 1. Assigned error No. 2 relates to the endorsement of a handwriting expert during the trial, and denying appellant's motion to continue to obtain another expert and prepare for cross-examination. The state called Detective C.G. Kelson of the Seattle Police Department as a handwriting expert. Before Mr. Kelson took the stand, the appellant moved that the witness not be allowed to testify, on the ground that his name was not endorsed on the information. In the alternative, the appellant filed a motion for a continuance so as to be able to consult a handwriting expert of his own choosing. Under oath, counsel stated he intended to file his motion for a continuance on May 17, 1963, the date the state was to have moved for the endorsement of Detective Kelson. Counsel stated the motion for a continuance was not filed when the state failed to endorse, because appellant's counsel was of the belief that the state would not call Mr. Kelson as a witness. The state then moved to endorse Mr. Kelson as a witness because due notice had been given to Mr. Paul and, in fact, Mr. Paul had talked to Mr. Kelson. Mr. Paul then stated to the court: "Counsel is correct ... I did talk to Mr. Kelson ... At that time I went ahead and prepared a motion for continuance.... Now at this time I say to the Court that I am ... not claiming surprise. But I say that it takes a number of days to consult with a handwriting expert and get his opinion ..." (Italics ours.) 792 The trial judge noted that counsel had conferred with the witness, granted the motion to endorse, and proceeded with the trial. At the oral argument in this court, counsel stated, in effect, that on the basis of his conversation with Mr. Kelson, he probably would not have consulted with a handwriting expert in any case, but was of the opinion that, as a matter of law, the defendant should have been afforded an opportunity to do so. The applicable statute is RCW 10.37.030, which provides that the prosecuting attorney shall "... at the time the case is set for trial ... file with the clerk a list of the witnesses which he intends to use at the trial and serve a copy of the same upon the defendant, ... Either party may add such additional names at any time before trial as the court may by order permit...." [2] We have decided that the court has the power to permit the state to endorse the names of witnesses on the information during the progress of the trial, or permit them to testify without such endorsement. State v. Willis, 37 Wn. (2d) 274, 223 P. (2d) 453; State v. Thompson, supra. The requirement of the statute is designed to protect against surprise, and defendant must, in fact, be surprised. State v. Cooper, 26 Wn. (2d) 405, 174 P. (2d) 545. Counsel admits he was not surprised. At least 11 days were at his disposal in which to seek expert rebuttal testimony. There is no showing that he attempted to do so. It has not been demonstrated that further investigation by appellant's counsel could have resulted in procuring a handwriting expert who would contradict the witness Kelson. In fact, counsel admits he probably would not have consulted with a handwriting expert in any case. Nor has it been demonstrated that the voir dire examination of the jury might have had a different result in this case, if appellant's counsel had had an opportunity to examine the new witness before the jury was selected. This record discloses no error. The judgment and sentence of the trial court is affirmed. OTT, C.J., HILL, ROSELLINI, and HALE, JJ., concur. NOTES [*] Reported in 394 P. (2d) 371. [] Judge Barnett is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4097367/	Nexbank, SSB v Soffer (2016 NY Slip Op 07395) Nexbank, SSB v Soffer 2016 NY Slip Op 07395 Decided on November 10, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 10, 2016 Tom, J.P., Sweeny, Andrias, Webber, Gesmer, JJ. 1782 652072/13 [1]Nexbank, SSB, Plaintiff-Respondent, vJeffrey Soffer, et al., Defendants-Appellants. Meister Seeling & Fein LLP, New York (Stephen B. Meister of counsel), for appellants. Debevoise & Plimpton LLP, New York (Shannon Rose Selden of counsel), for respondent. Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered February 4, 2015, which granted plaintiff's motion for summary judgment on the issue of liability and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. For the past several years, the parties herein have been involved in extensive litigation in both Nevada and New York over the terms of a construction loan and a guaranty provision contained therein. A recitation of the history of this litigation will provide the necessary background for the present appeal. On October 25, 2006, Turnberry/Centra Sub LLC (Borrower), a company controlled by defendants, entered into a construction loan agreement with a group of lenders in an aggregate principal amount of up to $475,000,000. Pursuant to the agreement, plaintiff is presently the lenders' authorized agent. The purpose of the loan was to finance the Borrower's construction of a mixed-use retail and office development in Las Vegas, Nevada, called Town Square Las Vegas. The loan was secured by Town Square's property, located in Nevada. As part of the loan agreement, defendants personally executed a nonrecourse carve-out guaranty, known colloquially in the industry as a "bad boy guaranty." This guaranty requires defendants to compensate the lenders in the event they or the Borrower engage in certain acts that could harm the lenders' interest in the collateral or the lenders' ability to enforce their rights under the loan agreement. As pertinent to this appeal, the guaranty bound defendants to pay plaintiff, as agent for the lenders, for "[a]ny loss (which may include loss of principal or interest and reasonable attorneys' fees and collection costs) . . . arising out of or connected with . . . the placing voluntarily of a Lien on any portion of the Mortgaged Property by Borrower." The term "Lien" is defined in the loan agreement to include "any . . . encumbrance or charge on or affecting the Collateral." On March 2, 2009, the Borrower defaulted by failing to pay the loan at maturity, and a nonjudicial foreclosure sale was scheduled to take place on March 1, 2011. On February 25, defendant Jeffrey Soffer and the Borrower filed a complaint in the District Court of Clark County, Nevada, alleging, among other things, that plaintiff's predecessor, as agent for the lenders, breached an alleged agreement to extend or restructure the construction loan. On February 28, Jeffrey Soffer and the Borrower filed an ex parte application in the Nevada court for a temporary restraining order enjoining the nonjudicial sale. The next day, March 1, they recorded a lis pendens on the Town Square property. The foreclosure sale proceeded on March 4 and an affiliate of the lenders acquired title to the property. Thereafter, Jeffrey Soffer and the Borrower filed an amended complaint in the Nevada action asserting a claim for specific performance of the alleged loan restructuring agreement and seeking an order directing plaintiff's predecessor to transfer the property either to defendants or to a new business entity controlled by them. A second amended complaint was filed in November 2011, adding claims against the buyer at the foreclosure sale and also seeking an [2]injunction against the transfer of the property to a third party and/or a declaration that the buyer must transfer the property back to defendants. The litigation proceeded over the next 17 months. On August 31, 2012, the Nevada court granted plaintiff's predecessor summary judgment dismissing the action. The court entered an order judicially cancelling the lis pendens on September 6, 2012. Defendants appealed that decision to the Nevada Supreme Court, and on July 25, 2014, the court affirmed the dismissal of the claims to recover the property on the ground that no enforceable agreement to restructure the loan existed as a matter of law. The Supreme Court remanded the case to the District Court for consideration of unrelated claims concerning management fees. While the Nevada proceedings were pending, on June 11, 2013, plaintiff commenced this action to enforce the guaranty, alleging that the lis pendens and the claims for specific performance and to recover the real property constituted an "encumbrance on the property, thus falling within the definition of Lien,'" and therefore triggering the guaranty. Defendants moved to dismiss the action on the ground that the claims advanced in the Nevada action did not trigger the guaranty. The motion was denied, and defendants appealed. On June 11, 2015, we affirmed the motion court's decision, ruling that Nevada law applied to the definition of "lien" as found in the guaranty and that "[d]efendants triggered the guaranty when they filed a lis pendens on the property, since the lis pendens falls within the definition of lien as an encumbrance' under Nevada law" (NexBank, SSB v Soffer, 129 AD3d 485, 485 [1st Dept 2015]). While the appeal was pending in this Court, on July 25, 2014, plaintiff moved in Supreme Court for partial summary judgment against defendants, seeking damages under the guaranty, including costs and attorneys' fees incurred in the Nevada action. Defendants opposed, and cross-moved for summary judgment, arguing that their claims to ownership of the property in the Nevada action and the lis pendens constituted neither a "lien" nor an encumbrance under New York law and thus did not trigger the guaranty provision of the loan agreement. On February 3, 2015, Supreme Court granted plaintiff's motion for partial summary judgment and denied defendants' cross motion. The court correctly held that the lis pendens encumbered the property and that the pendency of the specific performance action also constituted an "encumbrance" on the property as it constituted a cloud on title. Thus, the specific performance action also triggered the guaranty. This appeal followed. The principles applicable to the issues herein are straightforward. There is no question that defendants signed a guaranty and that it was a nonrecourse guaranty. Since the guaranty here is enforceable, the issue is whether the lis pendens and/or the underlying specific performance action in Nevada constitute an "encumbrance" that would trigger defendants' obligation under the guaranty. It is clear from the facts herein that, under Nevada law, they do. Defendants now argue, for the first time on this appeal, that once the Nevada court cancelled the lis pendens, the relief they sought in the underlying action seeking transfer of the property back to them no longer constituted an "encumbrance" on the property. As a result, defendants contend that from that point forward, the guaranty could no longer be invoked. This argument is akin to trying to recall a bullet fired from a gun because it missed its mark. Plaintiff correctly contends that defendants' new argument —— which was not raised in either the pleadings, the motion papers below, or in the prior appeal —— is not preserved for appellate review and should not be considered (see Mendelsohn v City of N.Y. [19th Precinct], 89 AD3d 569, 569-570 [1st Dept 2011], lv denied 19 NY3d 804 [2012]). In fact, nowhere in any of the prior proceedings did defendants cite the statute in question. Rather, they advanced and relied on an incorrect interpretation of New York's law regarding the construction of "bad boy guaranties." Defendants give no reason why the Nevada statute was not raised below. Therefore, there is no reason why this Court should consider this argument at this juncture in the proceedings. In any event, defendants' contention is without merit. As we concluded in our prior decision, "Defendants triggered the guaranty when they filed a lis pendens on the property, since the lis pendens falls within the definition of a lien as an [*3] encumbrance' under Nevada law" (Nexbank, SSB v Soffer, 129 AD3d at 485). Defendants' new argument, that the claims advanced in the Nevada action for the return of the property could not constitute an "encumbrance" once the lis pendens was judicially cancelled, ignores the fact that, while the action, including the appeal, was pending, a subsequent purchaser of the property would have taken title subject to the claims made by defendants, despite the provisions of the Nevada statute. Notably, defendants continued to pursue their claims for a return of the property on their appeal to the Nevada Supreme Court, even after the lis pendens was judicially cancelled. As plaintiff correctly notes, under Nevada law, a lis pendens gives notice of a lawsuit "affecting the title or possession of real property" (Nev Rev Stat § 14.010[1]). The plain import of the statute is that the lawsuit, not merely the lis pendens, constitutes an "encumbrance" on the real property. A mere breach of contract claim that does not cloud title does not constitute an "encumbrance" on property. The complaint in the Nevada litigation clearly makes allegations that defendants sought a return of the property. These claims clearly constitute a cloud on title to the property and therefore create an "encumbrance" that would permit plaintiff to invoke the guaranty. The mere fact that the Nevada Supreme Court ultimately ruled against defendants and dismissed their action does not change the fact that those claims, while still pending, constituted a cloud on title and were sufficient to permit plaintiff to invoke the guaranty contained in the loan documents. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 10, 2016 CLERK	01-03-2023	11-10-2016
https://www.courtlistener.com/api/rest/v3/opinions/994400/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-7681 HERBERT CURTIS, Plaintiff - Appellant, versus ROBERT WARD, Warden of Evans Correctional Institute; STUKEY, Major at Evans Correctional Institute; PAT BROWN, Lieutenant at Evans Correctional Institute; GIBSON, Correctional Officer at Evans Correctional Institute; GRIFFIN, Investigator at Evans Correctional Institute; M. K. GALLOWAY, Head of Grievance at Evans Correctional Institute, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Florence. David C. Norton, District Judge. (CA-97-2515-4-18BE) Submitted: February 26, 1998 Decided: March 20, 1998 Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges. Affirmed by unpublished per curiam opinion. Herbert Curtis, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals the district court's order denying relief on his 42 U.S.C. § 1983 (1994) complaint. We have reviewed the record and the district court's opinion accepting the magistrate judge's recommendation and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Curtis v. Ward, No. CA-97- 2515-4-18BE (D.S.C. Oct. 27, 1997). 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 deci- sional process. AFFIRMED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619210/	394 P.2d 625 (1964) Aletha E. NIELSEN, Plaintiff-Appellant, v. John R. NIELSEN, Defendant-Respondent. No. 9434. Supreme Court of Idaho. August 3, 1964. 626 Paul B. Ennis and Thomas A. Miller, Boise, for appellant. Gigray & Boyd, Caldwell, for respondent. KNUDSON, Chief Justice. Appellant Aletha E. Nielsen (plaintiff) and respondent John R. Nielsen (defendant) intermarried January 24, 1949. During the marriage four daughters were born to them, and at the time this action was heard by the trial court (April 1963) said children were between ten and four years of age. On November 7, 1962, appellant filed her complaint seeking a divorce upon the ground of extreme cruelty, together with custody of the children, child support, alimony and the community property. Respondent answered and as a cross-plaintiff prayed for a divorce upon the ground of extreme cruelty, custody of the children and an equitable distribution of the community property. On July 3, 1963, a judgment and decree was entered granting appellant a divorce, equal division of the community property, custody of the children and child maintenance, also alimony to be paid for one year. One of appellant's principal contentions upon this appeal is that the trial court erred in providing for what appellant terms "divided custody" of the children. Under paragraph VI of the findings of fact it is stated that the court finds each of the parties to be a fit and proper person to be awarded the care, custody and control of the children; but also finds that their custody should be awarded to appellant subject to certain rights of respondent. Appellant assigns error to the following quoted portion of said paragraph VI, to-wit: " * * subject, however, to the right on the part of the defendant to visit with said children and to have said children visit with him at all reasonable times and places, including the right on the part of the defendant to have each child during her minority visit with him during the summer months of June, July and August of each year for at least sixty (60) days while said children are minors or unmarried." Appellant contends that such finding and a like provision in the decree, is not warranted or supported by the evidence. The argument presented by appellant in support of this claimed error is directed principally to the granting of sixty days' custody of the children to respondent. Appellant argues that respondent is more preoccupied with his work as a physician than the average father; that the children will be left to the care of employed help or to respondent's present wife; that although the record is silent as to the children's reaction to respondent's remarriage it would be only natural for the children to resent his present wife; that two months out of each year is too long for these children to be away from their mother. In considering this contention it should be kept in mind the record discloses that a very devoted and affectionate relationship exists between respondent and his children and that the court very properly found he was a fit and proper person to be awarded custody of the children. It must be conceded that the parental relationship of a devoted father should be preserved, not destroyed, if such can be done without otherwise unduly disturbing the children involved. If the trial court entertained some apprehension of estrangement of the children from their father and by such provision in the decree sought to avoid such happening, it can not be considered as an abuse of discretion. The argument presented by appellant is based for the most part on happenings which may or may not come to pass. It is not unusual for the courts of Idaho to grant one parent the right to have child custody for one or two months during the 627 year while the other parent is given custody for the remaining months of the year, Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784; Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887; Smith v. Smith, 67 Idaho 349, 180 P.2d 853; Tobler v. Tobler, 78 Idaho 218, 299 P.2d 490, where the welfare and best interest of the child require this. In Merrill v. Merrill, supra, this court noted that " * * While divided custody of children should not be encouraged, Peterson v. Peterson, 77 Idaho 89, 288 P.2d 645; Wilson v. Wilson, 77 Idaho 325, 291 P.2d 1113, 1115; Application of Anderson, 79 Idaho 68, 310 P.2d 783, nevertheless an award of divided custody is not an abuse of discretion where justifying circumstances appear. * " The parties are not in disagreement regarding the basic law applicable to the issue. I.C. § 32-705 provides: "In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same." The question as to custody of children is committed in the first instance to the discretion of the trial court and unless such discretion is abused the judgment in respect to custody will not be disturbed on appeal. Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Olson v. Olson, 47 Idaho 374, 276 P. 34; Hendricks v. Hendricks, 69 Idaho 341, 206 P.2d 523, 9 A.L.R. 2d 617; Jeppson v. Jeppson, 75 Idaho 219, 270 P.2d 437; Stevens v. Davis, 78 Idaho 331, 303 P.2d 240; Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784. Appellant suggests that if respondent's circumstances change so as to permit his spending more time with the children, the decree could be modified either by agreement of the parties or by a proper showing to the court. Under the circumstances disclosed by this record we do not feel justified in disturbing the custody provision of the decree at this time. It is our view that if respondent elects to have the children with him as permitted under the provisions being considered, and as a result of such change of custody the welfare or best interests of the children become adversely affected, then appropriate modification may be justified. The allowance of $100 per month as maintenance for each child is complained of as being unreasonably small and inadequate in amount. The argument given in support of this contention deals principally with appellant's concept of respondent's financial ability to pay more. Our attention is not called to any item of necessity which is not being or cannot be provided for the children under such allowance. In this connection significantly the parties stipulated that during the pendency of this action respondent should pay $100 per month for the support of each child. While considering the amount referred to we are mindful that in fixing such allowance regard should be given to the social position of the persons involved and award sufficient to permit a standard of living commensurate with that to which they were accustomed. This court has repeatedly held that in fixing the amounts for child support, the necessities of the children and the financial ability of the payor to provide are primary considerations. Embree v. Embree, 85 Idaho 443, 380 P.2d 216; Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d, 1159; Humbird v. Humbird, 42 Idaho 29, 243 P. 827. Appellant apparently has no doubt regarding the future earnings of respondent. However such confidence was not shared in by the trial court. In this connection the court found "That defendant's future earnings are uncertain; that the effect of the divorce on his professional standing as a physician and surgeon remains to be seen; that it is imperative that his earning capacity be not impaired by 628 extravagance on the part of either party, and the duty of supporting and educating his children is his primary duty." We do not agree with the contention that unless this court on this appeal orders a modification of child maintenance, appellant will be faced with an impossible situation. Under I.C. § 32-705 the trial court retains jurisdiction to modify maintenance awards if such is warranted by the facts. If in the future it can be shown that the allowance specified is not adequate to provide maintenance such as the children are entitled to, and respondent's income justifies an allowance increase, there should be no question as to the court's authority to grant appropriate relief. However, in view of all the circumstances, including the trial court's uncertainty as to the future earnings of respondent, we shall not now disturb the child maintenance allowance as fixed by the trial court. Appellant contends that the trial court abused its discretion in failing to apportion substantially more than one-half of the value of the community property to appellant. In support of this contention appellant refers to the fact that the divorce was granted upon the ground of extreme cruelty and that appellant was the non-offending spouse, which, appellant contends, justifies that a substantially greater portion of the community property should be awarded to her. The applicable statute is I.C. § 32-712, which provides: "In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property and the homestead must be assigned as follows: "1. If the decree be rendered on the ground of adultery or extreme cruelty, the community property must be assigned to the respective parties in such proportions as the court, from all the facts of the case and the condition of the parties, deems just. "2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property must be equally divided between the parties." In a case of this kind the disposition of community property is committed to the discretion of the trial court in the first instance. Davis v. Davis, 82 Idaho 351, 353 P.2d 1079; Smiley v. Smiley, 46 Idaho 588, 269 P. 589; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94. In the instant case the trial court found "that from the facts of the case and considering the condition of the parties" the division made was "deemed to be just and reasonable." Although the court found that appellant had not been guilty of such cruelty toward respondent as would entitle him to the divorce, the record discloses that neither party was without fault or free from objectionable conduct toward the other. In fact appellant concedes that "it may be contended quite validly that there is some fault on both sides." By the above quoted language "and considering the condition of the parties" it must be assumed that the court considered the ability and earning capacity of the parties. The record discloses that appellant is a graduate of the University of Oklahoma, holding a Bachelor of Arts Degree, and the court found that she has intelligence and education to enable her to find and hold employment. Appellant points out that for some time, while respondent was attending medical school, appellant worked and contributed her income to the parties' limited finances and that by reason of her unhappy marital situation she has developed an anxiety neurosis. She quit working in 1952 when she was expecting her first child and has not worked since. We have no doubt that appellant contributed her full share of effort in accumulating the community property. However, it is clear that respondent has likewise exerted himself in accomplishing its accumulation. Although this court has authority on appeal to modify the trial court's decree regarding the disposition of the community 629 property (I.C. § 32-714), our attention has not been called to the existence of any special equities on the side of appellant which would justify us in disturbing the disposition provided for under the decree. The court found that "the defendant shall pay to the plaintiff, the sum of $200 per month as alimony for a period of one year, beginning June 1, 1963." Appellant contends that the court abused its discretion in failing to award a substantially larger sum as alimony and in limiting the alimony payment to a period of only one year. Appellant argues that $200 per month is insufficient and inadequate to provide her support and maintenance in the manner in which she is accustomed to living and that limiting such payments to a period of one year is not "just" under the circumstances, within the meaning of I.C. § 32-706, which provides: "Where a divorce is granted for an offense of the husband, including a divorce granted upon the husband's complaint, based upon separation without cohabitation for five (5) years, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects." This court has consistently held that the allowance of alimony and the amount thereof, are in the first instance committed to the trial court's discretion. Malone v. Malone, 64 Idaho 252, 130 P.2d 674. However, such discretion is reviewable on appeal. Enders v. Enders, 36 Idaho 481, 211 P. 549. The portion of the court's findings which discloses to some extent the reasoning of the court in limiting the payments to one year is as follows: "That the plaintiff has the intelligence and education to enable her to find and hold employment during the hours the children are in school, and the Court further finds that such employment would be to her best interest from a mental standpoint." The record does indicate that many of appellant's personal problems were a result of her remaining at home and worrying; the trial court considered that it would be to her best interest from a mental standpoint to accept employment. In considering appellant's contention it is of significance to note that the court also found: "That the plaintiff is at present unemployed and her present physical and mental condition is not of the best, and that this has been caused in the main by defendant's conduct and treatment of her, and as a result thereof, the plaintiff is entitled to receive, and the defendant shall pay to the plaintiff, the sum of $200.00 per month as alimony for a period of one year, beginning June 1, 1963." As concerns the adequacy of the amount of the allowance we disagree with appellant's contention. We are not aware of any showing that appellant cannot provide herself and the children with appropriate maintenance with the allowances prescribed. However, under all the circumstances of this case we consider that it was error to limit the alimony payments to a period of one year. The court recognized that at the time the decree was entered appellant was not well physically or mentally. There is no showing that appellant has been able to procure employment at any time "during the hours the children are at school." These children may be adversely affected by appellant's absence from the home while in pursuit of employment, and in view of the tender ages of said children it is important to consider what effect would result. To terminate the alimony in advance of any showing that circumstances warrant such termination would necessarily rest on speculation or conjecture. I.C. § 32-706 clearly empowers the trial court to modify or terminate the alimony payments at any time when such 630 modification or termination is deemed justified; but until such time as it is shown to the court that appellant is no longer in need of the alimony or that circumstances and conditions of the parties warrant a modification, the payment should continue. We therefore conclude that the trial court erred in limiting the award of alimony to a period of one year. The trial court is sustained in all of its findings, conclusions, judgment and decree except in respect to the termination of the alimony after one year. Disposition of this case in the manner mentioned renders unnecessary any further consideration of appellant's motion to amend the findings, conclusions, judgment and decree of the court below. The cause is remanded, with direction to modify the decree as to alimony in conformity with this opinion and as so modified the decree is affirmed. Costs to appellant. McQUADE, McFADDEN, TAYLOR and SMITH, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619215/	193 Kan. 357 (1964) 394 P.2d 21 In the Matter of the Estate of Martha L. Isom, Deceased. (GEORGE BURROWS, JR., Appellee, v. T.A. DUDLEY and FRANK MANTZKE, Co-Administrators of the Estate of Martha L. Isom, Deceased, et al., Appellants.) No. 43,644 Supreme Court of Kansas. Opinion filed July 14, 1964. A.E. Kramer, of Hugoton, argued the cause, and Bernard E. Nordling, 358 of Hugoton, and L.R. Hannen and H.T. Horrell, both of Burlington, were with him on the brief for the appellants. Paul A. Wolf, of Hugoton, argued the cause, and J.S. Brollier, of Hugoton, was with him on the brief for the appellee. The opinion of the court was delivered by SCHROEDER, J.: This is an action by George Burrows, Jr. (appellee), hereinafter referred to as the claimant, asking specific performance of an alleged oral contract to devise real estate. It is based upon a claim that Martha L. Isom had made an oral contract in April, 1960, to devise two quarter sections of land, if Burrows and his family would move to her homestead and take care of her and look after her as long as she lived. Mrs. Isom died on July 4, 1961, without leaving any will, and Burrows commenced this action by filing his petition in the probate court of Stevens County, Kansas. On motion the action was transferred to the district court of Stevens County pursuant to the provisions of G.S. 1961 Supp., 59-2402a and G.S. 1949, 59-2402b. Upon joinder of issues the matter was tried to the court and judgment was entered for the claimant granting specific performance as to the Northeast Quarter of Section 3, but denying it as to the Southeast Quarter of Section 3. The co-administrators and heirs at law of the decedent, hereinafter referred to as the appellants, have appealed that portion of the judgment granting specific performance relative to the Northeast Quarter of Section 3. No cross appeal has been filed as to the other quarter section of land involved. The primary question is whether the evidence was sufficient to establish a contract to devise real estate between the decedent and the claimant and performance on the part of the claimant. The trial court made findings of fact and conclusions of law which were incorporated in its journal entry. The findings of fact summarize all of the material evidence and establish the facts in this case. They are as follows: "Martha L. Isom died intestate on July 4, 1961. At the time of her death she was a widow 76 years of age and had no children surviving her. Her sole and only heirs at law were a surviving sister and numerous nephews and nieces. For many years prior to her death she lived on one of her farms in Stevens County, Kansas, located approximately 12 miles southwest of Hugoton. At the time of her death she was the owner of 9 and one half quarter sections of land several tracts of city real estate and personal property. The total appraised value of her estate was $252,335.92. Decedent's husband, Tom Isom, died January 3, 1959. 359 "T.C. Langston testified that he did farm labor for Mrs. Isom on an hourly basis during the years 1955, '56 and '57 for which he was paid. During the years '55 and '56, Tom Isom was doing most of the farm work. He took ill in 1957, and T.C. Langston did most of the farm work for that year. In 1958, Tom Isom had recovered his health and T.C. Langston did not perform any farm work for the Isoms. However, during the latter part of 1958, Tom Isom again became ill, was in the hospital, and incapacitated for work and died January 3, 1959. While Tom Isom was in the hospital, T.C. Langston visited him at the hospital in Amarillo, Texas, and in a conversation with Martha L. Isom she said, `It looks like, Pete, that you're going to have to take over.' Shortly after Tom Isom's death, T.C. `Pete' Langston had a conversation with Martha L. Isom at her farm at which time she leased to him her farm located in west Stevens County. She further stated that if the Langstons would stay there and take care of her like her children that they would inherit her property. In the conversation it developed that the Langstons were to move a house which belonged to Mrs. Isom from her land in eastern Stevens County in or near her home in western Stevens County and take care of her and that they would benefit greatly by inheriting her place. The Langstons moved the house, and after certain repairs were made, moved in the house. Mr. Langston also moved his TV equipment and other personal property to her round-top barn. In the farming operations Mrs. Isom was to furnish the land and the farm machinery and the Langstons were to furnish labor and fuel. Later, Mrs. Isom told Mr. Langston that she wanted to sell him the equipment and priced the machinery to him. He told Mrs. Isom that her price was out of reason and he made arrangements to buy cheaper equipment. Mrs. Isom would not permit him to use the cheaper equipment and before time to start farming operations for the spring of 1959, the Langstons moved from the Isom farm. "Emma (Lease) Plaster, a widow at the time, was living in Thermopolis, Wyoming, and in response to a letter written in March, 1959, came to Hugoton in July of 1959, and went out to visit with Mrs. Isom. Mrs. Isom told Mrs. Lease that she wanted her to be a companion to her and help her with everything and to travel with her. Mrs. Isom told Mrs. Lease she would get what she had which would be a plenty and that Mrs. Lease would not have to work any more, and at one time told her that Mrs. Isom would leave her property to Mrs. Lease, which was repeated several times. Mrs. Lease replied that she felt like she should work for what she got. "Mrs. Lease then returned to Oregon to straighten up her business and in December returned to Stevens County and lived with Mrs. Isom from December 4, 1959, to April 7, 1960. At one time, Mrs. Isom told Mrs. Lease that Mrs. Lease need not work because Mrs. Isom had plenty and she didn't have to worry about anything and no doubt if she lived with her that she would get what Mrs. Isom had. Mrs. Isom further told Mrs. Lease that she didn't want any of her relatives to have any of her property that they didn't need it and that she would like to leave it to somebody that did and that the relatives hadn't done anything for her when she needed them. After a disagreement with Mrs. Isom, Mrs. Lease left the Isom place on April 7th, or 8th, 1960. 360 "The Petitioner, George Burrows, Jr., in the summer of 1959, farmed milo maize on the northeast Section of 3-34S-39 and the southeast Section of 34-33-39 west on a two-thirds one-third basis. George Burrows, Jr., has continuously since 1959, farmed said land to the present time. Martha L. Isom never had the records in the Stevens County ASC office changed to show he was the tenant on said land. Consequently, during this time George Burrows, Jr., received none of the benefits of the ASC farm program from this land. "Petitioner's wife, Jewell Burrows, in a conversation held in Mrs. Isom's residence in western Stevens County, testified that Mrs. Isom said to Jewell Burrows, `I see George has told you of our agreement and you agree.' And Mrs. Burrows answered, `Yes, I agree, if you think we can get along.' Mrs. Isom answered, `I see no reason why we can't get along.' Mrs. Burrows asked Mrs. Isom, `Well, do you think that the children will bother you?' Mrs. Isom replied, `Oh, no, the kids won't bother me, I love those kids.' At another time, Mrs. Isom told George and I that the relatives weren't allowed on the place and if it took a shot gun for George to keep them off, to keep them off. "George Burrows purchased a five room shell house approximately 20 feet by 38 feet in dimensions and moved the same to a location on the northeast quarter of Sec. 3-34-39 close to the residence of Mrs. Isom. This was done according to a memorandum agreement dated April 25, 1960, signed by Martha L. Isom and George Burrows, Jr., which provided that said building, and any other buildings moved on the said land by agreement between the parties, may be removed by the second party, Mr. Burrows, at the termination of this rental year or any other year in which this land is farmed and that first party, Mrs. Isom, shall not make any claim for the retention of said building. Said written agreement also provided that George Burrows, Jr., in the removal of said building would remove any foundation or obstruction on the land and would level the ground so that the same would be in its original condition and to the end that the first party Martha L. Isom shall have no expense in connection therewith. "In a discussion between Mrs. Burrows and Mrs. Isom relative to the locating of the George Burrows' house on the Isom land, Mrs. Isom said she wanted Mrs. Burrows to pick the location because she wanted Mrs. Burrows to be satisfied and happy because Mrs. Burrows was the one that was to live there and added wherever you want to set the house will be just fine with me. "In April 1960, Mrs. Grace Gillespie of Hugoton, Kansas, who was an acquaintance, in a conversation in an automobile parked on the Main Street of Hugoton, had a conversation with Mrs. Isom. After talking about the weather, Mrs. Gillespie asked Mrs. Isom if she lived by herself now or is Mrs. Spikes' sister with you? Mrs. Isom replied, `Oh, she hasn't been with me for a long time. I let George Burrows move a house in there by me and I like that better than somebody living with me. He is such a good farmer and so nice to take care of me that when I die, I am going to leave him the home place.' "Evelyn Brown, who had been acquainted with Mrs. Isom since about 1930, was visiting with Mrs. Isom at her place and in a conversation during the first part of May, 1961, testified that she said to Mrs. Isom, `Well, if you and Mr. Burrows have any difficulties, will he have to move his home off of your property?' Mrs. Isom replied, `I don't intend for him to move it off.' Mrs. 361 Isom further stated to Mrs. Brown that she expected George to live on the place and take care of her and that George was very good to her and she was satisfied with the way he and Mrs. Burrows handled her property and had taken care of her and he will be well paid for it. "That in June, 1960, the house acquired by petitioner was completed for occupancy and he and his family moved to the Isom homestead where they have since lived and resided; that from that time until the date of decedent's death, petitioner and his wife, besides farming the land as set out above, looked after and cared for decedent in numerous respects, as follows: Took care of her chickens and her yard, got her mail for her on bad days, made repairs and improvements on her house, performed work for her on her rental properties, collected rent for her, prepared and served her meals when she was ill, took her to consult doctors, and treated her as though she were a member of their own family; that for these services petitioner and his wife received no compensation. "That decedent requested petitioner and his wife to maintain, care for, and not to destroy the lilacs and other shrubbery in her yard after her death. She also requested them to take care of her cemetery lot after her death. "That during this time the decedent was without the aid and assistance of anyone other than petitioner and his wife." The written memorandum agreement, to which the trial court made reference, dated the 25th day of April, 1960, by and between Martha L. Isom as first party, and George Burrows, Jr. as second party, in material part reads: "That WHEREAS, the said Second Party is a tenant from year to year of certain farm ground belonging to First Party and being the NE/4 of Section 3, Township 34, Range 39, Stevens County, Kansas, and other lands; and "WHEREAS an oral agreement and understanding has been reached about the matters set out herein, it is desired that a written memorandum be made to fix and determine the rights of the parties herein. "It is agreed by and between the parties that in furtherance of the farming operations of Second Party, it has been agreed between the parties and the Second Party has moved a house entirely owned by him on the NE/4 of Section 3-34-39, being a wooden five-room structure approximately 28 feet by 38 feet in dimensions, and desires the right to remove that building and any other buildings which he may move upon said land in connection with his rights as tenant, and to protect himself as to his right to remove the same. "IT IS THEREFORE BY THE PARTIES HEREWITH AGREED that this building and any other buildings moved on by agreement between the parties may be removed by Second Party at the termination of this rental year or any other rental year in which this land is farmed, and that First Party shall not make any claim for the retention of said building. It is, however, agreed by Second Party that in the removal of said building that he will remove any foundations or other obstructions on the land and will level said ground so that the same may be in its original condition, and to the end that First Party shall have no expense in connection therewith. 362 "The consideration of this agreement is the mutual benefits and advantages to be obtained by and between the parties and said parties recognize said mutual rights." All parties concede and plead this memorandum agreement, and the parties further agree that the written memorandum agreement was made subsequent to the alleged oral agreement to devise the real estate in question. In fact, the appellants concede there is little conflict in the testimony. They contend it is the absence of testimony rather than the question of belief or disbelief of it by the trial court that is presented for review. It is the appellants' contention that there is no evidence in the record to support the following allegations in the petition: "... that in April, 1960, the decedent, desiring to have someone live on her farm and look after and care for her, made an oral offer and proposal to the petitioner that if he and his family would move to her homestead on the NE/4 of Section 3 and would take care of her and look after her as long as she lived that she would devise and will to the petitioner the real estate described above; that, after discussing this offer and proposal with his wife, the petitioner orally accepted said offer and proposal." Thereupon the appellants review the testimony of the various witnesses set forth in the findings of the trial court item by item, and argue there is no mention of any contract or agreement between the parties as to the time, nature, terms or the existence of any obligation between the parties. Conclusions of law made by the trial court are as follows: "(186 K 427) A contract is the foundation upon which the claimant George Burrows, Jr., must base his right to recover. Before one can recover under an alleged oral contract to will, devise or leave property to another, such a contract must be clearly and definitely developed by direct evidence or corroborating testimony, or by circumstances from which the reasonable inference arises that an agreement was made. Such a contract must be definite, its enforcement equitable, and its performance must be established on the part of the promisee the performance must be attributable to the alleged contract as distinguished from some other relationship between the parties. "The question before this court is whether the testimony introduced meets these requirements. "The testimony of the Mr. and Mrs. Langston and Mrs. Lease is material herein only for the purpose of showing the state of mind of Mrs. Isom subsequent to her husband's death. "This state of mind when considered with the statements of Jewell Burrows, Mrs. Grace Gillespie, Mrs. Evelyn Brown and with the moving of the shell house on the NE 1/4 3-34-39, with Mrs. Isom's consent and written contract, is sufficient in this court's opinion to establish the making of the oral contract. "The evidence is not so clear as to the requirement that the contract be 363 definite, particularly as to the amount of land Mrs. Isom agreed to leave to the claimant. This court thinks the fact that the Burrows lived in a house they bought and moved on the NE 1/4 3-34-39 upon which quarter section of land all of the Isom improvements were located is sufficient to establish said quarter of land as the `home place,' which land was also farmed by George Burrows. "There was no evidence to show that Mrs. Isom considered the SE 1/4 34-33-39 as a part of the `homeplace'. The only evidence that would tend to justify George Burrows' claim to this quarter section is the fact that the claimant also farmed it along with the NE 3-34-39. This court does not believe this is sufficient. "The performance by George Burrows, Jr., although it covered a period of only fifteen months, constituted full performance. There was no long standing family relationship by blood or friendship between George Burrows, Jr., and Mrs. Isom that would account for the performance of the services by claimant. "The petition of George Burrows, Jr. for specific performance of oral contract to devise real estate is hereby granted as to the NE 1/4 3-34-39 and denied as to the SE 1/4 34-33-39 Stevens County. "The proceedings in the Estate of Martha L. Isom, deceased, are hereby remanded to the Probate Court of Stevens County, Kansas, for further administration in compliance with the above orders according to law." After the trial court made its decision and entered judgment, a motion for a new trial was filed, and, after hearing, was overruled. We shall first consider a preliminary question raised by the appellants. The appellants contend the "trial court erred in admitting improper testimony of witnesses L.C. Langston, Emma B. Lease, and Lena Frances Langston, as to so called `similar acts.'" The appellants contend the testimony of these witnesses was incompetent, concerned unrelated matters, and was not admissible for any purpose. (Citing, Roberts v. Dixon, 50 Kan. 436, 31 P. 1083; and 20 Am. Jur., Evidence, §§ 246, 248, pp. 239, 242.) The trial court admitted this evidence on the ground it was material only for the purpose of showing the state of mind of the decedent subsequent to her husband's death. This court has said in Prymek v. Herink, 131 Kan. 77, 289 P. 412, that other similar acts may be shown when a course of conduct or dealing is in question, or in certain instances when a question of habit or custom is involved. Dean Slough, in an article entitled "Relevancy Unraveled," 6 Kan. L. Rev. 38, stated: "... When evidence of other transactions renders the desired inference more probable than it would be without admission of offered proof, the basic standards of relevancy have been met...." (p. 38.) A leading case on this point is Firlotte v. Jessee, 76 Cal. App. 2d 207, 172 P.2d 710. The controversy involved an oral agreement between 364 the parties wherein the defendant sold to the plaintiff for $600 the feed on two hundred acres of land for the 1944 grazing season. The plaintiff went into possession and put some sheep on the leased ground. After eleven days the feed had been topped and the sheep were temporarily removed. Six weeks later the plaintiff discovered that defendant was grazing his cattle on the leased ground and all of the feed was gone. Suit was brought for refund of some of the lease money. At the trial the plaintiff testified that he had the right to the use of the land for the entire season, exclusive of any interest of the defendant, while the defendant testified that he had reserved the right to pasture his cattle on the land. The testimony of another witness was offered to the effect that the defendant had previously offered the ground to him to pasture for 1944 and had said nothing to him about reserving the right to pasture defendant's cattle on the two hundred acres. The trial court admitted such testimony. On appellate review such ruling was affirmed, the court in its opinion stating: "... By reason of the circumstance that defendant's sole defense to plaintiffs' action was a question of fact relating to the claimed reservation by him of a right to use the same land for pasturage of his cattle and the circumstance that defendant also had offered the identical land to witness Frank Faniani without such a reservation, said testimony therefore could reasonably be said to have a direct connection with the question in dispute, and to be essential to its proper determination, as well as affect the credibility of the defendant as a witness...." (p. 211.) (See, also, Moody v. Peirano, 4 Cal. App. 411, 88 P. 380.) In 20 Am. Jur., Evidence, § 248, the rule is stated as follows: "Evidence of collateral issues may, however, be relevant if the fact which it tends to establish will tend to prove or disapprove the fact in issue, as where it has a natural tendency to corroborate or supplement admitted direct evidence. In other words, while the evidence offered must be confined to, it need not bear directly upon, the issues. But to render evidence of collateral facts competent, there must be some natural, necessary, or logical connection between them and the inference or result which they are designed to establish." (p. 243.) Wigmore, in speaking of evidence to prove a contract, says: "It has already been pointed out ... that it is often difficult to say whether the idea of Habit or that of Plan or System is the more appropriate in evidencing a course of conduct in making contracts. This, however, is after all chiefly a question of words, for the underlying notion and the applicable principle are the same in each case. That principle is ... (a) 365 that the instances must be numerous enough, and (b) that they must have occurred under conditions so similar as to indicate a system, plan, or habit of doing that particular thing under similar circumstances." (2 Wigmore on Evidence [3rd Ed.] § 377, p. 307.) The California court in Bone v. Hayes, 154 Cal. 759, 99 P. 172, citing the above section of Wigmore said: "... While, ordinarily, evidence that a certain contract was made with A, is not admissible to show that a similar contract was made with B, it has repeatedly been held that such evidence may, in the discretion of the court, be allowed, where the circumstances indicate a strong probability that the course followed in one instance would be followed in others...." (p. 767.) Under the foregoing rules we hold evidence of Mrs. Isom's prior dealings with the Langstons and with Emma B. Lease was relevant and thus admissible. Such evidence made the inference, that an oral contract was entered into between Mrs. Isom and George Burrows, more probable than it would be without the admission of such transactions. The trial court was well within its discretionary power to accept such evidence at the trial and give it such probative value in proof of the making of an oral contract to devise real estate as it felt the evidence warranted. As a general rule direct evidence of oral contracts to devise real estate is unavailable because the decedent's lips are sealed by death, and the one who personally entered into the transaction with a deceased person has his lips sealed by the statute. (G.S. 1949, 60-2804.) The law in Kansas has recognized this fact. In Anderson v. Anderson, 75 Kan. 117, 88 P. 743, the appellants' contention was similar to the appellants' contention here. The court there held that a decree of specific performance can be rendered if the contract is established by such facts and circumstances as will raise an implication that it was made, and may have reinforcement from the evidence of the conduct of the parties, at the time of making the contract and subsequently. It was held in Bichel v. Oliver, 77 Kan. 696, 95 P. 396: "If the facts and circumstances brought out in the evidence, including the acts of the parties, are such as to raise a convincing implication that the contract was actually made and satisfy the court of its terms and performance, and that there would be no inequity in its enforcement, it is sufficient." (Syl. ¶ 3.) Another statement of the rule is found in the case of In re Estate of Wert, 165 Kan. 49, 193 P.2d 253, as follows: 366 "Oral contracts with deceased persons may be proved by direct evidence or by corroborating testimony in the nature of admissions or statements to third parties, facts, circumstances or conduct consistent with the making of the contracts, performance attributable to the contractual relationship, the failure to compensate otherwise for performance and by any other competent evidence which may create a convincing implication that a reasonably certain contract was made which, with equity, may be enforced." (Syl. ¶ 4.) One of the more recent cases on the subject is In re Estate of Dull, 184 Kan. 233, 336 P.2d 435, where the court stated the rule as follows: "... it appears this court, in cases similar in character to this one, has recognized the rule that the express terms of the contract need not be established by direct evidence, that all the facts and circumstances may be considered, and that performance is not only essential to recovery but is one of the circumstances which should be taken into consideration in determining whether a contract was entered into." (p. 238.) The appellants rely on general law which is discussed in Andrews v. Aikens, 44 Idaho 797, 260 P. 423, 69 A.L.R. 8; and Holsz v. Stephen, 362 Ill. 527, 200 N.E. 601, 106 A.L.R. 737. They also rely on Woltz v. First Trust Co., 135 Kan. 253, 9 P.2d 665, 106 A.L.R. 748; Trackwell v. Walker, 142 Kan. 367, 46 P.2d 603, 106 A.L.R. 748; In re Estate of Towne, 172 Kan. 245, 239 P.2d 824; and Brown v. Slusser, 130 Kan. 834, 288 P. 743. These cases hold that in matters of this character the first question to be determined is whether there was a contract such as is claimed. In Woltz v. First Trust Co., supra, cases where the contract was established are cited, also those where the contract was not established are cited, and the court recognized that no good purpose would be served in analyzing each of these cases. To cite them was deemed sufficient. Each case must be analyzed and stand or fall upon its own facts. We think the claimant produced sufficient evidence at the trial to raise a convincing implication that an oral contract to devise real estate was made. The decedent was an elderly person, living alone on a farm twelve miles from Hugoton, in ill health, and in need of aid and assistance from someone. From the time claimant and his family moved onto the decedent's farm, they were her only source of aid and assistance. Prior to her contract with the claimant, the decedent had made promises and entered into separate transactions with T.C. Langston and Emma Lease to the effect that if these people would look after her and care for her, she would leave some or all of her property to them. The claimant performed 367 all of his obligations under the contract, and this performance should be considered as corroborative evidence of the fact that such a contract was in fact made. The services rendered by the claimant and his wife were not the type of services which a tenant would ordinarily perform for his landlord. Besides farming the land, claimant and his wife looked after and cared for the decedent in numerous respects as found by the trial court. For these and other services the claimant and his wife received no compensation. The written severance agreement between the claimant and the decedent was the only evidence that the relationship of landlord and tenant existed between the parties. All of the other evidence produced at the trial shows that the decedent never recognized the claimant as an ordinary farm tenant. The evidence shows that the decedent never had the records in the Stevens County ASC office changed to show that the claimant was the tenant on her land. Consequently, during this time, the claimant received none of the benefits of the ASC farm program on this land. If he were a farm tenant, that relationship is not inconsistent with the oral agreement to devise real estate. The decedent requested the claimant and his wife to maintain, care for and not destroy the lilacs and other shrubbery in her yard after her death. This statement by the decedent shows that she intended for the claimant and his wife to live on this farm after her death. She also requested them to take care of her cemetery lot after her death. This is not a request which a landlord would make of a tenant. The fact that the claimant purchased a new five-room house and went to the expense of moving it to the homestead of the decedent does not justify the conclusion that the claimant was a mere year to year tenant. It is hardly logical to assume that a year to year tenant would go to such expense where the landlord was quite elderly and whose death would necessitate the removal of the house at additional expense, in the absence of a contract of the kind propounded by the claimant and found to exist by the trial court. The evidence disclosed that the decedent and her relatives were not on good terms. The relatives were not allowed on the place, and they did nothing for her in recent years. From June, 1960, until her death, the decedent's only aid and assistance came from the claimant and his wife. There was an abundance of evidence to show that the appellee 368 had fully performed his obligations under the contract. Full performance by one of the parties to an oral contract is sufficient to take the case out of the statute of frauds. The facts and circumstances brought out in the evidence statements and admissions made by the decedent to third parties coupled with other evidence adduced in the case, including the acts of the parties were sufficient to raise a convincing implication that the contract was actually made and to satisfy the court of its terms and performance. Nothing in the record indicates that enforcement of the contract would be inequitable. The terms of the contract to devise the real estate, described in the evidence as the home place, to the claimant were reasonably certain. The variance between the petition which sought two quarter sections of land and the finding by the trial court, that the home place consisted of only one quarter section where the buildings were located, is of no consequence on the facts in this case. On the evidence the land in question was the home place. What land this included was a matter for the trial court to determine from the evidence. Whether the trial court was correct in such finding is a matter which has not been challenged by the claimant. The written severance agreement (memorandum agreement) between the decedent and the claimant did not prevent the claimant from proving the existence of a collateral oral agreement which is enforceable. Here the claimant was farming some of the decedent's land under an oral year to year tenancy. When the decedent proposed that the claimant and his family move to the farm so that the claimant and his wife could look after and care for her, it became necessary for the claimant to provide a place on the farm for his family to live. He purchased a new five-room shell house, paid for the foundation, plumbing, heating, wiring, etc., and paid for having it moved to the farm. In the absence of a written severance agreement this house would have become a part of the decedent's real estate. Even though the claimant was to acquire this land by devise from the decedent, by agreement it was necessary that he and his wife look after and care for the decedent during the remainder of her life. If, for some reason, the claimant failed to perform his obligation under the contract and the decedent terminated the contract and his tenancy, the claimant would lose his investment in the house. Consequently, the severance agreement was necessary to protect the claimant, and it related only to the year to year farm 369 tenancy and the claimant's right to remove his property if the oral contract was not performed by him. The severance agreement itself states: "An oral agreement and understanding has been reached about the matters set out herein," but nowhere does it state that it covers all of the oral agreements between the parties. A similar situation was presented in the case of In re Estate of Boller, 173 Kan. 30, 244 P.2d 678. There the executor contended the claimant could not recover on an alleged oral agreement because the parties had executed a written contract into which were merged all prior negotiations. The court said: "We recognize the general rule contended for, but there are exceptions to it, and among them is one that the parol evidence rule does not preclude the admission of extrinsic evidence of a valid prior parol agreement which is separate both in form and substance from the written contract, although related in a general way to it. If the oral agreement does not vary or contradict the written agreement nor invade the particular field which the latter undertakes to cover, but instead has for its subject a matter the parties might naturally deal with separately, the oral agreement may be enforced...." (p. 37.) The foregoing rule has subsequently been approved in the cases of In re Estate of Hupp, 177 Kan. 202, 277 P.2d 618; and In Re Estate of Goff, 191 Kan. 17, 379 P.2d 225. In our opinion there was sufficient competent evidence to support the findings of the trial court and the judgment. The judgment of the lower court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2619227/	394 P.2d 630 (1964) Margaret J. NICHOLS, in her sole and separate capacity, and as Executrix of the Estate of Walter J. Nichols, Deceased, Plaintiff-Appellant, v. Cecil E. KNOWLES and Peggy M. Knowles, husband and wife, Defendants-Respondents. No. 9338. Supreme Court of Idaho. July 29, 1964. 631 Everett D. Hofmeister, Jr., Sandpoint, for appellant. Bandelin & Cogswell, Sandpoint, for respondents. McFADDEN, Justice. Appellant by her notice of appeal purported to appeal to this court from the trial court's order denying her motion for new trial and also from the final judgment. Respondent moved to dismiss the appeal from the trial court's order denying the motion for new trial on the ground that appellant's undertaking on appeal applied only to the appeal taken from the judgment, and not to the appeal from the order denying the motion for new trial. Pertinent portions of the undertaking on appeal recite: "Whereas the plaintiff in the above-entitled action is about to appeal to the Supreme Court of the State of Idaho, from a judgment entered against plaintiff in said action, in favor of the defendant in said action on the 18th day of February, 1963: * " This court in Jordan v. Jordan, 75 Idaho 512, 517, 275 P.2d 669, considered the requirements of I.C. §§ 13-202 and 13-203, and their application to an undertaking which referred only to the judgment appealed from and not to orders subsequent to judgment, as in the instant case, and stated: " * * The undertaking filed herein is not insufficient or defective or void as an appeal bond on the appeal from the judgment. Neither is it uncertain as to the appeal for which it is given. It only purports to cover the appeal from the judgment and nowhere mentions the appeals from the orders made after judgment. There is an entire absence of an undertaking to cover such appeals. It follows that the appeals from the orders made after judgment must be dismissed." The case of Jordan v. Jordan, supra, is controlling, and the appellant's appeal from the order denying her motion for new trial is dismissed. 632 Mrs. Nichols, the plaintiff and appellant, is the widow of Walter J. Nichols, who died April 17, 1961; she instituted this action individually, and as the executrix of her late husband's estate, to terminate a written real estate contract and to quiet title to the property against Mr. and Mrs. Knowles, husband and wife, the defendants and respondents herein. The contract, dated August 1, 1960, was executed by Mr. and Mrs. Nichols, as the vendors, and signed April 1, 1961, by respondents as purchasers. Under the terms of the contract, respondents were to pay $20,000, purchase price, of which sum $19,000 was for the real property, and $1,000 for personal property. The purchase price was payable $2,000 upon signing of the contract, payment of which was acknowledged by appellant and her husband, and $6,000 on or before July 1, 1961, and the remaining balance in annual installments. On April 1, 1961, respondents paid an additional $4,000 on the payment due July 1, and took possession of the premises. They did not pay the remaining $2,000 due on the July 1st payment. The record disclosed some discussion regarding a 30 day extension of time for payment of this $2,000. However, on September 2, 1961, appellant caused Notice of Default and Election to Re-enter to be served on respondents, and appellant instituted this action seeking possession of the premises and seeking to quiet title, and to retain as liquidated damages the amount paid by respondents upon the contract. Respondents filed a counter-claim seeking a return of the $6,000 paid, less $1,000 for the reasonable use and occupancy of the premises. Respondents relinquished possession of the property in June, 1962. Judgment was entered for appellant quieting title in the real and personal property in the appellant; judgment was also entered for respondents on their counter-claim for $3,350, which sum was decreed a lien upon the premises. This appeal was taken from that judgment. Appellant's first four assignments of error are directed to specific findings of the trial court. Suffice it to say that an examination of the record reflects that these findings are fully supported by substantial and competent evidence, and hence will not be disturbed by this court. Ryan v. Day, 74 Idaho 159, 258 P.2d 1146; Crouch v. Bischoff, 76 Idaho 216, 280 P.2d 419; Melton v. Amar, 86 Idaho 262, 385 P.2d 406. The contract, among other things, provided: "In case the parties of the second part [respondents Knowles and wife] fail to make any of the payments, or any part thereof, or to perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the parties of the first part [appellant Nichols and her husband] be forfeited and determined and the parties of the second part agree that in such event that all payments made under and by virtue of this agreement shall belong to and be retained by the parties of the first part as liquidated damages for the nonfulfillment of this agreement, for loss in value of said real property and for the rental thereof. The term liquidated damages and the amounts fixed therefor have been arrived at by the parties as reasonable sums for the failure of the parties of the second part to perform since the actual amount of damage which would result to the parties of the first part cannot be definitely determined. In the event of such default by the parties of the second part, the parties of the first part shall have the right to re-enter and take possession of said premises. In the event any action is instituted by either party to enforce the terms and conditions of this agreement, then in that event the prevailing party shall be entitled to reasonable attorneys fees to be assessed as costs in such suit or action." 633 Appellant asserts that the trial court erred in its finding that such provision "* * * provides not for a forfeiture and actual damages, but a penalty insofar as it bears no reasonable relation to the damage suffered by the plaintiffs by reason of the breach of the defendants, and said retention of the $6,000 heretofore paid by the defendants to the plaintiffs is unconscionable and exorbitant and is a penalty and void and unenforceable." The trial court further found that respondents had made a down payment of $2,000, and that they made a further payment on April 1, 1961 of $4,000, for a total of $6,000, and also found on respondent's counter-claim that respondents were entitled to recover from the appellant the $6,000, less the following items fixed as appellant's damages: "1) Reasonable rental value of said premises for the tenure by the defendants at the rate of $1,000.00 per year for a total of ......................... $1,250.00 2) Repairs, cleaning and renovation by the plaintiffs after the defendants removed themselves from the property in the amount of .................. 400.00 3) Real Estate commission paid by the plaintiff to Nona Sommerfeld for procuring the sale of said property, the amount of ......................... 1,000.00 ---------- $2,650.00" The court found that the respondents committed no damage other than the above itemized amounts that depreciated the value of the property. The court then computed the amount to be paid by appellant to respondents as follows: "Principal payment on contract $6,000.00 Less ......................... $2,650.00 Total due from plaintiffs to defendants .................. $3,350.00" Parties to a contract may stipulate the amount of liquidated damages that shall be paid in case of a breach, and such stipulation is enforceable if the amount stipulated is not disproportionate to the damages actually sustained. Melton v. Amar, 86 Idaho 262, 385 P.2d 406; Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020. "It is the lawful privilege of the parties to a contract for the sale of real property to make time of performance of the essence of their agreement. It is also their privilege to agree in advance upon the damages to be recompensed in case of breach. The courts, both at law and in equity, must respect the provisions of a contract lawfully agreed to. (Citing cases.)" Howard v. Bar Bell Land & Cattle Co., 81 Idaho 189, 340 P.2d 103. On the other hand, if the damages so agreed upon are clearly unconscionable, exorbitant and arbitrary, bearing no reasonable relation to the damages which the parties could have anticipated from the breach which occurred, the provision is considered an unenforceable penalty. Miller v. Remior, 86 Idaho 121, 383 P.2d 596; Walker v. Nunnenkamp, 84 Idaho 485, 373 P.2d 559; Scogings v. Love, 79 Idaho 179, 312 P.2d 570. It is for the trial court to determine under the facts of any particular case whether the amount stipulated as damages bears such reasonable relation to the damages actually sustained as to be enforceable as a provision for liquidated damages; likewise, it is for the trial court to determine whether under the facts the amount stipulated is arbitrary and bears no reasonable relation to the anticipated damages and is so exorbitant and unconscionable as to be regarded as a penalty. Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020; Walker v. Nunnenkamp, 84 Idaho 485, 491, 373 P.2d 559. The trial court's finding that this provision under the facts was so unconscionable and exorbitant as to amount to a penalty is supported by substantial, competent, although conflicting evidence; hence the finding must be sustained by this court. Melton v. Amar, supra. 634 Appellant asserts that the trial court erred in not granting her motion to dismiss respondent's counter-claim and in allowing recovery by the respondents. She asserts the record affirmatively shows that no claim was ever presented to the estate of Walter J. Nichols, as required by I.C. § 15-611. It is contended that the respondents' counter-claim is based on the contract, and no claim having been presented to the estate it is thus barred, unless the respondents come within the exception allowed by I.C. § 15-611. The right of action by the respondents did not arise until they were served with notice of default, on September 2, 1961. Mr. Nichols died April 17, 1961, some months before. In Nathan v. Freeman, 70 Mont. 259, 225 P. 1015, 41 A.L.R. 138 (1924), the Montana Supreme Court held that a statute similar to I.C. § 15-611, has no application to claims arising subsequent to a decedent's death, stating: " * * In our opinion these statutes of non-claim have reference to an indebtedness existing at the time of the decedent's death, not to such as arise subsequently by reason of a breach of the executory contracts of the deceased. Claims existing before death are in one category, and those arising subsequently in another. The former must be presented or they are barred forever, while the latter class are incident to the administration of the estate." We believe that the correct rule is announced by the Montana Supreme Court. See also: Gaspar v. Buckingham, 116 Mont. 236, 153 P.2d 892 (1944); Annot. 34 A.L.R. 352, 362; Annot. 41 A.L.R. 144; Annot. 73 A.L.R. 2d 883. It must also be pointed out that this counter-claim was in the nature of an equitable action. In Ashbauth v. Davis, 71 Idaho 150, 154, 227 P.2d 954, 32 A.L.R. 2d 361, this court considered whether or not such an action was based upon a "claim" within the meaning of the statute. The court stated: "* * * As early as 1886 this court held that the term, `claim' does not include causes of action purely equitable, and in which purely equitable relief is sought. Toulouse v. Burkett, 2 Idaho 184, 10 P. 26". We are of the view that the trial court did not err in refusing to dismiss the respondents' counter-claim. The record fully sustains the findings of fact by the trial court, and the judgment is affirmed. Costs to respondents. KNUDSON, C. J., and McQUADE, TAYLOR and SMITH, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/249652/	273 F.2d 140 John L. OWEN, Appellant,v.SEARS, ROEBUCK AND COMPANY, a corporation, Appellee. No. 16366. United States Court of Appeals Ninth Circuit. Dec. 1, 1959. 1 Nicholas Granet, Portland, Or., for appellant. 2 Koerner, Young, McColloch & Dezendorf, John Gordon Gearin, Portland, Or., for appellee. 3 Before BONE and HAMLEY, Circuit Judges, and BOWEN, District Judge. 4 BOWEN, District Judge. 5 This is an appeal from the Trial Court's order directing a jury verdict for appellee (defendant below) at the close of appellant's (plaintiff's) case in chief in the trial of appellant's action against appellee for alleged breach of warranty of fitness to recover damages sustained by appellant when he was burned by a cigarette-lighted fire in a shirt he was wearing some time after it was purchased by his wife for him at appellee's Portland, Oregon store. 6 In the pretrial order which superseded the pleadings, appellee admitted as appellant contended that there is a diversity of citizenship between the parties and that more than $3,000.00, exclusive of interest and cost, is involved in this action. All other allegations and contentions of appellant were denied by appellee in the pretrial order. The Trial Court had and this Court has jurisdiction. 28 U.S.C.A. 1332, and 28 U.S.C.A. 1291 and 1294. 7 Appellee did not before the trial plead in its answer or contend as a defense in the pretrial order, as during and after the trial it has contended and does now contend, that appellant failed to give appellee notice of appellant's claim against appellee as required by the Oregon Uniform Sales Act (ORS 75.490). As to that, appellant argues that, by such failure of appellee to so plead and contend, appellee waived its right to have received such statutory notice and to now claim lack of such notice as a defense, but that anyway commencement of appellant's suit in this case constituted the statutorily required reasonable notice to appellee. 8 Appellee, however, at the trial contended and now contends that the giving of such statutorily required notice by appellant was an indispensable condition to the existence of appellant's claim and of his presently asserted cause of action, and that the commencement of appellant's suit did not constitute reasonable notice to appellee within the meaning of the Oregon Uniform Sales Act, supra. There is no contention that appellant gave to appellee any notice by any other means than by such suit commencement. 9 This case is based upon alleged breach by appellee of implied warranty of fitness of the shirt for use as an item of suitable wearing apparel for appellant at the time of the alleged fire. 10 Appellant's alleged cause of action for such breach of warranty arose in Oregon. This diversity of citizenship case involving such cause of action is based upon the law of that, not any other, state and not upon a federal law, and the rule of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, makes of primary and paramount concern the applicable statutory and case law of Oregon. In pertinent part the Oregon Uniform Sales Act, supra, provides: 11 'In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.' 12 The Supreme Court of Oregon, in Tripp v. Renhard, 1948, 184 Or. 622, 200 P.2d 644, 653, interpreted the notice requirement of the above quoted Oregon statute as follows: 13 'It will be noticed that the provision exacts of a buyer, who is not favored by a stipulation to the contrary, a duty which he must perform if he wishes to hold the seller liable for a breach of warranty. The duty is the following: 'give notice to the seller of the breach of any promise or warranty.' The provision states clearly the time when the duty must be performed. The time schedule is: (1) 'after acceptance,' and (2) 'within a reasonable time after the buyer knows, or ought to know, of such breach.' By reverting again to the provision, it will be observed that its sweeping language is all inclusive. It is not applicable only in some forms of action, nor is it confined only to some defenses. In fact, it is not concerned with procedure. The object of its concern is something more fundamental than procedure. Procedure is subservient to or the handmaiden of rights. Section 49 is concerned with the recognition and extinction of rights. The provision recognizes no exceptions to the rights with which it deals and the duties which it exacts save only those wherein the parties by 'express or implied agreement' have provided for a different course. It states in simple language the result which the courts must recognize when the buyer fails to give the needed notice. The result, as stated, is: 'the seller shall not be liable therefor." 14 Nicholson v. Jones, 1952, 194 Or. 406, 242 P.2d 582, and Israel v. Miller, 1958, 214 Or. 368, 328 P.2d 749. 15 And the Oregon Supreme Court in Maxwell Co. v. Southern Oregon Gas Corporation, 1937, 158 Or. 168, 74 P.2d 594, 597, 75 P.2d 9, 114 A.L.R. 697, 706, held: 16 '* * * the clear and practically unbroken current of authority establishes the doctrine that the requirement of notice, to be given by the vendee charging breach of warranty, is imposed as a condition precedent to the right to recover, and the giving of notice must be pleaded and proved by the party seeking to recover for such breach: * * *' 17 Appellee contends that, even if the commencement of the action is, as contended by appellant, a proper method of giving the required notice, appellant's waiting about two years to bring this action was so long after the alleged warranty breach became known to appellant, the notice thereby given to appellee under the circumstances surrounding such delay was unreasonable and not a lawful notice. In that connection, the following circumstances may be noted: The shirt was destroyed in the fire except for the collar, and that was afterwards disposed of. The shirt was purchased in appellee's Portland, Oregon store. When appellant sustained his injuries, his wife was employed in that store. He was employed and lived in nearby Vancouver, Washington where after about eight weeks he recovered from his injuries and resumed gainful employment, and where he lived at the time of the trial. He was aware of the shirt burns as the cause of his injuries. There was no direct evidence of justification for his not giving prompt notice, although he contends that he had no information he could have given appellee that would have enabled appellee to act. 18 Appellee further contends that, if it had been correctly advised that the shirt was not a 'Pilgrim' shirt for which the price paid was not $2.98 as the evidence shows, instead of having been misinformed by appellant's untrue statements and contentions in his complaint and in the pretrial order that the shirt was a 'Pilgrim' shirt for which $2.98 was paid, appellee would by such correct advice have been assisted in indentifying the lot from which the shirt came; and that the evidence shows appellant knew the color of the shirt and that it had short sleeves, had two or three buttons at the collar, was made from polished chambray lightweight cotton cloth, had navy blue trimming, was a gaucho type shirt, and was purchased in the month of May on a special sale. 19 Appellee convincingly reasons in effect that if appellant had given appellee prompt notice of his claim and of the foregoing information, appellee could have not only identified the lot from which the shirt came, but could have tested similar shirts in the lot for inflammable characteristics, and that such prompt notice would have afforded appellee opportunity to tender the defense of this action to the manufacturer of the burned shirt. 20 Our decision upon the issue as to notice is that no pleading or proof of the defense of lack of notice was required of appellee, that it was necessary for appellant to, but he did not, allege and prove his giving to appellee the statutorily required reasonable notice of his claim in order to have a valid cause of action against appellee, that appellant did not merely by commencing this action give such or any reasonable notice, and that for that reason appellant did not and does not now have a valid cause of action and cannot maintain this action against appellee, and that appellant take nothing by this appeal. 21 We have considered but do not decide other issues presented by appellant and by appellee because, in view of the foregoing ruling against appellant and in favor of appellee on the issue of notice, our decision on the other issues could not change the result of that ruling. 22 The action of the Trial Court is affirmed.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1913654/	705 So.2d 90 (1997) James W. BURNEY, Appellant, v. STATE of Florida, Appellee. No. 97-03730. District Court of Appeal of Florida, Second District. December 31, 1997. Rehearing Denied January 30, 1998. PER CURIAM. James W. Burney challenges the trial court's denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Burney's motion argued several grounds for relief, one of which has merit. In his motion Burney alleges that his sentence is illegal because the trial court included hard labor as a sentencing condition. The court in Zygadlo v. State, 676 So.2d 1015 (Fla. 5th DCA 1996), held that a sentencing condition of hard labor, when such condition was not authorized by statute, is an issue appropriately raised in a motion to correct illegal sentence. Effective July 2, 1970, chapter 70-340, section 180, Laws of Florida, repealed chapter 922, which allowed a sentence to hard labor. As Burney committed his crimes August 30, 1971, a sentencing condition of hard labor constitutes an illegal sentence. Accordingly, we affirm the trial court's order in all respects except that we remand to the trial court to strike the condition of hard labor from Burney's sentence as there was no statute to authorize this condition. Affirmed in part, reversed in part, and remanded with directions. THREADGILL, A.C.J., and PATTERSON and QUINCE, JJ., concur.	01-03-2023	10-30-2013

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